ITEMID: 001-76931
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ZIEGNER-KOPPANEY v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mrs Olga Ziegner-Koppaney, is a German national who lives in Ratingen. She was represented before the Court by Mr J. Wolfering, a lawyer practising in Düsseldorf.
The application concerns a real estate in Parchim which is located in the State (Land) Mecklenburg-Western Pomerania. The estate had been owned since 1937 by Mrs von Graevenitz, an Austrian citizen who, after having married a German national, temporarily lost her Austrian citizenship until 1948. Mrs von Graevenitz was succeeded in 1955 by Mr Weinbacher, an Austrian bishop who died in 1985 and who was succeeded on his part by Mrs Kaufmann, who was also an Austrian citizen. The applicant inherited upon Mrs Kaufmann’s death in 1998.
After the foundation of the German Democratic Republic (GDR), foreign assets were in general put under public administration, and the owners’ powers of disposal were considerably restricted. As a consequence, the GDR went into bilateral negotiations with several Western European States (among them Austria) over financial and property issues. In the 1970s and 1980s, the GDR concluded several Lump Sum Agreements (Globalentschädigungsabkommen). A Lump Sum Agreement with Austria was concluded on 21 August 1987 according to which the parties agreed that the GDR would pay to Austria a certain lump sum in order to settle property claims of Austria as well as of Austrian citizens and legal persons. The last rate of the lump sum was paid in 1993 by the Federal Republic of Germany (FRG) as the legal successor of the GDR. The lump sum was distributed by the Federal Distribution Commission (Bundesverteilungskommission) in the Austrian Ministry of Finance on the basis of Austrian law, in particular the so-called GDR Distribution Act (Verteilungsgesetz DDR).
In 1974, Mr Weinbacher applied to the Austrian Government for consideration of the Parchim estate, which had been put under GDR administration in 1952, in the negotiations for the Lump Sum Agreement. Mr Weinbacher was informed by the Austrian Government on two occasions in 1981 and 1983 that the Parchim estate was part of the negotiations to the Lump Sum Agreement.
In 1996, Mrs Kaufmann (who had inherited from Mr Weinbacher and whom the applicant succeeded in 1998) applied to the Federal Distribution Commission for compensation from the lump sum. Her application was dismissed on 7 May 1998. The Federal Distribution Commission found that Mr Weinbacher and Mrs Kaufmann fulfilled the conditions of Austrian nationality under the GDR Distribution Act. However, Mrs von Graevenitz, who had been the owner of the Parchim estate when it was put under GDR administration in 1952, did not have Austrian citizenship on 8 May 1945, one of the relevant dates. The Commission reasoned that Austrian nationality of Mrs von Graevenitz as the injured person was a necessary requirement under the said legislation.
The applicant, who pursued the application after Mrs Kaufmann’s death in 1998, filed a constitutional complaint with the Austrian Constitutional Court (Verfassungsgerichtshof) against the decision of the Federal Distribution Commission. The Austrian Constitutional Court dismissed the application on 30 November 1998. It observed inter alia that there should be congruency between the Lump Sum Agreement and the national legislation governing the distribution. In its view, the Distribution Act met that requirement.
On 28 September 1998, upon application by the Federal Office for the Regulation of Outstanding Property Issues (Bundesamt zur Regelung offener Vermögensfragen), the real estate in Parchim was allocated to the FRG in accordance with Section 1 (b) § 1 of the Assets Allocation Act (Vermögenszuordnungsgesetz) by order of the Rostock Regional Finance Office (Oberfinanzdirektion). Section 1 (b) § 1 of the Assets Allocation Act provides that assets for which compensation was provided for in bilateral treaties between the GDR and third states should be allocated to the FRG. The provision refers to Section 1 § 8 (b) of the Resolution of Outstanding Property Issues Act (Vermögensgesetz, hereinafter the “Property Act”), which excludes restitution for property losses which are covered by bilateral treaties between the GDR and third states.
The applicant who had been participating in the allocation process subsequently brought an action for annulment of the allocation order.
On 7 February 2001, the Schwerin Administrative Court dismissed the applicant’s claim and refused to grant leave to appeal on points of law. Referring to the established case law of the Federal Administrative Court, it found that, since the purpose of Section 1 § 8 (b) of the Property Act was to avoid that Germany had to pay double compensation where damages imputable to the GDR had already been compensated. Accordingly, the only prerequisite for of Section 1 § 8 (b) of the Property Act was the asset in question had been covered by the Lump Sum Agreement. As it was based on the payment of a lump sum, it did not matter whether the individual had actually received compensation, a matter which was anyway within the sphere of the State party to the agreement with the GDR. The State party to the lump sum agreement with the GDR had protected the interests of their nationals on the international level and the international agreement, once full payment was made, finally solved all property issues covered by that agreement. The Schwerin Administrative Court, having regard to the material before it, established that the Parchim estate had been covered by the Lump Sum Agreement between Austria and the GDR. In this respect, the court noted that, in the appendix to the Agreement, the Austrian delegation had registered the estate as a subject matter during the negotiations. It further found that the estate had been validly included, with the consent of its then owner. In this respect, the Schwerin Administrative Court referred to the Federal Administrative Court which interpreted the relevant provisions of the Lump Sum Agreement to the effect that it applied to individuals of Austrian citizenship on 8 May 1945 and on 21 August 1987, the date of signature, but did not require that the owner at the time when the estate was placed under public administration held Austrian citizenship on 8 May 1945. The refusal of compensation from the lump sum was a matter of Austrian law and the legal opinion of the Austrian Constitutional Court could not be decisive for the allocation of the assets under German law.
On 14 December 2001, the Federal Administrative Court dismissed the applicant’s motion against the Schwerin Administrative Court’s refusal to grant leave to appeal on points of law. The Federal Administrative Court, referring to its earlier case law, confirmed that Section 1 § 8 (b) of the Property Act merely required that the asset in question was covered by the Lump Sum Agreement. The actual compensation on an individual basis, which in any event was subject to the domestic law of the third State which had received and distributed the lump sum, was not required. The purpose of Section 1 § 8 (b) of the Property Act was to avoid double compensation of financial and property losses which were attributable to the GDR but which had already been compensated by the payment of a lump sum to a third State. The Federal Administrative Court took note of the fact that the applicant had neither been compensated by the Austrian Government nor had he received any restitution by the Federal Republic. However, the Federal Administrative Court stressed that the German side had paid a lump sum to the Austrian government for all assets which were covered by the Agreement (including the estate in Parchim) in order to compensate individuals who had suffered material losses. The German side however had no influence on whether these individuals participated in the distribution of the lump sum. The applicability of an exclusion clause such as Section 1 § 8 (b) of the Property Act could not depend on whether or not the Austrian Government had in fact made payments to all individuals whose claims had been taken into account when calculating the lump sum. It could therefore not be regarded as unfair if German law would deny restitution to such individuals.
On 1 March 2002, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint, finding that the impugned decisions did not violate the applicant’s right to property as guaranteed by Article 14 of the Basic Law (Grundgesetz).
According to its Articles 1 and 2, the Lump Sum Agreement covers property and financial claims of Austria as well as of Austrian citizens and legal persons with regard to property which was under GDR administration. Article 4 § 1 provides that “Austrian nationals” within the meaning of Article 1 are those who had Austrian citizenship on 8 May 1945 and on the date of the signing of the Agreement, i.e. on 21 August 1987. Article 4 § 2 provides that, if the property claimant died before 21 August 1987 and held Austrian citizenship upon his or her death, the successor is entitled under the condition that he or she held Austrian citizenship on 21 August 1987.
According to Article 7 of the Agreement, all property and financial issues covered by the Agreement were to be settled exhaustively and definitely with the payment of the lump sum.
The Austrian Distribution Act is the domestic law which corresponds to the Lump Sum Agreement. According to this Act, the term “Austrian nationals” was defined as persons who had Austrian citizenship both on 8 May 1945 and on the date of the signing of the Agreement, i.e. on 21 August 1987. If the owner died before 21 August 1987 and held Austrian citizenship upon his or her death, the successor is entitled under the condition that he or she held Austrian citizenship on 21 August 1987.
The Resolution of Outstanding Property Issues Act of 23 September 1990, also known as the Property Act, entered into force on 29 September 1990 and was a part of the German Unification Treaty. Under the terms of the Treaty, the Property Act was to continue to subsist in the reunified Germany after the reunification of the two German States on 3 October 1990. The aim of the Act was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable, in order to achieve permanent legal order in Germany. Section 1 § 8 (b) of the Act holds:
“This Act shall, subject to its provisions on competences and procedure, not apply to: (...) (b) property claims which were covered by bilateral treaties between the German Democratic Republic and third states (...)”.
The first sentence of Section 1 (b) § 1 of the Act provides:
“Any assets which were subject to the agreements referred to in Section 1 § 8 (b) of Resolution of Outstanding Property Issues Act/ Property Act, shall be (...) allocated to the Federal Republic once the payments provided for in the agreements have been made.”


ITEMID: 001-95364
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF CROMPTON v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant, Mr Thomas John Crompton, is a British national who was born in 1954 and lives in Stalybridge, Cheshire.
6.
