ITEMID: 001-80705
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF BISTROVIC v. CROATIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial claim;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicants were born in 1951 and 1955 respectively and live in Gojanec, Croatia.
5. The applicants, a husband and wife, owned a house and a surrounding plot of land in Gojanec, Croatia. On an unspecified date “Croatian Roads”, a public company based in Zagreb, instituted expropriation proceedings before the Varaždin County State Administration, Office for Urban Planning, Environment, Construction and Property Affairs (Ured državne uprave u Varaždinskoj Županiji, Služba za prostorno uređenje, zaštitu okoliša, graditeljstvo i imovinsko-pravne poslove, hereinafter the “Varaždin County Administration”), requesting that part of the applicants' plot of land be expropriated with a view to building a motorway. The applicants opposed this proposal, asking that their estate, namely the house and the surrounding land, be expropriated in its entirety. The applicants argued that with only partial expropriation they, as farmers, would have no further use for the house and the small area around it, since the house and the agricultural land on which it was built represented an inseparable unity. Furthermore, there would be no vehicle access to the courtyard. As farmers, the applicants could not use their property without access for tractors and other vehicles used in agricultural activity.
6. In addition, the planned motorway would pass in close proximity to the house, thus causing significant noise pollution due to the high traffic frequency. The motorway and the exit road would pass less then twenty metres and five metres respectively from the house.
7. They pointed out that the construction of 4.5-metre plastic noise-protection walls would transform their house and its surroundings into a cage, without efficiently protecting them from noise and pollution. The entire ground floor, the terrace and a part of the attic would be situated only 2 to 3 metres from the protection walls.
8. They argued that the value of the remaining property would significantly decrease, since construction of the motorway would deprive them of the living conditions they hitherto enjoyed, such as direct road access, pleasant surroundings, a huge courtyard and low noise exposure, all of which made the property very suitable for agricultural activity. For these reasons the applicants asserted that they had no economic interest in retaining the house and the surrounding courtyard.
9. The Varaždin County Administration held three hearings and obtained an expert opinion on the effects of the motorway construction on the applicants' living conditions in the remaining house and courtyard, and another expert opinion on the market value of the agricultural land.
10. The applicants contested the proposed level of compensation, asserting that they were entitled to the market value of their expropriated land, and claiming that the market value of land suitable for construction in the area was 180 Croatian Kunas (HRK) per square metre, a figure which was significantly higher than the amount proposed.
11. By a decision of 16 April 2003, Varaždin County Administration ruled that part of the applicants' estate, namely an agricultural plot and three plots of land suitable for construction measuring 795 m², 221m² and 507m² respectively, was expropriated with a view to building a motorway. The applicants retained ownership of the house and a surrounding courtyard.
12. Compensation was fixed at HRK 105,610.00, based on the sum of HRK 22.00 per square metre for agricultural land, assessed on the basis of the report submitted by a court expert for agriculture, and HRK 70.00 per square metre for land suitable for construction, assessed according to the criteria laid down by the Ministry of Finance, Tax Administration, Varaždin Office.
The relevant part of the decision reads as follows:
“During the expropriation proceedings a representative of “Croatian Roads” limited liability company (d.o.o.), Zagreb, offered the owners compensation in the amount of HRK 22 per square metre for agricultural land, on the basis of its market value as established by an agricultural expert, agricultural engineer Ivan Bašić, ... and HRK 70 per square metre for the land suitable for construction, on the basis of data submitted by the Tax Administration... The owners did not accept the above offer, however, but persisted with their request that parcel no. 9854 in the Varaždin Municipality Land Register be expropriated in its entirety, pursuant to section 7 of the Expropriation Act, claiming that they had no interest in using the remaining parts of their estate. More precisely, they sought expropriation of the entire estate together with the house and all other objects built on the estate...
...this Department has also obtained the expert opinion of a sworn court expert Dragutin Gergely, architecture engineer,... and the submissions of Božidar Jagec, the engineer who drew up the project,... from which it transpires that there is no need for total expropriation and that the remaining property continues to enjoy unhindered road access and that provision has been made for noise-protection walls.
...furthermore, if the owners' request for total expropriation is accepted, all other houses and economic objects which are at an equal or even lesser distance from the motorway... will also [have to] be expropriated...
In addition, the owners' argument that the partial expropriation of parcel no. 9854 would significantly deteriorate their housing conditions is unfounded because they ... do not live at that address.”
13. The applicants filed an appeal against that decision, but the second-instance administrative body failed to rule on it.
14. On 16 December 2003 the applicants filed a claim with the Varaždin County Court (Županijski sud u Varaždinu) under Section 42(a) § 3 of the Expropriation Act, seeking expropriation of their entire estate. They reasserted the arguments previously submitted to the administrative authority. The applicants further contended that the expert opinion had been drawn up without the expert ever actually visiting the site and without any study of traffic frequency on the road passing the applicants' house or on the effect of traffic pollution on their quality of life. The expert opinion had been prepared on the basis of a map of the land plot on which the applicants' house had been erroneously drawn.
15. The applicants also complained about the amount of compensation awarded to them and reiterated that the market value of the expropriated plots had not been established. Instead, the amount was fixed according to Varaždin Tax Administration tables. The applicants complained that their objections had not been adequately examined and addressed by the administrative authority.
16. On 30 December 2003 the Varaždin County Court held a hearing at which the applicants' representative repeated their arguments, but no new evidence was presented or requested by the court. On the same day the County Court dismissed the applicants' claim. The relevant part of its judgment reads as follows:
“The reasoning of the cited decision clearly indicates that compensation corresponding to the market value of the plaintiffs' (the former owners) estate was determined in the expropriation proceedings. The market value of the agricultural land was assessed by a sworn court expert for agriculture... and the market value of the land suitable for construction was assessed according to the opinion of construction experts and the data submitted by the Tax Administration.
Relying on the reasoning in the above-mentioned decision, this court has further established that, ... in respect of the plaintiffs' request for expropriation of their remaining estate and the existence of a road access to the estate, the expert opinion of a sworn court expert for construction ... had been obtained as well as the opinion of a geodesic engineer..., from which it followed that the plaintiffs' request for total expropriation was not founded because there were a number of other houses and other objects in the same area which were at an equal or lesser distance from the motorway and that noise protection had been ensured to all expropriated [properties] and that the remaining plaintiffs' property continued to enjoy road access. It follows that there are no well-founded reasons for the plaintiffs' request for total expropriation of their estate...
... this court has established that no procedural defects, and especially no grave procedural defects, were made in the administrative proceedings and that the substantive law had been correctly applied, both concerning the dismissal of the plaintiffs' request for total expropriation of their estate and in respect of the amount of compensation fixed for agricultural land and the land suitable for construction.
As has already been stated, while the plaintiffs are not entitled to bring any new facts in the proceedings before this court, except those presented in the administrative proceedings, they are allowed to bring new evidence in respect of the facts presented in the administrative proceedings.
However, the plaintiffs have, neither in their claim nor during the proceedings, presented any evidence concerning their objections and the reasons for which they seek annulment of the Varaždin County State Administration Office... decision of 16 April 2003, which would be capable of calling into question the facts on which the cited decision was based...”
17. The applicants then filed a constitutional complaint, arguing that their right to equality before the law, their right to a fair trial and their right of appeal had been violated in that they had been unable to submit new evidence to the Varaždin County Court and that that court had reached its decision without having any evidence presented to it. Thus, their objections with regard to the expert opinion and their assertions about the effects of the motorway construction on their living conditions and on the value of their remaining property had remained unaddressed. The applicants also argued that their right to compensation for the market value of their expropriated property had been violated.
18. On 16 December 2004 the Constitutional Court dismissed the applicants' complaint as ill-founded. The decision of the Constitutional Court reads as follows:
“1. The constitutional complaint is lodged against the Varaždin County Court's judgment no. P-1/03-9 of 30 December 2003, by which the applicants' (plaintiffs') claim, filed against the Ministry of Justice as defendant, Administration and Local Self-government, seeking the annulment of the decision of the Varaždin State Administration, Office for Urban Planning, Environment, Construction and Property Affairs, class: UP/I-943-04/02-01/1936, no. 2186-05-05-03-11 of 16 April 2003, was dismissed.
The first instance administrative decision accepted the proposal by “Croatian Roads” d.o.o., Zagreb, for partial expropriation of parcel no. 9854, Varaždin Municipality Land Registry, owned by the applicants, and established the compensation for the expropriated land, for investments in the land and for the agricultural crops at HRK 105,610.
2. The applicants claimed a violation of their constitutional rights under Article 14 § 2, Article 18, Article 29 § 1 and Article 50 § 1 of the Constitution.
In their constitutional complaint the applicants argued that, in the preceding proceedings, the facts had been incorrectly established and that their estate should have been expropriated in its entirety. They maintained that the County Court should have obtained the entire administrative case-file and verified the experts' opinions with regard to the finding that there was no need for total expropriation, and the findings with regard to the amount of compensation, which they claimed did not correspond to the market value but had been fixed on the basis of the Tax Administration tables. They further asserted that their right to an appeal had been violated because in the proceedings before the County Court they had not been allowed to present new facts and for that reason the whole proceedings had been arbitrary.
They asked the Constitutional Court to quash the impugned judgment.
The constitutional complaint is unfounded.
3. Section 62 paragraph 1 of the Constitutional Court Act (Official Gazette no. 49/02) provides that everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that an individual act of a state body, a body of local and regional self-government or a legal person invested with public authority, which resulted in a decision on his or her rights and obligations, or on suspicion or accusation of a criminal act, has violated his or her constitutional right.
