ITEMID: 001-68582
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SZENK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Not necessary to examine P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1929 and lives in Warsaw.
9. The applicant’s parents owned a two-storey building in Warsaw. By virtue of the 1945 Decree on the Ownership and Use of Land in Warsaw the Warsaw municipality (and after 1950 the State Treasury) became the owner of all plots of land located in Warsaw. The decree provided for a possibility to obtain the perpetual lease of a plot of land on request. On 23 November 1948 the applicant’s parents filed such a request. At the beginning of the 1950s they were deprived of the right to manage the property and forced to renounce the rent collected from their tenants.
10. On 5 July 1967 the Board of the Warsaw National Council examined their request lodged in 1948. It refused to grant the applicant’s parents the perpetual use (former perpetual lease) of the land and declared that the building located on that land had become the property of the State.
11. On 4 December 1967 the Ministry of Municipal Administration dismissed the applicant’s appeal against that decision. It found that the building in question was not a small one-family house, which would qualify it for exclusion from the so-called “communal administration” of properties, provided for by a law adopted in 1957. As the building was covered by that administration, the Ministry considered that granting the perpetual use of the land would have no justification.
12. On 17 June 1991 the applicant filed with the Ministry of Construction a request for the annulment of the decision of 4 December 1967. On 1 April 1992 the Minister refused the request, considering that the challenged decision had been issued in accordance with the law. The applicant appealed. On 23 July 1993 the Supreme Administrative Court dismissed his appeal.
13. Subsequently, the First President of the Supreme Court filed with that court an extraordinary appeal against that judgment.
14. On 7 February 1995 the Supreme Court quashed the 1993 judgment of the Supreme Administrative Court and the decision of the Minister of Construction. It considered that they had relied on the conformity of the 1967 decisions with the “communal administration” of properties, whereas the law providing for such administration had been adopted after the date of lodging the request for perpetual lease and therefore could not apply. The court observed that the 1945 decree obliged the municipality to grant requests for perpetual use of land unless the use of that land by its former owner would be incompatible with its function set forth in the development plan. The Supreme Court pointed out that the organs dealing with the applicant’s request had not examined the issue of such compatibility. It made reference to the constitutionally guaranteed protection of property, pointing out that the applicant’s property had been expropriated on unspecified legal grounds and no compensation had been awarded therefor.
15. On 24 August 1995 the Minister of Construction, having regard to the Supreme Court’s judgment, declared that the part of the decision of 4 December 1967 concerning those flats in the disputed building which had been already sold by the municipality to their tenants had been issued in breach of the law. However, it was impossible to declare the decision null and void since, under applicable law, if more than ten years had elapsed from the date on which such an unlawful decision had been given, the Minister could only declare that it had been issued in breach of the law. The Minister annulled the remainder of that decision. In consequence, the appellate proceedings in respect of that part of the July 1967 decision were re-opened.
16. On 23 November 1995 the Warsaw Self-Governmental Board of Appeal quashed the decision of 5 July 1967 and remitted the case for re-examination.
17. In 1996 the applicant lodged with the Board of Appeal a complaint about the inactivity of the Mayor of Warsaw, who was competent to deal with the case.
18. On 16 September 1996 the Warsaw-Centre Municipal Office requested the applicant to provide it with a copy of judicial decisions identifying his parents’ heirs. On 3 and on 23 October 1996 the applicant submitted the requested information. On 23 October 1996 three heirs of the former co-owner Ms J.K. declared their wish to join the proceedings. On 30 October 1996 the former co-owner D.K., who had later changed her name to D.Sz., also declared her wish to do so.
19. On 21 November 1996 the Warsaw-Centre Municipal Office requested the Department of Town Planning and Architecture of the District Office Praga Południe to submit an extract from the town planning scheme concerning the plot under dispute.
20. Also on 21 November 1996 the Warsaw-Centre Municipal Office informed the applicant about the problems hindering it from taking the requested decision. The first problem consisted in the fact that the applicant’s mother had lodged her request to be granted the right to perpetual use before the State Treasury became officially the owner of the plot. Another difficulty arose from the fact that the heirs of Ms J.K. – the former co-owner of the plot – had not submitted to the Office their legal titles to the ownership. Finally, it was necessary for the Office to obtain the extract from the town planning scheme concerning the plot. In order to clarify the legal consequences arising from the first problem the Office had posed a legal question to the Supreme Administrative Court, asking if the requirements of the 1945 Decree were fulfilled when the request had been lodged before the plot in question came officially into the ownership of the State Treasury. The applicant was informed that as soon as the answer was provided the Office would proceed further with his request.
21. On 29 November 1996 one of the heirs of the former co-owner presented to the Office a decision stating that the part of the plot belonging to the late Ms J.K. had been inherited by six persons (Ms Z.W., Mr H.K., Mr M.K., Ms T.P., Ms K.F and Ms R.K.). She additionally informed the Office that certain other inheritance proceedings concerning the estate of Ms J.K.’s late heirs were pending.
22. On 9 December 1996 the Warsaw-Centre Municipal Office received the extract from the town planning scheme concerning the plot.
23. The examination of the case not having commenced for over a year, the applicant lodged with the Board of Appeal a complaint about the inactivity of the Mayor of Warsaw. On 21 February 1997 the Board of Appeal found the applicant’s complaint well-founded and ordered the Mayor to finish the examination of the case by 31 March 1997.
