ITEMID: 001-106797
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF EMRE v. SWITZERLAND (No. 2) [Extracts]
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8+46;Remainder inadmissible;Non-pecuniary damage - award
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 7. The applicant was born in 1980 and currently lives in Stuttgart (Germany).
8. He entered Switzerland with his parents on 21 September 1986.
9. On 1 June 1990 he obtained a one-year residence permit, which was subsequently renewed on a regular basis.
10. On 12 November 1997, 10 November 1999 and 13 August 2002 he received, respectively, a suspended prison sentence of two and a half months, a six-month suspended prison sentence and a sentence of five months’ imprisonment, for a number of offences committed between 1994 and 2000 (wounding, grievous bodily harm, assault, theft, robbery, damage to property, receiving stolen goods, proffering insults and threats, disturbance, a weapons offence and a serious breach of road traffic regulations).
11. In a decision of 2 June 2003 the Aliens Department for the Canton of Neuchâtel ordered the applicant’s administrative removal for an indefinite duration. His appeals against that decision were dismissed, first on 12 December 2003 by the Administrative Court for the Canton of Neuchâtel (the “Administrative Court”), then on 3 May 2004 by the Federal Court.
12. On 20 October 2004 the applicant was deported to Turkey. After returning to Switzerland illegally in May or June 2005, he was arrested and taken into custody on 1 July 2005 pursuant to arrest warrants issued on the basis of his criminal convictions.
13. After various procedural developments and two further prison sentences, of three months and two months respectively, for the improper use of a communication facility and for the offence of returning to Switzerland while banished, he was apparently sent back to Turkey on 1 November 2005.
14. In the meantime, on 20 November 2004, he had lodged an application with the Court submitting that his removal from Switzerland for an indefinite duration, as upheld by the Federal Court, entailed a violation of Articles 3 and 8 of the Convention.
15. In a judgment of 22 May 2008, which became final on 22 August, the First Section of the Court unanimously declared admissible the complaint under Article 8 and found that there had been a violation of that provision. On that basis, it held that Switzerland had to pay the applicant the sums of 3,000 euros (EUR) for non-pecuniary damage and EUR 4,650 for the costs and expenses he had incurred “in the domestic proceedings and before the Court”. The relevant passages of that judgment read as follows:
“- Nature and seriousness of the offences committed by the applicant
72. The Court notes, at the outset, that the relevant date for an assessment of the above-mentioned criteria is, in the present case, 21 May 2004, the date on which the applicant was notified of the final judgment of the Federal Court confirming the withdrawal of his residence permit (see, mutatis mutandis, Yildiz v. Austria, no. 37295/97, § 34, 31 October 2002).
73. As regards, first, the ‘seriousness’ of the offences committed by the applicant, the Court notes that in 1997 and 1999 he was given a suspended prison sentence of two and a half months, and then a six-month prison sentence, for proffering threats and insults, a serious breach of road traffic regulations, wounding, assault, theft, receiving stolen goods, robbery, damage to property and other property-related offences. In 2002 he was given a further prison sentence of five months, to be followed by deportation and a five-year ban on re-entering Switzerland, for disturbance and a weapons offence committed in 2000. Lastly, in 2005 he was sentenced again on two occasions, to two and three months respectively. The total duration of his prison sentences (eighteen and a half months in all) is thus far from negligible.
74. The Court also notes that the criminal activities in question were spread over a wide period (from 1994 to 2004) (contrast Moustaquim, cited above, § 44) and that the two suspended sentences of 12 November 1997 and 10 November 1999 were activated in view of the further offences committed by the applicant. At the same time, the Court observes that some of the conduct attributed to the applicant dated back to his adolescence and some to a relatively young age (see, to the same effect, Moustaquim, cited above, § 44; Yildiz, cited above, § 45; and Yilmaz v. Germany, no. 52853/99, § 46, 17 April 2003). Moreover, the sentences of 12 November 1997 and 10 November 1999 were handed down by the Guardianship Authority for the District of Neuchâtel. Therefore, at least some of the offences in question were committed by the applicant in a juvenile delinquency context. In this connection, the Court notes that according to the United Nations, experience has shown that juvenile delinquency tends to disappear spontaneously in most individuals with their transition to adulthood (see sub-paragraph I, 5 (e) of the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), adopted and proclaimed by the General Assembly in its Resolution 45/112 of 14 December 1990).
75. As regards the ‘nature’ of the offences committed by the applicant, it is undeniable that the convictions for wounding weigh heavily against him. Concerning the weapons offence, however, it appears to have been constituted merely by the possession of a tear-gas canister. In addition, it has not been established that it was the applicant who stabbed a security guard with a knife during the attack on the discotheque on 5 March 2000 (Federal Court judgment, point 3.1; see paragraph 18 above). As to the road traffic offences, whilst they may well constitute a potential danger they should nevertheless be seen in the light of the relatively lenient penalties normally imposed in such matters (see, to this effect, Keles, cited above, § 59, and Yildiz, cited above, § 45).
76. Therefore, in the light of comparable cases, the applicant’s convictions should be assessed for what they really are, both in terms of their seriousness and of the penalties ultimately imposed (contrast Mokrani, cited above, § 32; Benhebba, cited above, § 34; C. v. Belgium, 7 August 1996, § 35, Reports 1996III; Dalia, cited above, § 54; Baghli, cited above, § 48 in fine; and Jankov v. Germany (dec.), no. 35112/97, 13 January 2000; Bouchelkia, cited above, §§ 50-53; Boujlifa, cited above, § 44; and Üner, cited above, § 18).
- Length of the applicant’s residence in Switzerland
77. As regards the length of the applicant’s residence in the country from which he is to be deported, the Court notes that the applicant, who was born on 18 December 1980, arrived in Switzerland on 21 September 1986, before the age of six. At the time of the Federal Court’s judgment of 3 May 2004 he was twenty-three and a half. He had thus spent more than seventeen and a half years in Switzerland.
- Time between the commission of the offences and the impugned measure, and the applicant’s conduct during that period
78. As regards the time that elapsed between the commission of the offences and the time when the impugned measure became final, and the applicant’s conduct during that period, the Court notes that his criminal activities were spread over a considerable period. Similarly, the domestic courts noted that he had not shown any awareness of his criminal activities and that he had refused to follow his psychotherapy (see, in this connection, Keles, cited above, § 60).
- Strength of social, cultural and family ties with host country and destination country
79. As regards the applicant’s particular ties with his host country, the Federal Court noted that he had spent most of his life in Switzerland, including all his school years, and that his parents and brothers, one of whom had Swiss nationality, lived in the country. Whilst there is some debate between parties as to his professional integration in Switzerland (see above, paragraphs 44 and 58), the Court does not feel obliged to settle this question.
80. In comparison with the above factors, showing that the applicant is integrated to a certain extent in Switzerland, despite his criminal activity, his social, cultural and family ties with Turkey seem very tenuous. It can be seen from the case file that the applicant only stayed in that country for a month and a half in June and July 2002, and that only his grandmother is still living there. The Court is not convinced that his brief stay in Turkey after his first removal, a measure complained of in the present application, may be taken into consideration. Moreover, there is no certainty that the applicant is sufficiently fluent in Turkish. Even though relationships between parents and adult children would not attract the protection of Article 8 without ‘evidence of further elements of dependency, involving more than the normal, emotional ties’ (see, mutatis mutandis, Kwakye-Nti and Dufie v. the Netherlands (dec.), no. 31519/96, 7 November 2000), the Court also notes that the Federal Court itself admitted that his family ties with Turkey were far less significant than those he had made with his host country. Moreover, that court did not call into question the fact that the applicant would ‘face major difficulties if returned to Turkey’.
- Specificities of the case: the medical aspect
81. The Court notes that a report of the Neuchâtel psychiatric and social centre dated 14 January 2003 indicated that the applicant showed signs of ‘an emotionally labile personality disorder, with impulsive and borderline elements, together with a phobic anxiety disorder’ vis-à-vis the prospect of his deportation (Federal Court judgment, point 3.4.2; see above, paragraph 18). A letter from the family doctor dated 21 January 2003 moreover confirmed that the applicant had been brought up in a violent environment with little stimulation, and explained that deportation would distance him from the reassuring and structuring elements that he had built up in recent years (ibid.).
