Remainder inadmissible;No violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect)

Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in 1947 and lives in Rogatec.

On 25 February 1998 the applicant was charged with a criminal offence of “threatening security” (ogrožanje varnosti). He was represented by a lawyer in the ensuing proceedings.

On 3 February, 6 April, 6 June and 4 July 2000 hearings were held before the Šmarje pri Jelšah Local Court (Okrajno sodišče v Šmarju pri Jelšah) by a judge, T.G. In the course of the proceedings, the applicant, the aggrieved parties, four witnesses including two defence witnesses, and a psychiatrist were heard.

During the proceedings the aggrieved party lodged a compensation claim (premoženjsko-pravni zahtevek).

On 4 July 2000 the Šmarje pri Jelšah Local Court, further to the hearing at which the applicant was present, convicted the applicant. The Court found that in the evening of 3 December 1997 the applicant had called A.V., a police officer at the Rogaška Slatina Police Station, his wife and his children at least five times, and had threatened that he would kill them that night. The court sentenced him to three months’ imprisonment, but advised the injured parties to institute separate civil proceedings for damages. Since the applicant was unavailable at his address, the written judgment was ultimately served on his wife on 15 September 2000.

On 22 November 2000 the Celje Higher Court (Višje sodišče v Celju) rejected an appeal by the applicant’s representative on 4 September 2000 and upheld the first-instance court’s judgement. The server tried to serve the written judgment on the applicant on 10 January 2001. His wife refused to accept the mail and informed the server that the applicant was abroad. A notice was left in the mailbox. On 11 January 2001 the applicant’s wife returned the notice to the court and asked that the mail be served on the applicant once he returned, which was on 25 January 2001. On 26 January 2001 the court sent the applicant a letter informing him that the judgment did not necessarily have to be served on him but, in the case of the absence of the addressee, had to be accepted by an adult family member. On the same day the server again unsuccessfully tried to serve the mail on the applicant. On 10 February 2001 the applicant’s wife accepted the mail containing the written judgment of the Celje Higher Court.

On 21 February 2001 the applicant’s representative lodged a request for protection of legality (zahteva za varstvo zakonitosti) with the Supreme Court and requested the Šmarje pri Jelšah Local Court to adjourn the applicant’s sentence until the delivery of the Supreme Court’s decision. The Šmarje pri Jelšah Local Court rejected a request for adjournment of the sentence on 28 March 2001. The decision was served on the applicant’s wife on 23 April 2001, but the next day she returned the sealed mail to the court, stating that the applicant had left for a work-related trip.

On 10 April 2002 the Supreme Court rejected the applicant’s request for protection of legality. The applicant allegedly saw this judgment only in July 2002.

A request for a more lenient sentence lodged by the applicant’s representative on 15 February 2001 was rejected by the Supreme Court on 22 June 2001.

On 20 April 2001 the Celje District Court summoned the applicant to report to the Maribor prison to serve the prison sentence. The applicant was advised that if he did not report to the prison on 9 May 2001 an arrest warrant would be issued against him. He was also advised that he could ask for adjournment of the sentence provided that there were justified reasons. On 28 April 2001 the summons was served on the applicant’s wife.

On 9 May 2001 the applicant’s representative requested the President of the Celje District Court to adjourn the sentence until the request for protection of legality had been decided by the Supreme Court (see paragraph 11 above) and on the grounds that the applicant was unfit for prison.

On 21 May 2001 the President of the Celje District Court rejected the applicant’s request for adjournment as unfounded. The decision was served on the applicant’s representative on 22 May 2001. A consequent appeal was likewise dismissed by the President of the Celje Higher Court on 28 May 2001.

On 31 May 2001 the applicant’s representative was served with the court’s letter, with which the decision of 28 May 2001 was enclosed, informing the applicant that he should report to the prison the next working day.

On 1 June 2001 the applicant’s representative informed the court that she was not aware of the applicant’s whereabouts.

On 12 June 2001 the Celje District Court inquired with the Maribor prison as to whether the applicant had started to serve his sentence. On the same day the court issued a warrant for the applicant to be brought to the prison by the Rogaška Slatina Border Police Station (“the RSBPS”). The RSBPS received the order on 13 June 2001.

In the evening of 14 June 2001, the applicant and his wife were travelling in a car. At 9.45 p.m., on a road near Žahenberc, G. G. and B.P., two police officers from the RSBPS who were patrolling the road, stopped their car. G.G. recognised the applicant as he had seen him in connection with another traffic offence case. According to the Government, the officers had an arrest warrant to bring the applicant to the Maribor prison and were aware of the applicant’s continuing evasion of the pending imprisonment. G.G. knew that the applicant was a “problematic” person and was advised by B.P. to request the applicant to show that he had the required equipment for the car (obvezna oprema) in order to get him out of the vehicle. G.G. then first asked the applicant to show his identification documents and then to show the car equipment. The applicant stepped out of the car and opened the boot. In the meantime B.P. went to the police car to get a police baton since they were expecting the applicant to resist arrest.

When the applicant was standing in front of the car, G.G. told him that he would be arrested on the basis of the warrant issued against him due to his pending sentence and that he should comply with the procedure. The Government and the applicant disputed the subsequent events concerning the applicant’s arrest.

According to the applicant, the police had not shown him an arrest warrant and he thus refused to be arrested. According to the statements the applicant made in the domestic proceedings, one of the officers then punched him in the face and the applicant started to run. The officer caught him and knocked him down. The officer jumped on the applicant and strangled him using an unidentified object. In his observations to the Court, the applicant maintained that after handcuffing him the officers had beaten him up while he was lying on the ground, despite the presence of his wife and neighbours. The applicant was then left on the ground until his wife helped him to stand up. The applicant was weak and asked for water. The police refused to give him water. They also refused to give him water when asked for it by the applicant at the police station.

According to the Government, after being informed of the arrest warrant, the applicant replied to the officers that it was invalid as he had appealed against the conviction. In an attempt to conduct a search of the applicant (varntostni pregled), G.G. ordered him to put his hands on the car. The applicant refused. After being warned twice to comply with the order, the applicant said “no, that is not going to happen” and started to run. G.G., followed by B.P. and the applicant’s wife, ran after the applicant. The latter stopped after approximately 100 metres. At that point the applicant turned towards G.G. and appeared to attempt to hit the officer. G.G. blocked the blow with his left hand and at the same time threw the applicant on to the ground using his left leg. Both officers then tried to handcuff the applicant, who was lying face down on the ground. Due to the applicant’s resistance B.P. used the technique of “strangling from behind” in order to release his grip. G.G. then managed to handcuff the applicant, tying the applicant’s hands behind his back. The applicant continued to try to resist arrest by kicking. B.P. then went to the police car to call a police van. During that time, which was a minute or two, the applicant remained lying on the ground. Once B.P. returned, the officers lifted the applicant up and waited for the arrival of the police van. During that period, the applicant’s wife drove away and returned with several people from the neighbouring area. After the situation had been explained to them these persons did not interfere with the procedure.

It was undisputed that when the police van arrived the applicant was taken first to the Rogaška Slatina Police Station and then, at 10.30 p.m., to the Maribor prison.

According to the Government, the applicant was shown the arrest warrant at the police station, where none of the officers noticed that the applicant was injured, except for a bruise on his nose. The applicant also did not complain of pain, except for discomfort caused by the handcuffs. Later, at the Maribor prison the applicant complained that he had injuries due to handcuffs, which had been removed, but there was nothing that would require medical care.

A written confirmation of the applicant’s arrival to the prison issued on 14 June 2001 by the Maribor prison authority stated that the applicant had no apparent injuries or symptoms of any diseases.

The next day, on 15 June 2001, at around 2 p.m., the applicant was examined by a doctor in the Maribor General Hospital, who drew up a report. In the report it was stated that the applicant had alleged that he had been beaten up by the police. An X-ray of his right hand, left hemi-thorax and spine was also taken. Nothing was observed on the X-ray. According to the medical report, the applicant had a reddish bruise around his right eye (areal pordelosti) and his right wrist was slightly swollen. The applicant had no signs of injury, haematoma or bruising to his thorax. The doctor noted that the applicant complained of pain between the seventh and tenth ribs, that direct pressure on that area was painful while indirect pressure caused no pain. The kidney area was without any signs of injury, but was slightly painful. The neck was also without any sign of injury.

On 18 June 2001 the applicant had a follow-up examination in the Maribor General Hospital as he was complaining of pain in his chest. Further to the examination, the doctor noted that there were no injuries to that area. He was prescribed pain-killers and advised on breathing exercises.

On 18 June 2001 the applicant’s wife reported the incident to the office for complaints at the General Police Administration Unit (Urad za pritožbe pri Generalni policijski upravi).

On 21 June 2001 the applicant’s wife’s legal representative lodged a criminal complaint against the police officers involved in the applicant’s arrest. The criminal complaint, to which a note written by the applicant’s wife was attached, states, inter alia:

“on 14 June 2006 , at 9:45 p.m.,... in the presence of his wife... (they) severely beat and tortured him, threw him on to the ground, pushed his head into the soil ..., and at the same time suppressed his breathing by squeezing his neck, trod on him while he was lying on the ground, stepped on his neck, and then, wearing torn and dirty clothes and barefoot ..., he was arrested and taken to the prison in Maribor.”

