SCEA FERME DE FRESNOY v. FRANCE [Extracts]

The applicant company, SCEA Ferme de Fresnoy, is an agricultural partnership with unlimited liability (société civile d’exploitation agricole). Its registered office is situated at Port-Saint-Nicolas in the administrative district of Saint-Nicolas-la-Chapelle and its manager, Mr Bertrand Mangeot, acts on its behalf. It was represented before the Court by Mr C. Bremond, of the Paris Bar. The French Government were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs at the Ministry of Foreign Affairs.

On 19 May 2004 counsel for the applicant company informed the Court that Mr Paul Mangeot, one of the partners in the business, had died and that his widow, together with his son, Mr Bertrand Mangeot, who was already the manager, were now the only shareholders. Counsel indicated that Mr Mangeot and his mother had expressed their wish to continue the proceedings before the Court.

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

Mr Bertrand Mangeot runs a 242-hectare farm in the administrative district of Montpothier (département of Aube). His father was joint manager until his death. The farm was acquired in 1971 following the expropriation of a previous agricultural holding based in Lognes.

The central part of the farm consists of various farm buildings around an inner courtyard and includes a chapel and a chapter house dating from the twelfth and thirteenth centuries, which are the remains of the Templar commandery of Fresnoy. Both of those edifices are tightly integrated into the surrounding buildings.

In a letter of 4 March 1986, the Aube prefecture offered a State grant for the restoration of the chapel and chapter house. The proposed grant was to cover 15% of the initial work. The applicant company declined the offer in view of the excessive share of the cost that it would have to bear.

By a decision of the prefect dated 26 August 1988, the remains of the commandery were added to the secondary list of historic buildings.

Following the approval of the National Historic Monuments Commission on 16 November 1992 and by a decision of 4 January 1994, the chapel and chapter house of the historic Fresnoy commandery were added to the primary list of historic buildings under the Historic Monuments Act of 31 December 1913. The reason for the listing was that “the preservation [of the buildings] ha[d] public-interest value in relation to the history of art, in view of the rarity and authenticity of the Templar architecture”. This status gave rise to various sets of proceedings.

As the applicant company had envisaged building a farm shed near the chapel and chapter house, various meetings were organised with the national heritage architect and the architecture authority for the département of Aube with a view to finding a new location, since the applicant company’s initial plan could no longer be implemented owing to the constraints of the historic monument protection. On 24 March 1990 the applicant company lodged an application for a building permit in respect of a farm machinery workshop, in spite of the national heritage architect’s negative opinion, which was subsequently confirmed on 3 August 1990. By a decision of the prefect dated 10 August 1990, the building permit was refused on the ground that “the intended construction would have an adverse effect on the chapel of the Templar commandery and would undermine the current harmony of the buildings as a whole”.

The applicant company applied to the Châlons-sur-Marne Administrative Court for judicial review of the prefect’s decision.

On 12 December 1990 a further meeting was held on the site with a view to finding a possible location for the farm machinery workshop. In a letter of 4 April 1991, the national heritage architect informed the applicant company, among other things, that the purpose was not to prevent it from building but to help it draw up the best possible plan, taking into account all the technical, operational and site-related constraints.

In a judgment of 1 December 1992, the Châlons-sur-Marne Administrative Court set aside the decision of 10 August 1990 to refuse the building permit, on the ground that the prefect had based his decision on an incorrect assessment of the facts. In a judgment of 30 June 1994, the Nancy Administrative Court of Appeal dismissed an appeal by the Minister for Infrastructure, Housing and Transport on the ground that the national heritage architect had not given his opinion within the statutory period.

On 3 March 1995 the applicant company applied for a permit to build a shelter.

On 8 July 1995 the national heritage architect advised against the granting of a permit. By a decision of 19 July 1995, the prefect denied the applicant company a building permit in respect of a maintenance and repair workshop on the ground that

“the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under the Act of 31 December 1913 (chapel and chapter house)”.

On 26 June 1996 the national heritage architect received Mr Mangeot, who submitted to him a plan for the construction of a farm building situated to the west of the main farm and aligned with an existing shed (adjoining the chapel). The national heritage architect gave his approval in principle, subject to a few minor adjustments, as the plan complied with the main guidelines laid down by the architecture and heritage authority of the département of Aube.

On 26 November 1996 the applicant company applied for a building permit. By a decision of the prefect dated 22 January 1997, the building permit was granted subject to certain conditions, such as the obligation to plant a screen of standard trees of local species. The extra cost incurred on account of the permit conditions was 1,850 French francs (FRF).

On 23 September 1997 the applicant company applied for a permit to demolish two unlisted buildings that were not adapted to the needs of the farm. By a decision of the prefect dated 9 December 1997, the demolition permit was refused on the following grounds:

“... the work envisaged is capable of adversely affecting the surroundings of the historic monument protected under the Act of 31 December 1913 (Fresnoy Farm).

... the disappearance of these traditional constructions with their specific character would detract from the immediate surroundings of the above-mentioned protected buildings and would undermine the quality of their environment; restoration with a view to reuse has to be envisaged.”

On 21 March 2000 the applicant company lodged two fresh applications for building permits. On 3 May 2000 the national heritage architect advised in favour of both applications, subject to the following conditions:

“In order to harmonise this development with the neighbouring traditional constructions, which form the setting of the above-mentioned protected building:

[In respect of the first plan:]

the cladding will be of a dark colour ...

the roofing will be red-brown in colour and mat in appearance

[In respect of the second plan:]

the building to be erected will be clad entirely with wooden slats [tavillons]

the roofing will be red-brown in colour and with no gloss effect.”

By two decisions of the prefect dated 17 May 2000, the applicant company was granted two building permits, subject to the above-mentioned conditions. As the applicant company failed to proceed with the building work within the periods laid down in the decisions, the validity of the two building permits has since lapsed.

On 11 March 1994 the applicant company applied to the Conseil d’Etat for judicial review of the listing decision of 4 January 1994. In a judgment of 22 February 1995, the Conseil d’Etat dismissed the applicant company’s application for judicial review and confirmed both the formal validity and the substantive legality of the impugned decision. The Conseil d’Etat noted in particular, concerning the substantive legality of the listing decision, that

“the chapel and chapter house of the Fresnoy commandery ... constitute a rare example of Templar architecture ... the preservation [of which] has public-interest value for artistic and historical reasons, such that the listing thereof as a historic monument can legally be justified ... [and] the second paragraph of section 5 of the Act of 31 December 1913 ... cannot have the purpose or effect of obliging the authorities to attach any easements or obligations to the listing status other than those resulting, pursuant to the Act of 31 December 1913, from the listing itself”.

On 7 November 1994, in a letter addressed to the prefect of the département of Aube, the applicant company sought FRF 5,000,000 in compensation under section 5 of the Act of 31 December 1913, on the ground that

“the listing has clearly caused harm to the claimant company’s agricultural activity, by creating in the very heart of the farm an easement capable of rendering impossible any development of the farm, or even of seriously undermining its day-to-day operations”.

Having regard to the fact that the listing had obliged the company to “rebuild all the farm buildings currently at its disposal in a position other than that in which the operational buildings [we]re currently located”, and to the fact that this total reconstruction had been assessed by experts at FRF 6,777,000, the applicant company concluded its letter with a claim for that sum under the second paragraph of section 5 of the above-mentioned Act of 1913.

Having failed to reach a friendly settlement of the compensation claim, the applicant company lodged an application for compensation on 20 December 1995 with the expropriations judge at the Troyes tribunal de grande instance. At a hearing on 6 June 1996, the Government Commissioner noted that there was “some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision”.

In a judgment of 11 July 1996, the tribunal de grande instance rejected the application, noting in particular:

“In the present case ... only two parts of the farm buildings have been listed, representing 4% of the total developed area.

The damage claimed by SCEA Ferme de Fresnoy mainly concerns developments affecting non-listed structures; accordingly, the applicant company has not shown that it has sustained damage in respect of the listed premises alone or as a result of a change affecting the premises and capable of causing such damage; it is not therefore entitled to rely on the provisions of section 5 of the Act of 31 December 1913 since the dispute concerns only the area surrounding the listed premises and, moreover, the applicant company is bound only by restrictions that do not preclude it from altering neighbouring premises if it abides by the prescriptions laid down by the authorities.

