Violation of Art. 3;Violation of Art. 5-3;Violations of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1974 and lives in Vladimir, Russia.

On 20 July 2004 a criminal investigation into a financial fraud allegedly committed by the applicant in conspiracy with another person, was opened.

On 22 July 2004 the applicant’s flat was searched and she was informed about the suspicion against her.

On 23 July 2004 the applicant was arrested and charged with large-scale fraud, an offence under Article 159 § 3 of the Russian Criminal Code.

On 24 July 2004 the Frunzenskiy District Court of Vladimir ordered the applicant’s detention on the ground that she was suspected of a serious criminal offence and that she would abscond because her accomplice had already absconded. She could also destroy evidence because some documents had not yet been seized.

On 26 July 2004 the applicant sent her notice of appeal. She asked for a more lenient preventive measure and petitioned the court to take into account that she was charged with a financial crime, that she had no criminal record, had a permanent place of residence and employment in Vladimir, family ties, a stable way of life and two minor children aged four and three. If she wished, she could have absconded after the search in her flat. The fact that she had not fled from justice proved that she had no such intention. She also complained about inhuman conditions of her detention and sought leave to appear before the appeal court.

On 10 August 2004 the Vladimir Regional Court upheld the detention order of 24 July 2004, finding that it had been lawful, sufficiently reasoned and justified. In the Regional Court’s view, the District Court had correctly assessed the applicant’s “character” and other materials presented by the prosecutor. The appeal hearing took place in the presence of the prosecutor who repeated the arguments advanced before the District Court and two counsels for the applicant. The applicant’s request for leave to appear in person was refused because her arguments were clearly set out in her notice of appeal and did not require additional clarifications.

On 22 September 2004 the Frunzenskiy District Court extended the applicant’s detention until 23 November 2004. The court grounded its decision on the gravity of the charge against the applicant and on the possibility that she could abscond or obstruct justice.

On 27 September 2004 the applicant appealed. She complained that the decision of 22 September 2004 was not sufficiently motivated, that the court did not take into account her individual situation, that the conditions of her detention were inhuman. She asked for release on bail.

The appeal hearing was scheduled for 19 October 2004. On that day the hearing was adjourned because the applicant had not been brought to the courthouse.

On 3 November 2004 the Vladimir Regional Court found that there were no reasons to vary the preventive measure and upheld the decision of 22 September 2004.

On 22 November 2004 the Frunzenskiy District Court extended the applicant’s detention until 23 December 2004, finding as follows:

“... it is necessary to carry out many investigative actions with [the applicant’s] participation.

[The applicant] is charged with a serious criminal offence. Besides, the prosecution submitted documents showing that, once released, [the applicant] can flee from justice and interfere with the establishment of the truth.

The court sees no reasons to vary or cancel the preventive measure applied to [the applicant].”

On 1 December 2004 the applicant lodged a notice of appeal. On 27 December 2004 the Vladimir Regional Court upheld the decision. It found that the decision had been lawful and sufficiently reasoned.

On 22 December 2004 the Frunzenskiy District Court extended the applicant’s detention until 23 January 2005 with reference to the gravity of charges and the need for a further investigation. The court also mentioned that the applicant could abscond, obstruct justice or re-offend.

On 27 December 2004 the applicant appealed. She referred, in particular, to inhuman conditions of her detention and asked for release on bail.

On 1 February 2005 the Vladimir Regional Court upheld the decision of 22 December 2004. In particular, the appeal court noted that “conditions of detention could not be taken into account when deciding on an extension of detention”.

On 21 January 2005 the Frunzenskiy District Court extended the applicant’s detention until 20 March 2005. The reasoning was similar to that in the decision of 22 December 2004.

On 24 January 2005 the applicant lodged her points of appeal. She submitted that she had already spent six months in custody and that a further extension was permitted under the domestic law only if the case was particularly complex. The prosecution failed to show that her case was particularly complex. Nor did they prove that she intended to abscond or interfere with the establishment of the truth. The prosecution searched the applicant’s flat and office and seized all the papers; for that reason she could not destroy any evidence. The applicant asked the court to take account of her personal situation – her being a mother of two minor children with a permanent place of residence and employment in Vladimir - and inhuman conditions of her detention on remand. She complained that she had not been afforded an opportunity to study the materials submitted by the prosecution in support of their request for extension.

On 22 February 2005 the Vladimir Regional Court upheld the decision of 21 January 2005. The appeal court endorsed the reasoning of the first-instance court. It further held:

“The opinion of [the applicant’s] lawyer that when considering the extension of detention it is necessary to take into account the conditions of detention in remand centres has no basis in the domestic law...

The rules of criminal procedure (Arts. 108, 109 of the Russian Code on Criminal Procedure) do not provide for disclosure of the materials submitted by the prosecution in support of a request for extension. Nor do they require that the court should hear the opinion of the parties concerning [those materials].”

On 18 March 2005 the Frunzenskiy District Court ordered the extension of the applicant’s detention until 20 May 2005. It held that the applicant was charged with a serious criminal offence, that it was necessary to conduct an additional investigation and that there were no reasons to vary the preventive measure.

On 24 March 2005 the applicant lodged her appeal. On 19 April 2005 the Vladimir Regional Court upheld the decision.

On 19 May 2005 the Frunzenskiy District Court extended the applicant’s detention until 20 June 2005. It held that the extension was “objectively justified” because of the complexity of the case, the gravity of the charge and the risk of the applicant’s absconding or her interfering with the establishment of the truth.

On 27 May 2005 the applicant appealed. She repeated the arguments set out in the points of appeal of 24 January 2005 and added that her father was seriously ill. On 21 June 2005 the Vladimir Regional Court rejected the appeal.

On 17 June 2005 the Frunzenskiy District Court extended the applicant’s detention until 20 July 2005. It referred to the complexity of the case (the case-file comprised 13 binders), the need for a further investigation, the gravity of the charge and the risk of the applicant’s absconding or interfering with the establishment of the truth.

On 28 July 2005 the Vladimir Regional Court upheld the decision on appeal.

On 14 July 2005 the investigation was completed and the applicant was committed for trial. The applicant’s lawyers petitioned the court for her release.

On 19 July 2005 the Leninskiy District Court of Vladimir fixed the first hearing for 2 August 2005 and ordered that the applicant should remain in custody.

On 2 August 2005 the Leninskiy District Court established that the case was not ready for consideration on the merits because the applicant had not had sufficient time to study the case file and remitted the case for additional investigation. It ordered that the applicant should meanwhile remain in custody.

On 4 August 2005 the acting prosecutor of Vladimir varied the preventive measure. The applicant was released but ordered not to leave the town.

The applicant was held in detention facility no. IZ-33/1 in the Vladimir Region.

According to a certificate of 11 August 2005 from the facility administration, produced by the Government, the applicant was kept in four cells described as follows: cells nos. 73 and 74 (22 m², 18 bunks, 15 inmates on average), cell no. 69 (24 m², 21 bunks, 14 inmates on average) and cell no. 70 (25 m², 15 bunks, 10 inmates on average). The Government submitted that the applicant had at all times had a separate bunk.

The applicant did not dispute the cell measurements and the number of bunks. She disagreed, however, with the number of inmates asserted by the Government. According to her, from July 2004 to March 2005 she was held in cell no. 73 together with 15 to 22 inmates; from 2 to 4 March 2005 she was kept in cell no. 69 which accommodated 14 detainees; thereafter and until 18 May 2005 she shared cell no. 74 with up to 20 inmates; in the night of 18 May 2005 she stayed in cell no. 70 with 10 other inmates; and on 19 May 2005 she was transferred back to cell no. 74 that accommodated up to 20 detainees. In cells nos. 73 and 74 she did not always have a separate bunk.

The Government, relying on a certificate of 11 August 2005 from the facility administration, submitted that all cells were equipped with a lavatory pan. The pan had no cover but it was separated from the living area by a one-metre-high brick wall and an additional curtain of 1.2 metre in height. Once a week the inmates were provided with detergent (soda and chlorine). The dining table was situated three meters away from the pan. The inmates were allowed to take a shower once a week. The cells were naturally ventilated through the windows and the door vent. Fans were provided on request. There were no running hot water available but detainees were permitted to use immersion heaters. Besides, hot water for laundry and boiled drinking water was distributed. Once a week inmates were provided with clean bedding, towels and kitchenware. The cells were equipped with fluorescent lamps which functioned during day and night.

The applicant disagreed with the Government’s description and submitted that the sanitary conditions were unsatisfactory. The cells swarmed with insects, rats and mice. Inmates had to do their laundry indoors, creating excessive humidity in the cells. There was no artificial ventilation system. A fan was provided only in June 2005. The windows were covered with thick metal bars that blocked access to natural light. The artificial light was never switched off disturbing the applicant’s sleep.

The applicant contested the Government’s description of the toilet facilities. The pan was cleaned infrequently and it was very dirty and stinky. What is more, it had no cover: inmates stuck a plastic bottle in the hole in order to prevent smells from spreading. No curtains were provided and inmates had to hang a sheet which did not offer sufficient privacy. No toilet articles were distributed, save for 100 g of soda and chloride and 33 g of laundry soap per week.

