David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant was born in 1933 and lives in Szczecin.

On 29 March 1989 M.B. instituted civil proceedings for the dissolution of a co-ownership before the Pruszków District Court.

On 21 March 1991 the case was transmitted to the Warsaw District Court.

On 12 August 1991 the parties to the proceedings (the applicant, A.A., M.A., W.A., J.N., ZB.A., ZD.A.) lodged with the court their proposal for the dissolution of the co-ownership.

On 15 April 1993 the court stayed the proceedings as M.B. had died. On 7 April 1995 M.B.'s representative requested the court to resume the proceedings since M.B.'s heirs had been determined by the Pruszków District Court's decision of 30 March 1995.

On 30 November 1995 the court summoned A.C. and A.C.R. (“the plaintiffs”) to participate in the proceedings.

Several subsequent hearings, namely of 30 November 1995, 20 February, 10 April and 4 June 1996 were adjourned as some of the parties had not been properly summoned.

On 12 September 1996 the court held a hearing and heard evidence from an expert as to the technical condition of the real property and possibilities of dividing it, and from some other parties, including the applicant.

On 30 December 1996 the court decided to obtain another expert opinion.

On 17 April 1998 the expert, W.K., submitted an evaluation report on the real property in question.

Two subsequent hearings, scheduled for 23 September and 25 November 1998, were adjourned as some of the parties had not been properly summoned.

On 3 February 1999 a hearing was held. The applicant stated that the plaintiffs had erroneously declared their shares in the co-ownership and he evoked in this context the real property sale contract concluded in 1972 between M.B. and A.C. (sellers) and the members of the applicant's family (buyers). The court adjourned the hearing and obliged the parties to substantiate the above statement within twenty-one days.

On 11 June 1999 the court adjourned a hearing as the applicant and some other parties failed to appear, although they had been properly summoned.

On 24 September 1999 the court adjourned a hearing as some of the parties had not been properly summoned and the applicant submitted a medical certificate justifying his absence.

On 17 November 1999 the court held a hearing and heard evidence from some of the parties to the proceedings.

On 26 November 1999 the court issued a preliminary decision (postanowienie wstępne) wherein it determined the co-owners and their shares in the real property.

On 7 February 2000 the applicant appealed against the above decision.

On an unspecified date the court requested the applicant to rectify the formal lacunae in his appeal. On 22 March 2000 the applicant complied with the court's order.

On 12 September 2000 the Warsaw Regional Court held a hearing and quashed the impugned decision.

On 25 April 2001 the court adjourned a hearing as some of the parties had not been properly summoned.

Between 13 June 2001 and 26 September 2002 no actions were taken by the court apart from dealing with A.A.'s request for legal aid.

On 26 September and 25 November 2002 hearings were held and the court heard evidence from the plaintiffs and the applicant.

On 3 June 2003 the court adjourned a hearing as one of the plaintiffs failed to appear although he had been properly summoned.

The applicant requested an inspection of the real property.

On 26 September 2003 the court summoned A.C. to specify his and A.C.R.'s shares in the co-ownership.

On 23 October 2003 and 14 January 2004 A.C. complied with the court's order.

On 16 July 2004 the court adjourned a hearing at the request of one of the plaintiffs and the expert.

On 16 September 2004 the court held a hearing and again heard evidence from the expert and summoned the parties to indicate the way in which the co-ownership should be dissolved.

On 29 September 2004 the applicant sought the withdrawal of the judge dealing with his case.

On 5 October 2004 the Pruszków District Court dismissed the applicant's request. The applicant lodged an interlocutory appeal against this decision.

On 22 March 2005 the Warsaw Regional Court dismissed the applicant's interlocutory appeal.

On 30 May 2005 a hearing was held at which some of the parties, including the applicant, requested the court to exempt them from court fees and appoint a legal-aid lawyer to represent them in future proceedings. The court ordered them to complete their request and submit information on their financial situation within seven days.

On 10 August 2005 the court dismissed the above request as neither the applicant nor the other parties had submitted any information on their financial standing.

On 21 October 2005 the court held a hearing. The applicant again challenged the ownership title of the plaintiffs.

On 28 November 2005 the court ordered another expert opinion. The applicant lodged an interlocutory appeal against this decision but it was rejected as inadmissible.

On 1 February 2006 the expert, A.S.M, submitted her opinion.

On 24 May 2006 the court granted the applicant's request for an inspection of the real property and adjourned the hearing, as in respect of one of the parties there was no proof that the summons had been served.

On the same date the court dismissed a request by the applicant motion to provide security for the claim by putting on deposit a sum equivalent to the rents collected from the current tenants of the property. The applicant's interlocutory appeal against this decision was rejected due to formal lacunae.

On 12 July 2006 an inspection of the real property took place.

Between 13 July 2006 and 7 July 2007 the court held three hearings at which it heard evidence from the parties and ordered them to indicate the manner in which the co-ownership should be dissolved.

On 27 July 2007 the court decided to obtain another expert opinion to establish the possibilities of creating individual premises in the disputed real property. The applicant appealed against this decision but his appeal was rejected as inadmissible.

On 5 September 2007 the expert returned the case file and informed the court that he would not be able to prepare the expert opinion for health reasons.

On 4 October 2007 the court sent the case file to another expert and ordered him to prepare an expert opinion within thirty days.

On 19 November 2007 the court allowed the expert's request for an extension of the time-limit for the submission of the expert opinion until 10 December 2007.

On 22 November 2007 the case file was sent to the Ministry of Justice in connection with the proceedings before the European Court of Human Rights.

On 11 December 2007 the expert submitted his opinion. The proceedings are pending.

On 1 December 2004 the applicant lodged a complaint under section 5 of 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”). On 9 February 2005 the Warsaw Regional Court confirmed that the proceedings in question had indeed been lengthy. The court considered that an award of 3,000 Polish zlotys (PLN) would be adequate (approx. 738 euros (EUR), according to the exchange rate at the relevant time). The court stated, inter alia, that the measures taken by the District Court on 26 September 2003 and 31 May, 16 September and 20 December 2004 not only infringed the relevant provisions of the civil procedure code but also appeared to be futile, as some of them had had to be taken for a second time. The court further stated that the fact the District Court had failed to establish the scope of the claim for fifteen years could only be explained by the fact that the court had contributed to the excessive length of the proceedings.

As the proceedings continued to be lengthy, on 24 February 2006 the applicant lodged a second complaint under the 2004 Act. On 4 April 2006 the Warsaw Regional Court confirmed that the proceedings in question had been lengthy and ordered the Warsaw District Court to conduct an immediate examination of the applicant's motion for the inspection of the real property in question.

As the proceedings continued to be lengthy, on 5 April 2007 the applicant filed another complaint under the 2004 Act. On 22 May 2007 the Warsaw Regional Court dismissed the applicant's complaint on the ground that there had been no undue delay in the proceedings between 4 April 2006 (the date of the previous decision ascertaining that there had been an undue delay) and the time of the lodging of the complaint by the applicant.

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


The applicant, Roy Johnson, is a United Kingdom national, who was born in 1939 and living in Pennycomequick, Devon, England.

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

The applicant ran a trout farm in Liskeard, Cornwall, which had been built with money lent by Midland Bank plc (“the Bank”). He lived on the farm premises with his wife. In about 1989, the Bank made a further advance of 30,000 pounds sterling (GBP); this was increased to GBP 50,000 and then to GBP 90,000. The Bank’s lendings were secured by a legal charge on the property which entitled the Bank to claim possession of the property in the event that the applicant and his wife did not comply with an agreed payment schedule.

The applicant and his wife failed to make payments. On 24 February 1995, the Bank brought proceedings against the applicant and his wife seeking possession of the farm. It also claimed a monetary sum in the amount of the money still owed to it. By a late re-amendment of its Particulars of Claim, the Bank sought in the alternative a declaration that the property stood charged in equity (in the event that the court agreed with the applicant’s assertion that the legal charge was not valid).

The applicant and his wife initially filed a joint defence to the Bank’s claim and acted without legal representation. Subsequently, they ceased to co-operate formally and separate amended Defences were submitted. The applicant’s wife was seeking to argue that she had entered into the legal charge as a result of the undue influence of her husband, about which the Bank knew or should have known. In other aspects the applicant and his wife took identical positions, namely that the Bank’s legal charge was invalid because it was blank at the time of execution and that the Bank had increased the amount of money lent to them without consultation and without their authority. They also pursued an identical counterclaim, claiming a declaration that the legal charge was invalid, damages for deductions wrongly made for bank charges and damages for negligence on the basis that the Bank had exercised undue pressure on them to borrow money from it rather than the Halifax Building Society with which they had also been in negotiation.