82. The views of the parties to the proceedings differ on this point. The applicant argued that his illness, having involved suicide attempts, could not be adequately treated in Turkey (see paragraph 42 above). The Government, for their part, claimed the contrary, considering that his family would still be able to support him financially from Switzerland. Moreover, they emphasised that the applicant had largely refused to undergo the psychiatric treatment prescribed for him (see paragraph 57 above).
83. The Court does not rule out the possibility that the applicant’s health problems could be treated adequately in Turkey. Neither does it disregard the fact that the applicant neglected the prescribed treatment, at least at the outset. At the same time, it finds that his disorders, which the Government have certainly not called into question, whilst they are not sufficient in themselves to form the basis of a separate complaint under Article 8, nevertheless constitute an additional aspect that would render even more difficult the applicant’s return to his country of origin, where his social network would be lacking.
- The permanent nature of the expulsion
84. In order to assess the proportionality of the impugned measure, the Court must also consider whether the exclusion from Swiss territory was a temporary or permanent measure.
85. It notes that in the present case the Police Court and the Criminal Court of Cassation of the Canton of Neuchâtel ordered the applicant’s deportation for a period of seven years (see paragraph 11 above). However, his administrative removal was ordered by the Aliens Department for the Canton of Neuchâtel for an indefinite duration (see paragraph 15 above). The Court observes that the applicant’s application is directed against his administrative removal, the duration of which it finds particularly harsh (see, as an example of cases in which the permanent nature of the exclusion order was considered by the Court in concluding that the measure had been disproportionate, Ezzouhdi v. France, no. 47160/99, § 34, 13 February 2001; Keles, cited above, § 65; Yilmaz, cited above, § 48, and Radovanovic v. Austria, no. 42703/98, § 37, 22 April 2004; and by contrast, for cases where the limited duration of the impugned measure contributed to a conclusion that it was proportionate, see Benhebba, cited above, § 37; Jankov, cited above, and Üner, cited above, § 65). As to the possibility for the applicant to request that the exclusion order be suspended temporarily or permanently rescinded, the Court finds that this possibility remains purely speculative at present.
86. In view of the foregoing, and particularly in consideration of the relative seriousness of the applicant’s convictions, the weakness of his links with his country of origin and the permanent nature of the removal measure, the Court finds that the respondent State cannot be regarded as having struck a fair balance between the interests of the applicant and his family, on the one hand, and its own interest in controlling immigration, on the other.
87. Accordingly, there has been a violation of Article 8.”
16. When asked what action it would take in response to the Court’s judgment, the Immigration Authority of the Canton of Neuchâtel (the “Cantonal Authority”), in a decision of 19 June 2008, refused to consider a request for leave to enter Switzerland on the ground that the matter had been dealt with on 3 May 2004 by a final judgment of the Federal Court. The Authority suggested that the applicant lodge a request for revision with that court.
17. In pleadings dated 19 November 2008, the applicant lodged a request for revision with the Federal Court, requesting it to annul its judgment of 3 May 2004 and the judgment previously delivered in the same case by the Administrative Court of the Canton of Neuchâtel on 12 December 2003.
18. The Federal Office of Migration submitted that the request for revision should be rejected.
19. In a judgment of 6 July 2009 the Federal Court upheld the request for revision and annulled its judgment of 3 May 2004. At the same time it quashed the 12 December 2003 judgment of the Administrative Court of the Canton of Neuchâtel, limiting the duration of the applicant’s exclusion to ten years from 2 June 2003. The reasoning of the judgment reads as follows:
“... 3.2 In its judgment of 22 May 2008 the European Court observed that, in deporting Emrah Emre from its territory for an indefinite duration, Switzerland had breached his right to private and family life, as guaranteed by Article 8 ECHR. On that basis it awarded him EUR 3,000 in compensation for non-pecuniary damage under Article 41 ECHR. That provision gives the European Court the power to grant ‘just satisfaction’ to the injured party where the internal law of the State in question ‘allows only partial reparation to be made’ for the violation found. The payment of such compensation does not, however, necessarily release the State concerned from its obligation under Article 46 ECHR to comply with the judgments of the European Court. The respondent State, having been found responsible for a violation of the Convention or its Protocols, is thus obliged not only to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects, the aim being to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see, among other references, the judgment of the European Court of Human Rights in Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland, no. 32772/02, §§ 46 and 47, 4 October 2007, and the numerous authorities cited therein). This is the principle of restitutio in integrum, which has the practical effect of limiting the freedom of States in the choice of means by which to remedy a violation of the Convention ...
4.1 Where, as in the present case, the Federal Court upholds a request for revision, it gives two separate decisions in succession, even though it generally does so in a single judgment. In the first, referred to as the rescindant, it annuls the judgment of which revision is sought; in the second, known as the rescisoire, it rules afresh on the application previously referred to it. The annulment decision puts an end to the revision procedure as such and leads to the re-opening of the previous proceedings. This has an ex tunc effect, such that the Federal Court and the parties are put back in the situation in which they found themselves at the time the annulled judgment was delivered, and the case will have to be adjudicated as if that judgment had never existed (see the above-cited judgment 1F_1/2007 of 30 July 2007, point 3.3).
4.2 In its judgment, the European Court found that, in view of the circumstances, and particularly of the applicant’s relatively serious convictions, the weakness of his links with his country of origin, and the permanent nature of the removal measure, Switzerland had failed to strike a fair balance between the interests (private and public) at stake (judgment cited above, para. 86). It specifically emphasised that the indefinite duration of the exclusion had been ‘particularly harsh’, taking the view that the possibility for the applicant to have the exclusion order suspended temporarily or permanently rescinded remained purely speculative at present (judgment, para. 85). In other words, it was not particularly opposed to the principle of the impugned measure but rather to its permanent nature. Generally speaking, in its most recent judgments, the European Court seems, moreover, to accord increasingly decisive weight to the latter criterion, refusing, with rare exceptions, to endorse permanent exclusions from a country, unlike bans of limited duration ...
That being said, in the light of the circumstances prevailing at the material time, namely when the annulled judgment was delivered (on 3 May 2004), an immediate revocation of the removal measure was not a matter for consideration. Admittedly, the applicant’s links with Turkey were at that time weaker than those he enjoyed with Switzerland, such that a return to his country of origin appeared to be a relatively harsh measure for him. That obstacle had in fact been taken into consideration and discussed in the first judgment. However, the Federal Court had also observed, without being contradicted by the European Court on this point, that the applicant’s presence in Switzerland represented a particularly serious danger for public order and security, because his conduct and offences showed that his ‘mindset was hardly capable of resolving conflicts and frustrations otherwise than by violence, ready to impose his own rules, by himself or with the help of partners, without consideration for property or for the physical well-being of others, and openly contemptuous of the judicial authority’ (judgment cited above of 3 May 2004, point 3.2). Moreover, the Federal Court also emphasised, and there is nothing in the European Court’s judgment that would justify departing from this assessment, that the applicant had no awareness of the seriousness of his actions and that he thus presented a high risk of reoffending: he had committed further offences after his first convictions and had refused to follow psychiatric treatment during his detention (see the above-cited judgment of the Federal Court of 3 May 2004, point 3.3 in initio). In those circumstances, it was not possible for the applicant’s private interest in remaining in Switzerland, bearing in mind that he was an adult, was single and had no children, to prevail over the public interest in his expulsion, at least for a certain period of time. In other words, the only appropriate solution in order to alleviate the effects of the impugned measure against the deportee and comply with the judgment of the European Court of Human Rights would consist in limiting the duration of the exclusion.
4.3 Consequently, it is justified to limit the removal measure ordered against the applicant to a period of ten years with effect from the removal decision of 2 June 2003. After such time he will be able to lodge an application for leave to remain, which will be examined by the competent authority in the light of the applicable law and the circumstances then prevailing (the applicant’s family and personal situation; his conduct since his expulsion; etc.).
5. It follows from the foregoing that the request for revision must be upheld and the Federal Court’s judgment of 3 May 2004 annulled. Moreover, the judgment delivered on 12 December 2003 by the Administrative Court must be set aside, and the measure of removal banning the applicant from Switzerland for an indefinite duration is to be replaced by removal with a ban of ten years from 2 June 2003.
...”
20. On 11 September 2009 the applicant married a German national. As a result of that marriage he has obtained a German residence permit.
21. On 19 April 2010 he lodged with the Administrative Court for the Canton of Neuchâtel an application for reconsideration of a decision of 27 December 2005 of the Immigration Authority, which had refused the suspension of his removal, relying in particular on his new situation, namely his marriage to a German citizen. In a judgment of 20 August 2010, the court rejected the request and referred the matter back to the Immigration Authority.
