ITEMID: 001-107001
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF RASSOHIN v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicant was born in 1937 and lives in Chişinău.
6. The applicant has lived in her house since 1950. Her house is situated in a courtyard with two other private houses. According to a document issued by the Chişinău General Directorate for Architecture and Urbanism (a subdivision of the Chişinău Municipality) on 8 December 1998, there is only one common entrance into the courtyard and a single access serving houses nos. 10 and 14 (the latter being the applicant’s house).
7. In 1992 one of the applicant’s neighbours (D.) built a fence around her own house which, according to the applicant, included a part of the area left for common use by the owners of the three houses in the courtyard. The fence blocked the applicant’s access to the only entry into the courtyard, and she was only able to reach her house through a gate left in the fence.
8. In 1998 D. replaced the fence with a bigger one and did not leave any opening for the applicant to go through. On 19 October 1998 the applicant’s son-in-law (S.) came to visit her and discovered the new fence. At the request of his mother-in-law he demolished part of the fence in order to create an unobstructed passage to the applicant’s house.
9. At D.’s request, criminal proceedings were initiated against S. On 2 February 1999 the Centru District Court acquitted him. The court noted statements made by several neighbours and an expert from the Chişinău Land Registry, as well as the certificate issued on 8 December 1998 (see paragraph 6 above), according to which the courtyard had been reserved for common use by the owners of all three houses and that there was only one access to the applicant’s house, now blocked by the newly built fence. The court found that D. had built the fence unlawfully and blocked the applicant’s access to her own house, and that the actions of S. to free the passage to the house had been dictated by strict necessity. No appeal was lodged and the judgment became final.
10. In reply to a complaint by the applicant, on 2 May 2000 the Chief Architect of Chişinău informed her that, following an on-site visit, he had established that the territory on which the applicant’s and D.’s houses were situated had been in common use and that, accordingly, the access to the applicant’s house was also in common use. This was confirmed by a map annexed to the letter. The Department added that no decisions had been adopted which could have provoked disputes between the applicant and D.
11. On 18 May 2000 the Chişinău municipal council decided to sell D. a plot of land around her house, which included the common access road. On 16 June 2000 the council and D. concluded a contract for the sale of land.
12. Following a complaint by the applicant, on 5 July 2001 the same authority amended its decision of 18 May 2000 by reducing the surface of the plot of land sold to D., in order to resolve the dispute between D. and the applicant and to secure access to the applicant’s house.
13. D. challenged the municipality’s decision of 5 July 2001 in court. On 15 April 2002 the Chişinău Regional Court annulled the decision of 5 July 2001 as unlawful. The court found that, according to a letter from the municipality’s finance department dated 11 September 2000, the access road to the applicant’s house had not been included in the plot of land sold to D.
14. In a separate court action, on 6 December 2001 the municipality initiated court proceedings, asking for modification of the contract of sale of land to D. It claimed that the plot of land had mistakenly included the common access road used to access the applicant’s house.
15. In January 2002 the applicant initiated court proceedings against D. and the municipality, asking for the annulment of all decisions taken in favour of D. since 1992, including the decision of 18 May 2000, and of all contracts between the two parties. She also noted that the fence built by D. had blocked all access to her house and had even left her without a water supply, which had previously been secured via a water pipe ending in the common courtyard, now situated on D.’s land. The applicant asked for an order to remove all obstacles to her use of the house and to determine the manner of common use of the access by all the owners of the houses in the courtyard.
The two court actions were joined.
16. On 19 November 2002 the Centru District Court rejected the requests of the applicant and the municipality. The court found that the applicant had sufficient space to use her house and that, since the water pipe ran through the land owned by D., the applicant could only ensure access to water with D.’s agreement. It decided to discontinue the applicant’s request to annul the decision of 18 May 2000, since its lawfulness had already been confirmed by the final judgment of the Chişinău Regional Court on 15 April 2002.
17. On 13 January 2003 the Chişinău Regional Court quashed the lower court’s judgment and ordered a full re-hearing of the case.
18. On 19 February 2004 the Centru District Court struck the applicant’s action out of its list due to her failure to appear in court when summoned. That decision was quashed by the Chişinău Court of Appeal on 8 April 2004 because there was no evidence in the file that the applicant had been summoned.
19. On 8 July 2004 the Centru District Court rejected the applicant’s and the municipality’s requests. It stated, inter alia, that the applicant had unobstructed access to her house, without giving any details. It also repeated the reasons it had given in its judgment of 19 November 2002 regarding the applicant’s access to water. The court refused to annul the contract for the sale of land concluded between D. and the municipality on 16 June 2000, given that it was based on the municipality’s decision of 18 May 2000, a decision previously confirmed as lawful.
20. On 7 October 2004 the Chişinău Regional Court upheld that judgment. It essentially repeated the lower court’s reasons regarding the lawfulness of the contract for the sale of land.
21. In her appeal on points of law the applicant referred, inter alia, to her inability to fully enjoy her property right over the house, the access to which was blocked by the fence built by D. She claimed that the contract of 16 June 2000 had been concluded in breach of the law. The applicant asked for the annulment of the contract and the demolition of the fence in order to secure unobstructed access to her house.
22. On 22 December 2004 the Supreme Court of Justice dismissed the applicant’s appeal, in her absence. The court acknowledged the confirmation by the Chief Architect of Chişinău of 2 May 2000, after he had visited the relevant courtyard, that the land and access road in question were in fact in common use. However, in the absence of any decision by the Chişinău Municipality expressly reserving that land for common use, the Chief Architect’s opinion could not serve as a ground for annulling the lower court’s judgments. Therefore the lower courts had correctly decided that the land sold to D. had not been land in common use.
23. The court also found that the applicant had been summoned to the hearing but had failed to appear without giving plausible reasons. The applicant claims that she was not summoned. The judgment of 22 December 2004 was final.
24. The relevant provisions of domestic law and the relevant domestic practice have been set out in Godorozea v. Moldova, no. 17023/05, §§ 2325, 6 October 2009).
25. In addition, Article 449 (h) of the Code of Civil Procedure reads as follows:
“A revision request shall be granted when:
...
(h) The European Court has found a violation of the fundamental rights and freedoms...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76098
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ÖLLINGER v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
JUDGES: Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens
TEXT: 7. The applicant was born in 1951 and lives in Vienna.
8. On 30 October 1998 the applicant, who is a member of parliament for the Green Party, notified the Salzburg Federal Police Authority (Bundespolizeidirektion) under section 2 of the Assembly Act (Versammlungsgesetz) that on All Saints’ Day, 1 November 1998, from 9 a.m. until 1 p.m., he would be holding a meeting at the Salzburg municipal cemetery in front of the war memorial. He noted that the meeting would coincide with the gathering of Comradeship IV (Kameradschaft IV), which he considered to be unlawful.
9. The purpose of the meeting was to be to commemorate the Salzburg Jews killed by the SS during the Second World War. The applicant expected about six participants, who would carry commemorative messages in their hands and attached to their clothes. The applicant stated that no other means of expression (such as chanting or banners) which might offend piety or undermine public order would be used.
10. On 31 October 1998 the Salzburg Federal Police Authority, relying on section 6 of the Assembly Act and on Article 11 of the Convention, prohibited the meeting on the ground that it would endanger public order and security.
11. The authority noted that F.E., also a member of parliament for the Green Party, had informed the Salzburg Federal Police Authority of the allegedly illegal assembly of Comradeship IV in memory of the SS soldiers killed in the Second World War which was to be held at the same time and place, but had refused to give an undertaking that the proposed meeting in memory of the murdered Salzburg Jews would not disrupt that gathering.
12. The Salzburg Federal Police Authority noted that Comradeship IV was a registered association. Like a number of other organisations, it traditionally held a commemoration ceremony at the Salzburg municipal cemetery on All Saints’ Day. Such commemorations qualified as popular ceremonies within the meaning of section 5 of the Assembly Act and thus did not require authorisation. The disruption of this and other commemoration ceremonies was likely to offend the religious feelings of members of the public visiting the cemetery and would indisputably be regarded as disrespectful towards the dead soldiers of both world wars and thus as an unbearable provocation. Accordingly, there was a risk of protests by visitors to the cemetery which could degenerate into open conflict between them and those participating in the assembly.
13. The Salzburg Federal Police Authority ordered that any remedies used against its decision should not have suspensive effect. Accordingly, the demonstration could not take place.
14. On 17 August 1999 the Salzburg Public Security Authority (Sicherheitsdirektion) dismissed an appeal by the applicant.
