ITEMID: 001-4501
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BARIM v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, who was born in 1965, is a Turkish citizen, resident in Elazığ. He is currently detained at Elbistan Prison. Before the Court, he is represented by his brother, Erdem Barım.
On 13 February 1994 four persons from the same family, B.F., E.F., M.F. and Y.K. were found dead near their house in Elazığ. The ensuing police investigation led to the arrest of Zihni Umay (Z.U.) on 16 February 1994. Whilst he was in police detention Z.U. confessed that he had killed B.F., E.F., M.F. and Y.K.. He stated that three other persons, including the applicant, had also been involved in the killing. On 16 February 1994 the applicant was detained on the ground of these allegations. In his statement, allegedly taken under duress in the police station, the applicant confessed that he had been involved in the murders.
On 20 February 1994 the applicant was brought before the public prosecutor and the Magistrate’s Court in Criminal Matters. In his defence submissions he retracted from his statement taken in the police station and denied all the charges against him. On the same day he was placed in detention on remand together with the other three co-accused.
On 4 March 1994 the Elazığ Public Prosecutor instituted criminal proceedings in the Elazığ Assize Court against the applicant and the other three co-accused, Z.U., V.Ç. and Me.B.
The Elazığ Assize Court heard oral evidence from the witnesses called both by the prosecution and defence, examined the autopsy reports and conducted a survey of the scene of the crime. The Assize court further carried out an investigation into the applicant’s allegations of ill-treatment in police detention. It examined the medical reports and heard oral evidence from the police officers, who were allegedly responsible.
On 27 September 1994 the Elazığ Assize Court convicted the applicant of homicide and sentenced him to lifetime imprisonment. It held that the four co-accused had acted with premeditation in order to steal Y.K.’s jewellery and killed B.F., E.F., M.F. and Y.K. to destroy the evidence and the traces. The court also found that Z.U. had killed Y.K., V.Ç. had killed M.F., Me.B. had killed E.F. and the applicant had killed B.F.
The Elazığ Assize Court further examined the credibility of a letter by Z.U., dated 1 July 1994. In this letter, he stated that he had lied in his earlier statements. He admitted that he had killed the four persons alone and that the other accused persons were innocent. The Elazığ Assize Court found that Z.U.’s
The applicant appealed and on 8 February 1995 the Court of Cassation quashed the judgment of 27 September 1994 without examining the merits of the case for violation of procedural rules. It stated that the record of the trial, dated 14 July 1994, was signed by a recording clerk of the court other than the one mentioned in the record.
The Elazığ Assize Court, to which the case was referred, re-examined the case and on 1 May 1995 convicted the applicant of homicide and sentenced him to lifetime imprisonment.
The applicant appealed against this judgment. On 25 October 1995 the Court of Cassation, upholding the cogency of the Elazığ Assize Court’s assessment of evidence and reasoning dismissed the appeal by 3 votes against 2.
On 16 November 1995 the Public Prosecutor attached to the Court of Cassation challenged the decision of 25 October 1995 on the ground that there was not enough evidence to convict the applicant of homicide.
On 5 December 1995 the Joint Criminal Chambers of the Court of Cassation, upholding the cogency of the Elazığ Assize Court’s assessment of evidence and its reasoning in rejecting the applicant’s defence, dismissed the Public Prosecutor’s request to acquit the applicant by 20 votes against 5. In the dissenting opinions it was stated that the applicant was probably involved in the killing, but that there was not the decisive element of proof which would definitively establish the liability of the applicant and that it could not be entirely excluded that Z.U.’s account of facts was true.


ITEMID: 001-75286
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MAYDA v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr H. Kaplan, a lawyer practising in Istanbul.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
Until 1994 the applicants lived in Kılıçlı village, in the district of Lice, in Diyarbakır province, where they own property. It is to be noted that Tajdin Ayşin, Osman Ayşin, Hanifi Ayşin and Hikmet Ayşin did not submit any certificate to the Court attesting their ownership of the property in Kılıçlı.
Furthermore, Ahmet Mayda, Nihat Ayşin, Rahim Ayşin, Rahim Ayşin, Abdulvahap Ayşin, Bayram Ayşin, İhsan Ayşin, Hadin Ayşin and Muhyetin Ayşin did not submit their authority forms.
In May 1994, security forces forcibly evacuated Kılıçlı on account of disturbances in the region. They also destroyed the applicants’ property. The applicants and their families then moved to Diyarbakır and its districts where they currently live.
On 30 May1997 the mayor of Kılıçlı village filed a petition, on behalf of the residents, with the State of Emergency Department of the Governor’s office in Diyarbakır and asked the latter to allow the residents of the village to cultivate their lands.
On 1 October 1999 the applicants filed petitions with the office of the District Governor’s office in Lice and requested permission to return to their village.
On 5 October 1999 the Lice District Governor rejected their requests.
On an unspecified date, the mayor of Kılıçlı filed a petition, on behalf of the residents, with the office of the Prime Minister and requested permission to return to their village.
On 3 April 2002 the office of the Prime Minister sent a reply to the mayor and informed him that his petition was transmitted to the Ministry of the Interior.
On 11 April 2002 the mayor of Kılıçlı filed a further petition, on behalf of the residents, with the office of the Prime Minister and requested permission to return to their village.
On 30 September 2002 the Research, Planning and Coordination Committee attached to the Ministry of the Interior sent a reply to the mayor and informed him that Kılıçlı village was not yet suitable for residence.
It is to be noted that the applicants failed to submit a copy of these petitions to the Court.
The official records indicated that the inhabitants of Kılıçlı had evacuated their village on account of intense terrorist activities in the region and threats issued by the PKK (Workers’ Party of Kurdistan) terrorist organisation against the villagers. The security forces had not forced the applicants to leave their village.
Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


ITEMID: 001-59613
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF ILIJKOV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Antonio Pastor Ridruejo
TEXT: 9. On 4 October 1993 the applicant was arrested on charges of forgery of documents and fraud in connection with a criminal investigation that had been opened on 10 September 1993.
It was alleged that the applicant, with the assistance of a customs officer and two other accomplices, had made false customs declarations certifying fictitious exports of consignments of cigarettes which in reality had been sold on the domestic market. On the basis of the false declarations the applicant had obtained the reimbursement of some excise tax and had attempted to obtain further reimbursements. The total amount involved, for which the applicant was eventually found guilty (see paragraph 33 below), was 15,230,400 old Bulgarian levs (“BGL”) (about 3,000,000 French francs (“FRF”) at the time).
The charges preferred against the applicant were based on section 212 § 4 of the Penal Code, which provided for a sentence of ten to twenty years’ imprisonment.
10. During the preliminary investigation the case file was transmitted twice from the Plovdiv investigator’s office to the Plovdiv Regional Court so that the appeals against detention could be examined. The case file was thus unavailable to the investigator and the supervising prosecutor for twelve days (between 28 October and 9 November 1993) and for a further four days (between 28 February and 2 March 1994).
11. The preliminary investigation was concluded on 5 April 1994 when the indictment drawn up by the prosecutor was submitted to the Plovdiv Regional Court.
12. The Plovdiv Regional Court sat as a chamber of three judges: a president who was a professional judge and two lay judges.
It held its first hearing on 12 and 13 May 1994 when the four accused and several witnesses were heard. The prosecutor and the defence lawyers requested permission to submit further evidence. The court adjourned the hearing.
13. Several times during the proceedings the Regional Court had to wait for the case file to be returned by the Supreme Court in Sofia, where it had been sent for the examination of the appeals submitted by the applicant and his co-accused against the Regional Court’s refusals to release them on bail. In practice, whenever such an appeal was submitted, the Plovdiv Regional Court transmitted the case file together with the appeal and a prosecutor’s opinion.
14. The case file was sent to the Supreme Court on 28 May 1994 for one of the co-accused’s appeal against detention to be examined and was returned on 30 June 1994.
The Regional Court did not deal with the case until 13 September 1994, when the presiding judge ordered the production of a piece of evidence.
15. The next hearing was held on 6 October 1994. The court heard several witnesses and adjourned the hearing as the prosecutor insisted on the examination of other witnesses who had not appeared. Some of them were ordered to pay fines for their failure to appear. The court further decided to seek the assistance of the police to establish the addresses of other witnesses who could not be found.
16. The hearing resumed on 29 and 30 November 1994. Several witnesses and experts were heard. Both the prosecution and the defence sought to adduce additional evidence. The hearing was adjourned.
17. Between 20 January and 21 February 1995 the case file was in Sofia at the Supreme Court for the examination of appeals against detention.
18. The hearing listed for 19 April 1995 was adjourned as the presiding judge was ill. The next hearing, scheduled for 9 June 1995, was adjourned as one of the lay judges had been taken ill.
19. On 12 July 1995 the court sitting in private ordered an expert report.
The hearing listed for 21 September 1995 was adjourned owing to the illness of the lawyer of one of the co-accused.
20. Between 3 October and 6 November 1995 the case file was in Sofia at the Supreme Court, which was examining appeals against detention.
21. The next hearing, listed for 12 January 1996, had to be adjourned as both lay judges were ill.
22. After learning that the lay judges were prevented by ill health from further participation in the proceedings, on 19 February 1996 the Plovdiv Regional Court recommenced the examination of the case with two new lay judges.