The applicant was allowed to take a shower once a week. The entire cell was afforded fifteen minutes to shower, although there was only four shower heads. Soap was distributed after a shower. It was extremely cold in the shower room in winter. On the court days or on the days of family visits the applicant missed her chance to take shower.

The Government submitted that the applicant had an hour-long walk daily.

The applicant conceded that an hour-long walk was organised every day. However, on shower days inmates were not allowed to go outdoors. The entire cell population was often left indoors as collective punishment for a disciplinary offence committed by one inmate. The exercise yards were fenced by brick walls of 2.5 metre in height with bars on the top. They were covered with a metal roof with a one-meter gap between the roof and the top of the walls. In summer it was extremely hot and stifling inside because the sun heated the roof. Most of yards measured 9 m², up to 10 people were brought into the yard at once.

Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, the “CCrP”).

“Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112).

When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).

Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 109 § 9).

From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).

An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide the appeal within three days after its receipt (Article 108 § 10).

The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows:

“10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to ... minimum floor space, lighting, heating and ventilation...

In all places where prisoners are required to live or work,

(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;

(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.

The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.

Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower... at least once a week in a temperate climate.

All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time.

Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness...

Every prisoner shall... be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.

(1) Every prisoner... shall have at least one hour of suitable exercise in the open air daily if the weather permits.”

The relevant extracts from the 2nd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows:

“46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate... Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint.

Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...

The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.”

The relevant extracts from the CPT’s 10th General Report, governing conditions of detention of women [CPT/Inf (2000) 13], read as follows:

“21. ...in all Council of Europe member States, women inmates represent a comparatively small minority of persons deprived of their liberty. This can render it very costly for States to make separate provision for women in custody, with the result that they are often held at a small number of locations (on occasion, far from their homes and those of any dependent children), in premises which were originally designed for (and may be shared by) male detainees. In these circumstances, particular care is required to ensure that women deprived of their liberty are held in a safe and decent custodial environment...

The Committee also wishes to call attention to a number of hygiene and health issues in respect of which the needs of women deprived of their liberty differ significantly from those of men.

The specific hygiene needs of women should be addressed in an adequate manner. Ready access to sanitary and washing facilities, safe disposal arrangements for blood-stained articles, as well as provision of hygiene items, such as sanitary towels and tampons, are of particular importance.

The failure to provide such basic necessities can amount, in itself, to degrading treatment.”


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

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicants were born in 1955, 1935 and 1950 respectively and live in Hatay.

On various dates, the applicants bought plots of land (nos. 1233, 1230 and 1162 respectively) near the coast in Hatay. They each built a house there.

In 1995 the Treasury filed an action before the Samandağ Court of First Instance, requesting the annulment of the applicants’ title deeds to the land on the ground that they were located within the coastline.

On 16 December 1999 (nos. 40/02 and 41/02) and 9 December 1999 (42/02), the Samandağ Court of First Instance, relying, particularly, on expert reports, upheld the request of the Treasury and annulled the title deeds of the applicants to the plots of land. In its decisions, the court held that, pursuant to domestic law, coasts could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the site.

On various dates the applicants appealed. In their petitions they submitted, inter alia, that the right to property - a human rights norm - was protected under the constitution and the domestic law, and that the domestic courts had deprived them of their property rights without proper examination and without a payment of compensation. On 3 October 2000 their appeals were dismissed by the Court of Cassation.

On various dates the applicants requested the Court of Cassation to rectify its decision. The Court of Cassation dismissed the applicants’ requests on 2 May 2001 (nos. 40/02 and 42/02) and 19 April 2001 (no. 41/02). These decisions were served on the applicants on 6 June 2001 (nos. 40/02 and 42/02) and 23 May 2001 (no. 41/02).

The relevant domestic law and practice in force at the material time are outlined in the Doğrusöz and Aslan v. Turkey judgment (no. 1262/02, § 16, 30 May 2006).


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;No violation of Art. 6-1;Violation of Art. 13;No violation of Art. 13;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in 1973 and is currently serving a life sentence in Sokalska Correctional Colony no. 47 (Сокальська виправна колонія № 47).

On 6 June 2001 policemen attached to the Kominternovsky District Police Department of Kharkiv (Комінтернівський РВ ХМУ УМВС України в Харківській обл.), acting on information from an unknown source, arrested and detained the applicant on suspicion of murder and robbery. The applicant stated that he had been arrested the day before, on 5 June 2001.

On 8 June 2001 the applicant was questioned. He indicated that he did not need a lawyer.

On 9 June 2001 the applicant was transported to Kyiv, where he was placed in the Minsky District Temporary Detention Centre (Мінський районний ізолятор тимчасового тримання).

On 12 June 2001 the Prosecutor's Office of the Minsky District of Kyiv (Прокуратура Мінського району м. Києва) remanded the applicant in custody on the grounds that the applicant could escape and obstruct justice.

On 21 June 2001 formal charges were brought against the applicant on several counts of murder and attempted murder, attempted murder of police officers on duty, robbery and participation in an organised gang. When questioned on the same day in the presence of his lawyer, the applicant confessed to these charges.

On 2 August 2001 the Minsky District Court of Kyiv extended the applicant's pre-trial detention to a maximum of four months since “it was necessary to carry out a large scale investigation”.

On 5 October 2001 the Kyiv City Court of Appeal (hereinafter - “the Court of Appeal”) decided to extend the term of his pre-trial detention until 8 December 2001 given “the information on the applicant's personality” and the gravity of charges.

On 29 November 2001 the investigator declared the pre-trial investigation complete and granted the applicant and his lawyer access to the case file, which they finished studying on 30 October 2002.

On 9 December 2002, in the course of a preparatory hearing attended by the applicant and his lawyer, the Court of Appeal found that the case was not ready for consideration on the merits and decided to remit it to the prosecution for further investigation. It also held that the applicant should remain in pre-trial detention as he could obstruct justice if released.

On 24 April 2003, after a hearing attended by the applicant's lawyer, the Supreme Court of Ukraine upheld the decision of 9 December 2002 on the main points and decided that the applicant should remain in pre-trial detention as he could obstruct justice if released.

On 19 June 2003 the applicant's case file arrived from the Supreme Court at the Prosecutor's Office of the Obolonsky District of Kyiv (Прокуратура Оболонського району м. Києва).

On 18 July 2003 the Court of Appeal examined the prosecution's application to extend the applicant's pre-trial detention. The applicant's lawyer was present at this hearing and lodged an unsuccessful request for the release of her client. The Court of Appeal decided to extend the applicant's pre-trial detention for up to a maximum of nine months (according to the relevant legal provisions, at the material time, the terms of pre-trial detention applied only to the periods when the case was being investigated. The time when the case was in the court, when the accused was studying the case-file etc. were not taken into consideration). In doing so, the court referred to the complexity of the case, the seriousness of the crimes of which the applicant was accused, his personality and the fact that he could obstruct justice if released.

On 26 August 2003 the additional investigations were completed and on the following day the applicant and his lawyer were given access to the case file.

On 17 September 2003 the Supreme Court of Ukraine, at the request of the Prosecutor's Office of the Obolonsky District of Kyiv, extended the applicant's pre-trial detention to a maximum of twelve months. It based this decision on the seriousness of the charges.

On 18 December 2003 the Supreme Court of Ukraine granted the prosecution's request to extend the applicant's pre-trial detention until 19 March 2004.

On 16 March 2004 the applicant's pre-trial detention was extended by the Supreme Court of Ukraine until 19 May 2004. It took this decision on the basis of the seriousness of the charges brought against him. In this decision, the Supreme Court did not deal with the request of the applicant's lawyer to release her client on medical grounds.

On 18 May 2004 the Supreme Court of Ukraine dismissed the prosecution's application for a further extension of the applicant's pre-trial detention. The Supreme Court held that although the accused had been studying the twelve volumes of case materials since 27 August 2003 and he still had around ten volumes to study, there was no indication that the accused had deliberately delayed a trial. According to the court, the case materials had not been properly filed (in two volumes there were no lists of documents and pages were numbered in pencil). Therefore, the Supreme Court concluded that the investigation authorities had failed to properly present case-file materials and there were no grounds for an extension of the applicant's detention on remand.

On 19 May 2004 the Prosecutor General's Office (Генеральна Прокуратура України) asked the Supreme Court to lodge an application for an extraordinary review of this decision, considering, inter alia, that such decision would allow “persons who have committed serious offences to avoid isolation from society”.

On the same day the applicant's case file was sent to the Court of Appeal for consideration on the merits.

On 20 May 2004 five judges of the Supreme Court lodged an application for extraordinary review (подання в порядку виключного провадження) of the decision of 18 May 2004.