While deciding whether constitutional rights were violated in proceedings concerning the assessment of an individual's rights and obligations, within the scope of the claim contained in the constitutional complaint, the Constitutional Court does not, in principle, consider whether the courts correctly and completely established the facts and assessed the evidence. For the Constitutional Court the only facts to be taken into consideration are those relevant for the assessment of a violation of a constitutional right.
4. The proceedings before the Varaždin County Court were instituted by the applicants pursuant to section 42a § 3 of the Expropriation Act (Official Gazette nos. 9/94, 35/94, 112/00 – the Constitutional Court's decision and 114/01) because the appellate administrative body (the Ministry of Justice) did not decide on their appeal within the fixed time-limit. In such proceedings, a court assesses the legality of the first-instance decision concerning expropriation on the basis of the facts presented in the claim filed with that court and the defendant body's reply (if the reply reaches the court within the fixed time-limit), ... pursuant to section 42e § 3 of the same Act.
The proceedings in connection with the applicants' claim were conducted under section 42e §§ 1 and 2 of the Expropriation Act, which provides:
The Chamber considers and decides on the basis of the facts presented in the administrative proceedings.
A claimant is not allowed to present new facts, but may present new evidence concerning the facts presented in the administrative proceedings.
As regards the compensation for the expropriated land, the County Court found that the compensation fixed corresponded to its market value. As regards the agricultural land, the compensation was assessed by a sworn court expert for agriculture, while the compensation for the land suitable for construction was assessed on the basis of an opinion by a construction expert and data provided by the Tax Administration.
As regards the applicants' request for total expropriation, the County Court upheld the first instance body's decision finding that there had been no need for expropriation of the applicants' estate in its entirety, in that the evidence presented to that administrative body had clearly demonstrated that there existed a number of other houses and other economic objects in the same area which were at an equal or lesser distance from the corridor of the future motorway and that all expropriated [properties] had been provided with protection against noise. In particular, it was established that the applicants' remaining estate continued to enjoy unhindered road access, and therefore there existed no justification for the expropriation of the applicants' remaining estate within the meaning of section 7 of the Expropriation Act.
The Varaždin County Court established that no grave procedural defects had occurred in the expropriation proceedings, nor had the material law been wrongly applied; in particular, it established that the applicants had failed to present any new evidence capable of calling into question the facts on which the impugned decision had been based.
5. The applicants further claimed in their constitutional complaint that the impugned judgment had violated the constitutional guarantee of equality of all before the law, provided for under Article 14 § 2 of the Constitution.
Having established that the legal opinions of the Varaždin County Court in the present case did not diverge from the established practice in the application of relevant substantive law, and were not discriminatory on any basis, the Constitutional Court does not accept the applicants' allegations that, in the present case, equality before the law was not secured to them, as guaranteed under Article 14 § 2 of the Constitution.
6. Furthermore, after analysing the constitutional complaint, the findings of the impugned decisions and the case-file, the Constitutional Court has established that the constitutional complaint's allegations about the violation of the applicants' right to an appeal, provided for under Article 18 of the Constitution, are not founded, in that the competent court addressed all of the arguments submitted by the applicants in the appellate proceedings, the competence of which is regulated by section 42a of the Act on Amendments to the Expropriation Act (Official Gazette no. 114/01).
7. The Constitutional Court considers further that the applicants' constitutional right to a fair trial before an independent and impartial tribunal established by law (Article 29 § 1 of the Constitution) has not been violated.
The right to a fair trial would have been violated if a party to the proceedings had not been given an opportunity to be heard and to participate in the proceedings within the frames set out by laws; if a party had not been given an opportunity to present facts and evidence and a competent court had failed to rule on those of the party's arguments which were relevant to its decision; if, contrary to law, reasons had not been given for an individual act and if a party had in other way been prevented from having a fair trial before the competent body established by law.
Since the Varaždin County Court verified the legality of the impugned decision within the meaning of the Expropriation Act on the basis of the evidence presented to it and by scrutinising the reasoning of the impugned decision on expropriation, it follows that the proceedings were conducted ... in conformity with the relevant provisions of substantive and procedural law; the Constitutional Court therefore considers that the applicants' right to a fair trial was not violated.
8. The applicants' further claimed a violation of their constitutional right contained in Article 50 § 1 of the Constitution, which provides:
Any restriction [of property rights] or confiscation of property shall be done by law, in the interest of the Republic of Croatia, and compensation of the market value shall be paid.
Since the competent County Court established that the expropriation proceedings had been conducted in accordance with the provisions of the Expropriation Act, with the correct application of substantive law and without grave procedural defects, and since the same court established that the applicants had received compensation for their expropriated estate equal to its market value, the cited constitutional right has not been violated.
9. For these reasons and pursuant to sections 73 and 75 of the Constitutional Court Act it has been so decided.”
19. The relevant parts of the 1994 Expropriation Act (Zakon o izvlaštenju, Official Gazette nos. 9/94, 35/94, 112/00 and 114/01) provide as follows:
Section 7 entitles the owner of an estate subject to partial expropriation to request its total expropriation if he or she has no interest in using the remaining property.
Sections 8 and 33 require that compensation for expropriated property equals the market value of that property on the date on which the first-instance decision in expropriation proceedings is adopted.
Section 42 § 1 enables an action to be brought before the competent county court against a second-instance administrative decision on expropriation.
Section 42(a) § 3 provides that such an action may also be brought if the second-instance administrative body fails to decide on appeal against the first-instance administrative decision.
Section 42(b) stipulates that, unless otherwise provided, the Administrative Disputes Act is to be applied in expropriation proceedings conducted before the competent county court.
Section 42(e) §§ 1 and 2 obliges the competent county court to decide on the basis of the facts presented in the preceding administrative proceedings, and prevents a claimant from presenting any new facts, while at the same time allowing presentation of new evidence before the county court.
Section 42(e) § 3 requires that the county court, when dealing with an action brought under Section 42(a) § 3, examines the case on the basis of the facts presented in such an action and of the submissions of the administrative body which issued the impugned decision.
20. Section 60 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides for the application of the Civil Procedure Act to proceedings concerning administrative disputes, in so far as these proceedings are not regulated by the Administrative Disputes Act.
21. Section 428(a) of the Civil Procedure Act enables an applicant in respect of whom the European Court of Human Rights has found a violation of the Convention or its Protocols to request, within 30 days of the Court's judgment becoming final, the re-opening of the domestic proceedings in question. In the new proceedings the domestic courts are obliged to follow the reasons given in the Court's judgment.


ITEMID: 001-82738
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NADULISNEAC ION v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1953 and lives in Edineţ.
7. Following the applicant's unlawful detention for three days and then his acquittal, on an unspecified date in 2002 he brought an action against the Edineţ Department of Finances, seeking compensation for wrongful prosecution.
8. On 3 December 2002 the Edineţ District Court ruled in favour of the applicant and ordered the defendant to pay him 11,739 Moldovan lei (MDL) (the equivalent of 850.04 euros (EUR) at the time). On the same date the District Court issued an enforcement warrant. The judgment was not appealed against and after fifteen days it became final and enforceable.
9. On 11 June 2003 a Bailiff of the Edineţ District sent the enforcement warrant to a Bailiff of the Râşcani District.
10. In May 2006, after the case had been communicated to the Government, the judgment was enforced.
11. The relevant domestic law was set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)) and Popov v. Moldova (no. 1) (no. 74153/01, §§ 29-41, 18 January 2005).
12. The Civil Code of 12 June 2003 reads as follows:
“(1) Default interest is payable for delayed execution of pecuniary obligations. Default interest shall be 5% above the interest rate provided for in Article 585 [NBM refinancing interest rate] unless the law or the contract provides otherwise. Proof that less damage has been incurred shall be admissible.
(2) In non consumer-related situations default interest shall be 9% above the interest rate provided for in Article 585 unless the law or the contract provides otherwise. Proof that less damage has been incurred shall be inadmissible.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23830
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: HORVATH v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr György Horváth, was a Hungarian national born in 1946. He died on 28 March 2002. The applicant was represented before the Court by Mr I. Barbalics, a lawyer practising in Nagyatád, Hungary. On 1 July 2001, following an enquiry, the applicant's two surviving daughters, Ms M. Horváth and Ms J. Horváth, informed the Court that they wished to continue their late father's case pending before it. They appointed Mr Barbalics as their representative.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 December 1991 the applicant filed an action for divorce with the Nagyatád District Court. In a second action, he sought the division of the matrimonial property. The two actions were later joined by the court.
On 16 April 1992 the District Court held a hearing and invited the applicant to submit a precise statement of claim. On 16 July 1992 the applicant extended the scope of his action in order to associate all the owners of the real estate with the proceedings.
On 16 November 1992 the court imposed a fine on the applicant's lawyer on the ground that it was impossible for the court to rule on the submissions which he had made. In an order of 7 December 1992 the court separated the divorce proceedings from the proceedings on the division of the matrimonial property. On 26 January 1993 the applicant informed the court that he had discontinued his legal representative's power of attorney and requested the court to assign a new legal representative to him.
On 4 February 1993 the District Court pronounced the parties' divorce.
On 11 February 1993 the District Court held a hearing in the proceedings on the division of the matrimonial property and appointed a legal counsel to represent the applicant in the case. At the applicant's request, on 2 March 1993 the court withdrew this appointment.
On 29 April 1993 the court heard the parties and requested them to submit their evidence within 15 days.
