CASE OF BOCVARSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in 1958 and lives in Skopje.

According to an official note of the Ministry of Finance of 1997, the applicant and Mr Angel Kupev registered Naša Kniga STD (самостоен трговски дукан, “the undertaking”, as opposed to companies incorporated under company law) through which they pursued business activities. On 17 July 1992 they ceased trading through the undertaking. On 8 February 1993 the undertaking was re-registered in the name of the applicant. The undertaking operated until 22 February 1995, when its activities were voluntarily terminated.

On 23 June 1993 the Skopje District Commercial Court (Окружен Стопански суд) upheld the undertaking's claim and ordered AD Gazela (“the debtor”) to pay a debt amounting to 1,393,377.70 old Macedonian denars (MKD) plus interest. The court found that the debtor and the undertaking had concluded a framework agreement under which the latter would produce paper products for the debtor. As the debtor had failed to pay for the products made, the court upheld the undertaking's claim.

On 10 September 1993 the Macedonia-Skopje Commercial Court (Стопански суд на Македонија), sitting as an appellate court, dismissed an appeal by the debtor and upheld the lower court's decision. On 22 March 1994 the Supreme Court dismissed an appeal on points of law (ревизија) by the debtor and upheld the lower courts' decisions.

On 2 October 1993 the undertaking requested enforcement of the judgment debt, proposing the following means of enforcement: transfer of the money due from the debtor's account and an inventory, evaluation and public auction of the debtor's movable and immovable property. On 8 October 1993 the Skopje District Commercial Court granted the undertaking's request and ordered the debtor to pay the debt. On 3 November 1993 it dismissed an objection by the debtor.

On 26 November 1993 the District Commercial Court dismissed a request by the debtor for postponement of enforcement. On 25 December 1993 the Commercial Court dismissed an appeal by the debtor and upheld its decision.

On 9 June 1994 the District Commercial Court upheld an objection by the debtor and discontinued the enforcement proceedings in so far as they concerned interest.

On 2 September 1994 the District Commercial Court ordered the Public Payment Office to require the bank in which the debtor had had its foreign currency account to transfer the balance due to the undertaking's account. It also ordered the bank not to make any payments from the debtor's account to other parties until the undertaking's claim had been completely honoured. The court established that the undertaking had received part of the judgment debt. It further noted that, as there were no other funds available in the debtor's account, on 25 July 1994 the undertaking had requested the court to satisfy its claim from other accounts belonging to the debtor.

On 6 October 1994 the undertaking, represented by Mr A. Kupev, and the debtor reached a court settlement (“the 1994 settlement”) concerning the means of securing payment of the remaining balance, which amounted to MKD 21,774,593.00 (844,631 German marks). The undertaking agreed to receive the balance in twelve equal instalments within a year.

As the debtor did not pay the debt as agreed, on 27 October 1994 the District Commercial Court ordered an inventory and public auction of the debtor's vehicles. On 30 November 1994 the Commercial Court dismissed an appeal by the debtor and upheld the lower court's decision.

On 12 January 1995 the District Commercial Court partly allowed a request by the debtor for postponement of the enforcement in respect of some heavy goods vehicles and a bus. On 29 January 1996 the court ordered the confiscated vehicles to be returned to the debtor as they were necessary for its work. On 29 August 1996 the Skopje Court of Appeal (Апелационен суд) upheld those decisions.

On 14 April 1997 the Skopje Court of First Instance (Основен суд) dismissed a request by the debtor to postpone enforcement of the 1994 settlement.

On 23 September 1997 the Court of First Instance upheld an objection by the debtor, who had argued that the undertaking had no legal capacity as a creditor in the proceedings as it had ceased to exist. It also stayed the enforcement proceedings and ordered the Public Payment Office to lift the charging orders on the debtor's accounts. It dismissed the applicant's arguments that she was a successor to the undertaking and that there had been a continuity of the undertaking's claims. On 30 April 1998 the Court of Appeal dismissed an appeal by the undertaking as inadmissible.

Pending the proceedings described above, on 14 June 1996 the Skopje Municipal Court granted the undertaking's request of 10 January 1996 and issued a charging order on one of the debtor's shops (“the shop”). On 2 September 1996 the Skopje Court of First Instance dismissed an objection by the debtor. On 31 October 1996 the Court of Appeal quashed the lower court's decision and ordered a re-examination of the case. On 21 November 1996 the Skopje Court of First Instance suspended the charging order, as the shop had been exempted from enforcement since it was necessary for the debtor's work. On 24 January 1997 the Court of Appeal quashed that decision and ordered a re-examination of the case. On 7 July 1997 the Court of First Instance dismissed an objection by the debtor.

On 18 February 1997 the undertaking requested the court to enforce the claim as established by the 1994 settlement. On 24 February 1997 the Court of First Instance granted the undertaking's request for the sale of the debtor's shop in respect of the principal debt, which had amounted to DM 844,631, together with interest between 11 October 1994 until settlement, plus trial costs. On 19 March 1997 the Court of First Instance partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest.

On 12 June 1997 the Court of Appeal allowed an appeal by the debtor and quashed the decision of 19 March 1997. It found that the lower court had failed to determine the debtor's objection as to whether other enforcement proceedings had already been pending between the same parties on the same subject.

On 8 July 1997 the Court of First Instance partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest. The order for the sale of the shop remained unaffected.

On 12 September 1997 the Court of Appeal dismissed an appeal by the debtor and upheld the lower court's decision.

On 26 November 1997 the public prosecutor lodged with the Supreme Court a request for the protection of legality (барање за заштита на законитоста) (“legality review request”) challenging the legality of the lower courts' decisions of 8 July and 12 September 1997. It argued that the 1994 settlement could not be regarded as an enforcement order (извршна исправа) as it had been concluded while the enforcement proceedings were already pending and it had merely concerned the means of enforcing payment of the outstanding debt. The public prosecutor's office further contested, inter alia, the legal capacity of the undertaking in the enforcement proceedings as it had ceased to exist before it had lodged its application for enforcement on 18 February 1997. On 1 December 1997 the undertaking made submissions in reply.

On 29 January 1998 the Supreme Court upheld the public prosecutor's legality review request and quashed the impugned decisions. It found that the lower courts had wrongly considered the 1994 settlement to be an enforcement order that could validly be enforced. It instructed them, inter alia, to reconsider the undertaking's legal capacity as a creditor in the enforcement proceedings.

On 2 April 1998 the Skopje Court of First Instance upheld the debtor's objection concerning the undertaking's capacity to take part in the proceedings as a creditor. It dismissed the undertaking's application for enforcement and ordered the proceedings to be resumed in the name of the applicant as a creditor. It held that the applicant had been the last person who had pursued business activities through the undertaking before it had ceased to exist. As the undertaking did not have the capacity of a legal entity, all its rights and obligations, including its claim against the debtor, had to be considered to have been transferred to the applicant, as the physical person who had run it.

On 11 June 1998 the Skopje Court of Appeal upheld the lower court's decision, finding no grounds to depart from the reasons given.

On 22 September 1998 the public prosecutor submitted a fresh legality review request to the Supreme Court, challenging the legality of those decisions and claiming that the applicant lacked the legal capacity to replace the undertaking and take over the enforcement proceedings as a creditor. It further disputed that the 1994 settlement could not be regarded as an enforcement order, as the enforcement proceedings had already been pending at the time when it had been concluded. On or about 29 September 1998, the applicant, who was legally represented, made submissions in reply to the public prosecutor's legality review request.

On 11 November 1998 the Supreme Court upheld the public prosecutor's request and quashed the lower courts' decisions. It found that they had failed to establish whether the enforcement proceedings had been pending before the 1994 settlement was concluded. It further held it to be irrelevant that the undertaking had ceased to operate, as the undertaking's founders bore its rights and obligations and it had been their responsibility to establish their status before the courts.

On 17 March 1999 the Court of First Instance ordered the enforcement of the 1994 settlement by sale of the shop in favour of the applicant. It held that the enforcement proceedings, which had been instituted before the 1994 settlement, had ended with the first-instance court's decision of September 1997. It further recognised the applicant's capacity to take over the undertaking's claim and to be given the status of a creditor.

On 13 May 1999 the Court of Appeal upheld the lower court's decision and dismissed an appeal by the debtor, which had submitted, inter alia, that the applicant had failed to establish that she had taken over the undertaking's claim.

On 9 June 1999 the public prosecutor lodged a third legality review request with the Supreme Court. The public prosecutor's office reiterated its earlier allegations that the 1994 settlement could not be regarded as an enforcement order and that the applicant could not automatically be considered to have taken over the undertaking's claim.

