ITEMID: 001-96597
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LYUBOMIR POPOV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: No violation of  P1-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste
TEXT: 6. The applicant was born in 1933 and lives in Plovdiv.
7. In 1991 the Bulgarian Parliament adopted the Agricultural Land Act (“the ALA”, see for more detail paragraphs 83-95 below) which provided for the restitution of collectivised agricultural land.
8. On 4 March 1992 the applicant requested from the Pazardzhik agricultural land commission (“the land commission” or “the commission”) restitution of nine plots of agricultural land which he had previously owned in the area around the village of Govedare, totalling 44,029 square metres (request no. 12004/04.03.1992).
9. By a decision of 18 December 1992 (no. 42\3/18.12.1992) the commission recognised and restored “in actual boundaries” the property rights of the applicant in respect of seven of the plots, in particular those under nos. 1-5, 7 and 8 in his request of 4 March 1992, which totalled 41,299 square metres. The applicant was informed of the decision by a letter of 22 April 1993. The decision was subject to appeal within fourteen days of receipt. As no appeal was lodged against it the decision entered into force.
10. Despite the aforesaid decision, the land commission issued a second decision dealing with the same subject matter, which the applicant received by a letter of 28 December 1993. The decision’s number was identical with that of the first decision issued by the land commission (see paragraph 9 above).
11. By this decision, however, the commission recognised and restored the property rights of the applicant in respect of only five of the plots he had requested, namely those under nos. 1-5 in his request of 4 March 1992. The commission refused to recognise the property rights of the applicant in respect of plots nos. 7 and 8, with respective areas of 6,600 and 4,000 square metres. The grounds for the refusal were the following:
“[These properties were] claimed [by means of] a certified declaration despite the existence of a [conflicting] property deed of 1954.”
12. The applicant appealed against this decision.
13. By amendment of 1995 to the Agricultural Land Act (section 14 §§ 6 and 7) agricultural land commissions were provided with the power to amend, in certain circumstances, their decisions which had entered into force (see paragraph 85 below).
14. By a decision of 12 September 1995 the Pazardzhik District Court declared null and void the land commission’s second decision communicated to the applicant by letter of 28 December 1993 (see paragraph 10 above). The domestic court found, inter alia, that:
“the [land commission] violated the law by adopting decision no. 42\3/18.12.1992 in its version [communicated by] letter no. 668/28.12.1993, [as it] did not have the power to do so. The possibility for the [commission] to amend [its] decisions which have entered into force ... [was introduced] with the [latest] amendment to the [ALA]. ... [The] first administrative act [communicated by letter of 22 April 1993 had] entered into force and had [already] determined the ownership of the properties of ... the applicant, which were [recognised and] restored in their entirety.”
15. No appeal was lodged against the decision, so it entered into force on 20 September 1995.
16. Despite the aforesaid decision of the District Court, the land commission adopted another decision dealing with the same subject matter.
17. By a decision of 7 December 1995 (no. 48\15/07.12.1995) it readopted the text of its second decision, which had been declared null and void. It expanded its reasoning for refusing to recognise the applicant’s property rights in respect of plots nos. 7 and 8 as follows:
“In connection with the possibility under section 14 §§ 6 and 7 of the [ALA] and the decision of the District Court [of 12 September 1995], the [commission] confirms its refusal: [These properties were] claimed [by means of] a certified declaration despite the existence of a [conflicting] property deed of 1954.”
18. On an unspecified date the applicant appealed against this decision.
19. In a final judgment of 26 May 1997 the Pazardzhik District Court declared it null and void. The domestic court found that the commission had failed to justify the grounds for amending its previous decision regarding the same properties, as there had existed no new facts or documents
20. On 3 September 1997 the applicant deposited a copy of the aforementioned judgment with the land commission and insisted that it comply with its first decision of 18 December 1992, which was still in force.
21. Before the appeal against the commission’s third decision was heard, the latter issued another decision dealing with the same subject matter.
22. By a decision of 20 March 1997 (no. 5-A111/20.03.1997) it apparently reiterated its refusal to recognise the applicant’s property rights in respect of plots nos. 7 and 8. The applicant appealed against this decision.
23. On an unspecified date in the beginning of 1998, the Pazardzhik District Court heard the applicant’s appeal and declared null and void the decision of 20 March 1997. No appeal was lodged against this judgment so it entered into force on an unspecified date.
24. On 8 May 1998 the applicant deposited a copy of the aforementioned judgment with the land commission. He demanded compliance with it and recognition of his property rights in accordance with the first decision of 18 December 1992.
25. Before the appeal against the fourth decision of the land commission was heard, the latter issued another decision dealing with the same subject matter.
26. By a decision of 16 October 1997 (no. 8A055/16.10.1997) it readopted the text of its third decision of 7 December 1995, which had been declared null and void by the Pazardzhik District Court on 26 May 1997 (see paragraphs 17 and 19 above). It expanded its reasoning for refusing to recognise the applicant’s property rights in respect of plots nos. 7 and 8 by stating, in addition to the previously used reasoning, the following:
“[This decision] rescinds decision no. 48\15/07.12.1995 ... in compliance with order no. RD-09-1200 of 28.08.1997 of the Minister of [Agriculture] for a complete revision of the land redistribution plan for the Govedare area.
In compliance with [the decision of 26 May 1997] of the Pazardzhik District Court.”
27. The applicant appealed against this decision on 21 November 1997.
28. Instead of forwarding the appeal to the District Court the land commission issued another decision dealing with the same subject matter.
29. By decision of 1 June 1998 (no. 2B175/01.06.1998) it readopted the text of its above-mentioned fifth decision (see paragraph 26 above). It only expanded its reasoning for refusing to recognise the applicant’s property rights in respect of plots nos. 7 and 8 by stating, in addition to the previously used reasoning, the following:
“[This decision] rescinds [the] decision [of 16 October 1997] of the [land commission] in connection with appeal no. 4266/1997 lodged on the basis of § 31 of the [ALA]. The [commission] confirms the basis for its refusal. No new facts or documents have been presented.”
30. The applicant appealed against this decision on 16 September 1998.
31. By a letter of 10 September 1998 the applicant complained to the land commission about the numerous decisions it was issuing in respect of the same properties, of its continual disregard for the judgments in his favour and the constant need for him to appeal against each of the decisions.
32. By a judgment of 8 June 1999 the Pazardzhik District Court declared null and void the fifth and sixth decisions of the land commission, dated 16 October 1997 and 1 June 1998 (see paragraphs 26 and 29 above). The court found that by adopting these two decisions the commission was, in substance, amending its first decision of 18 December 1992 which had entered into force and which it did not have the power to amend.
33. No appeal was lodged against the judgment, so it entered into force on 1 July 1999.
34. Despite the aforementioned judgments of the Pazardzhik District Court the land commission issued a seventh decision dealing partly with the same subject matter.
35. By a decision of 16 September 1999 (no. 7B148/16.09.1999) it recognised and restored the applicant’s property rights in respect of plots nos. 6 and 9 in his request of 4 March 1992. It also recognised his property rights in respect of plots nos. 7 and 8, but refused to restore them because of the following:
“The judgment [of 8 June 1999 of the Pazardzhik District Court], which recognised the [applicant’s] property rights, entered into force after the land redistribution plan had been published in the Official Journal.
[This decision] rescinds decision no. 39\11 of 20.11.1992.
[Subject to] compensation under section 10b § 1 of the [ALA].”
36. It is unclear whether the applicant appealed against this decision.
37. By a decision of 23 February 2005 the Pazardzhik Agriculture and Forestry Department (the former land commission) allotted to the applicant another plot in compensation for plot no. 7 and also awarded him compensation bonds. He appears to be satisfied with the compensation received.
38. At the time of the parties’ latest communications of 2006 he had not received any compensation for plot no. 8.
39. On 4 March 1992 (request no. 12007/04.03.1992) the applicant requested from the land commission the restitution of six plots of agricultural land which had previously been owned by his father in the area around the village of Govedare, totalling 63,101 square metres. The parties have not specified who the heirs of the applicant’s father were; it transpires from the documents that the applicant has three siblings.
40. By decision of 18 December 1992 (no. 42\3/18.12.1992) the commission recognised and restored the property rights of the heirs of the applicant’s father in respect of four of the plots, in particular, those under nos. 1, 2, 5 and 6, in his request of 4 March 1992, which totalled 34,401 square metres. The commission refused to recognise the property rights of the heirs of the applicant’s father in respect of plots nos. 3 and 4, which totalled 28,700 square metres. The grounds for the refusal were:
“[Refusal to] recognise the property deeds [presented by] the inheritor – [the documents] are without notary certification for the transfer of the land.”
41. On an unspecified date the applicant appealed against this decision.
42. In a final judgment of 29 December 1993 the Pazardzhik District Court quashed the land commission’s decision in so far as it concerned plots nos. 3 and 4. It recognised the property rights of the heirs of the applicant’s father over those two plots and held that those properties were to be restored through a land redistribution plan. The District Court found, in particular, that the applicant’s father had acquired the said properties by adverse possession, so it was immaterial whether the property deeds had been certified by a notary or not.
43. Before the Pazardzhik District Court had heard the applicant’s appeal against the first decision of the land commission, the latter adopted a second decision dealing with the same subject matter.
