The applicant, Mr. Esko Passila, is a Finnish national who was born in 1941 and lives in Lahti.

On 5 January 2001 the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) of Lahti decided that as of December 1999 the Finnish social security legislation did not apply to the applicant as he was not considered to be permanently resident in Finland.

The applicant appealed to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden) which rejected the appeal on 12 October 2001. The decision of the Appellate Board was sent to the applicant’s address in Estonia, but allegedly the applicant never received it. He had allegedly requested the authorities to send the decision to his address in Finland.

The applicant alleged that he became aware of the decision of the Appellate Board in February 2002 when the Social Insurance Institution asked him to return some wrongly paid social benefits. By that time the decision of the Appellate Board had already gained legal force and he was not able to appeal against it to the Insurance Court (vakuutusoikeus, försäkringsdomstolen). At that time he allegedly asked advice from the Appellate Board and the Insurance Court, without any helpful response.

Under section 61 of the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen 586/1996) an expired time-limit may be restored to a person who has a legal excuse or who for another strong reason was unable to observe a prescribed time-limit in lodging an appeal against a decision.

Under section 62 of the said Act an application for the restoration of an expired time-limit shall be lodged with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) within one year of the expiry of the original time-limit, at the latest. For a very strong reason the time-limit may be restored even after that period.

In a decision of 16 November 2001 (no 2862) the Supreme Administrative Court decided to restore an expired time-limit for A in order to lodge an appeal to the Administrative Court against a decision of the Environmental Board in a case where the decision of the Environmental Board was not given to him as required by section 54, subsection 1 of the Environmental Protection Act (ympäristönsuojelulaki, miljöskyddslagen).


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Civil rights and obligations;Determination (civil));Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

By an order of 13 October 1983 the applicant was settled as a tenant, together with his family, in a flat which the State had assigned in 1980 for “use and management” to the State enterprise by which he was employed. He moved in the flat in 1986.

In a decision of 20 September 1991 the Council of Ministers transformed the enterprise employing the applicant into a Stateowned singlemember limited liability company. On 28 January 1992 the Varna Regional Court ordered the entry of the newly formed company into the register of companies. In a decision of 5 August 1992 the Minister of Industry, acting as a representative of the sole shareholder – the State – transformed the company into a Stateowned singleshareholder jointstock company. The transformation was entered into the register of companies kept at the Varna Regional Court on 15 September 1992.

In late 1992, after the entry into force, on 3 August 1992, of certain amendments to the Act to Settle the Housing Problems of LongStanding Home Purchase Savings Depositors of 1991 („Закон за уреждане на жилищните въпроси на граждани с многогодишни жилищноспестовни влогове“ – “the Housing Act of 1991” – see paragraphs 2427 below), the applicant applied to purchase the flat. He considered that paragraph 4 of the additional provisions of the Act entitled him to buy the flat at a preferential price. It appears that many of his colleagues had purchased the flats they were renting from their employer under this provision. On 28 December 1992 the board of directors of the applicant’s employer assented to the sale.

On 4 January 1993 the applicant requested the mayor of Varna to approve the sale, enclosing declarations and documents purporting to establish that he met all the conditions laid down in section 2 of the Act (see paragraph 27 below). In addition, he submitted a letter from his employer’s board of directors, in which it informed the mayor that it had assented to the sale and asked him to validate it. The letter expressly mentioned that the sale was to be effected under paragraph 4 of the additional provisions of the Housing Act of 1991, and indicated the company’s bank account to which the municipality was to transfer the sale proceeds once the applicant had made the payment.

The mayor failed to reply and on an unspecified date in 1993 the applicant filed with the Varna Regional Court an application for judicial review of his tacit refusal.

In a judgment dated 30 November 1994 and entered in the court’s register on 5 December 1994, the Varna Regional Court quashed the refusal and instructed the mayor to issue, within one month, an order validating the sale. It held as follows:

“According to section 111 of the [State Property Regulations of 1975 („Наредба за държавните имоти“ – see paragraphs 3336 below)], the sale of State-entityowned [„ведомствени“] housing units is effected by the municipal councils under the conditions laid down in section 111(4) of the [Regulations], that is, pursuant to a proposal by the respective State entity, indicating the buyer. In such case, under section 120 of the [Regulations], the municipal council effects the sale on the basis of an order issued by it.