In these circumstances, it is appropriate to reject the application by SCEA Ferme de Fresnoy, which has not sustained direct and established pecuniary damage as a result of the listing of its buildings.”

The applicant company appealed against that judgment, maintaining in particular that section 5 of the Act of 31 December 1913 was to be construed as creating an entitlement to compensation for all forms of damage sustained by an owner as a result of a listing decision, and not simply that sustained in respect of the listed buildings themselves. The applicant company further argued that “such a restrictive construction of section 5 ... would in effect deprive the owner of the compensation due to him for damage arising from a serious violation of his right of property, in breach of the French Constitution and the European Convention on Human Rights, which expressly guarantee respect for such right”. The Government Commissioner noted, as at first instance, that there was “some confusion between obligations for owners of properties located in the vicinity of listed buildings and easements arising directly from a listing decision”. He stated that the case in issue “concern[ed] an easement for the protection of the vicinity of a listed structure ... [which was] not to be confused with easements arising directly from a listing decision”. He concluded that the grounds submitted in support of the applicant company’s claim did not derive directly from the listing decision. On 24 June 1998 the Rheims Court of Appeal upheld the judgment and gave the following reasoning:

“– Construction of section 5 of the Act of 31 December 1913

The appellant company claims that section 5 of the Act ... is to be construed as pertaining to the entire grouping of buildings, incorporating the listed structures.

However, that provision refers only to the listing decision.

The notion of ‘premises’ as used in the second paragraph of section 5 of the Act of 31 December 1913 pertains only to the premises designated in the listing decision.

The decision of 4 January 1994 states that ‘the chapel and chapter house of the historic Fresnoy commandery shall be listed as historic monuments ...’.

It is therefore appropriate to dismiss the claim of SCEA Ferme de Fresnoy whereby it contends that the term ‘premises’ as used in the above-mentioned section 5 should be construed as covering the entire property, which would be tantamount to the listing of the whole complex of buildings.

– Conditions of application of section 5 of the Act of 31 December 1913

For there to be an entitlement to compensation, the easement relating to the listing must have entailed a change in the condition or use of the premises giving rise to direct, substantiated and established damage, for which the burden of proof lies with the claimant.

In this connection SCEA Ferme de Fresnoy based its claim on the restrictions imposed on it, as a result of the listing, in respect of its plans for demolition, the construction of a farm shed or development of the farm site.

However, those restrictions, created by prior agreement with the national heritage architect, are not the result of any change in the status or use of the premises, as the chapter house and chapel have not been affected by such changes.

The restrictions imposed on the company result from the application of Article R. 421-38-4 of the Planning Code, which protects the view around a listed building by requiring the agreement of the national heritage architect prior to any demolition or construction.

Such an easement, pertaining to the protection of the area surrounding a listed building, does not give rise to the compensation provided for in the current legislation.

Moreover, SCEA Ferme de Fresnoy has obtained permission to erect a storage building, subject to the approval of the plan by the national heritage architect.

Lastly, such easements for the protection of the area surrounding a listed building derive from the law and cannot give rise to compensation unless it is specifically provided for in a statutory instrument. ...”

The applicant company subsequently lodged an appeal on points of law, in support of which it submitted a single ground with four limbs. One of its claims was that the Court of Appeal’s decision had been devoid of the statutory basis required by Article 55 of the Constitution, as it had denied compensation for damage resulting from the listing without considering whether such refusal was contrary to the provisions of Article 14 of the Convention or Article 1 of Protocol No. 1.

On 8 March 2000 the Court of Cassation, rejecting the submissions of the Advocate-General, dismissed the appeal in a judgment containing the following reasoning:

“... having found, firstly, that section 5 of the Act of 31 December 1913 provided for compensation following a listing by official order if the resulting easements and obligations entailed a change in the condition or use of the premises and, secondly, that the easement pertaining to the protection of the area surrounding a listed building did not give rise to any compensation under the current legislation, the Court of Appeal, leaving aside a subsidiary consideration and without being required to make a determination that had not been sought from it as to the applicability of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms or of Article 1 of Protocol No. 1, rightly considered that the notion of ‘premises’ pertained only to those designated in the listing decision and dismissed the company’s compensation claim, thus justifying its decision in law.”

In France, the first provisions for the protection of historic monuments date back to 1836, when the church of Saint-Savin-sur-Gartempe was listed. However, until 1887 the listing process had few legal effects and the provisions of an Act of 30 March 1887 were mainly “contractual” in nature.

It was only in 1913 that a meaningful protection system was provided for in France with the Historic Monuments Act of 31 December 1913, the basic statute governing heritage, which has since been amended a number of times. The Act mainly lays down the procedures whereby immovable property whose preservation is in the public interest for historical or artistic reasons is to be added to the secondary or primary historic monuments lists. Such decisions carry various legal effects and may create easements or obligations which affect the property itself.

Only in respect of property on the primary list may the adverse consequences of easements and obligations relating to listing, under certain circumstances, give rise to compensation at the request of their owner, under the second paragraph of section 5 of the Act of 31 December 1913.

The 1913 Act, in sections 13 bis and 13 ter, also provides for a protected area around buildings deemed to be of interest, such that, through the review of applications for building or demolition permits by the owners of property in the vicinity of listed buildings, their surroundings are protected and the aesthetic quality of the adjacent area is preserved as far as possible. Such easements, created for the benefit of owners of historic buildings, affect the adjacent property.

The protection of a historic monument, whether by secondary listing or by primary listing, under the amended Historic Monuments Act of 31 December 1913, automatically creates a conservation area around it, extending to about 78.5 hectares. Over the past century, some 40,000 monuments have been protected under this legislation in France. In view of the geographical proximity of some monuments or even their superposition in certain cases, the aggregate surface area of the conservation areas thus created, and consequently the number of properties concerned, are considerable.

The total protected area becomes even greater when account is taken of sites classified under the Law of 2 May 1930 on the protection of natural monuments and places of artistic, historic, scientific, legendary or scenic interest, together with the architectural and landscape heritage areas (zones de protection du patrimoine architectural et paysager – ZPPAUP) set up under sections 69 to 72 of Law no. 83-8 of 7 January 1983 on the division of powers between municipalities, départements, regions and the State.

“Immovable property whose preservation is in the public interest for historical or artistic reasons shall be entered on the primary list of historic monuments, as a whole or in part, by the minister responsible for the fine arts, in accordance with the distinctions laid down in the following sections.

Immovable property subject to listing under the present Act shall include:

Immovable property of which listing is necessary to allow for the isolation, clearing or cleaning of a listed building or building proposed for listing;

In general terms, developed or undeveloped property located within the field of view of a listed building or building proposed for listing. For the purposes of this Act, the criterion of being located within the field of view of a listed building or building proposed for listing shall be regarded as applying to any other developed or undeveloped property that is visible from the former, or at the same time as the former, and is situated within a range of not more than 500 metres. On an exceptional basis this range may be extended beyond 500 metres. A decision of the Conseil d’Etat, adopted further to an opinion of the National Historic Monuments Commission, shall indicate the monuments to which such extension may apply and shall determine the range of the protected area in each case.

From the date on which the fine arts authority notifies the owner of a listing proposal, all the effects of such listing shall apply automatically to the property concerned. They shall cease to apply if the listing decision is not taken within ‘twelve months’ following such notification.

“The following property shall be regarded as having been validly listed prior to the enactment of this law: (1) buildings listed on the general schedule of listed monuments, officially published in 1900 by the fine arts authority; (2) those and other buildings that have been listed by means of a decision [arrêté or décret] under the Act of 30 March 1887.

Within a period of three months, the schedule of buildings regarded as listed prior to the enactment of this Act shall be published in the Official Gazette. An entry shall be drawn up for each of those buildings giving full particulars thereof; the fine arts authority shall ensure that the entry is filed with the appropriate Land Registry for the site of the property. Such registration shall not give rise to any taxes payable to the Treasury.

The primary list of protected buildings shall be kept up to date and published at least once every ten years.

