CASE OF G.I.E.M. S.R.L. AND OTHERS v. ITALY

Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Abuse of the right of application;Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Conviction;Criminal offence);No violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Conviction;Criminal offence);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Just satisfaction reserved (Article 41 - Just satisfaction)

András Sajó;Branko Lubarda;Egidijus Kūris;Erik Møse;Guido Raimondi;Helen Keller;Iulia Motoc;Jon Fridrik Kjølbro;Khanlar Hajiyev;Kristina Pardalos;Luis López Guerra;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano;Yonko Grozev

The applicant companies have their registered offices respectively in Bari (G.I.E.M. S.r.l.), Rome (Hotel Promotion Bureau S.r.l. and R.I.T.A. Sarda S.r.l.), and Pellaro (Reggio di Calabria) (Falgest S.r.l.).

Mr F. Gironda was born in December 1959 and lives in Pellaro.

The applicant company owned a plot of land in Bari on the coast at Punta Perotti, with a total area of 10,365 sq. m, adjacent to land belonging at the time to a limited liability company Sud Fondi S.r.l. The land was classified as suitable for building in the general land-use plan (piano regolatore generale) in respect of two plots, the rest being earmarked for use by small businesses according to the plan’s specifications.

In By-Law no. 1042 of 11 May 1992 the Bari municipal council approved a site division and development plan (piano di lottizzazione hereinafter “site development plan”) submitted by Sud Fondi S.r.l. The plan provided for the construction of a multi-purpose complex, comprising housing, offices and shops. According to the applicant company, its land was automatically incorporated into the development plan by the municipal council.

On 27 October 1992 the Bari municipal authority asked the applicant company if it wished to be party to a site development agreement in order to be able to build on the land. If its response was negative, the authority would have to expropriate the land under Law no. 6 (1979) of the Apulia Region.

On 28 October 1992 the applicant company informed the Bari municipal authority that it wished to participate in a site development agreement. The authority did not reply.

On 19 October 1995 the Bari municipal authority issued a building permit to Sud Fondi S.r.l.

On 14 February 1996 Sud Fondi S.r.l. began the building work, which had mostly been completed by 17 March 1997.

On 27 April 1996, following the publication of a newspaper article about the building work carried out near the sea at Punta Perotti, the public prosecutor of Bari opened a criminal investigation.

On 17 March 1997 the public prosecutor ordered a temporary measure restraining disposal of property in respect of all the buildings in question. He also added the names of certain individuals to the register of persons prosecuted, including those of the authorised representative of Sud Fondi S.r.l. and the managers and foremen responsible for the building work. In his decision the public prosecutor expressed the view that the locality known as Punta Perotti was a protected natural site and that the building of the complex was therefore illegal.

The representatives of Sud Fondi S.r.l. challenged the temporary restraining measure before the Court of Cassation. In a decision of 17 November 1997 that court declared the measure null and void and ordered the return of all the buildings to their owners, on the ground that it was not prohibited to build on the site according to the land-use plan.

In a judgment of 10 February 1999 the Bari District Court acknowledged the illegality of the buildings erected at Punta Perotti as they had been built in breach of Law no. 431 of 8 August 1985 (“Law no. 431/1985”), which prohibited the granting of planning permission in respect of sites of natural interest, including coastal areas. However, since in the present case the local authority had issued the building permits, and in view of the lack of coordination between Law no. 431/1985 and the regional legislation, which was incomplete, the court found that no negligence or criminal intent could be imputed to the defendants. All the defendants were thus acquitted on the ground that the mental element of the offence had not been made out (“perché il fatto non costituisce reato”).

In the same judgment, finding that the development plans were materially in breach of Law no. 47/1985 and illegal, the Bari District Court ordered, in accordance with section 19 of that Law, the confiscation of all the developed land at Punta Perotti, including that belonging to the applicant company, together with the buildings thereon, and the incorporation of the property, without compensation, into the estate of the municipal authority of Bari.

In an order of 30 June 1999 the Heritage Minister (Ministro dei beni culturali) prohibited any building in the coastal area near the city of Bari, including at Punta Perotti, on the ground that it was a site of significant natural interest. That measure was declared null and void by the Regional Administrative Court the following year.

The public prosecutor appealed against the judgment of the Bari District Court, calling for the defendants to be convicted.

In a judgment of 5 June 2000 the Bari Court of Appeal overturned the decision of the court below. It found that the granting of planning permission had been legal, in the absence of any ban on building at Punta Perotti, and there having been no appearance of illegality in the procedure for the adoption and approval of the site development agreements.

The Court of Appeal thus acquitted the defendants on the ground that no material element of an offence had been made out (“perché il fatto non sussiste”) and revoked the confiscation measure in respect of all the buildings and land. On 27 October 2000 the public prosecutor appealed on points of law.

In a judgment of 29 January 2001 the Court of Cassation quashed the Court of Appeal’s decision without remitting it. It acknowledged the material illegality of the site development plans on the ground that the land in question was subject to an absolute ban on building and to a landscape protection measure, both provided for by law. In that connection, the court noted that at the time the development plans had been adopted (20 March 1990), Regional Law no. 30/1990 on landscape protection had not yet entered into force. Consequently, the applicable provisions in the present case were those of Regional Law no. 56 of 1980 (on land use and development) and National Law no. 431/1985 (on landscape protection).

The Court of Cassation observed that Law no. 56/1980 in fact imposed a prohibition on building within the meaning of section 51owed no derogation, because the site development plans concerned plots of land that were not situated within the city limits. The court added that, at the time when the site development agreements were adopted, the land in question was included in an implementation plan (piano di attuazione) for the general land-use plan which post-dated the entry into force of Regional Law no. 56/1980.

The Court of Cassation noted that in March 1990 (see paragraph 23 above), at the time when the site development plans had been approved, no implementation scheme (programma di attuazione) had been in force. In that connection the court referred to its case-law to the effect that an implementation scheme had to be in force at the time of the approval of site development plans (Court of Cassation, Section 3, 21 January 1997, Volpe; 9 June 1997, Varvara; 24 March 1998, Lucifero). The reason for this was again according to the case-law – that once an implementation scheme had expired, a building ban which had been discontinued by the scheme would become effective once again. Consequently, it was necessary to find that the land in question had been subject to a building ban at the time of the approval of the site development plans.

The Court of Cassation further referred to the existence of a landscape protection measure, under section 1 of National Law no. 431/1985. In the present case, as the competent authorities had not issued a notice of conformity with the requirements of landscape protection (that is, neither the nulla osta approval issued by the national authorities attesting to such conformity – under section 28 of Law no. 150/1942 – nor the prior approval of the regional authorities under sections 21 and 27 of Law no. 150/1942, nor the approval of the Regional Planning Committee under sections 21 and 27 of Regional Law no. 56/1980).

Lastly, the Court of Cassation noted that the site development plans concerned only 41,885 sq. m, whereas, according to the specifications of the general land-use plan for the city of Bari, the minimum area was set at 50,000 sq. m.

In the light of those considerations, the Court of Cassation thus found that the site development plans and building permits had been illegal. It acquitted the defendants on the grounds that they could not be found to have negligently or intentionally committed offences and that they had made an “unavoidable and excusable mistake” in the interpretation of the regional legislation, which was “obscure and poorly worded” and interfered with the national law. The Court of Cassation also took into account the conduct of the administrative authorities, and in particular the following facts: on obtaining the building permits, the defendants had been reassured by the director of the relevant municipal office; the site-protection prohibitions with which the construction project was at odds did not appear in the land-use plan; and the competent national authority had not intervened. Lastly, the Court of Cassation found that in the absence of any investigation concerning the reasons for the conduct of the public bodies, it was not possible to speculate on those reasons.

In the same judgment the Court of Cassation ordered the confiscation of all the buildings and plots of land, on the ground that, in accordance with its case-law, the application of section 19 of Law no. 47 of 1985 was mandatory in the case of illegal site development, even where the property developers had not been convicted.

The judgment was deposited in the court Registry on 26 March 2001.

In the meantime, on 1 February 2001 the applicant company had again asked the Bari municipal authority for permission to enter into a site development agreement.

On 15 February 2001 the Bari municipal authority informed the applicant company that, following the judgment of the Court of Cassation of 29 January 2001, the ownership of the land at Punta Perotti, including that belonging to the applicant company, had been transferred to the municipality.

The criminal proceedings described above gave rise to another application to the Court (see Sud Fondi S.r.l. and Others v. Italy, no. 75909/01, 20 January 2009).

On 3 May 2001 the applicant company applied to the Court of Appeal of Bari seeking the return of its land. It alleged that, in line with case-law of the Court of Cassation, the confiscation of property belonging to a third party in relation to criminal proceedings could be ordered only to the extent that the latter had participated in the commission of the offence, in terms of either material or mental elements.

In a decision of 27 July 2001 the Court of Appeal upheld the applicant company’s appeal.

The public prosecutor appealed on points of law.

In a judgment of 9 April 2002 the Court of Cassation quashed the decision of the Bari Court of Appeal and remitted the case to the Bari District Court.

The applicant company lodged an interlocutory application for review of the enforcement order, seeking the return of its land.

In a decision deposited in the court’s Registry on 18 March 2004, the Bari preliminary investigations judge (giudice per le indagini preliminari) dismissed the applicant company’s application. He first observed that the company’s grievances concerned neither the existence nor the formal lawfulness of the impugned measure, which was a mandatory administrative sanction that the criminal court was also entitled to impose in respect of the property of third parties which had not taken part in the commission of the offence of unlawful site development offence. The judge found that the public imperative of protecting land had to prevail over the individual interests.

