Pecuniary and non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant, Dacia S.R.L., is a company incorporated under the laws of the Republic of Moldova.

In 1997 the Moldovan Parliament enacted legislation for the privatisation of certain items of State property, including the “Dacia” hotel. On 29 January 1999 the applicant company was declared the successful bidder in the auction held for the sale of the hotel. It paid 20,150,000 Moldovan lei (MDL) (2,305,043 United States dollars at the time). On 13 September 1999 the applicant company purchased from the Chişinău municipality the 0.21 hectares of land on which the hotel was situated, for MDL 50,840 (4,395 euros (EUR) at the time).

According to the applicant company, in the years following the purchase of the hotel large sums of money were spent on its renovation and the purchase of new furnishings and equipment.

On 11 January 2003 the Prosecutor General’s Office initiated court proceedings, seeking the annulment of the hotel’s privatisation and repayment to the applicant company of the price paid. On 6 June 2003 the Economic Court of Moldova accepted the Prosecutor General’s request and annulled the privatisation of the hotel. The court ordered the return of MDL 20,150,000 to the applicant company and the return of the hotel to the State.

The applicant company’s appeal was left without examination by the Supreme Court of Justice on 8 July 2003 because of a failure to pay court fees in full.

In separate proceedings, which ended with a judgment of the Supreme Court of Justice on 19 February 2004, the sale of the land underlying the hotel was also annulled.

The judgment of 6 June 2003 was fully enforced in instalments in the period between 13 April and 27 October 2004. The sum of MDL 20,150,000 was the equivalent of approximately EUR 1,342,590 in October 2004.

The applicant company initiated court proceedings against the Government, claiming compensation for damage caused to it as a bona fide buyer of the hotel. It paid MDL 484,733 in court fees. On 10 March 2005 the Appellate Chamber of the Economic Court of Moldova rejected these claims. On 4 May 2005 the Supreme Court of Justice dismissed the applicant company’s request for a court fee waiver owing to its inability to pay. It informed the applicant company that the appeal could not be examined on account of the failure to pay the court fees in full. The new time-limit for paying the court fees was 25 May 2005; the applicant company did not meet this deadline.

The applicant company hired an expert to make a valuation of the current market price of the hotel and underlying land. The expert explained that he was able to make the valuation only if he had access to the hotel itself and all its documents, including documents from the State-controlled real-estate register. Since the hotel is currently owned by the State, on 9 April 2008 the applicant company sought the assistance of the Government Agent’s office in ensuring the expert’s access to the hotel and the relevant documents. In a letter dated 23 April 2008 the Government Agent informed the applicant company that it should contact the hotel’s administration and the real-estate registry.

On 29 April 2008 the applicant company asked the hotel’s administration to allow the expert access to the hotel. In another letter on the same day, the applicant company asked the real-estate registry to allow its expert access to the relevant documents. In a letter dated 5 May 2008 the hotel’s administration informed the applicant company that permission from the Government was necessary in order to ensure access to the hotel. In a letter dated 15 May 2008 the real-estate registry informed the applicant company that it was not authorised to grant access to the requested documents, since it “did not offer such a service”.

On 8 May 2008 the Supreme Court of Justice made an attachment order, prohibiting the disposal of the hotel. On the same day, the applicant company asked the Government to allow its expert access to the hotel. It received no answer. On 11 May 2008 the applicant company informed the Government Agent about the situation and asked for his assistance in obtaining access to the hotel and the relevant documents. It also noted that the refusal to grant such access might be considered as a violation of its rights guaranteed by Article 34 of the Convention. The applicant company did not receive a reply to this letter.

On 29 April 2008 the applicant company lodged with the Supreme Court of Justice a request for the annulment of the judgment of 6 June 2003 and subsequent related judgments against it, referring to the principal judgment as a ground for its request. The applicant company also sought the attachment of the hotel’s building, land and bank accounts pending examination of its request.

At the first hearing of 12 June 2008 the parties were informed of a postponement of the hearing until 3 July 2008 in view of a request by the Government’s Agent. The applicant company asked for a copy of the request, which was refused. It then asked for access to the case-file and found no request from the Government’s Agent, who had not been a party to any of the domestic proceedings in 2003 and 2005.

Before the hearing of 3 July 2008, one of the judges on the bench of the Supreme Court of Justice examining the case was replaced by another judge. During that hearing the Government (plaintiff in the original domestic proceedings and current owner of the “Dacia” hotel) submitted its response to the applicant company’s request of 29 April 2008. They considered, in particular, that awarding the applicant company compensation in the amount of EUR 962,660.70 would constitute sufficient just satisfaction within the meaning of Article 41 of the Convention.

Before the next hearing on 17 July 2008 two judges on the bench of the Supreme Court of Justice examining the case were replaced by other judges. The examination of the case started anew. On 21 July 2008 the applicant company’s lawyer examined the case file in order to determine the reasons for the three replacements of judges in the case. He found no such explanation.

On 24 July 2008 the Supreme Court of Justice annulled the judgments of 6 June and 27 October 2003 and of 19 February 2004 against the applicant company (see the facts of the principal judgment for more details), and ordered a full re-hearing by the Appeals Chamber of the Economic Court. The proceedings are still pending before that court.

On 5 November 2008 the Court asked the parties to submit additional observations by 26 November 2008, limited to the issue of the value of the Dacia hotel, and directed the Government to allow the applicant company access to the hotel and its documents. The applicant company’s expert was then given access to the hotel and its documents.

The valuation submitted by the applicant company on 26 November 2008 was prepared by an expert with 30 years’ experience in intellectual property and business valuation and comprised 65 pages and a number of annexes. The final value of the hotel (MDL 98,700,000, approximately EUR 7,612,000) was calculated by using three separate methods of valuation.

On 26 November 2008 the Government asked for an extension until 2 December 2008 of the time-limit for submitting their valuation. However, they did not submit any observations by that date. They sent a “preliminary report” on 5 December 2008 on the value of the Dacia hotel. According to that “preliminary report”, made on 1 December 2008, the hotel was worth MDL 29,124,000 (EUR 2,219,191). The “preliminary report” included five pages, three of which were copies of licences held by the valuer, one page listed the “conditions and disclaimers” concerning the limits of the valuer’s liability and another described the name and address of the Dacia hotel and the amount at which it had been valued. No calculations were included. At the date adoption of its judgment, the Court had not received the final report of the valuer hired by the Government.

Article 619 of the Civil Code reads:

“(1) Default interest is payable for delayed execution of pecuniary obligations. Default interest shall be 5% above the interest rate provided for in Article 585 [National Bank of Moldova refinancing interest rate] unless the law or the contract provides otherwise. Proof that less damage has been incurred shall be admissible.

(2) In non consumer-related situations default interest shall be 9% above the interest rate provided for in Article 585 unless the law or the contract provides otherwise. Proof that less damage has been incurred shall be inadmissible.”


Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in 1935 and lives in Split. He is a pensioner.

The applicant submitted that his pension had been regularly adjusted in line with the increase in wages according to section 30 of the 1991 Pension Insurance Act (Zakon o osnovnim pravima iz mirovinskog i invalidskog osiguranja, Official Gazette no. 53/1991 of 8 October 1991).