At a hearing on 22 June 1993 the court appointed an expert and instructed him to submit his opinion within 30 days. The next hearing was held on 24 June 1993.
The expert submitted his opinion on 9 August 1993.
In the meantime one of the defendants died. On 17 August 1993 the District Court suspended the proceedings pending the participation of the deceased's successors in the proceedings.
On 24 November 1993 the court held a hearing.
On 10 January 1994 the court ruled on the division of the matrimonial property.
On the applicant's appeal, on 16 June 1994 the Somogy County Regional Court quashed this judgment and remitted the case to the District Court. It held that the District Court had committed several procedural errors.
In the resumed proceedings before the Nagyatád District Court, the applicant chose to be represented by Mr S. The court held hearings on 15 September 1994 and on 8 March, 27 April, 18 May and 8 June 1995. At the last hearing the District Court appointed an expert. He submitted his opinion on 14 July 1995.
In a judgment of 7 September 1995 the court divided the parties' matrimonial property.
On 22 February 1996 the Somogy County Regional Court confirmed the first instance judgment.
On 28 June 1996 the applicant filed with the District Court a petition for review of the judgment by the Supreme Court.
After the petition had been transferred to it by the District Court, the Supreme Court ordered on 4 March 1999 that the petition be filed by a legal representative in accordance with domestic legal requirements.
On 16 June 1999 the applicant requested legal aid. In an order of 14 October 1999 the Supreme Court dismissed the applicant's request as his financial situation did not justify the grant of legal aid. Pursuant to the relevant legislation, the Supreme Court on the same date requested the applicant to appoint, within 15 days, a lawyer to represent him in the proceedings. On 14 December 1999 the Supreme Court rejected the applicant's petition for review, observing that the applicant had failed to appoint a legal representative. The decision was served on the applicant on 17 February 2000.
In 1998 the applicant brought an official liability action before the Baranya County Regional Court. He claimed compensation from the Somogy County Regional Court, which had dealt with the divorce case. He maintained that his case had not been dealt with properly in that the court had failed to uncover that his representative, Mr S., was an impostor. After several hearings, on 8 February 2000 the Regional Court discontinued the proceedings as the applicant had withdrawn his action.


ITEMID: 001-119951
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF SOROKINS AND SOROKINA v. LATVIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney
TEXT: 5. The first applicant, Mr Aleksandrs Sorokins, and the second applicant, Mrs Marija Sorokina, are both Latvian nationals who were born in 1971 and 1939 respectively and live in Rīga.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 20 June 1997 at 1.20 a.m. the State police in Rīga received a call from a private individual who informed them that thieves had broken into his neighbours’ flat. According to reports drawn up the same day by three police officers, a patrol team arrived at the address given ten minutes later. They saw a man (the first applicant) running away. They apprehended him and found various items on him, which, it was discovered later, belonged to the owner of the flat. According to a report drawn up the same day by police officer A.E., who had attended the arrest of the first applicant, when apprehended the latter bore no visible injuries.
8. Questioned on the same day, a neighbour, M.S., stated that she had seen the first applicant attempting to escape when the police arrived.
9. Following his arrest the first applicant was taken to Rīga Main police station (Rīgas Galvenā Policijas pārvalde). At 6.30 a.m. the applicant’s arrest record was drawn up. On the same day, from 11 a.m. to 11.35 a.m., the first applicant was interviewed and denied any wrongdoing.
10. He was repeatedly questioned the same day, from 4 p.m. to 5 p.m., and confessed to the crime, which he said he had committed with two acquaintances. He stated that he had been in the back yard of the building when one of his acquaintances had given him a bag containing the stolen items which the police later discovered on him.
11. On the same day (at an unknown time) the first applicant, who was represented by a lawyer, was brought before a judge of the Rīga City Centre District Court and remanded in custody.
12. On 25 June 1997 the first applicant was taken to the Central Prison.
13. On 27 June 1997 investigators questioned the two individuals identified by the applicant, as well as another suspect, J.V. The latter confessed to having committed the theft together with the first applicant.
14. On 30 June 1997 the prosecutor informed the first applicant at the Central Prison that he was being charged with large-scale theft. The applicant confirmed in writing that he had no objections or comments to make. Interviewed by the prosecutor on the same day, the first applicant denied his guilt and asked for the questioning to be postponed because he felt ill.
15. The first applicant was repeatedly questioned by the prosecutor on 7 July 1997, and confessed to committing the crime, which he said he had committed with J.V. According to the record of the interview, the applicant stated that his earlier statements were false as far as the two acquaintances were concerned (see paragraph 10 above) because “he had been subjected to duress at the police station”. On the same day J.V. refused to provide a statement.
16. On the same day the co-accused, J.V., alleged that his earlier statement had been given as a result of physical force used by the police. On 8 July 1997 he lodged a complaint in this respect, which was forwarded to the State police for examination. On 26 September 1997 the State police refused to institute criminal proceedings in relation to the alleged ill-treatment of J.V.
17. On 20 August 1997 final charges were brought against the first applicant and the co-accused, J.V. The first applicant refused the assistance of a lawyer. On being questioned by the prosecutor, he maintained the statements he had given on 7 July 1997.
18. On 10 September 1997 the Rīga City Centre District Court decided to commit the applicant and his co-defendant for trial and to maintain their remand in custody. The first hearing was scheduled for 5 March 1998.
19. The first hearing was rescheduled for September 1998 because the judge was involved in other proceedings. The hearing was subsequently postponed until December 1998 because the co-defendant requested the assistance of defence counsel. The December hearing was rescheduled for February 1999 due to the absence of witnesses and the victim.
20. From 26 February to 1 March 1999 the Rīga City Centre District Court held a hearing. The first applicant asked the court to request a medical certificate attesting to his physical condition following the questioning during which he had confessed to the crime. The co-accused requested the court to call the doctor who had treated him after he was questioned at the police station. The court left both requests open pending termination of the court investigation, and remitted the criminal case to the Rīga Centre District Prosecutor’s Office for additional pre-trial investigation.
21. Following an appeal by the prosecutor, in June 1999 the Rīga Regional Court revoked the decision and referred the criminal case back to the lower court for adjudication on the merits. The first applicant submitted an ancillary complaint to the Supreme Court in which he stated, inter alia, that during the pre-trial investigation he had been subjected to physical ill-treatment. On 31 August 1999 the Senate decided to leave the complaint unexamined, on the ground that the impugned decision was not subject to an appeal.
22. In February 2000 the prosecutor asked the Rīga Centre District Court to transfer the criminal case to the Rīga Regional Court which, according to the prosecution, had jurisdiction in the case. The Rīga Regional Court refused the request, and in April 2000 the case was sent back to the district court. At the regional court’s request the Supreme Court ruled in June 2000 that the criminal case was to be tried by the Rīga Centre District Court.
23. The hearing scheduled for 14 November 2000 was postponed as witnesses and the victim failed to appear.
24. From August 2001 to March 2002 the hearing was postponed due to the co-defendant’s illness.
25. On 27 March 2002 the Rīga City Centre District Court, after obtaining the first applicant’s approval for the case to be examined in the absence of witnesses, began hearing the case. During the hearing the first applicant pleaded not guilty and alleged that he did not know J.V. and that he had provided incriminating statements only to avoid being physically ill-treated.
26. On 2 April 2002 the Rīga City Centre District Court found the first applicant guilty, and sentenced him to four years and nine months’ imprisonment. The first applicant had already served this term in pre-trial detention and was immediately released. His co-defendant was acquitted for lack of evidence.
The court gave weight to the facts that the first applicant had never denied that he had the stolen items on him when he was arrested, and that this had been confirmed by witnesses’ statements. Preferring to give credence to the statements the applicant had made during the pre-trial investigation, the court noted that the case file disclosed no evidence to support the allegations that during his questioning the first applicant had been ill-treated by police officers. Moreover, the first applicant had not raised any complaints in this regard.
27. The court also relied on the fact that during the pre-trial investigation the first applicant had twice confessed to the prosecutor that he had committed the offence. It noted that the first applicant had never complained about the activities of the prosecutor.
28. In his appeal the first applicant pleaded that the statements made during the pre-trial investigation had been obtained as a result of his ill-treatment by police officers.
29. The appellate hearing scheduled for 6 August 2003 was postponed as the first applicant asked for witnesses to be summoned on his behalf.
30. On 18 December 2003 the lower court’s decision was upheld by the Rīga Regional Court. According to the transcript of the hearing, police officer A.E. stated that he did not remember either the first applicant or his arrest. On cross-examination by the first applicant, A.E. confirmed that force had been used to apprehend the first applicant. A defence witness, A.B., testified that she had seen police officers beating the first applicant on 20 June 1997. The prosecutor in response raised doubts as to whether the first applicant had been arrested in the circumstances alleged.
31. In the judgment the appellate court referred to the lower court’s reasoning and stated in particular:
“... The case file bears no evidence that during the pre-trial investigation [the first applicant] had been ill-treated by police officers; moreover [the first applicant] had confessed [to the crime] being questioned twice by the prosecutor, and [the first applicant] had never complained about ill-treatment by members of the prosecutor’s office”.
It further observed that the first applicant’s guilt had been attested to by a considerable amount of other evidence, such as witness statements and material evidence. It also noted that self-incriminating statements or denial of guilt could not serve as the only grounds to establish or refute guilt. The court further recognised that the first applicant’s pre-trial statements in relation to J.V. had been of a confusing nature and could not be used as proof of the guilt of his co-accused.
