ITEMID: 001-61802
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF VALOVA, SLEZAK AND SLEZAK v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;No violation of Art. 6-1;Just satisfaction reserved
JUDGES: Nicolas Bratza
TEXT: 8. On 10 February 1992 the Topoľčany Land Office (Pozemkový úrad) delivered two decisions granting the applicants’ claims for restitution of real property under the Land Ownership Act. The defendants appealed.
9. On 16 December 1993 the Nitra branch office of the Bratislava Regional Court (Krajský súd Bratislava, pobočka v Nitre) quashed these decisions on the ground that at the moment of the expropriation the land in question had been formally owned by a private company established by the members of the applicants’ family. However, the Land Ownership Act provided exclusively for restitution of property taken away from individuals. The Regional Court therefore sent the case back to the administrative authority. Prior to deciding on the case the Regional Court held a hearing with reference to Section 250q of the Code of Civil Procedure.
10. In the meantime, on 13 November 1992, the applicants and another member of their family concluded an agreement with the Western Slovakia Forest Administration. Under the agreement the Western Slovakia Forest Administration undertook to restore, in accordance with the Land Ownership Act, different real property expropriated from the applicants’ family. On 26 November 1992 the Topoľčany Land Office approved the agreement pursuant to Section 9 of the Land Ownership Act. Its decision became final on 18 December 1992.
11. On 17 June 1994 the Topoľčany Land Office decided to reopen the proceedings leading to its decision of 26 November 1992 pursuant to Section 62 (1) (a) and (b) of the Administrative Proceedings Act of 1967. The decision referred to the above finding of the Nitra branch office of the Bratislava Regional Court of 16 December 1993 according to which the land taken away from the applicants’ relatives could not be restored under the Land Ownership Act as it had been formally owned by a legal person.
12. On 4 July 1997 the applicants appealed through the intermediary of their lawyer. They argued that no relevant new facts had been established and that the decision to reopen the proceedings was not justified by the public interest. The applicants concluded that there existed no legal entitlement for having the proceedings reopened.
13. On 22 May 1995 the Ministry of Agriculture upheld the Land Office’s decision of 17 June 1994. The decision stated that no reasons for quashing or modifying the Land Office’s decision had been found.
14. The applicants sought a judicial review of the decision of the Ministry of Agriculture. On 29 September 1995 the Supreme Court (Najvyšší súd) discontinued the proceedings for lack of jurisdiction to review administrative decisions of a procedural nature. Reference was made to Article 248 (2) (e) of the Code of Civil Procedure.
15. By a decision of 8 June 1995 the Topoľčany Land Office disapproved the agreement concluded on 13 November 1992 on the ground that the property in question had been taken away from a legal person and that under the Land Ownership Act only property originally owned by individuals could be restored.
16. The applicants appealed and argued that there existed no reason for reopening the proceedings and that the land had been taken away from the members of their family.
17. On 30 January 1998 the Nitra Regional Court upheld the Land Office’s decision of 8 June 1995. The judgment stated that the only point to be determined was a question of law, namely whether the plaintiffs were entitled, within the meaning of Section 4 of the Land Ownership Act, to acquire the property. The court noted that in the judgment of 16 December 1993 it had found that the property had been taken away from a private company of which the applicants’ predecessors had been members and which had been a legal person. The Regional Court concluded that the applicants lacked standing to claim restitution under the Land Ownership Act.
18. The Regional Court further noted that a decision on reopening of proceedings before an administrative authority could not be reviewed by a court. It decided on the case without a hearing with reference to Article 250f of the Code of Civil Procedure.
19. Section 4 of Act No. 229/91 on Adjustment of Ownership Rights to Land And Other Agricultural Property (“the Land Ownership Act”) provides for restitution of real property to individuals from whom it was transferred to State ownership between 25 February 1948 and 1 January 1990 by means specified in Section 6. Where such persons are no longer alive, their successors are entitled to restitution under conditions specified in paragraph 2 of Section 4.
20. Section 9 (1) provides that a person entitled to restitution must lodge his or her claim with the appropriate land office and, at the same time, must request restitution from the person or entity possessing the real property at issue. The latter is required to conclude, within sixty days, an agreement on transfer of the property with the claimant.
21. Under Section 9 (2), such agreements are subject to approval by the competent land office.
22. The proceedings before land offices are governed by Act No. 71/1967 on Administrative Proceedings.
23. Under Section 3 (1), (3) and (4), administrative authorities are required to proceed in accordance with the law and they are obliged to protect the interests of the State as well as the rights and interests of the citizens. Administrative authorities are further obliged to thoroughly examine each case and to use all means available with a view to resolving it in the correct manner. Facts on which their decisions are based must be reliably established.
24. Section 18 provides that administrative proceedings can be brought either upon a request of a party or upon the initiative of the administrative authority.
25. Pursuant to Section 32 (1) and (2), administrative authorities are obliged to establish the relevant facts in an exact and comprehensive manner; in doing so they are not bound by the submissions of the parties. The scope and manner in which the facts are to be established are to be determined by the administrative authority.
26. Section 46 provides, inter alia, that an administrative authority’s decision has to be in accordance with the law and it has to be based on facts which are reliably established.
27. Under Section 59 (1), an appellate administrative authority is required to review the administrative decision appealed against as a whole. If need be, the appellate authority shall take further action and eliminate shortcomings in the earlier procedure which it has established.
28. Section 62 (1) (a) provides that administrative proceedings in which a final decision has been taken may be reopened at a party’s request when there are new facts or evidence which could substantially affect the decision and which could not be considered in the original proceedings for reasons that cannot be imputed to the party concerned.
29. Under Section 62 (1) (b), administrative proceedings in which a final decision has been taken may also be reopened when the decision depended on the examination of a preliminary issue on which the competent authority decided differently.
30. Section 62 (2) entitles administrative authorities to reopen proceedings for reasons set out in paragraph 1 provided that the review of a final decision is in the general interest.
31. Pursuant to Section 62 (3), administrative proceedings cannot be reopened when the effect of the decision in question was to entitle a party, inter alia, to exercise civil rights, provided that the party concerned acquired the rights in question in good faith.
32. Under Section 63 (3) and (4), re-opening of administrative proceedings can be initiated by a party or ordered by an administrative authority not later than three years from the final effect of a decision. After expiry of that three years’ period proceedings can only be re-opened where a decision was obtained as a result of a criminal offence.
33. The lawfulness of certain decisions of administrative bodies can be reviewed by courts in accordance with Part 5 of the Code of Civil Procedure which governs proceedings before the administrative courts.
34. Under Article 248 (2) (e), administrative authorities’ decisions of, inter alia, a preliminary and procedural nature cannot be reviewed by courts.
35. Article 249 (2) provides that a plaintiff must indicate which part of the administrative decision he or she challenges, state the reasons for which he or she considers such a decision to be unlawful and specify the decision he or she seeks to obtain.
36. Section 250f entitled the courts to deliver a judgment without prior oral hearing in simple cases, in particular when there was no doubt as to whether the administrative authority established the facts correctly, and the point at issue was a question of law. In its finding No. PL.ÚS 14/98 of 22 June 1998 the Constitutional Court found that Section 250f of the Code of Civil Procedure was contrary to the Constitution and also to Article 6 § 1 of the Convention. As a result, this provision ceased to be effective.
37. Pursuant to Articles 250q and 250r, a court examining an administrative decision can either uphold or quash it. When the decision was not taken pursuant to Section 250f or when the administrative authority did not take a new decision satisfying the plaintiff’s claim, the court may take such evidence as it deems necessary. When the court quashes a decision, the case is sent back to the administrative authority. The latter is bound by the legal opinion expressed by the court.
38. As a general rule, administrative courts acting under Part 5 of the Code of Civil Procedure are not obliged to examine of their own initiative whether or not an administrative decision conforms to the law. They are rather required to review administrative decisions in the light of the plaintiff’s arguments. In its judgment No. 4 Sž 88/95 delivered on 27 July 1995 the Supreme Court held that the situation is different and that the administrative court is entitled to quash an administrative decision even in the absence of the plaintiff’s submissions to that effect when the decision in question is absolutely void, e.g. when the administrative authority proceeded with a person who lacked standing in the case.
39. In accordance with academic opinion, the effect of an administrative decision approving an agreement on restitution of property pursuant to Section 9 of the Land Ownership Act is to entitle the party concerned to exercise civil rights within the meaning of Section 62 (3) of the Administrative Proceedings Act. The proceedings leading to such a decision cannot, therefore, be reopened provided that the party concerned acquired the rights in question in good faith (see Základy pozemkového práva, Komentár a vykonávacie predpisy, JUDr. J. Gaisbacher, JUDr. P. Peceň and Others, Heuréka, 1998, p. 89).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91355
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF ASLAN AND DEMİR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicants were born in 1974 and 1960 respectively and live in Turkey. The facts common to these cases are that the applicants were arrested and placed in custody in different times and places. During their custody period, they were interrogated by the police, the public prosecutor and the investigating judge respectively, in the absence of a lawyer. These statements were subsequently used for their convictions by the trial court.
