Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicants, Mr Dalibor Blaha and Ms Marta Blahová, are Czech nationals who were born in 1969 and 1970 respectively and live in Zlín. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.

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

On 26 November 1993 the applicants issued proceedings before the Zlín District Court (okresní soud) against a private company claiming damages in the amount of CZK 1,000,000 (EUR 41,038). On 21 December 1993 they paid court fees.

On 24 March 1995 the District Court found that it lacked material competence to deal with the applicants' case and transmitted it to the Brno Regional Commercial Court (krajský obchodní soud).

On 20 July 1994 the defendant filed a counterclaim requesting payment of CZK 275,000 (EUR 11,285).

In a judgment of 17 February 2000 the Regional Court dismissed the action in respect of the second applicant. It granted, at the same time, the defendant's counterclaim ordering her to pay CZK 275,000 to the defendant. It further decided to split the first applicant's claim and the defendant's counterclaim brought in the first applicant's respect for a separated hearing.

On 25 April 2000 the Regional Court found that the District Court was materially competent to deal with the action in respect of the first applicant as well as with the defendant's counterclaim, and remitted the case to it.

On 2 November 2000 the District Court suspended the proceedings until the delivery of a final judgment in the proceedings concerning the second applicant's action.

In a judgment of 21 November 2005 the District Court dismissed the applicant's action and partly granted the defendant's counterclaim.

The applicant appealed. It appears that the proceedings are still pending.

On 18 April 2000 the second applicant appealed to the Olomouc High Court (vrchní soud).

On 21 March 2002 the District Court, upon the defendant's request of 18 March 2000, commenced execution proceedings ordering the applicant to pay CZK 150,000 (EUR 6,156) with interests on late payment to the defendant.

On 10 November 2003 the District Court discontinued the execution proceedings in respect of the interests on late payment and ordered the enforcement of the Regional Court's judgment by sale of the second applicant's property. It dismissed the applicant's request to postpone the execution.

On 21 December 2003 the first applicant filed an appeal against this decision. On 29 December 2003 the second applicant appealed.

On 19 August 2005 the Brno Regional Court (krajský soud) rejected the first applicant's appeal on the ground that he was not a party to the proceedings before it. It discontinued the proceedings in respect of the second applicant's appeal, and upheld the first four grounds of the decision while quashing the District Court's dismissal to suspend the execution. The latter part of the case was therefore sent back to the District Court for further consideration.

It appears that the execution proceedings are still ongoing.

On 23 December 2003 the second applicant claimed material damages allegedly caused by activities of the organs of judicial power, pursuant to Act no. 82/1998 then in force. Subsequently, the Ministry informed the applicant that her claim had been rejected. According to the applicant, the Ministry had admitted that there had been delays in the proceedings before the Regional Commercial Court and the High Court but had denied any causal link between the material damage alleged by the applicant and delays in the proceedings.

On 5 August 2004 the second applicant brought an action for damages against the Ministry of Justice pursuant to section 15(2) of Act no. 82/1998 then in force maintaining that the proceedings brought against the private company in 1993 had lasted an unreasonably long time.

In a judgment of 27 March 2006 the District Court dismissed her action.

On 25 October 2007 the Brno Regional Court (krajský soud) upheld the merits of the first instance court's judgment.

Section 13(1) as in force until 26 April 2006 provided that the State was liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. Under section 13(2) a person who had suffered loss on account of such an irregularity was entitled to damages.

On 27 April 2006 Act no. 160/2006 entered into force amending, inter alia, section 13(1) which newly provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. If the law does not fix a time-limit for these purposes, it is considered that a violation of the duty to perform the act or give the decision within a reasonable time-limit is also considered as an irregularity in the conduct of proceedings. When using the notion of “reasonable time”, the Act refers to Articles 5 and 6 of the Convention.

Act no. 160/2006 also introduced a new section 31a which provides for a reasonable satisfaction for moral prejudice caused by an irregularity in the conduct of proceedings including non-compliance with the obligation to perform an act or to adopt a decision within a reasonable time.


Violation of Art. 5-1;Violation of Art. 5-3;No violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in 1965 and lives in Opole, Poland.

On 16 June 1995 the applicant was taken into custody by the police. On 17 June 1995 the Wrocław Regional Court (Sąd Wojewódzki) dismissed his complaint about placing him in police custody.

On 17 June 1995 the Wrocław Regional Prosecutor (Prokurator Wojewódzki) charged the applicant with aggravated fraud and remanded him in custody. The charges related to a period between 30 January and 3 March 1995 when the applicant, together with his accomplices, allegedly defrauded several individuals and businesses by obtaining from them under false pretences cash, automobiles, furniture, computers and other goods of a total value of PLN 1,050,000. In addition, the applicant was charged with possession of a forged passport. The Regional Prosecutor considered that the applicant’s detention on remand was warranted by the fact that he was charged with several criminal acts which caused a significant danger to society (stopień społecznego niebezpieczeństwa jest znaczny), as he had acted within a criminal organisation and had obtained valuable goods. In addition, the applicant’s criminal activity took place over a long time and it was probable that if released he would collude and try to destroy evidence.

On 10 July 1995 the applicant applied to the Wrocław Regional Prosecutor for release from detention. On 12 July 1995 the Regional Prosecutor rejected the application. He dismissed as unsubstantiated the applicant’s claims that poor health and the financial situation of his family required his release. Moreover, the applicant’s contention that his illhealth called for release would be decided after a panel of medical experts had examined him.

On 24 and 26 July 1995 the applicant again made applications to the Wrocław Regional Prosecutor for release from detention. On 26 July 1995 his requests were dismissed. The Regional Prosecutor relied on a medical opinion issued by the Wrocław Prison Hospital, which stated that the applicant could remain in detention. In addition, he considered that since the applicant’s daughter and his cohabitee lived with the latter’s parents, there was no need for him to be released to care for them.

On 2 August 1995 the applicant made an application for release from detention. On 4 August 1995 the Wrocław Regional Prosecutor rejected his application. The prosecutor referred to the medical opinion of 19 July 1995, which confirmed that the applicant’s state of health allowed the continuation of his detention. Furthermore, he considered that the fact that the applicant’s daughter had recently received medical treatment in the infant pathology ward of the Wrocław Regional Hospital did not constitute a ground for the applicant’s release. The prosecutor also pointed out that the applicant’s cohabitee cared for his daughter.

On 9 August 1995 the Wrocław Appellate Prosecutor dismissed the applicant’s appeal against the Regional Prosecutor’s decision of 26 July 1995. The Appellate Prosecutor considered that the evidence showed that the applicant had committed the criminal offences with which he was charged. Moreover, the state of health of his daughter did not require that he be released. The prosecutor was also of a view that the applicant’s detention was necessary to ensure the proper course of the proceedings.

On 23 August 1995 the applicant lodged with the Wrocław Court of Appeal (Sąd Apelacyjny) a complaint about his detention. On 31 August 1995 the court transmitted it to the Wrocław Regional Prosecutor to consider it as a request to change the preventive measure applied to the applicant. On 1 September 1995 the prosecutor rejected the request. He dismissed as unsubstantiated the applicant’s claims that his own state of health as well as that of several members of his family required his release from detention. In this connection, the prosecutor referred to medical opinions, which stated that the applicant was neither mentally ill nor retarded and that his detention would not cause any risk to his health and life. Furthermore, he considered that the investigation of the applicant’s claim that his detention constituted a hardship for his family had showed that it was unsubstantiated.

On 6 September 1995 the Wrocław Regional Court allowed the request submitted by the prosecution service and extended the applicant’s detention on remand until 30 November 1995. The court considered that the evidence collected in the case sufficiently supported the charges laid against the applicant. It also relied on a significant danger to society caused by the criminal offences in question and the necessity to ensure the proper course of criminal proceedings. Furthermore, the court pointed out that the investigation of the case would have to be continued in order to clarify the applicant’s role in the commission of the criminal offences and to identify individuals who would be charged with receiving stolen goods from the applicant. Finally, the court considered that the applicant’s case did not disclose any of the grounds for release from detention listed in Article 218 of the Code of Criminal Procedure, i.e. danger to the detainee’s life or health and extreme hardship caused to either the detainee or his family. On 6 October 1995 the Wrocław Court of Appeal dismissed the applicant’s appeal against the decision of the Regional Court.

On 30 December 1995 the Wrocław Regional Prosecutor filed with the Wrocław Regional Court a bill of indictment against the applicant.

On 31 January 1996 the applicant asked the Wrocław Regional Court to release him from detention. On 5 February 1996 the court dismissed his request. It relied on a significant danger to society caused by the criminal offences with which the applicant was charged and the evidence on which they were based. The court was also of the view that the applicant’s family did not suffer hardship which would justify his release.

On 15 February 1996 the applicant again filed an application for release but on 22 February 1996 the Wrocław Regional Court rejected it. On 29 February 1996 the Wrocław Court of Appeal dismissed the applicant’s appeal against that decision. The court observed that the applicant could apply for bail.

On 7 March 1996 the Wrocław Regional Court rejected the application for release filed by the applicant on 26 February 1996. On 1 April 1996 the court rejected the application lodged on 19 March 1996.

