ITEMID: 001-92999
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF TRGO v. CROATIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of a violation sufficient
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1924 and lives in Krilo Jesenice.
6. The legal system of the former Socialist Federal Republic of Yugoslavia (SFRY) distinguished between two types of ownership: private ownership (privatno vlasništvo) and social ownership (društveno vlasništvo). While owners of property in private ownership were private individuals (natural persons) and some private legal entities called “civil legal entities” (građanske pravne osobe) such as foundations, associations and religious communities, property in social ownership, according to the official doctrine, had no owner. Nevertheless, the federal State, the constituent Republics, municipalities being local government units and other various legal entities called “social legal entities” (društvene pravne osobe), among which the most important ones were companies, known at the time as “organisations of associated labour” (organizacije udruženog rada) and later on as “socially owned companies” (društvena poduzeća), were during the socialist period given certain quasi-ownership rights over property in social ownership, such as the right to use it (pravo korištenja), the right to administer it (pravo upravljanja) or the right to dispose of it (pravo raspolaganja). Private individuals could also acquire certain rights over property in social ownership. Notably, many individuals living in socially owned flats had specially protected tenancies (stanarsko pravo) in respect of those flats.
7. The Constitution of the Republic of Croatia of 1990 (Ustav Republike Hrvatske, Official Gazette, no. 56/1990 with subsequent amendments) acknowledged only one type of ownership: private ownership. Therefore, in order to bring the country’s legal system in conformity with its Constitution, in the period between 1991 and 1997 the Croatian Parliament adopted several legislative acts with a view to transforming social ownership into private ownership.
8. In particular, the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette no. 27/1991 with subsequent amendments – “the Sale to Occupier Act”), which entered into force on 19 June 1991, enabled the holders of specially protected tenancies to purchase their flats which were in social ownership under favourable conditions and thereby become their owners.
9. The Transformation of Socially Owned Companies Act (Zakon o pretvorbi društvenih poduzeća, Official Gazette no. 19/1991 with subsequent amendments), which entered into force on 1 May 1991, provided that all “socially owned companies” had to transform into commercial companies, in particular into either limited liability companies or joint stock companies.
10. On 1 January 1997 both the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no. 91/1996 of 28 October 1996 – “the 1996 Property Act”), and the Act on Compensation for, and Restitution of, Property Taken During the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette nos. 92/1996, with subsequent amendments – “the Denationalisation Act”), entered into force. By entry into force of these two Acts the transformation of social ownership into private ownership was largely completed.
11. The 1996 Property Act provided that by its entry into force the holders of the rights to use, administer and dispose of socially owned property (see paragraph 6 above) were to become the owners of that property. As regards, in particular, commercial companies created through transformation of socially owned companies pursuant to the Transformation of Socially Owned Companies Act, the 1996 Property Act provided that those companies were already from the moment of their transformation to be considered the owners of socially owned property in respect of which they previously held the rights to use, administer and dispose of it (see section 360(1) of 1996 Property Act in paragraph 28 below).
12. The Denationalisation Act provided that in respect of certain property that had been through nationalisation or confiscation appropriated from its former owners during socialism and transferred into social ownership there was to be restitution in kind. It thereby enabled some former owners or their heirs to obtain ownership of such property which had until then been socially owned property.
13. The legislation of the former SFRY, in particular section 29 of the Basic Property Act of 1980 (see paragraph 27 below), prohibited the acquisition of ownership of socially owned property by adverse possession (dosjelost).
14. When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed that provision (see paragraph 27 below).
15. Subsequently, the new Property Act of 1996 provided in section 388(4) that the period prior to 8 October 1991 was to be included in calculating the period for acquisition of ownership by adverse possession of socially owned immovable property (see paragraph 28 below).
16. Following several petitions for constitutional review (prijedlog za ocjenu ustavnosti) submitted by the former owners of property that had been appropriated during socialism, on 8 July 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) accepted the initiative, and decided to institute proceedings to review the constitutionality of section 388(4) of the 1996 Property Act (decision nos. U-I-58/1997, U-I-235/1997, U-I-237/1997, U-I-1053/1997 and U-I-1054/1997 of 8 July 1999, Official Gazette no. 80/1999 of 30 July 1999).
17. On 17 November 1999 the Constitutional Court abrogated section 388(4) of the 1996 Property Act (decisions nos. U-I-58/1997, U-I-235/1997, U-I-237/1997, U-I-1053/1997 and U-I-1054/1997 of 17 November 1999, Official Gazette no. 137/99 of 4 December 1999). It held that the impugned provision had retroactive effects with adverse consequences for the rights of third persons and was therefore unconstitutional.
The Constitutional Court’s decision in its relevant part reads as follows:
DECISION
I.
The provisions of section ... 388 paragraph 4 of the [1996 Property Act] are hereby abrogated.
II.
...
Reasons
I.
The petitioners consider that the impugned provision tends to favour various users of property, who used it without any title, by enabling them to acquire ownership at the expense of [former] owners from whom it was taken during Communism ... They also point out that retroactive [application of the rules of] adverse possession should not be allowed.
...
The petition [for constitutional review] is well founded.
The impugned provision attributes a common quality to a certain state of facts even in respect of the period during which that quality was expressly excluded by law.
Namely, section 29 of the [1980 Basic Property Act] provided that ownership of socially owned property could not be acquired by adverse possession. That provision was repealed by section 3 of the Act on the Incorporation of the [1980 Basic Property Act] (...) , as a result of which all immovable property which had been in social ownership before the adoption of the [new 1990] Constitution, regardless of its status in the transitional period, came under the general regime also as regards [the acquisition of ownership by] adverse possession.
Since, in the court’s view, repealing in the particular case amounts only to abrogation ex nunc [ukidanje] and not to annulment ex tunc [poništavanje], it has to be concluded that the period of possession of the socially owned property before 8 October 1991 (the day of entry into force of the Act on the Incorporation of the [1980 Basic Property Act]) cannot be taken into account for the purposes of acquiring ownership by adverse possession ...
Namely, the possessors of the property, in respect of which the acquisition of ownership by adverse possession was expressly excluded by law, were aware that this property was not susceptible to [acquisition of ownership by] adverse possession, which was also known to the holders of [various] rights over the same property (the right to administer, use and dispose of it), who therefore did not [have to] use relevant remedies against the risk of losing the property on account of its acquisition by its possessors through adverse possession. Therefore, in the application of the impugned provision it may happen that holders of certain property rights lose these rights, which the Constitution allows only exceptionally and with compensation.
What is more, the impugned provision makes possible the acquisition of ownership of certain property even before the time-limits for acquisition by adverse possession started to run, while [at the same time] the time-limits for acquisition by adverse possession of many types of former socially owned property are actually being extended (the property owned by the Republic of Croatia, counties and units of local self-government ...).
[For these reasons], the court finds that the impugned provision is not, in the substantive sense [substantive unconstitutionality], in conformity with the highest values [of the constitutional order] of equality, inviolability of property and the rule of law enshrined in Article 3 of the Constitution, and the guarantee of property enshrined in Article 48 paragraph 1 of the Constitution.
Furthermore, the court concludes that the impugned provision has retroactive effects, for which reason it is not in conformity with the provision of Article 90 paragraph 2 of the Constitution either.
...
..., [T]he court finds that while determining the retroactive effects of the said provision of section 388 paragraph 4 of the [1996 Property Act], the procedure prescribed by the Rules of Procedure of the Croatian Parliament was not observed.
For the court, when [in the legislative process] the legislator breaches its self-prescribed rules of procedure.... ...the legislative act adopted in such improper way, is not in accordance with ... the [principle of the] rule of law enshrined in Article 3 of the Constitution.
This further means that ... the impugned provision ... is not even in the formal sense [formal unconstitutionality] in compliance with Article 90 paragraph 2 of the Constitution.
18. In 1997 the applicant instituted civil proceedings before the Makarska Municipal Court (Općinski sud u Makarskoj) against the Municipality of Podgora (Općina Podgora) and the State seeking a declaration of his ownership of certain plots of land and their registration in his name in the land register. The applicant claimed that the property at issue had been owned by his late uncle and confiscated in 1949 by the socialist authorities. The applicant’s late mother had been in possession of the land since 1953, as the applicant had continued to be after her death on 16 February 1992. Given that the prescribed period for acquisition of ownership by adverse possession had elapsed, the applicant claimed to have acquired ownership of the land.
19. On 16 February 2001 the Municipal Court ruled for the applicant and ordered that he be recorded in the land register as the owner of the property. The court held:
“After finding that the plaintiff’s mother was a bona fide possessor of the immovable property in question, it needs to be established whether she possessed it during the statutory period necessary to acquire ownership by adverse possession.
