CASE OF STRAN GREEK REFINERIES AND STRATIS ANDREADIS v. GREECE

Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

Stran Greek Refineries ("Stran") is a company currently in liquidation. Its registered address is in Athens and Mr Stratis Andreadis was its sole shareholder.

Under the terms of a contract concluded on 22 July 1972 with the Greek State, which at the time was governed by a military junta, Mr Andreadis undertook to construct a crude oil refinery in the Megara region, near Athens. The refinery was to be built, at an estimated cost of 76,000,000 US dollars, by a company which it was proposed to form, Stran Greek Refineries, of which the second applicant was to be the sole owner. All the latter’s rights and obligations were to be automatically transferred to the company upon its incorporation.

The Government ratified the contract by Legislative Decree no. 1211/1972, published in the Official Gazette of 26 July 1972. Under Article 21 of the contract, the State undertook to purchase, not later than 31 December 1972, a plot of land in Megara suitable for the construction of the refinery. On 27 July 1972, by a Royal Decree (no. 450), issued pursuant to Legislative Decree no. 2687/1953 on "the Investment and Protection of Capital Funds from Abroad", the State authorised Mr Andreadis to import 58 million US dollars to finance the scheme.

However, the project stagnated because the State failed to fulfil its obligation. On 28 November 1973 the Ministers of Industry and Agriculture announced at a press conference in Megara the Government’s decision to return to the proprietors the land which had already been expropriated in accordance with Article 21 of the contract. The following day the Megara police ordered that the work should cease.

In December 1973 Stran protested to the relevant authorities and sought permission to proceed with the work. On 27 February 1974 it even issued an extra-judicial summons inviting the State to ratify the purchase of the land in question, but the State refused to revoke the police order prohibiting the continuation of the work.

Once democracy had been restored, the Government took the view that the contract and Decree no. 450 were prejudicial to the national economy; they relied on Article 2 para. 5 of Law no. 141/1975 on the termination of preferential contracts (kharistikes symvasseis) concluded under the military regime (1967-74). This Law, which was enacted by special authorisation under the 1975 Constitution (Article 107 - see paragraph 24 below), possessed superior force.

The applicants did not respond to a proposal addressed to them by the Minister for Co-ordination on 19 November 1975 inviting them to enter negotiations for the revision or termination of the contract. Accordingly, a ministerial committee on the economy terminated the contract on 14 October 1977. The applicants did not challenge this decision in the courts.

Prior to the termination of the contract, Stran had incurred expenditure in connection with the scheme. In particular, it had concluded contracts for the supply of goods and services with foreign and Greek undertakings and had taken out loans.

A dispute then arose between Stran and the State. On 10 November 1978 Stran brought an action (anagnoristiki agogi) in the Athens Court of First Instance for a declaration that the State should pay it compensation in the amounts of 251,113,978 drachmas, 22,799,782 US dollars and 877,466 French francs. It argued that the State had been in breach of its obligations during the period of validity of the contract, in particular in so far as it had, since 27 November 1973, prohibited the continuation of work on the construction of the refinery at Megara and had not, since 9 February 1974, taken any steps to expropriate the land required for that construction. It also sought the return of a cheque for 240 million drachmas which it had lodged with the Ministry of the National Economy as security for the proper performance of the contract; it further claimed reimbursement of the commission and the fiscal stamp fee paid to the Commercial Bank of Greece.

The State challenged the jurisdiction of the court. It contended that the dispute should be referred to arbitration in accordance with Article 27 of the contract, the relevant paragraphs of which were worded as follows:

"1. Any difference, dispute or disagreement arising between the State and the Concessionaire as to the application of this Agreement and relative to the interpretation of the terms and conditions thereof and the extent of the rights and obligations deriving therefrom shall be resolved exclusively by arbitration by three arbitrators according to the following procedure, no other arbitration agreement being required.

The arbitration award shall be definite, final and irrevocable, and shall constitute an enforceable instrument requiring no further action for enforcement or any other formality. It shall be liable to no ordinary or extraordinary judicial remedies, nor shall it be subject to cancellation or suspension before ordinary courts of justice. The party failing to comply with the provisions of the arbitration award shall be obligated to make good any and all damage (damnum emergens or lucrum cessans) caused to the other party."

In a preliminary decision (no. 13910/1979) of 29 September 1979, the Athens Court of First Instance rejected the State’s main submission. It held that the arbitration clause concerned solely the settlement of disputes arising from the performance of the contract and not the failure of one of the parties to perform the contract. It found further that the ministerial committee on the economy had terminated the contract in issue in its entirety (see paragraph 9 above) which had the effect of rendering the arbitration clause void as it was not an autonomous provision. In addition, the court dismissed the State’s argument that two of the conditions subsequent contained in the contract, namely the lodging of a cheque as security and the payment of the second part of the minimum capital, had not been satisfied. Finally, the court ordered additional investigative measures, including the hearing of five witnesses, in order to determine the existence and extent of the damage alleged by Stran.

On 12 June 1980 the State filed an arbitration petition and appointed an arbitrator. It requested the arbitration court to declare that all the claims for compensation against the Greek State lodged by Stran in the Athens Court of First Instance (see paragraph 10 above) were unfounded.

In its memorial of 28 June 1980 Stran - which had appointed a professor of law at Athens University as arbitrator - maintained primarily that the arbitration court lacked jurisdiction and requested that the arbitration be stayed until the proceedings instituted on 10 November 1978 had been concluded; in the alternative and in order to rebut the State’s arguments on the merits, it referred the arbitrators to its pleadings in the Athens Court of First Instance.

The arbitration court was constituted on 3 July 1980; its president was chosen jointly by the two other arbitrators (Article 27 para. 3 of the contract). It made its award on 27 February 1984.

It found that it had jurisdiction in that, in its view, the disputes arising from the total failure to perform the contract were also subject to arbitration, which was not restricted to those deriving from non-performance of individual clauses as had been argued by the State. The wording of the arbitration clause in Article 27 (see paragraph 10 above) was sufficiently general and clear to rule out such distinctions.

On the merits, the arbitration court relied on the evidence adduced by the parties before the Athens Court of First Instance on 10 November 1978 (see paragraph 10 above). It found that responsibility for the losses sustained by Stran was shared - 70% for the State and 30% for the company. The latter had commenced work on land which had been the subject of a contested expropriation order and without first obtaining the necessary planning permission. It therefore held Stran’s claims to be well-founded in an amount not exceeding 116,273,442 drachmas, 16,054,165 US dollars and 614,627 French francs, plus interest at 6% from 10 November 1978; however, this reference to interest did not appear in the operative part of the decision. Finally, the court declared that the State was unlawfully retaining the cheque lodged as security (see paragraph 10 above).

On 24 July 1984 the applicant company sought an order from the Athens Court of First Instance requiring the State to return the security, but the court stayed the proceedings pending the conclusion of those instituted on 10 November 1978 (see paragraph 10 above).

On 2 May 1984 the State had asked the Athens Court of First Instance to set aside the arbitration award of 27 February 1984.

It argued that the arbitration court had lacked jurisdiction to hear disputes arising from the contract in issue and Stran’s financial claims against the State. In the alternative, it affirmed that the contracting parties had intended to limit the jurisdiction of the arbitration court to disputes concerning the performance and interpretation of the clauses of the contract and the scope of the rights and duties deriving therefrom; its jurisdiction could not therefore extend to disputes relating to the total failure to perform the contract. It followed that the dispute in question was a matter for the ordinary civil courts, as the Athens Court of First Instance had recognised in its judgment no. 13910/1979. In the further alternative, the State argued that the arbitration court’s lack of jurisdiction was confirmed by the fact that Stran’s claims against it had become statute-barred following the termination of the contract. Finally, it stressed the declaratory nature of the action brought by Stran on 10 November 1978 (see paragraph 10 above).

In a judgment (no. 5526/1985) of 21 April 1985 the Athens court dismissed the State’s application, holding that the decision terminating the contract had not rendered the arbitration clause void. That clause continued to produce its effects in relation to disputes which had arisen during the period of validity of the contract.

On 19 December 1986 the applicant company withdrew its first action in the Athens Court of First Instance (see paragraph 9 above), but sought to pursue its action for the return of the cheque lodged as security (see paragraph 14 above).

When this action was heard in the Athens Court of First Instance, on 6 February 1987, the State, relying on Article 294 of the Code of Civil Procedure, opposed the discontinuance of the first action. It maintained that the latter action would have resulted in a finding unfavourable to Stran and that the State thus had a legitimate interest in seeking a final decision.

However, the court again stayed the proceedings (decision no. 2877/1987) on account of the appeal on points of law which was pending (see paragraph 19 below).

In a judgment (no. 9336/1986) of 4 November 1986, the Athens Court of Appeal, basing its decision on the same grounds, upheld the judgment of 21 April 1985.

It ruled, inter alia:

"In modern Greek legislation the principle of the autonomy of an arbitration clause in relation to the contract prevails. The termination of the contract, for whatever reason, does not bring an end to the power of the arbitrators designated to hear disputes which have arisen during the period of validity of the contract ... The decision of the ministerial committee on the economy did not annul the arbitration clause contained in Article 27 of the contract and, accordingly, it does not preclude the arbitrators from examining the merits of the dispute."

On 15 December 1986 the State appealed to the Court of Cassation.

