ITEMID: 001-115705
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF AHMET YILDIRIM v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information;Freedom to receive information);Non-pecuniary damage - award
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 6. The applicant was born in 1983 and lives in Istanbul.
7. The applicant owns and runs a website (http://sites.google.com/a/ahmetyildirim.com.tr/academic/) on which he publishes his academic work and his views on various topics. The website was created using the Google Sites website creation and hosting service (http://sites.google.com/).
8. On 23 June 2009, under section 8(1)(b) of Law no. 5651 on regulating Internet publications and combating Internet offences, the Denizli Criminal Court of First Instance ordered the blocking of the website http://sites.google.com/site/kemalizminkarinagrisi/benimhikayem/atatuerk-koessi/at (hereinafter “the offending website”). The order was issued as a preventive measure in the context of criminal proceedings against the site’s owner, who was accused of insulting the memory of Atatürk.
9. On the same day, under section 8(3) of Law no. 5651, a copy of the blocking order was sent to the Telecommunications and Information Technology Directorate (“the TİB”) for execution.
10. On 24 June 2009, at the request of the TİB, the Denizli Criminal Court of First Instance varied its decision of 23 June and ordered the blocking of all access to Google Sites under section 8 of Law no. 5651. The TİB had indicated that this was the only means of blocking the offending website, as its owner did not have a server certificate and lived abroad.
11. The TİB, implementing the order of 24 June 2009, blocked all access to Google Sites and the applicant was thus unable to access his own website. All his subsequent attempts to remedy the situation were unsuccessful because of the blocking order issued by the court.
12. On 1 July 2009 the applicant applied to have the blocking order of 24 June 2009 set aside in respect of his website. He pointed out that he used the website regularly in order to publish his academic work and his opinions on various topics, and that the measure had barred all access to his site, which had no connection with the offending website. He argued, in particular, that in order to prevent other websites being affected by the measure, a method should have been chosen which would make only the offending website inaccessible. He cited as an example blocking the site’s URL.
In support of his request, the applicant furnished the court with a copy of the webpage which appeared when he tried to access his own website. The following warning was displayed:
“The Telecommunications and Information Technology Directorate has applied the order issued by the Denizli Criminal Court of First Instance on 24 June 2009 in respect of this website (sites.google.com) as a preventive measure.”
13. On 13 July 2009 the Denizli Criminal Court dismissed the applicant’s application. Referring to a recommendation issued by the TİB, it considered that the only means of blocking access to the offending website, in accordance with the blocking order, had been to block access to the Google Sites service, which had hosted the content complained of.
14. The applicant wrote to the Court on 25 April 2012 informing it that he was still unable to access his website even though, as far as he understood it, the criminal proceedings against the owner of the offending website had been discontinued on 25 March 2011 because of the impossibility of determining the identity and address of the accused, who lived abroad.
15. The relevant parts of Law no. 5651 read as follows:
“(1) For the purposes of this Law,
...
(e) Access provider [(erişim sağlayıcı) shall mean] any natural or legal person which provides users with Internet access;
(f) Content provider [(içerik sağlayıcı) shall mean] any natural or legal person which produces, modifies or supplies any kind of information or data for Internet users;
...
(ğ) Internet publication [(yayın) shall mean] data which can be accessed via the Internet by an indeterminate number of persons;
...
(l) Publication [(yayın) shall mean] publication on the Internet;
...”
“(1) Content providers shall be held liable for any content they provide via the Internet.
(2) Content providers shall not be held liable for content belonging to others which can be accessed by means of a link provided by them ...
...”
“(1) Hosting service providers shall not be required to monitor the content hosted by them or to ascertain whether it constitutes illegal activity.
(2) Subject to their criminal responsibility, hosting service providers who are informed, in accordance with sections 8 and 9 of this Law, of the illegal nature of content hosted by them shall be required to cease publishing it, in so far as they have the technical capacity to do so.”
“(1)(a) Where they are informed, in accordance with the provisions of this Law, of the illegal nature of content published by a user, access providers shall be required to block access to the illegal content, in so far as they have the technical capacity to do so.
...
(2) Access providers shall not be required to monitor the legality of the content and information to which they provide access.
...”
“(1) A blocking order [erişimin engellenmesi] shall be issued in respect of Internet publications where there are sufficient grounds to suspect that their content is such as to amount to one of the following offences:
(a) offences under the Criminal Code ...
(1) incitement to suicide (Article 84);
(2) sexual abuse of minors (Article 103 § 1);
(3) facilitating the use of narcotic drugs (Article 190);
(4) supplying products dangerous to health (Article 194);
(5) obscenity (Article 226);
(6) prostitution (Article 227);
(7) hosting gambling activities;
(b) offences against Atatürk under Law no. 5816 of 25 July 1951;
...
(2) The blocking order shall be issued by a judge if the case is at the investigation stage or by the court if a prosecution has been brought. During the investigation, the blocking of access may be ordered by the public prosecutor in cases where a delay in acting could have harmful effects. The order must then be submitted to the judge for approval within twenty-four hours. The judge must give a decision within a further twenty-four hours. If he or she does not approve the blocking of access, the measure shall be lifted by the prosecutor forthwith. Blocking orders issued as a preventive measure may be appealed against in accordance with the provisions of the Code of Criminal Procedure (Law no. 5271).
(3) A copy of the blocking order issued by the judge, court or public prosecutor shall be sent to the [Telecommunications and Information Technology] Directorate for execution.
(4) Where the content provider or the hosting service provider is abroad ... the blocking order shall be issued by the Directorate of its own motion. It shall then be notified to the access provider with a request for execution.
(5) Blocking orders shall be implemented immediately or at the latest twenty-four hours after notification.
...
(7) If the criminal investigation ends in a decision to discontinue the proceedings, the blocking order shall automatically cease to apply ...
(8) Where the trial ends in an acquittal, the blocking order shall automatically cease to apply ...
(9) If the illegal content is removed, the blocking order shall be lifted ...”
16. The Telecommunications and Information Technology Directorate was established under provisional section 7 of Law no. 2559 on police powers and responsibilities, as amended on 3 July 2005 by Law no. 5397. As an administrative body it is responsible, among other tasks, for recording and monitoring information disseminated using telecommunications tools.
17. In practice, where a court orders the blocking of access to a specific website, it falls to the TİB to implement the measure. If the content provider or hosting service provider is abroad, the TİB may block all access to the pages of the intermediary service provider under section 8(3) and (4) of Law no. 5651. Therefore, the issuing of a blocking order does not result only in access to the website which is the subject of criminal proceedings being blocked; access to all the content on the Internet domain concerned is also liable to be blocked. Thus, domains such as blogspot.com, blogger.com, Google Groups, myspace.com and youtube.com have been the subject of blocking orders over long periods of time because of the websites which they host.
18. The notion of what constitutes a “publication” within the meaning of section 2(1) of Law no. 5651 has also been the subject of debate among legal commentators. In the view of some commentators, sub-paragraph (ğ), according to which the concept of “Internet publication” denotes “data which can be accessed via the Internet by an indeterminate number of persons” is in contradiction with the notion contained in subsection (l) of the same section, which states that “[p]ublication [(yayın) shall mean] publication on the Internet”. The difficulty stems from the reference to “data which can be accessed via the Internet”, which could apply to all kinds of data transmitted over the Internet.
19. The Convention on Cybercrime (ETS No. 185), which came into force on 1 July 2004, was drawn up by the member States of the Council of Europe, Canada, Japan, South Africa and the United States of America. It deals with various types of offences in the sphere of cybercrime: action directed against the confidentiality, integrity and availability of computer data and systems; computer-related forgery and fraud; content-related offences, especially those related to child pornography; and offences concerning infringements of copyright and related rights (Chapter II, Section 1, Titles 14).
20. The preamble to the Declaration of the Committee of Ministers on human rights and the rule of law in the Information Society (CM(2005)56 final of 13 May 2005) recognises that “limited or no access to [information and communication technologies (ICTs)] can deprive individuals of the ability to exercise fully their human rights”. The first chapter of the Declaration, entitled “Human rights in the Information Society” contains the following passages:
“1. The right to freedom of expression, information and communication
ICTs provide unprecedented opportunities for all to enjoy freedom of expression. However, ICTs also pose many serious challenges to that freedom, such as State and private censorship.
Freedom of expression, information and communication should be respected in a digital as well as in a non-digital environment, and should not be subject to restrictions other than those provided for in Article 10 of the [Convention], simply because communication is carried in digital form.
In guaranteeing freedom of expression, member States should ensure that national legislation to combat illegal content, for example racism, racial discrimination and child pornography, applies equally to offences committed via ICTs.
Member States should maintain and enhance legal and practical measures to prevent State and private censorship. ...”
21. The preamble to the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers on 28 May 2003 at the 840th meeting of the Ministers’ Deputies states that prior control of communications on the Internet, regardless of frontiers, should remain an exception, and that there is a need to remove barriers to individual access to the Internet. The Declaration sets forth, inter alia, the following principles:
“...