15. It noted that Comradeship IV was a registered association whose members were mainly former members of the SS. For more than forty years they had commemorated SS soldiers killed in the Second World War by gathering on All Saints’ Day and laying a wreath in front of the war memorial at the Salzburg municipal cemetery. In the past few years, a number of organisations had organised protest campaigns with the aim of disrupting the Comradeship IV commemoration ceremony. These protests had led to vehement discussions with members of Comradeship IV and other visitors to the cemetery and had required intervention by the police.
16. The Public Security Authority, referring to the submissions of F.E., found that the assembly planned by the applicant was also aimed at a confrontation with Comradeship IV and concluded that its prohibition was necessary for the maintenance of public order and for the protection of the Comradeship IV commemoration ceremony.
17. On 13 December 2000 the Constitutional Court (Verfassungsgerichtshof) dismissed a complaint by the applicant alleging violations of his rights to freedom of assembly, freedom of expression, freedom of religion and non-discrimination.
18. The Constitutional Court observed that the authorities deciding on the prohibition of an assembly had to weigh the applicant’s interest in holding the meeting against the public interests enumerated in Article 11 § 2 of the Convention. It went on to say that the prohibition of the proposed meeting would not be justified if its sole purpose were to protect the Comradeship IV commemoration ceremony and expressed doubts as to the authorities’ assessment that the latter meeting was a popular ceremony within the meaning of section 5 of the Assembly Act and therefore did not require authorisation. Nevertheless, the prohibition of the meeting proposed by the applicant was justified for other reasons.
19. The authorities had also had regard to the fact that the gathering of Comradeship IV had in previous years been the target of activities aimed at disrupting it which had caused considerable nuisance to other visitors of the cemetery and had each time required police intervention. The authorities had therefore correctly assumed that the prohibition of the assembly planned by the applicant was necessary to protect the general public against potential disturbances.
20. The Constitutional Court added further considerations in support of that conclusion. It observed that All Saints’ Day was an important religious holiday on which the population traditionally visited cemeteries in order to commemorate the dead. As a religious tradition, the commemoration of the dead was protected by Article 9 of the Convention, which contained a positive obligation for the State to protect persons manifesting their religion against deliberate disturbance by others. Thus, the prohibition of the assembly in issue was necessary under Article 11 § 2 of the Convention for the protection of the rights and freedoms of others. It followed that it did not violate any other Convention right relied on by the applicant.
21. That decision was served on the applicant’s counsel on 5 February 2001.
22. The Assembly Act 1953 (Versammlungsgesetz) regulates the exercise of the right to freedom of assembly. Section 2(1) provides that any person intending to organise a public assembly or any assembly which is generally open to persons other than invited guests must give the authorities notice in writing at least twenty-four hours in advance, indicating the purpose, place and time of the meeting.
23. Pursuant to section 5, certain gatherings such as public entertainment, popular ceremonies or religious processions do not fall within the scope of the Assembly Act.
24. Pursuant to section 6, the competent authority must prohibit any assembly which would contravene criminal law or endanger public order and security.
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-58060
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF GAYGUSUZ v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+P1-1;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;R. Pekkanen
TEXT: 9. Mr Cevat Gaygusuz, a Turkish national born in 1950, lived in Hörsching (Upper Austria) from 1973 until September 1987. Since then he has been living in Izmir (Turkey).
10. The applicant worked in Austria, with interruptions, from 1973 until October 1984. From then until 1 July 1986 periods when he was unemployed alternated with periods when he was certified unfit for work for medical reasons, and he was in receipt of the corresponding benefits.
From 1 July 1986 to 15 March 1987 he received an advance on his retirement pension in the form of unemployment benefit. When his entitlement expired he applied to the Linz Employment Agency (Arbeitsamt) on 6 July 1987 for an advance on his pension in the form of emergency assistance (Antrag auf Gewährung eines Pensionsvorschusses in Form der Notstandshilfe).
11. On 8 July 1987 the agency rejected the application on the ground that the applicant did not have Austrian nationality, which was one of the conditions laid down in section 33 (2) (a) of the 1977 Unemployment Insurance Act (Arbeitslosenversicherungsgesetz - see paragraph 20 below) for entitlement to an allowance of that type.
12. Mr Gaygusuz appealed against the above decision to the Upper Austria Regional Employment Agency (Landesarbeitsamt). He argued in particular that the distinction drawn by the section in question between Austrian citizens and foreign nationals was unjustified, unconstitutional and contrary to the European Convention on Human Rights).
13. On 16 September 1987 the Regional Employment Agency found against the applicant and upheld the impugned decision. It emphasised that not only did he not have Austrian nationality, but in addition his case did not fall into any of the categories where exemption from that condition was provided for (see paragraph 20 below).
14. On 2 November 1987 the applicant applied to the Constitutional Court (Verfassungsgerichtshof), alleging a violation of Article 5 of the Basic Law (Staatsgrundgesetz), Articles 6 para. 1 and 8 of the Convention (art. 6-1, art. 8) and Article 1 of Protocol No. 1 (P1-1).
15. On 26 February 1988, after considering the application in camera, the Constitutional Court declined to accept the case for adjudication (Article 144 para. 2 of the Federal Constitution - see paragraph 23 below), giving judgment in the following terms:
"The applicant alleged the breach of rights guaranteed by the Constitution in accordance with Article 6 para. 1 (art. 6-1) of the European Convention on Human Rights, Article 5 of the Basic Law and Article 1 of Protocol No. 1 to the Convention (P1-1), and Article 8 of the Convention (art. 8). Regard being had to the Constitutional Court's established case-law relating to these rights, the application is so unpersuasive as to the existence of the alleged violations or the infringement of any other right guaranteed by the Constitution or the infringement of another right through the application of an unlawful general provision, that with regard to the alleged violations to be considered by the Constitutional Court it does not have sufficient prospects of success. In addition, the case is not excluded from the jurisdiction of the Administrative Court [Verwaltungsgerichtshof]."
16. The Constitutional Court therefore referred the case to the Administrative Court (Article 144 para. 3 of the Federal Constitution - see paragraph 23 below).
17. On 16 May 1988 the Administrative Court asked Mr Gaygusuz to expand on his application.
18. On 7 July 1988 the applicant did so, complaining of an infringement of his legal right to obtain an advance on his pension in the form of emergency assistance, in accordance with the relevant provisions of the Unemployment Insurance Act. He requested the Administrative Court to set aside the decision of the Upper Austria Regional Employment Agency of 16 September 1987 as unlawful by reason of its content (section 42 (2) (i) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) - see paragraph 27 below) and to suspend the proceedings and refer the case to the Constitutional Court for consideration of the constitutionality of section 33 (2) (a) of the Unemployment Insurance Act.
19. On 19 September 1989 the Administrative Court, sitting in camera, ruled that it did not have jurisdiction to deal with such an application and rejected it (section 34 (1) of the Administrative Court Act - see paragraph 25 below). It noted that the application, as expanded by Mr Gaygusuz, referred solely to the constitutionality of section 33 (2) (a) of the Unemployment Insurance Act. It further noted that the applicant had asked the Administrative Court to refer the case to the Constitutional Court for consideration of the constitutionality of a statute, but ruled that it was established that such questions came under the jurisdiction of the Constitutional Court (Article 144 para. 1, first paragraph, of the Federal Constitution - see paragraph 23 below), which, moreover, had already ruled on the issue.
20. In the 1977 version, which was applicable at the material time, the relevant provisions of the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz) were worded as follows:
"(1) Unemployed persons who have applied for an invalidity insurance benefit ... may receive an advance in the form of unemployment benefit or emergency assistance ... provided that, in addition to the capacity to work and availability for work, the other conditions for the award of the benefit concerned are satisfied ..."
"(1) Unemployed persons who have exhausted their entitlement to unemployment benefit or maternity leave may be granted emergency assistance, at their request.
(2) For a grant to be made, the unemployed person must
(a) possess Austrian nationality;
(b) be fit for work and available for work; and
(c) be in urgent need.
(3) The requirement of Austrian nationality is not applicable to persons who have been uninterruptedly resident in the present territory of the Republic of Austria since 1 January 1930, or to persons who were born after that date in the present territory of the Republic of Austria and have subsequently been uninterruptedly resident there.
(4) There is urgent need where the unemployed person is unable to provide for his essential needs.
(5) Emergency assistance cannot be granted unless the unemployed person applies for it within three years of exhausting entitlement to unemployment benefit or maternity leave."