The hearing was initially set down for 4 May 1987, but on that date it was postponed to 1 June 1987 at the State’s request, on the ground that a draft law concerning the case in question was before Parliament.

In reply to a question put by the European Court at the hearing on 19 April 1994, the applicants’ lawyer maintained that the Court of Cassation’s judge-rapporteur had sent his opinion, which had been favourable to the applicants’ arguments, to the parties before 4 May and this affirmation was not disputed by the Government.

On 22 May 1987 Parliament enacted Law no. 1701/1987 on "the compulsory participation of the State in private undertakings ... and the redemption of shares", which entered into force upon its publication in the Official Gazette of 25 May 1987. This Law dealt principally with the renegotiation of a concession for the prospecting for and extraction of oil and natural gas in an area of the Sea of Thrace. However, Article 12 of the Law was worded as follows:

"1. The true and lawful meaning of the provisions of Article 2 para. 1 of Law no. 141/1975 concerning the termination of contracts entered into between 21 April 1967 and 24 July 1974 is that, upon the termination of these contracts, all their terms, conditions and clauses, including the arbitration clause, are ipso jure repealed and the arbitration tribunal no longer has jurisdiction.

Arbitration awards covered by paragraph 1 shall no longer be valid or enforceable.

Any principal or ancillary claims against the Greek State, expressed either in foreign or local currency, which arise out of the contracts entered into between 21 April 1967 and 24 July 1974, ratified by statute and terminated by virtue of Law no. 141/1975, are now proclaimed time-barred.

Any court proceedings at whatever level pending at the time of the enactment of this statute, in respect of claims within the meaning of the preceding paragraph, are declared void."

On 10 July 1987, after hearing the opinion of the judge-rapporteur calling for the appeal to be dismissed, the First Division of the Court of Cassation delivered its judgment (no. 1387/1987). It held that Article 12 was unconstitutional on the following grounds:

Not only does [Article 107] of the Constitution confer superior force on Law no. 141/1975, but it also prohibits subsequent amendments or additions thereto, or even authoritative interpretation thereof, in the form of ordinary legislation. The purpose of that superior force and of the provision in the Constitution requiring that a single law be enacted once and for all within three months of the entry into force of the Constitution was to ensure legislative stability and international confidence for investments in Greece. This opinion is based on the only possible meaning to be attributed to the expression ‘single law to be enacted once and for all’ and on the ease with which the said provision would be flouted if amendments, additions or authoritative interpretation of that law were allowed ...

It follows that ... the provisions of Article 12 of Law no. 1701/1987 which purport to provide an authoritative interpretation of and to amend and supplement Article 2 para. 1 of Law no. 141/1975 and which were enacted after the expiry of the time-limit laid down in Article 107 para. 2 of the Constitution are contrary to that instrument. In accordance with Article 93 para. 4 of the Constitution the court is therefore precluded from applying them. The Division refuses to apply unconstitutional provisions and, pursuant to Article 563 para. 2 of the Code of Civil Procedure, holds that it is bound to refer the case to the Court of Cassation sitting in plenary session ..."

The hearing in the Court of Cassation sitting in plenary session opened on 19 November 1987, but as a result of the death of one of its members Stran sought a new hearing, which was held on 25 February 1988.

The Court of Cassation delivered its judgment (no. 4/1989) on 16 March 1989. It observed, inter alia:

"... [The Constitution] provides for the enactment of ‘a single law to be enacted once and for all’ which by definition possesses superior force inasmuch as it may be neither supplemented nor amended by ordinary legislation ... However, the prohibition on supplementing or modifying the content of [such] laws does not mean that they may never be interpreted. The fact that they are sui generis, which gives them precedence over ordinary legislation, ... does not preclude their interpretation where the circumstances so require. The purpose of such interpretation is not to amend the substance of the law interpreted, but to clarify its original meaning and to resolve disputes that have arisen in connection with its application or which may do so in the future. [The need for such interpretation] will ultimately be determined by the court which will have to ascertain whether the meaning of the law interpreted actually gave rise to doubts justifying the intervention of the legislature ... Accordingly, the interpretation of Law no. 141/1975 is not contrary to the Constitution merely because it is a law of superior rank. It must nevertheless be determined, on the one hand, whether the interpretation was necessary in the specific case and, on the other, whether the non-interpretative provisions of this Law, which have a bearing on the solution of the case in issue, are contrary to the Constitution ... The wording [of Article 2 para. 5 of Law no. 141/1975] lacks clarity and creates doubt as to whether the arbitration clause survives the termination of the contract ... and as to the jurisdiction of the arbitration court. In the instant case doubt first arose in the course of the proceedings brought by [the applicants] in the ordinary civil court and again - following the preliminary decision of the Athens Court of First Instance - when those proceedings had been discontinued and recourse was had to arbitration, where diametrically opposed arguments were put forward ... Irrespective of those doubts, the main issue is the acceptance or rejection of the principle of the autonomous character of the arbitration clause and of its scope. For a long time this matter has been the subject of significant differences of opinion in international case-law and among legal writers. In some countries the principle of the survival of the clause to resolve disputes arising prior to the termination of contracts ... prevails. In other countries the dominant view is that termination of the contract entails the annulment of the clause and therefore the referral of all the disputes to the ordinary courts. In other countries again, the accepted view is that the autonomous character of the arbitration clause operates only in respect of certain types of dispute. It was therefore necessary to provide an interpretation of Law no. 141/1975 and that interpretation resolved the problem for the purposes of Greek law by opting for the annulment of arbitration clauses ... and the removal of jurisdiction from the arbitration court. The fact that the intervention of the legislature occurred ... five days before the hearing in the First Division of this Court and following a previous adjournment does not mean that it was not necessary and does not render it contrary to Article 26 paras. 1 and 3 and Articles 77 and 87 of the Constitution. The dispute in question provided the opportunity to resolve a problem which had already arisen. Consequently, it cannot be concluded that, in giving such an interpretation in this case, the legislature interfered with the jurisdiction of the ordinary courts and usurped that jurisdiction. It follows that, contrary to the finding of the First Division, Article 12 para. 1 of Law no. 1701/1987 is not in breach of the Constitution ..."

The Court of Cassation took the view that paragraph 2 of Article 12 was not unconstitutional as it essentially supplemented paragraph 1 and sought to deprive of effect any arbitration awards that were made after the termination of contracts and that would not have been made if the meaning of Law no. 141/1975 had been clarified in time. In addition, the court refused to examine the constitutionality of paragraph 3, finding that it had no bearing on the case before it. Finally, it held that the adoption of paragraph 4 shortly before the hearing purported to remove from the courts the possibility of determining the validity of the contested award. That provision therefore violated the principle of the separation of powers.

The Court of Cassation remitted the case to the First Division which, on 11 April 1990, quashed the Court of Appeal’s judgment of 4 November 1986 (see paragraph 18 above) and declared void the arbitration award of 27 February 1984 (see paragraph 13 above).

The following provisions of the 1975 Constitution are relevant here:

"1. The authentic interpretation of the laws shall rest with the legislative power.

A law which is not truly interpretative shall enter into force only as of its publication."

"The courts shall be bound not to apply laws, the contents of which are contrary to the Constitution."

"1. Legislation of higher formal rank enacted before 21 April 1967 pertaining to the protection of foreign capital shall continue to possess such rank and shall be applicable to capital imported henceforth.

A single law to be enacted once and for all within three months of the date of the entry into force of this Constitution shall specify the terms and the procedure for the termination or revision of preferential administrative agreements or measures concluded or promulgated between 21 April 1967 and 23 July 1974 pursuant to Legislative Decree no. 2687/1953, in so far as such agreements or measures concern the investment of foreign capital ..."

According to legal writers, the reference in Article 107 of the Constitution to Legislative Decree no. 2687/1953 - which provides, inter alia, that arbitration is to constitute the sole means of resolving disputes concerning foreign investment - confers constitutional status on such arbitration (Introduction to Greek Law, edited by K.D. Kerameus and P.J. Kozyris, Deventer/Athens, Kluwer/Sakkoulas, 1988, p. 263).

The Code of Civil Procedure provides, inter alia, as follows:

"The plaintiff may withdraw the action without the consent of the defendant before the latter has filed pleadings on the merits of the case. He may not so withdraw at a later stage if the defendant objects to the withdrawal on the ground that he has a legitimate interest in the proceedings being concluded by a final decision."

"The effect of the withdrawal of the action is that it shall be deemed never to have been brought ..."

The VIIth section of the Code of Civil Procedure (Articles 867-903) deals with arbitration. The relevant provisions are as follows:

"The arbitrator ... shall, unless stipulated otherwise in the arbitration clause, file the original of the arbitration award with the registry of the Court of First Instance within whose jurisdiction the decision was given ..."

"1. The ordinary remedies do not lie against arbitration awards.

The arbitration agreement may specify an appeal against the arbitration award before different arbitrators ..., but it must at the same time define the conditions, the time-limit and the procedure to be followed for the exercise of such a remedy and for the decision thereon."

"If the arbitration agreement does not specify the appeal provided for in Article 895 para. 2 or if the time-limit for filing such an appeal has expired, the arbitration award shall become final ..."

