ITEMID: 001-93816
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SOKOLOWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Zygmunt Sokołowski, is a Polish national who was born in 1929 and lives in Poznan.
The applicant’s parents owned a large metallurgical factory in Nowy Tomyśl. Following the outbreak of the Second World War, in the autumn of 1939 the property was taken over by the German occupying administration. The applicant’s entire family were evicted from their home, which was in the same town, put in a transit camp for a period and in December 1939 resettled to the Generalgouvernement, the eastern part of Poland under a special regime of German occupying administration. During the war the factory operated under a trustee appointed by the German administration (“Treuhaender”). When the applicant’s family returned in 1945, they found only the bare walls. All equipment had been stolen.
After the war, in 1945, the Polish authorities instructed the applicant’s father to make a list of the damage that had been done to his property by the German occupying forces. He submitted the list to the local authorities in 1946. He estimated the amount of damage at 298,290 zlotys (PLZ).
Until 1953 Germany paid war reparations to Poland on the basis of international agreements. The applicant’s parents did not, however, receive any compensation. In 1953 Poland had renounced its right to obtain further reparations from the then German Democratic Republic (see below, Relevant domestic and international law).
In May 1999 the applicant requested the State Treasury, represented by the Wielkopolski Governor, to pay him compensation for damage caused in the part of the property owned by his mother as a result of the acts of the occupying German administration. On 11 February 2001 the Minister of Internal Affairs refused. The applicant appealed to the Supreme Administrative Court.
By a judgment of 29 March 2001 that court dismissed the applicant’s appeal. It noted that it was not in dispute that the applicant’s mother’s property had been damaged by the German occupying administration, but considered that it had to examine whether the applicant’s claim was of such a character as to be determined by way of an administrative decision. It observed that it was true that Poland had obtained war reparations from Germany on the basis of international agreements and that these were intended to cover both damage sustained by the State and various forms of damage suffered by individuals. However, it held that neither the domestic nor international law provided for a substantive individual compensation claim on the part of former owners or their successors in title which could be determined by way of an administrative decision.
In September 2001 the applicant submitted a compensation claim against the Ministry of State Treasury to the Warsaw–Śródmieście District Court concerning the part of the property owned by his father.
By a judgment of 27 January 2003 the District Court dismissed that claim. In so far as the applicant had argued that his claim was based on liability in tort under Article 415 of the Civil Code, the court considered that the damage which his predecessor in title had sustained had originated from the acts of the German occupying administration. Hence, no civil obligations based on the law of tort could have arisen between the applicant and the State Treasury. Moreover, while it was true that the State had participated after the Second World War in international agreements concerning the war reparations to be paid to Poland, and that Germany had paid them in part, no international legal agreements had ever been concluded which would have imposed on the State an obligation to transfer to individuals the funds which it had received in war reparations from Germany.
Likewise, no such obligation had been imposed on the State by the domestic law. It was true that in 1944 the Polish authorities had created a Ministry of War Reparations (Resort Odszkodowań Wojennych), but its competence had been limited to establishing the war damage caused in Poland by the German occupying administration and making relevant estimates with a view to obtaining reparations. Similarly, the Reconstruction Plan Act 1947 (Ustawa o Planie Odbudowy Gospodarczej) did not impose on relevant institutions an obligation to issue ordinances regulating compensation due to individuals. Consequently, the domestic law did not contain any regulation under which the applicant could claim compensation from the Polish State in respect of damage caused to individuals by the German occupying authorities during the war.
The applicant appealed. He disagreed with the assertion that his claim had been based on legal provisions governing civil liability for tortious acts. He submitted that the first-instance court had breached the provisions of the Civil Code in so far as Article 417 thereof specifically established that the State had a civil liability for the acts of its agents. He further referred to Article 77 of the Constitution, which stated that everyone had the right to compensation for damage caused by the unlawful acts or omissions of public authorities. He submitted that, in his case, the State had failed in its obligation to issue legal regulations, in the form of an ordinance, entitling individuals to make substantive compensation claims in respect of war damage they had suffered. The obligation, in his view, originated from the Reconstruction Plan Act. He also referred to Article 1 of Protocol No. 1 to the Convention.
The applicant further argued that the State had obtained reparations from Germany which, contrary to the opinion expressed in the proceedings by the State-Treasury representatives, were intended to cover both the State and individual damage. He referred to the judgment of the Supreme Administrative Court of 29 March 2001. In his submission, therefore, the State should have been obliged to pay him compensation from the funds it had received for that purpose. Under the rule of law a citizen could not legitimately be required to bear the adverse effects of the State’s failure to legislate. The Reconstruction Plan Act had entrusted responsibility for its execution to the Minister. The ordinary meaning of the phrase “entrusts the execution” had to be seen as imposing on the Minister an obligation to issue relevant ordinances which would make it possible for individuals to obtain compensation funded by war reparations.