23. The new chamber of the court held a hearing on 26 and 27 March 1996 which was adjourned as some of the witnesses had not been summoned due to an omission on the part of the court’s clerk and because the parties sought to adduce further evidence. The court fixed the date for the next hearing to 7 and 8 May 1996.
24. On 7 and 8 May 1996 the court heard several witnesses and an expert. The hearing was adjourned as further evidence had to be obtained.
25. Between 9 and 28 May 1996 the case file was at the Supreme Court in Sofia in connection with appeals against detention.
26. The hearing scheduled for 16 and 17 September 1996 was adjourned to 29 and 30 October 1996 as a lay judge had broken his leg and was unable to attend.
27. On 29 October 1996 the parties to the criminal case, including the applicant who at that time was on hunger strike, appeared before the Plovdiv Regional Court. The lawyers requested an adjournment in view of the applicant’s health and the absence of the witnesses and of a defence lawyer. The court heard the medical experts who had been appointed the previous day and had examined the applicant briefly. The experts stated that the applicant needed to undergo a full examination in hospital. On 30 October 1996 the court ordered the applicant’s temporary admission to hospital and adjourned the hearing. The parties disagreed over the reasons for this adjournment. The applicant submits that the absence of several witnesses was decisive, whereas the Government maintain that the only reason was the applicant’s state of health, as the medical experts considered that he was not well enough to participate in the hearing.
28. Between 19 November and 4 December 1996 the case file was in Sofia at the Supreme Court in connection with appeals against detention. In its cover letter to the Supreme Court, the Regional Court drew attention to the fact that a hearing had been listed for 19 December 1996 and called for the return of the case file before that date.
29. The hearing resumed on 19 December 1996. One witness was examined. As other witnesses had not appeared, the court accepted the requests of the defence lawyers and the prosecutor for a further adjournment.
30. With two exceptions, the Plovdiv Regional Court did not, when adjourning hearings, announce in open court a date for the resumed hearing. As a result, certain witnesses and experts who were present but had to be heard again were informed about the date of the resumed hearing by a summons to attend. If the summons did not reach the person concerned the examination of the case could not be completed at the resumed hearing.
In particular, the witnesses Mrs M. H. and Mr S. Z. were present at the hearing on 13 May 1994, but were not duly summoned for the hearing on 29 November 1994. The witness Mr G.P. was present at the hearing on 26 March 1996 but was not duly summoned for the hearing on 7 May 1996. That latter hearing was adjourned to allow the examination of witnesses who had not appeared.
31. The Regional Court throughout the proceedings sought police assistance to establish the addresses of witnesses and bring them before the court. One of the witnesses was suspected of seeking to evade service of the summonses.
32. The last hearing before the Plovdiv Regional Court took place on 2831 January 1997. The court heard witnesses and the submissions of the parties to the criminal case and examined other evidence. The applicant apparently unsuccessfully requested the adjournment of the hearing in order to question four absent witnesses whose attendance had previously been requested by both parties.
33. On 31 January 1997 the Regional Court convicted the applicant and sentenced him to thirteen years’ imprisonment. His accomplices were also convicted and sentenced to terms of imprisonment of between eleven and twelve years. The court reserved the reasoning of its judgment. It was prepared on an unspecified date at least three months following the delivery of the judgment.
34. On 10 February 1997 the applicant appealed against conviction and sentence to the Supreme Court of Cassation, which under the relevant law was acting as an appellate court in cases such as the applicant’s.
The Supreme Court of Cassation listed the case for hearing on 26 September 1997. On that date the prosecutor appointed to act before the Supreme Court of Cassation declared that he used to know one of the convicted persons and wished to withdraw. The court adjourned the hearing.
35. The hearing was held on 23 January 1998. On 18 March 1998 the Supreme Court of Cassation upheld the applicant’s conviction and sentence.
36. Up to that point the applicant had been represented by a lawyer and, at times, by two or three lawyers simultaneously.
37. On 24 March 1998 one of the persons convicted at the same trial instituted review (cassation) proceedings.
The five-member Chamber of the Supreme Court of Cassation held a hearing on 10 June 1998 at which the applicant appeared without legal representation. He expressed the wish to join the review (cassation) proceedings, which was still possible as the statutory time-limit had not expired. The court adjourned the hearing to enable the applicant to file a petition for review (cassation) and arrange for his legal representation. The applicant lodged a petition for review on 22 June 1998.
38. The hearing resumed on 9 December 1998.
By judgment of 22 March 1999 the Supreme Court of Cassation dismissed the applicant’s petition for review (cassation).
39. On 4 October 1993, the day of his arrest, the applicant was brought before an investigator, who decided to detain him on remand. This decision was approved by a prosecutor on the same date.
On 14 October 1993, when the case was at the preliminary investigation stage, the applicant appealed to the Plovdiv Regional Court against his detention on remand. The court examined the case in private, on the basis of the investigator’s file, the applicant’s petition and the prosecutor’s comments, which were not communicated to the applicant. By a decision of 3 November 1993 the court dismissed the applicant’s appeal.
40. One of the applicant’s accomplices, a Mr H., was released on bail on 6 November 1993, but was re-arrested on 15 February 1994. While on bail Mr H. attempted to induce Mr G., a witness, to give false evidence, and was later charged with and convicted of that offence.
41. Following the conclusion of the preliminary investigation in the applicant’s case, and after his committal in April 1994 for trial, the applicant made before the Plovdiv Regional Court seven applications for release on bail. Appeals were made to the Supreme Court against some of the decisions of the Regional Court.
42. The first of those seven bail applications was made on 3 October 1994 and dismissed by the Regional Court on 6 October 1994.
Another request, made on an unspecified date, was dismissed by the Regional Court on 30 November 1994. The Regional Court’s refusal to release the applicant was confirmed by the Supreme Court on 21 February 1995.
43. In its decision of 21 February 1995 the Supreme Court stated that under Article 152 §§ 1 and 2 of the Code of Criminal Procedure detention on remand was mandatory for everyone accused of a crime punishable by ten or more years’ imprisonment, the only exception being where it was clear beyond doubt that there was no danger of the accused’s absconding or re-offending. In the Supreme Court’s view such would only be the case where, for example, the accused was seriously ill, elderly or in any other condition which excluded the danger of his or her absconding or re-offending. Since the applicant was charged with a crime punishable by more than ten years’ imprisonment and as no special circumstances excluding the danger of his absconding or re-offending had been established, there were no grounds for ordering his release on bail. The Supreme Court referred to its practice on the matter.
The Supreme Court further refused to consider the applicant’s contention that the evidence against him was weak. It found that it had no jurisdiction to do so in connection with a bail application. Its only task was to examine whether the conditions for detention on remand under Article 152 of the Code of Criminal Procedure had been met.
44. The applicant again applied for his release on bail on 11 July 1995. That application was dismissed by the Regional Court on 21 September 1995. On appeal, the Regional Court’s refusal to release the applicant was upheld by the Supreme Court sitting in private on 6 November 1995, upon receipt of the prosecutor’s observations which had not been communicated to the applicant. The Supreme Court stated that the applicant could only be released if there existed unequivocal evidence establishing beyond all doubt that there was no danger of his absconding, re-offending or obstructing the investigation. However, no such evidence was available in the applicant’s case.
By a decision of 4 December 1995 the Regional Court refused the applicant’s request, submitted on an unspecified date, to annul or revise its previous decision concerning his detention on remand. Addressing the applicant’s argument that the material in the case indicated that he had not committed a crime, the court stated that it was not open to it to analyse the evidence in the criminal proceedings. The lawfulness of the detention was to be gauged on the basis of the accusation against the applicant. The only other element to be examined was whether or not there existed exceptional circumstances demonstrating beyond all doubt that there was not even a hypothetical danger of his absconding, re-offending or obstructing the investigation. However the court had already found that no such circumstances existed.
45. A further request for release on bail, submitted on 15 January 1996, was refused by the Regional Court on 20 February 1996 as there had been no change in the circumstances.
At the hearing on 27 March 1996 before the Regional Court the applicant made an oral request for release. This was refused that same day. The court stated that there had been no change of circumstances and that the law did not lay down a time-limit for detention on remand.
46. On 1 April 1996 the applicant’s lawyer lodged an appeal to the Supreme Court against the decision of 27 March 1996. Three days later, on 4 April 1996, the applicant also appealed in person. The appeals were submitted through the Regional Court, in accordance with the established practice. The grounds for appeal were, inter alia, that all evidence in the criminal case had already been examined and that therefore there was no danger of the applicant’s perverting the course of justice. Furthermore, there was no danger of his absconding, as he had been abroad when the investigation had started and had returned voluntarily. He had never been convicted of a criminal offence, had a family and a permanent residence. The applicant also stated that the length of his detention violated the Convention.
47. By a decision of 9 April 1996 delivered in private the Regional Court, before transmitting the appeals of 1 and 4 April 1996 to the Supreme Court, confirmed its refusal of 27 March 1996 to release the applicant. The Regional Court stated inter alia that the applicant’s arguments could not, under the settled practice of the Supreme Court, serve as a basis for a decision to release him.
48. The applicant’s appeals of 1 and 4 April 1996 were transmitted to the Supreme Court on 9 May 1996. On 10 May 1996 the applicant lodged a further appeal against the Regional Court’s refusal to release him. It was joined to the two earlier appeals.