The applicant company appealed on points of law. It emphasised that no construction work had actually been carried out on its land, which had not been the subject of a building permit. By its very nature, it argued, a confiscation measure should be directed solely against land upon which unlawful construction had taken place.

In a judgment of 22 June 2005, deposited in the court’s Registry on 18 January 2006, the Court of Cassation, finding that the Bari preliminary investigations judge had addressed all the points in dispute giving logical and correct reasons, dismissed the applicant company’s appeal on points of law. The court noted that the confiscation of the applicant company’s land had been compliant with its settled case-law whereby the measure provided for in section 19 of Law no. 47 of 1985 was a mandatory administrative sanction imposed by the criminal court on the basis of the incompatibility of the situation of the property in question with the legislation on unlawful site development, even where the defendants had been acquitted. Property owners who were not parties to the criminal proceedings and who claimed to have acted in good faith would be entitled to seek redress before the civil courts.

According to the information provided by the parties, in October 2012 the Bari municipal authority, having regard to the principles set out and the violations found by the Court in its Sud Fondi S.r.l. and Others judgments (merits and just satisfaction, no. 75909/01, 10 May 2012), asked the Bari District Court to return the confiscated land to the applicant company. In a decision of 12 March 2013 the preliminary investigations judge of that court revoked the confiscation measure and ordered the return of the land on account of the fact that, first, the Court had found a violation of Article 7 of the Convention in Sud Fondi S.r.l. and Others and, secondly, that the company was to be regarded as a bona fide third party because none of its directors had been found liable for the offence of unlawful site development. The judge’s decision was entered in the land register on 14 June 2013 and the applicant company was thus able to recover its property on 2 December 2013.

On 7 April 2005 the applicant company had applied to the Bari District Court, seeking compensation for the damage it had sustained as a result of the conduct of the Bari municipal authority and the consequences for the company’s assets. It reproached the municipal authority for: (1) failing to adopt an alternative to the land-use plan; (2) failing to clarify the existence of the constraints arising as to the authorised use of the areas concerned by the site development at issue; and (3) approving site development procedures which had apparently been lawful but had led to the confiscation of the land and had caused a significant economic loss.

According to the information provided by the parties, the proceedings were still pending, as the expert’s report evaluating the damage, estimated at 52 million euros by the applicant company, had not yet been filed.

The applicant company R.I.T.A. Sarda S.r.l. was the owner of land suitable for building with an area of 33 hectares at Golfo Aranci.

Under the municipal development scheme (programma comunale di fabbricazione) for Golfo Aranci, approved on 21 December 1981, the land in question belonged to zone F – classified as a tourist zone – and was suitable for building within a given volume. It was possible to exceed that volume in the context of hotel or hotel-type development.

Wishing to build a hotel-type residential complex for tourists with a number of accommodation units (produttiva alberghiera), R.I.T.A. Sarda S.r.l. submitted a site development plan (piano di lottizzazione) to the competent authorities.

On 27 March 1991, under section 13 of Regional Law no. 45 of 1989, the Sardinia Region issued its nulla osta approval for building at a minimum distance of 150 metres from the sea, provided that once erected the buildings would actually be used for tourist accommodation. That obligation had to be recorded in the land register.

On 29 November 1991 the Sardinia Region granted the landscape transformation permit, under Law no. 431/1985 and section 7 of Law no. 1497/1939, to R.I.T.A. Sarda S.r.l. (see paragraphs 93-96 below).

The municipality of Golfo Aranci approved the site development plan with final effect on 17 December 1991.

On 22 April 1992, subject to the regional approval, the municipality of Golfo Aranci authorised the mayor to issue a derogating building permit allowing a greater construction volume than that provided for by its municipal development scheme, for the purposes of a hotel-type structure (opere alberghiere ricettive). The file shows that the site development plan concerned an area of 330,026 sq. m.

On 17 July 1992 the Sardinia Region issued its final approval of the plan.

In the meantime, on 22 June 1992, Regional Law no. 11/1992 had entered into force. It removed the possibility of derogating from the prohibition on building near the sea and fixed the minimum distance at 2 kilometres for dwellings and 500 metres for hotels. As regards buildings intended for hotel-type use, such as the hotel-type residential complexes for tourists in the present case, they were to be treated as dwellings. Under the same law, the minimum distance of 2 kilometres thus had to be maintained, except in the cases where, before 17 November 1989, a site development agreement had already been signed and the infrastructure work had already begun.

On 17 July 1992 the Sardinia Region authorised the mayor to grant a building permit to R.I.T.A. Sarda S.r.l. by way of derogation from the municipal land-use plan.

On 13 August 1992 the mayor of Golfo Aranci and R.I.T.A. Sarda S.r.l. entered into a site development agreement. Under Article 10 thereof the buildings erected on the site would continue to be used for tourist-hotel purposes and could not be sold off in separate units for a period of twenty years. The agreement stipulated that the development plan was compliant with section 13 of Regional Law no. 45/1989 and with the other planning regulations; it certified that the applicant company had paid a deposit of an amount equivalent to the total cost of the amenities. That work was to be paid for by the applicant company, which would also be required to assign 30% of the land free of charge to the municipality for the primary infrastructure (urbanizzazione primaria).

On 31 August 1992 the municipality of Golfo Aranci issued a permit for the primary infrastructure. On 23 November 1992 the municipality issued the building permit for the construction work.

On 19 February 1993, following the entry into force on 22 June 1992 (see paragraph 52 above) of Regional Law no. 11/1992, amending Regional Law no. 45/1989, the regional authority revoked certain permits that had been granted under the previous legislation. The applicant company was not affected.

The work began in 1993. In 1997 eighty-eight housing units, less than one third of the total number, had been built. A number of them had been sold to individuals, subject to a clause stipulating that the property had to remain assigned, for a number of years, for tourist-hotel use.

On 28 January 1995 R.I.T.A. Sarda S.r.l., which was seeking new partners to optimise the project and share the risks, asked the municipal authority whether the sale of the buildings to third parties was compatible with the development agreement. On 14 February 1995 the municipal authority stated that the agreement had been drafted clearly enough; it therefore did not need clarification. It gave a favourable opinion as to the possibility of selling the buildings, but not in single units and provided the intended use of the properties remained unchanged.

On 11 March 1996 the municipal authority, again approached by the applicant company, confirmed the opinion issued on 14 February 1995.

At an unknown date, R.I.T.A. Sarda S.r.l. entered into a preliminary contract of sale with Hotel Promotion Bureau S.r.l. concerning part of the land covered by the development agreement and certain buildings erected in the meantime. In addition, on 15 January 1996, Hotel Promotion Bureau S.r.l. entered into an agreement (contratto di appalto) with R.I.T.A. Sarda S.r.l. under which the latter undertook to carry out construction work on the land forming the object of the preliminary contract of sale.

With a view to becoming the owner of the land and buildings, on 26 February 1997 Hotel Promotion Bureau S.r.l. also signed agreements with a travel agent for the purpose of renting out units on a weekly basis.

On 22 October 1997 R.I.T.A. Sarda S.r.l. sold to Hotel Promotion Bureau S.r.l. 36,859 sq. m of land and the buildings known as “C2”, namely sixteen units for residential-tourist use. In addition to the buildings R.I.T.A. Sarda S.r.l. assigned the construction rights to Hotel Promotion Bureau S.r.l. The price of the transaction was fixed at 7,200,000,000 Italian lire (ITL), equivalent to 3,718,489.67 euros (EUR).

In November 1997 R.I.T.A. Sarda S.r.l. was the owner of sixteen housing units and the plots of land covered by the site development plan, with the exception of plot no. 644 and those previously sold to Hotel Promotion Bureau S.r.l., which was the owner of the land it had purchased and of sixteen units.

On 26 March 1998 the municipal authority approved the transfer (voltura) of the building permit concerning the land and buildings purchased by Hotel Promotion Bureau S.r.l.

On 3 April 2006, further to a request by R.I.T.A. Sarda S.r.l. for a planning certificate in respect of the relevant property for the period 19901997, the municipal authority stated that the development agreement signed with R.I.T.A. Sarda S.r.l. and the permits granted were compatible with the planning regulations in force at the material time, and in particular with Regional Law no. 45/1989, and it therefore considered that the offence of unlawful site development was not made out in the circumstances.

In 1997 the public prosecutor of Olbia opened a criminal investigation in respect of Mr M.C. and Mr L.C., the legal representatives of the applicant companies. They were suspected of a number of offences, including that of unlawful site development within the meaning of section 20 of Law no. 47/1985 for building too close to the sea and without planning permission, together with fraud for changing the intended use of the properties in breach of the development agreement.

On 20 November 1997 a court order restraining disposal of property was imposed on the land and buildings.

In a decision of 17 January 2000 the Sassari District Court returned the land and buildings to their rightful owners.

In a judgment of 31 March 2003 the Olbia District Court acquitted M.C. and L.C. on the merits in respect of all the offences, with the exception of that of unlawful site development, the prosecution of which was declared statute-barred.

Having regard to the entry into force of Regional Law no. 11 of 1992 (see paragraph 52 above) and the new minimum distance from the sea introduced therein, the District Court took the view that the municipality of Golfo Aranci should never have issued the building permits and that the previously issued authorisations could not legitimise the situation. The building permits were thus in breach of the law or, at least, ineffective (inefficaci). Although erected in accordance with the permits issued by the municipal authority, the constructions were thus incompatible with the statutory provisions and their existence thus constituted unlawful site development. In addition, the sale of the housing units to individuals cast doubt on their continued use for tourist-hotel purposes and this change of purpose also placed the buildings in breach of the law. In conclusion, the District Court ordered the confiscation of the property previously placed under a restraining order and the transfer of ownership to the municipality of Golfo Aranci within the meaning of section 19 of Law no. 47/1985.