"(1) If long-term labour-market conditions are favourable to specific categories of unemployed persons or in specific regions, the Federal Minister of Social Affairs may, after consulting the organisations representing employers and employees, exclude those categories or regions from entitlement to emergency assistance.
(2) The Federal Minister of Social Affairs may authorise the grant of emergency assistance to unemployed persons who are nationals of another State where that State has a benefit equivalent to Austrian emergency assistance which is payable to Austrian citizens in the same manner as to its own nationals.
(3) The Federal Minister of Social Affairs may, after consulting the organisations representing employers and employees, authorise the grant of emergency assistance to unemployed persons who do not have Austrian nationality and have not been granted assistance under paragraph 2, on condition that during the five years preceding the date of the application for emergency assistance they have been employed in Austria for not less than 156 weeks with compulsory payment of unemployment insurance contributions. In order to calculate this period of five years, no account shall be taken of periods when the person concerned was in receipt of unemployment benefit (or emergency assistance). Authorisation may be given for a specific period and in respect of specific categories of unemployed persons."
21. Emergency assistance is assistance paid to persons who are no longer entitled to unemployment benefit, in order to guarantee them a minimum income. Entitlement to emergency assistance continues for as long as the person concerned is in need, even though payment itself is granted for a maximum period of 39 weeks, which must be renewed. The amount cannot exceed the amount of the unemployment benefit to which the person concerned would otherwise be entitled, nor may it be lower than 75% of the amount of that benefit.
The amount of unemployment benefit is established in accordance with the recipient's income and it is financed partly from the unemployment insurance contributions every employee has to pay (section 1 of the Unemployment Insurance Act) and partly from various governmental sources.
22. Since 1992, after amendment of the text and a change of numbering, sections 33 (3) and (4) and 34 (3) and (4) have read as follows:
"...
(3) There is urgent need where the unemployed person is unable to provide for his essential needs.
(4) Emergency assistance may not be granted unless the unemployed person applies for it within three years of exhausting entitlement to unemployment benefit or maternity leave. To this period shall be added periods of rest within the meaning of section 16 (1) and periods of self-employed work, paid employment not covered by unemployment insurance or training which has occupied a preponderant part of the unemployed person's time."
"... (3) The following categories of persons may claim emergency assistance under the same conditions as unemployed persons having Austrian nationality:
1. refugees within the meaning of Article 1 of the Convention relating to the Status of Refugees, signed at Geneva on 28 July 1951;
2. stateless persons within the meaning of Article 1 of the Convention relating to the Status of Stateless Persons, signed at New York on 28 September 1954;
3. persons born in the present territory of the Republic of Austria who have subsequently been normally resident there uninterruptedly;
4. persons who have been normally resident in the present territory of the Republic of Austria uninterruptedly since 1 January 1930;
5. foreign nationals, in so far as that is provided for in bilateral agreements or international treaties;
6. holders of exemption certificates or assimilated persons, within the meaning of paragraph 4;
7. displaced persons in possession of an identity document issued by an Austrian authority;
8. resettled persons from South Tyrol and the Val Canale [Südtiroler- und Canaltaler-Umsiedler].
(4) After exhaustion of entitlement to unemployment benefit or maternity leave, the following categories of persons shall be granted emergency assistance, for a period of 52 weeks, or special emergency assistance, for the period laid down in section 39(1):
1. persons who, at the time of their application for emergency assistance, can produce a valid exemption certificate, within the meaning of the Aliens' Employment Act, issued in the version in force at the time of issue;
2. persons who do not have Austrian nationality but who, at the time of their application for emergency assistance, nevertheless satisfy the conditions for an exemption certificate, and to whom such a certificate has not been issued on the sole ground that their occupation is not covered by the Aliens' Employment Act."
23. By Article 144 para. 1 of the Federal Constitution the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by means of a decision [Beschluß] decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
Paragraph 3 of Article 144 is worded as follows:
"Where the Constitutional Court considers that the impugned administrative decision has not infringed a right within the meaning of paragraph 1 and the case is not excluded from the jurisdiction of the Administrative Court by Article 133, the Constitutional Court, at the applicant's request, must refer the application to the Administrative Court so that it may determine whether the impugned decision has infringed one of the applicant's other rights."
24. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
25. Section 34 (1) of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) provides: "Applications upon which . on account of the Administrative Court's manifest lack of jurisdiction, it is not appropriate to adjudicate, or which are manifestly barred as res judicata or for lack of the right to bring proceedings, shall be rejected, without further proceedings, by a decision taken in closed sitting."
26. Section 41 (1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42 (2) (2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
27. Section 42 (1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision.
By section 42 (2),
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction,
[or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
28. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law [Rechtsanschauung]" (section 63 (1)).
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-106610
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: NIKITINA v. LATVIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Ms Gaļina Ņikitina, is a Latvian national who was born in 1965 and lives in Rīga. She was represented before the Court by Ms Z. Paulovska, a lawyer practising in Rīga. The Latvian Government (“the Government”) were represented by their Agent, Mrs I. Reine.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The relevant historical background has been described in detail in paragraphs 2 to 9 of the Court’s decision in the case of Liepājnieks v. Latvia (no. 37586/06, 2 November 2010).
4. In addition, it should be noted in the present case that from 1985 the applicant lived in an apartment in the building located at 3 Pastendas Street, under a lease agreement concluded under Soviet law. On 29 October 1992, following the restoration of Latvia’s independence, the building was denationalised and returned to its former owners.
5. On 5 January 1994 the applicant concluded a new lease for one year. It appears that the lease was extended every year until 9 May 2000. In the meantime, according to the applicant, the owners failed to maintain the building, in breach of the lease agreement.
6. It appears that, after the expiry of the seven-year non-eviction period (see Liepājnieks, cited above, § 6), the owners initiated eviction proceedings before the civil courts (see, by contrast, Liepājnieks, cited above, §§ 11 and 88).
7. On 26 May 2003 the Rīga City Zemgale District Court (Rīgas pilsētas Zemgales priekšpilsētas tiesa) ordered the eviction of the applicant and her minor daughter from the apartment without allocating them another place of residence. The applicant appealed against the judgment.
8. On 17 January 2005 the Rīga Regional Court (Rīgas apgabaltiesa) upheld that judgment and confirmed that the applicant and her daughter were to be evicted from the apartment and that no other place of residence was to be allocated to them. The regional court’s judgment took effect on the same day. The applicant lodged an appeal on points of law, in vain.
9. On an unspecified date, the applicant and her daughter were evicted from the apartment.
10. In December 1998 the applicant approached the local municipality with a view to receiving its assistance on matters relating to apartments. It appears that her application was examined approximately a year later: on 8 December 1999 the Rīga City Council entered the applicant’s family (the applicant and her minor daughter) in the register for receiving municipal assistance in the allocation of a place of residence (for rent). The applicant’s family were entered in the third group of the register, based on the fact that the apartment in which they were living was not suitable for permanent residence.
11. On 1 January 2002 a new law on assistance concerning issues relating to apartments took effect (see paragraph 34 below). The applicant’s family were now entered in register no. 12, keeping their initial registration date.
12. On 3 November 2004 the applicant was granted the status of a low-income person. This was subsequently extended until at least 23 October 2006.
13. On 2 February 2005 the applicant’s family were entered in register no. 7 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent), keeping their initial registration date. Register no. 7 was designed to include persons in need of the municipality’s assistance who had low-income status, were tenants in denationalised buildings and did not have any other place of residence. The applicant’s family appear to have been at the top of that list on account of their initial registration date.
14. On 23 February 2005, having received a phone call from the municipality, the applicant went to its offices to deal with the necessary formalities for receiving a lease offer, which, as it later transpired, had been issued for her. An official of the municipality required the applicant to submit the information regarding the proceedings for her eviction (see paragraphs 6 to 9 above). Having received the information, the official noted that all available lease offers had already been issued and that the applicant had to continue waiting for an offer.
15. On 29 March 2005, following an enquiry by the applicant, the municipality informed her that there was no basis on which to offer her a lease, because the eviction proceedings had resulted in a judgment against her and she no longer had a right to reside in the apartment in question. It was noted, however, that should the applicant’s appeal on points of law be upheld and the judgment of 17 January 2005 (see paragraph 8 above) be reversed, the municipality would consider that she retained the right to reside in the apartment and she would be offered a lease.