44. By decision of 17 November 1993 (no. 80\9/17.11.1993) it rescinded its first decision, but then recognised and restored the property rights of the heirs of the applicant’s father only in respect of plots nos. 1 and 2 in his request of 4 March 1992, which totalled 20,801 square metres. It refused to recognise the property rights of the heirs of the applicant’s father in respect of plots nos. 3-6. The grounds for the refusal were the following:
“[This decision] rescinds decision no. 42\3 of 18.12.1992 due to the discovery of a technical error. Properties nos. [3 and 4] – [Refusal to] recognise the property deeds [presented by] the inheritor – [the documents] are without a notary certification for the transfer of the land. Properties nos. [5 and 6] – [These properties were] claimed [by means of] a certified declaration despite the existence of [conflicting] property deeds.”
45. The applicant was informed of the decision by letter of 20 December 1993. He apparently appealed against it on an unspecified date. It is unclear whether the appeal was examined by the courts.
46. By a decision of 20 April 1994 (no. 98/17/20.04.1994) the land commission rescinded its second decision (see paragraph 44 above) and recognised and restored the property rights of the heirs of the applicant’s father in respect of plots nos. 1 and 2 in his request of 4 March 1992. The commission recognised their property rights in respect of plots nos. 3 and 4, totalling 28,700 square metres, refused to restore those properties “in actual boundaries” and held that they were to be restored through a land redistribution plan. Furthermore, it refused again to recognise the property rights of the heirs of the applicant’s father in respect of plots nos. 5 and 6.
47. The grounds for the commission’s decision were the following:
“1. Recognises in compliance with the judgment [of 29 December 1993 of the Pazardzhik District Court].
2. [This decision] rescinds decision [of the PALC] no. 80\9 of 17.11.1993.”
48. The applicant appealed against this decision on an unspecified date. It is unclear whether the appeal was examined by the courts.
49. Apparently, at a later stage the applicant obtained a satisfactory outcome in respect of plots nos. 5 and 6 and does not raise complaints in respect of them.
50. Plots nos. 3 and 4 were partially restored to him in 2000 (see paragraphs 74-76 below).
51. On an unspecified date in 1997 the applicant initiated an action for a declaratory judgment against the land commission, pursuant to section 11 § 2 of the ALA. He petitioned the courts to recognise that, as an heir of his parents, he had the right to have his property rights restored in respect of another four properties.
52. By a declaratory judgment of 2 April 1997 the Pazardzhik District Court found partly in favour of the applicant and recognised that the heirs of his parents had the right to have their property rights restored in respect of three of the claimed properties, namely, three plots of land of 6,600, 8,000 and 9,000 square metres respectively.
53. No appeal was lodged against this judgment so it entered into force on 5 May 1997.
54. On 17 June 1997 the applicant deposited a copy of the aforementioned judgment with the land commission and demanded compliance with it.
55. In response to the aforementioned judgment, the land commission issued another decision.
56. By a decision of 24 July 1997 (no. 7A069/24.07.1997) it rescinded its decision of 20 April 1994 (see paragraph 46 above), readopted the text of said decision and, despite the favourable judgment (see paragraph 52 above), refused to recognise and restore the property rights of the heirs of the applicant’s parents in respect of the two new plots of agricultural land of 6,600 and 8,000 square metres, now numbered 7 and 8 respectively. The grounds for the refusal were the following:
“[This decision] rescinds decision [of the commission] no. 98/17 of 20 April 1994 on the basis of judgment [of 2 April 1997 of the Pazardzhik District Court] under section 11 § 2 of the [ALA] in respect of the properties under nos. 7 and 8 in the request. The property was restored to [those claimants with] documents dated most [recently] – declarations for entry into the [collective farm] of [the village of] Govedare in 1956 – [presented] by the successors”
57. On an unspecified date the applicant appealed against this decision.
58. In a judgment of 22 June 1999 the Pazardzhik District Court quashed the land commission’s fourth decision of 24 July 1997 in respect of the refusal to recognise and restore the property rights of the heirs of the applicant’s parents in respect of plots nos. 7 and 8. It found that the property rights of the heirs of the applicant’s parents in respect of these two properties had already been recognised by virtue of the judgment of 2 April 1997 of the Pazardzhik District Court (see paragraph 52 above) and that the properties at issue were to be restored through a land redistribution plan.
59. No appeal was lodged against this judgment, so it entered into force on 30 July 1999.
60. On 5 August 1999 the applicant deposited a copy of the aforementioned judgment with the land commission. Apparently taking into account that the revised land redistribution plan of Govedare had already been published (see paragraph 73 below), the applicant requested compensation for these two properties (nos. 7 and 8) in the form of comparable State or municipal land.
61. It is not clear whether the applicant obtained restitution of the plot of 9,000 square metres, also mentioned in the judgment of the Pazardzhik District Court of 2 April 1997. He does not raise complaints in respect of this property.
62. On an unspecified date in 1998 the applicant initiated another action for a declaratory judgment under section 11 § 2 of the ALA. He petitioned to the courts to recognise that, as an heir of his father, he had the right to have the property rights restored in respect of one more property, a plot of 6,000 square metres.
63. In a declaratory judgment of 19 December 1998 the Pazardzhik District Court recognised that the heirs of the applicant’s father had the right to have their property rights restored.
64. No appeal was lodged against the judgment so it entered into force on 20 January 1999.
65. On 28 January 1999 the applicant deposited a copy of the aforementioned judgment with the land commission.
66. In an attempt to comply with the judgments of the Pazardzhik District Court of 2 April 1997 and 19 December 1998 (see paragraphs 52 and 64 above), the land commission adopted another decision dealing with the three properties in question (those under nos. 7 and 8, plus the plot of 6,000 square metres in the judgment of 19 December 1998, thereinafter referred to under no. 9).
67. By a decision of 16 September 1999 (no. 7B148) the commission recognised the property rights of the heirs of the applicant’s parents in respect of the aforementioned properties, but refused to restore them “in actual boundaries”.
68. The commission based its refusal to restore plots nos. 7 and 8 on the judgment of 22 June 1999 of the Pazardzhik District Court (see paragraph 58 above). It reasoned as follows:
“The judgment [of 22 June 1999 of the Pazardzhik District Court] which recognised the property rights [in question] entered into force after the land redistribution plan had been published in the Official Journal.”
69. In respect of its refusal to restore plot no. 9, the commission used similar reasoning. It indicated as follows:
“The judgment [of 19 December 1998 of the Pazardzhik District Court] under section 11 § 2 [of the ALA] which recognised the property rights [in question] entered into force after the land redistribution plan had been published in the Official Journal.”
70. The applicant was informed of the decision on 28 October 1999. It is unclear whether he appealed against it.
71. In respect of plots nos. 7 and 8, the heirs of the applicant’s parents received municipally-owned land on 23 February 2005. The applicant appears to be satisfied with the location and the size of this land.
72. In respect of the plot numbered under no. 9, on 6 June 2003 the land commission assigned to the heirs of the applicant’s father compensation in the form of compensation bonds with a face value of 3,680 Bulgarian levs (BGN). The applicant does not specify whether he appealed against this decision.
73. The first land redistribution plan for Govedare was published on an unspecified date. It is unclear what properties were allocated to the applicant under it. For undisclosed reasons, on 28 August 1997 the Minister of Agriculture ordered the complete revision of the plan.
74. The revised land redistribution plan for Govedare was published in the Official Journal on 13 April 1999.
75. On 26 April 1999 the applicant appealed against the revised land redistribution plan. He complained of the size of the property that the heirs of his father had been allocated under the said plan for plots nos. 3 and 4 in his request no. 12007 of 4 March 1992 (see paragraph 39 above). He submitted a proposal for the amendment of the plan, according to which the heirs of his father were to receive a plot measuring 18,426 square metres.
76. In a judgment of 17 January 2000 the Pazardzhik Regional Court found in favour of the applicant and amended the revised land redistribution plan in accordance with the aforementioned proposal. The applicant took possession of the new plot thus allotted to his father’s heirs on 28 September 2000. At the time of the parties’ latest communications of 2006, he had not yet received any compensation for the remaining land to be restored, totalling 10,274 square metres.
77. The applicant did not appeal against the judgment of the Pazardzhik Regional Court, although he was entitled to.
78. On an unspecified date the applicant requested from the land commission the restitution of several plots of agricultural land previously owned by his mother in the area around the village of Hadzhievo.
79. By a decision of 22 December 1993 (no. 86/8/22.12.1992) the commission refused to recognise the property rights of his mother’s heirs in respect of seven plots of agricultural land.
80. On an appeal by the applicant, in a final judgment of 12 June 1995 the Pazardzhik District Court quashed the aforementioned decision of the land commission and, instead, restored the property rights of the heirs of the applicant’s mother in respect of the seven plots, totalling 35,300 square metres.
81. On 9 November 1995 the applicant deposited a copy of the aforementioned judgment with the land commission and demanded compliance with it.
82. On 30 March 2000 the land commission adopted a decision (no. 1В171/30.03.2000) whereby it allocated to the heirs of the applicant’s mother other land in compensation for the aforementioned property. The applicant, who appears to be satisfied with the size and quality of this land, took possession of it on 23 February 2005.
83. The Agricultural Land Act of 1991 (“the ALA”, Закон за собствеността и ползването на земеделските земи) provides, inter alia, that persons, or their heirs, whose land has been collectivised, may request restoration of their ownership rights under certain conditions (section 10 of the ALA). On the basis of certain statutory criteria, such as whether or not the plot of land once owned by the claimant or his or her ancestors had remained unaffected by urban construction, restitution may be “in actual boundaries” or through a redistribution plan.
84. Two possible ways of obtaining restitution are provided for: (a) administrative proceedings, initiated within a period of seventeen months following the entry into force of ALA, through a request to the local agricultural land commission (section 11 § 1) whose decision is subject to appeal before the courts (section 14 § 3), or, (b) after the expiry of that time-limit, through a civil claim to the competent court, directed against the respective land commission (section 11 § 2 of the ALA).