The text of section 120 of the [Regulations] is categorical on the point that, provided all conditions for execution of the transaction have been met, the municipal council has no discretion whether or not to do so, but must issue the respective order. Such an order undoubtedly constitutes an individual administrative decision and is, like the tacit refusal to issue it, subject to review under the [Administrative Procedure Act of 1979 („Закон за административното производство“ – “the APA” – see paragraph 41 below)].

The facts of the case indicate beyond doubt that the applicant was a tenant in the flat [in issue] on the basis of a[n] ... order ... of 13 October 1983. As such, he has the right to buy it according to the procedure laid down in the [Regulations].

It is also beyond doubt that this flat is the property of [the applicant’s employer].

In a decision of [28 December 1992] the board of directors of the [applicant’s employer] allowed the applicant to purchase the State-entity-owned housing unit he was living in.

In execution of this decision [the applicant’s employer] addressed a request to the chairperson of the Executive Committee of the Varna Municipal Council [i.e. the mayor – see paragraph 35 below], in which it had also indicated the buyer. Thus, all requirements of section 111 of the [Regulations] were complied with.

In view of this state of affairs the Municipal Council should have discharged its duty under section 120 of the [Regulations], finalising in due form the consent already achieved between the parties and issuing the respective order.

The Municipal Council is in effect not a party to the sale agreement. The parties are the State entityowner [of the flat] and the tenant. The Municipal Council acts as an administrative authority which only approves the already concluded contract.

The tacit refusal to do so was unlawful.”

The mayor refused to comply and on 3 February 1995 submitted a petition for review (see paragraphs 4345 below) to the Supreme Court, arguing that such an order – or the refusal to issue it – was not an individual administrative decision and was hence not subject to judicial review under the APA.

The applicant filed a counterpleading, arguing, inter alia, that the dispute did not concern an ordinary sale of a Stateowned housing unit but a sale of a housing unit subject to the special provisions of paragraph 4 of the additional provisions of the Housing Act of 1991. The mayor’s role was thus not that of a contracting party, as it would have been in the general case, but that of a supervising administrative authority. Once the prerequisites for effecting the sale had been met, the mayor had no discretion but to approve it. He or she could refuse to do so only if the applicant did not meet the conditions laid down by the Act.

The Supreme Court held a hearing on 7 October 1996. The applicant’s counsel argued that the mayor’s petition for review had been submitted out of time. The participating prosecutor also maintained that the petition was untimely and stated that the mayor should be allowed to present evidence to prove when the Varna Regional Court’s judgment had been entered in the register. The merits of the case were not pleaded during the hearing.

On 9 October 1996 the Supreme Court sent a letter to the Varna Regional Court, enquiring about the date on which the latter’s judgment had been entered in the court’s register. The Varna Regional Court replied that its judgment had been entered on 5 December 1994.

In December 1996 the Supreme Court was divided into a Supreme Court of Cassation and a Supreme Administrative Court. The newly formed Supreme Administrative Court took over cases, such as the applicant’s, in which petitions for review in administrative proceedings had been pending before the former Supreme Court.

A threemember panel of the Supreme Administrative Court gave judgment on 14 January 1997. It held that the petition for review had been submitted within the two-month statutory time-limit and was thus admissible and continued:

“... The petition for review is well-founded.

In the judgment under review the Varna Regional Court quashed the tacit refusal of the mayor ... of Varna to enter into a contract for the sale of a Stateentityowned housing unit ... to its tenant...

The mayor’s decisions to enter into contracts for the sale of Stateowned housing units under the State Property Regulations [of 1975] or the refusals to do so, including where the housing units have been given, for management, to ministries, other State entities, State commercial enterprises and institutions, are not administrative decisions within the meaning of section 2 of the [APA]. These decisions precede the execution of the bilateral transaction for transferring title to the respective property from the State to the individual purchaser and denote the assent of the mayor ... to the future execution of such a deal. [The mayor] does not, however, act as an administrative authority; he is placed on equal footing with the private individual contracting with him. For this reason his acts in such cases fall out of the ambit of the [APA] and are not subject to review under it. ...