5. The details concerning the two applications are indicated in the table below.
VIOLATED_ARTICLES: 6


ITEMID: 001-68770
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: BAKO v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Alojz Bako, is a Slovakian national who was born in 1938 and lives in Dolné Vestenice. He was represented before the Court by Mr I. Gažík, a lawyer practising in Prievidza.
On 16 August 1993 the applicant sued his employer for salary before the Prievidza District Court. On 6 September 1994 the applicant filed another claim for compensation for unpaid salary relating to a different period of time.
The above claims were dealt with in two separate sets of proceedings until 30 January 2004 when the District Court decided to examine them in a single set of proceedings.
Before the actions were joined on 30 January 2004, the District Court had held two hearings in the case concerning the applicant's action of 1993.
As regards the action filed in 1994, the District Court delivered a judgment on 14 September 1996. The Banská Bystrica Regional Court quashed that judgment on 6 February 1996. Subsequently the District Court ordered two expert opinions and took further evidence. On 30 September 1999 the District Court delivered an interim judgment acknowledging that the applicant's claim for compensation for salary was justified as regards the period from 1 February to 31 August 1994.
The defendant appealed and the file was submitted to the Trenčín Regional Court on 27 September 1999. At the end of April 2000 the Regional Court returned the file to the District Court, at the latter's request, for a decision on the applicant's request for an interim measure.
On 19 May 2000 the District Court issued an interim measure ordering the employer to pay a part of the salary to the applicant.
The file was sent to the Regional Court on 11 August 2000. Between 13 March 2001 and 27 April 2001 the file was again with the District Court for a decision on expert's fees. On 25 September 2001 the Trenčín Regional Court quashed the interim judgment of 1999. The file was returned to the District Court on 29 November 2001.
On 20 June 2002 the District Court dismissed a part of the action and discontinued the proceedings in respect of the claim for compensation relating to two periods in 1993 and 1994.
The applicant appealed and the file was submitted to the Trenčín Regional Court on 2 October 2002. On 27 January 2003 the applicant challenged the Regional Court judges. The objection was submitted to the Supreme Court on 10 February 2003 and, after the objection had been dismissed, the file was returned to the Regional Court on 18 February 2003.
On 18 March 2003 the Trenčín Regional Court quashed the first instance decision to discontinue the proceedings in respect of the claim relating to a specific period in 1994 and the relevant compensation. It further upheld the first instance finding that the applicant had no right to compensation for the period subsequent to 3 August 1994.
On 23 September 2003 the Supreme Court dismissed the applicant's appeal on points of law relating to the lower courts' refusal to dismiss a part of his claims. The Supreme Court's decision was served on the applicant on 7 November 2003.
On 30 January 2004, after it had joined both sets of proceedings brought by the applicant, the Prievidza District Court dismissed the outstanding claims. The applicant appealed. On 28 September 2004 the Trenčín Regional Court quashed the judgment of 30 January 2004. The proceedings are pending.
On 6 March 2000 the applicant filed a complaint to the Constitutional Court. He complained, inter alia, that his right to a fair hearing within a reasonable time as well as his right to peaceful enjoyment of his possessions had been violated in the above proceedings before the Prievidza District Court and the Trenčín Regional Court.
On 10 December 2003 the Constitutional Court declared admissible the complaint concerning the alleged violation, by the Prievidza District Court, of the applicant's right to a hearing within a reasonable time. It rejected the remainder of the applicant's constitutional complaint.
As regards the complaint under Article 1 of Protocol No. 1 relating to the fact that the employer had not paid the salary due to the applicant, the Constitutional Court noted that the issue fell within the jurisdiction of the general courts. It further noted that the proceedings complained of were still pending before ordinary courts and held that it could not prejudge the outcome of those proceedings. In this respect the Constitutional Court also pointed out that it could not take the role of ordinary courts and that its task exclusively consisted of supervising whether the results of interpretation and implementation of law by ordinary courts were compatible with the Constitution or the relevant international treaty.
The Constitutional Court further found that the applicant's complaint about alleged arbitrariness of the Trenčín Regional Court's decision of 25 September 2001 had been filed after expiry of the statutory two months' time-limit.
Finally, in its admissibility decision the Constitutional Court held that, despite certain delays, the period during which the Trenčín Regional Court had dealt with the case was not excessively long.
In a finding delivered on 5 May 2004 the Constitutional Court concluded that in the above proceedings the Prievidza District Court had violated the applicant's right to a hearing within a reasonable time.
As regards the applicant's action of 1993, the Constitutional Court held that the proceedings were not complex and that the applicant by his conduct had caused no particular delays. It found that the District Court had failed to effectively proceed with the case for more than 8 years.
As to the proceedings concerning the claim of 1994, the Constitutional Court held that the case was not complex and that the applicant, despite the fact that he had availed himself of his procedural rights, was not responsible for their overall length. It found several periods of inactivity imputable to the District Court and held that the overall length of the proceedings was excessive given the nature of the case.
The Constitutional Court ordered the Prievidza District Court to proceed with the case without further delay. It also granted the applicant 120,000 Slovakian korunas (SKK) as just satisfaction.


ITEMID: 001-79161
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SMITH v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant is a British citizen born in 1934 and resident in Uxbridge. He is represented by Mr De Cruz, a solicitor practising in London.
In 1988 the applicant was the Managing Director and controlling shareholder of DEL or The Display Electronics Group. At the time DEL was involved in the development of four industrial units in Uxbridge. According to the applicant, an oral agreement was reached in a meeting on 11 January 1988 with Mr G. from Lloyds Bank to the effect that Lloyds would take over the funding of the development and that the applicant’s personal borrowings and DEL’s borrowings would be secured on the development and also by a mortgage on the applicant’s home. According to the applicant, it was also agreed that the short term bridging loan would be replaced by long term mortgage finance once two of the units had been let and two had been sold. Transfers and debits of money, flowing from the agreement, were made on DEL’s account. Lloyds Bank in later proceedings denied the existence of any such oral agreement.
Lloyds refused to provide long term financing and in 1996 gave notice that they were calling in their loans. This led to protracted litigation in which the applicant was unsuccessful in his claims against Lloyds which gained possession of his home and, in 2000, made him bankrupt.
In late 1998 the applicant traced Mr G, who allegedly disclosed the existence of contemporaneous notes of the meeting in 1988. These notes had never been disclosed in the various proceedings.
On 13 September and 29 October 2001, the applicant made application for access to the notes under the Data Protection Act 1998 (“the 1998 Act”), claiming that he was a data subject and that personal data concerning him was either processed or part of a filing system within the meaning of that Act.
On 23 February 2005, the High Court refused to order disclosure of the notes. Mr Justice Laddie noted that it was not in dispute that Lloyds held no computerised records relating to the applicant and that any such documents that might be retained were in the form of unstructured bundles kept in boxes. There were, it was accepted, some documents which at least mentioned the applicant within the bundles relating to DEL. The applicant’s counsel had conceded that such files were not sufficiently structured to fall within the scope of "relevant filing systems" and the judge rejected arguments that sought to bring the notes within the scope of the Act by reference to the fact that at one time they might have been subject to word processing or could be rendered into a structured form by means of scanning and processing, relying inter alia on indications in domestic and European materials that only filing systems, and not unstructured files, were intended to be covered by data protection The judge also considered that the notes did not concern "personal data" about the applicant. He cited case-law indicating that not all information retrieved from a search against an individual’s name was personal data; that mere mention of an individual’s name in a document held by a data controller did not mean that the document contained personal data; and that in determining whether information was capable of constituting personal data depended on its relevance or proximity to the data subject and that in answering that question it was relevant to consider whether the information was biographical in a significant sense, whether it had the putative data subject as its focus and finally whether the information affected the privacy of the putative data subject. Applying those principles, it was clear that the documents held by Lloyds and the information contained therein were not personal to the applicant in the relevant sense. The files related to the loans to DEL and the applicant was only mentioned because he acted on behalf of the company. The documents were not biographical about the applicant to a significant extent, dealing with the loan and its terms. Indeed what the applicant was trying to obtain were not documents about himself but documents dealing with the terms of an oral agreement under which Lloyds were to make GBP 500,000 available to DEL.
On 18 July 2005, the Court of Appeal rejected his application for permission to appeal. Lady Justice Arden also found that domestic and European legislation did not cover information held in unstructured files as opposed to a processing or filing system. She also rejected arguments that the data were personal to the applicant, noting that if the documents were covered it would mean that whenever an individual was involved in a transaction all the information about the transaction became his personal data. She further referred to judicially-expressed doubts that the Act was an appropriate means of seeking to compel the disclosure of documents which could not be obtained in legal proceedings for the purpose of obtaining documents to use in legal proceedings.


