Preliminary objection rejected (out of time);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

On 18 January 1983 Mr Abdoella was taken into police custody and charged with incitement to murder. He was subsequently detained on remand.

On the conclusion of the investigations, in which several suspects were involved, he was summoned, on 14 April, to appear for trial before the Regional Court (Arrondissementsrechtbank) of The Hague. On 17 May 1983 he was convicted and sentenced to twelve years’ imprisonment less the time already spent in police custody and in detention on remand.

The applicant appealed to the Court of Appeal (Gerechtshof) of The Hague. By judgment of 29 August 1983 it upheld the Regional Court’s decision.

The applicant then, within the time-limit of fourteen days prescribed by Netherlands law (see paragraph 11 (d) below), introduced an appeal on points of law to the Supreme Court (Hoge Raad) by means of a statement made at the registry of the Hague Court of Appeal. The documents of the case were sent by the registry of that court to the registry of the Supreme Court and received there on 3 July 1984. The Procurator-General in his advisory opinion proposed its dismissal. However, by judgment of 15 January 1985, the Supreme Court quashed the Hague Court of Appeal’s judgment on technical grounds and referred the case to the Amsterdam Court of Appeal. The registry of the Supreme Court sent the documents to the registry of the Amsterdam Court on 1 February 1985; they were received on the same day.

On 31 May 1985 the Attorney-General at the Amsterdam Court of Appeal issued a summons against the applicant. The Court of Appeal heard the case on 28 June 1985.

During the hearing the applicant requested a suspension of his detention on remand and also an adjournment of the hearing in order to have examined two witnesses who had been summoned at the request of the defence but who had failed to appear. The Court of Appeal refused the first request. However, with the agreement of counsel for the defence it adjourned the hearing until 20 September 1985; the reason given for a delay of that length (see paragraph 11 (a) below) was that the court’s calendar for the intervening period did not permit an earlier date.

The Court of Appeal resumed its hearing on 20 September 1985, at which point the witnesses who had failed to appear on 28 June were examined. It refused a new request by the applicant for suspension of his detention on remand.

By judgment of 4 October 1985 the Court of Appeal convicted the applicant and sentenced him to ten years’ imprisonment less the time already spent in police custody and detention on remand.

Within the time-limit of two weeks prescribed by Netherlands law, Mr Abdoella introduced a second appeal on points of law to the Supreme Court by means of a statement made at the registry of the Amsterdam Court of Appeal.

Pending the hearing of that appeal the applicant made a number of requests to the Amsterdam Court of Appeal concerning his detention on remand. It suspended the measure for two weeks in April 1986 and again for two weeks in July 1986. However, on 29 October 1986 it rejected a request, based inter alia on Articles 5 para. 3 and 6 para. 1 (art. 5-3, art. 6-1) of the Convention, for the detention to be terminated or else suspended.

In April 1987 the Amsterdam Court of Appeal again granted two weeks’ leave, but refused to terminate or otherwise suspend the detention.

The documents of the case were sent by the registry of the Amsterdam Court of Appeal to the registry of the Supreme Court, which received them on 15 September 1986. On a date in October 1986, the President of the Criminal Division of the Supreme Court set the hearing for 10 February 1987. The applicant, through his counsel, subsequently filed his grounds of appeal.

Counsel for the defence proposed five grounds of appeal. The first of these, the only one which raised points with which this Court is concerned, was a complaint about violation of, inter alia, Article 5 para. 3 in conjunction with Article 5 para. 1 (c) and Article 6 para. 1 (art. 5-3, art. 5-1-c, art. 6-1) of the Convention. The explanatory note emphasised that the applicant had been in police custody and detention on remand since 18 January 1983 and that, as a consequence, both he and his family had developed psychiatric problems. Detention on remand had only been suspended twice on this ground, in each case for two weeks, the last such occasion having been in July 1986. Although the case was not complex, it had already taken more than four years, so that the "reasonable time" laid down by Article 5 (art. 5) of the Convention had been exceeded. A separate assessment of the various phases of the proceedings led to the same conclusion: in particular, the lapses of time involved in the first appeal on points of law, that involved in the procedure before the Amsterdam Court of Appeal and the treatment of the second appeal on points of law were such that the said provisions had not been complied with.

In accordance with the advisory opinion filed on 10 March 1987 by the Procurator-General the Supreme Court dismissed the applicant’s appeal by judgment of 19 May 1987. It held, inter alia, that it had to be assumed that neither the applicant nor his counsel had raised the issue of the length of the proceedings at the Amsterdam Court of Appeal’s hearings on 28 June 1985 and 20 September 1985; that the mere circumstance that the preparation of the case and its examination by the Regional Court and the Court of Appeal of The Hague and the Supreme Court had taken two years (less some days) did not in itself oblige the Amsterdam Court of Appeal to address explicitly the question whether or not the case had been decided within a reasonable time; and that in addition, taking into account the time that had elapsed between the Amsterdam Court of Appeal’s judgment of 4 October 1985 and the Supreme Court’s 1987 hearing, no violation of Articles 5 para. 3 and 6 para. 1 (art. 5-3, art. 6-1) of the Convention had taken place. The personal circumstances of the applicant did not warrant any other conclusion.

On 4 June 1987 Mr Abdoella submitted a request for a pardon. This was refused on 12 November 1987 by the Deputy Minister of Justice (Staatssecretaris van Justitie).

An application for review was lodged by the applicant on 28 December 1987 but declared inadmissible by the Supreme Court on 6 December 1988.

The applicant was released from prison on 22 December 1989.

The following is a translation from the original Dutch of the relevant provisions of the Netherlands Code of Criminal Procedure (Wetboek van Strafvordering).

"1. If the accused is in detention on remand, the following paragraphs of this article shall apply.

If the Regional Court suspends the examination at the hearing for a fixed period, it shall as a rule set the period of the suspension at no longer than one month. For compelling reasons, which are to be mentioned in the official record, it can decide on a longer period, but in no case more than three months.