On 19 February 1997 the Act on Adjustment of Pensions and Other Benefits from Pension and Invalidity Insurance Funds and on Management of the Pension and Invalidity Insurance Funds (Zakon o usklađivanju mirovina i drugih novčanih primanja iz mirovinskog i invalidskog osiguranja, te upravljanju fondovima mirovinskog i invalidskog osiguranja, Official Gazette no. 20/1997 of 19 February 1997 – “the Pension Adjustment Act”) entered into force, derogating, inter alia, section 30 of the 1991 Pension Insurance Act. Section 3 of the new law provided that the pensions were to be adjusted in line with the increase in living expenses.

On 12 May 1998 the Constitutional Court quashed certain provisions, including section 3, of the aforementioned 1997 legislation as unconstitutional. The Government submitted that, as a result thereof, 427,809 applications had been filed with the Croatian Pension Fund’s regional offices by those seeking adjustment of their pensions in accordance with the Constitutional Court’s decision, that is, in line with the increase in wages.

On 23 June 1998 the applicant applied to the Croatian Pension Fund, Split Office seeking adjustment of his pension for the period between August 1993 and June 1998.

Since the Split Office did not render a decision within the statutory time-limit of two months, on 25 August 1998 the applicant lodged an appeal for failure to respond (see paragraph 25 below) with the Croatian Pension Fund, Central Office as if his request had been denied.

Given that the Central Office also failed to decide on this appeal within the statutory time-limit of two months, on 5 November 1998 the applicant brought an action for failure to respond (see paragraph 26 below) with the Administrative Court (Upravni sud Republike Hrvatske) under the Administrative Disputes Act.

On 8 December 2000 the Pensions Increase Act (Zakon o povećanju mirovina radi otklanjanja razlika u razini mirovina ostvarenih u različitim razdobljima, Official Gazette no. 127/2000 of 20 December 2000) entered into force. Stating as its aim the implementation of the Constitutional Court’s decision, the Act increased the pensions of those retired before 31 December 1998. On 19 December 2001 the Constitutional Court refused to institute proceedings for abstract constitutional review of the Act.

On 28 December 2001 the Administrative Court adopted a judgment ordering the Central Office to decide on the applicant’s appeal within 60 days. It also instructed the Central Office to adjust the applicant’s pension for the period between January 1997 and June 1998 in line with the increase in wages, pursuant to the section 30 of the 1991 Pension Insurance Act, but also taking into consideration the increase already provided by the Pensions Increase Act.

On 5 March 2002 the applicant lodged a constitutional complaint challenging the Administrative Court’s judgment and complaining about the length of the proceedings. He argued that the court had instructed the Central Office wrongfully. He also alleged that the Croatian Pension Fund and the Administrative Court had failed to decide on his case within a reasonable time.

On 4 July 2002 the Constitutional Court declared the applicant’s complaint inadmissible. In respect of the Administrative Court’s judgment, it found the complaint premature since the administrative proceedings were still pending. In respect of the length of the proceedings, it held that the applicant had lodged the constitutional complaint when the case had already been decided; however that remedy could only be used while the proceedings before the Administrative Court were still pending.

Meanwhile, following the judgment of the Administrative Court of 28 December 2001, on 2 April 2002 the Central Office ordered the Split Office to issue a decision in the applicant’s case.

On 23 July 2002 the Split Office dismissed the applicant’s request. It held that it was not possible to adjust the applicant’s pension for the period and in the manner indicated by the Administrative Court since no subordinate legislation had been adopted enabling the Fund to calculate the exact amount of the applicant’s pension for that period in line with increase of wages. In any event, the applicant’s pension had been increased by the Pensions Increase Act, which had fully implemented the Constitutional Court’s decision of 12 May 1998. The applicant appealed.

On 21 October 2002 the Central Office dismissed the appeal.

On 29 November 2002 the applicant brought an action with the Administrative Court challenging the decision of the Central Office.

On 5 August 2004 the Act on the Implementation of the Constitutional Court’s Decision of 12 May 1998 (Zakon o provođenju odluke Ustavnog suda od 12. svibnja 1998., Official Gazette no. 105/2004 of 28 July 2004 – “the Implementation Act”) entered into force. Section 2 provides that retired persons whose pensions were reduced in the period between 1 September 1993 and 31 December 1998 (“the pensioners”) have a right to compensation calculated as a difference between the pension to which they had been entitled and the pension actually received during that period, taking into account the increases provided by the Pensions Increase Act. The compensation was to be obtained through a special fund that was to be established by subsequent legislation.

On 29 July 2005 the Pensioners Fund Act (Zakon o umirovljeničkom fondu, Official Gazette no. 93/2005 of 29 July 2005) entered into force. The Act provides that each pensioner has a right to a share in the Fund depending on the amount of compensation he or she is entitled to. In particular, section 41(1) provides that pensioners, who had already been compensated on the basis of a final and enforceable court decision, are not entitled to compensation from the Pensioners Fund. Section 41(2) provides that pensioners involved in pending administrative proceedings, instituted with a view to obtaining compensation (adjustment of their pensions), shall obtain that compensation pursuant to the Pensioners Fund Act.

On 29 December 2005 the Administrative Court gave judgment dismissing the applicant’s claim. It found that the applicant actually retired under a special statute regulating the pensions of military personnel and that therefore the Constitutional Court’s decision of 12 May 1998 had not mandated the increase of his pension. This had been confirmed by the subsequent legislation (see paragraphs 11, 19 and 20 above) implementing that decision. In any event, the legal gap that had followed the decision of the Constitutional Court had been overcome by that legislation. Therefore, the applicant’s claim for the adjustment of his pension would have already been satisfied by increases provided therein. The judgment was served on the applicant on 26 January 2006.

On 17 February 2006 the applicant lodged a constitutional complaint with the Constitutional Court against that judgment. The proceedings are currently pending before that court.

Article 29 § 1 of the Constitution (Ustav Republike Hrvatske, Official Gazette no. 41/2001 of 7 May 2001) reads as follows:

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:

“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual’s rights and obligations or a criminal charge against him or her within a reasonable time ...

(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”

The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette no. 53/1991 of 8 October 1991) provide as follows:

Section 218(1) provides that in simple matters, where there is no need to undertake separate examination proceedings, an administrative authority shall give a decision and serve it on a party within one month following the submission of an application. In all other, more complex cases, the authority shall give a decision and serve it on a party within two months.

Section 218(2) provides that a party whose application has not been decided and served within the time-limits set out in paragraph (1) may lodge an appeal (appeal for failure to respond, žalba zbog šutnje administracije) as if his or her application had been dismissed.

Section 247(1) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within two months following the submission of the appeal.

Section 246(1) provides that the second-instance administrative authority deciding on the appeal for failure to respond shall request the first-instance authority to give reasons for its omission. If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified, the second-instance authority shall order the first-instance authority to give a decision within one month. If it finds that the omission was not justified, it shall request the case-file.