As regards, in particular, the charge of fraud, the court took the view that the offence was not made out because there had been no financial loss to the municipality, since the cost of the infrastructure work remained the same even if the intended use changed. In addition, the mental element, that is to say the existence of intent to defraud the municipality, had not been proved in view of the fact that the sale had been carried out as a result of the financial difficulties of R.I.T.A. Sarda S.r.l. Moreover, the court pointed out that the municipal authority had issued the company with a favourable opinion as regards the sale of the buildings.

In a judgment of 11 October 2004 the Cagliari Court of Appeal upheld the Olbia District Court’s finding of dismissal (non doversi procedere) in respect of the offence which was statute-barred and reiterated that the municipality of Golfo Aranci should not have issued the building permits, which were illegal and in any event ineffective. The constructions erected were de facto incompatible with the regional legislation prohibiting them. In addition, between March 1995 and November 1997 most of the housing units had been sold off, thus changing their intended use. As to the charge of fraud, the Court of Appeal upheld the acquittal of the applicant companies’ legal representatives on the basis of the same considerations, on this point, as those of the District Court. It confirmed the confiscation order.

Mr M.C. and Mr L.C. appealed on points of law but their appeal was dismissed by the Court of Cassation in a judgment of 15 February 2007.

According to the information provided by the Government, on 29 July 2015 the individual purchasers of the confiscated property still retained full possession. Shortly before that, on 21 May 2015, a resolution of the municipality of Golfo Aranci had acknowledged the genuine interest of the community in keeping the confiscated complex, referring in particular to the possibility of using the housing to cope with situations of urgency in the event that the local authorities should decide to assign the use of the property, directly or indirectly, for rent by persons with low income.

The company Falgest S.r.l. and Mr Filippo Gironda were the coowners, each with a 50% interest, of a plot of land at Testa di Cane and Fiumarella di Pellaro (Reggio di Calabria) with a total surface area of 11,870 sq. m. The land-use plan provided solely for the possibility of building hotel-type residential complexes for tourists on that land.

On 12 October 1994 the applicants applied for a building permit to erect a tourist residential complex consisting of forty-two houses and sports facilities.

On 15 September 1997 the municipality of Reggio di Calabria issued the building permit.

After verification by the municipality, a number of variations from the plan were noted. The municipality ordered the suspension of the work on 26 January 1998.

On 29 January 1998 the applicants filed an amended plan (variante in corso d’opera), which provided for fewer houses (forty instead of fortytwo) and restricted the construction area. This amended plan sought to regularise the work as already carried out, within the meaning of Law no. 47/1985.

On 10 February 1998 the mayor of Reggio di Calabria cancelled the order suspending the work on the ground that the discrepancies in relation to the initial construction project could be regularised by means of the amended plan submitted in respect of ongoing work under section 15 of Law no. 47/1985.

On 1 October 1998 the inspector of the municipality of Reggio di Calabria noted that the work was in conformity with the amended plan. The work was pursued.

In 2002 the public prosecutor of Reggio di Calabria opened an investigation in respect of Mr Gironda, in his capacity as co-owner of the property, and five others: a director of the company, two signatories to the development project and two foremen. They were all suspected of committing a number of offences, in particular that of unlawful site development within the meaning of section 20 of Law no. 47/1985.

In a judgment of 22 January 2007 the Reggio di Calabria District Court acquitted all the defendants on the merits (perché il fatto non sussiste) in respect of all the charges, except for the offence of unlawful site development, the prosecution of which it declared statute-barred. The court noted that the project had provided for the construction of residences for hotel-type tourist accommodation. However, the structural specifications of the buildings (caratteristiche strutturali) and the evidence suggested that the real purpose of the project was the sale of houses to individuals, thus casting doubt on the intended hotel-type tourist use. This change of purpose rendered the site development unlawful. In conclusion, the court ordered the confiscation of the land and buildings and the transfer of the property to the municipality of Reggio di Calabria under section 19 of Law no. 47 of 1985.

In a judgment of 28 April 2009 the Reggio di Calabria Court of Appeal acquitted the applicants on the merits (perché il fatto non sussiste) in respect of all the charges, including that of unlawful site development. It revoked the confiscation of the property and ordered its return to the owners.

The Court of Appeal took the view, in particular, that the approved project was compatible with the land-use plan and the planning regulations. Given that there had been no preliminary or final contract of sale, there was no evidence of any change in the purpose of the constructions and therefore no unlawful development.

In a judgment of 22 April 2010, deposited in the Registry on 27 September 2010, the Court of Cassation quashed the judgment of the Court of Appeal without remitting it, finding that the change in purpose of the constructions was proved by statements made by third parties and by documents in the file. For the Court of Cassation, the offence of unlawful site development (the prosecution of which was statute-barred, entailing the dismissal of the case) had thus indeed been knowingly committed by the defendants. Consequently, the property in question again became subject to the confiscation order made at first instance by the Reggio di Calabria District Court. The acquittals were maintained.

According to an expert’s report of 5 May 2015, the expert having been appointed by the applicants, the complex confiscated from the latter was in an advanced state of abandonment and neglect. In the applicants’ submission, the municipal authority, which was the owner of the property, had not carried out any work to keep the open spaces maintained.


No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1960 and lives in Donetsk.

On the night of 30 September 2006 the applicant’s son (born in 1984) took part in “AutoQuest”, a location-based driving game in the city of Donetsk. In accordance with the rules of the game, the participants were divided into teams and each team had to move by car to different locations in the city. On arrival at an intermediary destination each team had to solve a riddle in order to establish the next destination point, and the winner was the team that reached the final destination first.

The applicant’s son was in the team of P., who was the driver. During the game P. lost control of the car and collided with a pillar. As a result of the accident, P. was injured and his three passengers, including the applicant’s son, died.

On 1 October 2006 the Donetsk Region police department opened an investigation under Article 286 § 3 of the Criminal Code in connection with the fatal car accident.

On 3 October 2006 the applicant was admitted to the proceedings as a victim.

On 19 February 2007, in reply to an enquiry from the applicant concerning the investigation, the Donetsk City prosecutor’s office informed him that the case was complicated and the police had to order various expert examinations; the activities of the organisers of the driving game were also being examined.

On 23 February 2007 the police refused to institute criminal proceedings against the organisers of the driving game.

On 10 July 2007 the board of forensic psychiatric experts completed their examination and found that at the time of the accident P. had been aware of his actions and able to control them. Following the injuries sustained in the accident, P. had developed a chronic mental disability. He was diagnosed with a complicated organic impairment of the brain and amnestic syndrome. The experts found that at the time of the examination P. had no longer been aware of his actions or able to control them and that he should therefore undergo mandatory psychiatric treatment.

On 24 October 2008, in reply to a complaint lodged by the applicant about the ineffectiveness of the investigation, the Donetsk Region prosecutor’s office maintained that the criminal investigation was being carried out in accordance with the requirements of the Code of Criminal Procedure and that there had been no grounds to change the investigator in the criminal proceedings.

On 5 February 2009 the case file was referred to the Kuybashevskyy District Court of Donetsk (“the first-instance court”) in order to determine whether it was appropriate to apply compulsory medical measures in respect of P.

On 15 March 2010 the chairman of the Donetsk Region Council of Judges requested that the chairman of the first-instance court ensure prompt consideration of the criminal case. He noted that the court hearings had been repeatedly adjourned and the length of the proceedings had not been reasonable.

On 28 February 2011 the board of forensic psychiatric experts issued a report repeating their previous conclusions as to P.’s mental state.

On 8 June 2011 the first-instance court found that P. had committed a crime by violating the traffic safety regulations, which had resulted in the death of the applicant’s son and the two other passengers. The court noted that P. had collided with a pillar because he had exceeded the speed limits and had lost control of the car. It further noted that, according to the forensic psychiatric examination reports of 10 July 2007 and 28 February 2011, P. had been mentally aware of and able to control his actions at the time of the accident but had later developed a mental disability; at the time of the examinations, P. had been suffering from an organic brain impairment and amnestic syndrome; as a result, he had no longer been aware of or able to control his actions and needed to be provided with compulsory medical treatment, namely outpatient psychiatric assistance. Bearing those medical reports in mind, the court ordered the compulsory medical measures.

The applicant appealed, claiming that he was a doctor by profession and could see that the medical findings were wrong. He further complained of a breach of procedural rules, arguing that P. should have been brought to the court room for the hearings.

On 24 January 2012 the Donetsk Regional Court of Appeal quashed the decision of 8 June 2011 and remitted the case for additional pre-trial investigation. The court noted that there were witness statements, including those obtained at the pre-trial stage of the proceedings, which suggested that at the time of the accident P. might have made a sharp turn in order to avoid hitting a pedestrian who had been crossing the road. The court considered that the facts had not been established properly and that additional investigatory measures were required.

Following the additional investigation, the case was referred to the first-instance court on 31 October 2012. The investigative authorities considered that P. had exceeded the speed limit, in violation of the traffic regulations; he had lost control of the car and caused the accident which had resulted in the deaths of his three passengers. P.’s actions amounted to a crime. However, due to the mental disability that he had developed after the accident, it was proposed that the court impose compulsory medical measures in respect of P.

As of 26 March 2013 the proceedings were pending.