32. In his appeal on points of law the first applicant reiterated that his confession to the police officers had been obtained as a result of police ill-treatment. He also noted that he had not lodged an official complaint because of fear of retaliation by the police. On 12 March 2004 the Senate of the Supreme Court, in a preparatory session, dismissed his appeal without examining it on the merits. The Senate remarked that the internal investigation of the alleged ill-treatment did not find that the applicant had been beaten up by police officers.
33. It appears from the materials in the criminal file that on 12 November 1998 the first applicant asked the lower court to lift the detention order and stated that his confession to the offence had been obtained under duress. On 7 December 1998 the second applicant asked the lower court to release her son and stated, inter alia, in general terms that her son’s confession had been obtained by ill-treatment. On 9 October 2000 the first applicant asked the judge of the lower court to request information about his state of health when he was admitted to the Central Prison and testified before the prosecutor.
34. On 14 March 2001 the second applicant, in a representation to the President of the Republic, asked the authorities to investigate the ill-treatment to which the first applicant had been subjected on 20 June 1997. She stated that when she had first seen her son in prison he had been severely beaten and had lost a front tooth; his clothes were covered in blood. The lapse of time between the alleged ill-treatment and the complaint was explained by the first applicant’s fear that he would be the victim of reprisals while in prison.
35. At the request of the head of the State police inquiry department (Valsts policijas izziņas pārvalde) for information on whether the criminal file contained information revealing the unauthorised use of force against the first applicant, the judge of the lower court reported in May 2001 that no such information could be found in the criminal file.
36. The complaint was forwarded to the State Police which, on 25 June 2001, refused to institute criminal proceedings. The decision, drawn up by investigator Z.T., stated:
[6.] Under questioning ... [the first applicant] explained that ... [a]t the arrest the police officers had knocked him to the ground, kicked him and hit him with truncheons, as a result of which he had lost consciousness. He regained consciousness only in the police car ... During the interrogation he had been subjected not only to physical ill-treatment but he also received threats and psychological intimidation. During the interrogation many police officers participated in beating and kicking him, for an extended period of time, on the body and head ... In addition, a plastic bag was put over his head, so that [the first applicant] could not breathe. In his statement [the first applicant] alleged that he had been ill-treated by many police officers, but that he could not remember or identify any of them.
[7.] In addition, in his statement [the first applicant] alleged that he had repeatedly complained to the prosecutor’s office about police ill-treatment, which contradicts the information [received] from the Rīga Centre District Court [according to which] there is nothing to indicate ... that during the pre-trial investigation [the first applicant] had been subjected to ill-treatment by police officers or the prosecutor.
[8.] When taken into the temporary detention unit of the Rīga Main police station no injuries were identified on the [first applicant], and he did not make any complaint, either about his health or about the behaviour of the police officers.
[9.] [The first applicant] asked for medical assistance only on 26 June 1997 in the Central Prison: he was examined and bodily injuries were recorded; on this basis on 4 June [2001] a forensic medical examination was carried out. It appears from the report of [the forensic medical examination] that [the first applicant] had sustained the following bodily injuries: contusion on the right knee joint; contusion on the back with haematoma; bruises on both arms (the number, localisation and characteristics of the bruises not described), which were considered to be minor bodily injuries causing only short-term health problems of no more than six days. It was impossible to establish the exact time the injuries had been sustained, but it could not be excluded that the injuries could have been inflicted on 20 June 1997.
[10.] [The police officer] A.S. stated that ... he had taken part in the arrest of [the first applicant]. He had not observed any visible bodily injuries on [the first applicant], and he could not remember the first applicant complaining of health problems or about the activities of the police officers. If the first applicant had raised any complaint about his health he would have been transferred to a medical establishment.
[11.] Accordingly ... it can be concluded that during the preliminary review of the complaint no objective confirmation was obtained as to the allegations that on 20 June 1997 ... police officers had intentionally inflicted bodily injuries on [the first applicant], as [the latter] complained about health problems only on 26 June, whereas he was apprehended and questioned on 20 June”.
37. The Chancellery of the President and the Prosecutor General’s Office were informed of the decision taken, and a copy of the decision was sent to the second applicant.
38. Following the second applicant’s complaint of 26 January 2004, addressed to the President of the Republic, on 31 March 2004 a superior prosecutor of the Prosecutor General’s Office revoked the impugned decision and sent the case for additional investigation to the State police (Valsts policijas Galvenās Kriminālpolicijas pārvades Pirmstiesas izmeklēšanas pārvalde) on the ground that not all the facts and circumstances had been established when deciding whether to institute criminal proceedings in connection with allegations of ill-treatment. It appears that the prosecutor had issued specific instructions to the investigators.
39. On 8 May 2004, after obtaining statements from three other police officers who had taken part in the arrest of the first applicant, the investigator Z.T. established that the police officers had used force in accordance with section 13 of the Police Act, in that the first applicant had not complied with the officers’ requests and had attempted to escape. The decision stated:
[the former police officer] AE stated that he had apprehended [the first applicant] and since the latter ... had attempted to flee, he had caught [the first applicant] and knocked him down, and that as a result they had both fallen down. As the first applicant did not resist, there was no need to apply other means of force. ... [A witness] A.B. testified that she had seen the first applicant being apprehended from her window, and that many police officers had spent a long time beating [the first applicant] with truncheons and kicking him ...
... [T]here are grounds to conclude that the assertions in A.B.’s statements contradict the report of bodily injuries in the forensic expert’s report [of 2001] ... and therefore there are grounds to call into question A.B.’s statement that there had been prolonged beating [of the first applicant] ... in that the bodily injuries of [the first applicant] did not correspond to the [above] description.
... [T]here are grounds to conclude that on 20 June 1997, when [the first applicant] was apprehended, the police officers acted in accordance with section 13 of the Law on Police, and the minor bodily injuries could have been inflicted while he was being apprehended, for, as noted by the police officers, [the first applicant] did not comply with their request, and attempted to escape.”
40. The decision was sent to the supervising prosecutor of the Prosecutor General’s Office and to the second applicant.
41. On 18 June 2004 the decision was upheld by a prosecutor attached to the Office of the Prosecutor General. The prosecutor stated that in the course of an additional inquiry no further evidence substantiating the allegations was identified. The decision also noted that, considering the time that had passed since the alleged events, it was practically impossible to obtain new information which could confirm or deny the applicants’ version of the events. The decision was subject to appeal to the Prosecutor General.
42. According to a medical report drawn up by the medical unit of the Central Prison, on 26 June 1997 the first applicant had complained of pain in the right knee joint and when urinating. He was diagnosed as having haematomas on his back (measuring 10 cm x 15 cm), on both arms (from 1 cm x 3 cm to 5 x 5 cm) and bruises on both arms (0.3 cm x 8 cm). According to the medical records of 3 July 1997 the applicant’s left knee was tender and painful and he was diagnosed as having a urinary infection and bruises on his body. The medical records also stated that according to the applicant “he had been beaten up when being arrested”.
43 Following the first applicant’s complaint of ill-treatment, on 14 June 2001 a forensic medical expert assessment was carried out, which concluded that the bodily injuries (an unspecified number and type of bruises on the left knee, arms and back) were minor and would not cause health problems for more than six days. The expert report could not determine the exact time the injuries had been inflicted on the first applicant, but it did not rule out the possibility that they had been inflicted on 20 June 1997.
44. According to the information provided by the Government, where a person showed signs of bodily injuries he had to undergo a medical examination before being admitted to a police temporary detention unit. However, the five-year period for the keeping of such documents had expired, and so that information as regards the first applicant was no longer available.
45. Under section 10, the basic duties of police officers include the conducting of investigations and necessary searches and other measures prescribed by the law in order to shed light on criminal offences and to identify their perpetrators.
46. Section 10 provides a list of situations in which police officers are allowed to use physical force, such as when arresting and conveying individuals to police stations, as well as when restraining arrested, detained and convicted persons if they do not comply or if they resist police officers, or if there is reason to believe that they may escape or harm others or themselves;
47. Section 27 states that a police officer shall be liable for any unlawful action in accordance with the procedure specified by law. If a police officer has violated an individual’s rights and lawful interests, the police authorities shall take measures to redress the violation and award compensation for damage caused.
It also states that a police officer must not carry out or support any activity related to torture or other cruel, inhuman or degrading punishment. No police officer may cite an order from a superior, or exceptional circumstances such as a state or threat of war, a threat to national security, internal political instability of the State or a state of emergency, to justify torture or other cruel, inhuman or degrading treatment or punishment.
According to paragraph six (the wording in force until 10 May 2005), the head of the police station reviews and decides on complaints about the actions of a police officer under his command. Such decisions are subject to appeal within one month to a higher-level institution.
48. Pursuant to sections 38 and 39, the functioning of the police shall be under the control of the Cabinet of Ministers, the Minister for the Interior and local municipalities, within the scope of their competence. The lawfulness of police operations is supervised by the Prosecutor General and subordinate prosecutors.
49. Section 3 provides, inter alia, that courts and public prosecutors are obliged to initiate criminal proceedings if indications have been discovered that an offence has been committed.
50. Section 41 provides that a public prosecutor performs supervisory functions, inter alia, by revoking unlawful and unreasoned decisions of the police, and other public prosecutors in subordinate positions, concerning criminal cases.
51. Pursuant to sections 19 and 51, only evidence obtained, proved and assessed in accordance with this code may be used in determination of a case, and courts must freely and objectively assess the evidence and reach their own conclusions which are based on a full, complete and objective assessment of all the materials of the case and in accordance with law and justice. No evidence has any predetermined weight which would bind the court.