For the purposes of this provision, a month is taken to mean thirty days (Article 136 para. 1). Article 277a is equally applicable to proceedings before the Court of Appeal (Article 415).

"1. The judgment shall be signed within twice twenty-four hours after its pronouncement by the judges who heard the case and by the registrar who was present at the deliberations.

If one or more of them are unable to do so, this shall be mentioned at the end of the judgment.

As soon as the judgment is signed, and in any case after the end of the period laid down in the first paragraph, the accused or his counsel can take cognisance of it and of the official record of the hearing."

This article too is equally applicable to proceedings before the Court of Appeal (Article 415).

"1. An objection [against a default judgment], an appeal or an appeal on points of law shall be lodged by means of a statement to be made by the person exercising that legal remedy at the registry of the court by which or at which the decision was given.

"1. An appeal must be filed:

a. if the summons to appear at the hearing has been notified to the accused in person or the accused has appeared at the hearing, within fourteen days after the pronouncement of the final judgment;

b. in other cases, within fourteen days after a circumstance has occurred from which it follows that the accused is aware of the judgment.

"1. After an appeal is filed, the registrar of the District Court shall send the documents of the case to the registrar of the Court of Appeal as soon as possible.

"1. An appeal on points of law must be filed:

"1. The prosecution (Openbaar ministerie) is obliged, on pain of inadmissibility of the prosecution, to file, together with its appeal or within ten days thereafter, at the registry of its court, a written statement of its grounds of appeal on points of law.

The accused by whom or in whose name an appeal on points of law has been filed is entitled to file such a written statement with the Supreme Court until the day of the hearing at the latest.

The registrar of the court which delivered the judgment shall send the documents of the case to the registrar of the Supreme Court within thirty days after the time-limit for the prosecution to file its written statement has expired or after it has filed a written statement earlier.

In practice it was generally assumed that the time-limit according to paragraph 3 of this article was fifty-four days after the date of pronouncement of the Court of Appeal’s judgment, irrespective of whether or not the prosecution had lodged an appeal on points of law.

Before the Act of 14 January 1976 (Staatsblad (Official Gazette) 9), which altered (inter alia) Article 433 para. 3, this provision, like Article 409, provided only that the documents were to be sent in "as soon as possible". The time-limit of thirty days was introduced "with a view to expediting the transmission of the file".

By the Act of 27 November 1991 (Staatsblad 663), which came into force on 1 May 1992, the time-limit of thirty days incorporated in the third paragraph of Article 433 in 1976 was removed; that paragraph now once more provides that the documents are to be sent in "as soon as possible". The reasons given therefor were firstly that, according to the case-law of the Supreme Court (see paragraphs 13 and 14 below), non-compliance with Article 433 para. 3 did not entail nullity and the rights of the accused in case of unreasonable delay in the proceedings before the Supreme Court were in any case protected by Articles 6 para. 1 (art. 6-1) of the Convention and 14 para. 1 of the International Covenant on Civil and Political Rights. Secondly, it was pointed out that in practice this time-limit was only rarely met and that it appeared inappropriate to maintain a provision which "in relation to the - speedy - pursuit of the proceedings before the Supreme Court creates expectations which in practice can hardly if at all be fulfilled".

"1. After the documents have been at the registry for a period of eight days, they shall be taken by the Procurator-General against receipt and forwarded to the Supreme Court along with his proposal for fixing a hearing date.

The president shall fix the date for the hearing and shall appoint a rapporteur to report at the hearing."

After referral by the Supreme Court, the documents of the case must be sent by its registry to the registry of the court which is to retry the case. However, due to the fact that the Code of Criminal Procedure contains no provisions at all relating to proceedings after referral, a provision comparable to Articles 409 and 433 and applicable in these cases does not exist.

Non-compliance with Article 409 para. 1 or Article 433 para. 3 of the Code of Criminal Procedure does not, according to the case-law of the Supreme Court, entail nullity: that sanction is not expressly provided for; neither are these provisions so essential that non-compliance should ipso facto lead to nullity. However, non-compliance is relevant in connection with the question whether the requirement of trial "within a reasonable time" within the meaning of Article 6 (art. 6) of the Convention has been complied with (see, for instance, the judgments of the Supreme Court of 23 September 1980, NJ (Nederlandse Jurisprudentie) 1981, 116, and 29 March 1988, NJ 1988, 813).

The case-law of the Supreme Court relating to the requirement of "trial within a reasonable time" within the meaning of Article 6 (art. 6) of the Convention in general, and more especially in relation to the question of the consequences of non-compliance with Articles 409 para. 1 and 433 para. 3 of the Code of Criminal Procedure, may be summarised as follows.

(a) If the court decides to impose a more lenient sentence, it must take into account the extent of the violation and also indicate the reduction which it has thought fit to apply (see, for instance, the Supreme Court’s judgments of 29 January 1985, NJ 1985, 690; 7 April 1987, NJ 1987, 587; 29 March 1988, NJ 1988, 813; 25 April 1989, NJ 1989, 705).

(b) In order to determine whether or not a "reasonable time" has been exceeded, the court must consider both the various phases of criminal proceedings and their overall time-span and take into account all appropriate circumstances in reaching its decision, such as the complexity of the case, the conduct of the accused and the way in which the case has been handled by the competent authorities (see, for instance, the judgment of the Supreme Court of 19 February 1985, NJ 1985, 581).

(c) As the decision as to whether or not a reasonable time has been exceeded is thus partly dependent on the assessment of factual circumstances, the Supreme Court, which essentially has competence only as regards points of law, can examine the validity of the decision of the judge of fact only to a limited degree; thus a judgment can only be quashed if it reveals an incorrect view of the concept of trial within a reasonable time or of the standards set out in the preceding paragraph, or if the grounds given for its decision are insufficient (see, for instance, the judgments of the Supreme Court of 5 January 1982, NJ 1982, 339; 9 March 1982, NJ 1982, 409; 11 May 1982, NJ 1983, 280; 12 October 1982, NJ 1983, 371; 3 January 1984, NJ 1984, 403; 29 January 1985, NJ 1985, 690; 10 December 1985, NJ 1986, 480; 1 November 1988, NJ 1989, 680; 31 October 1989, NJ 1990, 257).

