ITEMID: 001-57468
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF DEUMELAND v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: C. Russo
TEXT: 10. Mr. Klaus Dieter Deumeland, a German national, was born in 1940 and resides in Berlin.
As heir to his mother, who died on 8 December 1976, he continued the proceedings she had commenced before the social courts against the Land, represented by the Berlin Industrial Accident Insurance Office (Eigenunfallversicherung - "the Berlin Insurance Office").
Mrs. Johanna Deumeland applied for a widow’s supplementary pension (Hinterbliebenenrente), claiming that the death of her husband Gerhard on 25 March 1970 had been the consequence of an industrial accident. Coming home on 12 January 1970 from an appointment with an ear-nose-and-throat specialist whom he had consulted on leaving his workplace, he had slipped on a snow-covered pavement, breaking his left thigh-bone. As an employee (Angestellter) of the Berlin City Authorities, he was compulsorily insured against accidents.
11. Represented by her son, Mrs. Deumeland commenced proceedings in the Berlin Social Court (Sozialgericht) on 16 June 1970.
On 18 June 1970, the presiding judge of the competent chamber ordered communication of the originating claim to the defendant, who was given one month to comment on it. On 9 July, the Berlin Insurance Office submitted written pleadings, accompanied by a file on the accident, to which Mr. Klaus Dieter Deumeland replied on 9 September.
Wishing to elucidate certain points, the presiding judge sent a list of questions on 17 September 1970 to the ear-nose-and-throat specialist, who replied in writing on 22 October 1970. On 29 September, the applicant had himself produced a photocopy of a certificate issued by the doctor.
On 8 January 1971, Mr. Deumeland inspected the file on the case but was not allowed to take it away.
He was asked, on 5 February 1971, whether his father’s superiors had spoken to his father about his hearing problem and had asked him to seek treatment in the interests of the service; he replied on 22 February. The Social Court also asked the Berlin Barmer Ersatzkasse to supply certain details; on 24 March, the latter provided a schedule of the periods of incapacity for work.
12. Two days later, the presiding judge gave instructions to the registry for re-submission of the case-file in six weeks’ time. On 11 May 1971, he declared the case ready for hearing. His successor, appointed on 1 June 1971, did likewise on 24 June. A third presiding judge, who was appointed on 1 January 1972, declared the case ready for hearing on 15 March 1972; the same day, he wrote to Mr. Deumeland, who had telephoned on 28 January to ask how matters stood, stating that he could not yet fix a date for the hearing since the chamber’s programme was too full. On 1 April 1972, the case was transferred to a newly-established chamber. On 26 June 1972, its presiding judge declared in turn that the case was ready for hearing; on 21 September 1972, he decided that the oral proceedings should open on 25 October. In a memorandum dated 16 June and received on 26 June, the applicant had requested that a date be fixed for the hearing and that it be held in a court-room sufficiently large to accommodate members of the public, since he expected students, whom he would be lecturing in the autumn and winter, to attend.
13. At the close of the hearing, the Social Court rejected Mrs. Deumeland’s claim, holding that the accident in question had been neither an industrial accident nor an accident on the way to or from work within the meaning of sections 548 (1), first sentence, and 550 (1) of the Reich Insurance Code (Reichsversicherungsordnung).
On 26 October 1972, the Social Court sent the parties a copy of the record of the previous day’s hearing, including the operative provision of the judgment. On 7 December 1972, Mr. Deumeland received the full text of the judgment, which was six pages long.
14. In June 1970, when Mrs. Deumeland brought her action, the Berlin Social Court had two chambers responsible for dealing with industrial-accident insurance claims. Three further chambers were set up in October 1970, January 1971 and April 1972.
According to statistics supplied by the Government, the number of such claims pending was 713 at the end of 1969, 778 at the end of 1970, 766 at the end of 1971 and 668 at the end of 1972. As far as the chamber hearing Mrs. Deumeland’s action was concerned, there were 324 cases on its pending list on 1 January 1972.
15. Mrs. Deumeland appealed against the judgment on 23 November 1972.
On 4 December, the Social Court sent the case-file to the Berlin Social Court of Appeal (Landessozialgericht), where Mr. Deumeland inspected it on 10 January 1973.
Having been asked on 21 February 1973 to state his reasons for appealing, the applicant submitted his arguments on 12 March; the defendant replied on 19 April 1973. On 24 April, the presiding judge of the chamber directed that this reply be communicated to Mr. Deumeland for information and comment.
16. Judge Matuczewski was appointed reporting judge on 25 April and declared, on 28 May 1973, that the case was ready for hearing; the presiding judge confirmed this on the following day.
On 13 July 1973, Judge Matuczewski asked the Charlottenburg District Authority (Bezirksamt) to send him the personal file on Mr. Deumeland’s father, which was received on 6 August.
On 23 July, he set the case down for hearing on 14 August 1973.
On the day before the hearing, the applicant filed further written pleadings, seeking for his mother a death grant (Sterbegeld) as well as a widow’s pension (see paragraph 10 above).
17. On 14 August 1973, the Appeal Court dismissed the appeal: it had been unable to establish, on a sufficient balance of probability, any causal link between Mr. Deumeland Senior’s visit to a doctor and his employment by a public authority.
After telephoning the registry six days later, the applicant was immediately sent a copy of the record of the hearing and, on 14 September 1973, a copy of the judgment, which was eleven and a half pages long.
On 17 September, he asked the Appeal Court to rectify the statement of facts, but the Court refused his request on 15 October 1973. This decision was communicated to the applicant on 27 October and also provoked a request for rectification, which the presiding judge of the third chamber rejected on 29 October 1973.
18. On 2 October 1973, the applicant’s mother entered an appeal on points of law (Revision) to the Federal Social Court (Bundessozialgericht) and this was registered on 11 October 1973. She also asked for extension of the time-limit for submission of supplementary written pleadings, since the Berlin Social Court of Appeal had not yet decided on the request for rectification (see paragraph 17 above).
The file was dispatched on 5 November 1973 and reached the Federal Social Court on 7 November. The previous day, Mr. Deumeland had asked for a further extension of the time-limit so that he could consult the document supplied by the Charlottenburg District Authority (see paragraph 16 above).
19. The applicant filed written pleadings on 13 November 1973. The following day’s date was affixed to the document by the Court, which sent it to the defendant with two months to reply.
On 7 December 1973, Mr. Deumeland wrote to ask what action had been taken on his written pleadings of 13 November and his request of 6 November. Judge Küster replied by letter of 13 December 1973 that the written pleadings had been received, but a regrettable error in the registry had delayed examination of the request.
20. In the meantime, the presiding judge of the second chamber had, amongst other things, ordered the transmission of the case-file to the Berlin Social Court and asked the Berlin Insurance Office and the Land Administrative Authority (Verwaltungsamt) to send certain documents directly to the court, so that Mr. Deumeland could study them.
When informed that various files were open to him, Mr. Deumeland told the Social Court, on 17 December 1973, that he would inspect them after Christmas, since the documents to be furnished by the Berlin Insurance Office had only been obtained that afternoon. He consulted the files on 4 January 1974.
21. An order was made on 14 January 1974, giving the defendant until 20 March to submit its arguments (see paragraph 19 above). These were filed at the Federal Social Court on 4 February.
On 5 February, the reporting judge decided to transmit them to Mr. Deumeland. Mr. Deumeland requested, on 1 July 1974, that a date be fixed for the hearing, preferably 6 December 1974, and the judge wrote to him on 4 July, stating that the chamber’s workload made it impossible to say when this decision would be taken and that he had noted the applicant’s wish to consult the case-file on 5 or 6 December.
On 4 December 1974, the applicant inspected the file in Kassel, seat of the Federal Social Court.