7. In 1989 the applicant joined the Territorial Army (“TA”) as a pay and accounts clerk, a military post, carrying out duties such as filing, photocopying and maintaining a stationery store. In July 1993 the applicant was informed that he was to be made redundant, following organisational changes in the TA pursuant to a process of civilianisation. He was subsequently informed that the clerical post which he had occupied was to become a civilian post and was to be converted to that of a technical store-man. The applicant applied for this new post, but was informed in February 1994 that he could take it only if he undertook a training course, but that all relevant training courses had been cancelled. He also applied for a number of other clerical posts within the Army but was refused for them all.
8. The applicant was therefore made redundant. His discharge from the Army, dated 18 February 1994, was formally made, incorrectly, on the basis that his services were no longer required. The applicant later discovered that his former duties were being carried out by an untrained civilian, while the technical store-man post remained vacant.
9. On 3 May 1994 the applicant complained about his redundancy to the Industrial Tribunal, but his claim was rejected because the Industrial Tribunal did not have jurisdiction over matters involving military personnel.
10. On 19 December 1994 the applicant claimed redress in respect of his redundancy from his Commanding Officer, under sections 180 and 181 of the Army Act 1955.
11. On 22 March 1995 the Commanding Officer issued a brief in which he concluded that the applicant had a weak case for redress. He further requested the Army Board of the Defence Council to determine whether the applicant was subject to military law. The applicant's solicitors, on 6 December 1996, submitted observations in reply. The matter was then placed before the Army Board.
12. In January 1998, the applicant applied for judicial review in respect of the Army Board's failure to determine the case within a reasonable time. His application was granted by the High Court on 2 February 1998 and the Army Board was ordered to deal with the case expeditiously.
13. The Army Board, without holding an oral hearing or directing a Board of Inquiry to be convened, issued its decision on 7 May 1998, refusing the applicant's claim for redress.
14. The applicant applied for judicial review of the decision not to hold an oral hearing or convene a Board of Inquiry.
15. On 3 November 1998, while the judicial review application was pending, the Army Board directed that a Board of Inquiry should be convened. The Board was convened by an order dated 10 February 1999. It sat in March 1999, considered oral and documentary evidence and issued a summary of its factual findings on 6 May 1999. It found in the applicant's favour as regards his argument that he ought to have been, but was not, given priority before five selection boards. It was anticipated that the level of compensation would be fixed by negotiation between the Army Board and the applicant.
16. The Army Board met to reach a determination on 11 April 2001. It issued its decision on 16 July 2001, ordering that the applicant be offered compensation in respect of the failure to offer him alternative employment within the Army. On 10 August 2001, an award of compensation was notified to the applicant but he disputed the calculation of the compensation.
17. In November 2001 a further offer of settlement was made to the applicant, which he rejected.
18. On 11 April 2003 the Army Board made a further compensation offer of GBP 94,016.67. The sum was made up of three parts: loss of salary (minus the applicant's actual earnings during the relevant period); a redundancy payment estimated on the basis that the applicant would have had an extra six years' service; and loss of pension rights, again based on a six-year period. The applicant rejected the offer on the basis that it did not include costs or a sum to compensate him for the stress he had suffered.
19. The applicant, acting as a litigant in person, subsequently applied for judicial review of the decision, claiming that the award had not been properly assessed. Permission was granted on 23 June 2003. The applicant advanced two criticisms: first, that the award was based on the assumption that he would have been discharged from the army six years after the date on which he was actually discharged; second, that the salary base used for the calculation of all three elements of the award was taken to be GBP 15,800 per year gross. The latter criticism was only formally advanced at the hearing itself.
20. On 16 October 2003 the High Court rejected the applicant's complaint regarding the six-year cut-off date. However, in light of evidence produced to the court regarding the level of the applicant's salary at the time of his redundancy, the court accepted the Army Board's undertaking to review the level of the annual salary used in its calculation and, if appropriate, to reassess the award of compensation within 35 days. Although formally the applicant was the unsuccessful party in the litigation, and as a result would normally be required to pay the costs of the Army Board, the court ordered the applicant to pay only half of the Army Board's costs partly on the ground that “the history of this matter displays an inordinate period of delay”.
21. On 20 November 2003, a revised offer of GBP 147,682.42 was made to the applicant. The offer was rejected.
22. The applicant again applied for judicial review on 11 January 2004 seeking an order requiring the Army Board to investigate and take steps towards redressing his complaint within a prescribed time-frame and damages for the losses suffered by him as a result of the Army Board's failure to perform its duties. There was a hearing on 10 February 2004 but no order was made.
23. On 13 April 2004, a further offer was made to the applicant in the sum of GBP 153,000.
24. On 26 July 2004 the applicant again applied for judicial review in respect of the delay but again, following a hearing on 10 August 2004, no order was made.
25. On 19 May 2005, following another application for judicial review, the High Court adjourned the case pending promulgation by the Army Board of its written decision regarding the offer of compensation.
26. On 24 May 2005 the Army Board issued its decision awarding the applicant compensation of GBP 153,864.47.
27. The applicant's application for judicial review was refused on 24 June 2005 on the ground that the Army Board's decision had brought the finality which the applicant had been seeking.
28. The applicant brought a fresh application for judicial review on the ground that the award of 24 May 2005 had been incorrectly reached. The application was refused on the papers on 22 September 2005. Following the applicant's renewed application and an oral hearing, permission was finally refused on 14 November 2005.
29. According to Halsbury's Laws of England (4th Edition), the terms of engagement of members of the armed forces do not constitute a contract of service in the strict sense. Members of the armed forces are appointed by the Crown under the Royal prerogative and hold their appointments “at the Queen's pleasure”.
30. The TA, although essentially part-time, has a small number of attached regular army officers and non-commissioned officers responsible for organising and supervising the management and training of the unit. At the relevant time, the routine administration of the TA tended to be vested in a special category of uniformed reservists known as Non-Regular Permanent Staff (“NRPS”). NRPS were recruited into the TA to perform a specific job within a TA unit.
31. Under section 205(1)(h) of the Army Act 1955, NRPS soldiers were subject at all times to military law.
32. Section 181 of the Army Act 1955 set out, at the relevant time, the redress available to the applicant following his redundancy. It provided as follows:
“(1) If a warrant officer, non-commissioned officer or soldier thinks himself wronged in any matter by any officer other than his commanding officer or by any warrant officer, non-commissioned officer or soldier, he may make a complaint with respect to that matter to his commanding officer.
(2) If a warrant officer, non-commissioned officer or soldier thinks himself wronged in any matter by his commanding officer, either by redress not being given to his satisfaction on a complaint under the last foregoing subsection or for any other reason, he may, in accordance with the procedure laid down in Queen's Regulations, make a complaint with respect thereto to the Defence Council,
(3) It shall be the duty of a commanding officer or, as the case may be, the Defence Council to have any complaint received by him or them investigated and to take any steps for redressing the matter complained of which appear to him or them to be necessary.”
33. Queen's Regulation (“QR”) 5.204(b) provided:
“Every complaint is to be fully and distinctly stated and any explanation or other evidence as may be necessary for the proper investigation and speedy determination of the complaint is to be annexed to it.”
34. QR 5.205 provided:
“A complaint is to be submitted, in writing, to the complainant's commanding officer no matter if the commanding officer has previously refused to redress the matter complained of; has not the power to grant the redress sought; or if the complaint has been made against the action or refusal of action by the commanding officer himself.”
35. QR 5.206 provided:
“Any complaint under Section ... 181(2) of the Army Act 1955 is, when received by the commanding officer, to be forwarded by him, with any comments, to his next higher authority. That authority is to examine the complaint and is himself to grant redress if he has power to do so and thinks he should. If redress is not then granted, or is not granted to the complainant's satisfaction, that authority is to forward the complaint, together with any comments by the commanding officer and himself, to the next higher authority, and the procedure repeated. In this way, unless full redress is granted at an intermediate level, the complaint will come up through the chain of command to the Ministry of Defence and will be presented to the Army Board of the Defence Council. The complainant is to be informed of progress at each stage and given the opportunity to withdraw his complaint if he wishes.”
36. New primary legislation governing redress of complaints was introduced in the Armed Forces Act 1996 but this new legislation applied only to complaints brought on or after 1 October 1997.
37. The Defence Council is appointed by Letters Patent from Her Majesty to have command of the armed forces. It is composed of the defence ministers, the most senior Ministry of Defence civil servants and the most senior officers of the armed forces.
38. Under section 1(5) of the Defence (Transfer of Functions) Act 1964, the functions of the Defence Council may be discharged by the Army Board.
39. The requirements of fairness to be observed in the procedure before the Defence Council were set out in R v Army Board ex parte Anderson [1992] 1 QB 169 (“the Anderson principles”). The Divisional Court considered that the Army Board must achieve “a high standard of fairness” and, in particular, there must be a proper hearing at which all relevant evidence is considered; the members of the Board must meet for this purpose; where appropriate, an oral hearing must be held with opportunity for cross-examination of witnesses; there must be a proper examination; all material seen by the Board must be disclosed to the complainant (subject to public interest immunity exceptions); and the complainant must be given an opportunity to respond to material and have his response considered by the Board.
40. Under section 135(1) of the Army Act 1955, the Defence Council had the power to convene a Board of Inquiry (“the Board”) to investigate and report on the facts relating to a matter referred to it by the Defence Council.
