Remainder inadmissible;No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-b - Preparation of defence;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The applicant was born in 1981 and is currently serving a life sentence in Izyaslav.

On 21 February 2002 the applicant was convicted of robbery and other crimes, sentenced to 13 years’ imprisonment and taken to the Kryvyy Rig correctional colony to serve his sentence.

While the applicant was serving his sentence, new criminal proceedings were instituted in which charges of criminal association membership, murder and other violent crimes were advanced against him. On an unspecified date N. N. was appointed as the applicant’s legal-aid lawyer. Subsequently A. K., another legal-aid lawyer, replaced him.

On an unspecified date the applicant, along with several other individuals, was committed for trial to the Dnipropetrovsk Regional Court of Appeal (hereafter “the Regional Court”), acting as a first-instance court. The charges against him included belonging to a criminal association, as a member of which he had taken part in three murders with a view to personal gain; several robberies; unlawful handling of arms; and unlawful taking of a vehicle.

During the trial the applicant confessed to having participated in the robberies and the other crimes attributed to him. However, he argued that his personal role in the murders had been negligible, and that he had not had any intention of profiting personally from one of the three murders.

The applicant also complained to the court that he had been tortured by the investigative authorities during the pre-trial investigation. The court ordered the Dnipropetrovsk Prosecutors’ Office to conduct an inquiry into the applicant’s complaint, which found that there was no case of illtreatment to answer.

On 6 January 2005 the applicant was convicted as charged and sentenced to life imprisonment.

The applicant and A. K. (his legal-aid lawyer) drafted separate cassation appeals. The applicant’s lawyer challenged the assessment of the facts and application of the law in respect of several points and requested a milder sentence.

The applicant, for his own part, complained, primarily, about the severity of his sentence, of ill-treatment by the investigative authorities, and of the court’s failure to question Z., another alleged criminal association member, who had been on a wanted list. In his appeal, the applicant also stated that he wanted to further substantiate his arguments once he had had a chance to study the case file.

On 23 and 24 March and 4 and 5 April 2005 the applicant was brought into the Regional Court’s offices to study the case file in order to prepare his cassation appeal. He signed affidavits asserting that he had read the entire case file.

On 14 June 2005 the Supreme Court of Ukraine adjourned consideration of the case until 13 September 2005 in order to ensure the applicant’s and his co-defendants’ presence at the proceedings.

On 28 June 2005 the applicant complained to the Supreme Court that he had not been properly familiarised with the case-file materials. He mentioned, in particular, that he had only been brought to the court’s records office to study the file on four occasions. He further noted that he had remained in handcuffs at all times and that this had not only been physically painful, but also detrimental to his ability to take notes. Lastly, the applicant noted that he had been coerced into signing the affidavits that stated that he had properly studied the file. The applicant asked the Supreme Court to ensure that he be provided with an opportunity to study the case file in his lawyer’s presence.

On 13 September 2005 the applicant asked the Supreme Court to adjourn the case, regard being had to the failure of his legal-aid lawyer to appear. He further asked the Supreme Court to oblige A.K. to perform her professional duties, to admit L.L., his mother, as his lay defence representative, and to provide him with an opportunity to familiarise himself with the case file in order to prepare his defence.

On the same date the Supreme Court adjourned the hearing. It noted that the applicant’s request for additional familiarisation with the case file was ill-founded, as he had signed affidavits stating that he had properly studied it. On the other hand, the Supreme Court found the applicant’s concern about his lawyer’s absence substantiated and ruled as follows:

“to give [the applicant] the opportunity to appoint a lawyer or a defence representative to participate in the cassation proceedings in order to represent his interests.

The administration of the SIZO should assist [the applicant] in establishing a connection with his defence representative or persons who can appoint a defence representative”.

On 15 September 2005 the applicant further complained to the Supreme Court that he had not been familiarised with the appeals brought by other parties to the proceedings.

On 4 October 2005 the Supreme Court held a hearing in the applicant’s case in the absence of his lawyer. At the beginning of the hearing, the applicant requested that the Supreme Court act on his previous requests. The prosecutor opined that the applicant had had sufficient opportunity to familiarise himself with the case file. The court rejected the applicant’s requests as unfounded and upheld the judgment of the firstinstance court.

On 12 June 2006 the Court’s Registry asked the applicant to provide certified copies of his appeals and his procedural requests addressed to the Regional and the Supreme Courts.

On 29 June 2006 the applicant asked the Regional Court’s records office to provide him with the documents at issue in connection with the Registry’s request.

On 6 July 2006 the Regional Court rejected this request, referring to the lack of any obligation under national law to make copies of case file documents.

On 31 January 2007 L.L., the applicant’s mother, who was also acting as his representative in the Convention proceedings at the material time, lodged a new request with the Regional Court on his behalf. In particular, referring to Article 34 of the Convention, she requested that the Regional Court either mail certified copies of the documents requested by the Court’s Registry to her home address or inform her in writing where they could be delivered to her.

On 9 February 2007 the Regional Court returned her request without providing the copies sought, noting that “the Code of Criminal Procedure in force does not oblige the court to prepare copies of materials from a criminal case file”.

From 27 January 2004 until 4 August 2006, with short interruptions, the applicant was detained in Dnipropetrovsk pre-trial detention facility no. 3 (“SIZO no. 3”).

According to the applicant, he had been detained with another individual in a cell measuring 1.90 by 3.70 square metres for most of the day. The applicant’s bunk, which had measured 1.70 metres by 50 centimetres, had had raised bars at its ends. Given that the applicant was 1.84 m tall, he had been unable to stretch out fully and get adequate sleep. The cell had been located in the basement, scarcely letting in daylight or fresh air, while the electric light had been dim and there had not been any artificial ventilation. The windows had had grates on them, which had further blocked natural light from coming in through the window. Moreover, they had been blocked by the upper bunk of the bed. The air had been damp and ventilation had been insufficient. The toilet had not been separated from the living quarters. It had smelled of excrement and had frequently been flooded. The applicant had made a cover for the toilet (a “grusha”) to prevent unpleasant smells. However, it had been confiscated by the prison authorities. They had likewise routinely confiscated a number of his other belongings and appliances for no apparent reason, including food, a TV antenna and a string, without which it had not been possible to open the window. Consequently, the applicant’s access to information from the outside world had been severely limited and he had been unable to open the window to disperse the smell from the toilet. The food had been meagre and had mostly consisted of wheat cereal and bread. The detainees had only been able to wash themselves, cut their nails and shave once a week in a special bathing facility. All of the detainees had shared the same pair of scissors. They had remained handcuffed by the hand to the wall while they had been cutting their nails and shaving, which had felt degrading.

On 11 November 2005 the applicant’s cellmate had hit him on the head with a metal mug while he was asleep, causing an open wound. Notwithstanding the applicant’s numerous requests for medical assistance on account of this incident, he had only been provided with oxygenated water and a bandage. The injury had resulted in the applicant having frequent headaches, vertigo, vomiting, and pus and blood dripping from one ear, which he had treated himself with his own urine.

On 28 February 2006 the applicant had been severely beaten by SIZO guards for allegedly organising inter-cell communication. In spite of his repeated requests for medical assistance on account of the injuries sustained as a result of the beating, the applicant had merely been given painkillers.

The Government submitted that the conditions of the applicant’s detention in SIZO no. 3 had been adequate. They presented a certificate issued by the SIZO administration dated February 2010 attesting that, according to their inspection on that date, there had been at least 3.5 square metres of available space per detainee in each cell. The dimensions of bunks used in the SIZO had been 185 centimetres by 70 centimetres. The basement floor cells, where the life prisoners had been held, had had windows measuring 110 centimetres by 100 centimetres, which size had afforded sufficient access to daylight. In the evenings the cells had been lit by 100 watt lamps, which had enabled the detainees to read and write without hurting their eyes. Each window had had a special ventilation pane, which had been able to be opened to air the cells. In addition, an electric ventilator in the corridor had ensured artificial ventilation of the cells. The cells had been fitted with radiators to ensure a stable temperature of between 18 and 20 degrees Celsius. Each cell had been equipped with two metal bunks, a chair, a shelf for personal belongings, a table, two small cupboards which could also be used as stools for sitting, a clothes hanger, a tap with a sink, a mirror, and a toilet. The toilets had had bent pipes to prevent unpleasant odours and had been separated from the living area by fixed partitions.