22. On 22 January 1975, Mr. Deumeland challenged Judge Küster, whom he suspected of delaying the proceedings. Judge Küster rejected the allegation of partiality in a declaration dated 31 January. The applicant, who was entitled to submit observations on this point up to 21 February 1975, repeated his allegations by letter on 15 February. In a decision adopted on 20 February and notified on 28 February, the second chamber of the Federal Social Court dismissed the challenge.
On 25 February 1975, Judge Küster, replacing the presiding judge, set the case down for hearing on 13 March.
23. As soon as the hearing began, Mr. Deumeland challenged Judge Küster. The sitting continued with Judge Friedrich presiding. Having heard Judge Küster and deliberated, the chamber rejected the application. Under the presidency of Judge Küster and with the same membership, it proceeded with examination of the case. On the same day, it set aside the decision of the Berlin Social Court of Appeal and referred the case back to that Court on the ground that Mrs. Deumeland’s case had not been given a proper legal hearing.
Notice of the record of the hearing, of the decision on the challenge and of the judgment, which was fourteen and a half pages long, was given on 15 May 1975.
24. On 16 May 1975, the Federal Social Court transmitted to the Social Court of Appeal authentic copies of the judgment and the decision of 13 March, as well as the files of the Social Court, the Social Court of Appeal and the Charlottenburg District Authority. On 6 June 1975, it sent the Social Court of Appeal the documents relating to the appeal on points of law, specifying 1 May 1977 as the date for the return of those documents.
25. In written pleadings dated 17 May 1975 and received on 26 May, Mr. Deumeland challenged Judge Matuczewski for partiality; he held Judge Matuczewski responsible for the defect found by the Federal Social Court (see paragraph 23 above), complaining that the judge had asked for documents without his mother’s knowledge and had arranged for the disappearance of a photocopy produced at the hearing on 14 August 1973 (see paragraph 17 above). He also requested police intervention, if that proved necessary, and supervision of the challenged judge’s access to the case-file.
On 27 May 1975, the presiding judge of the third chamber of the Berlin Social Court of Appeal transmitted the pleadings to the President of the Court, who contacted the Bar Association.
On 29 May 1975, he requested that the case-file be sent to the Berlin Labour Court (Arbeitsgericht), which had, on 29 March 1971, granted Gerhard Deumeland entitlement to a special bonus for twenty-five years of service.
26. By order dated 3 June 1975, the presiding judge directed the applicant to tell him which documents he had submitted on 14 August 1973 (see paragraph 17 above): if these were photocopies, he could be presumed to have the originals. The applicant replied on 16 July 1975 that he could supply no further information. The presiding judge reminded him on 12 August 1975 that he had, according to his written pleadings of 12 November 1973 to the Federal Court, supplied a copy of one of the Court’s judgments, and asked him to confirm this. He also invited him to reconsider his applications of 17 May 1975 (see paragraph 25 above) and, if he wished to uphold his challenge, to state his reasons.
27. In the meantime, the parties had been notified that the case-file had been received from the Berlin Labour Court and the defendant had inspected it on 16 July 1975.
28. On 28 August 1975, the public prosecutor’s department attached to the Berlin Court of Appeal (Kammergericht) asked the Social Court of Appeal to send it the case-file. This was received on 12 September 1975 and returned on 18 September.
29. In written pleadings dated 9 September 1975 and received on 15 September, Mr. Deumeland explained why he challenged Judge Matuczewski.
30. On 6 January 1976, the presiding judge appointed Judge Brämer reporting judge and asked him to ascertain whether the case was ready for hearing.
On 12 January 1976, Judge Brämer wrote to the administrative authorities of the Land, asking them to transmit to him any documents in their possession concerning Mr. Deumeland Senior. He forwarded copies of this letter to the parties for information and asked the applicant whether he would consent to the case-file’s being communicated to the Barmer Ersatzkasse.
Mr. Deumeland objected to this on 23 January 1976, arguing that the Barmer Ersatzkasse should be joined as a third party; he also enquired what measures had been taken to prevent Judge Matuczewski from having access to the case-file. The judge wrote on 26 January, asking him why he wished such a joinder and pointing out that Judge Matuczewski was no longer acting as reporting judge in the case. In the absence of any reaction from Mr. Deumeland, the judge wrote a further letter on 22 March 1976. The applicant replied on 21 April that he refused to comment on this point before the filing of the defendant’s written pleadings. Under an order issued on 28 April 1976, a copy of this letter was sent for information to the defendant.
In the meantime (26 January 1976), the Land administrative authorities had indicated that they had no documents relating to Mr. Deumeland’s father, apart from the personal file which they had already produced. By decision of the judge, taken on 30 January 1976, their letter was communicated to the parties for information.
31. On 8 June 1976, the applicant’s mother personally complained to the presiding judge of the third chamber, alleging that photocopies had been made of documents in the case-file for transmission to a third party. The president denied this by letter on 23 June; he explained, however, that the case-file had been passed to the public prosecutor’s department in execution of a request for the taking of evidence on commission (see paragraph 28 above). On 29 June 1976, Mrs. Deumeland declared that communication of the case-file in this way was improper. The reporting judge forwarded this second letter to the presiding judge of the chamber, but since the latter was away on holiday the case-file came before the deputy presiding judge, Judge Matuczewski, who, being subject to challenge (see paragraph 25 above), felt unable to deal with the matter. Considering that the letter required no action, the reporting judge ordered re-submission of the case-file to the presiding judge on his return from holiday.
In a letter dated 14 July 1976 and received on 26 July, the public prosecutor’s department attached to the Berlin Regional Court (Landgericht) asked for the case-file. This was dispatched on 29 July in accordance with an order issued on 27 July, and was returned on 9 December 1976.
32. On 28 July 1976, Mr. Deumeland visited the Social Court of Appeal, wishing to remove the case-file and study it. The reporting judge allowed him only to inspect it on the spot.
33. On 4 August 1976, the applicant challenged Judge Brämer. On 6 August, the presiding judge of the third chamber replied that the chamber could not take a decision on this matter for the time being, since the case-file was with the public prosecutor’s department attached to the Regional Court. Judge Brämer was invited on 16 December 1976 to submit observations, and did so on 20 December. On 20 June 1978, the third chamber rejected the challenge against this judge, as well as the challenge against the presiding judge, Judge Arndts (see paragraphs 35, 36 and 37 below).
34. On 4 November 1976, Mr. Deumeland filed written pleadings.
On 8 November, the presiding judge ordered that the case-file be re-submitted on its return (see paragraph 31 above).
In a letter dated 3 December 1976 and received on 9 December, the applicant stated, inter alia, that he would continue to appear in the proceedings, but not as counsel. The president replied on 4 January 1977.
35. Three days later, the Land administrative authorities informed the Social Court that Mrs. Deumeland had died on the night of 7 to 8 December 1976. The presiding judge of the chamber asked the applicant, on 18 January 1977, whether he wished to pursue the case; the applicant replied, on 20 January, that he did so wish. Since he also challenged the presiding judge, Judge Arndts, the case-file was passed to Judge Sander, who requested the applicant on 28 January to produce a certificate of heredity.
On 22 February 1977, Mr. Deumeland pointed out that, as an only son, he was his mother’s sole heir and was thus not obliged, in the absence of property and a will, to bring proceedings to obtain a certificate. On 25 April 1977, Judge Sander wrote to inform the applicant that he could claim succession if he had been living in the same house as his mother at the time of her death, but that he would have to produce evidence of this. The applicant confirmed by letter on 21 June 1977 that he had in fact lived with his mother, and referred to an attestation by a neighbour.