Once section 29 of the 1991 Basic Property Act was repealed... it has become possible to acquire ownership by adverse possession of socially owned immovable property ... [Also], under section 388(4) of the 1996 Property Act, in calculating the period for the acquisition by adverse possession of immovable property which was socially owned on 8 October 1991, the period before that date has also to be taken into account.
Section 388(4) of the 1996 Property Act was abrogated by a decision of the Constitutional Court ... , which means that, in the period prior to its abrogation, that provision was in force, that is until late 1999...
In order to acquire ownership by adverse possession of State-owned immovable property, under section 159(4) of the 1996 Property Act, a period twice as long as that set out in paragraphs 2 and 3 of that section is required, which means that in respect of the land at issue a continuous undisturbed possession in good faith over a period of forty years is needed.
Having regard to the fact that ... the plaintiff was, through his mother, in continuous possession of the land in question since 1953, it has to be concluded that he acquired ownership by adverse possession ...”
20. On an appeal by both respondents, on 18 June 2004 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicant’s claim on the following grounds:
“It is undisputed between the parties that:
- the immovable property at issue was confiscated from the plaintiff’s legal predecessor... in 1949;
- the respondent was recorded [as owner] in the land register on the basis of the confiscation decision;
- the plaintiff and his legal predecessor have had continuous possession [thereof] since 1953...
The first-instance court erred in finding that the plaintiff had acquired ownership by adverse possession of the immovable property at issue because he and his legal predecessor had had continuous possession since 1953, on the basis of section 388(4) of the 1996 Property Act, which was subsequently abrogated by a decision of the Constitutional Court... In its decision the Constitutional Court held that the unconstitutionality of the abrogated provision existed already prior to it being abrogated, that is, since its entry into force, a conclusion that is also accepted by this court. Consequently, irrespective of the fact that section 388(4) was in force until the publication of the Constitutional Court’s decision in the Official Gazette, the [first-instance court’s] decision could not be based on an unconstitutional provision.”
21. The applicant lodged a constitutional complaint against that judgment, claiming, inter alia, an infringement of his property rights. On 3 March 2005 the Constitutional Court dismissed the applicant’s complaint, finding that:
“During the... proceedings ... the Constitutional Court has established that [the second-instance judgment] was reached in application of the relevant provisions of substantive law, and that the legal findings of the second-instance court were well reasoned, and that therefore there has been no infringement of the complainant’s ownership rights...”
22. In 1994 the applicant requested the reopening of criminal proceedings which had ended in 1945 and in which his uncle had been convicted.
23. On 14 October 2003 the Split County Court declared the applicant’s request inadmissible, finding that he had not been entitled to make such a request. On appeal, the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the first-instance decision on 18 February 2004.
24. Subsequently, on 30 June 2004 the Constitutional Court declared the applicant’s complaint inadmissible for lack of jurisdiction.
25. On 5 May 1997 the applicant applied to the competent administrative authority seeking restitution of the above plots of land that had been confiscated from his late uncle in 1949 by the socialist authorities. In doing so he relied on the Denationalisation Act. It appears that the proceedings were later on stayed and that they are formally still pending.
26. The 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/1999 of 29 September 1999, which entered into force on 24 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002, which entered into force on 15 March 2002), in its relevant part reads as follows:
“(1) The Constitutional Court shall abrogate [ukinuti] a statute or its provisions if it finds that they are incompatible with the Constitution ...
(2) Unless the Constitutional Court decides otherwise, the abrogated [ukinuti] statute or its provisions shall cease to have legal force on the date of publication of the Constitutional Court’s decision in the Official Gazette [i.e. ex nunc].
(3) ...”
“(1) The final sentence for a criminal offence based on a statutory provision that has been abrogated as contrary to the Constitution shall cease to produce legal effects from the day of the entry into force of the Constitutional Court’s decision abrogating the statutory provision on the basis of which the sentence was delivered and may be set aside by [a petition for] reopening of criminal proceedings.
(2) Every natural or legal person who has lodged with the Constitutional Court a petition to review constitutionality of a statutory provision, or a constitutionality or legality of a provision of subordinate legislation, and whose petition has been accepted by the Constitutional Court and [that] provision abrogated [ex nunc], has a right to lodge with the competent authority [a petition for reopening of proceedings] and ask that the decision based on the abrogated ... provision ... be set aside.
(3) ...
(4) [The petition for reopening of the proceedings] referred to in paragraphs 2 and 3 of this section may be lodged within five months of the publication of the Constitutional Court’s decision in the Official Gazette.
(5) In proceedings in which no final decision has been adopted before the date of the entry into force of the Constitutional Court’s decision abrogating a statute, [...] or its provisions, and this statute [ ...] is directly applicable in the case, the abrogated statute [...] or its provisions shall not be applied from the date of the entry into force of the Constitutional Court’s decision.”
27. Section 29 of the Basic Ownership Relations Act (Zakon o osnovnim vlasničkopravnim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 6/1980 and 36/1990, which entered into force on 1 September 1980 – “the 1980 Basic Property Act”) prohibited the acquisition by adverse possession of ownership of socially owned property.
Section 3 of the Act on the Incorporation of the Act on Basic Ownership Relations (Zakon o preuzimanju zakona o osnovnim vlasničkopravnim odnosima, Official Gazette of the Republic of Croatia no. 53/1991 of 8 October 1991) repealed section 29 of the Basic Property Act.
28. The relevant part of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no. 91/1996 of 28 October 1996, which entered into force on 1 January 1997 – “the 1996 Property Act”), as in force at the material time, read as follows:
Part three
RIGHT OF OWNERSHIP
...
Chapter 6.
ACQUISITION OF OWNERSHIP
“(1) Ownership may be acquired by legal transaction, by decision of a court or other public authority, by succession, or by the operation of law.”
...
“(1) Ownership may be acquired by adverse possession on the basis of the exclusive possession of a certain property... if such possession has lasted continuously for a period of time determined by law and if the possessor is capable of being the owner of such property.
(2) An exclusive possessor who possesses under just title, in good faith and whose possession is free of vice shall acquire ownership of movable property after three years and of immovable property after ten years.
(3) An exclusive possessor who possesses at least in good faith shall acquire ownership of movable property after ten years and of immovable property after twenty years of continuous exclusive possession.
(4) An exclusive possessor of a property owned by the Republic of Croatia ... shall acquire ownership by adverse possession once his or her ... possession has lasted continuously for a period twice as long as that set out in paragraphs 2 and 3 of this section.”
Part nine
TRANSITIONAL AND FINAL PROVISIONS
Chapter 1.
TRANSFORMATION OF SOCIAL OWNERSHIP
“(1) ...
(2) The right of ownership and other rights in rem acquired under the provisions of this Act on transformation of the rights to administer, use or dispose of socially owned property ... shall be considered acquired under the condition that they are not in collision with the rights of other persons over [such] property under the denationalisation legislation.
“(1) The right to administer, use or dispose of socially owned property became by the transformation [privatisation] of its holder the right of ownership of that person who through the transformation became the former holder’s universal legal successor ...
(2) The right to administer, use or dispose of socially owned property which before the entry into force of this Act was not transformed into a subject of the right of ownership, shall by this Act’s entry into force become [its] right of ownership ...
(3) The provisions of paragraph 1 and 2 of this section shall be applied, mutatis mutandis, to other rights in rem.
(4) Registration of the right to administer, use or dispose of [socially owned property] in the land register ... shall be considered registration of the right of ownership.”
“(1) It is considered that the owner of a socially owned immovable property is a person registered in the land register as a holder of the right to administer, use or dispose of that immovable property.
(2) ...”
“(1) Person whose right of ownership is derived from the former right to administer, use or dispose of socially owned property ... shall have the right to protect it as any owner ...”
...
Chapter 4.
“(1) The acquisition, modification, legal effects or termination of rights in rem after the entry into force of this Act shall be assessed on the basis of its provisions...
(2) The acquisition, modification, legal effects and termination of rights in rem until the entry into force of this Act shall be assessed on the basis of rules applicable at the moment of the acquisition, modification or termination of those rights or of their legal effects.
(3) If the prescribed time-limits for the acquisition and termination of rights in rem set out in this Act started to run before its entry into force, they shall continue to run pursuant to paragraph 2 of this section...
(4) In calculating the period for the acquisition by adverse possession of immovable property which was socially owned on 8 October 1991, and for the acquisition of [other] rights in rem over such property, the period before that date shall also be taken into account.”