ITEMID: 001-71551
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF GUISO-GALLISAY v. ITALY
IMPORTANCE: 4
CONCLUSION: Preliminary objection rejected (out of time);Violation of P1-1;Just satisfaction reserved
JUDGES: David Thór Björgvinsson;Mark Villiger
TEXT: 8. The applicants were born in 1959, 1948 and 1952 respectively. They live in Milan and Rome respectively.
9. The applicants inherited plots of building land, located at Nuoro and entered in the land register as folio 43, parcels 4, 11, 13, 31 and 32, and folio 41, parcels 3, 217 and 219 respectively. Each of the applicants has a holding of 29/360.
10. By a decree of the “Bank for the South” (Cassa per il Mezzogiorno) of 9 April 1976 and two decrees by the President of the Sardinia Regional Council of 7 and 17 January 1977, a project to build low-rent housing and leisure structures on the applicants' land was approved.
11. By three decrees, adopted on 1 December 1976 and 20 May and 15 June 1977 respectively, the President of the Sardinia Regional Council authorised possession under the expedited procedure of part of the applicants' land, namely 77,782 square metres, for a maximum period of five years, with a view to its expropriation, in order to begin construction of the low-rent housing and leisure structures.
12. On 20 January, 28 June and 22 July 1977 the authorities took physical possession of the applicants' land.
13. By a writ served on 11 November 1983, the applicants brought an action for damages before the Nuoro Court against the Nuoro Municipality.
14. They alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation. They claimed a sum corresponding to the market value of the land and a sum for loss of enjoyment of the land.
15. During the proceedings an expert report and an additional report were submitted to the court registry on 8 February 1990 and 30 April 1992 respectively. According to the expert, a first section of the land had been irreversibly altered in 1982, and a second section in 1983, through the public works performed. The total market value of the occupied land in 1982 and 1983 was 5,372,538,000 liras (ITL), or ITL 432,787,783 for each applicant. The expert assessed the compensation for possession of the land at ITL 1,611,761,400, or ITL 129,836,335 per applicant.
16. By a provisional judgment of 14 July 1997, the Nuoro Court declared that the possession of the land, initially authorised, had become illegal as of 1982 and 1983. It found that the land had been irreversibly transformed by the public works. As a result, in accordance with the constructive expropriation rule (occupazione acquisitiva), the applicants had been deprived of their property, by virtue of its irreversible alteration, on the date on which the possession had ceased to be legal. In the light of those considerations, the court ordered the municipality to pay, as an advance, a sum equal to 55% of the market value of the land, namely ITL 238,033,280 for each applicant, plus interest and adjustment for inflation, and compensation for occupation amounting to ITL 129,836,334 for each applicant.
17. In the same judgment, the court ordered that the proceedings be continued in order to recalculate the final sum to be awarded to the applicants under Law no. 662 of 1996, which had entered into force in the meantime.
18. On 27 March 1997 the municipality paid the applicants the amounts due in application of the provisional judgment of 14 July 1997. Tax, at a rate of 20 %, was deducted at source from these sums.
19. In a final judgment filed with the registry on 17 July 2003, the Nuoro court upheld its provisional judgment of 14 July 1997 and held that the amount of compensation calculated under Law no. 662 of 1996 corresponded to the amount already paid in application of the provisional judgment.
20. This final judgment became legal and binding on 17 October 2004.
21. Under Italian law, the expedited expropriation procedure enables the authorities to occupy land and build on it before the official expropriation. Once a scheme has been declared to be in the public interest and the plans adopted, the authorities may make an expedited possession order, for a limited period not exceeding five years, in respect of the land to be expropriated (section 20 of Law no. 865 of 1971). The order will lapse if physical possession of the land is not taken within three months after its issue. Before the end of the authorised period of occupation, a formal expropriation order must be made.
22. The authorised occupation of land provides the right to compensation for occupation. In judgment no. 470 of 1990, the Constitutional Court recognised an immediate right of access to a court for the purpose of claiming compensation for occupation as soon as physical possession of the land occurs, without having to wait for a compensation offer from the authorities.
23. During the 1970s a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order. The Italian courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken. The question arose whether the mere fact that works had been carried out meant that the owner had also lost title to the land.
24. There was a substantial divergence in the decisions of the Court of Cassation over the effects of carrying out building works in the public interest on land where possession had been taken unlawfully. Unlawful possession means possession that is unlawful from the start, in other words obtained without authority, or that is initially authorised but subsequently became unlawful, either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made.
25. Under one line of case-law, the owner of land that had been possessed by the authorities did not lose ownership after the completion of the works in the public interest. However, he could not request reinstatement of the land; his only remedy was to bring an action in damages for wrongful possession. No limitation period applied to such actions as the unlawful nature of the possession was continuing. The authorities could at any time issue a formal expropriation order. If they did so, the action in damages was transformed into a dispute over the compensation for expropriation, with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order (see, among other authorities, the judgments of the Court of Cassation nos. 2341 of 1982; 4741 of 1981; and 6452 and 6308 of 1980).
26. Under a second line, the landowner did not lose property in the land and could request its reinstatement if the authorities had acted other than in the public interest (see, for example, Court of Cassation judgments nos. 1578 of 1976 and 5679 of 1980).
27. Under a third line, an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly, that is to say on completion of the works in the public interest. He was entitled to claim damages (see Court of Cassation judgment no. 3243 of 1979).
28. In a judgment of 16 February 1983, the Court of Cassation, sitting as a full court, resolved the conflict between the lines of case-law and adopted the third solution. In so doing, it established the constructive-expropriation rule (accessione invertita or occupazione acquisitiva). Under the rule, the public authorities acquire title to the land from the outset before formal expropriation if, after taking possession of the land and irrespective of whether such possession is lawful, the works in the public interest are performed. If, initially, the land is possessed without authority, the transfer of property takes place when the works in the public interest are completed. If the taking of possession was authorised from the outset, property is transferred on the expiry of the authorised period of possession. In the same judgment, the Court of Cassation stated that, on a constructive expropriation, the owner is entitled to compensation in full as the acquisition of the land has taken place without title (sine titulo). However, compensation is not paid automatically: the owner must lodge a claim for damages. In addition, the right to compensation is subject to a five-year limitation period that applies to actions in tort; the starting-point is the date the land is irreversibly altered.
29. Initially, it was held that no limitation period applied, since possession of the land without title was a continuing unlawful act (see paragraph 23 above). In its judgment no. 1464 of 1983, the Court of Cassation stated that the right to compensation was subject to a five-year limitation period (see paragraph 26 above). Subsequently, the First Division of the Court of Cassation said that a ten-year limitation period should apply (judgment nos. 7952 of 1991 and 10979 of 1992). On 22 November 1992 the full court of the Court of Cassation decided the issue finally, holding that the limitation period is five years and starts to run from the date the land is irreversibly altered.
30. In this judgment, the Constitutional Court held that the constructive expropriation rule was compatible with the Constitution in so far as the rule was rooted in a legislative provision, namely section 2043 of the Civil Code governing claims in tort. Under this judgment, the fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under the Constitution, since the public interest in the preservation of works for the public good outweighed the individual's interest, and therefore the latter's interest in the right of property. The Constitutional Court held that the application of the five-year limitation period laid down by Article 2043 of the Civil Code for claims in tort to actions for compensation was compatible with the Constitution.
31. Recent developments in the case-law show that the mechanism whereby carrying out building works in the public interest operates to transfer property in the land to the authorities is subject to exceptions.
32. In its judgment no. 874 of 1996, the Consiglio di Stato stated that there was no constructive expropriation where resolutions of the authorities and an expedited possession order had been quashed by the administrative courts, as otherwise the judicial decision would be devoid of purpose.
33. In judgment no. 1907 of 1997, the Court of Cassation, sitting as a full court, said that the authorities did not acquire ownership of the land if their resolutions and the declaration that expropriation was in the public interest were deemed to have been null and void from the outset. In such cases, the owner retained title to the land and could claim restitutio in integrum. In the alternative, he could seek damages. The unlawful nature of the possession in such cases was continuing and no limitation period applied.
34. In judgment no. 6515 of 1997, the Court of Cassation, sitting as a full court, said that there was no transfer of property where the declaration that expropriation was in the public interest had been annulled by the administrative courts. In such cases, therefore, the constructive-expropriation rule did not apply. The owner, who retained ownership of the land, was entitled to claim restitutio in integrum. If he brought an action in damages, that entailed a waiver of his right to restitution. The five-year limitation period started to run from the date when the decision of the administrative court became final.
35. In judgment no. 148 of 1998, the First Division of the Court of Cassation followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the declaration that the building works were in the public interest was deemed to have been invalid from the outset.