36. On 25 February 1977, Judge Sander asked Mr. Deumeland to give reasons for his challenge of the presiding judge, Judge Arndts, and told him that he would take a decision with two members of the eleventh chamber. The applicant wrote on 8 March - his letter was received on 14 March - asking the names of these two other judges; Judge Sander replied that there was no way of knowing their names in advance. On 24 March 1977, he forwarded the case-file to the presiding judge of the third chamber, asking him to comment on the challenge. In a memorandum dated 7 April 1977, the judge rejected the allegations of partiality made against him. In an order dated 19 August 1977, the third chamber dismissed the challenge.
After receiving the order, Mr. Deumeland telephoned the Social Court of Appeal on 4 October, demanding correction of the heading, which referred to his professional status as a lawyer; he renewed his demand in writing on 28 December 1977 and again on 27 April 1978, on which date he also asked when the case would be set down for hearing. On 5 May 1978, the presiding judge of the third chamber replied that the Berlin Bar Association, which he had consulted on 2 January 1978, had confirmed on 6 February that the applicant was a member of the Bar. He requested the applicant to comment on this point.
37. On 31 May 1978, Mr. Deumeland again challenged the presiding judge, Judge Arndts, complaining that he had contacted the Bar Association without his knowledge. In a memorandum dated 7 June 1978, the judge rejected any accusation of partiality. By order dated 20 June 1978, the third chamber dismissed the challenge, as well as the challenge of Judge Brämer (see paragraph 33 above).
38. On 10 July 1978, the Federal Social Court enquired when judgment was likely to be given and was told that it might be given in October 1978.
39. Two weeks later, the reporting judge, considering the case ready for hearing, forwarded the case-file to the presiding judge. The case was registered as such on 25 July.
40. On 6 September 1978, the presiding judge fixed 17 October as the date for the opening of the oral proceedings.
With this in view, Mr. Deumeland submitted written pleadings dated 16 October. At the hearing, he stated that his challenge of Judge Matuczewski had become devoid of object (see paragraph 25 above). Deliberating immediately after the hearing, the chamber decided that further information was required (Sachaufklärung).
On 23 October 1978, the court summoned the Barmer Ersatzkasse to appear; in addition, the reporting judge asked the Charlottenburg District Authority to comment on four points which concerned the state of health of Mr. Deumeland Senior at the time of the accident and which seemed to require elucidation. A reminder was sent on 12 December 1978, and the said authority replied the same day with a letter, dated 30 November, accompanied by appendices. On 13 December 1978, the presiding judge decided to send a copy of this to the parties. The reporting judge transmitted the case-file to him: he considered the case ready for hearing but thought that two witnesses should be heard as a precaution.
41. On 15 December 1978, the presiding judge set the case down for hearing on 16 January 1979 and summoned the witnesses to appear on that date.
The Social Court of Appeal delivered judgment at the close of the hearing: it declared the appeal inadmissible as regards the death grant and unfounded as regards the widow’s pension. It refused leave to appeal on points of law.
On 21 February 1979, Mr. Deumeland expressed surprise that he had still not received the text of the judgment. The reporting judge replied by letter on 27 February that the text had been drawn up. The applicant received a copy on 15 March 1979; the text was sixteen pages long.
42. On 16 March 1979, Mr. Deumeland appealed against the decision refusing him leave to appeal (Nichtzulassungsbeschwerde); his appeal, posted in East Berlin, reached the Federal Social Court on 25 March.
On 27 March 1979, the Federal Social Court asked the Berlin Social Court of Appeal to forward it the case-file, which arrived on 11 April.
In a letter dated 21 April, again posted in East Berlin and received on 25 April, Mr. Deumeland sought a one-month extension of the time-limit for submission of written pleadings. On 26 April, the presiding judge extended the time-limit to 15 June 1979.
On 28 May 1979, the applicant visited the registry of the second chamber of the Federal Social Court, where he inspected the files of the Federal Court and of the Court of Appeal.
43. On 13 June 1979, he submitted supplementary written pleadings, which the reporting judge transmitted to the defendant on the same day. The defendant replied on 4 July, enclosing with its observations a file on the accident.
On 5 July 1979, the reporting judge directed that the counter-pleadings and their appendix be communicated to Mr. Deumeland and to the Barmer Ersatzkasse (see paragraph 40 above).
The following day, the Barmer Ersatzkasse lodged its administrative file and stated that it did not intend to comment on the appeal. On 9 July, the reporting judge ordered the communication of this statement to the two parties. He scheduled a further submission of the case-file for 1 September.
On 19 November 1979, the Charlottenburg District Authority and the Berlin Labour Court were asked to submit files. The Charlottenburg Authority replied on 29 November that, for reasons of competence, it had passed the request on to the Land Administrative Authority. After a reminder had been sent to the latter on 21 December 1979, the file was received at the Federal Social Court on 2 January 1980. The file requested from the Labour Court had been lodged on 30 November 1979.
In a letter dated 1 April 1980, the reporting judge notified Mr. Deumeland that the documents requested had been received and that the chamber expected to give a decision in June-July 1980.
On 11 June 1980, the applicant inspected the case-file in Kassel. On 3 June, he had written complaining that the personal file on his father was incomplete.
This letter was received on 10 June and forwarded the following day to the defendant, who was entitled to submit observations. The court sent the defendant a reminder on 16 July 1980; on 12 August, it set the defendant a time-limit until 1 September for the lodging of observations.
On 19 August 1980, the defendant produced new documents provided by the Charlottenburg District Authority. It specified that since the Land authority probably possessed further documents, it had asked for these and would forward them as soon as they were received. Its letter was sent to the parties the following day.
On 2 September 1980, the defendant produced certain documents, which the reporting judge ordered on 9 September to be communicated to the parties.
On that day, Mr. Deumeland visited the registry of the second chamber and was given permission to inspect the file on the premises. He did not, however, do so.
44. The Federal Social Court dismissed Mr. Deumeland’s appeal on 11 December 1980. In its judgment, which was nine pages long, it ruled that his procedural complaints were partly unfounded and partly inadmissible; and that, furthermore, the case raised no issue of general interest (grundsätzliche Bedeutung).
In a letter dated 18 December 1980, the applicant unsuccessfully contested this decision, which had been notified to him the day before.
45. On 23 December 1980, Mr. Deumeland referred the case to the Federal Constitutional Court (Bundesverfassungsgericht) and, on 3 January 1981, submitted supplementary written pleadings. He complained that the Federal Social Court had refused him access to the files; that its decision of 11 December 1980 had taken him by surprise; that it was aware that the lower court judges lacked the requisite personal and objective independence; and that it had been mistaken in holding that the case raised no issue of general interest. On 9 February 1981, the Federal Constitutional Court decided not to entertain the complaint, since, even assuming it to be admissible, its chances of succeeding were insufficient.
46. On 10 March 1981, the Berlin Social Court of Appeal registered an application from Mr. Deumeland, dated 25 February, to have the proceedings re-opened (Wiederaufnahme des Verfahrens). It rejected this application on 6 August 1981, after a hearing which had also dealt with challenges of various judges, and fined Mr. Deumeland 800 DM for bringing vexatious proceedings (mutwillige Prozessführung).
47. On 23 November 1981, the Federal Social Court rejected the appeal on points of law which the applicant had brought against the latter judgment.
48. The German social security system is principally governed by the Reich Insurance Code (Reichsversicherungsordnung), which covers sickness, accident and old-age insurance. Dating from 1911, it is rooted in laws passed between 1883 and 1889. Subsequently, social protection was extended by legislation to new categories of person and of risk.
