ITEMID: 001-61637
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: GRANDCHAMBER
DATE: 2004
DOCNAME: CASE OF GORZELIK AND OTHERS v. POLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 11
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 12. The applicants were born in 1971, 1940 and 1944 respectively. All three live in Poland; Mr Gorzelik and Mr Sowa in Katowice, and Mr Kołodziejczyk in Rybnik.
13. Silesia (Śląsk) is a historic region that is now in south-western Poland. It was originally a Polish province that became a possession of the Bohemian Crown in 1335. It passed with that Crown to the House of Habsburg in 1526, and was taken over by Prussia in 1742 under the Treaty of Berlin.
After the First World War, the 1919 Treaty of Versailles provided for a plebiscite to be held to determine if Upper Silesia should remain German or pass over to Poland. The results of the plebiscite in 1921 were favourable to Germany except in the easternmost part of Upper Silesia. After an armed uprising of the Poles in 1922, the League of Nations agreed to a partition of the territory; the larger part of the industrial area, including Katowice, passed over to Poland.
In the aftermath of the Munich Pact of 1938, most of Czech Silesia was divided between Germany and Poland. After the German conquest of Poland in 1939, the whole of Polish Silesia was annexed by Germany.
After the Second World War, the pre-1938 boundary between Poland and Czechoslovakia was restored. The western boundary of Poland was moved to the Oder and Lusatian Neisse rivers. In effect, all of former German Silesia east of the Lusatian Neisse was incorporated into Poland, while only a small sector of Lower Silesia west of the Neisse remained within the former East German Land of Saxony.
14. According to some linguists, although the Polish language is relatively unaffected by regional variations, it is possible to identify at least two regional varieties: Kashubian and Silesian. At the hearing, one of the applicants, Mr Gorzelik, described Silesian as a still uncodified language that was a mixture of Czech, German and Polish.
15. From 2 May to 8 June 2002 a census – the National Population and Housing Census – was carried out in Poland. Its purpose was to gather data relating to the distribution of the population, demographic and social factors, employment, standards of living and housing. It also addressed issues relating to citizenship and nationality. One of the questions relating to nationality gave the following definition:
“Nationality is a declared (based on a subjective feeling) individual feature of every human being, expressing his or her emotional, cultural or genealogical (relating to parents' origin) link with a specific nation.”
According to the census report prepared by the Central Statistical Office (Główny Urząd Statystyczny), 36,983,700 people (96.74% of the population) declared themselves Polish nationals. 471,500 persons (1.23% of the population) declared a non-Polish nationality, including 173,200 persons who declared that they were “Silesians”.
16. On an unspecified date the applicants, who describe themselves as “Silesians”, decided together with 190 other persons to form an association (stowarzyszenie) called “Union of People of Silesian Nationality” (Związek Ludności Narodowości Śląskiej). The founders subsequently adopted a memorandum of association. The applicants were elected to the provisional management committee (Komitet Założycielski) and were authorised to proceed with the registration of the association.
17. On 11 December 1996 the applicants, acting on behalf of the provisional management committee of the “Union of People of Silesian Nationality”, applied to the Katowice Regional Court (Sąd Wojewódzki) for their association to be registered. They relied on, inter alia, section 8(2) of the Law on associations (Prawo o stowarzyszeniach) of 7 April 1989. They produced the memorandum of association along with the other documents required by that Law.
18. The relevant general provisions of the memorandum of association read as follows:
“1. The present association shall be called the “Union of People of Silesian Nationality” (hereafter referred to as “the Union”).
2. The Union shall conduct its activity within the territory of the Republic of Poland; it may establish local branches.
...
6. (1) The Union may join other domestic or international organisations if the aims pursued by [the latter] correspond to the aims pursued by the Union.”
19. The aims of the association and the means of achieving them were described as follows:
“7. The aims of the Union are:
(1) to awaken and strengthen the national consciousness of Silesians;
(2) to restore Silesian culture;
(3) to promote knowledge of Silesia;
(4) to protect the ethnic rights of persons of Silesian nationality; [and]
(5) to provide social care for members of the Union.
8. The Union shall accomplish its aims by the following means:
(1) organising lectures, seminars, training courses and meetings, establishing libraries and clubs, and carrying out scientific research;
(2) organising cultural and educational activities for members of the Union and other persons;
(3) carrying out promotional and publishing activities;
(4) promoting the emblems and colours of Silesia and Upper Silesia;
(5) organising demonstrations or [other] protest actions;
(6) organising sporting events ... and other forms of leisure activities;
(7) setting up schools and other educational establishments;
(8) cooperating with other organisations;
(9) conducting business activities for the purpose of financing the aims of the Union – this may include establishing commercial entities and cooperating with other [commercial] entities;
(10) establishing other entities or [legal] persons with a view to achieving the aims of the Union; and
(11) conducting any other activities.”
20. Paragraphs 9 and 10 dealt with membership. They read as follows:
9. There shall be two categories of members of the Union, namely ordinary members and supporting members.
10. Any person of Silesian nationality may become an ordinary member of the Union.”
21. The relevant part of paragraph 15 of the memorandum of association read as follows:
“A person shall cease to be a member of the Union if:
...
(2) (a) on a reasoned motion by the Board, the Management Committee decides to deprive him of his membership;
(b) the relevant motion of the Board may be based on such reasons as the fact that the member in question has not fulfilled the requirements set out in the memorandum of association for becoming a member or has failed to perform the duties of members as specified in paragraph 14.”
22. Paragraph 30 provided:
“The Union is an organisation of the Silesian national minority.”
23. Subsequently the Katowice Regional Court, pursuant to section 13(2) of the Law on associations (see paragraph 39 below), served a copy of the applicants' application, together with copies of the relevant enclosures, on the Governor (Wojewoda) of Katowice.
24. On 27 January 1997 the Governor of Katowice, acting through the Department of Civic Affairs (Wydział Obywatelski), submitted his comments on the application to the court. Those comments contained lengthy arguments against allowing the association to be registered, the main thrust of which was as follows:
“(i) It cannot be said that there are 'Silesians' [Ślązak], in the sense of representatives of a distinct 'Silesian nationality'. 'Silesian' is a word denoting a representative of a local ethnic group, not a nation. This is confirmed by paragraph 7 (1) of the memorandum of association, which aims merely to 'awaken and strengthen the national consciousness of Silesians'. ...
(ii) The social research relied on by the applicants to demonstrate the existence of a 'Silesian nationality' does not accord with numerous other scientific publications. Polish sociology distinguishes between two concepts of 'homeland', namely a 'local homeland' and an 'ideological homeland'. In German, this distinction is expressed by the terms Heimat (local homeland) and Vaterland (ideological homeland). The research relied on by the applicants merely refers to the self-identification of the inhabitants of Silesia, indicating that their local self-identification takes precedence over their national self-identification. ...
(iii) Paragraph 10 of the memorandum of association states that any person of Silesian nationality may become an ordinary member of the association, but does not clearly specify the criteria for establishing whether or not a given person fulfils this requirement. This absence of unambiguous criteria is contrary to section 10(1) (i) and (iv) of the Law on associations. Moreover, it renders paragraph 15 (2) (b) of the memorandum unlawful, for that provision allows the Management Committee to deprive a person of his membership in the event of failure to satisfy the conditions set out in the memorandum of association. ...
(iv) Paragraph 30 of the memorandum of association, which calls the Union an 'organisation of the Silesian national minority', is misleading and does not correspond to the facts. There is no basis for regarding the Silesians as a national minority. Recognising them as such would be in breach of Articles 67 § 2 and 81 § 1 of the [former] Constitution, which guarantee Polish citizens equal rights. In particular, under the relevant provisions of the Law on elections to the Sejm[] of 28 May 1993 [Ordynacja wyborcza do Sejmu Rzeczypospolitej Polskiej – 'the 1993 Elections Act'], registration of the Union would give it a privileged position in terms of distribution of seats in Parliament. The Union would obtain rights and privileges guaranteed to national minorities in respect of education in their native language and access to the media. Registration of the association would be to the detriment of other ethnic groups in Poland, such as Cracovians [Krakowiacy], Highlanders [Górale] and Mazurians [Mazurzy]; this would amount to a return to the tribalism [podziały plemienne] which existed prior to the formation of the Polish State. ...