Although the Supreme Court has held that delaying criminal proceedings for more than two years does not in itself warrant the conclusion that a "reasonable time" has been exceeded (see its judgment of 16 December 1986, NJ 1987, 637), it is commonly assumed that in its above-mentioned limited assessment it applies, as a general guideline, a rule presumed to have been derived from the report of the Commission of 12 March 1984 in application no. 9193/80 (Marijnissen) (Decisions and Reports 40, pp. 83-99) endorsed by the Committee of Ministers in its resolution of 25 January 1985 (DH (85)4). This rule may be summarised as follows: in principle, a "reasonable time" has been exceeded if the proceedings in one of their phases have not been pursued for more than two years due to circumstances for which the accused is not responsible; if such an eventuality occurs and is pleaded by the defence, then a rejection of that plea must be particularly well reasoned. The character of this rule as a general guideline implies, on the one hand, that under certain circumstances stagnation for a shorter period may be a reason for applying such strict requirements to the grounds given for rejecting the defence’s plea that a reasonable time has been exceeded and, on the other hand, apparently, that exceeding the time-limit of two years may sometimes, perhaps also depending on the further circumstances of the particular case, be allowed to pass.

(d) The courts must also address ex officio the question whether a reasonable time has been exceeded. However, it must only appear from the judgment that this has been done if there are special circumstances.

In considering whether or not such special circumstances are present, the Supreme Court uses the general guideline, mutatis mutandis, indicated in sub-paragraph (c). This means that, as a rule, it only holds the lower courts bound to address ex officio the question whether or not a reasonable time has been exceeded if it appears from the documents that the proceedings have been held up for more than two years due to reasons for which the defence cannot be held accountable. However, if there are special circumstances, the courts are obliged to address the question ex officio even if the period of inactivity is shorter (see, for instance, the Supreme Court’s judgments of 1 July 1981, NJ 1981, 625; 1 May 1990, NJ 1990, 641).

(e) The Supreme Court applies these rules itself in the procedure of appeal on points of law and thus addresses, ex officio if need be, the question whether it must be assumed that the duration of proceedings in this phase has led to excessive length of the proceedings. In this connection, it appears from its abundant case-law that the time elapsed between the filing of the appeal on points of law and the sending in of the documents to the registry of the Supreme Court has some significance: if this causes such a delay that the case comes up before the Supreme Court for the first time more than two years after the appeal on points of law was filed, then as a rule the judgment will be quashed and the case will be referred for retrial, at which point the judge of fact will have the options indicated in sub-paragraph (a) above of declaring the prosecution inadmissible or of reducing the sentence. However, the Supreme Court may itself reach the opinion that no other decision is possible than to declare the prosecution inadmissible, which it may then do of its own motion (see, for instance, its judgments of 12 January 1988, NJ 1988, 814; 29 March 1988, NJ 1988, 813; 12 April 1988, NJ 1988, 970; 25 April 1989, NJ 1989, 705; 6 June 1989, NJ 1990, 92; 13 February 1990, NJ 1990, 633). On the other hand, if the period of inactivity is shorter, the Supreme Court will merely state that the delay is longer than is desirable but that judgment of the case cannot be held not to have taken place within a reasonable time; it will then determine, applying the rule set forth in the preceding sub-paragraph, whether or not special circumstances warrant any different decision (see, for instance, its judgments of 13 January 1981, NJ 1981, 240; 3 March 1981, NJ 1981, 367; 16 February 1982, NJ 1982, 410; 4 June 1985, NJ 1986, 182; 16 September 1985, NJ 1986, 495; 11 February 1986, NJ 1986, 553; 11 February 1986, NJ 1986, 644; 16 February 1988, NJ 1988, 823).


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

The applicant was born in 1937 and lives in the town of Malaya Vyska, the Kirovograd region, Ukraine.

On 9 April 1997 the applicant sold his house for UAH 35,000 to the Kirovograd Regional Department of Justice (hereafter “the Department”), responsible for the logistical support of the judiciary. The Department was represented in the transaction by Mr R., the President of the Malaya Vyska City Court. The contract was certified by a notary and specified that the purchase price had to be paid in two instalments: UAH 5,000 and 30,000 to be paid by 1 May 1997 and 1 September 1997 respectively. The contract also contained a clause stating the following:

“In case if the exchange rate of the Hryvna depreciates the overall sum to be paid cannot be less than the Hryvna equivalent of USD 17,000.”

In June 1997 the applicant was paid UAH 5,000. In 1998 the Hryvna substantially weakened against US dollar. In October 1998 and August 1999 the applicant received UAH 11,000 and 20,000 respectively.

The applicant instituted proceedings against the Department, claiming that it had failed to fulfil its obligations under the contract, as the sum paid did not take into account the substantial depreciation of the exchange rate of the Hryvna. Thus, according to the applicant, he had lost some USD 6,553.

On 4 November 1999 the Kirovsky District Court of Kirovograd (hereafter “the District Court”) rejected this claim as unsubstantiated. On 8 September 2000 the Presidium of the Kirovograd Regional Court, following the protest (extraordinary appeal) of the Deputy President of this court, quashed the judgment and remitted the case.

On 29 November 2000, in the course of a new hearing, the Department lodged a counterclaim seeking the annulment of the contract on the ground that Mr R. had exceeded his powers in agreeing to the dollar value clause.

On 24 July 2001 the Kirovsky District Court of Kirovograd granted the applicant’s claim and rejected that of the Department. The court established that the clause in issue aimed at ensuring the stability of the contract and protecting the applicant against inflation. The court further found that the applicant had suffered increased financial losses due to the erosion of the Hryvna’s purchasing power during the lengthy delay in execution of the contract. It found that the amount eventually paid to him on the date of the final transaction had only been USD 10,457.50. The court awarded the applicant UAH 35,527.77 in compensation for the devaluation of the Hryvna, UAH 3,197.31 in statutory interest for the delay and UAH 502.13 in court costs.

