ITEMID: 001-71667
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KAPITAL INWESTYCYJNY SP. Z O. O v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Kapitał Inwestycyjny Sp. Z O. O, is a limited liability company incorporated in Poland, with its registered seat in Warsaw. It is represented before the Court by Mr Zenon Wieczorek, its director. The respondent Government were represented by Mr Jakub Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 April 1994 the applicant company instituted civil proceedings against a co-operative “P”. It claimed damages resulting from contractual obligations between the parties. On 27 April 1994 the Warsaw District Court issued a payment order against the co-operative “P”.
On 22 June 1994 and 17 August 1994 the bailiff seized the co-operative’s bank account. On 23 June 1994 the defendant co-operative filed a defence against the payment order (zarzuty przeciwko nakazowi zapłaty). It requested that the applicant’s claims be dismissed on account, inter alia, of the invalidity of the contract. On 24 August 1994 the co-operative filed pleadings entitled “complaint regarding the bailiff’s acts”. In the pleadings it requested that the enforcement proceedings be stayed, that the security order be altered and its bank accounts freed. On 17 October 1994 the court also dismissed the complaint regarding the bailiff’s acts as such.
On 10 September 1994 the court dismissed the defendant’s motions of 23 June 1994 and 16 August 1994. The court ruled that since no enforcement proceedings were pending the motion was purposeless and it had to be dismissed. On 21 October 1994 the applicant appealed against that decision.
A further complaint by the defendant co-operative, lodged on 19 October 1994, about the bailiff’s acts concerning the scope of the security order and, in particular in respect of the seizure of bank accounts, was dismissed on 5 November 1994 and the defendant’s subsequent appeal was dismissed on 19 January 1995.
On 30 November 1994 the Warsaw Regional Court allowed the defendant’s appeal of 21 October 1994 and stayed the enforcement of the payment order.
On 30 November 1995 and 12 January 1996 hearings were held before the Warsaw Regional Court.
On 16 April 1996 that court decided to stay the proceedings for payment as requested by the co-operative P. on the grounds that the proceedings to declare the contract null and void were pending. On 30 April 1996 the applicant company appealed but to no avail. Its appeal was dismissed by the Warsaw Court of Appeal on 12 July 1996.
On 13 May 2004 the Warsaw Regional Court dismissed the applicant’s claim for payment and quashed the payment order of 27 April 1994.
On 14 November 1995 the defendant co-operative instituted a parallel action against the applicant company challenging the validity of the contract on which its claims were based. It also requested that the original proceedings be stayed until the issue of the validity of that contract had been adjudicated.
On 7 February 1996 the applicant company filed its pleadings in the new case. It argued that the claim should be rejected as inadmissible since the issue of the validity of the contract would in any event be considered in the proceedings for payment which had been instituted earlier.
On 29 June 1999 the first-instance judgment was delivered. The court found the contract between the parties to be null and void. On 14 September 1999 the applicant company filed an appeal. On 4 April 2000 a hearing was held before the Warsaw Court of Appeal and the appellate court dismissed the appeal.
On 5 July 2000 the applicant company filed a cassation appeal. On 5 February 2002 the Supreme Court rejected the cassation appeal, finding that no issue of legal importance justified its examination on the merits.
Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort.
In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.”
Article 418 of the Civil Code, as applicable until 18 December 2001 (see “Constitutional Court”s judgment of 4 December 2001 below) provided for the following exception in cases where damage resulted from the issue of a decision or order:
“1. If, in consequence of the issue of a decision or order, a State official has caused damage, the State Treasury shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation, and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person.
2. The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude the State Treasury’s liability for damage if such proceedings cannot be instituted in view of the [statutory] exception to prosecution or disciplinary actions.”
On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. While the relevant amendments have in essence been aimed at enlarging the scope of the State Treasury’s liability for tort under Article 417 of the Civil Code – which included adding a new Article 4171 and the institution of the State’s tortious liability for its omission to enact legislation (the so-called “legislative omission”; “zaniedbanie legislacyjne”) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings (see paragraphs 38-41 below).
Following the 2004 Amendment, Article 4171, in so far as relevant, reads as follows:
“3. If damage has been caused by failure to give a ruling (orzeczenie) or decision (decyzja) where there is a statutory duty to give them, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”
However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 (see paragraph 34 above) shall apply to all events and legal situations that subsisted before that date.
On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) dealt with two constitutional complaints in which the applicants challenged the constitutionality of Article 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution (see paragraphs 36-37 below).
On the same day the court gave judgment (no. SK 18/00) and held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it linked the award of compensation for such damage with the personal culpability of the state official concerned, established in criminal or disciplinary proceedings.
On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 was repealed. The Constitutional Court’s opinion on the consequences of the repeal read, in so far as relevant:
“The elimination of Article 418 of the Civil Code from the legal system ... means that the State Treasury’s liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of the State liability laid down in Article 417 of the Civil Code. This, however, does not rule out the application in the present legal system of other, not necessarily only those listed in the Civil Code, principles of the State liability laid down in specific statutes.”
Article 45 § 1 of the Constitution states:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
Article 64 of the Constitution reads:
“1. Everyone shall have the right to ownership, other property rights and the right of succession.
2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession.
3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.”
Article 77 § 1 of the Constitution reads:
“Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority contrary to law.”
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under Article 2 read in conjunction with Article 5(1) of the 2004 Act.
Article 2, in so far as relevant, reads as follows:
Article 5 provides, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Article 16 refers to proceedings that have been terminated and that do not fall under the transitional provision of Article 18 (see paragraph 46 below) in the following terms:
“A party which has not lodged a complaint about the unreasonable length of the proceedings under section 5 (1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.
Article 442 of the Civil Code sets out limitation periods in respect of various claims based on tort. That provision applies to situations covered by Article 417 of the Civil Code. Article 442, in so far as relevant, reads:
“1. A claim for compensation for damage caused by a tort shall lapse 3 years following the date on which the claimant learned of the damage and the persons liable for it. However, the claim shall in any case lapse 10 years following the date on which the event causing the damage had occurred.”
Article 18 of the 2004 Act lays down the following transitional rules in relation to the applications already pending before the Court:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
2. A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.
3. The relevant court shall immediately inform the Minister of Foreign Affairs of any complaints lodged under subsection 1.”


ITEMID: 001-109575
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF LEVIN v. SWEDEN
IMPORTANCE: 4
CONCLUSION: No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 6. The applicant was born in 1967 and lives in Norway.
7. The applicant is the mother of three children, T. born in October 1999, S. born in March 2001 and D. born in November 2002. In March 2003, the applicant separated from the children’s father, B., and she was eventually granted sole custody of the children, while B. was granted contact rights. The applicant married J. in November 2004.
8. The applicant and her children have been known to the social services since 2002 when a first investigation into their home environment was carried out. During March and April 2005, the personnel at the children’s day care centre felt that the applicant was distracted and stressed and the children were hungry and dirty when they arrived at day care in the mornings and were behaving in a wild and hyperactive manner. In view of this, they reported the situation to the social services in Skellefteå. In March the applicant herself contacted the Child and Youth Psychiatric Clinic (Barn- och ungdomspsykiatrin; hereafter “BUP”) for help, as she considered the situation to be chaotic and she needed help for her son, S., who she claimed destroyed everything at home. BUP reported the family’s situation to the social services.
9. On 3 May 2005 the applicant contacted BUP in a state of despair and, in response, a social emergency unit (social beredskap) went to the applicant’s home, accompanied by police and a chief physician from the adult psychiatric clinic. The authorities found the interior of the home completely destitute; there was hardly any furniture and there was no electricity or running water. The applicant was in a confused state and blamed the mess in the house on S. The social emergency unit decided immediately to place the children, together with the applicant, in a temporary family home (jourfamiljehem). On the following day, the applicant was committed to compulsory psychiatric care in accordance with the Act on Compulsory Psychiatric Care (Lagen om psykiatrisk tvångsvård, 1991:1128). The applicant claimed that she was not ill but agreed to the placement of the children in the temporary family home. A week later, she was released from psychiatric care and returned to her home.
10. During the summer of 2005 the applicant had frequent contact with the social services. However, she felt misunderstood and harassed by the authorities and wanted to bring her two daughters, T. and D., home. As the social services insisted that the situation was not stable enough for the girls to return to the applicant, she withdrew her consent to their voluntary placement. Hence, the Social Council (socialnämnden) in Skellefteå decided to take T. and D. into public care immediately on a provisional basis, pursuant to section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52; hereafter “the 1990 Act”). The council considered that the measure was necessary in order to protect the children. It also noted that there had been chaos every time the applicant had met with the children during the summer or when she had appeared, often unannounced, at their day care centre, leaving them upset and sad.