(v) We therefore propose that the memorandum of association should be amended so as to reflect the above observations. In particular, the misleading name of the association should be changed, the criteria for membership should be set out in an unambiguous manner and paragraph 30 should be deleted. In our opinion, these are the conditions for registration of the association.”
25. On 13 March 1997 the applicants filed a pleading in reply to those arguments. They asserted that the fact that the majority of Poles failed to recognise the existence of a Silesian nation did not mean that there was no such nation. They cited various scientific publications and went on to explain that the fact that the Silesians formed a distinct group had already been acknowledged at the end of the First World War; moreover, the Silesians had always sought to preserve their identity and had always formed a distinct group, regardless of whether Upper Silesia had belonged to Germany or to Poland. Consequently, any comparison between them and the Cracovians or Highlanders was totally unjustified, because the latter groups neither regarded themselves as national minorities, nor had they ever been perceived as such in the past. Finally, the applicants cited certain letters of the Ministry of the Interior that had been published by the press and which explained that the National and Ethnic Minorities Bill had explicitly stated that a “declaration that a person belongs to a minority shall not be questioned or verified by the public authorities”.
26. On 9 April 1997 the Governor of Katowice filed a pleading with the court. He maintained his previous position. On 14 April 1997 he produced two letters from the Ministry of the Interior (dated 4 February and 10 April 1997 respectively, and addressed to the Department of Civic Affairs of the Office of the Governor of Katowice). The relevant parts of the letter of 4 February 1997 read:
“We share your doubts as to whether certain inhabitants of Silesia should be deemed to be a national minority. We therefore suggest that you submit your observations to the court, indicating those doubts, and that you ask the court to grant you leave to join the proceedings as a party.
We suggest that you rely on the fact that the [Council of Europe] Framework Convention for the Protection of National Minorities [('the Framework Convention')] has not been ratified by Poland, so that its provisions [do not apply in the domestic legal system]. ...
In our view, neither historical nor ethnographical circumstances justify the opinion that the inhabitants of Silesia can be recognised as a national minority.”
The relevant parts of the letter of 10 April 1997 read as follows:
“... The arguments advanced by the provisional management committee of the association [in their pleading of 13 March 1997] do not contain any new elements; [in particular] ... the [Framework Convention] does not constitute the law applicable in Poland.
Likewise, the letters of the Ministry of the Interior [on the interpretation of the National and Ethnic Minorities Bill] do not change the situation.
The sense of belonging to a nation falls within the realm of personal liberties; it does not in itself entail any legal consequences. [By contrast,] the formation of an organisation of a national minority is a legal fact which entails legal consequences such as, for instance, those referred to in the 1993 Elections Act.
In the circumstances, the registration of the association called 'Union of People of Silesian Nationality' could be allowed provided that the existence of such a nation had been established.”
27. On 28 April 1997 the applicants submitted a further pleading to the court. They criticised the arguments of the Ministry of the Interior, pointing out that the latter had failed to indicate any legal basis for rejecting their application. In particular, the authorities had not shown that any provision of the memorandum of association was contrary to the law, whereas, under section 1(2) of the Law on associations, “the [exercise of the] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others”. Lastly, the applicants stated that they would not amend the memorandum of association in the manner proposed by the authorities, in particular in respect of the name of the association and the content of paragraph 30. They agreed, however, to amend paragraph 10 of the memorandum and rephrased it as follows:
“Everyone who is a Polish citizen and who has submitted a written declaration stating that he is of Silesian nationality may become an ordinary member [of the Union].”
28. On 23 May 1997 the Katowice Regional Court held an “explanatory hearing” (posiedzenie wyjaśniające) aimed at obtaining comments and clarifications from the parties and settling the matters in dispute. The relevant parts of the minutes of that hearing read as follows:
“The representatives of the [Governor] declared that the deletion of paragraph 30 from the memorandum of association would not be sufficient, and that they also required a change in the name of the association.
They referred to the arguments set out in the pleadings filed in the case.
The representatives of the applicants declared that paragraph 30 was modelled on a similar provision to be found in the statutes of the Socio-Cultural Society of Germans of the province of Katowice. ...
The President urged the representatives of the [parties] to make certain concessions in their positions.
He proposed to the provisional management committee that, for example, they delete paragraph 30 of the memorandum. However, the representatives of the committee absolutely refused to do away with this provision.
The representatives of the [Governor] also adopted a harder position, in that they demanded not only the deletion of paragraph 30, but also a change of the name of the association.
The two sides engaged in a polemic as to whether or not Silesians should be recognised as a nation or nationality. ...
The representatives of the [Governor] argued with the applicants, claiming there were no grounds for ascribing Silesian nationality to people.
[The hearing was adjourned and subsequently resumed]
At this point the representative of the [Governor] declared that, if the applicants were to delete paragraph 30 from the memorandum, the [Governor] would not object to registration of the association.
J. Gorzelik reacted vehemently to this proposal, but the President told him to think it over.
In connection with the above, the [applicants] asked to be given a time-limit within which they could react in writing to this suggestion and consider the [Governor's] proposal.
The Court decided to allow [the applicants] ten days in which to react to the proposal of the [Governor] ...”
29. On 27 May 1997 the applicants lodged a pleading with the court, maintaining that in the course of the above-mentioned hearing the authorities had “de facto acknowledged that a Silesian nation exists”, in particular by accepting the name of the association and certain provisions of the memorandum (namely paragraph 7 (1) and (4) and paragraph 10). They stressed, however, that the authorities' insistence on the removal of paragraph 30 was “unjustified and illogical” and, consequently, refused to alter or delete that provision.
Later, on 16 June 1997, the Governor of Katowice submitted his final pleading to the court, opposing the registration of the association.
30. On 24 June 1997 the Katowice Regional Court, sitting with a single judge and in camera, granted the applicants' application and registered their association under the name “Union of People of Silesian Nationality”. The relevant reasons for that decision read as follows:
“... There was a dispute between [the parties] over the concepts 'nation' and 'national minority'. Finally [the authorities concerned] pleaded that the application for registration of the association should be rejected.
This Court has found that the application is well-founded [and as such should be granted].
In the preamble to the Law on associations, the legislature guarantees [everyone] a cardinal right – the right to freedom of association – which enables citizens, regardless of their convictions, to participate actively in public life and express different opinions, and to pursue individual interests.
Freedom of association is one of the natural rights of a human being. [For this reason,] section 1(1) of the Law on associations does not establish the right to freedom of association but merely sets out the manner and limits of its exercise, thus reflecting Poland's international obligations.
Under section 1(2) of the Law on associations, the right to form an association may be subject only to such limitations as are prescribed by law either in the interests of national security or public safety, or in the interests of public order, or for the protection of health and morals, or for the protection of the rights and freedoms of others. No other restrictions may be placed on the exercise of the right to associate with others.
As recently as 16 June 1997, in their pleading, the authorities advanced the argument that the registration of the present association would infringe the rights and freedoms of others because it would result in an unequal treatment of other local communities and would diminish their rights.
This argument is unconvincing, since it does not emerge from the content of the memorandum of association that the future activities of the association are aimed at [diminishing] the rights and freedoms of others.
Under paragraph 7 of the memorandum of association, the aims of the association are[, for example,] to awaken and strengthen the national consciousness of Silesians, to restore Silesian culture, to promote knowledge of Silesia and to provide social care for members of the association. None whatsoever of these aims is directed against the rights and freedoms of others. The means to be used for accomplishing these aims are not directed against the rights and freedoms of others either. Those means include organising lectures and seminars, carrying out scientific research, establishing libraries, organising cultural and educational activities for members and other persons, carrying out promotional and publishing activities, promoting the emblems and colours of Silesia and Upper Silesia, organising demonstrations and protest actions, organising sporting events, setting up schools and other educational establishments, conducting business activities and cooperating with other organisations.
In sum, the argument that the association would infringe the rights and freedoms of others must definitely be rejected. Moreover, it should be noted that this argument refers to [a mere possibility] because only practical action taken by the association could possibly demonstrate whether, and if so to what extent, the [future] activities of the association would require taking measures aimed at protecting the rights of others.
As regards the terms 'Silesian nationality' or 'Silesian national minority', the problems involved in the determination of their proper meaning cannot be examined by this Court in detail.