The Department appealed against this judgment and, on 20 December 2001, the Kirovograd Regional Court of Appeal (hereafter “the Court of Appeal”) quashed it and rejected the applicant’s claim. The court found in favour of the Department on both of their objections. It noted that Mr R. had acted ultra vires by conceding the inclusion of the disputed provision in the contract without the prior consent from the Department. The Court of Appeal further stated that, according to Article 3 of the Governmental Decree on the Regime of Currency Regulation and Currency Control 1993 (the 1993 Decree), the Hryvna was the only currency which could be used for internal transactions. The court did not find convincing the District Court’s argument that the impugned clause protected the applicant from inflation, since Article 214 of the Civil Code 1963 provided for compensation for losses incurred due to inflation if the execution of a contract was delayed.

The Court of Appeal acknowledged that the price for the apartment was paid with considerable delay and that the applicant, having made the relevant claim before the court, had the right to be awarded statutory interest at the rate of 3% per annum. Taking into account that the applicant had already received an extra thousand Hryvnas (paragraph 6 above), the Court of Appeal found it appropriate to award him further UAH 678.50.

On 30 May 2002 the Supreme Court rejected the applicant’s request for leave to appeal in cassation.

Article 3 of the Decree provided that the currency of Ukraine (i.e. the Hryvna) was the only lawful means of payment in Ukraine.

According to Article 48 of the Code, a contract concluded contrary to the law should be declared invalid. If the contract is invalidated the parties should return to each other all that was received in execution of the contract.

Article 214 of the Code provided that a debtor who had delayed the execution of a financial undertaking was obliged, on the request of the creditor, to pay the debt taking into account the established index of inflation for the period of delay, as well as statutory interest at 3% per annum.


Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant, Mr Sergey Vasilyevich Chizhov, is a Ukrainian national, who was born in 1962 and lives in Zaporizzhia.

On 6 October 1997 the applicant was apprehended by police officers B.Y.Y. and L.G.T. On the same day he was brought to the medical sobering-up facility by these officers. In the course of the applicant’s apprehension the police officers inflicted bodily injuries on him, resulting in a short-term health disorder.

On 7 October 1997 the applicant was charged with assaulting and attempting to bribe them.

On 21 October 1997 the Leninsky District Court of Zaporizzhia acquitted the applicant.

The applicant complained to the Regional Prosecution Service and the General Prosecution Service seeking to institute criminal proceedings against the police officers who had unlawfully apprehended and harmed him.

On 12 February 1998 the applicant initiated civil proceedings against the Zaporizzhia City Police Department in the Leninsky District Court of Zaporizzhia, seeking compensation for the moral damage caused by the actions of B.Y.Y. and L.G.T.

On 9 March 1998 the Prosecution Service of Zaporizzhia instituted criminal proceedings against the officers.

On 29 January 1999 the Leninsky District Court of Zaporizzhia sentenced B.Y.Y. and L.G.T. to a 3 year suspended prison sentence following their conviction for abuse of power and inflicting bodily harm on the applicant. It also ordered the Zaporizzhia City Police Department to pay the applicant UAH 3,709.13 in compensation for pecuniary and non-pecuniary damage.

On 22 March 1999 the Zaporizzhia Regional Court upheld that decision.

On 1 April 1999 the Leninsky District Court of Zaporizzhia initiated the execution proceedings for the judgment of 29 January 1999.

On 14 April 1999 the writ of execution was lodged with the Leninsky District Bailiffs’ Service in Zaporizzhia.

On 20 May 1999 the respondent in the case was changed from the City Police Department of Zaporizzhia to the Regional Police Department of Zaporizzhia, because the latter was responsible for managing the medical sobering-up facilities.

On 27 July 1999 the writ of execution was transferred to the Ordzhonikidze Bailiffs’ Service for further enforcement.

In August 1999 the State Treasury Department confirmed the lack of funds of the Regional Police Department.

On 16 August 1999 the applicant lodged a motion to attach the property of the Zaporizzhia Regional Police Department.

On 14 September 1999 the Ordzhonikidze District Execution Service of Zaporizzhia informed the applicant that the attachment of the property of a State institution was prohibited by law.

On 3 November 1999 the Ordzhonikidze District Execution Service informed the applicant of the Zaporizzhia Regional Police Department’s lack of funds. It also stated that the latter owned no property and therefore attachment was not possible.

During 1999-2000, the applicant repeatedly lodged a number of motions with the Prosecution Service of Zaporizzia, the General Prosecution Service, the State Security Service, the Supreme Court of Ukraine and the Human Rights Ombudsman, seeking to institute criminal proceedings against various officials of the Zaporizzhia Regional Police Department, the execution service officials, Judge D.L.A of the Leninsky District Court, and a private person, D.S.S., who had allegedly assaulted the applicant.

On 5 April 2000 the Ordzhonikidze District Bailiffs’ Service terminated the proceedings in the applicant’s case due to the lack of funds of the Zaporizzhia Regional Police Department. The Government mentioned that the applicant retained a right to reintroduce the writ of execution with the Bailiffs’ Service for up to three years.

On 17 November 2000 the Deputy President of the Supreme Court of Ukraine refused to initiate supervisory review proceedings in the applicant’s case. It also remitted the applicant’s claims concerning the non-execution of the judicial decision to the Ministry of Justice.

On 9 June 2003 the Ordzhonikidze District Bailiffs’ Service issued resolution no. 1131/9 concerning the institution of the enforcement proceedings for the judgment of 29 January 1999. It also proposed to the debtor that it enforce the judgment given in the applicant’s favour voluntarily. On the same date the resolution instituting the criminal proceedings was sent to the Zaporizzhia Regional Police Department and to the applicant.

On 20 June 2003 the bailiff requested the State Treasury to transfer the funds awarded to the applicant by the judgment of 29 January 1999 to his account.

On 7 August 2003 the applicant requested that the funds be transferred to his account.

On 14 August 2003 the judgment of 29 January 1999 was enforced and the applicant received UAH 3,709.13.

