ITEMID: 001-108590
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF FETISOV AND OTHERS v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - finding of violation sufficient
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 6. All the applicants were held in various Russian remand prisons at some point in time. Their individual circumstances are detailed below.
7. The applicant in case no. 43710/07, Mr Andrey Anatolyevich Fetisov, is a Russian national who was born in 1967.
8. On 22 August 2006 Mr Fetisov was arrested on suspicion of drugtrafficking. Following a period of initial detention at the Gukovo town police ward (изолятор временного содержания г. Гуково), on 30 August 2006 he was transferred to remand prison IZ-61/3 of Novocherkassk in the Rostov Region. On various dates between 9 October and 12 December 2006 Mr Fetisov effected further short stays in the Gukovo ward.
9. On 20 March 2007 Mr Fetisov was found guilty of drug-trafficking at last instance and sentenced to nine years’ imprisonment. On 17 May 2007 he left the remand prison for transfer to a correctional colony.
10. In prison IZ-61/3, Mr Fetisov stayed the first night in cell 168, one week in cell 181, and subsequently in cells 245 (after 28 September 2006) and 291 (after 12 December 2006). The last two cells measured 19 and 34 square metres, respectively.
11. The parties disagreed on the number of sleeping places and detainees. According to the Government, cell 245 had four places, and cells 181 and 291 eight places each. Mr Fetisov submitted that all the cells had twice as many places.
12. In the Government’s submission, cell 245 accommodated “up to four persons”, and cells 181 and 291 – “up to eight persons”. Mr Fetisov asserted that cell 245 housed up to twenty inmates and cell 291 up to twenty-five.
13. The Government produced in evidence certificates showing the number of beds and detainees, issued by the prison governor on 29 June 2009, and three pages from the prison population register. The extracts show that on 20 September 2006 an eight-person cell 181 accommodated eight inmates, that on 28 September 2006 a four-person cell 245 housed four inmates, and that on 13 December 2006 an eight-person cell 291 held eight detainees. It does not appear that the design capacity was exceeded in any other cells within the prison on those dates.
14. Mr Fetisov submitted eight written statements from his co-detainees dated 19 October and 7 November 2007. Each of them stated that he had been detained in cell 291 together with Mr Fetisov and that the cell had measured approximately 40 square metres, had been equipped with 16 beds and had actually accommodated 20 to 25 prisoners. There had been no ventilation and frequent interruptions of the water supply. Further to the Court’s request, the Government produced the cell records for those individuals from which it appears that six of them had shared cell 291 with Mr Fetisov from 12 December 2006 until January or February 2007, the seventh inmate from 26 December 2006 to 22 March 2007, and the eighth person from 22 April to 17 May 2007.
15. The applicant in case no. 6023/08, Mr Valeriy Viktorovich Savinov, is a Russian national who was born in 1957.
16. On 4 February 2006 Mr Savinov was arrested on a charge of kidnapping and placed in a temporary detention ward in Kazan. On 13 February 2006 he was transferred to remand prison IZ-16/1 of Kazan in the Tatarstan Republic.
17. In prison IZ-16/1, Mr Savinov stayed in cells 7 (until 12 April 2006), 15 (until 25 September 2006), 5 (until 2 October 2006), 11 (until 9 October 2006), 8 (until 11 February 2007), and 68 (until 20 August 2007). On the latter date he was transferred to a prison in Moscow. On 11 October 2007 Mr Savinov was convicted at last instance and subsequently sent to serve his sentence in a correctional colony.
18. The cells presented the following characteristics:
cell 7: 40 square metres and 10 sleeping places;
cell 15: 25 square metres and 6 sleeping places;
cells 5 and 11: 20 square metres and 5 sleeping places;
cells 8 and 68: 16 square metres and 4 sleeping places.
19. The parties disagreed on the number of detainees who had been held together with Mr Savinov.
20. The Government submitted that “the number of detainees had not exceeded the number of beds”, relying on the certificates issued by the prison governor on 29 June 2009. They also produced four statements by prison warders (two undated and the other two dated 24 June 2009), according to which Mr Savinov had had a personal sleeping place and bed linen, and fourteen statements by detainees, including Mr P. (all dated 24 June 2009) who had been held in cells 5, 7, 8, 11, 15, 67 and 68 during various periods of time in 2008 and 2009. Finally, they enclosed extracts from the prison population register of prison IZ-16/1, covering one day per month in the period from February 2006 to January 2008. The extracts showed that during the respective periods of Mr Savinov’s stay, cell 7 housed 8 to 10 persons, cell 15 – 5 or 6 persons, cells 5 and 11 – 5 persons, cells 8 and 68 – 3 or 4 persons, and that the total prison population had varied but never exceeded 586 persons.
21. Mr Savinov claimed that the Government had falsified the documents concerning the number of detainees. He prayed in aid an article, entitled The Kazan Jailhouse: the Past and the Present, published in Issue 10, October 2006, of Crime and Punishment, a magazine of the Federal Penitentiary Service. The relevant extracts read as follows:
“Prison no. [IZ-16/]1 with a design capacity of 600 persons currently houses 780 suspects and defendants. Thus, the overcrowding is still significant...