11. The applicant, who was represented by legal counsel, opposed the measure but, on 31 August 2005, the County Administrative Court (länsrätten) of Västerbotten confirmed the decision of the Social Council.
12. On 19 September 2005 the Social Council applied to the County Administrative Court for a permanent care order in respect of all three children, in accordance with section 2 of the 1990 Act. The council maintained that the applicant had shown a serious lack of ability to care for her children. It submitted a comprehensive investigation report into the family’s situation in support of its request according to which all three children had worn nappies when they arrived at the temporary family home, although T. only at night, and they had been dirty and had an endless appetite. Moreover, T. had no limits towards adults and wanted to control everything and everyone around her. S. had nightmares and had been afraid of sudden movements. He acted in a very stressed and anxious manner when his mother was present. D. had been late in her speech and motor development. The applicant had not been able to set limits for her children and the situation when they met had always become out of control.
13. The applicant disputed the measure and claimed that she was capable of caring for her children, who suffered from being separated from her.
14. By judgment of 19 October 2005, after having held an oral hearing, the County Administrative Court granted a permanent care order in respect of each of the three children. It found that, on the basis of all the material in the case, it had been shown that the applicant lacked the ability to care for her children, which had already somewhat impaired their health and development, and that there was a serious risk of further damage unless they were given proper care. Since the applicant did not agree to voluntary care, it was necessary to take the children into public care on a permanent basis.
15. The applicant appealed against the judgment to the Administrative Court of Appeal (kammarrätten) in Sundsvall. She had realised that it was not S., but her husband J., who had been responsible for all the destruction in their home. J. had admitted this and they had divorced. However, she did not consider that the children had suffered from this error, although she felt sorry for S. and would have liked to talk to him about it.
16. The Social Council contested the appeal. In its view, the children’s behaviour showed that their development had already been harmed and, moreover, the applicant had no insight into her problems and had difficulties in interacting with her children.
17. On 9 January 2006 the Administrative Court of Appeal upheld the lower court’s judgment in full. In its opinion it was evident that the children had not received proper care at home. Moreover, the applicant had shown signs of mental ill-health and had behaved in an unbalanced manner. Thus there had been a real risk of damage to the children’s health and development. Furthermore, although the court acknowledged that the situation had improved in that the house had been renovated and the applicant had divorced J., it found that the situation was far from being stable, having regard to the serious flaws which had existed, the uncertainty as to whether they still existed and the children’s need for care.
18. The applicant appealed to the Supreme Administrative Court (Regeringsrätten) which, on 23 February 2006, refused leave to appeal.
19. Following the granting of the public care order in August 2005, the applicant had contact rights to visit T. for one hour, once every other week, and spoke with her on the telephone once a week. She met S. once every third week in the presence of the social services and she had contact rights to visit D. for one hour every week. In May 2006 the applicant moved to live with her sister in Göteborg, located approximately 1,100 km from Skellefteå, and as a result she travelled to Skellefteå to see her children roughly once a month.
20. In October 2005, the children were placed in three different family homes, all within approximately 50 km of Skellefteå, as one family was not able to provide the care and support that each child needed. However, it was arranged for the children to meet each other approximately once a month to ensure continued good contact between them.
21. In November 2006 the applicant, through her legal counsel, requested the Social Council to allow her more time with her children as she felt that the children were being deprived of contact with her.
22. On 11 December 2006 the Social Council decided to restrict the applicant’s contact rights to all three children. It first noted that the children’s father, B., had also requested contact rights to the children and that his contact rights had to be taken into account when deciding on the frequency of the applicant’s contact rights, balanced against the best interests of the children. Thus, according to the decision, each parent should meet with the children once every three months in a neutral environment where the family home parents and the social worker responsible for the file should be present. This meant that the applicant would meet her children once every six months.
23. The decision was based on an investigation carried out by the Social Council, in consultation with BUP, into the children’s situation. It was finalised on 1 December 2006 and concluded, inter alia, the following. All three children had suffered severe harm to their health and development because of the deficiencies in the applicant’s ability to care for them. They were vulnerable and sensitive to change. However, since the permanent care order, T. had slowly become more calm and balanced and had started to learn how to play. She and the applicant had been alone during their meetings and had done various things such as going to the playground, the swimming pool or a restaurant. T. had been very tired after the meetings and she had slept badly and wet her bed. After telephone conversations with the applicant, T. had also been anxious and sad. As regards S., he had become calmer and more relaxed since placed in the family home. He still had difficulties sleeping and suffered from stomach pains and vomiting before and after contact with the applicant, despite the meetings having been very structured and held in the presence of the family home father. S. showed clear signs of fear of his mother and he had expressed a fear that she would come and fetch him. Turning to D., it was observed that she had met with the applicant and that they had usually been alone, playing together. After contact with the applicant, D. used to be worried about things the applicant had told her and she regressed somewhat in her development for a few days after each meeting, wetting her bed and having difficulty sleeping. The Social Council concluded in its investigation report that the children had a right to contact with their mother but that their best interests required that the contact be limited in order to ensure their secure and positive development.
24. The applicant appealed to the County Administrative Court and requested that she be granted contact rights to her children much more often than only twice a year. She could see no reason for such restricted contact and found it to be contrary to the best interests of the children as they would forget their mother. They had lived with her until May 2005 and they had had a close and warm relationship. She agreed that the children should also see and get to know their father but considered that this should not limit her contact with them. Moreover, she referred to a custody report, dated 28 February 2005, which had been carried out in connection with the custody proceedings following the divorce from B. In the summary of the report it was stated, inter alia, that nothing had appeared to call into question the applicant’s ability as a parent to care for her three children and that personnel at the children’s day care centre had stated that the children seemed to receive the care they needed from the applicant.
25. The Social Council contested the appeal. It submitted that the children were currently in the process of developing and learning things that they had not had the opportunity to learn before and it was important that this process should not be interrupted, which was the effect of their contact with the applicant. Consultation had taken place with BUP, which agreed with the Social Council that contact restrictions were necessary in order to ensure a positive development for the children. Moreover, it noted that the last meeting between the applicant and her children, on 23 January 2007, had passed without incident, partly because eight adults had been present to ensure the children’s well-being.
26. On 2 April 2007 the County Administrative Court rejected the appeal. It noted that a supplementary custody report, dated 25 August 2005, stated that it was clear that there were major flaws in the applicant’s ability to care for her children. Thus, having regard to the fact that the children had been feeling ill and anxious in connection with and after their contacts with the applicant, and that they needed time to develop in peace in their family homes, the Social Council had been justified in restricting the applicant’s contact rights to her children to twice a year.
27. The applicant lodged an appeal with the Administrative Court of Appeal, maintaining her claims and adding that she wished to see her children at least once a month in order to ensure that they would not forget her. She felt that the family home parents had a negative attitude towards her and that this influenced the children.
28. On 11 October 2007, after having held an oral hearing, the Administrative Court of Appeal upheld the lower court’s judgment in full. It noted that BUP had been consulted by the Social Council before its decision.
29. Upon further appeal by the applicant, the Supreme Administrative Court refused leave to appeal on 10 December 2007.
30. Every three months, the Social Council reconsidered the contact restrictions and decided to maintain the restrictions in place. It would appear that the applicant did not appeal against these until the council’s decision of 11 August 2008 which she appealed against to the County Administrative Court, requesting that her contact rights to her children be increased to one visit per month to begin with and, after three months, to spend one weekend a month with them alone. She stated, inter alia, that she had moved to Norway, found a job and was in a steady relationship with a new man, and thus, felt very well.
31. In its decision, the Social Council had observed that despite the applicant’s visits having been planned and very structured, the children had still had negative reactions before and after each meeting in the form of anxiety, stomach aches, bedwetting, becoming insecure and regressing in their development. It further noted that during the visit in December 2007, the applicant’s mother had also been present which had been a positive addition. She had expressed a wish to see her grandchildren once a year, to which the council agreed. It also noted that the applicant had sent postcards and letters to the children which they appreciated. As concerned the visits, the council observed that they were always very well planned and structured with the support of the family homes and that the applicant and the children played together, ate and talked. The family homes also showed photos and films from the children’s meetings and their activities.
32. On 14 November 2008 the court, after having held an oral hearing, decided to increase the applicant’s contact with her children to four times per year, for four hours each time. It noted that the limited contact had been in place for roughly two years and had contributed to the children developing positively during this time. Although it agreed with the Social Council that continued limitations on the applicant’s contact with her children were necessary due to the children’s needs, it noted that the applicant had not interfered in an inappropriate manner in the care of her children. Moreover, the last two times they had met had generally gone well. Therefore, the court found that with the support of the Social Council and the family homes during the meetings, these could be increased to four times per year for the applicant. In its view, this would provide the children with a good contact with their mother while not jeopardising their continued development.