29. The relevant part of the 2001 Amendment to the 1996 Property Act (Zakon o izmjeni i dopuni Zakona vlasništvu i drugim stvarnim pravima, Official Gazette no. 114/2001 of 20 December 2001, which entered into force on the same day) that were enacted following the abrogation of section 388(4) of the 1996 Property Act by the Constitutional Court on 17 November 1999, reads as follows:
“In section 388, a new paragraph 4 shall be added after paragraph 3, to read:
‘In calculating the period for the acquisition by adverse possession of immovable property which was socially owned on 8 October 1991, and for the acquisition of [other] rights in rem over such property, the period before that date shall not be taken into account.’”
30. The Act on Compensation for, and Restitution of, Property Taken During the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette nos. 92/1996, 92/1999 (corrigendum), 80/2002 and 81/2002 (corrigendum), which entered into force on 1 January 1997 – “the 1996 Denationalisation Act”) enables the former owners of confiscated or nationalised property, or their heirs in the first line of succession (direct descendants and a spouse), to seek under certain conditions either restitution of or compensation for the appropriated property.
31. The 1977 Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991 and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999, 117/2003 and 84/2008, which entered into force on 1 July 1977 – “the Civil Procedure Act”), as amended by the 2003 Amendments (Official Gazette no. 117/2003, which entered into force on 1 December 2003) in its relevant part reads as follows:
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the finality of the judgment of the European Court of Human Rights, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.


ITEMID: 001-82560
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SANCHEZ CARDENAS v. NORWAY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings
JUDGES: Christos Rozakis
TEXT: 6. The applicant is a Chilean national who was born in 1968 and lives in Bergen, Norway. He has worked inter alia as a kindergarten assistant for about 8 years.
7. The applicant has two sons L. and A. (born respectively on 11 June 1994 and 24 February 1996) with Ms H.T., a Norwegian national, with whom he entered into a relationship in 1992/1993 and cohabited from mid 1994 until the end of that year. In 1995 (before A. was born) the applicant and H.T. reached an agreement whereby he had certain access rights to L.
8. Since around 1997 he has cohabited with Ms G.A.D. and her adolescent son.
9. A dispute arose as to the applicant's access to L. and A. On 9 June 1997 H.T. reported him to the police for allegedly having sexually abused L. She based her allegations on statements made by L. The mother gave statements to the police and L. was interviewed by a judge without anything significant emerging in the case. In July 1998 the State Prosecutor discontinued the investigation, which decision the Director of Public Prosecutions confirmed on appeal in October 1998.
10. In the year 2000 the applicant brought judicial proceedings before the Bergen City Court (byrett), claiming a right of access to his two sons (sections 44 and 44A of the Children Act 1981). On 7 December 2000 the City Court refused a request by H.T. to have an expert witness appointed.
11. By a judgment of 18 April 2001 the City Court granted the applicant access every other week-end and for approximately half of the holiday periods and devised a plan for stepping up access. To give the above immediate effect, the City Court issued an interlocutory order.
In reaching the above conclusions, the City Court rejected the accusations made by the boys' mother that the applicant had sexually abused L. It observed that according to H.T. there were only 10 occasions on which the applicant had been on his own with his son, namely in that they had been in a room with the door shut in H.T.'s apartment. In her view it was most probable that the abuse had occurred on these occasions, though she did not have concrete evidence to this effect. The City Court found it excluded on the evidence before it that the applicant had sexually abused L. It attached decisive weight to the fact that the applicant's access to his son had taken place each time under the supervision of at least one other person and that on the 10 occasions on which he and the son had been on their own in the latter's room, it was for a very short time and in a situation where the child's mother could have entered the room at any moment. The visits in question took place more than a year and a half ago - a very long period for a small child - before April 1997 when the son had made the statements that aroused the mother's suspicions that the applicant had sexually abused L. Finally, the City Court had regard to the fact that the physiological and psychiatric examinations carried out did not support the allegation that abuse had occurred. It found that the allegation had been the result of manipulation and fabrication by the mother as part of a strategy to obstruct the applicant's access. There was reason to assume that this had already had damaging effects on L., who had stated that he did not wish to live or to be with his father. The boy had become a go-between in a conflict between adults. The City Court stated that the applicant was more suitable than the mother to assume the daily care.
12. On 10 October 2001 H.T.'s lawyer lodged a disciplinary complaint against the judge who had heard the case before the City Court for having acted with prejudice against his client in expressing distrust and treating her with disrespect during her testimony. The judge was imposed a mild reprimand by the Ministry of Justice, which found that there were grounds for criticising his conduct of the proceedings.
13. H.T. appealed against the City Court's judgment and interlocutory injunction to Gulating High Court (lagmannsrett), requesting in the main that the applicant be refused a right of access to the children. She referred inter alia to the fact that the court appointed expert considered that L's strong negative attitude to his father was consistent with abuse having taken place. The applicant, denying that any abuse had occurred, requested the High Court to reject her appeal.
14. By a judgment of 27 September 2002, the High Court overturned the City Court's judgment and refused the applicant access to his two sons, inter alia after obtaining an expert report from a court appointed psychologist, dated 2 September 2002, and hearing evidence from the latter. It also had regard to a report of 11 September 2001 by a psychologist who had been counselling the boy at the mother's initiative and the psychologist's oral evidence to the court.
15. The High Court noted that from the psychologist's report of 2 September 2002 it emerged that the boy had felt great anxiety about the idea of meeting his father (he would kill himself rather than see his father); L. was unable to describe the reasons but his statements seemed founded on actual experience. Any access should be established gradually. Forcing the boy to have contact would be psychologically damaging.
16. The High Court observed that the applicant and L. met 23 times in 1996, 8 times in both 1997 and 1998, 3 times in 1999 and that no access had taken place during the last three years (since 11 August 1999). It did not consider that the mother had sabotaged access although it understood that the fact that access had to take place under supervision by her sister or her father had made it difficult for the applicant to exercise access.
17. The High Court's judgment included the following reasoning:
“Two arguments have been made against the father being granted a right of access.
Firstly, it is argued that the father has subjected [L.] to sexual assault. There is a complaint to the police dated 9 June 1997 from which it appears that an investigation of the case was initiated. The mother made statements to the police on 17 June and 18 December 1997, and there was also an interview of [L.] by a judge without anything of significance for the case coming to light. According to information presented, the case was dropped by the public prosecutor. This decision was appealed to the Director of Public Prosecutions on 22 October 1998 but the public prosecutor's decision was not reversed. The fact that there was insufficient evidence in the criminal case is, however, not decisive in this case, see Rt ([Norsk Retstidende (Supreme Court Reports)]-1989-320. It is further assumed that in a case involving minor children, no risk whatsoever may be taken in such circumstances, also concerning the issue of access rights, see Rt – 1994-940. In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [L.]'s strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred. The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.
Secondly, it is contended that the implementation of access rights vis-à-vis the father is impossible in view of the fact that [L.] is opposed to this. In light of the information available, the High Court assumes that [L.] is opposed to having access to his father, which is to be accorded weight pursuant to section 31 of the Children Act. Nevertheless, the implementation of access may not, in principle, be made dependent on the child not being opposed to being with his father. This question will depend on the concrete circumstances.
...
According to the report, the boy is unable to describe why he has such great anxiety about meeting his father. [Psychologist O.] considers the information he has obtained to be an expression of the boy's actual experiences. The report further states that if contact between the father and the boy is to be established, this must take place gradually over a longer period of time and in such a manner that [the child welfare services] can constantly monitor how this develops. If [L.] 's strong anxiety is maintained, forced contact is at present deemed to constitute a psychological assault on the boy, according to the report. [Psychologist O.] has given testimony before the High Court, which in its essentials concords with the aforementioned report. According to [Psychologist O.], [L.] has stated that he would not visit his father even in the presence of a third party, his mother or someone else.
In his report, the expert states inter alia the following:
'On the whole [L.] has a good level of functioning, though everything having to do with his father is an obviously vulnerable and difficult point for him. My own impression from an interview with [L.] accords well with what [Psychologist O.] has described. [L.] indicates with his entire being both in the interview and afterwards that this is a very uncomfortable and difficult topic.'
