ITEMID: 001-106623
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF AGACHE v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 4. The applicant was born in 1970 and lives in Codlea.
5. During events on 22 December 1998 the applicant’s father was murdered. By a decision of 15 February 1999 the Bucharest County Court convicted of murder five individuals, namely, F.O.D.K, P.O., H.D., R.A. and K.I., all of whom had dual Hungarian/Romanian citizenship, and ordered the joint payment of damages of 50,000.000 Romanian Lei (ROL) to the applicant and other civil parties. The decision became final on 26 March 2001 by a decision of the Supreme Court.
6. On 26 July 2001 the applicant started enforcement proceedings through a local bailiff.
7. In 2002, during the enforcement proceedings, the authorities found that three of the debtors (P.O., F.O.D.K. and K.I.) had left Romania and established their residence in Hungary.
8. On 28 March 2002 the International Relations Office within the Romanian Ministry of Justice advised the applicant to lodge, pursuant to Article 46 (b) of the Agreement of 1958 between the Popular Republic of Romania and the Popular Republic of Hungary regarding judicial assistance in civil, family and criminal trials (hereinafter “the Treaty”), a request for international judicial assistance with the firstinstance court that had ruled on the matter, to be forwarded through the Ministry of Justice, which would also provide a translation of the request and the accompanying documents.
9. On 2 December 2002 the applicant made an exequatur request and, pursuant to Article 46 (b) of the Treaty, lodged it with the Bucharest County Court. He also requested an update of the amount of damages and its equivalent in Euros.
10. On 16 June 2003 the Bucharest County Court provided the update requested. Consequently, the applicant filed another exequatur request.
11. On 17 November 2003 the Bucharest County Court issued the exequatur requested in relation to the final decision of 2001 with respect to P.O., F.O.D.K. and K.I. and sent it to the Ministry of Justice. However, since authorised translations of all the accompanying documents were not enclosed with the request, in accordance with Article 48 of the Treaty, the Ministry of Justice sent it back to the Bucharest County Court requesting it to provide the translations at the plaintiff’s expense.
12. On 12 February 2004 the Bucharest County Court sent the certified translations into the Hungarian language of the required documents to the Minister of Justice.
13. On 5 March 2004 the Minister of Justice sent to its Hungarian counterpart the exequatur request relating to the final court decision of 2001.
14. In reply to requests by the applicant for information with respect to the state of the proceedings, the Ministry of Justice informed him on April 2005 that there had been no official answer from the Hungarian Authorities but that they would pursue their contact with the Hungarian authorities and keep him informed accordingly.
15. In 2006 and 2007 the applicant renewed his request for information regarding the state of the proceedings.
16. On 14 February 2007 the Ministry of Justice informed the applicant that they had requested information from their Hungarian counterpart.
17. On 12 April 2007 the Hungarian Ministry of Justice informed the Romanian Ministry of Justice that no exequatur request relating to a court decision from Romania had been registered in their data base.
18. Following a new request from the applicant regarding the state of the proceedings, the Ministry of Justice communicated that information to the applicant by a letter of 1 June 2007.
19. On 27 June 2007 the Ministry of Justice informed the applicant that he should lodge a new application.
20. On 24 July 2007 the applicant again requested an exequatur for the judgment of 2001 from the Bucharest County Court.
21. On 11 September 2007 the Bucharest County Court issued a new exequatur request based on the Hague Convention of 28 May 1970 on the International Validity of Criminal Judgments, ratified by Romania in 2000, and sent it to the Ministry of Justice.
22. On 16 October 2007 the Ministry of Justice informed the Bucharest County Court that Hungary had not ratified the said Convention.
23. The applicant renewed his request to the Romanian Ministry of Justice for information.
24. On 7 November 2007 the Bucharest County Court issued the exequatur request and sent it to the Romanian Ministry of Justice, which on 19 November 2007 sent it back to the County Court as incomplete. The Romanian Ministry of Justice forwarded the completed file to the Hungarian authorities on 10 December 2007.
25. Throughout the months of February and May 2008 the applicant submitted to the Romanian Ministry of Justice repeated requests for information as to the state of the proceedings.
26. On 12 June 2008 the Hungarian authorities informed the Romanian party that they had received the request and the accompanying documents; however the documents did not mention the addresses of the debtors in Hungary and for this reason they were not able to establish which authority was competent to deal with the request.
27. The Romanian Ministry of Justice provided this information on 16 June 2008 and 4 July 2008 respectively.
28. On 6 August 2008 the applicant requested the Bucharest County Court to attach the decision of 16 June 2003 (stating the updated amount of the debt) to the file in the exequatur proceedings.
29. On 9 September 2008 the Bucharest County Court asked the applicant to itemise his additional expenses.
30. On 29 September 2008 the Hungarian Ministry of Justice confirmed that the request for enforcement against F.O.D.K. had been forwarded to the competent court. However, they were not able to examine the enforcement request against K.J. as the file was not complete.
31. On 29 October 2008 the Romanian Ministry of Justice communicated to the Hungarian party the court decision of 16 June 2003 regarding the updated amount for damages, as well as the note on the additional expenses.
32. On 14 July 2009 the Hungarian party informed them that the Romanian court decision of 2001 had been declared enforceable against F.O.D.K. and a bailiff had been assigned.
33. On 31 July 2009 the Romanian Ministry of Justice was informed by its counterpart that with respect to the debtor P.O. the court dealing with the application required additional information from the Bucharest County Court. This information was forwarded by the Romanian Ministry of Justice on 27 January 2010. However, meanwhile, on 28 September 2009 the debtor P.O. died.
34. On 26 November 2009 the Hungarian Ministry of Justice informed the Romanian party that with respect to J.K. the firstinstance court had declared the decision enforceable on 4 June 2009. The appellate court had set aside the order on enforceability pending submission by the Romanian firstinstance court of a certificate required by Article 54 of European Union Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It appears that meanwhile the said document had been forwarded by the applicant on 13 November 2009.
35. The provisions of the relevant legislation read as follows:
“1. In providing the legal assistance, the judicial institutions of the two Contracting Parties notify each other through their central bodies, to the extent that this Treaty has not established otherwise.
2. Other institutions of the two Contracting Parties which have competence in matters of civil or family law communicate with each other or with the judicial institutions through the Ministry of Justice, to the extent that this Treaty has not established otherwise.”
“Contracting Parties shall provide mutual legal assistance in the performance of procedural tasks such as preparing, sending and delivery of documents, sending or delivery of material evidence, conducting local surveys and research, and questioning the parties, defendants, witnesses, experts and other persons performing searches and seizures.”
Article 6 – Content of the request for legal assistance
“An application for legal assistance shall contain the following data:
a) the name of the originating application;
b) the name of the institution addressed;
c) the case in which legal assistance is requested;
d) the full name, address and citizenship status of the parties, accused, indicted or convicted in criminal cases and, as far as possible, the place and date of birth of the accused or defendants, and the names of their parents;
d) the name and address of their representatives;
e) necessary data as requested, subject to criminal cases, and a description of the facts.”
“Both Contracting Parties shall recognise and approve the enforcement, within their territory: (...)
b) final judgments given in the other Contracting Party after entry into force of this Treaty, in criminal cases, regarding the obligation to compensate the victim for damage caused.”
“1. The granting of enforcement falls within the jurisdiction of the Contracting Party in whose territory the enforcement is to be executed.
2. An enforcement request is filed with the court of first instance which ruled in the case. This request will be forwarded to the court competent to grant enforcement. The request may be submitted directly to the latter court.
3. The application shall be accompanied by a certified translation into the language of the Contracting Party on whose territory the enforcement occurs.
4. The conditions of the enforcement request are determined by the law of the Contracting Party in whose territory the enforcement occurs.“
“1. To a declaration of enforcement must be attached:
a) the full text of the decision and proof that the decision has become final and enforceable, unless that is clear from the above;
b) the original documents, or certified copies of such documents, showing that any person concerned by a decision not to take part in the proceedings has been served with the summons at least once, on time and in due form;
c) certified translations of documents specified in paragraphs (a) and (b).”
“1. The enforcement approval procedure and the procedure for the enforcement are determined by the law of the Contracting Party in whose territory the enforcement occurs.”
“(...) 2) The provisions of this Law shall not affect bilateral or multilateral conventions to which Romania is or will become a party, but shall cover situations not covered by them.”
“(1) The Ministry of Justice and Civil Liberties is the central authority through which the Romanian judicial authorities communicate documents abroad.
(2) Upon receipt of documents from the Romanian judicial authority, after international regularity control, the Ministry of Justice and Civil Liberties will be able to send them, as appropriate, depending on the existence and according to the provisions of international conventions
a) by post to the named addressee;
b) to the competent central authority of the recipient State, or
c) to the Romanian diplomatic mission or consular authorities of the recipient State, through the Ministry of Foreign Affairs.”