33. The applicant appealed to the Administrative Court of Appeal, maintaining that she wanted contact rights with her children during one weekend per month, without the presence of others, in order to ensure that she and the children would establish a good contact.
34. The Social Council contested the appeal and maintained the reasons set forth in its decision.
35. The Administrative Court of Appeal requested the Social Council to obtain the children’s point of view on increased contact with their mother. Consequently, the council met with the children individually but in the presence of their family home parents where they spoke about various things, including how they felt about seeing their mother more often. T. said that she did not want to meet her mother more than twice a year and that she did not want to be alone with her or stay with her. According to T., the meetings were very tiresome, demanding, she had a headache and could not concentrate in school before and after the meetings. She started crying and had a stomach ache during the conversation for which reason they had to cut it short. Following the conversation, she wet her bed at night, cried a lot and said that she was afraid. As for S., he did not want to talk about his mother. He reacted in a negative, frightened manner and almost started crying. He later said that he only wanted to see her once a year and that he did not want to be alone with her. It was noted that he was very anxious and afraid to meet his mother and had strong physical reactions both before and after the meetings, including stuttering, becoming aggressive and being afraid of physical contact. Turning to D. she said that she became tired when meeting her mother and siblings but that it was nice to dress up and eat good food. It was noted that D. was the most positive about the meetings with the applicant but that she did not want to meet with her alone. Moreover, the negative reactions that she had had during earlier meetings had improved somewhat.
36. In February 2009 the applicant voluntarily underwent a neuropsychological examination during two days at Stavanger University Hospital, upon request by the Social Council. The council wanted to know if the applicant suffered from a disorder or mental illness and, if so, what support she would need. The examination concluded that the applicant fulfilled the criteria for Attention Deficit Hyperactivity Disorder (ADHD) that was mainly inattentive in nature. It recommended supplementary examinations and made a number of proposals for supportive measures, including establishing fixed structures and routines in her daily life. It was also stressed that this specific impairment of her capabilities could hardly be sufficient to “disqualify her as a parent”.
37. On 7 May 2009 the Administrative Court of Appeal upheld the lower court’s judgment in full. It concluded that it would not be in the best interest of the children to increase the applicant’s contact rights further than decided by the lower court, in particular due to the negative reactions of T. and S. before, during and after the meetings.
38. According to section 1 § 2 and section 2 of the 1990 Act, compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person under 18 years of age due to ill-treatment, exploitation, lack of care or any other condition in the home and if the necessary care cannot be provided with the consent of the child’s guardian. The decision to place a child in public care is made by the County Administrative Court following an application from the Social Council (section 4).
39. Chapter 1, section 2 of the Social Services Act (Socialtjänstlagen, 2001:453; hereafter the “2001 Act”) provides that particular attention must be given to the best interests of the child when measures within the social services affect him or her. Likewise, Section 1 § 5 of the 1990 Act states that the best interests of the young person shall be decisive when decisions are made under the Act. Moreover, Section 1 § 6 of the 1990 Act prescribes that the young person’s point of view shall, as far as possible, be clarified and that the young person’s will shall be taken into account, with due consideration to his or her age and maturity.
40. According to section 11 of the 1990 Act, the Social Council decides on the details of the care, in particular, how the care is to be arranged and where the young person is to live. Moreover, under section 14, the council shall ensure that the young person’s need for contact with his or her parents or other guardians is met to the utmost possible extent. If necessary, the council may decide how this contact is to be arranged. In the preparatory works to the 1990 Act (Government Bill 1979/80:1, p. 602), it is noted that the provisions on contact restrictions are to be applied restrictively. The Social Council must have strong reasons to decide on contact restrictions between a young person and his or her parents. However, it can happen that the parents intervene in the care in an inappropriate manner. Their personal situation, for instance serious abuse or a grave mental illness, may be such that they should not see their child for a limited period of time.
41. According to Chapter 6, section 1 of the 2001 Act, care outside a young person’s home shall be provided either in a family home or in a home for care and residence. Moreover, the care should be designed to promote the affinity between the young person and his or her relatives and others closely connected to him or her, as well as contact with his or her home surroundings.
42. Contact restrictions shall be reviewed every third month by the Social Council pursuant to section 14 of the 1990 Act. Appeal against the council’s decision in this respect lies to the administrative courts (section 41).
NON_VIOLATED_ARTICLES: 8
NON_VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-22205
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BLAND v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Nicolas Bratza
TEXT: The applicant, John Bland, is a United Kingdom national, who was born on 12 April 1940 and lives in Cowling, North Yorkshire.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant applied to the Benefits Agency for a retirement pension, but was informed, by a letter dated 17 May 2000, that the Agency would not consider his claim until four months before his sixty-fifth birthday. At present, women in the United Kingdom become eligible for a State pension at the age of sixty, whereas men are not eligible until sixty five.
In their Observations, the Government submitted that the applicant received a total of GBP 236.15 per week in State benefits, including income support, disability living allowance and invalid care allowance. They claimed that the applicant would be in an identical financial position if he were a woman, the only difference being that part of the money paid to him by the State would be paid in the form of retirement pension rather than income support.
The applicant has not denied the Government’s account of his income. He claims, however, that if he were in receipt of State pension he would in addition be entitled to other financial benefits, such as a bus pass and discounts in shops, restaurants and hairdressers.


ITEMID: 001-91063
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF İPEK AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicants were born in 1985 and live in Diyarbakır. At the time of the events they were sixteen years old.
5. According to the official documents, in connection with an ongoing investigation against an illegal armed organisation, namely the PKK (the Workers’ Party of Kurdistan), the police received information that the second applicant, a suspected member of that organisation, had arrived from the rural area in order to conduct activities in cities on behalf of the organisation. Having established the second applicant’s address in Diyarbakır, the police conducted a search of the premises, on 1 December 2001 at 1.20 a.m., and arrested the second applicant. The other applicants, who were also present during the house during the search, were similarly arrested and taken into police custody in order to establish any link they might have had with the organisation. The police did not find anything illegal or incriminating during the search.
6. On the same night, at around 2.15 a.m., the applicants were taken for a medical examination at the Diyarbakır State Hospital.
7. According to the custody records, the police informed the fathers’ of first and the third applicant and the second applicant’s mother of their arrest and detention.
8. On 2 December 2001 the police searched the house of the first applicant but did not find anything illegal or incriminating.
9. Upon the request of the police, the Diyarbakır public prosecutor (hereinafter the prosecutor) extended the applicants’ detention for two days on 3 December 2001.
10. On the same day, the applicants were questioned by the police. Since they were accused of offences falling within the jurisdiction of the State Security Courts, they could not benefit from the assistance of a lawyer despite their age.
11. The custody records noted the end of the applicants’ custody at 10.40 a.m. on 4 December 2001.
12. Later the same day, the applicants were taken for a medical examination at the Bağlar Medical Clinic.
13. Afterwards, the applicants were first brought before the prosecutor and then to the Diyarbakır State Security Court (hereinafter the SSC). The latter, after having heard them, ordered their remand in custody.
14. On 5 December 2001 the prosecutor, relying mainly on the basis of the applicants’ statements obtained during the pre-trial investigation, filed a bill of indictment with the SCC accusing the second applicant of membership of an illegal organisation and the other applicants of aiding and abetting that organisation. The charges were brought under Articles 168 and 169 of the Turkish Criminal Code respectively.
15. At the first hearing held before the SSC, on 5 February 2002, the applicants were released pending trial.
16. No further documentation has been submitted by the parties regarding these proceedings before the SSC.
17. A description of the relevant domestic law at the material time can be found in the Ahmet Mete v. Turkey judgment, no. 77649/01, §§ 17-18, 25 April, and the Daş v. Turkey judgment (no. 74411/01, § 18, 8 November 2005).
18. The recommendation of the Committee of Ministers to Member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec (2003)20), adopted on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows:
“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor. They should not be detained in police custody for longer than forty-eight hours in total and for younger offenders every effort should be made to reduce this time further. The detention of juveniles in police custody should be supervised by the competent authorities. ”
“States Parties shall ensure that: ...
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
5-5
VIOLATED_BULLETPOINTS: 5-1-c
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-80388
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF AMATO v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
TEXT: 4. The applicant was born in 1956 and lives in İzmir. On 1 June 1994 he bought a house (no. 97, plot no. 632/26) in the Asansör neighbourhood attached to the Konak District in İzmir. According to the title deed records, he paid 30,000,000 Turkish liras (approximately 986 US dollars at the time).