Renovation and construction works are in full swing. In January 2005 a new wing with 120 places was put in operation... The conditions are fully compatible with European standards: wooden floors in cells, mirrors above sinks, isolated toilets, radios, TV sets, shower stalls on each floor. This wing... accommodates underage detainees...” (page 51)
22. Mr Savinov listed the names (five full names and two first names) of the co-detainees, including Mr P., with whom he stayed in cell 68 from 26 November 2007 to 28 January 2008. He submitted that he had shared the bed with Mr P. on the second tier of the bunk beds. Further to the Court’s request for information, the Government submitted cell records in respect of five inmates whose full names were listed. It appears that only three of them had actually shared cell 68 with Mr Savinov. The first names of the remaining two detainees were insufficient for reliable identification.
23. The applicant in case no. 11248/08, Mr Amangeldy Sebepovich Telyubayev, is a Russian national who was born in 1977.
24. On 29 May 2002, 19 May and 6 June 2005 the Sol-Iletskiy District Court of the Orenburg Region convicted Mr Telyubayev of various crimes and sentenced him to imprisonment. In 2007 Mr Telyubayev petitioned the Orenburg Regional Court for supervisory review of the judgment of 29 May 2002. In order to take part in the supervisory review hearing on 27 August 2007, he was taken from the correctional colony where he was serving his sentence. Before reaching his destination, Mr Telyubayev transited through several remand prisons.
25. From 10 to 12 August and then from 12 to 15 September 2007 Mr Telyubayev was accommodated in cell 203 in remand prison IZ-66/1 of Yekaterinburg. The cell measured 33 square metres and was equipped with 16 sleeping places. The cell population varied from 3 to 12 inmates.
26. From 13 to 17 August and then from 7 to 11 September 2007 Mr Telyubayev was held in cell 116 in remand prison IZ-74/3 of Chelyabinsk. Cell 116 was designed for four inmates and had 16 square metres of floor space. The parties disagreed on the number of detainees in cell 116. According to the Government, there were four persons; Mr Telyubayev maintained that the actual number was as high as ten.
27. Finally, between 18 August and 6 September 2007, Mr Telyubayev had to stay in cell 59 in remand prison IZ-56/1 of Orenburg. It was 16 square metres in size with eight sleeping places and accommodated three to seven detainees.
28. The Government submitted certificates issued by the governors of prisons in Yekaterinburg, Chelyabinsk and Orenburg on 25 and 29 June 2009 listing the cells in which Mr Telyubayev had been held, statements by warders of the Yekaterinburg prison who asserted that Mr Telyubayev had been assigned his personal sleeping place, and extracts from the registers for verification of the number of detainees in prisons 66/1 (Yekaterinburg), 74/3 (Chelyabinsk) and 56/1 (Orenburg).
29. The extracts from the register of prison 74/3 cover the dates from 7 to 11 September 2007 and show that cell 116 had four places and housed as many detainees. Some extracts from the register of prison 66/1 relate to an earlier period of Mr Telyubayev’s stay in 2005 and at that time cell 203 had accommodated on average thirty prisoners. However, the entries relating to various dates in August and September 2007 indicated that the design capacity of cell 203 had not been exceeded and ranged from 3 to 12 inmates. Finally, the extracts of 27 August and 6 September 2007 from the register of prison 56/1 indicated the population of cell 59 as five and six persons, respectively.
30. The applicant in case no. 27668/08, Mr Rail Kurbanovich Shakurov, is a Russian national who was born in 1970.
31. On 31 August 2007 Mr Shakurov was taken into custody. On 10 September 2007 he was placed in remand prison IZ-16/1 of Kazan.
32. In prison IZ-16/1, Mr Shakurov stayed in cells 127 (the first night), 3 (from 11 September to 22 October 2007 and from 14 May to 17 November 2008), 21 (from 22 October 2007 to 14 May 2008), 40 (from 17 November to 31 December 2008 and from 30 January to 16 April 2009), 66 (from 31 December 2008 to 30 January 2009), and 44 (from 16 April 2009 until at least June 2009).
33. The parties disagreed on the measurements of some cells and on the number of detainees who had been held together with Mr Shakurov.
34. According to the Government, the cells presented the following characteristics:
cell 127: 65 square metres and 16 sleeping places;
cell 3: 40 square metres and 10 sleeping places;
cells 21, 40, 44 and 66: 16 square metres and 4 sleeping places.
35. The Government indicated that the design capacity of the cells had never been exceeded, relying on the certificates established by the prison governor on 29 June 2009. They also produced four statements by prison warders (dated 24 June and 17 July 2009), according to which Mr Shakurov had had a personal sleeping place and bed linen, and two statements by detainees (dated 24 June 2009) who had been held in cell 66 since April 2009. Finally, they enclosed extracts from the prison population register for prison IZ-16/1, covering several days per month in the period from September 2007 to March 2009. The extracts showed that during the respective periods of Mr Shakurov’s stay, cell 3 housed 7 to 10 persons and cells 21, 40 and 44 housed 4 persons. The Government produced photographs of the cells and the shower room, from which it appears that they were in a good state of repair. In response to the Court’s request for information, they submitted floor plans of the facility, which confirmed the accuracy of the cell surface area as they had given it.