49. On 22 May 1996 a prosecutor of the Chief Public Prosecutor’s Office lodged written submissions on the appeals with the Supreme Court, inviting it to dismiss them. The submissions were not communicated to the applicant.
On 28 May 1996 the Supreme Court dismissed the appeals. It found that under Article 152 § 1 of the Code of Criminal Procedure the applicant’s detention on remand was justified and that the case before it did not come within the exception provided by Article 152 § 2 of the Code.
The court also stated that the length of the proceedings and the question whether the accusations were well-founded were irrelevant.
50. On 15 October 1996 the applicant lodged a further application for release on bail. At that time he was on hunger strike which he had commenced on 23 September 1996 to protest against his continuing detention on remand.
The presiding judge noted on 23 October 1996 that the court could not hear the appeal as one of the lay judges had been taken ill.
At the hearing of 29 and 30 October 1996 the applicant renewed his application.
The Regional Court heard medical experts who had examined the applicant and it dismissed his application of 30 October 1996.
51. On 6 November 1996 the applicant’s lawyers lodged an appeal against the decision of 30 October 1996.
On 11 November 1996, before transmitting the appeal to the Supreme Court, the Regional Court sitting in private confirmed its decision of 30 October 1996. It found inter alia that there had been no change of circumstances except for the applicant’s worsening health. However, the medical experts had not stated that his release was necessary and his condition was being constantly monitored in hospital.
52. On 19 November 1996 the appeal was transmitted to the Supreme Court.
On 25 November 1996 a prosecutor of the Chief Public Prosecutor’s Office submitted written observations to the Supreme Court, inviting it to dismiss the appeal. The comments were not communicated to the applicant.
53. On 4 December 1996 the Supreme Court sitting in private dismissed the appeal. It stated, inter alia, that the danger of absconding, re-offending and perverting the course of justice was presumed in view of the gravity of the crime with which the applicant was charged. The applicant’s health problems, which could be dealt with at the place of detention, and the length of his detention despite its inevitable negative consequences did not affect that finding. The court further considered that the applicant’s complaints under the Convention were unfounded. In particular, the applicant was wrong to consider that certain provisions of the Code of Criminal Procedure were contrary to the Convention.
54. On 31 January 1997 the applicant was convicted and sentenced to a term of imprisonment (see paragraph 33 above).
55. The Supreme Court has stated that it is not open to the courts, when examining an appeal against detention on remand, to inquire whether there exists sufficient evidence to support the charges against the detainee. The courts must only examine the lawfulness of the detention order (Decision no. 24 of 23 May 1995 in case no. 268/95, I Chamber, Bulletin 1995, p. 149).
56. Paragraphs 1 and 2 of Article 152, as in force at the material time (and until 4 June 1995), provided as follows:
“(1) Detention on remand shall be imposed [in cases where the charges concern] crimes punishable by ten or more years’ imprisonment or capital punishment.
(2) In the cases under the preceding paragraph [detention on remand] shall not be imposed if there is no danger of the accused evading justice or committing further offences.”
57. These provisions, as worded from 4 June 1995 until August 1997, provided as follows:
“(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime.
(2) In the cases falling under paragraph 1 [detention on remand] may not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing further offences.”
According to Article 93 § 7 of the Penal Code a “serious” crime is one punishable by more than five years’ imprisonment.
58. With effect from 1 January 2000 Article 152 and other provisions concerning the grounds for detention on remand were amended.
59. According to the Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of the amendments in force since 1 January 2000) Article 152 § 1 required that a person charged with a serious wilful crime (or with a crime punishable by ten or more years’ imprisonment, according to this provision as in force before June 1995) had to be detained on remand. An exception was only possible, in accordance with section 152 § 2, where it was clear beyond doubt that any danger of absconding or re-offending was objectively excluded as, for example, in the case of an accused who was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Decision no. 1 of 4 May1992 in case no. 1/92, II Chamber, Bulletin 1992/93, p. 172; Decision no. 4 of 21 February 1995 in case no. 76/95, II Chamber; Decision no. 78 of 6 November 1995 in case no. 768/95, II Chamber; Decision no. 24 in case no. 268/95, I Chamber, Bulletin 1995, p. 149).
60. According to Article 304 § 1 of the Code of Criminal Procedure, the detainee’s applications for release at the trial stage of criminal proceedings are examined by the trial court.
61. It follows from Article 304 §§ 1 and 2 that such requests may be examined in private or at an oral hearing. The law does not require the trial court to decide within a particular time-limit.
The trial court’s decision as regards a request for release is subject to appeal to the higher court (Article 344 § 3). The appeal must be lodged within seven days (Article 345) with the trial court (Article 348 § 4 in conjunction with Article 318 § 2). According to Article 347, after receiving the appeal, the trial court, sitting in private, shall decide whether there exist grounds to annul or vary its decision. If it does not find a reason to do so the trial court transmits the appeal to the higher court.
Before doing so, the trial court must communicate the appeal to the other party and receive its written observations (Article 348 § 4 in conjunction with Articles 320 and 321). The law does not provide for the prosecutor’s observations to be communicated to the appellant.
62. Article 348 provides that the appeals court may examine the appeal in private or, if it considers it necessary, at an oral hearing. The law does not require the appeal court to decide within a particular time-limit.
63. Article 212 § 4 lays down that it is an offence to misappropriate very large quantities of possessions by using forged documents. This offence is punishable by ten to twenty years’ imprisonment.
64. Article 259 of the Code of Criminal Procedure is entitled “Substitute judges and lay judges”. Paragraph 1 provides:
“Where the examination of the case will be lengthy, a substitute judge or lay judge may be appointed.”
65. In 1997 the Supreme Court split into a Supreme Court of Cassation and a Supreme Administrative Court.
66. Article 362 of the Code of Criminal Procedure, in force since April 1998, provides that criminal proceedings may be reopened where “a violation of the Convention of substantial significance for the particular case has been established by a judgment of the European Court of Human Rights”.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-83106
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SAMMUT AND VISA INVESTMENTS LIMITED v. MALTA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall
TEXT: 1. The first applicant, Mr John Sammut, is a Maltese national, who was born in 1948 and lives in Sliema (Malta). He is the director of the second applicant, Visa Investments Limited, a limited liability company located in Sliema. The applicants were represented before the Court by Mr I. Refalo and Mrs T. Cachia, both lawyers practising in Valletta (Malta). The respondent Government were represented by their Agent, Mr S. Camilleri, Attorney General.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The second applicant is the owner of a real estate in Sliema. In his capacity as company director the first applicant was given authority to obtain from the administration, the authorisations needed for carrying out building work.
4. On 6 December 1990 the Planning Area Permits Board (the “PAPB”) issued a permit in which it authorised the first applicant “to demolish the existing buildings and to re-erect ground floor and mezzanine shopping arcades with overlying flats and garages at basement level ... Height of building should not exceed eight floors plus underlying basement”.
5. According to the applicants this permit and the plans attached approved one basement car park, a ground floor and mezzanine shopping arcade, and seven levels of flats. According to the Government this permit and the plans attached approved “one basement car park, a ground floor and mezzanine shopping arcade, and six levels of flats”. The Government noted that in the approved plans the seventh level was deleted by shading it in yellow. The parties appear to have become aware of these diverging views only during the proceedings before this Court.
6. This permit was valid for two years, and the work as the first applicant believed it to have been authorised was carried out within that period.
7. On 28 July 1992 a new permit was issued, since an application had been made for a further permit connected to the same development but from a different side of the site (Fawwara Lane). In so far as relevant, the first applicant was authorised “to demolish the existing building and to re-erect three basement/garages for private cars, plus ground floor shopping arcades (double height) ... with overlying flats (six floors) including washrooms ...”.
8. The applicants and the Government agreed that the two permit applications in 1990 and 1992 were substantially identical, except for the development on Fawwara Lane, which was not at issue. Both applications were for a development of a ground floor of a height of two normal floors and seven upper floors of normal height, therefore a total height of nine normal floors.
9. In respect of the permit issued on 28 July 1992, the Government confirmed the wording quoted above and added that in one of the drawings constituting the plans, the seventh floor had been erroneously reinserted while the applicants submitted that the ambiguous deletion of part of the mezzanine floor had been eliminated, but that the sixth floor had been deleted.
10. The applicants alleged that they had developed the site according to the permits and according to the plans approved by the PAPB. The Government contested this on the basis of their exposition of the facts.
11. A few days later, on 14 August 1992, the PAPB issued of its own motion another permit in the name of the first applicant to remedy the situation created by the permit of 28 July 1992. In so far as relevant, this permit of 14 August 1992 authorised the first applicant to develop the site in question in a different manner in particular “to demolish existing building and to re-erect basement garages for private cars, plus three floors shopping arcade (including a ground floor of double height) ... with overlying flats (five floors) and washrooms”. It was also stated that the plans which had been issued with the permit of 28 July 1992 were being replaced.
12. According to the Government, the issue of the permit of 14 August 1992 was meant to correct an oversight which had occurred during the drafting of the permit of 28 July 1992. On that occasion the PAPB had deleted one of the floors, marked as a mezzanine floor, from the plans submitted by the applicants. However, because of a clerical error, this deletion was not reflected in the permit of 28 July 1992. The applicants submitted that it was not possible for them to know whether the authorisation to build a mezzanine floor was due, as the Government stated, to an “oversight”. They later stated that according to them the authorisation to construct apartments on the sixth floor and to build a mezzanine floor had been revoked.