In the course of a joint session held on 21 May 2004 which was attended by the prosecutor but not by the applicant or his lawyer, with judge P. acting as judge-rapporteur, the Criminal and Military Boards (Судова палата з кримінальних справ і Військова колегія) of the Supreme Court set aside the decision of 18 May 2004 on the ground that the reasons given for the dismissal of the prosecution's request to extend the applicant's detention were insufficient and irrelevant, and ordered a rehearing. In particular, the court held that the investigating officer could not limit the time for studying the case file.

On 24 May 2004 the Supreme Court granted the prosecution's application for an extension of the applicant's pre-trial detention until 19 June 2004, as the applicant still needed time to study the case file. The court found no reason to release the applicant.

On an unidentified date the case was transferred to the court for consideration of the charges against the applicant.

On 3 December 2004 the Court of Appeal found the applicant guilty as charged and sentenced him to life imprisonment. The applicant's conviction was based on his initial confession statements, an extensive amount of different evidence and statements from eleven witnesses and ten victims. Three of his accomplices were also sentenced to different terms of imprisonment. The applicant appealed.

On 24 May 2005 the three Supreme Court judges, including judge P., upheld this judgment.

On 30 May 2007 the Supreme Court rejected the applicant's request for review of his case under the extraordinary review procedure.

Between 2005 and 2007 the applicant instituted proceedings against the judges of the Court of Appeal complaining of different procedural shortcomings in the course of consideration of his criminal case. All of his complaints and subsequent appeals were rejected since the applicant should have raised these complaints during the examination of his case and not in a separate set of proceedings.

Before his arrest the applicant suffered from limited mobility caused by a multiple fracture of his left thigh which was the result of a gunshot wound. He had a metallic plate fitted, but this became dislodged and caused a deformation of the bone. As a consequence the applicant's left leg was 3 cm shorter than his right and he suffered from pains in his left leg. According to a certificate issued by Yalta Town Hospital (Ялтинська міська лікарня) on 10 January 2002, the applicant received in-patient treatment there between 27 November and 12 December 2000 for a left thigh fracture which, according to this certificate, required further surgery and inpatient treatment.

On 8 August 2001 the applicant was transferred from the police detention facility, where he had been held since June 2001, to Kyiv PreTrial Detention Centre no. 13 (Київський слідчий ізолятор № 13, (“SIZO no. 13”)).

Upon his arrival, the applicant was examined by a doctor. The chest X-ray taken on 7 August 2001 revealed no abnormalities in the applicant's lungs.

According to the applicant, from the date of his admission and until 1 April 2003 he was subjected to a high security regime. In particular, he was only allowed outside his cell when handcuffed and accompanied by two guards with a prison dog in attendance. He was also held in a metal cage during his lawyer's visits and interviews by the investigator.

On 16 January 2002 the applicant was punished for an unspecified offence with five days' confinement in a punishment cell (карцер). After this punishment he caught a cold, for which, according to the applicant, he received no treatment.

On 31 January 2002 the applicant's lawyer requested a surgeon from Polyclinic no. 3 of the Solomyansky District of Kyiv (Поліклініка № 3 Солом'янського району м. Києва) to give his opinion on the applicant's orthopaedic problems. The surgeon, having examined the applicant and his medical case file, found that he had sustained a multiple fracture of the left thigh and was suffering pain related to this fracture. He needed further examination by an orthopaedist and in-patient treatment in a specialist hospital. The applicant also required a crutch, orthopaedic shoes and strong painkillers.

In March 2002 the applicant allegedly started to cough.

On 21 and 22 August 2002 the applicant was examined by prison doctors and diagnosed as suffering from infiltrative tuberculosis, pleurisy and a compound fracture of the left thigh. On the latter date he was moved to the medical wing of SIZO no. 13.

According to the Government, between 28 August and 15 October 2002 the applicant refused to take medication but did not sign any such refusal.

In a letter of 26 September 2002 the Head of the State Department for Enforcement of Sentences (Державний департамент виконання покарань) stated that the applicant had been placed to a punishment cell for 5 days and subjected to a high security regime; he was able to walk without a crutch and had refused medical assistance for his health problems.

According to a report of 10 October 2002 signed by the medical officer of the State Department for Enforcement of Sentences and by the SIZO doctor, the applicant had not complained about coughing between February and April 2002. The applicant had special orthopaedic shoes but, according to the surgeon's conclusion, needed a crutch and surgery. The applicant's condition had been satisfactory. He had been prescribed various medications but had only taken one of them as he had wanted to receive medications from home.

In November 2002 the Kyiv Traumatology Institute (Київський науково-дослідний інститут травматології та ортопедії) issued a certificate according to which the applicant did not need surgery. The certificate was signed by a senior scientist (старший науковий співробітник).

According to the applicant, on 10 December 2002 he was again punished with five days' detention in a punishment cell. Since the temperature there was lower and humidity higher than in the medical cell, the applicant's health deteriorated significantly.

The Government submitted that between 12 March and 28 April 2003 the applicant again refused to take medication.

In October 2003 the applicant was examined by the Head of the Orthopaedic Department of the Kyiv Medical Academy of Postgraduate Studies (Кафедра ортопедії Київської медичної академії післядипломної освіти) who, in his opinion of 10 October 2003, stated that the applicant's compound fracture of the left thigh required in-patient treatment in a specialist hospital.

In 18 November 2003 the applicant's state of health declined. He had two X-rays, and medication was administered directly into the pleural cavity. On 18 December 2003 the applicant was examined by P., a professor of phthisiology, who prescribed him further treatment.

In January 2004 the applicant's tuberculosis was aggravated by a pyopneumothorax (accumulation of pus in the pleural cavity) on account of which he was transferred to the Institute of Phthisiology and Pulmonology (Інститут фтізіатрії та пульмонології (hereinafter - “the Institute”)) on 4 February 2004.

On 5 February 2004 the administration of SIZO no. 13 asked the investigator in charge of the applicant's case to consider the possibility of the releasing the applicant, referring, inter alia, to the fact that his condition required a lengthy period of treatment in a specialist hospital.

On 21 February 2004 the Prosecutor of the Obolonskiy District of Kyiv replied that the applicant's detention had been extended by the Supreme Court and that there were no reasons to change this decision.

On 9 March 2004 the applicant was transferred from the Institute to SIZO no. 13. According to the applicant, because his treatment at the Institute had not been finished, he had still had tubes in his lungs for draining pus and further antibiotic treatment when he was transferred. He had received no such treatment in the SIZO and since the place where the tubes were inserted had become infected, the applicant had removed them himself.

According to a letter, written in reply to a request for information made by the applicant's lawyer on 11 March 2004 and signed by the Institute's head doctor, the head of the relevant department and the treating doctor at the Institute, the applicant's treatment had consisted of pleural drainage and the administration of antibiotics, carried out in parallel with intensive anti-tuberculosis treatment. It was necessary to continue this treatment in future. The doctors were aware of the applicant's orthopaedic problems, which aggravated his general condition, but this had not affected his treatment for tuberculosis.

On 24 March 2004 the applicant's lawyer requested that medical evidence be obtained in order to assess the applicant's fitness for detention in SIZO no. 13.

In a report of 19 April 2004 a panel of five experts from the Bureau of Forensic Medical Examinations of the Kyiv City State Administration (Бюро судово-медичної експертизи Головного Управління охорони здоров'я та медичного забезпечення Київської міської державної адміністрації) established that the applicant had sustained a compound fracture of the left thigh which had resulted in a substantial deformation of his left leg, causing limited mobility and considerable pain. The continued failure of the prison authorities to address this condition and his consequent reduced immunity may have been the reason why the applicant had contracted tuberculosis. The experts found that the applicant required specialist in-patient treatment, which could not be provided in the medical unit of SIZO no. 13.

On 27 July 2004 the doctor of the Traumatology and Orthopaedics Institute of the Academy of Medicine (Інститут травматології та ортопедії Академії медичних наук України) concluded that the applicant “could not have surgery on his left thigh”.

Between July 2004 and January 2005 the applicant had two chest Xrays and was twice examined by professor of phthisiology P.

On 8 October 2004, following an enquiry from the court, the SIZO administration issued a certificate stating that the applicant was suffering from chronic tuberculosis and other diseases but that his state of health was satisfactory and he could take part in court hearings.

On 2 December 2004 the applicant instituted proceedings in the Shevchenkivskyy District Court of Kyiv against the head of SIZO no. 13 and the head of its medical ward seeking his transfer to a specialised hospital and complaining that the information provided in the certificate of 8 October 2004 had not been true.

On 11 February 2005 the court rejected the applicant's complaints. In particular, the court found that the certificate in question had been accepted by the Court of Appeal and included in the applicant's criminal case file, therefore, there were no reasons to question its veracity. The court further found that the applicant had received the necessary medical treatment in the SIZO. This decision was not appealed against by the applicant.

According to the Government, the applicant refused to undergo medical tests on four occasions between January and July 2005. The relevant refusals were signed by the SIZO doctors but not by the applicant.

On 4 July 2005 the applicant was diagnosed with pleuropneumonia cirrhosis of the right lung, having been cured of cirrhotic tuberculosis.