In May 1996, the applicant and his wife separated.

The applicant and his wife sought separate representation. His wife was granted legal aid throughout the proceedings which followed. The applicant was granted legal aid for the purpose of defending the Bank’s claims and making a counterclaim from 15 August 1996 onwards. As was the standard practice, his legal aid certificate was limited to obtaining further evidence and counsel’s opinion on the merits of his defence and the merits and likely quantum of his counterclaim. It was necessary for the applicant to apply to extend his legal aid certificate if he wished legal representation for his trial.

In about late 1996 or early 1997, the trial was listed to start on 14 July 1997, and to take five days. On 10 May 1997, counsel for the applicant gave the opinion that, while there was a reasonable prospect of establishing that the legal charge was invalid having regard to the fact that the details of the property were entered into the document schedule after the applicant and his wife had signed, there was no defence to the monetary claim and the applicant would be required as a practical result to sell the farm to meet the monetary judgment. The applicant’s defence that he had not consented to the increase in the loan was entirely without substance while his counterclaim, even if well-founded (which was not the case), was only worth approximately GBP 2,000. He concluded that “it is not possible to say that it is reasonable for the Board to support [the applicant’s] case. I am quite satisfied that the costs of the defence of this action will far outweigh any benefit to the [applicant]”.

On 23 May 1997, the applicant’s application to extend legal aid for the trial was received by the Legal Aid Board. On 11 June 1997, the Legal Aid Board wrote to the applicant to inform him that it was considering whether to discharge his legal aid certificate because “in view of Counsel’s Opinion it is not considered you have a reasonable prospect of success in this action”. The letter indicated that if the applicant thought his legal aid certificate should not be discharged, he should write to the legal aid office within 14 days of the date of the letter, and stated that the Board had asked the applicant’s solicitor not to do any work in the meantime. The applicant received the letter on 18 June 1997.

On 21 June 1997, the applicant wrote to the Legal Aid Board stating why he considered his legal aid should not be discharged, submitting inter alia that:

“The case is extremely complex with volumes of evidence, and documents, over a three year period, with twenty court appearances to date on pre-trial matters and discovery. At present I do not have my files, and evidence, and would explain that I cannot cope with taking on such a mountain of paperwork, preparing my case, representing myself at such short notice, bearing in mind that the trial date is 14 July 1997 for five days.”

On 2 July 1997, the applicant’s legal aid certificate was discharged.

On 4 July 1997, the applicant sent the Legal Aid Board his notice of appeal against the decision to discharge his legal aid, and asked them to deal with the appeal without a hearing and using written information only.

On 14 July 1997, the trial began at Truro County Court, with the applicant representing himself. The Bank and the applicant’s wife were each represented by solicitors and counsel.

There had been two pre-trial directions hearings. On 4 June 1997, the judge had ordered that Mr S., the applicant’s solicitor at the time the charge was made, be permitted to lodge a statement and that the applicant’s accountant leave his working file in court. On 12 June 1997, the judge ordered that Mr S disclose his working file.

The trial concluded on 18 July 1997. On 22 July 1997, judgment was delivered in favour of the Bank, finding that the applicant’s wife had not been subject to undue influence by her husband, that the Bank’s loan had not been less advantageous than the one offered by the Halifax and that the legal charge entered into by the applicant and his wife was valid. The judge ordered that the applicant and his wife give up possession of the property by 19 August 1997 and pay the Bank the sum of GBP 151,521.10. He rejected the applicant’s application for leave to appeal to the Court of Appeal and also his application for a stay of execution of the possession order.

On 5 August 1997, the applicant appealed to the Court of Appeal against the order and applied for a stay of execution of its possession order. He was assisted by his former solicitors in this process under the Advice and Assistance or Green Form scheme (which provided for advice and assistance short of representation in court). His grounds of appeal were inter alia that the judge had erred in the orders made by him on 4 and 12 June 1997, alleging that the order concerning the accountant’s file had the result that the Bank and his wife’s lawyers had access to privileged documents and that Mr S. and a witness for the Bank had perjured themselves.

On 11 August 1997, the Legal Aid Board wrote to the applicant and indicated that his appeal would be dealt with shortly by the area committee. A second letter from the Board dated 11 August 1997 stated that the appeal would be considered by the area committee on 20 August 1997. On 12 August 1997, the applicant telephoned the Board. On 13 August 1997, the Board wrote to the applicant in connection with his appeal of 4 July 1997 against the discharge of his legal aid certificate. The letter stated: “I apologise for the fact that we did not action your faxed notice of appeal (received in this office on 4th July) prior to the Court Hearing on 14th July. I consider that we were at fault in either not processing the appeal prior to the hearing or, if that was not possible, at least notifying [the applicant] of that fact.” The letter indicated that the appeal would not be considered, as the court had found against the applicant, informed him that he could apply for legal aid in connection with the application for leave to appeal, and stated that his communication was being treated as a complaint under Stage I of the Legal Aid Board’s complaints procedure.

On 21 August 1997, the Civil Appeals Office acknowledged the applicant’s application for leave to appeal and informed him that his application might be decided by a Lord Justice without a hearing, but that in most cases the Court of Appeal would direct that the application be listed for oral hearing in court, and that if the Court of Appeal directed an oral hearing, the applicant would be notified in due course of the hearing date.

The applicant and his wife did not give up possession of their property as ordered and, accordinly, on 2 September 1997 the Bank obtained a warrant of possession, authorising an eviction, if necessary, on 24 September 1997. It appears that the applicant rang the Civil Appeals Office to inform them of this fact and to impress upon them the urgency of holding a hearing in his case. It appears that the Civil Appeals Office informed him that the Court of Appeal would decide whether or not it would grant leave to appeal or a stay before 24 September 1997.

On 4 September 1997, the applicant telephoned the Legal Aid Board indicating that he wished to appeal against the refusal to grant him legal aid and was notified that his appeal would be heard on 24 September 1997. On about 4 September 1997, the applicant notified the Civil Appeals Office by telephone and in writing that his application for legal aid had been refused, and that his appeal against the refusal was due to be heard on 24 September 1997.

On 5 September 1997, the applicant completed a notice of appeal against the refusal to grant him legal aid in connection with his appeal. Also on 5 September 1997, the applicant’s former solicitors wrote to the Legal Aid Board in support of the applicant’s appeal.

On 17 September 1997, the Court of Appeal wrote to the applicant notifying him that his application for leave to appeal would be heard on 19 September 1997. The applicant received the letter on 18 September 1997. Also on 18 September 1997, the Legal Aid Board wrote to the applicant and confirmed that his appeal against the refusal to grant legal aid in connection with his appeal would be heard on 24 September 1997.

On 19 September 1997, the applicant travelled to London and presented his application for leave to appeal in person, with the assistance of a McKenzie friend (an unqualified adviser) whose first acquaintance with the case was the morning of the appeal. Although the application for leave to appeal was ex parte, the Bank was represented by counsel at the hearing of the application. The applicant applied for an adjournment of the application for leave to appeal, in order that his appeal against the refusal to grant legal aid might be heard. The Court of Appeal refused to grant an adjournment but indicated that if, in the course of the application, it appeared that legal representation was necessary, they would keep in mind the application for an adjournment. After hearing the applicant, the Court of Appeal dismissed the application for leave to appeal. It noted insofar as he appealed concerning the orders of 4 and 12 June 1997, he should have appealed against those orders at the time. As regarded the allegations that privileged documents were disclosed, it found that there was no evidence that any such material from his accountant had been referred to by the judge or taken into account by him in reaching his decision and noted that no objection had been made during the trial to the use of any of those documents. It also found that no reference had been made to privileged material held by the solicitor Mr S. beyond what was inevitable and proper in the circumstances.

On 23 September 1997, the applicant telephoned the Legal Aid Board and informed them that he would not be pursuing his appeal against the refusal of legal aid for the appeal, as the application for leave to appeal had been dismissed.

The Bank took possession of the farm pursuant to the warrant for possession, and sold it in order to recover the moneys due to them under the legal charge.