5. Following a major rockslide, on 17 July 1962 the Council of Ministers declared the Asansör neighbourhood a natural disaster area. To identify those who had been affected by the natural disaster, a regulation was published in the Official Gazette on 28 August 1968. According to the terms of this regulation, the victims of the natural disaster were given an opportunity to apply to the authorities within a specified time-limit to claim re-housing. At that time, 46 of the 86 families that had been living in the disaster area applied to the administrative authorities and they were provided with new houses in the Esentepe neighbourhood. The houses of these families were subsequently demolished. The owner of house number 97, plot no. 632/26, which was subsequently bought by the applicant in 1994, did not apply to the authorities to claim re-housing.
6. On 28 April 1971 the owner of plot no. 632/26 at the time received an eviction order from the İzmir Governor's office.
7. On 26 March 1981, at the request of the Ministry of Public Works and Settlement, land registry records were amended to indicate that no construction was permitted in the Asansör neighbourhood.
8. Between 1982 and 1995 several on-site inspections were conducted and many experts' reports were prepared. All of these reports indicated that the neighbourhood was under an imminent danger of rockslide and prevention measures had to be taken by the owners of the houses and the municipality. It appears from the documents that no preventive measures were taken.
9. As stated above (paragraph 4), on 1 June 1994 the applicant bought the house (no. 97) situated on plot no. 632/26. The applicant never lived in this house, and it was vacant in January 1995. According to the documents submitted by the Government, the house was in ruins and it had no historical or architectural value.
10. On 7 January 1995 following a heavy rain, rocks fell on house no. 113. On 11 January 1995 the authorities conducted an on-site inspection and prepared a report. The report concluded that eleven houses located in the Asansör neighbourhood, including the one owned by the applicant, required demolition to prevent loss of life. As a result, at the request of the Directorate of Public Works and Settlement, the İzmir Governor's office ordered that the applicant's house be demolished pursuant to Article 13 of Law No. 7269 regarding Natural Disasters. On 12 January 1995 the house was demolished without prior notification to the applicant.
11. On 26 April 1995 the applicant filed an action before the İzmir Administrative Court against the İzmir Governor's office. He requested compensation for the unlawful demolition of his house.
12. On 12 December 1996 the İzmir Administrative Court dismissed the applicant's case. The court explained its decision by pointing out that the applicant's house had been situated in a neighbourhood that had been declared a natural disaster area by the Council of Ministers on 17 July 1962 following a major rockslide. The court further took note of the fact that on 28 April 1971 the İzmir Governor's Office had sent an eviction order to the previous owner of the applicant's house. In the court's opinion, as the title-deed records of the building stated that no construction was permitted in the Asansör neighbourhood, the applicant should have been aware of this situation when he had bought the house. As a result, it concluded that by demolishing the vacant house, that had no historical or architectural value, and which posed an immediate threat to public safety, the administration had acted in accordance with the law. The court accordingly refused the applicant's request for compensation.
13. The applicant appealed. On 26 May 1998 the Supreme Administrative Court upheld the judgment of the İzmir Administrative Court, finding that the applicant's grounds of appeal were unfounded. The Supreme Administrative Court held that the Izmir Governor's Office had delivered the demolition order because there was an urgent need to take action to prevent loss of life in the neighbourhood.
14. On 16 June 1999 the Supreme Administrative Court dismissed the applicant's request for rectification. This decision was served on the applicant on 27 July 1999.


ITEMID: 001-81960
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VERSHININA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1953 and lives in Krasnokamsk, the Perm Region.
5. On 23 May 1999 the applicant's son, born in 1981, was drafted into military service. On 17 October 1999 he was killed during military operations in Chechnya. In 2000 the applicant instituted proceedings for damages against the Ministry of Defence. She claimed that her son was sent to participate in military operations in breach of statutory provisions since he had only served for four months while it was only permitted to send for military operations servicemen who had served no less than 12 months.
6. On 13 July 2001 the Krasnokamskiy Town Court granted the claim and awarded the applicant damages in the amount of 50,000 roubles (RUR) and costs in the amount of RUR 10. The judgment was not appealed against and became final.
7. On 1 October 2001 a writ of execution was issued.
8. On 9 November 2001 the applicant sent the writ of execution to the Moscow Department of Federal Treasury of the Ministry of Finance.
9. On 29 November 2001 the Moscow Department of Federal Treasury returned the writ to the applicant and advised her that it should be sent directly to the Ministry of Finance.
10. On 18 December 2001 the applicant sent the writ of execution to the Ministry of Finance.
11. On 15 February 2002 the applicant sent a complaint to the Minister of Finance concerning non-execution of the judgment in her favour.
12. In the reply of 30 May 2002 the applicant was informed that the Ministry of Finance forwarded the writ of execution to the Ministry of Defence. However the latter did not take necessary measures in order to execute the payment under the writ.
13. On 27 March 2003 the applicant sent a complaint to the Minister of Defence concerning non-execution of the judgment in her favour.
14. On 25 June 2003 the sum awarded on 13 July 2001 was paid to the applicant.
VIOLATED_ARTICLES: 6


ITEMID: 001-23947
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ŘEHÁK v. THE CZECH REPUBLIC
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Milan Řehák, is a Czech national, who was born in 1954 and lives in Olomouc.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was an anti-communist dissident. On 25 April 1980 he was charged with parasitism (příživnictví) and detained on remand. On 13 May 1980 he was released. On 2 June 1980 the criminal proceedings were discontinued under the presidential amnesty of 8 May 1980, the criminal offence being re-qualified as a minor offence (přečin). The decision was served on the applicant's lawyer on 1 February 1995. On 24 February 1995 the Olomouc District Prosecutor (okresní státní zástupce) discontinued the criminal proceedings on the ground that the act imputed to the applicant did not constitute an offence.
On 16 December 1991 the applicant sued the Olomouc District Police Directorate (okresní ředitelství policie) for damages under the State Liability Act. He claimed that, in the criminal proceedings instituted against him, the police officers had acted unlawfully. These proceedings were still pending in February 2004, after being examined at several instances, with discontinuances due to the applicant's failure to specify his claims fully, decisions being quashed on three occasions and the case being re-considered accordingly.
In a letter of 7 October 2002 addressed to Czech Telecom (Český telecom), the applicant complained that his name and address had been included in the telephone directory, contrary to an amendment to his contract with this company on 1st November 2001, and that his telephone had been intercepted. He claimed damages of CZE 200,000.
On 15 November 2002 Czech Telecom apologized for the administrative mistake concerning the publication of the applicant's name and address, assuring the applicant that the mistake had been rectified in the meantime. They informed him that the telecom network connected to his telephone line had been controlled and that any unlawful interception had been excluded.
On 1st January 2003 the applicant requested the Olomouc District Police Directorate to institute criminal proceedings against the Security and Information Service of the Czech Republic (Bezpečnostní a informační služba ČR) and Czech Telecom on the ground that they had illegally intercepted his telephone and had handled his personal data. On 16 January 2003 the applicant was heard in this connection at the police station. His request was examined but no criminal proceedings were brought.
In a letter of 17 March 2003, the applicant alleged that he and certain lawyers had agreed that “the genocide of fundamental human rights in the Czech Republic is so vast that it extends to the Czech Registry of the European Court”. He asked the Court to send its decision, which he expected to be negative given his view as to the partiality of Czech Court staff, in a registered letter. He insisted that the decision be fully reasoned. In connection with his previous case [Application no. 55376/00 was declared inadmissible by a committee of three judges on 21 May 2002. The applicant was informed of this by the Registry's letter of 7 June 2002, pursuant to Rule 53 § 2 of the Rules of Court, which provides that “In accordance with Article 28 of the Convention, the Committee may, by a unanimous vote, declare inadmissible an application or strike it out of the Court's list of cases where such a decision can be taken without further examination. This decision shall be final. The applicant shall be informed of the Committee's decision by letter.”], the applicant noted:
[Translation]
“... not even criminal communist tribunals sent their decisions without reasoning .... What you have done is tantamount to approval of theft and, therefore, amounts to a crime from the position of a sort of 'terrestrial God'. The proof of this is not only the Czech [part of the Registry]'s ignorant reaction to my justified request to be provided with the 'preparatory' materials on the basis of which 'decision was taken'.” I do not consider the decision of a sort of section, assisted by your Bulgarian colleagues, to be a decision of the Court as such.”
[Original]
“... ani zločinné komunistické soudy nezasílaly svá rozhodnutí bez zdůvodnění ... To, co jste tedy učinili, rovná se schvalování zlodějin a tedy zločinu z pozice jakéhosi 'pozemského boha'. Nejen ignorantství ze strany české [části kanceláře Soudu] na můj oprávněný požadavek zaslat mi 'zpracované' materiály, na zákl. kterých se 'rozhodovalo', jet toho důkazem. Rozhodnutí jakési sekce za spolupráce Vašich bulharských kolegů proto nepovažuji za rozhodnutí Soudu jako takového.