On 19 April 1996 the applicant made a further application to the Wrocław Regional Court for release from detention. On 25 April 1996 the court dismissed his application. It referred to the previous court decisions refusing his requests for release. Moreover, the court considered that the claim that the applicant’s father suffered hardship was unsubstantiated.

The date of the first hearing was fixed for 15 April 1996. However, it was cancelled because one of the defendants was ill and could not attend it.

On 16 May 1996 the applicant made an application to the Wrocław Regional Court for release from detention. On 30 May 1996 the court dismissed his request. It relied on a significant danger to society caused by the criminal offences with which the applicant was charged and the evidence on which they were based. The court further considered that the applicant’s detention was necessary to secure the proper conduct of criminal proceedings. In addition, it observed that the applicant’s failure to pay child support did not warrant his release, as one of his children was in receipt of child support payments from the Child Support Fund (Fundusz Alimentacyjny).

On 31 June 1996 the Regional Court held a hearing. It was adjourned because two defendants failed to attend it.

On 8 July 1996 the applicant made an application to the Wrocław Regional Court for release from detention. On 15 July 1996 the court rejected his request. It relied on the grounds for continuing the applicant’s detention listed in previous court decisions.

On 5 August 1996 the applicant asked the Wrocław Regional Court to release him from detention. On 8 August 1996 the court dismissed his request. It considered that the evidence collected in the case sufficiently supported the charges laid against the applicant. As the charges could lead to a severe prison sentence, there was a risk of absconding. Furthermore, the court was of the view that the applicant’s inability to provide care to his children over a long period of time did not result in exceptional hardship for his family.

On 12 August 1996 the Wrocław Regional Court dismissed the applicant’s application for release from detention filed on 6 August 1996. The court relied on the evidence collected in the case, which in its opinion supported the charges laid against the applicant. In addition, it considered that the prospect of a severe penalty, which could be imposed on the applicant, could prompt him to abscond.

On 19 August 1996 the Vice-President of the Wrocław Court of Appeal informed the Ministry of Justice and the applicant that the applicant’s case did not disclose that the proceedings had taken unreasonably long. In particular, he pointed out that thirteen individuals were accused in the case, the case file consisted of seventeen volumes and evidence had to be taken from fiftyeight witnesses. Furthermore, the VicePresident observed that the first hearing had been cancelled because one of the defendants had been ill. The second hearing had been adjourned until 30 August 1996 as two defendants had failed to attend it. Finally, he stated that “the judge rapporteur is dealing with twenty-five other cases and therefore is not able to decide this case sooner than is possible”.

On 30 August 1996 the Regional Court held a hearing. It was adjourned because some of the defendants failed to attend it.

On 3 September 1996 the Wrocław Court of Appeal allowed the applicant’s appeal against the Regional Court’s decision of 8 August 1996 rejecting his application for release from detention. The appellate court quashed the impugned decision and instructed the trial court to reconsider the applicant’s request. It acknowledged that “in the present case the detention on remand has lasted quite long”. In addition, the appellate court considered that the trial court’s statement on the applicant’s intention to abscond was not precise enough. As the applicant’s detention had already lasted sixteen months and as he was not charged with a serious offence, the mere reference to the possibility that the applicant could abscond because of the prospect of a severe penalty was not sufficient. The appellate court also observed that the trial court had not considered whether another preventive measure could replace the applicant’s detention on remand.

On 12 September 1996 the Wrocław Regional Court dismissed the applicant’s four applications for release submitted in August and September 1996. The court considered that the charges against the applicant were sufficiently supported by the evidence. Moreover, the difficulties in finding the applicant’s place of residence during the investigative stage of the proceedings and the prospect of a severe penalty showed that he could go into hiding if released from detention. The court further noted that the applicant could not be released on bail as he had stated that he had no funds to pay it. Finally, it considered that there was no evidence pointing towards the existence of any of the grounds for release provided for by Article 218 of the Code of Criminal Procedure.

The hearing held on 13 September 1996 was adjourned until 27 September 1996 as some of the defendants failed to attend it because of ill health.

During the hearing held on 27 September 1996 the Wrocław Regional Court rejected the applicant’s application for release from detention. The hearing was adjourned because some of the defendants failed to attend it.

On 7 October 1996 the Wrocław Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 12 September 1996. The appellate court observed that the applicant’s release would delay the proceedings, as his cohabitee lived in Opole. It also noted that the applicant had contributed to the delay in the proceedings because on numerous occasions he had submitted requests and appeals. In addition, on several occasions a case file had been transmitted from the trial court to the Wrocław Detention Centre after the applicant had asked to consult it.

On 17 October 1996 the Wrocław Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 27 September 1996. The appellate court referred to previous court decisions rejecting his applications for release from detention. The court further noted that although the length of the applicant’s detention could be worrying (trwa już niepokojąco długo), it had not been caused by the inactivity of the trial court. Moreover, the appellate court recommended that “more energetic steps” be taken to expedite the proceedings. Finally, it acknowledged that the state of health of the applicant’s cohabitee and his daughter was not good. However, the court was of the view that the applicant’s release would not contribute to the improvement of their health.

In a letter of 23 October 1996 the President of the Wrocław Regional Court advised the applicant that the trial court could not be blamed for the delay in the proceedings. He pointed out that the court had fixed numerous hearings, which had been adjourned because of the absence of defendants who had been ill.

During the hearing held on 25 October 1996 the applicant applied for bail. He proposed that the bail be set at PLN 2,000. However, the Wrocław Regional Court rejected the application. It gave the following reasons for its decision:

“The circumstances raised by the accused in his application have already been considered by both the Regional Court and the Court of Appeal. Therefore, taking into account the fact that no new circumstances have taken place, it should be assumed that the reasons for continuing detention on remand have not ceased to exist.”

During the hearing held on 12 December 1996 the Wrocław Regional Court rejected the applicant’s application for release from detention. The hearing was adjourned because some of the defendants failed to attend it.

On 31 December 1996 the Wrocław Regional Court decided to request the Supreme Court (Sąd Najwyższy) to extend the applicant’s detention on remand.

On 7 January 1997 the Wrocław Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 12 December 1996. The appellate court recalled that during the preceding ten months it had been considering on a monthly basis the applicant’s appeals against the trial court’s refusals to release him. It considered that the factual and legal circumstances concerning the applicant’s detention had not changed.

On 24 January 1997 the Supreme Court allowed the Regional Court’s request and extended the applicant’s detention on remand until 24 July 1997. It considered that the prolongation of the applicant’s detention was justified by the evidence, the possibility that he could go into hiding and the complexity of the case. It also observed that the delay in the proceedings was caused by the behaviour of defendants who had failed to attend hearings.

The Supreme Court further reflected on the legality of the applicant’s detention between 1 and 24 January 1997. The relevant part of the court’s reasoning may be summarised as follows:

The Supreme Court, noting that the application was filed on 31 December 1996 but posted as late as 13 January 1997, first considered what was the proper date of ‘lodging’ such an application for the purposes of Article 222 § 4 of the Code of Criminal Procedure.

The Supreme Court next observed that, depending on the answer to this question, it would have to determine the legal consequences of a potential failure on the part of the Wrocław Regional Court to respect the rule laid down in Article 10 (a) § 2 of the Interim Law of 1 December 1995, which stated that in cases where no request for a further prolongation of detention on remand had been ‘lodged’, the detention on remand had to be lifted and the person concerned released not later than on 1 January 1997.

The Supreme Court considered that it should also deal with the question of whether it was competent to rule on the application if it had been ‘lodged’ after the expiry of the term referred to in Article 10 (a) of the Interim Law of 1 December 1995, i.e. after 1 January 1997.

Referring to the first question, the Supreme Court held that the proper date of ‘lodging’ an application under Article 222 § 4 of the Code of Criminal Procedure had to be deemed either the date of posting the request or the date of submitting it to the registry of the Supreme Court since to hold otherwise would mean leaving a detainee without any guarantee that the Supreme Court was properly supervising his detention. Moreover, if the requesting court was not bound by any time-limits for submitting its application, detention, the most severe among the preventive measures, might continue for an unspecified and unlimited time outside the Supreme Court’s supervision. In consequence, an application under Article 222 § 4 of the Code of Criminal Procedure, a mere ‘proposal’ to continue detention, would, for all practical purposes, transform into a basis for continuing detention. Clearly, that was not the intention of the legislator.

The Supreme Court therefore concluded that since in the applicant’s case no application for a further prolongation of his detention was ‘lodged’ before 1 January 1997, the applicant’s (and his co-defendants’) detention from that date to the date of its present decision lacked any legal basis and was, accordingly, unlawful.

It went on to find that it was, nevertheless, competent to deal with the application lodged outside the relevant date. It considered that a lower court’s obligation to release a detainee in case of its failure properly to lodge an application under Article 222 § 4 of the Code of Criminal Procedure was one thing, but its right to make such an application at any time was another. In the Supreme Court’s opinion, the application in question should be deemed a “fresh application” and be examined as such.

On 28 January 1997 the Wrocław Regional Court held a hearing.