41. The composition of the Board was specified in section 135(2) as consisting of a president, who shall be an officer not below the rank of captain or corresponding rank and be subject to military law, and not less than two other members each of whom shall either be a person subject to military law or a person not so subject who is in the service of the Crown.
42. The applicable rules were set out in the Board of Inquiry (Army) Rules 1956 (“the Rules”), which established, under Rule 3, a duty for the Board to investigate and report on the facts relating to any matter referred to it and, if directed to do so, to express its opinion on any question arising.
43. Rule 8(2) provided that:
“The President shall lay the terms of reference before the board and the board shall proceed to hear and record evidence in accordance with the provisions of these Rules.”
44. Rule 10(1) provided:
“A board shall hear the evidence of the witnesses who have been made available by the authority and may hear the evidence of such other persons as they think fit.”
45. Rule 12 provided:
“A board may receive any evidence which they consider relevant to the matter referred to the board, whether oral or written, and whether or not it would be admissible in a civil court.”
46. Rules 15(1) provided:
“The president shall record, or cause to be recorded, the proceedings of the board in writing and in sufficient detail to enable the authority to follow the course of the proceedings.”
47. The relevant QR (5.009) provided as follows:
“Administrative instructions relating to boards of inquiry convened in accordance with the Board of Inquiry (Army) Rules 1956 ... are contained in Annex A to this Chapter. These instructions are to be followed in all cases.”
Paragraph 47 of Annex A provided:
“... all persons who may be affected by the findings are to be given an opportunity to attend or be [re]presented.”
Although the Army Board was not strictly bound by the findings of a Board of Inquiry, it would be rare for the Army Board to substitute its own findings for those of the Board.
48. Members of the armed forces have access to civilian employment tribunals in relation to issues regarding equal pay and unlawful discrimination on grounds of race, sex, religion, belief or sexual orientation.
49. Although at the relevant time the right not to be unfairly dismissed was a statutory right, under section 54(1) of the Employment Protection (Consolidation) Act 1978, its application to service as a member of the armed forces was excluded under section 138 of the Act. Accordingly, the Industrial Tribunal did not have jurisdiction to hear a claim for unfair dismissal brought by a member of the armed forces.
50. The scope of judicial review in administrative decision-making in the United Kingdom is set out in the Court's judgment of Tsfayo v. the United Kingdom, no. 60860/00, §§ 25-33, 14 November 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80865
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GORELISHVILI v. GEORGIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10
TEXT: 5. The applicant was born in 1969 and lives in Tbilisi. She was a journalist at the material time.
6. In July 2000, the applicant published an article in the newspaper “Meridiani 44” (no. 75 (579), 3-5 July 2000). This article, entitled “The Head of the 'twofold' Ministry does not know where and how much he has saved”, was a continuation of a regular rubric which informed the public of the financial situation of various political figures in the light of their property declarations. The background to the rubric was the problem of corruption in the public service.
7. In the article, amongst other politicians and government officials, Mr Givi Lominadze, a Member of Parliament at the material time, was criticized for his declared assets.
8. The article began on the first page of the newspaper with a blackandwhite photograph (12x11 cm) of the parliamentarian's summer house. The following comment was underneath the picture: “The summer house of the Abkhazia exile and Member of Parliament, Mr Givi Lominadze, does not look that modest. So what? The Georgians who have lost Abkhazia deserve to take a breather somewhere ...”
9. In the article the applicant cited the words of Grigol Robakidze, a 20th century Georgian writer: “the Government is a sacred phenomenon; there is no place for blackguards there”. She further continued: “the main principle of the relationship between the people and the Government – justice – is breached today; we obey arbitrariness ... Let's have a look now at the financial position of the officials suspected of arbitrariness.”
10. The passage of the article describing Mr Lominadze's assets in the light of his latest property declaration was placed on the fifth page of the newspaper:
“... If Mr B.'s pride is his son, Mr Givi Lominadze – Head of the Parliamentary Fraction “Abkhazia” (although, he might soon forfeit this post) – is proud of his soninlaw, Mr P., who is the Head of the President's Security Service (we already spoke about the latter in the previous edition). The son-in-law has probably given a hand to his fatherinlaw, otherwise the latter could hardly have finished for some 2535,000 Laris [EUR 11,500-16,170] the construction of the summer house (which, in fact, looks like a palace) in the village of Tsitelsofeli on the banks of Aragvi River.
You all know how difficult the everyday life of the refugees from Abkhazia is, and, as it seems, still missing the sea, they want to be close to the water – Aragvi is undoubtedly a gorgeous river.
Mr Lominadze has also managed to purchase an apartment in Tbilisi for the price of GEL 40-45,000 [EUR 18,50020,800] (Mr Lominadze gives such approximate, “twofold” prices everywhere). And, with due regard to the price of the Tsitelsofeli summer house, then Mr Lominadze's Tbilisi apartment should be a truly grandiose construction. Or, maybe Mr Lominadze made a mistake and “could not correctly” assess the price of his riverside summer house?!
In the list of his real property, Mr Lominadze has also cited the house he inherited in the village of Senaki, valued at GEL 20,000 [EUR 9,240], and the family library, valued at GEL 10,000 [EUR 4,640]. Despite the fact that, last year, the parliamentarian's only income was his salary amounting to GEL 6,300 [EUR 2,900] in total, his savings amount to GEL 7,000 [EUR 3,200]. One can only wonder whether Lominadze and people like him feed on air, without ever spending salaries; how else could they manage to save so much?!”
11. Mr Lominadze sued the applicant and the editor of the newspaper for defamation. He claimed that the facts mentioned in the article were untrue. They indirectly suggested that he had acquired the summer house and the Tbilisi apartment since becoming a parliamentarian in 1993, but in reality the origin of most of those possessions dated back to the 197080s.
12. On 23 January 2002 the VakeSaburtalo District Court in Tbilisi allowed his claim and obliged the respondents to publish a rectification, conceding that the previous publication had been the result of a superficial research of the facts and only reflected the journalist's subjective opinion. The court also ordered each of the respondents to pay to the parliamentarian GEL 100 [EUR 46] for non-pecuniary damage and GEL 500 [EUR 230] for costs and expenses.
13. In its reasoning, the District Court acknowledged that the facts exposed in the article with regard to the parliamentarian's assets were correct, since they were based on the official data submitted in the property declaration and were never disputed by the plaintiff. Nonetheless, the court concluded that the structure of the article, the epithets and artistic expressions were of such a sarcastic and humiliating nature that they would necessarily arouse in readers negative sentiments towards the parliamentarian. The court shared the plaintiff's concern that the article implied that his declared assets were of illegal origin. Since the applicant failed to discharge, under Article 18 § 2 of the Civil Code, the burden of proof by showing that she had not intended to accuse Mr Lominadze of corruption, the District Court found her liable in defamation.
14. On 19 February 2003 the Appeal Chamber of the Tbilisi Regional Court quashed and replaced the judgment of 23 January 2002. The court reasoned that the journalist's criticism was aimed at the private sphere of the parliamentarian's life rather than the political sphere. It concluded that the applicant had failed to bring proof of such statements as “the son-in-law has probably given a hand to his father-in-law, otherwise the latter could hardly have finished ... the construction of the summer house ...” and “one can only wonder whether Lominadze and people like him feed on air, without ever spending salaries; how else could they manage to save so much?!”
15. The Regional Court ordered the journalist and the newspaper to retract those statements as untrue and to pay jointly GEL 100 [EUR 46] in non-pecuniary damages. The President of the Appeal Chamber expressed a dissenting opinion, mostly based on the principles of the case-law of the European Court of Human Rights.
16. Subsequent to the applicant's cassation appeal, on 12 September 2003 the Supreme Court quashed the judgment of the Regional Court and decided the case anew.
17. The Supreme Court recognised that the margin of criticism with regard to political figures was wider than that regarding other persons. However, considering that she had failed to prove the truthfulness of her suggestion that the impugned property had originated during the parliamentarian's political life in the 1990s, the court found, on the basis of Article 18 of the Civil Code, that the applicant's criticism was unfounded and therefore defamatory. It noted that she had indirectly called the parliamentarian a “blackguard” and had gratuitously accused him of “arbitrariness”.
18. The Supreme Court further stated that, “in view of journalists' high degree of responsibility within society, each and every one of their judgments should be based on well-investigated and well-examined facts and not on unfounded assumptions”, as in the applicant's case. The court concluded that the applicant had been negligent when writing about the parliamentarian.
19. The Supreme Court ordered the applicant and the editor to pay jointly GEL 100 [EUR 46] in non-pecuniary damages. The applicant was further ordered to publish a rectification, specifically retracting the two phrases - “the son-in-law has probably given a hand to his father-in-law, otherwise the latter could hardly have finished ... the construction of the summer house ...” and “one can only wonder whether Lominadze and people like him feed on air, without ever spending salaries; how else could they manage to save so much?!” – as untrue statements.
20. According to the applicant, the final judgment of 12 September 2003 was notified to her outside the time-limit prescribed by law and did not bear the stamp or signature of the Registrar of the Supreme Court.
Article 24 guarantees freedom of thought and expression, together with the freedom of the mass media.
Article 18 provided that an individual was entitled to request in court a rectification of the “information” (cnobebi), which was damaging to his or her honour, dignity or professional reputation, unless the person who had disseminated that information could prove its truthfulness. The aggrieved party could also claim pecuniary and non-pecuniary damages, which he or she had sustained as a result of the dissemination of such information.