16. On 28 August 2006 the applicant was informed that she and her daughter would be struck off register no. 7 since she no longer satisfied the applicable criteria. She was invited to submit any objections within two weeks. The applicant was also informed that she could submit documents to be entered in register no. 1 for priority treatment in receiving municipal assistance in the allocation of a place of residence (for rent). Register no. 1 was designed to include persons who had been evicted from their place of residence. It appears that the applicant did not submit any response to the authorities on these issues.
17. On 4 October 2006 the competent commission decided to strike the applicant’s family off register no. 7 because the applicant’s lease in a denationalised building had been terminated on 17 January 2005. The decision contained a reference to the effect that the applicant could submit a complaint with the municipality against that decision within one month.
18. On 8 November 2006 the applicant lodged a complaint against the decision. On 15 December 2006 her complaint was rejected and she was informed that she could lodge an appeal with the administrative courts within one month. She did not exercise that right.
19. On 17 December 2006 the applicant complained to the municipality that her complaint of 8 November 2006 had not been examined, adding that she had been called on an unspecified date to participate in a meeting with the municipality but had not understood the purpose of that meeting.
20. On 4 January 2007 the applicant received a reply to her complaint of 17 December 2006. It was explained that her complaint against the decision of 4 October 2006 had been rejected on 15 December 2006 and that she could lodge an appeal with the administrative courts within one month. The system of registers and their scope was also explained and the applicant was informed that her family could be eligible for inclusion in register no. 1 for priority treatment. She was encouraged to contact the competent division in the municipality and was given the relevant contact details. The applicant did not proceed as suggested.
21. On 1 November 2005 the applicant lodged a complaint with the Rīga City Council about an action of a public authority (faktiskā rīcība). On 9 January 2006 the Rīga City Council rejected the applicant’s complaint.
22. On 6 February 2006 the applicant brought proceedings in the Administrative District Court (Administratīvā rajona tiesa), asking it to compel the Rīga City Council to issue a favourable administrative act (labvēlīgs administratīvs akts) and conclude a lease with her.
23. On 10 August 2006 the district court partly ruled in the applicant’s favour. On the one hand, the district court concluded that an action of a public authority – namely the municipality’s refusal to offer a lease to the applicant – had been unlawful. On the other hand, the district court did not compel the municipality to issue a favourable administrative act or to conclude a lease with the applicant.
24. As concerns the action of a public authority, the district court noted that the parties did not dispute that on 23 February 2005 the applicant’s family had been entered in register no. 7, that the applicant’s turn had come to receive the municipality’s assistance and that at least one apartment was available for lease. It was the municipality’s duty under domestic law to offer every available apartment to the applicant. The district court ruled that the applicant had a right to request that a certain action be taken, that is, that a lease offer be given to her. The responsible official did not have the right to refuse to make such an offer as on 23 February 2005 the applicant’s entry in register no. 7 had still been effective.
25. As regards the applicant’s request to compel the municipality to issue a favourable administrative act and to conclude a lease, the district court held that it could not compel the municipality to issue such an act before it had offered a lease and the applicant had accepted it.
26. The municipality appealed against the district court’s ruling in so far as it concerned the action of a public authority. The applicant did not lodge an appeal. Thus, the district court’s ruling regarding the request for a favourable administrative act and a lease offer remained uncontested.
27. On 15 May 2007 the Administrative Regional Court (Administratīvā apgabaltiesa) upheld the district court’s ruling. The regional court found that, in fact, on 23 February 2005 the municipality had already prepared a lease offer and that the official had not handed it over to the applicant on that date. Under domestic law, only a special commission had the necessary powers to strike the applicant’s family off register no. 7. Since this had not been done on 23 February 2005, the applicant had not lost the right to receive municipal assistance.
28. The regional court concluded that an action of a public authority – namely the refusal to issue a lease offer – had been unlawful. As the applicant had not contested the district court’s finding concerning the request for a favourable administrative act and a lease offer, the regional court and later also the Senate of the Supreme Court, did not rule on this issue.
29. On 3 January 2008, following an appeal on points of law by the municipality, the Administrative Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Administratīvo lietu departaments) fully concurred with the regional court’s reasoning. The municipality argued before the Supreme Court that the applicant had lost the right to reside in the apartment on the grounds of the judgment of 17 January 2005 and, accordingly, the issuance of a lease offer would not be effective in the circumstances. The Supreme Court agreed that with the judgment of 17 January 2005 the applicant’s family had lost the right to reside in the apartment. However, only the competent commission could have examined the situation and decided whether or not to strike the applicant’s family off the register. Since on 23 February 2005 such a decision had not been taken, the applicant had not lost the right to receive the municipality’s assistance in resolving the issue of her apartment. The Supreme Court thereby upheld the lower court’s judgment.
30. Under Article 92 of the Constitution (Satversme), everyone has a right to receive commensurate compensation if his or her rights have been violated.
31. Under section 92 of the Law of Administrative Procedure (Administratīvā procesa likums), in force since 1 February 2004, everyone has the right to receive commensurate compensation for pecuniary and non-pecuniary damage caused by an administrative act or action of a public authority.
32. Under section 93 of the same Law, a claim for compensation can be submitted either together with an application to the administrative courts to declare an administrative act or action of a public authority unlawful, or to the public authority concerned following a judgment adopted in such proceedings.
33. The amount of compensation and the procedure for claiming damages from a public authority on account of an unlawful administrative act or an unlawful action of a public authority is prescribed by the Law on Compensation for Damage caused by Public Authorities (Valsts pārvaldes iestāžu nodarīto zaudējumu atlīdzināšanas likums), in force since 1 July 2005. Chapter III of the Law provides for the procedure to follow when an individual claims damages from a public authority. Under section 15, an individual is entitled to lodge an application with the public authority that was responsible for the damage. Pursuant to section 17, such an application must be lodged not later than within one year of the date when the individual became aware of the damage and, in any event, not later than five years after the date of the unlawful administrative act or unlawful action of a public authority.
34. On 1 January 2002 the Law on Assistance Concerning Apartment Matters (likums “Par palīdzību dzīvokļa jautājumu risināšanā”) took effect. Several types of assistance are available under section 3 of the Law, including the possibility of leasing a place of residence from a local municipality. Under section 14, the municipality is entitled to offer assistance in order of priority to tenants living in denationalised buildings. It is left to the municipality to determine the criteria and the procedure for such assistance. Section 18 of the Law provides that the municipality is to offer a lease in writing and that the individual concerned has a certain time-limit for accepting the offer.
35. The Rīga City Council, the biggest municipality in Latvia, has adopted several regulations on these issues. In the present case, regulations nos. 61, 76 and 6 are relevant. Under regulations no. 61, in force from 31 March 2004 to 26 November 2004, individuals with low-income status residing in a denationalised building were entitled to be entered in register no. 7 for priority treatment in receiving the municipality’s assistance in the allocation of a place of residence (for rent), if they did not have any other place of residence (Article 2.3.8). The decision as to whether or not an individual was entitled to receive the municipality’s assistance, or to be included in or struck off any of the registers, was to be taken by a special commission (Article 1.6).
36. Under regulations no. 76, in force from 26 November 2004 to 27 July 2005, the relevant provisions remained the same as in regulations no. 61.
37. From 27 July 2005 to 13 December 2007 regulations no. 6 were in force. These regulations laid down clearer provisions governing the different registers, eligibility criteria and the order of priority. Similarly to the previous regulations no. 61 and 76, they provided that the decision to strike a person off any of the registers should be taken by a special commission (Article 1.9).


ITEMID: 001-5958
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SELMANI v. SWITZERLAND
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Yugoslav citizens of Kosovo origin, are mother and daughter born in 1974 and 1997, respectively. The first applicant, who works as a cleaning lady, is married to A.S., a Yugoslav citizen of Kosovo origin born in 1971 and currently detained in Lenzburg prison. A.S. is the father of the second applicant.
A.S. entered Switzerland in 1989 where he obtained a residence permit (Aufenthaltsbewilligung) and worked as a manual worker and taxi driver. On 17 January 1997 he married the first applicant in Switzerland who henceforth also obtained a residence permit. On 10 October 1997, their daughter, the second applicant, was born in Switzerland.
On 14 September 1998, A.S. was remanded in custody.
On 16 September 1999 the Criminal Court (Strafgericht) of the Canton of Basel-Landschaft sentenced A.S. to 8 years’ imprisonment and 15 years’ prohibition to enter Switzerland on account of offences against the Narcotics Act (Betäubungsmittelgesetz). Upon, appeal, the Basel-Landschaft Court of Appeal (Obergericht) reduced the sentence to six years’ imprisonment.