Principle 1: Content rules for the Internet
Member States should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery.
...
Principle 3: Absence of prior State control
Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries.
Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality.
...”
22. The explanatory note to the Declaration includes the following commentary on Principle 3:
“Absence of prior State control
This principle underlines the importance of no prior State control over what the public can search for on the Internet. In some countries, there is a tendency to block access by the population to content on certain foreign or domestic websites for political reasons. This and similar practices of prior State control should be strongly condemned.
Although the State should by no means take broad measures to block undesirable content, exceptions must be allowed for the protection of minors. Where minors have access to the Internet, for example in schools or libraries, public authorities may require filters to be installed on computers to block access to harmful content.
The absence of prior control by the State does not of course rule out measures being undertaken to remove content from the Internet or block access to it following a preliminary or final decision of the competent national authorities on its illegality, not only under penal law, but also under other branches of law such as civil or administrative law. This would typically be the case when injunctions are sought to prevent the publication on the Internet of content which is illegal. Such measures, which could entail some sort of prior control, would have to fulfil the requirements of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms and they would have to be directed at a clearly identifiable Internet content.”
23. In 2007 the Committee of Ministers adopted Recommendation CM/Rec(2007)16 on measures to promote the public service value of the Internet. The second and third chapters, entitled “Access” and “Openness” respectively, deal implicitly with the issues of accessibility of the Internet and the restrictions that may be permitted.
24. Also in 2007, the Committee of Ministers adopted Recommendation CM/Rec(2007)11 on promoting freedom of expression and information in the new information and communications environment.
25. In 2008 the Committee of Ministers adopted Recommendation CM/Rec(2008)6. The appendix to this Recommendation sets out guidelines on using and controlling Internet filters in order to fully exercise and enjoy the right to freedom of expression and information.
26. On 4 April 2012 the Committee of Ministers adopted Recommendation CM/Rec(2012)3 on the protection of human rights with regard to search engines. Paragraph 1 of the Recommendation stresses, inter alia, that “[s]earch engines enable a worldwide public to seek, receive and impart information and ideas and other content in particular to acquire knowledge, engage in debate and participate in democratic processes”.
27. Recommendation 2008/2160(INI), adopted by the European Parliament on 26 March 2009, stated expressly that States should participate in efforts to establish an e-democracy on the basis of full and safe access to the Internet. Parliament therefore recommended to member States that they should condemn governmentimposed censorship of the content that could be searched on Internet sites, and called on them “to ensure that freedom of expression is not subject to arbitrary restrictions from the public and/or private sphere and to avoid all legislative or administrative measures that could have a ‘chilling effect’ on all aspects of freedom of speech”.
28. Case C-70/10, examined by the Court of Justice of the European Union (CJEU), concerned a reference for a preliminary ruling following an order issued by a Belgian court requiring an Internet service provider to install a permanent monitoring system blocking all online activity liable to infringe intellectual property rights.
29. In its judgment of 24 November 2011 the CJEU held that the holders of intellectual property rights should have the possibility of applying for an injunction against an intermediary who carried a third party’s infringement of a protected work or other subject matter in a network, and that the arrangements governing such injunctions should be left to national law. However, the national rules had to observe the limitations arising from European Union law and in particular from the Directive on electronic commerce (2000/31/EC), which prohibited national authorities from adopting measures which would require an Internet service provider to carry out general monitoring of the information that it transmitted on its network. The CJEU took the view that injunctions of the kind issued in the case under consideration did not respect the requirement that a fair balance be struck between the right to intellectual property on the one hand and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information on the other. Accordingly, it concluded that European Union law, and in particular Directive 2000/31/EC and the applicable fundamental rights, precluded an injunction imposed on an Internet service provider to introduce a system for filtering all electronic communications passing via its services, applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period.
30. In its General Comment No. 34 on Article 19 of the International Covenant on Civil and Political Rights, adopted at its 102nd session (1129 July 2011), the United Nations Human Rights Committee stated as follows:
“43. Any restrictions on the operation of websites, blogs or any other Internet-based, electronic or other such information-dissemination system, including systems to support such communication, such as Internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information-dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.”
31. In view of the fact that legislation concerning the Internet, which has to be seen against a background of rapidly changing new technologies, is particularly dynamic and fragmented, it is difficult to identify common standards based on a comparison of the legal situation in Council of Europe member States. A survey carried out by the Court of the legislation of twenty member States (Austria, Azerbaijan, Belgium, the Czech Republic, Estonia, Finland, France, Germany, Ireland, Italy, Lithuania, the Netherlands, Poland, Portugal, Romania, Russia, Slovenia, Spain, Switzerland and the United Kingdom) reveals that the right to Internet access is protected in theory by the constitutional guarantees applicable to freedom of expression and freedom to receive ideas and information. The right to Internet access is considered to be inherent in the right to access information and communication protected by national Constitutions, and encompasses the right for each individual to participate in the information society and the obligation for States to guarantee access to the Internet for their citizens. It can therefore be inferred from all the general guarantees protecting freedom of expression that a right to unhindered Internet access should also be recognised.
32. In a decision of 10 June 2009 (no. 2009-58 DC), the French Constitutional Council, for instance, stated clearly that freedom of expression implied freedom of access to the Internet. The Constitutional Council also set forth a number of basic principles concerning the restriction of Internet access. Restrictions on the public’s right to access online communication services could be ordered only by a judge, following a fair trial, and had to be proportionate. Finding that “in view of the nature of the freedom guaranteed by Article 11 of the 1789 Declaration, the legislature may not ... confer powers [to restrict or prevent Internet access] on an administrative authority with the aim of protecting the holders of copyright and related rights”, the Constitutional Council declared to be unconstitutional the legislative provisions which provided for the blocking of Internet access in cases of infringement of copyright, in the absence of a prior judicial decision. It held that the suspension of access could be ordered only after adversarial judicial proceedings, as an ancillary penalty. Interim measures or injunctions could be ordered by the urgent-applications judge, provided that they were “strictly necessary in order to preserve the rights in question”.
33. As regards possible restrictions in cases of illegal Internet content, European countries have adopted a wide variety of approaches and legislative measures, ranging from the suspension of individual rights of Internet access or the removal of the illegal content, to the blocking of access to the specific website in question. In most European countries, the protection of the rights of minors and efforts to combat the sexual exploitation of minors constitute a basis for appropriate measures restricting access to the websites concerned (this is the case in France, Germany, Switzerland and the United Kingdom). When it comes to ordinary crime, the measures restricting access are different and less severe in six countries (Austria, Estonia, Finland, Italy, Lithuania and the Netherlands).
34. As to the scope of the restrictions, a distinction is generally made according to the nature of the offence committed, namely between offences against intellectual property rights and other offences. According to a report by the Organization for Security and Co-operation in Europe (OSCE) entitled “Freedom of expression on the Internet: study of legal provisions and practices related to freedom of expression, the free flow of information and media pluralism on the Internet in OSCE participating States”, there are no general legislative provisions on the blocking of Internet access in Austria, the Czech Republic, Germany or Poland. Five countries (Estonia, Finland, the Netherlands, Russia and the United Kingdom) have no legislation providing for wholesale blocking irrespective of the offence but have enacted specific legislative provisions allowing access to be blocked in the case of certain types of offence. These include child pornography, racism, hate speech, incitement to terrorism and defamation.
35. In Russia, although a blanket prohibition on Internet access is not possible, access restrictions may be imposed under federal legislation on specific grounds, for instance to protect the foundations of the constitutional order, morals, health or the legitimate rights and interests of others, or in the interests of national defence and security (Federal Law no. 149-FZ).
36. In those countries which do not have a general or specific legislative framework providing for the closure of sites and/or the blocking of access, blocking measures may nonetheless be ordered by a judge or applied on a voluntary basis.
37. The possibility of appealing against a measure prohibiting Internet access is closely linked to the general guarantees protecting the right to receive information and to express one’s views. In Azerbaijan, Belgium, the Czech Republic, Lithuania, Spain and the United Kingdom, no specific provisions exist governing appeals against measures restricting access to an Internet page. Reference is made instead to the general constitutional provisions on freedom of expression and information or, in the case of the United Kingdom, to the possibility of judicial review if the user can prove that he or she has a sufficient interest linked to the subject of the impugned measure. In Estonia, the legislation makes express provision for contesting a measure restricting access to information on the Internet before a higher administrative authority or a specialised agency or directly before the courts in cases concerning public information which the authorities are required to make accessible (the Public Information Act).
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-73409
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: RAND v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Jüri Rand, is an Estonian national who was born in 1955 and lives in Tallinn. He was represented before the Court by Mr M. Susi, a lawyer practising in Estonia.
By a decision of 17 May 2004 the Lääne-Viru County Court (Lääne-Viru Maakohus) discontinued criminal proceedings in respect of the applicant who had been charged with having committed an aggravated fraud involving substantial material damage (Article 143 § 2 (1-1) of the Criminal Code (Kriminaalkoodeks)). The decision was taken at the request of the prosecutor, under Article 168-2 of the Code of Criminal Procedure (Kriminaalmenetluse koodeks), according to which criminal proceedings could be discontinued if the punishment liable to be imposed on the accused would be negligible compared to the punishment which would be likely to be imposed on him or her for the commission of another criminal offence. The County Court made reference to other proceedings pending before the Tallinn City Court (Tallinna Linnakohus) which are summarised below.