CASE OF CINGILLI HOLDİNG A.Ş. AND CINGILLIOGLU v. TURKEY

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants were the main shareholders of Demirbank, established in 1953. In 1999 Demirbank was ranked the fifth largest private bank in Turkey, with 193 branches and 3,885 employees.

By a decision dated 6 December 2000 (no. 123), the Banking Regulation and Supervision Board (Bankalar Düzenleme ve Denetleme Kurulu – hereinafter referred to as “the Board”) decided to transfer the management and control of Demirbank to the Savings Deposit Insurance Fund (Tassarruf Mevduat Sigorta Fonu – hereinafter “the Fund”), pursuant to section 14 (3) of the Banking Activities Act (Law no. 4389). In its decision, the Board held that the assets of Demirbank were insufficient to cover its liabilities and that the continuation of its activities would threaten the security and stability of the financial system. Accordingly, Demirbank’s management and control, and the privileges of its shareholders except for dividends, were transferred to the Fund. The Fund also confiscated all properties belonging to Demirbank.

On 2 February 2001, the applicant company brought administrative proceedings against the Banking Regulation and Supervision Agency (Bankalar Düzenleme ve Denetleme Kurumu – hereinafter referred to as “the Agency”) before the Ankara Administrative Court, seeking the annulment of the decision of 6 December 2000 regarding the transfer of Demirbank to the Fund.

The Ankara Administrative Court found that it lacked jurisdiction and transferred the case to the Supreme Administrative Court.

In its submissions before the Supreme Administrative Court, the applicant company claimed that its property rights had been violated. It also raised a plea of unconstitutionality under section 14 of the Banking Activities Act. The applicant company further stated that prior to November 2000, Demirbank had never encountered major financial problems. It was pointed out that pursuant to section 14 (2) of the Act, a bank with financial difficulties should first be given a warning to strengthen its financial structure and be allowed time to take specific measures. However, no such warning had been given in the instant case. Secondly, the Board had not claimed that Demirbank’s financial situation was so weak that it could not be strengthened even if specific measures were taken. Lastly, the applicant company stated that following the transfer of the bank to the Fund, a General Assembly composed of the Fund’s officials had exonerated the former managers of Demirbank, holding that they had not been at fault in the incident leading to the bank’s transfer.

After examining the file, on 3 June 2003 the Supreme Administrative Court dismissed the case. It held that the takeover of the bank by the Fund had been in accordance with section 14 (3) of the Banking Activities Act. The applicant company lodged an appeal.

On 18 December 2003 the Joint Administrative Chambers of the Supreme Administrative Court decided to quash the decision of 3 June 2003. In its judgment, the court held that prior to ordering the transfer of Demirbank to the Fund, the Board should have carried out an objective evaluation of the bank’s financial situation. The court also concluded that the Board should first have ordered Demirbank to take specific measures in accordance with section 14 (2) of the Banking Activities Act before applying section 14 (3) of the Act.

On 29 April 2004 a request for rectification lodged by the Agency was refused.

The case was remitted to the Supreme Administrative Court, which delivered its decision on 5 November 2004, upholding the decision of the Joint Administrative Chambers of the Supreme Administrative Court. In its decision the Supreme Administrative Court held that:

“... Demirbank did not have any serious financial problems until the economic crisis in November 2000. The amount of the bank’s risky credit in Government Bonds for Domestic Borrowing aimed at securing Treasury debt was not too high compared to its total credit, its asset quality was high due to its five affiliate banks abroad, and furthermore, the major shareholders had not targeted the resources of the bank. Although Demirbank had been able to resolve its liquidity problem and it had fulfilled all obligations towards individual and corporate clients using its own assets, it was decided that it fell within the scope of section 14 of the Banking Activities Law. It is therefore understood that the administrative act pertaining to the taking over of Demirbank by the Savings Deposit Insurance Fund based on paragraphs (b) and (d) of section 14 of the Banking Activities Act, without investigating any further possible options or specific measures to enable the Bank to establish a balance of liquidity, was unlawful.

In the light of the foregoing, the Banking Regulation and Supervision Board’s decision of 6 December 2000 ordering the takeover of Demirbank by the Fund is unanimously annulled.”

A further appeal and a request for rectification lodged by the Agency were rejected on 14 April 2005 and 15 December 2005 respectively. The final decision was served on the applicant company’s representative on 13 March 2006.

In the meantime, while the proceedings against the Agency were still pending, on 20 September 2001 the Fund entered into an agreement with the HSBC bank, and sold Demirbank to the latter for 350,000,000 US Dollars.

On 20 September 2001 the second applicant brought administrative proceedings against the Fund in the Ankara Administrative Court, seeking the annulment of the agreement to sell Demirbank to HSBC.

Given that the transfer of Demirbank to the Fund had been found to be unlawful by the Joint Administrative Chambers of the Supreme Administrative Court, on 21 April 2004 the Ankara Administrative Court annulled the agreement entered into by the Fund and HSBC on 20 September 2001. In its decision the Ankara Administrative Court held that:

“... It can be seen that, given the shareholding structure of Demirbank before the transfer, 72,55 % was owned by Cıngıllı Holding A.Ş., that the claimant who owned shares in this company was a shareholder of the aforementioned bank, that all shares of Demirbank were taken over by the Savings Deposit Insurance Fund pursuant to section 14 of the Law no. 4389, that the claim requesting the annulment of the Banking Regulation and Supervision Board’s decision dated 6 December 2000 regarding this taking over was dismissed by a judgment on 3 June 2003 delivered by the Supreme Administrative Court, and that this judgment was subsequently quashed by the judgment of 18 December 2003 of the Joint Administrative Chambers of Supreme Administrative Court.

In its judgment, the Joint Chambers of the Supreme Administrative Court held that the taking over of Demirbank by the Savings Deposit Insurance Fund based on Section 14 paragraphs (b) to (d) of the Banking Activities Act was unlawful and it accordingly declared the act as null and void. It was decided that the decision regarding the taking over of the bank had been adopted without investigating the possible options to enable the bank to establish a balance of liquidity and taking the relevant precautions, given that it would have been possible for the bank to continue its banking activities since it did not have any serious financial problems until the financial crisis of November 2000, the amount of the bank’s risky credit in Government Bonds for Domestic Borrowing aimed at securing Treasury debt was not too high compared to its total credit, its asset quality was high compared to the five affiliate banks based abroad, the majority shareholders had not targeted the resources of the bank, the bank had been included within the scope of section 14 of Law no. 4389 to enable it to the resolve its liquidity problem and it had fulfilled all obligations towards individual and corporate clients using its own assets.

It is therefore understood that, pursuant to the annulment of the decision pertaining the taking over of Demirbank by the Savings Deposit Insurance Fund by the Joint Chambers of the Supreme Administrative Court, the subsequent sale of Demirbank to HSBC Bank has also become unlawful and the decision that is the subject of these proceedings is therefore unlawful. This act is therefore declared null and void.”

An appeal and a request for rectification lodged by the Fund were rejected on 3 June 2005 and 24 February 2006 respectively.

On 11 May 2006 the second applicant requested the Agency to comply with the Supreme Administrative Court’s judgments and to enforce them. Relying on the restitutio in integrum principle, she requested that Demirbank be returned to its previous owners.

On 10 July 2006 the Agency informed the second applicant that it would be impossible to enforce the judgments as, following its sale to HSBC, Demirbank had been struck off the commercial register.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicants were born in 1977, 1972 and 1987 respectively and lived before their convictions in Krasnoyarsk, Cheboksary and Vologda Region.

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

On 3 May 2013 the applicant was arrested on suspicion of having committed a crime.

On 4 May 2013 the Oktyabrskiy District Court of Krasnoyarsk (“the District Court”) remanded the applicant in custody.

On 11 June and 11 November 2013, and 14 February 2014 the District Court extended the applicant’s detention until 30 November 2013, 28 February and 28 May 2014 respectively.

On 4 April 2014 the District Court convicted the applicant of robbery and sentenced him to three years and six months’ imprisonment. The applicant appealed.

During the hearings before the District Court on 11 June, 26 July, 1 October, and 11 November 2013, and 14 February, 14, 21 and 27 March, and 2, 3 and 4 April 2014 the applicant was held in a metal cage.

On 23 June 2015 the Krasnoyarsk Regional Court upheld the judgment of 4 April 2014 on appeal.

On 30 June 2011 the Novocheboksarsk Town Court of the Chuvash Republic convicted the applicant of embezzlement and the illegal acquisition, storage, transfer, transportation and possession of firearms and sentenced him to four years’ imprisonment.

On 11 February 2013 the Leninskiy District Court of Cheboksary (“the District Court”) convicted the applicant of fraud committed through abuse of position and sentenced him to a fine.

On 1 August 2013 the Supreme Court of the Chuvash Republic reduced the applicant’s fine.

However, on 18 October 2013 the Presidium of the Supreme Court of the Chuvash Republic granted a cassation appeal lodged by the Prosecutor of the Chuvash Republic and quashed the judgment of 11 February 2013 and the appeal decision of 1 August 2013. The case was remitted to the District Court for fresh examination.

On 29 April 2014 the District Court convicted the applicant on nine counts of fraud, acquitted him of a further four counts of fraud and sentenced him to seven years’ imprisonment, taking into account the fact that the applicant had not fully served the sentence imposed on him on 30 June 2011.

On 25 June 2014 the Supreme Court of the Chuvash Republic reclassified the nine counts of fraud on which the applicant had been convicted and sentenced him to seven years’ imprisonment. As regards the four counts of fraud of which the applicant had been acquitted, the Supreme Court quashed the judgment on appeal and remitted the case for fresh examination. Those proceedings are still pending.