On 17 February 2000 the Supreme Court quashed the lower courts' decisions. It found that they had erroneously established that the applicant had taken over the undertaking's claims ipso jure as she had been the last proprietor of the undertaking. It further instructed them to verify whether there had been a valid certificate by which the undertaking's claim had been transferred to the applicant.

On 23 June 2000 the Court of First Instance requested the applicant to provide, in accordance with section 22 of the Enforcement Act (see paragraph 51 below), written evidence that the undertaking's claim had been transferred to her. On 29 June 2000 the applicant submitted documents to the court, including a balance sheet (биланс на приходи и расходи), bank account details, a receipt (признаница) and a certificate issued by a bank.

On 6 October 2000 the Court of First Instance dismissed the applicant's application for enforcement of the claim as established by the 1994 settlement. Following the Supreme Court's instructions, it held that there had been no valid certificate by which the undertaking's claim had been transferred to the applicant. It therefore concluded that the latter could not claim to have the status of a creditor.

On 1 March 2001 the Court of Appeal quashed the decision as the lower court had failed to establish whether the applicant had owned and run the undertaking as a sole proprietor.

On 15 June 2001 the Court of First Instance dismissed the applicant's request as ill-founded. It found that the documents submitted to the court on 29 June 2000 could not be regarded as a valid certificate by which the undertaking's claim had been transferred to the applicant. It concluded that the applicant could not ipso jure have taken over the undertaking's claim.

On 6 September 2001 the Court of Appeal overturned the decision and partly allowed the applicant's application for enforcement of the principal debt indicated in the 1994 settlement. It dismissed the applicant's request for payment of the interest. It found, inter alia:

“...it is irrefutable that the creditor, Ms Bočvarska, owned the undertaking ..., which had no legal capacity... The fact that Ms Bočvarska carried out transactions on the market through the undertaking at the time when the latter still operated implied that she was responsible for all the rights and obligations arising from it... the lack of legal capacity of the undertaking ..., whose proprietor was the creditor [the applicant], means that it was not a separate legal entity, but that its capacity, regarded as a pool of rights and obligations, is vested solely in the creditor, Ms Bočvarska ... there is no transfer of the undertaking's claims to Ms Bočvarska, as the former does not have legal capacity, but the creditor [the applicant] was ... liable for the undertaking's obligations...”

On or about 15 January 2002 the public prosecutor lodged a fourth legality review request with the Supreme Court in respect of the Court of Appeal's decision.

At the public prosecutor's request, on 28 January 2002 the Court of First Instance postponed the enforcement of the order until the Supreme Court had determined the legality review request.

On the same date, the applicant made submissions to the Court of First Instance in reply to the public prosecutor's request.

On 30 May 2002 the Supreme Court upheld the public prosecutor's request, overturned the Court of Appeal's decision and upheld the first-instance court's decision of 15 June 2001. It found, inter alia, that the lower courts had established the following facts:

“...the enforcement proceedings were pending before the District Commercial Court between the [undertaking] and [the debtor]. On 6 October 1994 they concluded a court settlement on the basis of which the enforcement proceedings were instituted... on 23 September 1997 the Skopje Court of First Instance stayed the proceedings... on 30 April 1998 the Court of Appeal rejected the [undertaking's] appeal as inadmissible [these decisions concern the enforcement proceedings instituted before the 1994 settlement was concluded]... on 8 February 1993 the [undertaking] was registered in the name of Ms Bočvarska.... On 22 February 1995 [the undertaking]... ceased to exist. Ms Bočvarska was the last sole proprietor of the [undertaking], which had been set up by her funds and her labour force.”

The court went on to conclude that the Court of Appeal had wrongly applied the substantive law for the following reasons:

“In the present case, the requirements of the provision cited above [referring to section 22 of the Enforcement Proceedings Act], for the granting of enforcement at the request of a person not indicated as a creditor in the enforcement order, were not satisfied. There is no written certificate attesting that the claim was transferred from [the undertaking] to Ms Bočvarska, as a creditor. The termination of the undertaking's operations does not ipso jure entail the transfer of its claims to the last proprietor who ran it. Indeed, the Entrepreneurship Act did not contain a provision providing for ipso jure transfer of the undertaking's claims to the last proprietor who ran it ... Moreover, the court settlement of 6 October 1994 cannot be regarded as an enforcement order as it resulted from the enforcement proceedings already pending between the same creditor [meaning the undertaking] and the debtor... the subject of this settlement was the means of enforcing the outstanding debt...”

The decision was served on the applicant on 25 July 2002.

Article 101 of the Constitution provides that the Supreme Court is the highest court and that it ensures the uniform application of the laws by the courts.

Section 3 (1 and 3) of the Entrepreneurship Act provided that an entrepreneur could set up an undertaking (дуќан), in order to pursue business activities. The undertaking could have a legal personality.

Section 10 provided that an entrepreneur could set up an undertaking by submitting an application to the relevant municipal administrative body.

In accordance with section 16 § 1 (1) of that Act, an undertaking would cease to exist if the above application had been withdrawn.

Section 7 (6) of the Enforcement Proceedings Act (“the Act”), as applicable at that time, provided that a decision given on an appeal was regarded as final.

Under section 8 of the Act, an appeal on points of law and a request for reopening of the proceedings could not be lodged in respect of a final decision given in the enforcement proceedings.

Section 13 of the Act provided that the provisions of the 1998 Act applied, mutatis mutandis, to enforcement and security proceedings, unless otherwise provided for by law.

Under section 15 (2), an enforceable court decision and a court settlement were regarded as an enforcement order.

Section 22 (1) of the Act provided that enforcement might be granted at the request of a person not indicated as a creditor in an enforcement order only if that person proved, by a public or otherwise legally certified order, that the claim had been transferred to him or her. Should that be impossible, the transfer of the claim was to be proved by a final decision given in civil proceedings.

Section 319 of the Civil Proceedings Act (“the 1998 Act”), which was in force at the material time, provided that a decision became final when an appeal could no longer be lodged against it.

In accordance with section 380 (1) of the 1998 Act, in case of substantial procedural flaws, the Supreme Court quashed the first- and the second-instance decision or the second-instance decision only and referred the case back for reconsideration.

Section 381 of the 1998 Act provided that where the substantive law had been applied incorrectly, the Supreme Court upheld the appeal on points of law and overturned the impugned decision. In cases where the facts were erroneously established because of the incorrect application of the substantive law and where there were no grounds for overturning the impugned decision, the Supreme Court upheld the appeal on points of law and referred the case back for fresh consideration.

In accordance with section 387 of the 1998 Act, the public prosecutor could submit, within three months, a request for the protection of legality in respect of a final decision. When the request was lodged in respect of a second-instance decision, this term started to run from the date on which the last party was served with the decision. Where the parties concerned had lodged an appeal on points of law against the second-instance decision, the public prosecutor could submit a request for the protection of legality in respect of that decision within thirty days of the date of service of the appeal on points of law.

In accordance with section 390, a legality review request could be lodged either in respect of a substantial procedural flaw or an incorrect application of the substantive law. It could not be lodged where the impugned decision went beyond the scope of the claim or where the facts had been erroneously or incompletely established.

Section 394(2) of the Act provided, inter alia, that sections 370, 373 to 381 and 383 to 385 applied, mutatis mutandis, to proceedings concerning a legality review request.

The Act, which repealed the 1998 Act, does not contain any provisions concerning the legality review proceedings.


The applicants, Mrs Stina Lise-Lott Sved, Ms Erika Sved, Ms Elin Sved and Mr Markus Sved, are Finnish nationals, who were born in 1957, 1985, 1987 and 1988 respectively and live in Närpiö, Finland. They are the widow and the three children of the late Mr Rune Sved.

They are represented before the Court by Mr Matias Wallgren, a lawyer practising in Helsinki, Finland.

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

On 8 November 1995 Mr Rune Sved, who was a farmer, applied for a subsidy to give up greenhouse farming. On 19 January 1996 the Pension Fund for Farming Industry (maatalousyrittäjien eläkelaitos, lantbruksföretagarnas pensionsanstalt) decided to grant Mr Sved a subsidy of FIM 263,800 (approximately 44,400 euros) on condition that the greenhouses were demolished or otherwise permanently taken out of production and the relevant area adjusted to the surrounding landscape. Written information when these measures had been carried out was requested as a condition of payment.

Mr Rune Sved died on 21 January 1996 without knowing about the decision.