This Court must, pursuant to section 13(1) of the Law on associations, rule on the present application within a period not exceeding three months from the date on which it was lodged. It is therefore not possible [in the course of the present proceedings] to determine such complicated issues (which involve problems falling within the sphere of international relations).
It is, however, possible to assume, for the purposes of making a ruling in these proceedings, that the nationality of an individual is a matter of personal choice; moreover, it is a matter of common knowledge that the original inhabitants of Silesia constitute a minority in Upper Silesia – at least for anyone who has ever spent some time in this region and has been willing to perceive this fact. After all, the authorities, although they 'rend their garments' [sic] complaining that the applicants dare establish an association, do not contest the fact that [the Silesians] are an ethnic minority.
In view of the foregoing, this Court, finding that the provisional management committee has complied with the requirements of sections 8(4), 12 and 16 read in conjunction with section 13(2) of the Law on associations and Article 516 of the Code of Civil Procedure, holds as in the operative part of the decision.”
31. On 2 July 1997 the Governor of Katowice lodged an appeal with the Katowice Court of Appeal (Sąd Apelacyjny), asking that the first-instance decision be quashed, that the case be remitted to the court of first instance, and that expert evidence be obtained in order to determine the meaning of the terms “nation” and “national minority”. In his appeal, he alleged that the court of first instance had violated sections 1(1) and 2 of the Law on associations and unspecified provisions of the Code of Civil Procedure. The relevant grounds of the appeal read as follows:
“[The court of first instance] formally recognised and legally sanctioned the existence of a distinct Silesian nation constituting a 'Silesian national minority'.
In our opinion, such an important and unprecedented ruling, which is of international significance, could not and should not be given without defining the concepts of 'nation' and 'national minority'. The Regional Court, leaving this issue aside – merely because of certain statutory time-limits – simplified the proceedings in an unacceptable manner. This led, in itself, to a failure on the part of the court to establish all the circumstances relevant to the outcome of the case and, furthermore, provided a sufficient basis for this appeal.
The appellant admits that Polish law does not define the terms 'nation' and 'national minority'. This, however, does not justify the conclusion of the Regional Court that 'the nationality of an individual is a matter of personal choice'.
The appellant does not contest the right of a person to decide freely to belong to a national minority; however, a precondition for making such a choice is the existence of a 'nation' with which that person identifies himself.
The decision appealed against proclaims the opinion that the subjective feelings of the person concerned suffice for the purposes of creating a 'nation' or a 'nationality'. Having regard to the potential social repercussions of such an approach, it is not possible to agree with it.
In these circumstances, prior to making any decision on the registration of the 'Union of People of Silesian Nationality', it is necessary to determine whether a 'Silesian nation' exists – a distinct, non-Polish nation – and whether it is admissible in law to create a 'Silesian national minority'.
In the appellant's opinion, there are no objective arguments in favour of the finding that a distinct Silesian nation exists. In case of doubt, ... this question should be resolved by obtaining evidence from experts.
In the contested decision, the lower court focused in principle on determining whether the aims of the association and the means of accomplishing those aims were lawful. ... The appellant does not contest the majority of these aims; it must be said that such activities as restoring Silesian culture, promoting knowledge of Silesia or providing social care for members of the association are worthy of respect and support. However, these aims can be fully accomplished without the contested provision of the memorandum of association, namely paragraph 30 ... In addition, the applicants were not prevented from incorporating the above-mentioned aims into the memorandum of an existing association called 'Movement for the Autonomy of Silesia' [Ruch Autonomii Śląska], the more so as the applicants belong to influential circles of the latter organisation.
The fact that the applicants have failed to do so but [instead] are creating a new association, and are describing themselves as a 'Silesian national minority', clearly demonstrates what their real objective is. In fact, their objective is to circumvent the provisions of the 1993 Elections Act, under which parties or other organisations standing in elections must reach a threshold of 5% or 7% of votes in order to obtain seats in Parliament. ...
Legal acts – including the act of adopting a memorandum of association – are null and void under Article 58 § 1 of the Civil Code if they aim at evading or circumventing the law. According to legal theory, defects in legal acts, as defined in Article 58 of the Civil Code, may constitute a basis for refusing to register an association.
Sanctioning the rights of the 'Silesian national minority' amounts to discrimination against other regional and ethnic groups or societies. This will be the case at least as regards electoral law and will be contrary to Article 67 § 2 of the Constitution. ...”
32. The Katowice Court of Appeal heard the appeal on 24 September 1997. The prosecutor at the Court of Appeal (Prokurator Apelacyjny) appeared at the hearing and asked the court to grant him leave to join the proceedings as a party intervening on behalf of the Governor of Katowice. Leave was granted. The court next heard addresses by the appellant, the prosecutor (who requested the court to set aside the first-instance decision and reject the applicants' application) and the representative of the applicants. On the same day the court set aside the first-instance decision and rejected the applicants' application for their association to be registered. The reasons for that decision included the following:
“... The lower court, by registering the association under the name 'Union of People of Silesian Nationality', approved paragraph 30 of the memorandum of association, which states that the Union is an organisation of the Silesian national minority. We therefore agree with the appellant that the Union, on the basis of the above-mentioned paragraph, would have the right to benefit from the statutory privileges laid down in section 5 of the 1993 Elections Act. ...
Furthermore, recognising the Silesians as a national minority may also result in further claims on their part [for privileges] granted to national minorities by other statutes. ...
Contrary to the opinion expressed by the lower court, it is possible to determine whether or not the Silesians constitute a national minority in Poland; it is not necessary to obtain expert evidence in that connection.
Under Article 228 § 1 of the Code of Civil Procedure, facts that are common knowledge, that is, those which every sensible and experienced citizen should know, do not need to be proved. Common knowledge includes historical, economic, political and social phenomena and events.
It is therefore clear that at present no legal definition of 'nation' or 'national minority' is commonly accepted in international relations. ...
On the other hand, an 'ethnic group' is understood as a group which has a distinct language, a specific culture and a sense of social ties, is aware of the fact that it differs from other groups, and has its own name.
Polish ethnographic science of the nineteenth and twentieth centuries describes 'Silesians' as an autochthonous population of Polish origin residing in Silesia – a geographical and historical region. At present, as a result of political and social changes, the term 'Silesians' refers equally to immigrants who have been living in this territory for several generations and who identify themselves with their new region of residence. It also refers to the German-speaking population, linked with Silesia by [such factors as] birth, residence and tradition (see the encyclopaedia published by the Polish Scientific Publishers in 1996). ...
The applicants derive the rights they claim from the principles set out in the [Framework Convention], stating that every person belonging to a national minority has the right freely to choose to belong or not to belong to such a minority. ... In relying on European standards, they fail, however, to remember that a national minority with which a given person identifies himself must exist. There must be a society, established on the basis of objective criteria, with which this person wishes to identify. No one can determine his national identity independently of a fundamental element, which is the existence of a specific nation.
It emerges from the above-mentioned definition of a 'nation' that a nation is formed in a historical process which may last for centuries and that the crucial element which forms a nation is its self-identification, that is to say its national awareness established on the basis of the existing culture by a society residing on a specific territory.
Certainly, the Silesians belong to a regional group with a very deep sense of identity, including their cultural identity; no one can deny that they are distinct. This does not, however, suffice for them to be considered a distinct nation. They have never commonly been perceived as a distinct nation and they have never tried to determine their identity in terms of [the criteria for a 'nation']. On the contrary, the history of Silesia unequivocally demonstrates that the autochthonous inhabitants [of this region] have preserved their distinct culture and language (the latter having Polish roots from an ethnic point of view), even though their territories were not within the borders of the Polish State and even though they were under strong German influence. They are therefore Silesians – in the sense of [inhabitants of the] region, not in the sense of [their] nationality. Thus, Upper Silesia, in its ethnic roots [sic], remained Polish; that was, without a doubt, demonstrated by three uprisings. The role played by the Silesians in building and preserving the Polish character of Silesia, even though they remained isolated from their homeland, is unquestionable.
However, a given nation exists where a group of individuals, considering itself a 'nation', is in addition accepted and perceived as such by others. In the common opinion of Polish citizens, both the Silesians and other regional groups or communities [for example, the Highlanders or the Mazurians] are perceived merely as local communities. In the international sphere, Poland and, similarly, France and Germany are perceived as single-nation States, regardless of the fact that there exist distinct ethnic groups (for example, the inhabitants of Alsace or Lorraine in France, or the inhabitants of Bavaria in Germany).