The applicant’s wife mentioned in her note also that the officers had refused to give water to the applicant, refused to provide him with medical aid and had not given him an arrest warrant. In addition, she asked that the inquiry be conducted by the Ljubljana Police Unit instead of Rogaška Slatina or Celje Police Unit, which she did not trust.

On 3 July 2001 the Celje Police Unit received the above-mentioned documents, together with a note prepared by the officer from the General Police Administration Unit. On 20 August 2001, further to an interview with the two officers involved in the arrest, three official notes were prepared by an officer of the RSBPS, S.K.

In one of the notes, S.K. stated that he had been informed about the applicant’s arrest as it happened. When he had arrived at the RSBPS the applicant, who was handcuffed, was sitting in the waiting room. According to the note, S.K. saw only a bruise on the applicant’s face and the applicant only complained of pain from the handcuffs. Soon afterwards the applicant was taken to the police van where the handcuffs were taken off.

The other two notes recorded what would appear to be separate interviews with the officers G.G. and B.P. However, the text of the two notes is for the most part identical and appears to be copied and pasted. The officers’ testimonies are in line with the version of events submitted by the Government.

On 31 August 2001 the Celje Police Unit sent a report to the Celje District Prosecutor’s Office (Okrožno državno tožilstvo v Celju) informing them of the findings of the above inquiry and stating their opinion that the applicant’s wife’s allegations were unsubstantiated.

On 27 October 2001 the applicant’s wife submitted a medical certificate (see paragraph 27 above) to the Celje District Prosecutor’s Office.

The Celje Distict Public Prosecutor subsequently requested the Celje Police Unit to interview the applicant. They conducted an interview on 23 November 2001. According to the records of the interview, the applicant stated that after being stopped he was asked to follow the officers to the prison. After he had refused to go to the prison on the grounds that he had not received any warrant to that effect, one of the officers allegedly punched him on the right side of his face and he then started to run. After being tackled by one of the officers the applicant lay on the ground without resisting. Both officers knelt on him and one of them started to strangle him with an unknown object and shouted “the pig should die”. When the applicant’s wife arrived the officers desisted but after the wife left to find help the officers resumed strangling him. The two officers were kneeling on his back the whole time. He was subsequently lifted up by his wife.

According to the above-mentioned records, the applicant also stated that he believed that officer A. V. (see paragraph 9 above) had been informed about the arrest and had asked the arresting officers to beat him.

On 28 December 2001, on the reasonable suspicion that a criminal offence of “Violation of Human Dignity by Abuse of Office or Official Duties” (Kršitev človeškega dostojanstva z zlorabo uradnega položaja ali uradnih pravic) had been committed, the Celje Distict Public Prosecutor requested that the hearing (zaslišanje) of the two officers, the applicant and his wife be carried out before the judge of the Šmarje pri Jelšah Local Court and that the latter ensure that all the circumstances of the case were established.

The officers G.G. and B.P. were examined separately by judge B.Z. on 25 February 2002 in the presence of their lawyers. G.G.’s statement of what happened during the arrest corresponds to the Government’s version of events (see paragraph 23 above). According to the records of the hearing, G.G. also made the following statement:

“When he was brought to the police station, we noticed that he had a bruise (praska) on his nose, but I do not know where he got it, maybe in the police van, but that was a small bruise, which did not bleed, it looked more like a rash (odrgnina). In any case, when he was brought to the Maribor prison, it was established that he had no injuries.

Further to a question by the judge, G.G. stated that the “osotogari” throw, which was used against the applicant, was a self-defence technique and that the strangling was a fighting technique in jiu-jitsu and judo, which the officers had learned at police school and more recently at a self-defence class. These two techniques were among the least severe. If these two techniques had not worked the officers would have needed to use professional blows, which were more likely to cause injuries.

Likewise, the statement given by officer B.P. corresponds to the above described version of events relied on by the Government (see paragraph 23 above). As regards the applicant’s alleged injuries, B.P. stated that he had noticed at the police station that the applicant had had a superficial bruise on his nose. He assumed that the bruise had been incurred while the applicant was lying face down on the ground and trying to stand up.

Due to the unavailability of the applicant, B.P.’s lawyer and the applicant’s wife during different periods of time, the next hearing was not held until 24 May 2002. On that day, the applicant and his wife were examined by judge B.Z.

The applicant testified, inter alia, as follows:

“On the road to Žahenberc I was stopped at the junction by a police officer. A car with the other police officer was hidden in the bushes. (...). After I stopped the car, a police officer asked me to show the car’s documents, which were all in order; after he had checked everything he asked me to open the boot, now I do not know why, but I got out of the car and opened the boot. Next, I closed the boot and the officer told me that I was under arrest. I asked ‘why’ and told him that I did not have a warrant, which I really did not have. He told me to follow him, but I told him that I was not going anywhere as there was no warrant. Then, the officer hit me on the right side of my forehead. Right now, I do not know what he hit me with, perhaps with a racket or with his hand. I had a red spot there afterwards. As I was hit I started to run in the direction of the hunters’ house, through a field. ... One officer ran after me while the other stayed in the car. While he was running the officer hit me on the right leg, so that I fell face down and stayed in that position. The officer jumped on me and started treading on me. Then the officer lay on top of me and started strangling me with a rubber or metallic object. He continued until the second officer came. Then they handcuffed me. Subsequently, while I was lying face down, the officer who had thrown me to the ground and hit me started kicking me in the back and kidney area until my wife arrived and then he stopped. When my wife ran to the hunters’ house the [same] officer started strangling me again (...) by pushing my head into the grass. (...) It took about 30 minutes from the time the officers stopped my car until I was taken away in the police van. While the officer was strangling me he was shouting “‘the pig should die’” and other ugly words (...) until the neighbours came.(...) I was lifted up by my wife. When the police van arrived, I was taken to the police station. I was dirty, barefoot and muddy (...) I asked for water, which they refused to give me. (...) When I arrived at the Maribor Prison, they said they had never seen anything like it and gave me water.”

In reply to B.P’s representative’s questions, the applicant stated, inter alia:

“During my arrest the police officers called somebody by phone, I suspect that was A.V. I heard that this person told the officers to beat me up and arrest me.

After I had closed the boot, the officer and I stood facing each other and he hit me. [According to the records, the applicant showed the area above the right eyebrow as the place where the officer had allegedly hit him].

The officer threw me to the ground and kicked me about ten times in the back and kidney area. Then he put the handcuffs on so tightly that the circulation was stopped. (...) The officer trod on my back and on the handcuffs (...). I have had a quarrel with officer A.V. for about twenty years. At the police station they did not show me the warrant.

In reply to a question from G.G.’s representative, the applicant stated that he had been continuously beaten by the same officer. He further stated that when his wife and the neighbours arrived he was released, and had started vomiting while he was still lying face down on the ground. Replying to the judge’s question, he said that he was barefoot when lying on the ground but that he did not know at what point the officers had taken his shoes off him.

The applicant’s wife described the events following the applicant’s notification of the arrest warrant by the police as follows:

“My husband was extremely terrified and was in shock. At that point, after the officer had jumped (planil) on him, my husband started to run. The officers ran after him and as I was also terrified I started to run too. The other policemen also ran after them. Once I arrived at the spot I was shocked to see my husband handcuffed and lying face down on the ground, with an officer holding him by the neck and pushing his head into the ground. I have to stress that the other officer was not violent. (...) As I got no reply to my question [concerning the reasons for the applicant’s arrest] I ran to the neighbours. [After she and the neighbours came to the scene], my husband was still on the ground totally dizzy (omamljen). Both officers were standing next to him [further to request for clarification by B.P.’s representative she said that they, the officers, were doing nothing at that point]. My husband asked to be lifted up and said “please lift me up and give me some water” but nobody wanted to help him, so I lifted him up.

As regards the summons to the prison, we had not received it at home.

Further to the B.P.’s representative’s request, she gave a further statement on the events immediately following the applicant’s notification of the arrest warrant:

“My husband was very scared, but I do not remember why (....). The officer jumped on my husband, who was standing very close to him. (As regards the exact manner of the officer’s reaction) I do not remember as I was in shock. (...) I did not observe the officer touching my husband physically or hitting him. (...) I cannot tell or show the way the officer jumped on my husband as I do not remember.”

In reply to a question put by the judge, the applicant’s wife stated:

“When I came to the scene where my husband was lying on the ground, I saw that he was barefoot, but I do not know where he lost his shoes (...).”

On the conclusion of the above hearings the case file, together with the records of the hearings, was sent to the Celje District Public Prosecutor’s Office on 29 May 2002.

On 18 July 2002 the Celje District Public Prosecutor issued a decision dismissing the criminal complaint on the grounds of insufficient evidence. The prosecutor found that the statements made by the applicant and his wife were inconsistent and contradictory. The prosecutor noted in particular, that while the applicant had stated that he was hit in the face after being told he was under arrest, his wife had not observed the applicant being hit by the officer. In addition, the applicant testified that he had been beaten up by the officer up to his wife’s arrival. She, on the other hand, stated that she saw the applicant having his head pushed into the ground, but not being beaten. Moreover, the public prosecutor found that the medical evidence obtained on 15 June 2001 did not support the applicant’s allegations. Had the officers employed the force alleged by the applicant, the latter would have undoubtedly sustained different injuries. The prosecutor, who noted that he could not find the applicant’s version credible, concluded on the basis of the evidence gathered in the investigation that:

“... the applicant resisted the officers, started to run away and by doing so prevented them from carrying out their official duty. Due to his resistance, the officers, in accordance with Section 51 of the Police Act, employed force leading to the least severe consequences, which is demonstrated by the fact that the applicant did not sustain bodily injuries (poškodbe).”