“(...) 3) The application form shall be accompanied by the proof of communication, which will include the following:
a) the name of the requesting judicial authority;
b) the documents to be communicated;
c) the name and address of the recipient;
d) the name of the recipient judicial authority;
e) the name and status of the person who receives the documents (the relationship of the consignee to the addressee, for individuals,, or function, for legal entities);
f) the signature of the addressee (a stamp in the case of legal persons);
g) the documents being communicated;
h) reasons for non-communication (recipient’s refusal, address change etc.);
i) the agent’s signature and stamp relating to the requisite judicial procedure.”
“Unless the international Convention provides otherwise, the application and supporting documents will be translated into the language of the recipient State as follows:
a) the application for international legal assistance – by the Ministry of Justice and Civil Liberties;
b) Appendices – by the Romanian judicial authorities at the expense of the interested parties, except for cases in which parties are exempted from paying court fees;” (...)
“a) when communicated by post, directly to the recipient – the confirmation of receipt;
b) communication by the central competent authority of the recipient State or of the Romanian diplomatic mission or consulate in that State – the form stipulated in Article 6 (3).”
“Article 2 (1) In the case of judgments rendered in Romania and for which is sought recognition or enforceability in another EU member State, the power to issue, according to Article 54 of Regulation no. 44/2001, the certificate provided for in Annex V of the regulation lies with the first court.”
THE LAW
36. The applicant complained that lack of diligence on the part of the competent Romanian authorities in assisting him in the enforcement procedure of a judgment in his favour had infringed his rights guaranteed by Article 6 of the Convention and also his right to property as provided by Article 1 of Protocol No. 1 to the Convention. Insofar as relevant, these provisions read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
37. The Romanian Government considered the application incompatible ratione personae since the alleged violations were not imputable to the Romanian authorities because the responsibility for enforcing the court decision lay with the Hungarian authorities.
38. According to the Government, the Romanian minister had complied with all the obligations arising from the bilateral agreement by forwarding the exequatur request to the Hungarian authorities. They further argued that the applicant had not been obliged to file his request via the Romanian authorities, such a possibility being optional. The Government referred to the admissibility decision of 9 June 2005 in the case of Dumitrascu v. Romania and Turkey, where the Court had dismissed a similar complaint as incompatible ratione personae since the applicant had failed to file his request directly with the Turkish authorities in accordance with the applicable law.
39. The applicant contested any similarity to the case of Dumitrascu v. Romania and Turkey; in that case, at the request of the Turkish authorities, the applicant should have filed the exequatur request directly with the competent Turkish court, whereas in his own case the Romanian Minister of Justice had suggested he contact the competent Romanian court in order to file an exequatur request and had not considered the alternative of a direct application to the competent Hungarian court, which, according to the applicant, was in any event not feasible since the debtors’ addresses were unknown.
40. The Court observes that according to the provisions of Articles 3 and 4 of the bilateral agreement the role of the Romanian Minister of Justice is that of an intermediate authority whose role is to facilitate the enforcement process (see paragraph 35 (A) above). The Romanian Government cannot reasonably claim that the Hungarian authorities alone were responsible for the enforcement of the domestic court decision and that the role of the Romanian ministry was merely to forward the exequatur request to their counterparts. Further, the Court observes that Article 47 of the Treaty provides for the possibility of filing an exequatur request directly with the competent court. However, in the present case the Court notes that the addresses of the debtors, which determine the competent court, were not known; it was only in 2008 the Romanian authorities acknowledged the addresses (see paragraph 27 above). In addition, the Court observes that the Romanian Ministry of Justice informed the applicant that the procedure to be followed was through the Minister of Justice as an intermediate authority (see paragraph 8 above).
41. Therefore, in the light of the above, the Court concludes that the application is not incompatible ratione personae and that the Government’s objection should be dismissed.
42. The Court also notes that the application is not manifestly illfounded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Merits
43. The Government argued that the authorities had fulfilled their obligations arising from the bilateral Treaty by forwarding the exequatur request to the Hungarian authorities. They argued that the provisions of the Treaty did not impose any other obligations on the Romanian authorities and it there was no obligation under the Treaty to monitor the outcome of the applicant’s request. The fact that the applicant’s exequatur request had not been registered in the data base of the Hungarian authorities was not imputable to the Romanian authorities. All the documents of the Minister of Justice had been forwarded through the Post Office and there was no obligation for the central body receiving the documents to confirm that fact. With respect to the content of the exequatur request forwarded to the Hungarian authorities, the Government noted that the large number of requests by the applicant regarding the enclosures and the debtors’ addresses were not were not imputable to the fault of the Romanian authorities, the sole responsibility of the Minister of Justice being to forward the documents, notwithstanding the fact that had been extensive correspondence between them and their Hungarian counterparts concerning the state of the proceedings. Moreover, the Government considered that Law No. 189/2003 regarding international judiciary assistance in civil and commercial matters was not applicable in the present case since it did not specifically refer to the exequatur procedure; hence the provision which provided for confirmation of the transmission of documents did not apply to the exequatur procedure.
44. The applicant contested these arguments. He argued that the Romanian authorities had failed to fulfil their obligation under the bilateral Treaty and the above-mentioned Law No. 189/2003 to assist him in the execution of a domestic court decision. He considered that the Romanian authorities had not informed him very clearly about the procedure to follow in order to obtain the enforcement of the court decision in his favour and had not acted with diligence and celerity in order to ensure the effective exchange of information and correspondence between the intermediary institution and themselves.
45. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II). However, the right of “access to court” does not impose an obligation on a State to execute every judgment of a civil character without having regard to the particular circumstances of the case (Sanglier v. France, no. 50342/99, § 39, 27 May 2003).
46. The State has a positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without undue delay (Fuklev v. Ukraine, no. 71186/01, § 84, 7 June 2005). When the authorities are obliged to act in order to enforce a judgment and they fail to do so, their inactivity can engage the State’s responsibility on the ground of Article 6 § 1 of the Convention (Scollo v. Italy, 28 September 1995, § 44, Series A no. 315C). It is for each State to equip itself with legal instruments which are adequate and sufficient to ensure the fulfilment of positive obligations imposed upon the State (Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003). The Court’s task is to examine whether the measures applied by the Romanian authorities in the present case were adequate and sufficient. In cases such as the present one, which necessitate action by a debtor who is a private person, the State, as the agent of public authority, has to act diligently in order to assist a creditor in the execution of a judgment (Fociac v. Romania, no. 2577/02, § 70, 3 February 2005).
47. The Court notes that in the present case the applicant obtained a final court decision on 26 March 2001 ordering private individuals to pay him damages for the murder of his father. On 26 July 2001 the applicant started the enforcement procedure before the Romanian authorities. However, it was only in the course of 2009 that the Romanian authorities completed the file submitted to the Hungarian authorities in the exequatur procedure (see paragraphs 32 -34 above).
48. The Court further notes that the enforcement proceedings against three of the debtors are still pending before the Hungarian authorities. Having regard to the fact that, in accordance with the provisions of Article 49 of the bilateral Treaty (see paragraph 35 (A)), it is the law of the State of the debtor which governs the enforcement procedure, the Court will only examine whether the Romanian authorities acted diligently in order to assist the applicant in the execution of the judgment of 2001 as regards the obligations under the aforesaid Treaty and the pertinent laws in force.
49. The Court notes repeated delays in the transmission of correspondence imputable to the Romanian authorities, as a result of which the proceedings lasted at least seven and half years. It was only after repeated requests from the applicant that the Romanian Government inquired about the fate of the exequatur request and were thus informed that it had never reached the Hungarian authorities (see paragraphs 1417 above).
50. The Court further notes that, notwithstanding the detailed provisions of the Treaty and Law no. 189/2003 as to the procedure, form and content of such a request (see relevant domestic and international law, paragraph 35 above) there were repeated shortcomings which led to delays in the transmission of documents between the domestic authorities and to the Hungarian authorities (see paragraphs 11, 21, 22, 24, 26, 28, 30, 33 and 34 above).
51. The Court has dealt with cases raising issues similar to the ones in the present case and found violations of Article 6 § 1 of the Convention (see, among others, Dinu v. Romania and France, no. 6152/02, 4 November 2008; Orha v. Romania, no. 1486/02, 12 October 2006; and Tacea v. Romania, no. 746/02, 29 September 2005).
52. In the light of the above, the Court considers that the respondent Government has not submitted any fact or argument leading to a different conclusion in the present case.
53. The foregoing considerations are sufficient to enable the Court to conclude that in the present case the Romanian State, through its specialised bodies, did not engage all the necessary efforts to assist the applicant in the expeditious enforcement of a court decision in his favour.
There has accordingly been a violation of Article 6 § 1 of the Convention.
54. The applicant complained that the non-enforcement of the impugned judgment breached his right to property as provided by Article 1 of Protocol No. 1.