On 10 February 1997 the President of the Wrocław Court of Appeal informed the applicant that his complaints about his unjustified detention on remand were unsubstantiated. The President also recalled that on 24 January 1997 the Supreme Court had prolonged the applicant’s detention and that no hearings could be held in his case at the time when the Supreme Court had been considering the request to extend his detention. In addition, he observed that the next hearing was scheduled for 17 March 1997.

On 24 February 1997 the Wrocław Regional Court dismissed as unsubstantiated the applicant’s challenge to one of the judges considering his case.

On 17 March 1997 the Wrocław Regional Court held a hearing. It was adjourned because some of the defendants failed to attend it.

During the hearings held on 17 April and 28 May 1997 the Wrocław Regional Court dismissed the applicant’s applications for release from detention. The latter hearing was adjourned because some of the defendants failed to attend it.

The hearing held on 8 July 1997 was adjourned because some of the defendants did not attend it.

During the hearing held on 8 September 1997 the Wrocław Regional Court decided to sever the charges laid against three co-defendants and to consider them in separate proceedings because the co-defendants’ numerous failures to attend hearings resulted in the delay in deciding the applicant’s case. Thereafter, the proceedings were continued against the applicant and eight codefendants.

The next hearings were held on 13, 28 October and 25 November 1997. The hearing scheduled for 18 November 1997 was cancelled.

On 19 December 1997 the hearing was held before the Regional Court. It decided to request the Supreme Court to prolong the applicant’s detention on remand.

On 15 January 1998 the Supreme Court extended the applicant’s detention on remand until 31 March 1998.

During the hearing held on 30 January 1998 the Regional Court rejected the applicant’s requests that the charges against him be decided in separate proceedings and that he be released from detention.

On 3 and 17 March 1998 hearings took place before the trial court.

On 20 March 1998 the applicant was released from detention.

Subsequently, hearings were held on 17 April, 15 May, 5 June, 2 July, 3 September, 6 October, 30 November and 1 December 1998.

In the course of 1999 the Wrocław Regional Court held hearings on the following dates: 5 January, 4 February, 11 March, 14 April, 7 and 28 May, 9 June, 7 September, 29 October and 15 December. The hearings held on 7 September and 29 October 1999 were adjourned because a judge was ill.

On 14 January 2000 the court held a hearing.

During the hearings held between 25 November 1997 and 14 January 2000 the Wrocław Regional Court took evidence from more than fifty witnesses.

On 21 January 2000 the Wrocław Regional Court convicted the applicant and sentenced him to five years and six months’ imprisonment and to a fine. On 14 April 2000 the applicant appealed against his conviction.

On 24 August 2000 the Wrocław Court of Appeal dismissed the applicant’s appeal.

On 24 October 2000 the Court received the applicant’s letter of 9 October 2000. The front of the envelope in which the letter was delivered bears a stamp in Polish: “Opole Detention Centre, Ward III, Received on 09.10.2000.” On the back of the envelope there is a stamp in Polish: “Censored. Opole, 19.10.2000”. The top edge of the envelope is sealed with Sellotape. The envelope is postmarked 19 October 2000.

Over the period to which the facts of the present case relate, i.e. from March 1995 to the beginning of 1999, Polish criminal legislation was amended on several occasions.

In so far as the present case is concerned, there were two relevant amendments to the Code of Criminal Procedure (“the 1969 Code”), a law which is no longer in force as it was repealed and replaced by the socalled “New Code of Criminal Procedure” of 6 June 1997 (“the 1997 Code”), which entered into force on 1 September 1998.

The first such amendment was made by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes which entered into force on 1 January 1996, except the amendments relating to the imposition of detention on remand (in particular, those stating that only a judge was empowered to detain a suspect on remand); the entry into force of the latter amendments being postponed until 4 August 1996 (see below).

The second amendment, effected by the Law of 1 December 1995 on Amendments to the Law of 29 June 1995 (“the 1995 Interim Law”) came into force on 1 January 1996. Section 10(a) of the Law introduced special interim rules governing the prolongation of detention on remand beyond the statutory time-limits laid down in Article 222 §§ 2 and 3 of the 1969 Code in cases where such detention had been imposed before 4 August 1996 (see below, 2 c) “Statutory time-limits for detention on remand”).

At the material time the 1969 Code listed as “preventive measures” (środki zapobiegawcze), inter alia, detention on remand, bail and police supervision.

Article 210 § 1 of the 1969 Code read (in the version applicable until 4 August 1996):

“Preventive measures shall be imposed by the court; before a bill of indictment has been lodged with the competent court, the measures shall be imposed by the prosecutor.”

Article 222 (in the version applicable until 4 August 1996) stated, in so far as relevant:

“1. The prosecutor may order detention on remand for a period not exceeding three months.

(1) the court competent to deal with the case, upon the prosecutor’s request, for a period not exceeding one year;

(2) the Supreme Court, upon request of the Prosecutor General, for a further fixed term required to terminate the investigation.”

Under Article 212 § 2 a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case; however, he was not entitled to be brought before the judge dealing with his appeal.

Article 209 of the 1969 Code set out general grounds justifying imposition of preventive measures. That provision (as it stood at the material time) provided:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Article 217 § 1 defined grounds for detention on remand. That provision, in the version applicable until 1 January 1996 provided, in so far as relevant:

“Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or

(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means; or

(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or

(4) an accused has been charged with an offence which creates a serious danger to society.”

On 1 January 1996 paragraphs (3) and (4) were repealed. From that date on that provision read:

“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or

(2) [as it stood before 1 January 1996].”

Paragraph 2 of Article 217 then read:

“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”

The 1969 Code set out the margin of discretion as to maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand, the most extreme among the preventive measures, should not be imposed if more lenient measures were adequate.

Article 213 § 1 provided:

“A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.”

Article 225 stated:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of these measures, are considered adequate.”

The provisions of the Code providing for “mandatory detention” (for instance, pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June 1995 referred to above.

Finally, Article 218 provided:

“If there are no special reasons to the contrary, detention on remand should be lifted, in particular, if:

(1) it may seriously jeopardise the life or health of the accused; or

(2) it would entail excessively burdensome effects for the accused or his family.”

Until 4 August 1996, i.e. the date on which the relevant provisions of the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set out any time-limits on detention on remand in court proceedings; it did so only in respect of the investigative stage (see above, 2a) Imposition of detention on remand; Article 222 in the version applicable until 4 August 1996).

Article 222 of the 1969 Code in the version applicable after 4 August 1996 provided, in so far as relevant:

“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person was liable to a sentence of a statutory minimum of at least 3 years’ imprisonment] this period may not exceed two years.

In particularly justified cases the Supreme Court may, on an application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”

On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also:

“... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...”

However, as already mentioned (see paragraph 63 above), under section 10 (a) of the 1995 Interim Law, different rules applied to persons whose detention on remand started prior to 4 August 1996. That section provided:

“1. In cases where the total period of detention on remand which started prior to 1 August 1996 exceeds the [maximum] time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure [as amended by the Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes], the accused shall be kept in detention until the Supreme Court gives a decision on an application for prolongation of his detention under Article 222 § 4 of the Code of Criminal Procedure.

In cases mentioned in paragraph 1, if no [such] application has been lodged, detention shall be lifted not later than 1 January 1997.”

In cases where the Supreme Court dismissed an application under Article 222 § 4, a detainee had to be released. As long as it had not given its ruling, the application of the relevant court – which had the form of a decision (“postanowienie”) – was deemed to be a legal basis for the continued detention.

Article 24 § 1 of the 1969 Code read, in so far as relevant:

“1. The court competent to deal with the charges laid against a principal offender shall be competent to determine the charges laid against all his accessories and/or other persons, if the offence[s] committed by the latter are closely related to that [or those] committed by a principal offender [and] if the criminal proceedings against [all of them] are pending simultaneously.

The cases of persons referred to in paragraph 1 shall be joined in the same proceedings;

In cases where circumstances have rendered a joint determination of all the charges referred to in paragraphs 1 and 2 difficult [the court] may sever a specific charge [or charges] from the case ... .”

A first-instance court could, either of its own motion or on an application made by a party, make a severance order at any time.

That offence, until 1 September 1998, was defined in Article 205 § 2 (1) of the Criminal Code of 1969, which provided:

“Anyone who has committed aggravated fraud shall be liable to a sentence ranging from one to ten years’ imprisonment.”

On 1 September 1998 the Criminal Code of 1969 was repealed by the socalled “New Criminal Code” of 6 June 1997 and, from then on, the offence of aggravated fraud has been defined by Article 294 § 1 read in conjunction with Article 286 § 1 of the New Criminal Code; the potential sentence still ranges from one to ten years’ imprisonment.


CASE OF MITRESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient

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

The applicant was born in 1982 and lives in Kicevo.

At 11.30 a.m. on 12 February 2009 the applicant was arrested and taken into police custody. On 13 February 2009 an investigating judge from the Gostivar Court of First Instance (“the trial court”) questioned the applicant, who was assisted by counsel. An investigation was opened on the grounds of reasonable suspicion of extortion of money from a minor. The investigating judge refused a request by the public prosecutor for the applicant to be detained in prison, but ordered, instead, thirty days' house arrest (куќен притвор). That measure required the applicant to remain at home and to refrain from using any means of communication for the duration of the order. His passport was also seized and the police were ordered to check his presence in the house twice a day. The judge considered that there were reasonable grounds for suspecting the applicant of having committed the offence, but that in the light of his clean record and family circumstances, a non-custodial measure, such as house arrest, was preferable. The applicant's house arrest was ordered on all the grounds specified in section 199 of the Criminal Proceedings Act (see paragraph 14 below). This decision was served on the applicant and his lawyer at 5 p.m.

