David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Martti Leino, is a Finnish national who was born in 1937 and lives in Espoo. He was represented before the Court by Mr P. Kavonius, a lawyer practising in Lohja. The respondent Government were represented by their agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

The applicant had a voluntary pension insurance from 1988 until 2001 into which he paid in total 16,902.72 euros (EUR). From April 2001 his employer was responsible for paying contributions to the insurance policy and in November 2001 it paid one instalment of EUR 4,940.25.

By a decision of 20 August 2002 the Social Insurance Institution (kansaneläkelaitos - KELA, folkpensionsanstalten – FPA, hereafter “KELA”) granted the applicant an old-age pension (kansaneläke, folkspension) of EUR 154.85 per month as from 1 October 2002. The occupational pension (työeläke, arbetspension) paid to the applicant by a life insurance company was taken into consideration in calculating the amount of his old-age pension.

On 5 June 2003 an insurance company granted the applicant a pension based on his voluntary pension insurance retroactively as from 1 October 2002.

As a result of this new pension decision the KELA informed the applicant by letter of 10 June 2003 that there had been an error in the previous decision of 20 August 2002 and that his old-age pension would diminish as a result of the pending rectification. The applicant was invited to inform the KELA of his opinion on the rectification by 30 June 2003. A form to this effect was attached to the letter. The applicant did not reply to the letter.

On 30 June 2003 the KELA made a decision to cease the payment of the applicant’s old-age pension as of 1 July 2003 due to the increase in his other pensions. The applicant did not appeal against this decision which thus became final.

By a letter dated 1 July 2003 the KELA informed the applicant that the old-age pension he had received in the period between 1 October 2002 and 30 June 2003, in total EUR 1,404.81, was in fact in excess due to the new calculations and that he should let the KELA know his opinion on the matter by 12 July 2003. The applicant did not reply to the letter.

On 22 August 2003 the KELA decided to recover the entire old-age pension paid. The applicant was given two months to pay.

On 17 September 2003 the applicant appealed to the Appellate Board for Social Insurance (tarkastuslautakunta, prövningsnämnden) against the decision of 22 August 2003. He claimed that the entire voluntary pension was regarded by the KELA as one paid by his employer whereas he himself, the tax authorities and his insurance company considered the main part of that pension as being paid by the applicant.

On 26 August 2004 the Appellate Board dismissed his appeal, stating that there were no reasons for making an exception to the rule that pension payments to which the recipient was not entitled should be paid back.

On 13 October 2004 the applicant appealed to the Insurance Court, which dismissed his appeal on 23 February 2006 without elaborating on the reasons or addressing the specific circumstances of the applicant’s pension.

On 17 March 2006 the KELA requested the applicant to contact them regarding the schedule of repayments. Subsequently the insurance company’s lawyer contacted the KELA and provided additional clarifications, to no avail. On 11 May 2006 a payment order was sent to the applicant.


CASE OF MOSTACCIUOLO GIUSEPPE v. ITALY (No. 2)

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1938 and lives in Benevento.

On 5 May 1987 Mr F. asked the Benevento District Court to order the applicant to pay him 73,934,495 Italian lire (38,183.98 euros (EUR)) for professional services. On 11 May 1987 the President of the Benevento District Court granted the application. The order was served on the applicant on 20 May 1987.

On 8 June 1987 the applicant challenged the order in the Benevento District Court. Preparation of the case for trial began on 24 September 1987. Of the twenty-nine hearings listed between 26 November 1987 and 16 October 1998 seven were adjourned by the court of its own motion, ten were devoted to organising expert evidence and supplementary findings and two were adjourned at the parties’ request.

On 16 April 1999 the case was referred to the bench of judges dealing with the oldest cases (sezioni stralcio). Of the four hearings listed between 22 September 1999 and 8 February 2002 one was adjourned by the court of its own motion and one because the parties had not appeared. On 2 May 2003 the case was struck out of the list of cases because the parties had not appeared.

On 10 January 2002 the applicant lodged an application with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto Act”, complaining of the excessive length of the above-described proceedings. The applicant asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the pecuniary and non-pecuniary damage sustained. The applicant claimed EUR 14,460.94 in pecuniary and non-pecuniary damages. He sought the reimbursement of his legal costs, including those incurred before the European Court of Human Rights, but did not quantify or give particulars of them.

In a decision of 21 June 2002, the text of which was deposited with the registry on 2 October 2002, the Court of Appeal found that the length of the proceedings had been excessive. It held as follows:

“ ... The proceedings have lasted approximately 15 years without being disposed of.

Their length is clearly well over the reasonable time required by Article 6 § 1 of the European Convention.

On the basis of the time periods considered reasonable in a series of judgments of the Strasbourg Court, this type of proceedings should have ended within three years at the most since they were normal proceedings on the merits to be prepared and dealt with in accordance with the ordinary procedure.

Accordingly, in respect of the surplus period of approximately 12 years the delay has to be regarded as unjustified.

That delay certainly cannot be attributed to culpable conduct on the part of the applicant, who did not make any unsubstantiated requests for an adjournment or applications for investigative measures on false pretexts since he merely put up with the numerous adjournments ordered by the court of its own motion and the slowness in preparing the case without being able to intervene to expedite the proceedings, as was in his interests, and have set aside an order to pay a substantial sum which he considered unfair.

Nor is the delay attributable to the complexity of the case since, on the contrary, it was an ordinary dispute which could easily have been disposed of in less time by examining a number of documents and the expert report that was drawn up, as the technical investigation did not require a lot of work.

Nor have the courts been negligent, since the overlong parts of the proceedings have to be attributed to the excessive caseload and the structural flaws for which the Benevento judicial departments are notorious.

Accordingly, responsibility for the delay can only be attributed to the Italian State, which, despite its obligation after signing and ratifying the European Convention of Human Rights to equip itself with a judicial system capable of dealing with its citizens’ legal claims, has failed to expedite proceedings because of persistent structural flaws and the growing increase in the caseload, despite a number of changes to the rules and a reinforcement of the court structures.

The applicant shall therefore be awarded just satisfaction.

No award shall be made for pecuniary damage because the applicant has failed to substantiate his claim.

He is, however, entitled to non-pecuniary damages since it cannot be excluded that he has suffered as a result of the consequent long and frustrating wait for a judgment which has still not been delivered after years of preparation of the case and which should solve a matter of major economic importance for him.

Having regard to the length of the delay, the interests at stake and the uncertain outcome of the dispute, we consider it equitable to make an award of 2,000 euros...”

The Court of Appeal dismissed the claim for pecuniary damages on the ground that the applicant had not provided any proof, awarded him EUR 2,000 on an equitable basis in compensation for non-pecuniary damage, EUR 700 for costs and expenses incurred in the proceedings before the European Court of Human Rights and EUR 900 for the costs and expenses incurred in the Pinto proceedings.

In a letter of 21 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of his application.

The applicant has not indicated that he appealed to the Court of Cassation.

The Court of Appeal’s decision was served on the authorities on 23 January 2003 and became final on 24 March 2003. The applicant served the authorities with notice to comply on 15 October 2003. On 29 October 2003 the applicant lodged an application for a garnishee order with the Rome judge responsible for enforcement proceedings and a hearing was held on 28 March 2004. After obtaining a garnishee order on 27 May 2004, the sums were paid on an unspecified date after the order had been served.

Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to Article 375 of the Code of Civil Procedure

CHAPTER II

Just satisfaction

Section 2

Entitlement to just satisfaction

“1. Anyone sustaining pecuniary or non-pecuniary damage as a result of a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, on account of a failure to comply with the ‘reasonable-time’ requirement in Article 6 § 1 of the Convention, shall be entitled to just satisfaction.

In determining whether there has been a violation, the court shall have regard to the complexity of the case and, in the light thereof, the conduct of the parties and of the judge deciding procedural issues, and also the conduct of any authority required to participate in or contribute to the resolution of the case.

The court shall assess the quantum of damage in accordance with Article 2056 of the Civil Code and shall apply the following rules:

(a) only damage attributable to the period beyond the reasonable time referred to in subsection 1 may be taken into account;

(b) in addition to the payment of a sum of money, reparation for non-pecuniary damage shall be made by giving suitable publicity to the finding of a violation.”

Section 3

Procedure

“1. Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under Article 11 of the Code of Criminal Procedure to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending.

The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by Article 125 of the Code of Civil Procedure.

The application shall be made against the Minister of Justice where the alleged violation has taken place in proceedings in the ordinary courts, the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners. In all other cases, the application shall be made against the Prime Minister.

The court of appeal shall hear the application in accordance with Articles 737 et seq. of the Code of Civil Procedure. The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of State Counsel (Avvocatura dello Stato) at least fifteen days prior to the date of the hearing before the Chamber.

The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in section 2 is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing. The parties may lodge memorials and documents up till five days before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties.

The court shall deliver a decision within four months after the application is lodged. An appeal shall lie to the Court of Cassation. The decision shall be enforceable immediately.

To the extent that resources permit, payment of compensation to those entitled shall commence on 1 January 2002.”

Section 4

Time-limits and procedures for lodging applications

“A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within six months from the date when the decision ending the proceedings becomes final. Claims lodged after that date shall be time-barred.”

Section 5

Communications

“If the court decides to allow an application, its decision shall be communicated by the registry to the parties, to State Counsel at the Court of Audit to enable him to start an investigation into liability, and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity.”

Section 6

Transitional provisions

“1. Within six months after the entry into force of this Act, anyone who has lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified by Law no. 848 of 4 August 1955, shall be entitled to lodge a claim under section 3 hereof provided that the application has not by then been declared admissible by the European Court. In such cases, the application to the court of appeal must state when the application to the said European Court was made.

The registry of the relevant court shall inform the Minister for Foreign Affairs without delay of any claim lodged in accordance with section 3 and within the period laid down in subsection 1 of this section.”

Section 7

Financial provisions

“1. The financial cost of implementing this Act, which is put at 12,705,000,000 Italian lire from 2002, shall be met by releasing funds entered in the three-year budget 2001-03 in the chapter concerning the basic current-liability estimates from the ‘special fund’ in the year 2001 forecast of the Ministry of the Treasury, Economy and Financial Planning. Treasury deposits shall be set aside for that purpose.

The Ministry of the Treasury, Economy and Financial Planning is authorised to make the appropriate budgetary adjustments by decree.”

On appeal from decisions delivered by the courts of appeal in “Pinto” proceedings, the Court of Cassation, sitting as a full court (Sezioni Unite), gave four judgments (nos. 1338, 1339, 1340 and 1341) on 27 November 2003, the texts of which were deposited with the registry on 26 January 2004, quashing the appeal court’s decision and remitting the case for a rehearing. It held that “the case-law of the Strasbourg Court is binding on Italian courts regarding the application of Law no. 89/2001”.

In its judgment no. 1340 it affirmed, inter alia, the principle that

“the court of appeal’s determination of non-pecuniary damage in accordance with section 2 of Law no. 89/2001, although inherently based on equitable principles, must be done in a legally defined framework since reference has to be made to the amounts awarded, in similar cases, by the Strasbourg Court. Some divergence is permissible, within reason.”

Extracts from the plenary Court of Cassation’s judgment no. 1339 deposited with the registry on 26 January 2004

“... 2.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of 24 March 2001 no. 89, and in particular in determining the non-pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of the European Court of Human Rights, whether considered generally as interpretative guidelines which the said Court has laid down with regard to the consequences of the said violation, or with reference to a specific case in which the European Court has already had occasion to give a judgment on the delay in reaching a decision. ...

As stipulated in section 2.1 of the said Law, the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified in accordance with the Law of 4 August 1955 no. 848, for failure to comply with the reasonable time referred to in Article 6, paragraph 1 of the Convention.” In other words, Law no. 89/2001 identifies the fact constituting the right to compensation by reference to a specific provision of the European Convention on Human Rights. This Convention instituted a Court (the European Court of Human Rights, with its seat in Strasbourg) to ensure compliance with the provisions contained therein (Article 19). Accordingly, the competence of the said court to determine, and therefore to interpret, the significance of the said provisions must be recognised.

As the fact constituting the right conferred by Law no. 89/2001 consists of a violation of the European Convention on Human Rights, it is for the Court of the European Convention on Human Rights to determine all the elements of such a legal fact, which thus ends by being “brought into conformity” by the Strasbourg Court, whose case-law is binding on the Italian courts in so far as the application of Law no. 89/2001 is concerned.

It is not necessary therefore to pose the general problem of the relationships between the European Convention on Human Rights and the internal judicial system, which the Advocate-General (Procuratore Generale) has amply discussed in court. Whatever opinion one may have about that controversial issue and therefore about the place of the European Convention on Human Rights in the context of the sources of domestic law, it is certain that the direct implementation in the Italian judicial system of a provision of the European Convention on Human Rights, established by Law no. 89/2001 (that is, by Article 6.1 in the part relating to “reasonable time”), cannot diverge from the interpretation which the European Court gives of the same provision.

The opposite argument, which would permit a substantial divergence between the application accorded to Law no. 89/2001 in the national system and the interpretation given by the Strasbourg Court to the right to reasonable length of proceedings, would deprive the said Law no. 89/2001 of any justification and cause the Italian State to violate Article 1 of the European Convention on Human Rights, according to which ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’ (including the said Article 6, which provides for the right to have a case decided within a reasonable length of time).

The reason behind the enactment of Law no. 89/2001 was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings, so as to give effect to the subsidiary character of intervention on the part of the Court of Strasbourg, expressly provided for by the European Convention on Human Rights (Article 35: “the Court may only deal with the matter after all domestic remedies have been exhausted”). The European system for the protection of human rights is founded on the said principle of subsidiarity. From it derives the duty of the States which have ratified the European Convention on Human Rights to guarantee to individuals the protection of the rights recognised by the European Convention on Human Rights, above all in their own internal order and vis-à-vis the organs of the national judicial system. And this protection must be “effective” (Article 13 of the European Convention on Human Rights), that is, of a kind to remedy the claim without the need for recourse to the Strasbourg Court.