In order to qualify for legal aid at the relevant time, the applicant had to satisfy the Legal Aid Board:

(1) that he was financially eligible for legal aid in that his disposable income and capital fell below that prescribed for these purposes (reg. 27 of the Civil Legal Aid (General) Regulations 1989, SI 1989/339);

(2) that he had reasonable grounds for taking or defending the proceedings or making any counterclaim therein (section 15(2) of the Legal Aid Act 1988 (the “legal merits” test);


Violation of Art. 5-1;No violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award

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

The applicant was born in 1963 and prior to the events in question he had been living in Alicante. He is currently serving a prison sentence in Malta.

On 5 August 2004, the applicant was arrested and detained in Spain following a request for his extradition (quoting the Council of Europe’s European Convention on Extradition) by the Maltese authorities, pursuant to an arrest warrant issued by the Court of Magistrates as a Court of Criminal Inquiry.

The arrest warrant had been issued on the basis of an allegation that the applicant had in Spain conspired with another person or persons in Spain to transport drugs to Malta.

While detained in Spain, the applicant, through his legal counsel, lodged proceedings in Malta contesting the legality of the arrest warrant.

On 12 October 2004, while he was in Spain, the applicant, through his legal counsel, requested the Court of Magistrates to re-examine the lawfulness of his arrest on the ground that it had not been competent to issue the warrant and that Malta did not have jurisdiction to try the applicant.

On 28 October 2004 the Court of Magistrates rejected both claims. It held that the facts which formed the basis of the charges against the applicant amounted to a crime falling under the Maltese authorities’ jurisdiction and that in the referral stage (“rinviju”), it had been competent to issue the warrant.

On 29 October 2004 the applicant complained under Article 5 §§ 1 and 4 of the Convention. He maintained that his arrest in Spain had occurred consequent to an arrest warrant which was unlawful on the grounds, first, that the Maltese Courts did not have jurisdiction on the facts as alleged. According to section 5 of the Maltese Criminal Code (hereinafter “CC”), the Maltese courts had jurisdiction over foreigners acting outside Maltese territory only in cases specifically provided for in law and this could not be extended by means of interpretation. There was no specific law and none of the legal provisions cited in the arrest warrant (section 22 (1) (f) of the Dangerous Drugs Ordinance and the 120 A (1) (f) of the Medical and Kindred Professions Ordinance) referred to the alleged facts. Secondly, the applicant claimed that the warrant had been issued by an authority which was not competent to issue it. Moreover, he complained that the Court of Magistrates which had been requested to examine speedily the lawfulness of his arrest did not satisfy the requirements of Article 5 § 4 of the Convention in so far as, according to section 409A of the CC (see paragraph 35 below), only the prosecution had a right of appeal, not the accused. He requested the court to uphold the alleged violations, revoke the arrest warrant and the consequential request for extradition, and to grant him compensation.

On 12 November 2004 the Civil Court partly upheld the applicant’s claims. It held that the arrest warrant of 5 February 2004 should be rescinded as the court issuing it had acted ultra vires. Indeed, the Court of Criminal Inquiry in its referral stage had no competence to issue the arrest warrant, even more so since the issuing of such warrant had not been requested by the Attorney General and such action did not fall within the ambit of Article 405 of the CC regarding the examination of witnesses; therefore the applicant’s arrest was devoid of any legal basis and contrary to Article 5 § 1 and the applicant should accordingly be released. Moreover, it held that the Court of Magistrates when examining the lawfulness of the arrest warrant did not comply with the requirements of Article 5 § 4 in so far as it granted the Attorney General (hereinafter “AG”) an “appeal” and no equivalent remedy to the applicant. The Civil Court granted the applicant compensation amounting to 250 Maltese Liri (MTL – approximately 600 euros (EUR)).

However, it held that according to the CC the Maltese courts had jurisdiction over any individual who committed a crime expressly stated in law even if such crime had been committed outside Malta. In the present case there was no doubt that the relevant laws, namely section 22 (1), (e) and (f) of the Dangerous Drugs Ordinance and section 120 A (1), (e) and (f) of the Medical and Kindred Professions Ordinance (see paragraphs 2930 below), which were similarly worded, covered crimes considered as such in Malta, notwithstanding that they had occurred outside Malta. While subsection (e) covered only persons who were Maltese citizens or residents, subsection (f) covered any person in Malta or outside the territory of Malta, and was not a follow-up to the previous subsection; therefore it did not carry the same limitations. Had the legislator wanted to limit subsection (f) he would have done so explicitly but no such qualification had been made. Further, nothing else provided reason to believe that subsection (f) had to be read as a continuation of subsection (e); indeed, the use of the word “or” suggested that the contrary interpretation applied. Moreover, since subsection (f) particularly contemplated crimes against the Maltese State and which were to the detriment of Maltese society, it was plausible to infer that there was no qualification to the subsection.

On 12 November 2004 the applicant appealed requesting that his arrest be declared unlawful on the additional ground that Malta lacked jurisdiction to try a British national, who was not a permanent resident in Malta, for acts committed outside Malta and that the alleged conspiracy conferred jurisdiction solely on those who had acted on or from Maltese soil. Moreover, he complained that the sum granted by way of compensation was too low in view of the fact that he had been under arrest since August.

According to the Government, on the same day Interpol Malta informed Interpol Spain by e-mail that the warrant had been declared unlawful. However, in line with the Government’s interpretation, Interpol Spain was also informed that the judgment was not final and had no effect until the appeal, yet to be lodged, had been decided.

In the meantime the AG lodged a cross-appeal.

It appears that the applicant’s legal counsel had informed the Spanish authorities of the judgment in favour of the applicant and had requested the applicant’s release on this basis. According to the Government, on 16 November 2004 a Spanish court decided that the applicant’s release was a matter to be decided on the basis of Spanish law without any reference to Maltese law. The applicant was not released.

Consequently, pending the main constitutional proceedings, on 16 November 2004, the applicant filed another application with the Constitutional Court requesting the execution of his release according to the judgment of 12 November 2004. He claimed that according to Maltese law, namely section 267 of the Code of Organisation and Civil Procedure (hereinafter “COCP”), a judgment declaring an arrest unlawful was immediately enforceable, notwithstanding any pending appeal.

On 17 November 2004 the AG filed a reply making reference to Article 22 of the European Convention on Extradition (hereinafter “ECE”), submitting, inter alia, that section 267 of the COCP was not applicable to situations such as the present where a person was detained in a foreign jurisdiction under the law of that jurisdiction. Moreover, although the applicant had so requested, the judgment of 12 November 2004 had not ordered the cancellation of the extradition request.

On 22 November 2004 the applicant limited his ancillary claim lodged on 16 November 2004 to the applicability of section 267 of the COCP, thus de facto withdrawing his request for release under these proceedings in favour of a more generic request on the applicability of the law. The Constitutional Court upheld the applicant’s request stating that the judgment at issue was indeed provisionally enforceable in terms of section 267 (b) of the COCP in so far as it provided remedies against unlawful arrest.

On 23 November 2004 the Constitutional Court, dealing with the main proceedings, delivered judgment on the applicant’s appeal and the AG’s cross-appeal. It revoked the first judgment in so far as it had found inter alia a violation of Article 5 § 4, and in so far as it had ordered the applicant’s release. It ruled that the arrest warrant was null and void, but only on the ground that the Court of Magistrates in the referral stage (“rinviju”) had not been competent to issue the warrant and that consequently the arrest was unlawful and in violation of Article 5 § 1. However,Malta, his release could not be ordered by the court. Furthermore, in its view, the arrest warrant had been validly grounded in law. Notwithstanding the general provisions of the CC, particularly section 48 A, which might have provided otherwise, section 22 (1), (e) and (f) of the Dangerous Drugs Ordinance and section 120 A (1), (e) and (f) of the Medical and Kindred Professions Ordinance prevailed, according to section 5 of the CC, given that they were special laws. Nevertheless, the Constitutional Court could not usurp the function of the Criminal Court, which was the only court competent to decide on the matter of jurisdiction. Having regard to the fact that the unlawfulness was solely due to a procedural defect, it found the compensation granted by the first court to be adequate and confirmed the sum. It further held that the parties were to bear their own costs and advised that a new warrant under section 355 V of the CC could be issued and would be perfectly legal.

On 22 November 2004 the applicant was granted bail by the Spanish authorities with the obligation to report daily to a police station. His passport was impounded.