Public or private buildings, or parts of buildings, which, without warranting an immediate proposal for addition to the primary list, nevertheless have sufficient historical or artistic interest for their preservation to be desirable, may at any time be added to the secondary list by decision of the regional prefect, or, where such secondary listing is proposed by the National Historic Monuments Commission, by decision of the minister responsible for cultural affairs.

Secondary listing under the same conditions may also apply to any developed or undeveloped property situated within the field of view of a building already listed on the primary or secondary list. The regional prefect shall ensure that decisions to add buildings to the secondary list of historic monuments are registered at the appropriate Land Registry for the site of the listed building. Such registration, which shall not give rise to any taxes payable to the Treasury, shall be carried out in accordance with the formalities and procedures laid down by the legislation on land registration.

Owners shall be notified of such secondary listing, which shall impose on them an obligation not to make any alterations to the listed building or part of a building, without having informed the regional prefect, giving four months’ notice, of their intention and of the work they propose to carry out.

The minister may object to such work only by initiating the primary listing procedure as provided for herein.

However, if the purpose or effect of the work is to divide up or strip the building or part of building on the secondary list, for the sole purpose of selling all or part of the materials thus detached, the minister shall have five years in which to decide on its primary listing and may, in the meantime, order the suspension of the work in question.

The minister responsible for education shall be authorised to subsidise up to 40% of the actual cost of any maintenance or repair work that may be required for the preservation of buildings or parts of buildings listed on the secondary list of historic monuments. The work shall be carried out under the supervision of the historic monuments authority.”

“Property belonging to any persons other than those enumerated in sections 3 and 4 shall be added to the primary list by decision of the minister responsible for cultural affairs, where the owner has given consent. The decision shall lay down the conditions attached to such listing.

Where the owner has not given consent, the addition to the primary list shall be decided by an order of the Conseil d’Etat which shall lay down the conditions attached to the listing and in particular any easements or other obligations thus created. The primary listing may then entitle the owner to compensation if, as a result of such easements or obligations, a change in the status or use of the premises gives rise to direct and established pecuniary damage. The application for compensation shall be lodged within six months from the notification of the primary listing decision. If the compensation cannot be agreed upon by friendly settlement, its amount shall be determined by the expropriations judge.

The government may decide not to act upon such a listing order under the conditions thus laid down. In such cases it shall be required, within three months from the notification of the judgment, to repeal the listing decision or to proceed with the expropriation of the property.”

“When immovable property is located within the field of view of a listed building, it may not be subjected, whether by private owners or by public authorities or establishments, to any new construction, demolition, deforestation, transformation or alteration capable of affecting its appearance, without prior authorisation.

Building permits issued under legislation on building lines and on municipal and regional land-use and urban development plans shall constitute authorisation, as provided for in the preceding paragraph, provided they have been endorsed with the approval of the national heritage architect.”

“Where it does not concern work for which a building permit, a demolition permit, or the authorisation provided for under Article R. 442-2 of the Planning Code is necessary, the application for authorisation under section 13 bis shall be addressed to the prefect, who shall give his decision after seeking the opinion of the national heritage architect. However, if the minister responsible for historic monuments has decided to take up the matter, authorisation may be given only with his express agreement.

If the prefect has not notified his response to the applicants within a period of forty days from the filing of their application, or if they are not satisfied by the response they have received, they may refer the matter to the minister responsible for cultural affairs within two months from the notification of the prefect’s response or following the expiry of the forty-day period allowed for such notification.

The minister shall decide. If his decision has not been notified to the applicants within a period of three months following receipt of their application, the application shall be deemed to have been refused.

The applicants shall comply with the restrictions imposed on them for the protection of the listed building, either by the national heritage architect in the case referred to in the second paragraph of section 13 bis, or by the prefect or minister responsible for cultural affairs in the cases referred to in the first, second and third paragraphs of this section.”

“In accordance with section 13 bis of the Historic Monuments Act of 31 December 1913, as amended, where immovable property is located within the field of view of a listed building, it may not be subjected, whether by private owners or by public authorities or establishments, to any new construction, demolition, deforestation, transformation or alteration capable of affecting its appearance, without prior authorisation. Building permits shall constitute such authorisation provided they have been endorsed with the approval of the national heritage architect.”

“Where a construction is located within the field of view of a listed building, the building permit may be issued only with the authorisation of the national heritage architect.

Pursuant to the third paragraph of section 13 bis of the Historic Monuments Act of 31 December 1913, as amended, the regional prefect, upon a written request by the mayor or authority empowered to issue the building permit, sent by registered letter with return receipt within one month following notification of the national heritage architect’s opinion, shall, after consulting the regional commission on heritage and sites, deliver an opinion superseding that of the national heritage architect.

Where the mayor is not the authority empowered to issue the permit, the regional prefect shall notify the authority in question of the request he has received from the mayor.

The opinion of the regional prefect shall be notified to the mayor and to the authority empowered to issue the permit. The regional prefect shall be deemed to have confirmed the opinion of the national heritage architect if he has not responded within four months following receipt of the request, unless the matter has, in the meantime, been taken up by the minister responsible for culture. In such a case, the permit may be issued only with the express agreement of the minister. The minister’s decision to take up the matter shall be notified to the applicant, to the mayor and to the competent authority.

If the national heritage architect refuses to give his approval or gives conditional approval, the authority empowered to issue the permit may, within one month from receipt of that decision, refer the matter to the minister responsible for historic monuments. For such purpose that authority shall transmit to the minister the file on the application for a building permit, together with the document stating the position of the national heritage architect. In cases where the mayor is empowered to issue a building permit, he shall inform the prefect of such referral. The permit may then be issued only with the express agreement of the minister. If the minister fails to respond within two months from the date of referral he shall be deemed to have confirmed the position of the national heritage architect.”

“There shall be no entitlement to compensation for easements created pursuant to this Code in respect of roads, sanitation, aesthetic appearance, or for other purposes, and pertaining in particular to the use of land, the height of edifices, the proportion of developed and undeveloped land within each property, prohibited construction in certain areas and along certain roads, or the distribution of buildings between different areas.

However, compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct, pecuniary and established damage. Unless a friendly settlement is reached, such compensation shall be assessed by the administrative court, which shall take into account the increase in value of a building produced by the implementation of a land-use plan that has been made public, or of an approved local-development plan or equivalent document.”

The latter provision and the question of statutory easements have been addressed in various ways in case-law (see, inter alia, Commune de Gap-Romette, judgment of the Conseil d’Etat of 14 March 1986, and Ministre de la Culture c. SCI Villa Jacob, judgment of the Conseil d’Etat of 20 January 1989). As to the obligation of the administrative court to examine, if necessary proprio motu, the merits of an application for compensation under Article L. 160-5, see the judgment delivered by the Conseil d’Etat on 19 December 1984 in Soc. Ciments Lafarge.

Moreover, the Conseil d’Etat has stated, in the light of Article 1 of Protocol No. 1, that Article L. 160-5 of the Planning Code “does not set out a general and absolute principle, but expressly provides for two exceptions as regards the vested rights of owners and a change in the previous condition of the land. Lastly, the Article in question does not prevent an owner whose property is affected by an easement from claiming compensation in exceptional cases where the aggregate of the conditions and circumstances in which the easement has been created and implemented, as well as its substance, have imposed on the owner an individual and excessive burden out of proportion with the general-interest objective pursued. In these circumstances, the applicant is not justified in asserting that Article L. 160-5 of the Planning Code is incompatible with the provisions of Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms” (Bitouzet, judgment of the Conseil d’Etat of 3 July 1998, Recueil Lebon 1998, p. 288, and Lady Jane, judgment of the Conseil d’Etat of 7 January 2000).

This convention provides, in particular:

“The Parties to this Convention agree to:

(a) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life, as defined in the Universal Declaration of Human Rights;

(b) recognise individual and collective responsibility towards cultural heritage;

(c) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal;

“To sustain the cultural heritage, the Parties undertake to:

(a) promote respect for the integrity of the cultural heritage by ensuring that decisions about change include an understanding of the cultural values involved;

(b) define and promote principles for sustainable management, and to encourage maintenance;


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

The applicant was born in 1959 and lives in Snelrewaard. He has a farm where he keeps cattle for slaughter.