36. In Mr Shakurov’s submission, cells 66 and 44 measured only 4.8 sq. m. He produced hand-written lists of individuals who were detained in the same cell with him. The lists contained their full names, dates of birth and their signatures. The lists show that:
from 10 to 13 October 2008, cell 3 housed 18 inmates;
from 17 to 20 October 2008, cell 3 housed 18 inmates;
from 24 to 27 October 2008, cell 3 housed 20 inmates;
from 2 to 5 November 2008, cell 3 housed 18 inmates.
from 17 to 20 November 2008, cell 40 housed 4 inmates;
from 1 to 15 January 2009, cell 66 housed 4 inmates;
from 17 April to 4 May 2009, cell 44 housed 4 inmates.
37. Further to the Court’s request, the Government submitted cell records for the individuals named in Mr Shakurov’s lists. It can be seen from the records that as many as eight or ten persons whom Mr Shakurov had listed as his co-detainees in cell 3 had actually been held in other cells.
38. On 18 April 2011 Mr Shakurov complained to the Court that the prison authorities had opened and stamped the Court’s letter of 14 February 2011. He enclosed a copy of the letter bearing the prison stamp dated 1 March 2011. In his view, tampering with his correspondence amounted to a violation of his right of individual petition under Article 34 of the Convention.
39. In a letter of 23 June 2011 sent in response to the Court’s request for comments, the Government acknowledged that the Court’s letter of 14 February 2011 had been opened in prison IZ-16/1. They pointed out that an inquiry had identified the officials responsible for the opening and enclosed the order of the acting prison governor of 6 June 2011. The order shows that the letter was opened and stamped by Major A.Kh., the head of the correspondence unit, who thus breached the requirements of the Federal Penitentiary Service’s circular letter of 17 December 2010 in the part concerning the timely delivery of the Court’s letters to detainees in closed envelopes. The acting prison governor issued a disciplinary warning to Lieutenant-Colonel R.Kh., his deputy for human resources. In respect of Major A.Kh., it was decided “to maintain the warning that had been previously imposed by an order of 25 October 2010”.
40. The applicant in case no. 31242/08, Mr Anatoliy Ivanovich Korobeynikov, is a Russian national who was born in 1953.
41. On 29 November 2006 Mr Korobeynikov was placed in remand prison IZ-48/1 of Lipetsk. On 20 November 2007 he was convicted at last instance and was transferred, ten days later, to a correctional colony in the Lipetsk Region.
42. In prison IZ-48/1, Mr Korobeynikov stayed in cell 4 (from 29 November to 7 December 2006), cell 161 (from 7 to 12 December 2006), cell 190 (from 12 December 2006 to 18 January 2007), cell 157 (from 18 January to 31 May 2007), cell 144 (from 31 May to 19 June 2007), cell 141 (from 19 to 27 June 2007), and cell 176 (from 27 June to 30 November 2007).
43. According to the Government, the cells presented the following characteristics:
cell 4: 48 square metres and 12 sleeping places;
cells 161, 190 and 157: 12 square metres and 3 sleeping places;
cells 144, 141 and 176: 16 square metres and 4 sleeping places.
44. The applicant gave the same number of sleeping places but claimed that the cells had been much smaller. Thus, in his submission, cell 4 measured only 20 sq. m, cell 157 – 9 sq. m, and cells 144, 141 and 176 – approximately 10 sq. m.
45. The parties agreed that the number of detainees did not exceed the number of sleeping places. In support of their submissions, the Government produced certificates issued by the prison governor on 22 June 2009. Subsequently, the Government also submitted floor plans of the facility, which corroborated their indications of the cell surface areas.
46. The applicant in case no. 52133/08, Mr Khamil Kamil oglu Balammedov, is a stateless person who was born in 1962 in the Azerbaijan SSR.
47. On 17 January 2007 Mr Balammedov was taken into custody and placed in remand prison IZ-47/6 of St Petersburg. On 3 April 2008 he was convicted at last instance and subsequently transferred to a correctional colony in the Yamalo-Nenets Region.
48. In prison IZ-47/6, Mr Balammedov stayed in cell 1/2 (from 21 February to 4 July 2007), cell 3/11 (from 4 to 30 July 2007), cell 1/3 (from 30 July to 16 January 2008), cell 403 (from 16 January to 19 April 2008), and cell 419 (from 19 April to 17 May 2008).
49. According to the Government, the cells presented the following characteristics:
cells 1/2 and 1/3: 396 square metres and 99 sleeping places;
cell 3/11: 81 square metres and 20 sleeping places;
cells 403 and 419: 25 square metres and 4 sleeping places.
50. Mr Balammedov claimed that cell 1/3 actually measured 25 by 7 metres, that is 175 square metres, and accommodated 140 to 160 inmates who had slept in turns. He pointed out that, judging from the number of detainees in the prison (1,342) and the sanitary norm of 4 square metres per inmate, the total prison surface should have been no less than 5,368 square metres; however, the cleaning contracts submitted by the Government referred to a much smaller area of 1,500 square metres.