On 1 December 2004 the applicant was re-arrested by the Spanish authorities on the basis of a new request by the Maltese authorities, but as a continuation of the previous extradition proceedings.

On 28 March 2005, the Audiencia Nacional in Spain confirmed the applicant’s extradition to Malta. On 9 September 2005 the applicant was extradited to Malta to stand trial.

By a decision of the Court of Magistrates of 23 February 2006, and by the judgment of the Criminal Court of 18 July 2007 confirmed by the Criminal Court of Appeal judgment of 18 January 2008, it was held that the Maltese Courts had the necessary jurisdiction over the facts of which the applicant was accused. The latter judgment found the applicant guilty of the said charges. The applicant has been in prison ever since.

On 9 August 2006 the applicant, who at the time was under house arrest in Malta, also introduced another application with the Court with further complaints regarding later stages of his proceedings in Malta (application no. 33740/06).

Section 5 of the Maltese Criminal Code, in so far as relevant reads as follows:

“(1) Saving any other special provision of this Code or of any other law conferring jurisdiction upon the courts in Malta to try offences, a criminal action may be prosecuted in Malta –

(i) against any person who commits an offence which, by express provision of law, constitutes an offence even when committed outside Malta.”

Section 48 (1) of the Maltese Criminal Code, reads as follows:

“Whosoever in Malta conspires with one or more persons in Malta or outside Malta for the purpose of committing any crime in Malta liable to a punishment of imprisonment, not being a crime in Malta under the Press Act, shall be guilty of the offence of conspiracy to commit that offence.”

Section 22 of the Dangerous Drugs Ordinance, Chapter 101 of the Laws of Malta, in so far as relevant, reads as follows:

“(1) Any person –

(d) who in Malta aids,... ;or

(e) being a citizen of Malta or a permanent resident in Malta, who in any place outside Malta does any act which if committed in Malta would constitute an offence of selling or dealing in a drug against this Ordinance or an offence under paragraph (f); or

(f) who with another one or more persons in Malta or outside Malta conspires for the purposes of selling or dealing in a drug in these Islands against the provisions of this Ordinance or who promotes, constitutes, organises or finances the conspiracy, shall be guilty of an offence against this Ordinance.”

This same wording is reproduced in section 120 A (1), (e) and (f) of the Medical and Kindred Professions Ordinance, Chapter 31 of the Laws of Malta, in defining the offences related to psychotropic drugs.

As regards practice, it appears that the Maltese courts have regularly convicted persons (particularly drug couriers) of the crime of conspiracy where the offence is alleged to have taken place outside Malta (see, for example, The Republic of Malta v. Gregory Robert Eyre, 4 October 2004 and The Republic of Malta v. Winnie Wanjiku Kanmaz, 5 October 2004).

The Council of Europe’s European Convention on Extradition (“ECE”) (Paris, 1957) which came into force in respect of Malta ninety days after its ratification on 13 July 1979, requires that a request made by a requesting State shall be supported by the original or a copy of the warrant of arrest issued in accordance with the procedure laid down in the law of the requesting Party. Except where the ECE otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party (extraditing State). Articles 12 and 22 of the said Convention, in so far as relevant, read as follows:

“The request shall be in writing and shall be communicated through diplomatic channels. Other means of communication may be arranged by direct agreement between two or more Parties.

The request shall be supported by:

the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party; ...”

“Except where this Convention otherwise provides, the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested Party.”

The European Union (“EU”) Member States now make use of a European arrest warrant (“EAW”), which discontinues the use of the extradition procedure. The new procedure takes the form of a judicial decision issued by a EU Member State with a view to the arrest and surrender by another Member State of a person being sought in connection with a criminal prosecution or a custodial sentence. The European Union scheme makes procedures faster and simpler without requiring any political involvement. The EU Member States were required to introduce legislation to bring the EAW into force by 1 January 2004. However, Malta having joined the European Union at a later date, this legislation came into force there on 7 June 2004 by virtue of the Extradition (Designated Foreign Countries) Order, 2004.

As regards the remedies against unlawful detention

Section 409A of the Maltese Criminal Code regarding an application by a person in custody alleging unlawful detention, reads as follows:

“ (1) Any person who alleges he is being unlawfully detained under the authority of the police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to the Court of Magistrates, which shall have the same powers which that court has as a court of criminal inquiry, demanding his release from custody. Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on the same day of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained. The Commissioner of Police or public authority, as the case may be, may file a reply by not later than the day of the hearing.

(2) On the day appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant.

(3) If, having heard the evidence produced and the submissions made by the applicant and respondents, the court finds that the continued detention of the applicant is not founded on any provision of this Code or of any other law which authorises the arrest and detention of the applicant it shall allow the application. Otherwise the court shall refuse the application.

(4) Where the court decides to allow the application the record of the proceedings including a copy of the court’s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may, within two working days from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this Code or of any other law, apply to the Criminal Court to obtain the re-arrest and continued detention of the person so released from custody. The record of the proceedings and the court’s decision transmitted to the Attorney General under the provisions of this subarticle shall be filed together with the application by the Attorney General to the Criminal Court.”

Section 267 of the Code of Organisation and Civil Procedure, in so far as relevant reads as follows:

“The following shall be in all cases provisionally enforceable:

(b) any judgment ... providing remedies against illegal arrest...;”

As regards the role of the Constitutional Courts

The European Convention Act, in so far as relevant, reads as follows:

Article 3

“(4) The Constitutional Court shall ... have jurisdiction to hear and determine all appeals under this Act and exercise all such powers as are conferred on it by this Act.”

Article 4

“(1) Any person who alleges that any of the Human Rights and Fundamental Freedoms, has been, is being or is likely to be contravened in relation to him, or such other person as the Civil Court, First Hall, in Malta may appoint at the instance of any person who so alleges, may, without prejudice to any other action with respect to the same matter that is lawfully available, apply to the Civil Court, First Hall, for redress.

(2) The Civil Court, First Hall, shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub-article (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement, of the Human Rights and Fundamental Freedoms to the enjoyment of which the person concerned is entitled:

Provided that the court may, if it considers it desirable so to do, decline to exercise its powers under this sub-article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law.

(4) Any party to proceedings brought in the Civil Court, First Hall, in pursuance of this article shall have a right of appeal to the Constitutional Court.”

Consequently, a complaint must be lodged with both instances before it is introduced with the Strasbourg Court. However, in Sabeur Ben Ali v. Malta, no. 35892/97, 29 June 2000, § 40, the Court held that this procedure was rather cumbersome and therefore lodging a constitutional application would not have ensured a speedy review of the lawfulness of the applicant’s detention. Consequently in the cited case the applicant had not had at his disposal, under domestic law, a remedy for challenging the lawfulness of his detention under Article 5 § 4.


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

The applicant was born in 1950 and lives in Koluszki, Poland.

Between 1991 and 1993 the applicant was the Head of the Civic Gasification Committee of the “Łódzkie” housing co-operative (Społeczny Komitet Gazyfikacji “Os. Łódzkie”).

In July 1995 the Board of the Koluszki Commune (Zarząd Miasta i Gminy) requested the prosecution service to initiate an investigation against the applicant for not returning documents concerning the Committee.

On 16 October 1995 the applicant was charged with having hidden the documents.

On 2 January 1996 the applicant was indicted before the Tomaszów Mazowiecki District Court (Sąd Rejonowy).

On 9 May and 13 November 1996 the District Court held hearings. On the latter date it gave a judgment in which it found that the applicant had committed the offence. The trial court conditionally discontinued the proceedings. The applicant was given a term of probation of one year and ordered to pay PLN 300 to a charity. The applicant appealed.

On 23 September 1997 the Piotrków Trybunalski Regional Court (Sąd Wojewódzki) held a hearing and on 25 September 1997 it dismissed the applicant’s appeal.

In May 1998 the applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy).

On 9 January 2001 the Supreme Court dismissed the cassation appeal as manifestly ill-founded.

Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.

In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:

“1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.”

Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:

“1. A claim for compensation for damage caused by a tort shall lapse three years following the date on which the claimant learned of the damage and of the persons liable for it. However, the claim shall in any case lapse ten years following the date on which the event causing the damage occurred.”

On 17 September 2004 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”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 34–46, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§ 12-23, ECHR 2005-....