85. When seized with a request for restitution under section 11 § 1 of the ALA, it was the land commission’s task to establish whether the relevant statutory conditions were met and if so, to issue a decision restoring ownership. It could not revoke its decisions. Favourable decisions were not subject to appeal and were final. Following an amendment to the ALA of 1995, land commissions could modify their decisions within certain time limits in case where (1) they contained factual mistakes, or (2) with certain limitations, new facts or documents had been discovered (section 14 §§ 6 and 7). Some courts have stated that the decisions of the land commissions have characteristics similar to those of certifications in ex parte notary proceedings (opred. 10333-2002-VAS; opred. 1020-2003-VAS). It has also been stated that land commissions’ decisions are administrative decisions (1832-93-III).
86. A claimant whose request for restitution has been refused by the competent land commission may appeal to the respective District Court (section 14 § 3 of the ALA). The District Court has jurisdiction to examine the matter on the merits and determine whether or not the claimant has the right to restitution under the ALA. If it finds that the relevant statutory criteria for restitution are met, the court shall set aside the land commission’s refusal and order restitution (section 14 §§ 1-3 of the ALA). The District Court’s judgment is amenable to review (cassation).
87. Land commissions, which existed until 2002, were state bodies whose members were appointed by the Minister of Agriculture (section 33 of the ALA). In 2002 they were replaced by Agriculture and Forestry Departments, after 2008 named Agricultural Departments, whose members are appointed by the Minister of Agriculture and Food.
88. By section 14 of the Regulations for the Implementation of the Agricultural Land Act, a restitution request concerning the property of a deceased person lodged by one of the heirs benefits all of them.
89. Persons claiming restitution of agricultural land who have missed the seventeen-month time-limit under section 11 § 1, may bring an action for a declaratory judgment against the local land commission. In these proceedings the courts determine whether or not the claimant has the right to restitution. Where the courts decide in favour of the claimant, the land commission must comply and issue the necessary restitution decision, restoring the claimant’s rights “in actual boundaries” or through a land redistribution plan.
90. In the absence of an express provision, the legal theory accepts that, similarly to the procedure under section 11 § 1 of the ALA, an action brought by one of the heirs of a deceased person benefits all of them.
91. By section 10b of the ALA, former owners whose property cannot be restored “in actual boundaries” are to receive land by means of a land redistribution plan, on the basis of which the respective land commission adopts a decision to restore the property (section 17 of the ALA).
92. Where the land in a certain area is not sufficient to satisfy fully all former owners, the land to be provided to each of them is reduced. For the difference, they are to be compensated with municipal land or with compensation bonds, which can be used in privatisation tenders or for the purchase of State-owned land (sections 15 §§ 2 and 3 and 35 of the ALA).
93. In preparing a land redistribution plan, the land commission takes into consideration former owners’ claims which have been presented to it prior to the publication in the Official Journal of a notification that a draft plan has been prepared. It cannot take into account claims presented to it later; in that case, former owners are to receive compensation through municipal land or bonds (section 11 § 4 of the ALA).
94. Appeals against land redistribution plans were, at the relevant time, to be addressed to the respective Regional Court. They had to be accompanied by a proposal for a specific amendment to the plan (section 25 § 6 of the Regulations for the Implementation of the Agricultural Land Act). The judgments of the regional courts were subject to cassation.
95. Pursuant to section 17 § 8 of the ALA, the Minister of Agriculture is authorised to order the revision of a land redistribution plan where it has been established that the original one contained an obvious factual error.
96. Section 1 of the State Responsibility for Damage Act of 1988 (“the SRDA”) provides that the State is liable for damage suffered by private persons as a result of unlawful acts or omissions by State bodies or civil servants, committed in the course of or in connection with the performance of their duties. Section 4 of the Act provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission.
97. In some cases the domestic courts have allowed claims under section 1 of the SRDA on the basis of the authorities’ unlawful acts or omissions in restitution proceedings. In a judgment of 14 February 2008 the Supreme Court of Cassation awarded damages to the claimant, finding that the respective land commission had unnecessary delayed taking a decision on his request for restitution and had eventually unlawfully refused restitution (judgment no. 112 of 14 February 2008, case no. 1319/2007). In another judgment of 21 June 2002, the Nova Zagora District Court allowed a claim against the respective land commission, finding that the claimant had suffered damages as a result of the commission’s refusal to recognise and restore his rights to a certain property, and of its renewed failure to recognise and restore his rights after the initial refusal had been declared null and void by the courts (judgment no. 224 of 21 June 2002, case no. 74/2002).
98. However, in a judgment of 23 November 2004 the Veliko Tarnovo Regional Court dismissed a claim for damages against the respective land commission. It found that the rescission of a decision of the commission, which had entered into force and whereby the commission had recognised the claimant’s rights over certain properties, was null and void. Nevertheless, it concluded that the claimant had not suffered damages as the initial decision had not sufficed to make her the owner of the property at issue (judgment 240 of 23 November 2004, case no. 773/240).
99. In a judgment of 11 January 2005 the Smolyan Regional Court allowed a claim against the relevant municipality, finding that the claimants had suffered damage as a result of the municipality’s failure to duly correct their property’s borders in the cadastral maps (judgment no. 452 of 11 January 2005, case no. 407/2004).


ITEMID: 001-5079
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: S.C.C. v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Josep Casadevall
TEXT: The applicant is a Zambian national born in 1962. At present she resides at Spånga, Sweden. She is represented before the Court by Mr Peter Bergquist, a lawyer practising at Tyresö, Sweden.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant entered Sweden on 26 April 1990 with her husband, a first secretary at the Zambian Embassy in Stockholm, and their two children, born in 1988 and 1990. The applicant's two children from a previous marriage, born in 1982 and 1985, remained in Zambia. The applicant was granted a work permit for one year as from November 1992. On 30 December 1993 she applied for an extended work permit. She stated, inter alia, that she and her husband did not have a good marriage and that he assaulted her, that she had rented an apartment in Stockholm, and that she could not return to Zambia since she was afraid of her husband's relatives. In December 1993 the applicant's two children who had remained in Zambia were brought to Sweden.
The applicant remained in Sweden until early 1994 when it appears she returned to Zambia in connection with her husband's end of work at the Embassy.
On 17 March 1994 the National Immigration Board (Statens invandrarverk) rejected her above application for a work permit. The Board found that she had no connection to Sweden and that she had left the country.
On 8 May 1996 the applicant, having returned to Sweden, applied for a work permit and a residence permit for one year as from August 1996. The investigations made by the National Immigration Board disclosed that she and her husband, together with the four children, had returned to Zambia in 1994 and that they had intended to divorce. However, her husband died before the divorce became final. The applicant stated that she had returned to Sweden in November 1994 in order to pay her debts and because she had been employed at a hotel in Stockholm. She also stated that she stayed in Sweden for economical reasons and that she wanted a residence and work permit limited to one year, after which time she intended to return to Zambia.
On 9 January 1998 the National Immigration Board rejected the application and ordered the applicant's deportation to Zambia. The Board found that neither the applicant's previous stay in Sweden – as the wife of a diplomat – nor the alleged threats against her by her husband's relatives constituted grounds for granting her a residence permit. The Board also took into account that the applicant's children lived in Zambia.
The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). She now stated that she was infected with HIV and that she should be granted a residence permit on humanitarian grounds as the necessary medical care was not available in Zambia. She submitted two medical certificates issued on 2 February and 20 August 1998 according to which the applicant's HIV infection had been detected in 1995. She made regular visits to the hospital. It was planned to commence an anti-HIV treatment during the next year. As such treatment was complicated and required strict adherence it was further indicated that treatment could only commence if the applicant was given a long-term permit to reside in Sweden.
On 10 November 1998 the Appeals Board upheld the Immigration Board's decision. Referring to a decision taken by the Swedish Government on 23 June 1994 (see below), the Appeals Board considered that the applicant's health status did not give reason to grant her a residence permit.
The applicant made a new application for a residence permit. She submitted a medical certificate issued on 25 January 1999, according to which her state of health had deteriorated. As a consequence, the anti-HIV treatment previously envisaged had been initiated. She also submitted a certificate issued on 27 January 1999 maintaining that a deportation of the applicant would result in the termination of her HIV treatment, the consequences of which would be a faster process towards the AIDS stage and her supposed death.
By a decision of 10 February 1999 the Appeals Board rejected the application stating, inter alia, that a new application has to be based on circumstances which have not previously been examined in the matter.
The applicant lodged a new application with the Appeals Board on 19 February 1999. In addition to what she had previously stated, she now claimed that she lived with F.R., a Somalian citizen who had been given a permit to reside in Sweden in 1992. He had been suffering from an HIV infection for about ten years. Allegedly, they had met in the summer of 1995 and had been cohabiting since the summer of 1996. The applicant claimed that she had not previously referred to this relationship, since she was afraid that it would be held against her. She further stated that she did not intend to bring her children to Sweden in case she was granted a residence permit. Her brother, who allegedly had taken over the responsibility for her children, planned to send them to school in England.
On 23 February 1999 the Appeals Board rejected the application. The Board noted, inter alia, that the applicant had not previously referred to her relationship with F.R. and considered that there were thus reasons to question the seriousness of the relationship. The Board did not find it obvious that the applicant would have been granted a residence permit on the ground of the alleged relationship, had she applied for it according to the main rule laid down in Chapter 2, Section 5 of the Aliens Act (see below). Furthermore, the Board found that it would not be contrary to requirements of humanity to execute the expulsion decision.
On 5 March 1999, following the Court's indication to the Swedish Government that it was desirable that the applicant not be expelled to Zambia before 16 March 1999 (see below), the National Immigration Board stayed the applicant's deportation. The Board's decision is still in force.