By a judgment of 13 May 2003 the Warsaw Regional Court dismissed the applicant’s appeal. It observed, firstly, that the first-instance court had failed to examine whether the Reconstruction Plan Act 1947 was still in force. It held that that Law had been enacted with the specific purpose of reorganising the economy through planning techniques. It had therefore lapsed at the end of 1948 following the implementation of the plan it had created and could not, therefore, serve as a source of any individual rights and obligations. Moreover, section 100 of the Act on which the applicant had relied, could not be regarded as authorisation for issuing the ordinance, as such statutory authorisation had to comply with precise conditions that were set out in Article 92 of the Constitution. Hence, the fact that no ordinance had been issued on the basis of that section could not be construed as a failure to act giving rise to the State’s liability in tort under Article 417 of the Civil Code.
In any event, the transitional provisions of that Code, which had entered into force on 1 January 1965, had clearly provided that the legal consequences of civil obligations arising out of events that had occurred prior to that date had to be assessed in the light of the statutory provisions in force at the time the events took place. Hence, the civil liability of the State could not be examined in the light of Article 417 of the Civil Code, but only in the light of the Code of Obligations, which had been enacted in 1933. However, the Code of Obligations did not specifically regulate the State’s liability in tort. Civil liability in tort was governed only by general provisions and could arise only when it could be shown that the tortfeasor had acted unlawfully or had failed to act when required to do so. In the absence of any obligation on the State to legislate on individual compensation claims, it could not be said that the State had acted unlawfully and should have been held liable.
The reparations which Poland had obtained from Germany constituted a debt of the latter towards the Polish State. No individual right vis-à-vis the State Treasury had been generated by the payment of reparations to the Polish Government.
The Regional Court further accepted the reasoning of the lower court concerning the legal character of the provisions of the Reconstruction Plan Act. It reiterated that no individual right to compensation could be derived from it.
The applicant lodged a cassation appeal with the Supreme Court, essentially reiterating his earlier arguments.
By a judgment of 15 October 2003 the Supreme Court dismissed his cassation appeal.
It observed that the applicant had asserted that his claim was based essentially on the State’s failure to enact ordinances providing for a detailed compensation mechanism for damage caused by the German occupying administration. However, no liability in tort could have arisen on the part of the State, as it had been under no obligation to introduce such legislation. Neither Article 417 of the Civil Code nor the provisions of the Code of Obligations of 1933 provided that mere inaction - provided it was not unlawful – could give rise to the State’s liability in tort. Section 100 of the Reconstruction Plan Act, contrary to the applicant’s assertion, did not impose any such obligation on the State.
Nor could the court accept that the applicant’s claim could be based directly on the Constitution. For the State’s liability to arise towards an individual a statutory legal basis was necessary. Moreover, under the case-law of the Constitutional Court, Article 417 governing State liability could be applied only to events that occurred after the Constitution entered into force in 1997. In conclusion, the findings of the lower courts that the State’s conduct could not be qualified as unlawful were correct and had to be upheld.
The Potsdam Agreement – an agreement on policy for the occupying and reconstruction of Germany after the Second World War and the German surrender of 8 May 1945 – was adopted by the three Heads of Government of the United States of America, the United Kingdom and the Union of Soviet Socialist Republics (“the Three Powers”) and set out, inter alia, the principles governing the payment of war reparations by Germany (Chapter III, “Reparations from Germany”).
The issue of war reparations for Poland, which in accordance with the Potsdam Agreement were to be settled by the USSR from its share, was resolved by a bilateral treaty between the USSR and Poland: the Agreement of 16 August 1945 between the Polish Provisional Government of National Unity and the Government of the USSR on compensation for financial losses sustained during the German occupying administration (umowa między Tymczasowym Rządem Jedności Narodowej RP a Rządem ZSRR o wynagrodzeniu szkód finansowych wyrządzonych przez okupację niemiecką).
In 1953 Poland expressly renounced further reparations in an agreement with the Democratic Republic of Germany (East Germany) and again in the Warsaw Treaty of 1970 with the Federal Republic of Germany (West Germany).
The Reconstruction Plan Act was adopted on 2 July 1947. Its Section 1 read:
“A National Economy Plan 1947 – 1949 (Reconstruction Plan) is hereby established.”
Section 3 provided as follows:
“The raising of living standards of the working class above their pre-war levels shall be the essential task of the national economy from 1947 until 1949.”
Section 4 read, inter alia:
“The task referred to above shall be carried out through ... b) war reparations.”
Section 6 read:
“Damage caused by the war shall be repaired in a manner corresponding to plans regarding reconstruction of the national economy; with due regard being had to the creation of basis for its necessary restructuring and growth during the next national planning periods and to preventing further deterioration of national property.”
Section 100 provided:
“The Council of Ministers and the ministers shall be responsible for implementing the provisions of this Act.”
Articles 415 et seq. of the Polish Civil Code, which entered into force in 1964, provide for liability in tort. Under this provision, anyone who through his or her fault causes damage to another is required to repair it.
Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for any damage caused by a State official in the performance of his or her duties.”
On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – including the addition of a new Article 4171 and provision for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne).
Article 4171, in so far as relevant, reads as follows:
“4. If damage has been caused by failure to enact a law [akt normatywny] where there is a statutory duty to do so, the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages.”