Section 246(2) provides that if the case-file contains sufficient information, the second-instance administrative authority shall decide the case. Otherwise, it shall first hear the case and take evidence, and then give a decision. Exceptionally, if it considers that such a procedure would save time and costs, it shall order the first-instance authority to hear the case and take evidence within a specified time-limit, whereupon it shall decide the case itself. Such a decision shall be final.

The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provide as follows:

Section 26(1) provides that if the appellate authority fails to give a decision on a party’s appeal against the first-instance decision within sixty days, and fails to do so upon a repeated request within a further period of seven days, the party may bring an action in the Administrative Court (action for failure to respond, tužba zbog šutnje administracije), as if his or her appeal had been dismissed.

Section 26(2) provides that when the first-instance administrative authority fails to give a decision against which no appeal lies, the party may directly bring an action in the Administrative Court.

Section 26(3) provides that, in matters where the right of appeal exists, if a first-instance administrative authority fails to give a decision on a party’s application within sixty days, the party may submit his or her application to the appellate administrative authority. Against the latter authority’s decision the party may bring an action in the Administrative Court, and if the authority fails to give a decision, the party may bring an administrative action under the conditions set out in paragraph 1.

Section 42(5) provides that when the Administrative Court, following the action for failure to respond, finds for the plaintiff, it shall either instruct the respondent administrative authority how to decide the case on points of law, or shall itself rule on the application (acting as a court of full jurisdiction under paragraph 2 of section 64).

Section 64(1) provides that, in the execution of the judgment rendered under section 42(5), the administrative authority shall issue its decision immediately but at the latest within 30 days. Otherwise, a party may by a special submission request it to do so. If the authority does not issue a decision within seven days following that request, a party may apply to the Administrative Court.

Section 64(2) provides that if such an application is made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision entirely substituting for the decision of the administrative authority.

In case no. U-IIIA/635/2004 of 25 November 2004, the Constitutional Court was seized under Section 63 of the Constitutional Court Act to examine the length of administrative proceedings instituted in July 1996 when the complainant had brought an action in the Administrative Court for the Ministry of Defence’s failure to give a decision in his case. In October 1998 the Administrative Court ordered the Ministry to give a decision within 30 days. The Ministry gave a negative decision in July 1999. The complainant then brought a second administrative action, challenging that decision. In September 2000 the Administrative Court quashed the impugned decision and remitted the case. The Ministry again gave a negative decision and served it on the complainant in January 2004. On 18 February 2004 the complainant had brought a third administrative action, which was dismissed by the Administrative Court in June 2004. Meanwhile, on 25 February 2004 he lodged his constitutional complaint arguing that the Constitutional Court should, like the European Court of Human Rights, take into consideration the overall length of administrative proceedings when examining whether or not they exceeded a reasonable time.

Following its previous practice (decisions no. U-III-2467/2001 of 27 February 2002, and U-IIIA/3638/2003 of 18 February 2004), the Constitutional Court held that only the inactivity of the judicial authorities was relevant for a breach of Article 29 § 1 of the Constitution. In its view it was not possible for proceedings before the administrative authorities to last unreasonably long because the statutes regulating those proceedings contained the presumption that the application had been dismissed if the administrative authorities failed to give a decision within the statutory time-limits (see paragraphs 25 and 26 above). The Constitutional Court therefore examined only the length of the proceedings in their part between the introduction of the complainant’s third action in the Administrative Court and the lodging of the constitutional complaint. It dismissed the constitutional complaint finding that the proceedings had lasted only seven days.


Preliminary objections dismissed (ratione personae, non-exhaustion of domestic remedies);Remainder inadmissible;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

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

On 12 October 1989 the first applicant concluded a joint venture agreement with the “Hotel Intercontinental Belgrade”, concerning the setting-up and joint operation of a casino on its premises.

At that time, the said hotel was owned by “Generalexport” (hereinafter “Genex”), a major “socially-owned company” (see paragraph 70 below) with an annual turnover in excess of seven billion US Dollars (“USD”).

Article 12 of the joint venture agreement provided that the first applicant was entitled to collect 80% of any earnings made as part of the joint operation of the casino in question, whilst Genex had the right to collect the remaining 20% thereof. Article 19 of the agreement, however, stated that Genex would, in any event, be entitled as guaranteed minimum earnings to a payment of no less than USD 500.000 annually by the first applicant.

The casino opened in October 1990. By 1993, however, it closed due to various financial difficulties, and a number of disputes between the parties followed.

In 1995 the first applicant brought proceedings against Genex before the Foreign Trade Arbitration Court of the Yugoslav Chamber of Commerce (hereinafter the “Arbitration Court”), seeking repossession of the casino as well as compensation for breach of contract.

On 10 April 1996 the Arbitration Court, having resolved issues regarding the first applicant's status, ruled partly in its favour. Specifically, Genex was ordered to: (a) pay compensation in the amount of USD 1,999, 992, plus 6 % interest, on account of the first applicant's inability to operate the casino in question between 1 April 1995 and 31 March 1996; (b) allow the first applicant to retake possession thereof; and (c) effectively manage its operation for five years after reopening it. The sum of USD 1,999,992, i.e. USD 166,666 monthly, was arrived at by multiplying Genex's minimum annual earnings on the basis of the agreed ratio (see paragraph 9 above).

On 7 June 1996 the Commercial Court in Belgrade ordered the enforcement of the arbitration award of 10 April 1996, in its entirety.

Following several suspensions and adjournments, on 15 October 1997 the National Bank of Yugoslavia informed the Commercial Court that USD 1,672,437.06 had been transferred to the first applicant's bank account.

On 4 May 1998 the Commercial Court ordered the payment of the remaining USD 618,542.23, together with the interest accrued.

By 6 May 1998 the debtors, Generalexport and International CG as two successor companies of the original Genex company, appear to have fully complied with this order.

On 22 March 2004 the first applicant requested repossession of the casino and sought to be allowed to effectively manage it for a period of five years after reopening it.

Following three oral hearings, on 28 May 2004 the Commercial Court accepted this request and ordered the debtors to comply therewith.

On 30 November 2004 the Constitutional Court of the Republic of Serbia dismissed the applicants' motion to order the full and effective enforcement of the arbitration award, stating that it did not have the competence, ratione materiae, to consider complaints alleging individual human rights violations.

On 3 December 2004 the Commercial Court fined the debtors for their failure to comply with the repossession order and mandated repossession within an additional period of thirty days. Initially, the fine imposed was 45,000 Dinars (“RSD”) per debtor (approximately USD 770), but on 7 December 2004 this amount was reduced to RSD 20,000 each (approximately USD 340).

In 2005 the applicants filed a complaint with the Court of Serbia and Montenegro.

Between 25 May 2005 and 24 October 2006 the Commercial Court fined the debtors for their failure to comply with the repossession order on eight separate occasions. The fines imposed totalled RSD 320,000 (approximately USD 4,770).

On 24 October 2006 the Commercial Court terminated the enforcement by means of imposing fines, noting that the maximum statutory amount had been reached in accordance with the Enforcement Procedure Act.