On 3 January 2000 the Basel-Landschaft Aliens’ Police (Fremdenpolizei) decided not to prolong the residence permits of the applicants and A.S. and ordered the applicants to leave Switzerland by 31 May 2000, whereas A.S. was ordered to leave upon termination of his prison sentence.
The applicants’ appeal against this decision was dismissed by the Basel-Landschaft Government (Regierungsrat) on 6 June 2000 on the grounds that the applicants depended on public welfare, and as the conduct of A.S. did not permit the conclusion that he was willing to integrate in Switzerland.
On 11 October 2000 the Basel-Landschaft Administrative Court (Verwaltungsgericht) dismissed the applicants’ further appeal. The court noted that the applicants, if they returned to their home country, would in fact be separated from A.S. However, in the court’s opinion, their family life was already considerably limited in view of the prison sentence of A.S. Given the public interest in an orderly implementation of the prison sentence, the applicants’ additional separation from A.S. appeared insignificant (geringfügig), particularly as they had the possibility of communicating by mail and telephone with him. The court furthermore confirmed the decision of the Basel-Landschaft Government according to which the refusal to prolong the applicants’ residence permit was based on S. 10 § 1 (d) of the Federal Aliens’ Act (Bundesgesetz über Aufenthalt und Niederlassung der Ausländer) which envisaged a foreigner’s expulsion if he or she depended continuously and substantially on public welfare.
The applicants filed an administrative law appeal (Verwaltungsgerichts-beschwerde) with the Federal Court which the latter declared inadmissible on 27 March 2001. It noted that S. 100 § 1 (b)(3) of the Organisation of Justice Act (Organisationsgesetz) only permitted administrative law appeals if the complainant could invoke an “entitlement”. In cases of family separation this required as a rule that one of the family members had a “consolidated right to stay” (gefestigtes Anwesenheitsrecht) in Switzerland, for instance on account of Swiss nationality or of a right to domicile (Niederlassungsbewilligung), which was not the case for the present applicants. The judgment continued:
“The only basis for such a right could ... at most, be Article 8 § 1 of the Convention and Article 13 § 1 of the Federal Constitution (Bundesverfassung), in that the family of applicants would provisionally be separated even more insofar as wife and child would have to leave Switzerland already before their husband and father is released from prison. However, for the applicants to live together as a family is in any event excluded until release from prison. The possible direct contacts between the detainee and his family will be limited until then to short visits in prison. Nevertheless, a right of the (remaining) family to stay in Switzerland merely to exercise such a limited right to visit the detained applicant, cannot a priori be derived from Article 8 of the Convention, a fortiori as this person only disposes of a ... residence permit rather than a consolidated right to stay, for which reason he cannot convey any rights to residence upon his wife and child. The (enforced) stay due to detention on remand or a prison sentence, based on an order of criminal procedure or penal law, cannot in itself provide a ‘consolidated right to stay’ within the meaning of the case-law to Article 8 of the Convention.”
Subsequently, the Federal Aliens’ Office (Bundesamt für Ausländerfragen) ordered the applicants to leave Switzerland by 29 June 2001, whereas A.S. was ordered to leave Switzerland upon release from detention.
The applicant’s appeal against this decision was dismissed by the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartment) on 11 May 2001.
According to S. 13 § 1 of the Swiss Federal Constitution, “everyone has the right to respect for his private and family life, his home and his communications by mail, post and telecommunications”.
S. 10 § 1 (d) of the Federal Aliens’ Act provides that a foreigner may be expelled from Switzerland, inter alia, “if he, or a person for whom he has to care, continuously and substantially becomes a burden for public welfare”.
S. 100 § 1 (b) (3) of the Organisation of Justice Act states that an administrative law appeal shall be inadmissible in matters of the aliens’ police if it concerns the granting or the refusal of authorisations in respect of which federal law offers no entitlement.


ITEMID: 001-59558
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF PHILLIPS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-2;No violation of Art. 6-1;No violation of P1-1
JUDGES: Georg Ress;Nicolas Bratza
TEXT: 8. On 27 June 1996, at Newport Crown Court, the applicant was convicted of being concerned in the importation in November 1995 of a large quantity of cannabis resin, contrary to section 170(2) of the Customs and Excise Management Act 1979. On 12 July 1996 he was sentenced to nine years’ imprisonment in respect of this offence. The applicant had previous convictions, but none in respect of a drug-related offence.
9. An inquiry was conducted into the applicant’s means, pursuant to section 2 of the Drug Trafficking Act 1994 (“the 1994 Act” – see below).
On 15 May 1996 a Customs and Excise appointed drug financial investigation officer advised the applicant’s solicitors that he was carrying out an investigation into their client’s financial affairs and that he wished to interview him in order to assist the court in determining whether he had benefited from drug trafficking. The applicant declined to take part in the interview.
10. The investigation officer prepared a written statement pursuant to section 11 of the 1994 Act which was served on the applicant and filed with the court.
In the statement the investigation officer observed that the applicant had no declared taxable source of income, although he was the registered owner of a house converted into four flats from which he had started a bed-and-breakfast business in December 1991. Examination of the applicant’s building society account showed cash and cheque deposits in the period from August 1994 to November 1995 totalling over 17,000 pounds sterling (GBP), which the investigation officer suggested might represent rental income from the four flats. The applicant was found to have become a director of a newsagents business in July 1992 of which his parents were the sole shareholders and to have bought a shop in September 1992 for GBP 28,493.25, of which GBP 12,200 was paid in cash. He was the registered owner of five cars, of an estimated total value of approximately GBP 15,000, and was found to have spent GBP 2,000 on a BMW 520i in October 1995, and approximately GBP 88,400 on expenses related to the November 1995 importation of cannabis (in respect of which he had been convicted). The investigation officer concluded that the applicant had benefited from drug trafficking and that the total benefit was GBP 117,838.27.
In respect of the applicant’s realisable assets, the investigation officer observed:
“The size of Phillips’ realisable assets is likely to be peculiarly within the defendant’s own knowledge and I feel it reasonable to suppose that any successful drug trafficker (in as much as the defendant is) may take care to ensure, so far as he can, that the proceeds of his trade will be hidden away so as to be untraceable. Examples include the fact that his business dealings are always conducted in cash, that no records are ever maintained, and that some assets, for example the BMW 520i, are registered in false names.”
11. The applicant filed a written statement in response, in which he denied having benefited from drug trafficking. He explained that in 1990-91 he had been convicted of car theft and required to pay GBP 25,000 to the insurance company which had indemnified the victims. He claimed that he had sold the house for GBP 50,000 to X in order to clear this debt and had used the GBP 12,000 residue from the sale to purchase the newsagents premises for his parents because he owed them money too. He denied owning any part in the newsagents business. When he was released from prison in April 1994 he began trading in telephones; this was the source of the GBP 17,000 in his building society account. He denied owning any of the cars registered in his name, claiming variously that each had been purchased and sold on behalf of a friend or stolen without insurance. In conclusion, he alleged that his only realisable assets were some GBP 200 in a building society account and the fittings of a garage rented from the local authority. The applicant filed documentary evidence and affidavits in support, primarily, of his claim no longer to own the house.
12. The investigation officer filed a second statement in accordance with section 11(1) of the 1994 Act. He stated, inter alia, that the applicant was still the owner of the house and that the conveyance to X had never been registered.
13. At the confiscation hearing in the Crown Court the applicant gave evidence and called witnesses. Giving judgment on 24 December 1996 the judge observed:
“It is for the prosecution to establish, of course, on a balance of probabilities that he has benefited from drug trafficking, that is received any payment or reward in connection with drug trafficking. Here there is no direct evidence of that so the Crown invite me to make the assumptions required by section 4(3) of the Act, namely (a) that property held by him since his conviction, and property transferred to him since 18 November 1989, the appropriate date, was received as such a benefit; (b) that any expenditure of his since that date in 1989 was met out of payments received by him in connection with any drug trafficking carried on by him. I must do so unless either he shows on a balance of probabilities that the assumption is incorrect, or I am satisfied that there would be a serious risk of injustice to him if the assumption was made.”
The judge commented generally that, in seeking to displace the assumption and to counter the prosecutor’s allegations, the applicant had failed to take obvious, ordinary and simple steps which would clearly have been taken if his account of the facts had been true. For example, instead of calling as witnesses the alleged purchaser of the house, X, and other individuals for whom he claimed to have bought and sold cars, the applicant had called only himself, his father and a solicitor.