51. Further to the Court’s request for information, the Government produced floor plans of the facility, which corroborated their indications of the cell surface.
52. The Government submitted certificates issued by the prison governor on 25 June 2009, and undated statements by prison warders who stated that Mr Balammedov had at all times had a personal sleeping place and that the cell population had been as follows:
cell 1/2 housed 78 to 99 persons;
cell 3/11 – 17 to 20 persons;
cell 1/3 – 81 to 99 persons;
cell 419 – 2 to 4 persons.
53. The Government also produced five pages from the prison population register for prison IZ-74/6, covering dates in March, August, September and November 2007. The extracts indicated that cells 1/2 and 1/3 accommodated no more than 97 inmates. Mr Balammedov replied that the extracts covered the dates when the overcrowding had been the least severe.
54. Cells 1/2 and 1/3 featured separate toilet rooms equipped with four and five pans and four and five sinks, respectively. In cells 3/11, 403 and 419 the toilet pan was separated from the living area by a brick partition 1.2 metres high.
55. The exercise yards of the first wing (cells 1/2 and 1/3) measured 700 sq. m and were equipped with benches, pavilions and sheds. Those in the third wing (cell 3/11) ranged from 30 to 60 sq. m in size, and those in the fourth wing (cells 409 and 419) from 8 to 20 sq. m.
56. Personal dignity is protected by the State and may not be undermined for any reason (Article 21 § 1).
No one may be subject to torture, violence or any other cruel or degrading treatment or punishment (Article 21 § 2).
57. Detention on remand must be based on the principles of lawfulness, fairness, presumption of innocence, equality before the law, humanism, respect for human dignity and must be carried out in accordance with the Russian Constitution, international legal principles and norms and international treaties, to which Russia is a party, and must not involve torture or other actions that purport to cause physical or moral suffering to the suspect or defendant (section 4).
58. Detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and given bedding, tableware and toiletries. Each inmate should dispose of no less than four square metres of personal space in his or her cell (section 23).
59. If certain actions impairing an individual’s personal non-property rights or encroaching on other intangible assets have caused him or her nonpecuniary damage (physical or mental suffering), the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage. The amount of compensation is determined by reference to the gravity of the perpetrator’s fault and other significant circumstances. The court also takes into account the extent of physical or mental suffering in relation to the victim’s individual characteristics (Article 151).
60. State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069). Irrespective of any fault by State officials, the State or regional treasury are liable for damage sustained by a citizen on account of (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure, and (iii) unlawful administrative punishment (Article 1070).
61. Compensation for non-pecuniary damage is effected in accordance with Article 151 of the Civil Code and is unrelated to any award in respect of pecuniary damage (Article 1099). Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated for if the damage was caused (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment, and (iii) through dissemination of information which was damaging to honour, dignity or reputation (Article 1100).
62. Chapter 25 sets out the procedure for a judicial examination of complaints about decisions, acts or omissions of the State and municipal authorities and officials. Pursuant to Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation, complaints by suspects, defendants and convicts about inappropriate conditions of detention must be examined in accordance with the provisions of Chapter 25 (point 7).
63. A citizen may lodge a complaint about an act or decision by any State authority which he believes has breached his rights or freedoms, either with a court of general jurisdiction or by sending it to the directly higher official or authority (Article 254). The complaint may concern any decision, act or omission which has violated rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on the citizen (Article 255).
64. If the court finds the complaint justified, it issues a decision requiring the authority or official to fully remedy the breach of the citizen’s rights (Article 258 § 1). The court determines the time-limit for remedying the violation with regard to the nature of the complaint and the efforts that need to be deployed to remedy the violation in full (point 28 of Ruling no. 2).
65. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows:
“10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation...
11. In all places where prisoners are required to live or work,
(a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.
13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate.
14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time.
15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness...
19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness...”
66. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No. R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules lay down the following guidelines:
“1. All persons deprived of their liberty shall be treated with respect for their human rights.
2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.
...
10.1. The European Prison Rules apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.”
“18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation.
18.2. In all buildings where prisoners are required to live, work or congregate:
a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system;
b. artificial light shall satisfy recognised technical standards; and
c. there shall be an alarm system that enables prisoners to contact the staff without delay.
18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons.
18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation.
19.3. Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy.
19.4. Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.
27.1. Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.
27.2. When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.”
67. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows:
“46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate; the overall quality of life in the establishment will be lowered, perhaps significantly. Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint...
49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment...
50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners...”
“13. As the CPT pointed out in its 2nd General Report, prison overcrowding is an issue of direct relevance to the Committee’s mandate (cf. CPT/Inf (92) 3, paragraph 46). An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention...”
“28. The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention. The negative effects of prison overcrowding have already been highlighted in previous General Reports...
29. In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions... Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.
30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners... [E]ven when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy...”