The Celje District Public Prosecutor’s decision of 18 July 2002 was served on the applicant on 30 September 2002. It drew the applicant’s attention to his right to initiate a criminal prosecution as a subsidiary prosecutor (subsidiarni tožilec), that is an injured party acting as a prosecutor, by lodging a bill of indictment (obtožni predlog) within eight days. He did not avail himself of this opportunity.

As instructed by the first-instance court (see paragraph 9 above), police officer A. V. and his wife and children instituted civil proceedings against the applicant at the Šmarje pri Jelšah Local Court on 31 July 2001. On 1 October 2003 the court held a hearing. By a judgment issued on the same day, it partly granted the police officer’s claim for compensation for non-pecuniary damage. The applicant lodged an appeal on 23 October 2003. There is no information in the case file as to the state or the outcome of these proceedings.

Article 18 of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije) reads as follows:

“No one may be subjected to torture, inhuman or degrading punishment or treatment. ...”

Further to section 1 of the Administrative Disputes Act 1997 (Zakon o upravnem sporu, Official Gazette no. 50/97), when no other judicial protection is available the Administrative Court has jurisdiction to consider the lawfulness of decisions and actions which interfere with constitutional rights. Under section 62 it is possible to seek a declaration that there has been a violation of a right guaranteed by the Constitution and compensation for any loss. The Administrative Court’s decision can be challenged before the Supreme Court and ultimately before the Constitutional Court.

Section 270, headed “Violation of Human Dignity by Abuse of Office or Official Duties”, of the Penal Code (Kazenski zakonik, Official Gazette no. 63/94) provides as follows:

“An official exercising his office who, by abuse of his office or official duties, treats another person badly, insults him, inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity, shall be sentenced to imprisonment for not more than three years.”

In Slovenia, public prosecution is mandatory when reasonable suspicion (utemeljeni sum) exists that a criminal offence subject to mandatory prosecution has been committed. Public prosecutions are conducted by the public prosecutor’s office, an autonomous body within the justice system (Article 135 of the Constitution, and sections 3 and 5 of the State Prosecutor Act, Zakon o državnem tožilstvu, Official Gazette no. 63/94).

If the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings, the aggrieved party has the right to take over the conduct of the proceedings in the capacity of a subsidiary prosecutor (subsidiarni tožilec), that is, as an aggrieved party acting as a prosecutor (section 19(3) of the Criminal Procedure Act, Zakon o kazenskem postopku, Official Gazette no. 63/94; - “CPA”). A subsidiary prosecutor has, in principle, the same procedural rights as the public prosecutor, except those that are vested in the public prosecutor as an official authority (CPA, section 63(1)). If the subsidiary prosecutor takes over the conduct of the proceedings, the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution (CPA, section 63(2)).

The aggrieved party, who may be represented in the proceedings by a lawyer, may during the investigation call attention to all facts and propose evidence relevant to establishing the commission of a criminal offence, the perpetrator thereof and damages incurred as a result of the offence (CPA, sections 59 (1) and 65 (1)). This should apply analogously (CPA, section 429) to the investigative measures taken in the summary proceedings (see paragraph 61 below).

Slovenian criminal proceedings are divided into three stages – preliminary proceedings (predkazenski postopek), conducted by the police and the public prosecutor; criminal investigation (preiskava), conducted by the investigating judge of the district court, and trial (glavna obravnava), conducted before mixed panels of professional judges and lay judges at district court level or a single professional judge of the local court. Proceedings falling under the jurisdiction of local courts (offences punishable by a fine or imprisonment of not more than three years) are summary proceedings (skrajšani postopek), which do not include the criminal investigation stage.

In summary proceedings before a local court, the criminal proceedings may start with a bill of indictment (obtožni predlog, CPA, section 430) submitted by the public or subsidiary prosecutor. Before lodging the bill of indictment, the public prosecutor or subsidiary prosecutor can request the judge to perform individual investigative measures (CPA, section 431). If such measures have been carried out, the court, further to the submission of the bill of indictment, may dismiss the latter as not allowed if it considers that there is no reasonable suspicion that the accused has committed the alleged criminal offence (CPA, section 437, read together with section 277).

For a more detailed presentation of the legislation concerning the criminal proceedings in Slovenia see Matko v. Slovenia, no. 43393/98, §§ 54-62, 2 November 2006.

According to section 120 of the CPA, the judgment imposing imprisonment should be served on the accused in person as well as on his or her representative. However, if the convicted person is not found at his address, the server should leave a note informing him or her of a new date on which he or she is to be served with the mail. If the accused person is not found at his or her address on that date, the server shall serve the mail on, inter alia, an adult family member, who is required to accept that mail. The mail is thereby considered to have been effectively served on the addressee. (sections 118 and 119 of the CPA).

Once the judgment becomes enforceable, that is when no ordinary appeal lies against it (for example, a higher court judgment upholding the first-instance court’s judgment) and has been effectively served (section 129 of the CPA), the convicted person is summoned to report to prison by the district court which has jurisdiction over the place of his or her residence (section 25 of the Enforcement of Penal Sentences Act, Zakon o izvrševanju kazenskih sankciji, Official Gazette no. 22/2000, - “EPSA”).

It would appear to suffice that the summons to the persons which are represented by a lawyer be served on the latter (section 8 of the EPSA and section 88 of the General Administrative Procedure Act, Zakon o splošnem upravnem postopku, Official Gazette no. 80/1999).

If the request for an adjournment of the sentence, which in principle can be lodged with the president of the district court within three days of the receipt of the summons (see paragraph 64 above), is rejected, that decision can be challenged before the president of the higher court. If an appeal is dismissed, the convicted person must start serving his sentence the day after the service of the decision. If the convicted person is legally represented, the decisions concerning the request for adjournment shall be served on his or her representative only (sections 25 and 26 of the EPSA).

If the convicted person fails to report to prison despite being summoned, the court shall issue an arrest warrant against him or her after establishing that the summons has been served effectively or that the circumstances indicate that he or she has been evading the service of summons (section 20 of the EPSA).


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant, Mr Alan Hatten, is a British national who was born in 1941 and lives in Devon. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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

The applicant’s wife died on 27 February 1997. On 8 August 2001 the applicant applied for widows’ benefits. On 20 September 2001 the applicant was informed that his claim had been disallowed as he was not a woman.

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.

The applicant was not in receipt of child benefit at the time of his claim.

The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque

The applicant, Mr Nenad Vidaković, is a Serbian national who was born in 1956 and lives in Belgrade.

The relevant

On 21 June 2002 the applicant left his car in a repair shop, in order to have it mended. The mechanic, employed by the said shop, subsequently caused a traffic accident while driving the applicant’s vehicle.

On 24 September 2002 the applicant therefore filed a claim with the Municipal Court (Opštinski sud) in Ivanjica, seeking compensation for the pecuniary damage suffered.

On 19 November 2003 the Municipal Court adopted a partial judgment (delimična presuda) in the applicant’s favour. This judgment subsequently became final.

On 19 January 2004 the Municipal Court: (i) ruled against the applicant as regards the remainder of his claim; (ii) ordered him to pay the related litigation costs; and (iii) ordered one of the two respondents to cover the applicant’s own litigation costs associated with the partial judgment of 19 November 2003.

On 20 April 2004 the District Court (Okružni sud) in Užice quashed this judgment’s rulings under points (i) and (ii), but upheld its order under point (iii).

On 27 October 2005 the Municipal Court ruled partly in favour of the applicant.

On 20 June 2006 the District Court quashed this judgment on appeal.

On 5 November 2008 the Municipal Court again ruled partly in favour of the applicant. In so doing, it ordered the respondents to pay jointly: (i) 45,154 Serbian Dinars (“RSD”) in damages, plus statutory interest as of 20 October 2008; and (ii) RSD 42,377.24 for the litigation costs incurred (i.e. at the time a total of approximately 1,000 Euros, “EUR”, plus statutory interest).

On 8 February 2010 the High Court (Viši sud) in Užice, now acting as the competent court of second instance, upheld this judgment on appeal and it thereby became final. There is nothing in the case file that would suggest that the sums awarded to the applicant have not been paid, and the applicant personally has not raised any objections in this respect.

On 8 January 2008 the applicant lodged an appeal with the Constitutional Court (Ustavni sud), complaining about the length of the above civil suit.

On 22 December 2009 the Constitutional Court held that the applicant had indeed suffered a breach of his “right to a trial within a reasonable time”, and ordered the competent courts to bring the impugned proceedings to a conclusion as soon as possible. The court, additionally, declared that the applicant was entitled to the non-pecuniary damages sought, in accordance with Article 90 of the Constitutional Court Act (see paragraph 23 below).

The applicant seems not to have been served with this decision until 26 February 2010.