Under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date.
Article 77 § 1 of the 1997 Polish Constitution which entered into force on 17 October 1997, states, in so far as relevant, as follows:
“Everyone shall have the right to compensation for any harm done to him or her by any act of a public authority in breach of the law.”


ITEMID: 001-4512
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: DRIEMOND BOUW BV v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch construction company with limited liability having its registered seat in Amsterdam. In the proceedings it is represented by Mr M.W.C. Feteris, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the parties, may be summarised as follows.
a. Particular circumstance of the present case
In 1988 and 1989, the applicant company hired employees for work in the Netherlands from Schmitz Betonstahlbetrieb GmbH (hereinafter referred to as "Schmitz GmbH"), a company with limited liability having its registered seat in Germany. For the latter company's employees hired by third companies, the German Local Sickness Fund (Allgemeine Ortskrankenkasse) issued secondment certificates (detacherings-verklaringen), so-called E-101 certificates.
In accordance with the relevant statutory rules, the Dutch New General Occupational Association (Nieuwe Algemene Bedrijfsvereniging; "NAB") enlisted Schmitz GmbH as a member and decided that the latter had to pay Dutch social security contributions for these employees. As Schmitz GmbH failed to provide the NAB with the necessary information on wages paid, the NAB determined the relevant social security contributions ex officio. Schmitz GmbH was declared bankrupt in March 1989.
In its decision of 23 December 1992, the NAB held the applicant company severally liable (hoofdelijk aansprakelijk) for the payment of the social security contributions under the Unemployment Insurance Act (Werkloosheidswet; "WW"), the Sickness Benefits Act (Ziektewet; "ZW"), the Health Insurance Act (Ziekenfondswet; "ZFW") and the Labour Disability Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering; "WAO") for the employees hired by the applicant company from Schmitz GmbH. These contributions amounted in total to 29,595 Dutch guilders.
In this decision it was stated that the applicant company would have been exempted from this liability if it would have reported, in accordance with the procedure stated in the decision Nr. 73943 of 21 July 1960 of the Social Security Council (Sociale Verzekeringsraad), that it was availing itself of the services of seconded employees and, in addition, if this secondment had taken place under a permit referred to in Article 2 para. 1a of Act on Secondment of Workers (Wet op het ter beschikking stellen van arbeidskrachten) issued to the seconding employer. It was found that the applicant company had not complied with either condition.
The applicant company filed an appeal with the Regional Court (Arrondissementsrechtbank) of Amsterdam. In the course of a hearing held on 8 December 1992 before the Regional Court, the applicant company submitted not to have found any social security contribution demands (premienota's) and, expressing doubts on the actual existence of such demands, raised the question whether under these circumstances it could be held liable for payment of these social security contributions. The NAB replied that the demands existed.
On 31 December 1993, the Regional Court rejected the applicant company's appeal as ill-founded. The Regional Court noted that no payment had been received on the social security contribution demands for the years 1987, 1988 and 1989 which the NAB had addressed to Schmitz GmbH.
As to the question whether the applicant company could be held liable for the payment of these contributions, the Regional Court held that the applicant company had failed to report that it was availing itself of seconded employees and that no permit had been issued to Schmitz GmbH.
Rejecting all arguments advanced by the applicant company in this respect, the Regional Court found that the facts at issue did not constitute a situation of international secondment as referred to in the EEC Ordinances 1408/71 and 574/72. It noted that the employees at issue were all Dutch nationals and were all residing and working in the Netherlands at the relevant time. It further noted that Schmitz GmbH had recruited these employees, who until that moment had been insured under the Dutch social security system, in the Netherlands where they had also been assigned to work.
Having reached this finding, the Regional Court concluded that the Dutch social security legislation was applicable to the employees hired by the applicant company and that, as Schmitz GmbH had failed to pay the contributions due, the applicant company could be held liable, pursuant to Article 16a of the Social Security Co-ordination Act, for payment of the social security contributions over the years 1988 and 1989 in respect of the employees it had hired from Schmitz GmbH.
The applicant company filed an appeal with the Central Appeals Tribunal (Centrale Raad van Beroep). In its written appeal it stated, inter alia, that it did not appear from the case-file that social security contribution demands had been issued to Schmitz GmbH. The applicant company argued that, as long as statutory social security contributions debts had not been formalised in a social security contribution demand, there could be no formally claimable contribution debt. It further doubted that any steps aimed at collecting this debt had been taken against Schmitz GmbH and submitted that, in these circumstances, it was inappropriate that it should be held liable for this debt.
In its written reply of 28 March 1995 to the applicant company's appeal, the NAB stated that social security contribution demands had been issued and, although it had not yet been possible to submit copies of these demands, that it would submit copies of these demands as soon as possible. As to the lack of any debt recovery steps, the NAB submitted that Schmitz GmbH had gone bankrupt in 1989 and that it was thus impossible to collect this debt.
