ITEMID: 001-57417
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1982
DOCNAME: CASE OF ADOLF v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6
TEXT: 9. The applicant, an Austrian citizen born in 1918, lives in Innsbruck where he practises the profession of accountant and financial consultant (Wirtschaftsprüfer und Steuerberater).
10. On 15 July 1977, an 85-year-old woman, Mrs. Irmgard Proxauf, acting through a lawyer, reported to the Innsbruck public prosecutor's office that three days earlier during a quarrel Mr. Adolf had thrown at another person, Mrs. Anneliese Schuh, a bunch of keys which had then struck her (Mrs. Proxauf), causing her injury. In her letter headed "request to inquire into a set of facts", she called on the prosecutor's office to take criminal proceedings against the applicant and stated that she would be a civil party claiming damages in any such proceedings (Privatbeteiligte).
11. The federal police at Innsbruck, instructed on 12 August by the public prosecutor's office to investigate whether or not a punishable act had been committed, interrogated several persons cited by Mrs. Proxauf at witnesses and, on 22 September, the applicant himself. He denied the facts alleged against him and denounced the complaint as being knowingly false. After pointing out that the object alleged to have caused the injury was, in fact, an envelope containing a single key, he asserted, amongst other things, that he had not thrown it: he had wanted to give it back to Mrs. Proxauf, but it had slipped out of his hand and touched her arm. Mrs. Schuh, he said, had picked it up and thrown it, just above his head, over a distance of thirteen metres in the direction of his house. Mr. Adolf's wife and two employees had written a note setting out what they remembered of the incident. This note, he stated was available to the court, as an item for inclusion in the case-file. The police accepted the note, but did not question Mrs. Adolf or the employees.
On 28 September, the public prosecutor's office, to which the file had been returned, asked the Innsbruck District Court (Bezirksgericht) to procure a medical report on the seriousness of Mrs. Proxauf's injury. The Court registered the case on 4 October 1977; under the heading "punishable act" it specified "section 83 of the Penal Code", which is a provision, amongst others, dealing with the infliction of bodily harm.
Following receipt of the doctor's opinion, the District Court assessed the costs of that opinion on 11 November 1977. The district prosecutor (Bezirksanwalt) requested the District Court on 21 November to "decide that the conditions of section 42 of the Penal Code [were] fulfilled" (see paragraph 22 below). The Court acceded to the request on 24 November by inserting in the file a note worded as follows: "B" (Beschluss, decision): "... the proceedings are closed pursuant to section 451 par. 2 of the Code of Criminal Procedure"; in addition, it added to the register, under the heading "date and manner ... of disposal of the matter" (Erledigung): "24. 11. Section 451 par. 2 of the Code of Criminal Procedure".
12. On 3 December, an application was made to the District Court by Mr. Adolf who, after consultation of the file on his case, had come to learn on 22 November of the submissions made by the public prosecutor's office on the previous day; however, like that office, he was not aware of the decision of 24 November. He denied that he had injured Mrs. Proxauf, whether by throwing a bunch of keys or otherwise, and contested the doctor's findings, claiming in particular that the latter had based his opinion on information that was contradicted by the material in the case-file (aktenwidrig). He called on the District Court either to acquit him after trial or to terminate the proceedings pursuant to section 90 par. 1 of the Code of Criminal Procedure (see paragraph 21 below). He requested that, if the District Court should choose the first alternative, fresh medical evidence be taken forthwith.
On 22 December, the District Court notified an associate of the applicant's lawyer that the proceedings had been terminated - on an unspecified date - in pursuance of section 451 2 the Code of Criminal Procedure. Following a request made by Mr. Adolf on 4 January 1978, the Court served on him on 24 January a decision dated 10 January which reads as follows (translation from German):
"Decision
In the criminal case (Strafsache) against Dr. Gustav Adolf for the offence of inflicting bodily harm, within the meaning of section 83 of the Penal Code, the District Court of Innsbruck has decided as follows upon the request of the public prosecutor:
The conditions of section 42 of the Penal Code are met; the proceedings are terminated in accordance with section 451 par. 2 of the Code of Criminal Procedure.
Reasons
By letter of 15 July 1977, the civil party Irma Proxauf informed the public prosecutor of an incident involving herself and the accused (Beschuldigter) which had happened on 12 July 1977. She alleged that the accused had caused her an injury, namely a bruise on her left arm and another below her left breast, with a bunch of keys. The investigations made thereupon and the expert opinion have shown (ergeben) that in the course of a quarrel the accused flew into a rage and threw an envelope containing a key in the direction of Mrs. Anneliese Schuh who however managed to avoid the missile, while the 85-year-old Irma Proxauf standing behind her was hit. The key first struck the back of the right hand, causing a superficial abrasion, and then bounced against the left side of the above-named person's chest. No injury could be established on the chest.
The injury found (festgestellte) is insignificant (geringfügig) as it does not exceed the three-day limit; the fault (Verschulden) of the accused may be described as insignificant (geringfügig), and his character gives cause to expect that he will conduct himself properly in future.
Therefore the conditions of section 42 of the Penal Code are met, justifying the above decision.
District Court of Innsbruck, Section 9, 10 January 1978."
13. The applicant challenged this decision before the Regional Court (Landesgericht) of Innsbruck which, on 23 February 1978, declared the appeal (Beschwerde) inadmissible on the ground that section 451 par. 2 of the Code of Criminal Procedure limited the right of appeal to the prosecutor (Ankläger).
14. On 25 January 1980, a little more than six months after the European Commission of Human Rights had accepted the application, the Generalprokurator (the public prosecutor attached to the Supreme Court (Oberster Gerichtshof) filed, with the Supreme Court, pursuant to section 33 par. 2 of the Code of Criminal Procedure, an application for annulment of the decision dated 10 January 1978 in the interests of the proper application of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes).
The Generalprokurator drew a distinction between the termination of proceedings by virtue of section 451 par. 2 and their termination by virtue of section 90 par. 1 of the Code of Criminal Procedure. The former provision applied when, prior to the trial hearing, the court was satisfied that the conditions of section 42 of the Penal Code were met; where, however, no sufficient grounds existed for continuing with the prosecution, the public prosecutor should close the file (zurücklegen) on the complaint and the investigating judge should bring the proceeding to an end in accordance with the general rules laid down in section 90 par. 1 and 447 par. 1. In both cases, he said, the decisions would be taken without the formal hearing of evidence (Beweisverfahren), something which, as followed in any event from Article 6 par. 1 (art. 6-1) of the Convention - Article 6 par. 1 (art. 6-1) being a provision that has constitutional status in Austrian law -, should in principle precede any finding of guilt (Schulderkenntnis).
Thus, in the submission of the Generalprokurator, section 42 of the Penal Code was not appropriate where, on the basis of the complaint or the preliminary enquiries, no offence could be established on the facts or existed in law. On the other hand, for section 42 to apply it was not essential for there to be proof of guilt, but merely a suspicion (Tatverdacht) such as would warrant the opening of preliminary enquiries or an application seeking the imposition of a penalty. A court decision terminating proceedings in accordance with section 42 could therefore only be grounded on a "suspected state of affairs" (Verdachtslage) as disclosed by the case-file: the court had to limit itself to ascertaining whether there existed against the suspect sufficient suspicion for proceeding with the prosecution and whether, on the hypothetical assumption that the suspect had indeed committed the alleged offence, he was or was not entitled to benefit from the ground for exoneration (Strafausschliessungsgrund) provided for under section 42 of the Penal Code. It seemed inadmissible to state in the reasons for such a decision conclusions on the objective and subjective aspects of the act and to take it as proved against the suspect that he had engaged in a certain course of conduct constituting a punishable act. Such an assertion in the reasons for a decision terminating proceedings amounted to a finding of guilt without any formal taking of evidence at a public hearing, which would be in violation of Article 6 par. 2 (art. 6-2) of the Convention.