49. In the Federal Republic of Germany, everyone employed on contract (die auf Grund eines Arbeits-, Dienst- oder Lehrverhältnisses Beschäftigten) by private firms or a public authority is compulsorily insured against industrial accidents (section 539(1)(1) of the Reich Insurance Code). Civil servants (Beamte) are in a different position and are covered by the Federal, Land or local authority regulations, depending on their employer.
50. Employees who are not civil servants are very broadly protected against industrial accidents, and are not obliged to prove fault, to bring legal proceedings or to suffer the consequences of an employer’s insolvency. The victim - or his beneficiaries (sections 589 and 590 of the Reich Insurance Code) - receive the benefits specified in section 547 (allowances, pensions, etc.), even when the victim was partly responsible for the accident. He only loses his rights if he has caused the accident intentionally.
The notion of industrial accidents, defined in section 548 of the Code, includes accidents on the way to or from work (section 550).
51. Employees (who are not civil servants) do not contribute to the accident insurance scheme, which is wholly financed by employers (section 723 of the Code). The amount of their contributions depends essentially on the salaries of the persons covered and on the likelihood of accidents (section 725(1)).
52. For employees of private firms, the bodies (Träger) responsible for insurance against industrial accidents are the occupational associations (Berufsgenossenschaften); employees in the public sector are covered by the Federation, the Länder, the local authorities or the Federal Labour Office (Bundesanstalt für Arbeit), as the case may be (sections 646-657 and 767 of the Code). Every occupational association has a compulsory membership extending to all undertakings, including those in the craft sector, whose activities are carried on in the same economic field and whose company or trading centre is based in the association’s catchment area.
53. In Berlin, Land employees are covered by the Industrial Accident Insurance Office (Eigenunfallversicherung), a public body directly controlled by the Land authority. Its funds come chiefly from a sum included annually in the Land budget and otherwise from contributions paid by certain public concerns.
54. Under German law, disputes concerning application of the social security legislation are decided by specialised courts. There are three levels of jurisdiction: the Social Courts (Sozialgerichte), the Social Courts of Appeal (Landessozialgerichte) and the Federal Social Court (Bundessozialgericht) (Article 96 of the Basic Law; Social Courts Act 1953 - Sozialgerichtsgesetz). These courts are empowered to review all decisions taken in this field by the administrative authorities and contested by those concerned. The relevant procedure is very similar to that before the administrative courts.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82088
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: RASETA v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Branko Rašeta, is a Croatian citizen who was born in 1954 and lives in Karlovac. He was represented before the Court by Mr M. Reškovac, a lawyer practising in Karlovac. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born in 1954 and lives in Karlovac.
The applicant’s mother was a holder of a specially protected tenancy on a flat in Karlovac, owned by a public company, Croatian Post and Telecommunications (Hrvatska pošta i telekomunikacije). On 3 June 1991 Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulates the sale of publicly owned flats previously let under a specially protected tenancy. On the basis of that Act, on 21 March 1994 the applicant’s mother requested the owner of the flat to conclude a contract for the sale of the flat between the owner as the seller and herself as the buyer. Since the owner declined her request, the applicant’s mother brought a civil action in the Karlovac Municipal Court (Općinski sud u Karlovcu) seeking a judgment in lieu of the contract of sale.
On 12 June 1995 the Karlovac Municipal Court gave a judgment by default. However, on an application by the defendant, the judgment was set aside and the proceedings continued. On 14 July 1998 the Municipal Court gave a fresh judgment in place of the contract of sale. The defendant appealed against the first-instance judgment and the case file was forwarded to the Karlovac County Court (Županijski sud u Karlovcu). During the appellate proceedings the applicant’s mother died. Subsequently, on 17 February 1999, the appellate court quashed the first-instance judgment on the ground that the plaintiff had died. The applicant took over the proceedings from his deceased mother.
The Karlovac Municipal Court on 24 May 2001 dismissed the applicant’s claim, finding that he did not fulfil the conditions for buying the flat in question. The relevant part of the judgment reads as follows:
“Section 135 of the Inheritance Act provides that the deceased’s assets are ex lege transferred to his or her heirs at the time of the death. Since at the time of Marija Rašeta’s death on 7 February 1999, she was not the owner of the flat in question because a contract of sale had not been concluded beforehand and the judgment replacing such a contract had not become final, her heir could not have inherited the ownership of the flat in question. In other words, the plaintiff Branko Rašeta would be in a position to realise his inheritance and property rights on the flat in question only if the deceased, Marija Rašeta, had concluded a contract of sale or if a final judgment replacing such a contract had been adopted.
Furthermore, under the Specially Protected Tenancies (Sale to Occupier) Act, the right to purchase a flat is vested in the occupier and is a personal right which cannot be transferred to heirs within the meaning of section 2 of the Inheritance Act (Official Gazette nos. 52/1971 and 47/1978) and is linked to the tenancy right, which likewise cannot be inherited.
It follows that Branko Rašeta, as an heir of Marija Rašeta, who had submitted a request to purchase the flat, is not allowed to continue these proceedings.
Branko Rašeta’s allegation that as a member of [his mother’s] household he has an independent right to purchase the flat under section 6 of the Specially Protected Tenancies (Sale to Occupier) Act is deemed unfounded by the court.
Without examining the question whether the plaintiff has the status of a member of [his mother’s] household, the court has established that he does not have and cannot have his mother’s consent because it has been established that Marija Rašeta herself made a request to purchase the flat in question and that she died during the appellate proceedings against this court’s judgment dismissing her claim.
Under section 6 of the Specially Protected Tenancies (Sale to Occupier) Act, a member of [the tenant’s] household has the right to purchase a flat with the tenant’s consent. Finding it established that the plaintiff does not have such consent, the court sees no need to establish his status as a member of [his mother’s] household because these two conditions have to be fulfilled cumulatively. Bearing in mind this legal characterisation of the dispute at issue, the court declined to hear further witnesses on behalf of the plaintiff ... who were to testify as to whether the plaintiff had lived in the same household as Marija Rašeta.”
On a subsequent appeal by the applicant, the Karlovac County Court upheld the first-instance judgment on 17 October 2001. The relevant part of the appellate judgment reads as follows:
“Contrary to the appellant’s submissions, under [the relevant] provisions of the Specially Protected Tenancies (Sale to Occupier) Act, the right to purchase a flat is a personal tenant’s right that cannot be inherited or transferred to a heir within the meaning of section 2 of the Inheritance Act because it is linked to the tenancy right, which likewise cannot be inherited. Therefore, the legal heir of the plaintiff, Branko Rašeta, does not have the right to purchase the flat in question, cannot inherit it and cannot continue these proceedings and obtain a judgment replacing the contract of sale, as found by the court of first instance. Furthermore, the first-instance court correctly applied section 6 of the above-mentioned Specially Protected Tenancies (Sale to Occupier) Act, under which the right to purchase a flat is vested in a member of the [tenant’s] household with the tenant’s consent. Since the plaintiff herself submitted a request [to purchase the flat] as the tenant and thus expressed her choice, her son as a member of her household does not have this right. Therefore, [the first-instance court] correctly decided not to hear evidence concerning his status as a member of [his mother’s] household.”
In his subsequent constitutional complaint the applicant argued, inter alia, that his right to a fair hearing had been violated, as well as his property rights. On 27 October 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s complaint. In so far as relevant, the decision of the Constitutional Court reads as follows:
“The applicant’s allegations of a violation of Article 29 of the Constitution are unfounded. In the proceedings before the Constitutional Court this court has not established any facts or circumstances indicating a violation of the constitutional right to a fair trial. In the disputed situation the judgments were adopted by courts established by law which acted within their competence, also established by law. The documents submitted about the civil proceedings in question show that the first-instance court conducted the proceedings and heard evidence in accordance with the need to establish relevant facts, while the appellate court entirely and thoroughly addressed the applicant’s submissions.”