In the course of a hearing held on 18 September 1995 before the Central Appeals Tribunal, the applicant company also argued that the letters of 18 June 1987 and 24 October 1988 from the Foundation Social Fund Construction Industry (Stichting Sociaal Fonds Bouwnijverheid; "SFB") to Schmitz GmbH had created a legitimate expectation that no Dutch social security contributions would be imposed. It further submitted that, since it still had not received any social security contribution demands addressed to Schmitz GmbH, no contributions had been imposed and thus no contributions were due.
The NAB replied that it could not bear any responsibility for acts of another administrative organ which may have led to certain expectations and, as regards the submission of the demands, responded that this had still not been done but that it would be able to submit these demands at the hearing.
In reply to this offer by the NAB to submit the demands, the President of the Central Appeals Tribunal, referring to Article 7:4 of the General Administrative Law Act (Algemene Wet Bestuursrecht), stated that additional documents were to be submitted up to 10 days before the date of the hearing.
When the applicant company submitted that the NAB, in its written submissions of 28 March 1995, had only stated that the demands would be submitted as soon as possible but that so far nothing had in fact been submitted, the President of the Central Appeals Tribunal stated that it appeared indisputably from the administrative records that social security contributions demands had been issued ("uit de administratie onomstotelijk blijkt dat er premienota's zijn opgelegd"). The applicant company's representative responded not to have seen these demands.
In its decision of 30 October 1995, the Central Appeal Tribunal rejected the applicant company's appeal and upheld the judgment of 31 December 1993.
It held, inter alia, that it agreed with the Regional Court's finding that the employees at issue fell under the Netherlands social security scheme and that the situation at issue did not concern secondment of employees recruited in Germany. It noted on this point that the applicant company did no longer contest this finding.
The Central Appeals Tribunal further agreed with the Regional Court that the letters of 18 June 1987 and 24 October 1988 from the SFB could not be regarded as constituting a violation of the principle of justified expectations (vertrouwensbeginsel) to such an extent that the applicant company's liability could not be maintained. It noted that these letters came from the SFB and not from the NAB and held that, given the manner in which the clauses contained in these letters were formulated, the applicant company could not have attached a decisive importance to them.
The Central Appeals Tribunal did not deal with the issues raised by the applicant company in respect of the social security contribution demands.
b. Relevant domestic law and practice
Under Article 11 of the Netherlands Social Security Co-ordination Act (Coördinatiewet Sociale Verzekeringen), social security contributions due by employers are determined by the occupational association to which the employer belongs. According to paragraph 5 of this provision, the occupational association must inform the employer in writing of the amount due and the delay for payment.
According to Article 13 para. 1 of the Social Security Co-ordination Act, social security contributions will no longer be determined after a period of five years has elapsed since the end of the calendar year for which such contributions are in principle due. Paragraph 2 of this provision states that payment of social security contributions, which have not been collected within ten years after their determination, can no longer be claimed.
Pursuant to Article 16a of the Social Security Co-ordination Act, a legal person hiring employees of a third party may in certain circumstances be liable to pay the social security contributions, in principle due by the third party employer, for such employees. One such circumstance is the failure of the third party to pay these contributions.
In a decision of 28 December 1994, the Central Appeals Tribunal held that a third party cannot be held liable for payment of social security contributions if the initial demand had not issued to the correct debtor. In that case it was held that the real debtor was a company with limited liability whereas the demand stated this company's director/shareholder in his personal capacity as debtor (CRvB, 28 december 1994, Rechtspraak Sociaal Verzekeringsrecht 1995, Nr. 171).
Under Article 8:42 of the General Administrative Law Act (Algemene Wet Bestuursrecht) the administrative organ against whose decision an administrative appeal has been lodged shall transmit to the court dealing with the appeal the documents relating to the case ("de op de zaak betrekking hebbende stukken") within a set time-limit.
Pursuant to Article 8:45 of the General Administrative Law Act, an administrative court can further request the parties and others to submit documents within a fixed time-limit. Under paragraph 2 of this provision, administrative organs, even if they are no party to the proceedings concerned, are obliged to comply with such a request. Pursuant to Article 8:28 of the General Administrative Law Act, parties are obliged to comply with a request of an administrative court to submit documents.
Under Article 8:69 para. 1 of the General Administrative Law Act, an administrative court shall give judgment on the basis of the notice of appeal, the documents submitted, the preliminary examination and the hearing before the court. Under the second and third paragraphs of this provision an administrative court may ex officio complete the legal grounds and the facts.
Under Article 8:77 of the General Administrative Law Act a written decision of an administrative judicial body shall include the grounds on which it is based.


ITEMID: 001-98309
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: AYATOLLAHI AND HOSSEINZADEH v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicants, Ms Phrooghosadat Ayatollahi and Mr Hojy Bahroutz Hosseinzadeh, are Iranian nationals who were born in 1968 and 1970 respectively and live in Eskişehir. They were represented before the Court by Mr S. Efe, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant, a singer in Iran, was taken into custody and allegedly subjected to ill-treatment on several occasions for being a female singer, which is forbidden in Iran on religious grounds. On one of those occasions the second applicant, who is her husband, was involved in a fight with a police officer in Iran. The applicants fled Iran and entered Turkey on 9 March 2001.