B. Relevant domestic law and practice
The basic provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the 1989 Aliens Act (utlänningslagen, 1989:529). The Act also defines the conditions under which an alien can be expelled from the country, as well as procedures related to the enforcement of decisions under the Act. There are normally two instances that deal with matters concerning the right of aliens to enter and remain in Sweden; the National Immigration Board and the Aliens Appeals Board. In exceptional cases, the Government may determine whether or not an alien shall be allowed to remain in Sweden following a referral to the Government, by either Board, of an application for residence permit (Chapter 7, Section 11).
Chapter 1, Section 4 of the Aliens Act provides that an alien staying in Sweden for more than three months shall have a residence permit. Such a permit may be issued, inter alia, to an alien who is married to or cohabiting with a person domiciled in Sweden or who has been granted a residence permit to settle in Sweden. A permit may also be issued to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). A permit to reside in Sweden shall, according to Chapter 2, Section 5, have been granted before entering the country. As a principal rule all applications made after the alien has entered the country shall be rejected. This does not apply, however, if, inter alia, the alien on humanitarian grounds should be allowed to settle in Sweden.
With regard to diplomatic officials employed by foreign powers in Sweden, together with their families, the Act only applies to the extent prescribed by the Government (cf. Chapter 12, Section 2). It follows from the Aliens Ordinance (utlänningsförordningen, 1989:547) that diplomatic officials and their families are exempted from the requirement to hold a residence permit.
As regards serious illness, this may in exceptional cases constitute humanitarian reasons for a residence permit on condition that it is a life-threatening illness for which no treatment can be provided in the alien's home country. Further, care or treatment in Sweden should lead to an improvement in the alien's condition or be life saving. Thus, the alien's condition should be so serious that he or she would be likely to die or his or her health would deteriorate considerably if he or she was to be sent home. These principles have been expressed and applied by the Government in a number of precedent rulings of 17 February 1994 concerning medical humanitarian reasons in general and in rulings of 23 June 1994 and 16 March 1995 concerning HIV infection as a reason for a residence permit. The Government also stated that the mere fact that treatment in Sweden is of a higher quality than in the alien's home country does not constitute grounds for granting a residence permit, nor are financial difficulties in getting the appropriate treatment in the receiving country a reason for granting such a permit.
The National Board of Health and Welfare (Socialstyrelsen) stated in an opinion of 25 March 1994, enclosed in the Government's decisions of 23 June 1994 and referred to in the decision of 16 March 1995, that the fact that a person is diagnosed with HIV or AIDS should not alone and generally be decisive of the question of humanitarian grounds. Instead, the assessment should be founded on the alien's general state of health taking serious clinical symptoms into consideration. The Board concluded that it found no reason, in this respect, to make a difference between HIV infection and other diseases with a serious prognosis.
Further, according to the Aliens Act, an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4).
An alien who is to be refused entry or expelled in accordance with a decision that has gained legal force may be granted a residence permit if he or she files a so-called new application based on circumstances which have not previously been examined in the case of refusal of entry or expulsion and if (i) the alien is entitled to a residence permit under Chapter 3, Section 4, or (ii) it would be contrary to requirements of humanity to execute the refusal-of-entry or expulsion decision (Chapter 2, Section 5 b).
Also when it comes to enforcing a decision on refusal of entry or expulsion, regard is taken to the risk of torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 8, Section 1).


ITEMID: 001-88589
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NICOLAE CONSTANTINESCU v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall
TEXT: 4. The applicant was born in 1929 and lived in Sopot.
5. On 8 March 1994 the applicant, together with four relatives, lodged a civil action claiming restitutio in integrum of a mill, the property of their parents, which had been taken by the State in 1948.
6. Of the twenty-two hearings held between 6 April 1994 and 12 January 1996, five were adjourned at the applicant’s request.
7. On 9 February 1996 the Craiova Court of First Instance (“the Court of First Instance”) rejected the action, considering that the mill had been nationalised in accordance with the law and that therefore the applicant and his relatives had no right of property.
8. The applicant and his relatives appealed. Of the twenty-four hearings held between 23 August 1996 and 14 May 1998 one was adjourned at the applicant’s request.
9. On 21 May 1998 the Dolj Regional Court (“the Regional Court”), taking into account the expert’s report produced during the appeal, dismissed the appeal as being groundless.
10. On 1 February 1999 the Craiova Court of Appeal (“the Court of Appeal”) by a final decision upheld the findings of the lower courts, considering that the nationalisation had been lawful.
11. The applicant and his relatives made use of extraordinary remedies and on 12 May 1999 the Court of Appeal allowed the application to set aside the final decision of 1 February 1999, quashed the previous judgments and sent the case back for fresh examination. The court noted that under Government Ordinance no. 447/1997 the Ministry of Finance should have been summoned to appear in the proceedings as the State’s representative.
12. During the retrial, of the twenty-five hearings held between 26 August 1999 and 21 January 2002 two were adjourned at the applicant’s request.
On 8 September 2000 the Court of First Instance held that it had no jurisdiction ratione materiae, considering the case to be within the competence of the Regional Court. On 14 December 2000 the Regional Court also refused to exercise jurisdiction. Following the dispute as to jurisdiction, the Court of Appeal decided on 12 June 2001 that it was the Court of First Instance which had jurisdiction ratione materiae.
13. On 28 January 2002 the Court of First Instance, having regard to the two experts’ reports and to the witnesses produced during the retrial, upheld in part the action lodged by the applicant and his relatives, considering that the legal requirements for nationalisation had not been fulfilled and therefore the State had no valid title. The court granted restitutio in integrum in respect of the mill and of the appurtenant land.
14. The defendant party appealed. Of the eleven hearings held between 10 May 2002 and 14 February 2003 none was adjourned as a result of requests by the applicant. A new expert’s report was produced.
15. On 21 February 2003 the Regional Court allowed the appeal by the defendant and rejected on the merits the action lodged by the applicant and his relatives, considering that the nationalisation had been lawful. That decision was upheld on 7 October 2003 by a final decision of the Court of Appeal.
VIOLATED_ARTICLES: 6


ITEMID: 001-115337
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: PARVIZ v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: The applicant, Mr Mohammad Parviz, is a Swedish national, who was born in 1959 and lives in Gothenburg. He was represented before the Court by Mr T. Ekbrand, a lawyer practising in Gothenburg.
The applicant, who originates from Iran, moved to Sweden in 1989 and met his former wife, X, during a visit to Iran. They married in 1995, and a year later X moved to Sweden. In April 1998 they had a daughter, Y. In 1999, X filed for divorce. The District Court (tingsrätten) granted the divorce and gave the applicant and X joint custody of Y. It further decided that Y should live with X and granted the applicant contact rights every second weekend.
In July 2000, on the third contact occasion, the applicant took Y to Iran and arranged a travel ban for X, making it impossible for her to leave Iran if she were to travel there. X contacted the Swedish police. In Iranian custody proceedings launched by X’s relatives, the Iranian authorities took a temporary decision that X’s mother should care for Y but that Y had to remain in the country. However, despite the authorities’ decision, X’s brother took Y to Turkey where she was reunited with X in November 2000.
The applicant remained in Iran until 2007 when he voluntarily returned to Sweden. He was arrested upon return and, on 22 March 2007, the District Court of Gothenburg convicted him of gross unlawful separation of a child from his/her legal guardian (grov egenmäktighet med barn) and sentenced him to one year’s imprisonment.
When the applicant was released on parole, the Prosecution Authority, on 14 November 2007, issued restraining orders against the applicant vis-à-vis X and Y for six months under section 1 of the Restraining Orders Act (lagen om besöksförbud, 1988:688).
The applicant appealed to the District Court which, on 1 February 2008, after having held an oral hearing, decided not to deviate from the assessment of the public prosecutor.
The applicant appealed to the Court of Appeal (hovrätten) for Western Sweden which, on 26 March 2008, rejected the appeal. The applicant did not appeal against this decision to the Supreme Court (Högsta domstolen).
On 9 May 2008, the Prosecution Authority decided to extend the restraining order against the applicant vis-à-vis Y for one year.
The applicant again appealed to the District Court which, on 7 October 2008, decided not to deviate from the assessment of the public prosecutor.
The Court of Appeal rejected the applicant’s further appeal, and, on 17 June 2009, the Supreme Court dismissed the appeal since the original decision had already become time-barred.
It appears that at the beginning of 2009 the applicant initiated civil proceedings in which he requested contact rights with Y every second Saturday between 11 a.m. and 1 p.m. in the presence of an assistant from the Social Welfare Committee (Familjerättsbyrån).
On 17 February 2009, the District Court held a preparatory hearing in the presence of the applicant, X and their legal counsel. In order to make a better assessment, the court requested the Committee to submit relevant information concerning the parties before proceeding with the case.
On 5 March 2009, the Committee presented the following information based on individual meetings with the applicant, X and Y.
The applicant considered that he had been punished twice for his criminal conduct since, even after fully serving his sentence, he was being denied any contact with Y.
As to X, she described how Y had been abducted at a time when she was still being breastfed. The applicant’s mother had by then already travelled to Iran, which showed that the criminal act had been planned. When Y had returned to Sweden, she had forgotten Swedish and had been frightened of airports and suitcases. X had had to seek psychological help. During his stay in Iran, the applicant had initiated legal proceedings there to the effect that she and her mother were sentenced to, respectively, one year’s and three years’ imprisonment. The applicant had never sent any letters or gifts to Y.