However, in view of its previous findings (see paragraphs 4353 above), the Court considers that it is not necessary to examine this complaint separately.
55. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
56. The applicant claimed 2,098.80 Euros (EUR) in respect of pecuniary damage, representing the value of the debt, and EUR 162.50 representing trial fees, taking account of the update of the damage amount up to 2003. He also claimed EUR 8,000 in respect of nonpecuniary damage.
57. The Court reiterates that, where it has found a breach of the Convention in a judgment, the respondent State is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI).
58. As regards pecuniary damage, the Court notes that the judgment in favour of the applicant has not been enforced. However, considering the particular circumstances of the case notably that the enforcement proceedings are still pending before the Hungarian authorities and the fact that the present application is directed only against Romania, the Court will not make an award under this head.
59. The Court further considers that the applicant has suffered nonpecuniary damage on account of the frustration caused by the length of the enforcement proceedings and the fact that the Romanian authorities have not diligently assisted him in his efforts to enforce the decision of 26 March 2001, and that this damage is not sufficiently compensated by the finding of a violation.
60. Under these circumstances, having regard to all the information at its disposal and making an assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 4,800 in respect of non-pecuniary damage.
61. The applicant also claimed EUR 650 for the costs and expenses incurred in the proceedings in the domestic courts and before this Court, representing postal expenses, translations, experts’ taxes, stamp duties and travel expenses. He submitted invoices.
62. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the information in its possession and to the above criteria, the Court considers it reasonable to award the sum of EUR 650 covering the costs under all heads.
63. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96355
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DZHURAYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-4;Violation of Art. 5-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
TEXT: 6. The applicant was born in 1966 and lives in Tashkent, Uzbekistan. He is currently residing in Moscow.
7. In January 2005, when the applicant was living in Uzbekistan, a district court in Tashkent convicted him of being a member of the Islamic religious organisation Tablighi Dzhamaat, prohibited in Uzbekistan. The court ordered him to pay a fine in an amount equal to sixty times the minimum monthly wage.
8. The applicant paid the fine and continued to reside in Uzbekistan. However, according to him, he felt constant pressure from the lawenforcement agencies, which required him to report on all his actions and movements and, in case of delay or failure on his part, threatened to arrest his elder son. So as not to put his family in danger, on 6 December 2005 the applicant left Uzbekistan for Moscow.
9. In the meantime the Supreme Court of Uzbekistan quashed the decision of January 2005 on the ground that the sentence was too mild and remitted the case for fresh examination.
10. On 9 January 2006 the Sobir Rakhimovskiy District Court of Tashkent ordered the applicant to be remanded in custody. On that basis a cross-border search warrant for the applicant was issued.
11. On 26 January 2007 the applicant was arrested in Moscow on the basis of the cross-border search warrant.
12. On an unspecified date the Tashkent Department of the Interior sent the Meshchanskiy District Department of the Interior of Moscow a request to keep the applicant in custody and enclosed a copy of the Sobir Rakhimovskiy District Court's decision of 9 January 2006.
13. On 29 January 2007 the Meshchanskiy Inter-District Prosecutor's Office in Moscow issued a decision on application of a preventive measure and ordered that the applicant be placed in custody on the basis of the Uzbek court's decision of 9 January 2006. Article 61 of the Minsk Convention was cited as a legal source for application of the preventive measure. The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not specified. It was not mentioned whether the decision could be appealed against. On the same day the applicant was placed in remand prison SIZO-77/4, Moscow.
14. On 12 February 2007 the applicant applied to the Russian Prosecutor General's Office. He asked it to refuse the request of the Uzbek Prosecutor General's Office for his extradition and to release him from custody since he was charged with a crime that did not constitute a criminal offence under Russian law.
15. On 28 February 2007 the Uzbek Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant.
16. On 23 March 2007 the Russian Prosecutor General's Office informed the applicant that no final decision had been taken in respect of the extradition and there were therefore no grounds to change the preventive measure applied in his case.
17. On 29 June 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a new decision to remand the applicant in custody pursuant to Article 466 § 2 of the CCP and Article 60 of the Minsk Convention. The decision indicated that the applicant should remain in custody until the Prosecutor General's Office decided on his extradition; the term of the detention was not specified. It was not mentioned whether the decision could be appealed against. Neither the applicant nor his counsel was provided with a copy of the decision. The applicant was not notified of it until 27 July 2007, in the remand prison, as confirmed by his signature on a copy of the decision.
18. On 23 August 2007 the Russian Prosecutor General's Office dismissed the request of the Uzbek Prosecutor General's Office for the applicant's extradition because the acts with which the applicant had been charged did not constitute a crime under Russian law.
19. On 28 August 2007 the Meshchanskiy Inter-District Prosecutor's Office received notification from the Russian Prosecutor General's Office that the Uzbek authorities' request for the applicant's extradition had been dismissed.
20. On 30 August 2007 the Meshchanskiy Inter-District Prosecutor's Office issued a decision authorising the applicant's release. The applicant was released from the remand prison.
21. On 30 August 2007, immediately after his release, the applicant was conveyed by policemen to the Meshchanskiy District Court of Moscow. At the hearing held on the same date, the court found the applicant guilty of an administrative offence: breach by a foreigner of the rules on entry and stay in the territory of the Russian Federation. The court imposed a fine of 5,000 Russian roubles on the applicant and ordered his expulsion. The court also ordered that pending his expulsion the applicant should be held in the centre for detention of foreign nationals of the Moscow Main Directorate of Internal Affairs. The applicant appealed.
22. On 4 September 2007 the Court indicated to the respondent Government that the applicant should not be expelled to Uzbekistan until further notice.
23. On 11 September 2007 the Moscow City Court quashed the decision of the Meshchanskiy District Court and the applicant was released.
24. On 28 September 2007 policemen stopped the applicant in the Moscow underground in order to check his papers. It appeared that the applicant was still on the cross-border wanted list, and he was taken to a police station for a decision concerning his arrest. After his counsel arrived and clarified the applicant's situation, he was released. The applicant then applied to the Office of the Prosecutor General to be removed from the list.
25. On 1 October 2007 the Russian Prosecutor General's Office ordered the Ministry of the Interior to remove the applicant's name from the crossborder wanted list owing to the refusal to extradite him.
26. On 2 February 2007 the applicant applied to the Moscow Department of the Federal Migration Service for asylum.
27. On 16 March 2007 officials of the Moscow Department of the Federal Migration Service questioned the applicant in the presence of his counsel.
28. On 26 March 2007 the Moscow Department of the Federal Migration Service dismissed the applicant's application on the ground that he did not meet the requirements provided for in domestic law for granting asylum. The applicant lodged a complaint with a court.
29. On 23 August 2007 the Zamoskvoretskiy District Court of Moscow dismissed the applicant's complaint. The applicant appealed.
30. On 18 October 2007 the Moscow City Court dismissed the appeal in the final instance.
31. On 13 November 2007 the applicant was recognised as a mandate refugee by the United Nations High Commissioner for Refugees.
32. Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order. The term during which a person may be detained prior to obtaining such an order cannot exceed forty-eight hours (Article 22 § 2).
33. The term “court” is defined by the Code of Criminal Procedure (CCP) of 2002 as “any court of general jurisdiction which examines a criminal case on the merits and delivers decisions provided for by this Code” (Article 5 § 48). The term “judge” is defined by the CCP as “an official empowered to administer justice” (Article 5 § 54).
34. A district court has the power to examine all criminal cases except for those falling within the respective jurisdictions of a justice of the peace, a regional court or the Supreme Court of Russia (Article 31 § 2).
35. Chapter 13 of the CCP governs the application of preventive measures. Placement in custody is a preventive measure applied on the basis of a court decision to a person suspected of or charged with a crime punishable with at least two years' imprisonment where it is impossible to apply a more lenient preventive measure (Article 108 § 1). A request for placement in custody should be examined by a judge of a district court or a military court of a corresponding level (Article 108 § 4). A judge's decision on placement in custody may be challenged before an appeal court within three days (Article 108 § 11). The period of detention pending investigation of a crime cannot exceed two months (Article 109 § 1) but may be extended up to six months by a judge of a district court or a military court of a corresponding level (Article 109 § 2). Further extensions may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3).
36. Chapter 16 of the CCP lays down the procedure by which acts or decisions of a court or public official involved in criminal proceedings may be challenged. Acts or omissions of a police officer in charge of the inquiry, an investigator, a prosecutor or a court may be challenged by “parties to criminal proceedings” or by “other persons in so far as the acts and decisions [in question] touch upon those persons' interests” (Article 123). Those acts or omissions may be challenged before a prosecutor (Article 124). Decisions taken by police or prosecution investigators or prosecutors not to initiate criminal proceedings, or to discontinue them, or any other decision or inaction capable of impinging upon the rights of “parties to criminal proceedings” or of “hindering an individual's access to court” may be subject to judicial review (Article 125).