36. In judgment no. 5902 of 2003, the Court of Cassation, sitting as a full court, reaffirmed that there was no transfer of property in the absence of a valid declaration that expropriation was in the public interest.
37. This case-law should be compared with Law no. 458 of 1988 (see paragraphs 38-39 below) and with the Code of Expropriation Laws, which entered into force on 30 June 2003 (see paragraphs 48-49 below).
38. Section 3 of this Law provides:
“Any person who owns land which is used for the construction of public buildings or social housing shall be entitled to compensation for damage sustained where the expropriation has been declared unlawful by a court decision which has become final, but such person may not claim restitution of his property. Further, such a person is entitled, in addition to compensation for damage, to sums payable in respect of monetary depreciation and to any other sums mentioned in Article 1224 § 2 of the Civil Code, such amounts being calculated from the date of the unlawful taking of possession.”
39. Interpreting section 3 of the 1988 Law, the Constitutional Court stated in a judgment of 12 July 1990 (no. 384):
“In the impugned provision, the legislature has given preference, as between the owner's interest in obtaining restitution of his unlawfully-expropriated land, and the public interest - in this case the allocation of such land for building public, low cost or subsidised housing - to this latter interest.”
40. Under the Court of Cassation's 1983 case-law on constructive expropriations, compensation in full, in the form of damages for the deprivation of the land, was due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession.
41. The Finance Law of 1992 (Article 5 bis of Legislative Decree no. 333 of 11 July 1992) superseded that case-law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations. In judgment no. 369 of 1996, the Constitutional Court declared that provision unconstitutional.
42. Under Finance Law no. 662 of 1996, which amended the provision that had been declared unconstitutional, compensation in full cannot be awarded for dispossessions effected before 30 September 1996. In such cases, the compensation is equivalent to the amount of compensation as would have been payable on a formal expropriation in the most favourable scenario for the owner, plus 10 %.
43. In judgment no. 148 of 30 April 1999, the Constitutional Court held that such compensation was compatible with the Constitution. However, in the same decision, it held that compensation in full, up to the market value of the land, could be claimed where the dispossession and deprivation of the land had not been in the public interest.
44. In judgments nos. 5902 and 6853 of 2003, the Court of Cassation, sitting as a full court, again addressed the question of the constructive expropriation rule, with reference to the above two judgments of the European Court of Human Rights.
45. In view of the finding of a violation of Article 1 of Protocol No. 1 in the above cases, the Court of Cassation affirmed that the constructive expropriation rule played an important role in the context of the Italian legal system and that it was compatible with the Convention.
46. More specifically, the Court of Cassation – after analysing the history of the constructive expropriation rule – held that in view of the uniformity of the case-law in this area, the constructive expropriation rule should be regarded as entirely “foreseeable” as of 1983. For this reason, constructive expropriation must be considered as complying with the lawfulness requirement. The Court of Cassation stated that possession of land having taken place without a declaration that it was in the public interest was not capable of transferring title to the State. As to compensation, it stated that, even if such compensation was lower than the damage sustained by the claimant, and, in particular, lower than the value of the land, the compensation due in the event of constructive expropriation was sufficient to guarantee a “fair balance” between the demands of the general interest of society and the requirements of the protection of the individual's fundamental rights.
47. On an appeal seeking enforcement of a final judicial decision setting aside the declaration of public interest with regard to expropriation proceedings, and in view of the claimant's request to obtain restitution of land that had in the meantime been occupied and altered, the Consiglio di Stato, in judgment no. 2/2005 of 29 April 2005, delivered in plenary session, ruled on whether the irreversible alteration of the said land following the construction of “public” works could constitute a legal reason preventing restitution of the land. The Consiglio di Stato answered this question in the negative. In so doing, it:
(a) acknowledged that the case-law rule on constructive expropriation was lacking in respect of the need for legal certainty, with regard, inter alia, to the issue of identifying the date on which the public works must be considered “completed” and therefore on what date title had been transferred to the State;
(b) welcomed the Court's case-law, particularly the judgment in Belvedere Alberghiera Srl v. Italy, by affirming that, faced with a request for restitution of property that had been unlawfully occupied and altered, the work performed by the public authorities cannot, as such, constitute an absolute obstacle to restitution;
(c) interpreted Article 43 of the Code of Expropriation Laws (see paragraph 49 below) to mean that failure to return a plot of land could only be accepted in exceptional cases, namely where the authorities invoked a particularly strong public interest in the preservation of the construction in question;
(d) affirmed, in this context, that constructive expropriation could not be regarded as an alternative (“una mera alternative”) to duly conducted expropriation proceedings.
48. On 30 June 2003 Presidential Decree no. 327 of 8 June 2001, amended by Legislative Decree no. 302 of 27 December 2002, and which governs expropriation proceedings, entered into force. It codifies the existing provisions and case-law in this area. In particular, it codifies the constructive expropriation rule. From its entry into force, the Code, which does not apply to cases of occupation which occurred prior to 1996 and is not therefore applicable to the instant case, superseded all previous legislation and case-law in the field of expropriation.
49. Article 43 of the Code provides that, in the absence of an expropriation order, or in the absence of a declaration stating that the expropriation is in the public interest, land that has been altered following the construction of public works passes into the ownership of the authorities which altered it; damages are paid in consideration. The authorities may acquire a property even where the town planning documents or the declaration that the expropriation is in the public interest have been set aside. The owner may apply to the court for restitution of the land. The authorities in question may object. Where the court decides not to order restitution of the land, the owner is entitled to compensation.
50. In their observations on the merits, the Government raised an objection, composed of two limbs, that the application was out of time.
51. As to the first limb, the Government argued that the application was out of time in so far as it was lodged more than six months after 15 September 1998, namely the date on which the Nuoro Court's provisional judgment of 14 July 1997 became final.
52. The Government alleged that, through that judgment, the Nuoro Court had decided on the issues concerning the transfer of ownership and the amount of compensation, calculated on the basis of the market value of the land.
53. In consequence, that judgment was the “final domestic decision” from which the six-month deadline laid down in Article 35 of the Convention began to run.
54. With regard to the second limb, the Government argued that the application had been introduced out of time in that the applicants complained that the amount of compensation had been calculated within the meaning of Law no. 662 of 1996. According to the Government, the six-month time-limit laid down by Article 35 of the Convention had begun to run either on 1 January 1997, the date on which that Law entered into force, or on the date on which the Constitutional Court's judgment no. 148 of 26 April 1999, by which the highest court had upheld the lawfulness of the provision in question, had been filed with the registry. In support of its allegations, the Government referred to the case of Miconi v. Italy (Miconi v. Italy, (dec.), no. 66432/01, 6 May 2004).
55. The applicants opposed the Government's objection. With regard to the second limb, they noted in particular that the Court had already rejected similar objections in several decisions on admissibility (they cited, among other authorities, Donati v. Italy, no. 63242/00, (dec.), 13 May 2004; Santinelli and Others v. Italy, no. 65141/01, (dec.), 23 September 2004; and Emanuele Calandra v. Italy, no. 71310/01, (dec.), 9 December 2004).
56. As to the first limb of the objection, the Court notes that it has already been rejected in its decision of 2 September 2004 on the admissibility and that the Government were basing their objection on arguments that were not such as to call into question its decision on admissibility. In consequence, this limb cannot be accepted.
57. With regard to the second limb of the objection, the Court would recall that, according to Rule 55 of the Rules of Court, “any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application...”. The evidence before the Court shows that that condition has not been satisfied in the instant case. The Government are consequently estopped from raising this objection. In the light of these considerations, the Court considers that the second limb of the objection must be dismissed.
58. The applicants alleged that they had been deprived of their land as a result of its occupation in the absence of an expropriation order and compensation. In their opinion, this situation had infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
59. Referring to the judgments in Carbonara and Ventura v. Italy (no. 24638/94, ECHR 2000-VI) and Belvedere Alberghiera s.r.l. v. Italy (no. 31524/96, ECHR-VI), the applicants noted that the application of the constructive-expropriation rule to their case did not comply with the principle of the rule of law.
60. In this regard, the applicants pointed out that the land in question had been occupied and altered without the adoption of an expropriation order. It was only because they had brought proceedings for damages before the domestic courts that they had been able to obtain a judicial decision declaring the occupation unlawful, a decision which had simultaneously had the effect of declaring them retrospectively deprived of their property.
61. With regard to compensation, for which the onus was also on the landowner to submit a claim, the applicants argued that it had not been capable of making good the unlawful act, as the amount awarded was far lower than the damage sustained.
62. The Government observed that the applicants had been deprived of their property by virtue of constructive expropriation, which implied that the expropriation procedure was based on a declaration stating that expropriation was in the public interest but had not been implemented as provided for by law, in that the possession of the land had taken place without the appropriate order and no expropriation order had been adopted.