On 20 November 2003 the Ordzhonikidze Bailiffs’ Service terminated the execution proceedings in the case in view of the fact that the judgment of 29 January 1999 had been enforced in full.

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


Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicants, who are siblings, were born in 1959, 1942, 1947 and 1944 respectively. The first applicant (who is a Cypriot and British citizen) lives in London; the second, third and fourth applicants all reside in Larnaca. The second applicant is a Cypriot citizen, while the third and fourth applicants are British citizens.

On 13 August 1974, as the Turkish troops were advancing, the applicants' father left the village of Ayios Avrosios in the District of Kyrenia, where he owned the following immovable properties:

(a) plot of land with trees in Kapsala (plot no. 12/7/5/1, sheet/plan 13/15, registration no. 14426, area: hectares (h.) 3, decares (d.) 9, square metres (m²) 818);

(b) plot of land with trees in Glifhonera (plot no. 12/7/3, sheet/plan 13/15, registration no. 13911, area: h. 5, d. 6, m² 105);

(c) plot of land with trees in Glifhonera (plot no. 12/7/4, sheet/plan 13/15, registration no. 13912, area: h. 5, d. 5, m² 27);

(d) plot of land with trees in Apati (plot nos. 13/4 and 15/3, sheet/plan 13/31, registration no. 10106, area: d. 2, m² 342);

(e) plot of land with trees in Spati (plot no. 250/3, sheet/plan 13/23, registration no. 7182, area: d. 3, m² 345);

(f) plot of land with trees in Apati (plot no. 11/6, sheet/plan 13/31, registration no. 10097, area: m² 437);

(g) plot of land with trees in Apati (plot no. 11, sheet/plan 13/31, registration no. 10087, area: d. 4, m² 14);

(h) plot of land in Trachonas (plot no. 579, sheet/plan 13/22, registration no. 5927; area: d. 1, m² 673).

In support to their claim that their father was the owner of the above-mentioned plots of land, the applicants submitted copies of the title deeds and of the relevant certificates of ownership.

On 17 August 1974 the applicants' father tried to visit his property but was arrested by Turkish soldiers. He was released on the same day, since he was a British citizen.

On 19 May 1991 the applicants' father died. According to his will, dated 18 May 1988, the plot described under paragraph 8 (a) above was to be inherited by the first applicant and the other plots were to be inherited by the four applicants in equal shares. On 30 July 1991, Mr T. Michaelides was appointed as executor of the will of the applicants' father. The applicants registered their titles with the Department of Lands and Surveys of the Republic of Cyprus on 10 July 1995. The first applicant tried, via the British consular authorities, to visit the properties at issue, but did not obtain permission.

In a letter of 2 September 2003, the applicants informed the Court that Turkey was planning to construct a highway at the edge of their properties and that an area of m² 6,000 had been taken for this purpose. The applicants had not been consulted on the matter and no compensation had been offered to them.


Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of P1-1;No violation of Art. 14+P1-1

Mr Spadea, a lawyer, and Mrs Scalabrino, a university teacher, live in Milan.

In April 1982 they bought two adjacent flats with the aim of making their home there. The former owner of the flats had let them to a Mrs B. and a Mrs Z., who paid a rent subject to public-authority control.

In a writ served on 13 October 1982 the applicants gave the tenants of the flats notice to quit when the leases expired, on 31 December 1983, and summoned them to appear before the Milan magistrate (pretore).

On 22 December 1982 and 13 January 1983 the magistrate formally confirmed the notices to quit, and fixed the date of eviction at 31 December 1984. The orders were made enforceable on 22 December 1982 and 19 January 1983.

Pursuant to Legislative Decree no. 12 of 7 February 1985, which became Law no. 118 of 5 April 1985 ("Law no. 118"), the magistrate suspended enforcement of the evictions until 30 January 1986.

On 14 March 1986, Mr Spadea and Mrs Scalabrino began proceedings to enforce the orders for possession, as the tenants had still not complied with them. However, on each of three occasions when the bailiff responsible for enforcement went to the flats - 9 June, 9 September and 10 October 1986 - Mrs B. and Mrs Z. refused to leave. They were elderly ladies of modest means and had asked Milan City Council to allocate them low-rent flats.

Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986, suspended the enforcement of evictions until 31 March 1987. From that date until 31 March 1988, only the Prefect (prefetto) was empowered, in certain cases, to grant police assistance to enforce evictions.

On 14 May, 15 June, 22 September, 9 November, 10 December 1987 and 14 January 1988 the bailiff made unsuccessful attempts to enforce the orders for possession.

From 8 February 1988 enforcement of evictions was again suspended, initially until 31 December 1988, by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988, and then until 30 April 1989, by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989.

In August 1988 Mrs Z. died and the applicants regained possession of one of the flats. Mrs B. left the other in February 1989. In the meantime, on 22 February 1988, Mr Spadea and Mrs Scalabrino had been obliged to buy another flat.

On the basis of the Commission's report, Italian legislation on residential property leases may be summarised as follows.

Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of evictions.

The last statutory extension of all current leases, with the exception of certain cases specifically prescribed by the Law, was introduced by Law no. 392 of 27 July 1978 and remained in force until 31 December 1982, 30 June 1983 or 31 December 1983, depending on the dates on which the leases were signed.

It should, however, be noted that, as regards buildings used for purposes other than housing, the statutory extension of current leases prescribed by section 1 (9 bis) of Law no. 118 of 5 April 1985 was declared unconstitutional in a decision (no. 108) handed down by the Constitutional Court on 23 April 1986. In its decision the court held that the statutory restrictions imposed on property rights under Article 42 of the Constitution, with a view to ensuring social justice, made it possible to regard controls imposing restrictions as legitimate, provided that such controls were of an exceptional and temporary nature, but that perpetuating such restrictions was incompatible with the protection of property rights embodied in Article 42 of the Constitution.

