David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant company, Somico OOD, is a Bulgarian limited liability company, which was set up in 1993 and is based in Sofia. It was represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

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

On 1 February 1993 the applicant company entered into a lease agreement with the Bureau for Servicing the Diplomatic Corps (“the BSDC”), a body of the Ministry of Foreign Affairs, renting from it a Stateowned shop. It appears that the term of the lease agreement was periodically renewed until 31 December 1996.

On 30 May 1996 the applicant company submitted a proposal to the Privatisation Agency to purchase the shop under the preferential privatisation procedure available to lessees of State and municipality-owned properties, provided for in section 35 (1) of the Privatisation Act (see paragraph 31 below).

In a decision of 22 October 1996 the Privatisation Agency declined the proposal. It reasoned that the conditions under section 35 (1) of the Privatisation Act had not been met, because the BSDC was not a State enterprise and real property included in its assets could not be sold or exchanged.

The applicant company applied for judicial review of the Privatisation Agency’s refusal. In a judgment of 14 January 1997, which was considered final, the Supreme Administrative Court (“the SAC”) quashed the decision of 22 October 1996 and instructed the Agency to open a privatisation procedure. The SAC held that the shop was owned by the State and had been assigned to the BSDC for use and management only.

Following that judgment, on 13 March 1997 the Privatisation Agency opened a procedure for the shop’s privatisation. On 4 April 1997 its decision to that effect was published in the State Gazette.

On an unknown date the BSDC submitted a petition for review (преглед по реда на надзора) of the judgment of 14 January 1997.

On 18 September 1997 a five-member panel of the SAC quashed the judgment of 14 January 1997 and remitted the case to a three-member panel of the same court. The five-member panel noted that, notwithstanding the fact that the shop was owned by the State, it was not subject to privatisation because the BSDC did not have the status of a State enterprise.

Following a fresh examination, in a judgment of 2 December 1997 a three-member panel of the SAC dismissed the applicant company’s application for judicial review. However, on appeal, in a final judgment of 23 June 1998 a five-member panel of the same court quashed the decision of 22 October 1996 and instructed the Privatisation Agency to open a privatisation procedure aimed at selling the shop to the applicant company. It considered, most notably, that the shop was the property of the State and that the BSDC’s legal status was not an obstacle to the privatisation. It considered, in addition, that the applicant company met all the requirements to benefit from the preferential conditions under section 35 (1) of the Privatisation Act.

Following that decision, on 3 August 1998 the Privatisation Agency wrote to the applicant company proposing a price for the shop, inquiring whether the applicant company accepted to buy the shop and inviting it to propose payment conditions.

On 6 August 1998 the applicant company informed the Privatisation Agency that it agreed to buy the shop at the price proposed. In addition, it suggested a payment scheme.

The signing of the privatisation contract was scheduled for 3 September 1998; however, several hours before the meeting an employee of the Privatisation Agency informed the applicant company by telephone that it would be postponed.

Meanwhile, on 2 September 1998 the Privatisation Agency inquired with the Sofia municipality as to whether there were any restitution claims in respect of the shop. On 11 November 1998 the regional governor of Sofia replied that on 19 October 1998 he had decided to transfer the shop to a third party in compensation for their expropriated property (see below).

It transpired subsequently that on 27 July 1998 the BSDC had transferred ownership of the shop to the Sofia municipality. On the same day the Sofia municipal council included it in the assets of the municipallyowned company managing municipal real properties. It is unclear whether the Privatisation Agency had been informed of those developments at the time.

It also transpired that on 16 April 1998 a third party – the heirs of Ms E.P. – had requested the transfer of the shop in compensation for expropriated real property. As already mentioned, in a decision of 19 October 1998 the regional governor granted their request.

The applicant company applied for judicial review of that latter decision. However, on 29 December 1999 the Sofia City Court found its application inadmissible, holding that the applicant company had not been a party to the restitution proceedings and therefore had no standing to challenge the impugned decision.

The parties have not informed the Court whether it was possible for the applicant company to challenge the transfer of the property from the State to the municipality, or resort to any other remedy directed against the municipality.

On 1 February 2000 the applicant company sought judicial review of the Privatisation Agency’s failure to finalise the privatisation transaction in compliance with the judgment of 23 June 1998. However, on 19 June 2000 the SAC rejected the application for judicial review as inadmissible, holding that the impugned failure to execute a final judicial act did not represent an administrative decision in itself and therefore was not subject to judicial control.

On an unspecified date the applicant company requested the assistance of the Ministry of Economy to finalise the privatisation transaction. In a letter of 21 September 2000 the Minister of Economy invited the Privatisation Agency to comply with the judgment of 23 June 1998.

In letters of 20 October 1998, 6 April 2000 and 9 January and 22 February 2001 the applicant company also invited the Privatisation Agency to finalise the privatisation procedure.

On 2 March 2001 the Privatisation Agency informed the applicant company that the shop had been transferred to the Sofia municipality and that the regional governor’s subsequent decision to transfer it in compensation to a third party represented a new circumstance which impeded the finalisation of the privatisation transaction.

The applicant company applied for judicial review of the Privatisation Agency’s refusal. In a judgment of 11 July 2001 a threemember panel of the SAC quashed the refusal and instructed the Agency to transfer title to the shop to the applicant company. It reasoned that the applicant company had acquired the right to buy the shop and the Agency was therefore obliged to sign the privatisation agreement. However, upon an appeal by the Privatisation Agency, in a final judgment of 8 January 2002 a five-member panel of the SAC found the applicant company’s application for judicial review inadmissible. It held that the Agency’s refusal to sign a privatisation agreement had not amounted to an administrative decision because, at that stage of the privatisation procedure, the two parties had been acting on an equal footing. Thus, the existing dispute between them could not be settled in administrative proceedings.

On 25 June 2001 the applicant company brought a civil action against the Privatisation Agency, seeking to have declared final the preliminary contract which it considered had been reached between them. Mr Y.P. and Ms S.P., heirs of Ms E.P., intervened in the proceedings with a claim for a declaratory judgment against the applicant company and the Privatisation Agency that they were the owners of the shop on the basis of the regional governor’s decision of 19 October 1998.

On 23 June 2003 the Sofia City Court dismissed the action of the applicant company and declared that Mr Y.P. and Ms S.P. were the owners of the shop. Upon an appeal by the applicant company, on 23 June 2004 the Sofia Court of Appeal upheld that judgment. It considered, in particular, that following the judgment of 23 June 1998 (see paragraph 11 above) the applicant company and the Privatisation Agency had exchanged correspondence in which they had reached an agreement on the main conditions of the sale of the shop, which represented a preliminary contract. However, the Privatisation Agency had not been the owner of the shop, which meant that the preconditions for declaring the preliminary contract final had not been present.

Following an appeal, in a final judgment of 21 July 2005 the Supreme Court of Cassation upheld the lower courts’ judgments. It considered, in particular, that the correspondence between the applicant company and the Privatisation Agency did not represent a preliminary contract.

In the meantime, on 5 April 2002 a notary public, acting with the assistance of the police, put Mr Y.P. and Ms S.P. in possession of the shop. It appears that by this time the applicant company, which was still holding the property, was no longer using it and it was in a state of abandon.

The Transformation and Privatisation of State and Municipal Enterprises Act (Закон за преобразуване и приватизация на държавни и общински предприятия: “the Privatisation Act”) of 1992 provided for the transformation of public property and the privatisation of State and municipality-owned enterprises. It was superseded by other legislation in March 2002.

Section 3 of the Act indicated the bodies competent to take decisions on privatisation. As concerns State-owned properties, the competent bodies were either the Privatisation Agency, or, for the most important objects, the Council of Ministers. The body competent to decide on the privatisation of municipally-owned properties was the relevant municipal council.

Under section 35 (1) of the Privatisation Act, lessees of State and municipality-owned property could propose to buy the property rented by them, without a public auction or competition and for a price equal to the property’s value assessed by certified experts in accordance with rules adopted by the Government. Those preferential conditions were applicable to lessees of State and municipality-owned property who had concluded lease contracts before 15 October 1993 and where the said contracts were still in force on the date of the respective privatisation proposal.