"The arbitration award may be annulled, in whole or in part, only by judicial decision and on the following grounds:

(1) where the arbitration agreement is void;

(2) where it was made after the arbitration agreement had ceased to be valid;

(3) where the arbitrators were designated in breach of the terms of the arbitration agreement or of the statutory provisions ...;

(4) where the arbitrators exceeded the powers attributed to them under the arbitration agreement or by statute;

(5) where the provisions of Articles 886 para. 2, 891 and 892 have been infringed;

(6) where it is contrary to public policy and morality;

(7) where it is incomprehensible or where it contains contradictory provisions;

"1. Enforcement may be effected solely pursuant to an enforceable decision.

The following decisions shall be enforceable:

(b) arbitration awards;

"1. Enforcement may be effected solely on the basis of the copy of the enforceable decision bearing the stamp conferring authority to execute ...

Endorsement with the stamp conferring authority to execute shall be effected:

(d) in respect of arbitration awards by the judge of the First Instance Court ...;

Law no. 141/1975, which was enacted pursuant to Article 107 para. 2 of the Constitution, made possible the revision or revocation of any administrative measure of ratification, issued between 21 April 1967 and 23 July 1974, and any contract concluded by the State during that period with a legal or a natural person and concerning the investments governed by Legislative Decree no. 2687/1953. Such measures or contracts were to be revised or terminated where they were incompatible with the Constitution or other laws or contrary to morality, and prejudicial to the interests of the State, consumers and the national economy.

The contracts were to be terminated where it proved impossible to revise them in their entirety. Termination could be effected at the written request of the person concerned or unilaterally by the ministerial committee on the economy.

Article 2 para. 5 of the Law described the consequences of termination in the following terms:

"Following the termination of a contract ... the special privileges and agreements shall cease to have effect and the undertaking or investment shall be subject to the ordinary laws governing ordinary undertakings and investments ..."


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

The applicant was born in 1950 and lives in Sežana.

The applicant, a retired captain, worked for International Shipping and Chartering Ltd. (Splošna plovba p.o.), a State-owned company, from 1971 until 1974 and from 1981 until 12 September 1992. On 13 September 1992 the applicant concluded a temporary contract of work, renewed several times until 11 February 1999, with the Genshipping Corporation, Monrovia, Liberia, one of the parent companies of International Shipping and Chartering Ltd. In 2000 the applicant retired due to his disability and back pain.

On 13 August 2001 the applicant instituted proceedings before the Koper Labour Court against International Shipping and Chartering Ltd. and the Genshipping Corporation, seeking recognition of his permanent work status since 12 September 1992, his reinstatement and a pecuniary award, inter alia, for the loss of wages.

After two hearings, on 9 December 2002 the Koper Labour Court dismissed the applicant’s claim. Both parties appealed.

On 27 November 2003 the Higher Labour and Social Court upheld both appeals in part and remitted the case for re-examination. The applicant lodged an appeal on points of law against the rejected part of the appeal.

On 1 February 2005 the Supreme Court dismissed the applicant’s appeal on points of law. He lodged a constitutional complaint.

In the framework of the remitted proceedings, on 9 September 2005 the Koper Labour Court dismissed the applicant’s claim. He lodged an appeal.

On 31 August 2006 the second-instance court upheld the applicant’s appeal in part and amended the first-instance decision. He lodged an appeal on points of law.

On 9 January 2007 the Supreme Court rendered a decision rejecting the applicant’s appeal. He lodged a constitutional complaint.

On 27 March 2007 the Constitutional Court dismissed the applicant’s constitutional complaint (see paragraph 10 above).

On 4 December 2007 the Constitutional Court dismissed the second constitutional complaint (see paragraph 13 above).

On 14 April 2003 the applicant instituted proceedings against the Genshipping Corporation and against International Shipping and Chartering Ltd., seeking a declaration of employment since 2003, social cover and payment of salaries due since 2002. He also requested an interlocutory injunction.

On 22 April 2003 the Koper Labour Court dismissed the applicant’s request for an interlocutory injunction concerning the termination of his contract and social cover. He lodged an appeal against this decision which was rejected on 15 May 2003.

After three hearings, on 26 October 2005 the Koper Labour Court dismissed his claim. He lodged an appeal.

On 11 January 2007 the second-instance court rejected his appeal. He lodged an appeal on points of law.

On 8 November 2008 the Supreme Court rejected the appeal. He lodged a constitutional complaint on 9 February 2009 and the proceedings appear to be still pending.

On 8 May 2001 the applicant instituted proceedings before the Ljubljana Labour and Social Court against a decision of the Pension and Invalidity Insurance Fund.

Between 14 July 2003 and 13 July 2006 six hearings were held and two experts appointed.

At the last hearing the first-instance court delivered a judgment upholding the applicant’s claim in part. The defendant appealed.

On 6 March 2007 the Higher Labour and Social Court upheld the applicant’s appeal in part and amended the first-instance judgment.

On 25 October 2001 the applicant instituted proceedings before the Ljubljana Labour and Social Court challenging a decision of the Medical Insurance Fund issued on 20 September 2001.

On 30 October 2001 the applicant amended his claim by also challenging a decision of the Medical Insurance Fund issued on 24 September 2001.

On 8 November 2005 the first-instance court decided that the proceedings should be separated (reference number of the new set of proceedings Ps 2973/2005).

On 8 March 2007 the first-instance judgment was rendered and his request was upheld in part. The applicant appealed.

On 18 November 2007 the Ljubljana Higher Labour and Social Court upheld his appeal in part and modified the first-instance judgment.

Following the decision of 8 November 2005 (see paragraph 27 above) the Ljubljana Labour and Social Court issued a judgment on 7 May 2008. The applicant’s request was upheld in part and the remainder remitted for re-examination before the Medical Insurance Fund. The defending party appealed.

On 27 May 2009 the Ljubljana Higher Labour and Social Court upheld the appeal and remitted the case for re-examination before the firstinstance. The proceedings appear to be still pending.

On 24 December 2004 the applicant instituted proceedings before the Ljubljana Labour and Social Court challenging a decision concerning his unemployment benefits and payment of social security.

On 8 May 2005 the latter rendered a judgment, dismissing the applicant’s request. This decision was served on the applicant on 7 June 2006. He did not appeal.

On 4 April 2006 the applicant started proceedings against the Pension and Invalidity Insurance Fund challenging a decision on payment of his salaries.

On 12 May 2006 the Labour and Social Court rejected the applicant’s claim. This decision was served on the applicant on 20 June 2006. He did not appeal.

For relevant domestic law see Nezirović v. Slovenia ((dec.) no. 16400/06, 25 November 2008).


Remainder inadmissible;Violation of Art. 5-1-a;Violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant was born in 1951 and lives in Tököl.

In 1999 the applicant was sentenced to eight years' imprisonment for armed robbery by the Rimini Court in Italy. (The European Court of Human Rights subsequently held that the unfairness of the underlying proceedings gave rise to a violation of Article 6 § 1 of the Convention by the Italian authorities and awarded the applicant just satisfaction: Somogyi v. Italy, no. 67972/01, ECHR 2004IV). The end date of this sentence was 28 December 2007.

On 19 May 2003 the applicant was transferred to Hungary. On 20 October 2003 the Budapest Regional Court in Hungary held that he was to serve the remainder of his sentence under a strict regime in a Hungarian prison (fegyház) and that he could be released on parole after serving four-fifths of the term, i.e. on 23 May 2006.

The applicant appealed. On 16 February 2006 the Attorney General's Office intervened in the case, filing a motion for remedy in support of the applicant. The Office argued that the service of the applicant's sentence under a strict regime constituted an undue aggravation of his penal situation, in breach of Article 11 of the Transfer Convention, which entailed that he could be released on probation only belatedly.

On 14 March 2006 the Supreme Court quashed the Regional Court's decisions concerning the regime of the applicant's transferred sentence and his conditional release, holding that they were unlawful. It held that the best approximation of the Italian sentence in Hungarian law was to have imposed a medium regime (börtön) on the applicant for the remainder of his prison term, release on parole then being possible after having served three-quarters of the sentence.

On 17 March 2006 the applicant was released.

Subsequently, the applicant brought an official liability action against the Regional Court. He claimed compensation for the fact that, because of that court's wrong reconciliation of the Italian and Hungarian penitentiary rules, he had been released on parole only on 17 March 2006, whereas under the medium regime he could have already been released in November 2005. He also sought damages for having erroneously spent two years and five months in a strict-regime prison.

After divergent decisions, on 15 May 2008 the Supreme Court finally dismissed the action. Concerning the belated release, it held that, although the Regional Court's interpretation of the law had been overruled, there was no indication that it had carried out the complex task of reconciling the inconsistent Italian and Hungarian rules with gross negligence giving rise to tort liability. As to the period wrongly spent in a strict-regime prison, it noted that the applicant had not substantiated that he had sustained any actual damage.

From 1994 onwards, criminal proceedings were conducted against the applicant in Hungary for the abuse of firearms. On 6 February 2004 the Buda Central District Court sentenced him to four months' suspended imprisonment. The court observed that unlicensed firearms had been found in the applicant's car and, in so doing, it relied on the testimony of several witnesses. It took into account the extreme protraction of the case since 1994 as a crucial mitigating circumstance entailing a suspended sentence.

On 12 May 2005 the Budapest Regional Court upheld this judgment. On 15 November 2005 the Supreme Court dismissed the applicant's petition for review.