Section 1 stated that the aim of the Act was to fight corruption in the public service.
Pursuant to section 14, a public official was obliged to file property and financial declarations within a month of taking up office. The declarations had to be regularly submitted (once a year) during his or her public service, as well as upon resignation or dismissal.
Pursuant to sections 15 and 16, the property and financial declarations were to provide comprehensive information about all the public official's immovable and movable assets, securities, savings deposits, bank accounts, currency, participation in business activities, performance of any remunerated work apart from business activities, contractual engagements, gifts and the existence of other income exceeding GEL 1,500 [EUR 693].
Under section 17 § 1, in case the value of a declared asset could not be established without an expert assessment, an approximate value was to be indicated. Section 19 § 1 stated that the official's property and financial declarations, except for certain confidential parts, were public documents.
Pursuant to section 24 § 2, a journalist was responsible for verifying the correctness of information before publishing it.
VIOLATED_ARTICLES: 10


ITEMID: 001-82858
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: MINICH v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Stanislav Minich, is a Slovak national who was born in 1941 and lives in Kanianka. The Slovak Government (“the Government”) were represented by Ms A. Poláčková, their Agent, who was succeeded in that function by Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s parents were members of an agricultural cooperative in which they had included their agricultural land. The applicant who inherited their ownership title to that land was also a member.
The cooperative underwent a transformation under the Adjustment of Property Relations and Claims in Cooperatives Act (Law no. 42/1992 Coll. – “the 1992 Act”) so as to make it compatible with the new economic system and legal order. Former members who did not become members of the transformed cooperatives, like the applicant, were entitled to compensation in respect of their membership interest. The 1992 Act contained no express provisions as to the form of such compensation.
In August 1992 the applicant lodged a demand with the cooperative for compensation in respect of his membership interest under the 1992 Act. Despite promises, the demand has not been satisfied.
On 13 May 1994 the applicant brought an action against the cooperative in the Prievidza District Court (Okresný súd). He sought a judicial order for a determination of his membership interest. The cooperative then provided assurances that it would settle the claim voluntarily. In response, the applicant withdrew the action and, on 11 September 1995, the proceedings were discontinued.
On 2 November 1995 the applicant re-submitted his claim to the District Court arguing that the cooperative had not honoured its pledge.
On 1 January 1996 an amendment (Law no. 264/1995 Coll. – “the 1995 amendment”) to the 1992 Act entered into force which introduced special provisions concerning the form of compensation to be provided in respect of membership in cooperatives. Former members who had not been compensated in another form were to be issued shares (družstevné podielnické listy) in the cooperative in question.
On an unspecified date the applicant extended the action in that he also sought financial compensation for the use of his land by the cooperative. This claim was the subject of a friendly settlement and the District Court approved the settlement on 21 February 1997.
On 15 October 1997 the applicant further extended the action by seeking compensation under the Land Ownership Act (Law 229/1991 Coll. – “the 1991 Act”) in respect of among other things livestock (živý a mŕtvy inventár – “the stock”) brought into the cooperative. He also claimed interest for the late payment of the compensation sought.
On 26 March 1998 the District Court ruled that the remaining claims, that is to say the claims for compensation for membership and for the stock, would be determined in a new set of proceedings which was at the same time opened under a different file number. In 1999 the action was registered again under a new file number.
The action was determined on 28 December 2000 by the District Court and, on appeal, on 14 March 2002 by the Trenčín Regional Court (Krajský súd). The courts established the financial value of the applicant’s membership interest in the cooperative and found that he fulfilled all the conditions for being compensated. As to the form of the compensation, they relied on the 1995 amendment and ordered that the cooperative was to choose between granting the applicant agricultural equipment, issuing him shares or paying him an amount of money corresponding to the value of his interest. The applicant’s membership interest in fact represented his rights in respect of the estate of the cooperative. Although it could be settled in several ways, a share in the cooperative was the most appropriate way of compensating him for that interest. The nature of this claim was not financial and, therefore, no late payment interest could be imposed. The courts further established the financial value of the stock and ordered that the cooperative pay the relevant amount plus late payment interest to the applicant. The matter became res iudicata on 15 May 2002.
The applicant filed a petition for judicial enforcement of the above judgments. The enforcement commenced but was subsequently stayed on the defendant’s appeal on the ground that the judgments had been challenged by way of an extraordinary remedy (see below).
On 12 May 2003 the Prosecutor General acceded to the defendant’s request and exercised his discretionary power to challenge the judgments of 28 December 2000 and 14 March 2002 by means of an extraordinary appeal on points of law (mimoriadne dovolanie) on the defendant’s behalf.
On 12 August 2004 the Supreme Court (Najvyšší súd) dismissed the Prosecutor General’s appeal. Its judgment was final.
The applicant then unsuccessfully sought the reopening of the proceedings.


ITEMID: 001-57942
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF MASSON AND VAN ZON v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Lack of jurisdiction (complaint inadmissible);No violation of Art. 6-1;Not necessary to examine Art. 13
TEXT: 8. In 1983 a so-called "Black Book" (zwartboek) containing allegations of irregularities with regard to the financial dealings of the Civil Service Pension Fund (Algemeen Burgerlijk Pensioenfonds, "ABP") was published anonymously.
9. Following a criminal investigation, the two applicants were charged with forgery and corruption. At the time, Mr Masson was the Investments Manager of ABP. Mr van Zon was a businessman with interests in real estate development.
10. On 10 May 1984 Mr Masson was arrested and taken into police custody (verzekering). He was subsequently placed in detention on remand (voorlopige hechtenis).
By order of 21 February 1985 (effective on 22 February) the review chamber (raadkamer) of the Regional Court (arrondissementsrechtbank) of Maastricht suspended the detention on remand, allowing Mr Masson to return to his home on condition, inter alia, that he surrender his passport and report to the local police every day. In addition, he was not allowed to communicate in any way with his co-accused, Mr van Zon. The obligation to report daily to the police was lifted by the review chamber on 26 March 1986.
11. Towards the end of July 1984 the public prosecutor (officier van justitie) summonsed Mr Masson to appear before the Maastricht Regional Court on 3 August 1984 on four counts of forgery, being an accessory to fraudulent bankruptcy, corruption and swindling.
Mr Masson filed an objection (bezwaarschrift) on 26 July 1984, as a result of which the summons lapsed (section 262 of the Code of Criminal Procedure ("CCP") as it then read). The objection was dismissed by the Regional Court on 14 September 1984.
On appeal the 's-Hertogenbosch Court of Appeal decided on 7 November 1984 to clear Mr Masson of one charge, that of being an accessory to fraudulent bankruptcy, but found that there was a prima-facie case against him as regards the remainder. The decision of the Court of Appeal was upheld by the Supreme Court (Hoge Raad) on 26 March 1985.
12. Mr Masson was again summonsed to appear before the Maastricht Regional Court on 20 May 1985, this time on the charges allowed by the Court of Appeal on 7 November 1984.
13. On 21 May 1987, after various adjournments and hearings, the Regional Court acquitted Mr Masson of one of the charges but convicted him of the remainder. It sentenced him to one year's imprisonment and ordered him to pay to the State 108,000 Netherlands guilders (NLG), that being the court's estimate of the benefit derived by Mr Masson from the crimes of which he had been found guilty.
14. Both Mr Masson and the public prosecutor appealed against this judgment to the 's-Hertogenbosch Court of Appeal. On 7 June 1988 the Court of Appeal acquitted Mr Masson on all charges.
15. Mr van Zon was arrested on 11 May 1984. Like Mr Masson, he was taken into police custody and subsequently detained on remand. He remained in detention until 29 January 1985.
On 29 January 1985 his detention on remand was suspended on condition that he report every week to the investigating judge and provide a surety of NLG 350,000. The order to report to the investigating judge was lifted on 14 February 1986. On 30 September 1987, at Mr van Zon's request, the 's-Hertogenbosch Court of Appeal rescinded the order of detention on remand altogether and ordered the return of the surety.
16. Mr van Zon was summonsed to appear on 3 August 1984 before the Regional Court of Maastricht.
17. On 24 June 1987, after various adjournments and hearings, the Regional Court convicted him on a number of counts of fraud, corruption and forgery and sentenced him to one year's imprisonment.
18. Both the public prosecutor and Mr van Zon appealed against the Regional Court's judgment to the 's-Hertogenbosch Court of Appeal.
On 7 June 1988 the Court of Appeal acquitted Mr van Zon on all charges.
19. Mr Masson was suspended from his duties on 26 August 1983 by the Minister for Home Affairs (Minister van binnenlandse zaken) following the opening of the criminal investigation. On 24 December 1984 the Minister decided to withhold one-third of his salary for a period of six weeks and to stop his salary entirely thereafter. This apparently left him without an income from public employment from 5 February 1985 until 1 September 1987, when he became entitled to a pension.
In September 1988, following the acquittal, the Minister for Home Affairs paid Mr Masson half the amount which had been stopped.
20. Mr Masson's costs of legal assistance in the national proceedings totalled NLG 804,090.99. Of this sum NLG 787,243.56 remained unpaid.