On arrival in Turkey they applied for asylum before the national authorities and requested from the United Nations High Commissioner for Refugees (“the UNHCR”) in Ankara recognition as refugees. The second applicant was registered as a dependant of the first applicant. The national authorities granted the applicants permission to reside in Eskişehir pending asylum proceedings.
On 9 May 2002 the UNHCR Turkey rejected the first applicant’s refugee claim.
On 29 July 2002 the applicants participated in a protest in front of the American Embassy in Ankara against the Iranian regime.
On 26 September 2002 the national authorities notified the applicants that their asylum claims had been rejected and that they had fifteen days to object to this decision. The applicants filed their objection on the same day. They were subsequently permitted to reside in Burdur pending examination of their objection.
Sometime in 2006 the second applicant requested permission to settle in Eskişehir. The applicant’s request was granted and the couple were issued with temporary residence permits.
Following new developments in her case, the first applicant’s file before the UNHCR was re-opened on 13 February 2008. The Turkish authorities were informed of the situation on 22 February and 14 July 2008.
On 2 April 2008 a second deportation order was issued in respect of the applicants, which requested the applicants to leave Turkey by 30 June 2008, at the end of the applicants’ children’s school term. The applicants subsequently informed the Turkish authorities of the reopening of their file before the UNHCR and twice requested a stay of the execution of the deportation order. According to the information in the case file the applicants’ residence permit was extended until 15 May 2009.
Having examined the first applicant’s refugee claim after the re-opening of the file, the UNHCR rejected it again on 16 January 2009.
On 21 October 2009 the second applicant informed the UNHCR that he went back to Iran in February 2009 to attend his father’s funeral. He claimed that he was arrested at the Iranian border and tortured in detention in Iran for 15 days before he was released on bail. He had then fled back to Turkey in October 2009.
On 15 July 2008 the President of the Chamber to which the case was allocated decided to indicate to the Government, under Rule 39 of the Rules of Court, that the applicants should not be deported to Iran until further notice.
On 13 August 2008 the Government informed the applicants that execution of the deportation order in respect of the applicants had been stayed in compliance with the Court’s interim measure.


ITEMID: 001-85868
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: TOWNLEY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr John Townley, is a British national who was born in 1942 and lives in Liverpool. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 8 February 1991. On 11 January 2002, the applicant made a claim for widows’ benefits. On 16 January 2002 he was informed that his claim had been disallowed as he was not a woman. On 7 February 2002 the applicant made a request for reconsideration. On 13February 2002 the applicant was informed that the legislation had not changed and that he was not eligible for such benefits. He subsequently appealed against this decision. On 10 April 2002 he was advised that his appeal had been struck out because it had been introduced out of time.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007 and Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, judgment of 26 March 2007.


ITEMID: 001-5303
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: MITTERMAIER v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Wilhelmina Thomassen
TEXT: The applicant is a Swedish national, born in 1930 and living in Sundbyberg.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant rents a flat in Sundbyberg. The lease contains a “negotiation clause” (förhandlingsklausul), according to which the rent is fixed following negotiations between the landlord and the local tenants’ union (hyresgästföreningen).
On 30 January 1991 the applicant applied, under the 1978 Rent Bargaining Act (hyresförhandlingslagen), at the Regional Rent Tribunal (hyresnämnden) in Stockholm for a rent review concerning the rent for 1991 agreed between his landlord (a company) and the local tenants’ union. The applicant claimed that the agreement was based on erroneous information and that, as a consequence, his rent was excessive and should be adjusted.
Preparatory meetings were held on 5 December 1991 and on 21 May and 18 June 1992.
On 7 September 1992 a hearing was held before the Regional Rent Tribunal. On 12 October 1992 an on-site investigation and a further hearing was held. On 12 November 1992 a final hearing was held.
On 30 November 1992 the Regional Rent Tribunal rejected the application for a rent review. On 10 December 1992 the applicant lodged an appeal against the decision. However, on 9 August 1993 the Rent and Tenancy Court of Appeal (Bostadsdomstolen) rejected the appeal. The court’s decision was not open to further appeal.
In the meantime, on 28 January 1993, the applicant had instituted proceedings before the District Court (tingsrätten) of Solna against his landlord, claiming that the negotiated agreement fixing the rent for 1991 for his flat in Sundbyberg should be declared null and void, or modified, in accordance with certain provisions of the Contracts Act (avtalslagen). Furthermore, he claimed damages to compensate him for the work he had undertaken in order to obtain information about the negotiated agreement. Some parts of the summons application were left unspecified.
On 29 January 1993 the District Court requested the applicant to complete the summons application. He submitted the requested information on 2 February 1993. He then also applied for and was granted legal aid. On 3 February 1993 the court requested the landlord to submit observations within 14 days.
On 8 February 1993 the applicant submitted further information regarding his legal aid. On 9 February 1993 the court made a decision regarding the applicant’s fee for legal aid. On 19 February 1993 the applicant appealed against this decision to the Svea Court of Appeal (Svea hovrätt) and claimed compensation for the work he had undertaken due to the decision.