52. Section 97 provides that defence counsel in a criminal case has the right to meet a suspect, an accused, or a defendant in private; to submit evidence; to lodge objections and submit requests; to participate in the questioning of a suspect and the charging and questioning of an accused, as well as in other investigative actions following a request raised by the suspect, accused or defence counsel; to participate in adjudication of a case; and to lodge complaints against decisions adopted by the entity in charge of an investigation, a prosecutor or a court.
53. By virtue of section 151 a prosecutor shall question the accused without delay following the bringing of charges. If immediate questioning is impossible, a record shall be drawn up explaining the reasons for the delay.
54. Section 220 sets out a procedure for lodging complaints against the activities of investigators, under which a suspect, accused persons and their representatives and defence counsel may submit a complaint to a prosecutor about the activities of investigators and others. Complaints shall be submitted directly to a prosecutor or to the person whose activities are the subject of the complaint. Complaints may be either written or oral. In the latter case the complaint shall be recorded by a prosecutor or an investigator and that record shall be signed by the complainant. An investigator shall forward the complaint, together with explanations, to a prosecutor within twenty-four hours.
Pursuant to section 221, a prosecutor shall decide on a complaint within three days following the date of reception and shall notify the complainant of the outcome. If a complaint is rejected the prosecutor shall notify the complainant of the reasons. An investigator or the complainant may appeal against the prosecutor’s decision to a higher-level prosecutor.
55. Section 222 stated that complaints about a prosecutor’s activities are to be submitted to a prosecutor at a higher level, and are to be decided on in accordance with the procedures provided by sections 220 and 221.
56. Under section 449, a judgment can be examined by the cassation court only if it is vitiated by a material infringement either of criminal law or the law of criminal procedure. Section 451 states, inter alia, that breaches of the provisions of the Code of Criminal Procedure, which, inter alia, affected or could have affected the lawfulness, reasoning and fairness of a judgment, are serious infringements of the Code of Criminal Procedure.
57. In accordance with section 15, a prosecutor shall supervise the execution of custodial sentences and the institutions in which individuals are detained as a result. Furthermore, section 16 provides that a prosecutor shall, in accordance with the procedures prescribed by law, carry out an investigation if the information received concerns a crime or a violation of the rights and lawful interests of, inter alia, detainees. Paragraph 2 states that a prosecutor has the duty to take measures required for the protection of rights and lawful interests of persons and the State, if the examination of the facts regarding the violation of law is assigned by, inter alia, the President of the Republic.
According to section 17, when examining an application in accordance with the law, a prosecutor has the right: to request and to receive regulatory enactments, documents and other information from administrative authorities ... to order heads and other officials of ... institutions and organisations to carry out examinations, audits and expert examinations and to submit opinions, as well as to provide the assistance of specialists in examinations carried out by the prosecutor; to summon a person and to receive from him/her explanations as to breaches of the law ... When taking a decision on a breach of law, the prosecutor, depending on the nature of the breach, has the duty ... to bring an action to the court, to initiate a criminal investigation or to initiate [proceedings on] administrative or disciplinary liability.
By virtue of section 20, if it is necessary to bring an illegal activity to a halt, to rectify the consequences of such activity or to prevent a violation, a prosecutor shall submit a submission in writing to the relevant undertaking, authority, organisation, official, or person.
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-109052
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF OPRIS AND OTHERS v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Egbert Myjer;Luis López Guerra;Mihai Poalelungi
TEXT: 4. The details as to the subject matter of the cases, reference dates for the start and end of the proceedings and the length of the proceedings are set out in the table appended hereto.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80355
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KABAKCHIEVI v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The first applicant, Mrs Olga Timofeeva Kabakchieva, is a Russian national, who was born in 1917 and lives in Sofia. In 2006 the first applicant’s sons, M r Alexander Kabakchiev, born in 1947, and Mr Hristo Kabakchiev, born in 1957 (the second and the third applicants, both Bulgarian nationals), joined the proceedings before the Court.
The applicants were represented before the Court by Mrs S. Margaritova-Voutchkova, a legal adviser practising in Sofia. The respondent Government were represented by their agent Mrs M. Dimova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In March 1945, by decision of a State authority the first applicant and her husband were granted the right to use two rooms and the kitchen in an apartment in Sofia. In 1947, after the birth the second applicant, the competent authority allocated an additional room to the family. At that time the apartment, which covered 173 square metres, belonged to a private joint-stock company.
In 1947 the property of the company was expropriated without compensation. In 1950 the apartment at issue was allocated to the State Military Housing Fund at the Ministry of Defence. In 1951 the fund issued a tenancy order to the first applicant’s husband.
In 1968, at a time when he was Deputy Minister of Defence, the first applicant’s husband purchased the whole apartment from the Ministry of Defence. In accordance with the applicable rules of family law, the first applicant acquired half of the property.
In 1993 the heirs of the pre-nationalisation owners of the apartment brought an action against the first applicant’s husband under section 7 of the Restitution Law. The applicants were not parties to the proceedings.
On 18 October 1995 the District Court granted the claim. It found, inter alia, that the apartment had been purchased in breach of the relevant housing regulations as in force in 1968 since it had been significantly larger than permitted for a four-member family, as the applicants’. The court also found that certain procedural rules had not been complied with and that, in all likelihood, the first applicant’s husband had abused his position of Deputy Minister of Defence.
On appeal, on 14 July 1997 the Sofia City Court quashed the District Court’s judgment and dismissed the claim of the pre-nationalisation owners’ heirs. The court found that all relevant regulations as in force between 1945 and 1968 had been complied with and that the allegation that the first applicant’s husband had abused his position was groundless.
The heirs of the pre-nationalisation owners submitted a petition for review (cassation).
On 22 February 1999 the Supreme Court of Cassation quashed the Sofia City Court’s judgment and upheld the District Court’s judgment.
The Supreme Court of Cassation agreed that the allegation of abuse of office had not been proven. However, the apartment had largely exceeded the needs of the applicants’ family under the rules applicable at the relevant time. As a result, the title of the first applicant’s husband to the apartment at issue was null and void.
The judgment of 22 February 1999 was final and enforceable.
On an unspecified date shortly after February 1999 the first applicant, who had not been a party to the proceedings until then, submitted a request for reopening, stating that in accordance with the Code of Civil Procedure she should have been cited as a party since she was the owner of one half of the apartment at issue.
The first applicant’s husband died in May 1999. The first applicant and her two sons (the second and the third applicants) were his heirs.
By judgments of 30 January and 13 November 2001, the Supreme Court of Cassation quashed the judgments of 14 July 1997 and 22 February 1999 and reopened the case. The court found that, in violation of the relevant provisions of the Code of Civil Procedure, the first applicant had not been summoned as a party to the 1993-1999 proceedings.
All three applicants became parties to the reopened proceedings.
On 1 March 2004 the Sofia City Court decided to refer the case for renewed examination by the Sofia District Court. That decision was quashed by the Supreme Court of Cassation on 24 March 2005, as the reopened case fell to be examined by the Sofia City Court.
On 9 January 2006 the Sofia City Court found that the 1968 transaction was null and void, having regard to the fact that the apartment at issue had largely exceeded the applicants’ family’s needs as determined by the relevant housing regulations. The court thus upheld the District Court’s judgment of 18 October 1995.
The applicants appealed. The proceedings are currently pending before the Supreme Court of Cassation which listed a hearing for 20 June 2007.
In the meantime, between 2000 and 2004, there were separate rei vindicatio proceedings between the same parties regarding the same apartment. The proceedings ended in 2004 by judgment rejecting the pre-nationalisation owners’ claim, apparently on the basis that the proceedings under section 7 of the Restitution Law were still pending.
The applicants continue to possess the apartment at issue.
These are summarised in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.


ITEMID: 001-89877
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF SPINOV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: No violation of Art. 3 (material aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych
TEXT: 5. The applicant was born in 1983 and lives in Donetsk.
6. According to the police report, at about 7.30 p.m. on 29 November 2001 the applicant, who was drunk, grabbed a bag out of Ms C.’s hands and attempted to run away. Two uniformed police officers, Mr M. and Mr K., who were patrolling the area, heard Ms C.’s cry for help and saw the applicant running with the bag in his hands. They chased the applicant, caught him in the street, restrained him and took him to the nearby police station.
7. The applicant alleged that when passing Ms C. in the street he had slipped on the ground and grabbed her bag unintentionally. After that he stood up and moved away. Shortly afterwards he had been knocked down by a heavy blow to the head, lost consciousness and regained it only at the police station.
8. According to the applicant, some six police officers at the police station handcuffed him to the window frame and demanded that he confess. When he refused to do so he was beaten. The applicant states that he was allowed to phone his sister only after he had signed a confession. He also alleges that his sister and mother had to bribe a police officer to ensure that he was not detained pending trial.
9. On 30 November 2001 the applicant was released from the police station.
10. On 10 February 2003 the Kalininsky District Court of Donetsk convicted the applicant of an attempted robbery on 29 November 2001 and fined him 850 Ukrainian hryvnas (UAH). The applicant did not appeal against that judgment.
11. On 4 December 2001 a forensic medicine expert examined the applicant, on whom he found bruises on the body, abrasion of the left wrist joint and established that the applicant was suffering from concussion. The expert further concluded that these injuries, taken together, were minor.
12. According to a certificate issued on 5 December 2001 by a doctor at the local hospital, the applicant was suffering kidney pain as a post-traumatic effect of blows to his back.