On 6 March 1996 Mr Sved’s widow requested that the subsidy be paid to his estate. On 15 March 1996 the Pension Fund refused to pay the subsidy as the greenhouses had not been demolished before the death of Mr Rune Sved. The applicants appealed to the Pension Board (eläkelautakunta, pensionsnämnden), requesting payment of the subsidy. The Board decided, on 12 February 1997, that the subsidy could not be paid to Mr Sved’s estate since he had not demolished the greenhouses himself during his lifetime.

On 27 March 1997, the applicants appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen), contending that the Board’s decision was unreasonable as Mr Rune Sved had not been able to demolish the greenhouses as he had not even known about the decision before he died. They noted that they had no other choice than to continue the greenhouse production or to let the greenhouses to another farmer if the court’s decision was not favourable to them. It appears from the statement of appeal that the greenhouses had not been demolished by 27 March 1997.

On 2 September 1998 the Insurance Court upheld the Board’s decision.

According to Section 4, subsections 1 and 2, of the Act on Subsidy for Reducing Greenhouse Production and Apple Farming (laki kasvihuonetuotannon ja omenanviljelyn lopettamistuesta, lag om stöd för nedläggning av växthusproduktion och äppelodling), a subsidy shall be paid to an applicant on condition that his greenhouses are permanently demolished or otherwise taken out of greenhouse production and the relevant areas adjusted to the landscape.

According to Section 3 of the above-mentioned Act, the subsidy can only be granted if the applicant has been farming for a minimum period of ten years immediately before giving up this activity, and on condition that commercial greenhouse farming has been carried out in an area exceeding 500 square metres and the greenhouse farmer has been insured for this activity as a private entrepreneur within the meaning of the Act on Pensions for Private Entrepreneurs (yrittäjien eläkelaki, lag om pension för företagare) or as a farmer within the meaning of the Act on Pensions for Farmers (maatalousyrittäjien eläkelaki, lag om pension för lantbruksföretagare).

According to Section 10 of the above-mentioned Act, the subsidy is paid after the greenhouse production or apple farming has ceased.


Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 6-2;Pecuniary damage - request rejected;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was the Minister of Defence and a Member of the Seimas (Parliament) from 1996 to 2000.

On 12 August 1997 the applicant was apprehended in a hotel lobby by the security intelligence and the prosecuting authorities while accepting an envelope containing 15,000 United States dollars (USD) from KK. The latter, a senior executive of a troubled oil company (hereinafter referred to as “the company”), had previously informed the intelligence authorities that the applicant had requested 300,000 USD for his assistance in obtaining the discontinuance of criminal proceedings concerning the company’s vast debts. For slightly more than an hour the applicant was questioned in the hotel lobby. His explanations were recorded and he was allowed to leave the hotel.

On 14 August 1997 the Prosecutor General requested the Seimas to permit the institution of criminal proceedings against the applicant. On 19 August 1997 the Seimas agreed. On 20 August 1997 criminal proceedings were instituted. On 14 October 1997 the applicant was charged with attempting to cheat (obtaining property by deception).

On 20 October 1997 the Prosecutor General applied to the Seimas for permission to detain the applicant on remand. On 28 October 1997 permission was given. On the same day a prosecutor requested the Vilnius City Second District Court to order the applicant’s detention on remand. Also that day the applicant was brought before a judge of the Vilnius City Second District Court who issued a warrant for the applicant’s arrest on the grounds that he might obstruct the establishment of the truth in the case, inter alia, by exploiting the media and influencing witnesses. The applicant was duly detained.

On 30 October 1997 the judge extended the term of the applicant’s detention on remand until 30 November 1997 in the presence of the parties for the same reasons as before. On 3, 5 and 7 November 1997 the applicant appealed against his detention on remand. He requested a hearing. On 11 November 1997 a judge of the Vilnius Regional Court dismissed the applicant’s appeal without hearing the parties.

From 27 November 1997 to 5 December 1997 the applicant and his counsel had access to the case-file. On 5 December 1997 the applicant requested the prosecutor to discontinue the proceedings. On a number of occasions he also requested the prosecutor to vary the remand. These requests were rejected.

On 8 December 1997 a judge of the Vilnius City Second District Court extended the term of the applicant’s detention on remand until 31 December 1997. On 9 December 1997 the applicant appealed. On 11 December 1997 the Regional Court informed him that no appeal lay against that decision.

On 29 December 1997 the Prosecutor General confirmed the bill of indictment, which was transmitted to the Vilnius Regional Court.

From 1 to 5 January 1998 the applicant submitted numerous applications to courts, the prison administration, the Ombudsman and the Seimas, alleging that his detention had been unlawful. On 7 January 1998 the Ombudsman concluded that from 31 December 1997 the applicant had been held in detention unlawfully.

On 8 January 1998 the Vilnius Regional Court committed the applicant for trial. The court also decided that the applicant’s detention on remand “shall remain unchanged”. No term for that detention was specified.

On 23 March 1998 the Vilnius Regional Court adjourned the case and ordered the prosecuting authorities to submit new evidence. In the same decision the court also decided that the applicant’s detention on remand “shall remain unchanged”. No term or grounds for this were specified. The applicant’s counsel was present at the hearing. On 24 March 1998 the applicant appealed against the decision. On 12 May 1998 the applicant submitted a further appeal against the decision of 23 March 1998.

On 21 May 1998 the Court of Appeal dismissed this appeal in so far as it concerned the decision to require the prosecution to submit new evidence. The Court of Appeal held that no appeal lay against the decision of 23 March 1998 in so far as it concerned the applicant’s detention. The applicant and his counsel were present at the appellate hearing.

On 1 July 1998 the trial before the Vilnius Regional Court was resumed. On 13 July 1998 the Vilnius Regional Court extended the term of the applicant’s detention until 17 August 1998. On 23 July 1998 the detention was extended until 30 November 1998. The court referred to the strength of the evidence in the case-file and the likelihood of the applicant influencing witnesses, warranting his further remand in custody. Defence counsel was present at the hearings. The applicant’s appeals against the decisions of 13 and 23 July 1998 were dismissed by the Court of Appeal on 21 July and 12 August 1998 respectively. The applicant’s counsel had been present at the appellate hearings.

On 5 and 19 February, 1 July, 21 October and 3 November 1998, the Vilnius Regional Court rejected the applicant’s requests to lift the remand in custody. His defence counsel was present at the hearings.

On 18 November 1998 the Vilnius Regional Court found the applicant guilty of attempting to obtain property by deception. The court rejected the applicant’s defence that he had been incited to commit an offence as a result of the conspiracy between KK and the security intelligence authorities. The court found that the applicant had himself requested KK to contact him, and that the applicant had demanded money in return for him using his authority over certain prosecutors with a view to discontinuing the criminal case involving KK’s indebted company. The Regional Court found that the applicant had thereby intended to cheat. The applicant was sentenced to five years and six months’ imprisonment and fined 50,000 Lithuanian litai (LTL). Half of his property was confiscated. The applicant and his counsel were present before the first instance court.

The applicant appealed. On 17 February 1999 the Court of Appeal rejected the appeal, finding no procedural irregularities regarding the investigation and trial. The applicant and his counsel were present at the appellate hearing.

The applicant lodged a cassation appeal. On 11 May 1999 the Supreme Court rejected it, finding that the lower courts had properly decided the case. The court mentioned inter alia that it had no competence to examine the applicant’s allegations about the unlawfulness of his detention on remand. The applicant and his counsel were present before the Supreme Court.

On an unspecified date, an impeachment procedure was initiated against the applicant in the Seimas. On 15 June 1999 the Seimas refused to impeach the applicant or annul his mandate as a Member of Parliament (“MP”).

On 17 March 2000 the Vilnius City Third District Court ordered the applicant’s release on licence. He was released on 20 March 2000.

<Translations are given>

On 14 August 1997 an article entitled “MP’s whitewash looks hogwash, says prosecutor” was published in the biggest national daily “Lietuvos Rytas”:

“The Prosecutor General confirmed that [he had] enough sound evidence of the guilt of A. Butkevičius.”

On 15 August 1997 an article entitled “The Chairman of the Seimas does not doubt A. Butkevičius’s guilt” was published in “Lietuvos Rytas”:

“When asked whether or not he doubts that A. Butkevičius accepted a bribe, the Chairman of the Seimas said: ‘on the basis of the material in my possession I entertain no doubt.’”

The Prosecutor General was quoted in an article entitled “A. Butkevičius prepares for battle and prison” of 16 August 1997 in the daily “Respublika”:

“I qualify the offence as an attempt to cheat ... .”

The Chairman of the Seimas, quoted in an article entitled “A. Butkevičius will be prosecuted” of 20 August 1997 in “Lietuvos Rytas”:

“One or two facts were and are convincing. [The applicant] took the money while promising criminal services.”