On 19 February 1993 the landlord submitted observations to the applicant’s summons application, which on 22 February 1993 were communicated to the applicant for his observations before 11 March 1993. On 1 March 1993 the applicant requested, and was granted, an extension of this time-limit to 30 March 1993. On 12 March 1993 the landlord submitted further observations and requested to be compensated for its litigation costs. The observations were submitted to the applicant for his opinion no later than 30 March 1993.
On 24 March 1993 the Court of Appeal reduced the applicant’s maximum amount of legal aid and rejected his claim for compensation.
On 30 March 1993 counsel for the applicant appeared before the District Court and requested to be appointed as the applicant’s official legal aid counsel. The applicant further clarified his claim under the Contracts Act. On 31 March 1993 the request to have legal aid counsel appointed was granted by the District Court.
On 1 April 1993 the applicant submitted further grounds for his claim under the Contracts Act and his counsel requested to be compensated for litigation costs under the 1972 Legal Aid Act (rättshjälpslagen). The request was returned for supplementary information. This information was submitted on 5 April 1993.
On 6 April 1993 the District Court dismissed, as a whole, the action instituted by the applicant, finding that the proceedings before the Rent and Tenancy Court of Appeal (cf. above) constituted litis pendens. The court also ordered the applicant to pay the landlord’s litigation costs.
On 22 April 1993 the applicant appealed against the decision to the Svea Court of Appeal. On 3 June 1993 counsel for the applicant submitted further observations. On 9 June 1993 the applicant himself submitted observations in addition to those submitted on 3 June 1993.
On 7 June 1994 the Svea Court of Appeal quashed the District Court’s decision of 6 April 1993 and referred the case back to the latter for a re-examination. On 21 June 1994, noting that the Court of Appeal had not dealt with the question of litigation costs, the applicant lodged an appeal with the Supreme Court (Högsta domstolen).
On 6 December 1994 the Supreme Court granted leave to appeal and having obtained the parties’ observations it decided, on 1 June 1995, to modify the decision of the Court of Appeal and quash the District Court’s decision of 6 April 1993 as regards litigation costs. The case was accordingly referred back to the latter court for a re-examination in that respect as well.
On 12 June 1995 the District Court accordingly requested the landlord to submit observations. On 20 June 1995 the applicant requested to have his officially appointed legal aid counsel replaced. The request was communicated to counsel for an opinion no later than 30 June 1995.
On 21 June 1995 the landlord submitted observations and requested that the case be dismissed.
On 28 June 1995 the applicant informed the court that due to holidays, he would not be available until 1 August 1995. Furthermore, he requested the court to dismiss counsel for the landlord, on grounds of incompetence. On the same day counsel for the applicant submitted observations supporting the request that he himself be relieved from his duties as requested by the applicant.
On 30 June 1995 the applicant was requested to inform the court, no later than 15 August 1995, of the name of the person he wanted as new counsel. On 3 August 1995 the applicant replied that he would accept the choice of legal aid counsel made by the court. The court then made a proposal to him in that respect.
On 28 August 1995 the applicant requested the District Court to examine 1) whether the landlord’s counsel was unsuitable to serve as such before the court; 2) the question of litigation costs related to the first set of proceedings before the Svea Court of Appeal and the Supreme Court; and 3) whether the judge that handled the first case before the District Court had correctly evaluated the evidence in that case.
On 29 August 1995 the District Court decided on the issues raised by the applicant the day before. The court rejected his complaints against counsel for the landlord. Furthermore, the court noted that it was not within its competence to examine how an individual judge had evaluated evidence. Finally, the court noted that it was not possible to examine the question of litigation costs in the superior courts at that stage of the proceedings since the issue was to be decided in connection with the determination of the case.
On 6 September 1995 the applicant lodged an appeal against the decision concerning the request for dismissal of counsel for the landlord. The District Court decided to stay the handling of the case in its principal issue, pending the outcome of the appeal. On 29 September 1995 the Svea Court of Appeal rejected the appeal. On 9 October 1995 the applicant appealed against this decision. On 9 November 1995 the Supreme Court refused leave to appeal.
On 14 November 1995 the applicant applied to the Supreme Court for a re-opening of the case concerning the request for dismissal of counsel for the landlord.
On 22 November 1995 he requested to have a particular lawyer appointed as his new legal aid counsel. On 23 November 1995 the District Court granted his request to have his officially appointed legal aid counsel replaced by new counsel. On 6 December 1995 the applicant’s new counsel submitted documents stating, inter alia, claims and legal grounds. The landlord was requested to submit observations in reply before 20 December 1995. On 18 December 1995 the landlord, represented by new counsel, requested an extension of the time-limit until 29 January 1996. The request was granted.
On 22 January 1996 the Supreme Court rejected the applicant’s request for a reopening of the case concerning the dismissal of counsel for the landlord.