13. Between 10 December 2001 and 2 January 2002 the applicant underwent medical treatment at the local hospital for the effects of concussion. According to his medical records, he was suffering from headache, general weakness and nausea. On admission to the hospital he alleged that he had been beaten by unknown persons.
14. On 14 January 2002 the applicant complained to the Prosecutor’s Office of Kalininsky District of Donetsk (“the District Prosecutor’s Office”) about the ill-treatment allegedly suffered by him.
15. On 24 January 2002 the District Prosecutor’s Office refused to institute criminal proceedings against police officers for the lack of any corpus delicti in their acts.
16. On 12 February 2002 the Donetsk City Prosecutor’s Office quashed the decision of 24 January 2002 as unfounded and remitted the materials for further inquiry.
17. On 25 February 2002 the District Prosecutor’s Office refused to open criminal proceedings against the police officers, finding that there was nothing to suggest that they had committed any crime.
18. On 18 March 2002 the Donetsk Region Prosecutor’s Office overruled the decision of 25 February 2002, stating that the inquiry had been conducted unsatisfactorily and remitted the case for further examination.
19. On 21 March 2002 the forensic medical expert issued an additional report in which he repeated his previous conclusion that the applicant had received bruises to the body, abrasion of the left wrist joint and had suffered concussion, which amounted to minor bodily injuries, and assumed that they could have probably been caused as alleged by the applicant.
20. On 15 April 2002 the Donetsk City Prosecutor’s Office refused to institute criminal proceedings against police officers due to the lack of any corpus delicti. This finding was based on the discrepancies in the applicant’s testimonies as to the number of police officers involved and the exact place where the beating had allegedly taken place. The fact that the applicant on admission to the local hospital had not indicated the police officers as the source of his injuries had also been mentioned.
21. On 13 June 2002 the Voroshylovsky District Court of Donetsk found that the inquiry was flawed, quashed the decision of 15 April 2002 and ordered a further inquiry. The court indicated, inter alia, that the investigative authorities had failed to establish or question persons who had seen the applicant before and after his detention in the police station and to scrutinise the circumstances surrounding the infliction of bodily injuries on the applicant.
22. On 8 August 2002 the Donetsk City Prosecutor’s Office decided not to institute criminal proceedings against the police officers, stating, inter alia, that the applicant’s allegations were inconsistent and unfounded.
23. On 10 October 2002 the Voroshylovsky District Court of Donetsk quashed the decision of 8 August 2002 and ordered further inquiry. The court specified, inter alia, that the authorities had failed to make a proper assessment of the testimonies of Ms C., who had seen the applicant on his arrival at the police station on 29 November 2001, bearing no noticeable signs of beating, and to the usher of the police station and Mr L., who had talked with the applicant next day when he was released.
24. On 13 December 2002 the Donetsk City Prosecutor’s Office refused to open criminal proceedings against the police officers, finding that the applicant’s allegations about ill-treatment at the police station had been inconsistent and that the injuries complained of could have been sustained at the scene of crime.
25. On 31 January 2003 the Donetsk Regional Prosecutor’s Office quashed the decision of 13 December 2002 and remitted the case for further inquiry into the circumstances in which the applicant received his injuries.
26. On 22 February 2003 the Donetsk City Prosecutor’s Office further questioned Mr K. and Mr M., who explained in detail, as far as they could remember, how they had arrested the applicant on 29 November 2001 and the injuries they might have inflicted on him. They admitted that when catching the applicant they had knocked him to the ground, inflicted several blows to restrain him and then handcuffed him.
27. On 3 March 2003 the forensic medical expert issued a supplementary report, in which he concluded on the basis of the additional material that the bodily injuries referred to could have been inflicted on the applicant by Mr K. and Mr M. on 29 November 2001 in the course of his detention at the scene of crime. He stated, in particular, that the bruises on the body as well as the concussion could have been received by the applicant when he was knocked to the ground and restrained by the officers; the abrasion of the wrist joint could have been caused by his being handcuffed.
28. On 25 March 2003 the Donetsk City Prosecutor’s Office refused to institute criminal proceedings against the police officers, stating in particular that the bodily injuries could have been caused to the applicant by Mr K. and Mr M. when catching him at the scene of crime but not at the police station.
29. On 30 June 2005 the prosecutor of the Donetsk Region Prosecutor’s Office quashed the decision of 25 March 2003, finding that the inquiry had been flawed, and remitted the case for further examination. He stated, inter alia, that the investigatory authorities had failed to question all the witnesses who saw the applicant on 29-30 November 2001. He further ordered that the relevant room of the police station be inspected with the participation of the applicant and a medical expert be appointed, who would be able to carry out an additional medical examination and clarify thereby the way the applicant received his bodily injuries.
30. On 20 July 2005 the General Prosecutor’s Office instituted criminal proceedings against the police officers for exceeding their powers combined with the ill-treatment of the applicant. It admitted that the inquiry into the applicant’s complaints about ill-treatment had not been conducted thoroughly, and that the instructions given by the courts and the higher prosecutors had not been followed.
31. By a letter of 30 July 2007 the District Prosecutor’s Office informed the applicant that on 29 March 2007 the criminal proceedings against the police officers had been closed for lack of corpus delicti in their acts.
32. The relevant provision of the Constitution reads as follows:
“Everyone has the right to respect for his or her dignity.
No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”
33. The relevant provisions of the Code of Criminal Procedure read as follows:
“The court, prosecutor or investigator must, to the extent that it is within their power to do so, institute criminal proceedings in every case where evidence of a crime has been discovered, take all necessary measures provided by law to establish whether a crime has been committed and the identity of the perpetrators and punish them.”
“Criminal proceedings shall be instituted on the following grounds:
(1) applications or communications from ... individuals;
...
(5) direct detection of signs of a crime by a body of inquiry or investigation, a prosecutor or a court.
A case may be instituted only when there is sufficient evidence that a crime has been committed.”
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-58187
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF RYLLO v. ITALY
IMPORTANCE: 4
CONCLUSION: Art. 6 inapplicable
JUDGES: C. Russo;N. Valticos;R. Pekkanen
TEXT: 7. Mr Giuseppe Ryllo, a retired headteacher, lives in Montecatini Terme (Pistoia).
8. On 8 September 1984 he took early retirement. On 2 June 1987 he asked to be reappointed to his former post, but on 2 July 1988 the Ministry of Education refused his request, in accordance with the unfavourable opinion of the National Education Council. Mr Ryllo then appealed to the Lazio Regional Administrative Court (“the RAC”), which, on 22 March 1989, set aside the Ministry's decision on the ground that no reasons had been given for it. On 5 May 1989 the applicant applied to be reinstated, but this request was likewise refused on 24 October 1989.
9. On 7 December 1989 the applicant again applied to the RAC for judicial review of the decision of 24 October.
On 17 January 1990 the applicant asked for a date to be fixed for the hearing and on 9 October of the same year he filed an application for the case to be set down for an urgent hearing.
10. On 24 November 1994 the case was set down for 1 March 1995.
11. On the day appointed the RAC gave judgment in the applicant's favour. The text of its decision was deposited with the registry on 23 October 1995.


ITEMID: 001-5295
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: M.C. v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Antonio Pastor Ridruejo
TEXT: The applicant is a Turkish citizen of Kurdish origin, born in 1961 and living in Aachen. He is represented by Mr Hofmann, a lawyer practising in Aachen.
On 6 June 1985 the applicant was issued with a penal order (Strafbefehl) by the Aachen District Court (Amtsgericht) for having entered the territory of Germany illegally, i.e. without a visa. The applicant was fined 20 day rates in the amount of 5 DM each.
Upon the applicant’s objection (Einspruch), trial proceedings were instituted before the District Court. In these and the following proceedings, the applicant was represented by his defence counsel, Mr Hofmann. At a hearing before the District Court on 17 January 1986, the applicant's counsel declared that asylum proceedings were pending. The court decided to adjourn the case sine die.
On 13 February 1987, in the resumed proceedings, the District Court convicted the applicant of having illegally entered the Federal Republic of Germany. The applicant was sentenced to a fine of 20-day rates in the amount of 5 DM each.
On 13 November 1987 the Cologne Court of Appeal (Oberlandesgericht), upon the applicant’s appeal on points of law (Revision), quashed the judgment of 13 February 1987 and sent the case back for a new trial.
On 16 November 1992 the District Court acquitted the applicant, who had in the meantime been recognised as a refugee, and imposed the costs of the proceedings on the Treasury. The District Court decided furthermore that it would deal with the applicant’s claim for compensation under the Act on Compensation for Criminal Prosecution Matters (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen) in separate proceedings. The judgment was served on the applicant on 11 December 1992.
On 3 March 1993 the District Court dismissed the applicant’s compensation claim.
On 15 July 1993 the Aachen Regional Court rejected the applicant’s appeal. It found that the Act on Compensation for Criminal Prosecution Matters provided compensation only and exclusively for damages resulting from conviction or other criminal prosecution measures enumerated in Section 2 of the Compensation Act. Compensation in respect of an excessive length of criminal proceedings was not comprised. Neither did the Convention provide for such a right. Moreover, the conditions for claiming compensation of the applicant’s provisional arrest were not met.

The applicant then lodged a constitutional complaint (Verfassungsbeschwerde), which was rejected by a group of three judges of the Federal Constitutional Court on 28 February 1994.