The Chairman of the Seimas, in an article entitled “A. Butkevičius’s lawyers tag the bribery case as political” of 6 October 1998 in “Lietuvos Rytas”, was quoted as saying that “the Centre and the New Union [parties] co-ordinate the defence of the bribetaker” and that these parties try to protract the proceedings and artificially “victimise” the applicant.

The Code of Criminal Procedure (Baudžiamojo proceso kodeksas):

“No one shall be arrested or detained save by virtue of a decision of a court or judge.”

Article 52 § 2 and 58 § 2 of the Code provide that the accused and their counsel have the right to submit requests and appeal against acts and decisions of an interrogator, investigator, prosecutor or court.

“Detention on remand shall be used only ... in cases where a statutory penalty of at least one year’s imprisonment is envisaged. ... .

The grounds for detention on remand shall be the reasoned suspicion that the accused will:

(1) abscond from the investigation and trial;

(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];

(3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... [274, cheating] of the Criminal Code ... .”

“... the arrested person shall be brought before a judge within not more than 48 hours ... . The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person may take part in the inquiry. After having questioned the arrested person, the judge may maintain the arrest order by designating the specific term of detention, or vary or revoke the remand ... .

After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand.”

The amended Article 104-1 (in force since 24 June 1998) provides that the prosecutor and defence counsel must take part in the first judicial inquiry of the arrested person, unless the judge decides otherwise. The amended provision also provides that the court should extend the detention on remand before its expiry.

“For the purpose of extending the term of detention on remand, a judge ... must convene a hearing to which defence counsel and a prosecutor and, if necessary, the detainee shall be called. The judge decides whether or not to extend the term of detention on remand. ... .”

The Code in force since 24 June 1998 makes obligatory the attendance of the detainee at the remand hearings.

“An arrested person or his counsel shall have the right during the pre-trial investigation to lodge [with an appellate court] an appeal against the arrest. ... . With a view to examining the appeal, there may be convened a hearing to which the arrested person and his counsel or only counsel shall be called. The presence of a prosecutor is obligatory at such a hearing.

The decision taken by the judge at appellate instance is final and cannot be the subject of a cassation appeal.

A further appeal shall be determined when examining the extension of the term of the detention on remand.”

The present Article 109-1 (in force since 24 June 1998) now provides for an appeal to a higher court and a hearing against a decision ordering or extending the term of detention both at the stage of pre-trial investigation and trial, in the presence of the detainee and his counsel, or only his counsel.

“The period when the accused and his counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention. Where there are several accused persons, the period during which all the accused and their counsel have access to the case-file is not counted towards the overall term of pre-trial investigation and detention.”

Since 24 June 1998 this period is no longer relevant for remand decisions.

“A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine: ...

11) whether the remand has been selected appropriately; ... .”

“After having decided that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine: ...

2) the remand in respect of the accused; ... .”

“The defendant has the right to: ... ;

3) submit requests; ...

11) appeal against the judgment and decisions of a court.”

“In the course of the trial, a court may decide to order, vary or revoke a remand in respect of the defendant.”

“Decisions of courts ... ordering, varying or revoking a remand ... cannot be the subject of appeal ... .”

Pursuant to the general provision of Article 399, a first instance decision was not effective pending the time-limit for an appeal against that decision or during the appeal proceedings. Only those decisions against which no appeal was possible, including remand decisions under the former Article 372 § 4, became effective and were executed on the date when they were taken. The present Article 104-3 § 3 (version in force from 21 December 1999) specifies that all decisions of detention on remand become effective and are executed on the date when they are taken, regardless of the fact that an appeal is possible against any such decision under the amended Article 109-1 (since 24 June 1998, see above).

Article 31 § 1 of the Constitution reads:

“A person shall be considered innocent until proved guilty in accordance with the law by a final judgment of the court.”

Article 11 § 2 of the Code of Criminal Procedure provides:

“No one shall be declared guilty of having committed an offence or punished by a criminal penalty save by a court judgment in accordance with the law.”


Preliminary objection rejected (estoppel);Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant, Zvonko Čevizović, is a Croatian national born in 1966. When lodging his application, he was detained in Oldenburg, Germany. He is presently living in Rogaška Slatina, Slovenia.

On 17 June 1996 the applicant was arrested in Wilhelmshaven. On 18 June 1996 the Wilhelmshaven District Court issued a warrant of arrest against the applicant on the ground that he was strongly suspected of having committed, with others, robbery connected with attempted murder.

On 4 November 1996 the Oldenburg Public Prosecutor’s Office charged the applicant with attempted murder, aggravated robbery, grievous physical injury and unauthorised carrying of weapons.

On 18 February 1997 the Oldenburg Regional Court admitted the indictment without modifications and decided to open the trial against the applicant and two other accused. The trial started on 14 March 1997 and took place on fifty-six days with an average duration of ninety minutes. On 22 May 1998 a lay assessor fell ill. As the additional lay assessor who was supposed to replace her had also fallen sick earlier on, the trial had to begin anew.

On 28 May 1998 the Oldenburg Regional Court upheld the arrest warrant against the applicant. It found that irrespective of the delay occasioned by the assessors’ illness, the applicant’s continued detention was proportionate given the serious nature of the crimes he was accused of.

On 2 June 1998 the trial reopened with two additional lay assessors.

On 22 June 1998 the Oldenburg Court of Appeal rejected the applicant’s appeal against the Oldenburg Regional Court’s decision to uphold the arrest warrant.

On 25 March 1999 the Oldenburg Regional Court dismissed the applicant’s renewed request to suspend the warrant of arrest of 18 June 1996 on the ground that the applicant remained under strong suspicion of having committed the crimes that he was accused of. On 7 May 1999 the Oldenburg Regional Court, upon the applicant’s appeal, reconsidered and confirmed its decision of 25 March 1999. It held that the delay in the trial had been caused by exceptional circumstances such as the difficulty in taking evidence, which required further investigations during the trial, and the illness of a lay assessor as well as the temporary illness of the presiding judge. The strong suspicion that the applicant had committed the serious crimes he was accused of had not been invalidated during the trial. As the applicant’s partner and son lived in Slovenia, the applicant was also likely to abscond if released.

On 1 June 1999 the Oldenburg Court of Appeal confirmed the decision of the lower court, stating that although the applicant had at that point already been in custody for nearly three years, this did not justify his release.

On 9 July 1999 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint.

On 14 June 2000 the Oldenburg Regional Court dismissed the applicant’s new request to suspend the warrant of arrest of 18 June 1996 on the ground that the allegedly new evidence submitted by the applicant did not justify such a suspension. It found that if released, the applicant was very likely to abscond, given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged. The Regional Court noted that the applicant was residing illegally in Germany and that an expulsion order had been issued against him. The length of the applicant’s detention on remand did not compare to the risk mentioned above. The Regional Court included a detailed account of the trial, explaining the continued conduct of the proceedings, which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify. Furthermore, the applicant and his co-accused had, often later than necessary, filed numerous motions for evidence to be taken. It observed that at the present time, it was not possible to disjoin the applicant’s case from those of the other accused, as they were accused of committing the offences jointly.

On 21 June 2000, following the applicant’s appeal, the Oldenburg Regional Court confirmed its original decision. It pointed out that the prolonged investigations by way of letters rogatory in Macedonia and the summoning of witnesses from abroad, which were necessitated by the belated alibi produced by one of the applicant’s co-accused, did not warrant the applicant’s release.

On 27 June 2000 the Oldenburg Court of Appeal confirmed this decision.

On 10 August 2000 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint.

On 26 September 2000 the Oldenburg Regional Court dismissed the applicant’s further request to suspend the arrest warrant on the grounds that contrary to his allegations, the suspicion persisted that he had committed the crimes he was accused of and was still likely to abscond if released, especially considering the high prison sentence he risked incurring if found guilty according to the indictment.

On 20 March 2001 the Oldenburg Regional Court pronounced its judgment after having held an average of less than four hearings per month with an average duration of less than two and a half hours each. It convicted the applicant of attempted murder, aggravated robbery and grievous physical injury as well as of unauthorised carrying of weapons and sentenced him to ten years and six months’ imprisonment. In fixing the length of the applicant’s sentence, the Regional Court took into consideration the inordinate length of his detention and of the criminal proceedings, in particular the delay occasioned by the sickness of the lay assessor and the ensuing suspension of proceedings.

On 21 March 2001, the applicant appealed against the Regional Court’s judgment. In the negotiations that followed between the applicant’s legal counsel and the Prosecutor’s Office, the latter eventually consented to the applicant’s expulsion to his country of origin in lieu of serving his prison sentence in Germany. In exchange for this, and due to the increasing length of his detention on remand, which would have continued during the appeal proceedings, the applicant agreed to withdraw his appeal.