The expert evaluated three alternative resolutions for the access issue. The first alternative is an ordinary access arrangement between the father and the boys. The expert concluded that it is both impossible and indefensible to go straight to such an arrangement. He refers to the fact that [L.] 's aversion and emotional reactions to contact with his father are so strong that such an arrangement could not be started without strong physical coercive measures. Furthermore, he refers to the fact that [L.] has made serious threats about what he would do, namely take his own life. The expert also pointed to the strain this would inflict on [L.] and that this may jeopardise his further development. This would, in addition, inflict substantial strains on the mother. As the second alternative the expert considered a limited access arrangement, with supervision, possibly with the aim of increasing it to ordinary access. The expert pointed out that such a process may involve relatively high human (and financial) costs and that it would be a stressful process for [L.] and the rest of the family. Furthermore, it was noted that the outcome may be uncertain, since neither the mother nor [L.] will, at the outset, be very motivated to attaining concrete results in the form of contact with the father. The expert concluded that this is a possibility, but that it would require support by both parties and having sufficient resources in and around the family at their disposal. He also pointed out that the chances of failing abysmally would be present. The third alternative considered is no access at all between the father and the boys. To justify such a solution, the expert referred to the necessity of safeguarding the good progress the boys are making and of sparing them, especially [L.], from further uncertainty and conflicts connected with the issue of access.
The expert did not reach any unambiguous conclusion in his report, except from finding that an ordinary access arrangement appears to be quite impossible to implement. As far as the other alternatives are concerned, he has kept the options more open. In his testimony before the court and after having been present during the appeal hearing, the expert expressed the view that he strongly favours that there should be no access between the father and the boys. In addition to [L.]'s clearly expressed unwillingness to have access to his father, the expert referred to the difficult situation that the family and [L.] in particular have been in over several years. He further referred to the fact that the mother was the sole provider for the children, and that she and the family had reached their 'limit of tolerance'. It is also the understanding of the High Court that the expert deems the costs of a supervised arrangement to be too high and the benefits to be too uncertain for the expert to have been able to recommend access under supervision as an alternative.
The High Court agrees that an ordinary access arrangement would not be an acceptable alternative, but has evaluated in particular whether an arrangement with supervised access would be possible. Like the expert, the High Court has concluded that such an arrangement would be disproportionately demanding and that it presumably may be difficult to find persons with the necessary competence who are willing to subject themselves to such a time consuming process as is in question here. The High Court also agrees with the expert that the strain that such a process will necessarily inflict on the family must also be considered, especially since the mother has sole care of the children. On the basis of its impressions during the hearing, the High Court agrees with the expert that the 'tolerance limit' for whatever additional strains that can be inflicted appears to have been reached. Even if neither the [Psychologist O.] nor the expert appears to have been able to clarify the reasons for [L.] 's strong objections to the decision. In view of this, there would in the view of the High Court be an not unappreciable risk that the boy's development may be directly jeopardised by having to go through such a process that is under discussion here. In addition, considerable flexibility would be required of both parties, which, on the basis of the High Court's impressions from the hearing, is uncertain, on the part of the mother, but especially on the part of the father.
Despite the fact that ..., a refusal to grant access may be justified only in very special circumstances, the High Court has concluded that there should be no access in this case since, on the basis of an overall assessment, this would not be in the best interest of the children. Even though the issue of access is at the outset to be considered separately with regard to each of the boys and even though it is assumed that [A.] does not have the same antagonistic relationship to his father as [L.], the High Court finds no reason to grant access with regard to [A.] as well. As the High Court understands the expert, it would cause unpleasant tensions within the family if only one of the children were to have access and that such an arrangement was not advisable, something with which the High Court agrees. Given the strains that the family has been under over several years, in the High Court's view, it is now important that peace prevails in this matter.
Having reached this conclusion, the High Court does not find it necessary to establish a provisional arrangement in respect of the access issue.”
18. The High Court Judgment contained the following unanimous conclusion regarding the substantive questions:
“[The applicant] is not granted a right of access to [L.], born on *,*, 1994, and [A.], born on *,*, 1996. “
19. The applicant appealed against the High Court's judgment as a whole, asking primarily that it be quashed and in the alternative that he be granted a right of access to his children. He challenged the High Court's procedure, namely its omission to deal with the interim order by the City Court.
He moreover appealed against the High Court's assessment of the evidence, notably its reasoning regarding the allegations on sexual abuse, including the following passage, which in his view was “curious”.
“In view of the information available in the case, where quite detailed descriptions have been provided of the abuse, together with [L.'s] strong objections to seeing his father, the High Court finds that there are many elements that may indicate that abuse has occurred. The High Court has nevertheless not found it necessary for its decision to go further into or take a stance on this.”
The applicant submitted that in the light of the evidence it was hard to understand the High Court's conclusion on sexual abuse, even more so when it was stated in the judgment that it “has not found it necessary for its decision to go further into or take a stance on this”. In the applicant's view, this was obviously an error; should a judge find that there were many elements to indicate that sexual abuse had occurred, it was evident that this conviction would also have an effect on a decision regarding access for the parent found to be a probable abuser. The applicant further disputed the lawfulness of the High Court's rejection of any access rights, which decision could not be reconciled with the rule that the best interests of the child should prevail. In the applicant's view, L's horror picture of his father should be removed by arranging for access. This was a clear case of the so-called Parental Alienation Syndrome, with clear hatred, fear and anxiety, unlike the ambivalence shown by children who have been exposed to actual abuse.
20. On 20 December 2002, the Appeals Selection Committee of the Supreme Court refused the applicant leave to appeal.
21. The applicant has submitted a medical certificate dated 7 June 2003 by Dr R.K., which stated:
“I the undersigned have known [the applicant] since December 2000.
He has had a very tough time psychologically during the period since the judgment. He feels that he has been unjustifiably held liable of sexual abuse against his son and feels powerless in the system. He has been very depressed lately. He is struggling with problems of sleeplessness, bad appetite and loss of weight. He is isolating himself. At times he has had suicidal thoughts. This has adversely affected his family life and members of his family have had a particularly difficult time during the past six months.”
22. The applicant has moreover filed a statement by Dr H.V., Psychiatrist, of 4 September 2006, which concludes:
“It is highly probable that [the applicant] has developed symptoms that are compatible with Post Traumatic Stress Disorder after what he had experienced in Chile. This has been further fortified by a situation combining anxiety and depression in the form of an adaptation disturbance as a result of his fight to get access to his children, especially when the court deprived him of his right of access.
He presents a relatively high level of pressure from suffering but which he nevertheless manages to master satisfactorily. He receives regular treatment by a psychologist and medical treatment.”
23. At the time of the national courts' consideration of the present case, the right of access between a parent and a child was governed by sections 44 and 44A of the Children Act 1981 (Lov om barn og foreldre (barnelova)).
Under section 44 the child had a right of access to both parents, even if they lived apart, and the parents had mutual responsibility for implementing the right of access. Under section 44A the parent with whom the child did not live had a right of access to the child unless otherwise agreed or determined. The provision contained more detailed rules on the extent of access, its implementation and the procedure. It provided that decisions should first and foremost be based on what was best for the child.
24. Provisions governing the contents of judgments in civil proceedings may be found in Chapter 12 of the 1912 Code of Civil Procedure (tvistemålsloven). In so far as relevant Article 144 provides:
“A judgment shall contain:
...
3. A brief presentation of the object of the case and of the parties' submissions; when appropriate, reference may be made to written pleadings filed in the case, or to entries in the court record; if so, the material referred to shall be included in transcripts of the judgment;
4. Reasoning for the decision; they shall decisively and exhaustively indicate the facts of the case on which the court bases its decision
5. An operative part.
....”
VIOLATED_ARTICLES: 8


ITEMID: 001-96489
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: SLAVCHEVA v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mrs Todorka Kostadinova Slavcheva, is a Bulgarian national who was born in 1957 and lives in Haskovo.
The applicant’s father owned a plot of land of 13,000 square metres in the area around Burgas, which was expropriated after 1945.
In 1992, following the adoption of legislation providing for the restoration of titles to certain types of expropriated property, the applicant sought the restitution of the land. In 2002 her claim was only allowed in respect of 3,200 square metres of the plot as the authorities found that in respect of the remaining 9,800 square metres the applicant’s father had soon after the expropriation been compensated with other land.
On an unspecified date in 2006 the applicant brought a rei vindicatio action against the Burgas municipality, claiming that the latter was unlawfully in possession of the 9,800 square metres of land in respect of which restitution had been refused. The applicant alleged that her rights to the property at issue had been restored ex lege by virtue of the denationalisation legislation.
In a judgment of 3 January 2008 the Burgas District Court dismissed the claim, finding that the applicant’s rights had not been restored ex lege as her father had, at the relevant time, received compensation for the lands at issue. On 26 June 2008 the Burgas Regional Court upheld that judgment.
On 31 July 2008 the applicant appealed in cassation. As she had failed to justify her appeal in view of the requirements of Article 280 § 1 of the Code of Civil Procedure 2007 (see Relevant domestic law below), she was instructed to do so by a judge of the Burgas Regional Court.