VIOLATED_ARTICLES: 13
34
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-82812
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: HOFMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicants, Mrs Ella-Christina Hofmann and Mr Angelo Hofmann, are German nationals who were born in 1958 and 1986 respectively and live in Schlitz in Germany. They are represented before the Court by Mr V. Ried, a lawyer practising in Bad Hersfeld. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The second applicant is the first applicant’s son, born out of wedlock on 7 June 1986. The first applicant, who had full parental authority, raised the second applicant together with his half-sister J., born in 1977. J left the first applicant’s household in 1995.
From 1995 onwards the first applicant experienced difficulties in educating the second applicant, who showed signs of aggressiveness and refused to follow orders. From 18 June to 13 August 1995 the second applicant was placed in a psychiatric institution for children and adolescents.
Upon medical advice, the second applicant started ambulant therapy which was discontinued because the first applicant did not agree with the educational methods applied.
In the summer of 1997 further major difficulties arose when the second applicant had been caught smoking, lying and stealing from the first applicant. The first applicant considered placing the second applicant into an after-school care centre, but refrained, when the Youth Office (Jugendamt) refused to cover the costs as the first applicant was unwilling to disclose her financial situation. The tensions between the applicants persisted.
On 10 January 1998 a serious dispute broke out between the applicants when the second applicant refused to help his mother in gardening. The second applicant absconded and only returned in the evening. On his return, he fell and incurred a laceration on his head which had to be sewn with one stitch.
On 11 January 1998 the conflicts resumed. The second applicant absconded and cycled to his half-sister J. That same afternoon, the first applicant and J. called upon the police in order to achieve a settlement on where the boy should stay for the night. Following an exchange of views, the second applicant agreed to return to the first applicant.
The conflict between the applicants continued as the second applicant insisted on his wish to stay with J. On 13 January 1998 the first applicant drove the second applicant to J.’s place. Subsequently, she informed the District Youth Office about the second applicant’s whereabouts.
On 14 January 1998 J., who felt unable to cope with the situation, requested the District Youth Office’s assistance.
On 14 January 1998 the Youth Office requested the Lauterbach District Court (Amtsgericht) to withdraw parental authority from the first applicant. Relying on the statements made by J. and her partner, the Youth Office submitted that the second applicant had been repeatedly beaten by the first applicant. In the course of the arguments which took place on 11 January 1998, the first applicant hit the second applicant on the fresh wound. On 13 January 1998 the first applicant had stated that the second applicant should stay for six weeks with J., while she was leaving on vacation.
By interim order of 15 January 1998 the Lauterbach District Court, without hearing either of the applicants, temporarily withdrew the first applicant’s parental authority over the second applicant pursuant to section 1666 of the Civil Code (Bürgerliches Gesetzbuch, see relevant domestic law below) and transferred it to the District Youth Office. The District Court found that the second applicant’s physical well-being was jeopardised by an abuse of parental authority and that the Youth Office had to take the necessary steps to avert this danger, in particular by ensuring medical treatment and accommodation. Due to the urgency of the matter it had not been possible to hear the first applicant before taking this decision.
The Youth Office placed the second applicant in a foster family for short-time accommodation. On 10 March 1998 the second applicant was placed with the foster family K. On that same date the District Youth Office issued a certificate to the foster family according to which the second applicant’s placement was planned as a permanent measure (“Der Verbleib des Kindes ist auf Dauer angelegt”).
On 19 January 1998 the first applicant, who was represented by counsel, lodged a complaint against the interim order.
On 23 January, 29 January and 5 February 1998 the District Court heard both applicants as well as J. and her partner.
On 16 February 1998 the District Court transferred the case-file to the Fulda Regional Court (Landgericht) to rule on the first applicant’s appeal against the interim order.
On 16 June 1998 the presiding judge of the Regional Court heard the second applicant in the foster family’s household. According to the minutes drafted by the presiding judge, the second applicant declared that he felt at ease with the foster family and that he enjoyed a good relationship to the other foster child and, in particular, to the foster parents’ grown-up son. With regard to the incident which led to the withdrawal of parental authority, the second applicant declared that he did not wish to talk about this and did not quite remember the details. He had left his mother’s household because of the many arguments and beatings he had received. On his return, he had incurred the wound on his head. Some time later he had been beaten again. He further confirmed having given a faithful account of the incident to the District Court judge.
When questioned if he had had sufficient time to settle down during the previous months, and if he wished to see his mother, the second applicant replied that he did not wish any personal contact to his mother. Even if his mother should promise that everything would change from now on, he was afraid that she would continue beating him and threatening him with sending him away or placing him in a psychiatric hospital.
On 26 June 1998 the Regional Court held a hearing in the presence of the first applicant, the first applicant’s counsel and a representative of the Youth Office.
On 2 July 1998 the Fulda Regional Court rejected the first applicant’s appeal. That court found, firstly, that the withdrawal of parental authority had been in accordance with the pertinent provisions of sections 1666 and 1666a of the Civil Code. The events of January 1998, which had been confirmed by both the second applicant himself, his sister J. and her sister’s partner, justified the taking of measures relating to guardianship. There were substantial indications for an abuse of parental authority, which justified the assumption that there was a serious danger for the child’s welfare.