22. The applicant transmitted additional documents to the Immigration Authority on 30 August 2010 and 24 November 2010. The response to his request for the revocation of the removal measure so that he could settle in Switzerland was negative. In a letter of 7 December 2010, the Immigration Authority for the Canton of Neuchâtel took the view that it could not rule on a request for reconsideration, in particular for the following reasons:
“... Although the marriage solemnised on 11 September 2009 in Germany to a German national, together with the issuance of a German residence permit following that marriage, constitute new facts, we note that they do not by themselves constitute pertinent justification for the Immigration Authority to act upon the request for reconsideration. The nationality of the wife, by itself, does not have the effect of requiring the annulment of the removal or the granting of leave to remain in Switzerland. The wife would have to submit a request for leave to remain in Switzerland, to be in one of the situations covered by the Free Movement of Persons Agreement (ALCP), and to fulfil the conditions thereof, without being excluded by any public order or security grounds.
The right to family reunification is always predicated on the existence of original leave to remain granted to an EC/EFTA national under the provisions of the ALCP. The right of abode conferred on family members is a correlative right of which the validity is in principle subject to the duration of the original leave to remain.
...”
23. According to the applicant, there was no possibility of challenging or complaining about the content of that letter.
24. Section 122 of the Federal Court Act of 17 June 2005, in force since 1 January 2007, provides as follows:
“An application for review of a judgment of the Federal Court on account of a violation of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (ECHR) may be submitted if the following conditions are satisfied:
(a) the European Court of Human Rights, in a final judgment, has found a violation of the ECHR or its Protocols;
(b) compensation cannot remedy the effects of the violation;
(c) the review is necessary to remedy the effects of the violation.”
25. The relevant provisions of Annex I of the Agreement between the European Community and the Swiss Confederation on the free movement of persons (the “ALCP”) read as follows:
“1. The Contracting Parties shall allow nationals of the other Contracting Parties and members of their family within the meaning of Article 3 of this Annex and posted persons within the meaning of Article 17 of this Annex to enter their territory simply upon production of a valid identity card or passport.
No entry visa or equivalent requirement may be demanded save in respect of members of the family and posted workers within the meaning of Article 17 of this Annex who do not have the nationality of a Contracting Party. The Contracting Party concerned shall grant these persons every facility for obtaining any necessary visas.
...”
“1. A person who has the right of residence and is a national of a Contracting Party is entitled to be joined by the members of his family. An employed person must possess housing for his family which is regarded as of normal standard for national employed persons in the region where he is employed, but this provision may not lead to discrimination between national employed persons and employed persons from the other Contracting Party.
2. The following shall be regarded as members of the family, whatever their nationality:
(a) his spouse and their relatives in the descending line who are under the age of 21 or are dependent;
(b) his relatives in the ascending line and those of his spouse who are dependent on him;
(c) in the case of a student, his spouse and their dependent children.
The Contracting Parties shall facilitate the admission of any member of the family not covered by the provisions of this paragraph under (a), (b) and (c), if that person is a dependant or lives in the household of the national of a Contracting Party in the country of provenance
...”
“1. The rights granted under the provisions of this Agreement may be restricted only by means of measures which are justified on grounds of public order, public security or public health.
...”
VIOLATED_ARTICLES: 46
8


ITEMID: 001-108623
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ISTVAN GABOR KOVACS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1969 and lives in Szatymaz. When introducing the application, he was detained at Szeged Prison.
6. The applicant was arrested on 8 January 2008. From 11 January 2008 on he was detained on remand at Szeged Prison on charges of trafficking in goods subject to excise tax. On 9 October 2009 the Csongrád County Regional Court found him guilty as charged. Pursuant to the final judgment of 9 June 2010 of the Szeged Court of Appeal, he served a prison sentence of three years and six months in a strict regime at Szeged Prison. His pre-trial detention was credited against his imprisonment.
7. Szeged Prison is comprised of two separate parts: Unit I, a strict- and medium-regime facility for sentenced prisoners, and Unit II, a facility for remand prisoners. The applicant’s pre-trial detention, which is the subject matter of his complaints, took place in various cells of Unit II, and the remainder of his detention, as from 10 June 2010, in Unit I.
8. The applicant submitted that he had shared cells with an average of 16 sq metres’ ground surface with five to seven persons, not counting furniture, and could stay outside the cell only about an hour daily. He also stated that he could receive visitors for only one hour every month (an exception being his brother, who was granted three extra visits, lasting two hours on each occasion); however, he had not been at all allowed to touch his family members during these visits. Moreover, despite his requests, the prison administration had not provided him with toiletries free of charge, nor had it authorised him to possess, with a view to preparing his defence, a personal computer in his cell, although it would have had no access to internet. Lastly, he submitted that the prison had not provided him with free stationery so that he could post submissions to the authorities in charge of his criminal case pending at that time.
9. He submitted that his requests and complaints concerning the above matters and also the catering at the prison, to various instances of the penitentiary administration were to no avail. He availed himself of a formal remedy with regard to the refusal by the prison administration to authorise him to possess a personal computer in his cell. Whilst the Government submitted that Szeged Prison had been inspected by the penitentiary prosecutor once every two weeks, the applicant stated that no such visit had taken place in Unit II during his detention.
10. According to the National Penitentiary Service’s statistics available on its website, the average occupancy rate of Hungarian prisons was 118% in 2008, 124% in 2009 and 133% in 2010.
11. Section 118(1) d) of Law-Decree no. 11 of 1979 on the Execution of Sentences and Measures provides that a remand detainee is entitled to at least one visit per month.
12. Rule 25 of Szeged Prison’s House Regulations provide that a detainee is entitled to a visit of one hour every month.
13. According to Rule 34, no physical contact is allowed between a detainee and his/her visitor, unless a so-called family visit takes place in a dedicated room.
14. Rule 38 provides that family visits can be initiated by an inmate’s warden, rather than the detainee himself.
VIOLATED_ARTICLES: 3
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-78101
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DEMİR AND BAYKARA v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 11;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award
TEXT: 9. The applicants, Kemal Demir and Vicdan Baykara, were born in 1951 and 1958 and live in Gaziantep and Istanbul respectively. The first applicant was a member of the trade union Tüm Bel Sen and the second applicant was its president.
10. The trade union Tüm Bel Sen was founded in 1990 by civil servants from various localities under the Civil Servants Act (Law no. 657). Under Article 2 of its constitution its objective is to promote democratic trade unionism to further the aspirations and claims of its members. Its head office is located in Istanbul.
11. On 27 February 1993 Tüm Bel Sen entered into a collective agreement with Gaziantep Municipal Council for a period of two years from 1 January 1993. The agreement concerned all aspects of the working conditions of Gaziantep Municipal Council’s employees, including salaries, allowances and welfare services.
12. As the Municipal Council had defaulted on certain of its obligations under the agreement, in particular those of a financial nature, the first applicant, as a representative of the union, brought civil proceedings against it in the Gaziantep District Court (the “District Court”) on 18 June 1993.
13. In a judgment of 22 June 1994 the District Court found in favour of Tüm Bel Sen. Gaziantep Municipal Council appealed on points of law.
14. On 13 December 1994 the Court of Cassation quashed the judgment of the court below. It found that, even though there was no legal bar preventing civil servants from forming unions, they were not, as the law stood, authorised to enter into collective agreements.
15. In a judgment of 28 March 1995 the District Court confirmed its earlier judgment on the ground that, despite the fact that the domestic statute contained no express provision affording unions formed by civil servants the right to enter into collective agreements, this omission had to be remedied in the light of international treaties such as the relevant convention of the International Labour Organisation, which had already been ratified by Turkey.
16. On 6 December 1995 the Court of Cassation quashed the judgment of the court below. It ruled that, at the time the union was formed, the applicable law did not permit civil servants to form trade unions. The union Tüm Bel Sen could not rely on the international labour conventions that dealt with such matters as they had not yet been incorporated into domestic law and no implementing legislation had been enacted. The Court of Cassation concluded that the union did not have legal personality or the capacity to enter into a collective agreement.
17. An application for rectification lodged by representatives of the union was dismissed by the Court of Cassation on 10 April 1996.
18. Following an audit of Gaziantep Municipal Council’s accounts by the Audit Court, the State asked the members of the union Tüm Bel Sen to reimburse the additional income they had purportedly received as a result of the defunct collective agreement.