13. The change in the building specifications was not notified to the applicants, who were not informed that the PAPB was reconsidering the permits already issued to them. However, the permit of 14 August 1992 was sent to the applicants’ architect, who on 18 August 1992 requested the Chairman of the PAPB to reconsider the permit in issue.
14. On 29 October 1993 the Malta Environment and Planning Authority (the “MEPA”) replied that the Development Control Commission (the “DCC”) had decided that the permit of 14 August 1992 should stand as issued.
15. The applicants submitted that it was unclear to them and to their architect that the request of 18 August 1992 was being considered by the DCC, which never invited them to present oral or written submissions.
16. On 28 January 1994, when over a year had passed since the DCC’s decision of 1993 holding that the permit of 18 August 1992 should stand as issued, the MEPA issued an enforcement notice (no. 62/94). It observed that the “seventh” floor and the washrooms on the top floor were not covered by a development permit. The applicants were ordered to demolish those parts of the development already completed which were not authorised by the permit of 14 August 1992.
17. In February 1994 the first applicant appealed against this notice before the Planning Appeals Board, which rejected his claim in a decision of 30 June 1995. The Board held that the only valid building permit was that issued on 14 August 1992 and that the plans submitted by the applicants and the permits previously granted on the basis of these plans were not in conformity with the law.
18. The first applicant referred his case to the Court of Appeal. He argued that the original permit had never been validly revoked. However, on 3 June 1996 this appeal was adjourned sine die at the first applicant’s request by reason of the fact that a constitutional claim, having a bearing on the proceedings before the Court of Appeal, had been filed before the Civil Court (First Hall). According to the information provided by the Government in October 2004, at that date the proceedings before the Court of Appeal had not been reactivated.
19. In the meantime, on 3 April 1996, the MEPA had issued against the applicants another enforcement notice (no. 556/96), in relation to an illegal development of the facade of the building, which the applicants did not appeal.
20. The applicants asserted that on the basis of the permits of 6 December 1990 and of 28 July 1992 they had undertaken several obligations vis-à-vis third parties, including leases and sales, and had provided funding for the planned construction work. Due to the partial revocation of these permits, the applicants were unable to honour their obligations, thus suffering a significant financial loss.
21. On 3 June 1996 the first applicant lodged a constitutional complaint with the Civil Court (First Hall). He alleged that the revocation of the permit of 28 July 1992 by means of the issuing of the new permit of 14 August 1992 had violated his right to peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1. He also requested that the permit of 14 August 1992 be declared null and void. He further alleged that he had been denied a fair hearing since the PAPB had failed to notify him of the changes in the permit and he had had no opportunity to make any submissions before the DCC’s decision.
22. In a judgment of 12 December 1996 the Civil Court rejected the complaint on procedural grounds. It observed that the first applicant had brought his claim against the MEPA; however, this body was not a successor of the PAPB which had issued the permit of 14 August 1992.
23. The first applicant appealed to the Constitutional Court.
24. In a judgment of 30 April 1998 the Constitutional Court observed that the aim of constitutional proceedings was to afford the highest judicial protection against a violation of fundamental rights, with the least formality and the maximum efficiency. Citizens were not obliged to indicate with certainty those responsible for the violation. Therefore, nothing prevented the Civil Court from precisely identifying those who were responsible for the violation alleged and from authorising the first applicant to bring an action against them. The Constitutional Court therefore sent the file back to the Civil Court, ordering that the case be continued according to law.
25. In a judgment of 4 October 2000 the Civil Court refused to exercise its constitutional jurisdiction on the ground that the first applicant had used and was using ordinary remedies in order to protect his fundamental rights. The Civil Court observed that the first applicant had requested the MEPA to reconsider his case. There was still a possibility that this request would be accepted and an appeal was available to the first applicant in case of refusal. Moreover, the first applicant had appealed to the Planning Appeals Board and the Court of Appeal.
26. On 12 October 2000 the first applicant appealed to the Constitutional Court.
27. In a judgment of 27 February 2003 the Constitutional Court rejected the first applicant’s appeal and confirmed the Civil Court’s judgment. It observed that in the interests of the administration of justice, the constitutional courts should not be burdened with cases which might be dealt with by other courts or for which there were other remedies available under the domestic legislation. The first applicant’s claim was that by reason of the issuing of the permit of 14 August 1992 he was obliged to change what he had already developed or had planned to develop according to the previous permits. Therefore, a request for reconsideration of the case and the possibility of being granted a new permit were effective remedies available to the first applicant at the time of the introduction of his constitutional claim before the Civil Court. In respect of his complaint regarding a fair hearing, it held that his complaint was against the DCC and not the PAPB; thus, the remedy he was seeking before the Constitutional Court was different from that sought before the Court of Appeal, and therefore the applicant was still making use of ordinary remedies and the Court could not exercise its constitutional jurisdiction.
28. Meanwhile, on 1 April 1996, the first applicant had submitted a “full development application” to the MEPA, requesting the retention of the mezzanine floor and to be authorised to change the top floor from washrooms to penthouses. This request was refused on 14 August 1998.
29. In a letter of 21 August 1998 the first applicant asked for a reconsideration of his request. His claim was upheld and on 21 July 2001 a new building permit was issued.
30. Until 1 January 1993 building development permits were regulated by Part I of the Code of Police Laws. Section 16(1) of that Code provided:
“The Minister responsible for public works may, prior to the preparation, publication or approval of a scheme, order by notice in the Government Gazette the whole or any part of Malta to be a planning area; and from the date of any such order no person shall lay out, construct or close any street, or erect any building or increase the height of or otherwise modify any existing building, or change the use of any land or building in any part of such area (whether or not an approved scheme exists in respect thereof) without a permit from the Minister responsible for public works who may, in his discretion, refuse the grant of a permit or, in granting it, impose such conditions as in his discretion he may deem proper.”
31. The Minister responsible for public works could delegate all or any of his powers to a body known as the Planning Area Permits Board (the “PAPB”). However, this body was abolished by the 1992 Development Planning Act (which entered into force on 1 January 1993), and a new autonomous public authority with the power to issue building permits, the Malta Environment and Planning Authority (the “MEPA”), was set up. According to the Constitutional Court (see judgment of 30 April 1998 in the case of John Sammut v. Planning Authority) the MEPA “enjoyed original powers even in relation to a development which occurred before the coming into force of Act I of 1992, and not continuing powers as a successor of the PAPB”.
32. Section 37 §§ (1) and (3) of the Development Planning Act provide:
“(1) If an applicant considers that conditions imposed upon a development permission, or a refusal of such a permission, is unreasonable he may, without prejudice to his right of appeal, either request the Authority or the Commission, as the case may be, to reconsider its decision or he may lodge an appeal with the Appeals Board ... A request for reconsideration shall not be made currently with an appeal. A request for reconsideration and an appeal under this sub-section, as the case may be, shall be made within thirty days of receipt of the decision of the Authority or of the Commission, as the case may be. Where a request for reconsideration has been made, an appeal may be made to the Appeals Board within thirty days of receipt of the decision taken in the reconsideration.
...
(3) During the reconsideration stage, the Authority or the Commission, as the case may be, may request the applicant to file fresh plans, in which case the Authority or the Commission, as the case may be, shall give reasons for such a request provided that the substance of the development shall not change and any person who has made written objections to the development in terms of Article 32(5) shall be informed that such fresh plans have been so filed and shall also be invited to be present at the Authority’s or the Commission’s sitting, as the case may be, when such application shall be discussed. Both the applicant and the objectors, if any, shall be informed of the date and time of the meeting and, if present, may address the Authority or the Commission, as the case may be, with regard to the planning matters concerning the said application.”
33. The relevant sections of the Maltese Civil Code read as follows:
Section 1030
“Any person who makes use, within the proper limits, of a right competent to him, shall not be liable for any damage which may result therefrom.
Section 1031
Every person, however, shall be liable for the damage which occurs through his fault.
Section 1032
(1) A person shall be deemed to be in fault if, in his own acts, he does not use the prudence, diligence, and attention of a bonus paterfamilias.
(2) No person shall, in the absence of an express provision of the law, be liable for any damage caused by want of prudence, diligence, or attention in a higher degree.
Section 1033
Any person who, with or without intent to injure, voluntarily or through negligence, imprudence, or want of attention, is guilty of any act or omission constituting a breach of the duty imposed by law, shall be liable for any damage resulting therefrom.”


ITEMID: 001-4794
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TAMMINEN AND TAMMELIN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are Finnish nationals, born in 1930 and 1963 respectively and living in Korkeakoski, Finland.
They are represented before the Court by Mr Mika Ala-Uotila, a lawyer practising in Nokia, Finland
A.
s, may be summarised as follows.
In August 1993 a bank instituted civil proceedings against the applicants and some others before the Pihtipudas District Court (kihlakunnanoikeus, häradsrätt). The bank claimed for repayment of a loan of about 450,000 Finnish marks from the applicants as they had stood surety for the principal debtors. The applicants opposed the claim. In two hearings before the District Court the principal debtors, one of the applicants and one witness called by the applicants (MT) gave evidence. On 17 December 1993 the District Court found for the plaintiff.