In its decision the Constitutional Court also pointed out that the statutory six-month extension of leases prescribed by Law no. 118 should not be considered in isolation but within the context of tenancy provisions as a whole. The court drew particular attention to the fact that this extension succeeded other statutory extensions and could mark the beginning of new restrictions on freedom of contract in this field. Moreover, the statutory extension of leases had the effect of prolonging contracts in which the rent, notwithstanding the increases allowed in accordance with rises in the cost of living, were not even approximately in line with current socio-economic conditions. Further, the Law concerned did not give the lessor the possibility of regaining possession of the property except in cases of absolute necessity.

The Constitutional Court also held that Law no. 118, inasmuch as it provided for a blanket extension of current leases without taking into consideration the particular economic circumstances of lessors and lessees - as would have been necessary to ensure social justice -, infringed the principle of the equality of citizens before the law embodied in Article 3 of the Constitution.

Numerous provisions have established rules for the postponement, suspension or staggering of the enforcement of judicial decisions ordering tenants to vacate the premises they occupy (ordinanze di sfratto).

A first suspension was introduced by Legislative Decree no. 795 of 1 December 1984. The provisions set forth therein were incorporated in Legislative Decree no. 12 of 7 February 1985, which became Law no. 118 of 5 April 1985. It covered the period from 1 December 1984 to 30 June 1985. This legislation also provided for the staggered resumption of forcible evictions on 1 July 1985, 30 September 1985, 30 November 1985 or 31 January 1986, depending on the date on which the judgment recording the end of the lease had become enforceable.

Section 1 (3) of Law no. 118 stipulated that such suspensions were not applicable if repossession of the premises had been ordered because arrears of rent were owed. Similarly, no suspension could be ordered in the following cases:

(a) where, after conclusion of the contract, the lessor required the property for his own use or for that of his spouse or his children or grandchildren, for residential, commercial or professional purposes, or where a lessor who intended to use the premises for one of the above-mentioned purposes (a) offered the tenant similar accommodation at a rent which he could afford and which was not more than 20% higher than the previous rent and (b) undertook to pay the costs of the tenant's removal (Article 59, first subsection, paragraphs 1, 2, 7 and 8, of Law no. 392 of 27 July 1978 ("Law no. 392")); and

(b) where, inter alia, a lessor urgently needed to regain possession of his flat as accommodation for himself, his children or his ascendants (Article 3, first paragraph, sub-paragraphs 1, 2, 4 and 5, of Legislative Decree no. 629 of 15 December 1979, which became Law no. 25 of 15 February 1980 ("Law no. 25")).

A second suspension was introduced by Legislative Decree no. 708 of 29 October 1986, which became Law no. 899 of 23 December 1986.

It covered the period from 29 October 1986 to 31 March 1987 and in sections 2 and 3 provided for the same exceptions as the provisions in the preceding legislation.

Law no. 899 of 23 December 1986 also established that the Prefect was competent to determine the criteria for authorising police assistance in evicting recalcitrant tenants, after consulting a committee including representatives of both tenants and landlords.

Section 3 (5 bis) of Law no. 899 of 23 December 1986 also provided for the automatic suspension until 31 December 1987 of forcible evictions of tenants entitled to subsidised housing.

A third suspension was introduced by Legislative Decree no. 26 of 8 February 1988, which became Law no. 108 of 8 April 1988. It first covered the period from 8 February 1988 to 30 September 1988 and was subsequently extended from the latter date to 31 December 1988.

A fourth suspension was introduced by Legislative Decree no. 551 of 30 December 1988, which became Law no. 61 of 21 February 1989, and covered the period up to 30 April 1989. In regions suffering from natural disasters the suspension remained in force until 31 December 1989.

With the exception of urgent cases, this Law also provided that police assistance in enforcing evictions would only be authorised in gradual stages over a period of forty-eight months from 1 January 1990 and set up a prefectoral committee responsible for deciding which cases required police intervention most urgently.

All the aforementioned laws and decrees also contained provisions relating to the financing of subsidised housing and to housing benefits.


The applicant was born in 1956 and lives in the town of Ryazan in the Ryazan Region. He is a former military officer.

In 2002 the applicant sued his military unit for wage arrears for his military service in 1996 when he had taken part in a military operation in Tajikistan.

On 22 February 2002 the Military Court of the Ryazan Garrison upheld the action and awarded the applicant 163,732.80 Russian roubles (RUR). The judgment was not appealed against and became final.

On 3 April 2002 the applicant received a writ of execution and submitted it to the Ryazan Office of the State Treasury. On 26 April 2002, after the Ryazan Office of the State Treasury had refused to execute the judgement, the applicant submitted the writ to the Ministry of Finance of the Russian Federation.

On 30 September 2002 the applicant was discharged from the army.

On 16 July 2003 the Presidium of the Military Court of the Moscow Command, by way of a supervisory review, quashed the judgment of 22 February 2002 and remitted the case for a fresh examination to the Military Court of the Ryazan Garrison.

On 15 September 2003 the Military Court of the Ryazan Garrison decided not to examine the action as the applicant had defaulted at two hearings.

On 12 August 2004 the Military Section of the Supreme Court of the Russian Federation, acting on a supervisory review, found that the applicant had not been duly summonsed to the hearings before the Military Court of the Ryazan Garrison, quashed the judgment of 16 July 2003 and the decision of 15 September 2003 and ordered a re-examination of the case by the Presidium of the Military Court of the Moscow Command.

On 15 September 2004 the Presidium of the Military Court of the Moscow Command, by way of supervisory-review proceedings, re-examined the case, awarded the applicant RUR 56,311.20 and dismissed the remainder of his claims.

In January 2005 the applicant asked the Military Section of the Supreme Court of the Russian Federation to initiate a supervisory review in respect of the judgment of 15 September 2004. On 3 May 2005 the request was dismissed.

In July 2005 the applicant unsuccessfully requested the President of the Supreme Court of the Russian Federation to quash the judgment of 15 September 2004 by way of a supervisory review. On 10 August 2005 the Vice President of the Supreme Court of the Russian Federation refused to institute supervisory-review proceedings in respect of the judgment of 15 September 2004.