At 7 p.m. the same day, the public prosecutor appealed on the ground that the investigating judge had not provided sufficient reasons for refusing to detain the applicant in prison and had not examined whether house arrest could be supervised effectively. The applicant did not appeal.

On 14 February 2009 a three-judge panel of the trial court (“the panel”), sitting in private, allowed the appeal and replaced the order for the applicant's house arrest with an order for his detention in prison. It further quashed the order for the confiscation of the applicant's passport. The panel found that there was a danger that the applicant would interfere with the investigation, in particular by putting pressure on witnesses who had not been heard yet and on the victim, who, being a minor, was vulnerable. Having regard to the gravity of the offence and the way in which it had been committed, the panel ruled that house arrest was an inadequate measure in the applicant's case. This decision was served on the applicant at noon. No appeal lay against the panel's decision.

On 26 February 2009 the investigating judge terminated the panels' order for the applicant's detention in prison and ordered thirty days' house arrest accompanied by the same security measures described above (see paragraph 6 above). The judge found no justification for the applicant's continued detention in prison since the investigation had been completed. In this connection, he noted that evidence had been taken from the victim and witnesses proposed by both parties. Given the accompanying measures ordered, there was no likelihood of reoffending or obstructing the course of justice by influencing other witnesses, if any.

On 27 February 2009 the panel dismissed the public prosecutor's appeal, finding the house arrest and accompanying measures adequate to ensure the applicant's attendance at the trial.

The panel, sitting in first instance, extended the applicant's house arrest on two occasions, namely, on 26 March and 24 April 2009, with the stated aim of ensuring his attendance at trial. In doing so, it relied on the gravity of the charges and potential penalty. The applicant unsuccessfully appealed against both orders. The Gostivar Court of Appeal's decisions dismissing the applicant's appeals dated 23 April and 20 May 2009 respectively.

On 21 May 2009 the trial court convicted the applicant of extortion and sentenced him to one and a half years' imprisonment. It further extended the house arrest order until the criminal proceedings are completed. The proceedings are underway.

Section 22(6) of the Criminal Proceedings Act (“the Act”) provides that a three-judge panel of the trial court decides, inter alia, appeals against decisions of the investigating judge.

Under section 199(1), paragraphs 1-3, of the Act, pre-trial detention can be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of his or her absconding, interfering with the investigation or reoffending.

Under section 200(1), (6) and (8) of the Act, an investigating judge has jurisdiction to order pre-trial detention. The detainee may challenge the detention order before the panel within 24 hours. The appeal does not suspend the execution of the detention order. The panel must decide the appeal within 48 hours. The detainee, through his or her lawyer, can request to be notified of the date of the hearing before the panel in order to be able to present his or her arguments orally.

Section 205(2) and (6) of the Act provides that the panel, set up under section 22(6), may extend the period of detention by up to 60 days at the request of the investigating judge. Such an order can be challenged before the next level of jurisdiction.


Flogaitis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen;Spyridon Flogaitis

The applicants, Mr Ioannis Anastassakos, Mr Spyridon Zavitsanos and Mr Stavros Leoussis are Greek nationals who were born in 1955, 1957 and 1944 respectively. They live in Athens. They are represented before the Court by Mr N. Alivizatos and Mr Y. Ktistakis, both lawyers practising in Athens. The Greek Government (“the Government”) are represented by their Agent, Mr M. Apessos, Senior Adviser at the State Legal Council, Mrs U. Patsopoulou, Adviser at the State Legal Council and Mrs S. Trekli, Legal Assistant at the State Legal Council.

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

The applicants have a direct or indirect involvement in the operation of AGB, a company under Greek law, which specialises in providing television audience measurement services. In particular, the first applicant was the first managing director of AGB, currently holds 5% of that company’s shares and is the chairman of the board of directors. The second applicant has been the managing director of AGB since 2003. The third applicant was one of the co-founders of AGB and today holds 18% of the company’s shares.

AGB was founded in 1987 and has remained the sole provider of TV audience data to the present day. The applicants state that it has been noticed worldwide that the relevant national markets prefer to share a common source of television audience data. This is due to the fact that commonly accepted television data in the context of national markets form a decisive parameter in the decision-making process, as regards advertising investment strategies. The applicants submit that Greece is a unique case in the field of terrestrial television broadcasting owing to the fact that, under the successive laws that have been enacted since 1989, when the State monopoly was abolished, there are today at least five private, fifty regional and sixty local television channels, none of which has a proper operating licence. It is submitted that in this context of institutional anarchy AGB’s role has become more crucial than in other countries. The applicants claim that, for this reason, AGB has occasionally been the target of campaigns in which its professionalism and reputation have been attacked.

In 2002 a high-ranking executive of Alpha TV drafted and made public a report on AGB’s activities suggesting that AGB and its executives had committed irregularities with regard to the choice of sample and the subsequent processing of television data. The Television Audience Measurement Committee, an independent committee created by virtue of section 11(4) of Law no. 2328/1995, conducted a special investigation and cleared AGB of all charges.

In autumn 2004 Alpha TV, which at the time was allegedly facing major financial difficulties and low ratings, again drew attention to the above-mentioned report. The latter gained widespread publicity, and on 14 December 2004 a preliminary examination was ordered in respect of AGB’s managers by the Athens Public Prosecutor’s Office. In February 2006 all three applicants were summoned to the prosecutor’s office to answer rather general questions, without being bound by oath (ανομωτί). On 30 March 2006 the public prosecutor initiated criminal proceedings against the applicants for the concurrent offences of fraud, fraud committed against the State and filing of false statements before an administrative authority. On the same date, the case file was transmitted to the investigating judge.

The applicants submit that, on 30 March 2006, during the regular off-the-record meeting of the senior prosecuting authority with the media held on the premises of the Court of Cassation, journalists were briefed that criminal proceedings were to be initiated against the three applicants in relation to AGB’s alleged irregularities. Long excerpts and explicit details about the allegations were read from the unofficial prosecutor’s report (πόρισμα). This report is only an internal document and Greek law does not provide for such a report. It is only by way of a working practice that such reports are drafted by the prosecutor in charge as an informal description and assessment of the facts for the sole purpose of briefing the supervising prosecutor on the case. Moreover, the accused had not yet been notified of the report, and therefore the applicants had no official knowledge of its content.

On the same day, M.T., a journalist hosting a popular television show, Η Ζούγκλα (“The Jungle”), appeared before a large panel of guests, holding a copy of the prosecutor’s confidential report. While showing the report on camera with frequent close-ups, he went on to read out extensive parts of it. Quoting selected extracts from the report, he stated that AGB was an integral part of a “network of conspiracy” and the “real centre of power” in Greece, both at political and at economic level. Other guests participating in the panel stated that AGB not only built or destroyed TV careers but also distributed millions and constituted a “spider’s web” and a “fraudulent trap”.

The following day’s newspapers contained extensive articles on the case. Three Athens dailies quoted parts of the prosecutor’s confidential report, and one of them published photographs of the first two applicants and another three pages of the original report. The story caused such interest throughout Greece that, on the evening of 31 March 2006, the first and third applicants were forced to answer pressing questions by journalists live on two of the most popular evening television broadcasts.

The applicants submit that both their private and professional lives have dramatically changed. After the disclosure of the prosecutor’s report and the ensuing publicity, they are allegedly looked upon with distrust and disapproval and are in a state of uncertainty as to their future careers. They state that the impact on their private lives has also been considerable. In particular, the first applicant started receiving anonymous hostile telephone calls and letters, which forced him to seek protection for his premises from private security guards. After the television reports, the first and second applicants’ children started using their mothers’ maiden name at school, so as to avoid further abuse. The second applicant, having already had health problems with his vocal cords, suffered a relapse, which required a second operation, after the above-mentioned events took place.

On 26 June 2009 the Indictment Division of the Athens Court of Appeal dismissed all the charges against the applicants (decision no. 1294/2009). It stated, inter alia, that there were no grounds to commit the applicants for trial.

The relevant provisions of the Constitution provide as follows:

“1. All persons are entitled to information, as specified by law. Restrictions to this right may be imposed by law only in so far as they are absolutely necessary and justified for reasons of national security, combating crime or protecting the rights and interests of third parties.

All persons are entitled to participate in the Information Society. Facilitation of access to electronically processed information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State, always in observance of the guarantees of Articles 9, 9A and 19.”

“Actions against judicial officers for miscarriage of justice shall be tried, as specified by law, by a special court composed of the President of the Supreme Administrative Court, as President, and one councillor of the Supreme Administrative Court, one Supreme Civil and Criminal Court judge, one councillor of the Court of Auditors, two law professors of the law schools of the country’s universities and two lawyers from among the members of the Supreme Disciplinary Council for lawyers, as members, all of whom shall be chosen by lot.