14. The judge found the prosecution’s allegation that the applicant still owned the house to be correct and held that X’s purported purchase payment of GBP 50,000 had in fact been a benefit of drug trafficking. The judge stated:
“The assumption to be made is plain, and the accused has neither shown that it is incorrect nor demonstrated a risk of injustice.
There are real indications on the civil basis of proof that [X] was complicit in the crime of which the accused was convicted. They travelled to Jamaica together at about the time when arrangements for shipment of the load of compressed herbal cannabis would be likely to be made. A mobile phone at the heart of the arrangements for the haulage of the drugs was registered in the name of [X]. Just as the jury did not believe Mr Phillips, neither do I. What has happened here, in my judgment, is a device of just the sort providing a cover to explain the transfer of money which one would expect to find in concealing benefit from drug trafficking. There is an apparently ordinary, formal, commercial transfer of property, appropriately done through solicitors in the ordinary way, which has never ultimately been formally finalised, and my judgment is that it was indeed a sham, that the property ... is still owned by the accused ...”
15. The prosecution alleged that the applicant had received a further GBP 28,000 in cash from X. The applicant accepted that he had received this money, but claimed that X had merely been cashing a cheque drawn by the applicant’s father to buy out the applicant’s share in the family business for a total of GBP 50,000. In connection with this transaction, the judge observed:
“No sensible explanation for the involvement of [X] in that cashing of that cheque was given to me at all, and it is impossible, in my judgment, to see any sensible reason other than that he did not cash a cheque; that it was a simple payment. It involves my disbelieving not only the accused but also his father, but I do. I think family loyalty has overcome his honesty.
Although the accused now has no formal interest in the remaining shop premises from which the family business is conducted, I do not accept the account of himself and his father that he has no interest in the business. Even within a family I find the purchase of a share of a business for GBP 50,000 entirely without documentation simply unbelievable. Again, on the balance of probabilities it is a device to conceal the true reason for the payment by [X] to the accused of GBP 28,000 which was that it was a payment for drug trafficking.”
16. In respect of the applicant’s dealings with cars, the judge remarked:
“Accepting his lowest estimates of those sums which he has paid out, a total of GBP 11,400 in cash is reached. He told the jury that he always dealt in cash in all his transactions, not only dealing with these but other transactions, he presenting himself to the jury as a general wheeler-dealer, having specialised at one stage in cars, more recently in mobile telephones, but willing to deal in anything which would offer a profit. He says he never kept records at all. He accepts and asserts that he dealt dishonestly in cars, as well as legitimately, and that is certainly so. He has been convicted during the relevant period of offences of dishonesty in relation to ringing cars and was sentenced to a substantial term of imprisonment in respect of that. There are also in the papers before me indications of earning legitimate commissions in ordinary sales of cars.
But the fact that he may have had other sources of cash, both legitimate and illegitimate, does not, in my judgment, displace the second assumption in a case such as this where no sort of account, complete or partial, is available or possible. I have seen what must have been a fraction of his dealings, and I am satisfied that the GBP 11,400 must be treated as a benefit.”
17. The judge assessed the applicant to have benefited from drug trafficking to the extent of GBP 91,400.
He next calculated the value of the realisable property held by the applicant as follows:
“For the reasons that I have given above I am satisfied that [the applicant] is in fact the beneficial owner of [the house]. In the absence of a current valuation, but taking judicial notice of a recent modest recovery in the housing market after a long, flat period, I am satisfied that the GBP 50,000 which he said in evidence was what such a property was worth in 1992, that is to say during the long, flat period, I am satisfied that GBP 50,000 is a fair estimate of the likely net proceeds of a sale of that property now or in the relatively near future.
Again for the reasons that I have given above, I am satisfied that the accused still has a one-third interest with his parents in the [newsagents business]. He and his father said that the business was worth GBP 150,000 in 1993. That is what was purported to be the basis of the GBP 50,000 he was to be given for it. There is no evidence that it is worth any less now, and I therefore find his realisable share in the equity in that business to be worth GBP 50,000. Since I am satisfied as to GBP 100,000 realisable sums, that figure exceeds the GBP 91,400 and under section 5 I find the amount to be recovered to be that figure.”
In view of the difficulties inherent in realising the applicant’s share of the family business, the judge allowed him three years in which to pay the confiscation order, with a period of two years’ imprisonment to be served in default of payment.
18. On 28 January 1997 the applicant was refused leave to appeal against conviction and sentence (including the imposition of the confiscation order). His application to renew leave to appeal against conviction and sentence was refused on 22 January 1998 after a full hearing before the Court of Appeal.
19. Section 2 of the 1994 Act provides that a Crown Court should make a confiscation order in respect of a defendant appearing before it for sentencing in respect of one or more drug-trafficking offences, whom the court finds to have received at any time any payment or other reward in connection with drug trafficking.
20. Under section 5 of the 1994 Act, the confiscation order should be set at a sum corresponding to the proceeds of drug trafficking assessed by the court to have been gained by the defendant, unless the court is satisfied that, at the time the confiscation order is made, only a lesser sum could be realised.
21. In determining whether and to what extent the defendant has benefited from drug trafficking, section 4(2) and (3) of the 1994 Act require the court to assume that any property appearing to have been held by the defendant at any time since his conviction or during the period of six years before the date on which the criminal proceedings were commenced was received as a payment or reward in connection with drug trafficking, and that any expenditure incurred by him during the same period was paid for out of the proceeds of drug trafficking. This statutory assumption may be set aside by the defendant in relation to any particular property or expenditure if it is shown to be incorrect or if there would be a serious risk of injustice if it were applied (section 4(4)).
22. The required standard of proof applicable throughout the 1994 Act is that applied in civil proceedings, namely on the balance of probabilities (section 2(8)).
23. Provisions broadly similar to the above were previously included in the Drug Trafficking Offences Act 1986 (“the 1986 Act”, considered by the Court in Welch v. the United Kingdom, judgment of 9 February 1995, Series A no. 307-A).
24. In its judgment of 13 October 2000 the Scottish Court of Appeal, by a majority of two to one, held that a confiscation procedure similar to that applied in the present case was incompatible with Article 6 § 2 of the Convention. Lord Prosser, with whom Lord Allanbridge agreed, observed, inter alia:
“... By asking the court to make a confiscation order, the prosecutor is asking it to assess the value of the proceeds of the petitioner’s drug trafficking. It is therefore asking the court to reach the stage of saying that he has trafficked in drugs. If that is criminal, that seems to me to be closely analogous to an actual charge of an actual crime, in Scottish terms. There is of course no indictment or complaint, and no conviction. And the advocate depute pointed out a further difference, that a Scottish complaint or indictment would have to be specific, and would require evidence, whereas this particular allegation was unspecific and based on no evidence. But the suggestion that there is less need for a presumption of innocence in the latter situation appears to me to be somewhat Kafkaesque, and to portray vice as a virtue. With no notice of what he is supposed to have done, or of any basis which there might be for treating him as having done it, the accused’s need for the presumption of innocence is in my opinion all the greater ... I can see no basis upon which it could be said that [such] assumptions ... would not offend against the presumption of innocence, leaving it to the accused to show that these assumptions were incorrect. ...”
25. On 21 December 2000 the Court of Appeal held unanimously that the imposition of a drug confiscation order did not give rise to a violation of Article 6 of the Convention. Giving judgment, the Lord Chief Justice examined the confiscation process on the basis that Article 6 as a whole, including Article 6 § 2, applied. He concluded that, considered as a whole, the confiscation scheme struck a fair balance between justice for the defendant and the public interest in controlling the proceeds of drug trafficking.
26. The prosecution appealed from the Court of Appeal’s decision (see paragraph 24 above) and on 5 February 2001 the Judicial Committee of the Privy Council held, unanimously, that Article 6 § 2 did not apply, since during the confiscation proceedings the accused was not “charged with a criminal offence” but was, instead, faced with a sentencing procedure in respect of the offence of which he had been convicted. Moreover, the Privy Council held that even if Article 6 § 2 could be said to apply, the assumption involved in the making of the confiscation order was not unreasonable or oppressive.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-2


ITEMID: 001-24068
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: DAWSON v. IRELAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants, Albert and Dudley Dawson, are Irish nationals, born in 1934 and 1938, respectively. They both live in Dublin. The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are insurance brokers. On 22 July 1992 they issued a plenary summons beginning a libel action against the Irish Brokers Association (“IBA”): they took issue with a letter circulated by the IBA indicating that the applicants’ membership of the IBA had been terminated due to non-compliance with the requirements of the Insurance Act 1989. Section 3 of that Act stipulates that every person who contravenes the Act shall be guilty of an offence.