During the proceedings before the District Court and the Supreme Court of the Chuvash Republic the applicant was confined in a metal cage.

On 16 September 2014 the applicant was arrested on suspicion of having committed a crime.

On 17 September 2014 the Cherepovets Town Court of the Vologda Region (“the Town Court”) remanded the applicant in custody.

On 10 November 2014 the Town Court extended the applicant’s detention.

On 12 December 2014 the Town Court convicted the applicant of inflicting grievous bodily harm and sentenced him to three years’ imprisonment.

The applicant was confined in a metal cage when the custodial measure was applied to him, when it was subsequently extended and during the trial.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The first applicant, Mr Leonard Lachowski, a Polish national, was born in 1927. He died on 31 May 2011. The second applicant, Mr Hubert Lachowski, a Polish national, was born in 1978. The applicants were initially represented before the Court by Mr W. Tomczyk, and, subsequently by Mr B. Zygmont, lawyers practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

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

On 18 September 2001, following a complaint from a bank, the Wrocław-Stare Miasto Police opened an inquiry (dochodzenie) into attempted fraud by Mr J.M. They relied on Article 286 § 1 of the Criminal Code.

On 20 September 2001 the Wrocław-Stare Miasto District Prosecutor opened an investigation (śledztwo) into the forgery of a cheque for 2,000 dollars (USD) and the attempted fraudulent use of that cheque. The prosecutor relied on Articles 310 § 1 and 286 § 1 of the Criminal Code.

On 22 October 2001 the Wrocław-Stare Miasto District Prosecutor made an application to the Wrocław Regional Court for the interception and recording of the content of the applicants’ telephone conversations. The prosecutor’s application was made in connection with the investigation against J.M. and other persons suspected of the commission of an offence under Article 310 § 1 of the Criminal Code and other offences. The District Prosecutor requested the court to issue a warrant authorising the interception of the content of the applicants’ telephone conversations, which

“may concern the activities of an organised group involved in the putting into circulation of forged securities and aggravated fraud, or indicate planned or already committed offences”.

The prosecutor relied on Articles 237 § 1, 237 § 3 (14) and (15), 237 § 5 and 239 of the Code of Criminal Procedure.

Among the reasons for her application, the prosecutor stated as follows:

“So far it has been established that on 6 September 2001 J.M. attempted to defraud the Citibank in Wrocław of 2,000 USD (the equivalent of 8,251.65 Polish zlotys) by using a Security Pacific National Bank cheque issued on 4 September 2001. It is clear from the evidence obtained in the investigation that the said cheque was forged. Cheques from this bank were removed from circulation in 1992, that is, a year after the Bank of America acquired the Security Pacific National Bank.

It further appears from the evidence that the said cheque originated from Leonard Lachowski [the first applicant], and that, in cooperation with other persons, he intends to use these documents [cheques] to defraud large sums of money in the near future. There exists a reasonable suspicion that Leonard Lachowski possesses a large number of forged cheques (about 100) of the same American bank to the value of 2,000 USD each ...

In connection with the above, at the current stage of the investigation it is necessary to establish the source from which the said securities originated and Leonard Lachowski’s contact with persons who are cooperating with him in order to put those documents into circulation with a view to defrauding large sums of money. ...”

On 25 October 2001 the Wrocław Regional Court (Sąd Okręgowy) granted the prosecutor’s application for leave to intercept the applicants’ telephone conversations for a period of three months. That decision was given in the proceedings against J.M. and others and in respect of the offence under Article 310 § 1 of the Criminal Code and other offences. The court decided to delay the serving of its decision on the applicants until the end of the investigation. It authorised two police officers to make a transcript of the recorded conversations and another officer to read the transcript. The court ordered that the transcript be classified and transmitted to the Wrocław-Stare Miasto District Prosecutor’s Office.

The court gave the following reasons in its decision:

On 16 November 2001 the first applicant and V.V. were arrested by the police at a bank in Wrocław.

On 17 November 2001 the District Prosecutor charged the first applicant with two offences. The first charge was that of putting into circulation between 24 October and 16 November 2001, jointly with others, of a forged Texas Commerce Bank cheque for USD 8,500,000 and attempted fraudulent use of that cheque (Articles 310 § 2 and 286 § 1 of the Criminal Code). Shortly afterwards, the second applicant was charged with the same offence. The second charge against the first applicant was that of storing and transporting on 16 November 2001 a forged Security Pacific National Bank cheque for USD 2,000 (Article 310 § 2 of the Criminal Code).

On 19 November 2001 the Wrocław-Śródmieście District Court remanded the first applicant in custody on suspicion of the offences referred to above. His pre-trial detention was extended on a number of occasions. In a decision of 14 February 2002, the Wrocław Regional Court found that the evidence obtained in the case indicated that the first applicant had acted as part of an international criminal group involved in forging securities and putting them into circulation in Poland and abroad. On 7 July 2002 the first applicant was released from detention and other, non-custodial, measures were applied.

On 21 December 2001 the Wrocław-Śródmieście District Court remanded the second applicant in custody on suspicion of the offence referred to above. On 13 June 2002 the court released him from detention and imposed non-custodial preventive measures instead.

On 28 December 2001 the investigation was taken over by the Department of Organised Crime at the Wrocław Appellate Prosecutor’s Office (Prokuratura Apelacyjna).

On 25 September 2003 the Wrocław Appellate Prosecutor amended the charges against the applicants. He specified that the applicants had acted jointly with V.Z. and V.V. The prosecutor additionally invoked Article 294 § 1 of the Criminal Code, which signified that the fraudulent use of the cheque involved a considerable amount of money.

By a letter dated 14 June 2004 the Appellate Prosecutor informed the applicants that on the basis of the Regional Court’s decision of 25 October 2001, investigative measures – namely, the interception of telephone conversations – had been carried out pursuant to Article 237 of the Code of Criminal Procedure (“the CCP”). The prosecutor further informed the applicants that the relevant decision and the results of the interception could be consulted at the secret registry of the office of the Wrocław Appellate Prosecutor.

On 24 June 2004 the applicants lodged an appeal (zażalenie) against the Regional Court’s decision of 25 October 2001 authorising the warrant, alleging that it had been unlawful on two grounds.

Firstly, they argued that the Regional Court had erroneously applied Article 237 §§ 1 and 3 of the CCP in authorising the interception of telephone conversations in respect of an offence which was not included in the list of offences set out in Article 237 § 3. They noted that the aim of the Regional Court’s decision had been to establish the source of the forged cheques. However, at the material time Article 237 § 3 of the CCP did not allow for the application of such measures in respect of the offence of forgery of cheques. Subparagraph 12 of that provision authorised the interception of telephone conversations only in respect of the offence of counterfeiting money (fałszowanie pieniędzy). They underlined that the relevant provision had been amended to include the offence of forgery of cheques, but only with effect from 1 July 2003.

Secondly, the applicants alleged that the Regional Court had incorrectly applied Article 237 § 6 of the CCP in authorising a police officer and an interpreter to examine the recorded conversations. They submitted that only the court or the prosecutor, and in urgent cases the police with the agreement of the court or the prosecutor, had the right to do so. However, in their case the recordings had been examined by a police officer and a translator without the required authorisation by the prosecutor.

On 5 August 2004 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed the applicants’ appeal. The decision was served on the applicants’ counsel on 13 August 2004. The Court of Appeal held as follows:

“The Court of Appeal finds that the present appeal is unfounded and cannot be sustained.

The appeal’s main argument is the assertion that since Hubert Lachowski and Leonard Lachowski [the applicants] were charged with the commission of an offence under Article 310 § 2 of the Criminal Code [putting into circulation a forged cheque], and since this offence was not one of the offences listed in Article 237 § 3 of the CCP at the time of issuing the decision, the interception and recording of their [telephone] conversations was not permitted. However, such an argument cannot be upheld for the following reasons.

The investigation carried out by the Wrocław-Stare Miasto District Prosecutor did in fact relate to the putting into circulation of forged securities, but by the members of an organised [criminal] group, in other words, the offence under Article 237 § 3 (14) of the CCP, in respect of which it was permitted to intercept and record telephone conversations at the date when the decision was issued. According to the evidence obtained before the issuing of the decision, Hubert Lachowski and Leonard Lachowski [the applicants] were indeed persons suspected of (osoby podejrzane) acting as part of an organised group, as indicated by the passage from the impugned decision which states:

“the content [of those conversations] may concern the activities of an organised group involved in the putting into circulation ...”.

It has to be reiterated that a person suspected of [the commission of an offence] (which is referred to in Article 237 § 4 of the CCP) in respect of whom it is permitted to intercept and record telephone conversations is a person “who is suspected of having committed an offence, but who has not yet been formally charged. In respect of such a person there is a supposition that he/she has committed an offence; however, there is as yet no reasonable suspicion of their having committed an offence, and only such reasonable suspicion constitutes a ground to make that person a suspect (T. Grzegorczyk, Kodeks Postępowania Karnego. Komentarz. Wydanie III uzupełnione ... [Code of Criminal Procedure, Commentary, 3rd revised edition] ...).

Having regard to the foregoing, it has to be stated that the charge [of committing an offence] under Article 310 § 2 of the Criminal Code laid against the applicants did not provide a ground for tapping their telephones as that was not provided for by Article 237 § 3 of the CCP; nevertheless, the fact that at the same time they were persons suspected of membership of an organised group and of carrying out activities within the framework of such a group did constitute grounds for issuing the impugned decision on the interception and recording of telephone conversations.