In each case, the member of the special court who belongs to the judicial body or branch the actions or omissions of an officer of which the court is called upon to judge shall be exempted. In the case of an action against a member of the Supreme Administrative Court or an officer of the ordinary administrative courts, the special court shall be presided over by the President of the Supreme Civil and Criminal Court.

No permission shall be required to institute an action for miscarriage of justice.”

The following provisions of the Introductory Law (Εισαγωγικός Νόμος) to the Civil Code (Law no. 2783/41) are relevant:

“The State shall be liable in accordance with the provisions of the Civil Code concerning legal persons, for acts or omissions of its organs regarding private-law relations or State assets.”

“The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.”

This section establishes the concept of a special prejudicial act in public law, creating State liability in tort. This liability results from unlawful acts or omissions. The acts concerned may be not only legal acts but also physical acts by the administrative authorities, including acts which are not in principle enforceable through the courts (Kyriakopoulos, Interpretation of the Civil Code, section 105 of the Introductory Law to the Civil Code, no. 23; Filios, Contract, Special Part, volume 6, Tort, 1977, para. 48 B 112; E. Spiliotopoulos, Administrative Law, 3rd edition, para. 217; Court of Cassation judgment no. 535/1971, Nomiko Vima, 19th year, p. 1414; Court of Cassation judgment no. 492/1967, Nomiko Vima, 16th year, p. 75). The admissibility of an action for damages is subject to one condition, namely, the unlawfulness of the act or omission.

The relevant provisions of the Civil Code read as follows:

“Any person whose personal rights are unlawfully infringed shall be entitled to bring proceedings to enforce cessation of the infringement and restraint of any future infringement. Where the personal rights infringed are those of a deceased person, the right to bring proceedings shall be vested in his spouse, descendants, ascendants, brothers, sisters and testamentary beneficiaries. In addition, claims for damages in accordance with the provisions relating to unlawful acts shall not be excluded.”

“In the cases provided for in the two preceding Articles, the court may, in the judgment it gives on the application of the person whose right has been infringed, and regard being had to the nature of the infringement, also order the infringer to make reparation for the plaintiff’s non-pecuniary damage. Such reparation shall consist in the payment of a sum of money, publication of the court’

“Whoever unlawfully and culpably causes damage to another shall be bound to make reparation to the other for any damage thus caused...”

“In the case of an unlawful act, the court may, irrespective of any award of compensation for pecuniary damages, award reasonable compensation ... for any non-pecuniary harm suffered...”

The relevant provisions of the Criminal Code read as follows:

“1. Anyone who is under the legal obligation to perform judicial duties and discloses to a third person confidential information of the deliberations or the vote in which he took part shall be punished by up to two years’ imprisonment.

“A civil servant who, with the exception of cases described under Articles 248, 249, 250 and 251, deliberately and with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the State or a third party, discloses to a third person (a) information which came to his knowledge because of his position or (b) a document either entrusted to him or accessible to him owing to his position, shall be punished by at least three months’ imprisonment.”

“A civil servant who deliberately breaches an official duty with the intention of unlawfully obtaining a pecuniary advantage for himself or another or who causes prejudice to the State or a third party shall be punished by up to two years’ imprisonment, save where the offence is punishable pursuant to another provision of criminal law.”

“1. Except in cases which amount to defamation (Articles 362 and 363), anyone who by words or by deeds or by any other means injures another’s reputation shall be punished by up to one year’s imprisonment or by a pecuniary penalty. The pecuniary penalty may be imposed in addition to imprisonment.

If the injury to reputation is not severe, considering the circumstances and the person injured, the offender shall be punished by imprisonment or a fine.

The provision of paragraph 3 of Article 308 shall apply in this case.”

“1. An insult committed through an act (Article 361, paragraph 1) shall be punishable by at least three months’ imprisonment if it was unprovoked by the victim.

If two or more persons participated in the act referred to in the previous paragraph, it shall be punishable by at least six months’ imprisonment.”

“Anyone who by any means disseminates information to a third party concerning another which may damage the latter’s character or reputation shall be punished by up to two years’ imprisonment or a pecuniary penalty. The pecuniary penalty may be imposed in addition to imprisonment.”

“If, in a case under Article 362, the information is false and the offender was aware of the falsity thereof, he shall be punished by up to three months’ imprisonment, and, in addition, a pecuniary penalty may be imposed and deprivation of civil rights under Article 63 may be ordered.”

“1. Anyone who by any means asserts or disseminates information concerning a corporation with respect to its business, financial position, products or members of its board of directors which may lower the confidence of the public in the corporation and generally harm its business shall be punished by up to one year’s imprisonment or a pecuniary penalty.

If the accused proves the truth of the information which he asserted or disseminated, he shall not be punished.

If the information which the accused asserted or disseminated is false, and he was aware of the falsity thereof, he shall be punished by imprisonment.”

Article 241 of the Code of Criminal Procedure reads as follows:

“The judicial investigation takes place in writing and without any publicity (...)”

Article 99 of the Magistrates’ Code provides in so far as relevant:

The competent judicial authorities are bound to initiate disciplinary proceedings when their attention is drawn by any means to acts committed by the judiciary which may constitute a disciplinary fault (...)”

Section 22(4) of Law no. 2472/1997 provides:

“Anyone who unlawfully interferes in any way whatsoever with a personal data file, or takes notice of such data, or extracts, alters, adversely affects, destroys, processes, transfers, discloses, makes accessible to unauthorised persons, or permits such persons to take notice of, such data or anyone who exploits such data in any way whatsoever, shall be punished by imprisonment and a fine and, in the case of sensitive data, by imprisonment for a period of at least one (1) year and a fine amounting to between one million drachmas (GRD 1,000,000) and ten million drachmas (GRD 10,000,000), unless otherwise subject to more serious sanctions.”

In its Köbler judgment of 30 September 2003 (Case C-224/01) the Court of Justice of the European Communities made clear that, since, in international law, a State which incurred liability for a breach of an international commitment was viewed as a single entity, irrespective of whether the breach which gave rise to the damage was attributable to the legislature, the judiciary or the executive, that principle must apply a fortiori in the Community legal order since all State authorities, including the legislature, were bound, in performing their tasks, to comply with the rules laid down by Community law which directly governed the situation of individuals.


The applicant is an Italian national, born in 1955 and currently detained in Benevento. Before the Court, he is represented by Mr Giuseppe Ricciulli, a lawyer practising in Naples.

In November 1992, the applicant, accused of belonging to a criminal association and of drug-trafficking, was arrested. The suspicions against him were partly based on the content of certain wiretappings.

In an order of 5 May 1994, the investigating judge committed the applicant for trial, commencing on 21 October 1994 before the Nola District Court.

In a judgment of 5 May 1995, filed with the registry on 31 May 1995, the District Court, relying on the content of the wiretappings, sentenced the applicant to thirteen years imprisonment.

The applicant and the Public Prosecutor lodged an appeal with the Naples Court of Appeal.

In a judgment of 21 December 1995, filed with the registry on 9 January 1996, the Court of Appeal confirmed the first-instance decision.

The applicant appealed on points of law.

In a judgment of 11 July 1996, the Court of Cassation rejected the appeal.


Preliminary objection dismissed (lack of authority);Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant company is a private limited company (osaühing), registered in Estonia.

On 19 October 1998, T., the lawyer of K., lodged a request with the Saare County Court (maakohus) for securing a claim by K. against A. and P. According to K., she had been in the possession of six shares (corresponding to 50 per cent of the share capital) of Kallas AS, a public limited company, which had been unlawfully transformed into the applicant company, Saarekallas OÜ. The defendants had been entered in the commercial register as members of the management board of the company. K. submitted that P. intended to sell the company's buildings at 26 and 26a Pikk Street in Kuressaare. She requested the court to enter a notation in the Buildings Register prohibiting the disposal of the buildings concerned.

On the same date the County Court granted the request.

On 26 October 1998 the applicant company appealed against the interlocutory measure.

On 23 November 1998 the County Court annulled the interlocutory measure, as the plaintiff had not lodged the claim with the County Court within a one-month period. This decision became final on 4 December 1998.

On 14 December 1998 the Tallinn Court of Appeal (ringkonnakohus) took a decision concerning the appeal against the interlocutory measure. It noted that, although the appeal was well-founded, there was no need to quash the challenged decision as it had already been annulled.

On 11 December 1998, K.'s lawyer lodged a claim against the applicant company with the County Court. The plaintiff alleged that she had been a shareholder of Kallas AS, which had been transformed into the applicant company. However, she had not been entered on the list of shareholders of the applicant company after the transformation. She alleged that the P. was about to sell the buildings belonging to the applicant company and that this would be in breach of her rights. She requested that the management board of the applicant company be obliged to transfer to her a share in the value of 5,000 Estonian kroons (EEK) and that a notation prohibiting the disposal of the buildings at 26 and 26a Pikk Street be entered in the Buildings Register.

On 14 December 1998 the County Court again ordered that a notation prohibiting the disposal of the buildings at 26 and 26a Pikk Street be entered in the Buildings Register in order to secure K.'s claim.