By a judgment of 17 November 2004 the Tallinn City Court convicted E.B. and V.K. of illicit trafficking of gasoline by a group of persons (Article 76 § 3 (2) of the Criminal Code). The applicant was convicted of aiding and abetting the above offence (Article 76 § 3 (2) and Article 17 § 6 of the Criminal Code). He was sentenced to two years’ imprisonment, less the time spent in pre-trial detention. M.K. was convicted of misuse of his official position (Article 161 of the Criminal Code). The court granted the civil claim of the Customs Board against the applicant, E.B. and V.K. in the amount of 34,917,918 kroons (EEK) (approximately 2,231,177 euros (EUR)). Finally, it decided to confiscate the property (gasoline) that had been seized from the applicant, E.B. and V.K. in order to meet the civil claim.
On 23 February 2005 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) upheld the City Court’s judgment in substance insofar as it concerned the applicant.
The Supreme Court (Riigikohus) refused the applicant leave to appeal on 15 June 2005.
On 20 June 2005 the applicant requested the Tallinn City Court to postpone the enforcement of his prison sentence for up to one year, as he was critically ill with rheumatoid arthritis and in case his medical treatment were to be discontinued, the inflammation of joints would become more acute. The applicant submitted that he was the sole supporter of his sick parents and that he provided subsistence to a one-year-old child. On 21 June 2005 the City Court postponed the enforcement of the applicant’s imprisonment for six months.
On 22 June 2005 the applicant requested the Tallinn City Court to lift his sentence due to his incurable illness. By a decision of 28 September 2005 the City Court dismissed his request. It found, on the basis of medical certificates submitted by the applicant, that he had been prescribed pills which could also be taken in prison. It considered that the necessary medical examinations (once every three months) could be arranged by the prison authorities in cooperation with a hospital. Therefore, the City Court dismissed the applicant’s request and noted that according to the City Court’s decision of 21 June 2005 the applicant had to appear in the Tallinn Prison on 6 January 2006 at the latest to start serving his sentence (1 year, 9 months and 18 days).
The applicant did not appeal against the decision.


ITEMID: 001-101316
LANGUAGEISOCODE: ENG
RESPONDENT: LIE
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF SCHÄDLER AND OTHERS v. LIECHTENSTEIN
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger
TEXT: 5. The first applicant, Mr Hans Walter Schädler, was born in 1945, Mr Tobias Johann Schädler was born in 1983, Mr Helmut Julius Beck in 1964, Mr Edmund Eugen Gassner in 1947, Mr Herbert Victor Beck in 1953, Mr Karl Roman Beck in 1951, Mr Werner Benjamin Hilbe in 1953, Mr Franz Josef Schädler in 1946, Mr Oswald Schädler in 1946 and Mr Norbert Schädler in 1960. They live in Triesenberg (Liechtenstein).
6. On 25 and 27 February 2000 a land development plan (Zonenplan) was adopted by referendum in the Municipality of Triesenberg. According to that plan, the main part of a plot of land owned jointly by the applicants fell within a zone in which the construction of buildings was not authorised.
7. By submissions dated 3 April 2000 the first applicant lodged an objection with the Municipality of Triesenberg which received these submissions on 5 April 2000. He contested the lawfulness of the land development plan and of the procedure by which it had been approved and requested that the plot of land in question be designated as building land.
8. On 22 November 2000 the Municipality of Triesenberg dismissed the first applicant’s objection. It found, in particular, that the applicants’ plot of land had not been classified as building land prior to the adoption of the land development plan either. The decision was issued and sent to the first applicant on 22 January 2001.
9. On 22 October 2002 the Liechtenstein Government dismissed the complaint made by the first applicant on 6 February 2001 about the municipality’s decision. That decision was issued on 23 October 2002.
10. By letter of 11 June 2003 the first applicant informed the Administrative Court that he intended to pursue his complaint lodged on 11 November 2002 regarding the Government’s decision in person, his counsel having informed him that his complaint had no sufficient prospects of success.
11. On 4 August 2003 the Liechtenstein Administrative Court (Verwaltungsbeschwerdeinstanz), having held a hearing on 25 June 2003 in which it heard a witness and inspected the locus in quo, dismissed the applicants’ complaint. It noted that the first applicant, following doubts expressed by it regarding his standing in the proceedings, now brought the complaint both on his own behalf and on behalf of ten further joint owners (nine of whom are applicants before this Court). The latter had also authorised the previous proceedings instituted by the first applicant alone (a written authorisation dated 25 June 2003 was submitted in the hearing). The Administrative Court found that the municipality’s decision not to incorporate the applicants’ plot of land into an area designated as building land had not been arbitrary, particularly when compared to the classification of other plots of land in the land development plan. The applicants’ plot of land had not previously been in an area classified as building land and was not suitable for construction for lack of water installations.
12. By submissions dated 15 August 2003, which were received at the Liechtenstein Constitutional Court (Staatsgerichtshof) on 19 August 2003, the applicants lodged a constitutional complaint with the Liechtenstein Constitutional Court in respect of the decision taken by the Administrative Court. Relying on the principles of legality and proportionality, the prohibition of arbitrariness and the right to property, they argued, in particular, that their plot of land, designated as non-building land, had been treated less favourably than other plots of land in a comparable situation.
13. The final deliberations in private fixed for 2 March 2004 had to be cancelled as, following the withdrawal of several judges, there was an insufficient number of judges available to hear the case.
14. In April and May 2004 both the first applicant and the Municipality of Triesenberg informed the Liechtenstein Constitutional Court that they had entered into negotiations following which the constitutional complaint might later be withdrawn. The Constitutional Court’s deliberations in private fixed for 3 May 2004 were accordingly cancelled. On 21 June 2004 the Municipality informed that court that it had included a part of the applicants’ plot of land in the area designated as building land. The applicants did not, however, withdraw their constitutional complaint thereupon.
15. By submissions dated 4 March 2005 and 9 May 2005 the applicants’ new counsel requested the Constitutional Court to join the applicants’ complaint to that of K.S. and to hold a hearing. They further submitted that their right to an independent and impartial tribunal established by law under Article 6 of the Convention had been breached in that the relevant provisions of the Municipality Act (Gemeindegesetz) did not clearly determine the body competent to decide on land development plans and as the citizens had adopted the plan. The land development plan of the Municipality of Triesenberg was void as it had been set up in violation of the provisions for the protection of property. Furthermore, their right to property under Article 1 of Protocol no. 1 had been breached as the relevant provisions of the Construction Code (Baugesetz) were not a sufficiently clear legal basis for the adoption of land development plans which interfered with the right to property. The adoption of the land development plan at issue had excluded the applicants’ plot of land from the area designated as building land and amounted to an illegal and arbitrary restriction of the use of their property without payment of compensation.
16. On 10 May 2005 the Liechtenstein Constitutional Court, having deliberated in private, decided to adjourn its decision in view of the voluminous observations and requests to take evidence submitted by the applicants’ counsel the day before.
17. On 4 April 2006 the Liechtenstein Constitutional Court, having deliberated in private, refused to join the applicants’ complaint to that of K.S. and, taking into consideration the applicants’ request made the same day, adjourned its decision and decided to hold a public hearing.
18. On 15 May 2006 the Liechtenstein Constitutional Court held a public hearing. In its deliberations (in private), it then decided to dismiss as inadmissible the applicants’ request to declare void the vote of 25 and 27 February 2000 in the Municipality of Triesenberg as the applicants had failed to lodge a separate complaint in respect of that vote with the Government. It further rejected the remainder of the applicants’ complaints as ill-founded (case no. StGH 2003/71).
19. The Liechtenstein Constitutional Court found that there had been no violation of the applicants’ constitutional right to equality or of the prohibition of arbitrariness as it had not been unreasonable not to include the applicants’ entire plot of land in an area designated as building land. Nor had the applicants’ right to property been violated. The refusal to grant the applicants a privilege by not including their plot of land in an area designated as building land did not interfere with their property rights.
20. On 20 December 2007 the Liechtenstein Constitutional Court’s judgment was served on the applicants’ counsel.
21. In a judgment adopted on 4 November 2008 concerning a complaint brought by K.S., the Liechtenstein Constitutional Court held that Article 6 § 1 of the Convention had been breached in the proceedings before it (file no. StGH 2004/58). The Constitutional Court found that the length of the proceedings at issue, which equally concerned the land development plan of the Municipality of Triesenberg and had been pending for four years and three months before it, had been excessive. The fact that K.S. had repeatedly asked to adjourn the proceedings shortly before the date fixed for the final deliberations did not justify the duration of the proceedings, in particular because the Constitutional Court had remained inactive for a longer period of time after having held an oral hearing.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22056
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: KAYA v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, İbrahim Kaya, is a Turkish national, born in 1962 and living in Sarıkaya (Turkey). He is represented before the Court by Mr J. Groen, a lawyer practising in The Hague.