The Specially Protected Tenancies (Sale to Occupier) Act (Official Gazette nos. 27/1991, 33/1992, 43/1992, 69/1992 25/1993, 26/1993, 48/1993, 2/1994, 44/1994, 47/1994, 58/1995, 11/1996, 11/1997 and 68/1998) regulates the conditions for the sale of flats let under specially protected tenancies. In general, the Act entitles the holder of a specially protected tenancy on a publicly owned flat to purchase it under favourable conditions of sale.
The relevant provisions of the Act provide as follows:
“Every holder of a specially protected tenancy (hereinafter ‘the tenant’) may submit a written application to purchase a flat to the ... owner (hereinafter ‘the seller’) ... and the seller shall be obliged to sell the flat.
...”
“The right to buy a flat shall be vested in the tenant and, with his consent, the members of his household ...
...
The consent referred to in paragraph 1 of this section shall be given in the contract (of sale) or in a separate document in which the signature must be certified. In the event of its refusal, the issue of consent shall be assessed in judicial proceedings.”
“The seller shall be obliged to draw up a contract (of sale) with the buyer at the latest within 60 days after the buyer has made an application to this effect.
If the seller refuses to draw up a contract at the buyer’s request within the time-limit laid down in paragraph 1 of this section, the buyer may institute judicial proceedings seeking a judgment in lieu of the contract of sale.”


ITEMID: 001-22092
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BEN SALAH ADRAQUI and DHAIME v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants [Mrs Habida Bent Abderrahmane Ben Salah Adraqui, Mr Jamal Dhaime, Mr Tarik Dhaime, Mr Bedrine Dhaime and Mr Hakime Dhaime] are Moroccan nationals who were born in 1948, 1963, 1969, 1971 and 1972 respectively and live in Roche-la-Molière (France). They were represented before the Court by Mr F. Puchol-Quixal y de Antón, a lawyer practising in Valencia (Spain).
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 August 1987 the first applicant’s husband, who was the father of the other applicants, died when he was knocked down by a motor vehicle in a road accident.
The traffic police investigated the accident and heard evidence from witnesses, including the second applicant – the victim’s son – who had given his address in France. However, the record of his statement to the judge did not include that piece of information, indicating merely that he had no fixed address in Spain.
The Fuengirola (Málaga) investigating judge opened a criminal investigation. In a decision of 27 August 1987 he ruled that the facts did not disclose the commission of a major offence (delito) but, being of the view that a minor offence (falta) might have been committed, forwarded the case file to the appropriate district judge (juzgado de distrito).
On 22 January 1988 the Fuengirola district judge set the case down for trial on 18 March 1988. The applicants were summoned to the hearing by means of a notice published in the Official Gazette of the province of Malaga. As they lived in France, they were unaware of the summons. The public prosecutor appeared in court and submitted that the defendant should be acquitted.
In a judgment of 21 March 1988 the district judge acquitted the driver of the vehicle responsible for the accident, on the ground that there was insufficient evidence to establish his guilt. On 12 October 1988 the judgment was published in the province’s Official Gazette. The applicants were not informed of the judgment.
The applicants received no news of the proceedings and, after enquiring about the case reference, applied in writing on 13 November 1990 to be treated as parties to the proceedings and to be informed of their progress. On 27 November 1990 the district judge refused their application, on the ground that the proceedings had been terminated on 26 October 1988 (the judgment delivered on 21 March 1988 having subsequently become final as no appeal had been lodged).
The applicants lodged an application to set aside (recurso de reforma) and, in the alternative, an appeal, seeking to have the impugned judgment declared null and void under section 240 of the Judicature Act.
In a decision of 1 February 1991, served on the applicants on 6 February 1991, the Fuengirola investigating judge (who had inherited the duties of the former district courts) dismissed the application to set aside and found against the applicants, but he did, however, inform them, as regards the proceedings in connection with the minor offence of negligence causing the death of a member of their family, that hearings had been held, the defendant had been acquitted by the district judge on 21 March 1988, notice of that judgment had been given through its publication in the Official Gazette, the judgment had become final on 26 October 1988 and the proceedings had been terminated. The judge informed the applicants of their right to inspect the material in the file and directed that they should be sent copies of the documents they had requested. The appeal lodged in the alternative was also dismissed, pursuant to Article 217 of the Code of Criminal Procedure, as the law made no provision for such a remedy.
On 20 March 1991, 30 March 1993 and 21 September 1994 the applicants sought enforcement of the decision of 1 February 1991, and on 8 November 1994 they received a copy of the case file.
On 9 November 1994 the applicants lodged an appeal, seeking to have the proceedings that had taken place after the case had been set down for trial by the Fuengirola district judge declared void under section 240 of the Judicature Act. In a decision of 11 November 1994 the Fuengirola investigating judge ruled that the appeal was inadmissible, as the judgment appealed against had become final, “albeit without prejudice to the appellants’ right to apply to have the proceedings declared void by means of the appropriate procedure”.
On 2 December 1994 the applicants accordingly lodged an appeal with the Constitutional Court (recurso de amparo), alleging that there had been a breach of Article 24 of the Constitution (right to a fair trial).
Crown Counsel submitted that their amparo appeal should be allowed on the ground that the investigating judge had not made any attempt even to ascertain the address of the victim’s son who had made a statement, had not sought to trace the addresses of the other members of the victim’s family, and had not tried to keep the applicants informed of the proceedings in issue by any other means. He invited the Court to quash all the steps in the proceedings after the parties had been summoned to attend the trial.
In a judgment of 22 January 1995, however, the Constitutional Court dismissed the appeal as being out of time, pointing out that by section 44(2) of the Constitutional Court Act, the amparo appeal should have been lodged within twenty days of the service of the investigating judge’s decision of 1 February 1991, in which the applicants had been informed of the course of the proceedings since the trial and of the defendant’s acquittal, the notice given of the judgment through its publication in the Official Gazette, and the fact that the judgment had become final and the proceedings had been terminated.
The Constitutional Court referred to its settled case-law, according to which the time allowed for lodging an amparo appeal began to run at the point when those persons who should have appeared as parties to the proceedings in the ordinary courts had had sufficient notice of the existence and content of the judgment which they wished to challenge; that notice coincided with the service of the judgment. In the instant case, the relevant point in time had occurred on 6 February 1991, when the decision of 1 February 1991 had been served on the applicants. In spite of the content of that decision, which had informed them of the course of the proceedings, of the defendant’s acquittal, which had subsequently become final, and of the termination of the proceedings, the applicants had asked to inspect the case file and – after admittedly unjustifiable delays – had been sent the relevant documents and had then appealed against the acquittal, six years after it had become final.
The Constitutional Court emphasised that by the time the applicants – assisted by a lawyer – had finally applied to it to protect their constitutional rights, their right of appeal had already lapsed. It added that they should have lodged an amparo appeal within the statutory period of twenty days from the date on which they had been informed of the existence and content of the judgment which had brought the proceedings in the ordinary courts to an end. Submitting an application to set aside once a judgment had already become final neither extended the time allowed by section 44(2) of the Constitutional Court Act for lodging an amparo appeal nor caused time to cease to run for that purpose. Nor could it be left to the appellants to determine the terminus a quo for themselves as they pleased.
Without excusing or justifying the district judge’s lack of diligence, the Constitutional Court held that in view of its special nature as a remedy, the appeal should be dismissed as being out of time, but also drew attention to the remedies available for rectifying irregularities or malfunctions in the system of justice, noting that the facts of the case might “provide an effective basis on which to seek redress for non-pecuniary damage sustained and compensation for the malfunctioning of the criminal-justice system”.