Section 35 (2) of the Privatisation Act, as worded after October 1997, provided that where a refusal by the competent administrative body to initiate a privatisation procedure following a proposal by the interested party had been quashed by means of a final court judgment, the relevant administrative body was obliged, within two months of the judgment becoming final, to initiate the privatisation procedure, prepare the privatisation of the property at issue and offer to sell the property to the entitled party.

Paragraph 6 of the transitional and concluding provisions of the Privatisation Act addressed different situations of conflict of competing privatisation and restitution interests. It provided, in particular, that in cases where a privatisation contract had already been concluded, the parties claiming to have restitution rights were to be compensated through shares in the companies which had acquired the property, if any such shares were owned by the State or municipalities, or through compensation bonds.


The applicant, Kenan Kahramanoğlu, is a Turkish national, who was born in 1972 and lives in Istanbul. He is represented before the Court by Mr Ö. Kılıç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

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

On 27 August 1996 police officers from the Beyoğlu Police Department in Istanbul arrested the applicant and transferred him to the Anti-Terrorism branch of the Istanbul Security Directorate. He was accused of membership of an illegal organisation called the Revolutionary Left (THKP-C Devrimci Sol). It was alleged that he had been involved in armed attacks organised by the said organisation in 1992. In particular, the applicant, whose code name was ‘Yusuf’ within the organisation, allegedly took part in the killing of a police superintendent.

On 28 August 1996 the applicant was questioned by two police officers from the Anti-Terrorism branch in relation to his involvement in the organisation. He confessed to being a member of the THKP-C and to having taken part in the killing of the police superintendent. He claimed, however, that he had not been involved in the organisation since 1994.

On 2 September 1996 the applicant was examined by a doctor from the Istanbul State Security Court Forensic Medicine Institute. The doctor, MD Cahit Alkış, reported that the applicant had described to him a sensation of pain in his right shoulder and testicles as well as numbness in his right arm. It was also noted in the report that the applicant had complained of pain when urinating. The doctor concluded that the applicant should be transferred to a State hospital for a further neurological and urological examination.

Following his examination in the State Hospital, the applicant was again examined on 3 September 1996 by Dr Alkış from the Forensic Medicine Institute. Referring to the applicant’s examination by the urology department of the State hospital, Dr Alkış noted in his report that there was no pathological finding. However, the neurological examination had indicated that the applicant had felt weakness in the region of his shoulder and shoulder blade and in particular when squeezing his right hand. The applicant had also complained of pain in his right elbow and right shoulder when extending his arm. Dr Alkış thus requested the applicant to undergo an EMG (electromyogram) examination the next day.

On 3 September 1996 the applicant was brought before the public prosecutor attached to the Istanbul State Security Court, where he denied the charges. He submitted that the incriminating police statements had been taken under torture and that he had not been able to read the statements before signing them. He further stated that he did not have any connections with the said organisation and that he had not been in Istanbul in 1992.

On the same day, the applicant was taken before the Istanbul State Security Court. He denied the content of the police statements and maintained that he had been subjected to ill-treatment during his detention in police custody and had been forced to confess to crimes which he had not committed. The court ordered the applicant’s detention on remand.

In an indictment dated 25 September 1996 the public prosecutor attached to the Istanbul State Security Court initiated criminal proceedings against the applicant, charging him with membership of a terrorist organisation and recommending the imposition of the death penalty under Article 146 § 1 of the Criminal Code (attempt to undermine the constitutional order).

On 25 November 1996 the public prosecutor at the Istanbul State Security Court issued a decision of non-jurisdiction ratione materiae in relation to the alleged torture of the applicant during his detention in police custody between 27 August and 3 September 1996. Having completed his preliminary investigation, the Public Prosecutor transferred the investigation file containing medical reports and the applicant’s statements to the Chief Public Prosecutor’s office in Fatih district.

In a letter of 4 December 1996 the Fatih public prosecutor requested the Sakarya Chief Public Prosecutor to instruct the authorities of the Sakarya Prison to take the applicant to a hospital and to have him undergo an EMG examination. On the same day, the public prosecutor wrote a letter to the Anti-Terrorism branch of the Istanbul Security Directorate in which he requested that the names of the police officers who had questioned and taken statements from the applicant be reported to him. He further asked for a copy of the last page of the statements taken from the applicant, the arrest protocols as well as all relevant reports. On 20 December 1996 the Sakarya Prison Administration transferred the applicant to the Sakarya State Hospital for an EMG examination. However, given that this hospital lacked EMG facilities, the Prison Administration decided to transfer the applicant to the Haydarpaşa Numune Hospital in Istanbul.

In a letter of 8 January 1997 the Director of Prisons and Incarceration Facilities requested the Sakarya Chief Public Prosecutor to order the transfer of the applicant to a special prison in Istanbul with a view to his examination and treatment at the Haydarpaşa Numune Hospital.

On 3 February 1997 the applicant submitted before the Istanbul State Security Court that he had been subjected to ill-treatment while in police custody.

On 20 March 1997 the applicant underwent a urine analysis at the Haydarpaşa Numune Hospital. The laboratory doctor prescribed antiinflammatory medicine and antibiotics for the applicant. He was then examined by a doctor at the neurology department of the same hospital. The neurologist noted in his report that the applicant felt weakness in his right arm and thus advised an EMG examination.

In a letter dated 2 September 1997 the Fatih Public Prosecutor repeated his earlier request to the Sakarya Chief Public Prosecutor that the applicant be taken to a hospital for an EMG examination.

By a letter of 2 September 1997, the Fatih Public Prosecutor requested the authorities of the Anti-Terrorist Branch at the Istanbul Security Directorate to provide him with a copy of the last page of the applicant’s statements which were taken during his detention in police custody, the arrest protocols and reports as well as documents pertaining to the permission to hold him in custody. The public prosecutor also asked for the names of the police officers who had taken statements from the applicant or participated in his interrogation. He instructed that those police officers appear before the Fatih Chief Public Prosecutor’s office. On 12 September 1997 this letter was received by the police officers concerned, namely F.V., E.K., R.İ. and M.T.

On 22 September and 1 October 1997 the Fatih Public Prosecutor took statements from E.K., R.İ. and M.T., who had all been involved in the interrogation of the applicant. Referring to the medical report dated 3 September 1996, which stated that there was no pathological finding on the applicant’s body, the police officers all denied that they had illtreated the applicant. They claimed that such allegations were a routine practice used by members of illegal organisations to deny the crimes which they had committed.

According to a report dated 12 November 1997, which was drafted by the Sakarya Prison Director and signed by two prison officers, the applicant refused to leave his cell and to be brought to the Haydarpaşa Numune Hospital for an EMG examination. This report was sent to the Sakarya Chief Public Prosecutor’s office for information.

On 5 March 1998 and 17 April 1998 the applicant, at the request of the Istanbul Assize Court, was summoned to give evidence before the Sakarya Assize Court in relation to his allegations of illtreatment. The applicant refused to appear before the court for health reasons.

On 1 May 1998 the applicant gave evidence before the Sakarya Assize Court. He alleged that he had been subjected to Palestinian hanging following his arrest. He had seen through his blindfold the police officers who had hit him. He had also seen the same officers when they had removed his blindfold in order to confront him with H.K. The applicant had filed a complaint through his lawyer about these police officers. He reiterated his request for the prosecution of the police officers who had tortured him.

On 28 January 1998 the Fatih Public Prosecutor initiated criminal proceedings before the Istanbul Assize Court against two police officers, F.V. and R.İ., charging them with ill-treatment of the applicant in violation of Article 243 § 1 of the Turkish Criminal Code.

On 2 April 1998 the Istanbul Assize Court heard evidence from F.V. and R.İ. They both denied the charges and claimed that they had not been involved in the interrogation of the applicant. F.V. stated that he had only taken statements from the applicant in the course of his transfer to the State Security Court. R.İ. claimed that he had only acted as a clerk when taking statements from the applicant.

In a petition dated 16 July 1998, filed with the Istanbul Assize Court, the applicant requested information on the state of the proceedings concerning the prosecution of the impugned police officers.

In a letter dated 17 August 1998, which was served on the applicant on 7 September 1998 in the Sakarya E-type prison, the president of the Istanbul Assize Court informed him that the criminal proceedings were still pending and that a final hearing was scheduled for 23 September 1998.