The domestic remedy introduced by Law no. 89/2001 did not previously exist in the Italian system, with the consequence that appeals against Italy in respect of a violation of Article 6 of the European Convention on Human Rights had “clogged” (the term used by rapporteur Follieri in the sitting of the Senate of 28 September 2000) the European Court. The Strasbourg Court observed, prior to Law no. 89/2001, that the said failures to comply on the part of Italy “reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy. This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention” (see the four judgments of the Court delivered on 28 July 1999 in the cases of Bottazzi, Di Mauro, Ferrari and A. P.).

Law no. 89/2001 constitutes the domestic remedy to which a “victim of a violation” (as defined by Article 34 of the European Convention on Human Rights) of Article 6 (failure to comply with the reasonable-time requirement) must have recourse before applying to the European Court to claim the “just satisfaction” provided for in Article 41 of the European Convention on Human Rights, which, when the violation exists, is only awarded by the Court “if the internal law of the High Contracting Party concerned allows only partial reparation to be made”. Law no. 89/2001 has therefore allowed the European Court to declare inadmissible applications lodged with it (including before the Act was passed) and aimed at obtaining just satisfaction provided for in Article 41 of the European Convention on Human Rights for the excessive length of proceedings (Brusco v. Italy, decision of 6 September 2001).

This mechanism for implementation of the European Convention on Human Rights and observance of the principle of subsidiarity in respect of interventions of the European Court of Strasbourg does not operate, however, in cases in which the Court holds that the consequences of the established violation of the European Convention on Human Rights have not been redressed by domestic law or that this has been done only “partially”, because in such an event the said Article 41 provides for the intervention of the European Court to protect the “victim of the violation”. In such cases an individual application to the Strasbourg Court on the basis of Article 34 of the European Convention on Human Rights is admissible (Scordino and Others v. Italy, decision of 27 March 2003) and the Court acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law.

The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is, obviously, the European Court, whose duty it is to apply Article 41 of the European Convention on Human Rights to ascertain whether, in the presence of a violation of a provision of the European Convention on Human Rights, the internal law has been able to fully redress the consequences of this violation.

The argument whereby, in applying Law no. 89/2001, the Italian court may follow a different interpretation from that which the European Court has given to the provisions of Article 6 of the European Convention on Human Rights (violation of which is the fact giving entitlement to the right to compensation attributed by the said national law) implies that the victim of the violation, if he or she receives reparation at national level considered inadequate by the European Court, must obtain the just satisfaction provided for in Article 41 of the European Convention on Human Rights from the latter Court. This would defeat the purpose of the remedy provided for in Italian law by Law no. 89/2001 and entail a violation of the principle of the subsidiarity of the intervention of the Strasbourg Court.

It is therefore necessary to concur with the European Court of Human Rights, which, in the above-mentioned decision on the Scordino application (concerning the inadequacy of the protection afforded by the Italian courts in implementing Law no. 89/2001), affirmed that “it follows from the principle of subsidiarity ... that the national courts must, where possible, interpret and apply domestic law in accordance with the Convention”.

... The preparatory documents of Law no. 89/2001 are even more explicit. In the report concerning the bill of Senator Pinto (proceedings of the Senate no. 3813 of 16 February 1999) it is affirmed that the compensatory mechanism proposed in the legislative initiative (and then adopted by the Act) secures for the applicant “a protection analogous to that which he or she would receive in the international court”, as the direct reference to Article 6 of the European Convention on Human Rights makes it possible to transfer to domestic level “the limits of applicability of the same provision existing at international level, limits which depend essentially on the State and on the development of the case-law of the Strasbourg authorities, especially that of the European Court of Human Rights, whose decisions must therefore guide ... the domestic court in the definition of these limits”.

... 6. – The considerations expounded in sections 3-5 of the document refer in general to the importance of the interpretative guidance of the European Court on the implementation of Law no. 89/2001 with regard to reparation for non-pecuniary damage.

In this particular instance, however, any possibility for the national court to exclude non-pecuniary damage (despite having found a violation of Article 6 of the European Convention on Human Rights) must be considered as non-existent because such is precluded by the previous decision of the European Court which, with reference to the same proceedings, had already ascertained that the unjustified delay in reaching a decision had had consequences involving non-pecuniary damage for the applicant, which the Court itself redressed for a limited period. From such a decision of the European Court it follows that, once the national court has ascertained that the violation has continued in the period following that considered in the said decision, the applicant has continued to suffer non-pecuniary damage, which must be compensated for in application of Law no. 89/2001.

It cannot therefore be maintained – as the Rome Court of Appeal has done – that compensation is not due because of the small amounts at stake in the proceedings in question. Such a reason, apart from being rendered immaterial by the fact that the European Court has already ruled that non-pecuniary damage had been sustained because of delay in the same action, is in any case incorrect, because the amount of what is at stake in an action in which non-compliance with reasonable time-limits has been ascertained can never have the effect of excluding non-pecuniary damage, given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it.

– In conclusion the decision appealed against must be quashed and the case remitted to the Rome Court of Appeal, which, in a different composition, will order payment to the applicant of the non-pecuniary damages payable as a result of the violation of the reasonable-time requirement for the period following 16 April 1996 alone, taking as a reference point payments of the same kind of damages by the European Court of Human Rights, from which it may diverge, but only to a reasonable extent (HR Court, 27 March 2003, Scordino v. Italy)”.

The Court of Cassation held as follows:

“...Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no. 89 of 2001 [known as the “Pinto Act”] this shall preclude a right [to just satisfaction] from arising and passing to the heirs, in accordance with the general rule that a person who has died cannot become entitled to a right conferred by an Act that is passed after their death...”

The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from the Pinto Act. The mechanism set in place by the European standard did not give applicants a cause of action before the domestic courts. Accordingly, the right to “just satisfaction” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force. The fact that the deceased had, while alive, lodged an application with the Strasbourg Court was not decisive. Section 6 of the Pinto Act did not constitute, as the applicants had maintained, a procedural standard bringing about a transfer of powers from the European Court to the domestic courts.

In this case, which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of Article 6 § 1 on account of the length of the proceedings, the First Division of the Court of Cassation referred the case to the full court indicating that there was a conflict between the case-law authorities, that is, between the restrictive approach taken by the Court of Cassation in the earlier judgments regarding heirs and the Pinto Act and the four judgments delivered by the Court of Cassation, sitting as a full court, on 26 January 2004 to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since Italy ratified the European Convention on 4 August 1955.

In the case giving rise to the order mentioned above referring the case to the full court (see preceding paragraph), the Court of Cassation, sitting as a full court, established the following principles, thus preventing any further conflicting decisions being given by the courts:

(i) Law no. 848 of 4 August 1955, which ratified the Convention and made it enforceable, introduced into domestic legal order the fundamental rights, belonging to the category of rights conferred on the individual by public law, provided for in the first section of the Convention and which correspond to a large extent with those set forth in Article 2 of the Constitution. In that respect the Convention provisions are confirmatory and illustrative. ...

(ii) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in Article 6 of the Convention, which is immediately applicable in domestic law.

The distinction between the right to a hearing within a reasonable time, introduced by the European Convention on Human Rights (or even pre-existing as a constitutionally protected value), and the right to equitable reparation, which was allegedly introduced only by the Pinto Act, cannot be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by the Strasbourg Court, the domestic courts being bound to comply with the case-law of the European Court. ...