Moreover, in view of the terms of section 117 of the State Property Regulations [of 1975], it could not be accepted that the municipalities are bound to sell Stateentityowned housing units to the tenants settled therein. This provision sets out only the manner in which these housing units are sold and the persons who are entitled to purchase them in the event of a decision to that effect by the competent body. There is no legal obligation for the mayor to approve the sale of a Stateentityowned flat. This lack of a legal duty excludes administrative or judicial review under the [APA].

In examining the application [for judicial review] the [Varna] Regional Court overstepped its jurisdiction. Its judgment therefore is to be quashed, the application is to be left without examination, and the proceedings are to be discontinued. ...”

On 24 February 1997 the applicant filed a petition for review, expounding all his arguments, including those relating to the merits of the case. Later he filed additional observations. A hearing was held on 19 June 1997, at which the applicant’s counsel argued the case and made reference to his earlier written pleadings.

On 10 July 1997 a fivemember panel of the Supreme Administrative Court found the applicant’s petition timely, but dismissed it in the following terms:

“The threemember panel’s judgment is wellfounded. The proceedings before the Varna Regional Court related to the refusal of the mayor of Varna to enter into a contract for the sale of a Stateentityowned housing unit. The holding that the decisions to enter into a contract for the sale of State-owned housing units in the manner prescribed in the State Property Regulations [of 1975] or the refusals to do so, including where [such housing units] have been assigned to State entities, as in the case at hand, are not individual administrative decisions within the meaning of section 2 of the APA is correct. [These decisions] precede the execution of a bilateral transaction transferring title to the property from the State to the [individual], and denote the assent of the mayor ... to the future execution of this transaction. [The mayor] does not act as an administrative authority; he is placed on an equal footing vis-à-vis the private person. Therefore, his acts in such cases are not encompassed by the [APA]. Acts which relate to civillaw relations, where the administrative authority and the [person concerned] are on an equal footing, are not individual administrative decisions within the meaning of the APA.

The threemember panel correctly found that in view of section 117 et seq. of the State Property Regulations [of 1975] it could not be accepted that the municipalities are bound to sell Stateentityowned housing units to their occupants. This provision sets forth only the manner of selling such units, which could be purchased in the event of a decision to this effect by the competent body. There is however no legal duty for the mayor ... to assent to the sale of a Stateentityowned housing unit, and in the absence of such a legal obligation administrative or judicial review under the APA is inadmissible.”

Neither the threemember panel, nor the fivemember one mentioned the Housing Act of 1991 in their reasons.

This Act concerns mainly persons who have deposited money in special housing bank accounts prior to 1991 (the applicant does not fall into this category).

Separately, paragraph 4 of the additional provisions of the Act, dealing with the housing needs of employees of State entities („ведомства“), provided, as enacted in October 1991:

“State entities which own residential buildings may sell existing housing units to their employees ... provided the persons willing to purchase them meet the requirements of section 2(1).”

Effective 3 August 1992, that text was amended to read:

“1. State entities ... shall, by decisions adopted by their managements after 4 March 1991 and not later than six moths after the entry into force of this amendment of the Act, sell the existing housing units to their employees under the following terms:

(1) employees who have applied to purchase State-entityowned housing units not later than 4 March 1991 or were tenants therein before that date and who meet the requirements of section 2(1)(1), (3) and (4) of the Act may purchase the units at prices set in accordance with [previous, more favourable pricing rules].

(2) employees who were settled as tenants after 4 March 1991, but before the entry of this amendment of the Act into force, and, as of the date of issuing of the settlement order, met the requirements of section 2(1)(1), (3) and (4) of the Act, may purchase the housing units at prices set in accordance with [the then current pricing rules].

The difference between the price at which the housing units are acquired under subparagraph 1 and their real value shall be borne by the [respective State entity].”