ITEMID: 001-93579
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KALETSCH v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Frank Kaletsch, is a German national who was born in 1966 and lives in Fernwald-Annerod. He was represented before the Court by Mr J. Pauly, a lawyer practising in Frankfurt/Main.
In 1991 the applicant was convicted of drug trafficking and sentenced to four years’ imprisonment. On 16 June 1993 the remainder of the sentence was suspended and the applicant released on probation.
As of 12 November 1993 the police investigated the applicant, suspecting a violation of the Narcotics Act (Betäubungsmittelgesetz) because of chemical purchases by the applicant on a large scale.
On 16 November 1993 the Gieβen District Court issued a search warrant relating to the applicant’s parents’ house, where he was then living, and ordered telephone surveillance measures. The court based its decisions on the suspicion of a violation of the Narcotics Act on the ground that the chemicals purchased by the applicant could be used to manufacture narcotics covered by the Narcotics Act.
In file notes dated 14 March 1994, 11 April 1994 and 26 May 1994 the investigators observed that it seemed that the applicant wanted to use the chemicals to manufacture new designer drugs not covered by the Narcotics Act. It was further observed that the new designer drugs might, however, fall within the scope of the Medicines Act (Arzneimittelgesetz) and its penal provisions.
On 19 July 1994 the applicant was arrested and subsequently remanded into custody.
On 19 and 20 July 1994 the house of the applicant’s parents was searched with the applicant’s consent on the basis of the search warrant issued on 16 November 1993. Chemicals found in the course of the search were seized with the applicant’s consent.
The applicant was questioned on 19 July 1994 and accused of a violation of the Narcotics Act. He remained silent and instead referred to a protective letter (Schutzschrift) he was carrying with him at the time of his arrest, in which he claimed that the use of the chemicals was purely for scientific purposes. In this letter he stated inter alia:
“2) Medicinal Products of the Medicines Act are o n l y those substances and preparations which are authorised as medicinal products or registered or are exempted from the need for authorisation or registration by ordinance (section 2 (4) Medicines Act) ...”
On 20 July 1994, after having heard the applicant, the Gieβen District Court issued an arrest warrant. The applicant remained in pre-trial custody until 31 October 1994, when the enforcement of the arrest warrant was suspended. On 7 March 1995 the arrest warrant was rescinded.
The pre-trial investigations were closed on 6 September 1994.
On 6 February 1995 the applicant was charged with two violations of the Medicines Act and two violations of the Narcotics Act.
On 23 February 1995 the indictment was served on the applicant’s defence lawyer.
On 8 August 1995 the defence lawyer requested the Gieβen Regional Court not to open the main proceedings.
On 2 January 1996 the Gieβen Regional Court declined to open the main proceedings.
On 22 January 1996 the prosecution submitted grounds for its appeal against the decision of 2 January 1996 to the Frankfurt Court of Appeal.
On 26 March 1996 and 9 April 1996 respectively the applicant himself and his defence lawyer filed submissions.
On 22 May 1996 the Frankfurt Court of Appeal directed the Gieβen Regional Court to open the main proceedings with regard to the alleged violations of the Medicines Act.
On 29 July 1996 the prosecution submitted a revised indictment, charging the applicant with the manufacture of medicinal products without authorisation in two cases, in one case in conjunction with placing on the market (Inverkehrbringen) unsafe medicinal products.
On 4 September 1996 the Gieβen Regional Court fixed the date of the trial for 4 February 1997, after the defence lawyer had indicated that he was tied up with business on the Regional Court’s regular trial days from October to December 1996, and since another case had already been scheduled for January 1997.
The trial on 4 February 1997 ended with the acquittal of the applicant. The Gieβen Regional Court argued that the manufactured substance, Methyl-Methaqualon, did not constitute a medicinal product as defined in section 2 § 1 no. 5 of the Medicines Act. With regard to the other substance, N-Methyl-3, 4-Mehylendioxyphenylbutanamin-2 (“MBDB”), the court reasoned that it could not be ruled out that it only constituted an intermediate (Zwischenprodukt) which did not fall within the scope of the Medicines Act.
The prosecution appealed the judgment and on 2 April 1997 submitted grounds for its appeal on points of law.
On 19 November 1997 the Federal Court of Justice held a hearing.
On 3 December 1997 the Federal Court of Justice set aside the judgment of the Gieβen Regional Court. The Federal Court of Justice argued that the Regional Court had applied an incorrect definition of “medicinal product”; Methyl-Methaqualon did in fact constitute a medicinal product as defined in section 2 § 1 no. 5 of the Medicines Act. If, as in the case at hand, the purpose of the substance could not be derived from objective criteria, consumer expectation or scientific assessment, the point of reference had to be the purpose pursued by the manufacturer, which in this case was the applicant’s intention to develop substances with the same or similar effects as narcotic substances without falling within the scope of the Narcotics Act as described in his protective letter. With regard to the substance MBDB the Federal Court of Justice argued that the development of an intermediate product could suffice for the alleged offence under the Medicines Act.
In January 1998 the files were referred back to the Gieβen Regional Court.
On 17 April 2001 the trial was listed for 18 September 2001 and 25 September 2001.
After the defence lawyer had indicated that he would not be able to attend the trial on 25 September 2001 the dates were changed to 21 September 2001 and 28 September 2001.
During the trial on 21 September 2001 the defence lawyer, referring to the recent case-law of the Federal Constitutional Court, objected to the use of the evidence found during the search of the applicant’s parents’ house since the search warrant had been more than six months old at the time of its execution (see relevant domestic law and practice below).
On 28 September 2001 the trial ended with the sentencing of the applicant to a cumulative prison sentence (Gesamtfreiheitsstrafe) of one year suspended on probation.
The applicant gave notice of his intention to appeal on points of law and submitted his statement of the grounds of appeal on 4 December 2001. He raised the issue of the length of the proceedings and challenged the use of the evidence found during the search of his parents’ house.
On 3 January 2002 the prosecution filed a counterstatement (Gegenerklärung).
On 15 March 2002 the attorney general (Generalbundesanwalt) filed a motion to dismiss the appeal with regard to the verdict (Schuldspruch) but, because of the length of the proceedings, to set aside the sentence (Strafausspruch) and remit the case in this respect.
On 2 April 2002 the applicant himself submitted another statement.
On 26 April 2002 the Federal Court of Justice dismissed the appeal on points of law with regard to the verdict, set aside the sentence and remitted the case to the Gieβen Regional Court for sentencing.
On 24 October 2002, following a trial hearing, the Gieβen Regional Court fixed two separate sentences of 7 months’ and 5 months’ imprisonment and imposed a cumulative suspended prison sentence of nine months for the manufacture of medicinal products without authorisation in two cases and a fine of EUR 1,000 as a condition of probation (Bewährungsauflage). In its reasoning regarding the sentence (Strafzumessung) the Regional Court expressly took into consideration the length of the proceedings.
On 17 December 2002 the applicant himself and on 20 December 2002 his defence lawyer appealed on points of law against this judgment, arguing that the proceedings should be discontinued because of the excessive length of the proceedings violating Article 6 of the Convention.
On 6 February 2003 the attorney general filed a motion to dismiss the appeal.
On 27 February 2003 the applicant filed a reply.
On 19 March 2003 the Federal Court of Justice set aside the sentence and once again remitted the case to the Gieβen Regional Court. The Federal Court of Justice argued that the judgment did not distinguish between the penalty which would have been adequate without considering the length of the proceedings and the sentence actually imposed, which had been reduced in view of the length of the proceedings.
At the end of April 2003 the files were referred back to the Gieβen Regional Court. Because the schedule of responsibilities (Geschäftsverteilungsplan) of the Regional Court did not provide for a third remittal, another criminal division (Strafkammer) was established on 22 May 2003.
On 18 June 2003 the main lay judges (Hauptschöffen) for the newly established criminal division were drawn by lot.
On 25 June 2003 a trial date was set for 9 July 2003.
On 4 July 2003 the defence lawyer complained about the composition of the court, arguing that the judges should have been drawn by lot.
On 8 July 2003 the Regional Court dismissed the complaint.
On 9 July 2003 the Regional Court imposed a cumulative suspended sentence of eight months for the manufacture of medicinal products without authorisation in two cases and a fine of EUR 1,000 as a condition of probation. In its reasoning regarding the sentence the Regional Court expressly acknowledged a violation of Article 6 § 1 of the Convention and in view of this reduced the adequate separate sentences of nine and six months’ imprisonment by one third to six and four months’ and the adequate cumulative sentence of one year’s imprisonment to eight months’ imprisonment.
On 12 August 2003 the written judgment was put on file; on 13 August 2003 it was served on the defence lawyer.
On 25 August 2003 the defence lawyer submitted grounds of appeal on points of law. He again raised the issue of the length of the proceedings.
On 4 September 2003 the prosecution filed a counterstatement.
On 12 September 2003 the applicant filed an appeal on points of law.
Because of a signature mistake new executed copies of the judgment were issued on 16 September 2003 and served on the defence lawyer on 7 October 2003.
On 6 November 2003 the applicant submitted further reasons for the appeal on points of law.
On 2 December 2003 the attorney general filed a motion to dismiss the appeal.
On 3 March 2004 the Federal Court of Justice dismissed the appeal without giving reasons.
On 20 June 2002 the applicant lodged a first constitutional complaint with the Federal Constitutional Court against the judgment of the Federal Court of Justice of 3 December 1997, the judgment of the Gieβen Regional Court of 28 September 2001 and the decision of the Federal Court of Justice of 26 April 2002. In his constitutional complaint the applicant challenged the alleged lack of legal certainty of the penal provisions of the Medicines Act in connection with the definition of “medicinal product”, the search of his parents’ house on the basis of an eight-month-old search warrant and the subsequent use of the evidence obtained in the course of this search, and the length of the then still pending proceedings.