BENET PRAHA, SPOL. S R.O.  v. THE CZECH REPUBLIC

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

The applicant, Benet Praha, spol. s r.o., is a limited liability company incorporated under Czech law with its registered seat in Prague. It was represented before the Court by Mr P. Klimeš, a lawyer practising in Prague. The respondent 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.

In April 2001 criminal proceedings were instituted against a former manager of the applicant company on the suspicion of having committed tax evasion. Within the framework of the criminal proceedings a search of the applicant company's premises was carried out on 24 April 2001. Cash in several currencies in the total amount of approximately CZK 20 mil. (EUR 770,000) and several documents such as financial files, books of accounts and business documents were seized. According to the applicant company these documents and most of the cash have not yet been returned to it.

On 25 and 27 April 2001, the prosecuting authorities seized all of the applicant company's assets deposited on its five bank accounts on the suspicion that they constituted a profit from criminal activities of the manager. The seizure orders, which were notified to the applicant company on 8 October 2001, did not specify what assets had been seized, nor to what amount. This was remedied on 28 November 2001 by the Prague High Prosecutor (vrchní státní zástupce) who amended the original decisions by writing in the sums to be seized. While doing so, he froze all assets deposited on the applicant company's accounts on that day, i.e. inclusive of payments which had come in after 25 April 2001 and 27 April 2001, respectively. The applicant company's assets amounting to CZK 101,909,105 (EUR 3,919,580) were thus seized.

The criminal proceedings against the former manager of the applicant company are currently pending before an appellate court. On 4 June 2009 the Prague Municipal Court acquitted the manager. The prosecutor, however, appealed. During the investigation the prosecuting authorities, inter alia, collected over 100,000 pages of documentary evidence, interviewed several hundred witnesses and requested legal assistance from the competent authorities of 16 countries.

Meanwhile, numerous tax and custom proceedings were brought against the applicant company in regard of a suspected retrenchment. They all were later discontinued as no tax and customs evasion by the applicant company was detected.

On 25 March 2005 the applicant company lodged a request with the police, seeking to have the seizure of its bank accounts lifted.

On 11 April 2005 the request was transferred to the High Prosecutor who, on 24 June 2005, dismissed it, stating that the reasons for the seizure continued. The High Prosecutor added that the fact that the tax proceedings brought against the applicant company had been discontinued was irrelevant to the seizure.

On 14 July 2004 the applicant company appealed to the Prague High Court (vrchní soud) which dismissed the appeal on 11 August 2005.

On 16 November 2005 the applicant company lodged a constitutional appeal against the High Court's decision of 11 August 2005. In the appeal, the applicant company claimed that the seizure of its assets was disproportionate due to its excessive length.

On 9 March 2006 the Constitutional Court (Ústavní soud) declared the appeal inadmissible, finding that a fair balance between the general interest of the society and those of the applicant company arising from its fundamental rights had been struck. The decision was served on the applicant company's lawyer on 16 March 2006.

On 30 January 2008 the Constitutional Court found a violation of the right to property of a company Benet Czech, spol. s r.o., which was in a similar position as the applicant company. It held that the length of the seizure, over six years, was unreasonable, which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company. The applicant company lodged another request for the seizure of its bank accounts to be lifted referring to this decision of the Constitutional Court. On 6 March 2008 the High Prosecutor lifted the seizure of the applicant company's bank accounts holding that the conclusions of the Constitutional Court applied also to the applicant company.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Under the technical and cultural convention concluded between France and Morocco on 13 January 1972, the Moroccan Government recruited Mrs Cazenave de la Roche on 4 January 1982 as a senior lecturer at the Rabat National School of Architecture.

On 22 September 1983 the French embassy in Morocco sent the applicant a certificate of termination of payment, the date of expiry of her contract having been set at 4 January 1984 by the Moroccan authorities. The certificate stated:

Certifies that Mrs Cazenave de la Roche … Senior Lecturer without tenure … will have her name removed from the list of staff serving overseas on 4 January 1984 and will be paid by the Ministry of Foreign Affairs until 3 January 1984.

On 3 December 1984 Mrs Cazenave de la Roche applied to the Minister for Foreign Affairs, seeking to have the decision of 22 September 1983 revoked and to be appointed to the town-planning teaching staff on the basis of the provisions of section 9 of the Law of 11 June 1983 (see paragraph 28 below).

On 22 February 1985 the Minister for Foreign Affairs refused the applicant’s requests on the ground, in particular, that the application of the Law in question was conditional on the publication of implementing decrees, which did not exist when the impugned decision was taken.

On 4 April 1985 Mrs Cazenave de la Roche applied to the Paris Administrative Court to quash the decision of 22 February 1985; she also sought a declaration that she was entitled to be established as a civil servant with effect from 3 January 1984.

The Minister of State at the Ministry of Foreign Affairs filed his pleading on 13 July 1985 and the applicant did likewise on 9 December 1985.

On 24 January 1986, having held a hearing on 10 January, the court delivered the following judgment:

As to the submissions concerning the refusal to establish the applicant as a civil servant

As to the ground based on infringement of sections 9 et seq. of the Law of 11 June 1983 and sections 80 et seq. of the Law of 11 January 1984

By section 9 of Law no. 83-481 of 11 June 1983, ‘Civilian cultural, scientific and technical cooperation staff’ have ‘the right to become established if they so request’.

The application of that Law and, in particular, of the … provisions of section 8 was, however, conditional on the enactment of decrees adopted after consultation of the Conseil d’Etat, which had not been published by the date on which the provisions in question were in turn taken over in sections 74 et seq. of Law no. 84-16 of 11 January 1984, and the decrees to be adopted after consultation of the Conseil d’Etat which were also necessary for the application of these had likewise not been enacted by the date of the impugned decision.

While it is established that the authority empowered to make regulations is under a legal obligation to take, within a reasonable time, those measures which are within its powers and are necessary for the implementation of a legislative enactment, it does not appear that the time which has elapsed since the publication of the legislative enactment can be regarded as excessive. Mrs Cazenave de la Roche consequently cannot rely on that circumstance to challenge the lawfulness of the decision whereby the Minister of State at the Ministry of Foreign Affairs refused her application.

On 13 May 1986 Mrs Cazenave de la Roche appealed to the Conseil d’Etat against the Paris Administrative Court’s judgment. She filed a supplementary pleading on 11 September 1986.

The Conseil d’Etat held a hearing on 10 September 1990 and delivered its judgment on 24 September. It quashed the Administrative Court’s judgment of 24 January 1986 and the Minister for Foreign Affairs’ decision of 22 February 1985 and dismissed the remainder of the appeal as follows:

As to the lawfulness of the decision under appeal

By the provisions of section 8 and sub-paragraph 1 of section 9 of the Law of 11 June 1983, which was taken over in sub-paragraph 1 of section 74 of the Law of 11 January 1984, State employees not on the establishment who are civilian cultural, scientific or technical cooperation staff in post in foreign States have the right to become established…

By the first sub-paragraph of section 17 of the same Law, ‘Employees not on the establishment who may rely on the provisions of this Law cannot be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section 15 for making their choice’…

Although Mrs Cazenave de la Roche, at the end of her contract, was placed at the disposal of the French Government by the Moroccan Government and although she was recruited to fill a specific post in Morocco, the Minister could not lawfully dismiss her other than for professional shortcomings or for a disciplinary offence. It is established that in refusing to renew Mrs Cazenave de la Roche’s contract by sending her notice of termination of payment … a decision which may be regarded as a dismissal in the light of the aforementioned provisions of section 17 … the authorities relied exclusively on the fact that Mrs Cazenave de la Roche had been placed at their disposal by the Moroccan Government. That being so, the decision was taken in breach of section 17 of the Law of 11 June 1983 and Mrs Cazenave de la Roche is consequently justified in maintaining that the Administrative Court in its impugned judgment of 24 January 1986 was wrong to dismiss her application in so far as she was seeking to have the decision … [of] 22 February 1985 quashed.

As to the submissions concerning the applicant’s being placed on the establishment

While under sections 73 and 74 of the Law of 11 January 1984 certain employees who are not established and civilian cultural … cooperation staff have the right to become established, if they so request, in vacant posts or ones that are to be created in the Budget Acts, it is apparent from sections 79 and 80 of the same Law that the legislature provided that the arrangements for implementing the principle should be laid down in decrees adopted after consultation of the Conseil d’Etat. Consequently, in any event, since the decree to be adopted after consultation of the Conseil d’Etat providing for appointment to a body of State teaching staff as an established civil servant had not been published, the Minister could not do other than dismiss the application for establishment submitted on the basis solely of sections 73 and 74 of the Law of 11 January 1984.”