The Government further submitted (without providing any supporting documents) that, as regards sanitary arrangements, the SIZO’s detainees had had weekly access to bathing facilities, where they had also been provided with razors and scissors. Disinfectant had been used on a regular basis to clean the cells and other premises. Twice a year (in the spring and the autumn) comprehensive measures against rats had been implemented and the entire SIZO facility had been disinfected. The detainees had been provided with meals three times a day, freshly cooked by the SIZO’s cooks. Food had been varied and in conformity with applicable nutrition regulations.

No instances of seizure of or damage to the applicant’s belongings by the SIZO administration had been recorded.

As regards medical assistance, on 5 December 2005 the applicant had been diagnosed as suffering from an acute ear infection. On 6 February 2006 he had consulted an otolaryngologist and had been diagnosed with a fistula in one of his ear canals. Between 29 January and 7 February 2007 the applicant had received in-patient treatment for pulled leg muscles. In February 2007, having been transferred to a correctional colony to serve his sentence, the applicant had undergone an operation to extract a foreign body from his left ear canal.

As regards the incident of 28 February 2006, the applicant had never complained about it before to the domestic authorities. There was no evidence that this incident had ever taken place.

Relevant provisions of the Code of Criminal Procedure as worded at the material time read as follows:

A defence representative shall be appointed in the event:

(2) that ... the defendant wishes to engage a defence representative, but lacking funds or in view of other objective circumstances is unable to do so.

... if it is impossible to obtain the presence of the defence representative selected by the ... defendant within seventy-two hours ... the court may propose that the ... defendant appoint another defence representative. If this defence representative is unable to appear in the case within twenty-four hours and also in the event that ... the defendant has not engaged another defence representative within this timeframe ... the ... judge by a ruling or the court by a decision shall appoint a defence representative.”

“To support or disprove arguments presented in an appeal, the persons who advanced them may submit documents to the cassation court which were not in the case file...”

“The cassation court shall review the lawfulness and reasonableness of the court judgment... or part [thereof] which was appealed. The cassation court may exceed the scope of a cassation claim, if doing so would not prejudice the situation of the convicted or acquitted person...”

“Grounds for annulment or modification of the judgment, decision or ruling shall be:

(1) substantial breach of the law of criminal procedure;

(2) incorrect application of the criminal law;

(3) the selected penalty being disproportionate to the gravity of the offence and the personality of the convicted person.

A judgment of the court of appeal taken by it as a first-instance court may be annulled or modified [on the basis of] bias, incompleteness of any inquiry, pre-trial or trial investigation or inconsistency in the court’...”

Relevant Council of Europe and other materials establishing standards for conditions of detention and international reports concerning the conditions of detention in Ukraine can be found in the judgment in the case of Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 101-108, 1 July 2010.


Violation of Art. 10;Non-pecuniary damage - award

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

The applicant was born in 1950 and lives in Budapest.

The applicant is a historian and university professor. His main subject of research is the Second World War and, in particular, the extermination of Jews and Roma. He is the author of numerous publications on the subject.

In 2004 a heated public debate took place in Hungary as to whether a statue should be raised to commemorate Pál Teleki. In a wider context, the debate also concerned the question of Hungary’s failure to face up to its role in World War II and the Holocaust, as well as the attitude of Hungarians to this chapter of the country’s twentieth-century history – issues which had political implications, given that certain right-wing parties in the country identified their roots in the pre-World-War-II political system, of which Pál Teleki was an emblematic figure.

In that context the applicant publicly stated that Teleki had been one of the most reprehensible figures of Hungarian history, responsible for substantial anti-Semitic legislation as well as for dragging Hungary into World War II.

In issue no. 11/2004 of the weekly paper Élet és Irodalom, the applicant published an article on this subject, criticising the right-wing media, including a certain Mr B.T., for embellishing Teleki’s role and for making anti-Semitic statements in the process. The article presented examples of, and refuted, various misconceptions about Teleki’s political acts, endorsed by right-wing authors in order to diminish his responsibility for the persecution of Hungarian Jews, which, in the applicant’s view, amounted to “cautious Jew-bashing”. One of these examples reads as follows:

“In B.T.’s charming words, two anti-Semitic laws ‘fell’ within Teleki’s two premierships. ... If we are counting, let us be accurate: not two, but 12 (twelve) anti-Semitic laws are linked to Teleki’s name. ...”

The applicant also noted that:

“... [I]t is rare that those supporting [the plan to erect a] statue of Teleki are trying to defend their position using overtly anti-Semitic arguments.”

Mr B.T. brought an action against the applicant before the Budapest Regional Court. He claimed that his reputation had been tarnished by another passage in the applicant’s article which read as follows:

“In the Parliamentary Library’s PRESSDOC database there are hundreds of articles and studies praising Pál Teleki, written in a sometimes uninhibited, sometimes more moderate style. In 1994-95, the extremely anti-Semitic and irredentist Hunnia Brochures devoted a 15-episode series to the ex-PM. The amateur historian [B.T.] wrote several articles extolling the virtues of Pál Teleki – the devout Catholic, the enthusiastic Scout leader – who in his view was an anti-Nazi ‘Realpolitiker’.

These articles and studies prompted very little reaction. There are very few of us who, at least from time to time, pick up the products of the right-wing or extreme right-wing press, which, perhaps encouraged by this [indifference], keeps lying, keeps slandering, keeps stirring feeling against and bashing the Jews (zsidóznak), in an increasingly uninhibited way.”

According to the plaintiff, the last sentence of the quotation could have been aimed at him and was prejudicial to his reputation.

On 1 June 2005 the Regional Court dismissed the action, holding in essence that the impugned sentence, especially the expression “bashing the Jews” did not concern the plaintiff himself but the right-wing and extreme right-wing media in general.

On 17 January 2006 the Budapest Court of Appeal reversed that decision on appeal and found for the plaintiff. Relying on sections 75, 78 and 84 of the Civil Code, it ordered the applicant to arrange for the publication of a rectification at his expense and to pay the legal costs, which amounted to 69,000 Hungarian forints (HUF). Assessing the applicant’s statements in the context of the whole article, the Court of Appeal held that the impugned expression could be seen as relating to the plaintiff personally and that the applicant had failed to prove that it was true. In the court’s opinion, to accuse the plaintiff, even contextually, of “Jew bashing” was a statement of fact that presented Mr B.T. in a false light and was thus capable of prejudicing his reputation.

On 28 June 2006 the Supreme Court upheld that decision, imposing another HUF 46,000 in legal fees. It reaffirmed that “the impugned statement – which was made, in general terms, with regard to the right-wing (extreme right-wing) press – could also be considered to concern the plaintiff”.


Pecuniary damage - claim dismissed;Costs and expenses - claim dismissed

The present case was referred to the Court by the Government of the Federal Republic of Germany ("the Government") in September 1982 and then by the European Commission of Human Rights ("the Commission") in October 1982. The case originated in an application (no. 8544/79) against that State lodged with the Commission on 14 February 1979 by a Turkish national, Mr. Abdulbaki Öztürk.

The Chamber constituted to hear the case relinquished jurisdiction in favour of the plenary Court on 27 May 1983 (Rule 48 of the Rules of Court). By a judgment delivered on 21 February 1984, the Court held that there had been a breach of Article 6 para. 3 (e) (art. 6-3-e) of the Convention in that the applicant had not received the free assistance of an interpreter during proceedings before the Heilbronn District Court (Series A no. 73, paragraphs 57-58 of the reasoning and point 2 of the operative provisions, pp. 22-23).

The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 9 to 41 of the above-mentioned judgment (pp. 8-16).