On 4 April 2001, the applicant withdrew his appeal. On 5 April 2001 the Oldenburg Regional Court made an order for costs following the applicant’s withdrawal of the appeal. On 28 May 2001, the Prosecutor’s Office suspended the further execution of the applicant’s prison sentence and agreed to his expulsion to Croatia. A new arrest warrant was issued to the effect that, upon returning to Germany before the year 2026, the applicant would be arrested and imprisoned instantly in order to complete his prison sentence. On 25 July 2001, the applicant was expelled to Croatia.


Violation of Art. 6-1+6-3-c;Not necessary to examine Art. 6-2;Non-pecuniary damage - finding of violation sufficient

Mr Satyanund Pelladoah is a Mauritian national born in 1947 and resident in Quatre Bornes, Mauritius.

On 27 December 1985 Mr Pelladoah was arrested at Schiphol Airport after customs officials found more than twenty kilograms of heroin, some of it mixed with methaqualone (a synthetic psychotropic drug), in a suitcase which he was carrying.

He was charged primarily with bringing into the country, with or without criminal intent as the case might be, a quantity of a substance containing heroin. This amounts to an indictable offence (misdrijf) carrying a maximum penalty of twelve years’ imprisonment (gevangenisstraf) and a fine of NLG 100,000 if committed with criminal intent (opzettelijk - section 2 (1) (A) and section 10 (4) of the Opium Act - Opiumwet) but a summary offence (overtreding) carrying a maximum penalty of only six months’ detention (hechtenis) and a fine of NLG 25,000 if committed without such intent (section 2 (1) (A) and section 10 (1) of the Opium Act). In the alternative, he was charged with possession (aanwezig hebben) of such a substance, with or without criminal intent as the case might be, which is an indictable offence carrying a maximum penalty of four years’ imprisonment and a fine of NLG 100,000 if committed with criminal intent (section 2 (1) (C) and section 10 (2) of the Opium Act), but a summary offence carrying a maximum of six months’ detention and a fine of NLG 25,000 if criminal intent is absent (section 2 (1) (C) and section 10 (1) of the Opium Act).

On 14 August 1986 Mr Pelladoah was tried by the Haarlem Regional Court (arrondissementsrechtbank); he admitted having "taken a suitcase off the luggage conveyor ... [which, when examined by customs,] turned out to contain a large quantity of a substance subsequently found to be heroin".

The Regional Court gave judgment on 21 August 1986, acquitting Mr Pelladoah of bringing a quantity of heroin into the country with criminal intent, but finding him guilty of doing so without criminal intent; it sentenced him to six months’ detention. By the same judgment it ordered his immediate release as he had already spent that length of time in detention on remand.

12; Both the prosecution and the defence appealed against the Regional Court’s judgment to the Amsterdam Court of Appeal. The applicant was expelled from the Netherlands pursuant to the Aliens Act (Vreemdelingenwet) before the appeals were heard.

The Amsterdam Court of Appeal held a hearing in the case on 10 February 1987. The official record of the hearing states that Mr Pelladoah was declared to be in default and contains the following passage:

"Mr K. [counsel for Mr Pelladoah] declares - in essence - : ... I request the court to allow me to conduct the defence, as my client, in view of his place of residence, is unable to appear at the hearing."

The Court of Appeal refused this request since "no compelling reason (klemmende reden) had become apparent" to allow it.

Witnesses were heard; the prosecution was allowed to question them but Mr Pelladoah’s lawyer was not.

The Court of Appeal gave judgment on 24 February 1987. In view of information to the effect that an extensive investigation into the drugs trade was under way in Mauritius, in the course of which Mr Pelladoah had made statements to the Mauritian authorities, the Court of Appeal held that the case had not been fully examined and ordered the case to be reheard. A new summons was issued for Mr Pelladoah to appear.

The second hearing of the Court of Appeal in the case was held on 20 November 1987. Since two of the three judges had not been present at the first hearing, the examination of the case was commenced anew.

This time Mr Pelladoah’s lawyer asked to be allowed to represent his client pursuant to section 270 of the Code of Criminal Procedure (Wetboek van Strafvordering, CCP - see paragraph 23 below) as regarded the alternative charge.

This request was refused because "it had not been stated, nor did it appear, that [the lawyer] had been specifically authorised by the accused to represent him; moreover, the primary charge, for which representation was not allowed, fell to be examined first".

One of the witnesses who had been heard at the previous hearing was heard again; the prosecution was granted the opportunity to question him and make observations as to his statements but again Mr Pelladoah’s lawyer was not.

The prosecution asked that Mr Pelladoah be sentenced to twelve years’ imprisonment.

The Court of Appeal then suspended the hearing until 22 January 1988 so as to enable the prosecution to have relevant parts of the report of the Mauritian authorities translated into Dutch.

The hearing was continued on 22 January 1988. The lawyer asked to be allowed to represent Mr Pelladoah at the hearing and submitted a written declaration authorising him to do so.

The Court of Appeal again refused to accede to the lawyer’s request on the ground that "the primary charge, which carried a sentence of imprisonment and for which, consequently, representation [was] not allowed, fell to be examined first".

On 5 February 1988 the Court of Appeal delivered a default judgment. It found Mr Pelladoah guilty on the primary charge, committed with criminal intent, and sentenced him to nine years’ imprisonment. According to its judgment, it based the sentence on "the seriousness of the act concerned and the circumstances in which it was committed, and the person of the accused"; it drew attention to the quantity of the heroin-containing substance brought into the country and observed that Mr Pelladoah had made unlawful use of his diplomatic passport.

Through his lawyer, Mr Pelladoah filed an appeal on points of law to the Supreme Court (Hoge Raad).

In his grounds of appeal (cassatiemiddelen) he complained essentially of the following: firstly, that at its first hearing on 10 February 1987 the Court of Appeal had erred in not considering the reason for the applicant’s failure to appear - the trouble and expense of a journey from Mauritius to the Netherlands - to be sufficiently "compelling"; secondly, that representation by the lawyer should have been allowed because even if criminal intent was proven the primary charge did not concern an indictable offence which carried a sentence of imprisonment.

The Supreme Court gave judgment on 24 October 1989.

As to the applicant’s first complaint, it observed that on 20 November 1987, a different chamber of the Court of Appeal had begun a completely new examination of the case and that the judgment of that court had therefore not been based on the hearing of 10 February 1987. It held that a complaint concerning the refusal of a request made at the latter hearing could therefore not entail the nullity of that judgment.

It also rejected the applicant’s second complaint, citing the legal provision according to which the primary charge, in case of criminal intent, constituted an indictable offence carrying a term of imprisonment.

In general, the accused - if he is not a juvenile (section 500 h of the Code of Criminal Procedure) - is not under an obligation to appear at the hearing.

The court must examine of its own motion the validity of the summons (geldigheid der dagvaarding - section 348 CCP). If, in spite of having been properly summoned, the accused does not appear at the hearing, the court will declare him to be in default (verstek verlenen) and proceed with the case in his absence. This is the rule even if the accused gives prior notice of his absence and asks for the hearing to be deferred (see, inter alia, the judgment of the Supreme Court of 26 February 1985, NJ (Nederlandse Jurisprudentie, Netherlands Law Reports) 1985, 567) or submits his defence in writing (see the judgment of the Supreme Court of 9 October 1990, NJ 1991, 133) and even if the accused cannot be blamed for his absence (see, inter alia, the judgments of the Supreme Court of 20 December 1977, NJ 1978, 226, and 10 October 1989, NJ 1990, 293). The court has the power to order the accused to appear or to be produced before it by the police (section 272 CCP) but it is rarely made use of unless the accused is a juvenile.

An accused who has been convicted in his absence by the first-instance court may file an objection (verzet - section 399 (1) CCP); this is an ordinary legal remedy in Netherlands law. Such an objection entitles the accused to a full retrial by the same court (section 403 CCP).

An objection may not be filed by an accused who has, or has had, the opportunity to appeal to a higher court with jurisdiction as to both fact and law (hoger beroep - section 399 (2) CCP). This means that the possibility of an objection is limited to those cases in which the law does not admit of such an appeal, i.e. where the sentence is nothing more serious than a small fine or where a summary offence has been dealt with in first instance by the Regional Court.

It follows from section 339 (1) CCP that no objection may be filed against a default judgment given on appeal.