On 29 January 1988 Mrs Cazenave de la Roche submitted a preliminary claim to the Minister for Foreign Affairs for compensation for the loss sustained on account of her not having become an established member of the State’s architect teaching staff.

On 15 June 1988 she lodged an application with the Paris Administrative Court, seeking to have the implicit refusal of her compensation claim quashed.

On 9 April 1990 the applicant submitted a fresh compensation claim to the Ministry and, in consequence, updated her court claim on 11 September 1990. She filed a supplementary pleading on 10 June 1991.

Concurrently with the proceedings on the merits, Mrs Cazenave de la Roche made an application to the court on 2 November 1990 for an interim award.

In an interim order of 5 April 1991 the court directed the Minister for Foreign Affairs to pay the applicant the sum of 600,000 French francs (FRF) as an advance representing the amount of loss of remuneration over the period from 22 September 1983 to 31 December 1989. The order read as follows:

In her application Mrs Cazenave de la Roche sought an order that the State, represented by the Minister for Foreign Affairs, should pay her the sum of 600,000 francs as an advance on the sums sought in her substantive application by way of salary which, pursuant to the Conseil d’Etat’s judgment of 24 September 1990, was due to her… Although the application was communicated to the Minister for Foreign Affairs …, he did not dispute the existence of the obligation on which the applicant relied against the State. The existence of that obligation is not refuted by any of the evidence and cannot be seriously challenged.

On 18 December 1992, on a second application for an interim order on 27 October 1992, followed by a defence filed on 12 December, the court ordered the State to make a further interim payment of FRF 150,000.

Having held a hearing on 29 April 1993, the Paris Administrative Court delivered its judgment on 15 July 1993. It joined the applications of 15 June 1988 (see paragraph 16 above) and 11 September 1990 (see paragraph 17 above), held that the loss allegedly caused by the refusal of the application to become established did not sound in damages and that the unlawfulness of the decision to terminate employment, as found by the Conseil d’Etat, amounted to a culpable act capable of rendering the State liable. The State was ordered to pay the applicant the sum of FRF 850,000, including the interim awards. The court gave the following reasons for its decision:

“As to the State’s liability

… while it is true that the Government was under an obligation to adopt the decrees in issue within a reasonable time, the provisions of the Law of 11 January 1984 conferred on the applicant, not a present right [droit] but only a contingent right [vocation] to become established, such a measure being also conditional on the creation of the corresponding posts and, where appropriate, professional recruitment…

The Minister, however, could not lawfully decide that Mrs Cazenave de la Roche’s name would be removed from the list of staff serving overseas or refrain from acting on the application made by the applicant on 3 December 1984 seeking to be appointed to a post of non-established employee equivalent to the one from which she had been dismissed. That unlawfulness amounts to a culpable act capable of rendering the State liable to the applicant.

On 7 March 1994 the applicant asked to be notified of the judgment and it was served on her on 28 October 1994.

On 21 December 1994 Mrs Cazenave de la Roche appealed against the Administrative Court’s judgment to the Paris Administrative Court of Appeal, seeking an order that the State should pay her an additional sum of FRF 1,523,405.

On 15 February 1995 the Minister for Cooperation filed a pleading in which he argued that it was for the Minister for Foreign Affairs to reply to the applicant’s submissions. The applicant argued the same in a pleading of 2 June 1995, pointing out that the Minister for Foreign Affairs had ignored the court’s formal notice that he should submit his defence.

The Minister for Foreign Affairs filed a pleading on 11 July 1995, that is to say after the time-limit laid down in the formal notice sent by the registry of the Administrative Court of Appeal, and Mrs Cazenave de la Roche replied on 31 July 1995. She filed a further pleading on 10 July 1996.

Having held a hearing on 25 October 1996, the Paris Administrative Court of Appeal dismissed the applicant’s appeal in a judgment of 12 November 1996 and varied the Administrative Court’s judgment by reducing the amount of the sum payable by the State to FRF 711,494. The judgment was served on the applicant on 13 November 1996.

Section 8 of Law no. 72-659 of 13 July 1972 on the position of civilian cultural, scientific and technical cooperation staff in post in foreign States provides:

“Staff other than those mentioned in section 2, second sub-paragraph, shall, at the end of their cooperation assignment and on the terms laid down by decree, enjoy the guarantees provided for non-established public employees who lose their jobs.

Cooperation service by those same staff shall be treated as service carried out in France by staff who are not established or not permanent, in particular as regards the appointment or establishment as national civil servants of established employees of local authorities and public bodies or permanent staff of public services, bodies or undertakings of an industrial or commercial nature.”

When the applicant’s contract expired, her position was governed by Law no. 83-481 of 11 June 1983 laying down the procedure for filling permanent civilian posts in the service of the State and its public bodies and authorising the establishment of non-established employees occupying such posts, and more particularly by the following provisions:

Section 8

“Employees not on the establishment who occupy a post with the characteristics laid down in section 1 above shall have the right to become established, if they so request, in posts that are vacant or that are to be created in the Budget Acts, provided that they

(1) either are in post at the date of publication of the present Law, or are on leave at that date pursuant to Decree no. 80-552 of 15 July 1980 on the social welfare of non-established State employees, or are on leave at that date pursuant to Decree no. 82-665 of 22 July 1982 on the social welfare of non-established employees of the State and of State public administrative or cultural and scientific bodies, of French nationality and in service abroad;

(2) have, at the date of making their application, carried out actual service of a duration equivalent to at least two years of full-time service in one of the above-mentioned posts; and

(3) satisfy the conditions laid down in section 16 of the above-mentioned Ordinance no. 59-244 of 4 February 1959.”

Section 9

“The following shall also have the right to become established, if they so request, on the terms laid down in section 8 above:

(1) civilian cultural, scientific and technical cooperation staff in post in foreign States or in the institution to which they have been assigned who satisfy the conditions laid down in the second sub-paragraph of section 8 of Law no. 72-659 of 13 July 1972 on the position of civilian cultural, scientific and technical cooperation staff in service in foreign States;

Section 14

“… access to the various corps of civil servants may be provided for the non-established employees mentioned in sections 8 and 9 … by means of decrees adopted after consultation of the Conseil d’Etat…”

Section 17

“Employees not on the establishment who may rely on the provisions of this Law cannot be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section 15 for making their choice.

Sections 8, 9, 14 and 17 of the Law of 11 June 1983 were taken over in sections 73, 74, 79 and 82 of Law no. 84-16 of 11 January 1984 making provisions governing the civil service.

Article R. 129 of the Administrative Courts and Administrative Courts of Appeal Code provides:

“The President of the Administrative Court or of the Administrative Court of Appeal or a judge delegated by one of them may make an interim award to a creditor who has made a substantive application to the Administrative Court or Administrative Court of Appeal where the existence of the obligation is not seriously disputable. He may, even of his own motion, make the payment of such an award conditional on the provision of security.”


The applicant, Ms Helena Ringel, is an Swedish national, who was born in 1933 and lives in Uppsala. She was represented before the Court by Mr M. Axen, a lawyer practising in Uppsala.

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

By a decision of 9 June 1992 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Uppsala granted the applicant a life annuity (livränta) under the Act on Industrial Injury Insurance (Lagen om arbetsskadeförsäkring, 1976:380; hereinafter “the 1976 Act”). The amount on the basis of which the annuity was to be calculated – corresponding to the applicant's expected annual income had she continued to work – was fixed at 220,000 Swedish kronor (SEK). The applicant appealed against the Office's decision and the County Administrative Court (länsrätten) of the County of Uppsala, by a judgment of 28 March 1993, raised the amount in question to SEK 252,800. The applicant made a further appeal to the Administrative Court of Appeal (kammarrätten) in Stockholm. The National Social Insurance Board (Riksförsäkringsverket) also appealed. Whereas the applicant had not requested an oral hearing at first instance, she asked the appellate court to hold one. However, the appellate court refused the request, finding that a hearing was not necessary. By a judgment of 5 November 1996 it found in favour of the Board and thus quashed the appealed judgment and upheld the Office's decision. On 10 March 1998 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal.