B. Relevant domestic law
According to Chapter 30, Section 20, Subsection 1, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk), the Supreme Court holds, when necessary, an oral hearing, where parties, witnesses and experts may be heard, and other evidence may be taken.


ITEMID: 001-22961
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: KNAUTH v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto
TEXT: The applicant, Mrs Ursula Knauth, is a German national who was born in 1944 and lives in Berlin. She was represented before the Court by Mr F. Wolff, a lawyer practising in Berlin.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant had been working as a nursery-school teacher (Kindergärtnerin) in Berlin, in the German Democratic Republic (GDR), since 1962. After the reunification of Germany, and in accordance with the relevant provisions of the Treaty of 31 August 1990 on German Unification (Einigungsvertrag – Articles 13 and 20 § 1 taken together with Article 1 §§ 1-3 of Annex I, Chapter XIX, Subject A, Section III – see “Relevant domestic law and practice” below), the applicant was incorporated into the civil service of the Land of Berlin in the Federal Republic of Germany (FRG) and continued working there as a nursery-school teacher.
On 6 December 1990 the applicant answered in the negative when asked whether she had signed an undertaking to collaborate (Verpflichtungserklärung) with the GDR Ministry of National Security (Ministerium für Staatssicherheit – MfS – the GDR secret police), and about any contacts she had had with it, and whether she had received any gifts (Zuwendungen) for collaborating. After German reunification those questions were asked of civil servants from the GDR seeking definitive incorporation into the FRG civil service. The applicant stated that she had replied fully and truthfully to the best of her knowledge and belief (nach bestem Wissen und Gewissen) and that she was aware of the fact that an untrue answer on her part could result in her dismissal.
On 11 July 1994 a report by the federal commissioner responsible for examining data of the GDR State security police (Bundesbeauftragter für die Unterlagen des Staatssicherheitsdienstes der ehemaligen DDR, also known as the Gauck-Behörde) revealed that, after a contact period (Kontaktphase) from 13 June to 8 October 1973, the applicant had been registered as a security collaborator (Gesellschaftlicher Mitarbeiter für Sicherheit – GMS) of the Ministry of Security between 8 October 1973 and 19 November 1979, that on 8 October 1973 she had signed an undertaking to collaborate, that she had participated in fourteen spy operations between 19 August 1974 and 29 May 1976 and that a ministry official had confirmed that she had received gifts of money on five occasions.
On 17 August 1994 the applicant was questioned about that report.
In a decision of 24 August 1994 the Land of Berlin, after consulting the Staff Committee (Personalrat), dismissed the applicant for having collaborated with the GDR Ministry of Security and having lied about her collaboration with that ministry.
On 8 September 1994 the applicant appealed against that decision, submitting that she did not remember having collaborated with the Ministry of Security and that, in any event, her collaboration, which had been of minor importance given that she had merely accompanied her husband, went back to such a distant period that it could no longer be held against her today and could not in any circumstances justify her dismissal.
In a judgment of 24 March 1995 the Berlin Labour Court (Arbeitsgericht) dismissed the applicant’s appeal and held that her ordinary dismissal (with notice) (ordentliche Kündigung) was justified under section 1(2) of the Unfair Dismissal Act (Kündigungsschutzgesetz – see “Relevant domestic law and practice” below).
The court held that the applicant was not fit to be a member of the civil service because she had untruthfully (wahrheitswidrig) declared that she had neither signed an undertaking to collaborate nor collaborated with the GDR Ministry of Security. The authorities had properly questioned her in that connection and the applicant had objectively and subjectively given an answer which had subsequently been proved to be untrue.
The court concluded that the Land of Berlin’s interest in dismissing a person who had previously lied to her employer about her collaboration with the GDR Ministry of Security, which had been the instrument of repression in that State, accordingly took precedence over the applicant’s age and long years of service.
On 2 June 1995 the applicant appealed against that judgment.
The Berlin Regional Labour Court (Landesarbeitsgericht) upheld that judgment on 26 October 1995.
The Regional Court held that the applicant’s activity could be regarded as collaboration with the GDR Ministry of Security for the purposes of Article 1 § 5 of Annex I, Chapter XIX, Subject A, Section III of the German Unification Treaty (see “Relevant domestic law and practice” below). The fact that she had accompanied her husband in order to provide a smokescreen did not alter that finding.
In the Regional Court’s view, the applicant could not have forgotten that she had collaborated with the Ministry or that she had signed an undertaking. Indeed, she had carried out many spy missions in the company of her husband and, in her undertaking, had expressly declared that she wanted to protect the State from enemy attacks. Furthermore, during questioning on 17 August 1994 the applicant had herself declared that she had not attached any importance to her past collaboration, which showed that she remembered it.
The applicant had therefore given an untruthful answer and was accordingly unfit to be a member of the FRG civil service.
The Regional Court then reiterated that a “lack of personal aptitude” within the meaning of Article 1 of Annex I, Chapter XIX, Subject A, Section III of the German Unification Treaty (see “Relevant domestic law and practice” below) could derive from a lack of trust and from reasons connected with the employee’s character.
The Regional Court added that in the present case the authorities had been entitled to expect the applicant to reply truthfully to the two questions that had been put to her. Indeed, the authorities had to be able to check whether the applicant, who had not been chosen by them as an employee, but had been employed in accordance with the provisions of the German Unification Treaty, could continue to be a member of the civil service or whether she should be dismissed for having collaborated with the GDR Ministry of National Security. The Regional Court found that the lack of truthfulness and honesty in her reply had destroyed the confidence which the authorities had to have in the applicant and made her continued employment in the civil service unacceptable.
On 21 March 1996 the Federal Labour Court (Bundesarbeitsgericht) refused to entertain an appeal on points of law by the applicant on the ground that the ordinary courts’ decisions had been consistent with its own case-law and with that of the Federal Constitutional Court (Bundesverfassungsgericht).
On 3 December 1997 a bench of three judges of the Federal Constitutional Court refused the applicant leave to appeal.
Section 1(2) of the Unfair Dismissal Act provides:
“A dismissal shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct...”
“Sozial ungerechtfertigt ist die Kündigung, wenn sie nicht durch Gründe, die in der Person oder in dem Verhalten des Arbeitnehmers liegen ... bedingt ist.”
Article 13 of the Treaty of 31 August 1990 on German Unification provides that the administrative bodies and other institutions of the civil service in the former territory of the GDR come under the authority of the government of the Land in which they are situated.
Article 20 § 1 of the Unification Treaty provides that persons who were members of the GDR civil service at the time of reunification are subject to the transitional provisions in Annex I.
Article 1 §§ 1-3 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides for the incorporation of civil servants from the GDR into the FRG civil service by means of the substitution of the federal authorities and the Länder of the FRG for the GDR authorities in the existing employment relationship.
As members of the GDR civil service belonged to an institution that did not satisfy the criteria of a State based on the rule of law, special provisions on dismissal were included in Article 1 §§ 4-6 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III.
Thus, Article 1 § 4 of Annex I to the Unification Treaty, Chapter XIX, Subject A, Section III, provides:
“Ordinary dismissal [with notice] from the civil service is permissible if
(a) the employee does not satisfy the requirements on account of lack of professional qualifications or of personal aptitude...”
“Die ordentliche Kündigung eines Arbeitsverhältnisses in der öffentlichen Verwaltung ist zulässig, wenn
der Arbeitnehmer wegen mangelnder fachlicher Qualifikation oder persönlicher Eignung den Anforderungen nicht entspricht oder wenn...”
Article 1 § 5 of the same section is worded as follows:
“A substantial ground for an extraordinary dismissal [without notice] exists, inter alia, if the employee
(b) has collaborated with the former Ministry of National Security or for the National Security Bureau [of the GDR]
and his or her continued employment in the civil service therefore appears unacceptable.”
“Ein wichtiger Grund für eine ausserordentliche Kündigung ist insbesondere dann gegeben, wenn der Arbeitnehmer
...
2. für das frühere Ministerium für Staatssicherheit/Amt für nationale Sicherheit tätig war
und deshalb ein Festhalten am Arbeitsverhältnis unzumutbar erscheint.”
In a leading case the Federal Constitutional Court held that Article 1 § 5 of Annex I to the German Unification Treaty, Chapter XIX, Subject A, Section III was in conformity with the Basic Law because a person who had collaborated with the Ministry of National Security of the GDR did not generally satisfy the requisite conditions for becoming a member of the FRG civil service. In any event, dismissal required an assessment of each individual case during which account had to be taken, inter alia, of the degree of involvement (Mass der Verstrickung) of the person concerned (see Collection of Judgments and Decisions of the Federal Constitutional Court, vol. 96, pp. 189 et seq.).
According to the established case-law of the Federal Labour Court, a public employer is entitled to ask a civil servant if he or she collaborated with the Ministry of Security of the former GDR and whether he or she signed an undertaking to collaborate. The interest of the employer in obtaining a truthful answer takes precedence over the civil servant’s right to decide for himself or herself which information he or she is willing to disclose (informationelle Selbstbestimmung). Questioning the civil servant in this way is designed to “cleanse” the civil service of staff with a reprehensible past (vorbelastetem Personal) so that an efficient civil service can be put in place (Schaffung einer leistungsfähigen öffentlichen Verwaltung) in the general interest. Anyone who lies by declaring that they did not sign an undertaking and did not collaborate with the Ministry of National Security is generally unfit to be a member of the civil service (see Collection of Judgments and Decisions of the Federal Labour Court, vol. 74, pp. 120 et seq., and vol. 81, pp. 15 et seq.).