On 15 November 1991 cattle on the applicant's farm was inspected by the General Inspection Service (Algemene inspectiedienst) of the Ministry of Agriculture, Nature Conservancy and Fisheries (Ministerie van Landbouw, Natuurbeheer en Visserij). Twelve cows were singled out to which the applicant was suspected of having administered the illegal substance clenbuterol.

The same day the public prosecutor (officier van justitie) ordered an interim measure pursuant to section 28 of the Economic Offences Act (see paragraph 21 below) under which the applicant was restrained from removing the twelve cows from his premises without permission and from obstructing the identification of the cows.

After tests had borne out that clenbuterol had been administered to nine of the twelve cows, the General Inspection Service seized these nine cows on 3 December 1991 pursuant to section 18 of the Economic Offences Act (see paragraph 23 below).

The applicant was given a receipt for these cows, which stated that an objection against the seizure could be lodged with the Utrecht Regional Court pursuant to Article 552a of the Code of Criminal Procedure (Wetboek van Strafvordering – see paragraph 24 below).

It appears that the restrictions affecting the other three cows were lifted.

On 5 December 1991 the public prosecutor applied under Article 117 of the Code of Criminal Procedure (see paragraph 26 below) to the Utrecht Regional Court for permission to have the nine cows destroyed. The reasons given were that since they had been contaminated by an illegal substance, they would never again be marketable for human or animal consumption, and that moreover it was impracticable and costly to keep them for any length of time.

On 9 December 1991 the applicant applied for the interim measure ordered on 15 November (see paragraph 8 above) to be lifted.

The Regional Court held a hearing in camera on 10 December 1991. At that hearing the public prosecutor announced that the interim measure of 15 November would be withdrawn. It does not, however, appear that this had happened by the time the Regional Court gave its decision.

On 21 January 1992 the applicant again applied to the Regional Court for an order to have the interim measure lifted, or in the alternative to have the cows tested anew and to order the lifting of the interim measure if it was shown that the concentrations of clenbuterol did not exceed legal limits.

A hearing was held in camera the same day. In his oral submissions the applicant's lawyer referred to EEC Council Directive 86/469 of 16 September 1986, which contained rules for testing cattle which had in his submission been disregarded in the present case.

On 4 February 1992 the Regional Court rejected the applicant's applications of 9 December 1991 and 21 January 1992. It held that the applicant had no legal interest in applying for the interim measure complained of to be lifted since the public prosecutor had already announced that this would be done. In the same decision it authorised the public prosecutor to have the cows destroyed, since it appeared from the case file that it was in any event unlikely that the cows would not eventually be declared forfeit (onttrokken aan het verkeer).

The cows were slaughtered shortly after the Regional Court's decision.

On 13 February 1992 the applicant, through his lawyer, lodged an appeal on points of law to the Supreme Court (Hoge Raad). The lawyer did not submit any grounds of appeal in writing.

On 24 December 1992 the Procurator-General of the Supreme Court submitted an advisory opinion to the effect that no grounds of appeal had been submitted and that there were no reasons for the Supreme Court to quash the decision appealed against ex officio. He appended to his opinion a copy of a preliminary ruling of the Court of Justice of the European Communities concerning the interpretation of EEC Council Directive 86/469.

It appears that neither the applicant nor his lawyer received any notice of this until after the Supreme Court had given judgment.

On 1 March 1993 the applicant was notified by the Procurator-General that the Supreme Court had dismissed his appeal on 19 January.

The 1991 Ordinance on substances with a sympathomimetic effect (Verordening stoffen met sympathico mimetische werking) makes it illegal to administer animal medicines with a sympathomimetic effect containing clenbuterol to beef cattle older than fourteen weeks. Section 3(1) of that Ordinance makes it illegal to have in stock, sell or purchase beef cattle to which such substances have been administered, and section 4(1) makes it illegal to have in stock, sell or purchase their meat.

Clenbuterol is, moreover, an unregistered animal medicine the use or possession of which is prohibited by section 2 of the Animal Medicines Act (Diergeneesmiddelenwet).

The offences here described are economic offences for the purposes of the Economic Offences Act (section 1 of that Act).

The Economic Offences Act lays down particular rules for the prosecution and punishment of economic offences. In so far as procedure is concerned, it is a lex specialis in relation to the Code of Criminal Procedure, the provisions of the latter remaining applicable in so far as the Economic Offences Act does not provide otherwise (section 25 of that Act).

Section 28(1) of the Economic Offences Act empowers the public prosecutor, until the beginning of the court hearing in the case, to order a person against whom a serious suspicion has arisen, by way of interim measure, to desist from particular actions or to keep or store particular goods in a particular place.

It is open to the person to whom such an order has been issued to apply to the trial court which is to deal with the case for the order to be lifted (section 28(3) of the Economic Offences Act).

An appeal against a refusal lies to the Court of Appeal (section 30).

A further appeal on points of law lies to the Supreme Court (section 30a). The accused is required to have a written statement of grounds of appeal submitted by a lawyer within one month of lodging the appeal, failing which his appeal will be declared inadmissible. The Supreme Court shall decide as soon as possible.

It would appear that this procedure was not followed in the present case, since the appeal was not lodged with the Court of Appeal but directly with the Supreme Court.

Goods or objects which may help to establish the truth or the existence of illegal gains, or which may be declared forfeit, may be seized by officers invested with investigative competence (opsporingsambtenaren) (section 18(1) of the Economic Offences Act taken together with Article 94 of the Code of Criminal Procedure).

Interested parties may lodge a written complaint (schriftelijk zich beklagen) against such seizure with the trial court before which the case is pending (Article 552a § 1 of the Code of Criminal Procedure). The parties concerned have the right to be heard (Article 552a § 4).

An appeal lies on points of law to the Supreme Court (Article 552d).

It would appear that this was the procedure followed in the present case.

The accused has the right to submit written grounds of appeal within one month of lodging his appeal on points of law (Article 447 § 3 of the Code of Criminal Procedure), but his appeal is not automatically declared inadmissible if he does not.

If the said goods or objects cannot be stored, the trial court may authorise the public prosecutor to have them sold, destroyed, abandoned (prijsgegeven) or used for some purpose other than the criminal investigation (Article 117 of the Code of Criminal Procedure). No appeal lies against the trial court's decision (Article 445).

If it emerges that it is appropriate to return seized goods to the owner but that this is impossible because the goods have been lawfully sold, destroyed or abandoned, then the interested party shall be paid compensation to an amount equivalent to the price for which the goods might reasonably have been sold (Article 119 § 2).

All matters which may arise in the course of criminal proceedings which are not required to be decided in open court are dealt with in camera (Article 21 § 1 of the Code of Criminal Procedure); matters so dealt with include interim measures under the Economic Offences Act and seizures.

In the case of appeals on points of law against a judgment delivered in open court (uitspraak) the accused is entitled to submit at the hearing grounds of appeal not filed at an earlier stage (Article 433 of the Code of Criminal Procedure). There is no equivalent provision for appeals on points of law against orders given in camera (beschikkingen).

The duties and position of the Procurator-General's department (openbaar ministerie) are defined in the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie).

The Procurator-General's department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutors of the regional and district courts (section 3(1) of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (sections 3(2), 5a and 6(1)).

The Procurator-General's department must be heard by the courts in so far as the law so prescribes (section 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - award;Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The first applicant was born in 1950. The second applicant is the first applicant’s daughter, born in 1976. They live in Voronezh.

In July and August 1998 the applicants made various monetary deposits with the Voronezh branch of the SBS-Agro Bank (“СБС-Агро”). In September 1998, during a financial crisis in Russia and rapid currency devaluation, they requested the bank to refund the capital with interest, but the bank refused. On 4 August 1999 the Zheleznodorozhniy District Court of Voronezh (“the District Court”) allowed the applicants’ claim against the bank. The first and second applicant were awarded 24,490 and 32,931 United States dollars (USD) respectively.

The bailiffs started enforcement proceedings on 22 August 2000. Meanwhile, the bank became insolvent. On 10 July 2001 the enforcement proceedings were discontinued. The judgment of 4 August 1999 remained unenforced.