On 10 September 1993 the Office decided that the above amount should be fixed at SEK 258,100 for the period 1 December 1992 – 30 November 1995.

By a decision of 8 November 1995 the Office fixed the amount at SEK 244,000 for the following period. The applicant, assisted by legal counsel, appealed to the County Administrative Court and claimed that the amount should be fixed at SEK 258,000.

By a judgment of 23 February 1998 the court upheld the Office's decision, finding that the Office had correctly estimated the applicant's expected income at the time of the appealed decision. The court did not hold an oral hearing, nor did the applicant request one.

The applicant appealed to the Administrative Court of Appeal. By a letter of 2 March 2000 she requested that the appellate court hold an oral hearing at which she wished to make oral submissions. It appears from the wording of the letter that the request was for a hearing to be held if the court were to examine the case on the merits.

On 15 March 2000 the Administrative Court of Appeal refused leave to appeal. On 16 October 2002, following a further appeal, the Supreme Administrative Court also refused leave to appeal.

All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the 1976 Act. Anyone who is put on the sick-list as a result of an industrial injury and who is insured under the Social Insurance Act (Lagen om allmän försäkring, 1962:381) is entitled to the same per diem benefit from the ordinary sickness insurance (social insurance) during the first 90 days as if he or she had been sick for a reason other than an industrial injury. When 90 days have passed, the insured person is entitled to a per diem sickness benefit in accordance with the 1976 Act (industrial injury insurance), if his or her ability to carry on with gainful employment is reduced by at least 25% (50% prior to 1 July 1990). After the period of sickness has come to an end and the insured person is no longer on the sick-list, he or she is entitled to a life annuity if the capacity for gainful employment is reduced by at least one fifteenth. In order to calculate the annuity, an amount corresponding to the expected annual income is fixed.

A decision by the Social Insurance Office under the 1976 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court.

The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter “the 1971 Act”). Section 9 provides:

“The proceedings are in writing.

An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case.

In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court.

According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535).

It was further stated, in respect of the third paragraph of section 9, that a party's request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party's understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537).


Violation of Art. 14+8;Not necessary to examine Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant is a Cypriot citizen born in 1936. He is a retired civil servant. On 1 May 1967 he rented from the Cypriot State a house in which he has been living ever since with his wife and four children. The tenancy agreement had many of the features of a typical contract for the lease of property with provisions on the payment of rent by the applicant, the use and maintenance of the property, the giving of notice and a termination date. The agreement provided that the tenancy would come to an end in the event of the applicant being transferred to a district other than the one in which the property was situated.

On 3 December 1986 the Ministry of Finance informed the applicant that the permission by virtue of which he occupied the premises was revoked and that he had to surrender the property by 30 April 1987. He failed to do so and on 3 June 1987 the Attorney-General notified him that if he did not vacate the house before 31 July 1987 legal action would be taken against him.

On 3 July 1987 the applicant replied that he had been living together with his family in the house for twenty years. He had been obliged to spend significant sums of money on the maintenance and improvement of the house since the competent public authorities had shown no interest in its upkeep. He claimed that he was a “statutory tenant” within the meaning of the Rent Control Law 1983 (Law no. 23/1983 – see paragraphs 14 and 15 below) and stated that he would continue to occupy the premises as long as he was protected by law.

On 9 March 1989, replying to a second letter from the Attorney-General dated 5 January 1989, the applicant reiterated his earlier position.

On 3 February 1990 the government of Cyprus instituted proceedings against the applicant before the District Court of Nicosia to have him evicted. The government submitted, inter alia, that the applicant did not occupy the house under a tenancy agreement within the meaning of the Rent Control Law 1983, but that the premises had been allocated to him by administrative order because of his position in the civil service.

On 5 February 1992 the District Court of Nicosia gave judgment against the applicant. The court did not pronounce on the issue of the title under which the applicant occupied the premises. The court’s interpretation of the Rent Control Law 1983 led it to conclude that its protection did not extend to the applicant since it only bound private owners of property and not the Cypriot State. A person who rented premises owned by the State could not therefore be considered a “statutory tenant” protected by that Law.

The applicant was ordered to vacate the premises before 30 June 1992.

The applicant appealed against the judgment to the Supreme Court relying on Article 14 of the Convention and Article 1 of Protocol No. 1. At the hearing before the Supreme Court the applicant relied essentially on the following argument: his rights as a tenant were “property rights” within the meaning of Article 1 of Protocol No. 1 and he was the victim of discrimination in the enjoyment of these rights because the Rent Control Law 1983, as interpreted by the District Court of Nicosia, gave no protection to tenants of the State whereas the same Law protected the State as a “statutory tenant” when it rented premises owned by a private individual. The applicant also submitted that he was the victim of a further act of discrimination in that he enjoyed less protection under the relevant Law than tenants of private persons.

On 22 May 1995 the Supreme Court dismissed the applicant’s appeal, considering that he could not claim any property rights under Article 1 of Protocol No. 1 as a tenant. The court also found that, in any event, the notion of equality did not require that a person who enjoyed the protection of the Rent Control Law 1983 as a tenant should be automatically required to grant the same protection to his or her tenants if that person happened to own property. Finally, the court considered, in an obiter dictum, that even if the case concerned the different treatment reserved by the law to property rented out by private owners and to property rented out by the State, there would be no violation of the Constitution or the Convention because “it would be reasonable to consider that it is not necessary to grant protection [to tenants] vis-à-vis the [State] which [is] not in the same position as a private owner and [is] not expected to administer the property of the State according to criteria similar to those guiding a private owner”.

Further to this decision, the applicant has been threatened with imminent eviction.

According to section 3(1), the Rent Control Law 1983 applies only to dwellings and shops in areas designated “regulated areas”, which are defined in section 2 as every area which was declared as such under the previous rent control legislation and includes every other area so declared by order of the Council of Ministers. Section 3(1), which has been unaffected by subsequent amendments to the 1983 Law, sets out the circumstances under which an order may be made.

Section 3(1) provides as follows:

“Whenever it is considered by the Council of Ministers to be necessary or expedient for the purpose of securing the availability of dwellings and shops for reasonable rents and the security of possession thereof, or whenever the public interest otherwise so requires, the Council of Ministers may by Order published in the Official Gazette of the Republic declare any area in Cyprus as a regulated area, and thereupon the provisions of this Law shall apply to all dwellings or shops within such area.”

“Οσάκις το Υπουργικόν Συμβούλιον κρίνη ότι είναι αναγκαίον ή σκόπιμον προς τον σκοπόν της εξασφαλίσεως της διαθεσιμότητος των κατοικιών ή καταστημάτων αντί λογικών ενοικίων και της ασφαλείας της κατοχής τούτων, ή οσάκις το δημόσιον συμφέρον ούτως άλλως απαιτή, το Υπουργικόν Συμβούλιον δύναται δια διατάγματος δημοσιευομένου εις την επίσημον εφημερίδα της Δημοκρατίας να κηρύξη οιανδήποτε περιοχήν εν Κύπρω ως ελεγχομένην περιοχήν, τούτου δε γενομένου θα ισχύουν αι διατάξεις του παρόντος Νόμου δι’ οιασδήποτε κατοικίας ή καταστήματα ενός της τοιαύτης περιοχής.”

According to section 11 tenants of dwellings situated within a “regulated area” who, upon the expiry or termination of the first term of their tenancy agreement, remain in occupation of the dwelling (“statutory tenants”) cannot be evicted save in certain specified circumstances set out in the Rent Control Law. These circumstances include the non-payment of rent, unauthorised use of the property and where the dwelling is reasonably required by the landlord for occupation by him or his wife, children or other dependants.

Under Article 54(e) of the Constitution, it is for the Council of Ministers to supervise and dispose of property belonging to the Republic of Cyprus. This power of supervision and disposal must be exercised in accordance with the provisions of the Constitution and the law.


The applicant, Ms Tülin Özgür-Karaduman, has the citizenship of Germany and Turkey. She was born in 1979 and lives in Mannheim in Germany. She was represented before the Court by Mr M. Schmitt, a lawyer practising in Mannheim. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the German Ministry of Justice. The Turkish Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 and Rule 44), did not indicate that they wished to exercise that rights.

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

On 7 May 1999 the applicant sold her car to Ms V. At that time, she lived at her father’s place of residence in Mannheim.