37. Extradition may be denied if the act that gave grounds for the extradition request does not constitute a crime under the Russian Criminal Code (Article 464 § 2 (1)).
38. Upon receipt of a request for extradition accompanied by an arrest warrant issued by a foreign judicial body, a prosecutor may place the person whose extradition is being sought under house arrest or in custodial detention without prior approval of his or her decision by a court of the Russian Federation (Article 466 § 2).
39. When performing actions requested under the Minsk Convention, a requested official body applies its country's domestic laws (Article 8 § 1).
40. Upon receipt of a request for extradition the requested country should immediately take measures to search for and arrest the person whose extradition is sought, except in cases where no extradition is possible (Article 60).
41. The person whose extradition is sought may be arrested before receipt of a request for extradition, if there is a related petition. The petition must contain a reference to a detention order and indicate that a request for extradition will follow (Article 61 § 1). If the person is arrested or placed in detention before receipt of the extradition request, the requesting country must be informed immediately (Article 61 § 3).
42. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its constant caselaw that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings.
43. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms of Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without respecting the procedure established in the CCP, or in excess of the time-limits fixed therein.
44. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with a view to extradition.
45. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits for holding a person in custody with a view to extradition. That was a matter for the courts of general jurisdiction.
46. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-67340
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BAKAY AND OTHERS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Zoryana Bortnovska
TEXT: 5. The first and fifth applicants were born in 1960. The second applicant was born in 1959. The third applicant was born in 1969. The fourth applicant was born in 1945. The sixth applicant was born in 1965. The applicants are nationals of Ukraine and reside in Beryslav, the Kherson Region.
6. In April 1998 the applicants initiated proceedings in the Beryslav City Court (the “Beryslav Court”) against the Department of Education of the Beryslav Municipal Council (the “Department”), seeking to recover an additional salary payment allegedly due to them for their time-in-service.
7. On 13 May 1998 the Beryslav Court allowed the applicants' claims and ordered the Department to pay the applicants the additional salary (time-in-service bonuses). In particular, it ordered that the first applicant be paid UAH 570.85 in compensation, the second – UAH 367.52, the third – UAH 204.3, the fourth – UAH 863.4, the fifth – UAH 561.4, and the sixth applicant – UAH 292.3.
8. On 18 May 1998 the Beryslav City Bailiffs' service (the “Bailiffs”) initiated enforcement proceedings for the judgment of 13 May 1998.
9. On 2 August 1999 the Beryslav Court suspended the execution of the judgment for three months due to the lack of funds in the budget of the Department.
10. On 7 March 2001 the Bailiffs informed the applicants that the Beryslav Court had suspended the execution of the judgment of 13 May 1998. On 13 August 2002 the Bailiffs informed the applicants that the judgment of 13 May 1998 would be executed when the State had provided the necessary budgetary funding. The judgment remained unenforced due to the Department's lack of funds.
11. On 31 July 2003 the amounts due to them pursuant to the judgment of 13 May 1998 were transferred to the applicants. They received the following amounts (the initial sums awarded by that judgment having been subjected to taxation): the first applicant – UAH 401.2, the second applicant – UAH 276.35, the third applicant – UAH 173.18, the fourth applicant – UAH 640.46, the fifth applicant – UAH 419.94, and the sixth applicant – UAH 242.98.
12. The relevant domestic law is set out in the judgment of 27 July 2004 in the case of Romashov v. Ukraine (no. 67534/01).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87114
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ISMETA BACIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1958 and lives in Zagreb.
5. On an unspecified date the applicant instituted civil proceedings before the Sveti Ivan Zelina Municipal Court (Općinski sud u Svetom Ivanu Zelini) against her former employer, Zelina Agricultural Enterprise (Poljoprivredni kombinat Zelina), challenging her dismissal from work and seeking payment of her salary for the period of her unemployment. The first-instance judgment of 5 December 2000, granting the applicant's claims, awarded the applicant 42,161.47 Croatian kunas (HRK) together with statutory default interest.
The judgment was upheld by the Velika Gorica County Court (Županijski sud u Velikoj Gorici) on 15 January 2003.
6. Meanwhile, in a decision of 17 June 2002 the Zagreb Commercial Court (Trgovački sud u Zagrebu) opened bankruptcy proceedings against the applicant's former employer and invited all creditors to submit their claims to the bankruptcy administrator, appointed to the case by the Zagreb commercial Court, within thirty days. This was published in the Official Gazette no. 81/02 of 9 July 2002.
7. Examination hearings before the Zagreb Commercial Court were held on 24 September 2002 and 3 March 2003.
8. On 10 March 2003 the applicant lodged her claim, recognised by a final judgment, with the Zagreb Commercial Court before which the bankruptcy proceedings against her former employer had meanwhile been opened. The applicant argued that, since the civil proceedings she had instituted against her former employer before the ordinary courts (that is to say the competent municipal and county courts) had been pending, she considered that her claim had been adequately secured. In this connection she pointed to the provision obliging the regular courts to discontinue civil proceedings concerning any debtor against whom bankruptcy proceedings had been opened in the meantime.
9. On 16 April 2003 the Zagreb Commercial Court declared the applicant's request inadmissible as lodged out of time. It found that the examination hearing (ispitno ročište) had been held on 24 September 2002 and that after the expiry of three months from that date no further claims could be lodged in the bankruptcy proceedings. The relevant part of the decision reads as follows:
“In the bankruptcy proceedings against Zelina Agricultural Enterprise ... examination hearing was held and concluded on 24 September 2002.
The above-mentioned creditor submitted her claim on 15 April 2003, outside the three-month period following the first examination hearing.
Since the claim was submitted too late, that is to say after the period of three months following the first examination hearing, it is to be dismissed pursuant to section 176 paragraph 4 of the Bankruptcy Act.”
10. In her appeal lodged on 30 April 2004 the applicant stressed, inter alia, that the bankruptcy administrator had failed to comply with her duty under section 173 paragraph 2 of the Bankruptcy Act to include the applicant's claim in the list of claims of all the current and former employees of the debtor company and to submit it for her signature.
11. On 8 July 2003 the High Commercial Court (Visoki trgovački sud Republike Hrvatske) upheld the first-instance decision. In so far as relevant it held as follows:
“Under section 54 paragraph 3 of the Bankruptcy Act, in a decision on opening of bankruptcy proceedings a bankruptcy panel is obliged to invite all creditors to submit their claims to the administrator within a fixed time-limit, in accordance with the provisions of the Bankruptcy Act. The time-limit for submission of claims has to be fixed to no less than fifteen days and no longer than one month.
Claims submitted after the fixed time-limit may be examined at an examination hearing on the initiative of the administrator.
Claims submitted after the fixed time-limit which have not been examined at the examination hearing, as well as claims submitted within three months of the first examination hearing but not after the call for the final hearing has been published may be examined at one or more additional examination hearings which are to be scheduled by the administrator pursuant to a proposal made by the creditors who have failed to submit their claims on time, and on condition that they pay in advance and within fifteen days the costs of such a hearing.
Claims submitted after the expiry of the time-limit fixed in section 176 paragraph 2 of the Bankruptcy Act are to be declared inadmissible (argument under section 176 paragraphs 1, 2 and 4 of the Bankruptcy Act).
The first-instance court acted exactly as described above, in compliance with the Bankruptcy Act, when it declared inadmissible as being lodged out of time the claim submitted by the creditor Ismeta Bačić from Zagreb. The appellant does not dispute that the examination hearing in the bankruptcy proceedings against debtor Zelina Agricultural Enterprise based in Sveti Ivan Zelina was held and concluded on 29 September 2002. The conditions for submitting creditors' claims then ceased to exist and it is therefore of no significance whether the appellant submitted her claim on 10 March or 15 April 2003. In any event it was submitted out of time.
The only decision that a court could have adopted in such circumstances is the one pursuant to section 176 paragraph 4 of the Bankruptcy Act that the claim had to be declared inadmissible.
Therefore, there has been no wrongful application of the Bankruptcy Act provisions to the appellant's detriment and the impugned decision ought to be upheld in accordance with section 380 paragraph 1(2) of the Civil Procedure Act in conjunction with section 6 of the Bankruptcy Act.”
12. In her subsequent constitutional complaint the applicant argued that the administrator had failed to comply with her duty to inform her of the bankruptcy proceedings and allow her to lodge her claim against her former employer and had thus prevented her from securing the payment of her claim. On 23 March 2006 the Constitutional Court dismissed the applicant's complaint as being ill-founded. The relevant part of its decision reads as follows:
“The impugned judgment and the case file show that [the first] examination hearing in the bankruptcy proceedings against Zelina Agriculture Enterprise based in Sveti Ivan Zelina was held and concluded on 24 September 2002 and that the applicant as a creditor submitted her claim after the first examination hearing, on 15 April 2003.