63. In the absence of such an expropriation order, the applicants had in any event been deprived of their property through the construction of the works in the public interest and the irreversible alteration of the land entailed by it. According to the Government, this deprivation of property was merely the consequence of the constructive-expropriation rule as applied by the Nuoro Court.
64. The Government alleged that this situation was in compliance with Article 1 of Protocol No. 1.
65. Firstly, the public interest was involved, something that was not disputed by the applicants.
66. Second, the deprivation of property that resulted from constructive expropriation was “provided for by law”.
67. In this connection, the Government pointed out that, in Zubani v. Italy (judgment of 7 August 1996, Reports 1996-IV) the Court examined a case of constructive expropriation that came within the scope of law no. 458 of 1988 from the point of view of a fair balance, and held, with regard to the law as such, that “the legislature might reasonably choose to give preference to the interests of the community in cases of unlawful expropriation or occupation of land. Full compensation for the damage sustained by the proprietors concerned constitutes sufficient reparation” (Zubani, cited above, § 49).
68. The Government noted that the Court's case-law had subsequently evolved, in that, in the next two cases concerning constructive expropriation, it had found that the mechanism of constructive expropriation was incompatible with the requirement of lawfulness (they referred to Carbonara and Ventura, cited above, and Belvedere Alberghiera srl, cited above).
69. According to the Government, the constructive-expropriation rule should be considered as “provided for by law”, even if it had been developed through case-law in a “civil-law” rather than a “common-law” country.
70. In this regard, they noted that, in the two judgments cited above, the Court did not consider it necessary to decide in the abstract whether the role in the continental-law system of a rule, such as the constructive-expropriation rule, established by the courts is comparable to that of statutory provisions (Carbonara and Ventura, cited above, § 64). The Court had observed that the Italian case-law had evolved and that a case-law rule did not bind the courts as regards its application (Carbonara and Ventura, cited above, § 69).
71. The Government alleged that determining the role of case-law in Italy was of great importance in this type of case. According to the Government, as the national case-law had created the constructive-expropriation rule, this rule should be considered as forming part of the positive law starting from the Court of Cassation's judgment no. 1464 of 1983. Subsequent case-law had confirmed this rule and clarified certain aspects of its application. In addition, the rule had been recognised by Law no. 458 of 27 October 1988 and by Finance Act no. 662 of 1996.
72. In conclusion, the Government submitted that, as of 1983, the rules governing constructive expropriation were perfectly clear and accessible to all owners of land.
73. Turning to the quality of the law, the Government asked the Court to revert to its “Zubani case-law” and to consider that the mechanism of constructive expropriation, based on a court declaration finding unlawfulness, was compatible with Article 1 of Protocol No. 1.
74. In this respect, the Government noted that the finding of unlawfulness by a court was the determining factor in the transfer of illegally occupied land into public ownership.
75. The Government defined constructive expropriation as the result of a systematic interpretation of the existing rules, intended to ensure that the general interest prevailed over the individual interest where public works had been performed (alteration of the land) and were in the public interest.
76. The authorities were obliged to compensate individuals. According to the Government, however, this compensation could be lower than the damage sustained by the claimant, and, in particular, lower than the value of the land, given that constructive expropriation met a collective interest and the unlawful act committed by the authorities concerned only the form, namely failure to follow the rules governing administrative proceedings. In addition, the Government noted that the compensation as capped by Law no. 662 of 1996 was in any event higher than that which would have been payable had the expropriation been carried out in due form.
77. In the light of these considerations, the Government concluded that the fair balance had been struck.
78. The Court reiterates that, in determining whether there has been a deprivation of possessions, it is necessary not only to consider whether there has been a formal taking or expropriation of property but to look behind the appearances and investigate the realities of the situation complained of. Since the Convention is intended to safeguard rights that are “practical and effective”, it has to be ascertained whether the situation complained of amounted to a de facto confiscation (see Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, pp. 24-25, § 63).
79. The Court notes that, in applying the constructive expropriation rule, the Nuoro Court considered the applicants as having been deprived of their property from the moment that the occupation of the land was no longer legal. In the absence of a formal expropriation order, the finding of unlawfulness by the court is the element which enshrines the transfer of the occupied property into public ownership. In those circumstances, the Court concludes that the Nuoro Court's final judgment had the effect of depriving the applicants of their property within the meaning of the second sentence of Article 1 of Protocol No. 1 (see Carbonara and Ventura, cited above, § 61, and Brumărescu v. Romania [GC], no. 28342/95, § 77, ECHR 1999-VII).
80. In order to be compatible with Article 1 of Protocol No. 1, such interference must be “in the public interest”, “subject to the conditions provided for by law and by the general principles of international law” and must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Sporrong and Lönnroth, cited above, § 69). Furthermore, the issue of whether a fair balance has been struck “becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary” (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999II, and Beyeler v. Italy [GC], no. 33202/96, § 107, ECHR 2000-I).
81. Accordingly, the Court does not consider it appropriate to base its decision solely on the finding that the applicants did not receive full compensation (see Carbonara and Ventura, cited above, § 62).
82. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The rule of law, one of the fundamental principles of a democratic society, is inherent in all Articles of the Convention (see Iatridis, cited above, § 58). The principle of lawfulness presupposes that the provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see Hentrich v. France, judgment of 22 September 1994, Series A no. 296-A, pp. 19-20, § 42, and Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 47, § 110).
83. In the judgments Belvedere Alberghiera srl and Carbonara and Ventura, cited above, the Court did not consider it necessary to decide in the abstract whether the role in the continental-law system of a rule, such as the constructive-expropriation rule, established by the courts is comparable to that of statutory provisions, as what counted – in any event – was that the legal basis met the criteria of accessibility, precision and foreseeability set out above. The Court remains convinced that the existence as such of a legal basis is not sufficient to satisfy the principle of lawfulness and considers it useful to examine the issue of the quality of the law.
84. The Court takes note of the evolution of the case-law which has led to the development of the constructive-expropriation rule. It also notes that this rule has been transposed into legislation, such as Law no. 458 of 1988, Law no. 662 of 1996 and, most recently, the Code of Expropriation Laws. Nonetheless, the Court does not overlook the fact that the rule has been applied inconsistently in the case-law. Indeed, this was the view of the Consiglio di Stato (see paragraph 47 above), which, in its judgment no. 2 of 2005, adopted as a full court, recognised that the case-law's constructive-expropriation rule had never given rise to stable, complete and foreseeable regulations.
85. The Court also notes inconsistencies between the case-law and the above-mentioned legislation. By way of example, the Court notes that, whilst it is true that the case-law ruled out, from 1996-1997, the application of constructive expropriation where the declaration that expropriation was in the public interest had been set aside, it is also true that the Code of Expropriation Laws only recently provided that, in the absence of such a declaration, any land may enter into public ownership if a court decides not to order restitution of land that has been occupied and altered by the authorities.
86. In view of these factors, the Court does not rule out the continuing possibility of an unforeseeable or arbitrary result for the individuals concerned.
87. The Court further notes that the constructive expropriation mechanism generally enables the authorities to bypass the rules governing expropriation, with the risk of an unforeseeable or arbitrary result for the owners concerned, irrespective of whether the unlawful nature of the situation existed from the outset or subsequently emerges. In any event, constructive expropriation is intended to confirm a de facto situation arising from unlawful acts committed by the authorities and to deal with the consequences for the owner and the authorities in the latter's favour. Whether occurring by virtue of a case-law rule or a legislative text such as Article 43 of the Code of Expropriation Laws, constructive expropriation cannot therefore constitute an alterative to expropriation in due form (see, on this point too, the Consiglio di Stato's position, paragraph 47 above).
88. In this regard, the Court notes that constructive expropriation enables the authorities to occupy a plot of land and to alter it irreversibly, with the result that it is considered as having entered into public ownership, without the adoption of a formal act declaring that transfer of ownership. In the absence of an act formalising the expropriation, adopted at the latest when the owner has lost all control of his or her property, the element enabling the occupied property to be transferred into public ownership and to achieve legal certainty is the finding of unlawfulness by a court, which is equivalent to a declaration of transfer of title. It is for the landowner concerned – who continues to be the formal owner – to apply to the competent court for a decision finding, where appropriate, unlawfulness accompanied by the performance of works in the public interest, the necessary preconditions for the owner to be declared retroactively deprived of his or her property.
89. In the light of the above, the Court considers that the mechanism of constructive expropriation is not capable of ensuring a sufficient degree of legal certainty.
90. The Court further notes that constructive expropriation also enables the authorities to occupy and alter land without simultaneously paying compensation. Compensation must be claimed by the landowner concerned within a five-year limitation period, which begins to run from the date on which the court finds that the irreversible alteration of the land took place. This may lead to adverse effects for the persons concerned, and render futile any hope of compensation (see Carbonara and Ventura, cited above, § 71).