In a letter of 3 March 2004, the applicant accused, inter alia, the Czech membership of the Registry of having successfully “disguised” the applications of democratically orientated citizens with a view to depriving them of human rights “once and for all”, and of having accomplices in the form of Romanian, Bulgarian or other left-leaning - and therefore partial - judges and administrators of the Court.
On 23 March 2004, in reply to a letter of 17 March 2004 from the Section Registrar, the applicant said that the latter in fact confirmed “that the co-creators of the criminal communist regime and supporters of the freakish communist ideology ([Czech members of the registry]) ... serve[d] your Court well given that this Court employ[ed] them”. He continued as follows:
[Translation]
“ ... Today, when I know that your glorious Court is full of STB and KGB [The secret services of former Czechoslovakia and the Soviet Union] agents, I'm not surprised that you defend people who, thanks to their week characteristic qualities, pushed themselves forward to achieve their personally advantageous goals (troughs) (koryta) [This term, meaning a trough, is used to refer to the attainment of personal aims even where the rights of others are violated] collaborating with the freakish communist regime which they helped to establish, and scrambling on the backs of those who suffered and suffer because of the communist regime. ...
Your Court, with the great help of and thanks to the Czech Registry ... liquidates fundamental human rights! ... I have my own former experience when the Court prevented me from freely using [my] property and left it at the mercy and for the benefit of the communist thieves, without any reasoning whatsoever! (see my application no. 55376/00). In doing so, your glorious Court consecrated crimes of the communist regime and communist tribunals. Thank you! ...”
[Original]
“To, že se zastáváte lidí, kteří se díky svým špatným charakterovým vlastnostem drali ke svým osobně prospěšným cílům (korytům) prostřednictvím kolaborace s komunistickým zločineckým režimem, který spoluvytvářeli a lezli po zádech těch, kteří komunistickým režimem trpěli a trpí, mě dnes, kdy vím, že i Váš slavný Soud je přesycen agenty Stb a KGB, vůbec nepřekvapuje. ...
Váš Soud, za velkého přispění a díky české kanceláři ... likviduje základní lidská práva ! ... Sám mám již předchozí zkušenost, kdy mi 'Soud' zabránil svobodně vlastnit a užívat [můj] majetek a tento ponechal na pospas a ku prospěchu komunistickým zlodějům. To bez jakéhokoli zdůvodnění ! (viz má stížnost č. 55376/00). Zločiny komunistického režimu a komunistických soudů Váš slavný Soud tak posvětil. Děkuji! ...”.


ITEMID: 001-60975
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF JASIUNIENE v. LITHUANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1 as regards non-execution;No violation of P1-1 as regards other complaints
JUDGES: Ireneu Cabral Barreto
TEXT: 8. The applicant was born in 1923 and lives in Palanga.
9. Before the Second World War the applicant's mother occupied a dwelling house (“the house”) on a plot of land measuring 1,422 square metres (“the plot”) in the centre of the tourist resort of Palanga on the Baltic Sea coast. Following the Soviet occupation of Lithuania in 1940, the land was nationalised and the house was demolished in the 1960s.
10. By a decision of 25 September 1992 the Palanga City Council, by reference to the Restitution of Property Act, decided to “restore the property rights” of the applicant and her sister in regard to their late mother's land. No form of restitution was specified in the decision.
11. The decision of 25 September 1992 was not implemented as no land was returned and no compensation was offered. In January 1995 the applicant brought a court action against the local authority, claiming that the plot should have been returned to her and her sister.
12. On 15 December 1995 the Palanga City District Court dismissed the applicant's action. By reference to Article 5 of the Restitution of Property Act (see § 22 below), the court held that the applicant was not entitled to recover the plot, but that she should have been offered an alternative parcel in compensation as required by the law.
13. The applicant appealed, stating that the plot had to be returned to her.
14. On 3 April 1996 the Klaipėda Regional Court quashed the judgment of the District Court. The Regional Court found that the decision of the Palanga City Council of 25 September 1992 did not comply with Article 19 of the Restitution of Property Act as the local authority had not decided whether land or money and, in either case, which land or what amount of money should have been offered to the applicant as a compensation. The Regional Court held that the local authority had to resolve these questions. The court required the administration of Klaipėda County to “adopt, by 30 June 1996, a decision on the request by Stasė Jasiūnienė to restore her property rights in regard to the plot of land (iki 1996 m. birželio 30 d. priimti sprendimą pagal Stasės Jasiūnienės prašymą dėl nuosavybės teisės į žemės sklypą atstatymo)”.
15. However, no such decision was taken as the applicant refused an alternative parcel of land in another area of Palanga. The applicant's sister accepted an alternative parcel.
16. On 13 August 1996 the applicant obtained an execution warrant for the judgment of 3 April 1996. She put the matter in the hands of bailiffs who were unable to execute the warrant against the county administration. The executive authorities took no further decision as the applicant had again refused an alternative parcel of land.
17. By a letter of 15 December 1997, the Klaipėda County Governor stated that the applicant had misinterpreted the judgment of 3 April 1996. In the Governor's opinion, the Regional Court had only required the county administration to adopt a decision in accordance with the Restitution of Property Act. As the applicant had no buildings or other property on the plot, she was not entitled to its return. The Governor requested the applicant to approach planners at the Palanga City Council to choose an alternative parcel. He warned her that a different parcel would be allotted without her consent in order to comply with the judgment of 3 April 1996.
18. On 31 December 1997 the applicant wrote to the Prime Minister, stating that she had been entitled to the plot, that the alternative parcels offered by the local authority were located in the outskirts of Palanga, and that their value was thus not equivalent to the plot in the centre of town.
19. In a letter of 11 February 1998, the Director of the Land Authority of the Ministry for Agriculture and Forestry stated that on 25 September 1992 the Palanga City Council had decided to restore the applicant's property rights notwithstanding the fact that there had been a lack of relevant documentation proving her late mother's ownership of the plot. Moreover, the Director stated that from the decision of 25 September 1992 it was “unclear in respect of which owner or land the property rights were restored[;] the form of the restitution of property was also unclear ...”. The Director requested the Klaipėda County Governor to re-examine the lawfulness of the decision of 25 September 1992.
20. Until 1999 the applicant was proposed and refused three offers by the Klaipėda County Governor for alternative parcels of land in various areas of Palanga.
21. By a letter of 30 August 1999, the executive authorities informed the applicant that she had not proved her mother's ownership of the original plot in accordance with the governmental instructions of 13 July 1998, i.e. she had not submitted the original papers confirming the purchase of the plot by her mother, or a court decision proving ownership. The executive authorities held that they could not proceed with a decision on compensation until the applicant presented these papers.
22. The Restitution of Property Act (Nuosavybės teisių ... atkūrimo įstatymas) (of 1991, amended on numerous occasions) provides for two forms of restitution: 1) the return of the property in certain circumstances, 2) compensation in other cases (compensation can be made in land or money).
On 27 May 1994 the Constitutional Court examined the issue of compatibility of the Constitution with the domestic laws on restitution of property rights. In its decision the Constitutional Court held inter alia that possessions which had been nationalised by the Soviet authorities since 1940 should be considered as “property under the de facto control of the State”. The Constitutional Court also stated: “The rights of a former owner to particular property have not been restored until the property is returned or appropriate compensation is afforded. The law does not itself provide any rights while it is not applied to a concrete person in respect of a specific property item. In this situation the decision of a competent authority to return the property or to compensate therefor has such a legal effect that only from that moment does the former owner obtain property rights to a specific property item.” The Constitutional Court also held that fair compensation for property which could not be returned was compatible with the principle of the protection of property.
In decisions of 15 June and 19 October 1994 the Constitutional Court emphasised that the notion of restitution of property rights in Lithuania essentially denoted partial reparation. In this respect the Constitutional Court noted that the authorities of Lithuania as a re-established State in 1990 were not responsible for the Soviet occupation half a century ago, nor were they responsible for the consequences of that occupation. The Constitutional Court held that since the 1940s many private persons had bought, in accordance with the legislation applicable at the material time, various property items which had been previously nationalised. The denial of these factual and legal aspects was impossible, and the domestic legislation on restitution of property rights duly took into account not only the interests of the former owners, but also the interests of private persons who had occupied or purchased the property under lawful contracts.
On 20 June 1995 the Constitutional Court also said that the choice by the Parliament of the partial reparation principle was influenced by the difficult political and social conditions in that “new generations had grown, new proprietary and other socio-economic relations had been formed during the 50 years of occupation, which could not be ignored in deciding the question of restitution of property”.
