ITEMID: 001-119052
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF DOMANČIĆ v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Elisabeth Steiner;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 4. The applicant was born in 1949 and lives in Zagreb.
5. On 9 October 1992 the applicant brought a civil action in the Gospić Municipal Court (Općinski sud u Gospiću) against the company T.G. challenging her dismissal from work. She also sought damages and salary arrears.
6. At the hearing held on 23 August 2006 the first-instance court suspended the proceedings (mirovanje postupka) as neither party attended the hearing.
7. On 18 December 2006 the applicant asked the court to resume the proceedings. The court did so and scheduled the next hearing for 10 January 2007.
8. On 23 December 2006 the applicant asked for transfer of jurisdiction from the Gospić Municipal Court to the Zagreb Municipal Court but her request was eventually dismissed. That decision was served on her on 22 February 2007.
9. As neither party attended the hearing held on 7 March 2007, the Gospić Municipal Court issued a decision declaring that the applicant’s action was considered withdrawn, pursuant to the Civil Procedure Act.
10. On 2 April 2007 the applicant lodged a request to restore the proceedings to their previous position (restitutio in integrum ob terminem elapsum, povrat u prijašnje stanje) but the first-instance court dismissed her request on 3 March 2008.
11. Following an appeal by the applicant, on 27 May 2008 the Gospić County Court (Županijski sud u Gospiću) reversed the first-instance decision and allowed the applicant’s request to restore the proceedings to their previous position.
12. In the resumed proceedings, the Gospić Municipal Court held five hearings. At the hearing held on 15 December 2010 the court pronounced the operative part of the judgement. It declared the applicant’s dismissal from work wrongful, allowed her claim for salary arrears in part and dismissed her claim for damages.
13. Following a request of the judge appointed to hear the case, on 10 February 2011 the President of the Gospić Municipal Court granted an additional thirty-day time-limit for the judgement to be prepared in writing and dispatched to the parties.
14. According to the Government, the judgement had been prepared on 28 March 2011 and then, on 30 March 2011, dispatched to the parties. It was served on the applicant’s representative on 1 April 2011.
15. Following an appeal by the applicant, on 13 October 2011 the Karlovac County Court (Županijski sud u Karlovcu) reversed the first-instance judgment by allowing her claim for damages.
16. Meanwhile, on 9 December 2009 the applicant lodged a request for the protection of the right to a hearing within reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Gospić County Court.
17. On 12 February 2010 the Gospić County Court found a violation of the applicant’s right to a hearing within reasonable time, awarded her HRK 14,0001 in compensation and ordered the Gospić Municipal Court to give a decision in her case within eleven months of the service of its decision. The County Court’s decision was served on the Gospić Municipal Court on the same day, that is, on 12 February 2010.
18. The applicant appealed arguing that the compensation she had been awarded was too low. On 31 August 2010 the Supreme Court dismissed her appeal and upheld the Gospić County Court’s decision.
19. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/05, 16/07 and 113/08), governing the request for the protection of the right to a hearing within a reasonable time, as the remedy for the length of judicial proceedings in Croatia, are set out in Praunsperger v. Croatia, no. 16553/08, § 21, 22 April 2010.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68862
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF LO TUFO v. ITALY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Christos Rozakis
TEXT: 5. The applicants were born in 1968 and 1964 and reside in London and Florence, respectively.
6. C.S. was the owner of a flat in Florence, which she had let to M.P.
7. On 21 December 1989 the applicants became the owners of the flat.
8. The applicants served formal notice on the tenant on 21 February 1990, informing him that they intended to terminate the lease when it expired on 30 June 1991, requiring him to vacate the premises by that date and giving him notice to appear before the Florence Magistrate's Court.
9. In a decision of 18 June 1990, that court formally fixed the termination of the lease for 15 November 1993 and ruled that the premises would have to be vacated by 15 September 1994. The decision became enforceable on 17 July 1990.
10. On 17 November 1994 one of the applicants, Mrs Ilaria Lo Tufo, signed a statutory declaration to the effect that she urgently needed to recover the use of the flat for her own accommodation.
11. On 25 May 1995 the applicants served notice on the tenant requiring him to vacate the premises.
12. On 3 August 1995 they served notice on the tenant indicating that he would be evicted on 5 October 1995 by a bailiff.
13. Between 5 October 1995 and 1 October 1998 a bailiff made sixteen attempts to evict the tenant but each attempt proved unsuccessful. The applicants never obtained police assistance for the enforcement of the eviction.
14. On 21 July 1999, relying on section 6 of Law no. 431/98, the tenant applied to the District Court for a stay of execution of the eviction. The court stayed the execution until 23 September 1999.
15. In October 2000 the tenant spontaneously vacated the premises and the applicants were able to recover the use of their flat.
16. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the government decreed statutory increases), by the statutory extension of all current leases and by the suspension or staggering of the enforcement of orders for possession. With respect to the extension of leases and the suspension or staggering of the enforcement of orders for possession, the relevant domestic law is set out in the Court's judgment in the case of Immobiliare Saffi v. Italy ([GC], no. 22774/93, §§ 18-35, ECHR 1999-V).
17. Lastly, Legislative Decree no. 147 of 24 June 2003, which later became Law no. 200/03, suspended the enforcement of certain orders for possession until 30 June 2004.
18. By Legislative Decree no. 240 of 13 September 2004, the suspension was extended until 31 October 2004.
19. The history of legislative developments in the area of rent control may be summarised as follows.
20. The first relevant measure was Law no. 392 of 27 July 1978, which provided for a system of “fair rents” (equo canone) on the basis of a number of criteria such as the surface area of the flat and the cost of its construction.
21. The second was adopted by the Italian authorities in August 1992, with a view to the progressive liberalisation of the rental property market. Legislation relaxing rent level restrictions (patti in deroga) then came into force. Owners and tenants were in principle given the opportunity to derogate from the rent fixed by law and to agree on a different amount.
22. Lastly, Law no. 431 of 9 December 1998 reformed the tenancy regulations and liberalised rents.
23. The tenant is under a general obligation to compensate the landlord for any loss caused by the belated return of the accommodation. In this connection, Article 1591 of the Civil Code provides:
“Tenants who fail to vacate premises are under an obligation to pay the landlord the agreed amount until the date of their departure, together with compensation for any other loss.”
24. However, Law no. 61 of 21 February 1989 provided, inter alia, that the compensation claimable by the landlord would be limited to the amount of the rent paid by the tenant at the time of the expiry of the lease, index-linked to the cost of living (section 24 of Law no. 392 of 27 July 1978) and increased by 20%, in respect of the whole period in which the landlord had been unable to recover possession of his property.
25. On a number of occasions the Constitutional Court has been called upon to consider whether the statutory system for the extension of leases and for the suspension or staggering of the enforcement of orders for possession was compatible with the Constitution in terms of the right to peaceful enjoyment of property and the reasonable-time requirement. It has also been requested to rule on the issue of the limitation to the compensation that a landlord is entitled to claim.
26. In response to the first question, the Constitutional Court gave a number of judgments between 1984 and 2004 (in particular, judgments nos. 89 of 1984, 108 of 1986 and 155 of 2004) in which it found that the legislative measures were compliant, being justified by their transitional and limited nature. In the last of the above-mentioned judgments, in particular, the Constitutional Court asserted that, even though the legislature had a duty to make provision for individuals who were particularly destitute, the burden could no longer simply be transferred exclusively to the landlord, who might himself be in a situation of hardship. Moreover, the future continuation of the same legislative logic could no longer be perceived as legitimate.
27. As to the second question, in judgment no. 482 of 2000 the Constitutional Court confirmed that compensation could be limited during the periods determined by law for the suspension of evictions. It explained that the introduction of such limits was intended to govern tenancies concerned by the emergency legislation currently in force, and that the housing shortage made such suspension of enforcement necessary. Whilst evictions were suspended ex lege, the law also determined the quantum of the compensation that could be claimed from the tenant, both measures being temporary and exceptional. Besides, to compensate landlords to some extent, they had been exempted from having to prove that they had suffered a loss.
28. The Constitutional Court declared the limitation to the compensation claimable by the landlord unconstitutional in cases where the inability of the landlord to recover possession stemmed from the conduct of the tenant rather than from any legislative intervention.
29. The court thus opened the way for landlords to bring civil proceedings in order to obtain full compensation for the loss caused by the tenant.
30. In its judgment no. 1463 of 5 February 1993, the Court of Cassation held that Article 1591 of the Civil Code did not prevent the parties concerned from agreeing in advance on the amount of the compensation, so that the landlord would not be obliged to adduce evidence of the sum lost.