At the hearings held on 25 May 1983, Mr. Wingerter, counsel for the applicant, had sought, by way of just satisfaction for his client, reimbursement of interpretation fees of DM 63.90 and payment of lawyer’s costs incurred before the Convention institutions; as to the amount of the latter costs, he had stated that he left the decision to the discretion of the Court (ibid., p. 22, paragraph 59 of the reasoning). The Government had not taken a stand on the matter (ibid.).

In its judgment of 21 February 1984, the Court reserved the whole of the question (ibid., paragraph 60 of the reasoning and point 3 of the operative provisions, pp. 22-23); the same day, it referred the question back to the Chamber under Rule 50 para. 4 of the Rules of Court.

The President of the Chamber, to whom the Chamber had delegated the power to fix the further procedure, obtained, through the Deputy Registrar, the views of the Agent of the Government and of the Delegates of the Commission. On 2 March 1984, he directed that the Agent should have until 16 March 1984 to file her comments and that the Delegates should then have one month within which to reply in writing.

The Registrar received the Government’s memorial on 15 March. The Delegates’ memorial was lodged on 18 May, following an extension of the time-limit granted by the President of the Chamber on 9 May.

On 16 August, the Secretary to the Commission informed the Registrar that the applicant’s lawyer had notified him of his claims and comments by telephone and not in writing, as he had been requested to do.

Mr. B. Walsh, substitute judge, replaced Mr. J. Pinheiro Farinha, who was prevented from taking further part in the consideration of the case (Rules 22 para. 1 and 24 para. 1).

After consulting the Agent of the Government and the Delegates of the Commission through the Deputy Registrar, the Chamber decided on 24 September that there was no need to hold a hearing.


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in 1954 and lives in Cologne in Germany.

The applicant is the manager of the M GmbH (the “M-Company”). He held registered shares of the V-Holding AG (the “target company”), an insurance company which was seated in Berlin.

On 1 and 2 December 1997, respectively, the shareholder's meetings approved the merging of the target company into the E-Versicherungsgruppe AG (the “acquiring company”), which was seated in Hamburg. The shareholders of the target company were to receive shares in the acquiring company.

On 25 February 1998 the merger of the two companies was announced pursuant to section 19, subsection 3 of the Law of Reorganisation (Umwandlungsgesetz, see relevant domestic law, below) in the Official Bulletin of the Municipality of Hamburg (Amtlicher Anzeiger der Stadt Hamburg). The applicant maintains that he was unaware of this publication.

Meanwhile, on 28 January 1998 a shareholder of the target company lodged a motion with the Berlin Regional Court (Landgericht) with the aim of being allocated an additional number of shares. Having been informed that he did not have such a claim under the applicable law, the shareholder withdrew his request on 15 July 1998.

On 5 March 1998 the M-Company, which was represented by counsel, lodged a motion against the acquiring company before the Hamburg Regional Court with the aim of obtaining compensation (bare Zuzahlung) for the alleged loss of value of the shares incurred by the merger pursuant to section 15 of the Law of Reorganisation. The company further requested the Regional Court to order the defendant party to submit the date of the most recent announcement of the merger in the public bulletin. Finally, the company requested the Hamburg court to transfer the case-file to the competent court in case it should lack jurisdiction.

On 12 March 1998 the Hamburg Regional Court informed both parties that, pursuant to section 306 § 1 of the Law of Reorganisation, the court at the seat of the target company, which was not Hamburg, appeared to be locally competent. The Regional Court invited both parties to submit their comments within four weeks. This letter was served on the M-Company on 20 March 1998.

By telefax of 21 March 1998 the plaintiff maintained that the Hamburg Regional Court should be regarded as having jurisdiction. In case the Regional Court should not follow this opinion, the plaintiff alternatively requested to transfer the case-file to the Berlin Regional Court.

The applicant's counsel further declared that he lodged all requests in the pending proceedings also on behalf of the applicant, as it was not clear whether the shares were owned by the M-Company or by the applicant personally.

On 9 April 1998 the acquiring company requested an extension of the time-limit until 27 April 1998 with regard to the upcoming Easter holidays.

On 14 April 1998 the Hamburg Regional Court, without having heard the applicant, granted the requested extension. The applicant's counsel was informed of this decision by court-letter dated 15 April 1998.

By letter dated 24 April 1998, which reached the Hamburg Regional Court on 27 April 1998, the acquiring company maintained that, according to the relevant provisions, the Berlin Regional Court as the court at the seat of the target company was locally competent. It further pointed out that the action had been lodged out of the statutory time-limit of two months following the final announcement of the merger in an official bulletin, which had expired on 27 April 1998. As the motion had been lodged with an incompetent court, it had not been properly lodged within that time-limit.

On 5 May 1998 the applicant replied that the acquiring company had been acting in bad faith as it was the only party to the proceedings which knew about the impending expiry of the time-limit and had purposefully delayed the proceedings.

By order of 5 June 1998 the Hamburg Regional Court transferred the case to the Berlin Regional Court, where it arrived on 1 July 1998.

On 2 September 1998 the Berlin Regional Court declared the actions lodged on behalf of the M-Company and of the applicant inadmissible for having been lodged outside the statutory time limit. That court noted that the registration of the two companies' merger had been announced on behalf of the Berlin Commercial Register on 12 February 1998 by publication in the Federal Bulletin and in a Berlin daily newspaper and on behalf of the Hamburg Commercial Register on 20 February 1998 in the Federal Bulletin and on 25 February 1998 in the Official Bulletin of the Municipality of Hamburg. It followed that the two month time-limit started to run on 25 February 1998. The Regional Court noted that the plaintiffs had filed their requests within the statutory time-limit with the Hamburg Regional Court. However, as that court had transferred the case to the competent Berlin Regional Court only after expiry of the time-limit, it had not been lodged in time. According to the Berlin Regional Court, Section 281 of the Code of Civil Procedure, which provided that a law-suit remained pending even if it was transferred from a court which lacked jurisdiction, did not apply to the proceedings aimed at determining a shareholder's compensation (aktienrechtliches Spruchstellenverfahren).

On 10 September 1998 the applicant lodged a complaint with the aim to declare his action admissible. Alternatively, he requested to be granted reinstitution into the proceedings (Wiedereinsetzung in den vorigen Stand) with respect to the time-limit. The applicant pointed out that he had not known at which date the merger had been announced in the official bulletin. Accordingly, he could not have known at which date the time-limit would expire. The Hamburg Regional Court had awaited the defending parties' submissions without referring the case to the Berlin Regional Court, as requested by the applicant. Under these circumstances, the applicant claimed that section 281 of the Code of Civil Procedure should be applicable by analogy to the effect that the lodging with the Hamburg Regional Court had to be regarded as sufficient in order to comply with the statutory time-limit. Alternatively, the applicant claimed that he should be granted a reinstitution into the proceedings with regard to the fact that the delays which had occurred before the Hamburg Regional Court before the case was transferred to the Berlin Regional Court were not imputable to him. Finally, the applicant maintained that the Berlin Regional Court had failed to publicly announce the request filed by the other shareholder on 28 January 1998 and to appoint a joint representative in order to safeguard the other external shareholders' rights. He further maintained that his complaint should be declared admissible as a follow-up request to the first request lodged in January 1998.

On 22 November 1999 the Berlin Court of Appeal (Kammergericht) rejected the applicant's complaint. It noted that the merger had been announced on 20 February 1998 in the Federal Bulletin and on 25 February 1998 in the Official Bulletin of the Municipality of Hamburg. Confirming the Regional Court's finding relating to the expiry of the statutory time-limit and to the applicability of section 281 of the Code of Civil Procedure, the Regional Court considered that only a strict application of sections 305 and 306 of the Law of Reorganisation guaranteed that the shareholders could have certain knowledge within a short period of time as to whether compensation would be paid. The Court of Appeal further considered that the request lodged by the other shareholder in January 1998 was inadmissible. Accordingly, this request did not allow to file a follow-up request within the time-limit of section 307 § 3.

The Court of Appeal expressed its doubts as to whether the rules on reinstitution into the proceedings were applicable to the present proceedings. In any event, the applicant had not been hindered to comply with the statutory time-limit through no fault of his own. Even though section 305 § 1 of the Law of Reorganisation contained a clear and unambiguous provision on jurisdiction, he had insisted that the Hamburg Regional Court had been competent.