On 16 August and 15 September 1999 the Central Bank of Russia (“the Central Bank”) declared a moratorium until 17 November 1999 on the execution of all creditors’ demands against the SBS-Agro Bank (“the bank”). The moratorium was later prolonged. On 16 November 1999 the management of the bank was taken over temporarily by the “Agency on Restructuring of Lending Agencies” (“ARKO”), set up by the State in accordance with the Law on Restructuring of Lending Agencies.

On 9 November 2001 the applicants sued the Central Bank and the ARKO for damages on the ground that the bank remained under the ARKO’s effective control since 16 November 1999. The District Court held a hearing in the applicants’ case on 5 December 2001. The ARKO filed written observations but was not represented at the hearing. The Central Bank did not file observations, nor was it represented at the hearing. In its judgment delivered on the same date the District Court noted that the bank was being managed by the ARKO at the material time and found the latter responsible for the bank’s obligations, including its debt owed to the applicants. It held that the ARKO was to pay the first and second applicants USD 24,490 and USD 32,931 respectively.

The Voronezh Regional Court (“the Regional Court”) allowed the ARKO’s appeal on 12 March 2002 and set aside the District Court’s judgment of 5 December 2001.

Following another remittal, on 20 December 2004 the District Court again found for the applicants, in terms similar to those of its judgment of 5 December 2001. The applicants were awarded the same amounts, payable by the ARKO. The judgment also held that the ARKO had to pay an amount of USD 20,841.68 to another plaintiff, Mr Kravchenko. The judgment specified that it was subject to appeal before the Voronezh Regional Court within ten days.

The ARKO lodged an appeal against the judgment of 20 December 2004. The Central Bank joined the appellate proceedings. On 25 February 2005 the ARKO was closed.

On 19 July 2005 the Regional Court heard the ARKO’s appeal against the District Court’s judgment of 20 December 2004. The representative of the Central Bank took part in the hearing as a codefendant. The Regional Court observed that the ARKO had been closed and discontinued the appellate proceedings. The District Court’s judgment of 20 December 2004 in the applicants’ favour accordingly became binding and enforceable.

On 2 August 2005 the District Court issued a writ of execution in respect of its judgment of 20 December 2004, which had acquired legal force on 19 July 2005.

On 6 December 2005 the Central Bank lodged an appeal with the Regional Court against the judgment of 20 December 2004. They also requested that the ten-day time-limit for appeal be extended on the ground that they had been deprived of the opportunity to have the lawfulness of the judgment of 20 December 2004 reviewed by the Regional Court.

On 2 March 2006 the Regional Court extended the time-limit for appeal as requested by the Central Bank. It noted that the Central Bank “had joined” the ARKO’s appeal against the judgment of 20 December 2004 which had been dismissed without being considered on its merits. The Regional Court concluded that the Central Bank had been deprived of its statutory right to appeal against the judgment of 20 December 2004.

On 9 March 2006 the Regional Court considered the Central Bank’s appeal against the District Court’s judgment of 20 December 2004. It heard the same representative of the Central Bank who took part in the hearing held by the same court on 19 July 2005 to consider the ARKO’s appeal which was then joined by the Central Bank. The court observed that both the ARKO and the Central Bank were co-defendants in the case and that the ARKO had been closed. The Regional Court concluded that its earlier decision of 19 July 2005 was based on an incorrect application of the relevant legal provisions, set aside the judgment of 20 December 2004 in the applicants’ favour and discontinued the proceedings.

On 2 April 2009 the European Court of Human Rights delivered a judgment in respect of Mr Kravchenko (Kravchenko v. Russia, no. 34615/02, 2 April 2009), who was at a certain stage the applicants’ coplaintiff in the domestic proceedings (see paragraph 12 above). In February 2002 he had obtained a separate judgment awarding him an amount of 30,919.40 Russian roubles (RUB), payable by the ARKO (see Kravchenko, cited above, §§ 44-49). The Court found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 in that the Regional Court had quashed in May 2002 the binding and enforceable judgment in Mr Kravchenko’s favour by way of supervisory review.

Following the Court’s judgment of 2 April 2009, the applicants lodged an application for review of the Regional Court’s judgment of 9 March 2006, relying on Articles 392-394 of the Code of Civil Procedure. On 15 June 2011 the Presidium of the Voronezh Regional Court dismissed their application.

Under the Russian Code of Civil Procedure (“the CCP”), a competent court may extend an expired time-limit for procedural actions, such as lodging an appeal, if the court finds that a party has a valid excuse for failure to comply with that time-limit (Article 112).

An appellate court shall set aside the judgments and discontinue the proceedings if a legal entity which is a party to the proceedings has been liquidated (Article 365 in conjunction with Article 220 of the CCP).

A final judgement in a case may be reviewed, inter alia, on the ground that the European Court of Human Rights found a violation of the Convention on account of the domestic judicial proceedings or decisions taken in that case (Article 392 of the CCP). Articles 393-394 set out a procedure for reopening of domestic judicial proceedings in any such case.

The ARKO was a State corporation (Article 28 of the Law No. 144FZ of 8 July 1999 on Restructuring of Lending Agencies), that is, a non-commercial organisation established by the Russian State in order to exercise certain social, administrative or other socially beneficial functions (Article 7.1 of the Law No. 7-FZ of 12 January 1996 on NonCommercial Organisations, as amended by the Law No. 144-FZ of 8 July 1999).


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 11;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants were born in 1975, 1964, 1982, 1976, 1983, 1978, 1961, 1947, 1955, 1975, 1979, 1953, 1952 and 1976 respectively and live in Ankara.

On 31 July 2000 the applicants, together with several other persons, gathered in a public park in Ankara in protest against F-type prisons and the events which had occurred in Bergama Prison (violent clashes had taken place between the detainees and security forces on 27 July 2000). The participants wanted to read out a press statement in order to express their concerns about F-type prisons and the events in Bergama Prison. Police officers warned the crowd over a megaphone that the demonstration was illegal under Law no. 2911 on Meetings and Demonstration Marches. The group ignored the police warning. The police officers then arrested twenty-four persons, including the applicants, and took them into custody. It appears from the newspaper articles submitted by the applicants that the police officers used force in order to disperse the protesters. As a result, some of the protestors were injured and a number of them were arrested by the police officers.

According to the arrest report, drawn up and signed by the police officers, the applicants were demonstrating with protest banners in their hands. After having warned them to desist, the police arrested the protesters who continued demonstrating. It was also noted in the arrest report that three police officers, who had been injured during the clash with the demonstrators at the time of the arrest, had had to be taken to hospital. The medical reports stated that the police officers were unfit for work for two days.

On 31 August 2000 the Ankara Public Prosecutor filed an indictment with the Ankara Criminal Court of First Instance against the applicants and nine others, charging them with having taken part in a demonstration in a public place, without the permission of the authorities, contrary to Law no. 2911.

The applicants alleged that the police officers had been armed during the hearings before the trial court and had verbally harassed the defence lawyers. Moreover, the police officers had obtained a copy of the reports and statements in the case file even though they were not a party to the proceedings. The applicants' request to include these facts in the record of the hearings was dismissed.

On 5 July 2001 the Ankara Criminal Court of First Instance acquitted some of the accused but convicted the applicants on the basis of the evidence given by them and by witnesses. The court found that the applicants had ignored the police warning that their meeting was illegal and that they had to disperse. The police had had to use force in order to arrest the applicants. Furthermore, having examined the applicants' defence submissions, the court considered that the applicants had indirectly confessed to the crime (tevil yollu ikrar) by admitting that they had gathered in the park in order to protest against F-type prisons and the events in Bergama Prison. It then sentenced Rıza Altuntov to a fine, taking into account the fact that he was a minor at the time of the incident (seventeen and a half years old), whereas it sentenced the other applicants to one year and three months' imprisonment. It decided to suspend enforcement of the applicants' sentence, under section 6 of Law no. 667, with the exception of Alaattin Uğraş, Sinan Cem Uzunget and İsmail Temizyürek.

On 7 March 2002 the applicants appealed to the Court of Cassation against the judgment of the first-instance court. The written opinion of the Chief Public Prosecutor at the Court of Cassation was not transmitted to the applicants.

On 19 December 2002 the Court of Cassation upheld the decision of the first-instance court.