In the instant case, said the Generalprokurator, the District Court had clearly indicated that it accepted the account of the incident given by Mrs. Proxauf and corroborated by the police investigations and by the medical evidence, and that it disbelieved the applicant's denials which were mainly concerned with what had happened during the incident (Tathergang). He submitted that as the decision in issue was not capable of causing Mr. Adolf any direct prejudice, a finding that it had infringed the law would be sufficient. The Generalprokurator therefore moved the Supreme Court to hold that the Innsbruck District Court's decision dated 10 January 1978 was, as regards its reasoning, contrary to the law, that is to say section 451 par. 2 of the Code of Criminal Procedure read in conjunction with Article 6 par. 1 and 2 (art. 6-1, art. 6-2) of the Convention.
15. On 24 February 1980, Mr. Adolf submitted to the Supreme Court certain observations on the application for annulment. Whilst welcoming the initiative taken by the Generalprokurator, he considered that the latter had disregarded essential elements of violation of the law inherent in the impugned decision. In particular, he disputed the interpretation given by the Generalprokurator to section 42 of the Penal Code; in the applicant's view, this section in fact required the court to make a positive finding of an act fulfilling the description of a criminal offence. He relied on section 451 par. 2 of the Code of Criminal Procedure which places the judge under a duty to satisfy himself, before bringing the proceedings to a close, that the conditions stipulated under section 42 of the Penal Code are met; in order to do this, so the applicant contended, the judge must have regard to all the evidence adduced and not simply to the evidence supporting the suspicion.
Mr. Adolf criticised the District Court for having failed to take into consideration evidence in his favour, for having declined to hear witnesses requested by him and for not having given him the opportunity to challenge the expert medical opinion; he alleged a breach of Article 6 par. 1 and 3 (d) (art. 6-1, art. 6-3-d) of the Convention. He accordingly called on the Supreme Court to find infringements of the law other than those pleaded by the Generalprokurator and to order that the proceedings be terminated under section 451 par. 1 of the Code of Criminal Procedure.
16. The Supreme Court rejected the application for annulment on 28 February 1980.
In the opinion of the Supreme Court, the application of section 42 par. 1 of the Penal Code did not place the suspect in a worse position than where the case is closed for some other reason (for example, in pursuance of section 90 par. 1 of the Code of Criminal Procedure), that is to say, a closure of the case which, in general, does not involve establishing the innocence of the person concerned. Section 42 is not at all meant to be used to terminate proceedings when it is certain that an offence cannot be proved on the facts or does not exist in law. On the other hand, section 42 does not demand verification of the objective and subjective elements of the offence; indeed, this would be contrary to the main object of the section, namely procedural economy (Prozessökonomie - the principle that the court's time should be usefully employed). The person concerned thus has no right to have doubtful issues in the case clarified.
Section 42 simply requires the existence of a suspicion. Even if a court describes the suspect's conduct in terms of findings of fact, any statements to this effect could not be regarded as judicial findings (Konstatierungen), within the meaning of section 270 par. 2, no. 5, of the Code of Criminal Procedure, with the attendant legal consequences. In point of fact, by reason of its basic legal character, any decision taken in pursuance of section 42 of the Penal Code can only be understood in one way: further clarification of, and possible prosecution in, a case which is already recognisable as being a trifling matter is to be avoided, not least in the interests of procedural economy. Howsoever the reasons given therefore may be worded, any such decision contains - if only because of its very nature - a negative ruling on the merits of the case and does not at all amount to a declaration, equivalent to a finding of guilt, that the suspect has (unlawfully and with criminal intent) committed a punishable act.
It would certainly have been preferable had the Innsbruck District Court stated this explicitly and without ambiguity in the decision being challenged. Nonetheless, the more or less apposite choice of wording in the reasoning could not deprive the reasoning of the specific significance it had as a result of the nature of the decision given and could not, therefore, in any way adversely affect the person concerned.
Since legal proof of the suspect's guilt is not the object pursued under section 42 of the Penal Code, no question arises as to the extent to which a decision given in pursuance of this provision has or has not been preceded by proceedings complying with the requirements of Article 6 par. 1 (art. 6-1) of the Convention.
17. The judgment of the Supreme Court was reproduced in an Austrian legal journal but the applicant's identity was not revealed. The accompanying commentary on the judgment referred to an article entitled "A trivial affair leads to an application against Austria" ("Aus Bagatellsache wurde Klage gegen Österreich"), which had been published in a newspaper in May 1980 and which did disclose his name, profession and place of residence.
The professional association to which Mr. Adolf belongs has not instituted any disciplinary proceedings against him in respect of the facts underlying Mrs. Proxauf's complaint.
According to Mr. Adolf, the file on his case, including the Innsbruck District Court's decision dated 10 January 1978, has been produced in evidence in a civil action between himself and Mrs. Proxauf in the matter of an easement (Dienstbarkeit); an order issued by the competent civil court in Innsbruck took the case-file into consideration.
18. The costs of the procedure, and notably the costs of the medical opinion, were borne by the State. The applicant himself had to pay his lawyer's fees and his own expenses.
19. In Austria, the public prosecutor (Staatsanwalt) is required by law to inquire into the correctness of any report (Anzeige) of an offence for which a prosecution must be brought as a matter of course (section 87 par. 1 of the Code of Criminal Procedure). He is obliged, as a matter of course, to prosecute in respect of any offence which appears to him to have been committed and where it is not a precondition of investigation and punishment that an application be made by the victim or some other person concerned; it is his duty to cause the competent court to take the necessary measures of investigation and punishment (section 34 par. 1).
In order to procure the necessary evidence for the institution of criminal proceedings or for the closing of the file (Zurücklegung) on a complaint, the public prosecutor may have preliminary enquiries (Vorerhebungen) carried out by the investigating judge, the district courts and the police authorities (section 88 par. 1).
20. Where the public prosecutor is satisfied that there are sufficient grounds for bringing a criminal prosecution, he shall either apply for the institution of a preliminary investigation (Voruntersuchung) or file a formal accusation (Anklageschrift, section 90 par. 1). However, in district court proceedings there is no formal process of investigation and no special procedure of accusation: all that is required is a written or oral application from the district prosecutor seeking the imposition of a penalty on the person concerned (Antrag auf gesetzliche Bestrafung, section 451 par. 1).
21. Where sufficient grounds for prosecuting the individual in question are lacking, the public prosecutor shall take no further action on the complaint and shall transmit the file to the investigating judge, together with a statement to the effect that he sees no reason to continue with the prosecution; the judge must then terminate the preliminary enquiries (section 90 par. 1). This provision applies, mutatis mutandis, to district court proceedings (section 447 par. 1).
Under the terms of section 90 par. 2 of the Code of Criminal Procedure, the public prosecutor may alternatively ask the investigating judge to hold that the conditions of section 42 of the Penal Code are met. In cases before a district court, the decision terminating proceedings is governed by section 451 par. 2 of the Code of Criminal Procedure, which provides (translation from German):
"If the court is satisfied that the conditions laid down in section 42 are met, it shall terminate the proceedings by a decision. The public prosecutor may lodge an appeal against any such decision ..."
22. Section 42 of the Penal Code reads as follows (translation from German):
"(1) Where an act requiring public prosecution as a matter of course involves liability to no more than a fine, a custodial sentence not exceeding one year or both, the act shall not be punishable (strafbar) if
1. the guilt (Schuld) of the author of the act is slight (gering);
2. the act has had no or only trifling consequences, and if addition
3. punishment is not necessary in order to deter the author of the act or other persons from committing criminal offences.
(2) The decision whether or not the conditions of paragraph (1) hereof are met shall be taken by the court; where the court decides in the affirmative, it shall bring the proceedings to a close no matter what stage they may have reached."
Section 42 was introduced into the new Austrian Penal Code which entered into force on 1 January 1975, and is aimed at avoiding criminal trials in trivial cases, notably for reasons of procedural economy; the section is headed "acts not meriting punishment" ("mangelnde Strafwürdigkeit der Tat"). The Supreme Court and the great majority of legal commentators regard it as a clause which is not concerned with mere procedure but which provides a substantive ground for exonerating the accused (sachlicher Strafausschliessungsgrund).
23. A decision taken by a court in pursuance of section 42 to terminate proceedings is not entered in the criminal record of the person concerned. The file relating to a case closed in this manner may be used in other legal (and disciplinary) proceedings, as may, in principle, the case-file in any legal action whatever its outcome.