19. The relevant provisions of the Turkish Constitution read as follows:
“Operative workers and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop their economic and social rights and interests in their labour relations.
In order to form a union or a federation of unions, it shall suffice to submit the information and documents prescribed by law to the competent authority designated by law. If it finds that this information and documentation is not in conformity with the law, the competent authority shall apply to the appropriate court for the suspension of activities or the dissolution of the union or federation of unions.
Everyone shall be free to become a member of or withdraw from membership of a union.
No one shall be compelled to become a member, remain a member, or withdraw from membership of a union.
Operative workers and employers cannot hold concurrent memberships in more than one trade union.
Employment in a given workplace shall not be made conditional on membership or lack of membership of a trade union.
In order to hold a leadership position in a trade union or federation of trade unions, it is necessary to have effectively been employed as an operative worker for at least ten years.
The statutes, administration, and functioning of trade unions and federations of trade unions shall not be inconsistent with the characteristics of the Republic or with democratic principles as defined in the Constitution.”
“Employees and employers shall have the right to form trade unions and federations of unions, without prior permission, in order to safeguard and develop the economic and social rights and interests of their members in their labour relations, and to join and withdraw from such entities of their own free will. No one shall be compelled to become a member or withdraw from membership of a union.
The right to form a union may only be restricted by law and for the purposes of safeguarding national security or public order and preventing crime, and for the protection of public health or public morals and the rights and freedoms of others.
The formalities, conditions and procedures to be applied in exercising the right to form a union shall be established by law.
It is not permitted to hold membership of more than one trade union simultaneously within the same sector of employment.
The scope of the rights in this area of State employees who do not have the status of operative worker, and the exceptions and limitations applicable to them, shall be established by law in accordance with the nature of the tasks entrusted to them.
The statutes, administration and functioning of trade unions and federations of unions must not be inconsistent with the fundamental characteristics of the Republic or with democratic principles.”
“Operative workers and employers shall have the right, in the course of their bilateral relations, to enter into collective bargaining agreements in order to regulate their economic and social position and conditions of work.
Collective agreements shall be entered into in accordance with the statutory procedure.
It shall be prohibited to enter into or apply more than one collective agreement in a single workplace within the same period.”
“Workers and employers shall have the right, in the course of their bilateral relations, to enter into collective agreements in order to regulate their economic and social position and conditions of work.
Collective agreements shall be entered into in accordance with the statutory procedure.
The trade unions and federations of unions which the State employees referred to in the first paragraph of Article 128 shall be entitled to form and which do not fall within the scope of the first and second paragraphs of the present article, nor that of Article 54, may appeal to judicial authorities and may engage in collective bargaining with the administration in accordance with their aims on behalf of their members. If an agreement is reached as a result of collective bargaining, the text of the agreement shall be signed by the parties. This text shall be presented to the Council of Ministers so that administrative or judicial arrangements can be made. If no such agreement is reached through collective bargaining, the points of agreement and disagreement shall be drawn up and signed by the relevant parties and submitted for consideration by the Council of Ministers. The procedure for the implementation of this paragraph shall be set out in legislation.
It shall be prohibited to enter into or apply more than one collective agreement in a single workplace within the same period.”
“The essential and permanent duties required by the public services that the State, State economic enterprises and other public corporate bodies are assigned to perform, in accordance with general principles of administration, shall be carried out by civil servants and other State employees.
The qualifications, appointment, duties and powers, rights and responsibilities, and salaries and allowances of civil servants and other State employees, and other matters related to their status, shall be provided for by law.
The procedure and principles governing the training of senior civil servants shall be specially provided for by law.”
20. Section 22 of the Civil Servants Act (Law no. 657) of 14 July 1965 stated that civil servants were authorised to form and join trade unions and professional organisations, in accordance with the conditions set out in special laws. Its second paragraph stated that the said professional organisations were authorised to defend the interests of their members before the competent authorities. That section was repealed by Article 5 of Legislative-Decree no. 2 of 23 December 1972. It was brought back into force by section 1 of Law no. 4275 of 12 June 1997. The text now reads:
“Civil servants shall be authorised to form trade unions and federations of trade unions and to join them.”
21. Article 2 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (Convention No. 87) provides:
“Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”
22. The relevant articles of the Right to Organise and Collective Bargaining Convention, 1949 (Convention No. 98) read as follows:
“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”
“1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.
2. In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.”
“This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.”
23. The relevant provisions of the European Social Charter provide as follows:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
“With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake:
1. to promote joint consultation between workers and employers;
2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements;
3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;
and recognise:
4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.”
VIOLATED_ARTICLES: 11


ITEMID: 001-102384
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: KRIVOPISHIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicants are four Russian nationals, whose names and dates of birth are shown in the Annex. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows. The applicants sued the State authorities in domestic courts for payment of various monetary sums due under the Russian law. The courts held for the applicants and ordered the authorities to pay various amounts in the form of lump sums and/or of periodic payments to be upgraded in line with the inflation in the country. These judgments became binding but the authorities delayed their enforcement.


ITEMID: 001-95137
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: PAVLOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Sergey Yuryevich Pavlov, is a Russian national who was born in 1967 and lives in St. Petersburg. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 August 1982 the applicant was put on a waiting list with a view to provision with state housing. On 12 October 1989 the applicant was put on a waiting list for participation in cooperative housing construction. On 21 September 1994 it was established that the applicant was entitled to a four-room cooperative flat.
On 11 October 2000 the St. Petersburg City Housing Committee (the “Housing Committee”) ruled that the applicant be provided with a four-room cooperative flat regardless of his order of priority on the waiting list. The regard was had to the fact that the applicant, who was married with three minor children, was living in a room in a communal flat.
On 15 February 2001 the Housing Committee ruled that the applicant may obtain the membership in the housing construction cooperative ZhSK-1393 (the “Cooperative”).
On 21 September 2005 the Housing Committee quashed its decision of 11 October 2000 noting that no four-room flat was available in the Cooperative to be given to the applicant.
On 19 July 2000 the applicant lodged a claim against the Housing Committee with the Oktyabrskiy District Court of St. Petersburg seeking provision of a cooperative flat for his family.
On 18 September 2000 the court held a preparatory hearing. It sent a request to the Cooperative to obtain certain documents and scheduled the first hearing for 10 April 2001.
On 10 April 2001 the applicant partially modified his claims. He claimed that the payment for the cooperative flat be made by the State due to the authorities’ failure to fulfil their obligation with regard to provision of his family with housing. He also lodged claims against the Cooperative and asked the court to obtain certain documentary evidence from it. The court adjourned the hearing until 9 August 2001 pending receipt of the documents.
The court adjourned the hearing on 9 August 2001 due to the applicant’s failure to appear. The court further adjourned the hearing of the matter on 25 December 2001 and 23 May and 28 November 2002, granting the applicant’s request to obtain new documentary evidence and serve process on a witness.
On 3 June 2003 the court adjourned the hearing pending receipt of the documents requested earlier. The next hearing was scheduled for 13 November 2003. It was adjourned due to the failure of the applicant’s representative to appear.
On 9 June 2004 the applicant asked the court to obtain certain documentary evidence. The court granted the applicant’s request and adjourned the hearing until 9 February 2005 pending the receipt of the documents.
On 9 February 2005 the respondent’s representative failed to appear. The court further adjourned the hearing scheduled for 11 August 2005 due to the applicant’s failure to appear.
The court heard the matter and dismissed the applicant’s claims on 22 November 2005. The court relied on the decision issued by the Housing Committee of 21 September 2005 where it noted that no four-room flat was available. The court also dismissed the applicant’s monetary claims. Neither the applicant nor his representative were present.
On 24 May 2006 the St. Petersburg City Court upheld the judgment of 22 November 2005 on appeal.
On 29 January 2002 the applicant brought another claim with the Oktyabrskiy District Court against the Housing Committee. The applicant alleged that the respondent party had failed to take certain measures to ensure his membership in a housing construction cooperative. The first hearing took place on 30 October 2002. It was adjourned pending receipt of documentary evidence requested by the applicant.
The next hearing took place on 2 April 2003. The applicant challenged the authenticity of the documents received and asked the court to obtain certified copies. The court granted the request and adjourned the hearing until 3 June 2003.
On 3 June 2003 the respondent’s representative failed to appear and the court adjourned the hearing until 13 November 2003.