(iii) Accordingly, the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no. 89/2001 must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date, subject only to the condition that the claim has not already been lodged with the Strasbourg Court and the Court has not ruled on admissibility. ...

This judgment of the Court of Cassation concerned an appeal by the Ministry of Justice challenging the Court of Appeal’s award of non-pecuniary damages to a juristic person. The Court of Cassation referred to the decision reached in the case of Comingersoll v. Portugal [GC], no. 35382/97, ECHR 2000IV and, after referring to the four judgments of the full court delivered on 26 January 2004, found that its own case-law was not in line with the European Court. It held that there was no legal barrier to awarding just satisfaction to “juristic” persons according to the criteria of the Strasbourg Court. Accordingly, since the Court of Appeal had correctly decided the case the appeal was dismissed.

The Court of Cassation made the following observations:

“ ... [Whereas] non-pecuniary damage is the normal, albeit not automatic, consequence of a breach of the right to a hearing within a reasonable time, it will be deemed to exist, without it being necessary to specifically prove it (directly or by presumption), on the basis of the objective fact of the breach, on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned (Cass. A.P. 26 January 2004 nos. 1338 and 1339).

- the assessment on an equitable basis of compensation for non-pecuniary damage is subject – on account of the specific reference in section 2 of Law no. 89 of 24 March 2001 to Article 6 of the European Convention on Human Rights (ratified by Law no. 848 of 4 August 1955) – to compliance with the Convention, in accordance with the judicial interpretation given by the Strasbourg Court (non-compliance with which results in a violation of the law), and must therefore, as far as possible, be commensurate, in substantive and not merely formal terms, with the amounts paid in similar cases by the European Court, it being possible to adduce exceptional circumstances that suggest themselves in the particular case, on condition that they are reasoned, not excessive and not unreasonable (Cass. A.P. 26 January 2004 no. 1340). ...

- a discrepancy in the method of calculation [between the Court’s case-law and section 2 of the Pinto Act] shall not affect the general vocation of Law no. 89 of 2001 to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time (vocation acknowledged by the European Court in, inter alia, a decision of 27 March 2003 in Scordino v. Italy (application no. 36813/97)), and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by the Italian Republic when ratifying the European Convention and the formal recognition, also at constitutional level, of the principle of Article 6 § 1 of that Convention...”

In the report CM/Inf/DH(2004)23, revised on 24 September 2004, the Ministers’ deputies made the following indications regarding an assessment of the Pinto remedy:

“...11. As regards the domestic remedy introduced in 2001 by the “Pinto Act”, a number of shortcomings remain, particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention: in particular, the law does not provide yet for the acceleration of pending proceedings. ...

In the framework of its examination of the 1st annual report, the Committee of Ministers expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts. ...

It should be pointed out that in the framework of its examination of the 2nd annual report, the Committee of Ministers had noted with concern that the Convention had no direct effect and had consequently invited the Italian authorities to intensify their efforts at national level as well as their contacts with the different bodies of the Council of Europe competent in this field. ...”

In this interim resolution the Ministers’ deputies indicated as follows:

“The Committee of Ministers

Noting ...

“...the setting-up of a domestic remedy providing compensation in cases of excessive length of proceedings, adopted in 2001 (the "Pinto” law), as well as the recent development of the case-law of the Court of cassation, increasing the direct effect of the case-law of the European Court in the Italian legal system, while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims;

Stressing that the setting-up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations;

Finding that despite the efforts undertaken, numerous elements still indicate that the solution to the problem will not be found in the near future (as evidenced in particular by the statistical data, the new cases before both domestic courts and the European Court, the information contained in the annual reports submitted by the government to the Committee and in the reports of the Prosecutor General at the Court of cassation); ...

Stressing the importance the Convention attaches to the right to fair administration of justice in a democratic society and recalling that the problem of the excessive length of judicial proceedings, by reason of its persistence and extent, constitutes a real danger for the respect of the rule of law in Italy; ...

URGES the Italian authorities to enhance their political commitment and make it their effective priority to meet Italy’s obligation under the Convention and the Court’s judgments, to secure the right to a fair trial within a reasonable time to all persons under Italy’s jurisdiction. ...”

The European Commission for the efficiency of justice was set up at the Council of Europe by Resolution Res(2002)12 with the aim of (a) improving the efficiency and the functioning of the justice of member States with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively, thereby generating increased confidence of the citizens in the justice system and (b) enabling a better implementation of the international legal instruments of the Council of Europe concerning efficiency and fairness of justice.

In its framework programme (CEPEJ (2004) 19 Rev 2 § (7) the CEPEJ noted that “the mechanisms which are limited to compensation are too weak and do not adequately incite the States to modify their operational process, and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays.”


CASE OF FADİME AND TURAN KARABULUT v. TURKEY

Violation of Art. 2 (substantive aspect);Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicants were born in 1963 and 1950 respectively and live in Sivas. They had two daughters, Nermin Karabulut and Serap Karabulut.

According to the applicants, on 29 July 1998 at about 1 p.m. the two girls were hitchhiking to Sivas when a military vehicle stopped and the soldiers who got out started shooting at them. Nermin Karabulut, who was fourteen years old, was shot and died later in the day in a hospital. Serap Karabulut, who was sixteen, was beaten by the soldiers before being taken to a gendarmerie station. She was released the same evening.

The same day a scene of incident report was drawn up by the gendarmerie officers. According to that report, a person who wanted to remain anonymous telephoned the gendarmerie and stated that he had seen a female behaving suspiciously. A number of gendarme officers and soldiers arrived at the scene at around 2 p.m. and saw the female in question. When the female saw the soldiers she began to run away. The soldiers unsuccessfully called out to her to stop and then fired fifteen to twenty warning shots in the air. The female responded by throwing a hand grenade at the soldiers and the soldiers continued firing warning shots. When she attempted to throw another grenade, the soldiers shot her. When they searched her the soldiers found a stick, two knives, a screwdriver, a two-metre-long electricity cable, a syringe with a yellow liquid inside and a hand grenade. None of the soldiers were injured in the incident. Nermin Karabulut was then taken to a hospital in the city of Sivas where she died later the same day.

On 30 July 1998 the second applicant and his surviving daughter Serap Karabulut made statements to a prosecutor. The second applicant maintained that his two daughters had been trying to flag down a car in order to go to a hospital in Sivas where they had had operations previously. When no cars stopped, the girls had decided to walk to their uncle's house but then the soldiers arrived and told the two girls to stop. Serap Karabulut raised her hands and stopped but Nermin Karabulut started to run away from the soldiers because she was scared. The soldiers then shot her. The second applicant asked the prosecutor to find and prosecute those responsible for the killing of his daughter.

Serap Karabulut confirmed the version of the events described by her father and added that she would recognise the soldier who shot her sister. She also stated that the soldiers had beaten her up.

The same day Serap Karabulut was taken to the Sivas Numune Hospital where she was examined by a doctor. The medical report indicated that there was an area of bruising measuring 4 x 5 cm, on her right shoulder and a scratch measuring 3 x 4 cm on her left shoulder.