According to Mr. Adolf, anyone may go to the court and consult the register of cases and the register of names and, at least as far as the former is concerned, ask for an extract. The Government contested these assertions, save apparently as regards the possibility of having access to the register of names. The latter simply contains a reference to the register of cases without giving any indication as to the nature of the litigation.
24. As a result of the present case, two circulars were issued on 15 January 1979 and 24 March 1980 by the relevant Austrian authorities drawing the attention of the courts to the problems raised by the application of section 42 of the Penal Code and to the need for a careful wording of the relevant decisions (see paragraphs 33 and 34 of the report of the Commission).
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-61876
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF DJANGOZOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 8;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1946 and lives in Plovdiv.
10. On 9 December 1994 a newspaper in the town of Parvomay, “Parvomay dnes”, published an article on the problems of the liquidation of State cooperative farms and the restitution of the agricultural land in the region. The article contained offensive allegations against the applicant who was a former chairman of the local commission in charge of the liquidation of the cooperative farms. The title of the article, quoting the applicant, read “Do not hassle me, I have a yellow card” („Не ме закачайте, аз съм с жълта карта“). The latter expression means that the person in question is registered as mentally ill. The article’s author commented on the poor results of the commission’s audit, stating that they could be expected since its chairman was a “person of unsound mind” („невменяем човек“). The applicant was also referred to as a “wretch” („нещастник“).
11. In February 1995 the applicant lodged with the Parvomay District Prosecutor’s Office a request for the opening of proceedings for criminal libel against the newspaper’s editor. On 6 March 1995 the competent prosecutor opened a preliminary inquiry with a view to the opening of criminal proceedings against the editor.
12. On 2 March 1995 the applicant filed a civil action against the newspaper’s editor and publisher, alleging that the article had defamed him. He claimed nonpecuniary damages for injury to his reputation.
13. The Parvomay District Court held its first hearing in the case on 13 April 1995. Counsel for the defendants requested the court to stay the proceedings, presenting a certificate from the Prosecutor’s Office to the effect that a preliminary inquiry had been opened. The court stayed the proceedings in accordance with Article 182 § 1 (d) of the Code of Civil Procedure (“CCP”), pending the outcome of the preliminary inquiry.
14. The applicant lodged an interlocutory appeal, arguing, inter alia, that the pending preliminary inquiry could not serve as grounds for the staying of the civil proceedings, the only such grounds being pending criminal proceedings.
15. On 13 July 1995 the Plovdiv Regional Court upheld the lower court’s ruling, holding that the facts alleged in the civil action constituted “criminal elements” within the meaning of Article 182 § 1 (d) of the CCP. The only bodies competent to decide whether a criminal offence had or had not been committed were the prosecutor and the criminal courts. The eventual ruling of the criminal court would be res judicata for the civil court, as provided by Article 222 of the CCP. Therefore, the proceedings had been properly stayed.
16. On 5 September 1995 the Parvomay District Prosecutor’s Office opened criminal proceedings against the journalist who had written the article against the applicant.
17. While the civil proceedings were stayed the Parvomay District Court sent numerous letters to the District Prosecutor’s Office and to the District Investigation Service, inquiring about the status of the criminal proceedings. Such letters were sent on 22 April, 9 September and 15 November 1996, 4 February and 5 and 11 December 1997, 12 May, 15 July and 18 December 1998, 12 April 1999, 25 January and 13 September 2000, and 28 February 2001.
18. Meanwhile, on 23 March 1998 the applicant’s lawyer requested the Parvomay District Prosecutor’s Office to do the necessary for the speedy conclusion of the criminal proceedings. On 4 May 1998 he filed a complaint with the Plovdiv Regional Prosecutor’s Office, alleging that the criminal proceedings had lasted unreasonably long, thus precluding the resumption of the civil proceedings. In a letter of 12 May 1998 the Parvomay District Prosecutor’s Office informed the applicant that the investigation would be completed within thirty days. On 21 May 1998 the Plovdiv Regional Prosecutor’s Office instructed the Parvomay District Prosecutor’s Office to finalise the investigation within fourteen days.
19. On 1 July 1998 the Parvomay District Prosecutor’s Office replaced the investigator in charge of the case, noting that he had failed to perform the necessary investigative steps in time.
20. On 7 November 2000 the Parvomay District Prosecutor’s Office discontinued the criminal proceedings because the relevant limitation period had expired. The Parvomay District Court affirmed the discontinuation in a decision of 22 November 2000.
21. On 1 March 2001 the Parvomay District Prosecutor’s Office sent the case file to the Parvomay District Court, which thereupon resumed the stayed civil proceedings.
22. A hearing listed for 3 May 2001 was adjourned because the defendants had not been properly summoned.
23. The next hearing was scheduled for 5 July 2001. The court noted that the defendants had again not been properly summoned and adjourned the case. As the summons sent to one of the defendants, the cooperative which had published the newspaper containing the allegedly defamatory article, was returned with a note that that cooperative had apparently been liquidated two years before that, the court instructed the applicant to produce a certificate of the cooperative’s current status. [Note: Certificates of current status are issued by the register of companies kept at the regional courts.]
24. On 21 August 2001 the Parvomay District Court discontinued the proceedings, holding that the applicant had failed to comply with its instructions. The applicant appealed and on 8 January 2002 the Plovdiv Regional Court quashed the discontinuation and remitted the case to the Parvomay District Court.
25. On 21 January 2002 the Parvomay District Court again requested the applicant to provide a certificate of current status of the defendant cooperative.
26. In a judgment of 29 April 2003 the Parvomay District Court allowed the applicant’s claim against the newspaper editor, but dismissed his claim against the cooperative.
27. The applicant appealed against the judgment to the Plovdiv Regional Court.
28. At the time of the latest information from the parties (July 2003) the proceedings were still pending before the Plovdiv Regional Court, which had not yet set the appeal down for hearing.
29. The CCP provides, in Articles 182 § 1 (d) and 183, that a court examining a civil action:
“182. ... shall stay the proceedings:
...
(d) whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings...
183. Proceedings which have been stayed shall be resumed ex officio or upon a party’s request after the respective obstacles have been removed...”
Article 222 of the CCP provides:
“The findings contained in a final judgment of a criminal court and concerning the issue whether the act in question has been committed, its unlawfulness and the perpetrator’s guilt are binding on the civil court when it examines the civil consequences of the criminal act.”
In a judgment of 18 January 1980 (реш. № 3421 от 18 януари 1980 г. по гр.д. № 1366/1979 г., І г.о.) the First Civil Division of the Supreme Court held:
“In principle the fact of a crime may only be established under the procedures of the Code of Criminal Procedure. That is why, when an alleged civil right derives from a fact which constitutes a crime under the Criminal Code, the civil court, according to Article 182 § 1 (d) of the [CCP], is obliged to stay the civil proceedings. This is necessary in order to respect the decision of the criminal court. It is mandatory for the civil courts regardless of the crime in issue. The mandatory binding force of the decisions of the criminal courts is set out in Article 222 of the [CCP].”
30. The new Article 217a of the CCP, adopted in July 1999, provides:
“1. Each party may lodge a complaint about delays at every stage of the case, including after oral argument, when the examination of the case, the delivery of judgment or the transmitting of an appeal against a judgment is unduly delayed.
2. The complaint about delays shall be lodged directly with the higher court, no copies shall be served on the other party, and no State fee shall be due. The lodging of a complaint about delays shall not be limited by time.
3. The chairperson of the court with which the complaint has been lodged shall request the case file and shall immediately examine the complaint in private. His instructions as to the acts to be performed by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been filed.
4. In case he determines that there has been [undue delay], the chairperson of the higher court may make a proposal to the disciplinary panel of the Supreme Judicial Council for the taking of disciplinary action.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90160
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: AYASHI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: The applicant, Mr Ali Ayashi, is an Iranian national who was born in 1978 and is currently detained in Greece. He was represented before the Court by İ. Oklu, a lawyer practising in Istanbul. 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.
On 4 February 2006 the Iranian authorities issued an arrest warrant against the applicant. According to the information given by the Interpol office in Iran to the Interpol office in Turkey, he was charged with fraud.