Since the applicant submitted her claim after the time-limit fixed in Section 176 paragraph 2 of the Bankruptcy Act, the first-instance court declared her claim inadmissible as being lodged out of time pursuant to section 176 paragraph 4 of the Bankruptcy Act.
The High Commercial Court, in its decision on the applicant's appeal, stressed that the appeal was unfounded and that the Zagreb Commercial Court had correctly applied substantial law when it had declared the applicant's claim inadmissible as being lodged out of time.”
13. The Bankruptcy Act (Stečajni zakon, Official Gazette nos. 44/96, 29/99 and 129/00, as applicable at the relevant time) in the relevant parts provided as follows:
“[After the bankruptcy proceedings have been opened] the bankruptcy administrator [assigned to the case] shall represent the debtor.”
“In a decision on opening of the bankruptcy proceedings creditors shall be invited to submit their claims to the administrator, within a fixed time-limit. The time limit shall be fixed to no less than fifteen15 days and no longer than a month.”
“All claims [against a debtor in bankruptcy proceedings] become payable when the bankruptcy proceedings are opened.”
“The administrator [assigned to the case] shall intervene on behalf of the debtor in all pending civil proceedings concerning disputes about the debtor's assets.”
“Bankruptcy creditors shall enforce their claims against the debtor in bankruptcy proceedings only.”
“(1) Bankruptcy creditors shall submit two copies of their claims to the bankruptcy administrator together with supporting documents confirming the existence of their claims.
(2) The bankruptcy administrator shall make a list of all claims which have become due before the opening of the bankruptcy proceedings of the present and former debtor's employees and submit the list to then be signed and the claims approved by the employees concerned ...
...”
“(1) At the examination hearing the claims submitted shall be examined according to the amounts claimed and their rank.
(2) The administrator shall expressly state whether he accepts or contests each of the claims submitted.
...”
“(1) Claims submitted after the fixed time-limit may be examined at a request of the bankruptcy administrator.
(2) Claims submitted after the fixed time-limit which have not been examined at the examination hearing, as well as the claims submitted within three3 months of the first examination hearing, but not after the call for the final hearing has been published, may be examined at one or more additional examination hearings, which shall be scheduled by the bankruptcy administrator pursuant to a proposal made by the creditors who have failed to submit their claims on time, and under the condition that they pay y advance of the costs of such a hearing in advance and within 15 days.
...
(4) Claims submitted after the expiry of the above time-limits shall be declared inadmissible.
...”
14. Section 212(5) of the Civil Procedure Act (Zakon o parničnom postupku) obliges a civil court to stay the proceedings pending before it where the insolvency bankruptcy proceedings have been instituted against any of the parties to the civil proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85129
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF KAKAMOUKAS AND OTHERS v. GREECE
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Christos Rozakis;David Thór Björgvinsson;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Lech Garlicki;Loukis Loucaides;Margarita Tsatsa-Nikolovska;Mark Villiger;Mindia Ugrekhelidze;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Riza Türmen;Snejana Botoucharova;Vladimiro Zagrebelsky
TEXT: 12. On 7 April 1925 the Greek State expropriated an area of land measuring 534,892 m², located on the outskirts of the town of Salonika (Mikra district), for the purpose of building an airport. This area, which now falls within the jurisdiction of Kalamaria Town Council, included plots of land which belonged to the applicants' ascendants.
13. The amount of expropriation allowance was set by judgments nos. 1321/1926 and 703/1929 of the Salonika Court of First Instance, no. 9/1930 of the Salonika Appeal Court and no. 116/1931 of the Court of Cassation.
14. By judgment no. 293/1936 of the President of the Salonika Court of First Instance, the applicants' ascendants were recognised as being entitled to the compensation in question. However, the State refused to pay it. The airport was ultimately constructed elsewhere.
15. On 22 June 1967, by a joint decision of the Minister of Finance and the Minister of Public Works (no. E.17963/8019), the State went ahead with expropriation of the above-mentioned area, which included the disputed plots of land, with a view to building housing for workers. As the decision did not fulfil a public-interest aim, it was revoked on 6 July 1972.
16. On 29 June 1972 a royal decree designated the land for the construction of a sports centre.
17. On 14 May 1987 the Salonika prefect modified the development plan (ρυμοτομικό σχέδιο) for the area in which the applicants' plots of land were located, which he designated as a “green area” and “sports and leisure zone”. This decision was confirmed by a decision of the Minister of the Environment and Public Works dated 31 July 1987 and by a presidential decree of 22 August 1988.
18. On 28 June 1994 the applicants or their ascendants applied to the Salonika Prefecture requesting that the development plan in force be amended to have the encumbrance affecting their land removed. The prefecture did not reply.
19. On 20 November 1994 the applicants or their ascendants applied to the Supreme Administrative Court, seeking to have set aside the authorities' implicit refusal to remove the encumbrance affecting their land.
20. On 11 January 1996 the Kalamaria Town Council filed its observations on the case. A hearing was held on 26 March 1997.
21. On 20 October 1997 the Supreme Administrative Court granted the applicants' request. In particular, it found that, having failed for a long time to proceed with the expropriation of the land in question in furtherance of the project provided for in the development plan, the authorities were duty bound to lift the encumbrance on the disputed properties. The Supreme Administrative Court sent the case back to the authorities, asking them to take the necessary measures to make available the applicants' land (judgments nos. 4445/1997, 4447/1997 and 4448/1997). Those judgments were finalised and certified as authentic on 25 February 1998.
22. The applicants estimate that the current value of the land in issue is about 24,000,000 euros (EUR).
23. On 30 September 1998 Kalamaria Town Council lodged a third-party appeal (τριατανακοπή) against the above-mentioned judgments by the Supreme Administrative Court with regard to the applicants nos. 19, 12-19, 23, 26-31, 33-40, 42-44, 46-49 and 58, who had applied to the Supreme Administrative Court in the proceedings which resulted in judgments nos. 4445, 4447 and 4448/1997. This form of appeal, open to persons who have been neither parties to nor represented in proceedings, enables them to contest a decision which adversely affects them. Where the third-party appeal – which does not have suspensive effect – is found to be valid, the impugned judgments are set aside retrospectively and the application to the administrative court is re-examined. In the instant case, as the third-party appeal did not have suspensive effect, judgments nos. 4445/1997, 4447/1997 and 4448/1997 thus remained valid.
24. On 28 November 2001 the Supreme Administrative Court declared the third-party appeal inadmissible (judgments nos. 4148/2001, 4149/2001 and 4150/2001). It held that Kalamaria Town Council could not rely on this form of appeal since it had already had an opportunity to submit its observations on the case. The above-mentioned judgments were finalised and certified as authentic on 17 April 2002.
25. On 13 May 1999 the Minister for the Environment and Public Works modified the urban development plan of Kalamaria municipality in order to designate the land in question as the site for a sports and leisure centre (decision no. 12122/2761).
26. On 9 September 1999 the applicants or their ascendants applied to the Supreme Administrative Court seeking to have the above-mentioned decision set aside. The sole purpose of this application was to challenge the lawfulness of the impugned administrative decision.
27. On 11 September 2002 they submitted various documents in support of their application, including the title deeds to the properties. The hearing, initially scheduled for 8 November 2000, was postponed several times. It was finally held on 29 October 2003. It appears from the case file that the Supreme Administrative Court has not yet delivered its judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58403
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF DEMIRTEPE v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. On 5 April 1993 the applicant, who was then in Villeneuve-lès-Maguelonne Prison serving an eighteen-year sentence for murder imposed by the Assize Court of the Hérault département, lodged a criminal complaint with the senior investigating judge at the Montpellier tribunal de grande instance against the prison mail officer for breach of the secrecy of correspondence. He also lodged a concomitant application for leave to join the criminal proceedings as a civil party.
7. The applicant alleged in his complaint that since being imprisoned in Villeneuve-lès-Maguelonne Prison he had received a number of letters from his lawyers, the judiciary, the prison social services and the prison chaplain that had already been opened, in breach of Articles D. 69, D. 262, D. 438 and D. 469 of the Code of Criminal Procedure and Article 8 of the Convention.
8. In an order of 24 October 1994 the investigating judge of the Montpellier tribunal de grande instance ruled that there was no ground for bringing criminal proceedings for breach of the secrecy of correspondence because there was “insufficient evidence that anyone had committed the offence of breaching the secrecy of correspondence referred to in the complaint”.
9. The applicant appealed against that decision to the Indictment Division of the Montpellier Court of Appeal. In a judgment of 6 April 1995 the Court of Appeal upheld the decision and dismissed the appeal. As to whether the actus reus of the offence had been made out, the Court of Appeal held that it had for the following reasons:
“It should be pointed out in the instant case that while there is general provision for interference by the prison authorities with prisoners’ mail, such interference is formally prohibited by Articles D. 69, D. 262, D. 438 and D. 469 of the Code of Criminal Procedure in respect of letters to prisoners from their defence lawyers, from administrative and judicial authorities, from prison chaplains and from social workers belonging to one of the departments of the Ministry of Justice.