31. In its subsequent judgment no. 7670 of 12 July 1993, the Court of Cassation explained that a delay in the return of the property could only, by itself, justify a general finding that the tenant should pay compensation for the loss sustained by the landlord, who would be required to provide specific evidence of that loss in relation to the condition and location of the property and its potential use. In that particular case, the Court of Cassation upheld the decision of the court below, which had dismissed the landlord's claim for compensation on the ground that he had not submitted evidence of the loss actually sustained by producing specific documents concerning precise offers to rent the property or agreements with prospective tenants on rent rates.
32. In judgment no. 10270 of 1 December 1994, the Court of Cassation considered that the loss sustained by a landlord could also be evaluated on an equitable basis.
33. In judgment no. 5927 of 27 May 1995, the Court of Cassation established that the limiting of the compensation to which a landlord was entitled only applied in respect of periods during which the suspension of evictions had been provided for by law.
34. In judgment no. 6359 of 6 June 1995, the Court of Cassation confirmed that the landlord was obliged to provide evidence of precise offers to rent or purchase the property, in order to substantiate the loss claimed on the basis of a shortfall in rent or an inability to sell the flat. The same principle was subsequently confirmed by judgments nos. 4864 of 14 April 2000 and 9545 of 1 July 2002.
35. In judgment no. 1032 of 10 February 1996, the Court of Cassation held that the loss sustained by the landlord could be proved simply by a request for a higher rent, determined on the basis of the amount that he could have charged on the free market.
36. Lastly, in judgment no. 10560 of 19 July 2002, the Court of Cassation laid down the principle that the tenant is considered to have been given notice to quit as soon as the lease agreement expires, regardless of the eviction date set by the judge.
37. In judgment no. 3873 of 26 February 2004 the Court of Cassation ruled on the issue of police assistance.
38. That judgment was given in a case arising from a claim for compensation lodged by a number of landlords against the Ministry of the Interior in 1990.
39. In particular, they were claiming reimbursement for losses sustained as a result of a delay in recovering their property that was attributable, in their view, to the fact that they had not been provided with police assistance.
40. A bailiff had made twenty-one attempts to gain access and nineteen of them were unsuccessful. According to the landlords, only six of those attempts were made during periods when evictions were subject to legislative suspension.
41. In the other thirteen cases, the claimants asserted that the authorities had not provided evidence of any force majeure that made it absolutely impossible for them to grant the necessary police assistance.
42. At first instance the Rome District Court found in favour of the claimants and awarded them the sum of 177,886,610 lire (91,870.77 euros) in compensation. The Ministry appealed and the judgment was set aside by the Rome Court of Appeal on the ground that, in view of the public policy imperatives cited by the authorities, the claimants had not provided evidence to show that the refusal to grant police assistance was unjustified. The claimants appealed on points of law.
43. The Court of Cassation observed that, in judgment no. 2478 of 18 March 1988, sitting in plenary, it had laid down the principle that a landlord who has obtained an enforceable judgment in his favour is entitled to apply to the authorities for any acts required for the purpose of enforcement, including police assistance. It was thus an obligation rather than a discretionary power of the authorities.
44. The Court of Cassation further observed that, in judgment no. 5233 of 26 May 1998, sitting in plenary, it had held that as a consequence of that principle any inability of the authorities to comply with their obligation should be subjected to a stringent test. In particular, the question whether the police authority had legitimately refused to provide assistance on the date and at the time indicated by the bailiff was to be assessed by taking into account whether any alternative time, or even date, had been proposed, and if any reasons had been given, in each specific case, to justify the refusal.
45. The Court of Cassation moreover stated that the police authority enjoyed a margin of discretion as to the actual time when its assistance was to be allocated.
46. Except where the inability to comply is caused by force majeure, if the competent authority refuses to grant such resources in spite of a request from a bailiff, the landlord should be entitled to lodge a claim with the ordinary courts seeking compensation from the authorities for the loss sustained as a result of the refusal.
47. The Court of Cassation reiterated the principle set out in judgments nos. 8827 and 8828 of 31 May 2003 that reparation in the form of compensation was the minimum guarantee necessary to uphold an impaired right in cases where the resulting damage interfered with an interest protected by the Constitution. It held that the right to execution of the order contained in an enforceable judgment had to be regarded as such a right, because the possibility for a person to bring legal proceedings seeking the protection of his or her rights extended to the enforcement of final and binding judicial decisions.
48. The Court of Cassation quashed the judgment of the Rome Court of Appeal and referred it back to the lower courts for reconsideration. It stated as a matter of principle that, when compensation claims were brought against public authorities by landlords complaining of damage because an eviction order had not been executed or its execution had been delayed, it was for the authorities to prove that they had been prevented from allocating police assistance. Such a defence would only release the authorities from responsibility, in particular, if it arose from extraordinary and unforeseeable imperatives. In this connection, the Court of Cassation emphasised that any permanent crisis situations, such as those affecting the judicial system or public authorities, did not preclude responsibility for damage caused to individuals, but, on the contrary, might constitute the origin of such responsibility. In particular, the “crisis” in the Italian court system had not helped the State to avoid a number of unfavourable judgments by the European Court for the excessive length of judicial proceedings, and currently did not preclude such findings by domestic courts pursuant to Law no. 89 of 24 March 2001 (the “Pinto Act”).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-111198
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: M.R. AND L.R. v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The first applicant, Ms M.R., is an Estonian national who was born in 1981. The second applicant, Ms L.R., is an Estonian and Italian national who was born in 2009. The President decided that their identity should not be disclosed to the public (Rule 47 § 3). The applicants live in Kõrveküla, Tartu County. They were represented before the Court by Mr T. Pilv and Ms H. Jürimäe, lawyers practising in Tartu.
3. The first applicant met R., an Italian national and the father of the second applicant, their daughter, during her studies in the Netherlands. They developed a relationship and after completing her studies she often stayed with R. in Arluno near Milan. On 30 June 2009 the second applicant was born in Italy. After the birth of the child, relations between the parents deteriorated. According to the first applicant she suffered mental abuse from R. Allegedly, R. had only wished to bring the child up in accordance with Italian traditions and with assistance from his parents, whereas the first applicant’s opinions had been disregarded. R. had worked long hours and had barely participated in taking care of the child.
4. The applicants travelled to Estonia on a number of occasions, including for three weeks starting from 26 December 2010. Thereafter, they went to Estonia on 2 March 2011 with R.’s consent. However, they did not return to Italy on 11 March 2011, as had been agreed, but stayed in Estonia.
5. On 7 March 2011 the first applicant asked the Tartu County Court to award her sole custody of the child.
6. On 16 March 2011 R. travelled to Estonia. He wished to see the child but refused to do so in a law firm, as proposed by the first applicant. However, he met the first applicant who gave him the keys to his apartment in Italy at his request.
7. On 29 March 2011 R. made a request to the Italian Ministry of Justice for the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). On 13 April 2011 the Italian authorities forwarded the request to the Estonian Ministry of Justice and on 10 May 2011 it was sent to the Tartu County Court.
8. The County Court dealt with the requests of both parents in the same proceedings. A hearing took place on 27 May 2011, with the participation of the first applicant, R., the second applicant’s State-appointed lawyer and a social worker from the Tartu rural municipality where the applicants resided in Estonia. At the closure of the hearing, the court announced that it would make its ruling after the receipt of an opinion from the Italian child protection services. The subsequent proceedings were conducted in writing.
9. On 30 May 2011 the County Court issued a temporary injunction concerning R.’s access rights to the child according to which he could meet her in the presence of her mother and a third person of his choice. This arrangement was later amended by the court so as to enable the first applicant to be also accompanied by a person of her choice during the meetings. R. met the child on four weekends between May and July 2011. At least at some of the meetings both Italian and Estonian psychologists were present. According to the first applicant, R. subsequently ceased to show interest in the child.
10. On 1 July 2011 the County Court notified the first applicant that she had until 1 August 2011 to send them her written submissions concerning R.’s claim for the return of the child to Italy. It informed her of its intention to rule on the matter by 15 August 2011 at the latest. In her submissions the first applicant referred to the need for several items of evidence yet to be received (opinion of the Tartu rural municipality, medical expert opinion, and additional information from the Italian authorities) and requested the postponement of the County Court’s ruling until the receipt of further evidence. She raised the issue of the child’s sexual abuse by R. The first applicant also submitted to the court written statements from a number of persons (her mother and other relatives, friends, colleagues and a teacher) describing the relations between the parties and R.’s abusive behaviour, as well as a psychotherapist’s observations based on the first applicant’s counselling. According to a note by a child psychiatrist the child was restless and nervous and had sleep disorders; it was suggested that the meetings with R. be conducted at home in a secure environment.