In February 2006 the applicant crossed the border into Turkey illegally and was caught by the Turkish security forces in possession of a forged passport. He was subsequently detained on remand. On 12 May 2006 the Istanbul Criminal Court of First Instance convicted the applicant of forgery of official documents and sentenced him to one year and eight months’ imprisonment.
On an unspecified date, extradition proceedings were brought before the Istanbul Assize Court. Before the court, the applicant and his lawyer maintained that the applicant was charged with political offences in Iran and that a decision had been taken to execute the applicant, a decision which had been published in the Iranian Official Gazette of 27 August 2005. They thus contended that, if returned to Iran, the applicant would be executed.
On 17 July 2006 the Istanbul Assize Court decided to extradite the applicant to Iran. In its judgment, the court noted that the applicant was charged with fraudulent acts, forgery and bribery in Iran, and that the offences with which the applicant was charged in Iran were not of a political or military nature. The assize court found that there were no circumstances hindering the extradition of the applicant according to Article 18 of Law no. 5237.
The applicant appealed against this decision.
On 12 February 2007 the Court of Cassation quashed the judgment of the first-instance court holding, inter alia, that the latter had failed to examine the applicant’s claim that he would be subjected to torture and executed if returned to Iran.
On 5 June 2007 the Istanbul Assize Court decided not to extradite the applicant to Iran, in the light of the Court of Cassation’s decision. This judgment became final on 13 June 2007.
In the meantime, the applicant requested asylum from the national authorities.
On 27 September 2006 the Ministry of the Interior rejected his request.
On an unspecified date the applicant brought proceedings before the Ankara Administrative Court for the annulment of the Ministry’s decision.
On 26 June 2007 the administrative court annulled the decision, holding that the administration had failed to examine the applicant’s claim that he would be at risk if deported to Iran.
The Ministry of the Interior appealed.
The proceedings are currently pending before the Supreme Administrative Court.
On an unspecified date the applicant was released.
On 5 June 2007 the applicant was issued a temporary residence permit valid for three months.


ITEMID: 001-69115
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KUN v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Péter Kun, is a Hungarian national, who was born in 1938 and lives in Füzesgyarmat, Hungary. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 September 1995 the Békéscsaba District Court issued a payment order (fizetési meghagyás) at the applicant's request. In this order (no. 51.111/1995) Mr U., the son of the applicant's divorced wife, was obliged to pay 12,000 Hungarian forints plus accrued interest to the applicant. On 18 September 1995 the order was served on Mr U. He failed to lodge an objection within the statutory time-limit. Consequently, on 4 October 1995 the order became binding. On 10 October 1995 the District Court established this fact. Subsequently, enforcement proceedings were instituted and on 30 November 1995 an enforcement order (végrehajtási lap) was issued by the District Court.
Meanwhile, on 6 October 1995 Mr U. lodged an objection, which was rejected on 16 October 1995 by the District Court as being time-barred. On 30 November 1995 Mr U. successfully requested that the case be re-opened, a hearing held and the applicant's claims dismissed.
On 22 July 1996 the bailiff invited the applicant to advance the costs of the execution as required by section 34 of the Act on Judicial Enforcement. Without having paid the costs, on 27 July and 5 December 1997 the applicant repeatedly requested the bailiff and the court, respectively, to carry out the execution.
In the re-opened proceedings, on 8 April 1998 the District Court quashed its payment order and dismissed the applicant's claims. He failed to appeal against this decision which became binding on 10 June 1998.
Subsequently, the applicant requested the rectification, as to the amount, of the enforcement order issued on the basis of the original payment order. The District Court, as confirmed by the Békés County Regional Court on 2 December 1999, dismissed his request, since that order had been quashed and the enforcement proceedings had consequently been discontinued. On 7 February 2001 the Supreme Court dismissed the applicant's petition for review and upheld the Regional Court's decision.
On 21 April 1999 and 28 February 2000 the District Court, as confirmed by the Regional Court on 6 September 1999 and 29 May 2000, respectively, rejected the applicant's requests for the re-opening of the case. On 20 September 2000 the Supreme Court rejected his petition for review.
At the applicant's repeated request to have further amounts added to the execution order, on 26 April 2001 the District Court noted that its decision of 8 April 1998 had cited the wrong reference number for the payment order. That decision was rectified accordingly.
On 28 June 2001 the District Court ordered the continuation of the enforcement proceedings which were found to have been terminated on account of the erroneous reference number in the decision of 8 April 1998. The applicant's request that further amounts be added to the one specified in the enforcement order was turned down. This decision was upheld in substance by the Regional Court on 27 November 2001 and by the Supreme Court on 29 January 2002.
Meanwhile, on 23 September 2001 the bailiff repeatedly informed the applicant that he could execute the payment order only when the applicant had advanced the costs.
On 5 April 2002 the District Court dismissed the applicant's request that a new enforcement order be issued in the case. It held that the enforcement order issued in 1995 was to be pursued and that the applicant should address his requests to the bailiff. On 24 September 2002 the Békés Regional Court dismissed the applicant's appeal. On 5 December 2002 the bailiff repeatedly informed the applicant that he could execute the payment order only when the creditor had advanced the costs.
On 7 October 2003 the Békés County Regional Court confirmed the first-instance order of 5 May 2003, by which the applicant's request for the exemption from court fees had been dismissed. The Regional Court held that the District Court had proceeded according to the law when dismissing the applicant's request, who, despite warning, had failed to provide the court with supporting documents.
On 21 January 2004 the Supreme Court rejected the applicant's petition for review, holding that, according to section 270 of the Code on Civil Procedure, no review lay against procedural orders.
Act no. 53 of 1994 on Judicial Enforcement provides:
“(1) Unless otherwise provided by law, the costs of execution shall be advanced by the party who has requested the execution and shall be borne by the debtor.
...
(4) The parties shall deposit the expected costs of the execution to the bailiff's settlement account, or pay the amount directly to the bailiff in exchange for a receipt.”


ITEMID: 001-23756
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MURATOVIC v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The first applicant, Aslan Muratovic, and the second applicant, Atifa Muratovic, are ethnic Bosnians who were born in 1953 and 1952, respectively, and live in Randers, Denmark. They are represented before the Court by Mr Lars Thousig Jensen, a lawyer practising in Viborg.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants and their three children entered Denmark on 20 November 2000 without any travel/identification papers and requested asylum in that while they were living in the village Vitomirica in Kosovo in June 1999 Albanian men subjected them to a violent assault which included rape of the women. The applicants succeeded in fleeing to Montenegro and thereon to Denmark.
On 4 February 2002 the Aliens Authorities (Udlændingestyrelsen) refused to grant the applicants asylum, a decision which was upheld on appeal by the Refugee Board (Flygtningenævnet) on 19 August 2002. Both instances found it established that the applicants and their children had been subjected to serious violence in June 1999, but found that the assault should be seen, not so much as a result of the applicants being Bosnians, but in connection with the situation at the relevant time in Kosovo. In this respect it was recalled that under the mandate of the United Nations, the NATO-led international Kosovo Force, KFOR, being responsible for establishing and maintaining security in Kosovo, on 12 June 1999 intervened in the conflict between Serbian and Kosovar Albanian forces, and that subsequent thereto, for a short while, Albanian armed groups took over specific areas.
The Refugee Board stated in addition, that presently the general security situation as to Bosnians in Kosovo had improved according to inter alia UNHCR’s position paper of April 2002, background no. 309, and UNHCR’s and OSCE’s report on ethnic minorities, background no. 313.
Finally, although finding it established that the applicants were affected by their experiences to the detriment of their mental health, the Board did not find that a concrete danger existed that they would be subjected to assaults if returned. They were ordered to leave the country immediately.