Within the time-limit given, the applicant submitted a written statement concerning the grounds for cassation under Article 281 of the Code of Civil Procedure, and not the admissibility criteria under Article 280 § 1. Finding that she had failed to comply with the aforementioned instructions, on 17 September 2008 the Burgas Regional Court discontinued the proceedings. On an appeal by the applicant, on 24 November 2008 that decision was upheld by the Supreme Court of Cassation, which confirmed the lower court’s conclusion that she had failed to comply with the relevant procedural requirements.
The Code of Civil Procedure, adopted in July 2007 and in force since 1 March 2008, introduced new requirements for the admissibility of cassation appeals.
Pursuant to Article 280 § 1 of the Code, as worded initially, the Supreme Court of Cassation was competent to examine cases where the court of appeal has ruled upon “a material question of law or procedure”, and where, in addition, one of the following three situations has occurred: (a) the question has been decided not in conformity with the practice of the Supreme Court of Cassation; (b) there have been conflicting decisions of the national courts; and (c) the question is of importance for the accurate application of the relevant law or for the development of the law.
In a decision of 16 June 2009 the Bulgarian Constitutional Court found that these new requirements for the admissibility of cassation appeals did not, in principle, run contrary to the right to access to a court, as guaranteed in Article 122 § 1 of the Constitution. Their exact content and meaning would be clarified in judicial practice. However, the Constitutional Court found that the requirement of Article 280 § 1 of the Code that the court of appeal must have ruled on “a material question of law or procedure” (see above) unnecessarily restricted the access to cassation and, accordingly, struck down as being anti-constitutional the word “material” (see Decision of the Constitutional Court no. 4 of 16 June 2009, constitutional case no. 4/2009).
The Code of Civil Procedure 2007 further provides that it is incumbent on the party seeking cassation to justify, in view of the requirements of Article 280 § 1, that the cassation appeal merits examination. Failure to put forward arguments in that regard will result in the discontinuation of the proceedings (Articles 284 § 3 and 286 of the Code).
Under the new Code, the grounds for seeking cassation remained the same as those under the Code of Civil Procedure 1952, namely material breaches of law and procedure, nullity and ill-founded conclusions (Article 281 of the new Code).


ITEMID: 001-88497
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CHODYNICKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Ryszard Chodynicki, is a Polish national who was born in 1947 and lives in Włocławek. He was represented before the Court by Mr W. Tomczyk, a lawyer practising in Warsaw.
On 13 August 2001 the applicant, who had been a candidate for Parliament, submitted a lustration declaration as required by the Law of 11 April 1997 on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 19441990 osób pełniących funkcje publiczne – “the 1997 Lustration Act”). In the declaration he admitted that he had served (pełnił służbę) in the State’s security services. In the explanatory “B” section of the declaration he stated that he had been a company commander in the Military Internal Service (Wojskowa Służba Wewnętrzna – “the WSW”).
Afterwards, the National Electoral Commission (Państwowa Komisja Wyborcza) published information that the applicant had served in the State’s security services within the meaning of the 1997 Lustration Act. The applicant was elected as a member of Parliament.
On 27 June 2002 the Warsaw Court of Appeal (Sąd Apelacyjny) decided to institute proceedings in the applicant’s case on the ground that he had lied in his lustration declaration by stating that he had served in the WSW, whereas in reality he had secretly cooperated with this service.
On 16 December 2003 the Warsaw Court of Appeal, acting as the firstinstance lustration court, found that the applicant had been an intentional and secret collaborator with the WSW and had therefore lied in his lustration declaration. The court established that in 1974, while serving in the army as a professional soldier, the applicant had been recruited as a secret collaborator with the military counter-intelligence service of the WSW. The applicant had thus lied in his declaration. He must have known that he had served as a commander of a platoon of the Warsaw Pontoon Regiment in Włocławek (Warszawski Pułk Pontonowy) and not the WSW.
The applicant lodged an appeal against the decision. He argued that he had admitted to having had ties with the security service – the WSW – but had mistakenly characterised the nature of his contacts as “service”. The applicant pointed to the lengthy period of time that had elapsed since the events in question and to the lack of clarity of the declaration, which he had had difficulties in filling out.
On 17 March 2004 the Warsaw Court of Appeal, acting as the secondinstance lustration court, dismissed the applicant’s appeal. The court reiterated that the purpose of the lustration declaration was to reflect the truth. The content of the declaration should be exhaustive and its form should comply with legal requirements. The court agreed with the firstinstance court that the applicant had denied having been an intentional and secret collaborator with the WSW, which had been the State’s security service within the meaning of the law. Lastly, the court dismissed the applicant’s assertion that he had committed a mistake while filling out the declaration. The court found that there had been no mistake as to the facts because the applicant had obviously known that his place of service was the Warsaw Pontoon Regiment and not the WSW. Nor could he claim that there had been a mistake as to the law, as it had been his duty to acquaint himself with the 1997 Lustration Act and the explanatory note on the declaration.
The applicant lodged a cassation appeal (kasacja) with the Supreme Court (Sąd Najwyższy).
On 4 October 2004 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. The Supreme Court followed the lower courts’ findings that the applicant had undoubtedly been an intentional and secret collaborator with the secret service, the WSW. This collaboration had nothing in common with the official contacts the applicant had had with the WSW while serving in the army, but had been a secret collaboration initiated by his signing a collaboration declaration. The Supreme Court reiterated that the purpose of the Lustration Act had also been to disclose the past of politicians, who in a democratic State should be transparent and whose past should be known. Finally, the court dismissed the applicant’s allegations that the form of the declaration had been confusing or open to contradictory interpretations. As a consequence of this judgment of the Supreme Court, on 4 October 2004 the applicant lost his seat in Parliament.
The applicant’s lawyer submitted that he had been notified of that decision on 22 October 2004.
The relevant domestic law and practice concerning lustration proceedings in Poland are set out in the Court’s judgment in the case of Matyjek v. Poland (no. 38184/03, §§ 27-38, ECHR 2007...).


ITEMID: 001-100928
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KUGLER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: 6. The applicant lives in Imst, Austria.
7. The applicant is the co-owner of a plot of land in Lech, Austria which had been designated as building land (Bauland); one building had already been constructed on the land. On 22 July 1987 the Lech municipal authorities informed the applicant that they intended to modify the area zoning plan (Flächenwidmungsplan) and to designate the remaining part of the land as open land (Freihaltefläche) because, being located on a steep slope, they considered that the remaining part was not suitable for construction under the Vorarlberg Regional Planning Act (Raumplanungsgesetz).
8. On 6 August 1987 the applicant lodged an application for a building permit in order to construct a hotel on the plot of land at issue.
9. On 14 June 1988 the Lech municipal authorities issued a building prohibition in respect of the applicant's plot of land.
10. The Bludenz District Administrative Authority (“the District Administrative Authority”) (Bezirkshauptmannschaft) held a hearing on 23 September 1988 concerning the applicant's application for a building permit.
On 4 July 1991 the Lech municipal authorities extended the building prohibition.
11. On 31 July 1991 the applicant lodged an application for a transfer of jurisdiction (Devolutionsantrag) because the District Administrative Authority had not reached a decision within the statutory six-month time-limit.
12. The Vorarlberg Regional Government (“the Regional Government”) allowed that application on 10 October 1991 but dismissed the applicant's application for a building permit on the ground that the permit would contravene the building prohibition. The applicant lodged a complaint with the Constitutional Court.
13. On 19 March 1992 Lech Municipal Council (“the Municipal Council”) issued a decree determining the maximum building density (Baunutzungszahl) for the category of land which included the applicant's land, and on 2 July 1992 it lifted the building prohibition. The applicant thereupon asked the Regional Government to reopen the building permit proceedings.
14. On 28 September 1992 the Constitutional Court dismissed the applicant's complaint against the decision of 10 October 1991. It found that the building prohibition was lawful.
15. On 29 September 1992 the Regional Government dismissed the request to reopen the building permit proceedings. The applicant lodged a complaint with the Administrative Court.
16. On 28 January 1993 the Administrative Court dismissed the applicant's complaint. It found that the conditions for reopening the building permit proceedings had not been met. That decision was served on 24 February 1993.
17. The applicant requested a partition of land (Grundstücksteilung) on 26 September 1995, but withdrew this request on 30 April 1996.
18. On 11 November 1996 the applicant lodged a fresh application for a building permit to enable him to carry out construction work on his land.
19. On 26 February 1997 the District Administrative Authority informed the applicant of the Lech municipal authorities' submissions to the effect that the maximum building density laid down by the decree of 19 March 1992 did not allow the construction of another building on his plot of land. The applicant commented on this information. After the Lech municipal authorities had submitted further comments on 6 October 1997, the applicant asked the District Administrative Authority to decide on his application.