“1. All contentions that proceedings should automatically be declared void or that formal irregularities have occurred in procedural steps such that conditions essential for the fulfilment of their purpose have not been satisfied or such that a defence effectively becomes impossible shall be raised by means of the appeals provided by law against the decision in question or by the other means laid down in procedural laws.
2. Without prejudice to the foregoing provisions and proprio motu, a judge or court may, before a final decision has been issued, declare void all or some of the steps in the proceedings, provided that no compensation is payable and that the parties have been consulted.”


ITEMID: 001-23729
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: GEFFRE v. FRANCE [Extracts]
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr C. Geffre] is a French national, who was born in 1932 and lives in La Rochelle (departement of Charente-Maritime). He was represented before the Court by Ms E. Rabesandratana, of the Rochefort Bar. The respondent Government were represented by their agent, Mr R. Abraham.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1974 the applicant acquired parcels of land subject to a prohibition on building in the administrative district (commune) of La-Flotte-en-Ré on the Île de Ré (Charente-Maritime). The applicant used the land for caravanning.
By a ministerial order issued on 23 October 1979, the whole of the Île de Ré was included in the list of monuments and places of interest whose conservation or preservation was in the public interest from the artistic, historic, scientific, legendary or scenic point of view, in accordance with section 4 of the Law of 2 May 1930 on the conservation of natural monuments and places of interest, as amended.
The order was published in two newspapers distributed in the administrative districts concerned: Le Phare de Ré (on 26 December 1979) and the daily Sud-Ouest (on 2 January 1980). It was republished in the 2 January 1980 edition of the former and the 9 January 1980 edition of the latter. The order was also displayed in La-Flotte-en-Ré town hall on 14 December 1979 and published in the Recueil des actes administratifs du département de la Charente-Maritime (Collection of Administrative Decisions of the département of Charente-Maritime) (no. 2 of 15 January 1980).
One of the consequences of listing was to render Article R443-9 of the Town Planning Code applicable to the entire island. That provision made it illegal to camp or to park a caravan other than on authorised campsites or to create campsites on listed places of interest unless an exemption had been granted under sub-paragraph 2 of the Article.
On 3 July 1996 the rural police officer of La-Flotte-en-Ré reported the applicant for illegally parking caravans.
The applicant was summoned to answer the charges in the La Rochelle Criminal Court. He argued that the proceedings were unlawful, as he had not received individual notification of the listing order and the interference with his right of property was disproportionate. In a judgment of 7 August 1997, the Criminal Court rejected the applicant's submission that the proceedings were unlawful, holding that there was no requirement for individual notification under section 4 of the Law of 2 May 1930 and Articles 2 and 7 of the decree of 13 June 1969. It further found that the restriction placed on the applicant's use of the land arose from a public easement that had been created in the general interest and which accordingly did not contravene Article 1 of Protocol No. 1. It found the applicant guilty of parking two caravans on his land, contrary to Articles L443-1, L480-4, L480-5, L480-7, R443-2 and R443-9 of the Town Planning Code. The applicant was ordered to pay a fine of 3,000 French francs (FRF) and to reinstate the land within one month, an additional penalty of FRF 50 being imposed for each day's delay. The Criminal Court ordered publication of the judgment.
The applicant appealed against that decision and the public prosecutor lodged a cross appeal. The applicant argued, firstly, that his prosecution was unlawful, as he had not received individual notification of the decision to designate the land, even though such notification was necessary before criminal proceedings could be brought according to an explanatory circular that had been issued on 19 November 1969. He added that there was no evidence in the case file that the notification procedure set out in the law of 1967 had been followed. As to the merits, he asked the Court of Appeal to rule on the lawfulness of the administrative decision. He further relied on Article 1 of Protocol No. 1, arguing that he could not have committed an offence, as he had not been awarded proper compensation for the adverse effect the public easement had had on his vested rights and the situation prior to designation. He complained, lastly, that the failure to give him individual notification of the listing order had deprived him of effective access to a court.
In a judgment of 13 February 1998, the Poitiers Court of Appeal declared the applicant's preliminary objection that the listing order should have been declared unlawful inadmissible, as it had been made for the first time on appeal whereas it should have been made prior to any defence on the merits. It noted that the applicant had not denied being aware of the listing order's existence or seriously contended that the notification procedure had not been followed, since he could not properly rely on a non-legally binding circular in the face of the unequivocal wording of Article 2 of the decree of 13 June 1969. Accordingly, it dismissed his plea that he had not been notified of the order and held that the authorities had been entitled to proceed by general announcement. The Court of Appeal observed that creating a public easement in the public interest was not contrary to the Convention, but could entail a right to compensation which it was not for the criminal courts to quantify; the applicant had not been deprived of effective access to a court, since the applicant had been given proper notice of the order and could either have asked the authorities to reconsider their decision or appealed. It therefore upheld the impugned judgment in its entirety.
The applicant appealed on points of law against the Court of Appeal's judgment. He complained among other matters that he should have been given individual notification of the listing order, as, although Article 2 of the decree of 13 June 1969 allowed notice to be given by general announcement rather than individually if more than a hundred landowners were affected by the listing of a place of interest, it also required listing orders that contained special directions to alter the state or use of the land to be notified to the property owner and accompanied by a formal notice. The applicant alleged that he had installed the caravans on the land before the designation decision – which made it illegal to park caravans on the Île de Ré – was issued and had not received any individual notification or formal notice. In his submission, therefore, by wrongly relying in its decision on the fact that he had not denied being personally aware of the designation order, the Court of Appeal had violated Article 1 of Protocol No. 1.
The Court of Cassation (Criminal Division) dismissed the applicant's appeal on points of law in a judgment of 23 March 1999, inter alia, on the following grounds:
“In finding the accused guilty of the offence, the Court of Appeal found that the order of 23 October 1979 did not constitute a designation decision within the meaning of the legislation introduced by the aforementioned Law, and in particular section 8 thereof, but merely an order under section 4 of that Law for the land to be included in the list of sites of natural beauty in the département. Accordingly, since – as the courts below found – the order affected more than a hundred landowners, the authorities were entitled to use – and it is common ground that they did use – the general announcement procedure instead of the individual notification procedure prescribed by that section.
The Court of Appeal added that, since the Law of 2 May 1930 and its subsequent implementing legislation did not require a formal notice to be given, such notice only being required when a designation decision was contested by the landowners ..., 'the authorities were entitled to give notice of the order of 23 October 1979 by general publication'.
... in so holding, the Court of Appeal justified its decision.”
Section 4 of the Law provided:
“In each département there shall be drawn up a list of the natural monuments and places of interest whose conservation or preservation is in the public interest from the artistic, historic, scientific, legendary or scenic point of view. ...
Listing shall be effected by means of an order made by the Minister for Cultural Affairs. The decree issued after consultation of the Conseil d'Etat shall lay down the procedure for notifying the listing to the property owners or for publishing it. Publication may replace notification only in cases in which the latter is made impossible by the large number of owners of one and the same place of interest or natural monument, or if it is impossible for the authorities to ascertain the identity or address of the owner. On the land within the boundaries laid down in the order, listing shall entail an obligation on those affected not to undertake any works other than those relating to day-to-day agricultural use as regards rural land and to normal upkeep as regards buildings without having given the authorities four months' notice of their intention.”
The relevant provisions of the decree provided:
“Listing orders shall be notified by the prefect to the owners of natural monuments or places of interest.
However, when the number of owners affected by the listing of one and the same place of interest or natural monument is greater than a hundred, the procedure of individual notification may be replaced by a general public announcement as provided for in Article 3.
Recourse shall likewise be had to public announcements where the authorities are unable to ascertain the identity or address of the owners.”