As concerned Y, she questioned why the applicant had not kept in contact with her during the seven years he had remained in Iran. She now felt it was too late. She considered that it was the applicant’s fault that she and X could never visit their relatives in Iran. She was sure that X would assist her if, in the future, she wished to establish contact with the applicant. For the moment she did not wish to have any contact with him, not even letters.
On 15 April 2009, in an interim decision, the District Court rejected the applicant’s request for contact rights while the proceedings were ongoing. It noted that the court had decided on a restraining order against the applicant vis-à-vis Y and that Y had clearly expressed her wish not to have any contact with the applicant. Considering Y’s age, there were no reasons to assume that this did not correspond to her own true will.
On 29 April 2009, the Prosecution Authority again decided to extend the restraining order against the applicant vis-à-vis Y for one year.
The applicant appealed to the District Court, requesting primarily that the decision be reversed, secondly that it be to some extent limited to enable him to visit Y every second Saturday for two hours, and thirdly that it be limited to enable him to contact Y through internet. His latter claims depended on whether or not the court granted him any contact rights in the ongoing proceedings. Before the court he stated that there was no risk that he would harass or commit any criminal acts against Y. The purpose of the restraining order could be fulfilled in a less restrictive way so that it did not infringe his possible contact rights. He had fully respected the previous restraining orders. His crime had been committed several years earlier and he now realised that it had been wrong to take Y to Iran. It was in Y’s best interest to have contact with both of her parents.
In response to the applicant’s appeal, the public prosecutor argued that Y did not wish to have any contact with the applicant and that the restraining order allowed Y to feel safe and to live a normal life without fear of being abducted again.
On 23 October 2009, the District Court found that there were still reasons to maintain the restraining order against the applicant vis-à-vis Y even if his crime had been committed a long time before.
The applicant appealed to the Court of Appeal and the Supreme Court, which on 4 December 2009 and 9 March 2010, respectively, decided to refuse leave to appeal.
On 11 May 2010, the Prosecution Authority again decided to extend the restraining order against the applicant vis-à-vis Y for one year.
The applicant appealed to the District Court, maintained his previous submissions and added that Y was influenced by X, who had systematically tried to make her afraid of the applicant. Y had only been two years old when the applicant had taken her to Iran. She could not possibly be afraid of such acts today. The applicant had never harmed Y. He had sent her gifts and money but they had never reached her. He had not had any contact with her for ten years.
In response to the applicant’s appeal, the public prosecutor argued that the restraining order did not prevent Y from having contact with the applicant if she so wished. It was up to her to decide whether or not she wanted to receive anything from the applicant. Y, who was now 12 years old, did not wish to have any contact with the applicant. There were no reasons to go against her will. The crime that the applicant had committed was serious. The applicant had not presented any new circumstances.
On 22 December 2010, the District Court, after having held an oral hearing, found that there were still reasons to maintain the restraining order against the applicant vis-à-vis Y even if his crime had been committed a long time earlier.
In the meantime, it would appear that, on 16 June 2010, upon the applicant’s request, the District Court had decided to dismiss the civil proceedings concerning contact rights.
The applicant appealed against the restraining order to the Court of Appeal which, on 14 January 2011, decided to refuse leave to appeal. The Supreme Court, on 4 October 2011, dismissed a further appeal since the original decision had already become time-barred.
On 4 May 2011, the Prosecution Authority again decided to extend the restraining order against the applicant vis-à-vis Y for one year.
The applicant appealed to the District Court and submitted the following. Eleven years had passed since he had committed the criminal act upon which the restraining order was based. A decision which made all contact between a child and its parent impossible breached the Convention on the Rights of the Child as well as the European Convention on Human Rights. Y was now 13 years old and it would be practically impossible to abduct her against her will. His only wish was to be granted limited contact rights in the presence of an assistant from the social welfare authority or merely be granted contact with Y through internet. The purpose of the restraining order was to prevent him from abducting Y. Since Y had a need for a good relationship with both her parents, it was disproportionate to prevent all contact between her and the applicant.
On 21 November 2011, the District Court, after having held an oral hearing, lifted the restraining order. It stated that although the crime committed by the applicant was serious, it had been committed only once, eleven years earlier. Moreover, the applicant had continuously respected the restraining order and the circumstances had changed over the years. Therefore, in the court’s view, there was no longer any risk of future harassment or criminal acts against Y, on the part of the applicant.
It appears that, at the beginning of 2012, the applicant initiated new civil proceedings where he requested contact rights with Y. In April 2012, during a preparatory hearing at the District Court, the applicant and X agreed that the applicant should write a letter to Y in order to explain why he had stayed away from her and that the letter should be handed to her by an assistant from the Social Welfare Committee. Y would thereafter have the opportunity to respond if she so wished.
The basic provisions mainly applicable in the present case are laid down in the Restraining Orders Act, as in force at the relevant time. According to Section 1 of the Act, an order prohibiting a person from visiting or in other ways contacting another person or follow that person (“restraining order”) may be issued if, due to special circumstances, there is a risk that the person against whom the order is issued will commit criminal acts, persecute or severely harass the protected person. In the risk assessment, special attention should be paid to whether or not the person against whom the order is decided has previously committed criminal acts against any person’s life, health, peace or tranquillity. According to Section 3 of the Act, restraining orders should be provided with necessary limitations due to the particular circumstances in the individual case. The basic prerequisite for a restraining order is that there is a clear risk that the protected person will face criminal acts, persecution or other forms of severe harassment (travaux préparatoires, prop. 1987/88:137, p. 18). In the risk assessment, one should consider the nature of any previous crimes committed, whether there are several criminal acts and whether they were committed on one or several occasions (ibid, p. 41). According to Section 4 of the Act, a restraining order shall be issued for a fixed time period, maximum one year. It may be extended for maximum one year at a time.
A decision to extend a restraining order demands a full investigation, which should have regard to the fact that the interference with the affected person’s freedom of movement may be perceived as more severe the longer it lasts. As to a request for extension of the restraining order, special attention should be given to whether or not the affected person has complied with the order. If previous criminal acts have formed the basis of the risk assessment, one should reassess whether these acts still provide a basis to conclude that there is a clear risk of future criminal acts in view of the time that has passed (Supreme Court decision of 7 April 2006, NJA 2006 p. 202).
Appeal against a prosecutor’s decision to issue a restraining order lies to the District Court. The person concerned has the right to be granted an oral hearing upon request (Sections 14 and 19 of the Act). Appeal against the District Court’s final decision lies to the Court of Appeal. Since 1 November 2008, an examination of the case on the merits before the Court of Appeal requires leave to appeal. The same applies to an appeal to the Supreme Court (Sections 39 and 40 of the Act on the Handling of Court Matters, lagen om domstolsärenden, 1996:242).
As to the issue of contact rights, the Children and Parents Code (föräldrabalken, 1949:381) stipulates that the best interest of the child shall be the primary consideration in the determination of all questions concerning custody, residence and contact. In the assessment of what is in the best interest of the child, particular attention shall be paid to the child’s need for close and good contact with both parents. The risk of the child being abused, unlawfully removed or detained, or otherwise suffering harm shall be taken into account. In the determination of questions concerning custody, residence and contact, regard shall be had to the wishes of the child, taking into account the child’s age and maturity (Chapter 6, Section 2(a), of the Code).
In cases concerning contact rights, the court can, if it finds it necessary, decide upon such rights temporarily while the proceedings are pending. The court may also request the Social Welfare Committee to submit relevant information in order to be better placed to make an assessment. The Committee shall, if appropriate, collect information from the parents and the child before reporting to the court (Chapter 6, Section 20, of the Code).


ITEMID: 001-79436
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF CANPOLAT v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: David Thór Björgvinsson
TEXT: 4. The applicant was born in 1950 and was detained in the Hilvan prison, in Şanlıurfa at the time of the application.
5. On 11 October 1997 following receipt of information that the applicant was in possession of narcotic substances, police officers from the Siverek Security Directorate arrested the applicant, his son and one of the applicant's employees, İ.Ş., in the applicant's house. During the search of the applicant's house and farm, a certain amount of cannabis was found.
6. On 12 October 1997 the suspects were brought before the Siverek Magistrates' Court who ordered their detention on remand.
7. On 14 October 1997, the Siverek Magistrates' Court sent the case file to the public prosecutor's office at the Diyarbakır State Security Court holding that the case concerned the prosecution of organised drug trafficking.
8. On 24 October 1997 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and the two other suspects. The public prosecutor charged them under Article 403 § 5 of the Criminal Code of being in possession of hashish with the aim of trafficking. İ.Ş. was also charged with the consummation of hashish.
9. On 26 May 1998 the Diyarbakır State Security Court convicted the applicant and İ.Ş. The applicant was sentenced to three years and four months' imprisonment.
10. On 5 October 1998 the Court of Cassation quashed the judgment of the first-instance court.
11. On 24 November 1998 the Diyarbakır State Security Court once again convicted the applicant and his co-accused and sentenced them to six years and three months' imprisonment.
12. On 15 April 1999 the Court of Cassation again quashed the firstinstance court's judgment, holding that the applicant's and his coaccused's defence rights had not been respect as they had not been informed about the date of the hearing.
13. On 15 June 1999 the Diyarbakır State Security Court convicted the applicant and his co-accused and sentenced them to six years and three months' imprisonment. It also ordered their release from detention having regard to the time that they had spent in prison.
14. On 20 April 2000 the Court of Cassation upheld the judgment of the first-instance court.
15. The description of the relevant domestic law at the material time can be found in the judgments of Ağaoğlu v. Turkey (no. 27310/95, §§ 30-32, 6 December 2005) and Canevi and Others v. Turkey (no. 40395/98, §§ 22 and 23, 10 November 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57564
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF REES v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of Art. 12
JUDGES: C. Russo
TEXT: 11. The applicant, a British citizen born in 1942, lives at Tunbridge Wells in England.