20. On 25 June 1997 the Municipal Council adopted a building plan (Bebauungsplan) which amended the decree of 19 March 1992 but left the maximum building density unchanged. On 1 July 1997 the Regional Government approved the building plan.
21. On 28 October 1997 the District Administrative Authority dismissed the applicant's application for a building permit. It found that the maximum building density defined in the building plan did not allow the construction of another building on the applicant's plot of land. On 12 November 1997 the applicant lodged an appeal.
22. The Regional Government dismissed the appeal on 2 June 1998 and upheld the District Administrative Authority's finding.
23. On 16 July 1998 the applicant lodged a complaint with the Constitutional Court and requested an oral hearing. He submitted that the area zoning plan and the building plan were unlawful, and claimed that the Regional Government had refused to allow him to consult the case file in the building plan proceedings.
24. On 7 September 1998 the Lech municipal authorities submitted their observations; on 15 September 1998 the Regional Government did likewise.
25. On 6 October 1998 the applicant's counsel consulted the case file at the Constitutional Court, which, on the following day, forwarded all the case file documents to him.
26. On 8 June 2001 the applicant's counsel asked the Constitutional Court if he could consult further documents concerning the original area zoning plan.
27. On 12 June 2001 the Constitutional Court declined to deal with the complaint because it lacked any prospect of success. It found that, considering the hillside location of the plot of land, its allegedly unlawful designation appeared to be reasonable.
28. Subsequently, the case was transferred to the Administrative Court and on 11 October 2001 the applicant amended his complaint and requested an oral hearing. He submitted that the refusal to issue the building permit had been based on an unlawful area zoning plan and building plan. He requested that a hearing be held and an on-site inspection carried out, and that he be given the opportunity to consult all the documents concerning his plot of land.
29. On 20 March 2003 the Administrative Court dismissed the complaint. It found that the refusal to issue the building permit had been lawful, because the maximum building density for the plot of land at issue had already been exceeded by the construction of the existing buildings. Furthermore, it found that it was not necessary to hold a hearing or to carry out an on-site inspection, because the applicant had merely contested the lawfulness of the area zoning plan and the building plan, which had already been reviewed by the Constitutional Court. That decision was served on 30 April 2003.
30. On 19 January 2005 the applicant applied for a building permit for a private house on the same plot of land.
31. Following a hearing held on 5 August 2005, on 2 September 2005 the Lech municipal authorities granted the application; the decision was served on the applicant's counsel on 5 December 2005.
32. In Austrian law area zoning plans and any amendments thereto are regarded as decrees (Verordnungen), even if they only concern one individual's property. Accordingly, the proceedings in which they are issued are not normal administrative proceedings and the persons affected are not parties to them. The lawfulness of decrees can be challenged before the Constitutional Court under Article 139 of the Federal-Constitution Act. However, case-law has established that area zoning plans cannot be directly challenged in proceedings under Article 139 by the individuals affected if it is possible to institute administrative proceedings.
33. This is the case, in particular, where the area zoning plan is the basis for the granting or withholding of building permits. The persons affected are expected to assert their rights in administrative proceedings concerning the building permit, in which they can allege that the underlying area zoning plan has no legal basis or is contrary to the applicable legislation.
34. The review of the lawfulness of general legal acts such as decrees issued by administrative authorities as to their lawfulness and of laws (Gesetze) as to their constitutionality is concentrated with the Constitutional Court. Only that Court is therefore to carry out this review. Article 139 of the Federal-Constitution Act, insofar as relevant, provides as follows:
“(1) The Constitutional Court decides on application by an ordinary court or an independent administrative tribunal whether decrees issued by a federal or regional authority ... are contrary to law, but ex officio in so far as the Constitutional Court would have to apply such a decree in a case pending before it. It also decides on application by the Federal Government whether decrees issued by a regional authority are contrary to law and likewise on application by the municipality concerned whether ordinances issued by a municipal affairs supervisory authority ... are contrary to law. It decides furthermore whether decrees are contrary to law when an application alleges direct infringement of personal rights through such unlawfulness in so far as the decree has become operative for the applicant without the delivery of a judicial decision or the issue of a ruling ...
(2) If the applicant of a complaint lodged with the Constitutional Court, entailing application of a decree by the Constitutional Court, receives satisfaction, the proceedings for the review of a decree shall nevertheless continue.
(3) The Constitutional Court may repeal a decree as contrary to law only to the extent that its repeal was expressly requested or the Constitutional Court would have had to apply it in the pending case. If the Constitutional Court reaches the conclusion that the whole decree
a) has no legal basis,
b) was issued by an authority without competence in the matter, or
c) was published in a manner contrary to law,
it shall repeal the whole decree as unlawful. This does not hold good if repeal of the whole decree manifestly runs contrary to the legitimate interests of the applicant who has filed a complaint pursuant to the last sentence in para 1 above or whose case has been the occasion for the initiation of ex officio review proceedings into the decree.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76777
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: PRIYA v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Ms Yash Priya, is an Indian national who was born in 1971. Currently she lives illegally in Denmark. She is represented by Mr Eli Heckscher, a lawyer practising in Stenløse. The Danish Government (“the Government”) are represented by their Agent, Mr Peter TaksøeJensen, of the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In September 1998 the applicant applied for a visa for Denmark at the Danish Embassy in New Delhi. She maintained that the purpose of her stay was business. A visa valid for ninety days was granted her. She entered Denmark on 22 January 1999, at the age of twenty-seven.
Less than two months later, on 20 March 1999, in Denmark she married an Indian national, henceforth called PK. The latter was born in 1965 and had entered Denmark illegally on 22 October 1993, when he was 28 years old. Having married a Danish national on 25 February 1994 he was granted a temporary residence permit, which became permanent on 18 July 1997. PK divorced his Danish wife on 18 December 1997.
On 29 June 1999 the applicant and PK contacted the Aliens Authorities (Udlændingestyrelsen), which advised them that at the relevant time they did not fulfil the requirements set out in section 9, subsection (ii) d of the Aliens Act (Udlændingeloven, No. 539 of 26 June 1999) for obtaining a family reunification, as according to that provision an alien residing in Denmark, who was neither a Nordic national nor a refugee had to have held a permanent residence permit in Denmark for more than the last three years. The applicant left Denmark on 22 July 1999.
Approximately seven months after her marriage with PK, on 29 October 1999, in India the applicant gave birth to GK.
On 14 July 2000, on a visa valid for thirty days, the applicant reentered Denmark together with GK and applied for a residence permit.
By decision of 20 February 2001, pursuant to section 9, subsection 1 (ii) d of the Aliens Act (No. 711 of 1 August 2001), taken together with section 9, subsection 10 of the Act, the Aliens Authorities refused to grant the applicant a residence permit because it could not be established that the spouses’ aggregate ties with Denmark were at least as strong as the spouses’ ties with another country. The applicant was ordered to leave the country within 30 days from the day on which she was notified of the decision.
GK on the other hand was granted a temporary residence permit until 29 October 2017 (when the child turns 18 years old and comes of age).
On 4 April 2001, in Denmark, the applicant gave birth to the couple’s second child, SHK, who was granted a temporary residence permit until 4 April 2019.
On 13 November 2002, at the Aliens Authorities’ request, the police confirmed that the applicant was still living with her husband and thus remained illegally in Denmark.
The applicant’s request of 21 November 2001 that the Aliens Authorities re-open her case was refused on 30 January 2002, and the applicant was ordered to leave the country immediately.
By letter of 20 April 2002 to the Aliens Authorities, the applicant requested anew that she be granted a residence permit. In support thereof she maintained that PK would not allow her to take any of the children with her back to India; that in her view PK was not capable of taking proper care of the youngest child; and that she had initiated proceedings against PK in order to revoke their shared custody of SHK (in order to bring this child with her to India). Also, she applied for a residence permit by invoking humanitarian grounds as set out in section 9, subsection 2 (ii) of the Aliens Act (No. 711 of 1 August 2001).
The applicant’s letter was forwarded to the Ministry of Refugee, Immigration and Integration Affairs (Ministeriet for flygtninge, Indvandrere og Integration), which on 2 July 2002 refused the applicant’s request since a residence permit pursuant to section 9, subsection 2 (ii) of the Aliens Act could only be granted if the residence permit seeker was also an asylum seeker.
The police contacted the applicant at the spouses address on 30 October 2002 and summoned her to come for an interview at the police station on 5 November 2002. On the latter date, the applicant and PK informed the police that they agreed to the applicant leaving voluntarily with their two children. It was planned that she left for India on 16 November 2002.