On 2 August 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant's constitutional complaint. According to that court, the applicant's complaint did not have fundamental constitutional significance. Neither was the acceptance of the complaint indicated in order to enforce the constitutional rights which the applicant claimed had been violated. While it could not be excluded that the Berlin Court of Appeal, when deciding on the applicant's request for reinstitution into the proceedings, failed in a constitutionally questionable way sufficiently to consider the conduct of the Hamburg Regional Court, the applicant – who had learned in time about the extension of the time-limit granted to the defendant on 14 April 1998 – had failed to apply for a reduction of that extended time-subsidiarity. The remainder of the complaint did not have any prospect of success, as the applicant's submissions did not disclose a violation of his rights under the Basic Law. This decision was served on the applicant on 14 August 2000.

The merging of shareholder companies was, at the relevant time, governed by the Law of Reorganisation (Umwandlungsgesetz), which provided as follows:

According to section 15, a shareholder could request compensation (bare Zuzahlung) if the value of the shares he was allocated in the acquiring company did not equal the value of the shares he held in the target company.

Section 19 provided that the merger of two companies had to be registered first in the commercial register at the seat of the target company and, subsequently, in the commercial register at the seat of the acquiring company. Each registration had to be announced by publication in the Federal Bulletin and in one further periodical. The second publication organ was chosen by the commercial court by December for the following year and made public by notifying, inter alia, the chamber of commerce. The merger had to be regarded as being publicly announced by the end of the day of the latest publication (see section 19 § 3).

The provisions on procedure read as follows:

Section 305

Time-limit

“A motion for a court decision pursuant to section 15...has to be lodged within two months following the date on which the registration has been publicly announced pursuant to the provisions of this law.”

Section 306

Competent court

“(1) The competent court is the Regional Court at the seat of the company whose shareholder is entitled to lodge the motion.”

Section 307

Court proceedings

“(1) The proceedings are governed by the law on matters of non-contentious jurisdiction (freiwillige Gerichtsbarkeit)...

(2) The motion has to be lodged against the acquiring company...

(3) The Regional Court has to announce the motion in the Federal Bulletin (Bundesanzeiger) and, if the statutes of the respective company so provide, in other public bulletins. Other shareholders may lodge their own motions within two months following publication. This has to be pointed out in the publication. A request lodged after expiry of this time-limit is inadmissible...”

Section 308

Joint representative

“(1) The Regional Court has to appoint a representative in order to safeguard the rights of those external shareholders who did not lodge an own motion...”

In proceedings governed by the Code of Civil Procedure, an action complies with a time-limit even if it has been lodged with an incompetent court and is only later on transferred to the competent court (section 281 of the Code of Civil Procedure).

In separate proceedings the Federal Court of Justice (Bundesgerichtshof, case no. II ZB 26/04) ruled on 13 March 2006 that section 281 of the Code of Civil Procedure should also apply by analogy to proceedings aimed at determining a shareholder's compensation. This decision was based on considerations of legal certainty and the interest of an acceleration of the proceedings. The Federal Court of Justice further noted that a court was generally obliged rapidly to inform the parties about its own lack of jurisdiction and swiftly to process a request to transfer the case-file to the competent court.


Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings

The applicant was born in 1965 and lives in the Voronezh Region.

The applicant receives welfare payments for her child. In 1999 she brought civil proceedings against a local welfare authority, claiming arrears in those payments for 1998 – 1999.

On 17 December 1999 the Novousmanskiy District Court of the Voronezh Region awarded the applicant 1,593.54 Russian roubles (RUR).

On 17 March 2000 a writ of execution was issued and sent to the bailiffs.

On 24 October 2001 the bailiffs discontinued the enforcement proceedings in respect of the judgment of 17 December 1999 and returned the writ of execution to the applicant, as the debtor had insufficient funds.

In January – February 2004 the applicant was paid the amount due pursuant to the writ of execution.

Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.

Under Section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award

The applicant was born in 1971 and lives in Mirna.

The application concerns two sets of criminal proceedings. In both sets of proceedings, the hearings were closed to the public for the purpose, among others, of protecting the rights of the alleged victims and – as regards some of the hearings – the private life of the applicant.

On 13 March 1998 an official police report (uradni zaznamek) was prepared concerning the applicant's attitude towards children he had taught in a primary school. It contained a statement given by one of the school teachers which had been obtained in accordance with section 148/2 of the Criminal Procedure Act (Zakon o kazenskem postopku – see paragraph 44 below). The teacher stated that she had not noticed anything strange in the applicant's attitude towards children. She also described an incident where the parents of a boy who the applicant had allegedly abused had come to the school to complain about the applicant's conduct and stated that the applicant had resigned following this incident.

On 31 August 1998 the Murska Sobota District Public Prosecutor (Okrožno državno tožilstvo v Murski Soboti) lodged a request for a criminal investigation on the basis of reasonable suspicion that the applicant had committed two criminal offences of sexual assault on a minor under the age of 15 (spolni napad na osebo, mlajšo od petnajst let). The request was based on findings from the preliminary proceedings.

On 4 May 1999, after questioning the applicant, the investigating judge of the Murska Sobota District Court (Okrožno sodišče v Murski Soboti) decided to open a criminal investigation, and that decision became final on 12 May 1999.

An examination of witnesses scheduled for 25 May 1999 was adjourned at the applicant's request.

On 3 June 1999, 9 December 1999 and 21 December 1999 the investigating judge examined several witnesses, mostly for the prosecution.

On 4 and 18 April 2000 the court examined several defence witnesses.

On 21 April 2000 the applicant proposed a re-examination of certain witnesses. The investigating judge, disagreeing with the proposal, requested the interlocutory-proceedings chamber of three judges (zunaj obravnavni senat) at the Murska Sobota District Court to decide on the issue. On 9 June 2000 the chamber dismissed the proposal.

On 29 June 2000 the applicant was indicted for the criminal offence of sexual abuse of a minor. The indictment became final on 17 August 2000.

On 30 January 2003 the Murska Sobota District Court held a hearing. The applicant's lawyer requested that the alleged victim, who was a minor, be examined as a witness. The minor was consequently examined by the investigating judge on 13 March 2003.

The next hearing was held on 8 April 2003. After the hearing, the Murska Sobota District Court convicted the applicant and sentenced him to two years' imprisonment. The written judgment was issued on 11 April 2003.

The applicant appealed on 22 May 2003.

On 24 March 2004 the Maribor Higher Court (Višje sodišče v Mariboru) dismissed the appeal.

Consequently, the first-instance court's judgment became final on 24 March 2004.

On 13 July 2004 the applicant lodged a request for the protection of legality (zahteva za varstvo zakonitosti).

On 11 November 2004 the Supreme Court (Vrhovno sodišče) rejected the request.

On 31 January 2005 the applicant lodged a constitutional appeal.

The proceedings are pending before the Constitutional Court.

On 14 April 2003 the applicant was arrested by the police.

On 16 April 2003 he was brought before the investigating judge at the Murska Sobota District Court on suspicion of having committed another criminal offence. On the same day the investigating judge remanded him in custody.

On 17 April 2003 the public prosecutor applied for a criminal investigation.

On 18 April 2003 the applicant appealed against his detention. On the same day the interlocutory-proceedings chamber dismissed the appeal as unfounded.

On 24 April 2003 the investigating judge examined the applicant and opened a criminal investigation against him.

On 12 May 2003 the detention was prolonged for two months by the interlocutory-proceedings chamber. An appeal by the applicant against the prolongation was dismissed by the Maribor Higher Court on 19 May 2003.

On 15 May and 6 June 2003 the investigating judge examined witnesses.

On 19 May 2003 the investigating judge appointed two medical experts. The experts submitted their opinions on 26 May and 23 June 2003 respectively.

On 9 July 2003 the public prosecutor indicted the applicant for the criminal offences of sexual assault on a minor and of presenting and manufacturing pornographic material concerning minors (prikazovanje in izdelava pornografskega gradiva z zlorabo mladoletne osebe).