11. On 25 August 2011 the Italian Ministry of Justice transferred to its Estonian counterpart a report by the Magenta Children and Family Protection Centre. It was noted that no extensive replies to the questions formulated by the Estonian authorities could be given on the basis of the information gathered. The Italian authorities had met R. and his parents and visited R.’s residence. They had also met the first applicant’s music teacher. It was noted in the report that R. had a controlling and egocentric character and traits of dependence. Latent depressive tendencies could be seen in R.’s family of origin where the woman’s natural role was seen as that of taking care of children, even at the expense of her professional self-fulfilment. A family pattern of this kind could have also been established in the relationship between R. and the first applicant and caused her uneasiness. It was noted that R. had denied that his mother had been treated for mood disorders, although this had been the case. Lastly, it was noted that in order to conclusively answer the questions posed it was necessary to assess both of the parents and to observe the father’s relationship with the child.
12. On 23 September 2011 a psychology expert drew up a written opinion at the request of the County Court. She had met the applicants on 1 and 5 September 2011. In response to the County Court’s questions she noted that it was not possible to decide on the issue of sexual abuse as alleged by the first applicant. In respect of whether her transfer to Italy would cause her serious mental suffering, the expert noted that the child needed a secure, customary and stable environment, that she had a close attachment relationship with her mother and that her separation from her mother would definitely cause her serious mental suffering and could have a serious life-long negative influence on her. At the age in question the child and mother belonged together. Even if the mother could stay in Italy without being prosecuted, she would be fully dependent on the child’s father and at risk of mental and physical violence; there would be a resurgence of the situation from which the mother had escaped from Italy. Traumatisation of the mother would have a negative effect on the child’s development. The expert concluded that in these circumstances the return of the child to Italy would cause her serious mental suffering and would definitely not proceed from the child’s well-being and needs.
13. On 28 September 2011 the first applicant submitted further written observations and documentary evidence to the County Court and noted, inter alia, that all the relevant circumstances had not been established and that the court’s delivery of its ruling on the matter should be postponed.
14. By a decision of 7 October 2011 the Tartu County Court ordered the second applicant’s return to Italy pursuant to the Hague Convention. It established that the child had resided in Italy together with her parents until 2 March 2011 and that this finding was not affected by the first applicant’s argument that she had only studied and temporarily lived in that country. The court further established that the parents had joint custody of the child in Italy; the father had consented to the child’s travelling to Estonia but not to her settling in Estonia. The court found that the retention of the child in Estonia was wrongful within the meaning of Article 3 of the Hague Convention and that the father was entitled to claim her return under Article 12. In respect of the question whether the return of the child was excluded under Article 13 § 1 (b) of the Hague Convention, the court noted that it had to consider the information concerning the child’s social background provided by the central authority or other competent authority of the child’s habitual residence. It referred to the Estonian Supreme Court’s judgment of 6 December 2006, according to which a child could only not be returned on the basis of Article 13 § 1 (b) of the Hague Convention if this would result in extremely serious damage to the child’s well-being. Such exceptional threat to the child’s well-being had to be sufficiently specific and probable.
15. The County Court considered that the second applicant’s return to Italy would not cause her more suffering than it would an average two-year-old. On the basis of evidence at the court’s disposal (expert opinion by a psychologist and information from the kindergarten) it could not be concluded that the father had ill-treated the child or been violent towards the first applicant. Nor could it be established on the basis of the information provided by the Magenta child protection agency that the child’s return to Italy would be contrary to her interests. As the Italian authorities had referred to the need to monitor relations between the father and the child, their supervision of what was going to happen in the family was ensured. The court noted that pursuant to the Hague Convention the child was not returned to the other parent but to the other country; therefore, the court did not find the first applicant’s arguments about the separation of mother and child relevant. A close relationship between the mother and child would also contribute to the child’s sense of security in Italy where she had been living until 2 March 2011. R. had confirmed at the court’s hearing that he was ready to provide the applicants with lodging and subsistence. The conflict between the parents could not determine the choice of the child’s country of residence; these matters could be taken into account in the determination of the parents’ rights of custody. The first applicant’s arguments related to her impossibility to return to Italy because of the risk of arrest were irrelevant because the Italian authorities could in any event make use of the European arrest warrant. The court concluded that there were no circumstances that allowed dismissing the request for the second applicant’s return to Italy.
16. The court acknowledged that the second applicant had developed certain routines and a feeling of security in Estonia. Nevertheless, courts could not favour a parent altering a child’s country of residence without the consent of the other parent. The first applicant should have sought the determination of her custody rights in the first place and only thereafter changed her and – depending on the custody rights awarded – the child’s residence.
17. The County Court ruled that it had no jurisdiction over the first applicant’s claim for sole custody as the child was to be returned to Italy. The court dismissed the first applicant’s requests for a further hearing to be held, for her and witnesses to be examined and for a psychiatric expert examination of R. to be ordered. It noted that owing to exceptional circumstances (delayed receipt of the reply from the Italian social services and the lodging of complaints of abuse) it had not been able to resolve the matter within six weeks. Nevertheless, further suspension of the proceedings was not possible but it was open to the first applicant to make the requests in question in the proceedings concerning the custody rights.
18. The applicants appealed against the County Court’s decision, requesting the dismissal of R.’s request for the second applicant’s return to Italy and resumption of the examination of the first applicant’s claim for sole custody of the second applicant. The first applicant submitted to the Tartu Court of Appeal, inter alia, an extract of the second applicant’s medical record according to which the applicants had been examined in a psychiatric department of the Tallinn Children’s Hospital in October 2011. It had been found that the child had a secure attachment relationship with her mother and that in the event of the continuation of the stressful period related to the court proceedings the mother and child would need psychological support.
19. By a decision of 12 December 2011 the Tartu Court of Appeal upheld the first-instance court’s ruling. It considered that the child had lived with her parents in Italy until 2 March 2011 and had become accustomed to her social and family environment in that country. It was natural that she had also developed such relations in Estonia after her unlawful retention but neither this nor the child’s earlier visits to Estonia meant that her habitual residence was in Estonia. The Court of Appeal agreed with the County Court’s finding that the return of the child was not excluded under Article 13 of the Hague Convention. It considered that according to the spirit of the Hague Convention the child’s swift return to her habitual living environment was presumed to be in her best interests. This also had a general preventive effect ensuring that parents would not take their children unlawfully to another country. Accordingly, a child could only not be returned in exceptional circumstances.
20. The Court of Appeal was of the view that the second applicant’s return to Italy would not necessarily lead to her separation from her mother and accordingly the related arguments of the appeal were unfounded. It referred to several items of evidence adduced by R. including, inter alia, an opinion of Italian experts, according to which the child’s return to Italy was in her interests, and a notice from the kindergarten the second applicant had attended in Italy, according to which there had been nothing to indicate the use of physical or mental violence against the child. The Court of Appeal concluded that the second applicant would not be placed in an intolerable situation upon her return to Italy and that the first applicant’s claims of the abuse of the child by her father were groundless.
21. The Court of Appeal noted that the evidence adduced by the first applicant, which the first-instance court had disregarded, did not demonstrate reliably that R. had abused the child. The psychology expert who had examined the second applicant had not confirmed that she had been abused by her father. The expert’s opinion that the child’s return to Italy would cause her serious suffering had been based on the first applicant’s groundless claim that the child would be separated from her on return. The Court of Appeal noted that the first applicant had confirmed at the County Court’s hearing that R. had not been violent towards the child and only later in the proceedings had she claimed that R. had abused the child. The Court of Appeal was in agreement with R.’s opinion that the first applicant had raised the accusation about the abuse of the child in order to justify her retention in Estonia. The allegation of abuse had not been raised in Italy or immediately after the applicants’ arrival in Estonia; it had only been made to the police on 12 July 2011. The Court of Appeal considered the first applicant’s allegations of abuse were not credible. The parents’ mutual accusations indicated that there were strained relations between them but did not in themselves prove the existence of the grounds for refusing the return of the child under Article 13 § 1 (b) of the Hague Convention.
22. The Court of Appeal referred to the Supreme Court’s judgment of 6 December 2006, according to which a child could only not be returned on the basis of Article 13 § 1 (b) of the Hague Convention if this would result in extremely serious damage to the child’s well-being. The harmful effects that could arise from the separation of the child from the parent could be avoided by the return of the child together with the parent in question.
23. On 6 February 2012 the Supreme Court declined to examine appeals lodged by the first applicant and the second applicant’s representative.
24. On 22 February 2012 the Supreme Court refused to reopen the proceedings.
25. On 29 February 2012 the first applicant received a bailiff’s notice (deposited on 28 February 2012), according to which the child had to be returned to Italy within ten days.