The Convention on the Transfer of Sentenced Persons (European Treaty Series no. 112) provides as follows:

“The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...”

“1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.

If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.”

“In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: ...

d. shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed.”


Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in 1974 and lives in Wroclaw.

On 11 July 1999 the applicant’s 27-year-old wife was about to give birth to their child. She was admitted to a hospital of the Wrocław Medical Academy at 8 p.m. As there was no progress in the delivery and the child showed signs of heart distress, on 12 July 1999 at 10 a.m. a decision was taken to perform a caesarean section. Epidural anaesthesia was administered, as a result of which she went into a coma. All resuscitation efforts failed. The applicant’s wife was subsequently transported to the intensive therapy unit, where she died on 31 July 1999.

A child H. was born by a caesarean section, suffering from serious health problems, mostly of a neurological character. He requires permanent medical attention.

On 31 July 1999 the applicant, represented by his father, requested that an investigation of the causes of his wife’s death be instituted. His request was complied with on the same day. On 2 August 1999 a post mortem was carried out. A medical opinion prepared immediately thereafter noted, among others, the necessity of obtaining a medical expert opinion as to the circumstances which had led to her death.

On 11 August 1999 the Wrocław-Krzyki District Prosecutor requested that the medical records of the applicant’s wife should be submitted to the prosecuting authorities.

On 19 August 1999 the applicant was interviewed by the Wrocław-Krzyki District Prosecutor.

On 6 October 1999 the Wrocław-Krzyki District Court, at the request of the District Prosecutor, released the physicians who had dealt with the delivery from their obligation to respect professional secrecy in order to obtain their testimony.

On 15, 17, 18, 19 November 1999 the District Prosecutor questioned medical staff dealing with the delivery and treatment of the applicant’ s wife as to the circumstances of her death.

In a letter submitted on 15 December 1999 the applicant requested the District Prosecutor to hear additional witnesses. On 17 December 1999 the Wroclaw-Krzyki District Prosecutor questioned three other witnesses.

On 29 December 1999 the District Prosecutor, having regard to the results of the inquiry, instituted a criminal investigation into a suspected offence of manslaughter, punishable under Article 155 of the Criminal Code.

On 30 December 1999 the District Prosecutor decided to obtain a medical expert opinion from the Lublin Institute for Forensic Medicine as to the treatment administered to the applicant’s wife.

On 4 and 10 February and 17 March 2000 the District Prosecutor heard further witnesses.

In a letter of 10 February 2000 the Lublin Institute of Forensic Medicine returned the case-file, explaining that it would not be able to prepare the opinion. On 30 March 2000 the District Prosecutor decided to obtain a medical expert opinion from the Kraków Institute of Forensic Medicine. Apparently the investigations were later stayed.

In October 2000 the District Prosecutor resumed the investigations, having obtained an expert opinion prepared by four medical experts of the Kraków Institute of Forensic Medicine.

By a decision of 31 October 2000 the District Prosecutor discontinued the investigations considering, in the light of the medical records, the testimony of the witnesses and the medical expert opinion, that the medical staff concerned had no case to answer. However, on the applicant’s appeal, the investigations were subsequently resumed by a decision of 5 January 2001. The Wroclaw Regional Prosecutor considered that the investigations had been discontinued prematurely, without all necessary evidence having been taken and without the facts relevant for the decision having been sufficiently established. He decided that the anaesthesiologists dealing with the delivery should be questioned again in order to elucidate discrepancies between their testimony and that further experts should be appointed with a view to establishing whether the conditions of the delivery could have had a negative impact on the health condition of the applicant’s son.

On 7 and 19 February 2001 the District Prosecutor questioned again the two anaesthesiologists involved in the treatment of the applicant’s wife.

On 20 February 2001 the District Prosecutor decided to obtain another expert opinion from the Łódź Institute of Forensic Medicine.

Four experts of the Łódź Institute for Forensic Medicine prepared an opinion dated 28 June 2001 and submitted it to the District Prosecutor on 23 August 2001, noting, inter alia, that the applicant’s son had died as a result of the damage he suffered during the delivery. The experts concluded, referring to the medical records of the case, that no criminal offence had been committed, the failure to reverse the result of anaesthesia not being a consequence of medical negligence.

In a letter dated 29 August 2001 the Łódź Institute of Forensic Medicine informed the District Prosecutor about an editorial error in its opinion in so far as it contained a reference to the death of the applicant’s son.

On 10 September 2001 the District Prosecutor questioned another witness. In a letter submitted on the same day the applicant and his father contested the medical expert opinion of 28 June 2001 containing among other things the wrong information about the death of the applicant’s son as a result of damage he had suffered during the delivery. They submitted that this error indicated that the opinion had not been prepared with the requisite care and attention to detail.

On 17 September 2001 the District Prosecutor decided to obtain an additional expert opinion from the Poznań Institute of Forensic Medicine. On 30 November 2001 this opinion was submitted. It further contained answers to the 32 questions posed by the applicant.

On 6 December 2001 the Wrocław District Prosecutor discontinued the investigations. In his decision he relied on the medical expert opinion which stated that the treatment of the applicant’s wife and the handling of the delivery, i.e. the caesarean section, epidural anaesthesia and reanimation had been carried out properly and had been adequate given her state of health and the circumstances. They could not have contributed to the deterioration of her condition or led to her subsequent death.

On 21 January 2002 the applicant appealed against the decision of 6 December 2001.

On 23 May 2002 the Wrocław-Krzyki District Court upheld the contested decision. It considered that the evidence obtained during the investigation had not provided any grounds on which to bring charges against the medical staff. It also referred to four medical expert opinions (from Wrocław, Poznań, Kraków and Łódź) according to which the medical treatment of the applicant’s wife during and after the delivery of birth was not improper. Consequently, no action or omission of a criminal character could have caused her death.

On 25 July 2002 the Wrocław-Krzyki District Court rejected the applicant’s appeal of 17 July 2002 against the decision of 23 May 2002.

On 10 December 2002 the District Prosecutor, at the applicant’s request, questioned a new medical expert in connection with the circumstances of the death of the applicant’s wife.

On 1 March 2003 the District Prosecutor resumed the investigations, which had been terminated by the decision of 6 December 2001.

On 26, 28 March, 24, 28 April, 29 May and 3 June 2003 the District Prosecutor questioned the medical staff involved in the dealing with the delivery.

On 4 April 2003 the Dolny Sląsk Chamber of Physicians submitted to the prosecuting authorities two expert opinions prepared for the purposes of disciplinary proceedings which were pending at that time (see §§ 39 and 40 below).

On 9 June 2003 the District Prosecutor ordered another expert opinion from the Białystok Institute of Forensic Medicine. Subsequently, it urged the Institute several times to accelerate the preparation of the opinion. On 14 October 2004 the opinion, prepared by four experts, was submitted to the District Prosecutor. The opinion also contained answers to the 32 questions posed by the applicant.

On 3 December 2004 the District Prosecutor interviewed one witness.

On 1 December 2004 the applicant submitted an unsolicited expert opinion prepared by two physicians.

On 8 December 2004 the District Prosecutor discontinued the investigations. He had regard, inter alia, to the medical expert opinion prepared by experts from the Białystok Institute for Forensic Medicine, which had stated that the caesarean section, epidural anaesthesia and reanimation had been adequate, given to the condition of the applicant’s wife and the circumstances.

37 On 23 December 2004 the applicant appealed against this decision.

On 24 March 2005 the Wrocław Regional Prosecutor decided to quash the contested decision. The Prosecutor observed that the evidence gathered so far in the case was incomplete in that it did not allow for the establishment of the relevant facts. Certain facts relevant for the assessment of the case had to be established, in particular the kind and exact amounts of medication administered to the applicant’s wife before the caesarean section. Further, certain discrepancies between various depositions of the anaesthesiologist F. M. had to be elucidated. It also seemed that there might have been some errors in the medical records which should be further investigated.

On 14, 29 April and 13 May 2005 the District Prosecutor heard witnesses. On 13 May 2005 experts from Warsaw who had prepared the opinion for the purposes of the disciplinary proceedings pending before the Regional Chamber of Physicians were also questioned. On 24 May and 28 July 2005 other witnesses were heard.

On an unspecified date in autumn of 2005 the prosecuting authorities requested that an additional expert opinion be prepared by the Institute of Forensic Medicine of the Białystok Medical Academy. This opinion is currently being prepared and the file of the investigations has been sent to the Institute.

The proceedings are pending.

On 30 August 1999 the applicant submitted a request to the Regional Chamber of Physicians to initiate disciplinary proceedings against the anaesthetist, F.M. On 26 October 1999 the Dolny Śląsk Chamber of Physicians started an inquiry concerning the causes of death of the applicant’s wife.

On 10 November 1999 the inquiry was stayed, the Chamber having regard to the parallel criminal investigations which were being conducted at that time by the District Prosecutor.

On 16 October 2002, after the decision of the District Prosecutor of 6 December 2001 concerning the discontinuance of the criminal proceedings had become final, the proceedings were resumed.

On 11 December 2002 the Dolnośląska Chamber of Physicians requested additional expert opinions from two experts from Warsaw. The opinions were submitted on 7 February 2003.

On 25 February 2003 the Supreme Chamber of Physicians decided to transmit the disciplinary case concerning the death of the applicant’s wife to the Poznań Regional Chamber of Physicians.