24. On 22 February 1997 one of the heirs of the former co-owner Ms J.K. informed the Office that the inheritance proceedings concerning the estate were still pending.
25. On 30 April 1997 the applicant requested the Office to issue in his case not one but two decisions granting him the right to perpetual use of the plot concerned. He argued that before the plot came into the ownership of the State Treasury, it constituted two separate plots. In consequence, the Office should restore the original legal situation of the property and should issue two separate decisions granting the applicant the right to perpetual use of the separate plots of land.
26. On 30 April 1997, at the request of the Office, an expert submitted an evaluation report concerning the value of the plot.
27. On 28 July 1997 one of the heirs of the former co-owner informed the Office that the inheritance proceedings had been terminated. She submitted a copy of the court’s decision of 18 June 1997. The decision awarded the estate to Mr M.K., Mr H.K. and Mr R.A.K.
28. On 15 September 1997 the applicant submitted to the Municipal Office a copy of a request lodged with the court by a certain Ms H.K. She requested the court to quash the court’s decision of 18 June 1997 in the part concerning the estate of Mr M.K. She argued that already by 2 March 1978 she had been declared his heir.
29. On 30 September 1997 the applicant requested the Office to grant him the perpetual use but only in regard to a part of the presently existing plot. This part of the plot had earlier constituted a separate plot.
30. On 16 December 1997 the Warsaw-Centre Municipal Office requested the Deputy Director of the Board of the District Praga Południe to prepare a socalled “map of legal status” of the plot.
31. On 29 January 1998 the Supreme Court quashed the decision of 18 June 1997 concerning the estate of Mr M.K. As a result, Ms H.K. inherited the entire estate of the late Mr M.K.
On 14 May 1998 the District Office Praga Południe informed the Warsaw-Centre Municipal Office that the lawful division of the building was impossible because it did not possess a mandatory anti-fire wall. In the light of this information the Office decided that an expert opinion should be prepared. On 22 June 1998 the expert submitted the opinion. He stated that the lawful division of the building was possible.
32. On 16 July 1999 the Municipal Office requested the District Office Praga Południe to issue a decision confirming the division of the plot was possible and an approval of the division of the plot.
33. On 15 July 1999 the Office requested Ms H.K. to provide it with a copy of the court’s decision which had awarded her the estate of the late Mr M.K. She did so on 30 July 1999.
34. On 29 July 1999 the Warsaw-Centre Municipal Office informed the applicant and other heirs of the former co-owners that it had instituted ex officio administrative proceedings concerning the division of the plot. It was explained that the decision approving the division of the plot would make it possible to determine the parties’ shares in the co-property and that, in turn, this would make it possible to give a decision conferring the right to perpetual use of the plot. By a letter of 30 July 1999 the parties to the proceedings were requested to appear within a fourteen days time-limit in order to express their opinion concerning the planned division of the plot.
35. On 18 August 1999 Ms H.K. and on 23 August 1999 Ms Z.W expressed their consent to the division.
36. Due to the fact that not all persons summoned to do so, including the applicant, had expressed their consent to the planned division of the plot, on 2 September 1999 the Office discontinued the proceedings in its part concerning the division. On 15 September 1999 the applicant appealed against that decision to the Board of Appeal.
37. On 27 September 1999 the applicant lodged with the Supreme Administrative Court a complaint about the further inactivity on the part of the Mayor and the Office.
38. On 2 March 2000 that court ordered the Mayor to deal with the case within three months. The court considered that the manner in which the proceedings had been conducted disclosed improper functioning of the administrative authority concerned and a flagrant breach of the provisions of the Code of Administrative Procedure relating to the time-frame within which administrative cases should be dealt with.
39. On 10 July 2000 the Board of Appeal dismissed the applicant’s appeal against the decision of 2 September 1999 to discontinue the proceedings concerning the division of the plot. On 8 August 2000 the applicant lodged a further appeal against that decision. On 7 January 2002 the Supreme Administrative Court dismissed his appeal.
40. On 25 July 2000 the Mayor of Warsaw stayed the proceedings concerning the applicant’s request to grant him the perpetual use of the plot of land relying on the fact that the perpetual users of the land had not expressed their consent to division of the property and obliged thereby all heirs to institute civil proceedings in which a court would give a decision on such division. The applicant appealed. On 22 August 2001 the Board of Appeal allowed his appeal and discontinued the proceedings IN SO FAR as they related to the decision of 25 July 2000 to stay the proceedings. The Board of Appeal observed that the decision of the civil court on the division of the estate of the late former owners was wholly unnecessary for the continuation of the administrative proceedings at hand, a decision determining the shares of the heirs in the estate having already been given in the inheritance proceedings.
41. The applicant appealed against this decision. On 30 September 2003 the Supreme Administrative Court dismissed his appeal, observing that the second-instance decision of 22 August 2001 was in fact favourable to him.
42. The proceedings concerning the applicant’s request for award of the right to perpetual use of the plots concerned are pending.
43. According to the Code of Administrative Procedure cases shall be handled without undue delay and the time of their examination, even if they are complex, shall not exceed two months (Article 35 § 3). Having failed to comply with the time-limit prescribed by the Code, the administrative organ must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit.
Article 37 of that Code provides:
“§ 1. A complaint about failure to handle a case within the time-limit set forth in Article 35 or fixed under Article 36 can be lodged with an administrative organ of a higher level.