21. Mr van Zon had to pay his counsel NLG 610,049.61 for their assistance in the national proceedings. Other expenses included the cost of the banker's guarantee which served as surety in lieu of detention.
22. On 5 and 6 September 1988 respectively, Mr van Zon and Mr Masson filed requests to the Court of Appeal, under section 591a CCP for reimbursement by the State of their legal costs and of travel and subsistence expenses incurred in connection with the proceedings (see paragraph 28 below) and under section 89 for financial compensation for the restrictions on their liberty (see paragraph 27 below).
23. On 9 December 1988 the review chamber of the Court of Appeal rejected both applicants' claims under section 89 on the ground that there were no reasons in equity to award the applicants compensation.
The review chamber, which was composed of three judges, included two (one of them the presiding judge) who had participated in the appeal hearing; the third member of the original chamber had in the meantime left the 's-Hertogenbosch Court of Appeal.
24. In decisions of the same date the presiding judge of the review chamber awarded NLG 5,853.55 to Mr Masson and NLG 3,559.80 to Mr van Zon by way of reimbursement for travel and subsistence expenses incurred in connection with the hearings of the courts and in respect of the costs of defence witnesses, but rejected the remainder of their claims entirely. These decisions explicitly referred to the decisions of the review chamber mentioned in the previous paragraph, including the reasoning on which they were based.
25. Both applicants brought proceedings against the Netherlands State before the Regional Court of The Hague, Mr van Zon on 27 May 1993 and Mr Masson on 6 June 1993. Alleging a wrongful act in civil law (onrechtmatige daad), they claimed compensation for the damage caused to them by the detention on remand and full reimbursement of their legal costs. It appears that these proceedings are still pending.
26. The relevant provisions of the Code of Criminal Procedure were amended by the Act of 8 November 1993, Staatsblad (Official Gazette) 1993, no. 591, which entered into force on 1 January 1994 (see paragraph 31 below).
27. Sections 89 and 90 CCP, in so far as relevant, provided:
"1. If a case ends without the imposition of a punishment or measure, or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed, the court may, at the request of the former suspect, grant him compensation at the expense of the State for the damage which he has suffered as a result of police custody or detention on remand. Such damage may include non-pecuniary damage.
...
3. The request may only be submitted within three months following the termination of the case. The petitioner shall be heard, or at least summoned, and may be assisted during the hearing by a lawyer. At the hearing the lawyer shall be offered the opportunity to make any observations required.
4. The review chamber shall consist as far as possible of the judges who have dealt with the case at the trial.
5. The court competent to grant compensation shall be the court with jurisdiction as to both facts and law (gerecht in feitelijke aanleg) before which, at the time of its termination, the case was or would have been prosecuted or else was last prosecuted, or, if that court is a District Court (kantonrechter), the Regional Court of that judicial district. ..."
"1. Compensation shall be awarded in each case if and to the extent that the court, taking all circumstances into account, is of the opinion that there are reasons in equity to do so.
2. In the determination of the amount, the personal circumstances (levensomstandigheden) of the former suspect shall also be taken into account.
3. The decision shall be reasoned. The decision shall immediately be notified to the former suspect or to his heirs, but in case of a rejection the grounds shall be omitted. In that case the former suspect or his heirs may consult the statement of grounds at the registry."
It was not possible to file an appeal on points of law against a decision based on these provisions.
28. Sections 591 and 591a CCP, in so far as relevant, provided as follows:
"1. Compensation shall be paid to the former suspect or his heirs at the expense of the State for costs borne by the former suspect under or pursuant to the provisions of the Act on Fees in Criminal Cases (Wet tarieven in strafzaken), in so far as the appropriation of these costs has served the investigation or has become devoid of purpose by the withdrawal of summonses or legal remedies by the public prosecution (openbaar ministerie).
2. The amount of compensation shall be determined at the request of the former suspect or his heirs. This request must be submitted within three months following the termination of the case. The determination shall be made in the court with jurisdiction as to both facts and law before which, at the time of its termination, the case was or would have been prosecuted or else was last prosecuted, by the District Court judge or by the presiding judge as the case may be. The presiding judge may appoint one of the judges of the Court of Appeal or the Regional Court who have dealt with the case to do so. The District Court judge or the Regional Court [or Court of Appeal] judge will issue an order of payment (bevelschrift van tenuitvoerlegging) for the amount of the compensation.
3. Petitioners can be heard. If they so wish they will be heard, or at least summoned. They may be assisted by a lawyer. Section 24, last paragraph, applies.
..."
"1. If the case ends without imposition of a punishment or measure ..., the former suspect or his heirs shall be granted compensation at the expense of the State for his travel and subsistence expenses incurred for the investigation and the examination of his case, calculated on the basis of the Act on Fees in Criminal Cases.
2. If the case ends without imposition of a punishment or measure ..., the former suspect or his heirs may be granted compensation at the expense of the State for the damage which he has actually suffered through loss of time as a result to the preliminary investigation (gerechtelijk vooronderzoek) and the examination of his case at the trial, as well as the costs of counsel. This will include compensation for the costs of counsel during police custody and detention on remand. Compensation for such costs may furthermore be granted when a case ends with the imposition of a punishment or measure on the basis of a fact for which detention on remand is not allowed.
...
4. Sections 90 and 591, subsections 2 to 5, shall apply by analogy."
29. The Code of Criminal Procedure, which was adopted in 1921 and entered into force in 1926, assumed that matters dealt with therein were to be decided either by the trial court, following a hearing which in principle was public, or by the review chamber following a hearing in camera to which the public had no access. Proceedings before the review chamber were governed by sections 21 to 26.
Section 21 CCP, in so far as relevant, provided as follows:
"1. All cases in which a decision is not required by law to be taken by the trial court at the trial hearing or taken at the trial hearing ex officio shall be dealt with by the review chamber. However all applications, requests and proposals made at the trial shall be examined and decided at the trial.
2-4. ..."
Section 24 CCP, in so far as relevant, provided as follows:
"1. The accused is entitled to be assisted by counsel at all hearings.
2-3. ...
4. The counsel or the lawyer will be offered the opportunity to make any observations required at the hearings."
30. Requests based on sections 89 and following and on sections 591 and 591a were heard by the review chamber. As is indicated in the preceding paragraph, review chamber proceedings were not intended to be public. However, since the Convention is directly applicable in the Netherlands, taking precedence over domestic law, it was open to petitioners to claim that a request based on one of these provisions related to a "civil right" for the purposes of Article 6 para. 1 (art. 6-1) of the Convention and that they were therefore entitled to a public hearing. It appears from the case-law of the Supreme Court that if the review chamber hearing the request accepted this argument, they were obliged to grant a public hearing. It was also open to the review chamber hearing the request to decide of its own motion that Article 6 para. 1 (art. 6-1) was applicable, with the resultant obligation to hear the request in public unless the petitioner preferred a hearing in camera (see, inter alia, the Supreme Court's judgment of 23 November 1990, Nederlandse Jurisprudentie (Netherlands Law Reports, "NJ") 1991, no. 184).
In an appeal on points of law for safeguarding the law (cassatieberoep in het belang der wet) against a decision of 27 March 1992 by the 's-Hertogenbosch Court of Appeal, the Procurator-General (procureur-generaal) to the Supreme Court addressed the question, which he answered in the negative (see paragraphs 19-21 of his statement of grounds of appeal), whether a request for compensation based on section 89 CCP led to the determination of a "civil right". In its judgment rejecting the appeal (judgment of 2 February 1993, NJ 1993, no. 553) the Supreme Court expressly declined to rule on this issue.
31. The Act of 8 November 1993 (see paragraph 26 above) is intended to ensure the conformity of review chamber proceedings with Article 6 (art. 6) of the Convention as the legislature considers that this provision (art. 6) is to be interpreted in the light of the Court's case-law. The legislature has chosen to retain the general principle that review chamber proceedings are not public but to prescribe public hearings where Article 6 (art. 6) makes that necessary. Section 22 CCP, in so far as it is relevant, now reads:
"1. Review chamber proceedings shall not be public unless they are required to be by law.
2-4. ..."
The explanatory memorandum (Kamerstukken (Parliamentary Documents) II, 1991-1992, 22,583 no. 3, pages 11 and following) enumerates the review chamber proceedings which, in the view of the Government, are covered by Article 6 (art. 6) of the Convention. In this connection, the following passage taken from the explanatory memorandum is of relevance (page 17):
"The actions for obtaining compensation for damage or costs* are of a composite nature (gemengd van aard) (sections 89, 90, 591 and 591a). The close link between the action and criminal proceedings admittedly justifies placing them in the Code of Criminal Procedure, but what is at stake in the proceedings can be qualified as of a civil-law nature. The applicability of Article 6 (art. 6) is thus established." (*emphasis in the original)
Accordingly, the third paragraph of section 89 now reads:
"The request may only be submitted within three months following the termination of the case. It shall be dealt with by the review chamber in public."
Similarly, the third paragraph of section 591 now reads:
"The request shall be dealt with by the review chamber in public."
As a further consequence of the fact that Article 6 (art. 6) is now considered applicable to the proceedings brought pursuant to section 89, the third paragraph of section 90 has been amended so as to read:
"The decision shall be notified without delay to the former suspect or his heirs."