The County Court scheduled ten preliminary hearings from 30 March 1999 to 9 May 2000. They were adjourned for various reasons: because of the negotiations between the parties to settle the case, the plaintiff's requests to require documents from the applicant company, the parties' or their representatives' absence, the plaintiff's applications to amend the object of the action and to bring additional claims.

On 9 May 2000 the judge hearing the case made a ruling concerning her withdrawal. The County Court had received copies of several petitions whereby the applicant company's statutory representatives had requested that criminal proceedings be initiated against the judge concerned and the chairperson of the Saare County Court, since they had, allegedly, continuously committed serious crimes against the petitioners, involving denial of human existence, violence and crimes against human rights.

On 3 July 2000 another judge of the County Court made a ruling concerning her withdrawal, since the representatives of the applicant company had made several petitions for initiating criminal proceedings also against her. On 5 September 2000 two further judges ruled on their withdrawal.

By a letter of 6 September 2000 the chairperson of the Saare County Court requested the chairperson of the Tallinn Court of Appeal to change the jurisdiction over the matter, since all of the judges of the County Court had withdrawn from hearing the case. The chairperson of the Court of Appeal considered the withdrawals unjustified and returned the case to the Saare County Court.

A preliminary hearing of the case was scheduled for 21 February 2001. However, on 20 February 2001 the plaintiff's lawyer informed the County Court that K., the plaintiff, had died on 4 February 2001. He requested that the proceedings be suspended. On 21 February 2001 the County Court decided to suspend the proceedings until ascertaining the identity of the plaintiff's successor.

On 3 April 2002 the County Court resumed the proceedings and invited R., K.'s heir, to act as the plaintiff.

On 30 April 2002 the County Court held a preliminary hearing. R. submitted to the court a request to amend the object of the action. N., member of the management board of the applicant company, asserted that he had not been authorised to represent the company.

On 5 June 2002 the court held a preliminary hearing. N., a member of the management board of the applicant company, again asserted that he had not been authorised to represent the company. The court agreed and decided that he could not take part in the proceedings. It heard the plaintiff's lawyer and scheduled a new hearing for 13 August 2002.

On 13 August 2002 the court again held a preliminary hearing. There appeared the plaintiff's lawyer; the applicant company's representatives lacked due authorisation to act on its behalf. The court concluded the preliminary hearing and scheduled the trial hearing for 23 September 2002.

On 23 September 2002 the County Court held a trial hearing in the presence of R. and his lawyer. N. was also present but had no authority to represent the applicant company.

The County Court delivered its judgment on 14 October 2002. R.'s claim was granted in part. The court obliged the management board of the applicant company to enter R. on the list of its shareholders with a share of a nominal value of EEK 5,000.

Both the applicant company and R. appealed against the judgment of the County Court. On 21 April 2003 the Tallinn Court of Appeal quashed the County Court's judgment and remitted the case back to it for fresh examination, since Tradeco Enterprises Inc, a shareholder of the applicant company, had not been involved in the proceedings.

On 10 September 2003 the Supreme Court (Riigikohus) refused the applicant company leave to appeal.

On 15 January 2004 the Saare County Court decided to resume the proceedings and to invite Tradeco Enterprises Inc to participate therein as a third party. It requested the plaintiff's lawyer to provide evidence concerning the status of Tradeco Enterprises Inc, including on whether this company had been dissolved and, if so, whether there was a successor.

In the spring of 2004 T., the plaintiff's lawyer, and the representatives of the applicant company were unsuccessfully seeking an opportunity to sell the buildings on Pikk Street.

The County Court held a preliminary hearing on 14 December 2004 in the presence of the plaintiff's representative and N. who had no authority to represent the applicant company. Tradeco Enterprises Inc, registered in Delaware, had refused the summonses sent by the court. The hearing was adjourned at the request of the plaintiff's lawyer in order to find out whether Tradeco Enterprises Inc was an existing legal entity.

On 3 February 2005 the plaintiff's lawyer informed the court that the parties had started negotiations to settle the case. By June 2005 it became evident that no agreement could be reached.

On 3 July 2005 and 25 January 2006 the County Court made requests to the authorities of the State of Delaware to receive information on Tradeco Enterprises Inc.

On 14 February 2006 the County Court received an agreement concluded between the plaintiff and the defendant company whereby they settled the case. On the same date, the County Court approved the settlement and annulled its interlocutory measure applied on 14 December 1998 to secure the action. The plaintiff and the applicant company declared that they abandon their right to appeal against the County Court's decision whereby the settlement was confirmed.

The relevant provisions of the Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) read as follows:

“Everyone has the right to the protection of the state and of the law. ...

The law shall protect everyone from the arbitrary exercise of state authority.”

“The guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers, and of local governments.”

“Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional.

The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.”

“Everyone has the right to compensation for moral and material damage caused by the unlawful action of any person.”

The pertinent provisions of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), applicable until 31 December 2005, read as follows:

“The purpose of civil procedure is to hear and adjudicate civil matters justly and expeditiously.”

“(1) A court shall decide on the acceptance of a statement of claim within twenty days after the filing thereof.

“(1) If a court holds a preliminary hearing, it shall be held within two months after the filing of the statement of claim. A court shall summon the participants in a proceeding to a preliminary hearing.

(3) If possible, a court session shall be held by the court within three months after the filing of a statement of claim.

(3) A court shall justify the adjournment of the hearing of a matter. The reason shall be recorded in the minutes of the court session. A new court session shall be held within a reasonable period of time. A court shall determine the time and place of a new court session, taking into consideration the opinions of the participants in the proceeding.

(4) If a court adjourns the hearing of a matter for more than three months, it shall make a written ruling.

(5) A participant in the proceeding may file an appeal against such ruling if the participant in the proceeding finds that the hearing of the matter is adjourned for an unreasonably long period of time. A ruling of a court of appeal concerning an appeal against such ruling is not subject to appeal.”

“An appeal may be filed against a ruling on the suspension of a proceeding. A ruling of a court of appeal concerning an appeal against such ruling is not subject to appeal.”

(3) The parties and other participants in a proceeding may file an appeal against a ruling of the court of first instance if the right to file an appeal against a ruling is prescribed in this Code, or if the court ruling hinders the further conduct of the proceeding.

In a decision of 13 June 1997, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-18-97) held that if no specific deadline had been provided for, the public authorities – the Privatisation Agency in the case at hand – had to perform actions within reasonable time. Otherwise, Article 13 § 2 of the Constitution would be violated. It found that administrative courts were authorised to examine such complaints under Article 3 of the Code of Administrative Court Procedure (Halduskohtumenetluse seadustik).

In a judgment of 22 December 2000, the plenary Supreme Court (case no. 3-3-1-38-00) noted that a right to effective proceedings for one's protection was guaranteed under Articles 13, 14 and 15 of the Constitution and Article 13 of the Convention. It would be contrary to Article 15 § 1 of the Constitution to exclude some basic rights from effective judicial protection. The Supreme Court concluded that administrative courts were authorised, under Article 3 of the Code of Administrative Court Procedure, to examine whether certain procedural measures in criminal proceedings – in that case search and seizure – infringed the fundamental rights and freedoms of an individual.

In a judgment of 17 April 2001, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-10-01) held that even in cases where a person accused of a criminal offence had been removed from his or her office in accordance with the law but he or she was subsequently acquitted or the criminal proceedings against him or her were discontinued, he or she had to have a possibility of obtaining just compensation from the State. The court noted that although the matter was not regulated by law, this omission could not exclude the State's responsibility before the individual. It held that in such cases compensation could be claimed on the basis of general principles of law even when no specific legal provisions existed.

In a judgment of 6 June 2002, the Administrative Law Chamber of the Supreme Court (case no. 3-3-1-27-02) found, relying on Articles 13 § 2 and 25 of the Constitution, that unlawful act or measure – including inaction or delay – in performing public functions served as grounds for compensation for damage. Article 25 of the Constitution was considered directly applicable. This case concerned a delay by municipal authorities in privatisation proceedings.


The applicant, Mr Aleksey Valentinovich Nosov, is a Russian national, who was born in 1964 and lives in Omsk. He is represented before the Court by Mr A. Shepelin, a lawyer practising in Omsk. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

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

On 21 December 1996 the limited liability company Azimut-Elita, in which the applicant owned fifty per cent, sold petrol to the public company Technopribor.

On 25 April 1997 Technopribor paid a part of the stipulated purchase price. Following unsuccessful attempts to recover the amount outstanding, Azimut-Elita assigned debt to the limited liability company Kompanyony, of which the applicant was, in his submission, director but not the owner. The Government referred to the Kompanyony company as “belonging” to the applicant.

In early 1998 Kompanyony sued Technopribor for the amount outstanding and interest thereon.

On 5 January 1999 the Commercial Court of the Kabardino-Balkaria Republic granted the action and awarded Kompanyony 2,292,000 Russian roubles (“RUR”). The Kompanyony company was represented by a Mr G., acting on the basis of a form of authority of 14 March 1999.

On 15 April 1999 the Appellate Collegium of the Commercial Court of the Kabardino-Balkaria Republic upheld the judgment of 5 January 1999. The judgment became enforceable and on 27 April 1999 a writ of execution was issued.