§ 2. [That] organ, having found the complaint well-founded, shall fix an additional time-limit for the completion of the case ...”
44. Further remedies in respect of inactivity on the part of an administrative organ are provided for by the Law on the Supreme Administrative Court. Under Section 17 of that Law a party to administrative proceedings may lodge with the Supreme Administrative Court a complaint about such inactivity.
45. Section 26 of the Law provides that the Court, having found such a complaint well-founded, shall oblige the administrative organ concerned to issue a decision or to perform an activity.
46. Section 34 of the Law on the Supreme Administrative Court sets out the requirement of the exhaustion of available remedies before lodging a complaint with that court. Accordingly, the complaint concerning alleged inactivity should be preceded by the lodging of a complaint with an administrative organ of a higher level, pursuant to the above-mentioned Article 37 of the Code of Administrative Procedure.
47. In accordance with the Decree of 26 October 1945 on the Ownership and Use of Land in Warsaw (dekret o własności i użytkowaniu gruntów na obszarze m. st. Warszawy) the ownership of all land was transferred to the municipality. The decree provided in so far as relevant:
“Article 5. Buildings and other objects located on the land being transferred to the municipality’s ownership remain the property of those who have owned them so far, unless specific provisions provide otherwise.
Article 7. (1) The owner of a plot of land ... can within 6 months after the taking of possession of the land by the municipality file a request to be granted ... the right to a perpetual lease (wieczysta dzierżawa) with a peppercorn rent (czynsz symboliczny). ...
(2) The municipality shall grant the request if the use of the land by the former owner is compatible with its function set forth in the development plan (plan zabudowania). ...
(4) In case the request is refused, the municipality shall offer the person entitled, as long as it has spare land in its possession, a perpetual lease of land of equal value, on the same conditions, or the right to construct on such land.
(5) In case no request, as provided for in paragraph (1), is filed, or the former owner is for any other reasons not granted a perpetual lease or the right to construct, the municipality is obliged to pay compensation pursuant to Article 9.
Article 8. In case the former owner is not granted the right to a perpetual lease or the right to construct, all buildings located on the land shall become the property of the municipality, which is obliged to pay, pursuant to Article 9, compensation for the buildings which are fit to be used or renovated.
Article 9. ... (2) The right to compensation begins to apply six months after the day of taking the land into possession by the municipality of Warsaw and expires three years after that date. ...”
48. Under Article XXXIX of the Decree of 11 October 1946 introducing the Property Law (prawo rzeczowe) and the Law on Land and Mortgage Registers, the right to construct and the right to a perpetual lease could be transferred into temporary ownership (własność czasowa).
Article 40 of the Law of 14 July 1961 on Administration of Land in Towns and Estates (ustawa o gospodarce terenami w miastach i osiedlach) replaced temporary ownership with perpetual use (użytkowanie wieczyste).
49. Pursuant to Article 33(2) of the Local State Administration Act of 20 March 1950, ownership of property situated in Warsaw was assigned to the State Treasury.
50. The Local Self-Government Act of 10 May 1990 re-established local self-government. Pursuant to Article 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality.
51. The right to perpetual use is regulated by the Civil Code. An individual or a legal entity may be granted such a right over land owned by the State or a local authority. The right comprises a right to use the land to the exclusion of others for ninety-nine years, on payment of a yearly fee. The person entitled to the right can dispose of it.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-97423
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF LESJAK v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1974 and lives in Trnovec Bartolovečki.
5. He was employed by the Varaždin Police Department where he worked in the catering service. In October 1999 he received his employment booklet (radna knjižica) by registered mail, and his employer had noted in it that his employment had been terminated on 4 October 1999. Enclosed with it, for the applicant to sign, was a draft mutual agreement to terminate his employment, reference no. 511-14-07/1-4767/1-99, dated 4 October 1999 and signed by the employer.
6. The applicant refused to sign the draft agreement. Instead, on 4 November 1999 he made a request to the employer for the protection of his rights (zahtjev za zaštitu prava) arising from the employment relationship. However, no formal decision was given by the employer in response to the applicant's request. Rather, in a letter of 8 November 1999 the applicant was merely notified that his employment had been terminated because the catering service of the Varaždin Police Department had been outsourced to a third party for whom the applicant had refused to work.
7. On 11 November 1999 the applicant brought a civil action in the Varaždin Municipal Court (Općinski sud u Varaždinu) seeking reinstatement. He argued that his employment had been terminated against his will as he had never agreed with the employer to terminate it. Thus, the employer's actions had amounted to a dismissal, which was unlawful since no formal decision had been issued.
8. On 15 November 1999 the Municipal Court, considering that the Administrative Court was competent to hear the applicant's case, declined jurisdiction in the matter and declared his action inadmissible. On 3 December 1999 the Varaždin County Court (Županijski sud u Varaždinu) dismissed the applicant's appeal and upheld the first-instance decision. On 7 February 2001 the Supreme Court (Vrhovni sud Republike Hrvatske) declared inadmissible the applicant's subsequent appeal on points of law (revizija) against the second-instance decision. The case was then transferred to the Administrative Court.