Section 6 of Law no. 647 on the Execution of Sentences reads as follows:

“Anyone who has never been sentenced ... to a penalty other than a fine and is sentenced to ... a fine ... and/or a [maximum] term of one year's imprisonment may have his [her] sentence suspended if the court is satisfied that [the offender], having regard to his [her] criminal record and criminal tendencies, will not reoffend if [the] sentence is thus suspended ...”

Section 6 of Law no. 2253 on the Establishment and Rules of Procedure of the Juvenile Courts, as amended by Law no. 4963 of 30 July 2003, provides:

“Criminal cases which concern crimes that normally fall under the jurisdiction of the regular courts and are committed by minors who are not yet eighteen years of age shall be examined by the juvenile courts.”

Article 34 of the Constitution provides:

“Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. ...

The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.”

At the material time section 10 of the Meetings and Demonstration Marches Act (Law no. 2911) was worded as follows:

“In order for a meeting to take place, the governor's office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board...”

Section 22 of the same Act prohibited demonstrations and processions on public streets, in parks, places of worship and buildings in which public services were based. Demonstrations organised in public squares had to comply with security instructions and not obstruct individual movement or public transport. Finally, section 24 provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor's office and after the demonstrators had been warned.

Section 16 of Law no. 2559 on the Duties and Powers of the Police provides:

“The police may use firearms:

(a) in self defence, ...

(h) or if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.”

Additional section 6 of Law no. 2559 on the Duties and Powers of the Police provides:

“In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of an attack or threat of an attack, the police may use violence to subdue these actions.

Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and gradually increases according to the nature and level of resistance and attack in such a way as to restore calm.

In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force.”


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in 1953 and lives in Plovdiv. He used to work as a shunter at the Bulgarian State Railways. On 15 August 1995 he was dismissed from his work for having breached disciplinary regulations.

On 5 February 1996 the applicant filed with the Plovdiv District Court an action for wrongful dismissal against his former employer.

On 12 March 1996 the District Court heard the applicant and his lawyer and rejected the case, ruling that the applicant’s dismissal was not amenable to judicial review. It based its decision on section 9(3) of the Decree No. 9 of 6 January 1981 and the Supreme Court’s practice, according to which employees of the State Railways dismissed for breach of disciplinary regulations could only appeal to a higher administrative body, not to a court.

On 18 March 1996 the applicant appealed to the Plovdiv Regional Court against the District Court’s decision. He argued that Decree No. 9 was contrary to Article 6 of the Convention. He also relied on an amendment to the Labour Code of 1993, stating that it vested with the courts power to examine all appeals for wrongful dismissal, despite the provisions of Decree No. 9.

By decision bearing the date 8 April 1996 the Regional Court, sitting in private, dismissed the applicant’s appeal, holding that in accordance with Decree No. 9 a judicial appeal against the applicant’s dismissal was not possible.

The Regional Court’s decision was not pronounced publicly and was not served.

On 4 June 1996 the case file was transmitted by the judge-rapporteur to the Regional Court’s clerical staff which made an entry in the court’s register.

On 5 June 1996 the case file was transmitted to the District Court and an entry was made in its register.

On 13 June 1996 the applicant submitted a petition for review (преглед по реда на надзора) to the Supreme Administrative Court.

The parties were summoned for a hearing but none of them appeared.

On 18 July 1997, sitting in private, the Supreme Administrative Court rejected the petition for review as time barred. It held that the Regional Court’s decision had entered into force on 8 April 1996 and that the two months’ time-limit for submission of a petition for review had expired on 8 June 1996 whereas the petition had been submitted on 13 June 1996.

At the relevant time, in accordance with Decree No. 9 of 6 January 1981, employees of the State Railways were subject to a special legal regime. They had ranks, wore uniforms and were subject to strict hierarchy and discipline, under the control of the Ministry of Transport. Decree No. 9 set out the special rules governing service in the State Railways. The Labour Code had subsidiary application.

Section 9 of the Decree, as in force at the relevant time and until February 1997, provided, inter alia, that disputes about wrongful dismissal of employees of the State Railways were amenable to review by the higher administrative authority only. As a result, until August 1996 the courts’ practice was to reject actions for wrongful dismissal of railways’ employees.

In a judgment of 19 August 1996 the Supreme Administrative Court, departing from earlier practice, held that the prohibition of judicial review under Decree No. 9 was to be considered abandoned since 1 March 1993, the date on which an amendment to the Labour Code had entered into force (опр. no. 641 от 19.8.1996 г., Бюлетин на ВС, кн. 10-1996 г., стр. 17).

The relevant part of section 9 of Decree No. 9 was eventually repealed by the Constitutional Court by decision of 18 February 1997 as unconstitutional and contrary to Article 6 of the Convention. The Constitutional Court held that dismissal from work could not be excluded from the jurisdiction of the courts, regard being had to the fact that the right to work is one of the fundamental constitutional rights (реш. no. 5 от 18.2.1997 по конст. дело no. 25/96 г. на КС на РБ, Държавен вестник, бр. 20/97).

In November 2000 the remainder of Decree No. 9 was repealed and the special legal regime of State Railways employees abandoned.

Under the Code of Civil Procedure as in force at the relevant time, service was required only in respect of judgments and certain types of procedural decisions issued by a first level of jurisdiction.

Judgments or decisions delivered by a court acting as a second level jurisdiction were not served despite the fact that most of them were amenable to review (преглед по реда на надзора), within particular time limits, before the Supreme Court (which was later reconstituted into the Supreme Administrative Court and the Supreme Court of Cassation).

As a result, whenever second instance cases were decided in private (which was the rule in appeals against procedural decisions), the parties could only learn whether or not their case had been decided by visiting the respective court and checking its register periodically.

Article 226 of the Code of Civil Procedure, as in force at the relevant time, provided that a petition for review could be submitted within two months from the impugned decision’s entry into force. At that time judgments and decisions issued by a second level of jurisdiction entered into force on the date on which they were made (opr. 3022-95-III).

According to the applicant, the courts nevertheless would normally count the two-month time-limit from the date on which the second instance judgment or decision was entered in the respective register. No relevant case-law has been cited by the parties.


Violation of Art. 6-1;Violation of Art. 5-3

Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in 1973 and lives in the town of Konotop, Ukraine.

The applicant worked as a customs officer at the Konotop railway border checkpoint.

According to the records provided by the Government, on 18 February 2002 criminal proceedings were instituted against the applicant in connection with one episode of smuggling forty electronic devices of the same type, intended for military use. On 9 October 2002 and 18 November 2002 criminal proceedings were instituted against Mr K. and Ms T., respectively, in connection with the same episode of smuggling.

On 7 October 2002 the applicant was arrested on the suspicion that he had committed the above crime. On 10 October 2002 the Shevchenkivsky District Court of Kyiv ordered the applicant’s detention on remand relying on the suspicion that he had committed a crime punishable by imprisonment. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might leave Ukraine and obstruct the investigation.

On 22 November 2002 the proceedings against the applicant, Mr K. and Ms. T. were joined.

On an unspecified date in March 2003 the applicant’s criminal case was sent to the Konotop Court for consideration.

On 4 April 2003, 22 August 2003, and 10 October 2003 the Konotop Court dismissed the applicant’s requests for release, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure.

On 8 December 2003 the Konotop Court convicted the applicant of smuggling, abuse of authority and tax evasion. The court sentenced the applicant to eleven years’ imprisonment.

On 15 April 2004 the Sumy Regional Court of Appeal quashed that judgment and remitted the case for a new consideration to the Krolevetsky Court. By the same ruling, the court of appeal continued the applicant’s remand in custody without indicating any reason.

On 5 May 2004 the Supreme Court rejected the applicant’s and Mr K.’s requests for leave to appeal in cassation against the decision of 15 April 2004.

On 7 December 2004 the applicant lodged a request for release which was dismissed the same day. The Krolevetsky Court found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure.

On 20 January 2005 the Krolevetsky Court ordered an expert examination of the smuggled devices.

On 11 April 2005 the applicant lodged a request with the trial court asking the court to lift the preventive measure of detention. On 14 April 2005 the court dismissed his request, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure.

On 30 January 2006 the expert report was sent to the court.

According to the records provided by the Government, between 15 April 2005 and 31 March 2006 the Krolevetsky Court scheduled no hearings.