Also the same day an autopsy was conducted on Nermin Karabulut's body at the Cumhuriyet University Medical Department, with the attendance of a prosecutor. Just before the autopsy her mother formally identified her deceased daughter. She told those present at the hospital that her daughter Nermin Karabulut had been carrying the knives and the screwdriver in order to defend herself from any possible attacks while she was herding animals. She added that the syringe was hers and contained a tranquilliser which had been prescribed to her by her doctor; she did not know why her daughter had taken it from the house. She asked for those responsible for the killing of her daughter to be prosecuted and punished.

According to the autopsy report drawn up the same day, Nermin Karabulut had died as a result of internal bleeding caused by a single bullet which had entered from the back at the level of the eleventh left rib and exited at the front at the level of the ninth rib. The prosecutor who was present during the autopsy observed that the hand grenade which was allegedly found on Nermin Karabulut (see paragraph 7 above) was not among the objects submitted to his office.

According to a report prepared the same day at the Gendarmerie Laboratories, the yellow liquid in the syringe was identified as heroin.

On 5 August 1998 a scene of incident report was drawn up by the prosecutor who went to the area where Nermin Karabulut was killed. The prosecutor was accompanied by Hafik district gendarmerie commander Mehmet Elagöz, the applicants' surviving daughter Serap Karabulut, the applicants' representative, the village headman (muhtar) and an expert on explosives. A search was carried out in the area, during which a spent bullet case and a grenade fuse were found. A hole, 25-30 cm wide and 810 cm deep, was observed by those present. According to the expert, the hole could have been caused by a hand grenade as well as by numerous other things. No pieces of the hand grenade allegedly thrown by Nermin Karabulut could be found in the area. The Hafik district gendarmerie commander Elagöz told the prosecutor that the second hand grenade which was found on Nermin Karabulut had been destroyed by the soldiers after the incident.

On various dates in August, the prosecutor took statements from six gendarmerie officers who had been involved in the incident. The officers stated that they had acted under the belief that Nermin Karabulut was a terrorist because she had thrown a hand grenade at them and also because they had thought that the wooden walking stick hidden under her jacket was a rifle. They had fired warning shots, and when she was about to throw the second hand grenade, they had fired shots at her, aiming below the waist and at the hand with which she had been holding the hand grenade. Their intention was not to kill but to injure her so that they could arrest her.

On 12 August 1998 the applicants lodged a complaint with the Sivas prosecutor and informed the prosecutor that the gendarmerie personnel responsible for the killing of their daughter had been issuing press releases in which claims such as “the suicide bomber was on heroin” were made.

On 31 August 1998 the Police Laboratory issued its report on the fuse and a sample of soil taken from the hole found at the scene. According to the report, the fuse belonged to a hand grenade of NATO standard, the origin of which could not be identified. It was also established that the soil sample contained traces of Trinitrotoluene (TNT).

On 29 September 1998 the Forensic Medicine Institute issued its report on the results of tests carried out on a blood sample taken from Nermin Karabulut's body and on the yellow liquid in the syringe found with her. According to the report, there were no drugs in Nermin Karabulut's blood. The liquid in the syringe was identified as chlorpromazine, a type of tranquilliser.

On 22 October 1998 gendarmerie lieutenant-colonel Sabri Semen was appointed as the investigator on the case and began questioning the gendarmerie personnel who had taken part in the incident. On 25 October 1998 the lieutenant-colonel concluded his investigation and recommended that no permission be given for the prosecution of the six gendarmerie personnel. The report contains a summary of the statements made by, inter alia, the six gendarmerie officers, the applicants and Serap Karabulut. The lieutenant colonel considered that the gendarmerie officers had had reason to believe that Nermin Karabulut, who had not stopped when warned and had thrown a hand grenade at the soldiers, was a terrorist. Referring to the applicable legislation according to which gendarmerie officers had the right to use firearms when confronted, the report concluded that there had been no intention to kill and therefore no prosecution should be brought against the six gendarmerie officers involved in the incident.

On 10 November 1998 the Commission on the Prosecution of Civil Servants (“the CPCS”) held that the report prepared by the investigator concentrated solely on the issue of the killing and did not examine whether the soldiers had exceeded their powers. The CPCS also considered that the report lacked information on a number of issues. For example, the identity of the gendarmerie officer who shot Nermin Karabulut and the identity of the person who had informed the gendarmerie about “the suspicious female” had not been established. The soldiers' failure to preserve the purported second-hand grenade instead of destroying it had also not been questioned. The villagers had not been questioned about Nermin Karabulut's character, whether she had previously been involved in terrorist activities and where she could have obtained hand grenades.

On 8 December 1998 the investigator took additional statements from four of the gendarmerie officers who maintained that they had all fired at Nermin Karabulut at the same time and did not know which bullet had hit her. They had aimed below the waist in order to avoid killing her. Nevertheless, as the terrain was rough, she had received a lethal shot. The grenade found by her side had already been partially detonated by her and therefore would have posed a threat if preserved as evidence.

On the same day the lieutenant-colonel took statements from three villagers, who stated that Nermin Karabulut often took long walks in the countryside, sometimes with her father who was a shepherd, and sometimes alone. They did not know whether she had been involved in any terrorist activities before and they did not know from where she could have obtained the hand grenades. A gendarmerie officer who worked as a telephone operator on the switchboard told the investigating lieutenant-colonel that the person who informed them about “the suspicious female” had not given his name.

On 9 December 1998 the lieutenant-colonel prepared an additional report. The CPCS decided on 22 December 1998 to decline permission to prosecute the gendarmerie personnel who had killed Nermin Karabulut. The CPCS's decision was quashed by the Council of State on 26 June 2002.

On 22 August 2002 the Sivas prosecutor filed a bill of indictment with the Sivas Assize Court and charged six gendarmerie personnel with unintentional homicide, contrary to Article 452 of the Turkish Criminal Code. On 16 October 2002 the applicants intervened in the criminal proceedings.

On 28 January 2004 the Sivas Assize Court issued a decision of non-jurisdiction, on the ground that the defendants were military personnel and the act complained of had taken place in the course of their military duties. The case file was sent to the Sivas Military Court.

On 14 April 2005 the Sivas Military Court also issued a decision of non-jurisdiction. This decision was upheld by the Military Court of Cassation on 18 October 2005 and on 6 March 2006 the Jurisdiction Disputes Court (Uyuşmazlık Mahkemesi) held that the case fell within the jurisdiction of the Sivas Assize Court since the offence by gendarmes had been committed in the course of their administrative and civil duties.

A new trial was conducted by the Sivas Assize Court, during which the defendants were questioned by different criminal courts pursuant to rogatory letters issued by the Sivas Assize Court.

On 7 December 2007 the Sivas Assize Court considered that the gendarmes had exceeded their powers on the use of firearms by firing at Nermin Karabulut's back rather than at non-vital parts of her body. The Assize Court also considered that alternative and non-lethal methods could have been employed by the gendarmes to catch Nermin Karabulut. It found the gendarmes guilty of manslaughter and sentenced them to one year and eight months' imprisonment. However, the sentences were then suspended pursuant to Article 51 of the Criminal Code, which gave criminal courts discretion to suspend prison sentences shorter than two years.