On 5 September 2002 the applicants applied the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for Flygtninge, Indvandrere og Integration) for a residence permit either on humanitarian grounds pursuant to section 9 b of the Aliens Act (Udlændingeloven) or in the alternative due to extraordinary circumstances pursuant to section 9 c of the Aliens Act. In support of their application they submitted statements by doctors from which it appeared inter alia that the first applicant had been ill for many years, notably suffering from chronic headache; that he was suffering from Post Traumatic Stress Disorder (PTSD); that he had received treatment by a psychiatrist and a psychologist, and that he was taking antidepressive medication. Moreover, according to a statement of 9 October 2002 by a psychologist, the first applicant had expressed thoughts of suicide in case he would be returned to Kosovo. With regard to the second applicant it appeared inter alia that she had received treatment by a psychologist and that she was taking tranquillizers.
By decision of 14 April 2003 the Ministry of Refugee, Immigration and Integration Affairs refused to grant the applicants a residence permit pursuant to section 9 b of the Aliens Act since they did not suffer from a very serious physical or mental illness, which could justify the granting of a residence permit on humanitarian grounds. Moreover, the Ministry noted that in general the fact that a person had expressed contemplation of suicide was insufficient to fulfil the criteria under section 9 b of the Aliens Act. In addition, it had not been established that the first applicant was suffering from a mental illness, which according to a concrete medical assessment entailed a significant risk that he would commit suicide. The applicants were ordered to leave the country without delay.
By decision of 4 June 2003 the Aliens Authorities refused to grant the applicants a residence permit pursuant to section 9 c of the Aliens Act finding that no extraordinary circumstances existed. The applicants did not appeal against the decision to the Ministry of Refugee, Immigration and Integration Affairs.
The Aliens Act and Kosovars in Denmark.

According to information provided by the Government, in the summer of 1999 Denmark evacuated a total of 2,855 Kosovars, which were selected together with UNHCR. The applicants in the present case were not among those evacuees. They entered Denmark themselves in November 2000. A “Kosovo Emergency Act” of April 1999 created the legal basis at domestic level for receiving displaced persons from Kosovo with a need for temporary protection. The Act was repealed in 2000. At the same time a provision was inserted in the Aliens Act introducing the possibility of granting a residence permit to distressed persons from the Kosovo Province assumed to need temporary protection (now section 9 e (1)). A precondition for obtaining a residence permit under this provision is that the person in question must be assumed to need temporary protection in Denmark and formerly held a residence permit pursuant to the “Kosovo Emergency Act” or has been registered as an asylum-seeker before 30 April 1999. The assessment whether applicants are eligible for a residence permit under section 9 e (1) of the Aliens Act is made on the basis of UNHCR recommendations. Thus, in accordance with the UNHCR recommendations it is possible to issue residence permits under section 9 e (1) to persons - who formerly held a residence permit under the Kosovo Emergency Act or who applied for asylum before 30 April 1999 – and who can be referred to one of the categories of “chronically ill persons whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Persons with severe and chronic mental illness whose conditions requires specialised medical intervention of a type not yet available in Kosovo”; “Severely handicapped persons (including their caregivers) whose wellbeing depends on a specialised support system not yet available in Kosovo”; “Unaccompanied elderly persons who have no relatives or any other form of societal support in Kosovo”; and “ Separated children without relatives or caregivers in Kosovo, and for whom it is found not to be in the best interest to return to Kosovo”. App1ications for a residence permit under section 9 e (1) of the Aliens Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs.
The applicants in the present case are not covered by section 9 1 (e) of the Aliens Act because they never held a residence permit under the “Kosovo Emergency Act” and they entered Denmark after 30 April 1999. However - like asylum-seekers from other countries – they had the possibility of applying for asylum pursuant to section 7 of the Aliens Act, for a residence permit on humanitarian grounds pursuant to section 9 b of the Act, or for a residence permit due to extraordinary circumstances pursuant to section 9 c of the Act.
Asylum is granted to aliens, who satisfy the conditions of the Geneva Convention. Applications for asylum are determined in the first instance by the Aliens Authorities and in the second instance by the Refugee Board, which is an independent quasi-judicial body that is not subject to any instructions from the Danish Government. Thus, the Ministry of Refugee, Immigration and Integration Affairs has no authority to decide applications for asylum. UNHCR Recommendations are included in the background material of the asylum authorities in connection with the determination of concrete asylum cases.
The granting of a residence permit on humanitarian grounds pursuant to section 9 b of the Act is a discretionary decision, which according to practice may be granted to persons who do not satisfy the conditions of the Geneva Convention, but who is suffering from very severe physical or mental illness (unless the possibility of receiving the requisite medical assistance exists in the applicant’s country of origin). Applications for a residence permit on humanitarian grounds cf. section 9 b (1) are determined by the Ministry of Refugee, Immigration and Integration Affairs.
A residence permit may be granted pursuant to section 9 c of the Aliens Act on a discretionary basis, if due to extraordinary circumstances, there are strong grounds for granting such. App1ications for a residence permit under this section of the Act are determined in the first instance by the Aliens Authorities and in the second instance by the Ministry of Refugee, Immigration and Integration Affairs.
According to the Aliens Act an alien whose application for a residence permit for Denmark has been refused must leave the country. Furthermore, under the Act it is possible to provide financial assistance if the person in question returns without undue delay voluntary.
In connection with the forced return of aliens from the Kosovo Province, UNMIK (United Nations Interim Administration Mission in Kosovo) is the relevant partner. In every case there is a close dialogue between the Danish National Commissioner of Police and UNMIK. Firstly the Danish National Commissioner of Police notifies UNMIK about the return to Kosovo of Kosovars whose applications for a residence permit in Denmark have been refused. Such notifications state the time of the individual’s departure from Kosovo and entry into Denmark and inform of decisions made by the Danish authorities and the individual’s personal situation, including his or her home town in Kosovo, the languages mastered by the individual and where his or her family members are staying. It also appears from the notification if the individual has been expelled due to crime. The notifications also state particulars on the individual’s health status. This notification procedure was first established at a meeting held in Kosovo from 24 to 26 July 2000 between officials of the Danish National Commissioner of Police, the Aliens Authorities and UNMIK. The notification procedure was confirmed and expanded at a meeting in Kosovo on 22 January 2003 between a delegation of high officials from the immigration authorities and UNMIK, who agreed that UNMIK will be provided with extended information, especially concerning the mental status of Kosovars who are non-voluntarily sent back to Kosovo in order to support UNMIK in its efforts to solve its task. Such information will be available to UNMIK by offering the Kosovars in question a voluntary medical status report prior to the return to Kosovo. The Danish National Commissioner of Police has presented to UNMIK a number of Kosovars whose applications for a residence permit in Denmark have been refused for which reason they have had to leave Denmark. In some cases UNMIK objected to the return of the persons in question. In such situations the Danish National Commissioner of Police has suspended the return until further notice.
In the present case, the Danish National Commissioner of Police has not yet contacted UNMIK because the forced return of the applicants has not been planned yet. Normally a forced return takes quite some time, not less than two or three months.
Relevant international materials
With regard to the current security situation in Kosovo, the following statements/ findings are of particular relevance:
The Secretary General on the United Nations Interim Administration Mission in Kosovo stated in his report of 14 April 2003 covering the activities of UNMIK and the developments in Kosovo, Serbia, and Montenegro among other things that given the continued violence, harassment and discrimination faced by minorities, achieving sustainable minority returns to Kosovo was difficult, time-consuming and resource-intensive;
In his report of 26 June 2003 he stated inter alia that incidents of violence and crimes against minorities continued to be a cause for concern within Kosovo;
In his report of 15 October 2003 he stated inter alia that despite setbacks resulting from recent violent incidents involving Kosovo Serb victims, the overall rate of returns continued to accelerate during the reporting period. Over 2,200 displaced persons had returned so far that year to areas where they were a minority (including 1,016 Kosovo Serb, 693 Roma/Ashkaelia/Egyptians, 242 Bosnians, 74 Gorani and 239 Kosovo Albanians). Funding expected from several major donors had been provided in Kosovo and work on a number of returns projects had begun in earnest, including the return of Kosovo Serbs to Podgorce (Gnjilane region) and Zhupa Valley (Prizren region), and Roma/Ashkaelia/Egyptian returns to Magura (Pristinia region) and Pristina town. The heightened level of security within the Kosovo Serb and other minority communities had not resulted in the cancelling of any returns project, but it had led to numerous postponements of returns activities, at a stage in the season where such delays may mean that returns are not possible until next spring. It was also considered likely to have a dampening effect on individuals’ return.