On the whole, sociologists agree that the Silesians constitute an ethnic group and that the autochthonous inhabitants [of Silesia] do have some features of a nation but that those features are not fully developed. That ... means that the awakening of their national identity is still at a very early stage. A nation exists only when there are no doubts as to its right to exist. ... In Poland, national minorities constitute only a small part of society, that is to say about 3 to 4%. They include – and this has never been denied – Germans, Ukrainians, Belarusians, Lithuanians, Slovaks, Czechs, Jews, Roma, Armenians and Tatars.
In the Polish tradition, national minorities are perceived as groups linked to a majority outside Poland; in other words, a minority is an ethnic group that has support amongst a majority [residing] abroad. Moreover, traditionally, our society has not considered that groups which preserve a distinct culture but which do not belong to any State can be deemed to be national minorities. Accordingly, for a long time the Roma people were regarded as an ethnic, not a national group. ...
The applicants' opinion that the mere choice of the individual concerned is decisive for his nationality is reflected in paragraph 10 of the memorandum of association. Acceptance of this opinion would consequently lead to a situation in which the aims pursued by the association could be accomplished by groups of members who did not have any connection or links with Silesia and who had become members of the Union solely to gain an advantage for themselves. Undoubtedly, such groups of members cannot [be allowed] to accomplish the aims of an association of a national minority. ...
The applicants have relied on the results of sociological research carried out in 1994 in the province of Katowice. Indeed, the research demonstrates that 25% of persons requested to declare their ethnic and regional identity replied that they were Silesians. However, it transpires from [the material collected in the course of another piece of sociological research of 1996 which was submitted by the applicants during the appeal hearing] that two years later the number of persons who considered themselves to be Silesians had decreased to 12.4% and that, moreover, the majority of inhabitants of the province of Katowice considered themselves to be Poles (that is, 81.9%, including 18.1% who stated that they were 'Polish Silesians'; only 3.5% of inhabitants considered themselves to be Germans, including 2.4 % who stated that they were 'German Silesians').
In the light of the above research, it cannot be said that such a poorly established self-identity of a small (and decreasing) group of Silesians, as demonstrated by their refusal to declare that they belong to the [Polish] nation, provides a basis for recognising that all Silesians (who have lived in Silesia for generations and state that they belong to the Polish nation) constitute a separate nation. This would be contrary to the will of the majority, a will well known to the applicants.
We therefore find that the appellant is right in submitting that granting the applicants' application for their association to be registered is unjustified because the memorandum of association is contrary to the law, namely Article 5 of the Civil Code. Indeed, the application is aimed at registering an organisation of a minority which cannot be regarded as a national minority and at circumventing the provisions of the 1993 Elections Act and other statutes conferring particular privileges on national minorities. Granting such a request could lead to granting unwarranted rights to the association in question. This would, moreover, give it an advantage in relation to other regional or ethnic organisations.
In these circumstances, in accordance with section 14 of the Law on associations and Article 58 of the Civil Code, read in conjunction with Articles 386 § 1 and 13 of the Code of Civil Procedure and section 8 of the Law on associations, the appeal must be allowed.”
33. On 3 November 1997 the applicants lodged an appeal on points of law (kasacja) with the Supreme Court (Sąd Najwyższy). They alleged that the Katowice Court of Appeal had wrongly interpreted the relevant provisions of the Law on associations and that the impugned decision had contravened Article 84 of the Constitution, Article 22 of the International Covenant on Civil and Political Rights and Article 11 of the Convention. Their arguments are summarised as follows:
“Since a refusal to register an association could be justified only if an activity specified in the memorandum of association was banned by the law, the principal issue to be determined by the Court of Appeal was whether the memorandum of the applicants' association complied with the statutory requirements. That was clearly not the case and the court's fear that the registration of the applicants' association would in future lead to discrimination against other national or ethnic minorities was based on mere speculation. In any event, the Law on associations [in sections 8(2), 25 et seq.] provided for various means whereby the activity of an association could be supervised by the competent State authorities or, in the event that its activity was unlawful, the association could be dissolved.
However, the Court of Appeal, instead of assessing the formal requirements of the registration, decided at the outset that the core issue in the proceedings was to establish whether a Silesian nation existed. It consequently went on to lay down its own arbitrary and controversial definition of 'nation' and 'national minority', and finally concluded that there was no 'Silesian nation'. It did so without any effort to obtain expert evidence in respect of such an important matter.”
34. On 27 November 1997 the Governor of Katowice filed a pleading in reply to the applicants' appeal on points of law. The relevant arguments are summarised as follows:
“The refusal to register the applicants' association was fully justified. In the course of the proceedings at first instance, the Governor eventually proposed that the applicants amend paragraph 30 of the memorandum of association and alter the name of their association by deleting the word 'nationality'. Those arguments were based on section 10(1) (i) of the Law on associations, which provides that a memorandum of association should enable the association in question to be differentiated from other associations. This means that the name of an association should not be misleading. Since the requirement set out in the above-mentioned section was not complied with, the refusal to register the applicants' association was justified under section 14(1).
It must be stressed that even in the explanatory report to the [Framework Convention] it is clearly stated that the individual's subjective choice to belong to a national minority is inseparably linked to objective criteria relevant to the person's identity. That means that a given nation must exist prior to the individual making a decision to belong to this nation. That being so, the applicants' application for their association to be registered must be seen as a thoughtless and incomprehensible attempt to exploit the distinct characteristics [of the Silesians] with a view to achieving political aims.”
35. On 28 November 1997 the prosecutor at the Katowice Court of Appeal filed a pleading in reply to the applicants' appeal on points of law. He submitted, among other things, that it was clear that the content of the memorandum of association was contrary to the law since it explicitly stated that the Union was an association of a national minority, and thus ignored the fact that the Silesians could not be regarded as a minority of that kind. The Silesians, being merely an ethnic group, could not exercise the rights conferred on national minorities, in particular those referred to in the 1993 Elections Act.
36. On 18 March 1998 the Administrative, Labour and Social Security Division of the Supreme Court, sitting as a panel of three judges, dismissed the applicants' appeal on points of law. The relevant parts of the reasons for this decision read as follows:
“... [A] necessary prerequisite for the registration of an association is the conformity of its memorandum of association with the entire domestic legal order, including conformity with [the provisions of ] international treaties ratified by Poland.
In the present case the Court of Appeal had no doubts as to the lawfulness of the aims pursued by [the applicants'] association, but refused to register the association for the sole reason that [the applicants], in the memorandum of association, used such terms as 'Silesian nation' and 'Silesian national minority'.
We agree with the opinion [of the Court of Appeal]. 'National minority' is a legal term (see Article 35 of the Constitution of 2 February 1997), although it is not defined either in Polish law or in the conventions relied on in the appeal on points of law. However, the explanatory report to the [Framework Convention] states plainly that the individual's subjective choice of a nation is inseparably linked to objective criteria relevant to his or her national identity. That means that a subjective declaration of belonging to a specific national group implies prior social acceptance of the existence of the national group in question. ...
An individual has the right to choose his or her nation but this, as the Court of Appeal rightly pointed out, does not in itself lead to the establishment of a new, distinct nation or national minority.
There was, and still is, a common perception that a Silesian ethnic group does exist; however, this group has never been regarded as a national group and has not claimed to be regarded as such. ...
Registration of the association, which in paragraph 30 of its memorandum of association states that it is an organisation of a [specific] national minority, would be in breach of the law because it would result in a non-existent 'national minority' taking advantage of privileges conferred on [genuine] national minorities. This concerns, in particular, the privileges granted by the 1993 Elections Act ... such as an exemption from the requirement that a party or other organisation standing in elections should get at least 5% of the votes, which is a prerequisite for obtaining seats in Parliament ... [or] ... privileges in respect of the registration of electoral lists; thus, it suffices for an organisation of a national minority to have its electoral lists registered in at least five constituencies [whereas the general requirement is to register an electoral list in at least half of the constituencies in the whole of Poland].