12. At birth the applicant possessed all the physical and biological characteristics of a child of the female sex, and was consequently recorded in the register of births as a female, under the name Brenda Margaret Rees. However, already from a tender age the child started to exhibit masculine behaviour and was ambiguous in appearance. In 1970, after learning that the transsexual state was a medically recognised condition, she sought treatment. She was prescribed methyl testosterone (a hormonal treatment) and started to develop secondary male characteristics.
13. In September 1971, the applicant - who will henceforth be referred to in the masculine - changed his name to Brendan Mark Rees and subsequently, in September 1977, to Mark Nicholas Alban Rees. He has been living as a male ever since. After the change of name, the applicant requested and received a new passport containing his new names. The prefix "Mr." was, however, at that time denied to him.
14. Surgical treatment for physical sexual conversion began in May 1974 with a bilateral masectomy and led to the removal of feminine external characteristics. The costs of the medical treatment, including the surgical procedures, were borne by the National Health Service.
15. The applicant made several unsuccessful efforts from 1973 onwards to persuade Members of Parliament to introduce a Private Member’s Bill to resolve the problems of transsexuals. Representations were also made by him, and by a number of Members of Parliament on his behalf, to the Registrar General to secure the alteration of his birth certificate to show his sex as male, but to no avail.
16. On 10 November 1980 his solicitor wrote to the Registrar General making a formal request under Section 29(3) of the Births and Deaths Registration Act 1953, on the ground that there had been "a mistake in completing the Register". In support of his request, the applicant submitted a medical report by Dr. C.N. Armstrong. The report stated that, in Dr. Armstrong’s opinion, of the four criteria of sex - namely chromosomal sex, gonadal sex, apparent sex (external genitalia and body form) and psychological sex, the last was the most important as it determined the individual’s social activities and role in adult life, and it was also, in his view, pre-determined at birth, though not evident until later in life. Dr. Armstrong considered that as the applicant’s psychological sex was male, he should be assigned male.
On 25 November the Registrar General refused the application to alter the Register. He stated that the report on the applicant’s psychological sex was not decisive and that, "in the absence of any medical report on the other agreed criteria (chromosomal sex, gonadal sex and apparent sex)", he was "unable to consider whether an error (had been) made at birth registration in that the child was not of the sex recorded". No further evidence in support of the applicant’s request was subsequently submitted.
17. The applicant considers himself a man and is socially accepted as such. Except for the birth certificate, all official documents today refer to him by his new name and the prefix "Mr.", where such prefix is used. The prefix was added to his name in his passport in 1984.
18. In the United Kingdom sexual reassignment operations are permitted without legal formalities. The operations and treatment may, as in the case of Mr. Rees, be carried out under the National Health Service.
19. Under English law a person is entitled to adopt such first names or surname as he or she wishes and to use these new names without any restrictions or formalities, except in connection with the practice of some professions where the use of the new names may be subject to certain formalities (see, inter alia, Halsbury’s Laws of England, 4th ed., vol. 35, para. 1176). For the purposes of record and to obviate the doubt and confusion which a change of name is likely to involve, the person concerned very frequently makes, as did Mr. Rees, a declaration in the form of a "deed poll" which may be enrolled with the Central Office of the Supreme Court.
The new names are valid for purposes of legal identification (see Halsbury’s Laws of England, loc. cit., para. 1174) and may be used in documents such as passports, driving licences, car registration books, national insurance cards, medical cards, tax codings and social security papers. The new names are also entered on the electoral roll.
20. Civil status certificates or equivalent current identity documents are not in use or required in the United Kingdom. Where some form of identification is needed, this is normally met by the production of a driving licence or a passport. These and other identity documents may, according to the prevailing practice, be issued in the adopted names of the person in question with a minimum of formality. In the case of transsexuals, the documents are also issued so as to be in all respects consistent with the new identity. Thus, the practice is to allow the transsexual to have a current photograph in his or her passport and the prefix "Mr.", "Mrs.", "Ms." or "Miss", as appropriate, before his or her adopted names.
21. The system of civil registration of births, deaths and marriages was established by statute in England and Wales in 1837. Registration of births is at present governed by the Births and Deaths Registration Act 1953 ("the 1953 Act"). The entry into force of this Act entailed no material change to the law in force in 1942, the date of the applicant’s birth. The 1953 Act requires that the birth of every child be registered by the Registrar of Births and Deaths for the area in which the child is born. The particulars to be entered are prescribed in regulations made under the 1953 Act.
A birth certificate takes the form either of an authenticated copy of the entry in the register of births or of an extract from the register. A certificate of the latter kind, known as a "short certificate of birth", is in a form prescribed and contains such particulars as are prescribed by regulations made under the 1953 Act. The particulars so prescribed are the name and surname, sex, date of birth and place of birth of the individual.
An entry in a birth register and the certificate derived therefrom are records of facts at the time of the birth. Thus, in England and Wales the birth certificate constitutes a document revealing not current identity, but historical facts. The system is intended to provide accurate and authenticated evidence of the events themselves and also to enable the establishment of the connections of families for purposes related to succession, legitimate descent and distribution of property. The registration records also form the basis for a comprehensive range of vital statistics and constitute an integral and essential part of the statistical study of population and its growth, medical and fertility research and the like.
22. The 1953 Act provides for the correction of clerical errors, such as the incorrect statement or omission of the year of the birth, and for the correction of factual errors; however, in the latter case, an amendment can be made only if the error occurred when the birth was registered. The birth register may also, within twelve months from the date of registration, be altered to give or change the name of a child and re-registration of a birth is permitted where the child has been legitimated. In addition, under the Adoption Act 1958, where a child is adopted, the register of births is to be marked with the word "adopted"; the adoption is also registered in the Adopted Children Register and a short certificate of birth may be obtained which contains no reference to parentage or adoption.
23. The criteria for determining the sex of the person to be registered are not laid down in the 1953 Act nor in any of the regulations made under it. However, the practice of the Registrar General is to use exclusively the biological criteria: chromosomal, gonadal and genital sex. The fact that it becomes evident later in life that the person’s "psychological sex" is at variance with these biological criteria is not considered to imply that the initial entry was a factual error and, accordingly, any request to have the initial entry changed on this ground will be refused. Only in cases of a clerical error, or where the apparent and genital sex of the child was wrongly identified or in case of biological intersex, i.e. cases in which the biological criteria are not congruent, will a change of the initial entry be contemplated and it is necessary to adduce medical evidence that the initial entry was incorrect. However, no error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex.
24. The birth registers and the indexes of all the entries are public. However, the registers themselves are not readily accessible to the general public as identification of the index reference would require prior knowledge not only of the name under which the person concerned was registered, but also of the approximate date and place of birth and the Registration District.
25. The law does not require that the birth certificate be produced for any particular purpose, although it may in practice be requested by certain institutions and employers.
In particular, a birth certificate has in general to accompany a first application for a passport, although not for its renewal or replacement. A birth certificate is also generally (though not invariably) required by insurance companies when issuing pension or annuity policies, but not for the issue of motor or household policies nor, as a rule, for the issue of a life insurance policy. It may also be required when enrolling at a university and when applying for employment, inter alia, with the Government.
26. In English law, marriage is defined as a voluntary union for life of one man and one woman to the exclusion of all others (per Lord Penzance in Hyde v. Hyde (1868) Law Reports 1 Probate and Divorce 130, 133). Section 11 of the Matrimonial Causes Act 1973 gives statutory effect to the common-law provision that a marriage is void ab initio if the parties are not respectively male and female.
27. According to the decision of the High Court in Corbett v. Corbett (1971) Probate Reports 83, sex, for the purpose of contracting a valid marriage, is to be determined by the chromosomal, gonadal and genital tests where these are congruent. The relevance of a birth certificate to the question whether a marriage is void only arises as a matter of evidence which goes to the proof of the identity and sex of the person whose birth it certifies. The entry in the birth register is prima facie evidence of the person’s sex. It may, however, be rebutted if evidence of sufficient weight to the contrary is adduced.
28. If, for the purpose of procuring a marriage or a certificate or licence for marriage, any person knowingly and wilfully makes a false oath or makes or signs a false declaration, notice or certificate required under any Act relating to marriage, he is guilty of an offence under Section 3 (1) of the Perjury Act 1911. However, a person contracting a marriage abroad is not liable to prosecution under this Act.
29. The biological definition of sex laid down in Corbett v. Corbett has been followed by English courts and tribunals on a number of occasions and for purposes other than marriage.
The applicant has drawn the Court’s attention to the following cases. In one case concerning prostitution, a male to female transsexual, who had undergone both hormone and surgical treatment, was nevertheless treated as a male by the Court of Appeal for the purposes of Section 30 of the Sexual Offences Act 1956 and Section 5 of the Sexual Offences Act 1967 (Regina v. Tan and Others 1983, [1983] 2 All England Law Reports 12). In two cases concerning social security legislation, male to female transsexuals were considered by the National Insurance Commissioner as males for the purposes of retirement age; in the first case the person in question had only received hormone therapy, in the second he had involuntarily begun to develop female secondary characteristics at the age of 46, which developments were followed by surgery and adoption of a female social role some 13 years later (cases R (P) 1 and R (P) 2 in the 1980 Volume of National Insurance Commissioner Decisions). Lastly, in a case before an Industrial Tribunal a female to male transsexual, who had not undergone any sex change treatment, was treated as a female by the Tribunal for the purposes of the Sex Discrimination Act 1975; the person in question had sought and received employment in a position reserved for men under the Factories Act, but was dismissed after discovery of her biological sex (White v. British Sugar Corporation Ltd. [1977] Industrial Relations Law Reports p. 121).