On 12 May 2006 the Krolevetsky Court convicted the applicant of smuggling, abuse of authority and tax evasion. The court sentenced the applicant to four years’ imprisonment with confiscation of his movable property.

On 10 August 2006 the Sumy Regional Court of Appeal upheld the judgment of 12 May 2006 with minor amendments.

On 8 May 2007 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.

While the criminal proceedings against the applicant were pending, the applicant unsuccessfully sought institution of criminal proceedings against the persons who prepared the expert reports in his criminal case.

Provisions of the Code of Criminal Procedure of 28 December 1960 on preventive measures are set out in Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005II (extracts)).


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

David Thór Björgvinsson;Krzysztof Wojtyczek;Zdravka Kalaydjieva

The applicant company, Purpian sp. z o.o., is a Polish limited liability company having its registered office in Odolanów.

On 12 November 1997 the applicant company instituted civil proceedings against a certain Z. K. for payment.

In 1999 and 2000 six hearings were adjourned due to the applicant company’s absence. Furthermore the hearings scheduled for 10 May and 20 September 2005, 10 October 2006, 20 March 2007, 26 March and 22 April 2008 were adjourned or cancelled on the applicant company’s request.

On 24 July 2008 the Ostrów Wielkopolski District Court gave a judgment. Both the applicant company and the other party to the proceedings appealed against the judgment.

By a judgment of 11 February 2010 the Kalisz Regional Court dismissed the appeals, upholding the first-instance judgment.

On an unspecified date the applicant company lodged a complaint under the Law 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”). It sought a finding that the length of the proceedings had been excessive and claimed 10,000 Polish zlotys (PLN) in compensation.

By a decision of 6 January 2005 the Kalisz Regional Court held that the length of the proceedings had been excessive and awarded the applicant company PLN 2,000 in compensation.

On 15 April 2009 the applicant company lodged another complaint under the 2004 Act.

By a decision of 26 May 2009 the Kalisz Regional Court dismissed the complaint, holding that the proceedings had been conducted in a correct and timely manner. The court further expressed a view that the length of the proceedings had been largely due to the conduct of the parties, including that of the applicant company.

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 cases of Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005-V; Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005-VIII; and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


The applicant is a Peruvian national born in 1937. He is represented before the Court by Ms A.E.M. Röttgering, a lawyer practising in Amsterdam.

The applicant is a retired senior diplomat. At the time of the events complained of he had no diplomatic status. On 27 April 1997, while in transit from Peru to Spain and travelling on two passports (one ordinary, the other a diplomatic one containing a Schengen visa), he was arrested at Amsterdam (Schiphol) airport after customs found a quantity of cocaine in excess of 23 kilograms in his luggage. The applicant was also found to be carrying a large sum of money in cash. The cocaine had been packed in parcels secured with adhesive tape. It appears from police reports that adhesive tape with which the applicant’s luggage had been secured was identical to that used for packing the cocaine. The applicant relinquished title to the cocaine and the packaging materials (including the tape), and these were destroyed.

The applicant was tried by the Regional Court (Arrondissementsrechtbank) of Haarlem, which on 14 August 1997 found him guilty of having intentionally imported cocaine and sentenced him to four years’ imprisonment. The applicant appealed.

The appeal was heard by the Court of Appeal (Gerechtshof) of Amsterdam on 17 December 1997. The appeal was by way of a complete rehearing, as is prescribed by Netherlands law.

The applicant admitted before the Court of Appeal that before leaving Lima he had packed his luggage himself and secured it with adhesive tape. He had handed it to a luggage porter who had checked it in for him. The cocaine had been put into his luggage by persons unknown to him after the luggage had been checked in. The large sum of money was intended to set up a business in Spain.

The defence asked for the adhesive tape with which the cocaine had been packed to be examined for fingerprints, arguing that the absence of the applicant’s fingerprints would prove that the applicant had not handled the cocaine. This request could not be acceded to as the tape had been destroyed after the applicant had relinquished title to it. The defence then suggested that the prosecution be declared inadmissible on this ground. The defence further stated that persons unknown to the applicant had placed the cocaine in his luggage. It was suggested that this might conceivably have been the work of the Peruvian secret service, and a Ministry of Justice liaison officer should be detailed to make examinations in South America.

In its judgment, which was delivered on 29 December 1997, the Court of Appeal held that it had normally to be assumed that a person who packed his own luggage was aware of its contents; although admittedly in certain circumstances this might not be so there was nothing to suggest in the present case that such circumstances were present. As to the adhesive tape, even if the absence of the applicant’s fingerprints could be established that would not affect the Court of Appeal’s finding that the applicant must have known that his luggage contained cocaine. As to the possibility that the applicant had been framed by the Peruvian secret service, the Court of Appeal found that the applicant’s statements were “merely of a general nature”, had not been “specified (geconcretiseerd) in any way” and had “in no way been related to his person”, so that it was unnecessary to order an investigation by a Ministry of Justice liaison officer. Further being of the opinion that the applicant had misused a diplomatic passport in the hope of avoiding luggage checks and that his explanation for the size of the sum of money was not substantiated, the Court of Appeal went on to find him guilty of having intentionally imported cocaine and sentenced him to inter alia five years’ imprisonment.

The applicant lodged an appeal on points of law to the Supreme Court (Hoge Raad). His counsel submitted two points of appeal.

On 3 November 1998 the Supreme Court gave judgment dismissing the applicant’s appeal.


CASE OF EMONET AND OTHERS v. SWITZERLAND

Preliminary objections dismissed (ratione materiae, non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award (global)

The applicants were born in 1971, 1946 and 1948 respectively and live in Geneva.

In 1971 Mariannick Faucherre (the second applicant) and her husband had a daughter, Isabelle Chantal Emonet (the first applicant). The couple divorced in 1985 and the second applicant's former husband died in 1994.

Since 1986 Mariannick Faucherre has been living with Roland Emonet (the third applicant), who is divorced and has no children. The three applicants lived together between 1986 and 1992, when the first applicant left to live with the man she had married. The couple divorced in 1998.

In March 2000 a serious illness left the first applicant paraplegic. She kept her own home, but needed to be cared for by her mother and the third applicant, whom she regarded as her father. By agreement between the three applicants, it was therefore decided that the third applicant should adopt the first applicant so that they could become a real family in the eyes of the law.

On 14 December 2000 the third applicant filed an adoption request with the Canton of Geneva Court of Justice, enclosing two letters attesting to the other two applicants' agreement.

On 8 March 2001 the Court of Justice pronounced the adoption.

On 15 June 2001 the cantonal civil status authorities informed the second applicant that the adoption had the effect of terminating her legal parent-child relationship with the first applicant and that the latter would take on her adoptive father's surname, as she was henceforth his daughter. The first two applicants objected to the termination of the mother-daughter relationship between them and requested that it be restored.

In a letter of 23 July 2001 the cantonal civil status authorities announced that they were standing by their decision, which was based on Article 267 of the Swiss Civil Code (see “Relevant domestic and international law”, paragraph 20 below). Under the provisions of that Article previously existing parent-child relationships were severed on adoption, save in respect of the spouse of the adoptive parent. Mariannick Faucherre and Roland Emonet, however, were simply cohabiting.

On 3 September 2001 the President of the Geneva Department of Justice, Police and Transport formally rejected the request for restoration of the mother-daughter relationship. The applicants applied to the administrative court seeking to have that decision quashed and requesting a declaration that the adoption had not severed the mother-child relationship and that the adopted child could keep her name. On 17 December 2001 the applicants instituted parallel proceedings in the Court of Justice to have the adoption order set aside. The court suspended the proceedings pending the outcome of the present application.

On 25 June 2002 the administrative court partly allowed the application, setting aside the decisions of 23 July and 3 September 2001 in so far as they severed the mother-daughter relationship, and ordering the cantonal civil status authorities to restore that relationship.

On 2 September 2002 the Federal Office of Justice, having been informed of that decision, referred the matter to the Federal Court.