On 2 August 1999 Ms V. lodged a motion against the applicant with the Mannheim District Court (Amtsgericht), claiming DEM 500 as damages for the car’s alleged defects. The motion and all further correspondence were served to the place of residence of the applicant’s father.

On 9 September 1999 the District Court decided to apply a summary procedure (Verfahren nach billigem Ermessen) pursuant to section 495a of the Code of Civil Procedure (Zivilprozessordnung, see relevant domestic law below).

On 12 October 1999 Ms V. extended her action and claimed further DEM 1,239.64.

By partial judgment (Teilurteil) of 22 October 1999 the District Court ordered the applicant, who had not participated in the proceedings, to pay DEM 500 plus interests to Ms V.

By final judgment (Schlussurteil) of 19 November 1999 the District Court ordered the applicant to pay further DEM 1,239.64 plus interests to Ms V. Both judgments were delivered to the place of residence of the applicant’s father.

On 3 April 2000 the applicant, represented by counsel, lodged an action for declaration of nullity (Nichtigkeitsklage) pursuant to section 579 § 1 no. 4 of the Code of Civil Procedure, requesting the Mannheim District Court to set aside its judgments of 22 October and 19 November 1999. She alleged that she had left Germany on 14 May 1999 with the aim to live permanently in Turkey. She had neither informed her father about her departure nor left her new address. She had not learned about the civil proceedings until her return to Germany on 4 March 2000, when her father gave her the mail which had accumulated during her absence. In support of her allegations, she submitted her own affidavit (eidesstattliche Versicherung). She further nominated five witnesses, including her father, her mother, two former friends of hers and the postman who had delivered the final judgment of 19 November 1999 to her father’s place of residence.

The defendant, Ms V., contested these submissions. She pointed out that she had received a demand for payment from the applicant, which was dated 26 October 1999 and had been posted in Germany. The applicant replied that this letter had been posted by a friend of hers, whom she named as a witness.

On 7 June 2000, following a hearing, the Mannheim District Court declared the applicant’s action inadmissible. While leaving the question undecided whether the action for declaration of nullity was applicable in the present case, it found that the applicant had failed to establish to the satisfaction of the court (glaubhaft machen) that she had lodged her action within the statutory time-limit of one month after having learned about the two judgments. Taking into account both parties’ submissions, the Regional Court did not attach credence to the applicant’s own affidavit. It considered, firstly, that the applicant had not submitted admissible evidence in support of her allegation that the demand for payment had been posted not by the applicant herself, but by a friend of hers. Furthermore, according to the acknowledgment of service (Zustellungsurkunde) of 24 November 1999, the final judgment had been served on the applicant herself. The applicant had not disproved that fact. The District Court further noted that the applicant had alleged that she had received the partial judgment of 22 October 1999 on her return to Germany. This allegation was contradicted by the fact that the copy of the partial judgment which was to be served on the applicant was located in the case-file of the first set of proceedings, because it had not been picked up by the addressee.

The District Court further pointed out that the applicant could have submitted further evidence, such as her air tickets or affidavits given by other persons. She failed however to do so. Referring to section 294 § 2 of the Code of Civil Procedure, the Regional Court decided not to hear any witnesses, as these had not been presented by the applicant during the hearing.

The applicant subsequently lodged an appeal with the Mannheim Regional Court (Landgericht). She argued, inter alia, that the District Court should have heard the witnesses, as section 294 § 2 of the Code of Civil Procedure did not apply in the instant case. She alleged that it would have been up to the District Court to summon the witnesses. She further maintained that the District Court, during the hearing, had not mentioned that any witnesses had been missing.

On 23 February 2001 the Mannheim Regional Court rejected the applicant’s appeal. The Regional Court noted, firstly, that the District Court, in the first set of proceedings, had violated the rules of civil procedure by applying the summary procedure even though the value of the issue exceeded the sum of DEM 1,200. However, this procedural error did not justify an annulment of the judgments.

Secondly, the Regional Court confirmed that the applicant had not established that she had lodged her action within the statutory time-limit. The Regional Court shared the District Court’s doubts as to the credibility of the applicant’s own affidavit. It further considered that the applicant had failed to explain why she had kept her German bank account and why she had not deregistered with the German authorities. Contrary to the applicant’s point of view, the District Court had not been obliged to summon any witnesses. According to Section 294 § 2 of the Code of Civil Procedure it was only admissible to take evidence by means which were immediately available to the court. It followed that only those means of evidence had to be considered which had been presented by the respective party. According to the Regional Court, the opinion that the court was obliged to summon witnesses was consistent neither with the wording of the legislation nor with the case-law of the Federal Court of Justice. In this respect, the Regional Court referred to a judgment of the Federal Court of Justice of 16 December 1959 (published in that court’s official collection [BGHZ] volume 31, p. 351).

On 9 April 2001 the Federal Constitutional Court, without giving reasons, refused to accept the applicant’s constitutional complaint for adjudication. The decision was served on the applicant’s counsel on 17 April 2001.

The relevant provision of the Code of Civil Procedure (Zivilprozessordnung), as applicable at the relevant time, reads as follows:

Section 495a Summary procedure

“If the sum in dispute does not exceed one thousand and two hundred German marks, the court may determine its procedure at its reasonably exercised discretion (nach billigem Ermessen). Upon request, it shall hold a hearing.”

The summary procedure was introduced in 1990 with the aim to unburden the district courts by facilitating proceedings with a low value in dispute. When applying this procedure, a district court is not bound by the formal requirements of the Code of Civil Procedure. It has, however, to respect the right to a fair hearing (see the references in Zöller/Greger, Zivilprozessordnung (Commentary on the Code of Civil Procedure), 23rd ed. 2002, § 495a, marginal note 8).

The relevant provisions of the Code of Civil Procedure read as follows:

Section 579

Action for declaration of nullity

“(1) An action for declaration of nullity is admissible:

if a party had not been properly represented during the proceedings...”

According to the case-law of several appeal courts, the above-cited provision can also be applied by analogy in cases in which a party was ignorant of the proceedings through no fault of his or her own (see the references in Zöller/Greger, cited above, § 579, marginal note 6a).

Section 586 Time-limit

“(1) The action [for declaration of nullity] has to be lodged within a time-limit of one month.

(2) The time-limit shall start on the day on which the party learns the ground of nullity...

(3) In case a party had not been properly represented before the court...the time-limit shall start on the day on which the judgment is served on that party...”

Section 589 Examination of admissibility

“(1) The Court shall examine ex officio if the action is admissible and...if it has been lodged within the statutory time-limit. In case of non-compliance, the action shall be rejected as being inadmissible.

(2) The facts which establish that the action has been lodged within the time-limit have to be established to the satisfaction of the court (glaubhaft machen).”

Section 294 Establishing facts to the satisfaction of the court (Glaubhaftmachung)

“(1) A party who has to establish an assertion to the satisfaction of the court may employ all means of evidence and may be allowed to submit their own affidavit.

(2) Any evidence which cannot be taken immediately is inadmissible.”

The relevant provisions on appeals against first instance judgments read as follows:

Section 511

“Appeals on facts and law shall take place against the final judgments issued in the first legal instance.”

Section 511 a

“(1) Appeals on facts and law shall be inadmissible if the value of the subject matter in dispute does not exceed one thousand and five hundred German marks ...”

Section 513

“(1) Default judgments may not be challenged in the appeal by the party against whom they have been issued.

(2) A default judgment against which the objection as such is not available shall be subject to appeal to the extent that it is based upon the claim that no default has taken place. Section 511a shall not be applicable.”

On 1 January 2002 a new section 321a entered into force, which allows a court, on request of a party, to set aside its own final judgment in case of a violation of the right to a fair hearing.


The applicant, Mr Stanisław Topolan, is a Polish national who was born in 1932 and lives in Głogów.

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

On 26 September 1991 the applicant lodged a claim for a higher amount of sickness benefit with the Wrocław Regional Court (Sąd Wojewódzki we Wrocławiu).

On 18 November 1999 the Wrocław Regional Court issued a relevant judgment.

The enforcement proceedings were terminated on 31 December 2001.

On 26 January 2000, the date on which the application was lodged with the Court, the enforcement proceedings were pending before the Głogów District Court.

On 17 September 2004 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”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

Section 2 of the 2004 Act reads, in so far as relevant:

Section 5 reads, in so far as relevant:

“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“1. The court shall dismiss a complaint which is unjustified.

If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.