Article 242 of the Civil Code (Bundesgesetzbuch – BGB) lays down the principle of good faith (Treu und Glauben) in contractual relations.
Sections 19, 20 and 21 of the Law on the Data of the former GDR State Security Police (Gesetz über die Unterlagen des Staatssicherheitsdienstes der ehemaligen Deutschen Demokratischen Republik – Stasi-Unterlagen-Gesetz – StUG) govern the conditions in which the commissioner may disclose data of this ministry to third parties, and they authorise, inter alia, the disclosure of information about members of the civil service.


ITEMID: 001-81654
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TELYATYEVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1967 and lives in Arkhangelsk.
5. On 20 January 2004 the Kotlas Town Court upheld the applicant's action against the Kotlas Town Council and ordered that the Council should:
“...provide Ms Yuryevna Telyatyeva Svetlana, whose family comprises one member, with separate well-equipped living premises that meet sanitary and technical requirements, situated in the town of Kotlas, having a living surface of no less than 12 square metres”.
The judgment was not appealed against and became final.
6. On 6 February 2004 enforcement proceedings were instituted. On 28 July 2005 the bailiffs' office informed the applicant that the judgment of 20 January 2004 remained unenforced because the administration had no available housing or financial resources to purchase a flat.
7. The judgment of 20 January 2004 was enforced on 12 January 2006 when the applicant was provided with a flat measuring 15 square metres.
VIOLATED_ARTICLES: 6


ITEMID: 001-88926
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LOBANOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1965 and lives in Moscow.
7. By a judgment of 12 October 1998 the Shymkent Town Court of the Republic of Kazakhstan convicted the applicant of storing and transporting drugs and sentenced him to five years’ imprisonment. The applicant started serving his sentence in Kazakhstan.
8. On 24 January 2000 the Prosecutor General’s Office of the Russian Federation granted the applicant’s request to be transferred to Russia, his country of citizenship and his mother’s place of residence, to serve the rest of his sentence.
9. On 3 February 2000 the applicant’s request to be transferred to Russia was granted by the Kazakhstan Prosecutor General’s Office.
10. On 29 February 2000, following an agreement between the Russian and Kazakh authorities, the applicant was transferred to Russia.
11. Following the applicant’s request for supervisory review of his case, the Presidium of the YuzhnoKazakhstanskiy Regional Court, in its decision of 16 March 2000, varied the judgment of 12 October 1998 by reclassifying the offence and reducing the sentence. In the same decision the court applied the 1999 Amnesty Act, discharged the applicant from serving the remainder of his sentence and ordered as follows:
“The convicted prisoner Lobanov is to be released from custody forthwith.”
12. Next day the Regional Court sent a copy of its decision to the YuzhnoKazakhstanskiy regional prosecutor’s office, which received it on the same day and, since no information about the place where the applicant was serving his sentence had yet been received from the Russian authorities, launched an inquiry about his location.
13. On 29 March 2000 the applicant arrived at correctional facility no. 8 (penitentiary establishment YaK7/8) in Penza.
14. According to the applicant, on 18 April 2000, immediately after he had learned of the court decision of 16 March 2000, he notified it to the administration of his correctional facility and requested them to expedite his release.
15. On 10 May 2000, after having established the applicant’s location, the YuzhnoKazakhstanskiy regional prosecutor’s office sent a copy of the YuzhnoKazakhstanskiy Regional Court’s decision of 16 March 2000 to Russia. According to the Government, the decision was sent to the Information Centre of the Penza Regional Police Department. According to the applicant, it was sent to Penza correctional facility no. 8.
16. According to the Government, a copy of the YuzhnoKazakhstanskiy Regional Court’s decision of 16 March 2000 was received by the Information Centre of the Penza Regional Police Department on 18 May 2000.
17. On 23 May 2000 the Information Centre, which was located in Penza, after having established the applicant’s location, forwarded the decision to Penza correctional facility no. 8, which received it on 26 May 2000 and forwarded it on the same day to the Prosecutor General’s Office of the Russian Federation.
18. The Prosecutor General’s Office received the decision on 7 June 2000. On 13 June 2000 a deputy Prosecutor General ordered that the applicant be discharged from serving the remainder of his sentence. The next day, the prosecutor’s decision was sent to the Ministry of Justice of the Russian Federation for execution. On 6 July 2000 it was received by the Ministry of Justice’s Penza Region Department for Execution of Sentences.
19. On 10 July 2000 the prosecutor’s decision reached correctional facility no. 8 and the applicant was released on the same day.
20. On an unspecified date the applicant brought proceedings against the Ministry of Justice of Russia and the Ministry of Finance of Russia seeking compensation in respect of pecuniary and non-pecuniary damage sustained as a result of his allegedly unlawful and unfounded detention for three months and ten days after the decision of the YuzhnoKazakhstanskiy Regional Court. By a judgment of the Taganskiy District Court of Moscow of 9 October 2001 the applicant’s action was dismissed. On 30 November 2001 the Moscow City Court quashed the judgment on appeal and remitted the case to the first-instance court for a fresh examination.
21. On 15 August 2002 the Taganskiy District Court of Moscow examined the case anew. It established what the Russian authorities had done in respect of the YuzhnoKazakhstanskiy Regional Court’s decision. In particular, it noted that the decision had been received by correctional facility no. 8 from the Penza Regional Police Department on 26 May 2000. It found that the Convention of the Commonwealth of Independent States of 6 March 1998 on the Transfer of Convicted Persons for Further Serving of their Sentences was not applicable to the applicant’s case as it had not come into force in respect of Russia at the relevant time. It held that the Prosecutor General’s Office had issued the order for the applicant’s release on 13 June 2000 by virtue of its competence and relevant regulations, notably the decree of the Presidium of the Supreme Council of the USSR of 10 August 1979 on the Procedure for Execution of Obligations arising for the USSR from the Convention on the Transfer of Convicted Persons to Serve their Sentences in a State of their Citizenship, signed in Berlin on 19 May 1978, and instructions of 25 October 1979 on enforcement of that decree. The court stated that the decision of the Prosecutor General’s Office discharging the applicant from serving the remainder of his sentence had been lawful. It held that there had been no fault on the part of the defendant authorities and that therefore there was no basis to grant the applicant’s claim for compensation in respect of non-pecuniary damage. Nor did it find grounds for granting the applicant’s claim for compensation in respect of pecuniary damage based on the loss of employment income. It noted that the applicant, who had been employed six months after his release, had failed to prove that he had been unable to find employment earlier through the fault of the defendant authorities. In rejecting the applicant’s claims the court relied on Articles 151, 1069-1071 and 1099 of the Civil Code.
22. The applicant appealed. On 26 December 2002 the Moscow City Court upheld the judgment. It noted, in particular, that the District Court had established no unjustified delay on the part of the defendant authorities in executing the Kazakh court decision. There had thus been no fault on the part of the authorities, and the applicant’s claims had been rightly dismissed.
23. On 10 April 2003 the applicant lodged an application for supervisory review of the case. On 13 May 2003 the Moscow City Court rejected his application.
24. Under Article 15 § 4 of the Russian Constitution, the generally recognised principles and norms of international law and international agreements form part of Russia’s legal order. International agreements prevail over national statutes in the event of conflict.
25. The Civil Code of the Russian Federation contains the following provisions on liability for damage caused by State bodies.
A court may award compensation for non-pecuniary damage (physical or mental suffering) to a person who sustained such damage as a result of a violation of his or her personal non-pecuniary rights. In order to determine the amount of compensation for non-pecuniary damage the court must have regard to the extent to which the perpetrator was at fault and the intensity of any mental anguish or physical suffering caused, bearing in mind the individual characteristics of the victim (Article 151).
“Damage caused to an individual or a legal entity as a result of an unlawful act (failure to act) of State bodies, local self-government bodies or of their officials, including as a result of the issuance of an act of a State or self-government body which is contrary to the law or any other legal act, shall be subject to compensation. The damage shall be compensated for at the expense, respectively, of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation or the treasury of the municipal authority.”
“1. Damage caused to an individual as a result of his or her wrongful conviction or unlawful criminal prosecution, or the unlawful application, as a measure of restraint, of remand in custody or of a written undertaking not to leave a specified place, or the unlawful imposition of an administrative penalty in the form of arrest or corrective labour, shall be compensated for in full at the expense of the treasury of the Russian Federation and in certain cases, stipulated by law, at the expense of the treasury of the subject of the Russian Federation or of the municipal authority, regardless of the fault of the officials of agencies of inquiry or preliminary investigation, prosecutor’s offices or courts in the procedure established by law.
2. Damage caused to an individual or a legal entity as a result of the unlawful activity of agencies of inquiry or preliminary investigation or prosecutor’s offices, which has not entailed the consequences specified in paragraph 1 of this Article, shall be compensated for on the grounds and according to the procedure provided for by Article 1069 of this Code ...”