On 4 December 2006 this decision was confirmed.

On 30 July 2007 the Commercial Court rejected the first applicant's subsequent request for it to impose additional fines on the debtors.

On 29 November 2007 this decision was confirmed.

On 10 March 2008 the Commercial Court noted that on 9 August 2007 the Privatisation Agency had ordered the restructuring of the debtors and stayed the enforcement proceedings until the conclusion of this process.

In 1996 Genex instituted civil proceedings before the Commercial Court in Belgrade, seeking annulment of the arbitration award. Once again, it raised issues regarding the first applicant's status.

On 23 June 1997 the Commercial Court rejected this claim, as did the High Commercial Court on 25 May 1997 and, ultimately, the Supreme Court of Serbia on 24 December 1997, at third and final instance.

On 5 February 2002 Generalexport and International CG filed a request for the reopening of the annulment proceedings.

Following two remittals, on 4 October 2006 the Commercial Court rejected this request. In so doing, inter alia, it noted that the issues raised by the plaintiffs had already been considered, in one form or another, within the impugned annulment suit.

On 21 November 2007 the High Commercial Court confirmed this decision on appeal.

Following prior remittals, on 27 June 2001 the Commercial Court ruled partly in favour of the first applicant. Generalexport and International CG were thus ordered to pay a total of USD 4,333,333.16, plus interest, on account of the first applicant's inability to operate the casino between 1 April 1996 and 31 May 1998.

On 6 September 2001 the High Commercial Court upheld this judgment, and it thereby became enforceable.

On 30 January 2002 the Supreme Court reduced the amount awarded to USD 1,083,332, plus interest. It estimated the lost earnings only on the basis of the respondent's minimum annual profit, as stipulated in the joint venture agreement (see paragraph 9 above).

In the meantime, on 24 September 2001, the first applicant sought enforcement of the judgment rendered on 27 June 2001, by means of a bank account transfer.

On the same day the Commercial Court issued an enforcement order.

On 14 February 2002 the Commercial Court terminated the enforcement proceedings. In so doing, it noted that, notwithstanding the fact that the Supreme Court had subsequently reduced the compensation awarded to USD 1,083,332, plus interest, approximately USD 700,000 in excess of this amount had already been transferred to the first applicant's bank account.

Following prior remittals, on 3 March 2005, and as rectified on 8 September 2005, the Commercial Court ruled partly in favour of the first applicant. It thus ordered Generalexport and International CG to pay a total of USD 1,426,666.60, plus interest, on account of the first applicant's inability to operate the casino between 1 June 1998 and 1 April 2001. This time, the Commercial Court also estimated the lost earnings on the basis of Genex's minimum annual profit only, as stipulated in the joint venture agreement.

On 21 February 2006 the High Commercial Court upheld this judgment, and it thereby became enforceable.

On 27 June 2007 the Supreme Court rejected the appeals on points of law (revizije) filed by the parties.

In the meantime, on 24 March 2006, the first applicant sought enforcement of the judgment rendered on 3 March 2005 by means of a bank account transfer.

On 27 March 2006 the Commercial Court issued an enforcement order.

The enforcement proceedings would appear to be still pending.

In January 2002 the Second Public Prosecutor's Office in Belgrade charged the second applicant with forgery. In particular, it was alleged that he had made fraudulent statements regarding the first applicant's status under Congolese law, and had forged several powers of attorney in order to get involved in the above proceedings.

On 17 January 2002 the second applicant was placed in pre-trial detention but by 22 February 2002 he was released.

On 9 July 2004 the Second Municipal Court in Belgrade terminated the criminal proceedings against the second applicant. It stated that the first applicant was indeed a registered entity under Congolese law, that the impugned powers of attorney were authentic, and that there was no evidence whatsoever indicating that the second applicant had committed a crime.

Additional criminal proceedings, concerning related “fraud and forgery issues”, were terminated on similar grounds by the District Court in Belgrade on 7 November 2003.

On an unspecified date the Hotel Intercontinental was renamed the Hotel Continental.

On 8 November 1994 the second applicant bought from G.J., at that time the first applicant's sole owner, “a part of the first applicant” consisting of all of its rights and pecuniary interests derived from the joint venture agreement of 12 October 1989. The second applicant thus became “the owner of this part of the company”, as well as the first applicant's “Director and President” in all matters related to Generalexport.

On 6 April 2002 the High Court in Kinshasa confirmed that, as of 19 May 1996, the second applicant held 25% of the first applicant's shares and was its Deputy General Manager.

The first applicant's Articles of Association, as certified in December 2002, reaffirmed the above and noted that the second applicant was indeed the first applicant's sole representative in respect of all matters concerning the joint venture in question.

On 21 December 2005 the Ministry of Finance issued a statement informing the public that an exclusive gambling licence had been granted to a company called Grand Casino. The licence had been issued for a period of ten years in respect of a casino to be located in Belgrade.

On 27 August 2007 the first applicant informed the Privatisation Agency about its outstanding claim in respect of Generalexport and International CG.

On 24 March 2008 the first applicant sent another warning letter to the Privatisation Agency.

On 29 April 2008, however, International CG, following a public competition organised by the Privatisation Agency, sold some of its real estate to NBGP Properties. One of the buildings sold was the Hotel Continental. Article 8.1.2 of the sales contract provided, inter alia, that the buyer shall not, within a period of seven years, be entitled to mortgage or otherwise burden the hotel, unless it obtains prior written authorisation to this effect from the Privatisation Agency.

Despite the restructuring and sale of some of their assets, Generalexport and International CG are themselves still socially-owned companies.

Article 4 § 1 provides that enforcement proceedings are urgent.

Articles 16 and 17 § 1 explicitly recognise arbitration awards as valid legal bases for the formal institution of enforcement proceedings.

Article 23 states that enforcement proceedings shall also be carried out at the request of a claimant not specifically named as the creditor in the final court decision, providing the former can prove, by means of an “official or another legally certified document”, that the entitlement in question has subsequently been transferred to it from the original creditor. This provision shall, mutatis mutandis, also be applied in respect of a debtor who has not been specifically named as such in the final court decision at issue.

Articles 202-207 regulate enforcement in situations where a debtor's compliance is required: in particular, where a debtor has been ordered to perform a certain action, desist therefrom or accede thereto. The system provides for the successive imposition of fines up to a certain maximum which, if the debtor happens to be a natural person and the fines cannot be enforced, may ultimately be converted into a number of prison days.

The substance of Article 37 of this Act corresponds, in the relevant part, to that of Article 23 of the Enforcement Proceedings Act 2000 referred to above.

The Enforcement Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Enforcement Procedure Act 2000. In accordance with Article 304, however, all enforcement proceedings instituted prior to 23 February 2005 are to be concluded pursuant to the 2000 legislation.

Pursuant to Article 483 § 1, an arbitration award has the force of a final judgment in respect of the parties to the proceedings, unless the arbitration agreement itself provides for an appeal to a higher instance.

Articles 484, 485 and 486 set out the deadlines and the specific grounds for the annulment of an arbitration award, which can only be sought through the institution of a separate civil suit before a “regular” court of law.