Pursuant to the relevant ruling of the Constitutional Court [Trybunał Konstytucyjny] on the interpretation of the 1993 Elections Act, ... the privileges [referred to above] are conferred on electoral committees of registered national minorities and, in case of doubt [as to whether or not an electoral committee represents a national minority], the State Electoral College may request evidence.
The simplest means of proving the existence of a specific national minority is to present a memorandum of association confirming that fact. It is true that, under the new Constitution, resolutions of the Constitutional Court on the interpretation of statutes no longer have universally binding force; however, in view of the persuasiveness of the reasons given by the Constitutional Court and the requirements of practice, [we consider that] a memorandum of association still remains basic evidence demonstrating the existence of a national minority.
Conferring on the Silesians, an ethnic group, the rights of a national minority would be contrary to Article 32 of the Constitution, stating that all persons are equal before the law, [because] other ethnic minorities would not enjoy the same rights.
The memorandum of association is contrary to section 10(1) (iv) of the Law on associations, which stipulates that a memorandum of association must set out rules concerning acquisition and loss of membership, and the rights and duties of members. Paragraph 10 of the memorandum provides that everyone who is a Polish citizen and has submitted a written declaration stating that he is of Silesian nationality may become a member of the Union, whereas paragraph 15 states that a person ceases to be a member of the Union if, inter alia, he has not fulfilled the membership requirements set out in the memorandum of association. Since no Silesian nation exists, no one would lawfully be able to become a member of the Union, because his declaration of Silesian nationality would be untrue. ...
Furthermore, it must be pointed out that the refusal to register the association does not contravene Poland's international obligations. Both the International Covenant on Civil and Political Rights ... and the Convention allow [the State] to place restrictions on the freedom of association, [in particular such as] are prescribed by law and are necessary in a democratic society in the interests of national security or public safety or for the protection of health and morals or for the protection of the rights of others.
It is contrary to public order to create a non-existent nation that would be able to benefit from the privileges conferred solely on national minorities. Such a situation would also lead to the infringement of the rights of others, not only national minorities but also all other citizens of Poland. Granting privileges to a [specific] group of citizens means that the situation of the other members of society becomes correspondingly less favourable.
This is particularly so in the sphere of election law: if certain persons may become members of Parliament [because of their privileged position], it means that other candidates must obtain a higher number of votes than what would be required in the absence of privileges [in that respect].
It also has to be noted that the essential aims of the association can be accomplished without the contested provisions of the memorandum and without the [specific] name of the association. Under the provisions of the Constitution of the Republic of Poland, national and ethnic minorities have equal rights as regards their freedom to preserve and develop their own language, to maintain their customs and traditions, to develop their culture, to establish educational institutions or institutions designed to protect their religious identity and to participate in the resolution of matters relating to their cultural identity (see Article 35). ...”
37. Article 12 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and came into force on 17 October 1997, states:
“The Republic of Poland shall ensure freedom for the creation and functioning of trade unions, socio-occupational farmers' organisations, societies, citizens' movements, other voluntary associations and foundations.”
Article 13 of the Constitution reads:
“Political parties and other organisations whose programmes are based on totalitarian methods or the models of naziism, fascism or communism, or whose programmes or activities foster racial or national hatred, recourse to violence for the purposes of obtaining power or to influence State policy, or which provide for their structure or membership to be secret, shall be forbidden.”
Article 32 of the Constitution provides:
“1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.
2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.”
Article 35 of the Constitution provides:
“1. The Republic of Poland shall ensure that Polish citizens belonging to national or ethnic minorities have the freedom to preserve and develop their own language, to maintain customs and traditions, and to develop their own culture.
2. National or ethnic minorities shall have the right to establish educational and cultural institutions and institutions designed to protect religious identity, as well as to participate in the resolution of matters relating to their cultural identity.”
Article 58 of the Constitution, proclaiming the right to freedom of association, reads:
“1. The freedom of association shall be guaranteed to everyone.
2. Associations whose purposes or activities are contrary to the Constitution or statute shall be prohibited. The courts shall decide whether to register an association and/or whether to prohibit an [activity of] an association.
3. Categories of associations requiring court registration, the procedure for such registration and the manner in which activities of associations may be monitored shall be specified by law.”
38. Chapter III of the Constitution, entitled “Sources of law”, refers to the relationship between domestic law and international treaties.
Article 87 § 1 provides:
“The sources of universally binding law of the Republic of Poland shall be the Constitution, statutes, ratified international treaties and ordinances.”
Article 91 states:
“1. As soon as a ratified international treaty has been promulgated in the Journal of Laws of the Republic of Poland, it shall become part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.
2. An international treaty ratified after prior consent has been given in the form of a statute shall have precedence over statutes where the provisions of such a treaty cannot be reconciled with their provisions.
3. Where a treaty ratified by the Republic of Poland establishing an international organisation so provides, the rules it lays down shall be applied directly and have precedence in the event of a conflict of laws.”
39. The relevant part of section 1 of the Law on associations reads:
“(1) Polish citizens shall exercise the right of association in accordance with the Constitution ... and the legal order as specified by law.
(2) The [exercise of the] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others.
(3) Associations shall have the right to express their opinion on public matters.”
The relevant part of section 2 provides:
“(1) An association is a voluntary, self-governing, stable union pursuing non profit- making aims.
(2) An association shall freely determine its objectives, its programmes of activity and organisational structures, and shall adopt internal resolutions concerning its activity.”
The relevant part of section 8, in the version applicable at the material time, read as follows:
“(1) An association shall register, unless otherwise provided by law.
(2) Registration of an association shall be effected by the registering regional court (hereafter referred to as 'the registering court') within whose territorial jurisdiction that association has its headquarters.
(3) The regional court within whose territorial jurisdiction an association has its headquarters (hereafter referred to as 'the court') shall be competent to take the measures that are prescribed by this Law in respect of an association [for example, those listed in sections 25, 26, 28 and 29].
(4) In proceedings before it, the registering court or the court shall apply the provisions of the Code of Civil Procedure relating to non-contentious proceedings, unless otherwise provided by this Law.
(5) The activities of associations shall be supervised by [the governor of the relevant province] (referred to hereafter as 'the supervisory authority').”
Section 10, in its relevant part, provides:
“(1) An association's memorandum shall in particular specify:
(i) the name of the association which shall differentiate it from other associations, organisations or institutions;
...
(iv) the conditions for the admission of members, the procedure and grounds for the loss of membership, and the rights and obligations of members.
...
(2) An association that intends to set up regional branches shall specify in its memorandum of association the structure of the organisation and the principles on which such branches shall be formed.”
Section 12 reads as follows:
“The management committee of an association shall lodge with the relevant court an application for the registration of their association, together with a memorandum of association, a list of the founders containing their first names, surnames, dates and places of birth, their places of residence and signatures, a record of the election of the management committee and the address of their provisional headquarters.”
Section 13 stipulates:
“(1) A court dealing with an application for registration of an association shall rule on such an application promptly; a ruling should be given within three months from the date on which the application was lodged with the court.
(2) The court shall serve a copy of the application for the registration, together with the accompanying documents specified in section 12 on [the relevant] supervisory authority. The supervisory authority shall have the right to comment on the application within fourteen days from the date of service and, with the court's leave, to join the proceedings as a party.”
Section 14 reads:
“The court shall refuse to register an association if it does not fulfil the conditions laid down in [this] Law.”
Section 16 provides:
“The court shall allow an application for registration of an association if it is satisfied that the latter's memorandum of association is in conformity with the law and its members comply with the requirements laid down in [this] Law.”
40. Chapter 3 of the Law, entitled “Supervision of associations”, provides in sections 25 and following for various means of monitoring the activities of associations and lays down the conditions for the dissolution of an association.
Under section 25, the relevant supervisory authority may request the management committee of an association to submit, within a specified time-limit, copies of resolutions passed by the general meeting of the association or to ask the officers of an association to provide it with “necessary explanations”.
In the event that such requests are not complied with, the court, under section 26 and a motion from the supervisory authority, may impose a fine on the association concerned.
Under section 28, a supervisory authority, if it finds that activities of an association are contrary to the law or infringe the provisions of the memorandum of association in respect of matters referred to in section 10(1) and (2), may request that such breaches cease, or issue a reprimand, or request the competent court to take measures under section 29.