In certain cases the accused may be represented in his absence. In cases which are dealt with at first instance by the Regional Court, this possibility exists if the act with which the accused is charged does not carry a prison sentence. However, the representative must be a lawyer who must state that he has been specifically empowered to act as such (bepaaldelijk daartoe gevolmachtigd - section 270 CCP).

At the hearing the procedural position of the representative is that of the accused himself, i.e. - even if the representative is a lawyer - not that of counsel (see, inter alia, the judgment of the Supreme Court of 25 April 1989, NJ 1990, 91). This means that like the accused, he may be cross-examined by the court and the prosecution and his statements may be used as evidence (see the judgment of the Supreme Court of 13 February 1951, NJ 1951, 476); he may also be assisted by a lawyer - or another lawyer - as counsel.

If representation is allowed at first instance before the Regional Court, it is also allowed on appeal before the Court of Appeal (section 415 CCP).

The question - which was in dispute among learned writers - whether the defendant, having been declared in default, is entitled to have his defence conducted for him by counsel was decided by the Supreme Court in its judgment of 23 November 1971 (NJ 1972, 293). Although the Procurator General (procureur-generaal) had suggested an answer in the affirmative, the Supreme Court came to the opposite conclusion. It reasoned that, were such an entitlement to be recognised, trial in absentia would take on an adversarial character incompatible with the basic idea of the Code of Criminal Procedure that a defendant who had been declared in default and convicted might always file an objection if he felt that he would not have been convicted had the court heard his defence. The Supreme Court went on to hold that it was true that since the introduction of the Code of Criminal Procedure the right to file an objection had been considerably curtailed, but pointed out that in so doing the legislature had not changed the character of trial in absentia. In conclusion, no section of the Code of Criminal Procedure nor any principle of unwritten law entitled a defendant who had been declared in default to have his defence conducted in his absence by counsel.

The Supreme Court has accepted, however, that a trial court may, at its discretion, allow counsel to speak in defence of an accused who has been declared in default. This discretion is quite frequently made use of. The Supreme Court strictly maintains the rule that if in such cases a trial court allows counsel to speak at all, it must afford him all rights available to the defence. It may not impose any limitations as to what subjects he may address (judgment of 19 May 1987, NJ 1988, 217); it may not deny him the right to speak last (judgment of 22 March 1988, NJ 1989, 13); if there are witnesses, counsel must be permitted to cross-examine them (judgment of 28 May 1991, NJ 1991, 729).

In principle the Supreme Court has held to its rule (see paragraph 24 above) that a defendant who has been declared in default is not entitled to have his defence conducted by counsel, but since its judgment of 26 February 1980 (NJ 1980, 246) it is its established case-law that there is one exception: in that judgment, it ruled, on the basis of, inter alia, Article 6 (art. 6) of the Convention, that a trial court is obliged to allow counsel to conduct the defence of an accused who has been declared in default if it is of the opinion that "compelling reasons" prevent the accused from appearing at the hearing and it sees no reason to defer its examination of the case. The Supreme Court has accepted the corollary that counsel should in any case, if he so requests, be allowed the opportunity to argue that such reasons exist (judgments of 10 October 1989, NJ 1990, 293, and 19 December 1989, NJ 1990, 407).

The Supreme Court, in its judgment of 16 February 1988 (NJ 1988, 794), has held that a "compelling reason" exists not only if it is impossible for the accused to appear, but also if such an important interest is at stake for the accused that - in view of all circumstances that may be considered relevant - he cannot reasonably be expected to appear for trial and may therefore expect either that his trial will be adjourned until some later time when he will be able to attend or that his counsel will be allowed to conduct the defence.

In its judgment of 30 November 1993, DD (Delikt en Delinkwent, Offence and Offender) 94.147, Bijl. NJB (case-law supplement to the Nederlands Juristenblad, Netherlands Law Review, 14 January 1994, no. 2, p. 17), the Supreme Court has recognised that the expulsion of the accused pursuant to the Aliens Act generally constitutes a "compelling reason" for his absence at the trial.

If counsel wishes to act for the defence in the absence of his client, he should expressly ask for permission to do so. His presence alone is not sufficient (see, inter alia, the judgments of the Supreme Court of 14 November 1986, NJ 1987, 862; 25 November 1986, NJ 1987, 686; 8 December 1987, NJ 1988, 704; 18 September 1989, NJ 1990, 145; 14 December 1993, DD 94.166). Neither is a request made by counsel for the hearing to be deferred, as was held in, inter alia, the Supreme Court’s judgment of 21 December 1993, DD 94.176.


JENIK  v. AUSTRIA AND OTHER APPLICATIONS

Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant Mr Wilhelm Jenik, is an Austrian national who was born in 1955 and lives in Vienna. He is represented by Mr H. Pochieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) are represented by their Agent, Ambassador Helmut Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

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

The applicant is unemployed and has been receiving welfare benefits for himself and his three children for approximately ten years. Under the Vienna Welfare Act (Wiener Sozialhilfegesetz), he is entitled to monthly payments and, in addition, to certain extra allowances and non-cash benefits as specified by law and upon specific request.

On 4 May 2004 the applicant filed a request with the Vienna Municipal Authority, seeking temporary pecuniary assistance (Geldaushilfe) in addition to the benefits already received, without specifying an amount. By an oral decision of the same day the Vienna Municipal Authority granted him 915.85 euros (EUR).

On 8 June 2004 the Vienna Municipal Authority, at the applicant’s request, provided him with a written copy of the above oral decision. The applicant, who was not satisfied with the amount granted, appealed on 29 June 2004.

On 15 November 2004 the Vienna Regional Government dismissed the applicant’s appeal and lowered the amount to EUR 901.20.

On 3 October 2005 the applicant filed a complaint against this decision with the Administrative Court and asked for an oral hearing. He argued that the Vienna Regional Government’s decision had been unlawful, in that the Regional Government had not been competent to take the impugned decision, its decision was not sufficiently reasoned and it had not applied the provisions of the Vienna Social Welfare Act correctly. The authorities should have granted him a rent allowance equivalent to the full amount of rent paid by him, because rents were high in Vienna and they had not objected to the applicant moving to a bigger apartment with his children.

On 15 December 2006 the Administrative Court dismissed the applicant’s complaint. It found that the Vienna Regional Government had been competent to take the impugned decision and had decided properly on the applicant’

In so far as the applicant had complained that he should have been entitled to full reimbursement of the rent paid by him, the Administrative Court found that, in accordance with the law, a rent allowance was linked to the specific size of an apartment, with a fixed maximum amount for certain sizes. Only in very special circumstances could a higher amount be granted. The applicant had, however, failed throughout the proceedings to give any specific reasons, corroborated by evidence, as to why he should receive a higher rent allowance. The mere indication that rents in Vienna were high was not a sufficient argument within the meaning of the Social Welfare Act. With regard to the applicant’s request for an oral hearing, the Administrative Court found that the present case concerned only questions of law which, in line with the Court’s case-law, did not necessitate a hearing, and accordingly dismissed the request.

On 15 June 2004 the applicant filed a request with the Vienna Municipal Authority, seeking an additional allowance from June 2004 onwards, without specifying an amount.

On 23 July 2004 the Vienna Municipal Authority granted his request, awarding him EUR 1,422.80. On 29 July 2004 the applicant, who was not satisfied with the amount granted, appealed.

On 23 November 2004 the Vienna Regional Government granted the applicant’s appeal and raised the amount to EUR 2,115.30.

On 3 October 2005 the applicant filed a complaint with the Administrative Court against this decision and requested an oral hearing. He submitted the same arguments as in his complaint to the Administrative Court concerning his request of 4 May 2004.

On 15 December 2006 the Administrative Court dismissed the applicant’s complaint and his request for an oral hearing for the same reasons as in its decision of the same day relating to the applicant’s request of 4 May 2004.

On 30 June 1998 the applicant filed a request with the Vienna Municipal Authority seeking an additional allowance from May 1998 onwards, reimbursement of the costs incurred for the repair of his washing machine and the payment of several electricity, gas and rent bills; this was granted by several decisions of the Vienna Municipal Authority, including those of 6 July 1998, 27 August 1998 and 15 December 1998.

On 4 July 2001 the Vienna Regional Government rejected the applicant’s request to transfer jurisdiction to the superior authority, on the ground that the Vienna Municipal Authority and the Regional Government itself had already decided on the matter and had granted the requested benefits.

On 6 September 2001 the applicant filed a complaint against this decision with the Administrative Court, together with an application alleging a breach of the administrative authorities’ duty to decide; he also requested legal aid and asked the court to hold a public hearing.

On 2 May 2002 the Administrative Court ordered the applicant to provide further information about his complaint. The applicant complied on 18 June 2002.