26. On 15 April 2011 R. made a request to the Milan Youth Court seeking the return of the child and a prohibition on her leaving Italy; he also claimed sole custody of the child with visitation rights accorded to the first applicant. On 2 May 2011 the Youth Court suspended the proceedings. It appears that a time-limit was subsequently set for R. to settle the case, regard also being had to the proceedings pending in Estonia, and that the first applicant’s submissions in English were not admitted by the Youth Court. Pursuant to the Milan Youth Court’s provisional ruling of 23 December 2011, the first applicant was ordered to return the child to Italy to her father to whom sole custody of the child was accorded. In the event of her failure to do so she would lose her parental rights. The Arluno Social Services were requested to take the matter under their supervision and arrange the meetings between the child and the mother in a neutral environment as well as give the court feedback about the relationship between the child and each of the parents.
27. A hearing before the Milan Youth Court took place on 2 March 2012 with the participation of the first applicant and R. According to the first applicant, the court considered that she and the child should move into R.’s residence for two weeks and stay there with R. and a psychologist or psychiatrist of his choosing. Thereafter the mother’s access rights to the child would be terminated and the child would remain under the supervision of social workers.
28. On 12 July 2011, in Estonia, the NGO Järva Naiste Varjupaik (Järva Women’s Shelter) reported R. for sexually assaulting the second applicant on the basis of information received from the first applicant in the course of counselling. On 22 July 2011 the first applicant was interviewed by a police investigator. She submitted that she had seen R. sexually abusing their daughter in the summer of 2010. The first applicant further submitted that in February 2010 R. had pushed her over while she had been holding the then seven-month-old child.
29. A similar criminal investigation was opened in Italy on the basis of the first applicant’s complaint of 5 August 2011. On 6 October 2011 the police informed the Milan Prosecutor’s Office of the state of the investigation. According to the information provided, the first applicant’s music teacher and R.’s former wife had been interviewed in September 2011. The first applicant had talked to the music teacher about her problems with R. and his parents and had also made comments about R.’s behaviour towards their daughter. R.’s former wife had described R. as reliable and affectionate in a relationship, and said that he had never been violent, aggressive, disrespectful, controlling or jealous. What had been decisive for ending their marriage had been the influence that R.’s parents, particularly his father, had exercised over him. Such influence had never been contested by R. who had had very strong ties, verging on dependence, with his family. She had also made reference to R.’s obsession with cleanliness. The police also examined a report by the Italian Embassy in Tallinn concerning the second applicant’s living conditions in Estonia – which were described in positive terms – and information from the Magenta child protection agency. In respect of the alleged sexual abuse, the police considered that there was a lack of information allowing this to be put into context and found that a precise understanding of the circumstances and sequence of the events was necessary for assessing their criminal relevance or their inappropriateness from a parental education point of view. The information available demonstrated the first applicant’s difficulty in living with R., above all in relation to the interference and influence exercised by his father. At the same time, nothing had emerged to suggest that R. was sexually deviant. Lastly, the police noted that there were separate criminal proceedings pending concerning child abduction and detention abroad in respect of the first applicant initiated on the basis of a complaint by R.
30. Criminal proceedings have also been opened in Italy in respect of R.’s alleged violence towards the first applicant.
31. In February 2012 the first applicant reported R. to the Estonian authorities for allegedly making a false accusation and using a forged document. It appears that R., in turn, has reported the first applicant for allegedly making a false accusation.
32. In a judgment of 6 December 2006 (case no. 3-2-1-123-06) the Civil Chamber of the Supreme Court dealt with a case under the Hague Convention. It noted, inter alia, that as a rule, a child who had been wrongfully removed or retained in another Contracting State had to be promptly returned. Pursuant to Article 13 § 1 (b) a wrongfully removed or retained child could only not be returned in exceptional circumstances, that is when his or her return would cause extremely serious harm to the child’s well-being. In this connection, the child’s well-being had to be under extraordinary threat that was sufficiently specific and probable. An extensive interpretation of Article 13 § 1 (b) and other grounds for refusal to return a child would undermine the purpose of the Hague Convention. Proceeding from the above, the Supreme Court considered it impossible not to return the child concerned merely because the mother’s care was important for an infant and the child had continuously been with the mother up until the material time and had no experience of living alone with the father. Since the dispute between the parties did not concern the child’s place of residence but the return of the child under the Hague Convention, there was no need to resolve the question of which parent should be given priority in bringing up the child. The only matter to be determined was that of the child’s prompt return. Under the Hague Convention the child was not to be returned to the other parent but, as a rule, simply returned to the country of his or her habitual residence. The harmful effects that could arise from the separation of the child from a parent could in most instances be avoided by the return of the child together with the parent, separation from whom could cause serious damage to the well-being of the child. The Supreme Court also noted that the risk to the child’s well-being, referred to in the provision concerned, had to be proved.
33. The relevant provisions of the Hague Convention, which entered into force in respect of Estonia on 1 July 2001, read, in so far as relevant, as follows.
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
“The removal or the retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”
“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”


ITEMID: 001-105421
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DE SOUZA RIBEIRO v. FRANCE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 13+8
JUDGES: Dean Spielmann;Elisabet Fura;Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant, a Brazilian national, was born in 1988 and lives in Remire Montjoly in French Guiana.
6. He arrived on French soil in 1992 at the age of four and remained there until 1994, when he returned to Brazil.
7. In 1995, holding a tourist visa, the applicant returned to Cayenne in French Guiana, where he went to primary school in 1996 and then to secondary school. As he had no valid residence permit and could not apply for one until he came of age, he had to leave school in 2004, at the age of sixteen.
8. In 2005 he was stopped for a drug offence. By an order of 17 May 2006 he was placed under court supervision and barred from leaving French Guiana. On 25 October 2006 the Cayenne Youth Court gave him a two-month suspended sentence and two years’ probation.
9. On 25 January 2007 the applicant was stopped for a road check and, being unable to present any valid papers, was taken into custody.
10. A removal order and an administrative detention order were issued against him that same day at 10 a.m.
11. On 26 January, at 3.11 p.m., the applicant lodged an appeal against the removal order with the Cayenne Administrative Court, for abuse of authority, arguing that the order was illegal under Article 511-4 of the Code regulating the entry and residence of aliens and asylum seekers (see the section on “Relevant Domestic Law”). A hearing was scheduled for 1 February 2007. An urgent application was filed at the same time as the appeal, asking the court to suspend the enforcement of the removal order while it examined the validity of the measure. In support of his application for a suspension the applicant relied on Article 8 of the Convention, arguing that he had entered French territory before the age of thirteen, that he had lived there on a habitual basis ever since, that both his parents had residence permits, and that one of his brothers had acquired French citizenship and the other three would be entitled to apply for it at the age of thirteen as they had been born on French soil.
12. On 26 January at 4 p.m. the applicant was removed to Brazil.
13. The same evening the Cayenne Administrative Court declared his urgent application for a suspension of his removal devoid of purpose as he had already been deported.
14. On 6 February 2007 the applicant lodged an urgent application with the Cayenne Administrative Court requesting that the Prefect of French Guiana be instructed to organise his return there within twenty-four hours because of the interference with his family life. The application was rejected on 7 February as the court had not yet reached a decision concerning the validity of the removal order, and the applicant’s return would amount to a permanent measure whereas the urgent-applications judge could only order interim measures.
15. On an unspecified date the applicant returned to French Guiana illegally, by his own means, to live with his family.
16. In a judgment of 18 October 2007 the Cayenne Administrative Court found the removal order illegal on the grounds that the applicant had shown that he had been habitually resident in France since the age of thirteen and could therefore not be deported. The court refused to have the applicant issued with a residence permit, but ordered the Prefect of French Guiana to re-examine his administrative situation within three months.
17. On 16 June 2009 the authorities in French Guiana issued the applicant with a “visitor’s” permit, which was valid for one year but did not allow him to work.
18. An investigation revealed that the authorities had issued the “visitor’s” permit by mistake. The applicant was accordingly issued, in September 2009, with a new residence permit for “private and family life”, backdated to June 2009 and allowing him to work.
19. That residence permit was not renewed upon expiry because of a problem with the documents required for its renewal. In October 2010, however, the applicant was eventually issued with a residence permit valid from June 2010 to June 2011.
“The following persons shall not be required to leave French territory or removed therefrom under the provisions of this chapter:
...
2o Aliens who can prove by any means that they have been habitually resident in France at least since the age of thirteen.”
“For the purposes of this part [concerning expulsion measures], the following provisions shall apply in French Guiana and Saint-Martin:
...