The court further adjourned the hearing of the matter on 13 November 2003 due to the failure of the applicant’s representative to appear, on 9 June 2004 and 9 February 2005 pending receipt of the documents requested by the applicant, on 11 August and 30 November 2005 due to the applicant’s failure to appear.
On 15 February 2006 the applicant challenged the authenticity of the materials in the case file. The court granted the request lodged by the Housing Committee to obtain original copies of the said materials.
The applicant further asked for adjournment of the hearing on 29 March and 30 May 2006 pending consideration of his complaint by another court and his representative’s illness respectively. On 16 August and 9 October 2006 the applicant’s representative did not appear and the hearings were adjourned.
The court adjourned the hearing on 2 November 2006 granting the applicant’s request for other documentary evidence.
On 14 December 2006 the District Court dismissed the applicant’s claims. The St. Petersburg City Court upheld the judgment on appeal on 17 May 2007.
On 25 October 2002 the applicant brought another action against the Housing Committee and other state bodies and a housing construction cooperative seeking annulment of an agreement signed by them.
On 6 December 2005 the Oktyabrskiy District Court of St. Petersburg discontinued the proceedings due to the applicant’s repeated failure to appear in court. On 19 April 2006 the District Court dismissed the applicant’s request to resume examination of the claim. On 24 May 2006 the St. Petersburg City Court upheld the decision on appeal.
On 25 April 2002 the applicant brought an action against the Cooperative and the Housing Committee seeking enforcement of the decision of 15 February 2001 to obtain the membership in the Cooperative and be provided with a four-room flat.
On 4 June 2003 the Moskovskiy District Court of St. Petersburg discontinued the proceedings noting that the applicant’s claims were similar to the ones already pending before the Oktyabrskiy District Court of St. Petersburg.
On 9 October 2003 the St. Petersburg City Court quashed the decision and remitted the case for examination on the merits.
On 19 August 2004 the District Court dismissed the applicant’s claim. The court noted that there was no four-room flat available in the Cooperative to be granted to the applicant. On 7 December 2004 the City Court quashed the judgment and remitted the case for a new examination. The court held that the District Court had relied in its findings only on the testimony of the chairman of the Cooperative that was not confirmed by any documentary evidence.
On 22 November 2005 the District Court dismissed the applicant’s claim. On 25 January 2006 the St. Petersburg City Court upheld the judgment.
On 20 December 2005 the applicant challenged a decision of the Housing Committee of 21 September 2005 concerning his entitlement to a cooperative flat.
On 12 February 2006 the court adjourned the hearing due to the failure of the applicant’s representative to appear. On 15 March 2006 the court further adjourned the hearing pending receipt of the documentary evidence requested by the applicant. The documents were not delivered on time and the court adjourned another hearing on 20 April 2006.
On 24 May and 13 September 2006 the court adjourned the hearing due to the failure of the applicant’s representative to appear.
On 18 October 2006 the Kuibyshevskiy District Court of St. Petersburg dismissed the applicant’s claims. The St. Petersburg City Court upheld the said judgment on appeal on 5 December 2006.


ITEMID: 001-105441
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: CASE OF BUROV v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi
TEXT: 1. The applicant, Mr Ion Burov, is a Moldovan national who was born in 1948 and lives in Chişinău. He was represented before the Court by Mr V. Panţîru, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
2. On an unspecified date, the applicant, a former policeman, instituted civil proceedings against his ex-employer, the Ministry of Internal Affairs (“the Ministry”), seeking payment of salary arrears.
3. By a final judgment of 19 June 2002, the Supreme Court of Justice ordered the Ministry to pay the applicant an amount of 909 Moldovan lei (MDL) (69 euros (EUR) at the time) in salary arrears and MDL 500 (EUR 38) for his lawyer’s fees: a total equivalent to EUR 107.
4. The amount of MDL 909 represented the difference between the sum which had been effectively paid to the applicant for forced absence from work for the period 1997-2000 (MDL 17,547) and the sum to which he was entitled according to the law (MDL 18,547). The Supreme Court of Justice also ordered the Ministry to calculate and pay the applicant an additional compensation (premiul-recompensă) for a period of work from 1 January 1997 to 24 March 1997.
5. On 29 August 2002 and 24 June 2004 the applicant unsuccessfully sought a reopening of the proceedings which had ended in the final judgment in his favour.
6. According to the applicant, the final judgment in his favour has not been enforced to date.
7. The applicant claims that in 1996 he lodged a court action before the Rîşcani District Court, seeking restitution of nationalised property, which had been previously owned by his family. According to him, the District Court did not examine his claim until 2003. The outcome of these proceedings is unknown.
8. On an unspecified date, the applicant challenged a decision taken by the local authorities to refuse to issue him with a building permit.
9. By a final judgment of 6 June 2002, the Court of Appeal of the Republic of Moldova (Curtea de Apel a Republicii Moldova) rejected his claim as ill-founded.
10. By a judgment of the Chişinău Regional Court (Tribunalul Chişinău) of 30 October 2002 the applicant was awarded MDL 32,301 (EUR 2,384) in damages for unlawful dismissal. This judgment was confirmed by a final judgment of the Court of Appeal of the Republic of Moldova on 14 January 2003.
11. The applicant submitted documents, according to which he had initiated several sets of civil proceedings between 1997 and 2008, in addition to those summarised above. According to the submitted invoices, he regularly paid his representatives’ fees. Thus, he paid to different lawyers, respectively, MDL 2,970 (approximately EUR 436) in 1997, MDL 524 (approximately EUR 46) in 2000, MDL 1,000 (approximately EUR 87) in 2001, MDL 2,700 (approximately EUR 172) in 2005 and MDL 2,300 (approximately EUR 143) between 2006 and 2008. These payments amounted cumulatively to MDL 9,494 (approximately EUR 884).
12. During 2001 the applicant started to build a decorative fence around his property. According to the invoices, he paid MDL 5,540 (approximately EUR 481) for the construction materials and MDL 1,500 (EUR 137) to the contractors.
13. Finally, the applicant claimed in his just satisfaction claims that he had paid EUR 1,280 in fees to his representative before the Court. He did not ask the Court for legal aid.
14. The relevant domestic law has been set out in Prodan v. Moldova (no. 49806/99, ECHR 2004III (extracts)).


ITEMID: 001-85834
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KOWALEWSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: The applicant, Mr Mariusz Kowalewski, is a Polish national who was born in Saint Petersburg and lives in Kamińsk. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 March 2000 the applicant was arrested on suspicion of robbery.
On 26 March 2000 the Ostrołęka District Court (Sąd Rejonowy) ordered that the applicant be detained on remand.
The applicant’s pre-trial detention was extended throughout the trial on numerous occasions.
On 29 May 2000 the Ostrołęka District Prosecutor (Prokurator Rejonowy) lodged with the Ostrołęka District Court a bill of indictment against the applicant and his coaccused. The applicant was charged with attempted robbery and assault.
On 30 October 2000 the District Court remitted the case to the prosecutor for further investigation.
The applicant remained in detention, which was prolonged on 27 November 2000 and 9 March 2001.
On 22 March 2001 the Ostrołęka District Prosecutor again indicted the applicant for assault and attempted robbery.
The applicant’s detention was further extended.
On 14 March 2002 the Ostrołęka District Court convicted the applicant as charged and sentenced him to 7 years’ imprisonment.
The Ostrołęka Regional Court (Sąd Okręgowy) upheld the first-instance judgment on 19 September 2002.
On 3 June 2003 the Supreme Court (Sąd Najwyższy) dismissed the applicant’s cassation appeal.
From 5 July 1999 to 10 May 2004 the applicant was serving a prison sentence imposed on him by the Łomża Regional Court in respect of other convictions.
The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in cases Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.


ITEMID: 001-91932
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NATUNEN v. FINLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-3-b;Damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1962 and lives in Helsinki.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicant was suspected of an aggravated drugs offence. On an unspecified date the public prosecutor brought charges against him and two other persons, L.J. and J.J. According to the indictment, the defendants had decided to obtain a large amount of amphetamine from Estonia. Between 28 and 29 September 2001 the applicant and J.J. made a trip to Estonia to arrange the purchase, acting on instructions from L.J. On 15 October 2001 the drugs, hidden in a truck, were brought to Finland by a fourth person. During this period the applicant kept in contact with the Estonian supplier by telephone. On 16 October 2001 the truck driver handed over the drugs to L.J. and J.J., who then hid them. Later in the evening J.J. returned for the drugs, as agreed with L.J. While J.J. was driving back to town, the police stopped and detained him and seized the drugs from his possession. In the meantime, the applicant picked up L.J. from a nearby petrol station.