On 15 November 2002, however, the applicant appealed against the Aliens authorities’ decisions of 20 February 2001 and 30 January 2002 to the Ministry of Refugee, Immigration and Integration Affairs.
On 18 November 2002 the applicant and PK were legally separated. On the same day they signed an agreement before the Copenhagen County (Statsamtet København) maintaining shared custody of the children who due to an agreement between the separated spouses were to live with PK. According to the agreement, the applicant was entitled to access to her children every second week from Wednesday to Monday, and two hours on all other days. Three days later, the applicant’s counsel wrote to the Ministry that the applicant withdrew her consent to leave voluntarily. Moreover, a request was submitted that the Aliens Authorities reopen the proceedings, which led them to refuse family reunification on 20 February 2001.
The request was refused by the Alien Authorities’ decision of 27 November 2002, which the applicant appealed against on 1 December 2002.
On 7 March 2003, the Ministry of Refugee, Immigration and Integration Affairs upheld the Alien Authorities’ decisions of 27 November 2002, 20 February 2001 and 30 January 2002. In reaching its decision the Ministry maintained that it could not be established that the spouses’ aggregate ties with Denmark were stronger than the spouses’ ties with another country as required by section 9, subsection 10, cf. section 9, subsection 1 (ii) b - d and sections 9, subsection 2 (vii). In this respect, it noted inter alia that both spouses were born and raised in India; that PK only entered Denmark at the age of 28; that the parents of both spouses lived in India; and that the spouses communicated in Punjabi and Hindi.
Furthermore, the Ministry found that no exceptional personal circumstances existed which would make the issuing of a residence permit appropriate. Finally, noting that the applicant had resided illegally in Denmark since 22 March 2001, the Ministry did not find that particular reasons made it appropriate to exempt the applicant from complying with the rule of procedure set out in section 9 c, subsection 3 in the Aliens Act, according to which an application for a residence permit under section 9 c, subsection 1 of the Aliens Act has to be submitted or examined before entry into the country.
Finally, the Ministry dismissed the applicant’s claim that a refusal to grant her a residence permit would be in violation of Articles 8 and 12 of the Convention. It noted that the fact that the spouses had been legally separated and made an agreement regarding the applicant’s access to the children could not alter the outcome, since according to the applicant’s counsel the reason for the legal separation had merely been an attempt to improve the applicant’s chances to stay in Denmark.
In the meantime, in a letter of 14 December 2002, in which the applicant stated her address to be that of her husband, in vain she requested help from the Queen of Denmark.
On 24 March 2003, on request, the applicant’s counsel informed the police that he was unaware of the applicant’s address; that he only spoke to her on the telephone; and that she wished to obtain a divorce from PK since allegedly such would be the only possible way of staying in Denmark.
The applicant did not bring her case before the ordinary courts.
According to the Aliens Authorities, the applicant is still married to PK and she continues to live illegally in Denmark.
The Aliens Act (No. 711 of 1 August 2001) applicable at the relevant time.
Upon application, a residence permit could be issued inter alia to an alien over the age of 25 who cohabited at a shared residence, either in a marriage or in a regular cohabitation of prolonged duration, with a person permanently resident in Denmark over the age of 25 who had held a permanent residence permit for Denmark for more than the last three years (section 9, subsection 1 (ii) d). However, if the person permanently residing in Denmark did not possess Danish citizenship, it was a condition for issuing a residence permit to the alien (spouse or cohabitant) that the spouses’ or the cohabitants’ aggregate ties with Denmark correspond at least to the spouses’ or cohabitants’ ties with another country, or that exceptional personal circumstances otherwise made it appropriate (section 9, subsection 10, taken together with section 9, subsection 1 (ii) b - d and section 9, subsection 2 (vii)).
Furthermore, a residence permit could be issued inter alia to an alien upon application, if exceptional reasons made it appropriate (section 9 c, subsection 1). Such a residence permit had to be obtained before entry into Denmark. After entry, such an application could not be submitted or examined or be allowed to suspend enforcement in Denmark, unless particular reasons made it appropriate (section 9 c, subsection 3). In certain specified cases an alien who has been notified of a final administrative decision (made under section 46) may request within 14 days after the decision is made known to him that the Aliens Authorities bring the case before the competent courts for a review (Section 52). The later provision is, however, a supplement to the general rule in section 63 of the Constitution (see below).
The Danish Constitution of 5 June 1953 (Grundloven).
Section 63 of the Constitution read as follows:
“1. The courts of justice shall be empowered to decide any question relating to the scope of the executives’ authority; though any person wishing to question such authority shall not, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive authority.”
Review by the courts of the Administration’s general and specific decisions pursuant to section 63 of the Constitution is a common legal remedy. Consequently, in cases where an alien claims that a refusal to grant a residence permit or a deportation order would be in violation of the Convention, the courts examine intensively whether the Administration’s decision is in accordance with Denmark’s obligations under the Convention, including Article 8. The Government have submitted various recent judgments (including one printed in the Weekly Law Review (Ugeskrift for Retsvæsen) 2004 p. 1765), in which pursuant to section 63 of the Constitution the domestic courts thoroughly examined an alien’s allegation that the Administration’s refusal to grant a residence permit was in breach of Article 8 of the Convention. The courts cannot grant an alien a residence permit but they can annul the decision of the Administration and thus send the case back to the Administration for a renewed examination, for instance if the courts find that the refusal to grant a residence permit constitutes a violation of the aliens’ right to respect for family life according to Article 8 of the Convention.
An application pursuant to section 63 of the Constitution has no automatic suspensive effect. However, the Government have submitted two Supreme Court decisions printed in the Weekly Law Review 1997 p. 756 and p. 1237, in which an alien, having been refused a residence permit by the Administration, brought the case before the courts and requested that it be granted suspensive effect. In both cases the Supreme Court ruled that even in the absence of a specific legal authority, an application pursuant to section 63 of the Constitution may be granted suspensive effect if very particular circumstances (ganske særlige omstændigheder) exist.


ITEMID: 001-112446
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF FÁBER v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) read in the light of Article 11 - (Art. 11) Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1969 and lives in Budapest.
6. On 9 May 2007 the Hungarian Socialist Party (MSZP) held a demonstration in Budapest to protest against racism and hatred (hereinafter: MSZP demonstration). Simultaneously, members of Jobbik, a legally registered right-wing political party assembled in an adjacent area to express their disagreement.
The applicant, silently holding a so-called Árpád-striped flag in the company of some other people, was observed by police as he stood nearby, at the steps leading to the Danube embankment (the location where in 1944/45, during the Arrow Cross regime, Jews were exterminated in large numbers). His position was close to the MSZP event and a few metres away from the lawn of the square where the Jobbik demonstration was being held.
According to the testimonies which the police officers subsequently gave in court, they had been instructed not to tolerate the Árpád-striped flag if it was displayed closer than 100 metres to the MSZP demonstration. The applicant and other witnesses later stated in court that the holders of the Árpád-striped flag were called “fascists” and “arrow-crossers” by the bystanders. The police supervising the scene called on the applicant either to remove the banner or leave. The applicant refused to do so, pointing out that this flag was a historical symbol and that no law forbade its display. Subsequently he was committed to the Budapest Gyorskocsi Police Holding Facility, where he was held in custody and under interrogation for six hours. After he had been released, the Budapest 5th District Police Department fined him 50,000 Hungarian forints (approximately 200 euros) for the regulatory offence of disobeying police instructions. The applicant’s complaint to the Pest Central District Court was to no avail.
7. On appeal, the court held hearings on 7 December 2007 and 21 February 2008 and upheld the applicant’s conviction. The court was satisfied that his conduct had been of a provocative nature, likely to result in unruliness in the context of the ongoing Socialist demonstration, and that his right to free expression could not be considered as reaching so far as to cause prejudice to public order. Despite the opinion of a heraldic expert, submitted by the applicant and stating that the flag in question was a historical one, the court considered its display offensive in the circumstances, because it had been placed higher than the national flag representing the Republic of Hungary. Therefore, the applicant’s behaviour was considered to have been provocative.
8. Act no. XX of 1949 on the Constitution (as in force at the material time) provides:
“(1) In the Republic of Hungary everyone has the right to freedom of expression and speech, and to access and distribute information of public interest.”
“(1) The Republic of Hungary recognises the right to peaceful assembly and ensures the free exercise thereof.”
9. Act no. III of 1989 on the Right to Freedom of Assembly (“the Assembly Act”) provides:
“The right of assembly is a fundamental freedom guaranteed for everyone. The Republic of Hungary recognises this right and ensures its undisturbed exercise.”
“(1) In the framework of the exercise of the right of assembly, peaceful gatherings, marches and demonstrations (henceforth jointly: assemblies) may be held where the participants may freely express their opinion. ...”