In early March 2010 the applicant’s lawyer filed a request with the Commission for Compensation. In so doing, he relied on the Constitutional Court’s decision, and sought RSD 350,000 in compensation (see paragraph 23, Articles 89 and 90, below).

On 12 March 2010 the applicant’s lawyer filed another submission with the Commission for Compensation, specifying that he had made a mistake in his earlier request. The actual amount requested was instead RSD 3,500,000 (at the time approximately EUR 35,000).

On 22 June 2010 the applicant personally claimed a total of RSD 8,033,542 (at the time approximately EUR 77,300) on account of the pecuniary and non-pecuniary damage suffered, but offered, simultaneously, to settle for the said RSD 3,500,000.

In September 2010 the applicant filed a claim with the Court of First Instance (Osnovni sud) in Požega, specifically its Detached Section (Sudska jedinica) in Ivanjica, noting that he had received no response from the Commission for Compensation which was why he was entitled to bring a separate civil suit in this respect (see paragraph 23, Article 90, below). The applicant sought RSD 4,000,000 (at the time approximately EUR 40,000) for the non-pecuniary damage sustained, plus statutory interest.

On 14 October 2010 the Commission for Compensation offered to pay the applicant the sum of RSD 50,000 (at the time approximately EUR 500) for the non-pecuniary damage referred to in the Constitutional Court’s decision.

According to the information contained in the case-file, the applicant refused to accept this amount, deeming it insufficient. The applicant further maintained that the Commission for Compensation had not considered his request earlier since it had apparently experienced some staffing issues.

Article 32 § 1 provides, inter alia, that everyone shall have the right to a fair hearing before a tribunal in the determination of his rights and obligations.

Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”

The relevant provisions of this Act read as follows:

“The decisions of the Constitutional Court shall be final, enforceable and binding.”

“A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law.

A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant’s right to a trial within a reasonable time.”

“A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the Constitution has been violated or denied by an individual decision or an action of a State body or an organisation exercising delegated public powers.”

“A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...”

“When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time.

The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.”

“... [An applicant who has obtained a Constitutional Court decision in his or her favour] .., may lodge a compensation claim with the Commission for Compensation in order to reach an agreement in respect of the amount ... [of compensation to be awarded] ...

If the Commission for Compensation does not rule favourably in respect of a compensation claim or fails to issue a decision within thirty days from the date of its submission, the applicant may file a civil claim for damages before the competent court. If only partial agreement has been achieved, a civil claim may be filed in respect of the remainder of the amount sought.

The composition and operation of the Commission for Compensation shall be regulated by the Minister of Justice.”


Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in 1968 and is serving a prison sentence in Sorda, in the Kirov region.

On 9 March 1999 senior police officer U. sent his subordinates, including officers M. and Sh., to arrest the applicant at his flat and take him to the Regional Department of the Interior (УВД Кировской области) for questioning with regard to several cases of theft. According to the applicant, the police officers put him in the back seat of the car, where they started beating him to make him confess to the thefts until he almost lost consciousness. At the police station he was handcuffed and stripped naked in the presence of the police officers and Ms B., an investigator. One of the police officers pulled a knitted hat down over his eyes. Then they pinned him to the table and threatened to rape him with a rubber truncheon.

In the evening of the same day the applicant was taken to the Kirov temporary detention facility (ИВС г. Кирова), where he was held for two days.

Following the prosecutor’s refusal to authorise the applicant’s detention pending investigation, the applicant was released on 12 March 1999 on a written undertaking that he would not leave town.

On 15 March 1999 the applicant was examined by a general practitioner and a surgeon at Severnaya Hospital in Kirov. The applicant complained to the doctors that he had been beaten up by police officers and was experiencing pain in the lumbar region. The excerpt from the applicant’s medical file read as follows:

“15 March 1999. On 10 March 1999 [the applicant] was beaten up at the police station. Since then [he] has been bothered by pain in the right lumbar and subcostal region. No dysuria. Satisfactory general condition. Blood pressure measurement 120/80 mmHg. Clear heart beat. Vesicular breathing. Soft abdomen, moderate pain in the right subcostal region. Painful muscle palpation in the right lumbar region. Diagnosis: contusion (ушиб) in the lumbar region?”

On 27 April 1999 investigator B. summoned the applicant for questioning in connection with a case of robbery. The applicant denied involvement in the robbery. Despite a refusal by the prosecutor to place the applicant in custody, he was allegedly detained at the police station, where he spent the night sitting on a chair handcuffed to a radiator.

After the applicant had been identified by a witness as one of the alleged perpetrators, the prosecutor authorised his detention pending investigation on 28 April 1999.

On 29 April 1999 the applicant appointed Ms O., a lawyer, to represent him in the criminal proceedings against him.

On an unspecified date the applicant made complaints of ill-treatment to the Kirov Town Prosecutor’s Office.

On 21 June 1999 the assistant prosecutor of Kirov Town refused to institute criminal proceedings against the police officers. The assistant prosecutor based her findings on statements made by the police officers and Investigator B., who denied the applicant’s allegations, and on the applicant’s medical file. In particular, the assistant prosecutor stated as follows:

“...On 10 June 1999 the Kirov Town Prosecutor’s Office received a complaint by [the applicant]...in which he alleges that officers Sh. and B. of the Internal Affairs Department used unlawful methods of investigation. In particular, they subjected him to physical and mental pressure to make him confess to the offences he was charged with... [The applicant] contests his guilt and requests to be released from custody.

...Furthermore [the applicant] indicates that on 10 March 1999 he was unlawfully detained... On the way to the [police station] he was beaten, the beatings continued upon arrival, the officers bullied and humiliated him ... Investigator B. was also present ...

Officer M. submits that he participated in [the applicant’s] arrest... On the way to the [police station] there was no need for them to apply physical force. [The applicant] had voluntarily agreed to come [to the police station] with the officers. At [the police station] [M.] talked to [the applicant] briefly until Investigator B. was available [to question him]. However, [M.] did not apply physical or mental pressure [to the applicant], he did not humiliate or debase him as he was not personally or professionally interested in finding [the applicant] guilty because [M.] did not know the applicant and the cases he dealt with did not involve [him]. He was only assigned to conduct a search at [the applicant’s] flat. [Senior officer] U. confirmed that he had sent his subordinates, including M., to arrest [the applicant], but had not talked to him himself.

According to Investigator B., she was in charge of the criminal case involving [the applicant] ... On 9 March 1999 she ordered his arrest ... He was brought [to the police station] by police officers ... She did not see any injuries on him. Nor did he complain to her that he had been beaten on the way to the [police station]. In her presence none of the police officers of the department had pressured [the applicant physically or mentally] ... The prosecutor refused to authorise his detention and [the applicant] was released on a written undertaking not to leave the town ...

According to a report from the temporary detention unit where [the applicant] was held from 9 to 11 March 1999, he did not request medical assistance and did not have any bodily injuries ...

An excerpt from the [the applicant’s] medical file states that on 15 March 1999 he consulted a general practitioner complaining that he had been beaten at [the police station] on 10 March 1999... However, it is impossible to establish beyond reasonable doubt that the applicant’s injuries were caused by the police officers. On 10 March 1999 the applicant was held at the temporary detention unit ... and did not ask for medical assistance. Furthermore, he was released from the temporary detention unit on 11 March 1999, but he did not consult [the doctors] until 15 March 1999, that is, four days later. During that period he could have been injured in different circumstances ...

The applicant’s allegations are not consistent with the findings of the inquiry. This indicates that the applicant is trying to mislead the prosecutor’s office and the court with regard to his guilt.”

The prosecutor also dismissed as unfounded the applicant’s complaint that he was handcuffed on the night of 27 April 1999.

In September 1999 the Oktyabrskiy District Court in Kirov opened the trial. The applicant maintained his innocence and alleged, inter alia, that the police officers had used unlawful investigation methods to make him and other defendants confess to the crimes, which resulted in the false testimonies against him given by other defendants.

On 23 November 1999 the District Court found the applicant guilty of robbery and theft and sentenced him to twelve years’ imprisonment. The court dismissed the applicant’s allegations that he had been subjected to beatings and unlawful investigation methods while in police custody, stating as follows:

“The court cannot accept the allegations made by defendants K., O. and [the applicant] that police officers subjected them to psychological or physical pressure during the investigation. As pointed out earlier, the prosecutor’s office conducted thorough inquiries in respect of the actions of the police officers, and the [defendants’] allegations proved to be unfounded .... Furthermore, the court questioned officers Sh., U., M. and [investigator] B., who had been involved in the criminal investigation. They testified to the court that they had not subjected the defendants to any unlawful treatment. The Court has no reason to doubt their testimonies, given that they... had been warned of their criminal liability for perjury or refusal to testify.”

The applicant appealed against his conviction, alleging, in particular, that the police officers had subjected him to ill-treatment.

On 22 February 2000 the Kirov Regional Court upheld the applicant’s conviction on appeal. The court did not make a specific ruling on the applicant’s allegations of ill-treatment.

On 17 August 2000 the applicant lodged a complaint about his conviction and ill-treatment with the Kirov Regional Prosecutor. On an unspecified date he forwarded a similar complaint to the General Prosecutor of the Russian Federation.