The Tenth Assessment of the Situation of Ethnic Minorities in Kosovo of March 2003, conducted jointly by OSCE and the UNHCR, stated that minorities continue to face varying degrees of harassment, intimidation and provocation, as well as limited freedom of movement, and that considering the overall situation described in the report, the changes noted during the reporting period were not yet fundamental enough to conclude that conditions would exist for large scale return of ethnic minorities in the near future, underscoring the continuing need for international protection for members of ethnic communities, in particular Kosovo Serbs, Roma, Ashkaelia and Egyptians;
The UNHCR Position Paper on the continued Protection Needs of individuals from Kosovo of January 2003 stated that especially Kosovo Serbs and Roma, but also Ashkaelia and Egyptians should continue to benefit from international protection in countries of asylum. UNHCR stressed that return of these minorities should take place on a strictly voluntary basis and be based on fully informed individual decisions. Any such voluntary return movements should be properly coordinated, and re-integration should be supported through assistance to ensure sustainability. Kosovo Serb, Roma, Ashkaelia and Egyptian individuals or families should not be forced or induced to return to Kosovo.
The First Vice-President of the Advisory Committee on the Framework Convention for the Protection of National Minorities, recommended in his mission report of March 2003 “Roma Returns to Serbia and Montenegro” for the Council of Europe, inter alia that Roma asylum seeker/returnees (from Western Europe), who fled Kosovo, should not be returned to Kosovo unless they wish to return and they are advised by UNMIK and UNCHR that it is safe for them personally to return to their homes, and
In its report of 29 April 2003 - Serbia and Montenegro (Kosovo) “Prisoners in our own homes”: Amnesty International’s concerns for the human rights of minorities in Kosovo - Amnesty International urged inter alia host countries not to end international protection for all minority refugees from Kosovo and ensure that refugees still in need of protection were not subject in any way to pressure or inducement to “voluntarily return”. Amnesty International considered that the forcible return of members of minority groups to Kosovo would be a violation of the principle of non-refoulement and place minority individuals at risk.
It follows from a “Memorandum of Understanding” between the Federal Minister of the Interior of Germany and the Special Representative of the Secretary-General of the United Nations for Kosovo of 31 March 2003 that approximately 33,000 members of ethnic minorities from Kosovo are required to leave Germany. It was agreed that certain members of specific ethnic minority groups were no longer in need of international protection and could therefore be returned to Kosovo, as from April 2003. In the first year Germany would return up to 1000 persons. This figure would include members of the Turkish, Bosnian, Gorani and Torbesh minority communities, as well as Ashkaelia and Egyptian minorities. As to the latter two groups of minorities, they would be returned depending on the results of an individualised screening process performed by UNMIK. Members of the Serb and Roma communities would not be returned in 2003.


ITEMID: 001-80863
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GOTTHARD-GAZ KFT v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
TEXT: 4. The applicant company was founded in 1991 with the aim of constructing a gas supply network for the town of Szentgotthárd.
5. On 27 January 1993 the Veszprém District Mining Authority issued a permit for another company, authorising it to construct principal gas pipe sections in two streets in Szentgotthárd. On 8 February 1993 the applicant filed an administrative appeal. On 12 March 1993 the National Mining Authority dismissed the appeal, holding that the applicant had no locus standi. The applicant sought judicial review on 5 April 1993.
6. After two hearings, on 20 September 1993 the Veszprém District Court quashed the administrative decisions.
7. On appeal, on 7 February 1994 the Veszprém County Regional Court quashed this decision and dismissed the applicant's action. It held that the plaintiff had no locus standi in the case, because it could not prove that – in accordance with section 327(1) of the Code of Civil Procedure – the subject matter concerned its rights or lawful interests. Nor could the applicant company (which itself had not been a party to the administrative proceedings) prove – as required by section 72(1) of the Code of Administrative Procedure – that it had suffered prejudice to its lawful interests.
8. On 28 March 1994 the applicant filed a petition for review. The Supreme Court held hearings on 20 and 27 November 1995. On the latter occasion, the applicant declared that another administrative litigation concerning its licence to supply gas was in progress. The Supreme Court suspended the proceedings pending the outcome of the other case.
9. After the second-instance court on 25 September 2003 had finally dismissed the applicant's action concerning the licence, the Supreme Court resumed the proceedings. On 8 January 2004 it upheld the Regional Court's decision. It endorsed the reasoning of the second-instance decision, and refuted the applicant's allegation that it had been deprived of its locus standi without an examination of the merits of the case. In the court's view, the fact that, after having deduced in a detailed analysis that the applicant company had no locus standi in the case, the Regional Court had not embarked on an examination of the underlying administrative dispute did not amount to a denial of justice.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57944
LANGUAGEISOCODE: ENG
RESPONDENT: LUX
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF PROCOLA v. LUXEMBOURG
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award
JUDGES: R. Pekkanen
TEXT: 7. Procola is a dairy constituted as an agricultural association under Luxembourg law. Its registered office is at Ingeldorf.
8. Following the introduction of the "milk quota" system in the member States of the European Community by EEC Regulations Nos. 856/84 and 857/84 of 31 March 1984, Luxembourg adopted, in a grand-ducal regulation of 3 October 1984, the provisions incorporating the Community rules into domestic law. A number of ministerial orders were issued on 10 October 1984 allocating reference quantities for milk purchases (i.e. the quantities in excess of which an additional levy would be payable) to the four milk purchasers in the Grand Duchy, that is to say the dairies purchasing milk from producers - including the applicant association; the quantities were based on the figures for milk collected in 1981.
9. The applicant association and two other milk purchasers appealed to the Judicial Committee of the Conseil d'Etat against the decisions fixing the reference quantities. In accordance with Article 177 of the Treaty establishing the European Economic Community ("the EEC treaty"), that court referred a number of questions to the Court of Justice of the European Communities ("the Court of Justice") for a preliminary ruling, which was given in a judgment of 25 November 1986.
10. In the light of the answers given by the Court of Justice, the Conseil d'Etat held, in a judgment of 26 February 1987, that the choice of 1981 as the reference year had led to discrimination between purchasers, contrary to Article 40 para. 3 of the EEC treaty. The impugned decisions were accordingly set aside and the case was referred to the Minister of State for Agriculture for a fairer apportionment of the reference quantities among the four dairies in Luxembourg by means of a grand-ducal regulation.
11. On 27 May 1987 the Minister of State submitted a new draft grand-ducal regulation under which the reference quantities were to be allocated to the four milk purchasers on the basis of the milk deliveries made to them in 1983. In order to meet Luxembourg's obligations under Community law, it was proposed in the draft regulation to make the new reference quantity system applicable not only in the future but also retrospectively to previous milk-production years, with effect from April 1984. The draft regulation was submitted to the Conseil d'Etat for an opinion.
12. In a letter of 24 June 1987 the President of the Conseil d'Etat drew the Prime Minister's attention to the fact that such rules could be given retrospective effect only through legislation and not by means of a regulation.
13. At the close of its deliberations of 2 July 1987 the Conseil d'Etat proposed certain amendments and a single-clause bill giving the future regulation retrospective effect from 2 April 1984, the date on which the milk-quota system had come into force in the European Community countries.
14. With certain amendments, the Minister of State's draft regulation of 27 May 1987 became the Grand-Ducal Regulation of 7 July 1987 and the bill drafted by the Conseil d'Etat on 2 July 1987 became the Act of 27 August 1987, which made this regulation applicable with retrospective effect to "the twelve-month periods of application of the additional levy on milk commencing respectively on 2 April 1984, 1 April 1985 and 1 April 1986". For these periods, paragraph 2 of the single section of the Act provided: "Purchasers' reference quantities shall be reallocated on the basis of the provisions of Article 3 of the Grand-Ducal Regulation of 7 July 1987 referred to above, and the basic and supplementary individual reference quantities shall be recalculated on the basis of the relevant provisions of the same regulation."
15. On 21 September 1987 the Minister of State issued four ministerial orders fixing the applicant association's milk quantities for each of the four milk-production years between 2 April 1984 and 31 March 1988.