On 1 November 2005, after the applicant's conviction had been upheld on appeal by the Supreme Court, he was transferred from SIZO no. 13 to Zamkova Correctional Colony no. 58 (Замкова ВК-58) to serve his prison sentence.

On an unspecified date the applicant was further transferred to Sokalska Correctional Colony no. 47 (Сокальська ВК-47).

On 9 February 2006 the applicant underwent surgery on his left leg.

According to the documents further submitted by the applicant's lawyers (letters from the Ukrainian-American Bureau for the Protection of Human Rights and from Sokalska Correctional Colony no. 47), he is still suffering from fibrocaseous tuberculosis of the right lung.

The relevant provisions of the Constitution of Ukraine read as follows:

“Human and citizens' rights and freedoms are protected by the courts.

Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of State authorities, local authorities, officials and officers. ...

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.”

In accordance with Article 165-3 of the Code of Criminal Procedure, decisions of the judge of the Supreme Court of Ukraine on detention on remand are not subject to appeal.

Other relevant provisions of the Code are summarised in the judgments of Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005II (extracts)), and Solovey and Zozulya v. Ukraine (nos. 40774/02 and 4048/03, § 43, 27 November 2008)).

On 3 April 2003 changes were introduced to Articles 156 and 218 of the Code. According to these new rules, access to the case file should be provided to the detained defendant at least a month before the expiry of the authorised term of detention. If one month proves insufficient for the defendant to familiarise him or herself with the case file, the investigator can lodge an application with the relevant court of appeal, pre-approved by the Prosecutor General, for an extension of the term of the defendant's detention. The time in which the defendant and his or her lawyer familiarise themselves with the case file cannot be limited.

In so far as tuberculosis is concerned, the Committee for the Prevention of Torture's report on its visit to Ukraine in 2005 (CPT/Inf (2007) 22) reads as follows:

“58. The delegation's observations in relation to tuberculosis are a source of great concern. There were often considerable delays in screening for tuberculosis. [...]

Further, it recommends that the Ukrainian authorities ensure:

- the early and effective screening for tuberculosis of all persons detained by the Militia;

- the provision of uninterrupted treatment for persons already receiving anti-tuberculosis drugs at the time of apprehension.”

Other relevant international reports and other materials concerning the treatment of tuberculosis in Ukrainian penitentiary establishments can be found in the judgment of 28 March 2006 in the case of Melnik v. Ukraine, (no. 72286/01, §§ 47-53) and in the judgment of 19 February 2009 in the case of Malenko v. Ukraine (no. 18660/03, § 2830).


Ineta Ziemele;Ján Šikuta;Kristina Pardalos

The details as to the subject matter of the cases, reference dates for the start and end of the proceedings and the length of the proceedings are set out in the table appended hereto.


Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 13;Not necessary to examine Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

On 11 September 1970 Mr Diana was arrested on suspicion of having taken part in the activities of the terrorist organisation known as the "Red Brigades" and immediately taken into custody. He was convicted on eleven occasions between February 1971 and January 1987, the heaviest sentences he received being those imposed in the Novara Assize Court on 5 February 1981 (twenty-seven years' imprisonment and a fine of 200,000 Italian lire) and by the Milan Assize Court of Appeal on 28 November 1985 (life imprisonment). Since 11 September 1970 the applicant, pursuant to an aggregation of sentences ordered on 17 June 1992 by the Principal Public Prosecutor of Cagliari, has been serving the sentence of life imprisonment and has at the same time been, among other things, permanently disqualified from holding public office, stripped of his civic rights for the duration of his prison sentence and removed from parental control.

On 28 March 1987 the judge responsible for the execution of sentences (magistrato di sorveglianza) in Reggio di Calabria decided that Mr Diana's correspondence - the applicant then being in custody in Palmi Prison - should be subject to censorship under section 18 of Law no. 354 of 26 July 1975 (see paragraph 18 below). The grounds given for the decision were: the nature of the applicant's offences; the fact that he belonged to a special category of prisoner whose attitude was one of total opposition to the institutions of the State; his conduct; and his rejection of prison and refusal of any cooperation with prison staff.

On an unspecified date the applicant was transferred to Ascoli Piceno Prison.

On 17 December 1988 the judge responsible for the execution of sentences at Macerata ordered that all the applicant's correspondence, both incoming and outgoing, should be subject to censorship for six months from 22 December 1988, the date on which the prisoner was notified of the decision. He considered that the reasons which had prompted his counterpart in Reggio di Calabria to take such a measure (see paragraph 8 above) remained valid and that there was a continuing danger that the applicant would use his correspondence to commit offences or to prejudice public order or safety. At that time Mr Diana already had two convictions, and two other sets of criminal proceedings were pending against him. The first of these, in the Cagliari Assize Court of Appeal, related to charges of kidnapping, manufacture, possessing and carrying explosives, aggravated destruction of property and resisting arrest; they ended in a judgment of 17 March 1989, which became final on 5 March 1990 and in which the applicant was convicted and sentenced to eight years and six months' imprisonment and permanently disqualified from holding public office. The second set of proceedings, which were pending before the Novara Magistrate's Court (pretore), originated in a prosecution brought following an escape by the applicant on 23 September 1986; Mr Diana had been recaptured on 5 December 1986.

It is not contested that the following letters were inspected:

(a) a letter of 22 January 1989 from the applicant to his lawyer;

(b) a registered letter of 27 January 1989 to the applicant from his lawyer;

(c) a letter of 16 February 1989 from the applicant to his lawyer;

(d) a letter of 18 April 1989 from the applicant to his lawyer;

(e) a registered letter of 24 May 1989 to the applicant from his lawyer, enclosing a form for lodging an application with the Commission; and

(f) a letter of 30 May 1989 from the applicant to his lawyer, enclosing the Commission application form signed by the applicant on the same date, each page bearing the censor's stamp.

Mr Diana made several applications challenging the monitoring of his correspondence. In particular, he lodged an application (richiesta di riesame) with the Macerata judge responsible for the execution of sentences to reconsider his decision of 17 December 1988 (see paragraph 10 above). The judge refused the application on 13 January 1989. On 22 January 1989 the applicant sent a copy of the judge's decisions to his lawyer. On 27 January 1989 the lawyer sought to have the censorship of his correspondence with the applicant ended and the order of 17 December 1988 (see paragraph 10 above) rescinded. Relying on Articles 6 para. 3 (b) and 8 of the Convention (art. 6-3-b, art. 8), he argued, among other things, that the censorship was a manifest violation of the rights of the defence and could not be ordered on the basis of a similar decision taken by another judge nearly two years earlier or on the basis of considerations relating to the applicant's conduct in another prison, especially as the applicant was receiving more lenient treatment in Ascoli Piceno Prison.

On 17 March 1989 the judge responsible for the execution of sentences held that the measure in issue was wholly justified, having regard to the arguments already set out in his decision of 17 December 1988, to disciplinary reports on Mr Diana and to the fact that while in custody in Palmi Prison the applicant had been a member of a group of prisoners all of whom belonged to extreme-left-wing subversive movements. He nevertheless decided to adjourn the lawyer's application and submit a question concerning the interpretation of the relevant law to the Prison Service (Direzione generale degli Istituti di prevenzione e pena), relating to whether the monitoring of the applicant's correspondence with his lawyer was lawful, given that two sets of criminal proceedings against the applicant were still pending at the time. The applicant's correspondence nevertheless continued to be monitored while a reply from the relevant authority was awaited.

On 26 May 1989 the judge, in reply to a letter sent him by the defence lawyer on 18 May, again confirmed his decision of 17 December 1988.

The Prison Service replied on 1 June 1989. In its opinion, censorship of a prisoner's correspondence, provided that all the legal requirements were satisfied, covered all his correspondence, including that with his lawyer, and could not be regarded as infringing the rights of the defence, which were guaranteed by Article 24 of the Constitution. The confidentiality of communications between a prisoner charged with a criminal offence and his lawyer was preserved through the possibility of communication during private conversations inside the prison. On 10 June 1989 the judge responsible for the execution of sentences refused the lawyer's application of 27 January 1989.

The measure in issue ended automatically on 22 June 1989, on the expiry of the period specified in the decision (see paragraph 10 above).

On 26 June 1992 the applicant was transferred to the special prison at Trani (Bari). Since February 1994 he has enjoyed a semi-custodial regime.

Section 18 of Law no. 354 of 26 July 1975 ("Law no. 354"), as amended by section 2 of Law no. 1 of 12 January 1977, provides that power in the matter of censorship of prisoners' correspondence vests in the judge dealing with the case - whether an investigating judge or a trial judge - up to the decision at first instance and in the judge responsible for the execution of sentences thereafter. The judge may order censorship of a prisoner's correspondence in a reasoned decision; this provision, however, does not specify the cases in which such a decision may be taken.