2o Without prejudice to the provisions of the preceding paragraph, an alien who has been ordered to leave French territory or against whom a removal order has been issued and who refers the matter to the administrative court may, at the same time, apply for a stay of execution.
Consequently, the provisions of Articles L. 512-1 and L. 512-2 to L. 512-4 [whereby a removal order issued by the prefecture may be challenged before the administrative court within 48 hours, with suspensive effect on the removal order] shall not apply in French Guiana or SaintMartin.”
“The provisions of Article L. 514-1 shall apply in the département of Guadeloupe and in Saint-Barthélemy, for five years from the publication of Law no. 2006-911 of 24 July 2006 on immigration and integration.”
NON_VIOLATED_ARTICLES: 13
8


ITEMID: 001-92368
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF POPOV AND VOROBYEV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicants were born in 1964 and 1963 respectively and live in Vladivostok, Russia. At the material time the first applicant, a police officer, and the second applicant, a former police officer, were the chairman and the deputy chairman of a local police trade union.
7. On 28 October 1999, in connection with the discovery of two explosive devices and cartridges at the home of a third person, K., the department of the interior of the Primorskiy region and the Federal Security Service of Russia (“the FSB”) initiated criminal proceedings under Article 222 § 1 of the Criminal Code of Russia (“unlawful acquisition, transfer, sale, storage, transportation and carrying of firearms, basic parts of firearms, ammunition, explosives and explosive devices”).
8. On 14 January 2000 the applicants were arrested. On 17 January 2000 the prosecutor’s office of the Primorskiy region extended the applicants’ detention, referring to the gravity of the charges against them and the risk of their absconding from the authorities or obstructing the course of justice.
9. On 24 January 2000 the applicants were transferred to detention centre IZ-25/1 (“the detention centre” – in some of the documents submitted also referred to as IZ-20/1) in Vladivostok.
10. On 13 March 2000 the prosecutor’s office of the Primorskiy region extended the applicants’ detention until 10 April 2000, referring to the same reasons, namely the risk of their absconding from the authorities or obstructing the course of justice.
11. On 3 April 2000 the prosecutor’s office of the Primorskiy region extended the applicants’ detention until 10 May 2000. The first applicant’s lawyer appealed against the extension order. On 28 April 2000 the Leninskiy District Court of Vladivostok dismissed the appeal and stated that the applicant had the right to appeal against that decision to the Primorskiy Regional Court. The first applicant did not appeal to the second-instance court.
12. On 27 April 2000 the prosecutor’s office of the Primorskiy region extended the applicants’ detention until 10 July 2000, referring to the gravity of the charges against them and the risk of their absconding from the authorities or obstructing the course of justice.
13. On 10 July 2000 the investigation forwarded the criminal case against the applicants to the Primorskiy Regional Court for the determination of the jurisdiction for the trial. On 13 July 2000 the Regional Court decided that the case should be examined by the Frunzenskiy District Court of Vladivostok (“the District Court”) and forwarded the case file to the District Court.
14. On 8 August 2000 the District Court held a directions hearing and decided to examine the criminal case on 11 October 2000. The court also decided to extend the applicants’ detention on remand, using a summary formula in respect of both applicants and stating that “the preventive measure in respect of [the applicants] should remain the same – detention on remand”. No reasons for the extension of the applicants’ detention on remand were provided.
15. On 11 October 2000, during the examination of the applicants’ case, the court allowed an application by them for an additional expert assessment of fingerprints. The court forwarded the case file to Moscow for the expert assessment and adjourned the hearing of the criminal case. During the hearing the applicants complained under Article 276 of the Code of Criminal Procedure (lodging applications before the court) to the District Court about the length of their detention on remand and requested to be released pending trial. The applicants stated that they had permanent places of residence; that they had the necessary communication equipment to ensure constant contact with the authorities; that they had always been given positive assessments; that they had received State military awards; that they had minor children; and that they both had kidney diseases, treatment for which was not available at the detention centre. Their complaint was included in the case file (pages 497-499), but was not examined by the court.
16. On 29 October 2000 the first applicant complained to the District Court, stating, among other things, that he had spent more than ten months in detention and requesting release pending trial. This complaint was not examined by the court.
17. On 30 October 2000 the second applicant complained to the District Court and requested to be released pending trial. He stated that he had two minor children, that he had never been prosecuted, that he had a permanent place of residence and that he had no intention of absconding from the authorities. This complaint was not examined by the court.
18. On 10 November 2000 the first applicant complained to the Prosecutor General. In his letter he stated, among other things, that he had been detained for more than ten months and that his requests for release pending trial had not been examined. This complaint was not examined by the authorities.
19. On 16 November 2000 and 12 December 2000 the second applicant complained to the District Court that his detention was unlawful and requested to be released pending trial. In his letter he pointed out that he had problems with his teeth and that adequate dental treatment was not available in the detention centre; that he had a permanent place of residence; that he had two children and an elderly mother to take care of; and that he had no intention of absconding from the authorities. These complaints were not examined by the court.
20. On 3 January 2001 the first applicant complained to the District Court, requesting it to examine the lawfulness of his detention on remand. Referring to the poor conditions of his detention, the general deterioration of his health and the lack of medical assistance in the centre, the applicant requested to be released pending trial. In his complaint the applicant stated that he had family and a child to take care of; that he had a permanent place of residence; that he had been working as a police officer for 15 years; that he had been given positive assessments; and that he had no intention of absconding from the authorities. This complaint was not examined by the court.
21. On 3 January 2001 the second applicant complained to the District Court that his detention on remand was unlawful and requested to be released pending trial. In his letter he pointed out that he had lost several teeth and had other problems with his health, and that no medical assistance had been provided to him in the detention centre.
22. On 12 January 2001 the District Court responded to the second applicant. The letter was very brief and did not contain any judicial decisions. It stated: “Today the court sees no reasons for changing the preventive measure”.
23. On 23 January 2001 and 20 February 2001 the second applicant complained to the District Court that his detention on remand was unlawful and requested to be released pending trial. In his letters he stated, among other things, that he had lost eight teeth; that he had problems with his kidneys; that no treatment was available in the detention centre; that he had a permanent place of residence; that he had two children and an elderly mother to take care of; and that he had no intention of absconding from the authorities. These complaints were not examined by the court.
24. On 31 January 2001, upon completion of the expert assessment, the case file was returned to the District Court and the hearing of the case was scheduled for 20 February 2001.
25. On 20 February 2001 the District Court resumed the hearing of the criminal case. It completed its examination on 2 March 2001, imposing suspended sentences on the applicants and ordering their immediate release.
26. From 24 January 2000 until their release on 2 March 2001 the applicants were detained in cells no. 41, 58, 79, 82 and 105 in the detention centre.
27. All the cells in which the applicants were detained were of identical size, measuring 7.5 sq. m by 2.6 sq. m with four bunks. Both applicants shared their cells with four to six other detainees; therefore, they had to take turns to sleep and were allowed to sleep only between 10 p.m. and 6 a.m. The applicants and their cellmates were not provided with bedding or linen; they had to acquire these items from their relatives and wash and dry them in the cells.
28. The cells were damp; there was mould on the walls and the ceiling. The air was stale and musty. As there was no air ventilation, the cells were hot in summer and cold in winter; the temperature in the cells depended on the season and varied from +10ºC to +35ºC. The windows of the cells were covered with metal grilles supplemented with “eyelashes”, that is, metal strips covering the grille, which let no daylight in. The size of the air vents above the doors was 0.06 sq. m; therefore they could not provide fresh air. The cells were constantly lit with a single 60-watt bulb. Unprotected electric wiring hung from the ceiling and along the walls. The cells were overrun with cockroaches, blood-sucking insects and mice, but the authorities made no attempt to exterminate them, refusing even to give the inmates chloride for disinfection. The cells were not equipped with a source of drinking water. The inmates had to drink water from the tap above the toilet, which was supposed to be used only for flushing.
29. The cells were equipped with toilets which were located 0.5 m away from the dining table and were not isolated from the living area as the centre’s administration forbade putting up curtains.
30. Despite numerous requests by the applicants, they were never provided with bedding, crockery or kitchenware. They were also denied any toiletries, such as soap, toothbrushes, a shaving set or toilet paper, to maintain personal hygiene. In the applicants’ submission, they were able to have a shower only once every 10 to 40 days for up to 12 minutes, and to take a walk of about 50 minutes per day. The duration of walks was sometimes reduced to 20 to 30 minutes. On several occasions, the warders made the applicants choose between having a bath and taking a walk. If the applicants were in a meeting with their lawyers or in court, then they did not get to take the walk. The scarce meals were of very poor quality.