On 17 September 1992 the applicants filed a statement of claim. Further to a motion of the applicants, on 21 December the High Court ordered the IBA to deliver its defence.
On 28 June 1993 the High Court, following the applicants’ motion, accepted that their solicitors had ceased to be on record.
On 9 February 1994 another solicitor (“AC”) filed a notice of change of solicitor, thereby coming on record for the applicants. The case was also set down for trial. The hearing of the case was initially fixed for November 1995 but it could not be heard on the date. By early 1996 AC had come off record although he continued to assist the applicants informally.
On 5 March 1996 the case came on for hearing (“first hearing”) before Mr Justice Kinlen and a jury. It was submitted by the IBA that the applicants had gone beyond the ambit of the pleadings in the course of their opening speech to the jury and it was deemed necessary by the trial judge to discharge the jury.
On 18 June 1996 the hearing re-commenced before a new jury and Mr Justice Barron (“second hearing”). It ended on 4 July 1996 when the jury returned a verdict in favour of the applicants and awarded the applicants 515,000 Irish pounds (IR£). The trial judge ordered the IBA to discharge the applicants’ costs when taxed and ascertained.
In July 1996 the IBA appealed arguing that the defence of “qualified privilege” should have been admitted and that the damages were excessive. They requested a new trial or that the Supreme Court render judgment in the terms of their notice of appeal.
The Supreme Court heard the appeal on 18 and 19 February 1997 and reserved judgment which was delivered on 27 February 1997. The Supreme Court (Mr Justice O’Flaherty giving the judgment of the Court, with which the two other judges agreed) dismissed the appeal as regards the question of qualified privilege. However, it allowed the appeal on the question of damages, finding the award excessive. Accordingly, the action was remitted to the High Court for a new trial on the question of damages only. The IBA was ordered to discharge the applicants’ costs of the appeal when taxed and ascertained.
On 6 March 1997 the applicants filed a notice in the High Court confirming the re-appointment of AC as their legal representative, but by April 1997 they were filing their own pleadings in the High Court.
By notice of motion dated 21 April 1997 the applicants requested, inter alia, that their case be heard as a matter of priority. The IBA also motioned to strike out parts of the applicants’ submissions as “scandalous”. On 25 April 1997 the High Court granted the priority request ordering that the case be listed first in the list to fix dates for jury actions: that list would be called over on 13 May 1997 and the judge doing so would also decide on the IBA’s motion.
On 12 May 1997 the IBA issued two motions in the High Court seeking discovery of documents relevant to the quantum of damages including access to the applicants’ past business records and seeking leave to make a lodgment into Court in respect of the libel established. On 12 May 1997, at a call-over of the case-list, a hearing date was not fixed given the outstanding discovery matter. On 14 May 1997 the applicants issued a counter-motion seeking maximum priority for the fixing of a hearing date on damages during the following court term.
On 13 June 1997 the High Court heard these motions and reserved judgment. On 23 June 1997 the High Court (Mr Justice Moriarty) delivered a detailed judgment ordering the applicants to deliver particulars of, and disclose documents concerning, turnover for a period of 3 years prior to the libel and particulars of their claimed losses. The IBA was given liberty to amend its defence to allow it to lodge a sum of money into court. It was also ordered that the action be accorded priority in the Dublin jury lists for the following legal term. The applicants were awarded their costs of the IBA’s motion concerning its lodgment into court and the court’s decision on other costs’ matters was reserved.
On 7 August 1997 the applicants filed an affidavit of discovery. On 26 August 1997 the applicants filed a motion to have the hearing specially fixed in accordance with the priority accorded on 21 April 1997. On 27 August 1997 the IBA filed an amended defence and on 3 September 1997 the applicants’ replied. On 19 September 1997 the IBA filed a motion requesting that part of the applicants’ reply be struck out (as being, inter alia, prolix, in part scandalous, unnecessary, and irrelevant) and for the applicants to make full discovery in accordance with the court order of 23 June 1997. The IBA supported their motion by affidavits dated 22 September and 15 October 1997 and the applicants filed an affidavit on 24 September 1997. On 29 September 1997 the applicants’ priority listing motion was considered but no order was made pending the outstanding discovery matter.
By notice dated 15 October 1997, the applicants discharged AC as their solicitor. On that date also the IBA’s motion (of 19 September) was heard in the High Court (Mr Justice Kelly) which ordered a significant portion of the applicants’ reply to be struck out and that they make discovery as already ordered on 23 June 1997. The decision on costs of the motion was reserved. The action was listed for mention on 4 November 1997.
The applicants filed two more affidavits on 21 October 1997, inter alia, objecting to producing certain documents and making some discovery.
On 4 November 1997 the High Court (Mr Justice Kelly) ordered the applicants to respond within 14 days to an outstanding matter raised in the IBA’s affidavit of 22 September 1997. A decision as to the award to be made on the costs of that hearing and court order was reserved. The action was listed for mention on 25 November 1997.
By affidavit of 13 November 1997 the applicants responded to the matter raised in the IBA affidavit of 22 September 1997. On 11 and 25 November 1997 the IBA filed affidavits in the High Court concerning certain discovery matters. On the latter date also the High Court (Mr Justice Kelly) heard the parties, noted their agreement that the IBA inspect certain of the applicants’ documents and it was ordered that it be done before Christmas. Costs were reserved. On 1 and 5 of December 1997 the applicants and the IBA filed affidavits concerning discovery. The applicants submit that on 8 December 1997 the High Court examined these matters refused the IBA’s motion and did not make a costs’ order in their favour.
On 30 January 1998 the IBA wrote to the applicants indicating that many of the matters they had referred to in their reply were not admissible and that objection would be taken at the opening of the trial on damages if the applicants attempted to introduce them (mainly concerning the applicants’ new claim for exemplary damages).
The hearing (“third hearing”) on the question of damages took place before the High Court (Mr Justice Budd) from 3 to 6 February 1998, on which latter date the trial judge made certain preliminary rulings and directions, pursuant to the IBA’s motion, excluding submissions by the applicants on certain matters considered to fall outside of the scope of the damages’ proceedings. Since the applicant who was pleading had fallen ill, the matter was adjourned to 10 February 1998. By then, the applicants had considered the rulings of the trial judge and formed the view that the trial judge had thereby taken away their right to a proper trial on the damages’ aspect. The order of 10 February 1998 records that the applicants had “refused to proceed”. It was ordered that their claim for damages be dismissed and that the IBA recover the costs of the hearing together with their costs of the motions in respect of which costs had been reserved. The money lodged in court by the IBA could be withdrawn by the IBA.
On 2 March 1998 the applicants appealed against those orders of the High Court and requested a new trial which would include their submissions excluded by the High Court in early February 1998. The Supreme Court heard the appeal on 27 October 1998. On 6 November 1998 judgment was delivered (by Mr Justice O’Flaherty): the court found in the applicants’ favour (considering, inter alia, that the applicants should have been allowed to make submissions on exemplary and aggravated damages) and ordered a new trial in the High Court and the IBA was to re-lodge the sum of money back into court. No order was made as to the costs of the appeal: the costs of the third hearing and of the new trial were matters for the new trial judge.
Further to the applicants’ motion dated 9 November 1998, the High Court ordered (on 13 November 1998) that the re-trial of the action be specially fixed for the first day of jury hearings the following legal term.
On 21, 22 and 27-30 April 1999 the High Court hearing on damages (“fourth hearing”) took place before Mr Justice Kelly and a jury. On 4 May 1999 the jury awarded the sums of 85,000 Irish pounds (IEP) (damages) and IEP 50,000 (aggravated damages) in compensation. No exemplary award was made. The applicants were also to recover the costs of that hearing together with those costs reserved on 23 June (both motions), 15 October and on 25 November 1997 as well as the costs of two days of the third hearing.
On 20 December 1999 the applicants submitted their costs’ calculations to the Taxing Master. The IBA responded on 25 February 2000 and the applicants on 16 March 2000. On 3 July 2000 the Taxing Master delivered rulings on the taxation of costs, disallowing certain of the applicants’ claims and allowing others. Further hearings on costs took place before the Taxing Master on 18-20, 20 and 25 October 2000, on 20 December 2000 and 22 February 2001. On 22 February 2001 the Taxing Master made further rulings and issued a report on the applicants’ costs on 8 March 2001.