9. On 4 November 2002 the Administrative Court (Upravni sud Republike Hrvatske) issued a decision whereby it invited the applicant's representative to specify which decision, that is, which administrative act, the applicant was challenging, and to submit two copies of it. The decision read as follows:
“In the administrative dispute of the plaintiff Dražen Lesjak ... against the decision of the respondent, the Ministry of the Interior of the Republic of Croatia (Varaždin Police Department) concerning the termination of his employment, [the plaintiff's] representative is invited, within the meaning of section 29 of the Administrative Disputes Act, to provide this court within ten days with:
- an express statement indicating which specific administrative act he is contesting by his action – it is necessary to indicate the [reference] number of the act, as well as its date of issue, and to provide this court with two copies of that decision.
If the [plaintiff's] representative does not correct the above shortcomings of the action, the court will declare it inadmissible as deficient.”
On 14 November 2002 the applicant's representative replied as follows:
“Acting upon the decision of the [Administrative Court] of 4 November 2002, the plaintiff states that he is unable to indicate the specific [reference] number of the administrative act, that is to say, a potential decision, because such an act has never been issued by the respondent and the plaintiff's employment contract was terminated in the manner indicated and described in the statement of claim [('u tužbi')] [of 11 November 1999].”
On 20 February 2003 the Administrative Court declared the applicant's action inadmissible, finding that he had failed to rectify the shortcomings of his action as requested.
10. The applicant then lodged a constitutional complaint against the Administrative Court's decision. On 13 April 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint and served its decision on his representatives on 11 May 2006.
11. On 15 March 2005 a certain Mrs B.Z., who had also been employed by the Varaždin Police Department and dismissed in the same way as the applicant, brought a civil action in the Varaždin Municipal Court seeking reinstatement. She was represented by an advocate from the same law firm as the advocate who represented the applicant in the above proceedings. In her action B.Z. explained that she used to work in the catering service of the Varaždin Police Department and that on 20 October 1999 she had received her employment booklet by registered mail and her employer had noted in it that her employment had been terminated on 4 October 1999. Enclosed with it, for her to sign, was a draft mutual agreement to terminate her employment, no. 511-01-62-20614/51-96, dated 4 October 1999 and signed by the employer. B.Z. further explained that she had refused to sign the draft agreement. Instead, she had made a request to the employer for the protection of her rights arising from the employment relationship. However, no formal decision had been given by the employer in response to her request. Rather, in a letter of 4 November 1999 she had merely been notified that her employment had been terminated because the catering service of the Varaždin Police Department had been outsourced to a third party.
12. On 18 November 1999 the Municipal Court, considering that the Administrative Court was competent to hear the plaintiff's case, declined jurisdiction in the matter and declared her action inadmissible. On 14 December 1999 the Varaždin County Court dismissed her appeal and upheld the first-instance decision. The case was then transferred to the Administrative Court.
13. On 15 March 2005 the Administrative Court issued a decision whereby it invited the plaintiff's representative to specify which decision, that is, which administrative act, the plaintiff was challenging, and to submit two copies of it.
14. On 30 March 2005 the plaintiff's representative replied to the court's request. The relevant part of her reply read as follows:
“On the basis of its mutual agreement on the termination of employment contract number: 511-01-62-20614/51-96 of 4 October 1999, which agreement was signed only by the respondent ..., the respondent recorded the termination of employment in the plaintiff's employment booklet, and on 20 October 1999 the plaintiff received the employment booklet and the [abovementioned draft] mutual agreement by registered mail.
The plaintiff made a request to the respondent for the protection of her rights but on 4 November 1999 she received notification that her employment relationship with the respondent had been terminated because the respondent no longer provided catering services.
Since the provisions of the Labour Act prescribe that a written mutual agreement on the termination of an employment contract constitutes a legal way to terminate the employment contract if both parties sign it, and given that the plaintiff refused to sign the [abovementioned draft] mutual agreement, [that agreement] cannot be considered to have been concluded and could not have produced any legal effect. The respondent could only have dismissed the plaintiff for business reasons by giving her notice. Therefore, the termination of employment in question and the rescission of the employment contract represents a flagrant breach of the employee's rights because the respondent – contrary to the legislation in force – unilaterally rescinded the plaintiff's employment contract on the basis of a 'mutual agreement' the plaintiff did not sign and was not obliged to sign.”
The plaintiff's representative also emphasised that the Varaždin Municipal Court had already declined jurisdiction in the case and invited the Administrative Court, should it find that it did not have jurisdiction either, to apply to the Supreme Court in order to resolve the conflict of jurisdiction with the ordinary courts thereby created.
15. On 2 November 2005 the Administrative Court, considering that it did not have jurisdiction to examine the case, applied to the Supreme Court to resolve the conflict of jurisdiction with the ordinary courts. In its application the court wrote, inter alia:
“.. [It] is undisputed that the plaintiff concluded an employment contract of unlimited duration with the respondent on 1 January 1996 and that the respondent tried to rescind that contract by a mutual agreement ... which the plaintiff did not sign and which cannot in any case constitute an administrative act ... for which reason the Administrative Court cannot decide on [its] lawfulness.
This case does not concern a dispute where a decision on a right of a civil servant or an employee employed by a state organ is being contested. Rather, it concerns a mutual agreement on the termination of an employment contract, and its lawfulness cannot be reviewed by the Administrative Court.”
16. On 22 February 2006 the Supreme Court ruled that the Varaždin Municipal Court was the competent court to hear the B.Z's case.
17. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) regulates the procedure before the Administrative Court and in its relevant part provides as follows:
Section 6(1) provides that the proceedings before the Administrative Court (that is, an administrative dispute) may be initiated only against an administrative act.
Section 6(2) provides that an administrative act, within the meaning of that Act, is an act whereby a state organ in the exercise of public authority decides on a right or obligation of an individual or an organisation in some administrative matter.
Section 27(1) provides that a statement of claim must indicate, inter alia, the contested administrative act and must be accompanied by the original or a copy of the contested act.
Section 29(1) provides that if the action is incomplete or incomprehensible, the president of the panel shall invite the plaintiff to correct the shortcomings within a certain time-limit. In doing so, the president should instruct the plaintiff what has to be done and how and warn him or her of the consequences of failing to comply with the court's request.
Section 29(2) provides that if the plaintiff does not correct the shortcomings of his action within the time-limit fixed, and they are of such a nature as to prevent the court proceeding with the case, the court shall declare the action inadmissible as deficient.
Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on the procedure before the Administrative Court (that is, in administrative disputes), the provisions of the Civil Procedure Act should apply mutatis mutandis.
Sections 52-59 provide for the remedy of reopening proceedings before the Administrative Court and regulate the procedure following a petition for reopening.
18. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008), as in force at the relevant time, provided as follows:
“If the court to which the case has been transferred ... considers that the court which has transferred the case or some other court has jurisdiction, it shall refer the case to the court competent to resolve that conflict of jurisdiction ...”
“The conflict of jurisdiction between courts of different types shall be resolved by the Supreme Court of the Republic of Croatia.”
...
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the finality of the judgment of the European Court of Human Rights, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72475
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ATKIN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 (length of proceedings);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall
TEXT: 10. The applicant was born in 1951 and lives in İstanbul.
11. At the time of the events giving rise to the application, the applicant worked as a customs broker in a private company.
12. On 28 December 1988 the applicant was questioned by a customs inspector in respect of his involvement in the smuggling of electronic goods.
13. On 7 March 1989 the customs inspector submitted his report and on 18 May 1989 the Edirne public prosecutor filed a petition with the Edirne Assize Court accusing the applicant and three other suspects of smuggling electronic goods. He requested that the applicant be convicted and sentenced under Articles 27 §§ 2, 3, 4 and 5 and 33 § 2 of Law no. 1918.
14. On 22 May 1989 the criminal proceedings initiated against the applicant and three other co-accused commenced before the Edirne Assize Court.
15. On 27 July 1989 the applicant was remanded in custody. He was released pending trial on 19 June 1990.
16. On an undetermined date, the Edirne public prosecutor submitted an additional indictment against six other suspects and the cases were joined.
17. On 10 September 1991 the Edirne Assize Court declared that it lacked competence ratione materiae to examine the case. The case-file was transferred to the İstanbul State Security Court.
18. On 18 November 1992, Article 9 of Law no. 2845 on the Establishment and the Rules of Procedure of the State Security Courts was amended to exclude organized smuggling offences within the competence of the State Security Courts. Accordingly, on 25 December 1992 the İstanbul State Security Court declared that it lacked competence ratione materiae to examine the case.
19. On 25 January 1993 the criminal proceedings before the Edirne Assize Court commenced. The applicant was tried together with nine other co-accused.
20. Between 25 January 1993 and 26 December 1995 the first-instance court held twenty-two hearings on regular intervals. During this period the court undertook various procedural decisions with a view to determining the addresses of the co-accused and obtaining their additional defence submissions by way of rogatory letters.
21. In a hearing held on 18 November 1993 the court noted that no reply had been received from the various authorities to its requests for information for the case-file. On 15 September 1994 the court observed that the documents from the German authorities in respect of the coaccused Mr K.Ç. had been translated and submitted to the case-file. It further noted that the Küçükçekmece Civil Court had not responded to its instruction to hear the co-accused Mr H.K. The court was informed that the public prosecutor’s office was unable to determine the address of another coaccused Mr E.Ç. The court issued instructions to both the Küçükçekmece Civil Court and the public prosecutor’s office with a view to completing the case-file.
22. On 23 February 1995 the additional defence submission of Mr H.K. was submitted to the court. The court noted that the public prosecutor’s office had not responded to its request to determine the address of Mr E.Ç.
23. On 11 April 1995 the address of Mr E.Ç. was submitted to the court by the public prosecutor’s office. It appeared that Mr E.Ç. was a civil servant working in the Sarp Customs. On 25 May 1995 the additional defence submission of Mr E.Ç., taken by Hopa Criminal Court of First Instance, was submitted to the case-file.
24. On 27 June 1995 the public prosecutor submitted his observations on the merits. The applicant requested time to submit his final defence submissions.
25. On 10 August 1995 the applicant read out his final defence submissions before the court.
26. On 26 December 1995 the Edirne Assize Court convicted the applicant on account of his involvement in organised smuggling and sentenced him to nine years’ imprisonment and to a fine of 6,158,746,372 Turkish Liras (TRL).
27. On 25 December 1996 the Court of Cassation held a hearing and upheld the judgment of the firstinstance court. The decision of the Court of Cassation was sent to the registry of the first-instance court on 31 January 1997.