The explanatory memorandum states the following: "
Section 24 requires the decision to be reasoned. It is incompatible with the proposed publicity of the proceedings and of the decision to omit reasoning in a decision rejecting the request."
32. In its judgment of 7 April 1989, NJ 1989, no. 532, the Civil Division of the Supreme Court ruled that section 89 CCP did not prevent the former suspect who considered himself a victim of unlawful detention from bringing proceedings in tort against the State and claiming full compensation for any damage suffered. The Supreme Court held, inter alia, that
"[section 89] did not purport to do more than offer the courts the possibility of granting compensation `for detention that was lawful but nevertheless shown afterwards to be unjustified'".
Further to that judgment, the Criminal Division of the Supreme Court, in its judgment of 2 February 1993, NJ 1993, no. 552, held, inter alia:
"Sections 89 and following CCP offer the former suspect a speedy and inexpensive but, in view of what is laid down in section 90, first and second paragraphs, limited possibility of obtaining compensation for damage suffered on grounds of equity. This procedure therefore does not extend to the determination by the courts of complete compensation for damage on the basis of a tort committed by the State vis-à-vis the (former) suspect and therefore does not affect the possibility open to the former suspect of bringing his claim before the civil courts on that basis. Given the limited purport of the procedure established by sections 89 and following, what is laid down in those provisions as regards the procedure to be followed does not inhibit their application even in cases of unlawful detention."
33. Recently the Civil Division of the Supreme Court has confirmed that a former suspect may bring an action before the civil courts only if he or she wishes to claim compensation on the basis of unlawful detention and that otherwise the only remedy available is to bring proceedings under sections 89 and following CCP (judgment of 23 December 1994, Rechtspraak van de Week (Weekly Law Reports, "RvdW") 1995, no. 12).
It thus appears from the case-law that former suspects may choose between proceedings before the criminal courts and proceedings before the civil courts. For their claim to be allowed by the civil courts, they must state, and prove, that the detention was unlawful in their regard; if they are successful, they are entitled to full compensation. For their claim to be accepted by the criminal courts, no more is required than that the case should end without the imposition of a punishment or measure and that the review chamber should consider that reasons in equity exist to award compensation.
34. There was formerly some controversy in legal writing as to when deprivation of liberty in connection with criminal proceedings constituted a tort, but this has now been settled by two recent judgments of the Supreme Court.
In its judgment of 29 April 1994, RvdW 1994, no. 104, the Supreme Court rejected the suggestion that pre-trial detention undergone in connection with a criminal act of which the suspect is afterwards acquitted should invariably be considered to be retrospectively unlawful and that the State should therefore be held liable to pay compensation for all damage suffered by the former suspect. The Supreme Court held that, on the contrary, only additional circumstances could lead to such a finding. These additional circumstances were referred to in this judgment and further elaborated in the Supreme Court's above-mentioned judgment of 23 December 1994. From this statement of the law it envisages that pre-trial detention can only engage the State's liability in tort, and entitle the former suspect to full compensation, in two cases:
- firstly, if it is established, either by the judgment acquitting the former suspect or on the basis of other evidence contained in the case file of the criminal proceedings, that the suspicion which existed when the pre-trial detention was ordered and which at that time justified the detention had no basis in fact; or
-
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-95734
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TVERDOKHLEBOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1961 and lived in Gukovo. In December 2007 the applicant died and his sister, Mrs Irina Nikolayevna Kulikova, indicated that she wished to pursue the case.
7. On 13 February 1997 the applicant was apprehended at the Chervonopartizanskyy border crossing point on suspicion of drug trafficking. On the same date the applicant's car, which he had been driving at the time, was seized together with his belongings, documents and money which were in it. The customs officers refused to compile an inventory of objects seized from the applicant. Subsequently, the Customs Service transferred the car to a private company called Forum for storage.
8. On 26 June 1997 the Sverdlovsk Court sentenced the applicant to five years' imprisonment for drug trafficking and confiscated all of his property.
9. On 8 October 1997 the Lugansk Regional Court modified that judgment, sentencing the applicant to five years' imprisonment, suspended, without confiscation.
10. On 5 November 1997 the applicant approached Forum to ask for the return of his car. When the car was returned, the applicant noted that it had been seriously damaged and lacked several parts, the documents and belongings had been torn up and his money had disappeared. According to the company, the Customs Service had transferred the car in that condition on 20 February 1997.
11. On 4 January 1998 the applicant instituted proceedings in the Sverdlovsk Court against the Sverdlovsk Customs Service seeking compensation for pecuniary and non-pecuniary damage and stating that the defendant had failed to comply with its obligation to keep his property undamaged and without loss.
12. On 26 March 1998 the court partially allowed the applicant's claims and awarded him part of the compensation claimed.
13. On 28 May 1998 the Lugansk Regional Court quashed that judgment and remitted the case for fresh consideration to the same court.
14. On 9 November 1998 the Sverdlovsk Court rejected the applicant's claims as unsubstantiated.
15. On 19 February 1999 the prosecutor's office initiated criminal proceedings against two customs officers, Mr V. and Mr C., following a request from the applicant in which he alleged that these persons were responsible for the damage to his car and belongings.
16. On 15 September 1999 the Presidium of the Lugansk Regional Court quashed the judgment of 9 November 1998 at the request of the prosecutor's office and remitted the case for fresh consideration to the first-instance court.
17. On 16 February 2000 the Sverdlovsk Court suspended the civil proceedings pending the outcome of the criminal proceedings against Mr V. and Mr C.
18. The criminal investigation in the criminal case against Mr V. and Mr C. is still pending.
19. On an unspecified date following the applicant's death, his mother, Mrs Nasima Mullakhmetovna Tverdokhlebova, and daughter, Ms Mariya Vladimirovna Tverdokhlebova, joined the civil proceedings as the applicant's successors. They are represented before the domestic court by Mrs Irina Vladimirovna Kulikova, the applicant's sister.
20. According to Mrs Kulikova, in May 2009 the hearings in the civil case in question resumed and the case is currently pending before the first instance court.
VIOLATED_ARTICLES: 6


ITEMID: 001-75560
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MOSCONI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant was born in 1931 and lives in Rome.
6. The applicant is the owner of two flats in Rome, which he had respectively let to C.C. and G.C.
7. In a registered letter of 14 June 1991, the applicant informed the tenants that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked them to vacate the premises by that date.
8. In a writ served on the tenants on 16 January 1992, the applicant reiterated his intention to terminate the lease and summoned the tenants to appear before the Rome Magistrate.
9. By a decision of 16 April 1992, which was made enforceable on the same day, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 March 1993.
10. On 11 March 1995, the applicant served notice on the tenants requiring them to vacate the premises.
11. On 25 March 1995, he informed the tenants that the order for possession would be enforced by a bailiff on 5 May 1995.
12. On 5 May 1995, the bailiff made one attempt to recover possession of the flats which proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
13. Pursuant to Law no. 241/90, on 2 November 1995, the applicant addressed himself to the Prefectoral Committee in order to be granted the assistance of the police in enforcing the order for possession.
14. The Prefectoral Committee informed the applicant that priority was given to landlords urgently requiring premises as accommodation for themselves, their spouses, children or ascendants and for seeking priority treatment he should have made a statutory declaration.
15. On 11 September 1999, the Rome Magistrate set the date of the eviction proceedings for 10 January 2000.
16. Then, pursuant to Law no. 388 of 23 December 2000, the enforcement proceedings were suspended until 29 June 2001; Law-Decree no. 247/01 suspended them until 31 December 2001 and Law-Decree no. 450/01 suspended them until 30 June 2002.
17. On 25 November 2002, the applicant recovered possession of the flat which he had let to C.C.
18. Pursuant to Law no. 200 of 24 August 2003, Law-Decree no. 147/03 suspended the enforcement proceedings until 30 June 2004.
19. On an unspecified date in 2003, it appears that the applicant has recovered possession of the flat.
20. The relevant domestic law and practice is described in the Court’s judgment in the case of Mascolo v. Italy (no. 68792/01, §§ 14-44) and Lo Tufo v. Italy (no. 64663/01, §§16-48, ECHR 2005...).


ITEMID: 001-88805
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF BRAJOVIC-BRATANOVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1946 and lives in Bethesda, the United States of America.
5. The applicant owns a flat in Cavtat, Croatia. In September 1995 Parliament passed a law governing the temporary use of property of persons who had left Croatia - Temporary Takeover and Management of Certain Property Act ( Zakon o privremenom preuzimanju i upravljanju određenom imovinom - hereinafter the “Property Takeover Act”), which allowed municipalities to temporarily accommodate other persons in such property.
6. In 1992 R., a policeman, forcibly moved into the applicant’s flat in Cavtat, Croatia. On 25 September 1995 the Konavle Housing Commission granted him refugee status and legalised his occupation of the applicant’s flat. On 30 January 2002 the applicant applied to the Housing Commission for repossession of her property.
7. On 11 January 2002 the applicant instituted civil proceedings before the Dubrovnik Municipal Court seeking R.’s eviction. On 27 February 2002 the claim was declared inadmissible for lack of jurisdiction. The applicant appealed.
8. On 29 August 2002 the applicant lodged a request with the Ministry of Public Works, Reconstruction and Construction seeking annulment of the decision authorising R. to occupy her flat.