On 23 September 1998 the Istanbul Assize Court delivered its judgment. Referring to the applicant’s testimony dated 1 May 1998 before the Sakarya Assize Court in which he had claimed that he had been ill-treated before his statements had been taken, and in view of the police officers’ defence submissions, the court found that the two accused police officers had merely taken statements from the applicant. However, it was undisputed that the alleged ill-treatment inflicted on the applicant occurred prior to that stage - either during his arrest or at the time of his interrogation. The court further took into consideration the medical report dated 2 September 1996 which did not indicate any signs of bodily injury. Accordingly, the court concluded that there existed no evidence to substantiate that the applicant had been ill-treated by the accused police officers and therefore acquitted them of the charges. The court’s decision was not served on the applicant since he had not intervened in the criminal proceedings against the accused police officers. As there was no appeal, the decision became final on 21 November 1998.

On 8 May 2000 the Istanbul State Security Court ordered the applicant’s release pending trial.

On 23 June 2000 the applicant obtained a copy of the Istanbul Assize Court’s decision concerning the acquittal of the police officers.

The lawyer representing the applicant in the Convention proceedings also represented him in the proceedings before the State Security Court.

In the meantime, the applicant provided the Court with a copy of a document which indicated that R.İ, one of the accused police officers who had allegedly inflicted ill-treatment on the applicant, had been convicted of inflicting ill-treatment in the past.

On 27 October 2004 the Istanbul Assize Court convicted the applicant of attempting to undermine the constitutional order of the State and sentenced him to life imprisonment.

On 24 May 2005 the Deputy to the Istanbul Chief Public Prosecutor appealed to the Court of Cassation and requested that the conviction be quashed on the grounds that there was insufficient evidence against the applicant and that the judgment was contradictory. The public prosecutor noted that the only evidence available was the applicant’s statements to the police officers.

On 18 July 2005 the Court of Cassation quashed the judgment of 27 October 2004. It reasoned that the Istanbul Assize Court had failed to carry out a sufficient examination of the case in that it had not inquired into the outcome of the criminal proceedings concerning the alleged ill-treatment of the applicant by the security forces and the medical report to that effect.

“1. Whoever, being a president or member of a court or council or a public officer, tortures an accused person in order to obtain a confession, shall be punished by a prison sentence of up to five years and shall be disqualified from holding public office, temporarily or for life. The offender shall be punished even if he had acted under an order or encouragement from his superior.”

“Any person who is injured as a result of a criminal act may, at any phase of the investigation, intervene in the public prosecution.

Those so intervening may also submit their personal claims for adjudication.”

The intervening party is entitled to request compensation for the prejudice arising from the offence. However, the exercise of this right is subject to procedural rules: the person who is injured as a result of a criminal act must intervene in the public prosecution and request explicitly the right to ask for compensation. The compensation request is not therefore automatic. It also has to be justified and an assessment of the amount must accompany the request.

Section 366 provides that intervention should be made by means of the submission of a petition to the relevant authority or by a declaration made to the clerk of the court. Thereupon, the intervening party enjoys the same rights as a prosecutor of personal claims (section 367). Decisions rendered before the intervention remain valid and, if the public prosecutor does not appeal against the final decision within the requisite time-limit, the intervener loses the right to appeal (section 369).

Furthermore, according to section 370, if the intervener or his/her representative does not attend the trial, the judgment is served on him/her. Section 371 empowers the intervening party to file a separate appeal against a judgment regardless of whether the public prosecutor chooses to appeal. If the intervening party succeeds in his/her appeal, the public prosecutor is required to institute criminal proceedings afresh.


The applicant, Mr Vardan Poghosyan, is an Armenian national who was born in 1932 and lives in Yerevan. He was represented before the Court by Ms L. Hakobyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.

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

On an unspecified date, the applicant instituted civil proceedings against three individuals, A., P. and H., seeking to recover certain property and damages for lost profit.

On 21 June 2002 the Avan and Nor Nork District Court of Yerevan (Երևանի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարան) partially granted the applicant's claim and ordered that the property belonging to him be returned. His claim for damages was rejected.

On 26 August 2002 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) upheld this judgment.

On 25 October 2002 the Court of Cassation (ՀՀ վճռաբեկ դատարան) quashed this judgment in its part concerning damages and remitted for a new examination.

On 26 March 2003 the Civil Court of Appeal partially granted the applicant's claim for damages and awarded him 1,238,160 Armenian drams (AMD) (approx. EUR 1,960 at the material time) to be paid jointly by the co-defendants.

On 25 April 2003 the Court of Cassation upheld this judgment in the final instance. The judgment entered into force.

On 7 May 2003 the Court of Appeal issued a writ of execution.

On 12 May 2003 the Department for the Enforcement of Judicial Acts (the DEJA) (Դատական ակտերի հարկադիր կատարումն ապահովող ծառայություն) instituted enforcement proceedings. On the same date, the Bailiff (հարկադիր կատարող) made a decision to arrest any immovable and movable property belonging to the co-defendants. On 18 May 2003 the Bailiff made inquiries with various public authorities, seeking to disclose such property.

On 23 May 2003 and 18 June 2003 the Bailiff was informed by the vehicle registration authorities that no cars were registered in the co-defendants' names. On 2 and 12 June 2003 the Bailiff was informed by the tax authorities that the co-defendants were not registered as tax payers.

On 19 June 2003 the Bailiff visited the co-defendants for enforcement purposes and the same day drew up records on the failure to disclose any movable property to be confiscated. As to immovable property, the only such property disclosed was a quarter share in a flat belonging to co-defendant P. Another share in the same flat belonging to co-defendant A. had been already confiscated by the courts for him to be able to meet another judgment debt. On 8 July 2003 the Bailiff decided to arrest the share in the flat belonging to defendant P.

By a letter of 11 July 2003 the Bailiff instructed the applicant to apply to the relevant court, to have this share severed and confiscated in accordance with Article 200 of the Civil Code.

On 15 August 2003 the applicant lodged an application with the Avan and Nor Nork District Court of Yerevan addressed to the President and the judge who had presided over his case, with the following content:

“To: The President of the Avan and Nor Nork District Court, [Mr. K], and the judge who had presided over the trial, [Mr. B.]

From: [The applicant (address)]

15.08.03 Application-claim

Dear [Mr. K. and B.],

A sum of 1,238,160 drams was awarded to me by a final judgment made against [co-defendants A., P. and H.]. The court seized the flat ... belonging to the above mentioned persons. However, the DEJA has been informed in writing that by a judgment of 20 August 2002 ... [co-defendant A.] lost his ownership in respect of this flat, despite the fact that this flat should have been seized [already] on 5 August 2002. For this reason, the DEJA instructs me to have the share in the flat belonging to [co-defendant P.] severed and confiscated by applying to [your court].

Based on the above, I ask you to fulfil the instruction given by the DEJA.”

Attached to this application were a copy of the judgment of 26 March 2003 and the Bailiff's letter of 11 July 2003.

By an undated letter the Acting President of the Avan and Nor Nork District Court of Yerevan (Երևանի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարանի նախագահի ժամանակավոր պաշտոնակատար) informed the applicant that:

“In reply to your application I would like to inform you that the court examines civil cases and issues judgments, following which [the DEJA] enforces these judgments on the basis of execution writs.”

On 8 September 2003 the applicant lodged an application with the Civil Court of Appeal addressed to judge K. who had presided over his case, with virtually the same content. At the end the applicant added:

“I ask you to issue a decision to sever and confiscate the share belonging to [co-defendant P.], since, after having applied to the first instance court, I have received a meaningless reply.”

On 19 October 2003 the applicant complained to the President of the Civil Court of Appeal that:

“As instructed by the [relevant] branch of the DEJA, I applied to your court seeking to have a share in a flat belonging to [co-defendant P.] severed and confiscated, since, after having applied with this request to the Avan and Nor Nork District Court, I have received an indefinite reply. However, your judge [K.] avoids giving any written reply, whether positive or negative.”

By a letter of 23 October 2003 judge K. replied that the Appeal Court had no competence to deal with obstacles arising in the enforcement stage and advised the applicant to apply to the relevant first instance court.

On an unspecified date, following the communication of the present application to the respondent Government, i.e. 25 February 2005, co-defendant P. voluntarily paid the sum of money he owed to the applicant.

On an unspecified date, the Bailiff decided to terminate the enforcement proceedings.