On 30 April 1999 Kompanyony assigned the debt to Mr Sh., a sole trader. On 5 May 1999 the writ was submitted to the court bailiffs’ service for enforcement.

As no cassation appeal was lodged within the established time-limit, on 15 May 1999 the judgment became final.

On an unspecified date in 1999 the Kompanyony company went into liquidation pursuant to a judicial decision in unrelated proceedings.

On 25 December 2000 Mr Sh. assigned the debt to the limited liability company Pamir-99, in which the applicant was, in his submission, director but not the owner. The Government indicated that the company “belonged” to the applicant but its director in 1997 and 1998 had been a certain Mr M.

On 28 December 2000 Pamir-99 sued Technopribor for damages incurred through its failure to comply with the judgment.

On 31 January 2001 Judge R. of the Federal Commercial Court of the North-Caucasian Circuit issued two procedural orders (определение). The first order granted Technopribor an extension of the time-limit for the submission of a cassation appeal and ordered that the so submitted cassation appeal should be examined. The second order granted Technopribor a deferral of court fees in connection with its cassation appeal. Both orders were issued on standard printed forms: in the first order the words “[the defendant] refers to the fact that it missed the time-limit because of” were struck through; no grounds for granting the extension were given. Similarly, in the second order the words “[on the basis of] the [defendant’s] certificate no. ___ of ____ 2000 showing its insufficient funds” were struck through and replaced with the words “at the [defendant’s] request” without any further details.

On 21 February 2001 the applicant filed his objections to the procedural orders which he signed as the director of Pamir-99. He informed the court that he had been the director of Kompanyony from January 1998 to November 1999 when the company had gone into liquidation without succession. The debt was assigned, by the mediation of Mr Sh., to Pamir-99. The applicant argued that, in conformity with Article 85 (4) of the Code of Commercial Procedure, the proceedings could not be re-opened or resumed because the original plaintiff had been liquidated. If the court would nevertheless consider it possible to examine the appeal, he asked that Pamir-99 be joined to the proceedings and copies of the request for the extension of the time-limit and statement of appeal be served on it.

On 28 February 2001 the Federal Commercial Court of the North-Caucasian Circuit, sitting in a three-judge formation presided over by Judge R., quashed the judgments of 5 January and 15 April 1999 on the ground that the courts had given an incorrect assessment of the relevant facts, and remitted the claim for a new examination. As regards the reasons for the re-opening, the court held as follows:

“The public company Technopribor has lodged a cassation appeal... Pursuant to Article 99 of the Code of Commercial Procedure, the time-limit for lodging a cassation appeal has been extended...

[The court] has not received observations on the points of appeal. The court received a telegram from the Kompanyony company that contained a request to adjourn the proceedings until the evidence showing liquidation of the Kompanyony company had been produced. The request for adjournment was dismissed.”

The Federal Commercial Court instructed the first-instance court to examine whether the Kompanyony company had gone into liquidation and, if so, discontinue the proceedings in accordance with Article 85 of the Code of Commercial Procedure.

On 5 March 2001 the Commercial Court of the Kabardino-Balkaria Republic discontinued proceedings in the action for damages lodged by Pamir-99 on 28 December 2000 because the underlying judgment had been quashed.

On 28 May 2001 the Commercial Court of the Kabardino-Balkaria Republic issued a new decision. It noted that, according to the information from the tax authorities, the Kompanyony company had been liquidated. The summons addressed to the company was returned as undelivered. The court held to discontinue the proceedings because the plaintiff failed to appear and ordered the Kompanyony company to bear RUR 24,148.95 in court fees.

On 20 June 2001 Pamir-99 sold the applicant the right to claim the debt and damages arising out of the judgment of 5 January 1999. According to a receipt of 10 January 2002, the applicant paid the stipulated amount of RUR 35,000 (approximately EUR 1,100) in cash.

On an unspecified date the applicant complained to the Supreme Commercial Court of the Russian Federation about the procedural orders of 31 January 2001. He referred to the fact that the time-limit had been extended two years after it had expired, whilst the defendant was a big factory with large administrative staff. Furthermore, he noted that the Federal Commercial Court failed to give any reasons for the extension.

On 5 December 2001 Judge A. of the Supreme Commercial Court responded that there were no grounds for lodging an application for supervisory review. The applicant’s arguments about the absence of a justification for granting the extension were not addressed in the response.

The Pamir-99 company sued Technopribor for the damage incurred through its failure to comply with the judgment of 5 January 1999.

On 5 March 2001 the Commercial Court of the Kabardino-Balkaria Republic dismissed the Pamir-99’s claim. It noted that the judgment of 5 January 1999 had been quashed on 28 February 2001 and that the plaintiff failed to prove the existence of damage and the causal link with the defendant’s actions.

On 31 May 2001 the Appellate Collegium of the Commercial Court of the Kabardino-Balkaria Republic upheld the judgment of 5 March 2001.

Articles 47 and 49 provided that organisations could be represented before commercial courts by their bodies, acting within the scope of powers conferred on them by law, regulations or articles of association, or by special representatives acting on the basis of a form of authority.

Article 85 (4) established that the commercial court should discontinue the proceedings if the organisation which was a party to the case was liquidated.

Article 99 provided that the commercial court could extend a time-limit at the request of a party if it established that the party had missed the time-limit for a good reason.

Article 164 set the time-limit for lodging a cassation appeal at one month after the judgment or decision of the commercial court became enforceable.

Articles 166 and 168 required the service of copies of the cassation appeal on all parties to the proceedings, failing which the appeal would be disallowed.


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

The applicant was born in 1940 and lives in Matera.

The applicant is the owner of an apartment in Milan, which she had let to D.D'A.M.

In a registered letter of 3 October 1984, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1985 and asked her to vacate the premises by that date.

On 23 October 1985, she served a notice to quit on the tenant and summoned her to appear before the Milan Magistrate.

By a decision of 16 October 1986, which was made enforceable on 19 November 1986, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1988.

On 30 June 1988 and on 2 May 1989, the applicant served notice on the tenant requiring her to vacate the premises.

On 1 June 1989, she served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 27 June 1989.

Between 27 June 1989 and 25 November 1997, the bailiff made thirty-one attempts to recover possession. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension for the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.

On 27 December 1997, the applicant recovered possession of the apartment, because the tenant spontaneously vacated the premises.

The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.


CASE OF KARANOVIC v. BOSNIA AND HERZEGOVINA

Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was born in 1928 and lives in Sarajevo.

In 1987 he was granted an old-age pension from the pension fund of the former Socialist Republic of Bosnia and Herzegovina.

In 1992 the applicant left his home in Sarajevo, in what is today the Federation of Bosnia and Herzegovina, and moved to what is today the Republika Srpska. While he was internally displaced, he received his pension from the Republika Srpska.

Upon his return to Sarajevo in 2000, the applicant unsuccessfully sought to receive his pension from the Federation of Bosnia and Herzegovina.

On 28 February 2002 he complained to the Human Rights Chamber.

On 6 January 2003 the Human Rights Chamber joined the applicant’s case (no. CH/02/9364) and those of Mr Kličković and Ms Pašalić (nos. CH/02/8923 and CH/02/8924) and adopted a single decision. It was read out at a public hearing on 10 January 2003. Having been taken by the full Chamber, the decision became final immediately.

The Human Rights Chamber held that the applicant (together with Mr Kličković and Ms Pašalić) was discriminated against in his enjoyment of the right to social security as guaranteed by Article 9 of the International Covenant on Economic, Social and Cultural Rights. The reasons were set out in the decision which reads, in the relevant part, as follows:

“8. In the former Socialist Federal Republic of Yugoslavia (hereinafter “SFRY”), civilian pensions were administered by the six Socialist Republics under their own respective laws and institutions. In addition, the state-level Law on Basic Rights of Pension and Disability Insurance (OG SFRY no. 23/82, 77/82, 75/85, 8/87, 65/87, 87/89, 54/90, and 84/90) granted equal minimum rights to every SFRY citizen and regulated the rights of persons who moved from one Republic to another.

Following changes brought about by the armed conflict, pensions in Bosnia and Herzegovina came to be administered by three separate funds: the Social Fund of Pension and Disability Insurance of Bosnia and Herzegovina (hereinafter the “Sarajevo Fund”), the Bureau of Pension and Disability Insurance Mostar (hereinafter the “Mostar Fund”), and the Public Fund of Pension and Disability Insurance of Republika Srpska (hereinafter the “RS Fund”). The Sarajevo Fund and Mostar Fund subsequently merged, following a November 2000 decision by the High Representative, into the Federation PDI Institute (hereinafter the “Federation Fund”), which has been operational since 1 January 2002. Presently there is one pension fund in the Federation and one in the Republika Srpska, and all legislation directly concerning pension systems is made at the Entity level.

The basic calculation schemes for determining rights to pension and disability insurance are different in each entity. One result of this has been significantly lower pensions in the Republika Srpska. In March 2002, the average pension in the Federation was 190 [Bosnian markas (BAM)], and the average pension in the Republika Srpska was 120 [BAM]. The minimum pension payment prescribed by law in the Federation of Bosnia and Herzegovina is 140 [BAM], while the minimum pension in the Republika Srpska is 80 [BAM].