On 10 July 2003 the applicant's detention was prolonged by a decision of the interlocutory-proceedings chamber. An appeal of 14 July 2003 was dismissed on 16 July 2003 and a request for the protection of legality, lodged on 25 July 2003, was rejected by the Supreme Court on 21 August 2003. It appears that the applicant's detention was subsequently prolonged every two months, the last time on 11 November 2004 (see paragraph 38 below). The applicant's appeals against the prolongation of his detention were dismissed by the second-instance court.

On 21 July 2003 the applicant appealed against the indictment. The interlocutory-proceedings chamber dismissed the appeal on 23 July 2003.

On 23 September 2003 the court held a hearing.

The hearing scheduled for 21 October 2003 was cancelled because the applicant requested the withdrawal of the public prosecutor, all members of the chamber (senat) and the president of the Murska Sobota District Court. The requests were dismissed by the president of the Murska Sobota District Public Prosecutor's Office and the president of the Maribor Higher Court on 23 October 2003 and 5 November 2003 respectively.

The hearing scheduled for 4 December 2003 was also cancelled since the applicant requested the withdrawal of the president of the chamber and the president of the court. On 12 December 2003 the requests were dismissed by the president of the Maribor Higher Court.

The hearing scheduled for 20 January 2004 was cancelled at the request of the applicant's lawyer owing to her commitments in another – unrelated – case.

The hearing scheduled for 5 February 2004 was cancelled owing to a new request for withdrawal based essentially on the same reasons as the previous one. The request was rejected on 17 February 2004.

The next hearing was scheduled for 16 March 2004. Before the hearing, the court dismissed a new request for the withdrawal of judges, finding that it was a delaying tactic. As more than three months had elapsed since the last hearing, the court had to conduct the trial ab initio with, in particular, a fresh examination of the applicant and the reading of testimony. The applicant requested that the witnesses and experts be examined again.

Before the hearing on 1 April 2004, the applicant again filed a request for the withdrawal of judges, but it was rejected. The applicant requested that the alleged victim be examined again.

On 12 April 2004 the alleged victim was examined by the investigating judge.

On 22 April 2004, before the scheduled hearing, at around 8 a.m., the applicant injured his finger while opening the window of his cell. At 8.30 a.m. the officers took him to the court intending to ask the judge whether he should be taken to see a doctor immediately or at the end of the hearing. At the court, the applicant requested that jurisdiction in the case be transferred to another court and the hearing was consequently adjourned.

Subsequently, on the same day at about 9.30 a.m., the officers offered to take the applicant to see a doctor but he refused to go. At the applicant's subsequent request, made at 1.30 p.m., he was taken to see the doctor at 2 p.m. According to the letter sent by the prison authorities to the Murska Sobota Police, the doctor did not consider the injury to be serious.

On 19 May 2004 the Maribor Higher Court dismissed the request for transfer of jurisdiction. On 3 June 2004 the applicant lodged a request for the protection of legality against that decision. The case file was thus sent to the Supreme Court and the first-instance court cancelled the scheduled hearings. On 24 June 2004 the Supreme Court rejected the request.

On 23 August 2004 the president of the chamber himself requested to stand down from the proceedings. He expressed doubts as to his ability to conduct the proceedings properly owing to the conduct of the applicant and his lawyer.

On 26 August 2004 the case was referred to a new judge.

On 14 September 2004 a hearing was held. Before the hearing, the court dismissed the request for the withdrawal of judges and the transfer of jurisdiction, noting that the applicant had abused his procedural rights.

On 13 October 2004 a hearing was held at which several witnesses and experts were heard.

On 27 October 2004 another hearing was held and the following hearing was scheduled for 11 November 2004.

On 10 November 2004 the applicant was taken to the hospital where it was discovered that he had swallowed ten coins. However, the court refused to cancel the scheduled hearing.

After the hearing held on 11 November 2004 the court delivered a judgment finding the applicant guilty and sentenced him to twelve years' imprisonment, inclusive of the sentence imposed in the previous set of proceedings (see paragraphs 7-16 above). The written judgment was issued on 29 November 2004.

On 14 December 2004 the public prosecutor lodged an appeal.

On 16 December 2004 the applicant appealed and on 17 December 2004 the applicant's lawyer appealed.

On 17 March 2005 the Maribor Higher Court increased the sentence to fourteen years' imprisonment. The judgment became final on that day.

On 8 July 2005 the applicant lodged a request for the protection of legality with the Supreme Court.

On 20 April 2006 the court rejected the request.

On 16 June 2006 the applicant lodged a constitutional appeal.

The proceedings are pending before the Constitutional Court.

In Slovenia, criminal proceedings before district courts (okrožna sodišča) are divided into three stages – preliminary proceedings (predkazenski or predhodni postopek), conducted by the police and the public prosecutor; a criminal investigation (preiskava), conducted by the investigating judge of a District Court; and the trial (glavna obravnava), held before a mixed chamber (senat) of professional and lay judges.

A trial is preceded by a formal indictment, which normally follows a criminal investigation (preiskava). Prior to that, however, are the preliminary proceedings in which the police prepare a criminal complaint (ovadba) and the public prosecutor then lodges a request for a criminal investigation (zahteva za preiskavo).

Section 148 of the Criminal Procedure Act (Zakon o kazenskem postopku, Official Gazette no. 63/94, “the CPA”) reads, as far as relevant:

“(1) If there are reasons to suspect that a criminal offence liable to mandatory prosecution has been committed, the police shall take the necessary steps to pursue the perpetrator, ensuring that the perpetrator or his accomplice do not go into hiding or abscond, discovering and securing traces of the offence or objects of value as evidence, and collecting all information that may be useful for the successful conduct of criminal proceedings.

(2) In order to fulfil the above duty the police may seek information from citizens, inspect vehicles, passengers and luggage, restrict movement within a specific area for a limited period of time, carry out what is necessary to identify persons and objects; send out a wanted notice concerning persons and objects; inspect in the presence of the responsible person any facilities, premises and documentation of enterprises or other legal entities, and take other necessary measures. The findings of facts and circumstances relevant to the criminal proceedings, as well as the objects found or seized, shall be recorded in writing or an official report shall be prepared in that connection.

(3) Police may summon individuals but must inform them of the reasons. They may forcibly bring an individual who has failed to appear after being summoned, if he has been alerted to that possibility in the summons. In taking measures under this section, police may not examine citizens as defendants, witnesses or experts.

(6) On the basis of the information collected the police shall draw up a criminal complaint in which it shall set out the evidence discovered in the process of gathering information... .”

In principle, the request for an investigation is based on the information gathered by the police in the preliminary proceedings (see paragraph 44 above). However, prior to the opening of an investigation, the investigating judge can, if necessary, take individual investigative measures (section 166 of the CPA).

The request for an investigation must include, inter alia, a description of the alleged acts and their legal characterization, the identification of the suspect and the evidence substantiating a reasonable suspicion (utemeljeni sum) that the suspect has committed the alleged acts. The public prosecutor can also propose that a suspect be detained on remand. The relevant provisions of section 168 of the CPA provide:

“(3) The request for investigation shall specify: the person against whom an investigation is requested, the description of the acts constituting a criminal offence, the statutory designation of the criminal offence, the circumstances establishing the reasonable suspicion, and evidence already collected. The public prosecutor shall indicate in the request which particular circumstances should be explored in the investigation and which particular measures should be taken, and may propose that the person against whom investigation is requested be detained.

(4) The public prosecutor shall send to the investigating judge the report and all documents and records of the measures taken. At the same time, he shall send to the investigating judge any items to be adduced as evidence or shall notify him of their whereabouts.

(5) If the public prosecutor withdraws a request for an investigation before the decision on investigation is rendered, the investigating judge shall decide that the request is dismissed and inform the aggrieved party that he or she may take over the prosecution (sections 60 and 62).”

There is no provision in the CPA requiring the applicant to be notified at this stage. A copy of the request for an investigation is normally sent to the applicant later, together with a summons to appear before the investigating judge (section 169/4 of the CPA).