Points 1, 3, and 4 of section 2(1) of the Act, as in force at the relevant time, laid down certain conditions for the persons concerned to come within its purview: (i) that they did not own homes or country houses fit for permanent use whose value, when added to the value of the remainder of their assets, was above 150,000 old Bulgarian levs (BGL), (ii) that they had not conveyed title to homes to third parties after 1 January 1981, except in cases of partition of property, and that (iii) the total amount of their movable and immovable assets, other than their homes and country houses, valued in accordance with the Regulations for the implementation of the Act, was below BGL 150,000.

Section 2 of the Regulations („Правилник за прилагане на Закона за уреждане на жилищните въпроси на граждани с многогодишни жилищноспестовни влогове“), which were enacted in October 1992, reads:

“The persons eligible within the meaning of the Act are:

(3) tenants in housing units owned by [State entities] whose tenancies commenced before 3 August 1992; ...”

Paragraph 2(1) of the of the additional provisions of the Regulations defines “existing housing units” (the expression used in paragraph 4 of the additional provisions of the Act – see paragraphs 25 and 26 above) as units which have been completed not later than 4 March 1991 (in the cases falling under subparagraph 1(1) of paragraph 4) or 3 August 1992 (in the cases falling under subparagraph 1(2) of paragraph 4).

Paragraph 2(2) of the additional provisions of the Regulations provides that paragraph 4 of the additional provisions of the Act does not apply to housing units which have been assigned by the municipalities to State entities for use and management.

By paragraph 2(3) of the additional provisions of the Regulations, the decisions to sell Stateentityowned housing units are valid if they are adopted by their collective management bodies, or by the respective government minister or an official authorised by him or her.

Paragraph 18(1) of the transitional and concluding provisions of the Regulations (added in March 1995) provides that if the housing units under paragraph 4 of the additional provisions of the Act have been listed as longterm assets of State-owned commercial companies, the difference between the price at which they were sold and their book value has to be noted down as a reduction of these companies’ capital.

The State Property Regulations of 1975 (repealed in September 1996) were adopted by the Council of Ministers under section 21 of the Property Act of 1951 („Закон за собствеността“) – which empowered it to make regulations for the “management, use, and disposition” of State property – and governed, inter alia, the procedure for selling housing units owned by the State (section 109(1)).

Their section 111(2) provided that where housing units, given for “use and management” to, inter alia, State entities or State commercial enterprises and institutions, were put up for sale, they had to be turned over to the municipality on the territory of which they were situated for effectuating the transaction.

Section 120(1) provided that the sale was effected on the basis of an order of the chairperson of the executive committee of the municipal council (after the adoption of the Constitution of 1991 that was the mayor).

Section 117 dealt with the conditions for and the manner of selling of Stateowned housing units to tenants.

Before 1989, under the communist regime, State enterprises did not enjoy an independent right of property over their assets; these assets were the property of the State and were only made available to them for “use and management”.

Under the Trade Act of 1991 („Търговски закон“) and other reform legislation adopted in 1991 and 1992, State enterprises had to be transformed, by decision of the relevant ministry and upon registration at the competent court, into singlemember limited liability companies or singleshareholder jointstock companies whose sole member or shareholder was the State.

The question whether the transformed enterprises became full owners of their assets or continued to be only beneficiaries of a right to “use and manage” them on behalf of the State was unclear and was still discussed in the legal theory after 1991. It was finally settled with the adoption, in May 1996, of the State Property and the Municipal Property Acts of 1996 („Закон за държавната собственост“ и „Закон за общинската собственост“). Sections 2(4) of both Acts provided that the assets of State or municipalityowned commercial companies were not the property of the State or, respectively, of the municipalities, even if they were the sole shareholder or member of such companies. In December 1999 the Supreme Administrative Court confirmed that this provision applied to flats previously made available for “use and management” to State enterprises which had later been transformed into commercial companies (реш. № 7376 от 30 декември 1999 г. по адм.д. № 4277/1999 г., ВАС, III о.).

Article 120 of the Constitution of 1991 provides:

“1. The courts shall review the lawfulness of the administrative authorities’ acts and decisions.

Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”

The APA governs the procedure for issuing administrative decisions and for judicial review of such decisions. Section 2(1) of the APA defines “individual administrative decisions” as “decisions issued [by public authorities], which create rights or obligations for, or affect the rights or the legitimate interests of, individuals or juristic persons, as well as the refusals to issue such decisions”. By sections 33 and 34 of the APA, all “administrative decisions”, save those relating to the national security or specifically enumerated by statute, are subject to judicial review.

In this interpretative judgment no. 21 of 26 October 1995 in constitutional case no. 18/1995 (реш. № 21 от 26 октомври 1995 г. по к.д. № 18 от 1995 г., обн. ДВ, бр. 99 от 10 ноември 1995 г.) the Constitutional Court gave a binding interpretation of Article 120 § 2 of the Constitution. It held, inter alia, that this provision encompassed all administrative decisions regardless of their character or theoretical qualification. The exclusion of a given administrative decision from judicial review could only be done by statute. “All administrative decisions” meant “without exception”. Only internal decisions which did not affect in any way physical or juristic persons outside the respective administration were not covered by the constitutional provision.

Until December 1997 section 44 of the APA provided that the regional courts’ judgments on applications for judicial review of administrative decisions were final and could be set aside only in accordance with Article 225 et seq. of the Code of Civil Procedure of 1952 (“the CCP”).

Articles 22530 of the CCP, repealed with effect from 1 April 1998, governed review proceedings before the former Supreme Court. Prior to 1990 these texts stipulated that review proceedings were initiated on the proposal of the Chief Prosecutor or the chairperson of the Supreme Court, which was not, as a rule, limited by time, and was examined in private by a section of the Supreme Court or its Plenary.

However, these texts were fully reshuffled with effect from 21 April 1990 and henceforth provided that review proceedings were initiated upon the petition of a party to the case (Article 225 § 1), lodged within two months after the entry into force of the lower court’s judgment (Article 226 § 1), or the proposal of the Chief Prosecutor (Article 225 § 2), lodged within one year after the judgment’s entry into force (Article 226 § 1). A petition for review did not have suspensive effect, but the Supreme Court could, on the application of the petitioning party, order a stay of the enforcement of the lower court’s judgment in case such enforcement would cause irreparable harm to the petitioning party (Article 225 § 4). The petition was examined by the Supreme Court at a public hearing in the presence of the parties to the case (Article 227 § 2). The Supreme Court had the power to set the judgment aside wholly or in part, whenever (i) it was “contrary to the law”, (ii) “substantial breaches of procedural law [had] occurred during the proceedings or in connection with the delivery of the judgment”, or (iii) it was “illfounded” (Article 225 § 3 in conjunction with Article 207). If the Supreme Court set the lower court’s judgment aside, it could either decide the case itself, or exceptionally remit it to the lower court for reexamination (Article 229 § 2).

Article 231 § 1 (h) of the CCP, adopted in 1997 and in force since 1 April 1998, provides that an interested party may request the reopening of civil proceedings in case a “judgment of the European Court of Human Rights has found a violation of the [Convention]”. By section 45 of the APA and section 41(1) of the Supreme Administrative Court Act of 1997 („Закон за върховния административен съд“), this provision is applicable to proceedings in administrative cases as well. The Supreme Administrative Court has already had occasion to use it to reopen proceedings resulting in a ruling that the courts had no jurisdiction to examine an application for judicial review of an administrative decision (see Al-Nashif v. Bulgaria, no. 50963/99, 20 June 2002; and реш. № 4332 от 8 май 2003 г. по адм.д. № 11004/2002 г., ВАС, петчленен състав).


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Rumen Ivanov Todorov, is a Bulgarian national who was born in 1960 and lives in Ahtopol. He was represented by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 May 1990 the applicant obtained construction rights over a plot of municipal land in Rezovo, the municipality of Tsarevo (formerly Michurin). In accordance with the relevant law as in force at the time, the municipal authorities issued an order granting construction rights and also entered into a contract with the applicant. The surface of the plot was 700 square metres. The price was set at 700 “old” Bulgarian levs (BGL), which the applicant paid on 14 May 1990. At that time BGL 700 was the equivalent of approximately three average monthly salaries in the country.

The contract stipulated, inter alia, that the applicant’s right to construct a building would expire in the event of his failing to complete the building within five years.