On 8 March 1995 the Constitutional Court ruled that a person who qualifies for compensation for property which cannot be returned is entitled to choose the form of compensation (land or money) by giving written permission for the authorities to proceed with the decision. The Constitutional Court also held that the executive authorities have discretion to decide on appropriate compensation in each case, but that a person is entitled to contest that compensation by way of a court action.
Under Article 18 of the Restitution of Property Act (all versions until 1999), the authorities were required to obtain the written permission of the person concerned before they determined the actual compensation for the property which could not be returned.
Pursuant to the version of the Restitution of Property Act as amended from 2 June 1999, the executive authorities are now entitled to decide the question of compensation without the person's approval. That decision can be appealed to a court in accordance with the procedure established in Article 19 of the Act. No stamp duty is required to file such an action.
23. Under Article 372 of the Code of Civil Procedure, a court judgment which has come into force is binding and must be executed.
The Code of Civil Procedure nonetheless requires the individual concerned to obtain an execution warrant (vykdomasis raštas) from the court which has delivered the final judgment; the execution warrant must be presented to bailiffs for immediate enforcement (Articles 372-379). The requirements of the bailiffs are binding on all authorities and subjects (Article 381).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77249
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF THE MOSCOW BRANCH OF THE SALVATION ARMY v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 11 read in the light of Art. 9;Not necessary to examine under Art. 14;Non-pecuniary damage - financial award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 8. The Salvation Army worked officially in Russia from 1913 to 1923 when it was dissolved as an “anti-Soviet organisation”.
9. The Salvation Army resumed its activities in Russia in 1992 when a group of Russian nationals held a meeting and adopted the articles of association of the Moscow branch of The Salvation Army.
10. On 6 May 1992 the Justice Department of the Moscow City Council of People’s Deputies registered the applicant branch as a religious organisation with status as a legal entity.
11. On 12 September 1997 the Moscow Justice Department registered the applicant branch’s amended articles of association.
12. On 1 October 1997 a new Law on freedom of conscience and religious associations (“the Religions Act”) came into force. It required all religious associations which had previously been granted the status of legal entities to bring their articles of association into conformity with the Act and to re-register by 31 December 1999.
13. On 18 February 1999 the applicant submitted to the Moscow Justice Department an application for re-registration as a local religious organisation.
14. On 16 August 1999 the deputy head of the Moscow Justice Department notified the applicant that its request for re-registration was being denied. He advanced three grounds for this refusal. Firstly, it was claimed that, at the meeting of the Financial Council (the governing body of the applicant branch) at which amendments to the founding documents had been adopted, only five members had been in attendance, whereas the Religions Act required that a religious organisation should have at least ten founding members. Secondly, it was alleged that no visas for the applicant branch’s foreign members, or other documents establishing their lawful residence in Russian territory, had been provided. Thirdly, the deputy head referred to the fact that the applicant branch was subordinate to a centralised religious organisation in London and inferred therefrom that the applicant branch was “most probably” a representative office of a foreign religious organisation operating on behalf and by order of the latter. Accordingly, its activities were to be governed by Government Regulation no. 310 (see paragraph 46 below).
15. On 7 September 1999 the applicant challenged the refusal before the Presnenskiy District Court of Moscow. The Moscow Justice Department submitted its written comments, in which it advanced a new ground for the refusal of registration.
“... Article 6 of the Charter provides that members of the Branch shall include supporters, soldiers, local officers and officers headed by the Officer Commanding, who is appointed from London. Members of the Branch wear a uniform and perform service, which means that the Branch is a paramilitary organisation.
Pursuant to Presidential Decree no. 310 of 23 March 1995 ‘on measures to secure coordinated actions by State authorities in the fight against fascism and other forms of political extremism in the Russian Federation’, no paramilitary formations may be established in the Russian Federation.
We do not consider the use of the word ‘army’ in the name of a religious organisation to be legitimate. The Large Encyclopaedic Dictionary defines the meaning of this word as: 1. The totality of a State’s armed forces ...”
As to the remainder, the Moscow Justice Department repeated and elaborated on the grounds for refusal set out in the letter of 16 August 1999.
16. On 5 July 2000 the Presnenskiy District Court gave judgment. It determined that the applicant branch was a representative office of the international religious organisation “The Salvation Army” and therefore was not eligible for registration as an independent religious organisation. In the court’s opinion, this fact also prevented the applicant branch from being granted re-registration. Secondly, it referred to Article 13 § 5 of the Constitution, banning the founding and functioning of public associations which advocated a violent change in the constitutional principles of the Russian Federation or destruction of its integrity, undermined the security of the State, created paramilitary formations, or caused social, racial, ethnic or religious division or conflict. The court continued as follows:
“In the course of analysis of the Charter, certain provisions stood out, on the one hand, as being imbued with barrack-room discipline, in which members of the religious organisation show unquestionable subordination to its management and, on the other hand, as relieving the management and the organisation as a whole of any responsibility for its members’ activities. Thus, according to Article 6 § 3 of the Charter, ‘the members of the Branch shall act in compliance with The Salvation Army’s Orders and Regulations and with the instructions of the Officer Commanding’, ... ‘the Branch as a whole shall not be liable for infringements of the legislation of the Russian Federation perpetrated by individual members of the Branch’. This wording of the Charter leads one to conclude that the Charter assumes that the members of the organisation will inevitably break Russian law in the process of executing The Salvation Army’s Orders and Regulations and the instructions of the Officer Commanding ... The Branch excludes its liability for illegal service activity by its members.”
Thirdly, the court pointed out that the grounds for judicial liquidation of the applicant branch, as set out in its articles of association, were inconsistent with those laid down in Russian law. Lastly, the court held that the applicant branch had not disclosed its objectives, given that the articles of association failed to describe “all the decisions, regulations and traditions of The Salvation Army”.
17. On 28 November 2000 the Moscow City Court upheld that judgment on appeal, focusing mainly on the applicant branch’s foreign ties. It pointed out that the organisation’s executive body included five foreign nationals who had multiple-entry visas, but not residence permits, whereas section 9(1) of the Religions Act required founders to be of Russian nationality. Noting the location of The Salvation Army’s headquarters abroad and the presence of the word “branch” in its name, the City Court concluded that the Moscow Justice Department had correctly insisted on registration of the applicant branch as a representative office of a foreign religious organisation. As a subsidiary argument, the City Court endorsed the District Court’s finding that the articles of association did not indicate the precise religious affiliation of its members because it was described as “Evangelical Protestant Christian”, certain clauses of the articles of association mentioned the “faith of The Salvation Army”, and its objective was the “advancement of the Christian faith”. On the allegedly paramilitary nature of the applicant’s activities, the City Court noted:
“The argument that [the applicant] is not a paramilitary organisation does not undermine the [first-instance] court’s findings that the Branch is a representative office of a foreign religious organisation, The Salvation Army, and that the documents submitted for re-registration do not conform to the requirements of Russian law.”
18. On 12 July 2000 the Ministry of Education of the Russian Federation sent an instruction “on activities of non-traditional religious associations in the territory of the Russian Federation” to Russian regional education departments. The instruction stated, inter alia:
“... the international religious organisation The Salvation Army is expanding its activities in the central part of Russia. Its followers attempt to influence young people and the military. The Salvation Army formally represents the Evangelical Protestant branch of Christianity; in essence, however, it is a quasi-military religious organisation that has a rigid hierarchy of management. The Salvation Army is managed and funded from abroad.”
The applicant branch submitted that this extract was copied verbatim from an information sheet prepared by the Federal Security Service of the Russian Federation and forwarded to the Ministry of Education on 29 May 2000.
19. On 31 December 2000 the time-limit for re-registration of religious organisations expired. Organisations that had failed to obtain re-registration were liable for dissolution through the courts.
20. On 2 August and 10 September 2001 the Moscow City Court and the Supreme Court of the Russian Federation, respectively, refused the applicant branch’s request to lodge an application for supervisory review.
21. On 29 May 2001 the Moscow Justice Department brought an action for dissolution of the applicant branch.
22. On 12 September 2001 the Taganskiy District Court of Moscow granted the action for dissolution. The court found that the applicant branch had failed to notify the Moscow Justice Department on time about the continuation of its activities and had failed to obtain re-registration within the time-limit set by the Religions Act. The court held that the applicant branch had ceased its activities and that it was to be stripped of its status as a legal entity and struck off the Unified State Register of Legal Entities. On 6 December 2001 the Moscow City Court upheld that judgment.