The censorship of which the applicant complains consists, in particular, in all mail being intercepted and read by either the judicial authority that has ordered the censorship or the prison governor or prison staff designated by him, and in the stamping of letters for the purpose of showing that they have been inspected. Censorship cannot extend to deleting words or sentences, but the judicial authority can order that one or more letters shall not be handed over; in that case, the prisoner must immediately be informed of the fact. This latter measure can also be ordered temporarily by the prison governor, who must, however, notify the judicial authority of his action.

Article 103 of the New Code of Criminal Procedure forbids the seizure or any form of control of the correspondence between a prisoner and his lawyer, provided that the correspondence is recognisable as such and unless the judicial authority has well-founded reasons to believe that the correspondence constitutes the substance of the offence. Similarly, by Article 35 of the transitional provisions of the same Code, the rules on the censorship of a prisoner's correspondence that are laid down in Law no. 354 and Presidential Decree no. 431 of 29 April 1976 do not apply to correspondence between the prisoner and his lawyer. It follows, among other things, that the only authority that may order censorship of that correspondence, and then solely in the case mentioned above, is the judge or court dealing with the case.

The Court of Cassation has held on several occasions that the monitoring of a prisoner's correspondence is an administrative act and has also stated that Italian law does not provide any remedies in respect of it; in particular, censorship cannot be the subject of an appeal on points of law, since it does not affect the prisoner's personal freedom (Court of Cassation, judgments nos. 3141 and 4687 of 14 February 1990 and 4 February 1992 respectively).


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Philip Alderson, is a British national who was born in 1952 and lives in Newport. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London.

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

On 4 February 2002, the applicant received a letter from the West Mercia Constabulary asking him to provide information about who was driving his car on 31 January 2002 when it failed to comply with the speed limit. The letter also stated that the police intended to prosecute the driver and that failing to supply information as to the driver was a criminal offence under section 172 of the Road Traffic Act 1988.

The applicant replied that he was responding under duress and that he was the driver.

On 18 September 2002, before the Magistrates’ Court, the applicant pleaded not guilty to the speeding offence and the prosecution sought to rely on his admission. The Magistrates rejected the applicant’s arguments that the use of the confession violated the Convention. He was convicted of speeding and fined GBP 125, with GBP 263 costs and three penalty points endorsed on his licence.

The relevant domestic law and practice is set out in O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, §§ 2531, ECHR 2007...


Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

The applicant, Mr Józef Szyc, is a Polish citizen who was born in 1950 and is currently detained in Biała Podlaska Prison. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

On 21 November 1990 the applicant was imprisoned in Biała Podlaska Prison. Subsequently, he was many times transferred between prisons in Włodawa, Biała Podlaska, Siedlce, Kamińsk and Chełm.

On 23 July 2009 the applicant was released from Chełm Prison as he had been granted a leave on compassionate grounds.

On 20 July 2010 the applicant resumed serving his prison sentence. He is currently detained in Biała Podlaska Prison.

The applicant submitted that practically all prisons in which he had been detained from 1999 or 2000 onwards had been overcrowded. By way of an example, he submitted that in June 2008 he had been detained in a prison cell with a living space of approx. 1 m² per inmate. He moreover asserted that on one occasion, for a period of one week, he was forced to sleep on a mattress on the cell floor. The overcrowding had resulted in tension and conflict among the detainees as well as in the progressive deterioration of the prison’s sanitary conditions.

The applicant further submitted that from November 1995 and over the next 13 years, he had been detained together with smokers, despite his being a non-smoker. The cells in which he had been detained had no proper ventilation.

As regards the applicant’s detention in Włodawa Prison, the Government pointed out that prior to 2 January 1999 the prison authorities had not been storing information as to the exact number of prisoners detained in each cell on specific dates. They further submitted that, to their general knowledge, the problem of overcrowding had not existed in Włodawa Prison prior to 1999. The Government acknowledged that from January 1999 until May 2003 the applicant had been temporarily placed in cells with a living space ranging from 2.5 m2 to 3.49 m2 per prisoner. The total time in which the applicant was imprisoned in cells of less than 3 m² per prisoner amounted to at least 145 days.

The Government explained that during his entire stay in Włodawa Prison the applicant had been detained only in non-smoking cells.

As for the applicant’s detention in prisons in Chełm and in Siedlce, the Government acknowledged that both these penitentiary centres had been permanently overcrowded at the relevant time. The applicant had been imprisoned in cells of less than 3 m² per prisoner for an overall period of 835 days. On one occasion, due to lack of space, the applicant was required to sleep on a double mattress on the cell floor for nine days. During an unspecified time the applicant was detained together with smokers, but he never complained to the authorities about this fact.

In Biała Podlaska Prison the applicant was incarcerated in cells with a living space ranging from 2 m2 to 4.1 m2 per prisoner. The total period during which he was detained in cells of less than 3 m² per prisoner amounted to 744 days. The Government explained that in Biała Podlaska Prison the applicant had been serving his sentence in a semi-open ward where cells remained open during daytime. Moreover, from November 2006 to August 2007 he had been allowed to take a bath on a daily basis. Lastly, they submitted that, on three occasions, the applicant had been granted a temporary, accompanied release from prison. He was also granted leave to attend his father’s funeral without being accompanied by a prison officer.

More recently, the applicant submitted that the living conditions in Biała Podlaska Prison were inadequate and that he was detained together with four other inmates in cell no. 139 which was designed for three persons.

The applicant informed the Court that on unspecified dates in 2003 and 2004 he brought several civil actions against prisons in Włodawa, Siedlce and Chełm for the infringement of his personal rights. He briefly informed the Court that his claims had been unsuccessful but failed to provide details about the exact course or the outcome of any of the proceedings.

The Government submitted that the applicant’s civil action against Włodawa Prison had been dismissed by a decision of the first-instance court against which the applicant did not appeal. Three other civil actions which the applicant had attempted to institute before the Siedlce Regional Court (Sąd Okręgowy) were all rejected for failure to comply with the prescribed procedural requirements.

The Government further submitted that the applicant had instituted another civil action before the Lublin Regional Court (Sąd Okręgowy). These proceedings were currently pending. The applicant did not contest the foregoing statements.

A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).


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

The applicants, Mr Henryk Rogoziński, Mr Marek Bartkowski and Mr Andrzej Kulecki are Polish nationals who were born in 1950, 1948 and 1946 respectively and live in Gietrzwałd. They were represented before the Court by Mr L. Obara, a lawyer practising in Olsztyn. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz.

In 1992 the applicants agreed with the local branch of the State-run electricity supply company (“the company”) that they would finance and build on their land an electricity installation connecting their properties to the general electricity network operated by that company (high voltage transformer and cables). They had such an installation built and financed it from their own resources, paying PLZ 270,000,000 in pre-denomination currency – the equivalent of PLN 27,000 (approximately EUR 6,800 today).

In 1993, when the installation was ready, a disagreement arose between the applicants and the electricity supply company as to the reimbursement of the costs the applicants had incurred. The company refused to reimburse the costs. As a result, the installation became operational and the company took it over, connected it to the electricity network and started normal exploitation. In October 1993 the applicants refused to sign documents confirming that ownership of the high-voltage transformer, the essential part of the installation, had been taken over by the company ex lege. They only signed documents confirming the transfer of ownership of the cables to the company. In the same month they submitted a letter to the company informing it that they refused to acknowledge the transfer of ownership.

In the following years, from 1995 at the earliest, the company connected 24 new electricity users to the network built by the applicants (after the applicants had sold their land to these persons on unspecified dates), charged each of them for this service and for a part of the costs borne in connection with building the installation and operated the service normally, providing electricity to them at normal prices, using the installation built by the applicants.

The applicants apparently repeatedly tried to obtain reimbursement of the costs they had incurred in the amount of PLN 112,000, but received oral refusals. In August 2000 the applicants requested the company in writing to reimburse the costs of the construction they had borne in 1992-1993 as well as the amounts the company had charged the 24 users for connecting them to the network. They claimed PLN 112,000 (approximately EUR 27,300 today). The company refused, stating that ownership of the network had been transferred to it in October 1993.

In a letter of 6 September 2001 the Ombudsman, in reply to the applicants’ request to intervene in their case, informed them that their case was of a civil-law character and could, as such, be pursued before the civil courts. The Ombudsman also summarised a judgment of the Constitutional Court of 1991 (see Relevant domestic law below) and emphasised that after this judgment had been given, the Anti-Monopoly Court had repeatedly stated in its judgments that the practice of the State-run electricity supply company amounted to an abuse of a dominant market position. The applicants were also informed that there had been judgments of the Supreme Court to the effect that in cases in which contracts concluded as a result of an abuse of a dominant market position were declared null and void, wronged consumers could claim unjust enrichment under the provisions of the Civil Code on liability in tort.

In November 2001 the applicants lodged an action against the company with the Olsztyn District Court. They sought payment of PLN 1,000 (EUR 250), seeking a judgment on the principle of their claim, and argued that they had never given their agreement to the company taking over ownership and using the installation which they had built and financed themselves.

On 20 February 2003 the court dismissed the claim. It established that the applicants had built the installation and financed the building works from their own resources on the basis of technical documentation given to them by the electricity supply company. Upon completion of the installation they had refused to sign a document confirming the transfer of ownership of the main part of the installation to the company.