On 8 May 2003 the applicant lodged a second constitutional complaint against the judgment of the Federal Court of Justice of 19 March 2003 and the judgment of the Gieβen Regional Court of 24 October 2002, again raising the issue of the length of the proceedings.
On 14 April 2004 the applicant lodged a final constitutional complaint against the judgment of the Gieβen Regional Court of 9 July 2003 and the decision of the Federal Court of Justice of 3 March 2004, arguing that the reduction of the sentence was not sufficient compensation for the excessive length of the proceedings.
On 16 March 2006 the Federal Constitutional Court refused to admit the applicant’s three constitutional complaints for examination on the ground that they were ill-founded (file no. 2 BvR 954/02). The Federal Constitutional Court denied a lack of legal certainty with regard to the penal provisions of the Medicines Act. The Federal Constitutional Court expressly acknowledged a violation of Article 13 of the Basic Law (inviolability of the home) by the execution of the search warrant eight months after its issue. However, the court argued that the judgment had not been based on this violation because in the case at hand the violation of Article 13 of the Basic Law did not entail the exclusion of the evidence obtained. The exclusion of evidence could only be considered if the procedural defects were severe, intentional or arbitrary. In the case at hand there was no intentional violation since it was only three years after the search that the Federal Constitutional Court had established a “date of expiry” for search warrants. The Federal Constitutional Court further argued that the overall length of the proceedings, while too long, was no reason for a discontinuation of the proceedings as submitted by the applicant. It rather had to be left to the lower courts to remedy an excessive length of the proceedings by reducing the sentence.
On 13 April 2006 the Federal Constitutional Court’s decision was served on the applicant’s lawyer.
Article 13 of the Basic Law (Grundgesetz), dealing with the inviolability of the home, prescribes in its paragraph 2 that a search of premises may - in principle - only be ordered by a judge.
In its decision of 27 May 1997 (file no. 2 BvR 1992/92) the Federal Constitutional Court held that this requirement of a judicial order (Richtervorbehalt) implied that a search warrant must be executed within six months of its issue. After six months the judicial search warrant loses its vindicatory power and the search then constitutes a violation of Article 13 of the Basic Law.
Section 2
“The term ‘medicinal product’
(1) Medicinal products are substances and preparations made from substances which, by application on or in the human or animal body, are intended (...)
5. to influence either the nature, the state or the functions of the body or mental health conditions. (...)
(4) As long as a product is authorised or registered as a medicinal product pursuant to the present Act, or is exempted from the need for authorisation or registration by ordinance, such product shall be considered a medicinal product. A product shall not be considered a medicinal product if its authorisation or registration has been rejected by the competent Higher Federal Authority, on the ground that it is not a medicinal product.”
Section 5
“Prohibition of unsafe medicinal products
(1) The placing on the market of unsafe medicinal products shall be prohibited.
(2) Medicinal products shall be considered unsafe if, according to the current level of scientific knowledge, there is reason to suspect that, when used in accordance with their intended purpose, they have harmful effects which exceed the limits considered tolerable in the light of current medical knowledge.”
Section 13
“Manufacturing authorisation
(1) Any person wishing to manufacture medicinal products within the meaning of section 2 sub-section 1 or sub-section 2 No. 1 ... on a commercial or professional basis for the purpose of dispensing to others, shall require an authorisation by the competent authority. ... Distribution to others, in the meaning of the first sentence, shall exist if the person manufacturing the medicinal product is not the same as the person using it. ...”
Section 95
“Penal provisions
(1) Any person who
1. contrary to section 5, ... , markets medicinal products suspected on reasonable grounds of being capable of causing harmful effects, ... shall be liable to imprisonment for a term not exceeding three years or to a fine.”
Section 96
“Penal Provisions
Any person who ...
4. in breach of Section 13 sub-section 1, manufactures medicinal products within the meaning of Section 2 sub-section 1 ... without authorisation, ...,
shall be liable to imprisonment for a term not exceeding one year or to a fine.”


ITEMID: 001-22688
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: GEORGIADES v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson
TEXT: The applicant, Mr Lefkos P. Georgiades, is a Cypriot national, who was born in 1919 and lives in Nicosia.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 January 1980, a building society (“the plaintiff”) lodged civil action no. 366/80 in the District Court of Nicosia against the applicant’s mother claiming an amount of 7,200 Cypriot pounds (“CYP”) for work done and for which the applicant’s mother had refused to pay on the ground that the plaintiff had failed to produce a certificate from the architect that the work had in fact been carried out.
The Government submit that the plaintiff had made the applicant a party to the action, naming him as defendant 1 in the relevant writ of summons and serving him with the writ, not in his personal capacity, but in his capacity as representative of his mother, Alexandra Georgiadou, and of Elli Meyes. According to the power of attorney, the applicant was duly authorised to act on their behalf in the proceedings. As from 13 March 1990, following the death of Alexandra Georgiadou and in accordance with a court order made in pursuance of an application filed by the plaintiff, the title of the action was amended and the applicant was made a defendant in his capacity as administrator of the estate of the deceased Alexandra Georgiadou as well as in his capacity as representative of Elli Meyes.
The applicant filed his defence on 2 October 1980, after having applied three times for an extension of the time-limit. These extensions were granted with the plaintiff’s consent.
On 2 October 1980 the applicant’s mother submitted a counterclaim for the sum of CYP 13,191 for building defects and delays.
The pleadings were completed on 11 November 1980. On 7 April 1981 the District Court set down the case for directions for 1 June 1981.
The hearing fixed for 14 November 1981 was adjourned by the District Court to 18 December 1981. An interim application filed by the applicant on 23 December 1981 was adjourned three times with the consent of the parties and then granted on 23 January 1982.
The hearing was fixed for 15 November 1982. However, on that date it was adjourned first until 11 April 1983 and then until 12 October 1983. On that last date the applicant proposed a further adjournment in order to modify his defence. He filed the modified defence on 21 January 1984. On 23 May 1984 and 13 December 1984 the District Court adjourned the hearing for want of time.
On 6 May 1985 both parties requested the adjournment of the hearing fixed for that date in order to refer the case to arbitration. However, on 9 June 1985 the applicant changed his mind and the court set down the action for a hearing on 21 February 1986. On that date the hearing commenced, but it was again adjourned at the applicant’s request in order to prepare the defence in the light of the testimony given by a witness for the plaintiff.
The hearing was fixed for 2 June 1986. However, it was adjourned twice at the applicant’s request until 11 December 1987. In the meantime, there had been a change to the composition of the District Court and the action, already heard in part, was fixed for a hearing de novo for 18 May 1987. Subsequently, the hearing was again adjourned at the request of the applicant’s lawyer or the plaintiff’s lawyer.
On 31 January 1990 the hearing was adjourned owing to the death of Alexandra Georgiadou, which necessitated the filing of an application by the plaintiff to amend the title of the action. The pleadings with the amended title were closed on 3 June 1990. On 5 June 1990 the applicant wrote to the court asking it to schedule the hearing for a date sometime after the end of October 1990. He gave as his reason that he would be abroad up until that time. The court set down the case for directions on 6 May 1991 and fixed the date of the hearing for 14 October 1991. The hearing commenced on that date, but was adjourned until 28 January 1992 upon the plaintiff’s request. It had to be again adjourned until 14 February 1992 owing to pressure of business of the District Court. It was further adjourned until 17 March 1992 upon the joint request of the parties and again until 3 July 1992. On that last date the court adjourned the action for directions following the applicant’s request that the case be scheduled to be heard after the summer recess as the appointed referee was absent abroad and was not expected to return within the next two months.
The action was again adjourned twice for directions until 21 December 1992 and 19 February 1993 on the joint application of the parties in order to enable the referee to complete his report. The report was eventually prepared on 12 March 1993. On 10 May 1993, the date on which the directions hearings was to take place, the applicant failed to appear before the District Court. On 14 April 1993 he filed an application seeking a court order to set aside the referee’s report. The action was again adjourned twice pending the outcome of this application. The hearing on the application was held on 13 January 1994. Following this hearing, the parties agreed to set aside the referee’s report and to appoint an arbitrator by agreement. On 27 September 1996 the District Court of its own motion fixed the case for directions for 17 October 1996 and gave notice to the parties to appear before it on that date.
On 7 November 1996 the District Court stated that, in view of the fact that the applicant had failed over the course of two years to make an application to have the action set down for hearing and that the parties had failed to fulfil their undertaking of 13 January 1994 to appoint an arbitrator, it had to determine whether to dismiss both the action and counterclaim. On 14 November 1996 the District Court decided to set down the action for trial in view of the applicant’s declared wish not to have recourse to arbitration.
The District Court accordingly fixed the action to be heard de novo on 10 January 1997, having regard to the parties’ proposal of 14 November 1996 to have the hearing date fixed for the month of January. However, the hearing was adjourned until 18 April 1997 and again until 20 October 1997 at the request of the parties. On that last date the hearing was adjourned again as a result of the withdrawal of the plaintiff’s lawyer. On 25 November 1997 the court fixed the hearing for 11 March 1998. However, on 12 March 1998 the parties agreed to submit the dispute to arbitration and designated an arbitrator by agreement.
On 15 September 2000 the decision of the arbitrator was delivered and confirmed by the District Court.