23. On 10 September 2001 the applicant brought a complaint before the Constitutional Court challenging the constitutionality of section 27(4) of the Religions Act, which provided for dissolution of religious organisations that had failed to re-register before the time-limit. The applicant argued that the contested provision imposed dissolution as a form of penalty which could be imposed on a religious organisation on purely formal grounds, in the absence of any violations or offences on the part of the organisation. It maintained that the possibility of no-fault penalty was incompatible with the rule of law and constituted an encroachment on its constitutional rights.
24. On 7 February 2002 the Constitutional Court ruled on the complaint. It held that re-registration of a religious organisation could not be made conditional on the fulfilment of requirements that were introduced by the Religions Act and which had not legally existed when the organisation was founded. A court could only decide on the dissolution of an organisation which had failed to bring its documents into compliance with the Act if it was duly established that the organisation had ceased its activities or had engaged in unlawful activities. The court also emphasised that a judicial decision on dissolution of an organisation that had failed to obtain re-registration was to be reasoned beyond a mere reference to such formal grounds for dissolution as the failure to re-register or the failure to provide information on the continuation of its activities. Finally, the court held that the applicant’s case was to be reheard in the part affected by the Constitutional Court’s different interpretation of the Religions Act.
25. On 1 August 2002 the Presidium of the Moscow City Court quashed the judgment of 12 September 2001 and remitted the case for a fresh examination by a differently composed bench.
26. On 18 February 2003 the Taganskiy District Court of Moscow dismissed the action for dissolution of the applicant branch brought by the Moscow Justice Department. The court founded its decision on the Constitutional Court’s ruling.
27. On 20 March 2003 the Moscow Justice Department lodged an appeal. It submitted, firstly, that the judicial decisions upholding its refusal of re-registration remained effective and, secondly, that the entering of information on the applicant branch in the Unified State Register of Legal Entities did not constitute re-registration for the purposes of the Religions Act.
28. On 16 April 2003 the Moscow City Court dismissed the appeal and upheld the District Court’s judgment of 18 February 2003.
29. The applicant submitted that the refusal to re-register it had had an adverse impact on its activities.
30. Following the expiry of the time-limit for re-registration on 31 December 2000, the applicant branch’s assets had had to be transferred, in order to avoid seizure, to the community of The Salvation Army which had been re-registered at federal level. The transfer process had required considerable time and effort, involving: title to three properties; title to and registration of fourteen vehicles; opening of a new bank account; replacement of every employee’s contract; renegotiation of twenty-six rental contracts, etc. Each of these transfers had necessitated complex bureaucratic steps and a diversion of resources from religious activities.
31. The refusal had also resulted in negative publicity which severely undermined the applicant branch’s efforts at charitable fund-raising and generated distrust among landlords who refused to negotiate leases with the applicant branch.
32. In at least one neighbourhood, the applicant branch’s mission of delivering hot meals to house-bound elderly persons had had to be stopped entirely, because an official of the local administration had refused to work with the applicant branch as it had no official registration.
33. The lack of re-registration had made it impossible for twenty-five foreign employees and seven non-Moscow Russian employees to obtain residence registration in Moscow, which was required by law for everyone who stayed in the city for more than three days.
34. The articles of association of the applicant branch, approved on 6 May 1992 and amended on 2 September 1997, read in the relevant parts as follows:
“(1) The Religious Association called Moscow Branch of The Salvation Army, a non-commercial charitable organisation, was established by its first members ... with the aim of professing and advancing the Christian religion ...
(2) The first members are parties who uphold the Articles of Faith of The Salvation Army as set out in Schedule I hereto ...
(3) The Branch shall be part of The Salvation Army international religious organisation and shall be subordinate thereto.
...
(5) The religious activities of the Branch shall be determined according to the Articles of Faith of The Salvation Army as an evangelistic Christian church.”
“(1) The objectives of the Branch shall be the advancement of the Christian faith, as promulgated in the religious doctrines which are professed, believed and taught by The Salvation Army, the advancement of education, the relief of poverty and other acts of charity ...”
35. Article 29 guarantees freedom of religion, including the right to profess either alone or in community with others any religion or to profess no religion at all, freely to choose, have and share religious and other beliefs and to manifest them in practice.
36. Article 30 provides that everyone shall have the right to freedom of association.
37. On 1 October 1997 the Federal Law on freedom of conscience and religious associations (no. 125-FZ of 26 September 1997 – “the Religions Act”) came into force.
38. The founding documents of religious organisations that had been established before the Religions Act were to be amended to conform to the Act. Until so amended, the founding documents remained operative in the part which did not contradict the terms of the Act (section 27(3)).
39. By a letter of 27 December 1999 (no. 10766-СЮ), the Ministry of Justice informed its departments that the Religions Act did not establish a special procedure for re-registration of religious organisations. Since section 27(3) required them to bring their founding documents into conformity with the Religions Act, the applicable procedure was the same as that for registration of amendments to the founding documents described in section 11(11), which provided that the procedure for registration of amendments was the same as that for registration of a religious organisation.
40. The list of documents submitted for registration was set out in section 11(5). If the governing centre or body to which the religious organisation was subordinate was located outside Russia, the religious organisation was additionally required to submit the certified articles of association of that foreign centre or body (section 11(6)).
41. Section 12(1) stated that registration of a religious organisation could be refused if:
“– the aims and activities of a religious organisation contradict the Russian Constitution or Russian laws – with reference to specific legal provisions;
– the organisation has not been recognised as a religious one;
– the articles of association or other submitted materials do not comply with Russian legislation or contain inaccurate information;
– another religious organisation has already been registered under the same name;
– the founder(s) has (have) no capacity to act.”
42. Section 12(2) provided that a reasoned refusal of registration was to be communicated to the interested party in writing. It was prohibited to refuse to register a religious organisation on the ground that its establishment was inexpedient.
43. Re-registration could be denied to a religious organisation if there existed grounds for its dissolution or for the banning of its activities, as set out in section 14(2), which established the following list of grounds for dissolution of a religious organisation and the banning of its activities.
“– breach of public security and public order, the undermining of State security;
– actions aimed at a forcible change in the foundations of the constitutional structure or destruction of the integrity of the Russian Federation;
– formation of armed units;
– propaganda of war, incitement to social, racial, ethnic or religious discord or hatred between people;
– coercion to destroy the family;
– infringement of the personality, rights and freedoms of citizens;
– infliction of harm, established in accordance with the law, to the morality or health of citizens, including the use of narcotic or psychoactive substances, hypnosis, commission of depraved and other disorderly acts in connection with religious activities;
– encouragement of suicide or the refusal on religious grounds of medical assistance to persons in life or health-threatening conditions;
– interference with the receipt of compulsory education;
– coercion of members and followers of a religious association and other persons to alienate their property for the benefit of the religious association;
– hindering a citizen from leaving a religious association by threatening harm to life, health, property, if the threat can actually be carried out, or by application of force or commission of other disorderly acts;
– inciting citizens to refuse to fulfil their civic duties established by law or to commit other disorderly acts.”
44. Section 27(4) in its original wording specified that the re-registration of religious organisations was to be completed by 31 December 1999. Subsequently the time-limit was extended until 31 December 2000. Following the expiry of the time-limit, religious organisations were liable for dissolution by a judicial decision issued on an application by a registration authority.
45. On 1 July 2002 a new Federal Law on the State registration of legal entities (no. 129-FZ of 8 August 2001) came into force. State registration of legal entities was delegated to the Ministry for Taxes and Duties, which was to receive, within six months, the lists and files of registered legal entities from the bodies that had previously been in charge of their registration, and to enter that information into the Unified State Register of Legal Entities (Government Regulations nos. 319 of 17 May 2002 and 438 and 441 of 19 June 2002).
46. By Regulation no. 130 of 2 February 1998, the government approved the procedure for registration of representative offices of foreign religious organisations. The Regulation defines a foreign religious organisation as an organisation established outside Russia under the laws of a foreign State (point 2). A representative office of a foreign religious organisation does not have the status of a legal entity (point 3) and may not engage in ritual and religious activities (point 5).
47. The relevant part of the Report by the Committee on the Honouring of Obligations and Commitments by member States of the Council of Europe (Monitoring Committee, doc. 9396, 26 March 2002) on the honouring of obligations and commitments by the Russian Federation stated:
“95. The Russian Constitution safeguards freedom of conscience and of religion (Article 28); the equality of religious associations before the law and the separation of church and State (Article 14), and offers protection against discrimination based on religion (Article 19). The law on freedom of religion of December 1990 has led to a considerable renewal of religious activities in Russia. According to religious organisations met in Moscow, this law has opened a new era, and led to a revitalisation of churches. It was replaced on 26 September 1997 by a new Federal Law on freedom of conscience and religious associations. This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions.
96. ... In February 2001, the Ombudsman on Human Rights, Oleg Mironov, also acknowledged that many section of the 1997 Law on freedom of conscience and religious associations do not meet Russia’s international obligations on human rights. According to him, some of its clauses have led to discrimination against different religious faiths and should therefore be amended.