The evidence shows that letters falling into the categories referred to above, addressed to Demirtepe, were opened by the prison staff and that the administrative departments of Villeneuve-lès-Maguelonne Prison admitted opening them since the staff employed in the mail department mentioned opening letters in error owing to the volume of mail received and the use of an electric machine. Furthermore, among the documents filed in evidence were a number of envelopes which had clearly been marked so as not to be censored but had evidently been opened by a machine. Lastly, there is also a letter from the deputy governor of the prison accompanying a letter which had, according to him, been opened in error.
...”
10. The Court of Appeal found, however, that although the actus reus of the offence complained of by the applicant had been established, that is to say that letters had been opened, the prison mail department could not be held collectively liable, nor could the officer in charge of it be held individually liable. It upheld the decision that no prosecution should be brought.
11. The applicant lodged an appeal on points of law against that judgment. The Court of Cassation dismissed his appeal in a judgment of 14 May 1996, which was served on him on 20 August 1996.
12. The relevant Articles of the Code of Criminal Procedure provide:
“Sealed letters sent from remand prisoners to their defence lawyers and from defence lawyers to remand prisoners are not subject to the censorship referred to in Article D. 416 if it can be unequivocally ascertained that such letters are genuinely intended for the defence lawyer or have been sent by him.”
“All prisoners shall be entitled to submit an application or a complaint to the governor of the prison, who shall grant him a hearing if the ground on which he relies is sufficient.
Any prisoner may request a hearing by the judges and officials responsible for inspecting or visiting the prison, without any member of the prison staff being present.”
“A prisoner or party adversely affected by an administrative decision can apply for it to be referred to the regional director if the decision was made by a prison governor, or to the Minister if it was made by a regional director.
However, any decision taken pursuant to powers conferred by law, regulations or a ministerial circular shall be immediately enforceable notwithstanding recourse to the remedy provided for above.”
“Prisoners may at any time send letters to the French administrative or judicial authorities, a list of which is drawn up by the Minister of Justice.
Such letters may be sent sealed and are accordingly not subject to any censorship; they must be dispatched without delay.
Any prisoner who takes advantage of the above provision to make insulting remarks, threats or defamatory allegations or to repeat unjustified complaints which have already been dismissed shall be liable to a disciplinary penalty, without prejudice to any criminal penalties.”
“Letters to and from prisoners must not be encoded and must not contain any coded sign or character.
They shall be stopped if they contain specific threats to the security of persons or of prisons.”
“… all prisoners’ incoming and outgoing mail may be read for the purposes of censorship.
Letters to and from remand prisoners shall also be sent to the judge in charge of the investigation as and when that judge requires.
Letters which do not comply with the legal requirements may be stopped.”
“Prisoners may always correspond freely in sealed envelopes with the prison chaplain. That right cannot be withdrawn as part of any disciplinary penalty.”
“Correspondence between prisoners and social workers belonging to one of the departments of the Ministry of Justice may be undertaken freely in sealed envelopes.”
13. Article 29, third paragraph, of Circular no. AP 86.29.G1 of 19 December 1986 provides:
“If there is doubt as to the source of a sealed letter, it may be opened in the presence of the prisoner if he consents, or, failing that, in the presence of the Chairman of the Bar or of his representative.”
VIOLATED_ARTICLES: 8


ITEMID: 001-103071
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KAMBUROV v. BULGARIA (II)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Dimitar Kostadinov Kamburov, is a Bulgarian national who was born in 1926 and lives in Plovdiv. He was represented before the Court by Ms E. Nedeva, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms S. Atanasova, of the Ministry of Justice.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. In 194647, shortly after the establishment in Bulgaria of the communist regime, the applicant was administratively detained in a labour camp for a period of six months. The order for his detention (no. 13561/46), issued by the Director of the Administrative Department of the People’s Militia on an unknown date in November or December 1946, read as follows:
“Bearing in mind that the regional head of the People’s Militia in Plovdiv has reported, in letter no. 5746, that [the applicant], who is twenty years old and lives in Plovdiv, rapes women by threatening them with murder [and] talks openly against the Fatherland Front, I order that he be placed in a labour camp ... for a period of six months.”
4. On 8 December 1946 the order was sent to the Plovdiv militia for enforcement. The applicant was arrested on 14 December 1946 and sent to a labour camp several days after that. He was released from there on 22 June 1947.
5. In 1991, after the communist regime had come to an end, the legislature enacted the Political and Civic Rehabilitation of Persecuted Individuals Act (“the 1991 Act”), granting certain rights to compensation to individuals who had been subjected to repression during the regime (see paragraph 20 below).
6. As the applicant wished to avail himself of the opportunities created by the Act, he asked the Ministry of the Interior to issue him a certificate concerning his detention. He intended to use it as proof that he had been subjected to repression within the meaning of the Act and was thus entitled to compensation. On 21 February 1992 the Ministry issued a certificate which said that the applicant had been detained “for criminal reasons” on the basis of “order no. 13561/46”. On an objection by the applicant, the competent services of the Ministry carried out a second check. In a letter of 21 December 1992 they informed the applicant that he had been detained “without a conviction or sentence, on the basis of order no. 13561/46 of the Ministry of the Interior, for ‘the rape of a girl’”, and that the Ministry did not have any other information on file concerning the repression against him. The letter further advised the applicant that, if unsatisfied by that reply, he could clear his name through the courts.
7. In 1993 the applicant brought proceedings against the Ministry and the Plovdiv Regional Directorate of the Interior, seeking a declaration that his detention in 194647 had been repression due to his origin and political views. On 19 July 1993 the Plovdiv District Court (Пловдивски районен съд) allowed his claim and found it established that he had been detained because of his origin and political views. On an appeal by the Plovdiv Regional Directorate of the Interior, on 13 October 1993 the Plovdiv Regional Court (Пловдивски окръжен съд) set that decision aside, holding that the applicant was trying to establish a legally relevant fact, which, according to Article 97 § 3 of the 1952 Code of Civil Procedure (see paragraph 38 below), was possible only if specifically provided by law, which was not the case. The applicant could instead assert his rights under section 4 of the 1991 Act (see paragraph 23 below). The applicant’s ensuing appeal was rejected by the Supreme Court (Върховен съд) on 14 July 1995 (опр. № 1419 от 14 юли 1995 г. по д. № 1614/1994 г., ВС, ІV г. о.). The court noted that neither the 1991 Act nor any other statute made provision for the judicial establishment of the fact of repression, as required under Article 97 § 3 of the 1952 Code. That was indeed a legally relevant fact, but it could be established in special administrative proceedings.
8. On 21 July 1997 the applicant again asked the Ministry of the Interior to issue him a certificate concerning his detention. In a letter of 9 September 1997 the Ministry’s archive department informed him that, according to their records, the reasons why the authorities had ordered his detention in 194647 were that he had been “rap[ing] women by threatening them with murder [and] talk[ing] openly against the Fatherland Front”.
9. In 2000 the applicant once again brought proceedings against the Ministry of the Interior and the Plovdiv Regional Directorate of the Interior, seeking declarations (a) that the order for his detention was incorrect inasmuch as it relied on criminal grounds and (b) that the official of the Ministry who had drawn up the order had recorded a false statement of fact in order to provide justification for the detention. In a bench ruling of 5 April 2000 the Plovdiv District Court discontinued the examination of the second claim, holding that a ruling that an official of the Ministry had made a false document would not protect the applicant’s right to good reputation and honour. The first claim, which aimed to establish that the order had been incorrect, also made it superfluous to make findings in respect of the individual who had drawn it up. The applicant did not appeal against that ruling.
10. On 16 October 2000 the Plovdiv District Court discontinued the proceedings, finding that the applicant’s first claim was inadmissible as well. It held, by reference to the established caselaw of the Supreme Court under Article 97 § 3 of the 1952 Code of Civil Procedure (see paragraph 38 below), that the existence of a concrete legal interest in pursuing the claim was a mandatory prerequisite for its examination. Therefore, the applicant had to show that a judicial declaration that the detention order was incorrect would have an impact on his relations with the defendant and that there was no other procedure to establish such incorrectness. The order had not been a document purporting to certify the reasons for which the applicant had been detained or to establish that the events it mentioned – “rapes women by threatening them with murder” – had indeed occurred, but to compel the applicant to endure a sanction. Therefore, the only thing that it proved was that the applicant had been detained on such grounds. The applicant’s criminal record, which was the only legal means of establishing conviction for criminal conduct, was clean. There was therefore no dispute between the applicant and the defendants about whether he had engaged in criminal conduct. In so far as the applicant claimed that the content of the detention order had prevented him from obtaining compensation under the 1991 Act, he could have recourse to the special procedure under that Act.