Article 64 § 1 provides that a domestic arbitration award shall have the force of a final domestic judgment and shall be enforceable.

This Act entered into force in June 2006 and thereby repealed the above-cited provisions of the Civil Procedure Act.

Articles 19-20e set out the details as regards the restructuring of companies about to be privatised. This restructuring, however, is optional and a company may be sold without having been restructured if the Privatisation Agency so decides.

Article 20ž provides, inter alia, that all enforcement proceedings instituted in respect of companies undergoing restructuring shall be stayed until the conclusion of this process.

The relevant provisions of this legislation are set out in the R. Kačapor and Others v. Serbia judgment (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 68-76, 15 January 2008).


The applicant, Mr Franz Fischer, is an Austrian national, who was born in 1974 and lives in Wilhelmsburg. He was represented before the Court by Mr S. Gloss, a lawyer practising in St. Pölten.

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

On 29 May 2001 the European Court of Human Rights delivered a judgment in a case which had been introduced by the applicant (Franz Fischer v. Austria, no. 37950/97, unreported). It found a violation of Article 4 of Protocol No. 7 in that the applicant had consecutively been tried and punished for two offences containing the same essential elements, first by the administrative authority for the offence of drunken driving under section 5 (1) and 99 (1) (a) of the Road Traffic Act and, after that decision had become final, by the Criminal Court for causing death by negligence with the special element under Article 81 § 2 of the Criminal Code of “allowing himself to become intoxicated”, whereby intoxication is irrebuttably presumed where a person’s blood alcohol level is above 0.8 grams per litre.

On 30 May 2001 the applicant filed an application with the Supreme Court under Article 363a of the Code of Criminal Procedure (see below), requesting a retrial.

On 30 October 2001 the applicant requested the Supreme Court to hold a hearing.

On 22 November 2001 the Supreme Court dismissed the application without holding a hearing.

The Supreme Court found that the requirements of Article 363a of the Code of Criminal Procedure were not met, as the Franz Fischer v. Austria judgment had not established that there had been a violation of Article 4 of Protocol No. 7 “on account of a decision of a criminal court”. In reaching this conclusion the Supreme Court had regard to the Court’s reasoning whereby the question whether or not the non bis in idem principle was violated concerned the relationship between the two offences at issue but not the order in which the two sets of proceedings were conducted, and that the Contracting State remained free to determine which of the two offences was to be prosecuted.

The Supreme Court’s decision was served on 17 January 2002.

Under the heading “retrial” (Erneuerung des Strafverfahrens) the Code of Criminal Procedure (Strafprozeßordnung) provides as follows:

“1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Bundesgesetzblatt [Official Gazette] no. 210/1958) or of one of its Protocols on account of a decision or order of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the content of a criminal court’s decision in a manner detrimental to the person concerned.

All applications for a retrial shall be decided by the Supreme Court. ...”

“1. On an application for a retrial, the Supreme Court shall deliberate in private only where the Procurator General or the judge rapporteur proposes that a decision be taken on one of the grounds set out in paragraphs 2 and 3.

Where the Supreme Court deliberates in private, it may refuse an application

if it unanimously considers the application to be manifestly ill-founded.


Violation of Art. 10;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in 1963 and lives in Yaroslavl. She is a journalist on the Zolotoye Koltso newspaper.

On 17 January 2003 the newspaper published an article by the applicant under the headline “A year later they impounded the car” («Через год арестовали автомобиль»). The article was prompted by the following letter written by a Ms P. and reproduced in italics in the opening passage of the article:

“On 22 September 2001 my husband... had a traffic accident. Ms Galina Borisovna Baskova, a judge of the [Yaroslavl] regional court, crashed into his car... The traffic police officers did not find us responsible and we calmed down. But the following year we received by registered mail a statement of claim, requesting that Ms Baskova be compensated for damage in the amount of 75,000 roubles, and an order for a charge on our property and our car issued by a judge. We had not been informed of the hearing and we consider that our civil rights were violated as we were convicted in our absence. We feel that Ms Galina Borisovna Baskova is taking advantage of her office and connections in the judiciary”.

The article related the versions of the traffic accident by Judge Baskova (as described in her statement of claim), by traffic police officers, by Mr and Ms P. and by eyewitnesses. It concluded as follows:

“So far the Zavolzhskiy District Court [of Yaroslavl] has held three hearings... The date of the next hearing is not fixed yet. Mr and Ms P. remember menacing words that Galina Borisovna [Baskova] uttered immediately after the traffic accident ‘You will buy me a new car anyway!’; they shudder but they will defend themselves to the very end.”

On 7 March 2003 Judge Baskova sued the newspaper, the applicant and Ms P. for defamation and refutation of untrue information contained in the statement “Baskova is taking advantage of her office and connections in the judiciary”.

On the same day Judge Baskova requested the court to order interim measures, and notably an interlocutory injunction on the newspaper to prevent publication of “any articles, letters or materials about the factual circumstances of the traffic accident of 22 September 2001, as well as about the court proceedings concerning that accident until they [had] finished”.

On the same day a judge of the Kirovskiy District Court of Yaroslavl issued a decision to indicate interim measures (определение об обеспечении иска). The decision endorsed the arguments put forward by Judge Baskova and read, in its entirety, as follows:

“The plaintiff has referred to the following circumstances. The article ‘A year later they impounded the car’ (Zolotoye Koltso, no. 9, 17 January 2003) was published before a decision on the merits of her claim for damages against Mr P. had been issued, after the Zavolzhskiy District Court of Yaroslavl had suspended the proceedings on 9 December 2003 and commissioned a technical study at the defendant’s request. The article ends with the assertion that Mr and Ms P. ‘will defend themselves to the very end’. The plaintiff considers that further developments in the judicial proceedings – upon their resumption – may also be reported by the newspaper in such a manner as to confirm the damaging information and conclusion already disseminated by the author.

[The plaintiff] considers that under these circumstances a failure to indicate interim measures can impede the enforcement of the judgment [in the defamation claim]: otherwise, alongside with publication of a rectification of the information damaging to her, the newspaper would be entitled to continue publications stating the opposite view, which would undermine the judicial protection of her impaired rights.

Pursuant to Article 139 of the Civil [Procedure] Code of the Russian Federation, a court may, at a request of a party to the case, indicate interim measures if a failure to indicate them could impede the enforcement of a court judgment.

Having regard to the above, I consider that Ms Baskova’s request is to be granted.”

The District Court issued – with immediate effect – an interlocutory injunction worded as follows:

“To enjoin the editor’s office of the Zolotoye Koltso newspaper from publishing any articles, letters or other materials written by anyone, which relate the factual circumstances of the traffic accident on 22 September 2001 with the participation of Ms Galina Baskova, Mr P. and Mr K., or the circumstances of the judicial proceedings on Ms Galina Baskova’s claim for damages against Mr P. until such time as the present dispute has been resolved.

To serve a copy of the injunction on the bailiffs’ service of the Kirov District of Yaroslavl, Ms P., the editor’s office of the Zolotoye Koltso newspaper, the newspaper’s reporter Ms Yelena Obukhova, and Mrs Galina Baskova.”