31. The applicants, who suffered from toothache and urolithiasis, were denied proper medical treatment, reference being made to “the absence of specialists and necessary medicine”. In response to the first applicant’s complaints of renal colic, a medical officer supplied him with medicine which was unfit for use, as its shelf life had expired three years earlier. With regard to the second applicant’s complaint of acute colic, the medical officer refused to give him an injection with the medicine and syringes that had been delivered earlier by the applicant’s family. The officer stated that he only used syringes for treatment of seriously ill patients, but he could see no such patients at the moment. The available dental care was provided by a doctor who saw patients only once a week. In response to the applicants’ complaints of acute toothache he suggested that the teeth be extracted without an anaesthetic owing to the lack of medication and necessary equipment for the treatment of cavities.
32. The applicants supported their submission with a number of documents, including eight responses by the administration of detention centre IZ-25/1 to their requests for information lodged in 2006: five responses dated 19 April 2006 (two responses concerning the ventilation of the cells, one response concerning the metal bars on the cells’ windows, one response concerning the control over the sanitary conditions in the cells and one response concerning the absence of the licence to practice medicine by the medical unit of the detention centre at the material time), one response dated 26 July 2006 (the refusal to provide the information concerning the provision of the applicants with individual toiletry kits owing to the absence of the archives), one response dated 18 August 2006 (the refusal to provide information concerning the daily number of inmates in cell no. 79 and their transfers to other cells) and one response dated 22 August 2006 (the refusal to provide information concerning the daily number of inmates in cell no. 41 and their transfers to other cells); the Recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning its visit to the detention facility from 2 to 17 December 2001; three witness statements concerning the conditions of the applicants’ detention in the detention centre provided by Mr A.V. on 7 August 2006, Mr O.L. on 2 August 2006 and Mr E.K. on 3 August 2006; and six statements describing the conditions of detention and the lack of medical assistance in IZ-25/1, drawn up by the applicants and their cellmates, dated 6 and 7 November 2000, 4, 5 and 23 December 2000 and 2 February 2001. The applicants did not submit any medical documents concerning their respective conditions, whether produced during their detention in IZ-25/1 or after their release.
33. Referring to the information provided by the Prosecutor General’s Office, the Government submitted that the applicants had been detained in cells used for the detention of former employees of law-enforcement agencies.
34. Referring to the information provided by the Russian Federal Service for Execution of Sentences, the Government submitted that the first applicant had been detained in cell no. 41, and the second applicant in cells nos. 79, 82 and 105 at the detention centre.
35. The surface area and the height of the ceilings in all the cells were identical and amounted to 8 sq. m and 2.8 m respectively. Each cell was equipped with four bunks. The applicants shared their cells with only three other persons. At the same time, in the same submission the Government further stated that in 2000 to 2001 the detention centre had been overcrowded owing to the high level of criminal activity in the area and the limited capacity of the centre. For these reasons the number of persons detained with the applicants had exceeded the required standard. In spite of these difficulties, each detainee in the applicants’ cells had been provided with a sleeping berth. However, the Government did not specify the exact number of persons detained with the applicants and the nature of the sleeping berth.
36. The size of the windows was in accordance with the relevant regulations and comprised one-eighth of the cells’ floor space, providing the applicants with the possibility of reading and working under natural light. Each window was equipped with an air vent for additional ventilation; another source of ventilation was installed above the door. The temperature in the cells varied from +18ºC to +24ºC. The window air vents and doors were opened for ventilation when the inmates were taken for a walk. All cells were equipped with running water. The levels of temperature and the humidity in the cells, as well as the quality of water, complied with the relevant hygiene and sanitary regulations. No outbreaks of infectious or parasitogenic diseases were registered at the centre at the material time.
37. Each cell in the centre was equipped with bulbs for daytime and night lighting. The night lighting was on from 10 p.m. to 6 a.m. The toilet was separated from the living area by a curtain, which ensured privacy. There were no rodents or insects in the cells as the administration conducted a monthly disinfection; in addition, the staff of the medical centre regularly inspected the cells for insects and rodents.
38. The applicants and other inmates of the detention centre were allowed to take a shower once every seven days; their bed linen was changed at the same time. The applicants were provided with individual bunks, bed linen, crockery and cutlery. They were given individual toiletry kits (containing soap, a toothbrush, a shaving kit and toilet paper). Additional toiletry items could have been provided to the applicants had they submitted a written request, but they had failed to do so.
39. Open-air walks were permitted for one hour a day and there had been no instances of substituting a walk for a bath.
40. The Government submitted that the applicants had been provided with medical assistance in accordance with the relevant regulations, although at the material time the medical unit had not had a licence to practise medicine. The applicants had undergone an initial medical examination on the date of their entry to the detention centre; as a result it had been established that they had been healthy. The medical unit of the detention centre had been supplied with the necessary equipment and medicine. Referring to a number of documents, the Government stated that during the entire period of their detention at the centre, the applicants had neither sought medical help nor complained to the administration about the failure of the medical services to provide them with requested treatment.
41. In support of their position the Government submitted, among others, a number of information statements issued by the administration of IZ-25/1, witness statements of the personnel of the medical unit in IZ-25/1, records concerning the number of inmates in the cells; and copies of some documents from the investigation file.
42. Until 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federative Socialist Republic (Law of 27 October 1960 – “the old CCrP”).
43. “Preventive measures” or “measures of restraint” (меры пресечения) included an undertaking not to leave a town or region, personal security, bail and detention on remand (Article 89 of the old CCrP).
44. The Russian Constitution of 12 December 1993 established that a judicial decision was required before a defendant could be detained or his or her detention extended (Article 22). Under the old CCrP, a decision ordering detention on remand could be taken by a prosecutor or a court (Articles 11, 89 and 96).
45. When deciding whether to remand an accused in custody, the competent authority was required to consider whether there were “sufficient grounds to believe” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend (Article 89 of the old CCrP). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 91 of the old CCrP). Before 14 March 2001, detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96).
46. The old CCrP distinguished between two types of detention on remand: the first being “during the investigation”, that is, while a competent agency – the police or a prosecutor’s office – investigated the case, and the second “before the court” (or “during the judicial proceedings”), that is, while the case was being tried in court. Although there was no difference in practice between them (the detainee was held in the same detention facility), the calculation of the time-limits was different.
47. After arrest the suspect was placed in custody “during the investigation”. The maximum permitted period of detention “during the investigation” was two months but it could be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels. No extension of detention “during the investigation” beyond eighteen months was possible (Article 97 of the old CCrP).
48. From the date the prosecutor forwarded the case to the trial court, the defendant’s detention was “before the court” (or “during the judicial proceedings”). Before 14 March 2001 the old CCrP set no time-limit for detention “during the trial”.
49. Under the old CCrP, the detainee or his or her counsel or representative could challenge before a court a detention order issued by a prosecutor, and any subsequent extension order. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee’s release (Article 220-1). An appeal to a higher court lay against the judge’s decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (Article 331 in fine).
50. Upon receipt of the case-file, the judge was to determine, in particular, whether the defendant should remain in custody or be released pending trial (Article 222 § 5 and Article 230 of the old CCrP) and to rule on any application by the defendant for release (Article 223 of the old CCrP). If the application was refused, a fresh application could be made once the trial had commenced (Article 223 of the old CCrP).
51. At any time during the trial the court could order, vary or revoke any preventive measure, including detention on remand (Article 260 of the old CCrP). An appeal against such a decision lay to a higher court. It was to be lodged within ten days and examined within the same time-limit as an appeal against the judgment on the merits (Article 331 of the old CCrP).
52. Under the old CCrP, the duration of the trial was not limited in time.
53. The 1995 Law on the conditions of detention of suspects and accused (закон «О содержании под стражей подозреваемых и обвиняемых в совершении преступлений») provided that inmates were entitled to medical assistance (section 17). If an inmate’s health deteriorated, the medical officers of the detention facility were obliged to conduct an immediate medical examination and inform him of its results in writing. If the inmate requested to be examined by staff of other medical institutions, the administration of the detention facility was to organise such an examination. If the administration refused, the refusal could be appealed against to a prosecutor or court. If an inmate suffered from a serious disease, the administration of the detention facility was obliged immediately to inform the prosecutor, who could carry out an inquiry into this matter (section 24).
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-3
5-4


ITEMID: 001-83597
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF DEREVENKO AND DOVGALYUK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Peer Lorenzen
TEXT: 4. On 12 March 2003 the first applicant obtained a judgment of the Tarashcha Court (Таращанський районний суд Київської області) against the OJSC “Tarashcharayagropostach” (ВАТ “Таращарайагропостач”), awarding him 2,424.55 hryvnyas (UAH) in salary arrears and other payments.