On 30 August 2000 the First Deputy Regional Prosecutor responded that the applicant’s conviction was in compliance with law. As regards the applicant’s complaint of the ill-treatment, the prosecutor noted as follows:

“The [applicant’s] allegations that he had been subjected to physical and psychological pressure lack any substantiation. The Kirov Town Prosecutor’s Office had earlier conducted an inquiry and refused to open a criminal investigation.”

On 31 September 2001 the General Prosecutor’s Office informed the applicant that they did not discern any irregularities in the way the courts had determined the criminal charges against him. Nor had “any unlawful methods of investigation” been employed against the applicant.

A prosecutor, investigator or judge is under an obligation to accept for review any complaint concerning a criminal offence and to decide whether a criminal investigation is necessary. They may request relevant material or explanations (Article 109 of the Russian Code of Criminal Procedure in force until 1 July 2002, the “old CCrP”).

Where there are sufficient grounds to believe that a crime has been committed, the prosecutor, the investigator or the judge initiates a criminal investigation (Article 112 of the old CCrP).

The complainant may appeal against the refusal to open a criminal investigation to a prosecutor or a court (Article 113 of the old CCrP).


Violation of Article 6 - Right to a fair trial

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in 1934 and lives in Baia Mare.

On 1 April 2002 the Maramureş County Court ordered a company I.W., the applicant’s former employer, to reinstate him in his post and to pay him compensation. This decision became final.

However, on 30 September 2002 the same court granted I.W.’s request and annulled the 1 April 2002 decision (contestaţie în anulare). It proceeded to re-examine the case and dismiss the applicant’s initial action.

The 30 September 2002 decision was drafted on 28 October 2002 and typed up on 30 October 2002. In accordance with the rules of procedure, it was not served on the parties.

On 18 December 2002 the applicant requested the Procurator-General to lodge an application with the Supreme Court of Justice for an audit setting aside the decision of 30 September 2002 (recurs în anulare). On 20 March 2003, the Procurator-General refused to act upon the applicant’s request.

In a decision of 3 February 2000, which was upheld by a final decision of the Maramureş County Court on 18 May 2000, the applicant’s previous employer, a company called M. was ordered to give the applicant his employment record and to pay him 100,000 Old Romanian Lei (ROL) in legal fees.

On an unspecified date, the applicant lodged an application with the Baia Mare District Court to enforce that decision. In its defence, M. claimed that it no longer had the applicant’s employment record and that only the most recent employer (I.W.) was allowed to deliver a duplicate.

On 15 February 2002 the application was dismissed. The court found, in particular, that the facts of the case confirmed that it was objectively impossible for M. to deliver the applicant’s employment record, as the document was no longer in its possession.

The applicant’s appeal was allowed by the Maramureş County Court in a final decision of 17 June 2002, as amended on 12 September 2002. The court imposed a daily penalty on M. of ROL 350,000 from 3 February 2000 until execution and ordered it to pay the applicant ROL 5,712,000 in legal fees. After noting the arguments used by the court at firstinstance in order to find in favour of the debtor, the appeal court stated, in particular, that:

“In so far as an irrevocable decision ordered [M.] to deliver to the complainant his employment record, the impediments to compliance referred to by the first-instance court are irrelevant.”

On 10 March 2003 M. filed with the Maramureş County Court a request for the annulment (contestaţie în anulare) of the decision of 17 June 2002, on the ground that the County Court had not examined the evidence confirming its inability to comply.

The applicant submitted that M. did not have locus standi to request an annulment, since the extraordinary-appeal procedure was only available to the party who had lodged the ordinary appeal. He also contended that the request should be rejected since M. had invoked the same reasons as before the first-instance court and the appeal court.

In a final decision of 26 March 2003, the Maramureş County Court, sitting in a different composition from that of 17 June 2002, allowed the request, and quashed the final decision of 17 June 2002 on the merits and the decision of 12 September 2002 amending it. Consequently, it dismissed the applicant’s appeal and upheld the judgment of 15 February 2002. The relevant parts of the decision read as follows:

“The request [for annulment] was lodged by [M.], which was the respondent in the appeal proceedings, within the time-limits set out in Article 313 of the Code of Civil Procedure...

The court considers that Article 318 of the Code of Civil Procedure is applicable, as the appeal court committed a material error, that is, an obvious material error made by omitting important elements or information from the file which had an influence on the solution adopted.

When examining the grounds for appeal, the court should have taken into account the evidence, that is, all elements that confirmed the inability to comply, namely the lack of the applicant’s employment record. The court’s conclusion that those impediments are irrelevant contradicts the evidence.”

Article 318 of the Code of Civil Procedure defines a “material error” as one of the grounds for having a final decision quashed by means of a request for annulment (contestaţie în anulare). This Article reads as follows, in so far as relevant:

“Decisions rendered by a court of last instance may also be contested by means of a request for annulment, when the decision was based on a material error...”


The applicant, Mr Helmut Lenz, is a German national, born in 1928 and living in Berlin. He was represented before the Court by Mr K.H. Christoph, of the Berlin Bar.

The facts of the case, as presented by the parties, can be summarised as follows.

Between 1 September 1967 and 31 August 1990 the applicant worked as a radio journalist in the German Democratic Republic (GDR). He ran the international press-review office until shortly before the entry into force of the German Unification Treaty on 3 October 1990 .

On 31 July 1990 the applicant entered into an agreement proposed by his employer under which his contract of employment was to terminate and he would receive an early-retirement pension (Vereinbarung zur Beendigung des Arbeitsrechtsverhältnisses und zur Gewährung von Vorruhestandsgeld) of 1,074 East-German marks a month, in accordance with Article 3a of the Early-Retirement Pensions Order of 8 February 1990 (Verordnung zur Gewährung von Vorruhestandsgeld). The Order required employers to pay qualifying employees an early-retirement pension equal to 70% of their average net wage over the preceding twelve months. Article 9 § 2 of the second implementing provision (Zweite Durchführungsbestimmung) of the Order provided for the pensions to be indexed to changes in pay levels within the firm that would have affected the employee had he or she continued to work.

In a judgment of 3 March 1994 the Berlin Regional Court (Landes-arbeitsgericht) dismissed an appeal by the applicant for the same reasons.

In a judgment of 27 June 1995, the Federal Labour Court (Bundes-arbeitsgericht) dismissed a further appeal by the applicant, holding that his rights had been extinguished by the entry into force of the Unification Treaty on 3 October 1990.

The Federal Court pointed out, firstly, that the obligations of the GDR radio and television company, which was dissolved on reunification, had been assumed by the five Länder situated within the territory of the GDR at the time and the Land of Berlin. It added that by virtue of Article 9 § 2 of the second implementing provision of the Early-Retirement Pensions Order, taken together with Appendix IIa of the German Unification Treaty, the Federal Labour Ministry was in law the successor (Rechtsnachfolger) to the applicant’s former employer.

The Federal Court found, further, that the applicant no longer had any right to payment of the difference, as the legal basis for the progressive indexation of the early-retirement pension had disappeared on 3 October 1990, the German Unification Treaty having changed the method by which the level of the early-retirement pension was adjusted. That change had been made with the consent of the parliament of the GDR. Former Article 9 § 2 of the second implementing provision had been repealed and replaced by the “adjustment factor” provisions set out in Article 112a.

The Federal Court found, lastly, that the agreement made on 31 July 1990 did not contain any provision giving the applicant any additional rights to those set out in the Early-Retirement Pensions Order of 8 February 1990. In particular, it did not provide for a progressive, long-term revaluation of the applicant’s early-retirement pension in line with changes in wage levels paid by the employer, but expressly stipulated that the pension was granted on the basis of the Order of 8 February 1990.

On 14 July 1997 the Federal Constitutional Court (Bundesverfassungs-gericht), sitting as a bench of three judges, declined to accept a further appeal by the applicant for adjudication.

Appendix II, Chapter VIII, section E, paragraph III no. 5 of the German Unification Treaty of 31 August 1990 provides that the Early-Retirement Pensions Order remains valid, but lays down, inter alia, that after that date payments will, at the employee’s request, be made by the Federal Labour Ministry and that the early-retirement pension shall be equal to 65% of the average net wage over the three preceding months.


The applicant, Mr Yusuf Yılmaz, is a Turkish national who was born in 1950 and lives in Istanbul. He is represented before the Court by Mr Selim Okçuoğlu, a lawyer practising in Istanbul.

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

The applicant at one time lived with his parents and brothers in the Kalkanlı village of Bingöl. Their house was on the outskirts of the village. The applicant later moved to Istanbul. His family continued to live in Kalkanlı.

On an unspecified date in 1994 the applicant learned that the security forces had chopped down his family’s fruit trees in the village. On an unspecified date, the local gendarme commander orally stated that the soldiers who had chopped the trees had subsequently been disciplined. The applicant’s family did not make any formal complaints.

In the unspecified past, the soldiers had allegedly burned five houses in the centre of the village and compelled the villagers to leave the village. In the evening of an unspecified day in 1994, while the applicant’s father was visiting him in Istanbul, some soldiers opened fire in the direction of the house, presumably in the course of a clash with the PKK. The soldiers’ bullets caused a fire near the house of the applicant’s family, burning dry leaves and chopped wood only.

The applicant’s family informed him about these incidents and expressed their fears. They did not feel secure to live in this region. The applicant came to the village in order to take his family to Istanbul. His family left all their belongings in the house and voluntarily gave the keys to the local gendarme station for potential house searches.