28. On 7 February 1997 the applicant was released from prison.
29. On 21 May 1997 the principal public prosecutor at the Court of Cassation dismissed the applicant’s request for the rectification of the Court of Cassation’s decision.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58837
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF MAGEE v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1+6-3-c;No violation of Art. 14+6;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. On 16 December 1988, early in the morning, the applicant was arrested at his home under section 12 of the Prevention of Terrorism Act 1984 (“the 1984 Act”) in connection with an attempted bomb attack on military personnel. The applicant was taken to Castlereagh police station. He claims that on arrival he immediately requested to see his solicitor. Access was delayed pursuant to section 15 of the Northern Ireland (Emergency Provisions) Act 1987 (“the 1987 Act”). At 9.15 a.m. the applicant was examined by a doctor who advised him that if he had any complaints to make he should tell the doctor when he made his round the following morning. The applicant was cautioned pursuant to Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 (“the 1988 Order”). Unfamiliar with this new law, the applicant again requested a consultation with a lawyer and this request was refused.
9. On the same day the applicant was interviewed five times by two teams of two detectives. These interviews took place between 10.55 a.m. and 1 p.m., 2 p.m. and 4 p.m., 4 p.m. and 6 p.m., 7.35 p.m. and 9.30 p.m., and 9.30 p.m. and 12 midnight.
10. At 8.21 a.m. on 17 December 1988, the applicant complained to the same doctor he had seen the day before of ill-treatment during the second and third interviews on the previous day. The doctor recorded in his notes that the applicant had alleged that he had been repeatedly slapped and occasionally punched in the back of the head during the second and third interviews and that he had been punched a few times in the stomach. The doctor gave the applicant two tablets (a mild analgesic) and prescribed four such tablets a day if required. Pursuant to this complaint, at 9.15 a.m. a police inspector visited the applicant's cell and took note of the applicant's complaints.
11. Subsequently, the applicant's sixth, seventh and eighth interviews took place between 9.30 a.m. and 1 p.m., 2 p.m. and 4.20 p.m., and 7.30 p.m. and 12 midnight. During the sixth interview the applicant broke his silence and gave detailed answers to a number of questions admitting to his involvement in the assembly and planting of the bomb. During the seventh interview the applicant signed a lengthy statement which described in considerable detail his part in the conspiracy to plant and detonate the bomb.
12. At 8.28 a.m. on 18 December 1988, the applicant was visited by the same doctor who asked the applicant if he had any further allegations of ill-treatment and the applicant replied that he had not. The applicant was then interviewed about another matter between 10 a.m. and 12.45 p.m. At 1 p.m. the applicant was allowed to consult with his solicitor, who made notes on the applicant's allegations of ill-treatment. The solicitor chose not to pass these complaints on to the police. The applicant was then interviewed for the last time between 2 p.m. and 5 p.m. about an unrelated matter. The applicant was medically examined that evening at 8.20 p.m. by another doctor whose notes indicated that the applicant had made “no allegations of ill-treatment since he had been last seen by a doctor”. That doctor also noted that there was no sign of injuries.
13. On 19 December 1988 the applicant was taken to another police station where he was given a medical examination by another doctor. That doctor's note records the applicant's detailed allegations of assaults and ill-treatment which allegedly took place on 16 December 1988. No objective evidence of injury was noted.
14. On 19 December 1988 the applicant, along with others, was charged at Belfast Magistrates' Court with conspiracy to cause explosions, possession of explosives with intent, conspiracy to murder and membership of the Irish Republican Army.
15. On 3 March 1989 the applicant, through his solicitor, made an official written statement to the Complaints and Discipline Branch of the Royal Ulster Constabulary complaining about his ill-treatment by one team of two detectives while at Castlereagh police station.
16. On 17 September 1990 the trial of the applicant and his co-accused began at Belfast Crown Court before a single judge sitting without a jury. The applicant pleaded not guilty. The prosecution case was based on the admissions made by the applicant in interview and, in particular, the written statements signed by him.
17. On 3 October 1990, when the prosecution were about to lead evidence based on the applicant's admissions and statement made during questioning, the applicant applied under section 8 of the Northern Ireland (Emergency Provisions) Act 1978 (as amended) to have the admissions and statement made during questioning excluded on the basis of his alleged ill-treatment. A voir dire (submissions on a point of law in the absence of the jury) began and the applicant gave evidence as to his treatment, particularly by one team of two detectives during interviews nos. 2, 4 and 6 while in Castlereagh police station. Electrostatic Document Analysis (“ESDA”) evidence was also led which the applicant submitted demonstrated glaring defects in the authentication of the interview notes which recorded his responses to the detectives' questions. All the relevant witnesses, including the applicant, the police officers alleged to have been involved in the ill-treatment and the doctors who had seen the applicant, gave evidence. The voir dire ended on 23 October 1990 when the trial judge rejected the application, admitted the applicant's admissions and statement into evidence and adjourned his detailed judgment in these respects.
18. The applicant did not subsequently give evidence at the trial. However, the trial judge cautioned the applicant, pursuant to Article 4 of the 1988 Order, as regards adverse inferences which could be drawn from this failure to give evidence.
19. On 21 December 1990 the trial judge gave judgment.
20. He first outlined his detailed reasoning behind his decision further to the voir dire. He noted that the only evidence against the applicant was the admissions and statement made while in custody at Castlereagh police station and that there was no forensic evidence against him. However, it was also noted that the applicant's admissions and statement were entirely consistent with the evidence presented in relation to others charged (and later convicted) with offences arising out of the same incident. The trial judge summarised the applicant's evidence of ill-treatment and this summary was later accepted on appeal by the applicant as constituting an accurate account of his evidence in this respect.