11. The applicant appealed, arguing, inter alia, that, in as much as it mentioned the grounds for his detention, the order was purporting to certify a fact.
12. On 22 December 2000 the Plovdiv Regional Court dismissed the appeal. It conceded that the reasons for the detention order certified a fact. However, the order referred to a letter by the head of the Plovdiv militia, and that was the only thing which it certified. Therefore, a declaration that the order was incorrect would be of no benefit to the applicant, because that letter would still prevent him from obtaining compensation under the 1991 Act. The court went on to say that a judicial declaration that the official who had drawn up the order had recorded a false statement of fact would have no direct effect on the applicant’s legal sphere.
13. The applicant appealed, arguing, inter alia, that his legal interest in obtaining a declaration that the detention order was incorrect was based on his right, enshrined in Article 32 § 1 of the Constitution (see paragraph 19 below) and Article 8 of the Convention, to protect his private life against false and defamatory information. He argued that his case was identical to Rotaru v. Romania ([GC], no. 28341/95, ECHR 2000V).
14. On 12 July 2001 the Supreme Court of Cassation (Върховен касационен съд) upheld the lower court’s decision (опр. № 322 от 12 юли 2001 г. по гр. ч. д. № 102/2001 г., ВКС, ІV г. о.). It held that the detention order could not presently be challenged as to the authenticity of its reasoning. Such a challenge had been possible only at the time when the order had been made, by appealing against the sanction that it had imposed. Inasmuch as the applicant sought to nullify the order’s effects, he could do so in the manner prescribed by the 1991 Act. That was the proper way of vindicating his reputation and honour.
15. On 29 October 2008 the applicant requested that the social security services supplement his pension on the basis of section 9 of the 1991 Act (see paragraph 20 in fine below). On 14 November 2008 they turned down the request, reasoning, on the basis of the result of the 199395 proceedings and the 1997 certificate (see paragraphs 7 and 8 above), that there was no indication that the repression against the applicant had been political. It does not seem that the applicant appealed against or sought judicial review of that decision.
16. On the same date, 29 October 2008, the applicant asked the regional governor of Plovdiv to pay him compensation under sections 2 and 3 of the 1991 Act (see paragraphs 20 and 21 below), in respect of his detention in 1946-47. On 16 February 2009 the governor turned down the request, saying that the certificate issued by the Ministry of the Interior in 1997 (see paragraph 8 above) showed that the applicant had not been detained on grounds falling within the ambit of the 1991 Act. He was therefore not entitled to compensation. It does not seem that the applicant sought judicial review of the governor’s decision.
17. In a letter of 20 May 2009 the special commission set up under section 4(3) of the 1991 Act (see paragraph 23 below) advised the applicant that, according to section 10(2) of the Act (see paragraph 21 below), it could act only on the basis of referrals by regional governors or the social security authorities, not on the basis of requests by individuals.
18. On an unspecified date the Ministry of the Interior handed all documents concerning the applicant’s detention in 194647 to the commission set up under the 2006 Act on access to documents revealing the collaboration of Bulgarian citizens with the former State security and the former intelligence agencies of the Bulgarian People’s Army (see paragraph 34 below). On 13 November 2009 the commission sent copies of those documents to the Government’s Agent.
19. The relevant provisions of the 1991 Constitution read as follows:
“The private life of citizens shall be inviolable. All citizens are entitled to be protected against unlawful interference with their private or family life and against infringements of their honour, dignity and reputation.”
“Everyone has the right to seek, receive and impart information. The exercise of that right may not be directed against the rights and the good name of other citizens or against national security, public order, public health or morals.”
20. The Political and Civic Rehabilitation of Persecuted Individuals Act (1991) (Закон за политическа и гражданска реабилитация на репресирани лица) was adopted for the purpose of providing redress to persons subjected to repression during the communist regime on account of their origin, political views or religious convictions (section 1). One of the forms of repression covered by the Act is detention in labour communities, camps or similar places (section 1(3)). Under section 2(5) (former 2(4)), those so detained can apply for a oneoff sum by way of compensation in respect of any pecuniary or nonpecuniary damage sustained. If they die before receiving compensation in respect of pecuniary damage sustained, it is to be paid to their surviving children, parents or siblings (section 3(1)). In February 2004 a new section 9 was added, providing that persons subjected to repressions could also request a supplement to their pensions.
21. Initially the request for a oneoff payment of compensation was to be made to the Ministry of Finance (section 5(1), as in force until April 2005). In April 2005 that competence was transferred to the governor of the region where the person lives (section 5(1), as in force since April 2005). The governor must rule on the request after gathering evidence about the type, severity and duration of the repression, as well as about the applicant’s entitlement to compensation (section 5(2)). He has to request applicants to present written evidence in support of their claims (section 10(1)). Section 10(2), added in April 2005, provides that if there is no written evidence about the type, character or duration of the repression, the governor must of his own motion obtain a ruling by a special factfinding commission (see paragraph 23 below). According to the wellestablished case-law of the Supreme Administrative Court, the governor’s failure to do so is a serious breach of the rules of administrative procedure and constitutes grounds to invalidate his or her decision and refer the matter back to him or her with instructions to make a referral to the commission (реш. № 4837 от 16 май 2007 г. по адм. д. № 62/2007 г., ВАС, ІІІ о.; реш. № 8781 от 26 септември 2007 г. по адм. д. № 5369/2007 г., ВАС, петчленен състав; реш. № 2418 от 4 март 2008 г. по адм. д. № 6650/2007 г., ВАС, ІІІ о.; реш. № 5255 от 9 май 2008 г. по адм. д. № 13063/2007 г., ВАС, ІІІ о.; реш. № 7377 от 18 юни 2008 г. по адм. д. № 10382/2007 г., ВАС, ІІІ о.; реш. № 14253 от 19 декември 2008 г. по адм. д. № 12065/2008 г., ВАС, ІІІ о.; реш. № 6041 от 12 май 2009 г. по адм. д. № 8118/ 2008 г., ВАС, ІІІ о.; реш. № 10137 от 28 юли 2009 г. по адм. д. № 4841/2009 г., ВАС, ІІІ о.; реш. № 916 от 25 януари 2010 г. по адм. д. № 9258/ 2009 г., ВАС, ІІІ о.). The governor’s refusal to grant compensation is subject to judicial review (section 5(4)).
22. The request for a pension supplement must be made to the social security authorities (section 9(3)). They have to follow the same evidencegathering rules as the regional governors (section 10(1) and (2)). Their failure to obtain a ruling by the special commission in the event of a lack of written evidence is a serious breach of the rules of administrative procedure and constitutes grounds to invalidate their decisions and refer the matter back to them with instructions to make a referral to the commission (реш. № 7006 от 26 юни 2006 г. по адм. д. № 2129/2006 г., ВАС, VІ о.; реш. № 775 от 24 януари 2007 г. по адм. д. № 11159/2006 г., ВАС, VІ о.; реш. № 5026 от 21 май 2007 г. по адм. д. № 10432/2006 г., ВАС, VІ о.; реш. № 10469 от 30 октомври 2007 г. по адм. д. № 5386/2007 г., ВАС, VІ о.).
23. Under section 4(3), if there is no written evidence about the nature and the character of the alleged repression, the relevant facts are to be established by a special commission to be set up under regulations adopted by the Council of Ministers. In unclear cases the commission has to determine the political – or not – character of the repression by a simple majority vote (section 4(6)). To assist that determination, all authorities must provide the commission with the relevant documents in their possession (ibid.).
24. The commission’s work is governed by regulations issued by the Council of Ministers. Such regulations (Наредба за прилагане на чл. 4 от Закона за политическа и гражданска реабилитация на репресирани лица) were first adopted in 1992, setting up both a central commission and regional commissions subordinate to it (regulation 8(1)). Regulation 12(1) provided that those concerned could make applications for the establishment of past repressions to the regional commissions. All sorts of evidence, including witness statements, were allowed (regulation 12(2)). The regional commission had to rule by means of a reasoned decision (regulation 12(3)), which could be challenged before the central commission (regulation 13(1)). The central commission could uphold the decision, quash it, or determine the point de novo, and could gather evidence (regulation 14(1)). Its decision also had to be reasoned (regulation 14(2)). It was not subject to judicial review (regulation 14(3)). Those regulations were repealed with effect from 1 January 1997.
25. New regulations were adopted in June 2004. The main change which they introduced was that there were no regional commissions, only a central one (regulation 9). From the wording of regulation 10(2) it seems that the commission could act both on the basis of applications by the persons concerned and on referrals by the competent authorities. It could act if there was a complete or partial lack of written evidence of the repression, and that lack had been certified by the authorities supposed to hold such documents (regulation 10(1)). The rules of evidence and procedure were similar to those under the 1992 regulations (regulation 10(3)(7)). The commission’s decisions were not subject to judicial review (regulation 11).