With regard to the present situation, the Regional Court found that there was no reason to revoke or to modify the impugned decision. There remained serious indications that the child’s well-being would be jeopardised if he returned to the first applicant’s household. The second applicant had repeatedly stated that he had frequently been slapped by his mother. Even if this was not regarded as a decisive factor, the child’s well-being would be jeopardised by the first applicant’s deficiencies in parenting. The first applicant had conceded that she experienced serious educational difficulties. She had failed to resolve these problems by use of adequate educational measures or by availing herself of public assistance. The basis of confidence between mother and child was seriously disturbed. This had become obvious when the second applicant, during the hearing before the Regional Court, had expressly declared that he presently did not wish any contact to his mother. There was no indication that the applicant had been influenced by third persons when expressing this wish.
It was currently not possible to avert the danger by alternative means, such as external assistance, as the second applicant refused any cooperation with the Youth Office.
On 28 July 1998 the first applicant lodged a further complaint (weitere Beschwerde) against the Regional Court’s decision, which she withdrew on 20 August 1998.
On 2 September 1998 the counsel H., who acted on behalf of the first applicant, was granted access to the case files of the custody and access proceedings.
On 3 September 1998 the first applicant lodged a motion for bias against the District Court judge, which was rejected by the Regional Court on 16 September 1998. On 30 September 1998 the applicant lodged a further complaint, which was rejected by the Frankfurt Court of Appeal (Oberlandesgericht) on 8 December 1998.
On 26 January 1999 the case-file was returned to the Lauterbach District Court.
On 16 July 1999 the applicant lodged a complaint for inactivity (Untätigkeitsbeschwerde) against the Lauterbach District Court.
On 10 August 1999 the District Court, in the main proceedings, ordered the preparation of an expert opinion as to whether the second applicant’s physical, mental or psychological well-being was jeopardised by an abuse of parental authority, by neglect or by the mother’s failure through no fault of her own. It further appointed a curator ad litem to represent the second applicant.
On 26 August 1999 the first applicant lodged a complaint against the appointment of the curator ad litem.
On 3 September 1999 the first applicant requested the court to discharge the court-appointed expert on grounds of bias.
On 11 October 1999 the Frankfurt Court of Appeal decided that the applicant’s complaint for inactivity had been disposed of, as the District Court had in the meantime taken measures to promote the proceedings by its decision of 10 August 1999.
On 21 October 1999 the applicant lodged a further complaint for inactivity.
On 11 February 2000, in a public hearing before the Frankfurt Court of Appeal, the applicant withdrew her complaint against the appointment of a curator ad litem.
On 31 March 2000 the case file was returned to the Lauterbach District Court.
On 26 April 2000 the District Court informed the parties that it intended to appoint the new expert Dr M. On 30 April 2000 the first applicant informed the District Court that she opposed any further examination.
On 12 May 2000 the District Court appointed the expert Dr M.
On 2 June 2000 the applicant lodged a motion for bias against the expert Dr M, which was rejected by the District Court on that same day.
On 17 June 2000 the applicant lodged a further complaint for inactivity against the District Court judge.
On 25 June 2000 the first applicant lodged a further motion for bias against the District Court judge.
On 10 August 2000 the applicant lodged a motion for bias against several judges of the Regional Court and of the Court of Appeal.
On 4 September 2000 the Frankfurt Court of Appeal rejected the applicant’s further complaint against the rejection of the applicant’s motion for bias against the expert.
On 11 September 2000 the Court of Appeal rejected the first applicant’s complaint for inactivity on the grounds that the District Court judge had not been entitled to take any procedural actions – with the exception of those which could not be delayed – as long as the motion for bias brought out against her by the applicant was still pending.
On 16 September 2000 the first applicant lodged a further appeal against the Court of Appeal’s decision of 11 September 2000.
On 18 October 2000 the Federal Court of Justice (Bundesgerichtshof) rejected the applicant’s further appeal as inadmissible.
On 9 November 2000 the Frankfurt Court of Appeal, sitting as a chamber of three judges, rejected the first applicant’s motion for bias against the District Court judge. Having analysed the entire case file, that court considered that there was no indication that the District Court judge had failed in her professional duties. With regard to the allegation that the judge had delayed the proceedings, the Court of Appeal found as follows:
“The mother’s allegations, according to which the judge had violated her duties, in that she had, in particular, failed sufficiently to examine the case and that she had stayed inactive, are completely absurd. On the contrary, the judge attempted intensively to promote the proceedings and accurately to examine the facts in order to gain a stable basis for reaching her decision. Conversely, the mother and her counsels have delayed the proceedings by lodging various procedural requests, both admissible and inadmissible appeals and other motions, including rejections on grounds of bias, administrative complaints, criminal informations for perversion of justice and petitions...”
On 10 November 2000 the second applicant absconded from the foster family in order to avoid a meeting with a Youth Office official. He returned to his home-town Schlitz were he was seized by the police on 13 November 2000.
On 14 November 2000, during a hearing before the District Court, the parties agreed that the second applicant should be allowed to visit the first applicant and subsequently return to the foster family. The following day the second applicant declared that he wished to remain in the first applicant’s household.
On 6 December 2000 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the first applicant’s constitutional complaint against the decisions of 15 January and 2 July 1998.