91. Finally, the court notes that the constructive-expropriation rule enables the authorities to derive a benefit from their unlawful conduct, and that the price to be paid is only 10% higher than in the case of expropriation in due form. In the Court's opinion, this situation is not such as to further the correct administration of expropriation proceedings and to prevent incidents of unlawfulness.
92. In any event, the Court is required to verify whether the manner in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention.
93. In the instant case, the Court notes that, in applying the constructive-expropriation rule, the Italian courts considered the applicants to be deprived of their possessions as of the date on which the occupation was no longer authorised, since the conditions of unlawful occupation and the public interest of the works in question were both met. However, in the absence of a formal expropriation order, the Court considers that this situation cannot be considered as “foreseeable”, since it was only through the final decision – the Nuoro Court's final judgment once it had become final and binding – that the constructive-expropriation rule could be considered to have actually been applied and that the land's entry into public ownership was endorsed. In consequence, the applicants did not have “legal certainty” concerning the deprivation of the land until 17 October 2004, the date on which the Nuoro Court's final judgment became final and binding.
94. The Court further notes that the situation in issue enabled the authorities to profit from an unlawful occupation of land. In other words, the authorities were able to take possession of the land in breach of the rules governing expropriation in due form, and, inter alia, without compensation being made available at the same time to the applicants.
95. As to compensation, the Court notes that the retrospective application of the Finance Act 1996 (no. 662) to the instant case had had the effect of depriving the applicants of full reparation for the loss sustained.
96. In the light of these considerations, the Court considers that the interference complained of was not compatible with the principle of lawfulness and that it therefore infringed the applicants' right to the peaceful enjoyment of their possessions.
97. It follows that there has been a breach of Article 1 of Protocol No. 1.
98. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
99. With regard to pecuniary damage for the loss of the land, the applicants claimed, firstly, the payment of a sum equivalent to 87/360 of its market value, adjusted for inflation and with interest, and compensation for the occupation. Secondly, they claimed a sum corresponding to the increase in value of the land following the performance of the public works. The asked the Court to commission an expert report in order to calculate the amount of the two forms of compensation in question.
100. In addition, the applicants claimed the sum of EUR 376,011.51 as reimbursement of the tax, deducted at source, payable on the sums awarded by the national court (see paragraph 18 above).
101. In respect of non-pecuniary damage, they claimed compensation of EUR 600,000.
102. Finally, they claimed the sums of EUR 251,513.31, as reimbursement of the costs incurred before the national courts, and EUR 48,190, plus value-added tax (VAT), as reimbursement of the costs incurred before the Court.
103. With regard to pecuniary damage, the Government argued that there was no necessity for a new expert report, given that the market value of the disputed land had already been assessed in the proceedings before the domestic courts. If the Court were to calculate the pecuniary damage on the basis of the market value of the land, the Government submitted that the applicants would be entitled to receive only a sum corresponding to the difference between that value and the amount of compensation calculated under the provisions of Law no. 662 of 1996.
104. In addition, the Government submitted that the applicants would not be entitled to any compensation relating to the increase in the land's market value following the performance of public works and no compensation as reimbursement for the tax, deducted at source, paid on the sums awarded by the domestic court.
105. As to the non-pecuniary damage, the Government left the matter to the Court's discretion, while emphasising that the amount claimed by the applicants was excessive and that they had quantified such compensation in a vague and imprecise manner.
106. As to the costs incurred in the proceedings before the domestic courts, the Government submitted that the applicants had already obtained reimbursement of these at national level and argued that, in any event, the decision on reimbursement of those costs was a matter for the domestic courts alone.
107. Finally, with regard to the costs of the proceedings in Strasbourg, Gouvernement left the matter to the Court's discretion, while emphasising that the amount claimed by the applicants was excessive.
108. The Court considers that the question of the application of Article 41 is not ready for decision. Accordingly, it reserves that question and, in determining the further procedure, will have regard to the possibility of an agreement between the Government and the applicants.


ITEMID: 001-94854
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TEBIETI MÜHAFIZE CEMIYYETI AND ISRAFILOV v. AZERBAIJAN
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The Association is a non-profit-making non-governmental organisation (NGO), now dissolved, which was active between 1995 and 2002. The application was lodged by its former Chairman, Mr Sabir Israfilov, who was born in 1948 and lives in Baku.
7. The Association was registered by the Ministry of Justice on 25 August 1995 and acquired the status of a legal entity.
8. Clause 1.1 of the Association’s Charter defined it as an independent, charitable public organisation with voluntary membership, conducting its activities within the framework of the laws of the Republic of Azerbaijan on public associations, other applicable laws and its own Charter.
9. According to clause 1.2 of the Charter, the main objects of the Association were:
“... in the circumstances of the present-day environmental crisis, to develop the environmental culture and awareness of the various strata of the country’s population, to organise a public movement for a clean environment in Azerbaijan, to give impetus to the process of effective resolution of environmental protection problems, and to strive permanently to promote the measures necessary to create a healthier environment.”
10. According to the Charter, the Association’s governing bodies consisted of the Congress (the general assembly of members), the Central Council (the management board elected by the general assembly for a fiveyear term), the Central Supervisory Commission (a body of internal control elected by the general assembly for a five-year term), and various local bodies. Clause 4.8 of the Charter provided that the Congress, as the general assembly of members, was the Association’s supreme governing body and would convene once every five years.
11. Since the date of its establishment and State registration, and until August 2002, the Association had not convened a general assembly of its members.
12. It appears that, on 9 July 1997, about two years after the Association’s State registration, the Ministry of Justice sent a letter to the Association, noting that the latter had committed certain breaches of the domestic law and the Association’s own Charter. The exact content of that letter is not clear from the materials available in the case file.
13. On 14 August 2002 the Ministry of Justice commenced an inspection of the Association’s activities.
14. On 10 September 2002 the Ministry issued a warning to the Association in accordance with section 31.2 of the Law on nongovernmental organisations (public associations and foundations) of 13 June 2000), applicable at the material time (“the NGO Act”). The Ministry stated that the Association’s activities did not comply with the requirements of its own Charter and the domestic law. It was noted that a general assembly of the Association’s members had not been convened within the five-year period specified in its own Charter. Moreover, in any event, this provision of the Charter was itself incompatible with the domestic law, as section 25.2 of the NGO Act required that the supreme governing body of a public association – the general assembly of members – was to be convened at least once every year. The Ministry requested that, within ten days, the Association take measures to remedy the above-mentioned breach and inform the Ministry of the measures taken.
15. In reply, Mr Israfilov informed the Ministry that, in fact, a general assembly of members had taken place on 26 August 2002. It appears that, among other things, the Association’s general assembly decided to establish a working group in order to bring the Association’s Charter into conformity with the current legislation.
16. Having examined the documents relating to the general assembly meeting of 26 August 2002, on 3 October 2002 the Ministry of Justice issued a new warning to the Association (which constituted a second warning issued in 2002). It noted that the general assembly of 26 August 2002 had been convened in violation of numerous provisions of the domestic law. The Ministry noted, inter alia, that not all members of the Association had been properly informed about the general assembly and thus had been unable to participate in it, and that the Association’s local branches had not been equally represented at the assembly. Generally, the current membership records had not been properly kept and it was impossible to determine the exact number and identity of members. Local branches of the Association had not held any regular local assemblies of members and, in fact, functioned as regional offices directly governed by the head office in an administrative and hierarchical manner, whereas in a genuine public association ordinary members should be able to directly participate in its management. The Ministry again demanded that, within ten days, information be submitted as to the steps taken to remedy these breaches.
17. It appears that the Association disagreed with the above findings in its correspondence with the Ministry and took no action in response to this second warning.
18. Finally, on 28 October 2002 the Ministry issued a third warning, stating that it had not received any information from the Association as to compliance with the prior two warnings. In addition to reiterating the remarks contained in the prior warnings, the Ministry noted that the Association also engaged in an activity prohibited by law. Specifically, the domestic law (namely, the NGO Act, the Law on environmental protection of 8 June 1999 and the Law on entrepreneurial activity of 15 December 1992) prohibited public associations from interfering with the activities of private businesses. In this connection, the Ministry noted:
“However, contrary to these legal requirements, the Association ... attempts to collect money from State organs and commercial organisations in the guise of membership fees, regularly conducts [unlawful] inspections at economic enterprises and draws up [environmental compliance] reports, and engages in other illegal acts interfering with the rights of entrepreneurs ...”
19. As it had done previously, the Ministry demanded that, within ten days, the Association submit information as to the steps taken to remedy the situation. The Association did not react.
20. In December 2002 the Ministry lodged an action with the Yasamal District Court, seeking an order for dissolution of the Association. The Association, represented by Mr Israfilov, lodged a counterclaim, contending that the Ministry’s warnings had been unlawful and unsubstantiated.
21. On 7 March 2003 the Yasamal District Court dismissed the Association’s counterclaim and granted the Ministry’s request, ordering the Association’s dissolution.