The facts of the case, as submitted by the applicant, may be summarised as follows.
Together with his mother and brother, the applicant moved from Turkey to the Netherlands in 1973 where they joined the applicant’s father, who was living there since 1970 and who died in 1978. In 1981, after the death of his brother, the applicant married – obliged by Turkish tradition – his brother’s widow. After the latter’s expulsion from the Netherlands in 1982, the applicant divorced her. In the meantime, the applicant had started a relationship with Ms R., a Dutch national. Two children, K. and S., were born out of this relationship on 23 November 1981 and 8 March 1984, respectively. On 17 February 1984 the applicant was granted a permanent residence permit (vergunning tot vestiging).
On 2 February 1985, the applicant was driving a getaway car after an armed robbery. During the car’s pursuit by the police one of the persons in the car driven by the applicant shot and killed a policeman. On 9 July 1985, the Rotterdam Regional Court (Arrondissementsrechtbank) convicted the applicant of participation in a robbery and of being an accessory to the killing of a police officer and sentenced him to six years’ imprisonment.
At around the same time his partner lost the care and custody of their children because of her heroin addiction and her incapacity to provide for their care. A childcare organisation was appointed guardian of the children. The oldest child was placed in the care of the applicant’s mother. The youngest child was initially placed in a children’s home and, at the end of 1986, in a foster family. In prison the applicant had regular contacts with his children to the extent that this was possible. He also made arrangements with the childcare organisation in order to enable him to see the children after his release.
On 16 June 1986 the applicant’s residence permit was revoked and he was declared an undesirable alien (ongewenste vreemdeling) by the State Secretary of Justice (Staatssecretaris van Justitie). The applicant’s request for revision (herziening) of that decision was rejected on 14 November 1986 by the State Secretary.
The applicant lodged an appeal against that decision with the Administrative Jurisdiction Division of the Council of State (Afdeling Rechtspraak van de Raad van State). He argued, inter alia, that his expulsion would constitute a breach of Article 8 of the Convention since he would no longer be able to exercise his family life with his children.
The applicant further requested the President of the Hague Regional Court (Arrondissementsrechtbank) in summary proceedings (kort geding) to issue an interim measure allowing him to await the outcome of the appeal proceedings before to the Administrative Jurisdiction Division. This request was rejected by the President of the Regional Court on 31 January 1989. The President, noting that financial difficulties had led the applicant to become involved in the facts of which he had been convicted and that he wished to maintain his relationship with his seriously heroin-addicted partner, held that recidivism could not be excluded.
On 10 March 1989 the applicant was expelled to Turkey. He travelled back to the Netherlands on 4 May 1989, allegedly because his mother and his children had difficulties living without him. He further made arrangements with the childcare organisation in order to see his youngest child.
On 21 June 1989, the Administrative Jurisdiction Division rejected the applicant’s appeal against the decision of 14 November 1986. It held that the interference with the applicant’s family life with his children was justified under the second paragraph of Article 8, in particular on the ground of prevention of disorder. It found that neither the applicant’s submissions about the interest of himself and his children in his continued stay in the Netherlands nor his personal circumstances should be given an overruling importance by the State Secretary.
On 7 March 1990, the applicant was convicted of unlawful residence in the Netherlands as an undesirable alien and sentenced to four months’ imprisonment. On the same day, he requested the State Secretary of Justice to revoke the decision declaring him an undesirable alien.
On 12 April 1990, the applicant was expelled to Turkey and, on 19 June 1990, the State Secretary rejected his request of 7 March 1990.
After having returned for a second time to the Netherlands, the applicant was expelled to Turkey on 29 October 1990. On 5 December 1990, the applicant was again convicted of unlawful residence in the Netherlands as an undesirable alien. He was sentenced to six months’ imprisonment.
After having returned for a third time to the Netherlands, the applicant was expelled to Turkey on 12 November 1992.
On 6 June 1994, the applicant filed a new request with the State Secretary of Justice to revoke the decision declaring him an undesirable alien. This request was rejected on 1 December 1994. On 21 April 1995, after having returned to the Netherlands for a fourth time, the applicant was expelled to Turkey.
On 31 August 1995 the applicant married a Dutch national, Ms. H., in Turkey. In September 1995, his spouse filed a request for a provisional residence visa (machtiging tot voorlopig verblijf) on behalf of the applicant for the purpose of “stay with spouse”. The Vlaardingen local police issued a positive opinion on the condition that the applicant complied with the requirements for the stated purpose, one of these being no criminal record.
After the provisional residence visa had been issued in November 1995, the applicant entered the Netherlands on 8 December 1995. On 18 December 1995, he applied for a residence permit (vergunning tot verblijf) and, for this purpose, signed a declaration in Turkish stating that he had never had any dealings with the police or the criminal justice authorities (antecedentenverklaring). On the same day, he was granted a residence permit.
On 10 December 1996 the State Secretary withdrew the applicant’s residence permit, holding that both the provisional residence visa and the residence permit had been issued erroneously, as – pursuant to Article 21 § 1 (b) and (c) of the Aliens Act – persons having been declared an undesirable alien are not eligible for residence permits. In addition and, according to his own statement, hoping that this would remain unnoticed, he had signed a declaration that he had no criminal record.
The applicant’s objection (bezwaar) to the decision was rejected by the State Secretary on 23 January 1997. On 18 February 1997 the applicant lodged an appeal against that decision with the Hague Regional Court (Arrondissementsrechtbank) sitting in Haarlem. He also filed a request for an interim measure prohibiting his expulsion pending the appeal proceedings. On 9 April 1997, the President of the Hague Regional Court granted the interim measure on grounds of the State Secretary’s failure to submit necessary documents in time.
On 21 November 1997, following a hearing held on 14 October 1997, the Regional Court rejected the applicant’s appeal. It held that the applicant’s residence permit to stay with a Dutch spouse had been withdrawn on correct grounds, since – by signing the declaration on criminal antecedents – the applicant had provided incorrect information. Recalling that the applicant had stated that he had signed this declaration in the hope that it would not be noticed that he had had dealings with the Netherlands criminal justice system and that he had served a six year prison sentence and thus would obtain a residence permit, the Regional Court concluded that he had willingly misinformed the authorities.
Insofar as the applicant relied on Article 8 of the Convention in respect of his Dutch spouse and his two children, the Regional Court considered, taking into account the applicant’s conviction in balancing the interests involved as required under Article 8, that the interests of the Netherlands authorities outweighed those of the applicant. The Regional Court held that, after the Administrative Jurisdiction Division’s decision of 21 June 1989, no new facts or circumstances had become apparent prompting a different finding.
On an unspecified date, the applicant returned or was expelled to Turkey.
Under Article 21 of the Aliens Act (Vreemdelingenwet), an alien can be declared undesirable by the Minister of Justice when he or she has been convicted of an offence punishable by a prison sentence of three years or more.
Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands knowing that he has been declared an undesirable alien commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 5,000 Netherlands guilders.
According to Chapter A5/6.4 of the Aliens’ Circular (Vreemdelingencirculaire), a body of immigration directives drawn up and published by the Ministry of Justice, a decision declaring a person an undesirable alien shall – upon a request thereto from the person concerned –be lifted after ten years residency abroad where the decision declaring this person an undesirable alien has been taken on grounds of a conviction of serious violent crimes or drug dealing. This period is five years where the decision is based on a conviction for other crimes.


ITEMID: 001-68300
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: VERESOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mrs Alica Verešová, is a Slovakian national who was born in 1965 and lives in Košice.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a lawyer and serves in the Police.
In a disciplinary order of 4 August 2000 the Head of the Inner Department of the Regional Directorate of the Police Corps in Košice found the applicant had committed a disciplinary offence (disciplinárne previnenie – see below) in that, in July 2000, she had failed to discharge her duties prior to taking her annual leave and had arbitrarily left for holiday without prior authorisation. The applicant was sanctioned by reducing her monthly salary by 5% for a period of two months.
On 10 August 2000 the applicant lodged an appeal against the order to the Head of the Regional Directorate of Police Corps. She argued that the order was illegal and unjustified and that there were several flaws in the procedure leading to it. She maintained inter alia that the facts had not been established objectively, that she had not been given adequate time and facilities to defend herself and that the order lacked appropriate reasoning.
On 14 September 2000 the Head of the Regional Directorate of Police Corps dismissed the appeal and upheld the order of 4 August 2000.
On 27 October 2000 the applicant requested that the Minister of the Interior review the decisions of 4 August and 14 September 2000 in a special extra-appellate procedure (mimo odvolacieho konania).
In a letter of 3 January 2001 the Minister informed the applicant that he had reviewed the contested decisions and concluded that they were lawful.
Part (Časť) 5 governs the administrative judiciary. Chapter (Hlava) 2 of this Part lays down the rules for a review of the lawfulness of decisions taken by administrative authorities on the basis of administrative law actions.