According to Article 34, the Bailiff must implement the enforcement activities within two months from the date of receipt of the execution writ, which does not include the period when the enforcement activities are in the process of an auction or the period required for finding the debtor or disclosing any property belonging to him, unless the law prescribes a shorter period for the enforcement or an immediate enforcement.

According to Article 200 §§ 1 and 2, if a co-owner of a shared or joint property does not have other sufficient means, the creditor can seek to have the debtor's share severed from the common property in order to have it confiscated. If it is impossible to sever the share in kind or if the other co-owners of the shared or joint property object to it, the creditor can require the other co-owners of the common property to buy the debtor's share at the market price in order to pay the debt. If the other co-owners of the common property refuse to buy the debtor's share, the creditor can have the debtor's share in the common property confiscated through court proceedings and sold at a public auction.”

According to Article 3, the court institutes civil proceedings only on the basis of a claim or an application.

Article 87 §§ 1, 2 and 3 provides that an application to court must be submitted in writing. The application must contain: 1) the name of the court applied to; 2) names and addresses of the parties; 3) the sum sought, if the claim has a value; 4) circumstances on which the claims are based; 5) documents substantiating the claims; 6) an estimate of the contested sum or the sum to be confiscated; 7) the applicant's demands, and if several defendants are sued, the applicant's demands directed against each of them; and 8) a list of attached documents. The application may also contain other relevant information, if they are necessary for the proper determination of the case, as well as the applicant's motions. The application must be signed by the applicant or an authorised representative.

According to Article 92 §§ 1, 2, 3 and 4, the judge shall return the application if, inter alia, the requirements contained in Article 87 as to its form and substance have not been complied with. The court shall adopt a decision to return the application within three days of its receipt. If the application is returned, the applicant could re-apply after having corrected its defects. If disagreeing with the decision to return the application, the applicant can apply to the president of the court for a review, within three days of its receipt. The president of the court shall examine the application within three days and adopt a decision on it.

Article 144 §§ 1 and 2 provides that a judicial act, which does not determine the case on its merits, shall be adopted in the form of a decision. A decision adopted as a separate document shall contain: 1) the name of the court, its composition, the case number, the date, the subject of the dispute; 2) the names of the parties; 3) the question to be decided; 4) the reasons which led to the court's conclusions, including references to laws and other legal acts; 5) the conclusion on the question being decided; and 6) the procedure and time-limit for lodging an appeal, if the decision is subject to appeal.

According to Article 1, this Law regulates the relations connected with the examination, in a procedure and within the time-limits prescribed by law, of proposals, applications and complaints of citizens and legal persons by the State, public and other authorities, the local self-government, the relevant officials and organisations, with the response to the facts of violations of rights and lawful interests of citizens and legal persons, and with the elimination and prevention of such violations. This Law does not apply to the procedure for the examination of proposals, applications and complaints of citizens prescribed by the Code of Criminal Procedure, the Code of Civil Procedure, the labour and other laws.

Article 4 provides that the State authorities, the local self-government and the relevant officials are obliged, inter alia, to admit and to examine, within the scope of their competence and in the procedure and within the time-limits prescribed by law, the proposals, applications and complaints of citizens, to reply to them and to take other relevant measures.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The facts of the case, as found by the Commission and not contested before the Court, are as follows:

On 26 September 1994, proceedings for recovery of a debt of 697 pounds sterling (GBP) were commenced by Bradley Grange Stud Limited against the applicant in the Scarborough County Court.

By reason of Order 19, rule 3 (1), of the County Court Rules 1981 the case was referred for hearing by way of arbitration under Order 19, rule 7, of the County Court Rules.

On 8 November 1994 a preliminary hearing took place. The plaintiff did not attend, and Mr Scarth requested that the claim be struck out. The District Judge (the arbitrator) refused to do so.

Mr Scarth made an application for the main hearing to be in public and for evidence to be given on oath. This application was heard on 3 January 1995 and refused. The reasons for the refusal were not recorded formally, but in a note of 21 July 1997 prepared in the context of the Convention proceedings, District Judge Elliott made the following comments:

"At this stage I can only say that it is likely that I took the view that the [applicant's] reasons as set out in his application were not in my view good reasons for the private nature of arbitration proceedings to be dispensed with. Further the sum of the dispute and the nature of the dispute were basically no different from the usual "run of the mill" arbitration disputes heard in any county court. Lastly, at the time the arbitration hearing had been fixed, prior to the filing of the application [for the case to be heard in open court]. I cannot say with certainty the above are the reasons I gave. The earlier fixing of an arbitration hearing date would have carried little weight with me if I had considered the application had any particular merit. ..."

The arbitration hearing took place in private on 16 January 1995. On 31 January 1995 District Judge Elliott made his award in writing, finding in favour of the plaintiff.

Mr Scarth made an application for the arbitration award to be set aside on the ground that there had been "misconduct" or "errors of law" by the District Judge, pursuant to Order 19, rule 8 (1), of the County Court Rules 1981.

The hearing of the application to set aside took place before a Recorder in private. He refused the application on 9 May 1995 and made a costs order against Mr Scarth. These costs were subsequently assessed at GBP 1,032.76.

Mr Scarth then applied for leave to appeal to the Court of Appeal alleging a lack of public hearing, misconduct by the judge and an overall unfairness of the proceedings. Mr Scarth was heard in open court and leave was refused on 9 November 1995. Lord Justice Morritt noted that the "European Convention on Human Rights is not part of our law in the way the European Community law is, and the provisions of the county court rule to which I have referred entitled the District Judge to hold the hearing in private". He further found that the judge could not be said to have been guilty of any misconduct and rejected Mr Scarth’s allegations as to unfairness. In connection with a submission that the District Judge was wrong on one particular point of law, he continued: "That seems to me to be a matter largely of fact, because if these two cheques were handed over for value and either of them was countermanded and subsequently presented, then it would seem that there would be a cause of action on the cheque ...".

Order 19, rule 3 (1), of the County Court Rules ("the Rules"), as in force at the relevant time, states that any proceedings in which the sum claimed or amount involved does not exceed GBP 1,000 shall be referred for arbitration.

Order 19, rule 7 (1), (3) and (4), of the Rules provides as follows:

"(1) Any proceedings referred to arbitration shall be dealt with in accordance with the following paragraphs of this rule unless the arbitrator otherwise orders.

(3) The hearing shall be informal and the strict rules of evidence shall not apply; unless the arbitrator orders otherwise, the hearing shall be held in private and evidence shall not be taken on oath.

(4) At the hearing the arbitrator may adopt any method of procedure which he may consider to be fair and which gives to each party an equal opportunity to have his case presented;..."

Order 19, rule 8 (1), of the Rules reads as follows:

"Where proceedings are referred to arbitration, the award of the arbitrator shall be final and may only be set aside ... on the ground that there has been misconduct by the arbitrator or that the arbitrator made an error of law."

In monetary matters of less than GBP 5,000, and wherever the County Court judge makes his order in an appellate capacity, leave to appeal must be obtained before a County Court order may be appealed to the Court of Appeal (see RSC 1997, Order 59, rule 1/34, referring to the County Court Appeals Order 1991).

Under the Civil Procedure Rules, which came into force on 26 April 1999, hearings, including those in small claims cases, are to be held in public. There is a discretion for the court to hold a hearing in private where:

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or person suffering from mental incapacity;

(e) it is a hearing of an application made without notice and it would be unjust to the respondent for there to be a public hearing;

(f) it involves non-contentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court considers a private hearing to be necessary in the interests of justice.


Preliminary objection rejected (six months);Preliminary objection joined to merits and rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award

On 25 October 1990 and 9 November 1990 criminal complaints were lodged against the applicant for instigation to fraud and for issuing checks for the payment of which there were no adequate funds. The prosecutor instituted criminal proceedings against him.

In 1994 the investigating judge ordered the applicant’s provisional detention (warrant No. 22/94). However, the applicant evaded arrest.

On 5 August 1994 the indictments chamber of the first instance criminal court (simvulio plimmeliodikon) of Athens decided to commit the applicant for trial to the three-member Court of Appeal (trimeles efetio) of Athens, sitting as a first instance court, on the above charges. The chamber confirmed the investigating judge’s warrant concerning the applicant’s detention.

On 2 February 1995 the indictments chamber decided to commit the applicant for trial on a number of supplementary charges.