The court further noted that at the relevant time, the 1984 Energy Act had been in force. The principles governing the settlement of any accounts between the State-run electricity supply company and landowners who had financed the construction of installations necessary to connect their properties to the electricity network were provided for in a 1964 Ordinance. Article 18 of this Ordinance provided that all electricity installations were the property of the State. Consequently, this Ordinance allowed for all the costs arising from the construction of electricity installations to be borne by individual owners, without any corresponding obligation on the part of the electricity company to reimburse them. Hence, the applicants were to bear these costs. At the time of the construction they had been aware of this as the position of the company had been set out in technical documents which they had received from the company.

The applicants appealed, submitting that the defendant company had enriched itself at their expense since it had acquired ownership of the installation and had been exploiting it without having to compensate them in return.

The appellate court upheld the judgment by a decision of 25 September 2003. It observed that the first-instance court had correctly found that the applicants had been aware that under the 1964 Ordinance the connection of the installation to the electricity network had depended on the transfer of ownership of the installation to the company. However, the lower court had erred in law in that it had overlooked a judgment of the Constitutional Court given in 1991. In that judgment that court had observed that the 1964 Ordinance could no longer be applied after the 1984 Energy Act had entered into force, because it had been passed ultra vires on the basis of the 1962 Energy Act. Hence, the 1964 Ordinance could not constitute the legal basis for the automatic transfer of ownership of the electricity installation to the electricity company. The Constitutional Court had indicated that the provisions of the Civil Code should apply to such a situation.

In that connection, the Regional Court observed that under Article 49 of the Civil Code, electricity supply facilities did not constitute parts of land or a building if they were a part of an enterprise, including an electricity supply enterprise. Hence, such installations were not to be considered part of the applicants’ property and were to become the property of the defendant company.

On the other hand, the provisions of the Civil Code on the obligation of an owner of property to reimburse expenditure incurred by a person in possession in order to improve the condition of this property or increase its value were not applicable to the applicants’ situation. This was because at the time when the applicants had borne the expenditure for the construction of the electricity installation, they had been the owners of the properties concerned. Hence, they were not users within the meaning of the relevant provisions of the Civil Code: they had incurred expenditure on their own property, not somebody else’s and, consequently, had no claim to reimbursement.

The court finally observed that the applicants had known, when they incurred the expenditure for the construction of the electricity supply installation in 1993, that under the laws applicable at that time ownership of the installation would eventually be transferred to the electricity supply company. Hence, the company could not be said to have obtained unjust enrichment at the expense of the applicants. Further, it was the company which was obliged to operate and maintain these installations. Accordingly, it was fair that the company should take over their ownership.

On 18 October 1997 the 1997 Constitution entered into force. Article 64 introduced the legal protection of private ownership. It reads:

“1. Everyone shall have the right to ownership, other property rights and the right of succession.

Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession.

The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.”

Under Article 76 of the Constitution, public authorities shall protect consumers, customers, lessors or lessees against activities threatening their health, privacy and safety, as well as against dishonest market practices. The scope of such protection shall be specified by statute.

In 1991 the Ombudsman requested the Constitutional Court to issue a binding interpretation of section 45 of the 1962 Energy Act in so far as it empowered the Council of Ministers to issue ordinances concerning the technical conditions on which individually built and financed electricity supply installations could be connected to the general electricity supply network. At that time, the Constitution adopted in 1952 was in force.

In a resolution of 4 December 1991 (W 4/91) the Constitutional Court observed that the 1964 Ordinance, including Article 18 passed on the basis of the 1962 Energy Act, could no longer be applied after the 1984 Energy Act had entered into force. It further noted that in any event the ordinance had been passed ultra vires on the basis of the 1962 Energy Act.

The court observed further that relations between the electricity supply company and owners of property were to be considered in the light of the Civil Code. As to the ownership of electricity supply installations situated on individual properties, Article 49 of the Civil Code made it clear that they did not constitute a part of such properties if they were a part of an enterprise, including an electricity supply enterprise. Hence, such installations were to become the property of that enterprise.

Further, the provisions of the Civil Code on the obligation of an owner of property to reimburse expenditure incurred by a person in possession in order to improve the condition of this property or increase its value were not applicable to the situation of owners who had financed the construction of electricity supply installations. This was so because at the time of the financing and construction of such installations the owners were constructing them on their own properties. Hence, they could not have recourse to claims normally available to persons in possession against owners.

Lastly, the court considered that the civil-law provisions on unjust enrichment could not be applied to the settlement of accounts between the owners and the electricity supply company. Owners who built and financed electricity supply installations on their properties knew and accepted in advance that after these installations were connected to the general electricity network they were to become the property of the company.

The court was of the view that such an automatic transfer of ownership to the electricity supply company could not be said to run counter to “principles of community life” within the meaning of Article 5 of the Civil Code. This was because the connection of the installations to the electricity supply network was in the interest of owners. Moreover, after the electricity supply company had become the owner of the installations, it was obliged to operate them and to maintain them in proper technical condition; hence the fact that it had taken them over without being obliged to make any reimbursement was compatible with these principles.

In a number of judgments given after 1991 the Supreme Court followed the reasoning based on the judgment of the Constitutional Court and dismissed claims for reimbursement of costs borne by owners to finance electricity supply installations, holding that upon their connection to the network the installation had become the property of the electricity supply company (I CRN 72/93, 23 June 1993, I CKN 608/99, 20 September 2000; resolution III CZP 169/94, 13 January 1995).

However, in a judgment of 7 November 1997 (II CKN 424/97) the Supreme Court held that if the recipient of the electricity had financed elements of the installation necessary for the property to be connected to the network, he or she was entitled, on the basis of the provisions of civil law on unjust enrichment, to seek from the electricity company a reimbursement of the costs incurred.

Subsequently, in judgments given in 2003 and 2004, the Supreme Court held that Article 49 of the Civil Code could not be interpreted to mean that the physical connection of such an installation, financed by a private party, to the electricity supply network automatically entailed a transfer of ownership of that installation to the electricity company (II CK 40/02, 26 February 2003; II CK 125/03, 10 October 2003; III SK 39/04, 13 May 2004; IV CZP 347/04, 3 December 2004).

On 8 March 2006 the Supreme Court gave a resolution (III CZP 105/05) purporting to clarify the discrepancies which had arisen in the case-law concerning the relationship between the electricity supply company and owners who had financed electricity supply installations situated on their land. It reiterated the history of the relevant case-law and observed that a transfer of ownership could only originate in legal events, not in factual ones. It observed that the only function of Article 49 of the Civil Code was to establish the limits of operation of the principle superficies solo cedit, not to determine the financial relationship between the owner of the installation and the owner of the electricity network. Hence, the mere fact that an installation was connected to the network operated by the electricity supply company was not, of itself, sufficient to conclude that a transfer of ownership to the company automatically followed. The issue of ownership and of any settlement of accounts between the company and individual owners should be determined by contract, specifically addressing related issues.

In 1997 the 1984 Energy Act was repealed and replaced by a new Energy Act. No provisions producing the same effect as Article 18 of the 1964 Ordinance are currently in force. The question of ownership of electricity supply installations and of the settlement of accounts arising out of the building and financing by private parties of electricity supply installations is now left to the parties, to be freely negotiated between the owners and the State-run electricity supply company.

Article 49 of the Civil Code provides that water, electricity, power and similar installations do not constitute a part of land or buildings if they are a part of an enterprise.

Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living.


Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (six month period);Violation of P1-1;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Just satisfaction reserved

In 1929 K.N. inherited three-quarters of a tract of land known as the “Karras estate” from his adoptive father. In 1938 K.N.’s adoptive mother sold him the remaining quarter of the “Karras estate”, which she had inherited from her husband. The contract of sale gave the surface area of the “Karras estate” as 12,000,000 sq. m.

In 1950, having obtained the necessary permit from the authorities, K.N. built an open-air cinema – the “Ilioupolis” cinema – on part of this land.

In 1953 the Minister of Agriculture refused to recognise K.N. as owner of the whole “Karras estate”, taking the view that K.N.’s adoptive father had owned only part of the land, namely an area of between 320,000 and 520,000 sq. m, which did not include the part on which the “Ilioupolis” cinema had later been built. The rest of the area was public forest and was not included in the title deeds submitted by K.N. Thereupon K.N applied to the Supreme Administrative Court to set aside the decision of the Minister of Agriculture but his application was dismissed. On 8 February 1955 a royal decree designated the area in dispute as land to be reafforested. K.N. applied to the Supreme Administrative Court to set aside the royal decree but the court dismissed the application, holding that the disputed area was forest land belonging to the State.

By means of Cabinet decisions of 10 February 1965 and 11 March 1966, which were published in the Official Gazette (Eφημερίδα της Κυβερνήσεως) and entered in the Ilioupolis municipal register, the State transferred a 220,000 sq. m area of the “Karras estate” to the Police Officers’ Housing Cooperative. This area did not include the land on which the “Ilioupolis” cinema had been built.