The applicant’s family began to live with him in Istanbul. In 1996 the father of the applicant died.

From 1994 to 1996 the applicant went to the village every year in order to check the house. In June 1996 he noticed that some of their belongings and some food supplies were missing. Moreover the doors and the windows of the house had been removed.

On 6 June 1996 the applicant wrote to the Yayladere County Governor’s Office. He explained that he wanted to return to his village that he had left in 1994. He reported about the damage caused to his house and belongings and requested that his damage be assessed. He further requested financial aid to repair his house.

On 19 July 1996 the State of Emergency Bureau of the Yaylıdere County Governor’s Office wrote in reply that an investigation had been carried out by the Yaylıdere Gendarme Command. It was observed that there were no residents in the village as a result of the acts of terror. According to the Office, the damage had been caused by severe weather conditions and lack of proper care and maintenance. It was noted that the damage had accelerated after the roof of the house was ruined. The Office concluded in the light of these facts and under the relevant law that it was not possible to provide any compensation or financial aid, as requested. The applicant did not challenge this decision.

In September 1996 the applicant went to the village again. He observed that the roof of the house had suffered some more damage since June 1996. He further noticed that some – unspecified – family belongings had been stolen.

On 25 October 1996 the applicant wrote a second letter similar to the letter of 6 June 1996. He did not submit a copy of it to the Court.

On 8 January 1997 the State of Emergency Bureau wrote in reply to the second letter that an investigation had been carried out. It referred to an internal directive of 27 September 1996 of the State of Emergency Bureau of the Bingöl Governor’s Office. The referred directive had ordered the identification of the families who had emigrated as a result of the acts of terror but subsequently returned and built houses, or those who wished to return. The letter noted that, under the relevant law, it was not possible to provide any compensation or help from the Yaylıdere County Governor’s Office and the Social Aid and Solidarity Foundation.

The letter nevertheless stated that, on the condition that the applicant would return to the village, his situation would be reconsidered in the light of a new investigation to be conducted on site. The letter further stated that if his request were found to be well-suited, necessary aid could be provided.

The applicant did not find the letter sincere. He was of the opinion that the local gendarme commander would not allow any construction work in the village. He also believed that various unreasonable security measures in the village would make it undesirable to live there. The applicant neither returned to the village nor wrote to any other State institution.

In the autumn of 1997, the applicant learned from unspecified sources that his house was destroyed to a greater extent and the village forests were burned.

The security forces had not destroyed or stolen the applicant’s belongings. Furthermore, the official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.

On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.

In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.

The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.

A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004- VI)


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial claim;Costs and expenses partial award

The applicant was born in 1946 and lives in Chişinău.

On 25 May 2005 the applicant was arrested by the Centre for Fighting Economic Crime and Corruption (CFECC) on charges of embezzlement. He had completed his University studies, did not have a criminal record, was employed and had a permanent domicile.

On 27 May 2005 the investigating judge of the Buiucani District Court, issued a warrant for his remand in custody for 10 days. The reasons given by the court for issuing the warrant were that:

“The criminal proceedings were instituted in accordance with the law in force. [The applicant] is suspected of having committed a serious offence for which the law provides imprisonment of more than two years; the evidence submitted to the court was obtained lawfully; the isolation of the suspect from society is necessary; he could abscond from law-enforcement authorities or the court; he could obstruct the finding of truth in the criminal investigation or re-offend”.

The applicant appealed against this decision arguing inter alia that the suspicion against him was groundless, that he did not have any intention of absconding or obstructing the investigation in any way and that he was ready to co-operate with the investigation body.

On 1 June 2005, the applicant's appeal was dismissed by a panel of three judges of the Chişinău Court of Appeal.

On 3 June 2005 the Buiucani District Court prolonged the applicant's detention on remand for a further 30 days. The court reasoned that detention was necessary because:

“[the applicant] is suspected of having committed a very serious offence, there is a risk that he may put pressure on witnesses or put himself out of the reach of law-enforcement authorities; and there is a continuing need to isolate him from society”.

The applicant appealed against this decision and submitted the same arguments as advanced in his first appeal.

On 9 June 2005 the Chişinău Court of Appeal dismissed the applicant's appeal without relying on any new arguments.

The applicant's detention on remand was prolonged on the same grounds until 11 October 2005, when he was released from detention.

The applicant was detained in the remand centre of the CFECC. The room used for meetings between lawyers and detainees had a glass partition to keep them separated.

The relevant domestic law concerning detention on remand was set out in the Court's judgment in Sarban v. Moldova, no. 3456/05, § 52, 4 October 2005.

It appears from the photographs submitted by the Government that in the lawyer-client meeting room of the CFECC detention centre, the space for detainees is separated from the rest of the room by a door and a window. The window appears to be made of two plates of glass joined together. Both plates have small holes pierced with a drill; however the holes do not coincide so that nothing can be passed though the window. Moreover, there is a dense green net made either of thin wire or plastic between the glass plates, covering the pierced area of the window. There appears to be no space for passing documents between the lawyer and his client.

The domestic courts have ruled on complaints about lack of confidentiality in the CFECC lawyer-client meeting room in the cases of Modârcă (application no. 14437/05) and Sarban (cited above). On 2 November 2004 a judge of the Buiucani District Court ordered the CFECC authorities to remove the glass partition separating lawyers from their clients; however, the CFECC authorities refused to comply with the court order. On 3 December 2004 the same judge revoked the decision of 2 November 2004 arguing that in the meantime she had been informed by the CFECC authorities that there were no recording devices mounted in the wall separating the lawyers from their clients and that the wall was necessary in order to ensure the security of the detainees.

On 15 February 2005 Mr Sarban's lawyer complained again to the Buiucani District Court under Article 5 § 4 of the Convention that he could not confer with his client in conditions of confidentiality. On 16 February the same judge from the Buiucani District Court dismissed the complaint without examining it and referred to her previous decision of 3 December 2004.

Between 1 and 3 December 2004 the Moldovan Bar Association held a strike, refusing to attend any procedures regarding persons detained in the remand centre of the CFECC until the administration had agreed to provide lawyers with rooms for confidential meetings with their clients. The demands of the Bar Association were refused (see Sarban, cited above, § 126).

On 26 March 2005 the Moldovan Bar Association held a meeting at which the President of the Bar Association and another lawyer informed the participants that they had taken part, together with representatives of the Ministry of Justice, in a commission which had inspected the CFECC detention centre. During the inspection they asked that the glass wall be taken down in order to check that there were no listening devices. They pointed out that it would only be necessary to remove several screws and they proposed that all the expenses linked to the verification be covered by the Bar Association. The CFECC administration rejected the proposal.

Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies), insofar as relevant, reads as follows:

“23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. ...

23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. ...

23.6 Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.”


IMOBILIJE MARKETING D.O.O. AND DEBELIC v. CROATIA

Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The first applicant, Imobilije Marketing d.o.o., is a limited liability company incorporated under Croatian law, which has its registered office in Rab. The second applicant, Mr Ivan Debelić, is a Croatian national who was born in 1939 and lives in Rab. He is an advocate practising in Rab. The first applicant was represented before the Court by the second applicant. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

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

On 14 June 1999 the applicants concluded a lease agreement with Mrs K.K. whereby they as lessors leased their business premises to her for a period of five years (from 1 April 1999 until 1 April 2004). In return, K.K. as a lessee was obliged to pay them in Croatian kunas (HRK) the counter value of 10,000 German marks (DEM) per year. For the first year K.K. agreed to pay the applicants in kunas the counter value of: (a) DEM 2,000 upon the conclusion of the agreement, (b) DEM 1,000 by 20 July 1999; and (c) DEM 7,000 by 30 August 1999. For every subsequent year K.K. agreed to pay in kunas the counter value of: (a) DEM 3,000 by 1 April of the current year for the following year, and (b) DEM 7,000 by the end of the current year for that year.

The agreement was concluded in the form of a notarial deed (javnobilježnička isprava) and contained an enforcement clause entitling the applicants to directly institute enforcement proceedings against K.K. if she failed to pay the annual rent.

Given that by 20 July 1999 K.K. had paid only the counter value of DEM 1,500 of the amount due by that date, on 26 July 1999 the applicants instituted enforcement proceedings before the Rab Municipal Court (Općinski sud u Rabu) with a view to collecting the unpaid amounts. By 26 October 2009 the applicants had instituted another ten sets of enforcement proceedings before the same court with a view to satisfying their claims arising from the above-mentioned lease agreement. However, even though the court had frozen K.K.’s bank account already on 1 September 1999, the applicants were unable to satisfy any of their claims owing to the lack of funds on that account. It would appear that eight out of the eleven enforcement proceedings are still pending,

Meanwhile, on 23 August 1999 the applicants instituted non-contentious proceedings before the Rab Municipal Court asking the court to issue a preliminary measure (prethodna mjera) – a type of security measure (mjera osiguranja) – freezing K.K.’s bank account for the sum corresponding in kunas to the counter value of DEM 47,000, that is, the remaining amount of rent that would become due before the expiry of the lease agreement on 1 April 2004. They argued that K.K.’s behaviour, in particular her failure to pay the full amount of the rent due by 20 July 1999, suggested that it was likely that she would not pay the future instalments of the rent as they become due.