The relevant part of section 29 provides:
“(1) The court, at the request of a supervisory authority or a prosecutor, may:
(i) reprimand the authorities of the association concerned;
(ii) annul [any] resolution passed by the association if such a resolution is contrary to the law or the provisions of the memorandum of association;
(iii) dissolve the association if its activities have demonstrated a flagrant or repeated failure to comply with the law or with the provisions of the memorandum of association and if there is no prospect of the association reforming its activities so as to comply with the law and the provisions of the memorandum of association.”
41. Section 3 of the 1993 Elections Act provided:
“(1) In the distribution of [seats in the Sejm] account shall be taken only of those regional electoral lists of electoral committees which have obtained at least 5% of the valid votes cast in the whole [of Poland].
(2) The regional electoral lists of electoral committees referred to in section 77(2) (electoral coalitions) shall be taken into account in the distribution of [seats in the Sejm], provided that they have obtained at least 8% of the valid votes cast in the whole [of Poland].”
Section 4 read:
“In the distribution of seats among national electoral lists, account shall be taken only of those lists of electoral committees which have obtained at least 7% of the valid votes cast in the whole [of Poland].”
Section 5 stipulated:
“(1) Electoral committees of registered organisations of national minorities may be exempted from one of the conditions referred to in section 3(1) or section 4, provided that, not later than the fifth day before the date of the election, they submit to the State Electoral College a declaration to that effect[].
(2) The State Electoral College shall promptly acknowledge receipt of the declaration referred to in subsection (1). This declaration shall be binding on electoral colleges.”
The relevant part of section 91 provided:
“...
(2) An electoral committee which has registered its regional electoral lists in at least half of the constituencies [in the whole of Poland] ... shall be entitled to register a national electoral list.
(3) The electoral committee[s] of organisations of national minorities shall be entitled to register a national electoral list, provided [they] ha[ve] registered their regional electoral lists in at least five constituencies. ...”
42. On 23, 29 and 30 April 1997 the Constitutional Court dealt with an application by the President of the Supreme Administrative Court (Naczelny Sąd Administracyjny) seeking a universally binding interpretation of sections 5, 91(3), 79(3) and 87(4) of the 1993 Elections Act. In its ruling, the Constitutional Court addressed, among other things, the following question:
“... whether it is implicit in the expression 'shall promptly acknowledge receipt of the declaration', as used in section 5(2) of the 1993 Elections Act, that, in order to issue such acknowledgment, the State Electoral College must verify whether an electoral committee that has submitted the declaration referred to in section 5(1) of the Act is in fact the electoral committee of a registered national minority organisation and may, for the purposes of such verification, require the committee to produce documents other than those listed in section 81(5) (i) of the 1993 Elections Act, such as the memorandum of association of the organisation ...”
43. The Constitutional Court held as follows:
“... the State Electoral College, in performing its duties as set out in section 5(2) of the 1993 Elections Act shall verify whether the declaration referred to in section 5(1) of that Act was submitted by the authorised electoral committee of one or more registered national minority organisations, and may, in case of doubt, require documentary evidence of such authorisation.”
It further explained that:
“It must be stressed at the outset that the basis for section 5(1) of the 1993 Elections Act is to give Polish citizens belonging to national minorities an equal opportunity to participate in representative bodies. However, the possibility provided by this provision for electoral committees of registered national minority organisations to take advantage of exemptions from electoral thresholds is an exception to the principle of equality of electoral rights in a material sense. In practice, the electoral committee that has submitted a given national minority list [of candidates] will participate [in the distribution of seats in Parliament] ..., despite the fact that its list has not attained the corresponding threshold. This solution reflects a certain understanding of the equality principle that involves entities participating in elections being given equal opportunities ... This amounts to discrimination in favour of electoral committees of registered national minority organisations in comparison with other electoral committees. Since they constitute an exception to the equality principle, provisions governing such discrimination cannot be interpreted extensively.
Secondly, section 5(1) reserves the privilege of exemption from electoral thresholds to lists of candidates supplied by the electoral committees of one or more registered national minority organisations, and only committees of that type may submit corresponding declarations to the State Electoral College. The emphasis should be placed on both the reference to 'registered organisations of national minorities' and to electoral committees acting in their name, for this privilege is available to 'national minority' organisations that are organised and act as such. [A] ... condition of the validity, and hence of effectiveness of a declaration seeking to take advantage of the exemption is that it must be submitted by an entity entitled to do so. It is therefore the responsibility of that entity to provide documentary evidence of its entitlement to submit the declaration. In practice, this amounts to a responsibility to submit to the State Electoral College documents unambiguously demonstrating that the electoral committee submitting the declaration is an entity entitled to do so, that is to say, the electoral committee of not just any organisation, but of one or more registered national minority organisations.
In accordance with section 5(2), the State Electoral College is required to acknowledge, without delay, receipt of the declaration referred to in subsection (1), in other words, a declaration that has been submitted by an entity entitled to do so. In that connection, the College has a duty to verify whether the declaration was submitted by such an entity, and if in doubt, may require documentation unambiguously confirming the entity's right to submit the declaration, as the declaration gives rise to legal consequences, so justifying the need for specific verification. ... If such documents are not submitted, the State Electoral College is precluded from acknowledging receipt of the declaration referred to in section 5(1), since, apart from the requirement that it be made at the prescribed time to the appropriate electoral college, a vital condition for the validity of the declaration is that it be made by an entitled entity. On the other hand, the State Electoral College does not verify the content of the declaration, for which the electoral committee takes full responsibility.
Determining which documents are to be accepted by the State Electoral College as confirmation of the electoral committee's entitlement to submit the declaration referred to in section 5(1) is a separate issue. ... [I]t can be assumed that the State Electoral College may require the presentation of appropriate documents, such as a memorandum of association, that will allow it unambiguously to ascertain that the entity submitting the declaration is the electoral committee of one or more registered national minority organisations.”
44. Article 5 of the Civil Code reads:
“No one shall exercise any right held by him or her in a manner contrary to its socio-economic purpose or to the principles of co-existence with others [zasady współżycia społecznego]. No act or omission [matching this description] on the part of the holder of the right shall be deemed to be the exercise of the right and be protected [by law].”
The relevant part of Article 58 provides:
“1. A[ny] act which is contrary to the law or aimed at evading the law shall be null and void, unless a statutory provision provides for other legal effects, such as the replacement of the void elements of such an act by elements provided for by statute.
2. Any act which is contrary to the principles of co-existence with others shall be null and void.”
45. At the material time Poland was a signatory to the Council of Europe Framework Convention for the Protection of National Minorities (European Treaty Series no. 157); the date of signature was 1 February 1995. Poland ratified the Framework Convention on 20 December 2000. It came into force in respect of Poland on 1 April 2001.
46. The Framework Convention contains no definition of the notion of “national minority”. Its explanatory report mentions that it was decided to adopt a pragmatic approach, based on the recognition that at that stage it was impossible to arrive at a definition capable of mustering the general support of all Council of Europe member States.
47. Poland, at the time of the deposit of the instrument of ratification, made the following declaration:
“Taking into consideration the fact that the Framework Convention for the Protection of National Minorities contains no definition of the national minorities notion, the Republic of Poland declares that it understands this term as national minorities residing within the territory of the Republic of Poland at the same time whose members are Polish citizens.”
NON_VIOLATED_ARTICLES: 11


ITEMID: 001-113128
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF TARKAN YAVAŞ v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: 5. The applicant was born in 1968 and lives in Istanbul.
6. On 12 November 1999 he was arrested on suspicion of setting up a criminal organisation, namely the Bilim Araştırma Vakfı (Foundation for Science and Research). On the same day he went through a medical examination at the Haseki Research Hospital. The medical report drafted following that examination noted that there was no sign of ill-treatment on his body.
7. During his time at police custody, on 15 November 1999, the applicant was examined once more, this time at the Şişli Etfal Research Hospital. The second report drawn up there also indicated that there existed no sign of ill-treatment on his body.
8. The applicant was released on 17 November 1999. Immediately after his release, he went through two more medical examinations at two different institutions, namely the Vakıf Gureba Hospital and the Forensic Medicine Institute. The reports drawn up after each examination indicated once again the lack of any sign of ill-treatment on his body.