NON_VIOLATED_ARTICLES: 12
8


ITEMID: 001-5583
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CAKIROGLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant is a Turkish national, born in 1918 and living in Ankara, Turkey.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1995 the Turkish Telecommunications General Directorate (Telekom) notified the applicant that he had to pay interest on his telephone bill on account of his delay in paying the bill. The bill related to use of a telephone line registered in his firm’s name and installed in the firm’s premises.
On 23 June 1995 the applicant applied to the Ankara Magistrates’ Court No. 13 for Civil Affairs. He claimed that, according to his firm’s contract with Telekom, interest could not be imposed for late payment of the telephone bill. Also on 23 June 1995, and at the applicant’s request, the Ankara Magistrates’ Court No. 13 for Civil Affairs requested Telekom not to cut off the telephone line pending the outcome of the proceedings.
On 28 February 1996 the Ankara Magistrates’ Court No.13 for Civil Affairs ruled in favour of the applicant.
On 8 April 1996, following an appeal by Telekom, the Civil Chamber No. 3 of the Court of Cassation quashed the Magistrates’ Court No. 13’s decision on the ground inter alia that Telekom could oblige the applicant to pay interest for late payment of the telephone bill pursuant to clause 23 of the contract between Telekom and the applicant’s firm. When the case was referred back to it, the Ankara Magistrates’ Court No. 13 for Civil Affairs, on 27 June 1996, insisted on upholding its initial decision in favour of the applicant.
Telekom appealed. On 4 December 1996 the General Council of the Court of Cassation for Civil Affairs quashed the Magistrates’ Court’s decision with reference to its earlier decision of 8 April 1996.
On 9 April 1997 the General Council of the Court of Cassation for Civil Affairs, on the applicant’s request for rectification of its decision of 4 December 1996, quashed the Magistrates’ Court’s decision of 27 June 1996 on the ground that it lacked jurisdiction in the matter.
In the course of the civil proceedings, the applicant was again notified by Telekom that he had to pay two telephone bills together with interest on account of late payment. The bills and the interest thereon related to two telephone lines installed in his firm’s premises, both of which were registered in the applicant’s name.
On 19 August 1996 the Ankara Magistrates’ Court No. 6 for Civil Affairs, at the applicant’s request, ordered Telekom not to cut off the applicant’s telephone lines pending the outcome of the proceedings which the applicant intended to take.
On 29 August 1996 the applicant applied to the Ankara Magistrates’ Court No. 5 for Civil Affairs. He claimed that, according to his contract with Telekom, interest could not be imposed for late payment of the telephone bills.
On 6 May 1997 the Ankara Magistrates’ Court No. 5 for Civil Affairs declined to hear the case on the ground that it lacked jurisdiction in the matter.
The applicant then instituted two set of proceedings against Telekom. The first set of proceedings was introduced on this occasion before the Ankara First Instance Court No. 16 on behalf of his firm in whose name one telephone line was registered. The date of re-introduction of the claim was taken to be 23 June 1995 in order to prevent the applicant’s action from being time-barred. The applicant claimed in these proceedings that his firm was not liable to pay interest on account of late payment of telephone charges in respect of this one telephone line. The second set of proceedings was introduced on his own behalf on 29 August 1996 before the Ankara First Instance Court No. 9 in respect of his liability to pay interest on account of late payment of telephone charges in respect of two lines registered in his name and installed in his firm.
On 16 July 1997 the Ankara First Instance Court No. 16 ruled that interest on late payment could not be demanded from the applicant’s firm. In its decision the First Instance Court No. 16 pointed out that its judgment was final in view of the subject matter of the case under Article 427 of the Civil Procedural Law. Telekom sought to appeal the decision of 16 July 1997.
On 18 September 1997, in a separate decision, the First Instance Court No. 16 rejected Telekom’s application for appeal.
Telekom then appealed against the First Instance Court No. 16’s decision of 18 September 1997. The Civil Chamber No. 13 of the Court of Cassation transferred the file to the Civil Chamber No. 11 since it lacked jurisdiction to hear the appeal under the law governing the procedure before the Court of Cassation (Law No. 2797). The Civil Chamber No. 11 in turn transferred the case file to the Civil Chamber No. 19 on the same ground.
On 10 March 1998 the Civil Chamber No. 19 of the Court of Cassation ruled in favour of Telekom and quashed the First Instance Court No. 16’s decisions of 16 July 1997 and 18 September 1997.
The applicant applied for rectification of the decision of 10 March 1998. On 12 June 1998, at the rectification stage, the Civil Chamber No. 19 reversed its decision of 10 March 1998 and upheld the First Instance Court No. 16’s judgment of 18 September 1997 in which it rejected Telekom’s application for appeal.
On 30 September 1997 the Ankara First Instance Court No. 9 also ruled that interest on late payment could not be demanded from the applicant.
On Telekom’s appeal the Civil Chamber No.13 of the Court of Cassation, on 19 January 1998, quashed the First Instance Court No. 9’s judgment of 30 September 1997. The case was remitted to the First Instance Court No. 9.
In a judgment dated 17 July 1998 the First Instance Court No. 9 complied with the judgment of the Court of Cassation and ruled in favour of Telekom.
The applicant appealed against the First Instance Court No. 9’s judgment of 17 July 1998.
On 1 October 1998 the Civil Chamber No.13 of the Court of Cassation upheld the First Instance Court No. 9’s judgment of 17 July 1998.
On 10 December 1998 the applicant’s request for rectification was further rejected.


ITEMID: 001-91602
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KHALITOVA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1966 and lives in the village of Goyskoye in the Urus-Martan District of the Chechen Republic.
8. The applicant did not witness the killing of her husband and the account of events given below is based on witness statements by the applicant’s fellow villagers. She submitted statements by a Mr A. and a Mr K.
9. On 11 September 2000 Mr A. and Mr K. were guarding agricultural fields to the north of the village of Goyskoye near the Goitinka River in the Urus-Martan District of the Chechen Republic. At about 3 p.m. they met the applicant’s husband, Mr Lecha Adamovich Khazhmuradov, born in 1964, and Mr D., who had come to get some wood in the nearby forest area.
10. Some time later a number of armed men arrived in two armoured personnel carriers. According to the witnesses, they were servicemen of the Russian armed forces. Without any prior warning the servicemen opened indiscriminate fire across the field. The witnesses hid so that they could observe the events in safety. The servicemen also fired at the applicant’s husband and Mr D. Mr Lecha Khazhmuradov was killed on the spot. Then the servicemen crossed the river and shot Mr D. They dropped the two dead bodies in the river, got in the armoured personnel carriers and drove away in the direction of Urus-Martan.
11. According to Mr A. and Mr K., the armoured personnel carriers should have passed near a federal military unit located at that time on the north-western outskirts of the village. They should also have passed through a federal check-point which blocked the motorway leading from Goyskoye to Urus-Martan.
12. After the soldiers had left, Mr A., Mr K. and several other residents of Goyskoye, who had come from the village having heard the shooting, took the corpses out of the water and took them back to the village.
13. Later that day the villagers informed the law-enforcement agencies of the incident.
14. The killing of Mr D. does not form part of the present application.
15. According to the Government, on 12 September 2000 the prosecutor’s office of the Urus-Martan District (“the district prosecutor’s office”) instituted an investigation into the murder of Mr Lecha Khazhmuradov and Mr D. under Article 105 § 2 of the Russian Criminal Code (aggravated murder). The case file was assigned the number 24376. It does not appear that the applicant was duly informed of that decision.
16. In the Government’s submission, on 12 September 2000 the status of victim was given to Mr Lecha Khazhmuradov’s brother. The applicant’s request that she be declared a victim of a crime was rejected, since she had not furnished the authorities with documents confirming that she was married to Mr Lecha Khazhmuradov.
17. According to the Government, on 12 September 2000 the investigating authorities inspected the scene of the incident, which was heavily saturated with a substance of a brown colour resembling blood, and found fragments of biological material resembling brain matter. They also found six bullet cases of 7.62 mm calibre. At a certain distance from that place, on the other river bank, the investigating authorities found twenty-five bullet cases of 7.62 x 39 mm calibre, eight bullet cases of 7.62 x 51 mm calibre and two bullet cases of 5.45 mm calibre. Also, the tyre tracks of a motor vehicle, presumably an armoured personnel carrier, were found at the scene of the incident. According to an expert examination carried out on an unspecified date, the bullet cases found at the scene of the incident were of the type used for firing from various modifications of machine-guns, sniper rifles and self-loading rifles.
18. According to the Government, a medical examination of Mr Lecha Khazhmuradov’s body carried out on an unspecified date reported that he had died due to an extensive open wound to the head with calvarias bone fracture and complete ejection of his brain matter.
19. The Government further submitted, without specifying the dates, that the investigating authorities had identified and questioned eyewitnesses to the incident, Mr E., Mr Lit. and Mr A. In particular, Mr E., a warden of agricultural fields, stated that on 11 September 2000 he had been guarding the field and the applicant’s husband and Mr D. had been working in the nearby wood, when at about 4 p.m. a group of men in green uniforms had arrived in two armoured personnel carriers and started indiscriminate shooting. After the men in armoured personnel carriers had left, he and his workmate, Mr Lit., had approached the place where the applicant’s husband and Mr D. had been working and had found their corpses in the river nearby.