The applicant hired an architect and on 19 July 1991 he obtained a building permit for a two-storey house of 111 square metres to be constructed on the plot. The applicant also purchased construction material, transported it to Rezovo and stored it there.

On an unspecified date in the summer of 1991 the municipal building authorities refused to authorise the commencement of the construction works as the technician who had visited the site had noted that a high-voltage electricity conduit passed over the plot.

It appears that during the same period persons claiming rights over neighbouring plots obstructed the applicant’s preparations for the construction of his house. In 1992 the applicant brought an action against them, seeking damages. The municipality of Tsarevo was summoned as a third party. By judgment of 2 March 1993 the Bourgas District Court dismissed the applicant’s claim against the neighbours, noting that the impossibility for the applicant to realise his project was only imputable to the municipality which had sold him construction rights over the plot in disregard of the fact that constructing a building there was not allowed owing to the passage of a high-voltage electricity conduit.

On an unspecified date in 1993 the applicant wrote to the municipality asking them to provide him with another plot. He allegedly received assurances that that would be done later.

By decision of 1 September 1995 the local land commission ordered the restitution of the land on which the applicant had obtained construction rights to the heirs of the person who had owned it prior to the collectivisation of agricultural land in Bulgaria in the 1950s.

In October 1995 the applicant travelled to Germany and started working there.

On 29 January 1996 the mayor of Tsarevo issued an order cancelling the applicant’s construction rights.

On an unspecified date in 1997 the applicant brought an action against the municipality of Tsarevo seeking restitution of the price paid by him under the 1990 contract and damages for breach of contract. Initially he claimed BGL 100,000. On 31 March 1998 he increased the claim to BGL 1,000,000.

By a judgment of 27 July 1998 the Tsarevo District Court partially granted the claim. On an appeal by the applicant, on 24 March 1999 the Bourgas Regional Court increased the award. The final judgment was that of the Supreme Court of Cassation of 15 May 2000, which upheld the Regional Court’s judgment.

The courts found, inter alia, that the Tsarevo municipality had breached the 1990 contract with the applicant in that it had granted him construction rights over a plot which could not be built over and had failed to remedy that situation despite his complaints. It followed that the municipality was liable to pay all ensuing damages. The applicant had proven the alleged losses in respect of the price paid by him in May 1990 to the municipality (BGL 700), the architect’s fees paid by him in 1991 (BGL 1,200) and the expenses incurred by him in 1991 for the transport of construction material (BGL 8,000).

The remainder of his claims, which concerned alleged loss of profits, were dismissed as unproven. The applicant had stated that in normal circumstances he would have completed the house within a year and would have rented it each year during the summer holidays. The courts found that the applicant had not substantiated the alleged loss of profits. He had relied solely on information about average property and rental prices at the relevant time.

The amount awarded to the applicant was thus BGL 9,900 plus interest. Owing to the depreciation of the Bulgarian currency, by March 1999, when the award became enforceable, it represented, together with all interest accrued, the equivalent of not more than 15 euros (EUR).

In his appeals before the Regional Court and the Supreme Court of Cassation the applicant protested that the courts had awarded him sums which had become worthless. He insisted that the award should be commensurate to the value of the actual damage he had sustained.

In reply to those arguments the courts stated that in accordance with the relevant law and established practice the applicant was entitled to compensation for the actual damage suffered at the time when it was occasioned.

In 2003 the applicant submitted a claim in which, in confused terms, he sought a declaration that the mayor’s order of 29 January 1996 was null and void and also requested compensation. The courts interpreted the claim as an action for a declaration of nullity and rejected it as unfounded by final decision of 18 June 2004.


The applicant, Bayram Nejdet Sarıbek, is a Turkish national who was born in 1954 and was serving his prison sentence at the Muğla prison at the time of the application. He was represented before the Court by Mr Güney Dinç, a lawyer practising in Izmir.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 3 May 1995 the applicant was arrested and taken into custody on suspicion of theft of electronic materials from his place of work.

On 5 May 1995 he was brought before the public prosecutor and the Yatağan Magistrates’ Court. The applicant denied the accusations against him. He was conditionally released.