The applicants and the defendants appealed. On 22 December 2008 the Court of Cassation upheld the Sivas Assize Court's judgment of 7 December 2007 in so far as it concerned its conclusion concerning the finding of guilt. Nevertheless, it quashed the sentencing part of the judgment in so far as it concerned five of the six gendarmes, and remitted the case to the Sivas Assize Court so that the provisions of a new law which had entered into force in the meantime (Law no. 5728 of 23 January 2008) could be applied to them and the pronunciation of their sentences could thus be deferred. As the sixth gendarme already had a criminal record in respect of another offence, the Court of Cassation held that he could not benefit from the favourable provisions of the new law, and upheld his suspended sentence handed down by the Sivas Assize Court on 7 December 2007.

A new trial was conducted by the Sivas Assize Court which reiterated on 17 December 2009 the conclusion it had reached on 7 December 2007, and found the remaining five gendarmes guilty of the offence of manslaughter. They were sentenced to one year and eight months' imprisonment but the execution of the sentences was suspended. The Sivas Assize Court observed that the defendants had no previous convictions and considered that they would not commit any such offences in future. The applicants lodged an appeal against the judgment, the outcome of which is unknown to the Court.


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

The applicant, Mr Anatoliy Yefimovich Kot was born in 1937 and lives in Tambov. In 1987 he took part in the emergency operations at the site of the Chernobyl nuclear plant accident. On 3 November 2000 he was diagnosed with after-effects of radioactive emissions and granted monthly compensation for the damage to his health.

On 30 November 2000 the applicant sued the Military Service Commission of the Tambov Region (Военный комиссариат Тамбовской области, hereinafter the “Commission”) for an increase of the compensation to take account of the inflation.

On 21 February 2001 and 5 March 2001 the Oktyabrskiy District Court of Tambov granted his claim and ordered the Commission to increase the future monthly payments to 12,051.48 Russian roubles (“RUR”) and also to pay him RUR 31,579.74 in respect of the previous period.

On 4 June 2001 the Tambov Regional Court quashed those judgments on appeal, finding that the first-instance court had not taken account of the changes introduced into the Chernobyl Victims Act by the Federal Law № 5 of 12 February 2001. The claim was remitted for a fresh examination.

The Oktyabrskiy District Court pronounced a new judgment on 13 August 2001. It assessed future monthly payments at RUR 10,000 and the lump sum in respect of the previous period at RUR 60,365.

On 10 September 2001 the Tambov Regional Court quashed that judgment on appeal on the ground that the first-instance court had incorrectly applied the substantive law and remitted the case for a fresh examination.

By judgment of 27 November 2002, the Oktyabrskiy District Court awarded the applicant RUR 18,077.21 in monthly payments as from 1 December 2002 and RUR 281,437.32 in respect of the previous period.

On 20 January 2003 the Tambov Regional Court upheld that judgment on appeal, and the judgment became enforceable.

On 23 January 2003 the Commission filed an application for supervisory review. It claimed that the first-instance and appeal courts had erroneously applied civil-law provisions relating to calculation of the minimal wages for the purposes of adjusting the applicant's compensation in line with inflation.

On 28 January 2003 the President of the Tambov Regional Court stayed the execution of the judgment of 27 November 2002.

On 26 June 2003 the Presidium of the Tambov Regional Court held a supervisory-review hearing. It determined that the lower courts had erred in applying the substantive law by not having taken into account the amendments introduced into the Chernobyl Victims Act by the Federal Law № 5 of 12 February 2001. On that ground it quashed the judgment of 27 November 2002, as upheld on 20 January 2003, and remitted the matter for a fresh examination.

On 7 August 2003 the Oktyabrskiy District Court issued a new judgment, by which the applicant was awarded RUR 6,327.35 in future monthly payments and RUR 18,578.34 in respect of the preceding period. The judgment was not appealed against and became final on 18 August 2003.

The Code of Civil Procedure of the Russian Federation was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure from 1 February 2003. It provides as follows:

“1. The grounds for quashing or altering judicial decisions by appeal courts are:

(4) a violation or incorrect application of substantive or procedural law.”

“1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions.

Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...”

“Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.”

“1. Having examined the case by way of supervisory review, the court may...

(2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination...

(5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if the substantive law has been erroneously applied or interpreted.”

Interim Resolution ResDH (2006) concerning the violations of the principle of legal certainty through the supervisory review procedure (“nadzor”) in civil proceedings in the Russian Federation, adopted by the Committee of Ministers on 8 February 2006, reads, in its relevant parts, as follows:

“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention...

Welcoming the reforms of the supervisory review (“nadzor”) procedure introduced by the new Code of Civil Procedure entered into force on 1 February 2003;

Noting with satisfaction, in particular, that some of the problems at the basis of the violations found in these cases have thus been remedied...

Expressing, however, particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “nadzor” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts' judgments in a single set of proceedings so that subsequent recourse to “nadzor” becomes truly exceptional, if necessary at all;

Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances, while under the current “nadzor” procedure such a judgment may be quashed for any material or procedural violation;

Emphasising that in an efficient judicial system, errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable, thus avoiding the subsequent risk of frustrating parties' right to rely on binding judicial decisions;

Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand-in-hand with improvement of the court structure and of the quality of justice, so as to limit the need for correcting judicial errors currently achieved through the “nadzor” procedure...

CALLS UPON the Russian authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the Convention, as interpreted by the Court's judgments;

ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final...

ENCOURAGES the authorities, pending the adoption of this comprehensive reform, to consider adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular:

- continue to restrict progressively the use of the “nadzor” procedure, in particular through stricter time-limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law...

- to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case;

- to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law;

- to adopt measures inducing the parties adequately to use, as much as possible, the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable...”


Remainder inadmissible;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award

The applicant was born in 1949 and lives in Bratislava.

On 17 September 2001 the applicant as seller entered into a contract with A. as buyer concerning some real property essentially comprising arable land.

On an unspecified date A. lodged a criminal complaint against the applicant accusing her of having received the purchase price of some 8,600 euros (EUR) only to renege on the contract without returning the price.

On 27 May 2005 the applicant was charged with fraud on the basis of A.'s criminal complaint. The decision containing the charge was not served on the applicant until 3 February 2006, when she was questioned by a judge following her arrest (see below).

On 19 and 29 September 2005, respectively, a national search for the applicant was launched and the Dunajská Streda District Public Prosecutor's Office (Okresná prokuratúra) asked the Dunajská Streda District Court (Okresný súd) for a warrant for the applicant's arrest.

It was argued that it was proving impossible to summon the applicant for questioning because she was not responding to summonses, was not living at her registered address (trvalé bydlisko) and her whereabouts were unknown.

On 3 December 2005 the District Court issued the arrest warrant. It indicated as the underlying reason for the warrant that “[the applicant] [was] not living at her registered address; her whereabouts [were] unknown”.

From 2 February to 14 March 2006 the applicant was held in pretrial detention (see below).

On 14 and 21 March 2006 the applicant challenged the charge by way of an interlocutory appeal (sťažnosť).

On 24 March and 12 April 2006, respectively, the investigator interviewed a notary who had drawn up the contract and, following her release from detention, also the applicant.

On 25 April 2006 the District Public Prosecutor's Office granted the applicant's interlocutory appeal and dismissed the charge against her on the grounds that the matter was of a civil-law nature and the applicant's actions did not constitute a criminal offence.