16. On 24 November 1987 Procola applied to the Judicial Committee of the Conseil d'Etat for judicial review of each of those four orders on the grounds that they adversely affected the association and its suppliers because its reference quantities for the milk-production years in question were too low. In its pleadings, in addition to raising a number of grounds of appeal alleging the unlawfulness of the Grand-Ducal Regulation of 7 July 1987 and breaches of several of its provisions, the applicant association criticised its retrospective application to milk-production years before the one which had begun on 1 April 1987. In the alternative, it asked the Judicial Committee to refer a number of questions to the Court of Justice for preliminary rulings, including one concerning the principle of non-retrospective application.
17. In a judgment of 6 July 1988 the Judicial Committee dismissed the applications in the following terms:
"While it is true that as a general rule a statute makes provision only for the future, it is open to the legislature to give retrospective effect to a statute, in so far as this is not prohibited under the Constitution. Luxembourg was required to fill the legal vacuum created by the Judicial Committee's judgment of 26 February 1987 quashing the regulation, otherwise it would have been in breach of its binding obligations under the Treaty of Rome.
Under Article 189 of that treaty, Community regulations are directly applicable. Consequently, Luxembourg was obliged to legislate on the matter of milk levies for the periods from 2 April 1984 to 31 March 1987, and only Parliament, which had the approval of the Community authorities, had the power to do so.
At all events, the penalties attaching to any failure on the part of purchasers to comply with the quantities during the first, second and third periods are no higher than those which would have been payable under the previous legislation. The difference, amounting to approximately 35 million [francs], is to be borne by the State, with the agreement of the Community authorities, so that the retrospective effect of the milk quantities, far from causing the applicant association prejudice, is in fact beneficial to it.
A plea of unlawfulness cannot succeed against a statute and this ground must accordingly fail ..."
Four of the five members of the Judicial Committee had previously taken part in drawing up the Conseil d'Etat's opinion on the draft regulation and in framing the bill in issue.
18. In order to regulate and stabilise the market in milk and milk products, which was characterised by overproduction, the Council of Ministers of the European Economic Community adopted Regulations (EEC) Nos. 856/84 and 857/84 of 31 March 1984. These established in the Community member States, for a five-year period commencing on 2 April 1984, a system of additional levies on all milk delivered in excess of a guaranteed quantity, also known as the "reference quantity".
Each member State was allocated a total reference quantity which it then had to apportion among milk producers, under Formula A, or milk purchasers (dairies) under Formula B. The reference quantities for purchasers and producers were determined on the basis of the deliveries they took or their production in 1981, 1982 or 1983, weighted by a certain percentage fixed in such a way as not to exceed the guaranteed quantity.
The additional levy, which was set at a certain percentage of the target price for milk, was payable by producers or purchasers, as appropriate, on all milk produced or collected in excess of the reference quantity. Where a member State chose Formula B, purchasers were to pass on the cost of the additional levy only to those producers who had delivered a quantity of milk exceeding their quota.
19. Luxembourg opted for Formula B, and the measures for implementing the Community rules were laid down in a grand-ducal regulation of 3 October 1984 and a number of ministerial orders of 10 October 1984 (see paragraph 8 above).
20. At the time when the judgment complained of by the applicant association was given, the second and third paragraphs of Article 76 of the Luxembourg Constitution, which govern the subject, provided:
"In addition to the Government there shall be a Council, whose functions shall be to deliberate on draft legislation and any amendments proposed thereto, determine administrative disputes and give its opinion on any other question referred to it either by the Grand Duke or pursuant to a statutory provision. The organisation of this Council and the manner in which it is to perform its functions shall be laid down by statute."
21. The Act of 8 February 1961, as amended on 26 July 1972, laid down the organisation of the Conseil d'Etat. Section 1 provides:
"The Conseil d'Etat shall be composed of twenty-one councillors, eleven of whom shall form the Judicial Committee.
The latter figure shall not include those members of the Reigning Family who form part of the Conseil d'Etat."
The Act does not distinguish between the Judicial Committee and the Conseil d'Etat proper with regard to the appointment of the Conseil d'Etat's members (section 4). The members are all appointed by the Grand Duke, who chooses them either directly or from a list of candidates put forward by the Chamber of Deputies or the Conseil d'Etat itself.
The members of the Judicial Committee are chosen from among the members of the Conseil d'Etat (section 5).
22. Section 9 lays down the qualifying conditions for becoming a member of the Conseil d'Etat. The same qualifying conditions apply to the Judicial Committee, except that its members must also be doctors of law or enjoy the rights appertaining to that title.
The duties of a member of the Conseil d'Etat are not full-time and are incompatible only with serving as a member of the Government, a Government adviser or a member of Parliament. Section 22 (2) provides: "Members of the Judicial Committee may not take part in the deliberations on cases which they have already dealt with in some other capacity than as member of the Conseil d'Etat." It thus implies that a councillor who has already had to deal with a case as a member of the Conseil d'Etat is not prevented from dealing with the same case if it comes before the Judicial Committee.
23. In principle, the term of office of a member of the Conseil d'Etat ends only when he reaches the age-limit, which is at present 72.
24. The Conseil d'Etat has mainly advisory and judicial functions (sections 7 and 8).
25. With regard to its advisory functions (section 27), the Conseil d'Etat gives its opinion on all Government and private members' bills, draft regulations on general administrative matters, and draft regulations or orders required for the implementation of treaties.
26. As a judicial body, the Conseil d'Etat, acting through its Judicial Committee, is the court of first and last instance in administrative proceedings. Its judicial powers are restricted in two respects. Firstly, it can only review the lawfulness of individual administrative decisions, not general regulatory decisions; secondly, except where there is an express statutory provision to the contrary (section 29), the only remedy available against these decisions is judicial review on the grounds of lack of competence, ultra vires, abuse of authority or breaches of the substantive or procedural rules protecting private interests (section 31).
27. In 1989 Article 76 of the Constitution was amended. A bill at present before Parliament is intended to bring about a radical reform of this whole question, the aim being to separate the Conseil d'Etat's advisory and judicial functions.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71876
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: MUSKUS AND OTHERS v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mrs Irena Muskus, Mr Józef Pawelec and Mrs Władysława Pawelec, are Polish nationals, who were born in 1939, 1948 and 1912 respectively. On 8 April 2001 the third applicant died. The first and the second applicant live in Krzeszowice, Poland.
On 12 October 1992 the third applicant lodged an application with the Kielce Regional Court (Sąd Wojewódzki) for compensation for damages sustained by her husband in connection with his conviction in 1953 by the Kielce District Military Court.
In February 1993 the first and second applicants and two other children of the third applicant, lodged similar applications. They based their actions on the Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland (Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu Państwa Polskiego).
The applicants submit that the first hearing was held on 9 October 1994.
At the hearing held on 18 September 1995 the court decided to join all five applications and examine them together.
On 18 December 1995 the court held a hearing. Subsequently, the applicants applied to the court to make some amendments to the minutes of the hearing. On 9 January 1996 the trial court, sitting in camera, ordered the preparation of an expert opinion.
On 11 March and 20 May 1996 the trial court held hearings. The applicants requested the court to amend the minutes of both hearings. The applicants’ requests were dismissed on 1 October 1996.
On 23 May 1996 the Regional Court gave a decision. It awarded each of the applicants PLN 7,500 for pecuniary and non-pecuniary damage.
The applicants appealed against this decision.
At the hearing held on 19 December 1996 the Krakow Court of Appeal (Sąd Apelacyjny) quashed the impugned decision and remitted the case.
The Kielce Regional Court held at least one hearing on 4 April 1997.
On 8 December 1997 the Kielce Regional Court gave a decision in which it partly allowed the action and awarded compensation.
The applicants lodged an appeal against this decision but on 30 April 1998 the Krakow Court of Appeal dismissed it.
On 28 May 1998 the applicants lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).
On 21 December 1999 the Supreme Court dismissed their cassation appeal as manifestly ill-founded.