5. On 19 March 2001 the second applicant obtained a judgment of the Oleksandriya Court (Олександрійський міський суд Кіровоградської області) against the OJSC “ATP-13506” (ВАТ АТП-13506), awarding him UAH 2,765.02 in salary arrears.
6. These judgments were not appealed against, became final and the enforcement proceedings were instituted to collect the judgments debts.
7. On several occasions the bailiffs notified the applicants that they were unable to collect the full amounts of the awards, referring to the fact that financial assets of the debtor-companies were insufficient. They further explained that other assets could not be sold, as the State owned more than 25% of the debtor-companies' share capital. The companies were therefore subject to the Law of 29 November 2001 “on the Introduction of a Moratorium on the Forced Sale of Property”. The first applicant attempted to challenge the alleged inactivity of the bailiffs and to institute criminal proceedings against the debtor-company's chief executive officer, however, his attempts were to no avail.
8. By 10 June and 12 August 2005 the judgments given in favour of the second and the first applicant, respectively, were enforced in full.
9. A description of the relevant domestic law can be found in Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108707
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: SUZI v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: The applicant, Mrs Tamara Suzi, is a Russian national who was born in 1929 and lives in Kouvola. She is represented before the Court by Mr Jussi Sarvikivi, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 February 2008 the applicant arrived in Finland with a tourist visa valid for 90 days. She had not applied for a residence permit beforehand in St. Petersburg before arriving in Finland.
On 9 May 2008 the applicant applied for a residence permit in Finland on the basis of family ties.
On 11 November 2008 the Finnish Immigration Service (Maahanmuutto-virasto, Migrationsverket) rejected her application and ordered her removal to the Russian Federation.
On 20 November 2008 the applicant appealed to the Kouvola Administrative Court (hallinto-oikeus, förvaltningsdomstolen), asking that the decision of the Immigration Service be quashed and that she be granted a residence permit. She claimed that she could no longer take care of herself and was thus dependent on her family’s help. Her apartment in St. Petersburg was situated on the 6th floor and the lift was often out of order. She could not climb the stairs without help and even with help it was difficult for her to walk. She could not walk outside without help. She had a gas stove in her apartment which was dangerous because of her memory problems. All her relatives lived in Finland. Her husband had died in 1999 in Finland. He was an Ingrian Finn who had applied for a residence permit in Finland on that ground but the application had lapsed when he died. The applicant had only one child, a daughter I.R., who had lived in Finland for 15 years. She had obtained Finnish citizenship in 2008 on the basis of her Ingrian descent.
On 28 January 2009 the Administrative Court rejected the applicant’s appeal. It found that the applicant could not be regarded as the family member of I.R. The applicant suffered from toxic goitre, Parkinson’s disease, hypertension and memory problems and she had had a mild stroke. She could not live alone nor manage her medication. The family life between the applicant and her daughter had been interrupted in 1993 when the latter moved to Finland. After 15 years it was no longer possible for them to continue family life. The applicant was not fully dependent on her daughter as she had a possibility to receive treatment in her home country. Even considered as a whole, it was not unreasonable to refuse the applicant a residence permit on the basis of her health or the lack of family ties.
On an unspecified date the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen), reiterating the grounds of appeal already presented before the Administrative Court.
On 14 May 2009 the Supreme Administrative Court refused the applicant leave to appeal.
Already on 12 March 2009 the applicant lodged another application for a residence permit on the basis of family ties.
On 22 March 2010 the Immigration Service rejected this second application and again ordered her removal to the Russian Federation. The Service found, in addition to what had already been stated in the Administrative Court’s decision of 28 January 2009, that the applicant’s husband had died in 1999 and she had no close relatives in the Russian Federation. Her daughter had lived in Finland since 1993. According to the medical certificates submitted to the Service, the applicant suffered, in addition to those conditions mentioned already in the Administrative Court’s decision, from panic attacks. Moreover, an operation was envisaged for the removal of the toxic goitre but it was not known whether it had taken place. The applicant had a close relationship with her daughter in Finland who could help her financially in arranging necessary care and treatment in the Russian Federation. The daughter could also visit her mother there. It was thus not unreasonable to refuse the applicant a residence permit on the basis of her health or the lack of family ties.
The applicant did not appeal against this decision to the Administrative Court.


ITEMID: 001-89460
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DJAVAKHADZE v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Ms Olga Viktorovna Djavakhadze, is a Russian national who was born in 1962 and lives in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights
In 1989 a housing construction cooperative, Harmony, (“the cooperative”) was set up within the Bolshoi Theatre in Moscow. Its aim was to construct a new residential building with a view to improving the staff's housing conditions. The Moscow City Council had provided the cooperative with a plot of land in Moscow for construction. Under a finance contract of 1 December 1993, the construction was to be funded firstly by contributions from members of the cooperative (“share allocations”) and secondly by a private company, Stroyservice-1, which would receive in exchange flats, other premises of a total surface area of 2,800 sq.m, parking and a building of a total surface area of 800 sq.m on this plot of land. The share allocation to be paid by the members of the cooperative was determined in accordance with the surface area of the flats that they would receive, which, taken together with the investment share that Stroyservice-1 would allocate to each of them ought to correspond to the balance cost of their flats. This finance plan, and the division of residential area and office premises between the cooperative and Stroyservice-1, were endorsed on 5 May 1995 by Moscow City Council.
The applicant had joined the cooperative on 6 January 1992 on a decision by a general meeting of members. On 27 January 1992 she signed an employment contract with the cooperative's administration and began working as its chief accountant. Under Section 9 of a supplementary agreement to this contract, signed on 1 September 1993, the chief accountant, who was at the same time a member of the cooperative, would receive a three-roomed flat which she would choose herself at the close of the construction work, prior to the general drawing of lots. On 31 August 1993 the applicant also became a member of the cooperative's governing body.
By decisions of the general meeting of members of 21 September 1990 and 16 May 1994, the amount of the share allocation for three-roomed flats was set at 1,425,500 Russian roubles (RUB) (24,000 + 1,500 + 1,000,000 + 400,000). In 1992-94 the applicant paid the cooperative her joining fee and the share allocation for a three-roomed flat. In total she paid RUB 1,424,770.
On completion of the work, a general drawing of lots was held on 10 and 15 February 1995 for the purpose of attributing flats to the members of the cooperative. As envisaged in her contract, the applicant was entitled to choose her flat before this draw was made. On 8 February 1995 she chose flat no. 32. According to the minutes of the governing board's meeting of 8 February 1995, it was noted that the applicant and certain other individuals, referred to as contractual members, were performing their duties within the cooperative appropriately and that, in consequence, their choice of flats should be endorsed. The applicant's choice was thus approved unanimously. The general meeting of members on 15 February 1995 confirmed that flat no. 32 had been attributed to the applicant, and this fact was entered by hand in her membership book and signed by the director of the cooperative. The cooperative's management sent the documents confirming the distribution of flats to Moscow City Council to obtain property title certificates.
From 29 September 1995 the members of the cooperative, including the applicant, began moving into their flats. By Act No. 2 of 3 October 1995 and a project completion certificate of 10 October 1995, signed by the cooperative and the Stroyservice-1 company, it was recognised that each party had fulfilled the financial commitments entered into, and that out of one hundred and sixteen flats, whose construction was jointly financed by Stroyservice-1 and the cooperative, the latter received seventy-three flats, including flat no. 32.
By a decision of 28 December 1995 the governing body decided to appoint an acting chief accountant for the duration of the applicant's sick leave. On an unspecified date in 1996 the applicant was dismissed from this post.
According to the applicant, having paid the cooperative the full amount of her share allocation, in accordance with Article 218 of the Civil Code of the Russian Federation, she became the owner of her flat. However, the cooperative refused to issue her with a certificate confirming that she had paid her share allocation in full. The applicant brought legal proceedings against the cooperative.
On 2 March 1996 the members of the cooperative held a general meeting and, in view of their dissatisfaction with the governing board in place, elected a new management team, headed by a new director. As the cooperative's documents and other symbols remained in the hands of the members of the outgoing governing board, the new director ordered a new official stamp for the cooperative.
On 28 May 1996 the Tverskoy Court of Moscow (Тверской межмуниципальный народный суд г. Москвы), having examined the documents submitted by the applicant, considered it proven that the applicant had fully honoured her financial obligations as a member of the cooperative, and ordered the latter to issue her with a certificate confirming that her share allocation had been paid in full. This judgment was not appealed against and became final.