Article 248 defines situations in which administrative tribunals have no jurisdiction to review administrative decisions on the basis of administrative law actions. Pursuant to its paragraph 2 (f), as worded at the relevant time and until 31 December 2003, administrative tribunals did not have the power to review administrative decisions imposing sanctions on members of the armed forces unless such sanctions restrained the latter's personal liberty or resulted in termination of their service.
The Act regulates the service (section 1 (1)) in the Police, the Slovak Intelligence Service, the National Security Office, the Corps of the Prison Guards and the Railway Police and legal relations concerning commencement, changes and termination of such service (section 1 (2)).
The disciplinary authority (disciplinárna právomoc) is vested in superior officers who have the power to make disciplinary awards (disciplinárne odmeny) and to impose disciplinary measures (disciplinárne opatrenie) on their inferiors.
The term disciplinary offence is defined in section 52 (1) as a culpable breach of a police officer's duties which does not constitute a criminal offence (trestný čin) or a minor offence (priestupok).
Pursuant to section 53 (1) in conjunction with section 55 (1) disciplinary offences can be sanctioned by disciplinary measures of (i) a written admonishment; (ii) reduction of salary by up to 15% for a period of up to 2 months; and (iii) stripping of rank by one degree for a period of one year.
Section 248 concerns judicial review of decisions. It stipulates that a policeman or policewoman has the right to challenge final and binding decisions of their superiors in court.


ITEMID: 001-82559
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VEREIN GEGEN TIERFABRIKEN SCHWEIZ (VgT) v. SWITZERLAND (No. 2)
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (ratione materiae);Remainder inadmissible;Violation of Art. 10
JUDGES: Snejana Botoucharova
TEXT: 4. The applicant association is dedicated to animal protection, campaigning in particular against animal experiments and battery farming.
5. In response to various advertisements produced by the meat industry, the applicant association made a television commercial lasting fifty-five seconds, consisting of two scenes.
The first scene showed a sow building a shelter for her piglets in the forest. With soft music playing in the background, the voiceover referred, among other things, to the pigs’ sense of family. The second scene showed a noisy hall with pigs in small pens, gnawing nervously at the iron bars. The voiceover compared the conditions in which pigs were reared to concentration camps, and added that the animals were pumped full of medicines. The film concluded with the exhortation: “Eat less meat, for the sake of your health, the animals and the environment!”
6. Permission to broadcast the commercial on the channels of the Swiss Radio and Television Company (Schweizerische Radio- und Fernsehgesellschaft) was refused on 24 January 1994 by the company responsible for television advertising (the Commercial Television Company (AG für das Werbefernsehen), now called Publisuisse SA) and, at final instance, by the Federal Court, which dismissed an administrative-law appeal by the applicant association on 20 August 1997.
In respect of the applicant association’s complaint under Article 10 of the Convention, the Federal Court found that the prohibition of political advertising laid down in section 18(5) of the Federal Radio and Television Act pursued various aims; in particular, it was designed to prevent financially powerful groups from obtaining a competitive political advantage, to protect the formation of public opinion from undue commercial influence, to bring about a certain equality of opportunity among the different forces of society, and to contribute towards the independence of radio and television broadcasters in editorial matters.
7. On 13 July 1994 the applicant association lodged an application with the European Commission of Human Rights under former Article 25 of the Convention.
8. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
9. In a decision of 6 April 2000 the Court declared the application partly admissible.
10. In a judgment of 28 June 2001 the Court held that the refusal by the relevant Swiss authorities to broadcast the commercial in question infringed the right to freedom of expression guaranteed by Article 10 of the Convention (see VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001VI).
The Court found that the measure taken had been “prescribed by law” and had pursued a legitimate aim for the purposes of Article 10 § 2.
As to whether the measure had been “necessary in a democratic society” within the meaning of that provision, the Court noted, in particular, that it had not been established that the applicant association itself constituted a powerful financial group pursuing the aim of restricting the broadcaster’s independence, unduly influencing public opinion or endangering equality of opportunity among the different forces of society. On the contrary, it had simply intended to participate in an ongoing general debate on the protection and rearing of animals. Accordingly, in the Court’
The Court also found that there had been no violation of Articles 13 and 14 of the Convention. As to the application of Article 41, it ordered Switzerland to pay 20,000 Swiss francs (CHF – approximately 12,160 euros (EUR) today) for costs and expenses. However, it made no award to the applicant association for non-pecuniary damage.
11. Subsequently, the applicant association again applied to Publisuisse SA for permission to broadcast an amended version of the commercial. In a letter of 30 November 2001 Publisuisse SA refused the application.
12. On 1 December 2001, on the basis of the Court’s judgment, the applicant association applied to the Federal Court for the final judgment given at domestic level to be reviewed, in accordance with section 139a of the former Federal Judicature Act (see “Relevant domestic law and practice”, paragraph 19 below).
13. In their respective observations of 10 January and 15 February 2002, which were duly transmitted to the applicant association, the Federal Department of Environment, Transport, Energy and Communication and the Swiss Radio and Television Company submitted that the application to reopen the proceedings should be dismissed.
14. In a judgment of 29 April 2002 the Federal Court dismissed the application to reopen the proceedings. It held that the applicant association had not provided a sufficient explanation of the nature of “the amendment of the judgment and the redress being sought”, a formal requirement imposed by section 140 of the former Federal Judicature Act (see “Relevant domestic law and practice”, paragraph 20 below). It observed, in particular, that the applicant association had been unable to show how redress was possible only through the reopening of the proceedings. It further noted that the association had not sufficiently shown that it still had an interest in broadcasting the original commercial, which now appeared out of date almost eight years after it was initially intended to have been broadcast. Lastly, the Federal Court considered that the fact that Publisuisse SA, the competent authority in such matters, had again refused to sign an agreement to broadcast an amended version of the commercial should have formed the subject of separate proceedings.
15. On 3 March 2003 the Federal Office of Communication dismissed an appeal by the applicant association against Publisuisse SA’s decision of 30 November 2001 refusing permission to broadcast the amended version of the commercial.
16. The Committee of Ministers of the Council of Europe, which had not been informed either by the applicant association or by the Swiss Government that the Federal Court had dismissed the application for review, concluded its examination of application no. 24699/94 on 22 July 2003 by adopting Resolution ResDH(2003)125, the relevant parts of which read:
“... Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; ...
Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution; ...
Declares, after having taken note of the information supplied by the Government of Switzerland, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.
Appendix to Resolution ResDH(2003)125: Information provided by the Government of Switzerland during the examination of the VGT Verein gegen Tierfabriken case by the Committee of Ministers
As regards individual measures, the judgment was transmitted to the applicant, who was entitled to request the revision of the Federal Court’s judgment of 20 August 1997.
Concerning general measures, the judgment has been sent out to the Federal Office of Communication, the Federal Department for Environment, Transport, Energy, and Communication and to the Federal Court.
In addition, the Court’s judgment has been published in the journal Jurisprudence des autorités administratives de la Confédération n.65/IV(2001), and can be consulted on the following website: ... The judgment has also been mentioned in the Federal Council Annual report on the Swiss activities at the Council of Europe in 2001, which has been published in the Feuille fédérale n.8/2002.
The Government of Switzerland considers that, given the information mentioned above, there will no longer exist a risk of a repetition of the violation found in the present case and, consequently, Switzerland has satisfied its obligations under Article 46 § 1 of the Convention.”
17. In a letter of 12 December 2003 the applicant association informed the Council of Europe’s Directorate General of Human Rights of the Federal Court’s refusal to review the judgment of 20 August 1997 following the Court’s finding of a violation of Article 10.
18. On 12 January 2005 the Council of Europe’s Directorate General of Human Rights informed the applicant association that it did not consider it advisable to conduct a fresh examination of the matter alongside the Court’s consideration of the application lodged in July 2002 in the present case.
19. Sections 136 et seq. of the former Federal Judicature Act, which was in force until 31 January 2006, concerned, inter alia, the review of judgments of the Federal Court. Section 139a provided:
1. A decision of the Federal Court or of a lower court may be reviewed if the European Court of Human Rights or the Committee of Ministers of the Council of Europe has granted an individual application on account of a breach of the Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and redress is possible only through such a review.
2. If the Federal Court determines that a review is called for, but a lower court has jurisdiction, it shall refer the case to the lower court to reopen proceedings in the matter.
3. The cantonal court shall then also decide on the request for a review if cantonal law does not envisage such a ground for the reopening of proceedings.”
20. Section 140 of the Act provided:
The application for review must indicate, with supporting evidence, the ground relied on for the reopening of proceedings and whether it has been raised in due time; it must also state the nature of the amendment of the judgment and the redress being sought.”