21. The trial judge then commented on that evidence. He noted, inter alia, that the applicant did not mention the names of or attempt to describe the two detectives in respect of whom he complained to the doctor on the morning of 17 December 1988; that the applicant had not mentioned to the doctor on that morning the “cigarette treatment”, which the applicant had submitted during the voir dire was the treatment which frightened him most; that there were inconsistencies in the accounts of ill-treatment given by the applicant to the doctor on that morning and his evidence at trial; that not one single objective sign of the ill-treatment which the applicant alleged was found by any of the doctors who examined the applicant; and that on the morning of 18 December 1990, the applicant did not make any complaint about ill-treatment despite the fact that he claimed he had suffered the worst treatment of all during the previous day.
22. Although there had been a period when the monitoring screens (which relayed pictures from cameras in the interview rooms to a central control room) had not been monitored by the duty inspector on that Saturday morning, the trial judge found that this did not coincide with the applicant's evidence as to when he was ill-treated on that day and the trial judge found it impossible to accept that ill-treatment of the nature alleged by the applicant could have gone on without it being picked up by the cameras in the room where the applicant was questioned. On the question of general credibility the judge found that the applicant had repeatedly lied to the court, whereas the detectives involved were not at all shaken by a rigorous cross-examination in their firm denials of the allegations made by the applicant. As to the ESDA evidence, the trial judge found that it did not substantiate the applicant's submission as to the lack of authenticity of the interview notes.
23. Accordingly, the trial judge rejected the applicant's allegations of ill-treatment and found that there was no reason to exclude the applicant's admissions or statement made during his detention in Castlereagh police station. As to the probative value of the applicant's statement, the trial judge found that it was sufficiently detailed to establish the several charges against the applicant and that he was fully entitled to convict the applicant on that basis. On 11 January 1991 the applicant was sentenced to twenty years' imprisonment.
24. On 8 February 1993 the applicant's appeal against conviction, challenging the trial judge's conclusions as to the allegations of ill-treatment and as to the ESDA evidence, was heard by the Court of Appeal of Northern Ireland. That court noted that in such cases the question to be answered is whether the court is satisfied that it is not a reasonable possibility that the accused was ill-treated. It noted, inter alia, that the trial judge had had the great advantage of seeing the applicant give evidence, that both an accused and the police officers involved can equally have an incentive to lie and that many facts are capable of being looked at in two or more ways, but they must be considered sensibly and realistically. Having reviewed the applicant's evidence and the trial judge's conclusions in that respect, that court concluded that it was satisfied that the applicant had not been ill-treated and that his conviction was neither unsafe nor unsatisfactory. Accordingly, on 16 June 1993 the applicant's appeal was rejected.
25. On 17 December 1993 the applicant's appeal against his sentence was rejected.
26. The relevant parts of Article 3 of the Criminal Evidence (Northern Ireland) Order 1988 provide:
“Circumstances in which inferences may be drawn from the accused's failure to mention particular facts when questioned, charged, etc.
(1) Where, in any proceedings against a person for an offence, evidence is given that the accused -
(a) at any time before he was charged with the offence, on being questioned by a constable trying to discover whether or by whom the offence has been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, paragraph (2) applies.
(2) Where this paragraph applies -
...
(c) the court ... in determining whether the accused is guilty of the offence charged,
may -
(i) draw such inferences from the failure as appear proper;
(ii) on the basis of such inferences treat the failure as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.
...”
27. The relevant parts of Article 4 of the 1988 Order, relating to when an accused is called upon to give evidence at trial, provide:
“(1) At the trial of any person (other than a child) for an offence paragraphs (2) to (7) apply unless -
(a) the accused's guilt is not in issue, or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to be called upon to give evidence;
but paragraph (2) does not apply if, before any evidence is called for the defence, the accused or counsel or a solicitor representing him informs the court that the accused will give evidence.
(2) Before any evidence is called for the defence, the court -
(a) shall tell the accused that he will be called upon by the court to give evidence in his own defence; and
(b) shall tell him in ordinary language what the effect of this Article will be if -
(i) when so called upon, he refuses to be sworn;
(ii) having been sworn, without good cause he refuses to answer any question;
and thereupon the court shall call upon the accused to give evidence.
(3) If the accused -
(a) after being called upon by the court to give evidence in pursuance of this Article, or after he or counsel or a solicitor representing him has informed the court that he will give evidence, refuses to be sworn; or
(b) having been sworn, without good cause refuses to answer any question, paragraph (4) applies.
(4) The court or jury, in determining whether the accused is guilty of the offence charged, may -
(a) draw such inferences from the refusal as appear proper;
(b) on the basis of such inferences, treat the refusal as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the refusal is material.”
28. The relevant provisions at the time of the applicant's trial governing the right of access to legal advice were contained in section 15 of the Northern Ireland (Emergency Provisions) Act 1987, of which the relevant parts provided:
“(1) A person who is detained under the terrorism provisions and is being held in police custody shall be entitled, if he so requests, to consult a solicitor privately.
(2) A person shall be informed of the right conferred on him by subsection (1) as soon as practicable after he has become a person to whom the subsection applies.