22. Specifically, in respect of the Ministry’s request for dissolution, the court heard oral submissions by the Association’s members and the officials of the Ministry of Justice’s Department of State Registration of Legal Entities, reviewed the content of the Ministry’s three warning letters issued in 2002 and examined the correspondence between the Association and the Ministry. The court also examined six internal reports by various officials of the Ministry of Justice concerning the results of the inspection of the activities of the Association’s various local branches. According to these reports, most of the inspected branches had not held regular local assemblies of members and had not maintained proper records of members and membership fees. One of these reports stated that, according to “information obtained” during the inspection, the Association’s branch in the Tovuz region carried out illegal environmental inspections and engaged in other illegal activities.
23. Based on the above materials, the court found that, despite the early warning issued on 9 July 1997 (the content of which was not specified in the judgment), the Association had continued to commit breaches of domestic law on an even more systematic basis, which had led to the issuance by the Ministry of Justice of the three warning letters in 2002. The court noted that the Association’s Charter had not been brought into compliance with the domestic law on public associations, which required that a general assembly of members be held no less than once a year. In any event, even the five-year period for convening a general assembly, as required by the Association’s Charter, had not been complied with. The court further found that the Ministry’s findings concerning numerous irregularities during the general assembly meeting of 26 August 2002, as well as breaches of law in the general functioning of the Association, constituted a basis on which to dissolve the Association for systematic failure to comply with the domestic law.
24. Furthermore, again based on the above-mentioned oral testimonies of the Ministry officials and their inspection reports, the court noted that the Association had frequently overstepped the limits of the scope of its activities as defined in its Charter and permitted by law, by interfering with the competence of the relevant State authorities. In particular, it was noted that the Association’s local branches had attempted to carry out unlawful environmental inspections on the premises of various State and commercial enterprises and collect membership fees from them, issued reports on these enterprises’ compliance with environmental standards, and engaged in other actions interfering with the activities of commercial entities. The court found that, by engaging in such actions, the Association had violated the rights of other persons and attempted to misappropriate powers of a State regulating authority.
25. The court further noted that, in accordance with the NGO Act, the issuance of three warnings by the Ministry of Justice constituted a basis for an association’s dissolution if the latter did not take any measures to remedy the shortcomings in its activities. The court therefore ordered that the Association be dissolved.
26. The Association appealed, claiming that the provisions of the NGO Act were vague and imprecise, giving the Ministry a wide discretion to interfere with public associations’ activities and to issue warnings even for minor irregularities in their activities. The Association also argued that the Yasamal District Court’s factual findings concerning its activities had been incorrect and unsupported by any evidence.
27. On 4 July 2003 the Court of Appeal dismissed the appeal and upheld the Yasamal District Court’s judgment.
28. By a final decision of 29 October 2003, the Supreme Court upheld the lower courts’ judgments.
29. The Association’s State registration certificate was revoked and the Association was dissolved.
30. Article 59 of the Civil Code provides:
“59.2. A legal entity may be dissolved: ...
59.2.3. By a court order, if the legal entity engages in activities without the required permit (licence) or in activities prohibited by law, or if it otherwise commits repeated or grave breaches of law, or if a public association or foundation systematically engages in activities that are contrary to the aims set out in its by-laws, as well as in other cases provided by law.
59.3. A request to dissolve the legal entity under the grounds specified in Article 59.2 of this Code may be lodged by the relevant State authority or local self-administration authority, to which the right to lodge such a request is granted by law. ...”
31. Section 1 of the NGO Act provides:
“1.1. This Law regulates the relations concerning the establishment and functioning of public associations and foundations.
1.2. The definition of ‘non-governmental organisation’ in this Law includes public associations and foundations.
1.3. This Law determines the rules for the establishment, activity, reorganisation and dissolution of non-governmental organisations, as well as their functioning, management, and relations with government bodies.
1.4. This Law does not apply to political parties, trade unions, religious organisations, local self-administration authorities and non-governmental organisations which are regulated by other laws.”
32. Under section 2, a public association is defined as an NGO established on the initiative of several individuals and/or legal entities associated on the basis of common interests in pursuing the objectives set out in the association’s by-laws, which does not engage in profit-making as a primary aim of its activity and which does not distribute any profit between its members.
33. Chapter IV (sections 22-24) regulates issues related to the activities and property of NGOs. In particular, under section 22.1, an NGO may engage in any type of activity which is not prohibited by the laws of the Republic of Azerbaijan and which is not contrary to the aims of the organisation as set out in its charter.
34. Chapter V (sections 25-27) contains rules on the management of NGOs. Section 25.1 provides that the internal structure of a public association, the powers of its governing bodies, their formation procedure and term of office and the rules on decision-making and representing the association shall be regulated by the public association’s charter, subject to the conditions set out in the NGO Act and other relevant legal provisions. In particular, the supreme governing body of a public association is the general assembly of members, to be convened not less than once a year, upon the initiative of the associations’s executive body, one of its founders or one third of its members (sections 25.2-25.3). The general assembly decides upon, inter alia, the following issues: (1) adoption of and amendments to the association’s charter; (2) use of the association’s property; (3) election of the association’s other governing bodies and early termination of their office; and (4) approval of the annual report, among other publications (section 25.5). The founders and members of the public association must be informed of the date and place of the general assembly at least two weeks in advance. Amendments to the association’s charter may be made only if the quorum of more than half of the association members is present. Decisions are adopted by a majority of votes of the participating members. Each member has one vote (section 25.6). It is required to keep written minutes of the general assembly, which shall be signed by the assembly’s president and secretary and, if necessary, distributed to all members (section 25.7).
35. Section 31 provides:
“31.1. A non-governmental organisation that breaches the requirements of this Law shall be liable in accordance with the laws of the Republic of Azerbaijan.
31.2. If a non-governmental organisation commits actions incompatible with the objectives of this Law, the relevant executive authority [the Ministry of Justice] may issue a written warning to the organisation and give an instruction to remedy such breaches.
31.3. A non-governmental organisation may judicially challenge such warning or instruction.
31.4. If a non-governmental organisation receives, within one year, more than two written warnings or instructions to remedy the breaches of law, such organisation may be dissolved pursuant to a court order.”
36. Section 4 of the Law on environmental protection of 8 June 1999 provides, inter alia, that the carrying out of environmental monitoring and audits is within the competence of the relevant State authorities. Sections 7 and 73 of the Law on environmental protection define the rights and obligations of NGOs in the field of environmental protection. The essence of the NGOs’ rights, within the meaning of these provisions, is the civic defence of environmental rights, encouraging public debate on environmental issues and alerting the relevant State regulatory authorities to any environmental hazard or breach of the applicable environmental standards. The range of NGOs’ rights in this field does not include a right to conduct formal environmental inspections or enforce relevant environmental norms or standards.
37. Likewise, section 7 of the Law on ecological safety of 8 June 1999 vests rights in NGOs, inter alia, to make proposals on ecological safety to the relevant State authorities and alert the latter to breaches of environmental laws. NGOs are not vested with a right to enforce environmental laws.
38. Section 5.2 of the Law on entrepreneurial activity of 15 December 1992 prohibits political parties and NGOs from interfering with entrepreneurial activities.
39. The following are extracts from Recommendation CM/Rec(2007)14 of the Committee of Ministers to member States on the legal status of nongovernmental organisations in Europe:
“...
44. The legal personality of NGOs can only be terminated pursuant to the voluntary act of their members – or in the case of non-membership-based NGOs, its governing body – or in the event of bankruptcy, prolonged inactivity or serious misconduct.
...
46. The persons responsible for the management of membership-based NGOs should be elected or designated by the highest governing body or by an organ to which it has delegated this task. The management of non-membership-based NGOs should be appointed in accordance with their statutes.
47. NGOs should ensure that their management and decision-making bodies are in accordance with their statutes but they are otherwise free to determine the arrangements for pursuing their objectives. In particular, NGOs should not need any authorisation from a public authority in order to change their internal structure or rules.
48. The appointment, election or replacement of officers, and ... the admission or exclusion of members should be a matter for the NGOs concerned. ...
...
67. The activities of NGOs should be presumed lawful in the absence of contrary evidence.
68. NGOs can be required to submit their books, records and activities to inspection by a supervising agency where there has been a failure to comply with reporting requirements or where there are reasonable grounds to suspect that serious breaches of the law have occurred or are imminent.
...
70. No external intervention in the running of NGOs should take place unless a serious breach of the legal requirements applicable to NGOs has been established or is reasonably believed to be imminent.
...
72. In most instances, the appropriate sanction against NGOs for breach of the legal requirements applicable to them (including those concerning the acquisition of legal personality) should merely be the requirement to rectify their affairs and/or the imposition of an administrative, civil or criminal penalty on them and/or any individuals directly responsible. Penalties should be based on the law in force and observe the principle of proportionality.