21. On 2 March 1999, on the basis of that provision, the Federal Court granted, at least in part, an application for review of one of its judgments, after the Court had found a violation in the case of Hertel v. Switzerland (judgment of 25 August 1998, Reports of Judgments and Decisions 1998VI). It held:
“... The judgment of the European Court of Human Rights may afford the applicant satisfaction and, through the award of CHF 40,000, financial compensation for the cost of the proceedings. But it does not remove the restrictions imposed on the applicant by the Commercial Court and confirmed by the Federal Court in its judgment of 25 February 1994. These restrictions may be upheld only within the bounds of necessity as defined by the European Court. Since those restrictions may be lifted or limited only by means of an appeal to the Federal Court, the requirement of section 139a of the Federal Judicature Act is met ...”
22. Section 122 of the Federal Court Act of 17 June 2005, in force since 1 January 2007, reproduces section 139a of the former Federal Judicature Act. It provides:
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.”
VIOLATED_ARTICLES: 10


ITEMID: 001-115210
LANGUAGEISOCODE: ENG
RESPONDENT: MNE;SRB
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MILIĆ v. MONTENEGRO AND SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time) (Montenegro);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Montenegro)
JUDGES: András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 5. The applicant, Mr Ivan Milić, was born in 1966 and lives in Belgrade, Serbia.
6. On 20 June 2002 the Court of First Instance (Osnovni sud) in Podgorica ordered that the applicant be reinstated by the Clinical Centre of Montenegro (Kliničko bolnički Centar Crne Gore), a State-run medical institution.
7. On 4 February 2003 this judgment became final, and on 16 December 2003 it was confirmed by the Supreme Court (Vrhovni sud) in Podgorica at third instance.
8. On 23 April 2003 the Clinical Centre of Montenegro informed the applicant that it could not comply with the judgment in question, but would rather seek an alternative solution.
9. On 22 May 2003 the Court of First Instance issued an enforcement order, which decision was confirmed on 26 June 2003.
10. On 19 August 2003 the Clinical Centre of Montenegro concluded an agreement with the Special Hospital in Risan, also a State-run medical institution, whereby the latter accepted the applicant as its employee.
11. On 30 September 2003 the applicant informed the State Prosecutor that he did not approve of this arrangement.
12. On 17 October 2003 the Special Hospital in Risan issued a decision to the effect that the applicant would become its employee as of 30 October 2003.
13. On 20 October 2003 the applicant received this decision.
14. On 21 October 2009, as submitted by the Montenegrin Government, the applicant concluded an Agreement on Termination of Employment with the Clinical Centre of Montenegro whereby his employment had been terminated as from 3 February 2003 and both parties waived any further claims in this regard.
15. On 26 October 2009 the applicant withdrew his enforcement request.
16. On 5 November 2009 the Court of First Instance terminated the enforcement proceedings and all the enforcement activities which had been carried out in that regard. On 17 November 2009 this decision became final.
17. On 6 May 2004, upon the applicant’s separate claim, the Court of First Instance in Podgorica ordered the Clinical Centre of Montenegro to pay the applicant 4,456 euros (“EUR”) for salary arrears for the period between September 2001 and 3 February 2003. This judgment was upheld by the High Court on 5 October 2004. It would appear from the case file that this judgment was enforced on an unspecified date thereafter.
18. On 3 February 2003 the applicant started to work in the Clinical Centre of Serbia for a period of nine months. It would appear from the case file that on an unspecified date thereafter his temporary employment was transformed into a permanent one.
19. Article 149 of the Constitution provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.
20. The Constitution entered into force on 22 October 2007.
21. Section 48 provides that a constitutional appeal may be lodged against an individual decision of a state body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective domestic remedies have been exhausted.
22. Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision.
23. The Act entered into force in November 2008.
24. This Act provides, under certain circumstances, the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress (tužba za pravično zadovoljenje).
25. Section 9 § 2 provides that a request for review can be filed with the court which is dealing with the case at the relevant time.
26. Section 33 § 3 provides that an action for fair redress shall be filed with the Supreme Court no later than six months after the date of receipt of the final decision rendered in the impugned proceedings or, within the enforcement procedure, no later than six months after the date of receipt of the final decision issued upon the request for review.
27. Section 44 further provides that this Act shall be applied retroactively to all proceedings from 3 March 2004, but that the duration of proceedings before that date shall also be taken into account.
28. The Act entered into force on 21 December 2007, but contained no reference to applications involving procedural delay already lodged with the Court.
29. Section 4 § 1 provided that enforcement proceedings were urgent.
30. Sections 211-214 set out details as regards enforcement in cases of reinstatement.
31. The Act entered into force on 13 July 2004, thereby repealing the Enforcement Procedure Act 2000. In accordance with section 286 of this Act, however, all enforcement proceedings instituted prior to 13 July 2004 were to be concluded pursuant to the Enforcement Procedure Act 2000.
32. Section 33 required an employee’s consent in order for him to be transferred to another employer.
33. The Labour Act 2008 entered into force on 19 August 2008 thereby repealing the Labour Act 2003. Section 42 § 2 of the former, however, also requires the employee’s consent for his transfer to another employer.
34. Between 1 January 2008 and 30 September 2009 twenty-two actions for fair redress were submitted, of which sixteen were dealt with and six were still being examined. In one case the courts awarded the plaintiff compensation for non-pecuniary damage in respect of the length of civil proceedings. Between 1 January 2010 and 30 April 2011 an additional fifteen actions for fair redress were examined, in three of which the courts awarded damages.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-138997
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: GEORGIEV v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Vasil Dimitrov Georgiev, is a Bulgarian national who was born in 1971 and lives in Ruse. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
3. On 27 June 2001 the applicant, a medical doctor, was given four administrative fines amounting in total to 320 Bulgarian levs (BGN) (equivalent to 163.61 euros (EUR)) for failing to keep accurate patient records. The fines were imposed under the Administrative Offences and Sanctions Act 1969 (see paragraph 20 below). The applicant sought judicial review of the fines, and his case was examined at two levels of jurisdiction. He retained counsel, who charged him BGN 65 (equivalent to EUR 33.23) in fees. In a final judgment of 17 June 2003, the Ruse Regional Court quashed the fines.
4. In 2005 the applicant brought a claim under the State and Municipalities Liability for Damage Act 1988 (see paragraph 23 below), seeking to recoup the legal fees he had incurred by way of damages. The claimed amount was smaller than the statutory monthly minimum wage in the country, which, at the relevant time, was the equivalent of around EUR 75.
5. In a judgment of 7 November 2005, the Ruse District Court allowed the applicant’s claim. It held that since the 1969 Act was silent on awards of costs, the applicant could recoup those costs in proceedings under the 1988 Act. This was so because they had been incurred as a result of an unlawful administrative decision.
6. On appeal, in a final judgment of 13 January 2006 the Ruse Regional Court overturned the lower court’s judgment. It held that since the 1969 Act did not lay down any rules in respect of the award of costs, the Code of Criminal Procedure 1974 should be applied. However, the Code did not provide for an award of costs either. The court went on to say that the costs incurred by the applicant had not been a direct result of an unlawful administrative decision and could not be regarded as actionable damage under the 1988 Act, and dismissed the claim.
7. On an unspecified date the applicant was charged with forgery. He was accused of creating 178 false records of medical examinations which had not in fact taken place and for which he had received payments from the National Health Insurance Fund.
8. On 10 December 2007 the Ruse District Court found the applicant guilty as charged, sentenced him to one year’s imprisonment, and barred him from working as a medical doctor for three years.
9. The applicant appealed, requesting, inter alia, the examination of two additional witnesses and the gathering of further evidence. The Ruse Regional Court turned down those requests in a decision of 27 February 2008 and at a hearing held on 28 February 2008.
10. In a final judgment of 27 March 2008, the Ruse Regional Court upheld the lower court’s judgment. It held, inter alia, that in previous criminal cases against him the applicant had been acquitted because he had been charged with offences which could be committed by a person acting in an official capacity, which he did not have, whereas in the case at hand his official capacity or the lack of it was irrelevant to the charges and to the conviction.
11. In the course of the above criminal proceedings, on 10 December 2007 the judge presiding over the panel of the Ruse District Court dealing with the applicant’s case interrupted the applicant’s address while the applicant was saying that the prosecution was “fantasising” about the charges and that “the court was alleging the same nonsense”, and fined him BGN 500 (equivalent to EUR 255.59) for contempt of court, on the grounds that he had been using insulting words and behaving rudely in the courtroom. The applicant then continued his address.
12. On 17 December 2007 the applicant appealed against the fine before the president of the Ruse District Court, who responded that he was not competent to examine the appeal.
13. On 27 December 2007 the applicant asked the president of the Ruse District Court to forward his appeal to the panel which was dealing with his case and was thus competent to examine it. It is not clear whether his appeal was examined.
14. On 10 January 2008 the applicant sought judicial review of the fine by the administrative courts. In a final judgment of 14 March 2008, the Supreme Administrative Court dismissed his application, pointing out that the examination of a legal challenge against a fine for contempt of court was to be conducted using the procedure established by Article 266 of the Code of Criminal Procedure 2005, which provided that such fines were to be challenged before the panel dealing with the case in the course of which the fine had been given.