On 26 January 1996 the landlord’s counsel requested, and was granted, a further extension of the time-limit until 16 February 1996. In its decision the District Court notified the landlord that further extensions could not be expected. On 16 February 1996 the landlord submitted observations. On 21 February 1996 the parties were summoned to a preparatory meeting scheduled for 26 March 1996.
On 25 March 1996 the applicant submitted further observations, which were immediately communicated to the landlord. On 26 March 1996 the preparatory meeting took place. The applicant requested that the landlord be ordered to produce certain documents.
On 3 May 1996 the court granted the applicant’s request and decided that the landlord should produce certain documents by 23 May 1996. On 13 May 1996 the landlord appealed against the decision. On the following day the District Court decided to stay the handling of the case pending the outcome of the appeal. On 24 June 1996 the Court of Appeal rejected the appeal and extended the time-limit for the production of the documents until 22 July 1996.
On 15 July 1996 the landlord produced the documents which were communicated to the applicant. On 30 August 1996 the applicant requested that the landlord be ordered to produce further documents on penalty of a fine (vitesföreläggande).
On 19 September 1996 the District Court rejected the applicant’s request and ordered him, inter alia, to submit his final statement of evidence no later than 3 October 1996. On 20 September 1996 the applicant appealed against the decision. On 23 September 1996 the District Court informed him that an appeal against the decision could not be made separately. The applicant requested an extension of the time-limit until 3 November 1996. The court granted an extension until 1 November 1996. On 3 November 1996 the applicant requested a further extension until 15 November 1996. Emphasising that no further extensions could be expected, the court granted the request.
On 12 November 1996 the applicant submitted further observations. He also submitted a statement of evidence and requested that a second preparatory meeting be held. On 12 December 1996 the District Court summoned the parties to such a meeting scheduled for 4 February 1997. On 28 January 1997 the court sent a written summary of the case to the parties, containing their positions, as the court understood them. The court directed the parties to finally determine their respective action and defence and to state what evidence they invoked.
On 4 February 1997 the second preparatory meeting took place. The court then ordered the landlord to state, no later than 4 March 1997, the evidence to be invoked. On 5 March 1997 the landlord submitted a list of evidence. On 6 March 1997 the applicant was directed to submit his observations before 20 March 1997. On 19 March 1997 counsel for the applicant requested an extension of the time-limit until 9 April 1997. The request was granted. On 8 April counsel for the applicant requested an additional extension until 18 April 1997. Also this request was granted.
On 21 April 1997 the applicant submitted his observations in which he made certain adjustments to his existing claims and introduced a new claim for damages. He also submitted a list of evidence. On 25 April 1997 the applicant was ordered to clarify his position in certain respects no later than 13 May 1997. On 13 May 1997 the applicant submitted the requested information. On 23 May 1997 the District Court dismissed the applicant’s new claim for damages and directed him to determine finally his action and to state the evidence he invoked no later than 13 June 1997. In view of how the applicant had previously presented his action, the court notified him that after the expiry of the said timelimit he could not invoke any new circumstances or any new evidence, unless he had a valid excuse for not having done so earlier.
On 9 June 1997 the applicant submitted observations. On 18 June 1997 the landlord was directed to reply to the applicant’s latest submission no later than 30 July 1997. On 30 June 1997 the landlord requested an extension of the time-limit until 12 September 1997. The applicant was requested to state his opinion on the landlord’s request within 21 days. On 14 August 1997 counsel for the applicant stated that he had no objection to the landlord’s request. This was then granted by the court. On 15 September 1997 the landlord requested a further extension until 3 October 1997. Also this request was granted.
On 10 October 1997 the landlord submitted the observations and requested that certain claim adjustments made by the applicant should not be allowed. On 21 October 1997 the landlord’s request was rejected.
On 17 November 1997 the parties, their respective counsel and several witnesses were summoned to a main hearing scheduled for 16, 17 and 19 February 1998.
On 13 January 1998 the court sent a summary of the parties’ positions, such as the court understood them. They were given until 30 January 1998 to express their views on the summary.
On 16 February 1998 the hearing commenced in the District Court. The applicant presented a new claim for damages based on the allegation that the court had violated his rights and freedoms. On 17 February 1998 the hearing continued. The applicant’s new claim was dismissed since it was not directed against the landlord. On 19 February 1998 the main hearing came to an end and the parties were informed that the court’s judgment would be delivered on 2 April 1998.
On 25 February 1998 the applicant revoked his counsel’s power of attorney with immediate effect. On 27 February 1998 he appealed against the District Court’s decision of 17 February 1998. On 2 March 1998 he submitted a document claiming that the records from the main hearing were insufficient. On 3 March 1998 the applicant’s former counsel requested to be dismissed as official legal aid counsel. On 1 April 1998 the court granted the request.
On 2 April 1998 the District Court pronounced judgment, in which the applicant’s action as a whole was rejected. He was ordered to pay the landlord’s litigation costs. On 3 April 1998 the applicant appealed against the judgment to the Svea Court of Appeal.
On 20 April 1998 the applicant applied to the Court of Appeal for a restoration of the expired time-limit for an appeal against the District Court’s decision of 23 May 1997 to dismiss his, at that stage in the proceedings, new claim for damages.