On 3 June 2004 the Wielkopolska Chamber of Physicians transmitted the case-file to the Dolny Śląsk Regional Medical Court.

On 25 April 2005 the Regional Medical Court in Wroclaw stayed the proceedings against F.M. pending the outcome of the further criminal investigations concerning the death of the applicant’s wife. It had regard to the fact that on 24 March 2005 the Wroclaw-Krzyki District Prosecutor had allowed the applicant’s appeal against a decision of 8 December 2005 to discontinue the proceedings (see § 38 above). The court further observed that a motion to impose disciplinary sanctions had been submitted to that court by the Agent for Disciplinary Matters only on 17 February 2005. The court noted that the disciplinary liability of the physician concerned had become prescribed under the relevant provisions of the Chamber of Physicians Act. However, as the criminal investigations were still pending, the period of prescription “could be prolonged”, pursuant to the provisions of Article 51 (2) of that Act.

The proceedings are pending.

On 11 July 2002 the applicant, acting also on behalf of his son H., lodged a compensation claim against the hospital and against the hospital’s insurance company with the Wroclaw Regional Court. He claimed a monthly pension for the child, just satisfaction for non-pecuniary damage they had suffered as a result of death of their mother and wife, and compensation for the funeral costs. He argued that his wife’s death and his son’s health problems had resulted from negligence in the handling of the anaesthesia administered to his wife during the birth. In passing, he observed that the experts who had prepared the opinion for the criminal investigation had stated that his son had also died; this was an example, in his view, of how badly the opinion had been prepared.

On 9 September 2002 the applicant was partly exempted from a court fee.

At a hearing held on 20 December 2002 the Wroclaw Regional Court ordered that the full medical records of the applicant’s wife’s case be submitted in evidence and that the file of the criminal investigations which were pending at that time be also submitted.

On 24 January 2003 the Wrocław Regional Court held a hearing. The applicant informed the court that the disciplinary proceedings were pending before the Regional Chamber of Physicians. The court decided to request information about the state of the proceedings and any possible expert opinions from the Chamber.

In February 2003 the applicant requested the court to admit in evidence an expert opinion he had privately commissioned before the lodging of the civil case (see § 35 above). This request was apparently refused.

By a decision of 7 April 2003 the Wrocław Regional Court stayed the proceedings until the end of the disciplinary proceedings. The court referred to two opinions which had been prepared in these proceedings and which indicated that it was likely that certain irregularities had indeed taken place when handling the delivery. The court considered that in these circumstances it was reasonable to stay the proceedings until the disciplinary proceedings had come to an end as their outcome was relevant for the further conduct and, possibly, the outcome of the civil case.

The applicant appealed, arguing, inter alia, that the disciplinary court of the Chamber of Physicians which could eventually be called upon to give a ruling in this case, was composed of four physicians and just one judge, which rendered these proceedings inherently unfair in that it was unlikely that it would be fully impartial.

By a decision of 25 April 2003 the Wroclaw Regional Court rejected the appeal as having been lodged outside the applicable time-limit.

By a letter of 9 September 2003 the applicant applied for the resumption of the stayed proceedings, arguing that in any event the civil court was not bound by the conclusions of the organs of the professional association of physicians.

By a decision of 9 October 2003 the Regional Court refused to resume the stayed proceedings on the ground that a team of specialists had been charged with the preparation of the opinion for the purpose of the disciplinary proceedings in order to assess the medical procedures followed in the case and such opinions had already been partly prepared. Their conclusions indicated possible negligence on the part of the medical staff involved; in addition, the medical records of the applicant’s late wife had been included in the files of the disciplinary proceedings, which were already well advanced. Hence, a decision of the disciplinary court could influence the judgment to be given in the civil proceedings.

On 2 March 2004 the applicant requested the civil court to take measures in order to have the disciplinary proceedings accelerated.

In a letter of 1 April 2004 the Chamber of Physicians in Wroclaw informed the Wroclaw Regional Court that the proceedings were still pending, that on 15 April 2004 charges would be brought against F.M. and that the files of the case would be sent, together with a motion for the imposition of a disciplinary penalty, to the Disciplinary Court of the Regional Chamber.

On 16 April 2004 the Regional Court informed the applicant that the civil proceedings would be resumed after the disciplinary proceedings had come to an end.

On 3 June 2004 a motion to have a disciplinary penalty imposed on F.M. was submitted to the Regional Disciplinary Court.

By a letter of 23 November 2004, in reply to a query submitted by the civil court on 8 November 2004, the Regional Agent for Disciplinary Matters of the local Chamber of Physicians reiterated that on 3 June 2004 the case had been submitted to the disciplinary court.

By a letter of 21 February 2005 the applicant requested the civil court to resume the proceedings. The applicant emphasised that there had been no progress whatsoever in the disciplinary proceedings since June 2004, when the disciplinary case had been brought to the court. This delay could only be attributed to the unwillingness of the Chamber of Physicians to conduct an effective investigation into the medical negligence which was arguably involved in his case. He invoked the possibility that any disciplinary liability would be prescribed as a result of the lapse of time.

On 7 June 2005 the Wroclaw Regional Court dismissed the applicant’s request for the proceedings to be resumed, considering that they should remain stayed until the criminal proceedings pending before the Wrocław-Krzyki District Prosecutor were completed.

The proceedings are pending.

The Chambers of Physicians’ Act of 17 May 1989 established Chambers of Physicians as a professional organisation of physicians. Membership of a local Chamber is mandatory. The disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the Chambers, i.e. agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers.

Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years and striking off the register of physicians.

The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on 26 September 1989.

Under this Order, the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. When investigating such a complaint, the agent may question a physician charged with professional misconduct, may appoint experts and question witnesses, and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant.

If information existing at the time when investigations are instituted, or gathered in the course of an investigation, is sufficient to charge a physician with professional misconduct, an agent shall draw up a motion to the court for a disciplinary penalty to be imposed, containing a detailed description of the alleged offence and written grounds.

Pursuant to Article 26 of the Order, the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed.

A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters. A further refusal of the Chief Agent may be appealed against to the Principal Court.

Under Article 29 of the Order, if the court, having received a motion for a penalty to be imposed, decides that the case is ready for examination at a hearing, it orders that a hearing be held. A physician is summoned to a hearing, whereas his defence counsel and the agent are informed of its date.

Under Article 18 of the Order, in disciplinary proceedings the complainant is entitled to: submit a request for evidence to be taken, lodge with the disciplinary court an appeal against the agent’s decision to discontinue the proceedings, and lodge an appeal against a decision of a first-instance court on the merits, but only on the question of responsibility. The complainant is entitled to have access to the case-file, but the agent can limit this access to documents which are not covered by medical secrecy.

Pursuant to Article 5 of the Order, the proceedings before the court are public for members of the Chambers of Physicians.

Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions. There is established case-law of the Polish courts to the effect that this liability of the State includes also liability for damage caused by medical treatment in a public system of medical care, run either by the State or by the municipalities.

Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of a human being shall be sentenced to imprisonment for between three months and five years.

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Law”) entered into force. Under Article 2 read in conjunction with Article 5(1) of the 2004 Law, a party to pending proceedings may ask for the proceedings to be speeded up and/or request just satisfaction for their unreasonable length .

The Law lays down various legal means designed to counteract and/or provide redress for undue delays in judicial proceedings.

The relevant part of Article 2 of the 2004 Law reads:

The relevant parts of Article 4 provide:

“1. The complaint shall be examined by the court immediately above the court conducting the impugned proceedings.”

Article 5, in its relevant part, reads:

“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Article 12 provides for measures that may be applied by the court dealing with the complaint. The relevant part provides:

“1. The court shall dismiss a complaint which is unjustified.

If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a specified time. Such instructions shall not concern the factual and legal assessment of the case.

If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Article 15 provides for an additional compensatory remedy:

“1. A party whose complaint has been allowed may seek compensation from the State Treasury ... for the damage it suffered as a result of the unreasonable length of the proceedings.”

Article 16 further specifies:

“A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5(1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.”


Giovanni Bonello;Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

The applicant was born in 1931 and lives in Częstochowa.

On 29 July 1999 the applicant lodged a complaint with the City Council. He claimed that his neighbour, who lived upstairs, had carried out illegal construction work as a result of which the walls of the applicant's flat had begun to crack.

On 16 November 1999 an on-site inspection was conducted by the authorities.

On 27 November 1999 the applicant lodged a complaint about the inactivity of the authorities with the Principal Construction Inspector (Główny Inspektor Nadzoru Budowlanego).

On 1 December 1999 the District Construction Inspector discontinued the proceedings. It was found that the work had been carried out in conformity with the law. The applicant appealed to the Regional Construction Inspector.

On 16 December 1999 the applicant's complaint about inactivity was transferred to the Regional Construction Inspector. It appears that the proceedings concerning this complaint remained dormant until 19 February 2002.

On 25 February 2000 the Regional Construction Inspector quashed the decision of 1 December 1999 and remitted the case.

On 1 August 2000 the applicant lodged a complaint about inactivity with the Minister of the Interior.

On 7 August 2000 his complaint of 1 August 2000 was transferred to the Principal Construction Inspector.

On 1 September 2000 his complaint was transferred to the Regional Construction Inspector.