On 7 April 2003 the Yaroslavl Regional Court dismissed the appeal against the injunction, finding as follows:

“The regional court considers that in the instant case a failure to indicate interim measures would impede not only the enforcement of the court judgment but also the examination of the [defamation] action.

The arguments in the appeal to the effect that the [injunction] violated the defendant’s constitutional right to impart information cannot be taken into account as the prohibition only covers publication of materials concerning one specific traffic accident... Publication of materials about these facts before the judgment has been made would be contrary to the interests of the justice. The interim measures indicated by the court are proportionate”.

On 29 April 2003 the Kirovskiy District Court gave judgment in the defamation claim. It did not accept the argument by the newspaper’s lawyer that the contested statement was Ms P.’s subjective opinion which was evident from the introductory expression “we feel that”. The court considered it to be “the author’s allegation... about Ms Baskova’s using her office and connections... in the framework of lodging her claim and obtaining interim measures”. As the defendants could not prove the truthfulness of that statement, the court ordered publication of a rectification in the newspaper. On 26 June 2003 the Yaroslavl Regional Court upheld that judgment.

The Code of Civil Procedure provides as follows:

“At the request of a party to the case, a judge or a court may indicate interim measures. Such measures may be indicated at any stage of the proceedings if a failure to indicate them could impede or make impossible the enforcement of the court judgment.”

“1. Interim measures may include:

(2) an injunction restraining the defendant from carrying out specific actions;

When necessary, a judge or a court may indicate any other interim measures that correspond to the purposes described in Article 139 of the Code...

Interim measures must be proportionate to the plaintiff’s claims.”

“3. ...If the claim has been granted, interim measures remain effective until the judgment has been enforced.”


Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 6 - Right to a fair trial

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

The applicant was born in 1961 and lives in Diyarbakır. He is the owner of a grocery shop in Diyarbakır which he runs with his brother.

According to the arrest report, drafted on 15 February 2001 at around 10.45 a.m. and signed by the applicant and his brother, police officers had received information that shopkeepers on Bal Street were not opening their shops as a protest to mark the second anniversary of the arrest of Abdullah Öcalan, the leader of the PKK (the Kurdistan Workers' Party), an illegal armed organisation. When the officers arrived at the street in question they asked the applicant and his brother to open their shop. The applicant and his brother swore at them and shouted slogans. In the meantime, a small crowd of children and women had started to throw stones at the police cars. The police officers requested, via wireless radio, reinforcements from the police station. Two police officers sustained injuries while trying to arrest the applicant and his brother. The police officers then used force to subdue the applicant and his brother before arresting them for obstructing an official in the course of his duties. It is also stated that the suspects reached for the gun of one of the police officers. It appears that five police officers took part in the applicant and his brother's arrest.

In his application form the applicant submitted that, on 15 February 2001, before he had opened the shutters of his shop, a number of police officers arrived and started smashing the shop shutters and windows with sledgehammers. When the applicant and his brother attempted to stop the police officers, they were beaten up, arrested and subsequently placed in police custody.

According to a medical report drawn up at the Diyarbakır branch of the Forensic Medicine Institute the same day, at 2.20 p.m., there was a light 4 x 1cm reddish bruise and a traumatic oedema on the front of the applicant's left arm. There was also another red-coloured bruise, measuring 15 cm by 3cm, on the outside of his left thigh.

The same doctor also found a number of injuries on the applicant's brother, including a 1 x 1 cm wound on the right parietal region, a 4 x 1 cm bruise on the right side of his neck, a 10 x 3 cm bruise on the right side of his lower back and left shoulder, slight erosion on his right wrist and a number of superficial grazes.

In the meantime, on the same day, two of the police officers were examined first at the State Hospital, and later at the Diyarbakır branch of the Forensic Medicine Institute.

According to the medical report drawn up at the State Hospital, at 10.50 a.m., police officer M.A.A. had sustained a haematoma on his left eye, had redness and sensitivity on the right side of his chest, a haematoma and swelling on his left hand and a swelling and superficial graze on his right hand. At 1.30 p.m. Mr M.A.A. was examined at the Forensic Medicine Institute, where the doctor found that the police officer had sustained a haematoma on his left eye and a traumatic oedema on his left cheek, pain and sensitivity on his left hand and the right side of his ribs and that he had slight erosion on the right hand.

According to the medical report drawn up at the State Hospital, at 10.50 a.m., police officer H.A.K. had a broad patch of redness on the right side of his neck and shoulder region. At 1.30 p.m. he was examined at the Forensic Medicine Institute, where the doctor found that the police officer had a number of reddish bruises on the right and front of the neck and felt pain and sensitivity in the right shoulder.

On 17 February 2001 the prosecutor at the Diyarbakır State Security Court granted the police authorisation to detain the applicant and seven other suspects who had been detained for similar acts on that date for an additional period of two days.

On 18 February 2001, while he was still being detained in police custody, the applicant was questioned. In the minutes of the questioning, the applicant was recorded as having stated that he sympathised with the policies of the PKK. On 13 February 2001 he had found a leaflet on the floor outside the shop that had been prepared and distributed by the PKK, inviting local businesses not to open their shops on 15 February. Following this invitation, he had intended not to open his shop until 1.30 p.m. He stated that he had followed such instructions in the past.

On 19 February 2001 the applicant was examined by a doctor at Diyarbakır State Hospital who noted a 5 cm bruise on the front of his right arm, a 10 cm bruise on the top of his left foot and a 5 cm bruise on his left thigh.

The same day the applicant was brought before the prosecutor at the Diyarbakır State Security Court and then before the duty judge at the same court, where he retracted the statement he had made in police custody and said that he had merely been late in opening his shop on 15 February because he had guests at his house; he had not been protesting at all. In the statement taken by the prosecutor, the applicant was recorded as having said that “he had been beaten up by the police officers but he did not wish to make a complaint”. Before the duty judge the applicant claimed that a police officer named A.K. had hit him with a truncheon when he had tried to prevent the latter from breaking his door down, and that he had neither hit any of the police officers nor shouted any slogans. The duty judge ordered the applicant's remand in custody.

On 21 February 2001 the prosecutor at the Diyarbakır State Security Court filed an indictment charging the applicant and his brother with the offence of aiding and abetting an illegal organisation, under Article 169 of the Criminal Code.

On 26 February 2001 the criminal proceedings before the Diyarbakır State Security Court (hereinafter “the SSC”) commenced.

In the meantime, on 20 February 2001 the applicant submitted a written petition to the trial court requesting his release. In particular, he claimed that, during his arrest, the police had beaten him and his brother with truncheons, but that he was not complaining about any particular police officer.

On 26 April 2001 the SSC held its first hearing, when it heard evidence from the accused, the police officers and defence witnesses. The applicant claimed, inter alia, that the police officers had tried to break the shutters of his shop with a sledgehammer and that, when he had tried to prevent them, by holding the sledgehammer, they had beaten and arrested him. He also retracted his statements given to the police on the ground that he had signed them without reading them. The four defence witnesses heard by the court stated that they had not seen the applicant shouting, resisting or swearing at the police or a crowd of people throwing stones at the police. Two of the four defence witnesses stated that the applicant had been beaten during his arrest.