Thus, the warrant was issued in accordance with the law and consequently there are no grounds for sustaining the arguments put forward in the appeal; moreover, the court was able to authorise a police officer to examine the recordings of the intercepted telephone conversations under Article 237 § 6 of the CCP. The appellant is not right in claiming that under Article 237 § 6 only the prosecutor has the right to examine recorded conversations, because the court has that right also, and with the permission of these two authorities (and not only of the prosecutor), so also do the police. It is further obvious that in the case of a recording in a foreign language all of the above authorities have the right (and even a duty) to seek the assistance of a sworn translator. ...”

On 17 August 2004 the Wrocław Appellate Prosecutor filed a bill of indictment with the Wrocław Regional Court against eight accused. The applicants were charged with putting into circulation between 24 October and 16 November 2001, jointly with V.V. and V.Z., a forged Texas Commerce Bank cheque for USD 8,500,000 (the equivalent of 35,000,000 Polish zlotys (PLN)) and attempting to use that cheque fraudulently. The prosecutor relied on Article 310 § 2 in conjunction with Article 286 § 1 and Article 294 § 1 of the Criminal Code. The first applicant was also charged with storing and transporting on 16 November 2001 a forged Security Pacific National Bank cheque for USD 2,000 (Article 310 § 2 of the Criminal Code). Four accused were charged with acting in an organised criminal group.

The warrant authorising the telephone tapping and the transcript of the intercepted conversations was deposited in the classified section of the case file. On 3 September 2004 the applicants’ counsel requested that the Regional Court be served with a copy of the warrant. On 23 November 2004 the applicant’s counsel repeated his request and argued that the decision should not be treated as classified.

The trial began on an unspecified date in December 2004. At a hearing held on 17 December 2004 the Regional Court refused to serve a copy of the warrant of 25 October 2001 on the applicants’ counsel. It found that the warrant had been classified under the 1999 Protection of Classified Information Act and that the circumstances justifying that decision had not ceased to exist.

At a hearing held on 24 February 2005 the trial court decided that the case against the first applicant should be severed from the main proceedings. It further stayed the proceedings against him having regard to his poor medical condition.

At a hearing held on 27 March 2007 the prosecutor requested the trial court to rule that the transcript of the intercepted telephone conversations be adduced in evidence but remain confidential. At an earlier hearing on 19 March 2007, counsel for the second applicant had requested that the confidential evidence be declassified. On 12 April 2007 the trial court declassified the warrant of 25 October 2001 and the transcript of the intercepted conversations. That decision was necessary in order to enable the lay members of the trial court, who did not have the relevant security clearance, to hear the evidence obtained under the warrant.

On 17 April 2008 counsel for the second applicant objected to the prosecutor’s request, arguing that the evidence obtained as a result of the telephone tapping was inadmissible in law. He relied on similar arguments to those made in his appeal against the Wrocław Regional Court’s decision of 25 October 2001. In particular, he claimed that the impugned decision had authorised the interception of telephone conversations in respect of an offence which was not included in the list of offences set out in Article 237 § 3 of the CCP.

The second applicant’s representative further considered that his arguments were not undermined by the Wrocław Court of Appeal’s decision of 5 August 2004 dismissing his appeal. The Court of Appeal had justified the decision authorising the interception of the telephone conversations by the fact that the applicants were persons suspected of acting in an organised criminal group, and had relied on a passage from the Wrocław Regional Court’s decision of 25 October 2001 (“the content [of those conversations] may concern the activities of an organised group involved in the putting into circulation ...”). However, the counsel underlined that the impugned passage was nowhere to be found in the decision of the Regional Court.

Only if the Court of Appeal’s assertion that the telephone tapping had been carried out in connection with the activities of an organised criminal group was correct – and there was no indication in the decision to open the inquiry or in the bill of indictment that that was the case – would the District Court have been competent to order such a measure. Lastly, the applicant’s representative argued that the trial court was not bound by any earlier decision pronounced with regard to the admissibility of evidence.

At a hearing held on 27 May 2008 the trial court dismissed the applicants’ challenge to the admissibility of the impugned evidence. It found that the Regional Court had not indicated in the operative part of its decision the precise subparagraph of the provision listing the offences under which the interception of conversations could be authorised. However, in the reasons for its decision the Regional Court had justified the order for the interception on the ground that some of the suspected persons were cooperating with a view to defrauding considerable sums of money. In addition, the Court of Appeal had held in its decision that the content of the conversations could relate to the activities of an organised criminal group. In consequence, it could not be sustained that the evidence obtained under the warrant was inadmissible in law.

At a hearing on 19 November 2008 the trial court heard the intercepted telephone conversations.

On 23 January 2009 the Wrocław Regional Court gave its judgment. The second applicant and V.Z. were convicted of putting into circulation a forged Texas Commerce Bank cheque for USD 8,500,000 (the equivalent of PLN 35,000,000), and of attempted fraudulent use of that cheque. They were sentenced to two years’ imprisonment.

The second applicant lodged an appeal against the first-instance judgment. He alleged, inter alia, that the trial court had not properly reasoned its judgment. In particular, he pointed to the fact that the trial court had heard the evidence obtained as a result of the telephone tapping but had failed to refer to it in the judgment.

On 28 October 2009 the Wrocław Court of Appeal amended the firstinstance judgment in respect of the second applicant and upheld it for the remainder. It held that the second applicant’s appeal was partly justified; however none of the alleged breaches of the criminal procedure was confirmed. The Court of Appeal agreed with the appellant that he could not be considered to have been an accomplice in the putting into circulation of the forged cheque. It held instead that the second applicant was guilty of aiding and abetting V.Z. in putting into circulation a forged Texas Commerce Bank cheque, and fraudulent use of that cheque. Accordingly, it sentenced him to a suspended term of two years’ imprisonment.

With regard to the intercepted telephone conversations and the fact that the trial court had not relied on them as the basis for establishing the facts of the case, the Court of Appeal agreed with the lower court that that evidence was not relevant to the case. The Court of Appeal noted that the lack of any reference to the evidence amounted to a breach of Article 424 § 1 of the CCP; however, this shortcoming had no effect on the validity of the first-instance judgment or the possibility of having it properly reviewed.

The second applicant lodged a cassation appeal.

On 11 January 2011 the Supreme Court dismissed his cassation appeal as manifestly ill-founded. In such a case the Supreme Court was not required to provide written reasons for its decision.

Having regard to the death of the first applicant, the Wrocław Regional Court discontinued the proceedings against him on 21 July 2011.

Article 237 § 1 of the Code of Criminal Procedure, as in force at the relevant time, provided:

“Following the institution of proceedings, a court, acting at the request of a prosecutor, may order the interception and recording of telephone conversations with a view to obtaining evidence for pending proceedings or preventing the commission of a new offence.”

Article 237 § 3 of the CCP provided at the relevant time, in so far as relevant:

“The interception and recording of telephone conversations is permitted only when the pending proceedings, or reasonable suspicion of a new offence being committed, concern:

1/ manslaughter,

12/ the counterfeiting of money,

14/ an organised criminal group,

15/ property of considerable value,

Article 237 § 4 read:

“The interception and recording of telephone conversations is permitted in respect of a suspected person (osoba podejrzana), an accused (oskarżony), a victim or other person whom an accused may contact, or a person who may be connected with a perpetrator or with an impending offence.”

Article 237 § 6 provided:

“A court or a prosecutor has the right to play the recordings, and in cases of urgency so also do the police, with the authorisation of a court or a prosecutor.”

Article 237 § 3 (12) was amended with the effect from 1 July 2003. Subsequently, that provision authorised the use of interception measures in the case of offences concerning forgery and use of forged money, cheques and other similar instruments.

Article 238 § 1 read as follows:

“The interception and recording of telephone conversations may be carried out for a period of up to three months, with a possibility of extending it, in particularly justified cases, for another period of up to three months.”

Paragraph 3 of Article 238 provided, in so far as relevant:

“After the termination of the interception a court shall order the destruction of the recordings if they are not relevant to the criminal proceedings; ...”

Article 239 read:

“The serving of the decision on the interception and recording of telephone conversations on the person concerned may be postponed for the time necessary for the interests of the case, but until no later than the termination of the proceedings”.

Article 240 specified that a decision on the interception and recording of telephone conversations could be appealed against.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1968 and lives in Moscow.

On 14 June 2001 charges of fraud were brought against the applicant, and he signed a written undertaking not to leave his place of residence. Some of the applicant’s assets, specifically his flat, parking spaces and three cars, were frozen.

On 21 June 2001 the investigation of the criminal case against the applicant was terminated and he began examining the case file.

However, on 26 September 2001 the investigation resumed.

On 26 September 2001 the Prosecutor General’s Office of Russia decided that in view of the seriousness of the charges faced by the applicant, the risk of his absconding, as well as the necessity to “secure the enforcement of the conviction” the applicant should be placed in pre-trial detention.

On 28 September 2001 the applicant was remanded in custody and placed in a specialised detention facility at the Moscow Clinical Hospital no. 20 owing to a provisional diagnosis of acute myocardial infarction, arterial hypertension and an exacerbating duodenal ulcer. He stayed there until 20 November 2001, following which he was transferred to a remand prison. The attending doctor found the applicant fit to participate in the investigative actions.

In the meantime, on 8 October 2001 the investigation was completed and the applicant was informed that he could start to examine the case file.

On the same date the applicant brought an application for release. He argued that there was no indication that he would abscond or otherwise obstruct the administration of justice: the applicant had no criminal record; he had a family, a permanent job and a permanent place of residence, and he suffered from a number of chronic cardiovascular and surgical diseases; the choice of a custodial measure had thus not been justified.