Article 1071 of the Civil Code authorises certain State financial authorities to act on behalf of the respective treasury in cases where the State has been found liable for damages. Article 1099 of the Civil Code states, in particular, that non-pecuniary damage shall be compensated for irrespective of any award for pecuniary damage.
26. Under Article 8 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993, entered into force on 19 May 1994 in respect of Kazakhstan and on 10 December 1994 in respect of Russia), if an authority which receives another contracting State’s request for legal assistance is not competent to deal with the request, it has to forward the request to the relevant competent authority. An authority which executes such a request normally has to apply the legislation of its own country.
27. Under Government Decree no. 1239 of 26 September 1997, in force at the material time, the Government’s mail was to be delivered with priority. Under Government Decree no. 472 of 15 April 1996, in force at the material time, the Government’s mail was to be delivered on the day of its arrival throughout the working day in question. The statutory time-limit for the postal delivery of normal letters between Moscow and Penza was five days.
VIOLATED_ARTICLES: 5


ITEMID: 001-83239
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GUSOVSCHI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Josep Casadevall
TEXT: 5. The applicants were born in 1949, 1953, 1919 and 1957 respectively. The first two applicants live in Hagimus; Mr V. Gusovschi lives in Tighina and Mr A. Gusovschi is interned in a psychiatric hospital in Chişinău. Ms V. Gusovschi is a second-degree invalid and Mr A. Gusovschi a first-degree invalid.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicants have been in conflict with various local and regional authorities and with their neighbours.
8. In September 1999 the applicants' house was disconnected from the natural gas system owing to their failure to pay the full price of the gas used. On 29 May 2000 Mr S. Gusovschi initiated court proceedings against the system's operator “Moldova-Gaz” and the Prefect of Tighina County seeking the re-connection of the house to the gas system and payment of damages.
9. On 26 December 2000 the Tighina Regional Court accepted his claims. On 18 April 2001 the Court of Appeal quashed that judgment and ordered a re-hearing of the case because one of the defendants had not been summoned to court.
10. It appears that the courts allowed the other three applicants to join Mr S. Gusovschi's case as co-plaintiffs.
11. On 28 January 2002 the Tighina Regional Court struck the case out of its list because of the failure by the applicants to appear at several of its hearings.
12. On 14 November 2002 the Court of Appeal quashed that judgment and ordered a re-hearing of the case, finding that the applicants had not been summoned to court and that the proceedings had been protracted.
13. On an unknown date the applicants asked for the transfer of the case to another court. On 6 February 2003 the Tighina Regional Court forwarded the request to the Supreme Court of Justice, which rejected it on 5 March 2003.
14. On 17 March 2004 the Tighina Court of Appeal rejected their claims as unfounded. On 19 May 2004 the Supreme Court of Justice quashed that judgment and ordered a full re-hearing of the case. On 8 September 2004 the Supreme Court of Justice refused to re-examine its judgment of 19 March 2004.
15. On 27 October 2004 the applicants sought the removal of one of the judges of the Tighina Court of Appeal. On 9 November 2004 the Supreme Court of Justice rejected this complaint.
16. On 26 January 2005 the Tighina Court of Appeal rejected most of the applicants' complaints, finding that they had persistently refused to submit the necessary documents to the defendant in order to allow the re-connection to the natural gas system in accordance with the law. Moreover, no evidence had been adduced of any damage caused to the applicants. The court also found that the proceedings had lasted a considerable period of time before the courts and it therefore accepted the applicants' main claim and ordered the re-connection of their house to the natural gas system, subject to the submission of the relevant documents by the applicants.
17. On 30 March 2005 the Supreme Court of Justice upheld that judgment, which became final.
18. In numerous separate proceedings the applicants requested the opening of criminal investigations against a number of persons, most of them being their neighbours who had allegedly damaged the applicants' property and had attempted to drive them away from the village. Several complaints concerned the alleged failure of the local police, the prosecution and other authorities to react to their complaints about unlawful acts committed by the applicants' neighbours and their dog. On each occasion a prosecutor refused to open criminal proceedings, having verified the case file and given detailed reasons for the refusal.
19. A prosecutor's refusal to open a criminal investigation against the Prefect of Tighina County because of the disconnection of the applicants' house from the natural gas system was challenged in court. On 27 January 2004 the Buiucani District Court dismissed the complaint as unfounded. On 25 February 2004 the Court of Appeal upheld that decision.
20. The relevant provisions of the new Code of Civil Procedure, in force after 12 June 2003, read as follows:
“Article 4: Aims of civil procedure
The aims of civil procedure include the just examination, within a reasonable time, of cases...”
“Article 192: Time-limits for examination of civil cases
(1) Civil cases shall be decided by the first-instance court within a reasonable time. The criteria for determining the reasonable time are: the complexity of the case, the conduct of the parties, and the conduct of the courts. The court shall ensure observance of the reasonable time requirement in dealing with a case. In examining a specific case on appeal, higher courts shall verify observance with the reasonable time requirement.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22062
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: XENODOCHIAKI S.A. v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens
TEXT: The applicant company is incorporated under Greek law, has its head office in Athens and is currently under liquidation. It is represented before the Court by Mrs S. Spiliotopoulou-Koukouli, a lawyer practising in Athens.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1957 the Subsidiary Insurance Fund for Commercial-Shop Employees (Ταμείο Επικουρικής Ασφαλίσεως Υπαλλήλων Εμπορικών Καταστημάτων – hereinafter TEAYEK), a public body under the supervision of the Ministry of Labour, leased to the applicant company a hotel in Athens.
On 7 August 1981 TEAYEK granted the applicant company the right to convert the hotel into a courthouse and sublease it to the State for a period of five years. On the same date the applicant company entered into an agreement with the State and TEAYEK for the sublease of the building to the State. The rent would be paid by the Court-Buildings Fund (Ταμείο Χρηματοδοτήσεως Δικαστικών Κτιρίων – hereinafter TAXDIK), a public body, and the Ministry of Justice to TEAYEK and the applicant company.
On 15 January 1987 the sublease came up for re-negotiation. The applicant company requested a 20% increase, which TEAYEK accepted. The State refused. However, it did not evacuate the premises, which it continues using until today to house the Court of Appeal of Athens. TEAYEK, considering that the sublease had been terminated, asked the State and TAXDIK to pay it the entire rent. The State and TAXDIK, not knowing to whom to pay the part of the rent that used to be collected by the applicant company, started deposing that part with the Fund for Trusts and Loans (Ταμείο Παρακαταθηκών και Δανείων).
On 14 May 1987 the applicant company sued the State and TAXDIK for its part of the rent from 1 January 1987 to 30 June 1987 before the single-member first instance civil court of Athens (first action). On 30 September 1987 the court accepted the applicant company’s action (decision no. 11919/1987 concerning the first action). On 14 December 1987 the defendants appealed. On 19 January 1988 TEAYEK intervened in the proceedings in favour of the appellants.
On 18 March 1988 Parliament enacted a law (no. 1759/1988) entitled “social cover of uninsured groups, improvement of the social security and other provisions”. Section 34 § 3 of that law provides for the termination of leases of real property owned by social security funds under the supervision of the Ministry of Health and Social Welfare and Security, if the property is used as commercial premises by a person other than the leaseholder. In that case the lease continues between the owner and the subtenant. It was indicated in the explanatory report that the subleases in question were continuously renewed and were “unfavourable and unprofitable” to the funds because it was the leaseholder who made capital of the bigger part of the rent. Thus, the purpose of the provision was to “stop the exploitation of the social security funds and their pensioners”.
On 22 March 1988 the Court of Appeal of Athens rejected both the appeal of the State and TAXDIK and the intervention of TEAYEK (decision no. 4257/1988 concerning the first action).
TAXDIK and the State appealed in cassation. TEAYEK did not. On 29 June 1988 the Court of Cassation rejected the appeal. It held that the sublease was tacitly renewed and that the State, which continued to use the building, had to pay the applicant company its part of the rent. The Court of Cassation made no reference to Law no. 1759/1988 (decision no. 1255/1988 concerning the first action). Subsequently, the applicant company was paid the amounts fixed.
On 12 August 1988 the applicant company sued the State and TAXDIK for its part of the rent from 18 March 1988 to 30 September 1988 before the single-member first instance civil court of Athens (second action). The defendants relied on section 34 § 3 of Law no. 1759/1988. The applicant company argued that the provision in question violated the constitutional provisions on equality and separation of powers. TEAYEK intervened in the proceedings claiming the rent for itself. On 14 March 1989 the court allowed TEAYEK’s intervention and dismissed the action (decision no. 1399/1989 concerning the second action). The applicant company appealed.
On 20 May 1989 the applicant company sued the State and TAXDIK for its part of the rent from 1 October 1988 to 30 September 1989 (third action). On 20 December 1989 the applicant company sued the State and TAXDIK for its part of the rent between 1 October 1989 and 31 December 1989 (fourth action). TAYEK intervened in both actions claiming the rent for itself.
On 5 February 1990 the Athens Court of Appeal upheld the applicant company’s appeal against the first instance court’s decision of 14 March 1989 on the ground that section 34 § 3 of Law no. 1759/1988 did not apply to the case under consideration, which did not concern the lease of “commercial” premises (decision no. 1206/1990 concerning the second action). The State, TAXDIK and TEAYEK appealed in cassation. The applicant company also appealed arguing that the courts should declare section 34 § 3 of Law no. 1759/1988 unconstitutional because it violated the right to equal treatment, the right to property and the principle of separation of powers.