“(1) The order of the assembly shall be secured by the organiser.
(2) The police and other competent bodies shall, upon the organiser’s request, contribute to the maintenance of the order of the assembly and arrange for the removal of persons disturbing the assembly.”
“(1) Where the exercise of the right of assembly violates section 2(3) or the participants appear bearing arms or carrying weapons or in an armed manner, or hold an assembly subject to prior notification despite a prohibiting decision, the assembly shall be dispersed by the police.
(2) The dispersal of the assembly shall be preceded by a warning.”
10. Act no. LXIX of 1999 on Administrative Offences provides:
“(1) Anyone who
a) fights or invites another person to fight,
b) in case of disturbance or disorderly conduct manifests disobedience to a measure imposed by the acting official person,
shall be punishable with imprisonment or a fine up to HUF 150,000.
(2) Anyone who appears at a public assembly
a) possessing firearms or ammunition or any tool suitable for killing or causing bodily injury,
b) disobeying the organiser’s or the police’s security-related instructions
shall be punishable with a fine up to HUF 50,000.
(3) The perpetrator of the administrative offence specified in subsections (1)-(2) may also be subjected to a ban.
(4) Proceedings for the administrative offence specified in subsection (1) fall within the competence of the court, whereas proceedings for the administrative offence specified in subsection (2) fall within the competence of the police.
(5) For the purposes of this Act, public assembly means: an assembly falling within the ambit of the Act on the Right to Freedom of Assembly and accessible for anyone under identical conditions.”
11. Section 143 of Act no. CV of 2004 on Defence and the Hungarian Defence Force (as in force at the material time) lists the Árpád-striped flag as one of the historical Hungarian banners.
12. Government Decree no. 218/1999. (ХП.28.) on Certain Administrative Offences provides as follows:
“(1) A fine of up to HUF 50,000 may be imposed on a person who disobeys the lawful measures of a professional member of a law enforcement body.”
13. Decision no. 75/2008. (V.29.) AB of the Constitutional Court contains the following passages:
“1. The Constitutional Court establishes that the right of assembly recognised in Article 62(1) of the Constitution also covers the holding of events organised in advance including peaceful events where the assembly can only be held shortly after the causing event. In addition, the right of assembly covers assemblies held without prior organisation.
2. The Constitutional Court holds that it is a constitutional requirement following from Article 62(1) of the Constitution that in the application of section 6 of Act no. III of !989, the obligation of notification pertains to organised events to be held on public ground. It is unconstitutional to prohibit merely on the basis of late notification the holding of such peaceful assemblies that cannot be notified three days prior to the date of the planned assembly, because of the nature of the causing event.”
14. Decision no. 55/2001. (XI. 29.) AB of the Constitutional Court contains the following passages:
“... In so far as the necessity of restricting the right of assembly is concerned, an independent examination should be made on the restriction realised in the form of the obligation to give notification in advance of assemblies planned to be held on public places of any kind, and on the restriction realised in the form of the right of the authorities to prohibit in certain cases the holding of the assembly.
In the opinion of the Constitutional Court, the necessity of applying the obligation of notification to assemblies to be held on public grounds is justified by the fact that, in line with the detailed definition in section 15(a) of Act no. III of 1989, public ground is an area, road, street or square with unlimited access for everyone. Here, unlimited access for everyone means that both the participants in the assembly and everyone else who does not participate therein should have equal access to the public ground. The possibility to use the public ground is a precondition not only for the enforcement of the freedom of assembly but for that of another fundamental right as well: the right of free movement guaranteed in Article 58 of the Constitution.”
15. The Report of the European Commission against Racism and Intolerance on Hungary (fourth monitoring cycle), adopted on 20 June 2008, contains the following passages:
“61. Since [the Report of the third monitoring cycle], and apparently building on, at least in part, a series of highly charged anti-government demonstrations at the end of 2006, there has been a disturbing increase in racism and intolerance in public discourse in Hungary. In particular, the creation and rise of the radical right-wing Hungarian Guard (Magyar Gárda) – a group bearing close ties to a well known radical right-wing political party – is consistently cited as a cause for deep concern. Since its creation in August 2007 and the public swearing in of several hundred new members in October 2007, the Hungarian Guard has organised numerous public rallies throughout the country, including in villages with large Roma populations; despite apparently innocuous articles of association, amongst the group’s chief messages is the defence of ethnic Hungarians against so-called “Gypsy crime”. Members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with insignia and flags closely resembling the flag of the Arrow Cross Party, an openly Nazi organisation that briefly held power in Hungary during World War II, and during whose spell in power tens of thousands of Jews and Roma were killed or deported.
62. In January 2008, the Prosecutor General initiated court proceedings to ban the Hungarian Guard.”
16. In Kivenmaa v. Finland (Communication No. 412/1990, U.N. Doc. CCPR/C/50/D/412/1990 (1994)), the United Nations Human Rights Committee held as follows:
“9.2 The Committee finds that a requirement to notify the police of an intended demonstration in a public place six hours before its commencement may be compatible with the permitted limitations laid down in article 21 of the Covenant. In the circumstances of this specific case, it is evident from the information provided by the parties that the gathering of several individuals at the site of the welcoming ceremonies for a foreign head of State on an official visit, publicly announced in advance by the State party authorities, cannot be regarded as a demonstration. Insofar as the State party contends that displaying a banner turns their presence into a demonstration, the Committee notes that any restrictions upon the right to assemble must fall within the limitation provisions of article 21. A requirement to pre-notify a demonstration would normally be for reasons of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Consequently, the application of Finnish legislation on demonstrations to such a gathering cannot be considered as an application of a restriction permitted by article 21 of the Covenant.
9.3 The right for an individual to express his political opinions, including obviously his opinions on the question of human rights, forms part of the freedom of expression guaranteed by article 19 of the Covenant. In this particular case, the author of the communication exercised this right by raising a banner. It is true that article 19 authorizes the restriction by the law of freedom of expression in certain circumstances. However, in this specific case, the State party has not referred to a law allowing this freedom to be restricted or established how the restriction applied to Ms. Kivenmaa was necessary to safeguard the rights and national imperatives set forth in article 19, paragraph 2(a) and (b) of the Covenant.”
17. In its decision no. BVerfG, 1 BvR 961/05 of 6 May 2005, the Federal Constitutional Court of Germany held that, in the light of the specific circumstances arising from the location and time of the demonstration, it was constitutionally acceptable to restrict the route of a planned extreme right-wing rally, despite its prior announcement, in order to defend the dignity of the Jewish victims of Nazi violence and tyranny. The Constitutional Court, appreciating the historical origins of the Federal Republic of Germany, upheld, in derogation from the principle of priority, the restriction of the earlier announced demonstration in favour of a commemorating assembly on the concerned location with special regard to the anniversary of the surrender in World War II.
18. The current position of the Supreme Court of the United States is summarised in Virginia v. Black, 538 U.S. 343 (2003), in the context of cross burning (a traditional threatening activity of the Klu Klux Klan). According to this judgment, the burning of a cross is a “symbol of hate”, regardless of whether the message is a political one or also meant to intimidate. And while cross-burning sometimes carries no intimidating message, at other times the intimidating message is the only message conveyed. The protections afforded by the First Amendment are not absolute, and the government may regulate certain categories of expression, including the ban of a “true threat”. Intimidation, in the constitutionally proscribable sense of the word, is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. The fact that cross-burning is a symbolic expression does not resolve the constitutional question. Sometimes the cross-burning is a statement of ideology, a symbol of group solidarity. The Supreme Court required effort to distinguish among these different types of cross-burnings and considered the contextual factors that were necessary to decide whether a particular cross-burning was intended to intimidate. The Supreme Court went on to state:
“It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther has stated, «The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot’s hateful ideas with all my power, yet at the same time challenging any community’s attempt to suppress hateful ideas by force of law» (Virginia v. Black, 538 U.S. 343, 366-7 (2003)).
The impact of (undeniably outrageous) speech on a funeral procession was considered in Snyder v. Phelps (131 S.Ct. 1207 (2011). Members of a church picketed within 200 to 300 feet from a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment.
The Supreme Court held:
“In public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment ... funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But [it] addressed matters of public import on public property, in a peaceful manner... The speech ... did not itself disrupt that funeral ... Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate” (Snyder v. Phelps, 131 S.Ct. 1207, 1219 (2011)).
In Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court upheld a municipal ban on residential picketing that had been adopted in response to the picketing by anti-abortion protestors of the home of a physician who performed abortions. Here the offensive and disturbing picketing focused on a “captive” home audience.
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1