The applicant was arrested on 2 September 1995. Until 30 October 1995 the applicant was deemed to be serving a sentence that had been imposed on him for unrelated offences in 1989. As a result, the applicant’s detention on remand on the fraud and other charges mentioned above officially started on 30 October 1995.

On 17 July 1996 the applicant applied for his provisional release. On 22 August 1996 the indictments chamber of the Court of Appeal of Athens rejected his application.

On 2 September 1996 the applicant appeared, together with MB, JK and DK, before the three-member Court of Appeal of Athens. He was represented by counsel who also acted for MB and JK. The trial lasted until 3 September 1996 when the court heard the final submissions of the parties on the question of guilt of the applicant and his co-defendants. Then the court withdrew for deliberations in the course of which it decided to acquit the applicant and convict MB and JK.

The relevant decision was pronounced and then the court heard submissions on the sentences to be imposed on MB and JK. Counsel who represented the applicant as well as MB and JK was heard in this connection. The court withdrew for deliberations in the course of which it decided on the penalties to be imposed. It also decided that “the applicant should not be compensated for the time he spent in detention on remand”. The relevant decision was pronounced on the same day, i.e. on 3 September 1996.

However, its text was finalised (katharographi) on 9 December 1996. The applicant was informed of this development later on and obtained a certified copy on 28 July 1997.

The Code of Criminal Procedure provides as follows:

“Persons who have been detained on remand and subsequently acquitted ... have the right to request compensation ..., if it has been established in the proceedings that they did not commit the criminal offence for which they have been detained on remand.”

“The State does not have any obligation to compensate a person who ... has been detained on remand if the latter, intentionally or by gross negligence, was responsible for his own detention.”

“Upon an application submitted orally by the person who has been acquitted, the court which heard the case shall decide on the State's obligation to pay compensation in a separate decision issued at the same time as the verdict. However, the court may also issue such a decision proprio motu ...

The decision regarding the obligation of the State to pay compensation cannot be challenged separately; it is, however, quashed when the decision on the principal issue of the criminal trial is reversed.”

“The person who has suffered prejudice may request compensation at a later stage before the same court.

In these circumstances, the application must be submitted to the public prosecutor of this court strictly within forty-eight hours from the pronouncement of the judgment in open court.”

“After it has been decided that the State must pay compensation, the person entitled thereto may bring his claim before the civil courts, which may not re-examine the existence of the State's obligation.”

“Persons who have been unfairly ... detained on remand must be compensated for any material prejudice they have suffered as a result of their ... detention. They must also be compensated for moral damage ... .”


CASE OF PEDERSEN AND PEDERSEN v. DENMARK

On 20 October 1992 the first applicant, as the owner of 3 freshwater fish farms, was charged with offences against the Act on freshwater fish farms of 5 April 1989 (bekendtgørelse nr. 224), henceforth also called the 1989 Act, as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment, and with enrichment for himself.

On 13 September 1993 an indictment was submitted to the City Court in Fjerritslev (retten i Fjerritslev) before which the trial was scheduled for 9 December 1993. However, the trial was adjourned awaiting the outcome of a corresponding pending criminal case, considered to be a “test-case”, in which the defendant had alleged inter alia that the 1989 Act had no legal authority as it contravened articles of the Penal Code and provisions of the Environmental Protection Act (Miljøbeskyttelsesloven). The Government claimed that the adjournment was initiated by the first applicant’s counsel. The applicant contested this. It is undisputed, however, that the parties agreed to the adjournment and that no objections were raised against it. The proceedings in the test-case were finally determined on appeal by a High Court judgment of 21 September 1995.

Subsequent to a preliminary hearing held in the applicant’s case on 18 December 1995 it was decided to adjourn his case anew awaiting another corresponding pending criminal case, considered to be a test-case, in which the defendant had alleged that the 1989 Act had no legal authority as the European Commission had not been notified of it as allegedly prescribed by the 83/189/EEC Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, amended by the 88/182/EEC Council Directive of 22 March 1988. The proceedings in the corresponding case were finally determined on appeal in the autumn of 1996 when a High Court delivered its judgment.

The applicant’s trial commenced on 8 April 1997. Since a witness on the applicant’s behalf was prevented from appearing on that day, the trial continued and ended on 14 May 1997. By judgment of 28 May 1997 the City Court in Fjerritslev convicted the applicant and sentenced him to pay a fine of 68,000 Danish kroner (DKK). In addition a profit estimated to DKK 275,000 was confiscated.

On 9 June 1997 the applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) before which he was granted permission to procure an expert witness, who during the preparation of the case was requested to reply in writing to specific questions formulated by counsel, and approved by the prosecutor.

By judgment of 29 June 1998 the High Court of Western Denmark upheld the applicant’s conviction, but increased the fine to DKK 95,000 and the amount to be confiscated to DKK 384,000.

The applicant’s request of 7 July 1998 for leave to appeal against the High Court’s judgment to the Supreme Court (Højesteret) was granted by the Leave to Appeal Board (Procesbevillingsnævnet) on 23 November 1998.

The case was brought before the Supreme Court on 15 January 1999, where it was joined with the second applicant’s appeal (see below).

II

On 26 October 1993, the second applicant, as manager of two limited companies which each owned a freshwater fish farm, was charged with offences against the amended Act of 31 September 1994 on freshwater fish farms partly in conjunction with the former Act of 5 April 1989 (bekendtgørelse nr. 900 jfr. tildels bekendtgørelse nr. 224), as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment, and with enrichment for the companies.

The case was brought before the City Court in Mariager (retten i Mariager) by the prosecution’s submission of an indictment of 8 March 1994, which was later extended by supplementary indictments.

In the period between September 1994 and October 1995 the case was adjourned awaiting the outcome of a corresponding pending criminal case, which was considered to be a test-case.

On 3 November 1995 the proceedings were adjourned at the request of the applicant’s counsel, who wished to submit a written pleading. On 21 November 1995 counsel requested an extension of the time-limit for submitting his pleading. On 12 February 1996 he stated that his pleading was approaching. On 21 March 1996 he was granted yet another extension of the timelimit, and on 17 April 1996 the pleading was submitted.

Further pleadings were submitted and additional preliminary issues were dealt with, inter alia with regard to counsel’s request that the applicant’s case be joined with another corresponding pending case.

On 4 October 1996 counsel was granted an extension of the timelimit to submit his rejoinder within eight weeks.

A hearing was held on 24 February 1997 and the case was scheduled to commence on 8 September 1997 as counsel had stated that he was unable to appear before that date.

On 16 September 1997 the City Court in Mariager convicted the applicant and sentenced him to pay a fine of DKK 275,000. In addition profits estimated to DKK 900,000 and DKK 200,000, respectively, were confiscated in the companies.

On 23 September 1997 the applicant appealed against the judgment to the High Court of Western Denmark, before which the case was ready to be listed for trial on 27 November 1997. As counsel was unable to appear on the proposed dates in January, February and May 1998, the case was scheduled for trial on 27 August 1998.

By judgment of 3 September 1998 the High Court of Western Denmark upheld the applicant’s conviction, but increased the fine to DKK 345,000 and the amounts to be confiscated to DKK 1,158,000 and DKK 240,000 respectively.

The applicant’s request of 11 September 1998 for leave to appeal against the High Court’s judgment to the Supreme Court was granted by the Leave to Appeal Board on 23 November 1998.

The case was brought before the Supreme Court on 15 January 1999, where it was joined with the first applicant’s appeal. The applicants jointly argued that the Act of 1989 had no legal authority as the European Commission had not been notified of it as allegedly prescribed by the 83/189/EEC Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, amended by the 88/182/EEC Council Directive of 22 March 1988, and that accordingly they should be acquitted. Moreover, they requested that the Supreme Court referred the question of the legal consequences of the non-notification to the European Court of Justice pursuant to the former Article 177 of the EC Treaty.

As to the latter the Prosecutor General procured an opinion from the Ministry of Justice of 29 January 1999, finding no basis for a preliminary reference, an opinion he endorsed. On 4 February 1999 the Supreme Court requested counsel’s comment on this issue.