“The public announcements provided for in Article 2 ... shall be made at the instance of the prefect, who shall have the listing order published in two newspapers, at least one of which shall be a daily newspaper that is distributed in the administrative districts concerned. This notice must be republished at the latest on the last day of the month following the initial publication.
The listing order shall further be published in the relevant administrative districts, for a period of not less than one month, by being displayed at the town hall and in all other places customarily used for posting up public notices ...”
“The designation decision shall be published in the Official Gazette.”
“Where a designation decision contains special directions that would alter the state or change the use of a site, it must be notified to the property owner.
This notification shall be accompanied by a formal notice to the effect that the site must be brought into conformity with the special directions in accordance with the provisions of section 8 (paragraph 3) of the Law of 2 May 1930.”
The relevant provisions of the circular read as follows:
“Another innovation introduced by the Law of 28 December 1967 and the decree of 13 June 1969 is general publication as a method of informing property owners that a place of interest has been listed.
There are now two possible procedures:
– either individual notification, in accordance with the arrangements currently in force in all cases; or
– general publication (public display and publication in two newspapers), to which the prefect resorts when the number of owners concerned is greater than a hundred – as with places of interest covering a larger area – or when one or more property owners have not been identified.
This general publication will simplify the formalities that were necessary hitherto for the listing of a place of interest to have its full effect, and this will be particularly appreciable in the case of very large areas. It will have the advantage of ensuring that the public are well informed before the listing order is implemented ...”
The relevant provisions of the Code provide:
“There shall be no right to compensation for easements created pursuant to this Code for public access, public health, aesthetic or other purposes and concerning matters such as the use of the land, the height of buildings, the proportion of developed and undeveloped land in each property, prohibitions on building in certain areas and along certain roads and the distribution of buildings between different areas.
However, compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct, pecuniary and indisputable damage. In the absence of an amicable agreement, such compensation shall be assessed by the administrative court, which shall take into account the increase in value of a building produced by the implementation of a landuse plan that has been made public, or of an approved local town-development plan or equivalent document.”
“It shall be illegal to camp or to park a caravan other than on an authorised campsite, or to create a camp or caravan site:
(1) on the seashore;
(2) on designated or listed places of interest, within the areas defined in paragraph 3 of section 1 of the Historical Monuments Act of 31 December 1913, in the area surrounding a historical monument that is designated, listed or in the process of being designated, in areas in which architectural or urban heritage is protected and in the protected areas established by section 17 of the Law on the protection of natural monuments and places of interest of 2 May 1930. With the exception of places of interest that have been designated or are in the process of being designated, the competent authority may grant exemption from the prohibition, after obtaining the opinion of the département's heritage protection officer and, if applicable, its Committee on Places of Interest. As regards designated places of interest, exemptions may be granted by the minister responsible for places of interest or, in the case of natural sites, by the minister responsible for the conservation of nature and the environment, after obtaining the opinion of the département's Committee on Places of Interest.
...”


ITEMID: 001-59026
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF DEMIRAY v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 2 with regard to death of applicant's husband;Violation of Art. 2 with regard to investigation;Not necessary to examine Art. 5;Violation of former Art. 25-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant is a Turkish national. She was born in 1969 and lives in Diyarbakır. She lodged the application on her own behalf and on behalf of her late husband, Ahmet Demiray, who, she alleged, was killed by State security forces while in their custody.
9. Ahmet Demiray, the applicant's husband, was arrested in Diyarbakır on 21 July 1994.
10. On 28 July 1994 the father of Ahmet Demiray and father-in-law of the applicant lodged a criminal complaint with the public prosecutor at the Diyarbakır National Security Court against the village guards, H.E., T.E., Ö.E., and others whose identity he did not know, alleging that they had abducted his son on 22 July 1994. In his complaint he stated that his son's life was in danger and that the persons named were responsible.
On the same day the public prosecutor informed Ahmet Demiray's father that his son had been placed in custody at the Diyarbakır central gendarmerie station.
11. On 15 August 1994 the Lice public prosecutor informed the mayor of Lice that Ahmet Demiray's body had been found on 14 August 1994 near the village of Dibek (Lice). He stated that forensic medical examiners had carried out an examination and an autopsy of the body. The public prosecutor also said that since the deceased's relatives had not been in the vicinity, but in the neighbouring village of Hazro, the body had been buried in their absence by Lice District Council.
12. The applicant alleged that it was some time before she learnt of her husband's death.
13. On 21 July 1994 Ahmet Demiray was arrested by officers from the Diyarbakır Security Directorate because of suspicious behaviour. During questioning he stated that he was a member of the PKK (Workers' Party of Kurdistan) and offered to show the security forces one of the organisation's arms caches.
On the same day he was transferred to the Diyarbakır provincial gendarmerie command for questioning.
Lastly, and in connection with his statements concerning the location of the arms cache in question, he was handed over to a team from the Lice district gendarmerie on 8 August 1994 to take them to the site in question.
14. On 13 August 1994 Ahmet Demiray made a statement to the Lice gendarmerie.
15. A visit was organised by the gendarmerie to the alleged site of the arms cache in question. On 14 August 1994 Ahmet Demiray, accompanied by three gendarmes, arrived at the scene at approximately 4.30 a.m. As he was approaching the arms cache, the gendarmes heard an explosion. Ahmet Demiray was killed by the explosion of a booby-trapped grenade planted by the PKK. There were no other victims.
16. In an order of 29 May 1996 the Lice public prosecutor's office found that Ahmet Demiray had been killed following the explosion of a booby-trapped grenade planted by the PKK. It declared that it had no jurisdiction ratione materiae to examine the complaint lodged by Ahmet Demiray's father and decided to forward the investigation file concerning the village guards to the local administrative council of Kocaköy for examination under the Law on the Prosecution of Civil Servants.
Those proceedings are still pending.
17. On 27 September 1994 the public prosecutor at the Diyarbakır National Security Court gave an order discontinuing the criminal proceedings against the applicant's husband on the ground that he had since died.
18. During the proceedings before the Commission and before the Court the parties submitted a number of materials. Among other things, the Court requested the Government to provide it with a full copy of the investigation file on the incident during which Ahmet Demiray had died, but the request remained unanswered. Neither did the Government submit any document relating to any investigation commenced in order to identify and arrest Ahmet Demiray's presumed killers, who are allegedly members of the PKK.
The documents of interest to the present case are the following.
19. This document was provided by the Government, but the applicant disputed the authenticity of Ahmet Demiray's signature. She provided documents from 1993 showing her husband's signature and asserted that the difference was obvious. The relevant part of the transcript reads as follows:
“Question: Are you a member of a party, association or trade union carrying on legal or illegal activities?
Reply: I am not a member of any party, trade union or association, but I am a sympathiser of the PKK terrorist organisation. I have given the PKK financial assistance. I have worked within the PKK as a courier and guide and have supplied it with logistical support. I have collected sums of money in the villages and handed them over to the PKK.
Question: What were your activities within the PKK?
Reply: ... We went to lay anti-personnel mines in the vicinity of this third bridge. ... I can show you the arms cache whenever you wish, near the fountain. ... I have had enough, I no longer want to engage in this type of activity and regret having taken part in these terrorist activities. Now I am thinking of my family and I want to cooperate with the State. I can show you the organisation's arms cache (weapons and mines).”
20. The Government provided a sketch map of the scene, which was drawn by the gendarmerie. According to the sketch map, at the time of the explosion Ahmet Demiray was 1 m away from the arms cache, whereas two of the gendarmes accompanying him were 30 m away and the third 50 m away, forming an isosceles triangle with the arms cache at the centre.