The police officers who had arrested the applicant reiterated that the applicant and his brother had refused to open the shutters of their shop and that when, in accordance with the order from the Governor, they had tried to break open the shutters, the applicant and his brother had sworn at them and attacked them. They stated that a crowd of people had been shouting and swearing and attacking them, but that by the time the reinforcements arrived they had all dispersed; only the applicant and his brother had been arrested.

In hearings held on 7 and 28 June 2001 both the prosecutor and the applicant's representative stated that they did not want an additional investigation. On the latter date the trial court released the applicant pending trial. It also decided to hear all the witnesses once again in order to dispel factual contradictions. After having reheard two of the defence witnesses, one of whom altered his testimony, on 21 November 2001 the trial court considered that, although certain inconsistencies remained, the facts had been sufficiently elucidated.

On 28 February 2002 the trial court found the applicant guilty as charged and sentenced him to three years and nine months' imprisonment. The applicant's brother was acquitted.

The applicant appealed and asked the Court of Cassation to hold a hearing. In his grounds of appeal the applicant claimed, in particular, that his statements given to the police had been taken under duress. He reiterated that, during the arrest, he and his brother had been beaten by the police officers, as attested by eyewitnesses, whereas there was no evidence that he and his brother were responsible for the injuries sustained by the police officers.

In his written observations submitted to the Court of Cassation, the prosecutor asked for the conviction to be quashed as the applicant's guilt had not been proved beyond reasonable doubt.

On 11 November 2002 the Court of Cassation, observing that the applicant's lawyer was absent, decided not to hold a hearing and upheld the applicant's conviction.

On 26 August 2003 the applicant was released from prison.

On 16 October 2003, upon a request by the applicant to benefit from Law no. 4959, the Diyarbakır State Security Court reviewed its previous decision and found that the applicant's conviction and sentence met the requirements of this Law. Accordingly, it “annulled” the applicant's conviction and sentence. Since no one objected to that decision, it became final on 24 October 2003.

A description of the relevant domestic law at the material time can be found in the Eser Ceylan v. Turkey judgment, (no. 14166/02, § 19, 13 December 2007), and the Göç v. Turkey judgment ([GC], no. 36590/97, § 34, ECHR 2002-V).

Law no. 4959 (the Law on Reintegration into Society), which entered into force on 6 August 2003, provided for amnesties under certain conditions and reduced sentences for members of terrorist organisations.


CASE OF BISERICA ADEVARAT ORTODOXA DIN MOLDOVA v. MOLDOVA

Violation of Art. 9;Violation of P1-1;Violation of Art. 13+9;Not necessary to examine Art. 14+9;No separate issue under Art. 6 and 11;Non-pecuniary damage - financial claim;Costs and expenses partial award - Convention proceedings

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

The applicants joined together to form the “True Orthodox Church in Moldova” (“the Church”) and applied for registration by the Government on the basis of the Religious Denominations Act (Law no. 979-XII of 24 March 1992). When the authorities refused to register the Church by letter of 29 November 2000, the applicants initiated court proceedings.

On 30 August 2001 the Court of Appeal accepted their claim and ordered the Government to register the Church. The court also awarded each of the applicants 1,000 Moldovan lei (approximately 85 euros (EUR) at the time) in compensation for the non-pecuniary damage suffered.

On 29 May 2002 the Supreme Court of Justice upheld that judgment, finding that the Government had not submitted any evidence that the Church would harm public order, health or morals. That judgment was final and enforceable.

The applicants subsequently made requests for the enforcement of the final judgment. In turn, the Judgments Enforcement Department made requests to the Government to comply with the judgment, to no avail.

On 12 July 2002 the Religious Denominations Act was amended and the procedure for the registration of religious denominations was simplified. On the basis of these amendments, on 7 August 2002 the applicants asked the “State Organ for the Protection of Religious Denominations” to register the Church. They relied on Article 14 of the above-mentioned law (as amended on 12 July 2002, see below) and on the final judgment in their favour ordering the Church’s registration.

By letter of 23 August 2002 the State Service for the Protection of Religious Denominations (“the Service”) rejected that request because it “had not received any request for the registration of any religious denomination”. The Service could not register the Church until the relevant State Registry had been established and the necessary documents had been filed with it. On 22 November 2002 the applicants submitted the relevant documents to the Service.

On 24 August 2004 the Decisions Enforcement Department (“the Department”) sent the enforcement warrant for enforcement to the Service. By its letters of 1 and 11 November 2002 and 14 March 2003 the Department requested the Service to comply with the judgment of 30 August 2001.

In a letter of 14 March 2003 the Service replied to the Department that the applicants had refused to re-submit documents requested from them and to explain certain parts of the statute of the Church regarding its canonical subordination to foreign churches.

On 20 March 2003 an officer working for the Department found that the judgment of 30 August 2001 had not been enforced and asked the court to sanction those responsible for the non-enforcement. The officer sent additional requests to the Department and the Buiucani District Court on 16 May, 18 June, 24 October and 6 November 2003, again asking that those responsible for the non-enforcement be punished.

The Government made three attempts to re-open the proceedings by claiming the discovery of new and relevant information which had not been previously known. These requests were rejected by decisions of the Court of Appeal on 7 May 2003 and the Supreme Court of Justice on 1 October 2003 and 20 October 2004.

In June 2004 the applicants submitted a new request and a set of accompanying documents, requesting the registration of the Church. They received no reply.

The pecuniary part of the judgment of 30 August 2001 was enforced on 27 July 2005.

The relevant domestic law has been set out in the cases of Metropolitan Church of Bessarabia and Others v. Moldova (no. 45701/99, §§ 89-93, ECHR 2001XII) and Prodan v. Moldova (no. 49806/99, § 31, ECHR 2004III (extracts)).

In addition, the relevant provisions of the Law for the amendment of the Religious Denominations Act (no.1220, 12 July 2002) read as follows:

“Article I

Article 14 shall have the following text:

‘Article 14. Recognition of cults.

In order to be able to organise themselves and to function, a religious denomination shall submit to the State authority [dealing with] religious denominations a declaration on their functioning and organisation, annexing their statute (by-laws) for their organisation and functioning including information about the system of administration and functioning, together with the fundamental principles of its faith.

The declaration mentioned [above] shall be submitted to the State authority for religious denominations, which shall make a registration in the Registry of religious denominations within 30 working days from the date of submission of the declaration.’

... Article III

(2) Requests for registration which were pending at the date of entry into force of the present Law shall be considered to be declarations within the meaning of Article 14 of the Law on Religious Denominations and shall be examined in accordance with the provisions of that Article.”


GALENA VRANISKOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Christos Rozakis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant, Mrs Galena Vraniškoska, is a Macedonian national who was born in 1939. The applicant lives in Bitola. She submitted the application in her name and on behalf of Mr Argil Vraniškoski, her late husband, who died on 30 October 2005. The applicant was represented before the Court by Mr V. Georgiev, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.