At 2 p.m. on 2 February 2006, on the basis of the warrant of 3 December 2005, the applicant was arrested by the police and taken into police custody.

At 10.30 a.m. on 3 February 2006 the applicant was brought before a single judge of the District Court for questioning.

A record of the questioning was made on a pre-printed form. In so far as the pre-printed section of the record was filled out, it indicates that the applicant was questioned as a person charged (obvinený) / suspect (podozrivý), that she was informed of the rights that pertain to a person in that procedural position and that she had been handed (doručené) / read out (prečítané) the decision containing the charge of fraud.

The verbatim section which follows the pre-printed section of the record indicates that the applicant acknowledged that she had neither a permanent nor a temporary registered place of residence (trvalé/prechodné bydlisko) and that she mainly stayed in monasteries and pastors' offices. She admitted having received and not returned the purchase price and expressed readiness to return it. She explained that she had health problems and that on 13 January 2006 she had fainted in the street.

The verbatim section of the record also indicates that, thereafter, the applicant was handed the decision containing the charge of 27 May 2005.

According to the applicant, the decision containing the charges had been handed to her at around 11 a.m.

The verbatim section of the record further indicates that the District Court then immediately ordered the applicant to be detained under Article 71 § 1 (a) of the Code of Criminal Procedure (“the CCP” – Law no. 301/2005 Coll., as applicable at the relevant time).

That provision allows for the detention of a person if his or her behaviour or other concrete facts give rise to a well-founded concern that he or she would flee or go into hiding in order to avoid prosecution, in particular when the person's identity cannot be immediately established, when the person does not have a fixed abode (stále bydlisko) or if the person faces the risk of a heavy penalty.

Immediately after she had been remanded in custody, the applicant orally lodged an interlocutory appeal (sťažnosť) and asked for her lawyer to be informed of her detention. The interview ended at 11.15 a.m.

In a two-page written version of the detention order of 3 February 2006 the District Court established, “on the basis of the case file and the applicant's interview”, that there were reasons for detaining her under Article 71 § 1 (a) of the CCP because, “if left at liberty, [the applicant] would seek to frustrate the prosecution by going into hiding”. This was so because the applicant “did not live at her registered permanent address, had no registered temporary address and it was not known where she was currently living”.

On 23 February 2006 the applicant submitted her written grounds of appeal.

On 7 March 2006 the District Court sent the case file to the Trnava Regional Court (Krajský súd) for determination of the appeal. It arrived there on 9 March 2006.

Meanwhile, on 8 March 2006, the investigator attempted to interview the applicant who, however, exercised her right to remain silent.

On 9 March 2006 the applicant appointed a new lawyer who inspected the case file on the following day.

On 13 March 2006 the applicant's new lawyer submitted in writing further grounds of appeal. He relied on Article 5 of the Convention and advanced four main arguments.

First, before the questioning on 3 February 2006, the applicant had not been informed of her rights as a person facing charges.

Second, the applicant was deprived of her right to oppose her detention effectively because she was informed of the charge against her only after the questioning of 3 February 2006.

Third, the detention order was arbitrary and not susceptible of review owing to the absence of adequate reasoning.

Fourth, the District Court had failed to examine whether there was any “reasonable” suspicion against the applicant which would justify her detention.

On 14 March 2006 the Regional Court, sitting in private (neverejné zasadnutie), quashed the detention order and ordered the applicant's immediate release.

It found that the matter was of a contractual nature and that the applicant's actions could not be qualified as a criminal offence.

Moreover, the applicant could not have been in hiding because she had no knowledge that she had been wanted on a criminal charge.

The Regional Court concluded that there was no reason for detaining the applicant.

Following the decision of 14 March 2006, on the same day, the applicant was released.

A written version of the decision of the Regional Court was sent to the applicant's address but returned as she could not be found. It was then sent to her lawyer, who received it on 3 May 2006.

On 3 May 2006 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd).

Relying on Article 5 §§ 1 (c), 2, 3 and 4 of the Convention and on their constitutional counterparts, the applicant made four main complaints.

First, after her arrest, the applicant had not been informed promptly of the reasons for it and of the charge against her.

Second, in violation of the applicable procedural rules, the applicant had not been informed of her procedural rights as a person charged.

Third, the decision of the Regional Court of 14 March 2006 lacked adequate reasoning, in particular, because it only dealt with two of the four arguments that she had put forward.

Fourth, a decision regarding the lawfulness of the applicant's detention had not been reached speedily, which was imputable mainly to the District Court.

Invoking Article 5 § 5 and Article 13 of the Convention, the applicant claimed the equivalent of some EUR 3,200 in just satisfaction for nonpecuniary damage and the reimbursement of her legal costs.

On 13 September 2006 a three-judge bench of the Constitutional Court declared the complaint inadmissible.

It found that the Constitutional Court had been prevented from examining the first two arguments by the principle of subsidiarity.

As to the third argument, the Constitutional Court acknowledged that the Regional Court had limited its review to two of the applicant's arguments. However, this did not constitute an infringement of the applicant's fundamental rights.

As to the remaining complaint, concerning the length of the proceedings to review the lawfulness of the applicant's detention, the Constitutional Court established that it had in total taken thirty-four days (from the detention order of 3 February to 9 March 2006) for the District Court to transmit the case file to the Regional Court for determination of the applicant's appeal.

However, it should be taken into account that the applicant had submitted the grounds of her appeal in writing only on 23 February 2006. After that date, the District Court had transmitted the case file to the Regional Court within fourteen days (on 9 March 2006). Although the conduct of the District Court could not be described as “expeditious” (urýchlené), it did not amount to a violation of the applicant's rights under Article 5 § 4 of the Convention. It was true that, after the Regional Court's decision of 14 March 2006, it was not until 3 May 2006 that the written version of the decision was served on the applicant. Nevertheless, this was of no practical consequence because the applicant must have learned of the decision on 14 March 2006, when she was released, and the decision was subject to no further appeal. The bench concluded that, in those circumstances, the remaining complaint was manifestly ill-founded.

The presiding judge, however, did not share the majority view and gave a dissenting opinion. According to him, it was “highly debatable” whether the complaint concerning the lack of speediness in the proceedings regarding the applicant's appeal against her detention was manifestly illfounded. The presiding judge pointed out that it had taken thirty-four days for the District Court to transmit the case file to the Court of Appeal. Referring to previous practice and, in particular, to a decision in case file number III. ÚS 126/05, he concluded that the complaint should have been declared admissible.

The decision of the Constitutional Court was served on the applicant on 10 November 2006.

Under the Act the State bears liability for damage caused by public authorities inter alia by unlawful arrest, detention (zadržanie) or other deprivation of personal liberty (section 3(1)(b)), decisions concerning detention on remand (väzba) (section 3(1)(c)) and wrongful official actions (section 3(1)(d)).

The right to compensation for damage caused by a decision on arrest, by detention (zadržanie) or by other deprivation of personal liberty is vested in the person who was subjected to it, provided that the decision was quashed as being unlawful or a wrongful official action had taken place in connection with it (section 7).

The right to compensation for damage caused by a decision concerning detention on remand (väzba) is vested in the person who was detained on remand, provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)) or he or she has been acquitted (section 8(5)(b)) or the matter has been referred to another authority (section 8(5)(c)).