On 17 February 1999 the applicants requested that an additional counsel be assigned to plead on the EU-law issues of the case. This was refused by the Supreme Court on 24 February 1999. The following day, the applicants requested that a named attorney substitute their counsel as to the EUlaw issues. This request was granted on 18 April 1999 and the proceedings were adjourned for eight weeks pending comments from the substituting counsel.

It appears that the substituting counsel three times was granted an extension of the time-limit to submit his comments, thus his first written pleading was submitted on 5 October 1999.

The Prosecutor General stated definitively on 3 November 1999 that he found no basis for referring the case to the Court of Justice for a preliminary ruling.

The exchange of pleadings on this question continued until 7 April 2000, as the substitute counsel three times requested that the Prosecutor General submit written replies to various questions put by counsel on the issue. Each time the replies were followed by a comprehensive pleading by the substitute counsel.

On 22 August 2000 the Supreme Court decided not to refer the case to the Court of Justice for a preliminary ruling, as it found that there was no obligation to notify the European Commission of the specific section of the Act on freshwater fish farms of 5 April 1989, with which the applicants were charged, and that there was no reasonable doubt that the section in question was in accordance with European Community legislation.

By judgment of 16 February 2001 the Supreme Court upheld the High Court’s judgment in respect of the first applicant, but reduced the amount to be confiscated to DKK 240,000, and by judgment of the same date the Supreme Court upheld the High Court’s judgment in its entirety in respect of the second applicant.


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

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Between 5 July and 27 December 1991 the applicant worked as a manager of a joint stock company (“the employer”). On 7 February 1992 he was dismissed by the employer’s disciplinary commission, a decision which was confirmed by the executive board on 17 March 1992.

On 23 March 1992 the applicant brought an action against the employer to annul his dismissal and for his reinstatement as a manager.

On 16 June 1992 the then Štip Municipal Court (Општински Суд Штип) dismissed his claim.

On 25 January 1993 the then Štip District Court (Окружен Суд Штип) upheld his appeal of 19 November 1992 and remitted the case for a re-examination.

Of nine hearings scheduled before the first-instance court, none was adjourned at the applicant’s request.

On 29 December 1993 the then Municipal Court dismissed his claim. That decision was upheld by then District Court’s decision of 30 March 1994 dismissing his appeal of 10 February 1994.

On 30 May 1994 the applicant lodged an appeal on points of law (ревизија) which was granted by the Supreme Court’s decision of 20 December 1995. On 22 February 1996 the then District Court again upheld the first-instance decision of 29 December 1993.

On 17 April 1996 the applicant submitted a fresh appeal on points of law before the Supreme Court. On 20 November 1997 the Supreme Court quashed both the first- and second-instance decisions and remitted the case for a renewed examination. It ruled that the lower courts had erroneously established that the employer’s meeting of shareholders (собрание на акционери) and the strike board (штрајкувачки одбор) had discharged the applicant as the employer’s manager prior to the disciplinary commission having given the dismissal decision (see paragraph 4 above). According to the minutes of their meeting of 27 December 1991, they had only voted against him, but had left the matter to be decided by the disciplinary commission.

On 29 May 1998 the applicant requested the removal of the first-instance judge for bias. On 3 June 1998 the President of the Štip Court of First Instance dismissed that request as unsubstantiated.

According to the information submitted by the parties, none of the six hearings fixed by the first-instance court was adjourned at the applicant’s request.

On 17 December 1998 the Štip Court of First Instance annulled the 1992 dismissal order finding that it was not given by an authorised body. However, it dismissed the applicant’s claim for his reinstatement to a post corresponding to his qualifications since bankruptcy proceedings had been meanwhile launched against the employer. The employer’s receiver (стечаен управник) could decide the reinstatement issue.

On 29 December 1999 the Court of Appeal quashed this decision as incoherent and ordered a retrial arguing that the lower court had erred in establishing the facts concerning the body competent to decide on the dismissal.

After three hearings being fixed, on 24 April 2001 the Štip Court of First Instance dismissed the applicant’s claims finding that: he was discharged as the employer’s manager by the executive board on 27 December 1991; under an application for disciplinary proceedings submitted by the strike board, the newly appointed manager requested the disciplinary commission to dismiss him for having committed serious work-related violations, which was actually done by the commission’s decision of 7 February 1992; and the executive board dismissed his objection by decision of 17 March 1992. The court therefore concluded that the applicant’s claims were ill-founded. This decision was given by another first-instance judge. On 29 November 2001 the Court of Appeal upheld this decision.

On 21 January 2002 the applicant submitted an appeal on points of law before the Supreme Court arguing that the lower courts had wrongly established and assessed the facts.

The applicant died on 31 October 2002.

On 11 September 2003 the Supreme Court finally dismissed his appeal finding that the lower courts had properly established the facts and correctly applied the national law. According to a note written on the slip receipt, on 3 December 2003 there was an unsuccessful attempt to serve this decision due to the applicant’s death. The applicant’s successors maintained that they learnt about this decision only on 29 July 2004 when they received the Government’s observations. The Government did not contest that assertion.

During the proceedings, the applicant applied several times to the first-instance court to expedite the proceedings. His requests for priority treatment submitted before the Supreme Court were refused. He also notified the State Judicial Council about the protracted length of the proceedings.

Section 10 of the then Civil Proceedings Act (Закон за парничната постапка) (“the Act”) provided that it was incumbent upon the court to undertake to conduct the proceedings without undue delay and economically, and to avoid any attempt of abuse of the rights afforded to the parties concerned.

Section 408 of the Act provided, inter alia, that the court should take into consideration the necessity of urgent settlement of employment disputes.

Section 36 of the Courts Act (Закон за судовите) of 2006 (“the 2006 Act”) provides that a party concerned can lodge with the immediate higher court (непосредно повисокиот суд) an application for the protection of the right to a hearing within a reasonable time if he/she considers that it has been violated by a court of competent jurisdiction. The immediate higher court considers the application (постапува по барањето) within six months after it has been lodged and decides whether the court below violated the right to a hearing within a reasonable time. The higher court shall award just satisfaction to the claimant if it finds a violation of the right to a hearing within a reasonable time. The just satisfaction shall be paid from the State’s budget. The 2006 Act became applicable on 1 January 2007 (section 128).


András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Vladimiro Zagrebelsky

The applicant was born in 1932 and lives in Istanbul.

“Sensitivity on the left lumbar region and on the lower part of the left hemithorax has been observed.”


The applicant, Mr Artūras Morkūnas, is a Lithuanian national who was born in 1962 and lives in Šiauliai. He was represented before the Court by Mr R. Andrikis, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

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

The applicant, who had a criminal record of two convictions, was arrested on 1 March 1999 and questioned on suspicion of blackmail and extortion committed against a businessman.

On 2 March 1999 his detention on remand was authorised for 10 days by the Šiauliai City District Court for fear that the applicant might commit fresh offences and obstruct the investigation. The applicant and his lawyer were present at the hearing.

On 9 March 1999 the applicant was charged with attempted extortion committed in an organised group. On the same date, the Šiauliai City District Court extended the term of the applicant’s detention until 12 May 1999 on the same grounds, the applicant’s lawyer being present. The applicant’s appeal against that order was rejected by the Šiauliai Regional Court on 22 March 1999, in the presence of his lawyer.

On 12 May 1999 the Šiauliai City District Court extended the term of the applicant’s remand in custody until 12 July 1999 on the same grounds, i.e., for fear that the applicant might commit new crimes or obstruct the investigation. Both the applicant and his lawyer were present.

His appeal against the extension order was rejected on 25 May 1999, the applicant’s defence counsel being present.

On 12 July 1999 the term of the applicant’s remand was extended until 1 September 1999 by the Šiauliai City District Court on the same grounds as before, the applicant and his lawyer being present. The applicant appealed, requesting the variation of his remand. He pleaded not guilty and alleged that there was no fear of him absconding since he had a family and a permanent place of residence. The appeal was dismissed by the Šiauliai Regional Court on 21 July 1999, in the presence of the applicant’s defence counsel. The court considered that the grounds for his detention persisted.

On 30 August 1999 the Šiauliai Regional Court authorised the applicant’s detention on remand until 31 December 1999, in the presence of the applicant and his lawyer. The court briefly noted that the applicant “was accused of having committed serious offences, hence there was a reason to believe that he may commit new crimes if released.” On 21 September 1999 the Court of Appeal dismissed the applicant’s appeal against the decision, his representative being present. The appellate court noted, inter alia, that the applicant was suspected of heading a criminal organisation, thereby justifying the fear of his committing fresh crimes and influencing witnesses.