In compliance with this judgment, on 11 June 1996 the applicant was issued with the certificate in question, which bore the cooperative's new stamp. According to this document, on 29 June 1994 the applicant had paid her share allocation in full, namely RUB 1,424,770, for a three-roomed flat no. 32, the balance value of which was RUB 157,145,981, the difference between the two amounts having been financed in accordance with the finance plan of 5 May 1995 (that is by the investor, Stroyservice-1).
On the basis of this document, on 14 June 1996 the applicant had her property title to flat no. 32 registered with the municipal housing department at the Moscow City Council.
It appears from the other decisions issued in this case that, by a judgment of 22 July 1997, the Tverskoy Court of Moscow declared the cooperative's new stamp null and void. The grounds for this decision remain unknown.
On 29 August 1996 the general meeting decided to exclude the applicant from the cooperative on the ground that she had not performed her duties as an accountant appropriately. Noting also that the applicant had not paid the first instalment of her share allocation on time and that she had not paid the subsequent instalment of 29 June 1994, the meeting decided, in addition to her dismissal, to deprive her of her property right to the cooperative's flat.
The applicant challenged her exclusion from the cooperative before the domestic courts. The cooperative filed a counter-claim requesting to have it established that she had never been a member. In support of this request, the cooperative submitted that the minutes of the general meeting of 6 January 1992, confirming the applicant's membership, contained inaccurate information
On 5 April 1999 the Tverskoy Court of Moscow overturned the decision to exclude the applicant from the cooperative and dismissed the latter's counter-claim. As regards the counter-claim the court noted that the participants at this general meeting had confirmed before it that the applicant had indeed been admitted as a member on that date. In addition, on 29 June 1994 the general meeting, the only body with authority to decide on membership, re-examined the list of members in the light of each individual's compliance with his or her financial obligations, and confirmed the applicant's membership. It further found that, if the applicant had not been a member, she would not have received on 29 June 1994 the membership book that the cooperative issued solely to its members.
On the basis of the receipts, the membership book and other information obtained from the bank, the court established that the applicant had paid all of the instalments of her share allocation, for a total amount of RUB 1,424,770, but that she had not paid RUB 1,500, a financial contribution decided on at the general meeting of 21 September 1990, and RUB 200, a sum imposed for various administrative costs. The court considered that a failure to pay the “extremely modest” sum of RUB 1,700 could not justify a member's exclusion from the cooperative, especially as the latter had submitted no evidence of a proposition to the applicant to pay this sum and her refusal to pay.
The decision to exclude the applicant was therefore held to be null and void and the court ordered that she be reinstated as a member.
In 1997 the cooperative's management brought an action before the Tverskoy Court of Moscow in order to have the applicant's ownership certificate to the flat no. 32 of 14 June 1996 declared illegal.
In particular, the cooperative alleged that on 6 January 1992 the applicant's membership had been approved by the general meeting subject to the condition that she performed, on a contractual basis, the duties of chief accountant. It was in exchange for employment as an accountant that the cooperative had undertaken to allocate her a three-roomed flat. Abusing this position, the applicant had unlawfully fabricated a document confirming that her share allocation had been paid in full and, with the help of this document, she had obtained the ownership certificate of 14 June 1996.
Called to the court as a third party, the municipal housing department of the Moscow City Council maintained that the disputed ownership certificate was legal.
By a judgment of 12 October 2000, the court found that the applicant had joined the cooperative as a contractual member and that on 27 January 1992 she had signed a mutual cooperation contract with the management. Her obligation to perform the duties of chief accountant in exchange for her membership status had been reiterated in the supplementary agreement of 1 September 1993. The court established that in accordance with the cooperative's statute, which made a distinction between ordinary members and contractual members, the cooperative's management would have been entitled to refuse to allocate a flat to a contractual member if he or she failed to perform the duties set out in the relevant employment contract. In consequence, the court dismissed the applicant's arguments that she had fulfilled the contract signed with the cooperative and therefore had been already provided with the disputed flat. It established that failure to comply with the contract's clauses had direct repercussions on her status as a member and on her rights and obligations with regard to the flat. Having referred to various audit reports, the opinion of the supervisory committee and the court-appointed expert's report of 18 February 2000, the court found that the applicant had not fulfilled her contractual obligations towards the cooperative in an appropriate manner.
The court further found that the decision of the general meeting of 15 February 1995 merely endorsed the results of the draw and in no way proved that the applicant had received flat no. 32 independently of her employment obligations within the cooperative. The governing board's meeting of 8 February 1995 made only a preliminary allocation of the flats on a condition of fulfilment by the cooperative's members of their obligations, as the building in question had not been yet put into service, therefore this decision could not be regarded as providing the applicant with a flat.
Furthermore, in addition to the RUB 1,700 non-payment which had been established by the judgment of 5 April 1999, the applicant had failed to pay to the cooperative the book value of the apartment, equivalent to RUB 157,145,981. The court dismissed the applicant's arguments that by a decision of the general meeting the share allocation for a three-roomed flat had been set at RUB 1,424,770, that she had paid this amount in full as confirmed by the same judgment of 5 April 1999, and that the remaining amount had been funded by Stroyservice-1 in accordance with the funding plan of 5 May 1995. It noted that the applicant was not included in the list of the cooperative's members whose shares had been compensated by the above company.
The court also mentioned that the cooperative's stamp on the certificate of 14 June 1996 confirming the applicant's title to flat no. 32 and on the certificate of 11 June 1996 confirming that the applicant had paid her allocation in full had been declared null and void. The applicant's argument that the certificates were issued on the basis of the court judgment of 28 May 1996 was dismissed on the ground that this judgment did not include the amount of the allocation paid by the applicant.
The ownership certificate of 14 June 1996 was thus declared null and void. Both the applicant and her lawyer had participated in the hearing.
On 30 January 2001 the Moscow City Court, having heard the applicant's lawyer, dismissed the applicant's appeal, having mentioned that the applicant had not been compensated by the investor and that the cooperative's stamp on the certificates of 14 June 1996 and 11 June 1996 had been declared null and void.
On 26 December 2002 and 22 March 2005 judges of the Supreme Court of the Russian Federation rejected the applicant's requests for a supervisory review.
On 3 March 2003 four members of the cooperative lodged a complaint with the department of the Interior of the Moscow District, alleging organised crime within the cooperative's management. They complained that at various points between 1996 and 2002 the cooperative's managers, in criminal agreement with Stroyservice-1, had led twenty-three members of the cooperative to believe that the latter had a debt towards Stroyservice-1, which would no longer pay the individual investment shares for the members of the cooperative. These members were thus obliged to pay considerable sums in cash, with no receipts, as supplementary contributions. The complainants noted in this respect that criminal proceedings had been brought against Stroyservice-1 but that the case had been discontinued on 22 June 1998. In addition, in order to acquire the flats for itself with a view to their resale, the cooperative had brought unfounded judicial proceedings against various members of the cooperative. Having paid their share allocations as defined by the general meeting in full, those members found themselves accused of failing to pay the sums necessary to cover the cooperative's non-existent debt to Stroyservice-1. In other cases, members were accused of failing to pay the individual investment shares which, under the terms of the construction finance plan, Stroyservice-1 had undertaken to pay. Finally, the claimants pointed out that the director of the cooperative had not convened a general meeting since August 1996.
On 14 April 2003 the municipal housing department of the Moscow City Council wrote to the Moscow City Prosecutor, setting out the facts as these had been brought to its attention following a dozen sets of proceedings opposing the cooperative and its members, in which it had been called upon to take part as a defendant or a third party.
According to the City Council, the cooperative director whose three-year term of office had expired in 1999 had falsified documents attesting untrue facts and used them to the detriment of the members of the cooperative. According to those documents, Stroyservice-1 had invested more money than planned in the construction work and the cooperative was consequently indebted towards it. As a result, the members of the cooperative had to pay this debt, which amounted to several tens of thousands of American dollars. In reality, this additional investment had never existed. The department submitted that, as victims of this abuse of power, the members of the cooperative had been deprived of their possessions and that multiple proceedings were being brought before the courts in this connection. It requested the prosecutor's office to examine the question of criminal proceedings against the director of the cooperative.
No information had been provided by the parties with respect to the further course of the investigation.
Article 118 of the Housing Code of the RSFSR, which was in force at the material time, provides that that a person who has become a member of a cooperative on the basis of a decision by a general meeting of that cooperative is to receive a flat with a surface area calculated in relation to the number of persons in his or her family and in relation to the amount of his or her share allocation.
In accordance with Article 8 § 2 of the Civil Code of the Russian Federation, title to a property, public registration of which is required by law, takes effect at the time that title is registered.
Under Article 218 § 4 of the same Code, a member of a housing construction cooperative may acquire title to the property in question after paying in full the share allocation for a flat.