The public prosecutor's request for an investigation requires a decision by the investigating judge. The investigating judge may comply with the request and open a criminal investigation or, if he does not agree with it, refer it to the interlocutory-proceedings chamber of three judges (zunaj obravnavni senat) for them to decide. Appeals may be lodged against the decision dismissing or upholding the request (section 169 of the CPA).

After the closure of the criminal investigation the public prosecutor prefers a formal indictment or otherwise drops the charges (sections 184 and 268 of the CPA).

As regards the guarantee of the right to a trial within a reasonable time, the CPA, as far as relevant, provides (sections 15, 185 and 286 respectively):

“The court shall use its best endeavours to ensure that the proceedings are conducted without unnecessary delay and that any abuse of the rights of participants in the proceedings is prevented.

(1) If the criminal investigation is not completed within six months, the investigating judge shall inform the president of the court of the reasons.

(2) The president of the court shall take the necessary measures to complete the investigation.

(3) The presiding judge shall schedule the main hearing within a maximum period of two months after an indictment has been referred... Should he fail to schedule the main hearing within the said period, he shall inform the president of the court of the reasons for not doing so. The president of the court shall take the necessary measures to schedule the main hearing.”


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Thomas Eule, is a German national who was born in 1943 and lives in München.

The applicant is a retired military officer who underwent psychotherapeutic and psychoanalytical treatment from 1987 onwards. He was discharged in 1988 on grounds of his medical condition. The therapy was discontinued in March 1991 in view of the applicant having fallen in love with the therapist, who initially treated the applicant's feelings as “transference of affection” (Übertragungsliebe) and personally sought supervision. In October 1991 the applicant and the therapist commenced an intimate relationship that ended in May 1992.

On 5 June 1997 the applicant sued the therapist for damages of German marks 156,238.50 (DEM) (euros 79,883.48 (EUR)). He argued that the therapist had discontinued the therapy in view of the commencing of an intimate relationship and had thereby violated her duties from the contract governing the therapeutic treatment as well as her professional duty to remain sexually uninvolved with a client; because of the therapeutic malpractice he had suffered from a mental breakdown that had required further therapeutic treatment for which he had incurred the damage complained of.

On 2 April 1998 the Munich Regional Court ordered a first expert opinion. The expert witness submitted that the therapist had seriously breached her professional duties. The court held that the expert opinion was not satisfactory as it was incoherent, not fully reasoned and did not differentiate between professional, therapeutic and ethical standards.

In response to the opinion of the first expert witness, the defendant therapist submitted a private expert opinion that found no violation of therapeutic and professional standards and denied that the therapist's actions were causally linked to the damage complained of. The court noted that the private expert opinion had come to different conclusions from the first expert opinion but was not in itself fully satisfactory; the court therefore ordered another expert opinion on 17 August 1999.

The second expert witness criticised the previous expert opinions for their reliance on psychoanalytical tools and denied any wrongdoing on the part of the therapist as she had conscientiously transferred the therapeutic relationship into an intimate one between consenting adults. The court noted that the second expert witness' opinion was unsatisfactory because the parties had engaged in – among other therapeutic techniques – psychoanalysis and the expert witness had displayed an overly critical and biased assessment of psychoanalysis.

On 16 February 2001 the court ordered a third expert opinion pursuant to Article 412(1) of the Code of Civil Procedure (see “Relevant domestic law” below). The expert witness delivered his opinion on 10 December 2002; at the applicant's instigation, the expert witness submitted a clarification of his opinion on 9 April 2003. He stated no discernable professional standards for the gentle cancellation of a therapeutic relationship could be verified; there were no professional standards concerning the period between the discontinuation of a therapeutic and the beginning of an intimate relationship between therapist and patient; the only possible link between the intimate relationship and the damage complained of was the applicant's realisation that he had not found what he had been looking for. On 30 April 2003 the applicant challenged the third expert witness on grounds of bias; on 10 June 2003 the court rejected the challenge as ill-founded.

On 9 July 2003 the court dismissed the applicant's claim at the end of an oral hearing. It held that the therapist had not violated therapeutic and professional standards and based its decision mainly on the third expert witness's opinion, which it held to be convincing, methodically sound and precise.

On 12 November 2003 the Munich Court of Appeal informed the parties of its intention to dismiss an appeal lodged by the applicant as ill-founded pursuant to Article 522(2) of the Code of Civil Procedure (see “relevant domestic law” below) on the grounds that the first expert witness' opinion had been rightly rejected by the Regional Court. The Court of Appeal noted that the therapist had acted responsibly, had not violated the therapist's duty to remain sexually uninvolved and that there were no strict professional rules concerning the minimum period between the ending of a therapeutic and the beginning of an intimate relationship between a former therapist and patient. On 11 March 2004 counsel for the applicant submitted further observations. On 15 March 2004 the Court of Appeal dismissed the applicant's appeal.

On 16 April 2004 counsel for the applicant lodged a constitutional complaint with the Federal Constitutional Court arguing that the Court of Appeal had not taken into account the applicant's further submissions of 11 March 2004 and had treated the applicant as a perpetrator rather than a victim of sexual abuse.

On 4 October 2005 the Federal Constitutional Court, relying on the relevant provisions of its Rules of Procedure, refused to accept the applicant's constitutional complaint for examination without giving further reasons (no. 1 BvR 878/04).

Under Article 412(1) of the Code of Civil Procedure the court may order a new expert opinion by the same or another expert witness if it considers the expert opinion to be unsatisfactory.

Under Article 522(2) of the Code of Civil Procedure, the Court of Appeal may reject an appeal by unanimous decision if it is convinced that the appeal has no prospect of success, the legal matter is not of fundamental importance and the development of the law or the safeguarding of consistent jurisprudence do not necessitate that a decision be given by the Court of Appeal. The Court of Appeal or its presiding judge have to inform the parties of their intention to reject the appeal and the reasons thereof and have to give the appellant the opportunity to submit observations within a set time-limit. The decision under Article 522(2) of the Code of Civil Procedure is not subject to an appeal and the Court of Appeal cannot grant leave to appeal on points of law.


The applicant, Mr János Szilágyi, is a Hungarian national who was born in 1949 and lives in Szigetvár, Hungary. Because of his disability, he is represented before the Court by his brother, Mr I. Szilágyi. The Government are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.

The Szigetvár Public Water System Corporation (Szigetvári Víziközmű Társulat) was founded on 14 May 1998. The applicant, co-owner of real estate in Szigetvár, was obliged to become a member, pursuant to section 34 § 4 of the Act on Water Management (“the Act”). According to paragraph 5 of the same section, the applicant had to pay a compulsory membership fee, a so-called “beneficiary’s contribution” (érdekeltségi hozzájárulás), to the Corporation. The amount of the fee (in the applicant’s case, 167,580 Hungarian forints) was determined in relation to the size of his real estate.

The decisions concerning the fees payable by each member were dispatched in July 1998. On 3 December 1998 and every year afterwards, a reminder was sent to the applicant about the sum he owed the Corporation. Disputing the latter, the applicant wrote a complaining letter to the Corporation on 12 April 1999.

On 20 June 1999 the applicant challenged the constitutionality of the Act before the Constitutional Court. On 29 June 2001 that court dismissed the applicant’s motion, together with several other similar cases. It held that the unilateral action of the legislator, obliging inhabitants of a certain area to be members of a public water system corporation and regulating their rights and obligations concerning the use of water, was justified by the public interest in preserving the quality of water and in protecting the environment. In so far as the applicant’s complaint concerned the conditions of compulsory membership of a specific corporation, the Constitutional Court found that the ordinary courts had jurisdiction in such matters. In this connection it also noted that the corporation was not an administrative body and that the corporation and its members had a relationship under civil, rather than administrative, law. It was observed that any member disputing the fee payable had the right to seek judicial review within 30 days counted from the date of notification of the imposition of the fee (sections 41 § 3 and 43 § 2 of the Act).