97. In its preamble the law recognises ‘the special role of Orthodoxy in the history of Russia and in the establishment and development of its spiritual and cultural life’ and respects ‘Christianity, Islam, Buddhism, Judaism and other religions constituting an integral part of the historical heritage of the peoples of Russia’. ...
98. According to the regulations by the Ministry of Justice – responsible for the implementation of the Law on freedom of conscience and religious associations – religious organisations established before the law came into force (26 September 1997) had to re-register before 31 December 2000.
99. The registration process was finally completed on 1 January 2001 as the State Duma decided to extend the deadline twice. About 12,000 religious organisations and groups have been registered, and only 200 were refused their registration, most of them because they failed to produce a complete file. Many others have, for a variety of reasons, failed to register. The Minister of Justice, Mr Chaika, strongly rejected allegations that the Orthodox Church had exerted pressure on the Ministry to prevent some religious organisations from obtaining their registration. Mr Chaika also indicated that experts of the Ministry had ‘closely examined’ the status of The Salvation Army and the Jehovah’s Witnesses, and had come to the conclusion that nothing prevented [their] registration at the federal level.
100. The Salvation Army, which feeds around 6,000 Russians every month in the winter, has had to waste tens of thousands of dollars in legal fights over registration, and the Catholic church (as well as the Jewish community) has had trouble getting visas for its foreign clergy. Some other religious organisations have also been prevented from being registered at the local level: the Adventist Church, the Pentecostal Church, the Baptists, the Evangelist Church and other churches in particular in Tatarstan, in the region of Rostov and in Vladimir oblast. These religious organisations also voiced complaints that they had serious difficulties to settle, to build or buy their places of worship, or to recover confiscated properties. Some among them – e.g., the True Orthodox Church, the Union of Evangelists Pentecotists – have claimed that they suffered from repeated harassment by the authorities.
101. Indeed, there have been cases where, even if a religious organisation had re-registered nationally, local authorities created obstacles. ...
...
103. Although on 22 February 2001, the Russian Justice Ministry finally re-registered The Salvation Army in Russia, at federal level, registration had been constantly denied to the Moscow chapter of this religious organisation by the Chief Directorate of the Ministry of Justice in Moscow, and appeals to the various courts in Moscow failed. Moreover, in April 2001, liquidation procedures were put in place to close down Salvation Army Corps and social programmes within Moscow, and on 11 September 2001 the Tagansk[iy] intermunicipal court ruled that the Moscow chapter was subject to liquidation on the basis of section 27 of the 1997 Federal Law. (It provides for the liquidation of the legal entity that did not re-register by the 31 December 2000 deadline.)
104. The co-rapporteurs are very surprised and puzzled by the decision to ban the operations of The Salvation Army in Moscow, and they would highly appreciate the clarification of this matter by the Russian authorities. In this respect, they refer to the Monitoring Committee’s call on Russia of 6 September 2001 to ensure that The Salvation Army enjoys the same rights as it has in other member States of the Council of Europe, including the right to be registered in Moscow. During their fact-finding visit in November 2001, the co-rapporteurs used every opportunity to stress the need for a solution, and the potential embarrassment this problem may cause for Russia.”
48. Resolution 1277 (2002) on the honouring of obligations and commitments by the Russian Federation, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted as follows:
“8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities:
...
xiv. the Assembly regrets the problems of The Salvation Army and Jehovah’s Witnesses in Moscow, but welcomes the decision of the Russian authorities to ensure that the problem of local discrimination and harassment of these religious communities be brought to an end;
...”
49. Resolution 1278 (2002) on Russia’s Law on religion, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted, in particular, the following:
“1. The new Russian Law on religion entered into force on 1 October 1997, abrogating and replacing a 1990 Russian law – generally considered very liberal – on the same subject. The new law caused some concern, both as regards its content and its implementation. Some of these concerns have been addressed, notably through the judgments of the Constitutional Court of the Russian Federation of 23 November 1999, 13 April 2000 and 7 February 2002, and the religious communities’ re-registration exercise at federal level successfully completed by the Ministry of Justice on 1 January 2001. However, other concerns remain.
...
5. Moreover, some regional and local departments of the Ministry of Justice have refused to (re)register certain religious communities, despite their registration at federal level. The Federal Ministry of Justice does not seem to be in a position to control these regional and local departments in accordance with the requirements of the rule of law, preferring to force religious communities to fight these local departments over registration in the courts rather than taking remedial action within the Ministry. The case of the Moscow branch of The Salvation Army deserves particular attention in this respect, and should lead to an internal disciplinary inquiry by the Federal Ministry of Justice into the workings of its Moscow department. The Moscow Department of Justice tried to close down this branch of The Salvation Army (despite federal registration), for allegedly failing to re-register by the law’s deadline. The Constitutional Court ruled in favour of The Salvation Army on 7 February 2002.
6. Therefore, the Assembly recommends to the Russian authorities that:
i. the Law on religion be more uniformly applied throughout the Russian Federation, ending unjustified regional and local discrimination against certain religious communities and local officials’ preferential treatment of the Russian Orthodox Church, and in particular their insisting in certain districts that religious organisations obtain prior agreement for their activities from the Russian Orthodox Church;
ii. the Federal Ministry of Justice become more proactive in resolving disputes between its local/regional officials and religious organisations before disputes are brought before the courts, by taking remedial action within the Ministry in case of corruption and/or incorrect implementation of the Law on religion, thus rendering it unnecessary to take such cases to the courts;
...”
VIOLATED_ARTICLES: 11
9


ITEMID: 001-81063
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF İNCİ (NASIROĞLU) v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: David Thór Björgvinsson
TEXT: 5. The applicant was born in 1955 and lives in Yalova.
6. In 1975 the Ministry of Defence decided to expropriate a plot of land (plot no. 976), measuring 808 m2 in the Karaköprü area in Şanlıurfa which belonged to the applicant. On 29 September 1975 the amount of compensation for the expropriation was blocked in the Diyarbakır Central Bank, but the applicant never received this sum.
7. On 10 May 1977 the applicant filed an action with the Şanlıurfa Civil Court of General Jurisdiction and requested increased compensation.
8. On 1 April 1979, while the case for increased compensation was pending, the Ministry of Defence informed the Şanlıurfa Land Registration Office that they renounced their decision to expropriate the land in question. The applicant did not pursue her case and in 1982 the first-instance court decided to discontinue the proceedings.
9. In 1988 the Ministry of Defence brought an action before the Şanlıurfa Civil Court of General Jurisdiction and requested the transfer of the title deed to plot no. 976 to the Treasury. On 28 December 1988 the court accepted the request. The applicant was not notified of the proceedings or of the judgment delivered by the first-instance court. On 15 February 1989 the court's decision was announced in a newspaper. Subsequently, on 4 May 1989 the plot was registered in the name of the Treasury.
10. On 28 December 1998, after having learned about the transfer of the title deed of plot no. 976 to the Ministry of Defence, the applicant brought an action before the Şanlıurfa Civil Court of General Jurisdiction and requested compensation for the unlawful seizure of her property. She submitted, inter alia, that she had not been notified of the case lodged by the Ministry of Defence in 1988 or of the judgment delivered by the first-instance court. She argued that the transfer of her title deed was therefore unlawful. In reply, the Ministry of Defence argued that as they had been in actual possession of the land since 1974, the applicant's action for compensation had to be rejected as being time-barred.
11. During the proceedings, the first-instance court ordered an expert report in order to determine the value of the land in question. On 15 September 1999 the first-instance court held an on-site inspection. It was observed that the Ministry of Defence had surrounded the plot in question with a fence. On 20 September 1999 a committee of experts submitted a report to the first-instance court. In their report, the experts determined that the value of plot no. 976 would be 34,934,046,448 Turkish liras (TRL) (approximately 73,000 euros (EUR)).
12. On 19 April 2000 the Şanlıurfa Civil Court of General Jurisdiction dismissed the applicant's case. It found that the Ministry of Defence had been in actual possession of plot no. 976 since 1974 and therefore held that the case was introduced out of the statutory timelimit as provided in Article 38 of the Expropriation Act (Law no. 2942).
13. On 26 September 2000 the Court of Cassation found the applicant's grounds for appeal unfounded and upheld the judgment of the first-instance court. The applicant's request for rectification was further rejected on 15 November 2000.
14. On 10 April 2003 the Constitutional Court annulled Article 38 of Law no. 2942.
15. A full description of the domestic law may be found in Börekçioğulları (Çökmez) and Others v. Turkey (no. 58650/00, §§ 23-29, 19 October 2006).