On 23 December 1999 the Šiauliai Regional Court extended the applicant’s detention on remand until 1 February 2000. While the court emphasised the necessity to expedite the investigation of the case, it considered that continued detention was justified by the fear that the applicant might abscond and commit fresh crimes. The applicant and his defence counsel were present. The applicant’s appeal against that order was dismissed by the Court of Appeal on 6 January 2000, his lawyer being present.

During 1999, in the context of several other sets of criminal proceedings, the applicant was charged with attempted aggravated murder, the destruction of property by organising explosions, forming a criminal organisation, and false reporting of a crime. Those charges were subsequently added to the original proceedings against the applicant.

On 27 January 2000 the Šiauliai Regional Court extended the term of the applicant’s detention until 1 April 2000 for fear of his absconding and committing new offences. The court found that the serious charges against the applicant and his two previous convictions justified that fear. The applicant and his defence counsel were present at the hearing.

On 14 February 2000 the Court of Appeal dismissed the applicant’s appeal against the extension of the term of his detention on remand, upholding the reasoning of the lower court.

On 30 March 2000 the Šiauliai Regional Court extended the term of the detention until 1 May 2000 on the same grounds as before, the applicant and his lawyer being present.

The bill of indictment in the applicant’s case was confirmed on 17 April 2000. He was indicted on five counts, including attempted murder, extortion, involvement in a criminal association, the destruction or property and the illegal acquisition of explosives. Four other co-accused were indicted with the applicant; 29 witnesses were identified, and the case materials comprised five volumes.

On the same date, the Court of Appeal dismissed the applicant’s appeal against the prolongation of his detention on remand.

On 1 May 2000 the Šiauliai Regional Court held a hearing in the presence of the applicant and his defence counsel and decided further to extend the applicant’s remand in custody until 10 July 2000, for fear of his absconding, committing new crimes and obstructing the investigation. The court mentioned the gravity of the charges against the applicant and the strength of the evidence in the case file to justify that fear. The applicant appealed, claiming that the evidence against him was not sufficient to warrant his prolonged detention. On 18 May 2000 the Court of Appeal rejected the applicant’s appeal in the presence of his lawyer.

On 12 May 2000 the Regional Court held a directions hearing in the presence of the applicant’s defence counsel, whereby it decided to return the case to the investigators. On the same occasion, the court dismissed the applicant’s request to vary the remand measure.

On 12 June 2000 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 12 September 2000 on the same grounds as before. The applicant and his defence counsel were present at the hearing. On 30 June 2000 the Court of Appeal dismissed his appeal against the order in the presence of counsel.

On 6 September 2000 the Court of Appeal quashed the decision of 12 May 2000, returning the case to the Regional Court for trial. On the same occasion, the court extended the term of the applicant’s detention on remand until 12 November 2000, noting that the grounds for the continued detention on remand persisted. The applicant and his lawyer were present at the hearing. The applicant lodged a cassation appeal against the decision of 12 May 2000, but it was dismissed by the Supreme Court on 7 November.

On 9 November 2000 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 February 2001 for fear of his obstructing the investigation and committing fresh crimes. The court noted the applicant’s criminal record, the gravity of the charges against him and the strength of the evidence in the case file to justify that fear. The applicant and his representative were present at the hearing.

On 23 November 2000 the Šiauliai Regional Court committed the applicant for trial.

On the same date the Šiauliai Regional Court extended the term of the applicant’s detention on remand until 9 May 2001 on the same grounds. The applicant and his defence counsel were present at the hearing. The applicant’s appeal against that order was dismissed by the Court of Appeal on 27 December 2000. The Court of Appeal observed that the trial of the case had been prolonged, but noted that the delay was not imputable to the trial court.

On 2 May 2001 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 August 2001 on the same grounds, the applicant’s lawyer being present. The applicant’s appeal against the order was dismissed by the Court of Appeal on 22 May 2001.

On 5 June 2001 a prosecutor confirmed a bill of indictment in another criminal case whereby the applicant was charged on eight counts, including causing grievous bodily harm, theft and extortion. Two other persons were indicted with the applicant. Seven victims and nine witnesses were identified. On 25 June 2001 the Šiauliai Regional Court committed the applicant for trial in that case.

On 4 July 2001 the Šiauliai Regional Court extended the applicant’s detention on remand until 9 November 2001 on the same grounds, in the presence of his lawyer. The applicant appealed, requesting his release on bail. He claimed that his detention was unjustified since he could live with his family. On 20 July 2001 the Court of Appeal dismissed the applicant’s appeal against the extension order. The applicant’s lawyer was present at the hearing.

On 4 October 2001 the Šiauliai Regional Court extended the term of the applicant’s detention on remand until 9 February 2002, the applicant’s defence counsel being present. The court referred to the strength of the evidence in the case file and the fear that the applicant might commit new crimes and obstruct the investigation by influencing the witnesses.

The applicant’s appeal against the above order was dismissed - in the presence of the applicant’s lawyer - by the Court of Appeal on 17 October 2001. The court took into account the fact that the applicant had been detained on remand for a considerable period of time, but noted that this was justified by the complexity and volume of the case (numerous charges against five co-accused and a case file in nine volumes). The Court of Appeal did not find any indication of procrastination in the proceedings. It noted that the examination of the case had been delayed due to objective circumstances. In particular, several hearings had been adjourned due to the failure of the witnesses or defence lawyers to appear before the court. The co-defendants had requested the adjournment of the trial on several occasions. The court finally observed that the applicant had submitted no serious reason that would prompt it to vary the remand measure.

On 7 December 2001 the two cases against the applicant were joined, and the prosecution presented a new set of charges. These included creating a criminal organisation, the illegal acquisition of explosives, extortion, the destruction of property in dangerous ways, causing serious bodily harm and the attempted murder of several people. These charges covered more than 11 episodes which took place at different times.

On 6 February 2002 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 May 2002 on the same grounds as before. The Regional Court also noted the fact of the applicant having denied his guilt amongst the reasons justifying the fear of his absconding, obstructing the investigation and committing fresh crimes. The applicant’s lawyer was present at the hearing.

On 27 February 2002 the Court of Appeal dismissed the applicant’s appeal against the decision, his lawyer being present. While the Court of Appeal acknowledged that the length of the applicant’s detention on remand had been somewhat prolonged, it considered the length to be justified in view of the complexity of the case, the gravity and number of charges against the applicant, and the strength of the evidence in the case file. The Court of Appeal noted that the investigation and trial had been adjourned a number of times for the purpose of satisfying various procedural requests of the defendants and their lawyers to investigate or re-evaluate evidence. In addition, witnesses, complainants and the defendants’ lawyers had failed to attend certain court hearings. At the same time, the appellate court eliminated from the reasoning of the Regional Court’s decision of 6 February 2002 the reference to the applicant denying his guilt as an element justifying his remand in custody. In this connection the Court of Appeal emphasised that taking account of such an element could unlawfully prejudge the assessment by a trial judge of the merits of the charges against the applicant. The Court of Appeal underlined that the reasons for detention must pertain solely to the need to ensure the attendance of a person at trial, and that remand in custody could not be authorised on the ground of any premature assessment of the evidence against the defendant or his plea in regard to the charges.

The Court of Appeal further observed that the applicant had submitted no valid reasons to prompt varying his remand, all his requests for release being motivated exclusively by the alleged lack of evidence, and there being no element in the applicant’s appeals to allay the fear that he might abscond, obstruct the investigation or commit fresh crimes. The Court of Appeal reiterated in this respect that it was not its function to rule on the merits of the charges against the applicant when deciding the question of his remand. The appellate court concluded that the likelihood of the applicant absconding, obstructing the investigation or committing fresh crimes persisted regardless of the relatively lengthy period of his remand in custody.

On 9 May 2002 the Šiauliai Regional Court extended the term of the applicant’s remand in custody until 9 August 2002, again for fear of his absconding, obstructing the investigation and committing new crimes. The applicant’s lawyer was present at the hearing.