On 11 April 2003 the court dismissed the applicants’ request.

Following an appeal by the applicants, on 15 October 2003 the Rijeka County Court (Županijski sud u Rijeci) quashed the first-instance decision and remitted the case.

In the resumed proceedings, on 4 August 2006 the Rab Municipal Court again dismissed the applicants’ request.

Following an appeal by the applicants, on 23 October 2006 the Rijeka County Court again quashed the first-instance decision and remitted the case.

On 24 September 2007 the Rab Municipal Court dismissed the applicants’ request for a third time. The court found the applicants’ request superfluous because their claim had been sufficiently secured. In particular, the court found that the applicants had frozen K.K.’s bank account already on 1 September 1999 in the above-mentioned enforcement proceedings.

On 28 May 2009 the Rijeka County Court dismissed the applicants’ appeal and upheld the first-instance decision endorsing the reasons contained therein. It added that it was not allowed to issue a preliminary measure after the claim to be secured had become enforceable.

On 1 October 2009 the applicants lodged an appeal on points of law (revizija) against the second-instance decision. It would appear that the case is currently pending before the Supreme Court (Vrhovni sud Republike Hrvatske).

On 3 May 2007 the applicants lodged a request with the Rijeka County Court for protection of the right to a hearing within a reasonable time in respect of the above non-contentious proceedings.

On 22 September 2009 the Rijeka County Court found a violation of the applicants’ right to a hearing within a reasonable time and awarded them each HRK 5,000 in compensation.

The relevant part of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008), which entered into force on 29 December 2005, reads as follows:

“(1) A party to court proceedings who considers that the competent court failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with the immediately higher court.

(2) If the request concerns proceedings pending before the High Commercial Court of the Republic of Croatia, the High Court for Administrative Offences of the Republic of Croatia or the Administrative Court of the Republic of Croatia, the request shall be decided by the Supreme Court of the Republic of Croatia.

(3) The proceedings for deciding the request referred to in paragraph 1 of this section shall be urgent. The rules of non-contentious procedure shall apply mutatis mutandis in those proceedings and, in principle, no hearing shall be held.

(1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and shall award him or her appropriate compensation for the violation of his or her right to a hearing within a reasonable time.

(2) The compensation shall be paid out of the State budget within three months from the date the party’s request for payment is lodged.

(3) An appeal, to be lodged within fifteen days with the Supreme Court, lies against a decision on the request for the protection of the right to a hearing within a reasonable time. No appeal lies against the Supreme Court’s decision but one may lodge a constitutional complaint.”

The Enforcement Act (Ovršni zakon, Official Gazette of the Republic of Croatia, nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 6720/08) regulates both enforcement proceedings (ovršni postupak) in civil law matters and security proceedings (proceedings for the issuance of interim measures, postupak osiguranja).

The Act provides for six types of security (interim) measure (mjere osiguranja), two of which are voluntary and four of which are compulsory.

The two voluntary measures are: (a) judicial and notarial pledge security on the basis of the agreement of the parties (sudsko i javnobilježničko založnopravno osiguranje tražbina na temelju sporazuma stranaka) and (b) judicial and notarial (fiduciary) security by transferring ownership of a property or by transferring a right (sudsko i javnobilježničko (fiducijarno) osiguranje prijenosom vlasništva na stvari i prijenosom prava).

The four compulsory measures are: (a) security by compulsory mortgaging of an immovable property (osiguranje zasnivanjem založnog prava na nekretnini), (b) security by anticipatory enforcement (osiguranje prethodnom ovrhom), (c) security by preliminary measures (osiguranje prethodnim mjerama), and (d) provisional measures (privremene mjere).

The relevant provisions of the Enforcement Act regulating preliminary measures provide as follows:

C h a p t e r t h i r t y

SECURITY BY PRELIMINARY MEASURES

Requirements for imposition of a preliminary measure

Section 284

“(1) A preliminary measure shall be imposed with a view to securing a monetary claim on the basis of:

a decision of a court or an administrative authority that has not [yet] become enforceable,

a settlement concluded before a court or an administrative authority, if the claim determined therein has not [yet] become due,

a notarial deed , if the claim determined therein has not [yet] become due.

(2) The court shall on the basis of the documents referred to in paragraph 1 of this section impose a preliminary measure if the requesting party [i.e. the creditor] demonstrates that without such a security [measure] there is a probable risk that the satisfaction of the claim [i.e. the collection of the debt] would be frustrated or seriously hindered.”

Types of preliminary measures

Section 287

“(1) A court may impose the following as preliminary measures:

A prohibition on the bank to pay the opposing party [i.e. the debtor] or a third party, at the opposing party’s order, an amount from his or her account for which the preliminary measure has been imposed.

(2) ...

(3) By the implementation of the preliminary measure, the requesting party [i.e. the creditor] shall acquire the right of pledge on the object of the security [measure].

(4) The sum of money deposited by the opposing party in the bank, on which the prohibition of payment has been imposed, may not be transferred from that account until the prohibition is in force, except to satisfy the secured claim.”

Decision on imposition of a preliminary measure

Section 289(2)

“A period for which a preliminary measure is imposed may not be longer than fifteen days after the conditions for enforcement have been met.”

Croatian legal scholars classify security (interim) measures (mjere osiguranja) into three main categories according to their purpose: (a) protective (conserving) measures, (b) regulatory measures, and (c) anticipatory measures.

Protective measures are those measures whose purpose is to create conditions for the future satisfaction of a creditor’s claim. Judicial and notarial pledge security, judicial and notarial fiduciary security, security by compulsory mortgaging of an immovable property, all preliminary measures and the majority of provisional measures are considered as protective measures.

Regulatory measures are those measures whose purpose is to temporarily regulate relations between the parties. Certain provisional measures are considered regulatory measures.

Anticipatory measures are those measures whose purpose is to satisfy a creditor’s claim in advance. The anticipatory enforcement and certain provisional measures are considered anticipatory measures.

In terms of their effects, Croatian legal scholars classify security (interim) measures into three main categories: (a) those that lead to (complete or partial) satisfaction of creditors’ claims (the anticipatory enforcement and certain provisional measures), and (b) those that create certain rights in rem (judicial and notarial pledge security, judicial and notarial fiduciary security, security by compulsory mortgaging of an immovable property and all preliminary measures), and (c) those that create certain quasi rights in rem or which de facto remove or reduce the risk of a future impossibility to satisfy a creditor’s claim (all provisional measures).


TH-TEKNIIKKA OY:N KONKURSSIPESÄ v. FINLAND

The applicant is a Finnish bankrupt’s estate, whose domicile is Tampere.

It is represented before the Court by Mr Mika Ala-Uotila, a lawyer practising in Nokia.

A.

In February 1995 the applicant brought an action for recovery against a company T before the Tampere District Court (käräjäoikeus, tingsrätt). On 5 May 1995 the District Court partly rejected and partly accepted the applicant’s claims.

Both the applicant and the company T appealed to the Turku Court of Appeal (hovioikeus, hovrätt). The applicant also submitted a new piece of evidence. After the time for appeal had expired, the applicant filed another submission requesting an oral hearing. The company T had requested a hearing in its appeal.

On 3 May 1996 the Court of Appeal, in written proceedings, reversed the District Court’s decision and dismissed the applicant’s action. Under Chapter 25, Section 14, Subsection 2, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalk

On 16 October 1996 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicant leave to appeal.

B. Relevant domestic law

The relevant domestic law as in force at the relevant time may be summarised as follows:

Under Chapter 25, Section 14, Subsection 2, of the Code of Judicial Procedure, no new evidence, which had not been submitted to the District Court, was allowed before the Court of Appeal, unless the appellant could prove that he had been unable to submit the evidence before the District Court or that he had had a valid reason for not doing so.

According to Chapter 26, Section 7, Subsection 1, of the Code of Judicial Procedure, a Court of Appeal could hold, when necessary, an oral hearing, where parties, witnesses and experts could be heard, and other evidence could be taken.


The applicant was born in 1942 and lives in Budapest.

On 15 September 1989 the applicant brought an action against a private individual before the Pest Central District Court, seeking to recover the possession of some specific movable property.

After several hearings, a judgment was delivered on 19 November 1992, which was quashed by the Budapest Regional Court on 14 September 1993.

In the resumed proceedings several forensic expert opinions were obtained. Two hearings had to be rescheduled as the applicant and his representative failed to appear, despite having been duly summoned. On 3 June 2004 the District Court delivered a judgment. On 11 October 2004 the Budapest Regional Court remitted the case.

The District Court delivered a partial judgment on 12 April 2006, which was decided on appeal by the Regional Court on 22 March 2007.

In respect of the respondent's counterclaim, the first-instance court delivered a judgment on 7 July 2006 which was upheld by the Regional Court on 22 March 2007.


The applicant, Zbigniew Pasławski, is a Polish national, who was born in 1955 and lives in Ustrzyki Dolne, Poland. He was represented before the Court by Mr Z. Cichoń, a lawyer practising in Cracow, Poland. The respondent Government were represented by their Agent, Mr K. Drzewicki.