26. Those regulations were in turn superseded by new regulations adopted in April 2006; those are still in force. Regulation 10(1) provides that the commission acts on the basis of the applications by those concerned. It can act if there is a complete or partial lack of written evidence of the repression, and if that lack has been certified by the authorities supposed to hold such documents (ibid.). It can also act on the basis of referrals by the competent authorities (regulation 10(2)). The rules of evidence are the same as in the previous regulations (regulation 10(3)). The commission’s decisions are not subject to judicial review (regulation 11).
27. Access to the documents of the communist-era State security agencies has been the subject of fierce debate in Bulgarian society ever since the regime’s demise in 1989. Between 1991 and 1994, the matter was raised in Parliament twelve times, with no results.
28. On 30 July 1997 the legislature enacted the Act on access to documents of the former State security agencies and the former Intelligence Department of the General Staff (Закон за достъп до документите на бившата Държавна сигурност и бившето Разузнавателно управление на Генералния щаб). The Act created a special commission whose chief task was to gather information about and make public the names of individuals who had collaborated with the communistera security services (section 4). The commission’s first meeting took place on 8 August 1997. In addition, under section 7(1), any Bulgarian citizen could ask the commission to check whether information had been gathered about him by those services. He or she could then access the information (section 8(1)), and request that documents or parts of documents be made secret if they contained “personal or family secrets” (section 9). “Personal or family secrets” meant information which was not of a public nature and pertained to the persons concerned or their relatives in the direct line or their spouses (paragraph 2(3) of the Act’s transitional and concluding provisions). Classification requests could be turned down if, inter alia, the documents contained information about violence towards others (section 9a(1) in limine). Section 13(1) specifically prohibited the destruction of originals or the only remaining copies of documents created by the former security services.
29. A group of members of Parliament challenged the Act in its entirety before the Constitutional Court. In a decision of 22 September 1997, to which were appended ten separate opinions (реш. № 10 от 22 септември 1997 г. по к. д. № 14/1997 г., обн., ДВ, бр. 89 от 7 октомври 1997 г.), that court allowed the challenge in respect of three provisions relating to the publication of the names of individuals who had been affiliated with the communistera security services, but did not touch any of the abovementioned dataaccess provisions.
30. A 2001 amendment to the Act was likewise challenged in its entirety before the Constitutional Court. In a decision of 30 May 2001, to which were appended two separate opinions (реш. № 14 от 30 май 2001 г. по к. д. № 7/2001 г., обн., ДВ, бр. 52 от 8 юни 2001 г.) that court allowed the challenge in respect of one provision which was unrelated to the dataaccess provisions.
31. The Act was repealed in April 2002 with the enactment of the Protection of Classified Information Act (2002) (Закон за защита на класифицираната информация). On 29 May 2002 a group of members of parliament challenged the repealing provision, paragraph 37(1) of that Act’s transitional and concluding provisions, before the Constitutional Court as being contrary to, inter alia, Article 41 § 1 of the Constitution (see paragraph 19 above). The Constitutional Court could not reach a majority, an equal number of judges having voted in favour of the challenge and against it, and, in accordance with its practice that in such situations the request for a statutory provision to be struck down is considered as dismissed by default, rejected the challenge (реш. № 3 от 25 септември 2002 г. по к. д. № 11/2002 г., обн., ДВ, бр. 94 от 4 октомври 2002 г.).
32. To fill, at least partly, the gap left by the repeal of the Act, on 24 June 2002 the Minister of the Interior issued an Instruction governing the manner of accessing information held in the Ministry’s archive (Инструкция № I113 за реда за достъп до информация, съдържаща се в документите от архивните фондове на Министерството на вътрешните работи). It gave everyone the right to access information which was not classified (section 2(1)), even for research and journalistic purposes (section 4), but provided that personal data could be accessed only by those to whom it related (section 2(2)). Section 3(1) specifically entitled everyone to access personal information which related to them or their close relatives. Information about third parties could be accessed only on the basis of a notarised authorisation signed by those third parties or their heirs (section 3(2)). If a person wished to access documents containing information about others, such documents could be made available only after the personal information had been taken out (section 17(3)), unless those requesting access provided a notarised authorisation (section 17(4)). The Supreme Administrative Court has justified restricting access to information about third parties on the basis of those provisions (реш. № 10075 от 2 декември 2004 г. по адм. д. № 4662/2004 г., ВАС, петчленен състав).
33. On 6 December 2006 the legislature enacted the Act on access to documents revealing the collaboration of Bulgarian citizens with the former State security and the former intelligence agencies of the Bulgarian People’s Army (Закон за достъп и разкриване на документите и за обявяване на принадлежност на български граждани към Държавна сигурност и разузнавателните служби на Българската народна армия). It was based on three separate bills, put forward by different political parties, which were merged. All three of them referred to the need to reveal the truth about the activities of the communist regime’s security apparatus and to comply with the Parliamentary Assembly’s Resolution 1096 (1996) “on measures to dismantle the heritage of former communist totalitarian systems” (see paragraph 40 below).
34. The Act came into force on 23 December 2006 and is still in force. It created a special commission whose main task is to gather information about and make public the names of individuals who collaborated with the communistera security services and who occupied or continue to occupy public posts (section 9(1) and (2)). The commission’s members were elected by Parliament on 5 April 2007. The commission’s other task is to provide individuals or their close relatives access to information which the former security services have gathered about them (section 9(3)), and to organise access to the documents contained in those services’ archives, which had to be handed over to it within eight months after the Act came into force (paragraph 8 of the Act’s transitional and concluding provisions). However, that did not happen within the prescribed timeframe, partly because the commission did not have anywhere to store the archives. On 24 June 2008 the Council of Ministers decided to provide a building in which to house them. It seems that the documents then started to be gradually handed over to the commission by the various authorities previously in charge of them. It seems that this process is still continuing. Those documents were to be stored in a centralised archive managed by the commission (sections 1(3) and 11). Under paragraph 9 of the Act’s transitional and concluding provisions, the commission also took over the archives of the commission set up under the 1997 Act (see paragraph 28 above). After the commission completes its task, all its materials are to be stored in accordance with the National Archive Fund Act (2007) (paragraph 11 of the Act’s transitional and concluding provisions).
35. Section 31(1)(1) provides that any person has the right to access information gathered by the former security agencies about him or about deceased relatives of his in the direct line, including the second degree of kinship. Under section 31(1)(3), any person has the right to access the documents contained in the archive of those agencies for scientific, journalistic or research purposes, under the conditions and in line with the procedure laid down in the Access to Public Information Act (2000) (see paragraph 37 below). Access means the right to read the documents and receive copies of them (section 31(4)(1) and (4)(2)). Where the contents of the documents may seriously infringe the rights of individuals whose names are mentioned in them, and those individuals or their heirs have not given their express written consent, the sensitive data must be taken out of the copies given to the persons requesting access (section 31(6)). They also have to sign a nondisclosure declaration (section 31(7)).
36. Section 1(7) of the Protection of Personal Data Act (2002) (Закон за защита на личните данни) provides that the Act does not apply to information contained in the national archives. It is, however, unclear whether it applies to information contained in the archive managed by the commission set up under the 2006 Act (see paragraph 34 above).
37. Under section 31(2) of the Access to Public Information Act (2000) (Закон за достъп до обществена информация), an authority which has received a request for access to information which relates to a private person must seek that person’s express written consent. If that person gives such consent under certain conditions, the authority is bound to restrict access to the information in line with those conditions (ibid.). If that person does not give consent, the authority must provide access to the information in a way that does not reveal the bits of information relating to that person (section 31(4)). A lack of consent amounts to grounds for refusing access to the information (section 37(1)(2)). Consent is not necessary if there is an overriding public interest in the information being revealed (section 31(5)). The authority’s decision to give or refuse access to information is subject to judicial review (sections 40 and 41).
38. Article 97 § 3 of the 1952 Code of Civil Procedure, superseded by Article 124 § 4 of the 2007 Code of Civil Procedure, provided that claims for judicial declarations that legally relevant facts (as opposed to legal relations) exist or do not exist could be brought only where specifically provided for by law.
39. The new Article 313b § 1 of the 1968 Criminal Code, added pursuant to paragraph 15(4) of the transitional and concluding provisions of the 2006 Act (see paragraph 33 above), makes it an offence to destroy, conceal, forge or damage a document created by the communistera State security agencies.
40. On 27 June 1996 the Parliamentary Assembly adopted Resolution 1096 (1996) “on measures to dismantle the heritage of former communist totalitarian systems”. It reads, in so far as relevant:
“... 8. The Assembly recommends that the prosecution of individual crimes go handinhand with the rehabilitation of people convicted of ‘crimes’ which in a civilised society do not constitute criminal acts, and of those who were unjustly sentenced. Material compensation should also be awarded to these victims of totalitarian justice, and should not be (much) lower than the compensation accorded to those unjustly sentenced for crimes under the standard penal code in force.
9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services. ...”