20. According to the Government, Mr Lit. stated during his witness interview that on 11 September 2000 he had been guarding the field, together with Mr E., whilst Mr Lecha Khazhmuradov and Mr D. had been working in the nearby wood. Then servicemen in two armoured personnel carriers had arrived and opened indiscriminate shooting from automatic firearms. Fifteen or twenty minutes later the soldiers had ceased fire, then five or six of them had crossed the river and entered the wood in which the applicant’s husband and Mr D. had been working. Mr Lit. had heard the soldiers curse, then several shots followed, and then he had seen the soldiers throw the dead bodies of Mr Lecha Khazhmuradov and Mr D. into the river. After the soldiers had left in their armoured personnel carriers in the direction of the motorway, Mr Lit. and Mr E. had taken the corpses out of the river and delivered them to their homes.
21. In the Government’s submission, Mr A. had given similar oral evidence.
22. The Government also submitted, without specifying the date, that the investigating authorities had also questioned the applicant, who had stated that on 11 September 2000 her husband and Mr D. had left to get some firewood to the north of the village near the river. Some time later she had heard machine-gun fire coming from that direction, and some time later the dead bodies of her husband and Mr D. had been brought back by other residents of their village who had seen the incident and had stated that her husband and Mr D. had been killed by Russian servicemen.
23. In their additional memorial of 8 May 2008 submitted in reply to the applicant’s observations, the Government further stated that the investigating authorities had also questioned a certain Mr L., a serviceman who had been on duty at a check-point in the vicinity of the scene of the incident on 11 September 2000. According to the Government, Mr L. had submitted that on the date in question at about 6 p.m. two armoured personnel carriers had passed through the check-point, their registration numbers being covered with cartridge boxes, and that some time later local residents had arrived in several cars and had stated that unidentified persons had shot down their fellow-villagers. In the Government’s submission, Mr L. was unable to recall whether the local residents mentioned that the murder had been committed by servicemen.
24. In the applicant’s submission, she had regularly visited the district prosecutor’s office and requested that she be informed of any progress in the investigation, but in vain.
25. On 29 August 2003 the applicant requested the district prosecutor’s office to inform her of any progress in the investigation and allow her to join the proceedings as a victim and a civil claimant.
26. On 1 October 2003 the district prosecutor’s office suspended the investigation in case no. 24376 for a failure to identify those responsible. The applicant was not promptly informed of the decision.
27. On 23 January 2004 the applicant requested the district prosecutor’s office to inform her of the progress in the investigation and to admit her to the proceedings as a victim and a civil claimant.
28. On 18 February 2004 the district prosecutor’s office quashed the decision of 1 October 2003 for the reason that the investigation was incomplete and resumed the proceedings in case no. 24376. They noted, in particular, that Mr Lecha Khazhmuradov and Mr D. had been killed “for no good reason” by “servicemen of an unknown military unit”.
29. On 20 February 2004 the district prosecutor’s office decided to allow the applicant to join the proceedings as a civil claimant. On 26 February 2004 they also granted her the status of victim of a crime. It was mentioned in both decisions that Mr Lecha Khazhmuradov and Mr D. had been killed “for no good reason” by “servicemen of an unknown military unit”.
30. On 19 March 2004 the district prosecutor’s office again stayed the proceedings in case no. 24376 for failure to identify those responsible.
31. In the applicant’s submission, since April 2004 she has not even once been informed by the authorities of the progress in the investigation in case no. 24376.
32. On 7 December 2005 the applicant requested the district prosecutor’s office to carry out a number of investigative actions; in particular, to question servicemen of the military unit from the DON-100 regiment of the Russian Ministry of the Interior, who had been stationed on the north-western outskirts of Goyskoye in September 2000; to question servicemen who had been on duty at the check-point on the motorway between Goyskoye and Urus-Martan, which the alleged perpetrators had passed through after the incident; to carry out ballistic tests; and to check the firearms which had been in use by the servicemen of the DON-100 regiment, among other steps. According to the applicant, she has not received any reply to her request.
33. On 3 March 2004 the applicant requested the district prosecutor’s office to allow her access to the investigation file.
34. On 5 March 2004 the district prosecutor’s office observed that the investigation in case no. 24376 was pending and dismissed the applicant’s request, stating that under domestic law access to a case file could only be allowed upon completion of the investigation.
35. On 12 March 2004 the applicant challenged the prosecutor’s decision of 5 March 2004 before the Urus-Martan Town Court.
36. By a decision of 29 March 2004 the Urus-Martan Town Court dismissed the applicant’s complaint, stating that “during the investigation a sufficient range of investigative steps aiming at resolving the crime and identifying those responsible [had been] undertaken”, that the investigation had not yet been completed but had been suspended owing to the fact that it was impossible to establish those responsible, and that therefore the decision of 5 March 2004 was well-founded, as under national law a victim could also gain access to the case file upon the completion of an investigation.
37. On 21 April 2004 the Supreme Court of the Chechen Republic dismissed the applicant’s appeal and upheld the first-instance decision.
38. In September 2007, when the application was communicated to them, the Government were invited to produce a copy of the investigation file in criminal case no. 24376 opened in connection with the murder of the applicant’s husband and Mr D. The Government refused to submit any documents from the file, stating that, under Article 161 of the Russian Code of Criminal Procedure, disclosure of the documents was contrary to the interests of the investigation and could entail a breach of the rights of the participants in the criminal proceedings. They also submitted that they had taken into account the possibility of requesting confidentiality under Rule 33 of the Rules of Court, but noted that the Court provided no guarantees that once in receipt of the investigation file, the applicants or their representatives would not disclose those materials to the public. According to the Government, in the absence of any sanctions in respect of applicants for the disclosure of confidential information and material, there were no guarantees concerning compliance by the applicants with the Convention and the Rules of Court.
39. In January 2008 the Court reiterated its request. In reply, the Government again refused to produce any documents from the file for the aforementioned reasons. At the same time, they suggested that a Court delegation could be given access to the file in Russia, with the exception of those documents containing military and State secrets, and without the right to make copies of the case file.
40. For a summary of the relevant domestic law see Kukayev v. Russia, no. 29361/02, §§ 67-69, 15 November 2007.
VIOLATED_ARTICLES: 13
2
VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-115767
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: NIKOLSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Lech Nikolski, is a Polish national, who was born in 1955 and lives in Warszawa. He was represented before the Court by Mr M. Zakręt, a lawyer practising in Tychy.
3. Between 2001 and 2003 the applicant was the head of the Prime Minister’s political cabinet (Szef Gabinetu Politycznego Prezesa Rady Ministów).
4. In July 2002 a prominent film producer L. Rywin, in exchange for a bribe, offered to A.M. the editor of Poland’s largest newspaper -Gazeta Wyborcza- to arrange for a change in a draft law aimed at limiting the print media’s influence on radio and television. He claimed to be acting on behalf of what he called a “group in power” which wanted to remain anonymous. In December 2002 Gazeta Wyborcza printed the partial record of A.M.’s conversation with Mr Rywin.
5. In January 2003 the Sejm (the lower house of the Polish parliament) created a special parliamentary committee to conduct an investigation into the circumstances of the affair and the group in power.
Simultaneously, a separate criminal investigation was conducted against Mr Rywin.
6. On 5 April 2004 the Sejm committee officially terminated the parliamentary investigation. By a majority vote it adopted a final report which came to the conclusion that Mr Rywin had been acting on his own. Subsequently, the Sejm had to decide whether to accept the committee’s official final report or one of the various minority reports as the outcome of the investigation. Unexpectedly, on 24 September 2004 it voted to accept the minority report that most radically departed from the majority report and named the applicant as a member of the “group in power” and one of the masterminds behind Rywin’s mission (together with four other persons: the former prime minister, deputy minister of culture, head of the Polish public television and a high-ranking politician). The authors of the report considered that the applicant had committed the criminal offences of bribery and false testimony.
7. On 11 October 2004 the applicant requested the Warsaw District Prosecutor (Prokurator Rejonowy) to institute an investigation in order to establish whether he had committed the offences listed in the parliamentary committee’s report.
8. The applicant’s case was transferred to the Warsaw Appeal Prosecutor (Prokurator Apelacyjny) and subsequently to the Białystok Appeal Prosecutor, where it was joined to an investigation which had already been pending (concerning the “group in power”).
9. The applicant was heard by the prosecutor on 28 December 2004 and 7 January 2005. It appears that he was not officially charged with a criminal offence.
10. On 7 September 2005 the applicant’s representative asked about progress in his case. In reply he was informed that it was not possible to envisage the date of termination of the proceedings.
11. On 28 May 2007 the applicant’s representative again asked the Appeal Prosecutor about the progress in the investigation. He confirmed that he was aware of the fact that the investigation concerned several persons and many issues.
12. On 4 June 2007 the Appeal Prosecutor informed the applicant that since the alleged bribery scandal concerned four other persons listed in the Sejm’s report of 24 September 2004, it was impossible to terminate the proceedings only with respect to the applicant.
13. In 2007 in view of the organisational changes in the prosecution authorities, the investigation was transferred to the newly created State Prosecution (Prokuratura Krajowa) and its Białystok office.
14. On 22 January 2008 the Białystok State Prosecutor discontinued the criminal proceedings partly on the ground that no offences had been committed and partly because some of the offences were time-barred. The Prosecutor obtained evidence from numerous witnesses including many politicians and obtained voluminous documentary evidence.
15. The applicant could not appeal against the decision to discontinue the proceedings, since he was not listed as one of the culprits in the final decision.
16. The relevant domestic law and practice concerning remedies for the excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland, no. 11215/02 (dec.), ECHR 2005VIII, and in its the judgment in the case of Krzysztofiak v. Poland, no. 38018/07, §§ 23-31, 20 April 2010.