On 1 March 2002 the applicant instituted proceedings in the Szigetvár District Court against the Corporation. He claimed that his membership of the corporation was not only involuntary but also unlawful, in that the water supply for his real estate was not provided by the corporation. In the absence of any service performed by the corporation, no liabilities should have arisen on his part.

On 17 April 2002 the applicant completed his action. In the first paragraph on page 7 of his submission he wrote:

“...The purposeless dispute has been going on between the parties since July 1998, for almost four years. The water management company obliges János Szilágyi to make beneficiary’s contributions at the price of infringing his rights!”

On 4 July 2002 the District Court rejected the applicant’s action without an examination of its merits. It held that it had been submitted outside the 30-day statutory time-limit following the delivery of the impugned decision, laid down in section 43 § 2 of the Act on Water Management. It reasoned that:

“the applicant himself stated in his submissions clarifying his action (in the first paragraph on page 7) that a decision obliging him to pay a contribution was delivered to him in July 1998”.

In his appeal the applicant requested the annulment of the first instance order and contested the District Court’s statements. He argued that the District Court had, by stating that he had admitted that a decision had been served on him in July 1998, misquoted the first paragraph of page 7 of his submissions. In fact, no formal decision had been given, or served on him, in July 1998 or on any other subsequent date. The applicant argued that, no decision having ever been given, he could not possibly have missed any time-limit.

On 25 November 2002 the Baranya County Regional Court dismissed the applicant’s appeal. It found that:

“the applicant had not attached the disputed decision to his submissions, but he had received it; this fact was rightly referred to by the District Court, which the second-instance court quotes, for the sake of emphasis: « The water management company obliges János Szilágyi to make beneficiary’s contributions ».”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was born in 1941 and lives in the town of Krasnyy Luch, Lugansk region, Ukraine.

In 2003 the applicant instituted proceedings in the Krasnolutskyy Town Court against her former employer, the Knyagyninska State Mining Company (Шахта «Княгинінська» ДХК «Донбасантрацит»), for salary arrears and compensation for moral damage. On 29 October 2003 the court awarded the applicant 2,479.19 Ukrainian hryvnias (“UAH”) (Рішення Краснолуцького міського суду Луганської області).

In December 2003 the Krasnolutskyy Town Bailiffs' Service (Міський відділ Державної виконавчої служби Красно луцького міського управління юстиції) initiated the enforcement proceedings.

By letter of 2 June 2004, the Bailiffs' Service informed the applicant that the debtor's accounts had been seized but that it was impossible to deal in the debtor's property because the debtor was a State enterprise.

On 25 March 2005 the Lugansk Regional Commercial Court initiated bankruptcy proceedings against the debtor enterprise.

The applicant received UAH 1,386.34; according to the applicant, the rest of the debt remains unpaid.

The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicant, Mr Rawand Hikmat Habib, is an Iraqi national who was born in 1984 and is currently in Sweden.

, may be summarised as follows.

On 13 September 2006 the applicant applied for asylum and a residence permit in Sweden, claiming that he had arrived in Sweden four days earlier. In written submissions and during interviews with the Migration Board (Migrationsverket), where the applicant’s legal counsel was present, he stated that he was Kurdish, born in Kirkuk, but that his family had been moved to Erbil (the capital of the Kurdistan Regional Government area, hearafter “the KRG area”) in 1988 and had lived there until 2003 when, after the fall of Saddam Hussein, they had returned to the family’s house in Kirkuk. He claimed that his father had then worked for the American Army as an interpreter and that, in 2006, they had heard from neighbours that terrorists were looking for his father because he had cooperated with the Americans. The applicant further alleged that he and his uncle had owned a catering business which delivered food to the American troops in the area of Aton Kopri (Prdé). Thus, when his father was threatened by the terrorists, the applicant had also felt insecure and under threat due to his own work. He therefore terminated the contract with the Americans and he and his family, including his uncle, moved to the city of their ancestors, Hassar (a town outside Kirkuk). The applicant acknowledged that he had never been personally threatened but, during his time in Hassar, the family was informed that the terrorists were still looking for them in Kirkuk. Moreover, the applicant claimed that he could not return to Erbil since he had no relatives left there and the terrorists could find him there as well. To prove his identity, the applicant submitted a certificate of citizenship issued in Erbil in 2002 and an identity card issued in Kirkuk in 2006.

On 15 April 2007 the Migration Board rejected the application. It first noted that the applicant had lived most of his life in Erbil and that he was Kurdish and that, therefore, it would try his asylum claim on the basis that he came from the KRG area of Iraq. The Board then observed that he had not shown that he could not benefit from the protection and help of the authorities in the KRG area against the alleged terrorist threat. In its view, nothing in the case indicated that the applicant would not benefit from the authorities’ protection to the same extent as other citizens of the area. As the Board found that there were no other grounds on which to grant the applicant leave to remain in Sweden, it rejected his application. The Board added, for information, that it had a contract with a German organisation with the goal of facilitating reintegration for returnees to the KRG area through labour market measures, such as financial support to create a business.

The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and adding that, in June 2007, his family’s house in Hassar had been the target of a grenade attack. His family had then moved to Syria. Thus, it was clear to him that the authorities could not protect him. Moreover, he wanted his application to be tried on the basis that he came from Kirkuk and not the KRG area since he had no personal connection to that area.

On 27 September 2007 the Migration Court, after having held an oral hearing, rejected the appeal. It first noted that since the Migration Board had tried the applicant’s claim in relation to the KRG area, the court would do so as well. Moreover, since he had lived there most of his life and done all his schooling there, including after reaching maturity, the court found that he had a close connection to Erbil. In respect to this, it also noted that his certificate of citizenship had been issued in Erbil in 2002 for which reason he should have no practical problems returning there. As concerned the threat from terrorists, the court noted that these had primarily been directed against the applicant’s father and that they had emanated from individual persons, not the authorities. Furthermore, the threats had occurred in Kirkuk. As the applicant had not been able to specify any concrete threat against him personally, in particular if he were to return to Erbil, the court concluded that he had not shown that he would face a real and personal risk of persecution or ill-treatment in the KRG area. As there was no other ground on which to grant the applicant leave to remain in Sweden, the court upheld the Migration Board’s decision in full.

On 11 January 2008 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. The deportation order thereby became enforceable.

In June 2008 the applicant lodged an application with the Migration Board for reconsideration of his case due to new circumstances. He maintained his previous claims but added that he had contacted the US Army in Kirkuk to ask some former colleagues about the threats against him. In reply, he had received a letter, via e-mail on 7 May 2008, from Deron R. Haught, Company Commander in Kirkuk which he insisted proved that he was sought by terrorists and that they wanted to kill him. The e-mail included a “Memorandum for Swedish Migration Board”, dated 7 May 2008, and signed by Deron R. Haught, Company Commander in Iraq. In this, the commander stated that, during his first deployment to Iraq in 2004-2005, he had been stationed in Kirkuk where the applicant’s father had been his interpreter. In this connection, he had also come to know the applicant who had “played a key role in the establishment of a new Iraqi Army Company in Kirkuk Province through the coordination and delivery of a food service contract in support of this Company.” This Iraqi Company had provided security for over 30,000 Iraqi citizens but had put the applicant at risk from Anti-Coalition Forces. Against this background, the commander asked the Swedish Migration Board to “give special consideration to [the applicant] when deciding his immigration status” since “[f]orcing him to return to Iraq at this time poses great risks to his personal safety.”

On 4 July 2008 the Migration Board decided not to reconsider the case since no new circumstances had been presented and it had already considered the applicant’s fear of being targeted by terrorists.

The applicant appealed to the Migration Court, insisting that the letter clearly showed that he was a target for terrorists and that he was at the top of their “death list”. On 16 September 2008 the court upheld the Board’s decision in full. It is unclear whether this judgment was appealed against to the Migration Court of Appeal.

The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.

Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).

As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).

Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.