On 29 January 2001 the Lauterbach District Court, following a further hearing, revoked its decision of 15 January 1998 and restored parental authority to the first applicant. It noted that the second applicant had declared that he wished to stay with his mother and that both the Youth Office and the child’s curator ad litem had agreed that parental authority should be restored to the applicant.
On 5 May 1998 the first applicant requested to be granted by interim order the right to supervised visits on a weekly basis and to oblige the Youth Office to submit regular reports on the second applicant’s personal and school development. She complained that she had been denied access to her son since 13 January 1998.
On 27 May 1998 the Lauterbach District Court ordered the preparation of an expert opinion concerning the question if and to what extent the first applicant should be granted visiting rights.
On 15 July 1998 the applicant requested the District Court to withdraw the court-appointed expert F, as she appeared to be biased against her.
On 6 November 1998 the District Court rejected the applicant’s motion for bias.
On 9 November 1998 the psychological expert F submitted her expert opinion. She considered that the second applicant had experienced several times that his mother had threatened to give him away or had indeed given him away, for example by placing him in a psychiatric hospital or with his sister. As the second applicant emotionally and socially depended on his mother, this situation appeared to threaten his existence. This was aggravated by the fact that he did not have any positive memories of his biological father and that the contacts to his sister, as an important confidant, had been restricted by his mother. The second applicant tried to overcome this emotional and existential insecurity by accepting the foster family as the new centre of his life in order to become independent from his mother. When exposed to strong psychological pressure, the second applicant tried to avoid the situation or showed auto-destructive reactions, such as a suicide attempt in 1995.
The applicant’s wish not to see his mother had to be regarded as an attempt to distance himself. This wish had to be taken seriously. It was thus not appropriate to impose contacts against the second applicant’s wishes. The expert recommended offering both applicants psychological support in order to enable them to understand the situation and to find solutions to the conflict.
On 12 November 1998 the District Court scheduled an oral hearing for 2 December 1998.
On 19 November 1998 the applicant informed the District Court that she requested a decision on the further complaint she had lodged on 30 September 1998 against the rejection of her motion for bias against the District Court judge lodged in the custody proceedings.
On 24 November 1998 the applicant lodged a complaint against the rejection of her action for bias against the court-appointed expert.
On 26 November 1998 the District Court cancelled the hearing on 2 December 1998 with regard to the applicant’s further complaint regarding the motion for bias against the judge.
On 8 December 1998 the Frankfurt Court of Appeal rejected the applicant’s complaint against the rejection of the motion for bias against the District Court judge.
On 11 March 1999 the District Court heard the expert, both applicants, and the foster mother. According to the District Court’s minutes, the first applicant agreed that a psychological expert be commissioned in order to prepare the ground for contacts between the first applicant and, firstly, the foster family, and, subsequently, the second applicant.
On 26 May 1999 the court-appointed psychological expert W informed the District Court that there had been a misunderstanding between the parties. While the first applicant expected to see her son under the expert’s supervision, the foster family expected that the meetings took place between the first applicant and the foster parents, without the child’s direct involvement. The first applicant did not wish to meet the foster parents. When the expert tried to meet the second applicant, the foster parents informed her that the child should be given the chance to settle down and that the child’s psychotherapist considered that meetings should not begin before the end of the summer holidays.
On 31 May 1999 the District Court judge requested the Youth Office to assure that the foster parents did not prevent the expert from meeting the child.
On 20 June 1999 the expert W informed the District Court that she did not see a possibility to carry out her task, as the foster parents refused her access to the child and were supported by the child’s psychotherapist.
On 16 July 1999 the applicant lodged an action for inactivity against the District Court judge.
On 10 August 1999 the District Court rejected the first applicant’s request to be granted the right to visit the second applicant. It further ordered the Youth Office to inform the first applicant regularly about the child’s development.
The District Court noted that the second applicant had repeatedly declared both before the District Court and before the Court of Appeal that he did not wish to see his mother, as he was afraid of being once again beaten by her. The District Court concluded that the second applicant, who had matured according to his age, seriously and understandably opposed to visits. Under these circumstances, it was impossible to impose visits against his will. Before the background of the family conflicts and the circumstances which led to the withdrawal of parental authority, this would be contrary to the child’s best interests. The District Court further noted that the psychological expert F had found that the second applicant’s wish to distance himself from his mother had to be taken seriously.
This finding was confirmed by the District Court’s own impression during the oral hearing of 11 March 1999. As the second applicant did not feel up to meet his mother, there was ground to fear that forced visiting contacts in the near future would lead to serious damages to his psychological stability and development.
On 26 August 1999 the first applicant lodged a complaint.
On 11 October 1999 the Frankfurt Court of Appeal rejected the first applicant’s complaint against the alleged inactivity of the District Court on the ground that the District Court had promoted the proceedings by its decision of 10 August 1999.
On 12 October 1999 the first applicant lodged an administrative complaint against the District Court judge.
On 8 November 1999 the first applicant laid a criminal information against the District Court judge.
On 11 February 2000 the judge rapporteur of the Frankfurt Court of Appeal heard the first applicant and a representative of the Youth Office. During the hearing, the judge phoned the second applicant’s psychotherapist and arranged a meeting with the applicants for 2 March 2000 in the psychotherapist’s offices.