(3) A request made by a person under subsection (1), and the time at which it is made, shall be recorded in writing unless it is made by him while at a court and being charged with an offence.
(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as practicable except to the extent that any delay is permitted by the section.
...
(8) An officer may only authorise a delay in complying with a request under subsection (1) where he has reasonable grounds for believing that the exercise of the right conferred by that subsection at the time when the detained person desires to exercise it -
...
(d) will lead to interference with the gathering of information about the commission, preparation or instigation of acts of terrorism; or
(e) by alerting any person, will make it more difficult -
(i) to prevent any act of terrorism; or
(ii) to secure the apprehension, prosecution or conviction of any person in connection with the commission, preparation or instigation of an act of terrorism ...”
29. The delay had to be authorised by a police officer of at least the rank of superintendent (section 15(5)(a)) and the detained person had to be told the reason for the delay (section 15(9)(a)). The courts in Northern Ireland have taken the view that the 1988 Order should not be read subject to section 15 of the 1987 Act, since the 1988 Order had come into force after the 1987 Act, and Parliament had not intended that an inference which was permitted by Article 3 of the 1988 Order could not be drawn because of the withholding of the right of access to legal advice given by section 15 of the 1987 Act.
30. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), following a visit to places of detention in Northern Ireland in July 1993, made the following conclusions on Castlereagh Holding Centre in its published report.
“Castlereagh Holding Centre was located in a motley collection of prefabricated buildings, within the perimeter of Castlereagh Police Station. The Centre gave the general impression of being in need of some repair.
39. The Centre had 31 cells, four of which were located in a distinct section for women detainees. In addition, there were 21 interview rooms, two rooms for consultations with lawyers, a doctor's surgery, and a scenes of crime unit (the so-called Soco Suite).
40. The cells measured 6m2 and were equipped with a metal frame bed (with mattress and blankets) and a chair. Artificial light was adequate and there was an effective dimmer system, controlled from outside the cell. However, the cells did not benefit from natural light. Further, the ventilation system appeared to function only moderately well and created a rather intrusive level of noise in certain cells. The cells were not fitted with a call system; however, uniformed officers were apparently always on duty in the cell block when persons were being detained. Toilet and shower facilities were located nearby and were in a satisfactory state of cleanliness at the time of the visit; no complaints were heard from detainees about access to those facilities.
41. The interview rooms were divided between one set of 13, located adjacent to the cells, and another set of eight in a separate building. The interview rooms adjacent to the cells measured 6m2 and were equipped with a table, three chairs, and two wall-mounted cameras ... Like the cells, they did not benefit from natural light. The second set of eight interview rooms were equipped in a similar manner; however, they were considerably larger and did benefit from natural light.
42. On examining the main cell/interview room block from outside, it could be seen that the windows had been covered with plyboard, apart from one section of each, which had been fitted with a cowl, allowing some fresh air, but no natural light, to enter the cells and rooms. Questioned about the design of these window coverings, the officer in charge stated that they had been installed for 'security reasons'.
43. The CPT has already expressed the view that police cells should preferably enjoy natural light. This is even more desirable when, as at Castlereagh, persons may be held in custody for an extended period. Further, the absence of natural light in the cells is all the more regrettable given that the majority of the interview rooms at Castlereagh also lacked natural light. Taking into account, in addition, the absence of exercise facilities (cf. paragraph 44), the net result was that a person detained at Castlereagh could effectively be deprived of natural light for several days or more (the only exception being time spent in consultation with his lawyer).
In the CPT's view such a situation is not acceptable. The Committee would add that it is confident that means could be found of providing access to natural light to detainees without compromising legitimate security needs.
44. The delegation was told by police officers that there were no facilities for exercise – either outdoor or indoor – for persons detained at Castlereagh. This is another serious shortcoming in an establishment in which persons can be held for up to seven days.
45. To sum up, the existing material conditions of detention at Castlereagh Holding Centre render it inappropriate as a place in which to detain persons for extended periods. The deficiencies as regards access to natural light for detainees and the absence of exercise facilities were the principal failings, but the mediocre ventilation system and the cramped and rather dilapidated nature of the facilities should also be mentioned. All these factors contributed to create a distinctly claustrophobic atmosphere.
The CPT recommends that the conditions of detention at Castlereagh Holding Centre be substantially improved without delay, taking into account the above remarks. If such an improvement were not to prove possible, the Holding Centre should be relocated elsewhere, in premises capable of offering better detention facilities.
...
109. ... Even in the absence of overt acts of ill-treatment, there is no doubt that a stay in a holding centre may be – and is perhaps designed to be – a most disagreeable experience. The material conditions of detention are poor (especially at Castlereagh) and important qualifications are, or at least can be, placed upon certain fundamental rights of persons detained by the police (in particular, the possibilities for contact with the outside world are severely limited throughout the whole period of detention and various restrictions can be placed on the right of access to a lawyer). To this must be added the intensive and potentially prolonged character of the interrogation process. The cumulative effect of these factors is to place persons detained at the holding centres under a considerable degree of psychological pressure. The CPT must state, in this connection, that to impose upon a detainee such a degree of pressure as to break his will would amount, in its opinion, to inhuman treatment.”
31. On 10 December 1999 an official announcement was made that the Holding Centre at Castlereagh was to close by the end of December 1999.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 14
6