9. The judgment of the Dubrovnik Municipal Court of 27 February 2002 was quashed by the Dubrovnik County Court on 30 August 2002 and the case was remitted to the Municipal Court for a fresh trial.
10. On 1 October 2002 the Amendments to the Act on Areas of Special State Care (Zakon o izmjenama i dopunama Zakona o područjima od posebne državne skrbi – “the 2002 Amendments”) entered into force. They transferred the jurisdiction in the matter from the housing commissions (which were abolished) to the Ministry of Public Works, Reconstruction and Construction (Ministarstvo za javne radove, obnovu i graditeljstvo – “the Ministry”).
11. On 25 October 2003 the Dubrovnik Municipal Court upheld the claim and ordered R.’s eviction. R. appealed.
12. On 12 December 2003 the Ministry set aside the Property Takeover Commission’s decision authorising R. to occupy the applicant’s flat but also stated that R. had the right to housing under section 7 of the Act on Areas of Special State Concern.
13. The judgment of the Dubrovnik Municipal Court of 25 October 2003 was quashed by the County Court on 17 February 2005 on the ground that no alternative accommodation had been provided to R. Accordingly, the case was returned to the Municipal Court for further examination. On 12 May 2006 the applicant lodged an application with the Supreme Court complaining about the length of the proceedings. In a letter of 26 May 2006 the Supreme Court instructed the Dubrovnik Municipal Court to speed up the proceedings.
14. On 31 May 2006 the Municipal Court again granted the applicant’s claim and ordered R.’s eviction. R. appealed against this judgment to the Dubrovnik County Court. While the case was pending there the applicant once more applied to the Supreme Court complaining about the length of the proceedings. In a letter of 11 September 2006 the Supreme Court instructed the County Court to speed up the proceedings and adopt a judgment.
15. On 2 October 2006 the County Court again quashed the judgment of the Municipal Court and accordingly the latter was once more required to examine the applicant’s claims. In a judgment of 27 March 2007 the Municipal Court, as in its previous judgments, found in favour of the applicant. R. appealed against this judgment and the appeal is at present pending before the Dubrovnik County Court.
16. The following are the relevant sections of the Property Takeover Act (Zakon o privremenom preuzimanju i upravljanju određenom imovinom, Official Gazette nos. 73/1995 and 7/1996):-
Section 2(2) transferred the property belonging to persons who had left Croatia after 17 October 1990 to the care and control of the State.
Section 5, inter alia, authorised the property takeover commissions to allow temporary occupation of property under section 2 by refugees, displaced persons or persons whose property had been destroyed in the war.
17. Section 9 of the Programme for Return (Program povratka i zbrinjavanja prognanika, izbjeglica i raseljenih osoba, Official Gazette no. 92/1998) provided as follows:
“Persons with Croatian [citizenship] documents who are owners of property in Croatia in which other persons are temporarily accommodated may apply to the municipal housing commission seeking repossession of their property. The commission shall inform the owner within five days about the status of his property. Relying on proof of ownership, the commission shall set aside any previous decision allowing the temporary accommodation of other persons and order the temporary occupier to vacate the premises. The commission shall serve a written decision on the owner and on the temporary occupier within seven days. The decision shall contain a time-limit for eviction and an offer of alternative accommodation for the temporary occupier in a house or flat under state ownership.
...
If a temporary occupier fails to vacate the premises within the fixed time-limit, the commission shall institute eviction proceedings in the competent municipal court within seven days. The court shall apply the provisions concerning summary procedure in civil matters. The court’s decision shall be immediately enforceable. An appeal shall not interfere with the enforcement proceedings or the repossession of the property by the owner.”
18. Section 2(3) and 2(4) of the Termination Act (Zakon o prestanku važenja Zakona o privremenom preuzimanju i upravljanu određenom imovinom, Official Gazette no. 101/1998) provided that the Programme for Return applied to proceedings concerning the temporary use, management and control of the property of persons who had left Croatia and that such proceedings were to be conducted by housing commissions in the first instance and by municipal courts in the second instance. They were required to apply the Administrative Procedure Act.
19. Sections 7, 9 and 17 of the Act on Areas of Special State Concern (Zakon o područjima od posebne državne skrbi, Official Gazette nos. 44/1996, 57/1996 (errata), 124/1997, 73/2000, 87/2000 (errata), 69/2001, 94/2001, 88/2002, 26/2003 (consolidated text), 42/2005), as amended by the 2002 Amendments, gave a temporary occupier a right to housing.
Section 24 (enacted on 14 July 2000, published in the Official Gazette no. 73 of 21 July 2000, came into force on 29 July 2000) obliges the Ministry to secure alternative accommodation for the occupier within six months of the owner’s request for the return of his or her property, failing which the owner is entitled to seek the conclusion of a lease agreement by which the occupier leases the premises and the Ministry pays the rent to the owner.
Section 27 obliges the Ministry to pay compensation for the damage sustained by an owner who applied for repossession of his or her property prior to 30 October 2002 but to whom the property was not returned by that date.
20. The Decision on the Level of Compensation Due to Owners for Damage Sustained (Odluka o visini naknade vlasnicima za pretrpljenu štetu, Official Gazette no. 68/2003) establishes the amount of that compensation at seven Croatian kunas (HRK) per square metre.
21. The following are the relevant sections of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/1996, 73/2000 and 114/2001):-
Section 161(1) entitles the owner of property to recover it from anyone who is in possession of it.
Section 163(1) allows anyone entitled to retain possession (that is, if he or she has a right of possession) to refuse to return the property to its owner.
22. The relevant part of the Courts Act (Zakon o sudovima, Official Gazette no. 150 of 21 December 2005, entered into force on 1 January 2006) reads as follows:
“(1) In the determination of his rights and obligations or of a criminal charge against him or her, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law.
...”
“(1) A party to the judicial proceedings ... may lodge a request for the protection of the right to a hearing within a reasonable time with a court hierarchically superior [to the one conducting the proceedings].
...”
“(1) Where the court deciding a request under section 27 finds it founded it shall set a time-limit within which the competent court must decide the case on the merits ... and shall also assess appropriate compensation for the applicant for the violation of his or her right to a hearing within a reasonable time.
...
(3) An appeal lies to the Supreme Court against a decision on a request for protection of the right to a hearing within a reasonable time. ... a constitutional complaint may be lodged against the Supreme Court’s decision.”
23. The relevant part of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
Section 63
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date on which a request for payment is lodged.”
24. In a series of decisions (for example, in cases nos. Rev-291/1999-2 of 11 September 2002, Rev-1157/02-2 of 21 November 2002 and Rev1289/00-02 of 6 November 2003), starting with decision no. Rev574/02-2 of 23 April 2002 the Supreme Court interpreted the relationship between the Property Act and the Termination Act as follows:
“The jurisdiction to decide on an owner’s application for repossession conferred on the administrative authorities under the Termination Act does not exclude ordinary court jurisdiction in such matters under the Property Act. Therefore, a civil action for repossession, based on section 161(1) of the Property Act and brought in a court against a temporary occupier by an owner whose property had been taken over under the Takeover Act, should be decided on its merits rather than declared inadmissible for lack of jurisdiction.”
25. In its decisions nos. Rev-967/00-2 of 30 September 2004 and Rev1444/02-2 of 29 June 2004 the Supreme Court gave a further interpretation of the relationship between the Property Act and the Termination Act as well as of the Programme for Return:
“The temporary occupier’s right to use the owner’s property does not cease merely for the reason that a housing commission has set aside the decision allowing him or her to do so. This is because the duty to return the property to its owner is conditional upon the duty of the State to provide alternative accommodation for the temporary occupier.
It follows that the temporary occupier is not obliged to compensate the owner for the use of his or her property since, before being provided with alternative accommodation, he or she remains in bona fide possession.”
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-119261
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: RZEPA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Ms Stanisława Rzepa, is a Polish national, who was born in 1956 and lives in Będziemyśl.
2. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is a widow and has one child. Prior to her application for an EWK pension (see paragraph 8 below) she had been employed since 1983 by the same employer.
5. On 19 June 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension.
6. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health, a medical certificate issued by a specialist medical centre. The certificate stated that the child (born in 1985) suffered from a congenital malformation of both arms (bilateral radioulnar synostosis, zrost promieniowo-lokciowy) and was in need of the parent’s constant care.
7. On 25 June 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of around 700 Polish zlotys (PLN) per month. In addition to the EWK pension the applicant received a family allowance and nursing benefit which, together with the pension, amounted to PLN 850 net per month.
8. The Social Security Board initially suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision. Shortly afterwards the applicant informed the SSB of her resignation with effect from 30 August 2001. The payment of the pension started on 1 August 2001.
9. On 14 September 2001 the applicant was reemployed by her previous employer, a municipal transport company (PKS Sedziszow Malopolski), and remained employed continuously until 13 September 2003.
10. On 20 May 2002 the Rzeszów Social Security Board requested the Social Security Board’s doctor (Główny Lekarz Orzecznik) to specify whether the applicant’s daughter required the permanent care of a parent. On an unspecified date the doctor stated that, on the basis of the medical documents, the child in question could not be considered as ever having required such care.
11. On 30 July 2002 the Rzeszów Social Security Board simultaneously issued two decisions in respect of the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued with immediate effect (1 August 2002). By virtue of the second decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki) (“the 1989 Ordinance”).