On 19 February 2002 the Regional Construction Inspector found the complaint about inactivity, not specifying which one, well-founded and fixed a new time-limit for the authorities to take all necessary action.

On 15 May 2002 the District Construction Inspector issued a decision. It found that the work had been brought into conformity with the law. The applicant appealed.

On 17 June 2002 the applicant again lodged a complaint about inactivity.

On 24 June 2003 the Regional Construction Inspector quashed the decision of 15 May 2002 and remitted the case. The applicant appealed to the Supreme Administrative Court.

On 8 July 2003 the Principal Construction Inspector found the applicant's complaint about inactivity of 17 June 2002 well-founded and fixed a new 30 days' time-limit for the authorities. However the administrative authorities do not appear to have complied with the timelimit.

Eventually, as it transpires from the submissions of the applicant as well as from the observations submitted by the Government, on 21 September 2005 the Regional Administrative Court gave a judgment on the merits of the applicant's case. It further transpires that the applicant failed to lodge a cassation appeal with the Supreme Administrative Court. Hence, the judgment of 21 September 2005 became final.

For a presentation of domestic law, see: Kaniewski v. Poland, no. 38049/02, 8 February 2006; Koss v. Poland, no. 52495/99, 28 March 2006.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”), are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


The applicant, Mr Knut Haarvig, is a Norwegian national who was born in 1966 and lives in Arvikk, Sweden. He was represented before the Court by Mr T. Randby, a lawyer practising in Oslo. The Norwegian Government (“the Government”) were represented by their Agent, Mrs F. Platou Amble, Attorney, Attorney General’s Office (Civil Matters).

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

In the spring of 1997 the applicant graduated as a medical doctor. On 15 July 1997 he was granted a licence to perform duty service (turnustjeneste) at a hospital and thereafter he and a friend started to serve at the Østfold Central Hospital.

On 1 May 1998 the applicant was arrested and detained on remand for six days due to his and a friend’s involvement in two incidents, which included notably an attempt of burglary, violence against the police and consumption of hashish and ecstasy.

On 29 May the State Health Inspectorate notified the applicant that they considered suspending and withdrawing his duty service licence, following which the applicant withdrew from his duty service and was granted special leave with salary, until he went on sick leave in September 1998.

On 16 December 1998 the Fredrikstad City Court (byrett) convicted the applicant for his involvement in attempts of burglary (Articles 267 and 268), obstruction of the police in their attempt to arrest his accomplice (Article 127), violence against the police (Article 228) and consumption of hashish and ecstasy (section 31 of the Medicines Act) and sentenced him to five months’ imprisonment (unconditional). On the other hand, the City Court rejected the prosecutor’s request to sentence the applicant under Article 29 (2) of the Penal Code to a loss of right to practice as a doctor.

The applicant appealed against the conviction but the Borgarting High Court (lagmannsrett) refused him leave to appeal on 9 February 1999. As the applicant did not lodge an appeal against that decision within the statutory two week time-limit (running from notification), the decision became final on 23 February 1999 or on some date shortly thereafter.

The applicant served his prison sentence from April to June 1999. Thereafter he was again on sick leave.

In the meantime, on 21 January 1999, the applicant made a request for being re-instated as an intern but, on 18 February 1999, the Health Inspectorate (Helsetilsynet) decided to suspend his licence under section 9 pending a possible revocation under section 8 of the Medical Practitioner Act 1980 (Legeloven, hereinafter referred to as “the 1980 Act”). The decision was taken primarily on the ground of the matters in respect of which he had been convicted and which were deemed “conduct unworthy of a doctor” for the purposes of section 8. Regard was also had to certain irregularities noted with regard to various instances of prescription of medicines and the storage of medical journals, which, it is undisputed, played a secondary part in the decision.

On 13 August 1999 the applicant instituted proceedings before the Oslo City Court asking it to quash the suspension of 18 February 1999. The Court notes that, pursuant to section 11 of the 1980 Act, such an action was to be examined under Chapter 30 of the Code of Civil Procedure concerning judicial appeals against administrative decisions.

On 5 January 2000 the Health Inspectorate repealed the suspension considering that the applicant was no longer deemed unsuited to perform the profession of medical doctor and issued a disciplinary warning. In May 2000 he ended his sick leave and resumed his duty service.

In view of this change, the applicant altered his suit before the City Court to concern a claim for compensation on account of the suspension (section 12 of the 1980 Act).

On 6 March 2002 the City Court rejected the applicant’s compensation claim, finding that his suspension had not been unlawful or contrary to Article 4 of Protocol No. 7 to the Convention.

On appeal, that judgment was upheld by the Borgarting High Court on 13 October 2003.

The applicant’s further appeal was rejected by the Supreme Court (Høyesterett) on 8 September 2004. The Supreme Court unanimously found that the suspension did not violate Article 4 of Protocol No. 7, but was divided (three in favour and two against) as to whether the suspension could be regarded as lawful under the 1980 Act notwithstanding the City Court rejection in the trial of the prosecution’s request to deprive the applicant of his right to practice.

Mrs Justice Stabel, who gave the reasons for the majority, held, in so far as the issue of double jeopardy under Article 4 of Protocol No. 7 was concerned, that the suspension did not constitute a criminal matter attracting the application of this provision, having regard to the three criteria for “criminal charge” in Article 6 of the Convention set out in the Engel and Others v. the Netherlands judgment of 8 June 1976 (Series A no. 22). Therefore, the revocation or the suspension of a licence to practice as a doctor, on the ground that the legal conditions for practicing no longer were fulfilled, did not constitute a criminal punishment for the purposes of Article 4 of Protocol No. 7 to the Convention, which therefore did not apply. The minority agreed with this conclusion.

In so far as concerned the issue under Article 4 of Protocol No. 7, Mrs Justice Stabel’s reasoning, which the other justices of the majority endorsed in the main, included the following observations:

“(34) It would in my view be useful to start by providing an overview of the Norwegian system for granting and revoking permits to practise as a doctor. I should note that authorisation is the term used for the most comprehensive permit to practise as a doctor. A licence, including an intern’s licence as applicable in our case, on the other hand, provides more limited rights. Nevertheless, the legal issues raised by the case will be the same.

(35) According to section 2 (3) of the 1980 Act of 1927, a precondition for the granting of an authorisation to practise as a doctor was that the candidate was ‘of good conduct’. Under section 16 of the Act an authorisation could be withdrawn by civil judgment where the doctor was considered unfit to conduct his practice on the grounds of insanity or weakening of the mental faculties or abuse of strong drink or anaesthetising agents. The grounds for loss of authorisation were listed in exhaustive detail and accordingly legal action with respect to revocation could not be brought were the doctor subsequently to be found guilty of breach of the requirement as to good conduct. In the event of conviction of criminal offences, however, deprivation could take the form of a disqualification pursuant to Article 29 of the Penal Code. This general provision, which is now Article 29 (2) of the Penal Code, provides the legal authority to sentence a person found guilty of a criminal offence in the following way if the public interest so requires:

‘Loss for a specific period not exceeding five years or in perpetuity of the right to hold office or to carry out any activity or occupation that the defendant has shown himself or herself to be unfit for or might conceivably abuse or for which a high degree of public confidence is required. ...’

(36) In the 1980 Act, which applies in our case, the requirement as to good conduct as a precondition for authorisation and licensing was continued, with the difference that breaches of this condition would now constitute direct grounds for revocation under the Act. Section 2 (4) made it a condition for the grant of authorisation or a licence that the medical practitioner was not in a situation that could lead to the revocation of the authorisation or licence. This was regulated in section 8, the first paragraph of which read as follows:

‘An authorisation or licence may be revoked if a doctor is not fit to practise medicine on the grounds of serious mental illness, psychological or physical debility, long absence from the profession, the misuse of alcohol, drugs, or other substances with similar effects, grave lack of professional insight, improper medical practice, or conduct unworthy of a doctor.’

(37) Section 9 provided the legal authority for the suspension of an authorisation or licence where there were just and sufficient causes to suppose that grounds existed for revocation. Under section 10, the decision to revoke was no longer taken by the courts but by the Ministry, generally after an opinion had been obtained from the Norwegian Medical Council. This authority was subsequently delegated to the Directorate of Health/ Health Inspectorate. According to section 11, the decision could not be appealed but it could be brought before a court of law, which could review all aspects of the matter. If a suspension or revocation proved to be invalid or was set aside on other grounds, section 12 provided that the doctor could claim damages for losses sustained in accordance with the usual rules.

(38) This system is continued in the current Act - the Health Personnel Act of 2 July 1999 No. 64 - which came into force on 1 January 2001. ...

(39) Generally the system exists in parallel with the system of sanctions provided for under criminal law. This relates to the different guilt requirements under the two systems and to the fact that the objectives and subjects for assessments are different, see Proposition No. 13 to the Odelsting (1998-1999), pp. 185 and 187. It is assumed that as a general rule the public health authorities may consider revocation, even if health personnel have not been disqualified by judgment in a criminal case. It is emphasised that the regulatory authority shall be concerned with protecting patients against unqualified practitioners, not with punishment.

(40) In light of the inter-relationship between the regulations discussed above, [the applicant]’s alternative submission relating to Article 4 of Protocol No. 7 may also have a bearing on corresponding questions under the current Act. Accordingly, in my view it is appropriate to consider this aspect first.