15. In 2002 the applicant brought a claim for damages against Ms D.N., alleging that she had libelled him. On 30 January 2006 the Supreme Court of Cassation granted the applicant’s application for reopening of the case and quashed the previously delivered judgments in the case.
16. In a judgment of 11 August 2006 the Ruse District Court dismissed the applicant’s claim.
17. On appeal, at a public hearing held on 19 January 2007 the Ruse Regional Court turned down the applicant’s request for an adjournment on health grounds. It noted that one hearing had already been adjourned at the applicant’s request, again on health grounds, and went on to say that the applicant’s medical condition was not so serious as to prevent him from appearing in court. The court then admitted Ms D.N.’s written submissions and evidence.
18. In a final judgment of 24 January 2007, Ruse Regional Court dismissed the applicant’s claim.
19. The applicant again sought the reopening of the case. In a final judgment of 4 March 2008, the Supreme Court of Cassation rejected the application, as it found that the case had already been reopened once on the applicant’s application and that the applicant had not presented or requested the gathering of additional evidence after the reopening. The court went on to note that one hearing had been adjourned at the applicant’s request and that his medical condition was not so serious as to prevent his appearance in court. It concluded that the applicant’s procedural rights had not been breached and that by seeking adjournments he had been abusing those rights.
20. The Administrative Offences and Sanctions Act 1969 lays down the procedure for establishing and punishing administrative offences. Orders imposing administrative sanctions are subject to judicial review by the district courts, whose judgments were, until the end of February 2007, subject to appeal before the regional courts (sections 59 and 63). On 1 March 2007 appellate jurisdiction under the Act was transferred from the regional to the administrative courts. The Act does not contain provisions on costs. Section 84 provides for the subsidiary application of the Code of Criminal Procedure in respect of a number of matters not set out in the Act, such as remuneration of experts and reimbursement of the expenses of witnesses, but counsel’s fees are not mentioned.
21. The Code of Criminal Procedure 1974, in force until April 2006, provided in Article 169 § 2 that when an accused was convicted the court had to order him to bear all the costs of the proceedings, including, inter alia, the fees of his or her court-appointed counsel. Article 170 § 1 provided that if the accused was acquitted or the criminal proceedings were discontinued the costs were to be borne by the State. In April 2006 those provisions were superseded by Articles 189 § 3 and 190 § 1 of the Code of Criminal Procedure 2005, whose wording is identical.
22. Article 265 §§ 2 and 4 of the 2005 Code provides that a judge presiding over a panel hearing a criminal case shall ensure order in the courtroom and may impose a fine of up to BGN 500 (equivalent to EUR 255.59) on anyone breaching that order. The fine can be set aside by the panel as a whole.
23. Section 1 of the State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with administrative action. Section 2(1)(3) provides for liability of the investigating or prosecuting authorities or the courts for damage resulting from the imposition of an administrative penalty where the penalty has been set aside. Section 4 provides that the State is liable for all pecuniary and nonpecuniary damage which is a direct and proximate result of the impugned decision, action or omission.
24. The question of costs for expert opinions and witnesses in proceedings under the 1969 Act was settled by the Supreme Court in a 1985 interpretative decision (see тълк. реш. № 3 от 8 април 1985 г. по н. д. № 98/1984 г., ВС, OСНК), in which it held that since the Act did not contain provisions in that respect, the provisions of the Code of Criminal Procedure 1974 should apply and that, in cases where a decision imposing an administrative sanction has been quashed, those costs are to be borne by the State. The interpretative decision did not deal with counsel’s fees.
25. In an interpretative decision of 3 June 2009 (see тълк. реш. № 2 от 3 юни 2009 г. по тълк. д. № 7/2008 г., ВАС, ОСК) the Supreme Administrative Court dealt with the question whether after 1 March 2007, when appellate jurisdiction under the 1969 Act was transferred from the regional to the administrative courts (see paragraph 20 above), the administrative courts should award costs in judicial review proceedings under the Act. The court observed that there existed a certain inconsistency in the administrative courts’ case-law on that point. Some courts awarded costs, whereas others did not, saying that they could be claimed by way of damages in separate proceedings under the 1988 Act. The court held that the administrative courts could not award costs in proceedings under the 1969 Act, as neither that Act nor the 1974 or 2005 Codes of Criminal Procedure made provision for them to do so.


ITEMID: 001-71121
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KORCHAGINA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicants are residents of Voronezh.
5. The applicants are in receipt of welfare payments for their children. In 1999 – 2000 they brought separate sets of civil proceedings against a local welfare authority, claiming arrears in those payments.
6. On the dates set out in the appendix the domestic courts granted the applicants’ claims and ordered the welfare authority to pay them the respective amounts. The enforcement proceedings were commenced accordingly.
7. On 26 July 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgments in the applicants’ favour and returned them the writs of execution referring to the lack of the debtor’s funds.
8. In 2002 – 2004 the applicants unsuccessfully applied to various public bodies seeking to have the judgments in the favour enforced.
9. On 2 June 2004 the applicants were paid the amounts due pursuant to the writs of execution.
10. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
11. Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79141
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SITKOV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 on account of the quashing of the judgment;Violation of P1-1 in respect of the same fact;Not necessary to examine the complaint about the length of the civil proceedings;Not necessary to examine the complaint about the alleged lack of domestic remedies in respect of the length complaint
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1948 and lives in Moscow.
6. In 1996 the applicant took out insurance for his summer cottage. In May 1997 the cottage burnt down. The insurer, a private company (hereinafter referred as “the company”), paid only a part of the amount claimed by the applicant. The applicant brought an action against the company claiming the rest. On 5 December 1997 the Moscow Lefortovskiy District Court ordered the company to pay the applicant 86,621 Russian roubles (RUR).
7. On 18 December 1997, upon the applicant's request, the Lefortovskiy District Court ordered the seizure of the company's account in a private bank “Yunikbank”. As follows from the extract of that account, provided by the “Yunikbank”, on 29 December 1997 the company had RUR 14,991 on it. There is no indication, however, that the money on that account has ever been seized.
8. The judgment of the Lefortovskiy District Court was upheld by the Moscow City Court on 16 January 1998. Following that, the Lefortovskiy District Court issued an execution order against the company. On 26 January 1998 the execution order was sent to the bailiff.
9. On 28 January 1998 a bailiff initiated the enforcement proceedings. On 2 February 1998 the bailiff requested from the State Tax Office information about the accounts and assets of the company. The Tax Office informed the bailiff that by 1 October 1997 the company had declared RUR 350,000 in cash and RUR 12,274 on accounts in three private banks. According to the Tax Office, in the last fiscal report the company had also declared RUR 98,507,000 in capital assets, RUR 116,534,000 in intangible assets, and RUR 24,804,000 in receivable accounts.
10. On 11 February 1998 the bailiff visited the headquarters of the company indicated in the company's official documents, but no property belonging to the company was found at that address. On the same day the bailiff discontinued the enforcement proceedings on the ground that the defendant had no assets to seize.
11. The next day the applicant brought an action against the bailiff. He claimed that the bailiff had failed to take appropriate steps to find and seize the company's property. On 23 February 1998 the Lefortovskiy District Court ruled in the applicant's favour. The court found, in particular, that the bailiff had failed to withdraw the debt from the defendant's account in “Yunikbank”. The court also found that the bailiff had breached a number of procedural rules, in particular, as it had not informed the applicant about the initiation of the enforcement proceedings. The court ordered the enforcement of the judgment in the applicant's favour.
12. A new bailiff was appointed to deal with the applicant's case. However, he found no money on two of the defendant's accounts, including the one in “Yunikbank”. On 18 March 1998 the enforcement proceedings were discontinued.
13. The applicant challenged the discontinuation of the proceedings in court. On 18 May 1998 the Lefortovskiy District Court quashed the bailiff's decision and ordered the re-opening of the enforcement proceedings. The court found, in particular, that the bailiff had failed to establish the real whereabouts of the company and its property. On 24 June 1998 the Moscow City Court dismissed the Senior Bailiff's appeal against that decision.
14. On 16 November 1998 the bailiff again discontinued the enforcement proceedings in view of the absence of assets belonging to the defendant. The applicant did not appeal against this decision.
15. On 16 April 1998 the applicant brought an action for damages against the Ministry of Justice, which is responsible for the Bailiff's Office. On 10 March 1999 the Moscow Presnenskiy District Court recognised the liability of the Bailiff's Office for the non-execution of the judgment of 5 December 1997 as upheld on 16 January 1998. The court granted the applicant damages in the amount of RUR 86,621, i.e. the sum which he had initially claimed from the company. This judgment was not appealed against and became final on 20 March 1999. It was transmitted to the bailiffs for enforcement.
16. On 29 July 1999 the Moscow City Prosecutor lodged with the Moscow City Court an extraordinary appeal against the judgment of 10 March 1999. The Prosecutor also suspended the enforcement proceedings. On 16 September 1999 the Presidium of the Moscow City Court dismissed the appeal, upholding the judgment of 10 March 1999.