On 12 May 1998 he requested that the Court of Appeal give his appeal suspensive effect, inasmuch as it concerned his obligation to compensate the landlord for litigation costs, pending the court’s examination. On 19 May 1998 the Court of Appeal rejected the request.
On 27 August 1998 the applicant requested the Court of Appeal to refer the case back to the District Court for a re-examination. On 1 October 1998 the applicant raised the question of disqualification of all the judges on the division of the Svea Court of Appeal, to which the case had been assigned, and asked the court to remove the case from that division. On 8 October 1998 the president of the Court of Appeal decided not to remove the case.
On 19 October 1998 the applicant requested that the landlord’s counsel be dismissed from the case. On 23 October 1998 he lodged an appeal with the Supreme Court against the decision of 19 May 1998, alleging that a grave procedural error had occurred. On 28 October and 2 November 1998 he submitted further observations.
On 6 November 1998 the Supreme Court rejected the appeal against the decision made by the Svea Court of Appeal on 19 May 1998.
On 9 November 1998 the Svea Court of Appeal rejected the applicant’s appeal of 27 February 1998. The same day the court also rejected the application of 20 April 1998.
On 10 November 1998 the Svea Court of Appeal directed the applicant to cure the defects of his appeal petition, no later than 24 November 1998, by providing information concerning the sought amendment of the District Court’s judgment, the grounds for the appeal, the evidence invoked and the proof provided by each item of evidence.
On 16 November 1998 the applicant appealed against the Court of Appeal’s decision of 9 November 1998 concerning the restoration of the expired time-limit. He also requested an extension of the time-limit.
On 19 November 1998 the applicant appealed against the Court of Appeal’s decision of 9 November 1998 concerning damages for the alleged violation of his rights and freedoms.
The applicant’s request of 16 November 1998 for an extension of the time-limit was granted on 25 November 1998.

On 27 November 1998 the applicant requested a further extension of the time-limit until 15 February 1999.
On 30 November 1998 the Svea Court of Appeal decided not to disqualify the judges handling the applicant’s case. On 7 December 1998 the applicant lodged with the Supreme Court a notice of his intention to appeal against the decision. On 8 December 1998 the Svea Court of Appeal decided that an appeal against the decision of 30 November 1998 could be lodged separately, no later than 4 January 1999. The court also decided to stay the case pending the outcome of the appeal.
On 9 December 1998 the applicant was granted the requested extension of the timelimit until 15 February 1999. On 21 December 1998 he lodged an appeal against the decision of the Svea Court of Appeal of 30 November 1998.
On 5 January 1999 the Supreme Court refused the applicant leave to appeal as regards his appeal of 19 November 1998 against the appellate court’s decision of 9 November 1998 concerning damages for the alleged violation of his rights and freedoms.
On 7 January 1999 the applicant submitted supplementary observations in respect of the directions given by the Svea Court of Appeal on 10 November 1998.
On 26 February 1999 the Supreme Court refused leave to appeal against the decision of the Svea Court of Appeal of 30 November 1998.
B. Relevant domestic law
According to the Rent Bargaining Act negotiations regarding conditions for the renting of a flat are conducted between a landlord or a landlord and an organisation of apartment building owners on the one side and an organisation of tenants on the other. If a lease contains a so-called negotiation clause, this means that the tenant has accepted the dispositions concerning the rent and other conditions that may follow from an agreement negotiated by the just-mentioned parties. This does not, however, entail any restrictions on the right of the tenant to request an assessment of the tenancy conditions by the Regional Rent Tribunal. The size of the rent, when disputed, shall then be established at a reasonable amount. For this purpose the rent is not to be deemed fair if it is obviously higher than the rent for flats of equivalent utility value. A decision whereby tenancy conditions are amended by a tribunal supersedes the negotiated agreement in that respect.
According to the 1973 Regional Tenancies and Regional Rent Tribunals Act (lagen om arrendenämnder och hyresnämnder) the tribunals shall examine disputes concerning, inter alia, rents under the Rent Bargaining Act. Proceedings before the tribunals are in principle oral. Before 1 July 1994 the decisions of the tribunals were appealed against to the Rent and Tenancy Court of Appeal. The court’s decisions were not subject to further appeal.
The Contracts Act deals, inter alia, with the invalidity of certain legal acts. Section 30 concerns the invalidity as a result of fraudulent deception. Section 31 deals with the situation where a person’s distressed circumstances, lack of mental capacity, etc., have been exploited by means of fraudulent practices. From such practices follow that the legal act is not binding on the exploited person. According to Section 36 the terms of a contract may be modified or set aside if the term is unconscionable with regard to the contents of the contract, the circumstances prevailing at the time the contract was entered into, etc.
According to Chapter 49, Section 7 of the Code of Judicial Procedure (rättegångsbalken), which is applicable in the general courts, a party who is of the opinion that the proceedings in a case have been delayed without cause by a district court order, e.g. an order to stay the proceedings pending the outcome of an appeal, may appeal against that order separately through a limited appeal.