On 28 July 1965 a royal decree ordering the reafforestation of land in Ilioupolis was promulgated. According to the Government, this decree covered an unspecified part of the “Karras estate”. On 2 December 1966 the decree was amended by a further decree, which was published in the Official Gazette.

On 3 April 1967 K.N. brought an action against the Police Officers’ Housing Cooperative to establish his title to the land which had been transferred to it. The State, as transferor, intervened in the proceedings in favour of the Cooperative. This action was entered in the Ilioupolis mortgage register. In the margin of the relevant page, the subsequent judgments of the Athens Court of First Instance (no. 16992/1973) and the Court of Appeal (no. 4910/1977 – see paragraph 13 below) dismissing the action and acknowledging the State’s ownership of the disputed area were noted.

In 1976 K.N. died and his heirs received an inheritance-tax demand in respect of the land on which the cinema had been built. The State took a mortgage on the land as security for the tax debt. The mortgage was paid off in 1982.

K.N.’s heirs continued the proceedings brought on 3 April 1967. On 21 June 1977 the Athens Court of Appeal held that the tract of land transferred to the Police Cooperative belonged to the State. In the reasons for its judgment the court agreed with the Minister of Agriculture, holding that K.N.’s adoptive father had owned only a part of the “Karras estate”, which had not included the part on which the “Ilioupolis” cinema had been built or the part which had been transferred to the Cooperative. The Court of Appeal based this conclusion on, inter alia, the fact that in 1905 the “Karras estate” had been entered in the national forest register as forest land and that the State had since, in good faith, had possession and use of it as owner.

Following a decision taken by the Deputy Minister of Finance on 19 September 1984, part of the “Karras estate”, including the part on which the cinema had been built, was entered in the register of State property on 27 June 1985. On 9 July 1985 this fact was noted in the Ilioupolis mortgage register. In 1987 K.N.’s heirs brought proceedings to establish their title to the land that had been entered in the register of State property. In 1988 the Athens Court of First Instance dismissed their application on the ground that on 21 June 1977 the Athens Court of Appeal had held that K.N.’s adoptive father had owned only a part of the “Karras estate”, covering an area of between 320,000 and 520,000 sq. m. K.N.’s heirs appealed against that decision.

On 9 February 1989 the Athens Court of Appeal held that in its judgment of 21 June 1977 it had resolved only the matter of ownership of the 220,000 sq. m which had been transferred to the Police Officers’ Housing Cooperative. The other dicta in the grounds of the judgment were not binding on K.N.’s heirs. The Court of Appeal consequently set aside the 1988 decision of the Court of First Instance and ordered that court to deal with the merits of the case.

On 29 May 1996 K.N.’s heirs applied to State Counsel at the Athens Court of First Instance for interim measures against the State and Ilioupolis Town Council. State Counsel refused their application on an unspecified date. K.N.’s heirs appealed against this decision. On 30 May 1997 Deputy State Counsel at the Athens Court of Appeal dismissed their appeal.

In 1978 K.N.’s heirs leased the “Ilioupolis” open-air cinema to the applicant, who completely restored it.

On 4 July 1985 the Attica prefecture informed the applicant that with effect from 27 June 1985 the land on which the cinema had been built was considered to be State property, and that his retention of it was wrongful. The State would consequently be claiming compensation from him in accordance with Article 115 of the Presidential Decree of 11/12 November 1929, without prejudice to its right to evict him under Law no. 1539/1938 on the protection of State land.

On 16 November 1988 the State Lands Authority (Kτηματική Εταιρία του Δημοσίου) assigned the cinema to Ilioupolis Town Council. On 24 November 1988 the Attica prefecture notified the applicant of this and ordered him to vacate the cinema within five days, failing which Law no. 1539/1938 would be applied.

On 9 February 1989 the Lands Department (Kτηματική Υπηρεσία) of the Attica prefecture ordered the applicant to be evicted, under Law no. 1539/1938 as amended by Law no. 263/1968. The order was “served” on the applicant on 16 March 1989 by being posted on the door of the cinema. The following day, when the members of the Bar were on strike and the applicant was absent, officials from Ilioupolis Town Council executed the order, forcing an entry into the cinema. An inventory was drawn up of a number of items of movable property belonging to the applicant (projectors, chairs, billboards and bar equipment). A Mr G.L., who was professionally connected with the applicant but was not acting as his representative, signed the inventory and asked the Council officials to store the goods.

The applicant challenged the eviction order in the Athens District Court, which dealt with the matter under summary procedure and found for the State. The applicant appealed to the Athens Court of First Instance sitting with a single judge, which on 23 October 1989, having heard the appeal under summary procedure, quashed the eviction order. The court ruled that the Lands Department could issue an eviction order only if the property in question belonged to the State, if the State’s title to the property was not in dispute, and if the property was being unjustifiably occupied by a third party.

The court held, further, that these conditions had not been satisfied in the case before it, since the applicant had established the following facts with a fair degree of certainty: proceedings were pending before the courts in an action brought in a dispute between K.N.’s heirs and the State over the land on which the cinema had been built; K.N.’s heirs had considered themselves to be the owners of the land and the cinema for a very long time and had exercised all the rights and performed all the duties associated with ownership; and, lastly, the applicant had occupied the cinema under a lease since 1978.

Following that decision, the applicant made several approaches to the appropriate authorities to challenge the continued occupation of the cinema by Ilioupolis Town Council. On 2 April 1990 the Ministry of Finance stated that, since the eviction order had been quashed, the land should be returned to the applicant and the assignment of the cinema to Ilioupolis Town Council revoked. However, if the Council insisted on retaining the cinema, the matter of who was to compensate the applicant would have to be determined in accordance with the law on business tenancies.

On 11 July 1991 the State Legal Council (Nομικό Συμβούλιο του Κράτους), in answer to a question put to it by the Ministry of Finance, expressed the view that the cinema had to be returned to the applicant. The applicant’s claims in respect of the loss he had sustained owing to the eviction could be entertained only if he applied to the State Legal Council or brought proceedings. Furthermore, the State could assert its claim to be the owner of the land by bringing an action against K.N.’s heirs or by expediting the proceedings in the litigation between it and them, which had been pending before the courts since 1987.

On 15 May 1994 the applicant applied to the State Lands Authority to have the cinema returned to him.

On 21 December 1994 the applicant sued the State and Ilioupolis Town Council in tort in the Athens Administrative Court for the loss he had sustained as a result of the failure to return the cinema to him. He claimed compensation in the amount of 32,300,000 drachmas (GRD), plus interest for loss of income from 1989 to 1994 and for the loss of his business equipment.

On 5 April 1995 the applicant applied to the mayor of Ilioupolis to have the cinema returned to him. On 5 May 1995 he lodged a criminal complaint against the mayor. On an unspecified date he also lodged a criminal complaint against the chairman of the State Lands Authority.

On 26 July 1995 the applicant filed an application in the Athens Court of First Instance for registration of a mortgage against Ilioupolis Town Council as security for lost income amounting to GRD 30,000,000. The court dismissed the application on the ground that there was no obligation to return the property, seeing that no application to that end had been made to the court and that there had been no final court decision in the matter.

On 31 July 1995 the State Lands Authority, following a further request from the applicant, recommended that the assignment of the cinema to Ilioupolis Town Council should be revoked and the cinema returned to the applicant, who was to be reinstated as tenant by the Ministry of Finance. That recommendation had to be approved by the Ministry of Finance pursuant to Law no. 973/1979.

The applicant, who had not been notified of the recommendation, applied to the Minister of Finance on 4 October 1995. On 13 October 1995 he asked the Athens Court of First Instance to order interim measures against the mayor of Ilioupolis in the tort proceedings. On 16 October 1995 he applied to the Minister of Finance again.

On 25 October 1995 the Court of First Instance held that there were no grounds for ordering interim measures, since there could be no liability on the part of the mayor. On 7 November 1995, following the intervention of State Counsel, the applicant was notified of the State Lands Authority’s decision of 31 July 1995. On 15 November 1995 the applicant requested the Deputy Minister of Finance to approve that decision.

On 7 August 1996 the State Legal Council expressed the view that the cinema should not be returned to the applicant, for the following reasons. Although the Athens Court of First Instance had set aside the eviction order of 23 October 1989, it had not ordered the cinema to be returned to the applicant. In its decision of 25 October 1995 the Court of First Instance had held that there was no obligation to return the cinema. Furthermore, under special case-law relating to State-owned property, the lease between K.N.’s heirs and the applicant was not valid. Consequently, the Ministry of Finance would be acting unlawfully if it revoked the assignment of the cinema to Ilioupolis Town Council. On 3 September 1996 the Deputy Minister of Finance approved the opinion of the State Legal Council.

On 31 October 1996 the Athens Administrative Court dismissed the action commenced by the applicant on 21 December 1994 on the ground that it should have been brought in the civil courts.