17. On 28 January 2000 the Deputy Prosecutor General lodged with the Supreme Court of Russia a new extraordinary appeal against the judgment of 10 March 1999. He alleged, inter alia, that the Moscow Presnenskiy District Court should have imposed responsibility for the alleged non-execution on the Treasury, not the Ministry of Justice.
18. On 29 February 2000 the Supreme Court of Russia granted the prosecutor's appeal and quashed the judgment of 10 March 1999, primarily on the ground that the first instance court had not established a causal link between the alleged negligence of the bailiffs and the damages allegedly incurred by the applicant. The case was remitted to the Moscow Presnenskiy District Court for a fresh examination.
19. The applicant indicated that following the quashing of the judgment of 10 March 1999 by the Supreme Court the hearings were repeatedly adjourned, mainly due to the defendant's failure to appear before the court.
20. On 3 April 2001 the Presnenskiy District Court dismissed the applicant's claim. The court found no liability of the Bailiff's Office for the non-execution of the judgment. On 20 July 2001 the Moscow City Court, acting as a court of appeal, quashed the judgment of 3 April 2001, remitting the case to the Presnenskiy District Court.
21. On 18 January 2002 the Presnenskiy District Court again refused the applicant's claim. It stated that the applicant was not deprived of his property as a result of the actions of the Bailiff's Office. Although the court acknowledged that the Bailiff's Office's actions prevented the applicant from recovering his money, it declared that the actions of the Bailiff's Office “only hindered compensation for damage”, but “did not cause damage”.
22. The applicant appealed against the judgment. On 5 March 2002 the Presnenskiy District Court rejected the appeal as the applicant had not paid court fees. The applicant appealed against the decision, claiming that he was exempted from paying the fees. On 22 May 2002 the Moscow City Court upheld the decision of 5 March 2002. However, on 19 September 2002 the Presidium of the Moscow City Court overruled that decision, stating that the applicant should have been exempted from paying the fees.
23. On 28 November 2002 the Moscow City Court examined the applicant's appeal. It upheld the judgment of the Presnenskiy District Court of 18 January 2002. The City Court reiterated that as a result of the bailiff's actions the applicant had not been deprived of his possession and the bailiff's actions were only a hindrance to a full compensation for damages caused by the insurance company.
24. Article 46 of the Russian Constitution provides that any acts or failure to act by State authorities may be appealed against to a court. Pursuant to the Law “On enforcement proceedings” of 1997, any decision of the bailiff can be challenged in court within 10 days from the moment when the concerned person learned about this decision (Article 90 § 1). Articles 19 and 90 § 2 of this law stipulate that the damage caused by the bailiffs should be compensated under general rules of civil responsibility.
25. For relevant details concerning the supervisory review proceedings see the Ryabykh v. Russia judgment (no. 52854/99, 24 July 2003, §§ 31-40).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108971
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BACKOVIĆ v. SERBIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - claim dismissed
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: 6. The applicant was born in 1956 and lives in Sombor, Serbia.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. On 24 February 2005 the applicant bought a store together with a plot of land from the P Company (plot A).
9. As the owner of the above real estate, as well as of plots B and C, the P Company was burdened with a landed servitude (lični realni teret) in favour of third persons, requiring their life-long maintenance (doživotno izdržavanje).
10. On the basis of the above contract, however, the servitude in question, being tied, inter alia, to plot A, was partly transferred to the applicant as its new owner.
11. On 30 March 2005 the applicant and the P Company concluded a court-certified amendment to the contract of 24 February 2005. The P Company thereby accepted to reimburse the applicant for any payments made in connection with the said servitude. This entitlement was itself constituted as a separate landed servitude (easement, stvarni realni teret) tied to plots B and C and established in favour of the applicant as the current owner of plot A, as well as any future owners thereof.
12. On 30 March 2005 the applicant filed a request with the Municipal Cadastre Office (Služba za katastar nepokretnosti) in Sombor, seeking registration of his easement.
13. On 11 April 2005 the Municipal Cadastre Office rejected the applicant’s request, stating that the registration sought could not be granted in view of the relevant domestic law.
14. On 18 July 2005 the applicant appealed against this decision.
15. On 30 January 2006 the applicant supplemented his appeal with an expert opinion provided by a well-known domestic legal expert, according to whom the applicant’s entitlement of 30 March 2005 was an easement and, as such, had had to be registered by the Municipal Cadastre Office. The expert, retained by the applicant, further noted that the rights of the third persons in question remained unaffected, thus implying that their consent was not needed.
16. On 29 May 2006 the legal branch of the Department of Geodesy (Republički geodetski zavod - sector za pravne poslove) confirmed the impugned decision of the Municipal Cadastre Office. It stated that the applicant had not offered any proof that the third persons in question had agreed to the arrangement reached on 24 February 2005 and 30 March 2005. It also noted that no judicial review by means of an administrative dispute was possible.
17. Both the Municipal Cadastre Office and the Department of Geodesy are administrative authorities and, as such, part of the respondent State’s executive branch of government.
18. Articles 1, 5 § 1, 58a and 58e provide that this Act shall regulate, inter alia, the registration of specified real estate-related legal entitlements, including landed servitudes (realni tereti i službenosti). Such entitlements shall be deemed constituted upon their registration.
19. Article 58v provides that registration of such entitlements may, inter alia, be granted on the basis of a legally valid contract.
20. Article 105 § 3 provides that no judicial review, by means of an administrative dispute, of a registration-related decision issued by the Department of Geodesy shall be possible.
21. Article 52 provides, inter alia, that a landed servitude shall be deemed constituted upon its registration, i.e. entry in the relevant land register (modus acquirendi).
22. Article 180 § 1 provides that all second instance decisions issued in accordance with “this Act” shall be subject to judicial review by means of an administrative dispute.
23. This Act entered into force on 11 September 2009, thereby repealing the Cadastre Act 1992.
24. Article 13 provides that final administrative decisions granting certain rights or imposing certain obligations may be annulled, cancelled or amended only in situations envisaged by this Act. The Supreme Court clarified that this provision implies that only administrative decisions granting certain rights or imposing certain obligations may be considered final (Uvp II 50/2004 of 26 January 2006).
25. Articles 32-38 set out the details as regards the possible recusal of civil servants who are authorised to decide in individual administrative matters.
26. Articles 5 provides that a civil servant (državni službenik) shall be obliged to act in accordance with the Constitution, the applicable legislation and the rules of his profession, as well as to adhere to the principles of impartiality and political neutrality. A civil servant shall further, in the course of his work, desist from expressing or asserting any political beliefs.
27. Article 6 provides that civil servants shall be accountable for the legality, quality and efficiency of their work, respectively. No one shall be allowed to influence them in the performance of their duties.
28. Article 18 provides, inter alia, that a civil servant shall be obliged to execute a verbal order issued by his superior except if he considers that the order in question is contrary to the law or the relevant professional rules or that its execution may “cause harm”. A civil servant shall be obliged to execute a repeated written order of his superior issued to the same effect. He shall, however, be obliged to refuse the execution of a verbal or a written order whose execution would amount to a punishable offence. In a situation of this kind the civil servant in question shall be obliged to report the entire matter, by means of a written submission, to his authorised supervisor.
29. Articles 49-81, 86 and 126-132 provide details as regards the recruitment of civil servants as well as the termination of their employment. Article 62 § 1 provides that civil servants shall, in principle, be employed on a permanent basis.
30. This Act entered into force on 1 July 2006, thus repealing earlier legislation regulating the status of civil servants.
31. Relevant sections of this report read as follows:
“Pending the adoption and full implementation of new laws, the Serbian administration remains overstaffed but at the same time suffers from a shortage of qualified personnel and undue political interference, which affects both institutional and policy continuity.
In the context of the reform strategy, the Serbian Parliament adopted the ... Law on Public Administration and the Law on Civil Servants ...”
32. Relevant sections of this report read as follows:
“1.1.3. Public administration
The legal framework providing for public administration reform (PAR) is largely in place in Serbia and administrative capacities are generally well developed, in particular at central level. A Strategy for PAR was adopted by the Government in 2004 and supplemented by an Action Plan covering the period 2009-2012 ...
The implementation of the Strategy is making slow progress ...
The Law on Civil Servants ..[,] adopted in 2005, regulates the position of employees in the public administration. The Law was subsequently amended to establish educational requirements for civil servant posts, aimed at increasing professionalism and reducing the risk of political influence and nepotism ... A significant number of appointments for senior civil servant positions are still pending. Selection procedures are not applied uniformly and, in the absence of criteria for final recruitment decisions, managers still have excessive discretionary powers when choosing candidates from lists prepared by the competitions’ selection panels. Competence and professionalism in appointments at management and lower levels in the administration need to become the rule ...
A Human Resources Management Service was established in 2006, in charge of ... internal advertising and public competitions for non-management jobs ... and overseeing the general professional training programme for civil servants. A Strategy for the professional training of civil servants for the period 2011- 2013 was adopted in July 2011 ... However, only a small percentage of civil servants, and in particular a very small percentage of managers, takes part in this training. Induction training is not provided.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1