ITEMID: 001-23306
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: GÜLER, SAHIN, YILMAZ, KOYUNCU, CAKMAK, YILMAZ, YAMAN and OTHERS, DÖNER and DURSUN, TUNCER v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants, Muammer Güler, Ramazan Şahin, İbrahim Yılmaz, Muharrem Koyuncu, Mahmut Çakmak, Mehmet Yılmaz, Hayriye Yaman, Necla Yaman, Kadir Yaman, Saliha Yaman, Nimet Köse, Zeynep Süslü, Hakkı Döner, Engin Dursun and Ramazan Tuncer, are Turkish nationals, represented before the Court by Mrs Belkıs Baysal, a lawyer practising in Istanbul.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant. The amount which was assessed by a committee of experts was paid when the expropriation took place.
On 19 July 1993 the applicant commenced legal proceedings before the Kartal Civil Court of First Instance for additional compensation.
On 19 November 1993 the court awarded the applicant additional compensation plus an interest at the statutory rate of 30% per annum, starting from 24 June 1993.
On 23 February 1994 the Court of Cassation upheld the decision of the Kartal Civil Court of First Instance.
The due amount was paid to the applicant on 16 January 1998.
The General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant. The amount which was assessed by a committee of experts was paid when the expropriation took place.
On 2 May 1986 the applicant commenced legal proceedings before the Üsküdar Civil Court of First Instance for additional compensation.
On 27 April 1987 the court awarded the applicant additional compensation plus an interest at the statutory rate of 30% per annum, starting from 24 October1986.
On 15 February 1988 the Court of Cassation upheld the decision of the Üsküdar Civil Court of First Instance.
The due amount was paid to the applicant on 10 December 1996.
The General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant. The amount which was assessed by a committee of experts was paid when the expropriation took place.
On 3 July 1996 the applicant commenced legal proceedings before the Gebze Civil Court of First Instance for additional compensation.
On 5 November 1996 the court awarded the applicant additional compensation plus an interest at the statutory rate of 30% per annum, starting from 26 June1996.
On 25 February 1997 the Court of Cassation upheld the decision of the Gebze Civil Court of First Instance.
The due amount was paid to the applicant on 8 December 1997.
The General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant. The amount which was assessed by a committee of experts was paid when the expropriation took place.
On 3 July 1996 the applicant commenced legal proceedings before the Gebze Civil Court of First Instance for additional compensation.
On 5 November 1996 the court awarded the applicant additional compensation plus an interest at the statutory rate of 30% per annum, starting from 26 June 1996.
On 25 February 1997 the Court of Cassation upheld the decision of the Gebze Civil Court of First Instance.
The due amount was paid to the applicant on 8 December 1997.
The General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant. The amount which was assessed by a committee of experts was paid when the expropriation took place.
On 11 December 1990 the applicant commenced legal proceedings before the Kartal Civil Court of First Instance for additional compensation.
On 2 October 1992 the court awarded the applicant additional compensation plus an interest at the statutory rate of 30% per annum, starting from 20 November1990.
On 28 April 1993 the Court of Cassation upheld the decision of the Kartal Civil Court of First Instance.
The due amount was paid to the applicant on 27 November 1996.
The General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant. The amount which was assessed by a committee of experts was paid when the expropriation took place.
On 3 July 1996 the applicant commenced legal proceedings before the Gebze Civil Court of First Instance for additional compensation.
On 5 November 1996 the court awarded the applicant additional compensation plus an interest at the statutory rate of 30% per annum, starting from 26 June1996.
On 25 February 1997 the Court of Cassation upheld the decision of the Gebze Civil Court of First Instance.
The due amount was paid to the applicant on 8 December 1997.
The General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicants. The amount which was assessed by a committee of experts was paid when the expropriation took place.
On 3 July 1996 the applicants commenced legal proceedings before the Gebze Civil Court of First Instance for additional compensation.
On 5 November 1996 the court awarded the applicant additional compensation plus an interest at the statutory rate of 30% per annum, starting from 3 July 1996.
On 25 February 1997 the Court of Cassation upheld the decision of the Gebze Civil Court of First Instance.
The due amount was paid to the applicants on 8 December 1997.
The General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicants. The amount which was assessed by a committee of experts was paid when the expropriation took place.
On 12 November 1991 the applicant commenced legal proceedings before the Kartal Civil Court of First Instance for additional compensation.
On 13 July 1992 the court awarded the applicant additional compensation plus an interest at the statutory rate of 30% per annum, starting from 15 October 1991.
On 7 June 1993 the Court of Cassation upheld the decision of the Kartal Civil Court of First Instance.
The due amount was paid to the applicant on 23 December 1996.
The General Directorate of National Roads and Highways expropriated two plots of land belonging to the applicant. The amount which was assessed by a committee of experts was paid when the expropriation took place.
On 22 July 1992 the applicant commenced legal proceedings before the Üsküdar Civil Court of First Instance for additional compensation.
On 22 December 1992 the court awarded the applicant additional compensation plus an interest at the statutory rate of 30% per annum, starting from 23 June 1986 and 10 April 1990 respectively.
On 6 April 1993 the Court of Cassation upheld the decision of the Üsküdar Civil Court of First Instance.
The due amount was paid to the applicant on 10 December 1996.
The first letter concerning these applications was received on 6 June 1998.
A letter was sent by the Court on 27 July 1998 requesting further information as the applications were incomplete.
As the Court did not receive any reply, the provisional file concerning the application no PL9265 was destroyed on 10 August 2000.
The first letter concerning these applications was received on 9 June 1997.
A letter was sent by the Court on 30 July 1997 requesting further information as the applications were incomplete.
As the Court did not receive any reply, the provisional file concerning the application no PK7781 was destroyed on 9 December 1999.
The first letter concerning the application was received on 15 August 1998.
Warning letter was sent from the Court on 18 January 2000 requesting clarification and proof for the purpose of the respect of the six months rule.
As the Court did not receive any reply, the provisional file concerning the application no PN1266 was destroyed on 13 September 2001.
The first letter concerning this application was received on 9 June 1997.
The warning letter was sent from the Court on 30 July 1997 requesting clarification and proof for the purpose of the respect of the six months rule.
As the Court did not receive any reply, the provisional file concerning the application no PK7780 was destroyed on 9 December 1999.
On 7 August and 11 November 2002 the applicants’ representative wrote two letters addressed to the Registry complaining about the destruction of the provisional files concerning these applications. She claimed that she did not receive any letters and that there was no mention of the destruction of the application in the Rules of Court in case of alleged inactivity of the applicants. She alleged that she had pursued her cases via telephone conversations with the Registry and not by writing letters to the Court and that therefore she could not have been considered as inactive. She also stated that she had submitted around 71 similar cases between 1996 and 1998 some of which were pending and others concluded by friendly settlements whereupon she inquired about the developments in these cases. Therefore she requested that the running of six-months of these applications be calculated from the date of their original applications.


ITEMID: 001-111657
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ZULFALI HUSEYNOV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos
TEXT: 4. The applicant was born in 1954 and lives in Baku.
5. On 22 January 1998 the applicant was issued with an occupancy voucher (yaşayış orderi) for a flat in a recently constructed residential building in Baku on the basis of the Baku City Executive Authority’s order of 19 January 1998.
6. At the same time, the applicant became aware that the flat was occupied by J. and his family, who were internally displaced persons (“IDP”) from Aghdam, a region under occupation of Armenian military forces following the Armenian-Azerbaijan conflict over Nagorno-Karabakh.
7. On an unspecified date in 1998, the applicant lodged a lawsuit with the Yasamal District Court asking the court to order the eviction of J. and his family from the flat.
8. On 7 July 1998 the Yasamal District Court granted the applicant’s request. The court held that the applicant was the sole lawful tenant of the flat on the basis of the occupancy voucher of 22 January 1998 and, therefore, the flat was unlawfully occupied by J. and his family. No appeals were filed against this judgment and, pursuant to the domestic law in force at the material time, it became enforceable within ten days after its delivery.
9. According to the applicant, J. and his family refused to comply with the judgment and the competent authorities did not take any measures to enforce it for many years.
10. According to the Government’s letter of 17 May 2012, the judgment in the applicant’s favour was enforced in April 2012.
11. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1