On 25 July 2007 the Administrative Court dismissed the applicant’s complaint; this decision was served on his counsel on 21 August 2007. The Administrative Court listed in detail the decisions taken by the Municipal Authority and the Regional Government between 24 April 1998 and 27 August 1998 in response to the numerous requests lodged by the applicant during this period, from which the Regional Government had concluded that the applicant’s request of 30 June 1998 had been decided upon. They had, therefore, taken proper decisions, satisfying all the statutory requirements. In such a situation the applicant could not merely claim that one of his requests had not been decided upon, but had to substantiate his allegations by referring to details. Since he had not done so, the Regional Government had acted correctly in dismissing his request for transfer of jurisdiction. With regard to the applicant’s request for an oral hearing, the Administrative Court found that the present case only concerned questions of law which, in line with the Court’s case-law, did not necessitate the holding of a hearing and therefore dismissed the request.

On 8 February 2001 the applicant filed a request for additional allowances for cultural and education matters.

On 1 March 2001 the Vienna Municipal Authority dismissed the applicant’s request of 8 February 2001.

On 4 May 2001 the Vienna Regional Government dismissed his appeal against this decision.

On 20 June 2001 the applicant filed a complaint with the Administrative Court against the Regional Government’s decision and requested legal aid.

On 3 August 2007 the Administrative Court remitted the complaint to the applicant in order for procedural defects to be remedied. At the same time it dismissed the request for legal aid, finding that, in view of its caselaw, the complaint had no prospect of success. In view of the refusal of legal aid the applicant did not pursue the proceedings.

On 12 December 2000 the applicant filed a request with the Vienna Municipal Authority, seeking an additional allowance, amounting to EUR 2000 for heating and electricity.

On 24 January 2001 the Vienna Municipal Authority dismissed his request, and on 20 June 2001 the Vienna Regional Government dismissed his appeal.

Having been granted legal aid, the applicant filed a complaint with the Administrative Court against that decision on 17 June 2002.

On 1 March 2001 the applicant filed a request for an additional allowance for heating and electricity, amounting to EUR 63.80.

On 8 March 2001 the Vienna Municipal Authority dismissed his request, and, on 12 September 2001, the Vienna Regional Government dismissed his appeal.

Having been granted legal aid, the applicant filed a complaint against this decision with the Administrative Court on 17 July 2002.

On 2 February 2001 the applicant filed a request for an additional allowance for heating and electricity, amounting to EUR 65.40 per month.

On 1 March 2001 the Vienna Municipal Authority dismissed his request, and, on 19 September 2001, the Vienna Regional Government dismissed his appeal.

On 14 December 2001 the Constitutional Court dismissed the applicant’s request for legal aid, considering that, in view of its case-law, the complaint had no prospect of success.

On 7 June 2002, having been granted legal aid, the applicant filed a complaint with the Administrative Court against the Regional Government’s decision.

On 27 September 2007 the Administrative Court dismissed the complaint. That decision was served on the applicant’s counsel on 17 October 2007.

On 12 June 1997 the applicant filed a request with the Vienna Municipal Authority, seeking an additional allowance for the period from June until July 1997.

On 23 May 2001 the Vienna Regional Government granted the applicant’s request of 20 February 2001 to transfer jurisdiction to the superior authority on the ground of the Vienna Municipal Authority’s failure to decide; being competent to decide the matter itself, it dismissed the applicant’s request by a decision of the same day.

On 19 June 2002, having been granted legal aid, the applicant filed a complaint with the Administrative Court against this decision and asked the court to hold a public hearing. He argued that the authority had incorrectly applied the law and had not properly reasoned its decision, and that the facts of the case needed to be supplemented, since the calculation of his resources had taken into account alimony payments for his son W. from his former wife which he had not actually received. This point therefore needed to be further developed.

On 27 September 2007 the Administrative Court dismissed the applicant’s complaint without having held a hearing. The Administrative Court found that the authority had properly reasoned its decision and had applied correctly the relevant provisions of the Vienna Social Welfare Act. With regard to the applicant’s argument that the authority should not have taken account of alimony payments from his former wife for his son W., the Administrative Court found that, even if it accepted the applicant’s position, namely that he had not received payments to which he had been entitled and that they should not therefore be taken into account when assessing his income, that income was still above the statutory limit (Richtsatz), so that he was not entitled to an additional allowance. Lastly, referring to the Court’s case-law, the Administrative Court found that in the present case it had only to deal with questions of law which could adequately be resolved on the basis of the case file and the parties’ written observations, and therefore dismissed the request for a hearing.

On 20 February 2000 the applicant filed a request with the Vienna Municipal Authority, seeking an additional allowance for heating costs from October 1999 onwards.

On 8 February 2001 the Vienna Regional Government granted the applicant’s request of 7 September 2000 to transfer jurisdiction to the superior authority on account of the Vienna Municipal Authority’s failure to decide, and at the same time granted an additional allowance amounting to 3,438 Austrian shillings (ATS - EUR 250).

On 9 May 2001, having been granted legal aid, the applicant filed a complaint with the Administrative Court against that decision.

On 27 September 2007 the Administrative Court dismissed the applicant’s complaint. That decision was served on the applicant’s counsel on 17 October 2007.

On 11 and 23 November 2004 the applicant filed requests for reimbursement of the expenses incurred in the purchase of a Christmas tree (EUR 35) and an Advent wreath (Adventskranz – EUR 7.90).

On 15 December 2004 the Vienna Municipal Authority dismissed these requests, finding that as this kind of expense was already covered by the monthly payment received by the applicant, additional grants could not be made.

On 17 February 2005 the Vienna Independent Administrative Panel dismissed the applicant’s appeal against this decision, but corrected the first instance’s decision to the effect that the applicant’s requests were rejected. It did not hold a hearing.

On 27 September 2005 the Constitutional Court dismissed the applicant’s request for legal aid of 5 October 2005, finding that, in view of its case-law on the matter, the complaint had no prospect of success.

On 5 August 2005 the Administrative Court granted the applicant legal aid.

On 21 October 2005 the applicant filed a complaint with the Administrative Court; on 15 November 2005 he filed a complaint with the Constitutional Court.

On 8 March 2006 the Constitutional Court declined to deal with the complaint, as did the Administrative Court on 2 July 2008.


MORAVIA SHOP INVEST, S.R.O. v. THE CZECH REPUBLIC

Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicant, Moravia Shop Invest, s.r.o., is a private company incorporated under Czech law with its head office in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.

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

On 10 May 2000 the applicant company instituted planning proceedings (územní řízení), seeking the delivery of a planning decision on the location of a commercial building.

By a public notice (veřejná vyhláška) of 7 August 2000 the Local Planning and Construction Office announced the commencement of the planning proceedings, but suspended them by a public notice of 11 October 2000 until it would be provided with a final judgment of the Brno Municipal Court (městský soud) relating to the ownership title to some of the real estates involved in the planning proceedings. This public notice was put on the notice board on 17 October 2000.

On 19 October 2000 the applicant company filed a complaint alleging inactivity on the part of the Planning and Construction Office, pursuant to Article 50 of Act no. 71/1967 on the Administrative Procedure which provided for measures against inactivity of administrative authorities. On 1 November 2000 the Brno Metropolitan Office (magistrát města) dismissed the applicant company’s complaint, sharing the opinion of the Local Planning and Construction Office that the planning proceedings could be resumed after the judicial proceedings would be terminated upon a final judgment. This decision was notified to the applicant company’s representative on 9 November 2000.

On 15 November 2000 the Metropolitan Office rejected the applicant company’s request for review of the decision of 11 October 2000 pursuant to Article 65 of Act no. 71/1967 which provided for review of a decision outside the formal appeal procedure (přezkoumání rozhodnutí mimo odvolací řízení).

On 11 January 2001 the applicant company lodged a constitutional appeal (ústavní stížnost) in which it complained, under Articles 36 and 38 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) and Article 6 of the Convention, of the inactivity of the administrative authorities as well as the Local Planning and Construction Office’s decision of 11 October 2000.

In a decision of 11 June 2002, served on the applicant company’s lawyer on 18 June 2002, the Constitutional Court dismissed the applicant’s constitutional appeal as having been filed outside the sixty-day statutory time-limit provided for in section 72(2) of the Constitutional Court Act finding that the company’s request for review under Article 65 of Act no. 71/1967 did not constitute a remedy for the purpose of section 72(2). Accordingly, the time-limit laid down for introducing a constitutional appeal had started running on 9 November 2000, on the date of the notification of the Metropolitan Office’s decision of 1 November 2000 to the applicant company’s representative, and had expired on 8 January 2001.