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

On 28 February 1996 the applicant bought 3.71 hectares of land situated near the Bieszczadzki National Park in the Ustrzyki Dolne County. After consulting specialists in forestry, he decided that the nature of the land made it suitable for a commercial nursery. The applicant submitted that he had fenced the property with posts and planted 15,000 spruce trees on it. He intended to sell them as Christmas trees. The applicant used tree shelters made of woollen fabric and a chemical repellent to prevent damage caused by game. The Government submitted that the applicant had failed to “properly secure” his property from game and hunters.

During winter 1996/97 about 80% of the trees were damaged by game. The applicant estimated his loss at PLN 47,800. He replaced destroyed trees but in spring 1997 game again damaged trees. The Government contested the applicant's estimate.

Furthermore, the applicant submitted that on numerous occasions he met on his plantation Polish and foreign hunters accompanied by a forest warden (leśniczy). When the applicant asked the forest warden why they hunted on his private property he was told that his land had been leased to the local hunting club (Koło łowieckie). It followed that the hunters could take game on the applicant's land whether he objected to it or not, whereas the applicant himself had no right to hunt on his property. In addition, the forest warden stated that although he could see damage to the applicant's property caused by game, according to law nobody was responsible for it.

Subsequently, the applicant complained to the Krosno Regional Office (Urząd Wojewódzki w Krośnie), the Krosno Regional Directorate of Sate Forests (Regionalna Dyrekcja Lasów Państwowych w Krośnie), the Ombudsman and the local hunting club which leased his property.

In a letter of 1 April 1996 the Krosno Regional Office observed that the applicant's claim concerned damage caused to a nursery and informed him that according to Article 46 (1) of the Law of 13 October 1995 compensation could be obtained only for damage to harvested crops or crops under cultivation. Moreover, the applicant was advised to approach the local hunting club in order to start co-operation in protecting his property from damage. Finally, he was informed that under Article 14 of the Law of 28 September 1991 he could apply for a subsidy to reimburse the cost of planting new trees if his property was covered by the official zoning map.

On 30 July 1997 the applicant received a letter from the Ombudsman which stated:

“In reply to your letter (...) concerning damage to your nurseries caused over many years by game – for which you cannot obtain compensation – unfortunately I do not have good news for you. I should explain the following:

1) The question whether compensation should be paid is regulated by law (...). However, the currently binding law – as before – is very unfavourable to you and many other individuals. The presently binding regulations, i.e. the Nature Preservation Law of 16 October 1991 (...) and the Hunting Law of 13 October 1995 (...) allow only very limited liability for damage caused by game. According to those regulations, such a liability, i.e. an obligation to pay compensation, exists only in the following cases:

(a) damage caused by bison, bears and beavers, or

(b) if damage is caused to harvested crops and crops under cultivation – also by (...) boars, elks, deer, fallow deer and roe deer (...). However, damage caused by other species does not result in such liability. It follows that those who suffered damage [caused by such species] do not have legal grounds and possibilities to obtain compensation, as neither the State Treasury, i.e. organs of public administration, nor any other institution is obliged to pay compensation.

2) The Ombudsman has considered that such a legal situation (...) should be changed since it is unfair and detrimental to citizens. The Sejm and Senate are competent to introduce changes to legislation which would create liability for damage caused by game. (...) In 1995, when the Hunting Bill was being considered by the Sejm, the Ombudsman pointed out to the Speaker of the Sejm – not for the first time – that the legal regulation of that subject-matter should be changed (...). Unfortunately, the Sejm adopted the Hunting Bill without taking into account the Ombudsman's submissions and did not extend liability for damage to all kinds of damage caused by game but instead practically repeated old regulations.

Therefore, the legal regulation of that subject-matter has not been changed. Even if in the future the Sejm changes (...) the regulations (...), it will not be possible to receive compensation for damage suffered before the change [of legislation] because new regulations will not apply retroactively to damage caused before the date on which new regulations enter into force.

The legislation presently in force does not provide for the liability of either the State Treasury or any other institution for damage caused, inter alia, in crops other than agricultural and therefore there is no legal i.e. judicial avenue to claim effectively compensation precisely because there are no legal grounds for such a claim. (...)”

Article 14, in so far as relevant, provides: (...)

The official zoning map (...) designs grounds to be afforested.

The owners (...) of grounds can obtain subsidies from the State budget for full or partial reimbursement of the costs of afforesting grounds referred to in paragraph 3. The decision concerning the grant of subsidy to cover those costs is made by the mayor after receiving an application from an owner (...) and the opinion of the county council.

“Game, for the nation weal, is the property of the State Treasury.”

“Game taken on hunting grounds (obwód łowiecki) in compliance with the legal regulations belongs to the lessee or manager of the hunting grounds, and on the land not pooled into hunting grounds – to the State Treasury”

“Hunting grounds consist of an area not smaller than three thousand hectares on which there exist conditions for hunting.”

“The Governor [establishes the borders of] hunting grounds and changes the borders of hunting grounds within his province by way of an ordinance which is issued after receiving an opinion of the Regional Director of the State Forests Administration and the Polish Hunting Federation.”

“Hunting grounds are leased to the local hunting clubs of the Polish Hunting Federation.”

“1. The lessee shall settle the rent received between the forest administration and the counties.

The forest administration shall receive a part of the rent proportionate to the area of State-owned land [pooled in hunting grounds], whereas counties shall receive [a part of the rent proportionate to] the remaining area of the hunting grounds.

“The Polish Hunting Federation is a union of physical and legal persons who actively participate in the preservation and development of game and act to preserve nature.”

“1. Local hunting clubs are unions of physical persons and are units of the Polish Hunting Federation for the purposes of hunting.

Hunting clubs are legal persons liable for their obligations.”

“The tasks of the Polish Hunting Federation include:

hunting management;

taking care of the development of hunting and co-operating with the State administration, local government, units of the State Forest Administration, national parks and other organisations in the preservation of nature, in the preservation and development of game and other wild animals,

taking care of the hunting heritage,

“1. Hunting is allowed after the consent of the lessee or manager of the hunting grounds has been obtained.

Proof of membership of the Polish Hunting Federation certifying appropriate qualifications and a hunter's firearms licence (...) are required to hunt.

Hunter's qualifications shall be certified after an examination before a commission set up by the Polish Hunting Federation.

“The lessee or manager of the hunting grounds shall compensate damage caused:

to harvested crops and crops under cultivation by boars, elks, deer, fallow deer and roe deer,

during the hunt.”

“1. The owners (...) of agricultural and afforested grounds shall, as needed, co-operate with the lessees and managers of the hunting grounds in securing them against damage referred to in Article 46.

If there is a disagreement between the owner (...) of a ground and the lessees and managers of the hunting grounds, as to the amount of compensation for damage referred to in Article 46, the parties may request the (...) local council to mediate a settlement. ”

“ The Minister of Environment, Natural Resources and Forestry in agreement with the Minister of Agriculture shall issue a resolution concerning detailed rules and procedures of damage assessment and payment of compensation for damage caused to crops under cultivation and harvested crops.”

“The State Treasury shall be responsible for damage caused by game under permanent protection”

According to the materials submitted by the applicant, in 1997 the Krosno Regional Directorate of State Forests charged foreign hunters DEM 3,300 for each taken medium-seized deer. The Directorate invested those funds in the preservation of forests.

Article 79 (1) of the Constitution of 2 April 1997 provides, in so far as relevant, as follows:

“Everybody whose constitutional freedoms and rights have been violated, shall have a right to (...) lodge a complaint with the Constitutional Court concerning the conformity with the Constitution of a law or any other regulation, which was a basis on which a court or an organ of public administration decided about his freedoms, rights or obligations provided by the Constitution.”

Article 188 of the Constitution reads, in so far as relevant, as follows:

“ The Constitutional Court shall adjudicate cases concerning:

the conformity of laws and international agreements with the Constitution,

the conformity of ratified international agreements (...),

the conformity of laws issued by the central organs of the state, with the Constitution, ratified international agreements and laws,

the conformity of the aims and activities of political parties with the Constitution,

the Constitutional complaint, referred to in Article 79 (1).”

Article 190 of the Constitution provides, in so far as relevant, as follows:

“1. Decisions of the Constitutional Court are binding and final.

Decisions of the Constitutional Court in cases referred to in Article 188 shall be published (...).

A decision of the Constitutional Court shall enter into force on a day on which it is published; however, the Constitutional Court may set a different time-limit for the overturning of [unconstitutional] legislation to take effect. Such a time-limit shall not exceed eighteen months in cases concerning a law, and twelve months in cases concerning other types of legislation. In respect of decisions resulting in financial outlays not provided by the budget law, a time-limit shall be set after the Constitutional Court acquaints itself with the opinion of the Council of Ministers.

A decision of the Constitutional Court declaring unconstitutional (...) a piece of legislation, according to which a case was decided (...) is a basis for re-opening the case. (...)”

Article 21 of the Constitution provides:

“1. Republic of Poland shall protect property and a right to inherit.

Expropriation is allowed only in the public interest and with just compensation.”

Article 401¹ of the Code of Civil Procedure provides, in so far as relevant:

“§1. A case may be reopened also when the Constitutional Court declared unconstitutional a legal act (..) on which a judgment was based.

§2. In the circumstances described in § 1 an application for reopening shall be lodged within one month after the entry into force of the Constitutional Court's decision.”