8. Subsequently, all the defendants contested the above charge. The applicant denied any knowledge of the matter. He maintained that his trip to Estonia had only been for pleasure and that he had not received any instructions from L.J. relating to it. Nor had he kept any contact with the supplier. He further denied any knowledge of what had happened at the petrol station on 16 October 2001. Apparently all the defendants asserted that their collective enterprise had concerned a plan to purchase weapons and not drugs.
9. On 1 February 2002 the applicant’s counsel sent a letter to the police inquiring whether all the telephone calls made between the three defendants by mobile phone had been included in the pre-trial investigation material. He also requested the police to confirm in writing that it was not possible to disclose to the defence the telephone metering information in the possession of the police.
10. In their response of 8 February 2002 the police stated that all the telephone calls pertaining to the investigated offence had been included in the pre-trial investigation material. The police further confirmed that the telephone metering information in their possession could not be disclosed as it was confidential.
11. The evidence obtained through telephone surveillance and produced before the court included 21 recorded telephone conversations and 7 recorded text messages between the defendants between 25 September and 16 October 2001, apparently all pertaining to the different stages of the alleged drugs offence.
12. On 14 February 2002 the Espoo District Court (käräjäoikeus, tingsrätten) found that the defendants had planned to purchase drugs and had carried out the plan together. It convicted them as charged and sentenced each of them to six and a half years’ imprisonment. As to the conviction of L.J. and J.J. the court relied mainly on the testimony of the truck driver and the fact that the drugs had been found in J.J.’s possession. As to its finding that all three defendants had acted in concert in committing the offence, the court relied on information obtained through telephone surveillance. According to the court, the numerous recordings of telephone conversations between the defendants consistently showed that there had been a common understanding about the plan to obtain the drugs several weeks before they were delivered. Their co-operation had begun on 28 September 2001, at the latest, when the applicant had made a trip to Estonia with J.J. Since that journey they had been showing concern about the delay in the delivery. The court found the defendants’ account of the plan to purchase weapons unsubstantiated. The court also relied on the recordings in concluding that the applicant had participated in the actual receiving of the drugs just as actively as the other defendants, even though he had not been there to receive them in person.
13. The applicant, along with the other parties, appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten). In his letter of appeal he claimed that all that had been established beyond dispute was that he had made a trip to Estonia and that he had been in contact with the other defendants by telephone, but that did not connect him to the offence of which he had been convicted. The District Court had failed to specify which telephone conversations proved that he had been an accomplice.
14. In his subsequent additional submission to the court the applicant also requested that the public prosecutor be ordered to produce all the recordings of the telephone conversations between the applicant and other defendants, as they would reveal that the dealings involving the defendants had related to matters other than drugs. The applicant contended that only a fraction of all these telephone conversations had been included in the pre-trial investigation material, thus giving a misleading impression of the nature of their association. If the court were to refuse this request, the defence should at least be granted access to all of the recordings.
15. The court requested the prosecutor to submit a reply regarding, inter alia, the above request. In his reply of 12 June 2002 the prosecutor stated that it was not disputed that the applicant had been in contact with J.L. and J.J. by telephone also concerning matters other than the purchase of drugs. These conversations had not, however, been included in the case material and had been destroyed, as was required under chapter 5a, section 13 of the Coercive Measures Act (pakkokeinolaki, tvångmedelslag, Act no. 450/1987). Nor did the conversations in question, according to the prosecutor, relate to any other offence which would have allowed the police to keep the recordings without breaching the law. All the conversations that pertained to the matter had been retained, included in the case file and produced to the court.
16. Having regard to the prosecutor’s reply, the Court of Appeal did not render a decision on the applicant’s request. On 13 December 2002, following an oral hearing, the court upheld the applicant’s conviction. It increased his prison sentence to seven years.
17. In its reasons the court stated, inter alia, that, apart from the testimonies given by the defendants, there was no evidence to support the allegations about purchasing weapons. Furthermore, the court found the defendants’ testimonies regarding those allegations not credible. It also found inconsistencies between the applicant’s testimony and some of the telephone conversations, which had been played back to the court.
18. The applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) maintaining that his conviction had been based mainly, and in practice, on the courts’ false interpretation of those telephone conversations which had been included in the case file. The defence had never been given access to a large number of recordings which had not been included therein, although a request to that end had been made during the pre-trial investigation. He submitted as evidence the response given by the police on 8 February 2002. As the recordings were subsequently destroyed, the applicant had been denied the right to assess their relevance for his defence. The applicant renewed his contention that the recordings which had not been included in the case file would have shown that he had been involved with the co-defendants in a transaction not related to the purchase of drugs.
19. On 19 December 2003 the Supreme Court refused leave to appeal.
20. Chapter 5a, section 2 of the Coercive Measures Act, as in force at the relevant time, provided that an authority investigating a crime could be granted permission to intercept and record telephone calls made by a suspect using an extension in his possession or another extension presumably used by him, or calls received by a suspect through such an extension, if the information thus obtainable could be assumed to be of vital importance for solving a crime. This permission could only be granted for serious offences listed in the provision, including aggravated drugs offences. Weapons offences were not included in the list.
21. Chapter 5a, sections 12 and 13 of the said Act provided that the head of the investigation or another official by his order was to check the recordings at the earliest convenience and that recordings containing information which was not related to the offence covered by the authorisation had to be destroyed after they had been checked. Section 13 allowed, however, the retention of recordings pertaining to such [other] offences where the interception of telecommunications could be permitted. Recordings which were not to be destroyed were to be retained for five years after the case had been resolved with legally binding effect or removed from the docket.
22. Chapter 5a, section 13 of the Coercive Measures Act was amended by Act no. 646/2003, which came into force on 1 January 2004. The current provision states that superfluous information obtained through interception of telecommunications but not related to the offence or pertaining to an offence other than the one covered by the authorisation, is to be destroyed after the case has been resolved with legally binding effect or removed from the docket. The Government Bill (hallituksen esitys, regeringens proposition, no. 52/2002) concerning the amendment stated that, according to the provision in force at the time, superfluous information was to be destroyed as soon as it had been checked. Information supporting the innocence of the suspect could thus also be destroyed as superfluous information. The provision was thus proposed for amendment in order to ensure that all the material would be available for the [subsequent] proceedings, where necessary.
23. Section 1 of the Act on Public Prosecutors (laki yleisistä syyttäjistä, lag om allmänna åklagare, Act no. 199/1997) provides, inter alia, that it is the duty of a prosecutor to see to the realisation of criminal liability in the consideration of a criminal case, the assessment of the charge and the trial in a manner consistent with the public interest and the legal safeguards of the parties.
24. The same principle applies to the conduct of the police, which has the duty, under section 7 (1) of the Criminal Investigations Act (esitutkintalaki, förundersökningslag, Act no. 449/1987) to investigate and take into consideration the facts both for and against the suspect.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b


ITEMID: 001-90620
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MENCHINSKAYA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1949 and lives in Norilsk in the Krasnoyarsk Region of the Russian Federation.
7. In August 1998 the applicant, formerly an engineer in a public company, was made redundant. On 3 September 1998 she was registered in the Norilsk Employment Centre.
8. As the unemployment allowances were paid to the applicant after a substantial delay and, as she believed, their calculation was not correct, in March 2000 she sued the Norilsk Employment Centre for the allowance arrears, adjusted for inflation, and interest thereon.
9. On 25 September 2000 the Norilsk Town Court of the Krasnoyarsk Region allowed the applicant's claims in part. It awarded her 677.35 Russian roubles (RUR) for arrears and RUR 4,568.53 for the indexation of the arrears to take account of inflation. Basing its award on Article 395 of the Civil Code of the Russian Federation the court also granted the applicant RUR 8,102.50 as interest on belated payments.
10. On 2 and 25 October 2000 the applicant lodged an appeal, arguing that the claims rejected by the first-instance court should have been granted.
11. On 9 October 2000 the Norilsk Employment Centre lodged an appeal. It claimed that labour legislation did not provide for an interest on unemployment allowances and therefore requested that the judgment in this part be quashed.