(41) The question is whether the suspension decision, which was adopted after [the applicant] had been convicted of the actions in question, but acquitted of the plea that he be disqualified, must be viewed as a re-prosecution in contravention of Article 4 of Protocol No. 7. That the facts underlying the suspension decision in all essential respects are the same as those underlying the criminal conviction, is not disputed.

(42) Before I continue I reiterate that the suspension of the licence presupposed the existence of a reasonable basis for assuming that ‘grounds existed for revocation’. Although this case concerns the suspension of a licence, and a revocation, the real issue is nevertheless whether Article 4 of Protocol No. 7 serves as an obstacle to the revocation of a licence where a judgment in a criminal case has already been rendered with respect to the same actions and where the plea for disqualification has not been allowed.

(43) In light of Supreme Court case law as it now stands, the issue that must be considered will be identical to the question of whether this constitutes punishment pursuant to Article 6 of the Convention, see most recently the judgment of 8 June 2004 in case No. 2003/1640 HR-2004-00997-A paragraph 54. As noted in paragraph 40 of the said judgment, this question must be decided on the basis of the so-called Engel criteria, (see Engel and Others v. the Netherlands, judgment of 8 June 1976, Series A no. 22). How is the situation classified under national law, the nature and purpose of the statutory rule that was applied and the content and severity of the sanction in question.

(44) It will be apparent from my introductory discussion that neither the revocation nor the suspension of a permit to practise as a doctor will constitute punishment under Norwegian law.

(45) As regards the second Engel criterion - the nature and purpose of the provision - it is clear to me that the theme for assessment will be the standard specified in section 9 of the 1980 Act by reference to section 8, which I have reproduced in my introductory overview. The overarching standard is whether the doctor is unfit to practise his profession, in our case on the grounds of ‘conduct unworthy of a doctor’. Although the conduct to which the standard is directed will frequently involve - and in our case in fact does involve - criminal actions, I am not inclined to agree with [the applicant] in his submission that it is the criminal actions that make up the nature of the provision. The theme for assessment is whether the doctor satisfies the requirements for holding a permit to practise the profession and continuing to practise the profession.

(46) The provisions of the 1980 Act are aimed specifically at a professional group that is dependent upon a special degree of confidence in the mind of the public and accordingly requires a public permit in order to practise. The legislative history of the Act strongly emphasised the need for doctors to observe a high professional and ethical standard and the need for society to control who practises the profession by requiring a public permit to be held and, moreover, that such permits may be revoked if the preconditions are no longer fulfilled (see inter alia NOU (Norwegian Official Report) 1976:1 pp. 26 and 32). The Select Committee therefore proposed the continuation of the existing scheme, but added that a breach of the precondition as to good conduct could result in revocation. The Ministry concurred (see Proposition No. 1 to the Odelsting (1979-80), p. 44). The Select Committee emphasised that the grounds for loss of an authorisation or licence would need to encompass more than criminal actions. The Committee stated as follows:

‘There should also be room for revoking an authorisation or licence in the case of conduct or actions that are not criminal, but this should occur only rarely. On the other hand, not every criminal action should lead to revocation; here as in other contexts the doctor must be found unfit to practise the profession. The blameworthy circumstances must normally relate to his or her medical practice. Nevertheless, there may be instances in which conduct outside the profession may entail that the doctor does not enjoy the necessary confidence, for instance if he or she commits theft, embezzles in the context of his or her practice, defamation or assault of other persons etc.’

(47) As will be apparent from my introductory discussion of the provisions this object has at all times been of central importance and it is now expressly provided for in the purpose clause of the Health Personnel Act. The object of the provisions is not to punish persons who are in breach of the standard but rather to prevent them from causing their patients harm or violating the relationship of trust that must of necessity exist between the general public and the medical profession. This is expressly emphasised in Proposition No. 1 to the Odelsting (1979-80), p. 39, second column. In my assessment this is a long way from the domain of criminal law, a fact that the existence in most European countries of equivalent arrangements serves to emphasise.

(48) [The applicant] has submitted that disqualification pursuant to Article 29 (2) of the Penal Code, which is described as punishment, far and away serves the same purpose as the revocation provisions of the 1980 Act. This is indisputably correct, but will nevertheless not be of particular significance. I refer here to the Norwegian Supreme Court Reports (Norsk Retstidende- “Rt.”) 2003 p 264, paragraph 41, where a parallel of this nature was found not to be decisive with respect to rights vesting in an individual permit issued by the public authorities. Nor does the fact that the sanction is for actions that have already been performed change my assessment that this is primarily a civil law sanction. Finally I should also note that there is no direct link between the sanction in question and the preconditions for punishment, as was found to be the case in Rt. 2003 p.1827, paragraph 69. As I have already noted, the overarching and decisive point is whether the doctor in question is unfit to practise the medical profession.

(49) The third Engel criterion - the content and severity of the sanction - cannot lead to a different conclusion. Clearly, depriving a doctor of the right to practise will have a serious impact on that doctor. However, in decisions of this type, often referred to as disciplinary decisions, the point of departure has been that the sanctions in question must be very serious - in practice prison sentences, see Rt. 2002 p. 509 and, at p. 520, reference to Inocêncio v. Portugal (application no. 43862/98) , see also Rt. 2003 p. 1100, paragraph 53. A common point of departure has been that the decisions in question have been directed at a limited circle of people.

(50) No decision by the European Court directly addresses the question of the revocation of a public permit to practise a profession. The State has referred to a number of dismissal decisions that indicate that this lies outside the domain of criminal law. As regards the revocation of a permit to conduct business, the European Court held as follows in its dismissal decision in Manasson v. Sweden (application 412865/98), a case concerning the revocation of a taxi licence on the grounds of tax offences:

‘... The Court considers that the revocation of the licence did not constitute a determination of a criminal charge against the applicant. Although it may be regarded as a severe measure, what was decisive for the revocation was the applicant’s suitability to run a commercial taxi business, and, more specifically, whether he fulfilled the conditions therefore under administrative law provisions. Thus, the revocation cannot be characterised as a penal sanction and the nature of the relevant proceedings cannot be regarded as criminal ...’

(51) The decision then refers to the Tre Traktörer AB v. Sweden judgment of 7 July 1989, where the revocation of a liquor licence on the grounds of irregularities did not constitute a penal sanction.

(52) In European legal tradition the exercise of certain activities requires a public licence. The issuing of licences of this nature is, typically, an administrative activity. It would be inconsistent if the same did not apply to the revocation - reversal - of a licence of this nature where a recipient no longer fulfils the preconditions for holding the licence.

(53) Against this background it is clear to me that the revocation and suspension of a licence to practise as a doctor on the grounds that the statutory and necessary preconditions for continuing to practise this activity are no longer present does not constitute a penal sanction in the European Court’s view. The question regarding the concrete application of Article 4 of Protocol No. 7 will therefore not arise.”


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

The applicant was born in 1935 and lives in Berdiansk. He is a former employee of a Joint Stock Company, the Iskra Brick Factory (“the IBF”). He worked at the IBF from 1 December 1996 to 24 November 1997, when he was dismissed from his position as a senior engineer at his own request. At the time of his dismissal the applicant was not paid the wages owed to him.

In March 1997 a construction company, the Closed JSC Donetskzhelezobetonmontazh (hereafter the CJSC), instituted bankruptcy proceedings against the IBF on account of its failure to comply with contractual obligations.

The bankruptcy proceedings were initiated on 8 April 1997 by the Zaporizhzhia Regional Arbitration Court (“the ZRAC”). The applicant acted in these proceedings as a representative of the IBF.

On 20 August 1997 the ZRAC declared the IBF bankrupt. It also established a liquidation commission to manage its debts. The liquidation commission consisted of representatives of the Berdiansk State Municipal Council, the Berdiansk State Tax Inspectorate, the Financial Department of the State Municipal Council, the Ukrayina Bank (a State-owned bank) and the CJSC. The liquidators were obliged to elect the chairman and members of the liquidation commission within a period of ten days.

On 23 September 1997 the commission made an inventory of the IBF’s property.

On 16 January 1998 the liquidation commission elected Mr Bogushko as its chairman.

Between October 1998 and 14 December 2000, in accordance with the submissions of the parties, the liquidation commission was not in operation.

On 5 October 1998 the then chair of the liquidation commission, Ms Chulkova, resigned.

On 14 December 2000 the liquidation commission elected Mr Fenenko as its chairman.

On 19 January 2001 the President of the ZRAC decided that the bankruptcy proceedings concerning the IBF should be referred from Judge A.E. Kuznetsov for consideration by another judge (Judge V.G. Serkiza).

On 19 November 2001 the President of the Zaporizhzhia Regional Commercial Court (the “ZRCC”, former Zaporizhzhia Regional Arbitration Court as renamed in 2001 as a result of “small judicial reform”), decided that the bankruptcy proceedings concerning the IBF should be referred for consideration from Judge V.G. Serkiza to another judge (Judge L.P. Turkina).

On 22 March 2002 the ZRCC found that the liquidation commission appointed in 1997 had deviated from its duties. It also informed the members of the liquidation commission that they had incurred criminal liability for failure to comply with the judgments and decisions of the domestic courts.

On 22 March, 10 April and 3 June 2002, the ZRCC requested the liquidation commission to submit a report on the results of the operation.