On 19 July 2002 the Šiauliai Regional Court convicted the applicant on eight counts, including attempted murder, causing grievous bodily harm, involvement in a criminal association, the destruction of property and theft. He was acquitted on three other counts. The applicant was sentenced to 18 years’ imprisonment, including the time already spent in detention on remand. He was also fined in the amount of LTL 2200 (approximately EUR 629), and confiscation of his property was ordered. The judgment was 36 pages long, and five other persons were convicted with the applicant. The court heard 19 victims and 10 witnesses.

In response to the applicant’s complaint about the length of the proceedings, the court noted that, while they were somewhat protracted, the essence of the applicant’s right to be tried within a reasonable time was not breached. The Regional Court observed that the length of the proceedings had been largely determined by the conduct of the co-accused and their lawyers. In particular, 10 hearings had to be adjourned due to the failure of defence lawyers (including the applicant’s representative) to appear before the court, or their inability to take part in the proceedings due to illness. Three more hearings had been adjourned because of the defendants’ illness, the change of lawyers, or the refusal of the defendants to participate in the trial.

The applicant appealed, complaining that the case against him had been fabricated, that the charges had been imprecise and had been changed a number of times, that he had not been given access to the case file, that his defence rights had been breached, that the trial court had refused to call certain witnesses, that the judges had been biased, and that certain other irregularities had rendered the trial unfair. The applicant also complained about the length of the proceedings.

On 4 September 2003 the Court of Appeal amended the judgment, acquitting the applicant on a number of counts, including attempted murder, involvement in a criminal association and theft, on the grounds that the evidence supporting his guilt was contradictory. The prosecution for false reporting of a crime was discontinued as time-barred. The applicant’s conviction for causing grievous bodily harm, extortion and destruction of property was upheld. The sentence was accordingly reduced to five years’ imprisonment, including the period that the applicant had already spent in custody (as of 1 March 1999). The court also ordered confiscation of the applicant’s property in the amount of LTL 2000 (approximately EUR 571).

While the Court of Appeal acknowledged that some delays in the proceedings had been imputable to the authorities - namely, the delays which had occurred because of the changes in the composition of the trial court - it considered that the applicant’s right to “trial within a reasonable time” was not breached. Nor did it find any other irregularities which could have rendered the proceedings “unfair” as alleged by the applicant.

On 2 December 2003 the applicant was released on licence.

The applicant’s cassation appeal was dismissed by the Supreme Court on 2 March 2004. The Supreme Court found no indication of unfairness in the proceedings or a breach of the applicant’s procedural rights.

On 18 June 2002 the applicant brought before the Šiauliai Regional Administrative Court an action against the Ministry of Justice, claiming pecuniary and non-pecuniary damages for his being infected with Hepatitis C during his stay in the remand prison. On 19 June 2002 the court disallowed his action for want of jurisdiction. The court observed that the applicant should have brought the claim before the Vilnius Regional Administrative Court, pursuant to the relevant procedural provisions.

On 18 July 2002 the Supreme Administrative Court rejected the applicant’s appeal.

On 1 August 2002 the applicant brought an action before the Šiauliai Regional Administrative Court, claiming pecuniary and non-pecuniary damages from the Šiauliai Remand Prison in relation to his Hepatitis C infection. On 8 August 2002 the court disallowed the action by reason of the applicant’s failure to comply with the relevant procedural requirements, namely, to state his factual and legal claims in a clear manner. The court gave the applicant time until 19 August 2002 to amend the action. On 13 August 2002 the applicant submitted a fresh action. However, it was disallowed by the Šiauliai Regional Administrative Court on 19 August 2002 on the same grounds. On 19 September 2002 the Supreme Administrative Court dismissed the applicant’s appeal against the decision of 19 August 2002.

The prison doctors confirmed that the applicant was infected with Hepatitis C and prescribed appropriate treatment. The applicant’s condition was further monitored throughout 2002.

The provisions of the Code of Criminal Procedure (Baudžiamojo proceso kodeksas), in force until 1 May 2003, provided as follows:

“Detention on remand shall be used only ... in cases where a statutory penalty of at least one year’s imprisonment is envisaged. ...

The grounds for the detention on remand shall be specified. The grounds ... shall be the reasonable suspicion that the accused will:

(1) abscond from the investigation and trial;

(2) obstruct the determination of the truth in the case [influence other parties or destroy evidence];

(3) commit new offences ... whilst suspected of having committed crimes provided in Articles ... 105 [aggravated murder], 111 [serious bodily harm].... 227 [founding a criminal organisation], ... 271 [theft], 273 [extortion], 278 § 2 [aggravated destruction of property] ... of the Criminal Code ... .

Where there is a reasonable fear that the accused will abscond from the investigation and trial, detention on remand may be ordered taking into account his family status, permanent place of residence, employment relations, health, criminal record, relations abroad and other circumstances. ...”.

“... [T]he arrested person shall be brought before a judge within not more than 48 hours ... The judge must hear the person as to the grounds of the arrest. The prosecutor and counsel for the arrested person shall take part in the inquiry [unless the judge decides otherwise]. ... After having questioned the arrested person, the judge may maintain the arrest order by fixing the term of detention, or may vary or revoke the remand measure. ...

After the case has been transmitted to the court ... [it] can order, vary or revoke the detention on remand. ...”

“Detention on remand cannot last longer than six months. A specific term of remand shall be fixed by a judge adopting the remand order; this term can be extended by the same judge or another judge of the same district court, but only for a period not exceeding six months.

In view of the particular complexity or size of a case, a judge of a regional court may extend the maximum term specified in the first paragraph of this Article for a period not exceeding three months. The extension may be repeated, but the total length of the term at the stage of the pre-trial investigation may not exceed 18 months ...

For the purpose of extending the term of detention on remand at the stage of the pre-trial investigation, ... a judge must convene a hearing to which defence counsel and the prosecutor and, if necessary, the detained person shall be called ... .”

[Once the case is transferred to a court], a court of first or appellate instance shall order detention on remand or extend its term upon the request of a prosecutor or on its own motion for a period not exceeding three months. The extension may be repeated – giving reasons – in view of the particular complexity, size of a case or other objective circumstances. The question of remand shall be resolved at a directions hearing or trial, or at a hearing specially convened for these purposes. The detainee, his defence lawyer, and a prosecutor must be summoned, and their presence before the court is obligatory. ...

If the court decides to remit the case for additional investigation, the maximum length of detention on remand may be extended for a period not exceeding four months. In such cases, the question of remand shall be resolved by the court, and the case shall be remitted for further investigation. ...”

“A person remanded in custody or his defence council shall have the right during the pre-trial investigation or trial to lodge [with an appellate court] an appeal against the detention on remand or the extension of its term ... . A judge or the appellate court must examine the appeal within seven days from its receipt. With a view to examining the appeal, a hearing may be convened, to which the arrested person and his counsel or counsel alone shall be summoned. The presence of a prosecutor is obligatory at such a hearing.

The decision taken by [the appellate judge] is final and cannot be the subject of a cassation appeal ... .

A further appeal shall be determined when examining the extension of the term of the detention on remand.”

Other relevant provisions of the Code of Criminal Procedure: Article 52 § 2 (3) and (8) and Article 58 § 2 (8) and (10) provide, respectively, that the accused and their counsel have the right to “submit requests” and to “appeal against acts and decisions of an interrogator, investigator, prosecutor and court.”

“A judge individually or a court in a directions hearing, in deciding whether to commit the accused for trial, shall determine ... (11) whether the remand measure has been selected appropriately.”

“After having decided, that there is a sufficient basis to commit the accused for trial, a judge individually or a court in a directions hearing shall determine the questions ... (2) of the remand measure in respect of the accused ...”

“[During the trial, the defendant] has the right to ... 3) submit requests; ... (11) appeal against the judgment and decisions of a court.”

“In the course of the trial, a court may decide to order, vary or revoke a remand measure in respect of the defendant.”

“1. Damage caused by the unlawful acts of public institutions shall be compensated by the State from the budget, irrespective of the fault of an actual civil servant ...

For the purposes of this Article, the term “action” shall be taken to mean any action (active action or failure to act) of a public institution or its employees, which directly affects the rights, liberties or interests of persons ... .

The civil liability of the State ... shall arise if employees of public institutions fail to act in accordance with the law.”

Article 6.273 of the Civil Code provides that, in cases where the State is liable to cover the damage, it shall be represented by the Government or an institution authorised by the Government.