On 17 May 1990 the first instance court allowed the applicant company’s actions of 20 May 1989 and 20 December 1989 on the ground that section 34 § 3 of Law no. 1759/1988 did not apply (decision no. 3395/1990 concerning the third action and decision no. 3398/1990 concerning the fourth action). The State, TAXDIK and TEAYEK appealed. The applicant company also appealed asking the court to declare section 34 § 3 of Law no. 1759/1988 unconstitutional.
On 20 June 1990 the applicant company sued the State and TAXDIK for its part of the rent from 1 January 1990 to 30 June 1990 (fifth action). TEAYEK intervened. On 30 January 1991 the first instance court allowed the action on the ground that section 34 § 3 of Law no. 1759/1988 did not apply (decision no. 3543/1991 concerning the fifth action). The State, TAXDIK and TEAYEK appealed. So did the applicant company relying on the alleged unconstitutionality of the above provision.
On 30 October 1990 the applicant company sued the State and TAXDIK for its part of the rent from 1 July 1990 and 31 December 1990 (sixth action) and on 16 July 1991 it sued them for its part of the rent from 1 January 1991 and 31 June 1991 (seventh action). TEAYEK intervened.
On 31 July 1991 the first instance court allowed the action of 30 October 1990 on the ground that section 34 § 3 of Law no. 1759/1988 did not apply (decision no. 6556/91 concerning the sixth action). The State, TAXDIK and TEAYEK appealed. The appeal is still pending.
On 15 November 1991 the Athens Court of Appeal dismissed the appeals of the State, TAXDIK and TEAYEK against the first instance decisions of 17 May 1990, finding section 34 § 3 of Law no. 1759/1988 inapplicable (decision no. 9995/1991 concerning the third action and decision no. 9994/1991 concerning the fourth action).
On 8 January 1992 the applicant company sued the State and TAXDIK for its part of the rent from 1 July 1991 to 30 December 1991 (eighth action). The proceedings are still pending.
On 10 February 1992 the Athens Court of Appeal dismissed the appeal of the State, TAXDIK and TEAYEK against the first instance decision of 30 January 1991 (decision no. 1308/92 concerning the fifth action). The State, TAXDIK and TAYEK did not appeal in cassation.
On 30 June 1992 the first instance court allowed the action of 16 July 1991 on the ground that section 34 § 3 of Law no. 1759/1988 was inapplicable (decision no. 6146/1992 concerning the seventh action). The State, TAXDIK and TEAYEK appealed. The appeal is still pending.
On 28 July 1992 the applicant company sued for its part of the rent from 1 January 1992 to 30 June 1993 (ninth action). The proceedings are still pending.
On 17 March 1993 the applicant company sued for its part of the rent from 1 July 1992 to 31 December 1992 (tenth action). The proceedings are still pending.
On 23 March 1993 the applicant company sued for its part of the rent from 1 January 1993 to 30 June 1993 (eleventh action). The proceedings are still pending.
On 21 July 1993 the Court of Cassation allowed the State’s, TAXDIK’s and TEAYEK’s appeal in cassation against the Court of Appeal’s decision of 5 February 1990 considering that, according to section 34 § 3 of Law no. 1759/1988, TEAYEK was entitled to the whole rent (decision no. 770/1993 concerning the second action). However, on the same date it dismissed their appeals in cassation against the Court of Appeal’s decisions of 15 November 1991; it considered that the Court of Appeal had correctly decided the third and fourth actions because at the time it was bound by the res judicata effect of its own decision of 5 February 1990 (decision no. 768/1993 concerning the third action and decision no. 769/1993 concerning the fourth action). The applicant company notified these decisions to the State and TAXDIK on 14 February 1994. Under the Code of Civil Procedure, the time-limit for introducing remedies against these decisions is of fifteen days. However, according to a special law, the State and TAXDIK could challenge these decisions within a time-limit of thirty days.
On 10 March 1994 the State and TAXDIK asked the Court of Appeal to revise its two judgments of 15 November 1991 and then its judgment of 10 February 1992. On 28 December 1994 the Court of Appeal granted their first request (which concerned the two judgments of 15 November 1991), found section 34 § 3 of Law no. 1759/1988 applicable and not unconstitutional and reversed the first instance judgments (decision no. 6854/1994 concerning the third action and decision no. 6851/1994 concerning the fourth action).
On 14 July 1995 the Court of Appeal also revised its judgment of 10 February 1992 (decision no. 8229/1995 concerning the fifth action).
The applicant company appealed in cassation against decisions nos. 6851/1994 and 8229/1995. It claimed that the applications for revision were lodged out of time. It also invoked a violation of Articles 6 § 1 of the Convention and 1 of Protocol No. 1.
On 1 April 1998 the Court of Cassation dismissed the appeal in cassation as being ill-founded. In the first place, the court considered that the applications for revision were lodged within the time-limit of thirty days which applies to recourses filed by the State. Moreover, it considered that the applicant company had not sufficiently substantiated its complaints under Articles 6 § 1 of the Convention and 1 of Protocol No. 1 (decision no. 480/1998 concerning the fourth action and decision no. 479/1998 concerning the fifth action). The above decisions were finalised (καθαρογραφή) on 1 June 1998 and filed (αρχειοθέτηση) on 2 July 1998. The Court of Cassation does not serve its judgments. The applicant company became aware of them on 7 July 1998.


ITEMID: 001-94456
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PANZARI v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
TEXT: 8. The applicant was born in 1968 and lives in Chişinău.
9. The facts of the case, as submitted by the parties, may be summarised as follows.
10. The applicant worked as a carpet maker for Floare-Carpet SA, a company registered in Chişinău (“the employer”). On 29 November 1999 she was declared to be a person with second degree disabilities by a specialised medical commission, which recommended that the applicant should stop working as a carpet maker as her working conditions were damaging her health.
11. Having submitted the relevant certificate to her employer, on 30 December 1999 the applicant was dismissed from her job on the grounds that she was no longer able to work as a result of her invalidity. She disagreed with the reason for her dismissal, claiming that this was not a valid legal reason. She asked her employer to issue her with a record of employment (carnet de muncă) giving a different reason for her dismissal, a document which she would have to produce if she applied for another job. On 31 January 2000 the employer issued her with a record of employment, which she claims was in the old format, contrary to the law.
12. On 7 February 2000 the applicant initiated court proceedings against the employer, asking for a modification of the reason for her dismissal, the issuing of a new record of employment and the payment of her salary and compensation for the entire period during which she had not been issued with a new record of employment.
13. On 11 February 2000 the Botanica District Court left her action without examination. On 10 May 2000 the Chişinău Regional Court quashed that decision and ordered the examination of her action.
14. On 15 June 2000 the Botanica District Court found against the applicant. On 15 November 2000 the Chişinău Regional Court quashed that judgment and adopted a new one, partly admitting the applicant's claims and awarding her compensation. On 31 January 2001 the Court of Appeal quashed the judgments of the lower courts and ordered a full re-trial of the case.
15. On 31 March 2001 the Botanica District Court found for the applicant and awarded her compensation. On 9 September 2003 the Chişinău Court of Appeal partly quashed that judgment and adopted a new one, ordering the employer to issue the applicant with a new record of employment, and in addition to pay her compensation in the amount of 26,817 Moldovan lei (MDL) (1,755 euros (EUR) at the time).
16. On 7 November 2003 the employer lodged an appeal in cassation, asking the court to reject the applicant's claims. It also requested the court to accept its right to lodge the appeal despite having missed the 15-day time-limit established by law, because it had not participated at the court hearing of 9 September 2003 and had only been informed of the judgment by mail on 16 October 2003.
17. On 4 February 2004 the Supreme Court of Justice accepted the employer's appeal and quashed the lower courts' judgments, rejecting all of the applicant's claims. The court found that there was clear evidence of the applicant's refusal to take her record of employment on the day of her dismissal (30 December 1999), as well as of the fact that on 31 January 2000 she had taken her record of employment. The employer had therefore not been responsible for any delay in issuing her record of employment.
18. The relevant provisions of the new Code of Civil Procedure read:
(1) Court actions shall be examined by the first-instance court within a reasonable time. The criteria for determining the reasonable length of the proceedings include: the complexity of the case, the conduct of the parties to the proceedings and the conduct of the court. The observance of the reasonable time requirement in examining cases shall be ensured by the court. In examining a specific case, the observance of the reasonable time requirement shall be verified by the higher courts when examining the case in the relevant form of appeal.
(2) Court actions regarding ... work related claims ... shall be examined urgently and on a priority basis.”
An appeal in cassation may be lodged within 15 days from the date when the judgment was adopted or, in case of subsequent drafting of the text, from the date when the parties have been informed in writing about the signing of the drafted judgment. An appeal in cassation lodged within 2 months from the date of adoption of the judgment or of informing the parties about it shall be considered as lodged within the time-limit. ”
19. Article 305 of the old Code of Civil Procedure, in force before 12 June 2003, reads as follows:
“The time-limit for lodging an appeal in cassation is 15 days from the date of the judgment, if the law does not provide otherwise”.
VIOLATED_ARTICLES: 13
6