...
74. The termination of an NGO ... should only be ordered by a court where there is compelling evidence that the grounds specified in paragraph 44 ... above have been met. Such an order should be subject to prompt appeal.”
40. A comparative study of the relevant legislation of 25 out of 47 member States of the Council of Europe shows that an NGO can be membership-based or non-membership-based and can take a variety of legal forms applicable in the domestic legal order, such as an association, foundation, trust, charity or even company. A key factor in determining the level of scrutiny and control that an NGO will be subjected to is whether the body concerned is legally incorporated and enjoys legal personality. Normally, unincorporated associations enjoy a much wider scope of selfmanagement and are not interfered with unless they conduct activities which are illegal or prejudicial to public order. Legally incorporated NGOs, on the other hand, are often subject to more narrowly delimited rules and may be dissolved or face other sanctions in the event of non-compliance.
41. It appears that in a number of States an NGO can, in certain circumstances, be dissolved either, specifically, for failure to conduct its internal management in accordance with the requirements of domestic law or, more generally, for failure to comply with its own charter. Countries within this category include: (i) Austria, where an association can be dissolved by a decision of a competent public authority if, inter alia, it exceeds its field of activity or if it no longer fulfils its own statutory rules; (ii) the Czech Republic, where foundations, endowment funds and public benefit corporations can be dissolved by a court for failure to comply with their charter or the domestic law (however, associations cannot be dissolved for failure to conduct their internal management); (iii) Finland, where a court may on the basis of an action brought by the relevant public authority or an association member dissolve an association if it acts substantially against the law or substantially against the purpose defined for it in its rules; (iv) Hungary, where the courts may declare the dissolution of a civil society organisation if it has failed to operate for at least one year, or the number of its members is permanently below the number determined by law; (v) Italy, where the competent governmental authorities may dissolve foundations in the event that they are not conducted in a lawful manner and in conformity with their by-laws; (vi) Luxembourg, where associations may be dissolved for failure to comply with the objectives which they have assumed, or if they have gravely contravened their constitutive statute or the law; and foundations can be dissolved if they are no longer able to pursue the object for which they were created; (vii) Malta, where a voluntary organisation may be struck off the register of voluntary organisations and/or issued with a suspension order potentially permanently suspending all or part of its activities, if the organisation in question is not complying with the provisions of its statute or the relevant domestic law; (viii) the Netherlands, where a regional court can dissolve an association or foundation, inter alia, if its statutes do not fulfil the requirements of the law or if it acts substantially contrary to its own Articles; (ix) Poland, where the courts can, in situations where associations are found to be acting contrary to the law or infringing the provisions of their own charter, order their dissolution; (x) Romania, where the relevant law provides that an association’s failure to convene its general assembly or board of directors for more than one year results in its de jure dissolution; (xi) Russia, where an association may be dissolved if it repeatedly and seriously violates the requirements of the applicable domestic law; (xii) Slovakia, where courts can decide to dissolve non-profit organisations, foundations, non-investment funds and associations for contraventions of the applicable domestic law as regards their internal management; and (xiii) Turkey, where the Civil Code provides that associations can be dissolved for, inter alia, failure to compose the internal bodies required by law, hold their first general assembly meetings within the time-limits prescribed by law or to hold subsequent general assembly meetings regularly.
42. In a number of other member States an NGO may not be subject to involuntary dissolution for failure to conduct its internal management in accordance with the requirements of the domestic law or its charter (although the authorities may dissolve an NGO, inter alia, if it engages in illegal activities or if its goals and acts violate the public order). Countries within this category include Bulgaria, the United Kingdom (England and Wales), Estonia, France, Germany, Ireland, Latvia, Portugal, Slovenia, Spain, Sweden and Ukraine.
43. As for the range of alternative sanctions (apart from involuntary dissolution) that may be imposed on NGOs for various types of contraventions, such sanctions include: (i) fines (Austria, Malta, Russia, Slovakia, Slovenia, Turkey and Ukraine); (ii) suspension of activities (Finland, Hungary, Malta, Russia, Slovakia, Turkey and Ukraine); (iii) the invalidity of a decision taken in contravention of the organisation’s internal charter or applicable domestic law (Estonia, Hungary, Italy, Latvia and Poland); (iv) the dismissal of administrators (Italy and, in respect of foundations, Luxembourg); and (v) being struck off a special register and withdrawal of associated privileges such as tax benefits (Bulgaria, England and Wales (loss of charitable status), Ireland, Portugal and Spain).
VIOLATED_ARTICLES: 11


ITEMID: 001-105230
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SUBICKA v. POLAND (No. 2)
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1954. She lives in GdańskZaspa.
7. By a judgment of 22 February 2006 the Gdańsk Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision by which she had been refused a monthly social assistance benefit.
8. On 8 March 2006 the applicant was granted, by a decision of a registry official, the assistance of a legal-aid lawyer for the purposes of lodging a cassation appeal with the Supreme Administrative Court.
9. On 10 March 2006 the judgment of 22 February 2006, together with its written grounds, was served on the applicant. On 14 March 2006 the decision on the grant of legal aid was served on her.
10. On 12 April 2006 the registry of the court requested the Gdańsk Bar Association to assign a lawyer to her case.
11. On 20 April 2006 the Bar Association informed the court that Mr J.B. had been assigned to represent the applicant. On 25 April the Bar Association informed the applicant accordingly and requested her to grant him an authority to act.
12. By a letter of 5 May 2006 the lawyer informed the applicant that he had found no legal grounds on which he could draft a cassation appeal. On 8 May 2006 he informed the court thereof.
13. By a judgment of 11 February 2004 the Gdańsk Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision by which she had been refused a monthly social assistance benefit.
14. This judgment, together with its written grounds, was served on the applicant on 5 March 2004. She was informed that the thirtyday timelimit for lodging a cassation appeal started to run on the date on which the judgment together with its written grounds was served on the party. It was therefore to expire on 4 April 2004.
15. On 10 March 2004 the applicant was granted legal aid by a decision of a registry official. This decision was sent to the applicant shortly afterwards.
16. On 25 March 2004 the local Bar Association informed the court in writing that Ms B. K.–Z. had been assigned to represent the applicant. Shortly afterwards the applicant was served with a copy of this letter.
17. By a letter dated 30 March 2004 the lawyer informed the court that she saw no grounds on which to prepare a cassation appeal. She did not inform the applicant about her refusal.
18. The applicant contacted the lawyer by phone on 6 July 2005. She was informed about the lawyer’s refusal to prepare a cassation appeal.
19. On 7 July 2005 the applicant complained to the Gdańsk Bar Association that the lawyer had failed to inform her about her refusal to prepare a cassation appeal against the judgment. She argued that the lawyer should have made reasonable efforts to inform her, as her legalaid client, of her decision. She submitted that she had learnt about the refusal a long time after the expiry of the time-limit for the lodging of a cassation appeal and only because she herself had contacted the lawyer.
20. By a letter of 16 August 2005 the Gdańsk Bar Association informed the applicant that it had investigated her complaint. It stated that the lawyer had been assigned to represent the applicant on 17 March 2004. She had examined the case file and found no grounds on which to prepare a cassation appeal. She subsequently informed the court of her refusal. In these circumstances, there were no grounds for accepting that the lawyer’s conduct had been negligent.
21. By two judgments of 25 May 2005 the Gdańsk Regional Administrative Court dismissed the applicant’s appeal against the two second-instance administrative decisions by which she had been refused a monthly social assistance benefit. She requested to be granted legal aid.
22. By a decision of 4 July 2005 the registry of the court granted her request.
23. On 6 July 2005 the judgments, together with their written grounds, were served on the applicant. She was informed that the thirtyday timelimit for lodging cassation appeals started to run on the date on which the judgments together with their written grounds were served on the party.
24. On 25 July 2005 the registry of the court requested the Gdańsk Bar Association to assign a lawyer to the case.
25. By a letter of 28 July 2005 the Bar Association informed the court in writing that Mr K. M. had been assigned to represent the applicant for the purposes of the cassation proceedings. A copy of this letter was also sent to the applicant.
26. By a legal opinion of 10 August 2005 the lawyer informed the court that he had found no grounds on which to prepare a cassation appeal against the judgments of 25 May 2005. The same opinion was sent on the same date to the applicant and to the Regional Bar Association.
27. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 1221, 14 September 2010.
28. In particular, in its decision no. II FZ 651/07 of 18 January 2008 the Supreme Administrative Court held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination.
29. When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legally-aided party to submit the appeal together with a request for leave to appeal out of time made under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007).
30. In a number of its recent decisions the Supreme Administrative Court acknowledged the difficulties which legally-aided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. It analysed relevant case-law of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers. The court held that the time-limit for a legally-aided party started to run only on the day when a legal-aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case. The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal-aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legal-aid lawyer (I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1