On 26 May 1995 the public prosecutor filed a bill of indictment against the applicant for theft and requested that he be convicted and sentenced under Article 491 §§ 1 and 3 of the Criminal Code.

On 17 April 1996 the Yatağan Magistrates’ Court convicted the applicant of theft and sentenced him to three years and six months’ imprisonment.

On 29 April 1997 the Court of Cassation upheld the judgment of the Yatağan Magistrates’ Court.

On 17 June 1997 the applicant was arrested by the police and placed in prison to purge his sentence.

On 21 May 1997 the judgment of the Court of Cassation was sent to the registry of the Yatağan Magistrates’ Court.

On 2 June 1997 the applicant’s representative filed a petition with the Yatağan Magistrates’ Court and requested the re-opening of the proceedings and the suspension of the execution of the applicant’s sentence, pursuant to Articles 327 § 5 and 328 of the Criminal Code. In the aforementioned petition, the applicant’s representative stated, inter alia, the following:

“The convict, Bayram Necdet Sarıbek, has been convicted on 17 April 1996 of theft... On 29 April 1997 the Court of Cassation upheld the judgment (merits no. 1997/1331, judgment no.1432)...”

On 4 June 1997 Yatağan Magistrates’ Court dismissed the applicant’s objections, against which decision the applicant’s representative again objected.

On 18 June 1997 the Yatağan Criminal Court of First Instance dismissed the objections of the applicant.

The applicant asked the Minister of Justice to issue a written order dismissing the judgment of the Yatağan Criminal Court of First Instance.

On 23 September 1997 the Minister of Justice informed the Muğla public prosecutor that the request of the applicant had been refused.

On 1 December 1997 the wife of the applicant requested a copy of the judgment of the Court of Cassation.

On 3 March 1998 the applicant’s representative before the European Court of Human Rights filed a petition with the Yatağan Magistrates’ Court and asked whether the judgment of the Court of Cassation had been notified to the applicant or his lawyer.

On 6 March 1998 the Yatağan Magistrates Court informed the applicant’s representative that the judgment of 29 April 1997 had not been notified to the applicant or his lawyer.


Violation of Article 6 - Right to a fair trial

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1950 and lives in Kraków.

On 19 June 2000 the Katowice District Prosecutor issued a bill of indictment against the applicant on charges of drug trafficking, unlawful possession of firearms and membership of an organised criminal gang. There were 36 accused and 147 witnesses in the case.

On 20 February 2001 the Katowice District Court held a first hearing in the case. From that date to 30 March 2004 the court scheduled two hundred hearings in the case. During that period of time the court held one hundred thirty and two hearings.

On 13 February 2008 the Katowice District Court gave judgment in the case convicting the applicant. The applicant appealed.

The proceedings are currently pending before the Katowice Regional Court.

On 31 May 2005 the applicant lodged a complaint with the Katowice Court of Appeal under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He also claimed just satisfaction in the amount of PLN 10,000.

On 20 July 2005 the Katowice Court of Appeal dismissed the length complaint. Although the court found that the proceedings had lasted a very long time, it concluded that this had not amounted to an “excessive length” as defined by the 2004 Act. The Court of Appeal pointed out that the court had scheduled 58 hearings in 2001, 66 in 2002, 73 in 2003, 64 in 2004 and 85 in 2005. However, several hearings had had to be postponed because defence lawyers, co-accused and witnesses were absent and assessors and judges were ill.

On 19 October 2006 the applicant lodged another complaint with the Katowice Court of Appeal.

On 31 January 2007 the Katowice Court of Appeal again dismissed the length complaint. The court found that the proceedings had been handled properly and the delays had been attributable to other persons and unexpected circumstances rather than to the court. The Court of Appeal pointed out that since July 2005 the court had held over 30 hearings and over 30 hearings had had to be postponed because defence lawyers and experts had been absent, assessors, a judge and certain co-accused had been ill, renovation works had been carried out in the hearing room and there had been a shortage of police officers to convey the accused to the court. The Court of Appeal acknowledged that the proceedings were of a complex character and noted that the court had taken many appropriate steps in order to speed them up.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.