The system of pension insurance in Bosnia and Herzegovina, as inherited from the former SFRY, has been based on the “pay/go” principle that salary contributions from current workers support the current pensioners. Thus, money that comes into the system as contributions is immediately paid out as pensions, rather than becoming interest-generating capital from which the interest is paid out as pensions. When the current workers retire, salary contributions from the future generation of workers will finance the current workers’ pensions. Therefore, the pension system as a whole has had the character of a general social insurance system. This is also the case with the current Federation and RS Funds.

On 27 March 2000, the Mostar Fund, Sarajevo Fund, and RS Fund entered into the Agreement on Mutual Rights and Obligations in Execution of Pension and Disability Insurance (hereinafter the “Pension Agreement”) (OG RS, no. 15/00, 5 June 2000; OG FBH, no 24/00, 30 June 2000), under which they agreed that the Fund that had made payments to pensioners before the Agreement came into force would continue to pay those pensions regardless of the pensioners’ place of temporary or permanent residence. The Pension Agreement entered into force on 18 May 2000...

The RS Fund, with the authorisation of the Republika Srpska government, unilaterally terminated the Pension Agreement in March 2002 (OG RS, no. 10/02, 4 March 2002). According to a June 2002 report by the United Nations High Commissioner for Refugees (hereinafter “UNHCR”), despite its withdrawal from the Agreement, the RS Fund has continued to pay those pensioners already recognised as its beneficiaries. For its part, the Federation Fund has declared that it will continue to follow the Agreement and pay its beneficiaries now living in the Republika Srpska.

According to the June 2002 UNHCR report, the absence of harmonised legislation between the two Entities and the lack of state-level legislation regulating pension and other social benefits causes problems for displaced pensioners and returnees. Specifically, these problems arise from the different pension calculation schemes and different pension amounts in each Entity.

As a practical matter, a person who retired in Sarajevo and held a pension there before the armed conflict, but later began receiving pension payments from the RS Fund after displacement to the Republika Srpska, would continue, after returning to Sarajevo, to receive the lower pension payment from the RS Fund. Such a returnee, while receiving the smaller RS Fund pension, would also face a higher cost of living in Sarajevo than in the Republika Srpska. Moreover, such a returnee would receive a pension much lower than a person who had made similar pension contributions during their working life but remained in the Federation throughout the armed conflict.

Under various inter-state pension benefits agreements, some civil pensioners from the Federation of Bosnia and Herzegovina who moved to other countries during the armed conflict continue to enjoy their full pension rights from the Federation Fund. For example, under the Agreement on Social Insurance Between Bosnia and Herzegovina and the Republic of Croatia (OG BiH Supplement on International Agreements, No. 6/01, 11 October 2001), the responsible domestic insurer is obligated to pay full rights to a pension beneficiary, even if that person is residing in the other contracting state. According to UNHCR, no major problems are reported with regard to refugees from Bosnia and Herzegovina receiving their full pensions in Croatia. As of June 2002, similar agreements had been signed and implemented between Bosnia and Herzegovina and Austria and Turkey, while other such agreements were in the works. According to OHR, users of pensions from Bosnia and Herzegovina were receiving pensions in 23 countries (mostly in Croatia and Germany) in June 2002.

This disparity leaves no doubt that persons who were internally displaced during the armed conflict are, upon their return, treated differently. Each of the present applicants left Sarajevo in 1992 at the outset of the armed conflict. These applicants now receive smaller pensions simply because they left the Federation for a period of time, not on their own free will, to live in the Republika Srpska. Those who remained enjoy greater pension rights than those who left, even though they may have been identically situated before the armed conflict.

Indeed, it appears that the present applicants (and others who were internally displaced and have returned to the Federation) are in a worse position than Federation pensioners who moved to other countries during the armed conflict. Many Federation pensioners who moved to other countries during the armed conflict continue to enjoy full pension rights from the Federation Fund (see paragraph 16 above).

Moreover, the prospect of returning to live in the Federation (where the cost of living is higher than in the Republika Srpska) on a smaller RS Fund pension presents a significant obstacle to the return of displaced persons. The present applicants attest to these difficulties, and the Federation, in its observations, admits that they should have been aware of them (see paragraph 45 above). One of the important objectives of the settlement of the conflict in Bosnia and Herzegovina was to facilitate the return of displaced persons (see generally the General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7). The Chamber considers that displaced person status is a status relevant for the purposes of Article II § 2 (b) [of the Agreement on Human Rights] and further finds that the current situation regarding displaced persons’ pensions is inimical to the goals of Annex 7. The only reason put forward for the different treatment is the Pension Agreement, which, by its terms, makes displaced person status the basis for different treatment. But displaced person status cannot serve as a justification for disparate treatment, especially where, as here, it carries with it a connotation of discrimination on ethnic grounds. Under the circumstances, the Chamber concludes that the different, poorer treatment of the applicants with regard to their pension payments has no objective justification.”

The Human Rights Chamber made the following orders:

“98. The Chamber finds it appropriate to order the Federation of Bosnia and Herzegovina to take all necessary legislative and administrative actions by 10 July 2003 to ensure that the applicants are no longer discriminated against in their enjoyment of pension rights guaranteed by Article 9 of the International Covenant on Economic, Social and Cultural Rights, particularly in comparison to those pensioners who remained in the Federation during the armed conflict.

The Chamber further orders the Federation of Bosnia and Herzegovina to compensate each applicant for the difference between the pension that he or she would be due under the Pension Agreement between the pension funds and the amount the applicant would have received from the Federation Fund, from the date of his or her application to the Human Rights Chamber [i.e. from 28 February 2002] until the date of the Federation’s compliance with the remedy ordered in paragraph 98 [immediately above].”

In 2003 (the exact date has not been indicated) the applicant received 1,033.15 Bosnian markas (which corresponds to 528.24 euros) by way of compensation from the Federation of Bosnia and Herzegovina.

The applicant still receives his pension from the Republika Srpska. Since the pension legislation has not yet been harmonised between the two Entities, pensions in the Republika Srpska are still generally lower than in the Federation of Bosnia and Herzegovina. Furthermore, pensioners in the Republika Srpska, as opposed to pensioners in the Federation of Bosnia and Herzegovina, do not receive the nominal amount of their pensions, but approximately 80 per cent thereof (this is owing to the financial difficulties of the Entity).

The Agreement on Human Rights was signed by Bosnia and Herzegovina and its Entities on 14 December 1995, when it entered into force. The following are the relevant provisions:

Article I

“The Parties shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including the rights and freedoms provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and the other international agreements listed in the Appendix to this Annex...

Article II §§ 1 and 2

To assist in honoring their obligations under this Agreement, the Parties hereby establish a Commission on Human Rights (the ‘Commission’). The Commission shall consist of two parts: the Office of the Ombudsman and the Human Rights Chamber.

The Office of the Ombudsman and the Human Rights Chamber shall consider, as subsequently described:

a. alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, or

b. alleged or apparent discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status arising in the enjoyment of any of the rights and freedoms provided for in the international agreements listed in the Appendix to this Annex, where such violation is alleged or appears to have been committed by the Parties, including by any official or organ of the Parties, Cantons, Municipalities, or any individual acting under the authority of such official or organ.

Article XI § 6

The Parties shall implement fully decisions of the Chamber.”

On 10 November 2000 the Parties to the Agreement on Human Rights extended the mandate of the Human Rights Chamber until 31 December 2003. On the latter date the Human Rights Chamber and the Constitutional Court of Bosnia and Herzegovina merged. Special chambers were created within the Constitutional Court on an interim basis with a mandate to decide on cases received by the former Human Rights Chamber. From 1 January 2004 until 31 December 2006, the special chambers were named the “Human Rights Commission within the Constitutional Court” (see the agreement of 25 September 2003 published in the Official Gazette of Bosnia and Herzegovina (“OG BH”) no. 35/03 of 12 November 2003). Although the special chambers continued operating thereafter, they were no longer named the “Human Rights Commission within the Constitutional Court” (see the agreement of 16 January 2007 published in OG BH no. 43/07 of 11 June 2007). The special chambers were also entrusted with a mandate to examine complaints about non-enforcement of the decisions of the former Human Rights Chamber and to issue declarations in this connection (see Rule 62 of the Rules of Procedure published in OG BH no. 23/05 of 19 April 2005 and Rule 56 of the Rules of Procedure published in OG BH no. 38/07 of 22 May 2007). The declarations at issue certify that a decision of the former Human Rights Chamber was not fully enforced without affording any redress.

In accordance with Article 239 of the Criminal Code 2003 (Krivični zakon Bosne i Hercegovine; published in OG BH nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003; amendments published in OG BH nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006 and 32/07 of 30 April 2007), non-enforcement of a final and enforceable decision of the Human Rights Chamber amounts to a criminal offence:

“An official of the institutions of Bosnia and Herzegovina, of the Entities or of the Brčko District of Bosnia and Herzegovina, who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, of the Court of Bosnia and Herzegovina or of the Human Rights Chamber of Bosnia and Herzegovina, or who prevents the enforcement of any such decision, or who frustrates the enforcement of the decision in some other way, shall be punished by imprisonment for a term between six months and five years.”