9. The first three medical reports were issued in respect of the applicant together with some other persons, who were also arrested on suspicion of having committed the same offence.
10. On 11 January 2000 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant, together with several others, of setting up and running a criminal organisation. Subsequently, on 14 February 2000 the applicant was placed in pre-trial detention. The next day, on 15 February 2000 he was heard by the Bakırköy Criminal Magistrates’ Court and released pending trial.
11. In 2004, following a constitutional amendment, state security courts were abolished and the case was transferred to the Istanbul Assize Court.
12. On 9 May 2008 the Istanbul Assize Court discontinued the proceedings as the statutory time-limit for prosecuting the offence of setting up a criminal organisation had expired.
13. On 28 December 2009 the Court of Cassation upheld the judgment of the Istanbul Assize Court.
14. On an unspecified date in 2000 the applicant filed a complaint, together with the others, against several police officers, claiming that he had been subjected to ill-treatment during his time in police custody. According to his submissions, his testicles had been squeezed and he had been beaten, handcuffed to a chair and insulted.
15. On 26 October 2001 the Beyoğlu public prosecutor issued a decision not to prosecute.
16. On 21 November 2002 the Beyoğlu Assize Court rejected the applicant’s objection to the public prosecutor’s decision.
17. Nevertheless, on 5 March 2004, following an objection filed by one of the other complainants, the same court decided to extend the scope of the investigation and requested medical reports from the Forensic Medical Institute.
18. Subsequently, on 13 April 2005, although the medical reports had not yet been submitted, the court annulled the decision of the Beyoğlu public prosecutor and held that criminal proceedings would be brought against the police officers involved.
19. Accordingly, on 22 June 2005 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, accusing the police officers of torture pursuant to Article 243 § 1 of the former Penal Code (Law no. 765) as he considered that provision to be more favourable for the accused.
20. During the course of the proceedings against the police officers, the Head of the Istanbul University Forensic Medicine Department examined the applicant. In her report dated 29 March 2007 she noted that the applicant had complained that, during his police custody in November 1999 and his pre-trial detention in February 2000, his testicles had been squeezed and he had been beaten, insulted and forced to perform physical activities which would overstrain his body. After examining the medical reports which had been issued in respect of the applicant in November 1999, she reported that although those reports had indicated no sign of ill-treatment on the applicant’s body, none of them had been drafted in compliance with the general principles of forensic medicine set forth by the Ministry of Health. In this connection, she stated that each report had been issued in respect of several individuals and it was not clear whether the patients had been under psychological duress at the time or what kind of examinations had been conducted by the doctors. She concluded, therefore, that the reports issued immediately after the applicant’s release from police custody could not be accepted as proof against his allegation of ill-treatment.
21. On 4 August 2010 the Forensic Medicine Institute submitted a report to the Istanbul Assize Court upon the request of the latter. That report maintained that some lesions and problems in the applicant’s meniscus had been found in 2003. It added also that he appeared to be suffering from post-traumatic stress disorder. The report noted however that it was not possible to conclude that those conditions resulted from the alleged illtreatment inflicted on the applicant in 1999.
22. On 25 March 2011 the Forensic Medicine Institute drafted another report following the court’s request. According to that report, the first four medical reports, which stated that there was no sign on the applicant’s body, were unclear as each of them had been drawn up in respect of several individuals.
23. The Istanbul Assize Court conducted more than thirty hearings during which it heard the statements of the complainants, the accused and the witnesses. It also evaluated medical reports in respect of each complainant as well as the above-mentioned expert reports. The proceedings are still pending before that court.
24. Article 243 § 1 of the former Penal Code (Law no. 765) which regulated torture committed by civil servants read as follows:
“Any public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats a person, engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life.”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-105013
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: NIKAC v. SERBIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
TEXT: 1. The applicant, Mr Gavrilo Nikač, is a Montenegrin national who was born in 1932 and lives in Tivat. He was represented before the Court by Ms D. Kisjelica, a lawyer practising in Herceg Novi. The Government of the State Union of Serbia and Montenegro and, subsequently, the Government of Serbia (“the Government”) were represented by their Agent, Mr S. Carić.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in the 1980s. Once the banking and monetary systems were on the verge of collapse, the SFRY took emergency measures including legislative restrictions on the repayment of foreign-currency deposits to individuals. Following the dissolution of the SFRY, the statutory guarantees were taken over by the successor States.
4. In April 1992 the Republic of Serbia and the Republic of Montenegro proclaimed the Federal Republic of Yugoslavia (“FRY”), the legal predecessor of the State Union of Serbia and Montenegro (which was itself proclaimed in February 2003). In June 2006 Montenegro declared its independence, while the Republic of Serbia remained the sole successor of its predecessor’s states.
5. In a series of specific acts adopted in the 1990s, 2001 and 2002, the FRY accepted to convert the foreign currency deposited in these banks, including the bank here at issue, prior to 18 March 1995 into a “public debt” and then went on to set the time-frame and the amounts to be paid back to their former clients (initially by 2012 and then by 2016). According to the law of 2002, the said public debt should be the debt of the Republic of Serbia and the Republic of Montenegro, respectively, proportionally based on the total amount of savings deposited by the bank’s clients with a registered residence in each of the republics (see paragraph 27 below). The said laws also explicitly provided that foreign currency related judicial enforcement proceedings against the banks in question were to be discontinued (see paragraphs 25 and 28 below).
6. On a number of separate occasions in the 1970s the applicant deposited a significant amount of his foreign currency savings with the Slavija Bank, a State-owned bank based in Belgrade.
7. In 1982 the said bank refused to release the applicant’s funds.
8. On 3 February 1992 the applicant issued legal proceedings, seeking that his foreign currency deposits be released together with the interest stipulated. (At the time, the bank in question was already restructured and renamed as the “Belgrade Bank - main branch Slavija Bank”.)
9. On 1 June 1992 the First Municipal Court in Belgrade ruled in favour of the applicant and ordered the bank to pay him 26,526.42 US Dollars (“USD”), 270.29 German Marks (“DEM”) and 324.06 Austrian Schillings (“ATS”), together with the interest due and the legal costs.
10. On 29 September 1992 this judgment was upheld on appeal by the District Court and thereby became final.
11. On 14 December 1992 and 25 January 1993, the applicant sent two separate letters to the bank in question requesting payment within a period of 15 days, pursuant to the final judgment of the First Municipal Court.
12. Having apparently received no response, on 2 June 1993 he instituted formal enforcement proceedings before the Fourth Municipal Court in Belgrade.
13. On 4 June 1993 the Fourth Municipal Court adopted an enforcement order against the respondent bank and, on 1 September 1993, rejected the bank’s complaint against it.
14. On 12 August 1994 the Government of the Federal Republic of Yugoslavia allegedly adopted a decision instructing the courts not to enforce judgments against banks in cases concerning foreign currency savings.
15. On 10 October 2001 the Commercial Court in Belgrade opened insolvency proceedings (stečajni postupak) in respect of the “Belgrade Bank - main branch Slavija Bank”.
16. On 8 July 2002 the applicant sent three separate letters to the Government of the Federal Republic of Yugoslavia, the Yugoslav Central Bank and the Government of the Republic of Serbia, requesting that the judgment against the bank in question be enforced.
17. On 18 July 2002 the Yugoslav Central Bank responded by stating that, in a series of Acts adopted in the 1990s, 2001 and 2002, the State accepted to convert the foreign currency deposits in a number of failed banks, including the Slavija Bank, into a “public debt”, and then went on to set out the time-frame and the amounts to be paid back to their former clients. It further noted that the said Acts provided that any judicial enforcement proceedings instituted with respect to the banks in question were to be discontinued (obustavljeni).
18. On 3 June 2004 the applicant filed another enforcement request with the Fourth Municipal Court.
19. On 4 June 2004 he sent a letter to the Supreme Court of Serbia, requesting enforcement of the final judgment adopted by the First Municipal Court.
20. On 3 September 2004 the Fourth Municipal Court suspended the enforcement proceedings (prekinuo izvršni postupak) and, in so doing, held that the reason for this was the opening of a separate insolvency procedure in respect of the bank in question by the Commercial Court on 10 October 2001.
21. The applicant subsequently filed two complaints against this decision with the Fourth Municipal Court, on 14 September 2004 and 8 November 2004 respectively, requesting an “explanation” as to why the judgment in question “was not enforced prior to the opening of the said insolvency proceedings”.