On 28 May 2003 the Federal Court allowed the appeal and invited the cantonal civil status authorities to record the adoption in the civil status register. In its judgment the Federal Court considered whether there was an omission in the Civil Code with regard to the adoption by a cohabitant of his or her partner's child. It pointed out that the adoption of the spouse's child, whether considered as a form of joint adoption or as adoption by a single person, created a legal parent-child relationship between the child and the adoptive parent without severing the existing relationship between the child and its parent. It also pointed out that adoption should be in the interest of the child, so that joint adoption should be the rule and adoption by a single person the exception. The Federal Court noted that adoption by a single person was not subject to any condition other than that of the child's welfare. It concluded that adoption could satisfy that condition only if the link between the partners was strong and lasting, which in principle excluded cohabiting partners, between whom relationships were less stable than between married couples. That was also the reasoning behind the adoption of section 3, paragraph 3, of the Federal Medically Assisted Procreation Act of 18 December 1998, which entered into force on 1 January 2001 and restricted sperm donation to married couples only. The Federal Court reiterated in this connection that the Federal Council had explicitly stated that the requirements in respect of sperm donation could not be less strict than those concerning joint adoption, a possibility which was open only to married couples, that a stable and lasting relationship between the parents was essential to the child's healthy development, and that common-law partnerships were generally less solid than marriages and, unlike marriage, did not guarantee durability and could therefore not be compared with marriage. The Federal Court thus held that Article 264 a) § 3 of the Civil Code could not be applied by analogy, and that there was no omission in the law that needed to be remedied. That court considered that the situation was that provided for in Article 264 b) § 1 of the Civil Code (see “Relevant domestic and international law”, paragraph 20 below). Concerning the Convention, the Federal Court considered that Article 8 did not embody the right to demand a form of adoption that was not provided for by law. Furthermore, the very essence of adoption being the forging of new family ties, prohibiting the accumulation of parent-child relationships was not at variance with Article 8. As to Article 12 of the Convention, the Federal Court repeated that it referred only to marriage and did not confer a right to adopt. The Federal Court also considered the complaint concerning the applicants' unwillingness to accept the legal consequences of the adoption, and found that they could bring proceedings to have the adoption annulled for lack of consent. The judgment was served on the applicants on 3 October 2003.

The relevant provisions of the Swiss Civil Code are as follows:

“1. Spouses shall only adopt jointly; joint adoption shall not be open to other persons.

The spouses must have been married for five years or be at least 35 years of age.

A spouse may adopt the child of the other spouse if the spouses have been married for five years.”

“1. An unmarried person may adopt a child alone if they are at least 35 years old.

“I. Where there are no descendants, an adult or a person who has been declared incapable may be adopted:

if he or she suffers from a physical or mental disability requiring permanent care and the adoptive parents have provided such care for at least five years;

III. For the remainder, the provisions on the adoption of minors shall apply by analogy.”

“1. The child shall acquire the legal status of a child of the adoptive parents.

The existing parent-child relationships shall be severed, save in respect of the spouse of the adoptive parent.

The child may be given a new forename upon adoption.”

“1. If, for no lawful reason, consent has not been sought, the persons entitled to give consent may challenge the adoption in court, provided that this would not seriously prejudice the child's welfare.

This right does not, however, concern parents who have the possibility of appealing against the decision to the Federal Court.”

Section 122 of the Federal Court Act of 17 June 2005, which entered into force on 1 January 2007, provides for the possibility of having Federal Court judgments reviewed in the event that the Court finds a violation of the Convention.

Section 122 - Violation of the European Convention on Human Rights

“Revision of a Federal Court judgment for violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (ECHR) may be requested under the following conditions:

a. when 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. revision is necessary to remedy the effects of the violation.”

The relevant provisions of the European Convention of 24 April 1967 on the adoption of children, which entered into force in Switzerland on 1 April 1973, read as follows:

“This Convention applies only to legal adoption of a child who, at the time when the adopter applies to adopt him, has not attained the age of 18, is not and has not been married, and is not deemed in law to have come of age.”

“1. The law shall not permit a child to be adopted except by either two persons married to each other, whether they adopt simultaneously or successively, or by one person.

The law shall not permit a child to be again adopted save in one or more of the following circumstances:

a. where the child is adopted by the spouse of the adopter;

b. where the former adopter has died;

c. where the former adoption has been annulled;

d. where the former adoption has come to an end.”

“1. Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock.

Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother.

When the rights and obligations referred to in paragraph 1 of this article are created, any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist. Nevertheless, the law may provide that the spouse of the adopter retains his rights and obligations in respect of the adopted person if the latter is his legitimate, illegitimate or adopted child.

In addition the law may preserve the obligation of the parents to maintain (in the sense of l'obligation d'entretenir and l'obligation alimentaire) or set up in life or provide a dowry for the adopted person if the adopter does not discharge any such obligation.

As a general rule, means shall be provided to enable the adopted person to acquire the surname of the adopter either in substitution for, or in addition to, his own.

If the parent of a child born in lawful wedlock has a right to the enjoyment of that child's property, the adopter's right to the enjoyment of the adopted person's property may, notwithstanding paragraph 1 of this article, be restricted by law.

In matters of succession, in so far as the law of succession gives a child born in lawful wedlock a right to share in the estate of his father or mother, an adopted child shall, for the like purposes, be treated as if he were a child of the adopter born in lawful wedlock.”

At its 77th meeting, held in May 2002, the European Committee on Legal Cooperation instructed the Committee of Experts on Family Law to examine the European Convention on the Adoption of Children. A working party on adoption was set up at the start of 2003 to draft a report making detailed proposals for a possible revision of that convention. In its final report (CJFA-GT1 (2004) 2) the working party concluded that a new (revised) convention on the adoption of children should be elaborated as soon as possible.

On 16 May 2006, the draft revised Convention of the Council of Europe on the Adoption of Children, as amended by the working party at its 4th meeting, from 5 to 7 April 2006, was published. The revised version is based on the information contained in the working party's final activity report.

The following are excerpts from the draft (revised) Convention and the corresponding explanatory report, as adopted by the working party at its 36th meeting, from 15 to 17 November 2006, and by the European Committee on Legal Cooperation at its 82nd meeting, from 26 February to 1 March 2007:

Text of the draft Convention (revised):

Preamble

Considering that, although the institution of the adoption of children exists in the law of all member states of the Council of Europe, there are in those countries still differing views as to the principles which should govern adoption and differences in the procedure for effecting, and the legal consequences of, adoption;

Article 2 (Scope of the Convention)

“1. This Convention applies to the adoption of a child who, at the time when the adopter applies to adopt him or her, has not attained the age of 18, is not and has not been married and has not reached majority.

Article 7 (conditions for adoption)

“1. The law shall permit a child to be adopted:

a. by two persons of different sex who

i. are married to each other, or

ii. where such an institution exists, have entered into a registered partnership together;

b. by one person.

States are free to extend the scope of this Convention to same-sex couples who are married together or who have entered into a registered partnership. They are also free to extend the scope of this Convention to different-sex couples and same-sex couples who are living together in a stable relationship.

Article 11 (Effects of an adoption)

“1. Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin.

Nevertheless, the spouse or registered partner of the adopter shall retain his or her rights and obligations in respect of the adopted child if the latter is his or her child, unless the law otherwise provides.

As regards the termination of the legal relationship between the child and his or her family of origin, States Parties may make exceptions in respect of matters such as the surname of the child and impediments to marriage or to entering into a registered partnership.

States Parties may make provision for other forms of adoption having more limited effects than those stated in the preceding paragraphs of this article.

Commentary on the Articles of the Convention.

Article 7 (conditions for adoption)

States are also free to extend the scope of the convention to different- or same-sex couples who are living together in a stable relationship. It is up to the States Parties to specify the criteria for assessing the stability of such a relationship.

If a State Party has extended the scope of the convention its provisions have to be applied mutatis mutandis.

Article 11 (Effects of an adoption)

“64. The revised convention mainly deals with “full” adoption (which is an adoption that severs all ties with the family of origin) without preventing those states that have “simple” adoption (which is an adoption that does not sever the relationship with the family of origin so that the adopted child is not entirely integrated into his or her adoptive family) from continuing to use this form of adoption.

The main object of this article is to ensure that an adopted child is treated from every standpoint like a child of the adopter and his or her family and that, in principle, all ties with the child's family of origin should be severed.

According to paragraph 2, the parent whose child is adopted by his or her spouse or registered partner retains his or her rights and obligations in respect of the child, unless the law otherwise provides.