21. This report was drawn up by a general practitioner, Dr Sami Karaka. The relevant part of it reads as follows:
“Following a call from the gendarmerie command to inform us that an individual had died while showing gendarmes a site when mines booby-trapped by the PKK organisation were detonated, we [the public prosecutor, the clerk of the court and the doctor] went the same day at 7.40 a.m. to the garden of the district commissioner's commandos unit where the corpse had been taken. We were unable to visit the scene of the incident because it was unsafe to do so. Since neither a forensic medical examiner nor a pathologist was present, we explained to Dr Sami Karaka what he had to do and he took the oath. ...
We identified the deceased by means of the photo on his identity card. ...
In the head area, the lower jaw had been entirely destroyed and the anterior part of the thorax and the organs of that area of the body had been completely destroyed. The two-thirds part of the left forearm had been amputated, probably due to an explosion at very close range. No trace of injuries inflicted by a firearm or a bladed weapon was found on the rest of the body. Since respiratory and circulatory deficiency due to injury from an explosion two or three hours earlier had been established as the cause of death, a classic autopsy was not deemed necessary.”
22. This decision was given on 29 May 1996 by the Lice public prosecutor's office for the attention of the Kocaköy District Commissioner's Office. It reads as follows:
“Public prosecution
Intervener: Hüsnü Demiray [applicant's father-in-law]
Suspects: [the three village guards]
Crime: abduction and murder
Date of crime: 27 July 1994
Although the intervener alleged that his son had been abducted and killed by the suspects, it has been noted that the deceased, who belonged to the PKK organisation, had been arrested on 21 July 1994 by the teams from the Diyarbakır Security Directorate. After it had been established that he operated in the rural area, he was transferred on 23 July 1994 to the provincial gendarmerie command and taken to the village of Yolçati by members of the Lice district gendarmerie command. As he was showing them the site of one of the PKK's arms caches, he was killed when a grenade booby-trapped by the PKK exploded. Those facts were communicated in the documents of the provincial gendarmerie command, dated 7 December 1995, and in the document of the Lice district gendarmerie command dated 15 August 1995. The facts were established from the above-mentioned documents and the contents of the file. Our public prosecutor's office declares that it has no jurisdiction ratione materiae given that the accused are village guards and that an investigation into acts committed by them is governed by the provisions of Article 4, paragraph (i) of Legislative Decree no. 285 on the exercise of emergency powers. The public prosecutor's office has decided to forward the investigation file to the Kocaköy District Commissioner's Office which will examine it and do the necessary in accordance with the Law on the Prosecution of Civil Servants.”
23. The applicant made the following statement regarding the circumstances in which she was informed of her husband's death:
“In so far as I remember, the Lice public prosecutor sent my husband's death certificate to Hazro where my father-in-law lives and our census records are kept. In that connection the Hazro public prosecutor summoned my father-in-law to collect my husband's death certificate. After collecting it, my father-in-law came to Diyarbakır. Together, we went to Lice where we first met the mayor in order to enquire as to the steps to be taken for the burial. He informed us that the disintegrated corpse had been retrieved at the site and buried as ordered. We asked him what had been done with my husband's identity card, clothes and other personal effects. He replied that he had given them to the public prosecutor's office and advised us to contact them.
On the same day we went to the Lice public prosecutor's office, but the public prosecutor was not there. We spoke to his deputy and asked him to open the grave so that we could see whether it was indeed my husband or not. He told us that he was not in a position to open the grave; neither did he show us the photographs of my husband. We wanted him to give us the clothes, but an official from the Lice public prosecutor's office told us that they had sent them to Hazro with the death certificate. After Lice we went to the Hazro public prosecutor's office. We told them that we understood that the clothes had been sent there. They told us, however, that they had not retrieved them. We were unable to continue with our enquiries.
I did not learn of my husband's death until my father-in-law arrived in Diyarbakır after he had been summoned by the Hazro public prosecutor on receipt of the death certificate from Lice. If I am not mistaken, I was therefore not informed until a week later.
However, those who had arrested my husband knew our address well because it is written on the transcript of the statements bearing a signature which I believe to be forged since it is not that of my husband. At the material time we were renting a flat, where I am still living now. As my address was known I could easily have been informed of my husband's death and requested to attend the autopsy. The fact that I was not summoned shows that certain things have been concealed and that my husband was indeed murdered. ...”
24. In her letters of 28 June and 17 July 1996 to the Commission the applicant maintained that since notice of the application had been given to the Government the security forces had been putting pressure on her and her husband's family to withdraw her application. She stated that Ahmet Demiray's father and brother had been placed in police custody. In her letter of 6 July 1996, the applicant stated that her husband's brother, Mr Erdal Demiray, had been placed in police custody again on 4 July 1996 for the same reasons.
The applicant produced a statement by her brother-in-law dated 22 October 1999. He said that he had been arrested by the security forces and that during his time in police custody he had been asked why the applicant had lodged an application against the State.
25. The documents provided to the Court (arrest report and decision of the Diyarbakır National Security Court) show that Mr Erdal Demiray was arrested on 4 July 1996 and released on 9 July 1996. On 30 July 1996 he was accused of having committed offences against the integrity of the State. In a decision of 22 September 1997, he was acquitted by the Diyarbakır National Security Court.
26. The relevant elements of domestic law in this case can be summarised as follows.
27. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been reported to them are governed by Articles 151 to 153 of the Code of Criminal Procedure. Any offence may be reported to the authorities or members of the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).
A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
28. If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the course of his duties is liable to imprisonment.
29. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the Prosecution of Civil Servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court.
30. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law also applies to members of the security forces under the governor's authority.
VIOLATED_ARTICLES: 2


ITEMID: 001-72376
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KOVACS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Gáborné Kovács, is a Hungarian national who was born in 1948 and lives in Budapest.
The facts of the case, as submitted by the parties, may be summarised as follows.
In February 1993 criminal investigations were instituted against the applicant on charges of embezzlement and forgery of documents. After the police had repeatedly interrogated her and heard numerous witnesses on several occasions, on 20 January 1994 the investigation was closed.
On 28 June 1994 the Budapest I/XII District Public Prosecutor’s Office ordered the resumption of the investigation. Subsequently, an expert accountant was appointed. On 13 June 1995 the investigation was closed.
On 22 November 1995 the Prosecutor’s Office preferred a bill of indictment against the applicant, charging her with aggravated mismanagement.
The Buda Central District Court held hearings on 4 and 6 December 1996, 20 February, 30 April, 24 June 14 September and 18 December 1997. At the hearing on 4 March 1998, the District Court ordered that further investigations be carried out. After further expert opinions had been obtained, the resumed investigations were closed on 22 March 1999.
Further hearings took place on 14 October 1999, 27 January and 2 March 2000. On that date the court found the applicant guilty as charged, and sentenced her to one year and ten months’ imprisonment, its execution being suspended for four years.
On appeal, the Budapest Regional Court held hearings on 26 April, 21 June and 4 September 2001. On the latter date it delivered a judgment and reduced the applicant’s sentence to one year’s imprisonment, its execution being suspended for only two years. Moreover, the applicant was granted preliminary exemption (előzetes mentesítés) from the unfavourable legal consequences of her conviction. In its decision, the Regional Court explained the mitigation of the sentence as follows:
“When imposing the sentence [and considering those factors which are in the applicant’s favour], special importance must be attributed to the fact that almost nine years have elapsed since the offence was committed and that [the applicant] has not contributed to this extraordinary delay. ...
On account of the extraordinary protraction [of the proceedings], the second-instance court has likewise reduced to an important extent the duration of the probationary period.
Considering the ... circumstances of the applicant’s having committed the offence, the second-instance court is of the view that [the applicant] who has been subjected to criminal proceedings for almost nine years is worthy of preliminary exemption (előzetes mentesítés) ... .”