On 24 October 2001 the Moscow Babushkinskiy District Court examined the applicant’s arguments with references to his medical documents, documents attesting to his family situation, his positive references from work, and the arguments by the investigator to the effect that the applicant had ignored the investigator’s summonses to appear on 22 and 25 July, 13 and 14 August and 24 September 2001 without giving reasons, that he had often been several hours late to appear before the investigator, that he could appear for fifteen minutes and then leave saying that nobody could tell him when to come and when to leave, and that throughout the summer, in the eyes of the investigator, the applicant had been out of contact. Having considered the reasons which prompted the choice of preventive measure, in particular, the seriousness of the charges against the applicant and his conduct during the pre-trial investigation, the District Court held that there were no grounds for releasing the applicant.

On 20 November 2001 the Moscow City Court upheld the above decision on appeal.

On 22 November 2001, 21 January and 9 April 2002 the Deputy Prosecutor General extended the applicant’s detention until 28 January, 28 April and 28 June 2002 respectively.

Meanwhile, on 15 January 2002 the forensic medical expert did not confirm the applicant’s medical diagnosis.

On 20 June 2002 the criminal case against the applicant was submitted to the Moscow Presnenskiy District Court for trial.

The Moscow Presnenskiy District Court repeatedly extended the applicant’s detention pending trial. Such extensions were granted upon the prosecutor’s request on 16 December 2002, 19 March, 23 June, 24 September, 23 December 2003 and 24 March 2004. On each occasion the District Court referred to the seriousness of the charges against the applicant and the risk of his absconding or otherwise obstructing justice, and the absence of grounds for changing the preventive measure imposed. Those decisions were upheld on appeal by the Moscow City Court on 21 January, 27 May, an unknown date and 3 December 2003, 23 March and 29 April 2004 respectively.

On 26 May 2004 the Moscow Presnenskiy District Court sitting in a bench composed of Judge F. (presiding judge), Ms Kh. and Ms Shch. (lay judges) convicted the applicant of fraud and sentenced him to seven years and six months’ imprisonment. The court further held that the civil claim against the applicant, as well as the question of lifting the restriction imposed on the applicant’s property, should be referred for consideration within the framework of the civil procedure.

The applicant appealed. He complained that, inter alia, the judgment had been given by a court whose composition had not been in accordance with law. In particular, he referred to the fact that the lay judges who participated in the examination of his case had at the same time been examining a criminal case against a certain Mr Tver. He also complained that the trial court had read out the testimonies of the majority of the witnesses for the prosecution, including testimonies by key prosecution witnesses, and had thus deprived him of the possibility of cross-examining them. This was despite the absence of any exceptional circumstances which had prevented the court from securing their attendance at the court hearing.

On 17 August 2004 the Moscow City Court reduced the sentence to six years and upheld the rest of the judgment on appeal. In reply to the applicant’s argument regarding the alleged unlawfulness of the composition of the trial court, the City Court held that the composition of the court had remained unchanged throughout the trial in accordance with Article 242 of the Code of Criminal Procedure, and that the participation of lay judges, who had also been involved in the examination of another case, had had no legal consequences and had not amounted to a violation of the law. The City Court further held that the reading out of the testimonies of certain witnesses had been carried out by the trial court on the request of the prosecutor and in compliance with the requirements of Article 281 of the Code of Criminal Procedure.

On 30 December 2004 the Presidium of the Moscow City Court, by way of supervisory review, modified the charges the applicant had been convicted on and reduced his sentence to five years six months’ imprisonment.

On 9 March 2005 the Sukhinichskiy District Court, Kaluga Region, ordered the applicant’s conditional early release.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;Article 46-2 - Measures of a general character);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

A. The case of Mr Rutkowski (application no. 72287/10)

The applicant was born in 1959 and lives in Warszawa.

Criminal proceedings against the applicant (case no. III K 1878/05)

On 18 September 2002 the applicant, who was a policeman, was arrested on suspicion of participating in an organised criminal group and corruption. On 20 September 2002 he was charged with those offences and remanded in custody.

On 5 December 2002 the prosecutor signed a bill of indictment against the applicant and fifteen co-accused. The applicant was indicted on charges of participating in an organised criminal group, abuse of power and corruption.

On an unspecified date in December 2002 the Warsaw Regional Prosecutor (Prokurator Okręgowy) lodged the bill of indictment with the Warsaw-City District Court (Sąd Rejonowy).

On 14 May 2003 the court issued a severance order, deciding that the accused policemen be tried separately; however, no trial date was scheduled.

On 30 May 2003 the applicant was released.

On 20 November 2003 the court ordered that the accused policemen’s case be joined with another case. No trial date was scheduled.

On 24 May 2005 the Warsaw-City District Court decided that it did not have competence to deal with the case and referred it to the WarsawMokotów District Court. The decision became final on 28 July 2005 but the case-file was not transferred to that court until 18 November 2005.

The proceedings before the Warsaw Mokotów District Court started on 21 September 2006. One of the reasons for the delay was that, on 10 July 2006, the court had found that the accused had not yet been served with a copy of the bill of indictment, which should normally have taken place at the initial stage of the judicial proceedings.

Up to the end of 2006 the court held fourteen hearings. In the first half of 2007 eight hearings took place.

On 19 July 2007 the Warsaw Mokotów District Court held that as a result of amendments to the criminal law that had meanwhile entered into force, it no longer had competence to deal with the case and referred it to the Warsaw Regional Court. The parties appealed.

On 15 November 2007 the District Court found that the appeals were well-founded and quashed its decision on referral. The case-file, which had meanwhile been transferred to the Regional Court, was returned in June 2008.

The trial before the District Court restarted in June 2008. However, as so much time had elapsed, it had to be conducted from the beginning. In 2008 the court held eleven hearings, in 2009 ten hearings and in 2010 seven hearings.

On 21 July 2010 the Warsaw Mokotów District Court acquitted the applicant.

Proceedings under the 2004 Act (case no. X S 40/10)

On 16 April 2010 the applicant lodged a complaint under the 2004 Act (hereafter also referred to as “length complaint”) with the Warsaw Regional Court (Sąd Okręgowy) He sought a finding that the length of the proceedings had been excessive and 20,000 Polish zlotys (PLN) (approximately 5,000 euros (EUR)) in compensation.

On 1 June 2010 the Warsaw Regional Court held that the length of the proceedings had been excessive from 17 September 2004 to 18 November 2005 (see also paragraph 20 above) and awarded the applicant PLN 2,000 (approximately EUR 500) in compensation. In its assessment of the length of the proceedings, the court took into account only the period starting from 17 September 2004, i.e. the date on which the 2004 Act entered into force.

As regards the period after 18 November 2005, the Regional Court found that, despite the fact that “in the first half of 2006, at the stage of preparation for the trial and during the initial hearings the court’s actions [had been] somewhat chaotic and the court had not avoided certain shortcomings”, the proceedings had been conducted with due diligence. In consequence, the court refused to grant the applicant the full sum sought, holding that he had not demonstrated that he had sustained damage in that amount.

Application of the “Scordino (no. 1) criteria”

In the absence of domestic remedies, the Court’s award, determined with reference to the criteria set in its case-law, in particular the length of the period under consideration (see paragraphs 126-128 and 132 below) and sums usually granted in similar Polish cases would amount to PLN 38,000.

The applicant was awarded approximately 5.5% of that sum.

On the date of the national court’s decision on the applicant’s complaint, namely 1 June 2010 (see paragraph 26 above) a domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no.1) criteria (see Scordino (no. 1), cited above, §§ 195-216 and 272) should have reached at least PLN 13,200 in order for the applicant to lose his victim status.

B. The case of Mr Orlikowski (application no. 13927/11)

The applicant was born in 1963 and lives in Łódź.

Pre-trial proceedings for securing evidence

On 8 September 1998 the applicant lodged an application for the securing of evidence with the Łódź District Court.

Pursuant to Article 310 of the Code of Civil Procedure, such an application can be lodged by a prospective party before the initiation of a civil action if there is a fear that the taking of specific evidence will be impossible or too difficult, or if there is a need to establish the state of affairs.

The applicant, who intended to bring a civil claim against his landlord for damages resulting from defective performance of a lease contract, asked the court to obtain an expert report determining the state and value of outlays that he had made on the commercial premises that he had rented.

The report was submitted to the court on 20 November 1998. A copy thereof was served on the applicant on 8 December 1998.

Civil proceedings instituted by the applicant (case no. II C 566/06; I A Ca 750/10)

On 4 March 1999 the applicant lodged an action for damages with the Łódź Regional Court (Sąd Okręgowy). He also asked the court to secure his claim. An order securing the claim by means of a mortgage on the defendant’s property was given on 17 May 1999.

The first hearing was held on 20 September 1999. The next hearing took place on 9 November 2000.

In the meantime, the court dealt with some procedural matters involved in the defendant’s interlocutory appeal against the order securing the claim, which was accompanied by his various other requests, such as applications for exemption from court fees or for retrospective leave to appeal out of time.

Overall, from 4 March 1999, namely the date on which the claim was lodged, to 6 November 2001 the Regional Court held six hearings and heard evidence from the parties and nine witnesses. The hearings were held on 20 September 1999, 9 November 2000, 17 May, 4 September, 4 October and 6 November 2001.

On 30 November 2001 the court gave judgment and rejected the applicant’s claim in its entirety. The applicant appealed on 24 January 2002.

On 4 September 2002 the Łódź Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case.

The re-trial started on 28 November 2002.