The UNCHR’s “Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers”, dated April 2009 states, inter alia, that since 2003 the three Northern Governorates of Dahuk, Erbil and Sulaymaniyah have largely escaped the violence and collapse of law and order prevalent in many parts of the Centre and South and remain relatively quiet and stable although the security situation remains tenuous and unpredictable for a number of reasons. Therefore, the UNHCR maintains its position thus far that claims from asylum-seekers from these three Northern Governorates should be individually assessed based on the 1951 Convention refugee definition. The UNCHR further observes that persons originating from this area can enter the Governorate of Erbil without any restrictions. Moreover, it notes that, generally, the Kurdish authorities will be able and willing to provide protection although certain persons, particularly those fleeing “honour killings” or tribal conflict (blood feud), may still be reached by their persecutors if relocated within Iraq.

As concerns the situation of Iraqis affiliated with the Multi-National Forces (MNF-I) in all of Iraq, the UNHCR maintains its previous position that civilians employed or otherwise affiliated with the MNF-I are at risk of being targeted by non-state actors. In areas where security has improved over the last year (2008), the risks to persons affiliated with the MNF-I have diminished to some extent, but are still considerable given the continued influence of extremist groups. The risk is particularly high for persons working as interpreters for the MNF-I given their exposure and possible involvement in military activities, for example arrests, raids or interrogation of insurgent or militia members.

The position of the UNCHR in the above Guidelines has been endorsed as still being valid in their “Note of the Continued Applicability of the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers”, dated 28 July 2010. This note further observes that the Kurdistan Region remains relatively stable, though assaults on journalists and political opponents have been reported.

Moreover, Amnesty International’s “Report 2011 on Iraq” states, inter alia, that the Kurdistan region remains largely unaffected by the political violence seen in other parts of Iraq and that human rights conditions continues generally to improve, although many abuses are reported.

This view is shared by the “2010 Report on Human Rights in Iraq” by UNAMI Human Rights Office/OHCHR, dated January 2011, which notes that the situation is generally improving in the Kurdistan region. In their view, the security situation is stable, with very few security incidents or casualties reported (only 22 reported civilian deaths in the KRG area during 2010). They further observe that the improved security situation, matched with the increasing openness of the Kurdistan Regional authorities, means greater participation of civil society and NGOs in seeking solutions to the remaining human rights concerns in the region. In this respect, the Kurdistan Regional Government has shown itself to be open to dialogue and to work in a largely cooperative manner with the United Nations in relation to human rights issues throughout the region.


The applicant was born in 1945 and lives in the town of Saransk in the Mordoviya Republic.

In 1990 the applicant obtained a State special-purpose commodity bond (облигация государственного целевого беспроцентного займа). By its terms the Government undertook to give her a Russian-made VAZ passenger car.

It appears that in 1993 the applicant requested the State to comply with its obligation, but it could not be fulfilled for want of cars.

After the change in legislation in 1995 and 1996, the applicant became entitled to compensation in the amount equal to the car value, as described in the bond and determined in co-ordination with car manufacturers at the moment of redemption.

It appears that in August 1998 the applicant received partial compensation.

In November 1999 she sued the Government for the full market value of the car.

By judgment of 25 April 2002, the Oktyabrskiy District Court of Saransk awarded her 50,400 Russian roubles (RUB) against the Ministry of Finance. On 4 June 2002 the Supreme Court of the Mordoviya Republic upheld the judgment.

On 19 June 2002 the bailiff instituted enforcement proceedings. On 1 July 2002 the bailiff returned the writ of execution to the applicant. On the same date, the applicant re-submitted it to the Ministry of Justice. Upon the Ministry's instructions, on 17 July 2002 the applicant forwarded her writ to the Treasury Department in Moscow.

By letter of 26 August 2002 the Treasury returned the writ to the applicant, indicating that it should be submitted to the Ministry of Finance. The applicant sent the writ to the Ministry on 10 October 2002

On 6 December 2002 the Ministry informed the applicant that it would not enforce the judgment because supervisory-review proceedings had been pending.

The applicant received the monies due to her on 28 April 2006.


Violation of Art. 6-1 (access to court);Not necessary to examine issue of length;Damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

The applicant was born in 1941 and lives in Tel-Aviv.

On 27 August 1993 the applicant was severely injured in a traffic accident in Moscow.

On 12 May 1995 the applicant lodged a civil action before the Chertanovskiy District Court of Moscow against the car driver and the car owner, the Moscow branch of Tveruniversalbank, seeking compensation for damage. She claimed 6,700 US dollars (USD) as compensation for the loss of salary, for medical and travel expenses incurred as a result of the traffic accident and USD 15,000 as compensation for non-pecuniary damage. A copy of the statement of claim produced to the Court bears a stamp of the District Court’s registry showing the registration date as 12 May 1995.

On 5 October 1995 the Chertanovskiy District Court, by an interim decision, ordered a medical examination of the applicant by a panel of experts. It put questions about the current state of the applicant’s health, her previous ailments and their possible causes and an eventual need for medical assistance and care.

The interim decision of 5 October 1995 was submitted to the Moscow bureau for forensic medical examinations (Бюро судебно-медицинской экспертизы при Комитете здравоохранения города Москвы, hereinafter the “Bureau”).

On 13 October 1995 the Bureau asked the District Court for the applicant’s medical documents.

According to the Government, upon receipt of the Bureau’s request, the District Court asked the applicant’s lawyer Mr D. Shteynberg, a member of the Moscow Regional Bar Association, to produce additional medical information. No response followed. On an unspecified date the District Court repeated its request. After Mr Shteynberg had failed to respond for the second time, the District Court issued an interim decision on discontinuation of the proceedings. The court returned the applicant’s statement of claims with attached documents to Mr Shteynberg.

The applicant indicated that neither she nor her lawyer had received the District Court’s request for additional information and that they had not been notified of the District Court’s interim decision on discontinuation of the proceedings.

In 2002 the applicant complained to the president of the Chertanovskiy District Court about an excessive length of the proceedings.

On 18 July 2002 the Chertanovskiy District Court informed the applicant that, according to the registration log for the year of 1995, the applicant’s claim against the bank had never been registered by the District Court.

In August 2002 Mr Shteynberg inquired of the Bureau whether the expert examination ordered by the decision of 5 October 1995 had been carried out.

By letter of 19 August 2002, the Bureau responded to Mr Shteynberg that, having received no response from the District Court for additional medical information, it had not carried out any examination.

On 7 October 2002 the President of the Chertanovskiy District Court reported to the applicant that, according to the registration logs of the Chertanovskiy District Court for the years of 1995 to 2002, the District Court did not have a civil case to which the applicant and the Moscow branch of Tveruniversalbank were the parties.

The RSFSR Code on Civil Procedure of 11 June 1964 (in force at the material time) provided that civil cases were to be prepared for a hearing no later than seven days after the action had been lodged with the court. Civil cases were to be examined no later than one month after the preparation for the hearing had been completed (Article 99)

Summonses were to be served on the parties and their representatives in such way so that they would have enough time to appear timely at the hearing and prepare their case. If necessary, the parties could be summoned by a phone call or a telegram (Article 106).

A court could adjourn examination of a case when an expert examination had been ordered (Article 215).

Article 221 set out an exhaustive list of grounds for issuing an interim decision on discontinuation of the proceedings (определение об оставлении заявления без рассмотрения), that is if parties failed to make use of a preliminary non-judicial avenue of solving a dispute; if an action was lodged by an incapacitated person or by a person lacking the authority to act; if the parties, without valid reasons, failed to attend two hearings; and if the same dispute between the same parties was pending before a court.

A copy of an interim decision on discontinuation of the proceedings was to be sent to the absent party no later than three days upon its delivery (Article 213).

Files in civil cases concerning claims for compensation for health damage were to be kept by first-instance courts for seventy-five years (Item 7 (A) (115) of the List of documents of the USSR Ministry of Justice, justice departments and authorities, and courts with indication of their period of keeping, approved by the USSR Ministry of Justice on 31 January 1980).

Original decisions on discontinuation of civil proceedings must be kept permanently (Paragraph 5.4 of the Instruction on the procedure for keeping, selecting and archiving of court documents, approved by Order no. 13 of the USSR Minister of Justice on 17 September 1980).