12. The applicant appealed against these decisions. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.
13. On 18 December 2002 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence, including expert medical evidence, that the applicant’s child suffered from a mild malformation of her arms but did not require her mother’s permanent care since her state of health did not significantly impair her body functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care.
14. The applicant further appealed against the first-instance judgment. In particular, she claimed that she had been informed by the SSB that she could continue working while in receipt of the EWK pension.
15. On 30 October 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal. The court considered that only a total impairment of the child’s arms could justify the need for her parent’s constant care. In the present case the malfunction did not significantly impair her body functions. The child had been going to school by herself and required only minor everyday help. Moreover, the fact that the applicant has been employed fulltime while receiving the EWK pension was an important aspect of the case.
16. On 28 April 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant.
17. Following the social security proceedings the applicant was not ordered to return her early-retirement benefits paid by the Social Security Board, despite the revocation of her right to the early-retirement pension.
18. The applicant submitted, in general, that after the revocation of the EWK pension her financial situation had been difficult.
19. The Government submitted that the applicant had been employed continuously while receiving the EWK pension and at the time the pension was revoked. From November 2003 and December 2004 she received an unemployment allowance. In addition, in 2005 the applicant and her daughter were granted a family pension following the death of the applicant’s husband. The pension amounted to PLN 300 per person per month. The applicant’s daughter started working in 2007 and remains employed. The applicant also owns a small farm.
20. The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v. Poland, no. 10373/05, §§ 3134, 15 September 2009 and Antoni Lewandowski v. Poland, no. 38459/03, §§ 3643, 2 October 2012).


ITEMID: 001-61173
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF STRETCH v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: 10. The applicant was born in 1934 and lived in Wareham.
11. By a lease dated 27 November 1969 the applicant was granted a building lease of industrial land by Dorchester Borough Council (“Dorchester”) for twenty-two years from 29 September 1969. The lease required him to erect up to six buildings at his own expense for light industrial use and included an option to renew for a further twenty-one years in the following terms (at sub-clause 5(1)):
“If the Lessee shall be desirous of taking a lease of the said demised premises for a further term of 21 years from the expiration of the terms hereby granted and shall, not more than 12 months nor less than six months before the expiration of the said terms, give the Corporation notice in writing of his desire and if he shall have paid the rents hereby reserved and shall have reasonably performed and observed the covenants, provisions and stipulations herein contained (...), then the Corporation will let the demised premises to the Lessee for the said further term of 21 years (...)”.
12. The applicant states that he had requested a 43 year term in the course of negotiations but that this request was refused by Dorchester. The applicant was represented by solicitors when negotiating and entering into the lease.
13. In accordance with sub-clause 5(1) of the lease the applicant gave notice to exercise the option on 4 October 1990. At this date, he was paying a ground rent of 1,045 pounds sterling (GBP) per annum. He had paid GBP 20,020 in total rent over the 22 year period and his income from his sub-leases of the six units was GBP 58,599 for the year ending March 1991.
14. By this time West Dorset County Council (“West Dorset”) had become the statutory successor to Dorchester. On 2 November 1990, West Dorset acknowledged the applicant’s notice and indicated that it would be instructing surveyors to negotiate a new rent for the first seven years of the term. Negotiations commenced between the parties as to renewal of the lease and a draft lease was drawn up on the basis of an increased ground rent, which the applicant states was agreed at GBP 14,000 per annum. The applicant signed his copy of the draft and meanwhile commenced discussions with various of his tenants concerning increases of rent under their subleases. In August 1991 however, West Dorset notified the applicant that it considered that the option could not be exercised. In the subsequent proceedings, it took three points: that the applicant was in breach of the repairing covenants in the 1969 lease; that the option was not capable of being exercised by the applicant because by granting five subleases for terms greater than the term of the 1969 lease he had assigned his interest in the units under sublease; and that the option was ultra vires Dorchester.
15. On 26 September 1991 the applicant applied to the Chancery Division of the High Court for a declaration that he was entitled to the grant of the further term and for an order of specific performance to enforce his right. His application was dismissed on 25 April 1996. The judge rejected West Dorset’s claim as to breach of covenant but found in favour of West Dorset on their two other objections. He noted that the ultra vires point had not been raised until relatively late in the proceedings, namely, in an affidavit lodged by West Dorset dated 5 October 1995.
16. On 10 November 1997 the Court of Appeal upheld the judge’s decision, on the ground that the grant of the option had been beyond Dorchester’s powers.
17. In the course of the proceedings before the Court of Appeal, the applicant sought to rely upon two separate statutory provisions, each of which he said gave Dorchester power to grant the option. The first was section 172(3) of the Local Government Act 1933 (“the 1933 Act”). This provides (as relevant):
“Where the council of a borough desire to dispose of corporate land otherwise than as aforesaid, they may, with the consent of the Minister, dispose of the land either by way of sale, exchange, mortgage, charge, demise, lease or otherwise, in such manner and on such terms and subject to such conditions ... as the Minister may approve.”
18. The term “corporate land” is defined in section 305 of the 1933 Act as:
“... [L]and belonging to, or held in trust for, or to be acquired by or held in trust for, a municipal corporation otherwise than for an express statutory purpose”
19. Following an examination of the history surrounding Dorchester’s appropriation of the land in question, the Court of Appeal concluded that it had been held by Dorchester for an “express statutory purpose” at the time of the lease and was thus not “corporate land”, with the result that section 172(3) did not apply.
20. The second statutory provision upon which the applicant sought to rely was section 164 of the 1933 Act, which provides:
“A local authority may let any land which they may possess –
(a) with the consent of the Minister, for any term;
(b) without the consent of the Minister, for a term not exceeding seven years.”
21. The crucial question on this provision was whether the power to let included the grant of an option to renew. The Court of Appeal had answered this in the negative, albeit obiter dicta, in the case of Trustees of the Chippenham Golf Club v. North Wiltshire District Council (1991) 64 P & CR 527. A deputy High Court judge reached the same conclusion when it was directly in issue before him in 1993. The Court of Appeal in the applicant’s case referred to both of these decisions in finding that a grant of an option to renew was not the same as the exercise of a power to let. As a result, section 164 did not apply so as to give Dorchester the power to grant the option.
22. Lord Justice Peter Gibson, in summing up his judgment in the Court of Appeal, observed:
“... I would dismiss this appeal. I do so with little satisfaction. It seems to me unjust that when public bodies misconstrue their own powers to enter into commercial transactions with unsuspecting members of the public, those bodies should be allowed to take advantage of their own errors to escape from the unlawful bargains which they have made. For a local authority to assert the illegality of its own action is an unattractive stance for it to adopt. It is the more striking when, as in this case, the transaction in question is as mundane as a building lease; and the local authority, by taking the point against the member of the public with whom it or its predecessor contracted, thereby robs that member of the public of part of the consideration for entering into the lease. ...”
23. On 7 May 1998 the House of Lords dismissed the applicant’s petition for leave to appeal.
24. Local authorities are statutory bodies whose powers are governed by domestic legislation. The legal consequences of entry into contractual commitments beyond statutory authority were explained by Hobhouse LJ in the case of Credit Suisse v. Allerdale Borough Council [1997] QB 306, where he stated (at 350 D-F):
“Where a statutory corporation purports to enter into a contract which it is not empowered by the relevant statute to enter into, the corporation lacks the capacity to make the supposed contract. This lack of capacity means that the document and the agreement it contains do not have effect as a legal contract. It exists in fact but not in law. It is a legal nullity. The purported contract which is in truth not a contract does not confer any legal rights on either party. Neither party can sue on it.”
He also emphasised:
“Any third party dealing with a local authority should be aware of that fact [of limited capacity and competence] and of the potential legal risk.”
He cited the old authority of Chapleo v. Brunswick Permanent Building Society ((1881) 6 QBD 696 at p. 712-713):
“... persons who deal with corporations or societies that owe their constitution to or have their powered defined or limited by Act of Parliament, or are regulated by deeds of settlement or rules, deriving their effect more or less from Acts of Parliament, are bound to know or to ascertain for themselves the nature of the constitution, and the extent of the powers of the corporation or society with which they deal. The plaintiffs and everyone else who have dealings with a building society are bound to know that such a society has no power of borrowing, except such as is conferred upon it by its rules, and if dealing with such a society they neglect or fail to ascertain whether it has the power of borrowing or whether any limited power it may have has been exceeded, they must take the consequences of their carelessness.”
25. Where contracts are rendered legal nullities or void ab initio restitutionary principles may apply to require the restoration of the moneys paid under the contract (for example, Westdetusche Landesbanke Girozentrale v. Islington LBC [1994] 4 AER 890). The application of the principles of unjust enrichment may thus provide redress in circumstances where a contract or part of a contract is void.
26. The statutory regime in force has changed since 1969 when the lease was granted in this case. Section 123 of the Local Government Act 1972, where applicable, does not now prohibit the grant of an option such as was granted in this case nor does the Housing Act 1985. Pursuant to the Local Government (Contracts) Act 1997, the strictness of the principles of incapacity applying to a local authority which purports to contract beyond its statutory powers has been relaxed. Section 2 provides for such a contract to have effect as if the local authority had had power to enter into it and had properly exercised that power, so long as the contract has been certified in the manner set out in the Act.