On 17 December 1996 the applicant brought the action in the Athens Court of First Instance, seeking GRD 140,000,000 in damages for the loss of income he had suffered in 1995 and 1996 as a result of being unable to operate his cinema and for non-pecuniary loss. The action was due to be tried on 13 November 1997 but it was still pending on the day of the hearing before the Court.

On 7 January 1997 the Committals Division of the Athens Criminal Court decided to commence criminal proceedings against the mayor of Ilioupolis for dereliction of duty.

On 27 January 1998 the applicant brought an action against the State and Ilioupolis Town Council in which he sought payment of GRD 32,000,000 plus interest for loss of income during 1997 and for non-pecuniary damage. This action was still pending on the day of the hearing before the Court.

The cinema is still being operated by Ilioupolis Town Council and has not been returned to the applicant.

The applicant has not set up an open-air cinema anywhere else.

The immovable property of the State is protected against third parties by Law no. 263/1968 amending and supplementing the provisions on State property.

Section 2(2) and (3) of the Law provides:

“… The relevant tax inspector shall issue an administrative eviction order against any person wrongfully taking over public property. An application to set aside such an order may be filed with the appropriate District Court within thirty days of its being served … An appeal against the decision of the District Court may be brought within thirty days before the President of the Court of First Instance, who shall hear it under the special procedure provided for in Article 634 of the Code of Civil Procedure. No appeal shall lie against the decision of the President of the Court of First Instance. The decision resulting from the foregoing procedure shall not prevent the parties from asserting their rights by means of ordinary procedure …”

“… Κατά του αυτογνωμόνως επιλαμβανομένου οιουδήποτε δημοσίου κτήματος συντάσσεται παρά του αρμοδίου Οικονομικού Εφόρου Πρωτόκολλο Διοικητικής Αποβολής. Κατ΄αυτού επιτρέπεται άσκηση ανακοπής ενώπιον του αρμοδίου Ειρηνοδικείου μέσα σε αποκλειστική προθεσμία 30 ημερών από της κοινοποιήσεως του… Κατά της αποφάσεως του Ειρηνοδικείου χωρεί έφεση ενώπιον του Προέδρου Πρωτοδικών, που δικάζει με την ειδική διαδικασία του άρθρου 634 Πολ. Δικ., μέσα σε προθεσμία 30 ημερών. Κατά της αποφάσεως του Προέδρου Πρωτοδικών ουδέν ένδικο μέσο χωρεί. Η κατά την ανωτέρω διαδικασία εκδιδομένη απόφαση δεν παρακωλύει την επιδίωξη των εκατέρωθεν δικαιωμάτων κατά την τακτική διαδικασία …”

Applications to set aside and the entire procedure for challenging administrative eviction orders are concerned solely with the validity of the eviction order and not with recognition of ownership or regulation of possession.

Where an administrative eviction order is quashed and it is desired that the decision make provision for the reinstatement of the evicted appellant, an application for reinstatement must be lodged either at the same time as the application to set aside – in which case a consequential order will be made if the application is allowed – or separately with the appropriate court (action for regulation of possession). An application for reinstatement is not subject to the time-limits laid down by section 2 of Law no. 263/1968 for applying to set aside an eviction order, since there is no provision to that effect (Athens Court of Appeal judgment no. 6802/89, Reports 1990, pp. 778-79, Athens Court of First Instance judgment no. 25950/1995, State Legal Council opinion no. 464/96, Annexes 14a and b and 13c).

The lessee of a property is the possessor of the leased property. This right of possession is protected by domestic law. The protection of possession both as a material fact and as a legal relationship is regulated in Greek law by Articles 997 et seq. of the Civil Code.

In particular, Article 997 of the Civil Code, entitled “Protection of possessors”, provides:

“In the event of unlawful interference with the possession of property or of a right or in the event of dispossession, the person who, as lessee or bailee or as a consequence of a similar relationship, took possession of the property or right from the person who had use of it shall also have a possession claim against third parties.”

“Επί παρανόμου διαταράξεως της νομής πράγματος ή δικαιώματος, ή αποβολής εξ αυτής, έχει κατά τρίτων τας περί νομής αγωγάς και ο παρά τιυ νομέως λαβών την κατοχή του πράγματος ή δικαιώματος ως μισθωτής ή θεματοφύλαξ ή συνεπεία άλλης παρομοίας σχέσεως.”

The possession claims that the lessee and possessor of the leased property may file are set out in Articles 987 and 989 of the Civil Code.

Article 987 provides:

“A possessor who has been unlawfully dispossessed shall be entitled to claim repossession from the person in unlawful possession. A claim for compensation under the provisions on torts shall not be excluded.”

“Ο νομέας που αποβλήθηκε παράνομα από τη νομή έχει δικαίωμα να αξιώσει την απόδοσή της από αυτόν που νέμεται επιλήψιμα απέναντί του. Αξίωση αποζημιώσεως σύμφωνα με τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται.”

Article 989 provides:

“A possessor whose possession has been the subject of unlawful interference shall be entitled to seek an order restraining the interference and prohibiting it in the future. A claim for compensation under the provisions on torts shall not be excluded.”

“Ο νομέας που διαταράχθηκε παράνομα έχει δικαίωμα να αξιώσει την παύση της διατάραξης καθώς και την παράλειψή της στο μέλλον. Αξίωση αποζημίωσης κατά τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται.”

By Article 987, the possessor is protected in the event of dispossession, that is to say deprivation of control of the property. By Article 989, he is also protected in the event of interference, namely interference with his control of the property not amounting to dispossession. A classic example of interference, as held by the domestic courts, is threatening the possessor with prohibition of a specific act of possession.

The purpose of these remedies is to protect possession itself, regardless of whether it is based on a right or not. It is for that reason that Article 991 of the Civil Code provides:

“A defendant in an action for interference or dispossession can invoke a right giving him control over the property only if that right has been upheld in a final decision by a court after proceedings between him and the plaintiff.”

“Ο εναγόμενος για διατάραξη ή αποβολή δεν μπορεί να επικαλεστεί δικαίωμα που του παρέχει εξουσία πάνω στο πράγμα παρά μόνο αν το δικαίωμα έχει αναγνωριστεί τελεσίδικα σε δίκη ανάμεσα σε αυτόν και τον ενάγοντα.”

In accordance with Article 997 of the Civil Code, a possessor has these rights against third parties and not against the possessor from whom he derives the possession rights. Against the latter he has the rights afforded him by the legal relationship between them.

Where a possessor brings an action in possession, it will be either for repossession or for restraint of interference, depending on whether the possessor has been evicted or merely disturbed in the exercise of his control of the property.

Furthermore, the possessor is entitled in the same proceedings to claim compensation for the damage sustained, under the provisions on torts (Articles 914 et seq.).

More particularly in respect of the State’s obligation to pay compensation, section 105 of the Introductory Act to the Civil Code is applied, under which unlawful conduct on the part of agents of the State creates an obligation to pay compensation irrespective of whether an offence has been committed by the agents in question. Moreover, where the unlawful situation arises from an administrative act, prior annulment of that act is not required. The court may consider the validity of the administrative act in the course of the proceedings and a specific prior ruling on its validity is not necessary.

A possessor whose right is created by a lease is also protected against the lessor if it becomes impossible for him to use the leased property.

Article 583 of the Civil Code provides:

“If the agreed use of the leased property is taken from the lessee in whole or in part because of a third party’s right (legal defect), Articles 576 to 579 and 582 shall apply. However, the lessee may himself have the legal defect removed at the lessor’s expense.”

“Αν η συμφωνηθείσα χρήση του μισθίου αφαιρεθεί από τον μισθωτή εν μέρει ή εν όλω εξαιτίας δικαιώματος τρίτου νομικό ελάττωμα εφαρμόζονται οι διατάξεις των άρθρων 576 έως 579 και 582. Αλλ΄ο μισθωτής δεν δύναται να προβεί ο ίδιος στην άρση του νομικού ελαττώματος με δαπάνες του εκμισθωτού.”

In that event, the lessee’s rights under Articles 576 to 579 and 582, to which Article 583 refers, are the following: the right to reduce the rent or not to pay the rent, the right to compensation, the right to bring an action against the lessor to have the legal defect removed, and the right to terminate the lease.

Apart from the right to bring an action against the lessor to have the legal defect removed, the lessee may still bring an action in possession at his own expense against third parties in his capacity as possessor (Article 997).

The lessor is exempt from liability only if the lessee was aware of the defect at the time when the lease was signed.

Lastly, leases of property for carrying on commercial activities (commercial leases) are also governed by all the above provisions under section 29 of Law no. 813/1978, codified by Presidential Decree no. 34/1995. That provision reads as follows:

“Save as hereinafter provided, leases under the present Law shall be governed by the contractual terms and by the provisions of the Civil Code.”

“Αι κατά τον παρόντα νόμον μισθώσεις, εφόσον δεν ορίζεται άλλως εις αυτόν, διέπονται υπό των συμβατικών περί αυτών όρων και των διατάξεων του Αστικού Κώδικος.”