Remainder inadmissible;No violation of Art. 6-1;Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Alvina Gyulumyan;Anatoly Kovler;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in 1957 and lives in the town of Gelendzhik, in the Krasnodar Region.

The applicant's husband was a staff member of the Oceanology Institute of the Russian Academy of Sciences, a State-owned institution. In 1977 he was placed on a waiting list to receive housing. In August 1998 he was on the top of the list. In order to obtain a larger flat from the Institute, it was agreed that the applicant would transfer title to her own flat to the Institute. On 4 December 1998 the applicant and the Institute signed an exchange agreement. The Institute subsequently discovered that the applicant had sold her old flat in March 1998.

On an unspecified date, having become aware of the above transactions, the Gelendzhik town prosecutor, acting on behalf of the Institute and the person who had been allocated the applicant's flat (a Mr M), brought proceedings against the applicant and her husband to have the exchange agreement invalidated and to evict the applicant's family from the flat granted to her husband. The applicant's husband brought a counter-claim seeking the acknowledgement of his right to the new flat received from the Institute.

On 9 March 2000 the Gelendzhik Town Court of the Krasnodar Region granted the public prosecutor's claim. On 25 April 2000 the Krasnodar Regional Court quashed the judgment and ordered a re-examination of the case by the first-instance court.

The first instance heard the prosecutor, the applicant, her husband and their counsel. The Oceanology Institute's and Mr M's representatives were also present and made submissions to the court. On 1 June 2001 the Town Court granted the public prosecutor's claim. On 18 June 2001 the Town Court dismissed the counter-claim in a separate judgment. The applicant appealed. On 16 August 2001 the Regional Court upheld the judgments of 1 and 18 June 2001. The prosecutor was present at the appeal hearing. There is no written proof that the applicant received any summons for the appeal hearing scheduled for 16 August 2001.

On 30 January 2003 the Supreme Court refused to initiate supervisory proceedings in respect of the above judgments. It rejected, inter alia, the applicant's complaint about non-notification of the appeal hearing, noting that the parties had been apprised of it.

In the meantime, on 4 February 2000 criminal proceedings were instituted against the applicant on suspicion of embezzlement in relation to the same facts. On 19 December 2000 the case was discontinued for lack of a corpus delicti. On 15 August 2006 the above decision was quashed and the preliminary investigation was resumed. Its outcome remains unclear.

The RSFSR Code of Civil Procedure (CCP) in force at the material time read as follows:

“A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens...

The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge applications, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law...”

The Prosecutor's Offices Act (Federal Law no. 2202-I of 17 November 1992), as in force at the material time provided:

“... 3. In accordance with the procedural legislation of the Russian Federation, prosecutors shall participate in the hearing of cases by courts of law and commercial courts (hereinafter referred to as the “courts”) and shall challenge any court decisions, sentences and rulings which are contrary to the law...”

“1. The prosecutor shall take part in court hearings in the cases provided for by the procedural legislation of the Russian Federation and other federal laws...

The prosecutor, in accordance with the procedural legislation of the Russian Federation, shall be entitled to make an application to the court or to enter the case at any stage of the proceedings, if the protection of civil rights and lawful interests of society or the state so requires...”

Article 106 of the RSFSR CCP provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a phone call or a telegram. Pursuant to Articles 108 and 109, court summonses were to be sent by mail or by courier and served on the person who was a party to the case.

According to Instruction no. 8 issued by the Judiciary Department of the Supreme Court of Russia on 29 January 1999, in force at the material time, there was no requirement for registering acknowledgment-of-receipt cards for summons; the cards were to be filed into the relevant case files (point 12). Under Instruction no. 171 issued on 29 December 1999, the storage period for case files in civil cases examined by a first-instance court on the merits varied from five to fifteen years depending on the nature of the case; certain case files had to be stored for an indefinite period of time; the storage period for case files in civil cases examined by a court of appeal amounted to three years; registers of incoming correspondence were to be kept for three years; copies of summons issued by regional courts were to be kept for five years.

The relevant part of the Parliamentary Assembly's Resolution 1604 (2003) On the Role of the Public Prosecutor's Office in a Democratic Society Governed by the Rule of Law reads as follows:

“it is essential:

a. that any role for prosecutors in the general protection of human rights does not give rise to any conflict of interest or act as a deterrent to individuals seeking state protection of their rights;

b. that an effective separation of state power between branches of government is respected in the allocation of additional functions to prosecutors, with complete independence of the public prosecution from intervention on the level of individual cases by any branch of government; and

c. that the powers and responsibilities of prosecutors are limited to the prosecution of criminal offences and a general role in defending public interest through the criminal justice system, with separate, appropriately located and effective bodies established to discharge any other functions...”

The European Commission for Democracy through Law (the Venice Commission) at its 63rd plenary session (10-11 June 2005) adopted an Opinion on the Prosecutor's Offices Act (see above). Its relevant provisions provide as follows:

“...57...It is, of course, clear that the Russian Office of the Prosecutor General is among those Offices which does not conform to the model which the Parliamentary Assembly considered to be essential. Moreover, in respect of the Prosecutor's predominant role in the Russian administration, which can hardly be described as limited or exceptional, the Prosecutor's Office does not seem to conform to the tests...which are as follows:

In addition to the essential role played by prosecutors in the criminal justice system, some member states of the Council of Europe provide for the participation of the prosecutor in the civil and administrative sectors for historical, efficiency and economic reasons but their role should always be exceptional (principle of exceptionality).

The role of the prosecutor in civil and administrative procedures should not be predominant; the intervention of the prosecutor can only be accepted when the objective of this procedure cannot, or hardly be ensured otherwise (principle of subsidiarity).

The participation of the prosecutor in the civil and administrative sectors should be limited and must always have a well-founded, recognisable aim (principle of speciality).

States can entitle prosecutors to defend the interest of the state (principle of protection of state interest).

Prosecutors can be entitled to initiate procedures or to intervene in ongoing procedures or to use various legal remedies to ensure legality (principle of legality).