On 2 April 2002 the liquidation commission elected a new chairman, Mr Otryshko. The commission discussed the proposal for the friendly settlement of the IBF’s debts. The new chairman of the commission submitted a report to the ZRCC that made no reference to the IBF’s salary debts.

On 21 May 2002 the IBF’s shareholders agreed to enter into a friendly settlement with the creditors.

On 2 July 2002 the liquidation commission decided to conclude a friendly settlement in the bankruptcy proceedings pending against the IBF.

On 3 July 2002 the ZRCC held a hearing with a view to discussing the possible friendly settlement and the report by the liquidation commission. The hearing was adjourned until 23 July 2002.

On 23 July 2002 the ZRCC terminated the bankruptcy proceedings concerning the IBF by way of a friendly settlement between the IBF and its creditors (the CJSC and the Berdiansk State Tax Inspectorate).

In January 1998 the applicant instituted proceedings in the Berdiansk City Court (the “Berdiansk Court”) against the IBF, seeking the recovery of salary arrears.

On 24 February 1998 the Berdiansk Court allowed the applicant’s claims and ordered the IBF to pay him 2,080.38 Ukrainian hryvnas (UAH) .

In April 1998 the applicant instituted proceedings in the Berdiansk Court, seeking compensation for the delay in the payment of salary arrears awarded to him by the decision of 24 February 1998. On 6 May 1998 the Berdiansk Court rejected his claims as being unsubstantiated. On 4 June 1998 the Zaporizhzhia Regional Court upheld that decision.

On 22 May 1998 the Bailiffs’ Service of the Berdiansk Court served notice on the IBF to pay the applicant the sums due.

On 6 May 1998 the Berdiansk Court rejected the applicant’s additional claims for compensation for the delay in payment of salary arrears as it was unsubstantiated. That judgment was upheld on 4 June 1998 by the Zaporizhzhia Regional Court.

On 22 May 1998 the Berdiansk Court’s bailiffs (“the court bailiffs”) instituted enforcement proceedings in the case and requested the IBF to pay the applicant the sum due.

On 28 May 1998 the court bailiffs requested the IBF to provide correct information as to its bank accounts, so that the sums due the applicant could be procured.

A resolution to initiate enforcement proceedings in the case was issued by the Berdiansk City Bailiffs’ Service (the “bailiffs”) on 5 March 1999, following the transfer of jurisdiction for the enforcement from the court bailiffs.

On 8 April 1999 the bailiffs informed the applicant that the judgment could not be executed immediately on account of the entry into force of the new Enforcement Proceedings Act and the referral of all the enforcement proceedings from the jurisdiction of the courts to the jurisdiction of the Bailiffs Service of the Ministry of Justice.

On 22 April 1999 the bailiffs initiated enforcement proceedings in the case.

On 20 April 2000 the bailiffs informed the applicant that a request had been sent to the ZRAC on 20 March 2000 concerning the inactivity of the liquidation commission. It also stated that no response had been received from the ZRAC.

On 24 May and 14 September 2000 the bailiffs informed the applicant that the writ of execution could not be sent to the liquidation commission as the commission did not exist de facto. It also informed the applicant that the writs of execution issued by the Berdiansk Court had only been received on 22 April 1999 by the bailiffs.

On 17 July and 28 October 2000 the applicant complained about the non-enforcement of a judgment in his favour to the General Prosecution Service and the Ministry of Justice. On 6 November 2000 the General Prosecution Service transmitted his complaints to the Higher Commercial (formerly Arbitration) Court (“the HCC”). On 18 January 2001 the HCC forwarded his complaints to the ZRAC for a reply.

On 31 January 2002 the bailiffs informed the applicant that the most recent chair of the liquidation commission was Ms I. Chulkova. They also stated that, in accordance with section 65 of the Enforcement Proceedings Act, writs of execution had to be transferred to the liquidation commission from the bailiffs.

On 4 February 2002 the bailiffs suspended the enforcement proceedings until the election of a new chairman of the liquidation commission and the formation of a new commission.

On 10 June 2002 the Berdiansk District Council of the Zaporizhzhia Region informed the bailiffs about the membership of the liquidation commission and its chairman (Mr Otryshko). This information was to be provided to the applicant.

On 27 June 2002 the bailiffs terminated the enforcement proceedings pending before them in the applicant’s case by transmitting the writs of execution to the liquidation commission for the IBF.

On 31 July 2002 the applicant complained to the bailiffs about the failure to enforce the judgment.

On 13 August 2002 the bailiffs informed the applicant that they were no longer responsible for the enforcement of the judgment of 24 February 1998.

In September 2002 the judgment of 24 February 1998 was partly enforced by the liquidation commission and the applicant was paid UAH 1,000 in compensation.

On 28 October 2002 the applicant complained to the ZRCC about the failure to enforce the judgment in his favour. By a letter of 13 November 2002, a judge of the ZRCC informed the applicant of the friendly settlement in the case. She also stated that the applicant could not be considered a creditor of the IBF as he had not applied to the court in the course of the IBF bankruptcy proceedings to be declared a creditor. She also refused to provide him with documents concerning the bankruptcy proceedings in the case.

On 20 December 2002 the applicant lodged complaints with the HCC concerning the failure to pay his salary arrears and the inactivity of the liquidation commission and the bailiffs. On 18 February 2003 the HCC informed the applicant that his complaints had been forwarded to ZRCC for a reply.

On 5 March 2003 the applicant lodged complaints with the ZRCC, seeking a declaration that he was a creditor of the IBF and an order requiring the IBF to enforce the judgment of 24 February 1998. He also sought a declaration that the friendly settlement reached by the IBF and its creditors was unlawful. By a letter of 18 April 2003, the ZRCC informed the applicant that, as he had failed to lodge a request to be recognised as a creditor during the bankruptcy proceedings in the case (April 1997 – July 2002), he could not claim to be a creditor and could not therefore seek to have the friendly settlement declared unlawful.

On 26 November 2001 the applicant lodged complaints with the Berdiansk Court, seeking a declaration that the inactivity of the Head of the State Execution Service Department was unlawful in view of his failure to enforce the judgment of 24 February 1998.

On 28 November 2001 the complaint was left without consideration for failure to comply with the formalities prescribed by law.

On 25 December 2001 the applicant again lodged a complaint with the Berdiansk Court against the bailiffs, seeking to have their failure to enforce the judgment of 24 February 1998 declared unlawful. In December 2001 the Berdiansk Court rejected this complaint on account of the applicant’s failure to comply with the requirements as to its form and content. The applicant was allowed ten days to rectify the matter.

On 8 January 2002 the applicant resubmitted his complaint.

On 20 March 2002 the Berdiansk Court rejected his complaints as being lodged out of time.

On 11 June 2002 the Zaporizhzhia Regional Court of Appeal (the “Court of Appeal”) quashed that decision and remitted the case to the same court for a fresh consideration.

On 6 September 2002 the applicant lodged additional complaints with the Berdiansk Court, seeking the annulment of the bailiffs’ resolution of 27 June 2002 on the termination of the enforcement proceedings.

The proceedings concerning the failure of the bailiffs to act and the resolution on terminating the enforcement proceedings were disjoined, forming two separate proceedings: case no. 2-973/2002 and case no. 2-1378/2002.

On 20 November 2002 the Berdiansk Court found in favour of the applicant in the first case (no. 2-973/2002). It also declared unlawful the failure of the bailiffs to enforce the judgment for a lengthy period (four years and nine months) and found the applicant’s complaints to be substantiated. The applicant appealed against this decision as he thought that a mere acknowledgment of the fact that the bailiffs had acted unlawfully was not sufficient to rectify the situation. On 24 April 2003 the Court of Appeal upheld the judgment given on 20 November 2002 and dismissed the applicant’s appeal.

On 20 November 2002 the Berdiansk Court dismissed the applicant’s claims concerning the allegedly unlawful termination of the enforcement proceedings in his second case as being unsubstantiated (case no. 2-1378/2002). The applicant appealed to the Court of Appeal, seeking the resumption of the enforcement proceedings and an extension of the time allowed for lodging an appeal. On 5 May 2003 the Court of Appeal quashed the judgment of 20 November 2002 and did not consider the applicant’s complaints as they had been lodged out of time (section 39 of the Enforcement Proceedings Act).

On 15 May 2003 the applicant requested the Berdiansk Court to extend the time for considering his complaints against the bailiffs’ resolution of 27 June 2002 on terminating the enforcement proceedings in his second case (no. 2-1378/2002). In particular, he alleged that the delay in lodging his complaints was due to the fact that he had received the resolution of 27 June 2002 in a version that was illegible (it was sent to him twice, on 23 July and 6 August 2002). He had lodged his complaints only on 6 September 2002 as he could not read the documents supplied to him by the bailiffs, which were allegedly of a very poor quality. He has not given the Court any further information as to the outcome of these proceedings.

On 19 August 2003 the applicant lodged a cassation appeal against the ruling of 24 April 2003 in the first case (no. 2-973/2002).

On 20 April 2004 the Registry of the Supreme Court informed the applicant that his appeal had been received. It also stated that it was pending for consideration before the Supreme Court.

On 1 November 2004 a panel of three judges of the Supreme Court dismissed the applicant’s appeal as it found no infringements of the rules of substantive or procedural law. It also found that there were no grounds for remitting the appeal for consideration by the Chamber of the Supreme Court.