From that date to 16 May 2005 the Regional Court scheduled four hearings, which were held on 3 February and 3 April 2003, 31 March 2004 and 16 May 2005. It heard evidence from a witness, an expert and the parties. The applicant modified his claim on 16 May 2005.

In the meantime, on 31 March 2004 the court had decided to take evidence from an expert in construction. The expert submitted his report on 13 September 2004.

On 2 June 2005 the Łódź Regional Court gave its second judgment, partly allowing the applicant’s claim.

The judgment was partly quashed on the defendant’s appeal and the case was remitted by the Łódź Court of Appeal on 28 March 2006. On 17 May 2006 the case-file was returned to the Regional Court.

On 25 May 2006 the Regional Court ordered the parties to apply for the taking of further evidence that they wished to submit, on pain of rejecting any such subsequent requests. On 13 June 2006 the applicant asked the court to take evidence from one witness and from himself as a party. On 19 June 2006 the defendant asked the court to obtain evidence from two experts.

The re-trial started on 20 September 2006. From that date to 19 March 2010 the court scheduled five hearings, which were held on 17 November 2006, 18 July 2007, 5 September 2008, 1 April 2009 and 19 March 2010. It heard evidence from two witnesses, three experts and the parties

In the meantime, on 29 December 2006, the court had ordered that evidence from an expert in construction be obtained. It fixed a thirty-day time-limit for submission of his report. The expert submitted the report on 19 March 2007. The defendant asked the court to take evidence from another expert.

At the hearing held on 18 July 2007 the parties stated that they would attempt to settle the case. On 12 and 13 September 2007 respectively they informed the court that their negotiations had failed.

On 8 November 2007 the court ordered that evidence from three experts – in construction, accountancy and air-conditioning and ventilation – be obtained.

The construction expert submitted his report on 7 January 2008, the expert-accountant submitted his report on 22 October 2008 and the airconditioning expert submitted his report on 2 November 2009. The intervals between those dates were caused by the fact that the court waited until each expert had finished his work before sending the materials in the case-file to the following expert.

Also, the expert in air-conditioning on several occasions asked the court to extend the time-limits set for submission of his report, which he justified by the volume of his work on other reports, long holidays and difficulties in obtaining a document or in setting a date for an on-site inspection of the premises. The court granted all his requests.

On 16 April 2010 the Łódź Regional Court delivered its third judgment, rejecting the applicant’s claim in its entirety. The applicant appealed on 6 August 2010.

On 5 November 2010 the Łódź Court of Appeal heard the appeal. On 19 November 2010 it partly allowed the applicant’s appeal, altered the contested judgment and granted the applicant’s claim up to the amount of PLN 56,770, with statutory interest.

Proceedings under the 2004 Act (case no. I S14/10)

On 4 May 2010 the applicant lodged a complaint under the 2004 Act with the Łódź Court of Appeal (Sąd Apelacyjny). He sought a finding that the length of the proceedings had been excessive and PLN 10,000 Polish zlotys in compensation.

On 2 June 2010 the Łódź Court of Appeal dismissed the applicant’s complaint. The court concluded that, given the complexity of the case and the need to obtain evidence from experts in three different fields, the proceedings had been conducted in a correct and timely manner.

In its assessment of the length of the proceedings, the court took into account only the period after 28 March 2006, namely the date on which the Court of Appeal had partly quashed the Regional Court’s judgment of 2 June 2005 (see also paragraph 38 above).

Application of the “Scordino (no. 1) criteria”

In the absence of domestic remedies, the Court’s award, determined with reference to the criteria set in its case-law, in particular the length of the period under consideration, (see paragraphs 126-128 and 144 below) and sums usually granted in similar Polish cases would amount to PLN 36,400.

On the date of the national court’s decision on the applicant’s complaint, i.e. 2 June 2010 (see paragraph 47 above) a domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no.1) criteria (see Scordino (no. 1), cited above, §§ 195-216 and 272) should have reached at least PLN 11,000 in order for the applicant to lose his victim status.

C. The case of Ms Grabowska (application no. 46187/11)

The applicant was born in 1955. She lives in Poznań.

Background of the case

In 1999 the applicant lodged a civil action for payment and accounting (pozew o złożenie rachunku z zarządu i zapłatę) against a certain A.T. with the Gdynia District Court (Sąd Rejonowy). The action concerned property which had been inherited by the applicant.

Proceedings for adverse possession (VII Ns 2545/99; VII Ns 1543/05; VII Ns 1967/08)

On 15 December 1999 A.T. and four other persons applied to the Gdynia District Court for adverse possession (zasiedzenie) of the property in question. The applicant was not notified of the proceedings.

On an unspecified date the Gdynia District Court informed the applicant that the proceedings for payment and accounting initiated by her had been stayed pending the outcome of the case concerning adverse possession.

On 12 April 2000 the applicant informed the District Court that she wished to join the proceedings.

From 15 December 1999 to 19 April 2006 the court heard evidence from four witnesses and two participants in the proceedings. It also ordered that a press announcement be published to all unknown heirs or heirs whose whereabouts were unknown of one of the late predecessors in title to the property.

On 19 April 2006 the Gdynia District Court decided that A.T. and four other persons had acquired a half share in the property by adverse possession.

The applicant appealed on an unspecified date in April or May 2006.

On 18 October 2007 the Gdańsk Regional Court (Sąd Okręgowy) quashed the first-instance decision and remitted the case, holding that the District Court had failed to make the necessary findings of fact and to determine the merits of the case. Also, the proceedings had been flawed by procedural shortcomings, such as the court’s failure to serve copies of the 1999 application for adverse possession on all the interested partiesincluding the applicant.

During the appellate proceedings the court re-opened the case after the hearing and three times adjourned delivery of its decision.

On 2 January 2008 the Gdynia District Court asked the Gdańsk Regional Court to transfer the case to the Poznań District Court. On 31 March 2008 the Regional Court refused that request.

On 20 September 2008 the applicant was served with a copy of the 1999 application for adverse possession. The document was incomplete, as some pages and appendices were missing. The court informed the applicant that she was entitled to submit a response to the application.

On 3 March 2009 the court summoned a certain M.T. to join the proceedings.

During the hearing held on 24 April 2009 the court found that the proceedings also concerned the interests of the second husband of one of the petitioners and ordered that the petitioners produce his heirs’ personal details and addresses and serve them with a copy of the application for adverse possession. The parties were informed that the next hearing would not take place before August 2009 because of the judge rapporteur’s planned holidays.

On 6 July 2009 the Gdynia District Court summoned a certain J.M.P. to join the proceedings.

On 21 September 2009 the proceedings were suspended as the petitioners had failed to produce an extra copy of the 1999 application for adverse possession, which had to be served on J.M.P.

On 25 October 2010 the applicant applied for discontinuation of the proceedings.

On 4 November 2010 the Gdynia District Court resumed the proceedings and scheduled a hearing for 17 December 2010.

Between December 2010 and December 2011 the District Court scheduled four hearings and summoned further persons to join the proceedings. A hearing scheduled for 8 February 2011 had been cancelled because the case-file had meanwhile been transmitted to the Gdańsk Regional Court together with a complaint lodged by the applicant under the 2004 Act, alleging that the length of the proceedings had been excessive (see paragraphs 72-73 below).

On 21 February 2012 the District Court gave the second decision on the merits. The applicant appealed on 1 April 2012.

On 14 November 2012 the Mayor of the City of Gdynia applied to the Regional Court to be summoned as a party to the proceedings. It was submitted that the District Court had erroneously summoned the Gdańsk First Tax Chamber as the State Treasury’s representative and party in the proceedings. Subsequently, on an unknown date, the Regional Court summoned the Mayor of the City of Gdynia to join the proceedings as a party.

On 28 November 2012 the Mayor filed an appeal against the decision of 21 February 2012, invoking the nullity of the entire proceedings on the grounds that it had been impossible to defend his rights.

The appellate hearing, which was scheduled for 19 December 2012, was cancelled.

On 10 April 2013 the Regional Court held a hearing. The case was closed and the court announced that the judgment would be delivered on 24 April 2013. However, on that date the court reopened the case and fixed a fresh date for a hearing for 4 June 2013.

On 4 June 2013 the Court of Appeal again heard the appeals lodged by the applicant and the Mayor of the City of Gdynia.

On 18 June 2013 the court gave judgment. It partly amended the firstinstance decision and dismissed the remainder of the appeals.

On 15 December 2010 the applicant lodged a complaint with the Gdańsk Regional Court under the 2004 Act. She sought a finding that the length of the proceedings had been excessive and PLN 20,000 Polish in compensation.

On 31 January 2011 the Gdańsk Regional Court dismissed the applicant’s complaint. In its assessment of the length of the proceedings, the court did not to take into account the period before 17 September 2004, namely the date on which the 2004 Act had entered into force, holding that the 2004 Act applied only to the excessive length of proceedings occurring on the date of its entry into force. As regards the subsequent period, it held that the proceedings could not be said to have been excessively long, given that it had been necessary to secure the participation and representation of all the interested parties in the proceedings.

Application of the “Scordino (no. 1) criteria”

In the absence of domestic remedies, the Court’s award, determined with reference to the criteria set in its case-law, in particular the length of the period under consideration (see paragraphs 126-128 and 154 below) and sums usually granted in similar Polish cases, would amount to PLN 42,000.

On the date of the national court’s decision on the applicant’s complaint, namely 31 January 2011 (see paragraph 73 above), a domestic award, determined with reference to the Court’s awards in similar cases and the Scordino (no.1) criteria (see Scordino (no. 1), cited above, §§ 195-216 and 272) should have reached at least PLN 11,000 in order for the applicant to lose her victim status.