In case it is required for reasons of public interest and/or the legality of decisions (e.g in cases of protection of the environment, insolvency etc.) the participation of the prosecutor can be justified (principle of public interest).

Protecting the rights and interests of disadvantaged groups of society unable to exercise their rights can be an exceptional reason for the intervention of the prosecutor (principle of protection of human rights)...

Prosecutors should have no decision-making powers outside the criminal field or be given more rights than other parties before courts (principle of equality of arms).

Prosecutors should not discriminate among persons when protecting their rights and should only intervene for well-grounded reasons (principle of non-discrimination)...

There have been undoubted reforms in the Russian system of Procuracy, notably the limitations on the prosecutor's powers of supervisory review of court decisions... and the fact that intervention in court cases on behalf of the citizens is limited to cases where they are unable to act for themselves or where this is justified because numerous citizens are affected by the wrongdoing concerned”.

Opinion no. 3 (2008) adopted by the Consultative Council of European Prosecutors, an advisory body set up by the Council of Europe Committee of Ministers by its decision of 13 July 2005, contains the following comparative analysis [internal footnotes omitted]:

“22. Court actions – irrespective of the procedural rules governing them (rules of civil proceedings or special administrative law rules) – are bound to court proceedings: prosecutors act as parties therein. Prosecution services did not report any special powers or authority when prosecutors take part in civil court proceedings as petitioners, they have the same powers as other parties. Their position is not exclusive, the proceedings may be started by other interested persons as well. In such cases prosecutors have definitely no decision-making powers regarding the merit of cases, their decisions concern only initiation of a case: submitting a petition to the civil law court.

Almost in all countries where prosecutors have competences in the non criminal field, prosecutors are empowered to launch new court-actions, to use ordinary and extraordinary remedies (appeals) as parties of proceedings. However some rules could be identified (prohibition of extraordinary appeal or proposal for reopening of proceedings; prohibition of settlement in the name of the party)...

The aims of non penal activities of prosecutors, irrespective of their substantive or procedural differences, are much more concordant: ensuring rule of law (integrity of democratic decisions, legality, observance of law, remedy against violation of law), protection of rights and liberties of persons (mostly of those incapable to protect their rights – minors, persons with unknown domicile, mentally incapables), protection of assets and interests of State, protection of public interest (or of public order), harmonisation of jurisdiction of courts (special remedies against final court decisions in the best interest of law, action as parties in such proceedings of the highest court levels)...

...[T]he CCPE is aware of occasional improper practice of public prosecutors acting outside the field of criminal justice assessed by the Court or by certain Constitutional Courts or criticised by other bodies of the Council of Europe. The most disconcerting events were in connection with rejection without reason of requests to start civil law court actions; intervention in court proceedings without reasonable interest (of State, of public interest or based on protection of rights) violating the principle of equality of arms; quashing of final judgment of courts violating the principle of legal certainty (res judicata) ; participation of prosecutors in panels of supreme courts confusing the decision-making role of judges with prosecutors tasks; unlimited right to start litigation.

The contribution of prosecutors to the consolidation of the case-law of the courts is a fact in many member States. The role of prosecutors in this respect should not allow them to exercise undue influence on the final decision-taking process by judges.”

The Opinion referred to the following principles applicable in the relevant field:

“a. the principle of separation of powers should be respected in connection with the prosecutors' tasks and activities outside the criminal law field and the role of courts to protect human rights;

b. the respect of impartiality and fairness should characterise the action of prosecutors acting outside the criminal law field as well;

c. these functions are carried out “on behalf of society and in the public interest”, to ensure the application of law while respecting fundamental rights and freedoms and within the competencies given to prosecutors by law, as well as the Convention and the case-law of the Court;

d. such competencies of prosecutors should be regulated by law as precisely as possible;

e. there should be no undue intervention in the activities of prosecution services;

f. when acting outside the criminal law field, prosecutors should enjoy the same rights and obligations as any other party and should not enjoy a privileged position in the court proceedings (equality of arms);

g. the action of prosecution services on behalf of society to defend public interest in non criminal matters must not violate the principle of binding force of final court decisions (res judicata) with some exceptions established in accordance with international obligations including the case-law of the Court;

h. the obligation of prosecutors to reason their actions and to make these reasons open for persons or institutions involved or interested in the case should be prescribed by law;

i. the right of persons or institutions, involved or interested in the civil law cases to claim against measure or default of prosecutors should be assured;

j. the developments in the case-law of the Court concerning prosecution services' activities outside the criminal law field should be closely followed in order to ensure that legal basis for such activities and the corresponding practice are in full compliance with the relevant judgments...”


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1960 and lives in Zgornji Dolič.

On 9 January 1993 the applicant was injured in an accident at work. The applicant’s employer had taken out insurance with the insurance company ZT.

On 30 August 1995 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 8,009,850 tolars (approximately 33,300 euros) for the injuries sustained.

Between 1 October 1996 and 8 January 1999 the applicant lodged eight preliminary written submissions and/or adduced evidence.

Between 14 November 1996 and 1 October 1998 she made six requests that a date be set for a hearing.

On 25 September 1997 the judge presiding the case was appointed to the Celje Higher Court (Višje sodišče v Celju) and the case was assigned to a new first-instance court judge.

Of the three hearings held between 13 December 1996 and 13 January 1999 none was adjourned at the request of the applicant.

During the proceedings the court appointed a medical expert.

At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 1 March 1999.

On 16 March 1999 ZT appealed to the Celje Higher Court contesting the part of the judgment referring to costs and expenses of the proceedings.

On 16 February 2000 the court allowed the appeal in part and remanded the case back to the first-instance court for re-examination.

The decision was served on the applicant on 21 March 2000.

Between 6 July 2000 and 13 March 2001 the applicant lodged four rush notices with the first-instance court.

On 6 April 2001 the first-instance court issued a new decision on costs and expenses. The decision was served on the applicant on 11 April 2001.

On 11 May 2001 ZT appealed to the Celje Higher Court.

On 18 July 2002 the court rejected the appeal. The decision was served on the applicant on 28 August 2002.