22. There is no information in the case file that, following the adoption of the relevant legislation, the applicant had requested the conversion of the foreign currency savings deposited with the Slavija Bank into the public debt either from the respondent State or Montenegro, the country of his habitual residence.
23. Articles 1, 2, 3 and 4 provided that all foreign currency savings deposited with the “authorised banks” before 18 March 1995, including explicitly the deposits in the bank at issue in the present case (Slavija Bank), were to become public debts.
24. Under Article 10, the State’s responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame.
25. Article 22 provided that, as of the date of this Act’s entry into force (12 December 1998), “all pending lawsuits, including judicial enforcement proceedings, aimed at the collection of the foreign currency covered by this Act shall be discontinued.”
26. This Act repeals the Act described above. It modifies the time-frame for honouring the debt in question (from 2012 to 2016) and specifies amended amounts, plus interest, to be paid annually.
27. Article 3 states that the said public debt shall be the debt of the Republic of Serbia and the Republic of Montenegro, respectively, proportionally based on the total amount of savings deposited by the bank’s clients with a registered residence in each of the republics (“srazmerno visini devizne štednje građana čije je prebivalište na teritoriji tih republika”).
28. Article 36 reaffirms that “all lawsuits aimed at the collection of the foreign currency savings covered by this Act, including the judicial enforcement proceedings, shall be discontinued.”
29. This Act has also been in force since 4 July 2002. It was subsequently amended on two occasions, but these amendments concerned peripheral issues unrelated to the saver’s above-described status.
30. Articles 1, 2 and 3 provide that this Act shall regulate the reimbursement of foreign-currency savings deposited by individuals residing in Montenegro with the authorised banks based outside Montenegro, which funds were then further deposited with the National Bank of Yugoslavia (Narodna banka Jugoslavije).
31. Article 8 provides that Montenegro shall honour this debt by 2017, and specifies the amounts, plus 2% interest, to be paid annually in euros.


ITEMID: 001-75731
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MAGURA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1946 and lives in Košice.
5. On 22 October 1997 the applicant’s employer sent him a notice of termination of his employment with immediate effect for an alleged serious breach of work discipline.
6. On 9 January 1998 the applicant challenged his dismissal before the Košice II District Court (Okresný súd).
7. On 25 November 1998 the District Court decided the case and on 27 May 1999 the Košice Regional Court (Krajský súd) quashed its judgment on appeal. The case was remitted to the District Court for reexamination.
8. On 9 February 2000 the District Court decided the case again and on 22 June 2000 the Regional Court again quashed its judgment on appeal. It was held that the District Court had failed to establish the relevant facts adequately and that its conclusions were therefore premature. The case was remitted to it for reexamination.
9. On 29 September 2000 the District Court judge in charge of the lawsuit requested that the Regional Court remove her from the case as she felt biased as a result of the applicant’s written submission of 25 March 2000 in which he had expressed doubts as to her impartiality in a gross and offensive manner.
10. On 30 November 2000 the Regional Court disqualified the above District Court judge from dealing with the case and on 11 January 2001 it was assigned to a new judge. As the second judge later ceased to be a judge, on 8 January 2002 the case was assigned to a third judge.
11. On 2 December 2002 the applicant extended his action by claiming also compensation in respect of wages lost as a consequence of his dismissal.
12. On 6 March 2003 the District Court ruled that the applicant’s claim for lost wages necessitated the taking of further evidence and ruled that it would be determined in a separate set of proceedings which was later opened under a new file number (see below). At the same time, the District Court ruled that the termination of the applicant’s employment was void.
13. On 22 October 2003 the Regional Court upheld the judgment of 6 March 2003 on the defendant’s appeal. No further appeal was available and the ruling concerning the validity of the applicant’s dismissal became final and binding on 18 December 2003.
14. In the above part of the proceedings the District Court held 8 hearings whereas the Regional Court held 3.
15. On 30 April 2003 the applicant supplemented his claim for lost wages.
16. The District Court heard the case on 2 June and 27 June 2005. Following the latter hearing, on the same day, it dismissed the claim.
17. On 15 August 2005 the applicant challenged the judgment of 27 June 2005 by an appeal which is still pending.
18. On 6 March 2002 the applicant lodged a complaint about the length of his proceedings with the Constitutional Court (Ústavný súd) under Article 127 of the Constitution, as in force from 1 January 2002. He sought an order that the District Court proceed with his action and pay him 200,000 Slovakian korunas (SKK) by way of just satisfaction in respect of his nonpecuniary damage.
19. On 27 March 2002 the Constitutional Court declared the complaint admissible.
20. On 15 October 2002 the Constitutional Court found that in the proceedings concerning the validity of the applicant’s dismissal the District Court had violated his right under Article 48 § 2 of the Constitution to a hearing “without unjustified delay”, and his right under Article 6 § 1 of the Convention to a hearing “within a reasonable time”. It found that the subjectmatter of the proceedings was not of a particular complexity; that the applicant’s conduct had been active and cooperative; and that there was an unjustified period of inactivity on the part of the District Court from 10 January 2001 to 23 September 2002. The Constitutional Court ordered that the District Court proceed with the matter without delays and pay the applicant SKK 15,000 by way of just satisfaction for his nonpecuniary damage only and that it did not have the function of affording redress in respect of possible pecuniary damage.
21. On 28 April 2005 the applicant lodged a fresh constitutional complaint. He completed it on 30 May 2005 in that he contested unjustified delays in the proceedings concerning the validity of the termination of his employment and the lost wages and claimed SKK 50,000 in compensation for his nonpecuniary damage.
22. On 29 June 2005 the Constitutional Court declared the complaint admissible, having interpreted it as being aimed at the part of the proceedings after 2 December 2002, which concerned the claim for lost wages.
23. On 5 October 2005 the Constitutional Court found that in the given part of the proceedings the District Court had violated the applicant’s right to a hearing “without unjustified delay” and “within a reasonable time”. The Constitutional Court ordered that the District Court proceed with the matter without delays and awarded the applicant SKK 20,000 in just satisfaction for his nonpecuniary damage. The applicant was also awarded the reimbursement of his legal costs.
In the Constitutional Court’s view the matter was not legally or factually complex and no delays were imputable to the applicant. However, the District Court was inactive without any justification between 25 November 2003 and 6 April 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61322
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF RAGONE v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1968 and lives in Salerno.
5. M.G. was the owner of a flat in Salerno, which he had let to U.A.
6. In a registered letter of 23 May 1988, the owner informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1991 and asked him to vacate the premises by that date.
7. In a writ served on the tenant on 10 December 1988, the owner reiterated his intention to terminate the lease and summoned the tenant to appear before the Salerno Magistrate.
8. By a decision of 3 February 1989, which was made enforceable on the same day, the Salerno Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 May 1993.
9. On 21 December 1990, the applicant became the owner of the flat and pursued the enforcement proceedings.
10. On 17 April 1993, the applicant served notice on the tenant requiring him to vacate the premises.
11. On the same day, the applicant made a statutory declaration that she urgently required the premises as accommodation for herself.
12. On 21 May 1993, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 30 June 1993.
13. On 30 June 1993, the bailiff made one attempt to recover possession, which proved unsuccessful, as the applicant was not granted the assistance of the police in enforcing the order for possession.
14. Thereafter, the applicant decided to suspend the bailiff's attempts in order to avoid any additional costs and because she would not be granted the assistance of the police.
15. In the meanwhile, the tenant died and on 11 October 1999, his wife asked the Salerno Magistrate to suspend the enforcement proceedings.
16. The Salerno Magistrate suspended the enforcement proceedings until 13 May 2000.
17. The tenant's wife informed the applicant that she would not leave the premises.
18. On 11 October 2000, the applicant served notice on the tenant's wife informing her that the order for possession would be enforced by a bailiff on 6 November 2000.
19. On 6 November 2000, the bailiff made one attempt to recover possession, which proved unsuccessful, but the tenant's son informed the bailiff that he and his mother would leave the premises on 29 November 2000.
20. On 27 November 2000, the applicant recovered possession of the flat.
21. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
22. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
23. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
24. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
25. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
26. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”
27. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
28. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
29. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1