12. On 12 October 2000 the Norilsk Town Prosecutor filed an appeal (protest) against the judgment, exercising his power under Article 282 of the RSFSR Code of Civil Procedure. He submitted that the first-instance court had erroneously applied provisions of civil law to labour law relations and therefore unlawfully granted interest on belated payments in the applicant's favour. In his view, no interest was payable in respect of belated unemployment allowances, thus he requested the Court of Appeal to quash the judgment in this part. The Prosecutor also supported the part of the judgment which rejected the remainder of the applicant's claims.
13. A copy of the prosecutor's protest was served on the applicant on 18 October 2000, and she submitted her objections on 25 October 2000.
14. Having examined the appeals and the prosecutor's protest and having heard the judge-rapporteur and the prosecutor, on 29 November 2000 the Krasnoyarsk Regional Court upheld the arguments made by the Employment Centre and the prosecutor. Finding that the Civil Code was not applicable in the sphere of unemployment benefits, it quashed the first-instance court's judgment in the part granting the applicant RUR 8,102.50 as interest on belated payments.
15. The applicant's attempts to institute supervisory review proceedings proved to be unsuccessful.
16. The Civil Code of the Russian Federation provides that for the use of monetary assets belonging to another person, as a result of their unlawful withholding, or the failure to pay them back ... [statutory] interest should be paid .... The amount of that interest is defined as the refinancing rate [of the Central Bank of Russia] ... applicable in the place of residence of the creditor ... on the day of the execution of the monetary obligation (Article 395).
17. The RSFSR Code of Civil Procedure (in force at the material time) reads as follows:
“A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens...
The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge applications, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law...”
“Judgments of all courts in the RSFSR may be appealed against to the court of cassation by the parties and other persons who took part in the litigation.
A prosecutor or his or her deputy lodges an appeal against an unlawful or unjustified judicial decision, irrespective of whether he or she took part in the case...”
18. The Prosecutor's Offices Act (Федеральный закон "О прокуратуре Российской Федерации"), no. 2202-I of 17 November 1992, as in force at the material time, provides:
“... 3. In accordance with the procedural legislation of the Russian Federation, prosecutors shall participate in the hearing of cases by courts of law and commercial courts (hereinafter referred to as the “courts”) and shall challenge any court decisions, sentences and rulings which are contrary to the law...”
“1. The prosecutor shall take part in court hearings in the cases provided for by the procedural legislation of the Russian Federation and other federal laws...
3. The prosecutor, in accordance with the procedural legislation of the Russian Federation, shall be entitled to make an application to the court or to enter the case at any stage of the proceedings, if the protection of civil rights and lawful interests of society or the state so requires...”
“1. Prosecutors or their deputies, within the scope of their powers, shall lodge cassation or private appeals or appeals in exercise of supervisory power with higher courts, and appeals or applications for reviews or appeals in exercise of supervisory power against an unlawful or unfounded court decision, sentence or ruling with commercial courts. Prosecutor's assistants and prosecutors of directorates or divisions may lodge appeals only in cases in the hearing of which they themselves have participated...”
19. The relevant part of the Parliamentary Assembly's Resolution 1604 (2003) On the Role of the Public Prosecutor's Office in a Democratic Society Governed by the Rule of Law reads as follows:
“it is essential:
a. that any role for prosecutors in the general protection of human rights does not give rise to any conflict of interest or act as a deterrent to individuals seeking state protection of their rights;
b. that an effective separation of state power between branches of government is respected in the allocation of additional functions to prosecutors, with complete independence of the public prosecution from intervention on the level of individual cases by any branch of government; and
c. that the powers and responsibilities of prosecutors are limited to the prosecution of criminal offences and a general role in defending public interest through the criminal justice system, with separate, appropriately located and effective bodies established to discharge any other functions...”
20. The European Commission for Democracy through Law (the Venice Commission) at its 63rd plenary session (10-11 June 2005) adopted an Opinion on the [Prosecutor's Offices Act] of the Russian Federation. Its relevant provisions provide as follows:
“...57...It is, of course, clear that the Russian Office of the Prosecutor General is among those Offices which does not conform to the model which the Parliamentary Assembly considered to be essential. Moreover, in respect of the Prosecutor's predominant role in the Russian administration, which can hardly be described as limited or exceptional, the Prosecutor's Office does not seem to conform to the tests...which are as follows:
1. In addition to the essential role played by prosecutors in the criminal justice system, some member states of the Council of Europe provide for the participation of the prosecutor in the civil and administrative sectors for historical, efficiency and economic reasons but their role should always be exceptional (principle of exceptionality).
2. The role of the prosecutor in civil and administrative procedures should not be predominant; the intervention of the prosecutor can only be accepted when the objective of this procedure cannot, or hardly be ensured otherwise (principle of subsidiarity).
3. The participation of the prosecutor in the civil and administrative sectors should be limited and must always have a well-founded, recognisable aim (principle of speciality).
4. States can entitle prosecutors to defend the interest of the state (principle of protection of state interest).
5. Prosecutors can be entitled to initiate procedures or to intervene in ongoing procedures or to use various legal remedies to ensure legality (principle of legality).
6. In case it is required for reasons of public interest and/or the legality of decisions (e.g. in cases of protection of the environment, insolvency etc.) the participation of the prosecutor can be justified (principle of public interest).
7. Protecting the rights and interests of disadvantaged groups of society unable to exercise their rights can be an exceptional reason for the intervention of the prosecutor (principle of protection of human rights)...
13. Prosecutors should have no decision-making powers outside the criminal field or be given more rights than other parties before courts (principle of equality of arms).
14. Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well-grounded reasons (principle of non-discrimination)...
74. There have been undoubted reforms in the Russian system of Procuracy, notably the limitations on the prosecutor's powers of supervisory review of court decisions... and the fact that intervention in court cases on behalf of the citizens is limited to cases where they are unable to act for themselves or where this is justified because numerous citizens are affected by the wrongdoing concerned”.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59719
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF HOFFMANN v. GERMANY
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;Violation of Art. 14+8;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
JUDGES: Antonio Pastor Ridruejo
TEXT: 7. The applicant is a German national, born in 1954 and living in Mülheim. He is the father of the child J., born out of wedlock on 25 August 1985. The applicant and the child’s mother, Ms S., lived together at the time of the child’s birth. They separated in spring 1987.
J.’s mother married in 1992 and J.’s family name was changed to her mother’s new family name.
8. On 23 June 1987 the Mülheim District Court decided that the applicant should be entitled to visit his daughter. These visiting arrangements were confirmed in a court settlement between the parents in July 1987. Under the terms of this settlement, the applicant was entitled to visit the child every 14 days. After some first visits, the applicant did no longer exercise his right of access to his daughter.
9. On 9 May 1990 the child’s mother applied with the Mülheim District Court for an amendment of the above settlement to the effect that the applicant should no longer be allowed access to his child. It was stated that the applicant had not exercised his right of access for three years so that J. had completely forgotten him. His wish to see her again was not in J.’s interest.
10. On 12 June 1990 the Mülheim Youth Office (Jugendamt), having regard to a report by the Diakonisches Werk, a Catholic welfare organisation, recommended that the applicant should not be granted access to his child.
11. On 9 October 1990 the Mülheim District Court ordered that a medical report be prepared on the question of access. The report dated 27 June 1991 recommended that contact between the applicant and J. be build up carefully and gradually, despite of the risk for J.’s emotional balance. The established sound emotional ties between J. and her mother and the relationship of trust with the mother’s partner should, however, not be upset.
12. In a further report of 26 August 1991, the Diakonisches Werk recommended that the applicant should meet J. in a child guidance centre (Erziehungsberatungsstelle). If these contacts developed positively, they should be extended or, in the event of a negative experience, access should be stopped. The Youth Office shared this assessment.
13. On 3 November 1992 the Mülheim Child Guidance Centre confirmed that, between 10 August and 11 September 1992, J. had met the applicant three times in the centre in her mother’s presence. It was stated that J. had sensed the conflicts between her parents and was under mounting emotional strain as a result.
14. On 14 December 1992 the Mülheim District Court heard the applicant and J.’s mother. In these and the following proceedings, both parties were represented by counsel.
15. On 18 December the Mülheim District Court heard the then seven-year-old child in the absence of her parents. She stated that she had not recognised her natural father and that she did not want to see him.
16. On 23 January 1993 the District Court set aside its earlier decision of 23 June 1987 and the court settlement of July 1987.
The court noted inter alia that the applicant had not exercised his right to visit his daughter since 1987 and that J.’s mother was opposed to the applicant’s request. The court found that the applicant was not entitled to have access to his daughter.