On 26 February 2001 the applicants issued a motion to review in the High Court the taxation rulings. The applicants took issue, inter alia, with the Taxing Master’s refusal to award them legal costs at IEP 140 per hour as they were not represented and to award them instead an hourly amount for the time they spent in court at the standard rate applicable to the profession of which they were both members (insurance brokers). They also took issue with the decision not to allow all of the costs claimed in respect of the informal assistance of a solicitor after their solicitors had came off record (IEP 7,000 was awarded for this). On 14 March 2001 the IBA also lodged a cross-motion to review certain aspects of the Taxing Master’s award submitting, inter alia, that no award at all should have been made in respect of this informal assistance.
By detailed judgment dated 29 June 2001 the High Court (Mr Justice Kelly) dismissed the applicants’ appeal and allowed the IBA’s appeal. The High Court found reasonable the Taxing Master’s refusal to award the applicants the sum of IEP 140 per hour in respect of the time they spent on their own case: the refusal was in line with jurisprudence and the Taxing Master had reasonably made an award for the time spent by the applicants in court at the standard hourly rate charged by insurance brokers. Indeed, it was noted that the applicants had taken the figure of IEP 140 per hour from a newspaper cutting, that the applicants had been unable to present firm evidence to the Taxing Master as to their actual hourly earnings (evidence from the trial indicated that their rate was between IEP 10.00-13.30 per hour) and that the purpose of taxation of costs was reimbursement of costs and not profit-making. As to the award of IEP 7000 for informal legal assistance, the High Court found that the Taxing Master had erred in law and allowed the IBA appeal on this point.
Otherwise the High Court considered and confirmed the Taxing Master’s disallowance of costs claimed by the applicants for procedures in respect of which “no order as to costs” had been made by a court (not least because the applicants had not appealed those orders at the time). The High Court also considered and confirmed the Taxing Master’s rulings on miscellaneous items including mileage/travelling/parking (an allowance made), copying (no allowance made), and the costs of purchasing legal text books (no allowance made).
In addition, the High Court judge referred to the voluminous criticisms and allegations against the members of the Government, a professional institution, barristers, solicitors and a number of High Court judges including the High Court’s President which the applicants had attempted to introduce into the appeal. Apart from not being relevant to the current appeal, the High Court judge considered those comments to be “serious and scurrilous” and demonstrative of the fact that “obsession has replaced reason and invective has replaced argument”.
The High Court also made an award of the costs of the appeal in favour of the IBA, on the understanding that the IBA would not enforce it if the applicants did not appeal further.
The applicants claim that they then sought the perfected order of the High Court and, when they received it, considered its terms did not reflect what had been ordered. Accordingly, on 2 October 2001 they applied for an extension of time to appeal to the Supreme Court. On 5 October 2001 the Supreme Court agreed to the extension of time (until 26 October 2001). Costs of that application were awarded to the IBA.
On 22 October 2001 the applicants appealed to the Supreme Court claiming, inter alia, that it was unfair that they had not been awarded costs in respect of the time and effort which went into representing themselves whereas a solicitor representing himself would have been granted costs. On 15 April 2002 the appeal court heard the appeal and reserved judgment. The applicants prepared almost 70 typed pages of an opening statement for the Supreme Court and state that they were allowed to read aloud 9 pages only (which 9 pages included their challenge to the accuracy of the High Court judgment of 29 June 2001).
On 8 May 2002 the Supreme Court delivered its judgment dismissing the appeal finding, inter alia, that, according to relevant case-law, costs could not be recovered by lay litigants since only legal costs which could be measured by the court could be awarded. The court noted that, in the case of solicitors representing themselves, the costs for their professional skill and labour are capable of being measured and, as pointed out in the case-law, it would be absurd to permit a solicitor to employ another solicitor and recover the costs but not permit him to recover costs if he chose to represent himself. On 10 May 2002 the Supreme Court made an order for the costs of that appeal in favour of the IBA.
By summons dated 14 November 2002 and requested by the IBA, the applicants were convoked before the Taxing Master on 24 January 2003 for the examination of the costs of the IBA in successfully defending their appeals against taxation of costs. The Taxing Master refused the applicants’ application for an adjournment and on 28 January 2003 he awarded 77,027.67 euros (“EUR”) to the IBA in respect of the costs of those appeals. The applicants did not appeal against this award.
On 4 July 2003 the IBA informed the applicants that they had registered judgment against their property. On 16 July and 11 August 2003 the applicants sent cheques to the IBA in payment of the costs awarded together with interest and asked the IBA to withdraw the judgments against their property. The IBA requested the applicants to forward the appropriate documentation for the vacation of the judgments and it appears that correspondence has continued thereafter on this question.


ITEMID: 001-75437
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF FODALE v. ITALY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-4;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Corneliu Bîrsan;Egbert Myjer;John Hedigan;Lucius Caflisch;Vladimiro Zagrebelsky
TEXT: 7. The applicant was born in 1947 and lives in Trapani. He is an oil producer.
8. On an unspecified date criminal proceedings were brought against the applicant, who was charged with attempted extortion, attempted arson and arson, and (under Article 416 bis of the Criminal Code) with being a member of a mafia-type criminal association based in Sicily.
9. By an order of 12 July 1999, the Palermo preliminary investigations judge (giudice per le indagini preliminari), considering that there were “substantial indications” of the applicant’s guilt, remanded him in custody. As to the existence of special requirements (esigenze cautelari) justifying his detention pending trial under Article 274 of the Code of Criminal Procedure, the preliminary investigations judge observed that on account of his involvement in a criminal organisation the applicant had contacts which might enable him to reoffend, abscond, or pervert the course of justice. Moreover, given that the applicant had also been charged with the offence provided for under Article 416 bis of the Criminal Code, the requirements referred to in Article 274 of the Code of Criminal Procedure were to be presumed to have been met unless there was proof to the contrary.
10. The applicant appealed against the order of 12 July 1999.
11. By an order of 2 August 1999, the division of the Palermo District Court responsible for reviewing precautionary measures (“the Specialised Division”), finding that the preliminary investigations judge had not correctly assessed the evidence of the applicant’s guilt, set aside the order of 12 July 1999 and ordered the applicant’s release.
12. The public prosecutor’s office appealed on points of law. It alleged in particular that the Specialised Division had given the reasons for its decision in an illogical and contradictory manner.
13. The Court of Cassation set the case down for a hearing on 15 February 2000. No summons to appear was served on the applicant or his lawyer.
14. The hearing was held on the scheduled date.
15. In a judgment of 15 February 2000, the Court of Cassation quashed the order of 2 August 1999, finding it to have been illogical and contradictory. It remitted the case to the Specialised Division, indicating the legal principles to which the Division should adhere.
16. The Specialised Division set the case down for a hearing on 4 April 2000. On that date Mr Oddo sought leave to produce additional evidence. He also argued that the judgment of 15 February 2000 was null and void as he had not been informed of the date of the hearing. He alleged that Article 627 § 4 of the Code of Criminal Procedure, which provided that grounds of nullity that had not been examined previously could not be submitted before the court to which the case was remitted, breached the rights of the defence. Consequently, he requested that the provision in question be waived.
17. The Specialised Division agreed to the inclusion of the new evidence requested by Mr Oddo. Relying on Article 627 § 4 of the Code of Criminal Procedure, it dismissed the objection that the judgment of 15 February 2000 was null and void.
18. On 13 April 2000 the Specialised Division upheld the preliminary investigations judge’s order of 12 July 1999 in respect of two of the charges and set aside the remaining provisions.
19. The applicant was then arrested and remanded in custody.
20. On 15 May 2000 the applicant appealed to the Court of Cassation, again claiming that the judgment of 15 February 2000 was null and void, and alleging that Article 627 § 4 of the Code of Criminal Procedure was unconstitutional and breached the rights of the defence.
21. In a judgment of 11 December 2000, the Court of Cassation, considering that the decision appealed against had been logically and properly reasoned, dismissed the applicant’s appeal on points of law. It considered manifestly ill-founded the objection that Article 627 § 4 of the Code of Criminal Procedure was unconstitutional.
22. In the meantime, in a judgment of 20 July 2000, the Palermo preliminary hearings judge (giudice dell’udienza preliminare) had convicted the applicant. The length of the sentence is not known.
23. The applicant lodged an appeal.
24. In a judgment of 17 May 2001, the Palermo Court of Appeal acquitted the applicant on the ground that he had not committed the offences with which he had been charged (per non aver commesso il fatto).
25. The public prosecutor at the Palermo Court of Appeal lodged an appeal on points of law, which was dismissed in a judgment of 23 May 2002. The applicant’s acquittal thus became final.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4