The Constitutional Court added that the constitutional appeal had been filed outside the time-limit also in respect of the applicant company’s request to quash the Local Planning and Construction Office’s decision of 11 October 2000.

On 31 May 2004 the Local Planning and Construction issued, in favour of a third private company, a planning decision on the location of a construction partly situated on the lands involved in the planning proceedings initiated by the applicant company in May 2000. The latter appealed, but on 6 August 2004 the Metropolitan Office upheld the planning decision.

On 8 April 1998 A., a private company incorporated under Czech law, instituted proceedings against the applicant company seeking to determine the title to the real estates involved in the planning proceedings instituted by the applicant company in May 2000.

On 15 October 2004 the Municipal Court found that A. was the owner of these real estates. The Regional Court upheld this judgment on 12 July 2005.

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


The applicant, John Bland, is a United Kingdom national, who was born on 12 April 1940 and lives in Cowling, North Yorkshire.

The applicant applied to the Benefits Agency for a retirement pension, but was informed, by a letter dated 17 May 2000, that the Agency would not consider his claim until four months before his sixty-fifth birthday. At present, women in the United Kingdom become eligible for a State pension at the age of sixty, whereas men are not eligible until sixty five.

In their Observations, the Government submitted that the applicant received a total of GBP 236.15 per week in State benefits, including income support, disability living allowance and invalid care allowance. They claimed that the applicant would be in an identical financial position if he were a woman, the only difference being that part of the money paid to him by the State would be paid in the form of retirement pension rather than income support.

The applicant has not denied the Government’s account of his income. He claims, however, that if he were in receipt of State pension he would in addition be entitled to other financial benefits, such as a bus pass and discounts in shops, restaurants and hairdressers.


The applicant was born in 1956 and lives in the village of Zhdimir in the Oryol Region of Russia.

On 8 July 2000 the applicant was arrested and detained on suspicion of having committed theft of aluminium wire. He was placed in a cell intended for the detention of administrative offenders (“KAZ”) at the Znamenskiy district police station in the village of Znamenskoye.

On 9 July 2000 the applicant lodged a complaint with an investigator of the Znamenskiy District Police Department of the Oryol Region, seeking to have the lawfulness of his arrest and detention challenged before the Znamenskiy District Court of the Oryol Region and requesting that he be released. The complaint was never sent to the court.

On 11 July 2000 the applicant was charged with theft. On the same day an order for his pre-trial detention was issued by the investigator and confirmed by the prosecutor of the Znamenskiy District of the Oryol Region.

On 13 July 2000 the applicant was transferred to detention facility no. 1 (Investigatory Isolation Ward no. 1) in the town of Oryol.

On 27 July and 9 August 2000 the applicant again complained about the unlawfulness of his arrest and detention, this time to the Sovetskiy District Court of Oryol. The complaints reached the court on 7 and 16 August 2000 respectively.

On 17 August 2000 the Sovetskiy District Court asked to be sent the case file for examination and scheduled a hearing for 23 August 2000. The hearing was not held, since the case file had not been communicated and the applicant had not been brought to court.

On 22 August 2000 the applicant's counsel wrote to the prosecutor of the Znamenskiy District of the Oryol Region, complaining about the investigator's failure to transfer the applicant's complaint of 9 July 2000, alleging unlawful detention, to a court. The prosecutor did not react.

On 5 September 2000 the Sovetskiy District Court held a hearing. The court found that the applicant's arrest and detention were unlawful and ordered that he be released directly from the courtroom.

On 18 December 2001 the Khotynetskiy District Court of the Oryol Region remitted the criminal case against the applicant on a charge of theft to the public prosecutor of the Znamenskiy District of the Oryol Region for further investigation.

By a decision of 12 September 2003 the Znamenskiy District Court of the Oryol Region discontinued criminal proceedings in view of the fact that the prosecution service had dropped the charges against the applicant.

The applicant brought proceedings for non-pecuniary damage caused as a result of his detention.

On 23 April 2004 the Zheleznodorozhniy District Court of Oryol held:

“...the court has come to the conclusion that the plaintiff Rytsarev was unlawfully held in custody during the preliminary investigation for a total of over 56 days..., which caused him moral and physical suffering. Furthermore, with regard to compensation for non-pecuniary damage, the court takes into account that, while detained in the KAZ of the Znamenskiy District of Oryol Region from 8 July to 12 July 2000 inclusive, Rytsarev was not given food since, according to the report for the period from 6 to 15 July 2000 by the public catering enterprise “Znamenskoye”, which supplies meals for persons detained in the Znamenskiy district police department's KAZ, food was not delivered to the district police department from 6 to 13 July 2000... In that connection, the court cannot account of two applications from the head of the district police department ... requesting two meals for detainees, since one is undated and the other is dated 11 July 2000, in other words four days after Rytsarev was detained, and they do not indicate for whom the meals were ordered... Equally, it follows from the application by ... Rytsarev's brother ... that food parcels ... [for Rytsarev] were not accepted from him or other relatives [by the Znamenskiy district police department's KAZ]. Only water and tea were accepted...”

The court awarded the applicant 30,000 Russian roubles (RUR) for nonpecuniary damage. The judgment came into force on 2 June 2004.

According to the Government, the sum awarded was paid to the applicant on 25 October 2004 in execution of the judgment. This was not denied by the applicant.

According to the applicant, he was given no water or food during his detention in the Znamenskiy district police station's KAZ from 8 to 12 July 2000 inclusive. His relatives were allowed to pass him only water and tea in two 1.5 l bottles on 9 July 2000. He was not taken out for exercise or permitted to go to a lavatory, which was located outside the building, as frequently as he needed.

Records of the applicant's questioning on 9 July 2000 contain a statement by him to the effect that he had not eaten anything since the previous day and had not been given water. Similarly, records of his questioning on 12 July 2000 contain statements that he had not been given anything to eat and drink, that he had been brought water by his brothers and that the investigator had offered to give him food in exchange for a guilty plea.

The applicant's complaint of 22 August 2000 about the conditions of his detention was dismissed on 23 August 2000 as illfounded by the Znamenskiy District prosecutor's office. However, the prosecutor noted that there had been no courtyard suitable for detainees' exercise on account of repair work.

In their observations of 3 October 2003 the Government submitted that daily meals had been served to detainees at lunchtime by the only catering enterprise in the village. The detainees had been served only tea for breakfast and dinner. Food from relatives was accepted without restrictions. According to police officers from the Znamenskiy district police station, the applicant refused meals provided by the police. However he received daily food parcels from his relatives, without restrictions. There were no limitations on drinking water. He did not complain about the shortage of water or food. Thus, when questioned by the district prosecutor on 11 July 2000 he made no complaints about his detention conditions. He asked only that a doctor be called since he felt unwell, and that request was granted. The applicant was regularly taken out to a lavatory. He was not tortured and no degrading acts were performed against him.

The Code of Criminal Procedure of 1960, in force at the material time, provided as follows:

“... The accused may ... appeal to a court against the unlawfulness and groundlessness of detention...”

“... When a prison administration receives a detainee's [appeal to a court against pre-trial detention], it must pass the [appeal] to the relevant court immediately, and, at any rate, not later than 24 hours after its receipt, having informed a public prosecutor...

If the appeal was lodged via the prison administration, the prosecutor must send [the documents confirming the lawfulness and validity of the detention as a measure of restraint] to the court within 24 hours of receipt of the prison administration's notification that the person concerned has lodged an appeal...”

“... A judge must review the lawfulness of the detention ... within three days of receipt of documents confirming the lawfulness and validity of the detention as a measure of restraint...”


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in 1956 and lives in San Cesareo (Rome).

P.C. was the owner of a flat in Rome, which she had let to A.C.

In a writ served on the tenant on 3 March 1986, the owner informed her of her intention to terminate the lease and summoned her to appear before the Rome Magistrate.

By a decision of 12 June 1986, which was made enforceable on 6 November 1986, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988.

On 30 April 1990, a notice was served on the tenant requiring her to vacate the premises.

On 18 May 1990, a notice was served on the tenant informing her that the order for possession would be enforced by a bailiff on 11 July 1990.

Between 11 July 1990 and 5 October 1999, the bailiff made thirty attempts to recover possession, but they proved unsuccessful as the owner and then the applicant were not entitled to police assistance in enforcing the order for possession.

On 21 June 1991, the applicant became the owner of the flat and pursued the enforcement proceedings

On 13 October 1997, he made a statutory declaration that he urgently required the premises as accommodation for himself.

On 2 May 2000, the applicant recovered possession of the flat.

Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.

As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.

The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.

The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.

Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:

“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”

However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.

In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.