Referring to section 1711 of the Civil Code (Bürgerliches Gesetzbuch), the District court observed that the mother, in the exercise of her right to custody, determined the child’s relations with third persons, and that therefore her will was decisive. The father could only be granted a right of access by court order if this was in the interest of the child. According to the court’s findings, these conditions were not met in the applicant’s case. The court considered that, as the parents separated when J. was only one and a half years old and as he did not exercise his right of access for several years, he was a stranger in respect of the child. No bonds existed between her and the applicant and she did not regard him as her father.
The District Court further considered that the attempt to overcome this situation had failed. It noted that, in the course of several meetings between the applicant and his daughter at an educational assistance office in August and September 1992, he had remained a stranger to J. who did not wish to have contacts with her father. In the court’s view, it was not in J.’s interest to act contrary to her wish. After several changes, her mother’s new husband had become a person exercising parental functions (männliche Bezugsperson). J.’s stable position and emotions would be shaken if contacts with a stranger were forced. In this context, the court considered that J. was very sensitive and vulnerable and therefore needed stable living conditions and a family life free of conflict. Her physical and emotional well-being could be easily affected and she had difficulties in concentrating and learning. Her wish not to have any contacts with her father had, therefore, to be accepted.
17. On 26 March 1993 the Duisburg Regional Court dismissed the applicant’s appeal.
The Regional Court endorsed the District Court’s findings under section 1711 of the Civil Code. The Regional Court further found that the applicant’s appeal submissions did not disclose any new elements that were relevant. His argument that it had not been his fault that he had not been able to exercise his right of access since 1987 was irrelevant, as the child’s interests were decisive. His criticism of section 1711 was irrelevant as this provision was the applicable legislation according to which granting access contrary to the mother’s will was only possible in the interest of the child. However, in the applicant’s case the District Court, on the basis of an expert opinion, had correctly found that J.’s wish not to have contacts with the applicant had to be accepted. Moreover, even assuming that J. was influenced by her mother, such influence could not justify to force her to have contacts with the applicant. In this respect, the Regional Court again noted the expert’s findings that J. was very sensitive and vulnerable and that any forced contacts would certainly harm her.
18. On 4 June 1993 the Düsseldorf Court of Appeal declared the applicant’s further complaint inadmissible, pursuant to section 63a of the Non-Contentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). The Court of Appeal considered that the prevailing legal situation, excluding a further appeal in proceedings concerning a father’s access to his child born out of wedlock, could not be objected to from a constitutional point of view. Even if the criteria established in the Federal Constitutional Court’s decision of 1991 on the necessity to abolish discrimination against children born out of wedlock were applied to procedural rules, the general standards as to the period left to the legislator for the purpose of amending the relevant legislation did not yet permit the conclusion that the existing legislation was unconstitutional.
19. On 21 July 1993 the applicant filed a constitutional complaint with the Federal Constitutional Court, complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination, as well as about the refusal of his further appeal. The First Chamber of the First Senate of the Federal Constitutional Court acknowledged receipt on 28 July 1993.
20. On 17 January 1994 the Constitutional Court informed the applicant’s lawyer that it was dealing with a further case concerning section 1711 of the Civil Code which had already been submitted. A decision in that case was envisaged for the current year. The processing of the applicant’s case was therefore postponed. On 18 January 1995, upon the applicant’s inquiry, the Judge at the Federal Constitutional Court dealing with the applicant’s case informed him that a decision on the other case was envisaged for the current year. In a letter of 5 August 1996, the applicant’s representative was informed that the date of a decision upon his complaint could not be foreseen. The applicant was subsequently informed that, in the light of the legislative reforms, a decision on his constitutional complaint did no longer appear necessary and the applicant agreed to consider the complaint as settled.
The applicant’s renewed request for access to J. remained unsuccessful.
21. The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998.
22. Section 1626 § 1 reads as follows (the Court’s translation):
“The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”
23. Pursuant to section 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be endangered. The family courts may order that the right of access exercised in the presence of a third party, such as a Youth Office authority or an association.
24. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows (the Court’s translation):
Section 1634
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.
3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information.
4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”
25. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows (the Court’s translation):
Section 1705
“Custody over a minor child born out of wedlock is exercised by the child’s mother...”
Section 1711
“1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy.
2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.
3. The right to request information about the child’s personal circumstances is set out in Section 1634 § 3.
4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.”
26. Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).
27. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate.
28. In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49(1) (k)).
29. As regards the hearing of parents in custody proceedings, section 50a (1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter.
30. Section 63 provides for a right of a further appeal challenging the first appeal decision. Section 63a of that Act as in force at the material time excluded this right in proceedings concerning a natural father’s access to his child born out of wedlock. This provision has been repealed by the Law on Family Matters of 1997.
VIOLATED_ARTICLES: 14
6
8
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-78044
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KONDRASHOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1939 and lives in Petrozavodsk.
6. In March and September 1996 the applicant won two cases in court against her former employer, a State-owned enterprise, and was awarded a sum of money.
7. Consequently, enforcement proceedings were instituted by the bailiff and one of the judgments was partly executed.
8. On 14 April 1997 the bailiff transmitted the materials relating to the enforcement proceedings to the Liquidation Committee as there were bankruptcy proceedings instituted in respect of the enterprise.
9. The enterprise was declared bankrupt in June 1998 and its debts were considered as paid upon termination of the bankruptcy proceedings in March 1999. No money was paid to the applicant due to the lack of funds.
10. On an unspecified date the applicant instituted court proceedings against various public authorities seeking pecuniary and non-pecuniary damages for the non-enforcement of the court judgments. She claimed that the judgments had not been enforced due to the bailiff's failure to take timely measures to facilitate their enforcement.
11. On 13 June 2000 the Petrozavodsk Town Court of the Republic of Karelia (Петрозаводский городской суд Республики Карелия) ruled in the applicant's favour. The Town Court found that during the period when the enforcement proceedings were managed by the bailiff, i.e. before 14 April 1997, the enterprise carried out economic activities and paid taxes. However, within that period the bailiff failed to take all the necessary measures to facilitate the timely enforcement of the court judgments. The applicant was awarded pecuniary damages in the amount of 53,655 Russian roubles to be paid from the Federal Treasury. Her claims for non-pecuniary damages were rejected.
12. On 25 July 2000 the Supreme Court of the Republic of Karelia (Верховный Суд Республики Карелия) upheld the judgment of the Town Court in the final instance.
13. On 10 August 2000 the bailiff instituted enforcement proceedings on the basis of the court judgment of 13 June 2000. The bailiff ordered the Ministry of Finance (Министерство Финансов РФ) voluntarily to comply with the judgment by 16 August 2000.
14. On an unspecified date in 2000, while the enforcement proceedings were still in progress, the President of the Supreme Court of the Republic of Karelia (Председатель Верховного Суда Республики Карелия) lodged an application for supervisory review (протест в порядке надзора) of the judgment of 13 June and the decision of 25 July 2000.
15. On 6 December 2000 the Presidium of the Supreme Court of the Republic of Karelia (Президиум Верховного Суда Республики Карелия) decided to quash the said decisions on the grounds that they conflicted with procedural and substantive laws. The case was remitted for a new examination at first instance.
16. On an unspecified date following the Presidium's decision the bailiff applied to the courts seeking to stay the enforcement proceedings until there was a final decision taken on the merits of the case.
17. On 12 January 2001 the Petrozavodsk Town Court of the Republic of Karelia found that in the present circumstances the enforcement proceedings should be terminated rather than stayed.
18. By decision of 2 March 2001 the Supreme Court of the Republic of Karelia upheld the decision of the Town Court and decided in the final instance to terminate the enforcement proceedings.
19. On 15 March 2001 the Petrozavodsk Town Court of the Republic of Karelia delivered a new judgment on the merits, rejecting the applicant's claims. The Town Court found that the bailiff had not been responsible for the non-enforcement of the court judgments as the enterprise lacked any assets at the relevant time.
20. On 17 April 2001 the Supreme Court of the Republic of Karelia upheld the judgment of the Town Court in the final instance.
21. Section 11 of the Code of Civil Procedure of 1964 (Гражданский процессуальный кодекс РСФСР), as in force at the relevant time, provided that regional and higher courts could conduct supervisory review of the activities of the lower courts.
22. According to Sections 319, 320 and 327 of the Code, certain senior judicial officers could, at any time, at request of the person concerned or on their own motion, lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure.
VIOLATED_ARTICLES: 6