However, no such right arises when the person concerned himself or herself gave cause for the detention on remand (section 8(6)(a)).

The State is also liable for damage caused by wrongful official action, which comprises, inter alia, a public authority's failure to take an action within the time-limit set, inactivity or any other unlawful interference with the rights and legally recognised interests of individuals and legal entities (section 9(1)).

The right to compensation for damage caused by wrongful official action is vested in the person who suffered the damage (section 9(2)).

Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, nonpecuniary damage.

In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court granted an action for damages by two individuals against the State under the State Liability Act 2003 and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal.

On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant's appeal.

On 14 October 2009 the Bratislava Regional Court granted an appeal (case no. 2Co 238/2008) in an action by an individual against the State under the State Liability Act 2003 for damages and awarded him an amount of money in compensation for non-pecuniary damage caused by detention on remand in the context of a criminal trial that had ended with his acquittal.

In a judgment of 17 August 2009 (case no. 19C 47/2006) the Bratislava District Court granted an action for damages by an individual against the State under the State Liability Act 2003 and awarded the claimant an amount of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial.

The impugned wrongful official action concerned extension of the claimant's detention pending trial.

The action was preceded by a judgment of the Constitutional Court of 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court found a violation of the claimant's rights under Article 5 §§ 3 and 4 in connection with the same facts.

However, the Constitutional Court was unable to award the claimant damages as he had made no claim for damages.


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The applicant, Mr Reinhold Taron, is a German national who was born in 1955 and lives in Drentwede. He was represented before the Court by Ms P. Nieweg, a lawyer practising in Steinhagen. The respondent Government were represented by their agent Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.

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

The applicant lives outside residential building zones in a rural area that is primarily designated for agriculture. In July 2000, the Diepholz Administrative District (Landkreis) granted his neighbour a construction permit for an industrial poultry shed (Legehennenstall) some 265 metres from the applicant’s home. All appeals of the applicant and related applications to suspend execution of the permit were dismissed. The permit became final on 29 September 2003 when the Lower Saxony Administrative Court of Appeal refused the applicant’s request to be granted leave to appeal.

On 20 July 2005 the applicant lodged an action for reopening of the proceedings regarding the first shed with the Hannover Administrative Court.

The Hannover Administrative Court has not decided on this claim.

On 21 June 2004 the Diepholz Administrative District granted the applicant’s neighbour a permit according to the Federal Act on Protection against Emissions (Bundesimmissionsschutzgesetz) concerning the erection of a second industrial poultry shed some 580 metres from the applicant’s home.

The applicant objected on 25 June 2004.

On 26 July 2004 the Diepholz Administrative District allowed the applicant’s neighbour to make use of the permit despite the pending proceedings of the applicant. All four subsequent requests of the applicant to reinstate the suspensive effect of his objection with the Hannover Administrative Court were dismissed.

On 29 September 2005 the Hannover Administrative Court held that the numerous submissions of the applicant showed that he had become unable to properly represent himself and decided that he had no longer locus standi in the proceedings. The applicant’s related application for legal aid was rejected for lack of reasonable prospects.

On 15 February 2007 the applicant, represented by counsel, lodged an action for failure to act (Untätigkeitsklage) with the Hannover Administrative Court.

After the Diepholz Administrative District dismissed on 12 March 2007 the applicant’s objection of 25 June 2004 the applicant pursued his legal action and challenged the merits of this decision.

On 17 November 2008 the Administrative Court held an oral hearing and later on the same day dismissed the applicant’s claim as ill-founded. The court heard expert evidence on the environmental impact of the poultry farm, and also the applicant and the applicant’s neighbour.

On 8 and 28 January 2009 the applicant requested leave to appeal the judgment with the Lower Saxony Administrative Court of Appeal.

On 14 February 2011 the Lower Saxony Administrative Court of Appeal refused the applicant’s request to be granted leave to appeal.

On 7 December 2011 the Government informed the Court that in response to the pilot judgment Rumpf v. Germany (no. 46344/06, 2 September 2010) a federal Act against Protracted Court Proceedings and Criminal Investigations had entered into force on 3 December 2011.

In December 2011 the Court informed the applicant in the present case and other applicants in the same position of the enactment of a new domestic remedy. The Court referred to the case Brusco v. Italy ((dec.), no. 69789/01, ECHR 2001IX) and invited him to inform the Court whether he intended to make use of the new remedy within the time limit set by the transitional provision of that Act.

By letter of 17 February 2012 the applicant informed the Court in response that he considered it unacceptable to pursue yet another national remedy. He pointed out that his case had been already pending for four years with this Court in distinction from the factual situation in Brusco v. Italy, cited above. It would lead to further delay to initiate a new set of proceedings to which no national case-law exists. Finally, he requested that his application before the Court be maintained.

The Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, henceforth: the Remedy Act) was published in the Federal Law Gazette – Part I, 2011, page 2302 et seq. – on 2 December 2011 and entered into force the next day.

The Remedy Act introduces general provisions for civil and criminal cases in sections 198 to 201 of the Courts Constitution Act (Gerichtsverfassungsgesetz, henceforth: CCA). For specialised – such as at hand the administrative – jurisdictions only one provision was introduced in the respective codes of procedure, here Article 173 Sentence 2 of the Code of Administrative Procedure (Verwaltungsgerichtsordnung) referring to the general rules with marginal adaptions regarding the competent court.

The new remedy combines an instrument to expedite the proceedings, an objection to delay (Verzögerungsrüge), which has to be raised before the court whose proceedings are allegedly unduly delayed (henceforth: trial court), with a subsequent compensation claim to be lodged at the Court of Appeal (henceforth: compensation court), see section 198 paragraph 1 and 3 CCA.

According to section 198 paragraph 1 CCA a party to proceedings (Verfahrensbeteiligter) who suffers a disadvantage from protracted proceedings is entitled to adequate compensation. The amount depends on the length of the individual case taking into account its difficulty and importance as well as the conduct of the parties and relevant third persons. A compensation award is not dependent on the determination of fault.

The compensation is awarded in monetary form, if other forms of compensation for lengthy proceedings are not available. Another form of compensation may consist in the court pronouncing that there has been an unreasonable delay in proceedings, section 198 paragraph 4 CCA.

The compensation for one year of protraction amounts to 1,200 euros

A prior objection to delay before the trial court is a prerequisite for a subsequent compensation claim. The action for compensation may not be lodged with a compensation court until six months after the objection had been raised, see section 198 paragraph 5 CCA. The compensation claim must at the latest be lodged within six months of the final judicial decision of the trial court.

Proceedings for compensation are subject to court fees. However, the plaintiff will be reimbursed according to the quota of his success in court.

The judgment of the compensation court is subject to appeal on points of law (Revision) only.

According to its Article 23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court.

In pending proceedings the objection to delay (Verzögerungsrüge) should be raised without delay when the Remedy Act entered into force. In these cases the objection preserves a subsequent compensation claim even for the past.

For terminated proceedings whose duration may still become or have already become the subject of a complaint with this Court it is not necessary to raise the objection prior to filing a compensation claim. The claim based on Article 23 of the Act has to be lodged with the competent court on 3 June 2012 at the latest.