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

Under a sales agreement of 1980, the applicant obtained title to agricultural land in a place called Kosa Tumba, near Bitola. According to the applicant, in 2002 the land authorities issued a certificate attesting that the plot in issue was outside the area designated for construction (надвор од градежен реон). On that property, the applicant and her husband constructed a weekend house and garage without a building permit, as was the case with houses built by other individuals in Kosa Tumba. The applicant lives in an apartment in Bitola. On an unspecified date in October 2003, they also started constructing a house of worship and supporting walls (hereafter referred to as “the structures”).

On 7 October 2004 an inspector from the Ministry of Transport and Communications (hereafter “the Ministry”) carried out an on-site inspection of the property. A report was drawn up according to which the applicant and her husband had started building the structures without a building permit. The Ministry ordered them to demolish the structures immediately under threat of a forcible demolition (“the demolition order”). Referring to the on-site inspection and the report that had been drawn up, it stated that they had started building the structures without a permit. Under the order, the demolition costs were to be borne by the applicant and her husband. It relied on section 39 § 3 of the Construction Law, as valid at the material time, under which an appeal against the order would not have had suspensive effect (see “Relevant domestic law” below).

In a separate decision, the Ministry decided that the demolition order had become enforceable (“the enforcement order”). It ordered the applicant and her husband to destroy the structures immediately. It reiterated that they were to bear the costs of demolition and that an appeal would not have a suspensive effect. In this context, it referred to section 270 § 2 (3) of the Administrative Proceedings Act of 1986 (“the Act”, see “Relevant domestic law” below), as valid at that time.

The Government submitted copies of two delivery receipts (“the receipts”, доставници) according to which on 8 October 2004 the demolition and enforcement orders were served, in the applicant’s apartment, on a minister (свештеник) who had refused to identify himself and to give information about the applicant’s whereabouts. The minister had also refused to sign the receipts. Both receipts were dated and signed by a bailiff.

On 14 October 2004 the Ministry issued an announcement informing the applicant that the demolition and enforcement orders were at its premises and that they would be posted on the Ministry’s notice board since she could not be found at her place of residence. On the same day, the bailiff, with a handwritten note on the announcement, indicated that it had been handed over, in the applicant’s apartment, to a minister who had refused to identify himself. The latter did not sign the announcement.

According to the applicant, at midnight on 15 October 2004, about 200 armed police officers arrived on her property in Kosa Tumba accompanying workers engaged by the Ministry to enforce the demolition order. Eight police officers, without a court warrant or any other decision, entered the applicant’s weekend house and forced her husband and their son outside. They were allegedly forced to watch the demolition of the structures. The Government contested the applicant’s version of events regarding the demolition of the structures, without giving any further details.

On 21 October 2004 the applicant and Mr Argil Vraniškoski requested the Ministry to serve the demolition order on them. They stated that they had never received it and referred to an announcement of 14 October 2004 on the notice board in the Ministry concerning their case.

On 23 November 2004 the Ministry replied that there was evidence in the case file that the demolition order had been served on them and that accordingly there were no grounds for a repeated service.

On 6 December 2004 the applicant and her husband appealed against the demolition and enforcement orders before the Government second-instance Commission (“the Commission”) arguing that they had never been served on them. They complained that even assuming that the announcement posted on the Ministry’s notice board was to be regarded as the equivalent of service, the demolition order could only have become enforceable 15 days after 14 October 2004, as set forth in section 94 of the Act. On 9 February 2005 they requested the Commission to decide, within 7 days, their appeals. On 3 March 2005 the applicant and her husband lodged an appeal on points of law with the Supreme Court complaining about the Commission’s failure to decide their appeals (тужба поради молчење на администрацијата).

On 21 April 2005 the Commission dismissed, by two separate decisions, the appeals, finding that the demolition and enforcement orders had been given in accordance with the law. It stated that the applicant and her husband had started building the structures without a permit, as required under section 39 § 1 of the Construction Act. As to the applicant’s complaints about the improper service of the orders, the Commission stated:

“... the Commission has examined the [applicant’s] arguments in the appeal and finds that they are unsubstantiated and without any legal effect, since no construction work can be undertaken without a building permit being obtained ...”

On 4 June 2005 the applicant and her husband challenged the Commission’s decisions by way of an appeal on points of law in which they reiterated their earlier arguments.

On 21 December 2005 the Supreme Court rendered two decisions dismissing their appeals. It found no force in their arguments that the administrative bodies had ignored their complaints about the alleged failure to serve the demolition order on them. In this connection it stated that “the service was carried out in accordance with the Act”. Referring to the case file, the court held that the inspector responsible had correctly ordered, under section 39 of the Construction Act, the demolition of the structures. The decisions were sent to the applicant on 19 January 2006.

Section 81 of the Act, as valid at the material time, provided that a decision should, in principle, be handed over to the individual concerned in person.

Under section 83, the decision was to be served, in principle, at the home of the recipient.

Under section 84, if the recipient was not at home, the decision would be served on an adult member of his or her family or to a housekeeper or neighbour, with their consent.

Under section 86 § 1 of the Act, when the service could not be effected in accordance with section 84, the bailiff would return the decision to the competent body. A written announcement indicating the place where the decision was kept would be posted on the door of the recipient’s home. Under sub-section 2 of this paragraph, such service was regarded lawful and any later damage or destruction of the announcement would not affect the lawfulness of the service.

Section 94 of the Act provided that in the case of multiple unidentifiable recipients a decision would be served by way of a public announcement on the notice board of the competent body. Service would be considered to have been effected 15 days after the posting of the announcement.

Under section 95 of the Act, if the person concerned or an adult member of his or her family refused to be served with a decision without any legal ground, the bailiff would either leave the decision in the recipient’s home or would post it on the door, which would be considered as equivalent to the service. The bailiff would mark the date, hour and reasons for refusal of the service, as well as the place where the decision was put.

Section 270 § 2 (3) provided that a first-instance decision would become enforceable after being served on the interested party. That applied where an appeal did not suspend enforcement.

Under section 39 (1) and (3) of the Construction Act, as then valid, the competent inspectorate would order immediate demolition of buildings constructed without a building permit. An appeal did not suspend the enforcement of the demolition order.

Under section 121 of the Property Act, a construction built without a building permit does not confer to an investor title to the unlawfully erected building. Until such building is validated or demolished, the investor, equally to an owner, has a right to judicial protection, unless otherwise regulated by law.


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

The applicant, Mr Kenneth Scott, is a British national who was born in 1948 and lives in Tyne and Wear. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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

The applicant’s wife died on 29 May 1993. His formal claim for widows’ benefits was made on 28 June 2002 and was rejected on 8 July 2002 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 23 July 2002 the applicant appealed and reconsideration took place on 30 August 2002. The previous decision was upheld. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.

The Government submitted that the applicant was not in receipt of child benefit at the time of his claim. The applicant, who had initially submitted that he had ceased to be eligible for child benefit at some time in 2002, failed to submit any comments in reply, although invited to do so.

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