On 2 March and 11 April 2000 the judge rapporteur arranged and attended two meetings between the applicants.
On 9 May 2000 the Court of Appeal held another hearing with the aim of arranging further meetings between the applicants. According to the court minutes, the rapporteur explained the second applicant that he had to abide by certain social rules and that he would not suspend the first applicant’s access rights. The second applicant firmly objected to any further meetings with his mother. Upon suggestion of the second applicant’s curator ad litem, a further meeting between the applicants and the judge rapporteur was scheduled for 15 May 2000.
The second applicant did not appear at the meeting.
On 27 July and 10 August 2000 the curator ad litem informed the Court of Appeal that the second applicant was presently opposed to any personal contacts with his mother.
On 20 August 2000 the foster parents informed the Court of Appeal that the second applicant continued to oppose any contact to his mother, in spite of the joint efforts made by themselves, the Youth Office and the psychotherapist to convince him otherwise. It appeared that the second applicant could not stand the psychological pressure, as was demonstrated by the fact that he had absconded before the scheduled meeting and that his problems at school had aggravated since February 2000.
On 26 August 2000 the first applicant lodged a constitutional complaint about the length of the proceedings relating to custody and access rights, which was rejected by the Federal Constitutional Court on 6 October 2000.
On 4 September 2000 the Frankfurt Court of Appeal rejected the first applicant’s complaint and suspended her access rights until the termination of the main proceedings on parental authority before the Lauterbach District Court, or until 31 December 2001 at the latest.
The Court of Appeal observed, at the outset, that a parent’s right of access to his or her child was protected by Article 6 § 1 of the Basic Law. If it was not possible to find an agreement on visiting contacts, the courts were called upon to reach a decision which respected both the constitutionally guaranteed rights of the parent – in the present case the mother – and the child’s welfare. The remainder of the decision reads as follows:
“In the course of the instant proceedings, a curator ad litem was appointed pursuant to section 50 of the Law on Non-Contentious Proceedings, and both Angelo and the applicant were repeatedly heard by the rapporteur (see the minutes of the hearings held on 11 February, 2 March, 11 April and 9 May 2000). It became clear during all the personal hearings that Angelo presently does not wish any contacts to his mother and that he only took part in the meetings because these had been ordered by the court. This is not disproved by the fact that Angelo’s second meeting with his mother, which took place on 11 April 2000, was less tense than the previous meeting on 2 March 2000. The child expressed during all the hearings that he felt at ease in the foster family, where he felt understood. Conversely, his attitude demonstrated that he did not have any confidence in his mother, but was sceptical towards her. He frequently declared that his mother was only lying to him. The present rejection of his mother culminated when Angelo absconded on the date of the third scheduled meeting on 15 May 2000. The senate acknowledges that this meeting was scheduled by the rapporteur against Angelo’s will during the hearing on 9 May 2000. The rapporteur, the foster parents and the curator hoped that Angelo would attend that meeting because of the court order. Angelo’s resistance, which was expressed by his running away, induces the senate to fear that it would lead to uncontrollable actions, including auto-aggressiveness, if he was forced to further personal contacts.
The mother’s right to personal access has to cede in view of this irrational behaviour. The senate acknowledges that the right to personal access forms part of the natural parental rights and of the parental responsibility. However, this right meets its limit at a point where there exists the danger of the child’s causing damage to himself (see section 1684 § 4 of the Civil Code).
The rapporteur has tried to re-establish personal contacts between mother and child and arranged several meetings. [The rapporteur] tried to convince the mother to refrain from raising reproaches against third persons (curators, foster parents, experts, therapists, judge, Angelo’s half-sister), and to try instead to keep these questions away from Angelo and to accept during the conversation with her child that the latter presently lived with the foster family, where he felt at ease. During the hearings held on 2 March and 11 April 2000 this strategy succeeded as long as the rapporteur was present and controlled the course of conversation. The mother’s behaviour during the few minutes she spent alone with Angelo led to defence reactions, he closed himself up and did not see any other resort than running away.
Having regard to the above, the mother’s complaint had to be rejected as being unfounded. It is presently only possible to stabilise the child if Angelo is not forced to any personal contact with his mother and if he is given the opportunity to stabilise himself in an environment which he considers as safe.
The senate considers that access rights have to be suspended for a longer period of time, as the pressure the child is exposed to in the course of the proceedings on parental authority requires protecting him for further months. Taking into account that Angelo’s individual rights are limited by the parental rights and that he is obliged to respect his mother’s right of access to him, it appears appropriate to limit the suspension of access rights until the end of custody proceedings, or at the latest until December 2001.”
This decision was served on the applicant’s counsel on 10 September 2000.
By telefax of 9 October 2000 the first applicant lodged a constitutional complaint.
On 23 October 2000 an administrative officer of the Federal Constitutional Court informed the applicant that her constitutional complaint appeared to have been lodged out of the statutory time-limit of one month, as the original version and annexes reached the constitutional court only on 12 October 2000.
On 6 December 2000 the Federal Constitutional Court refused to admit this constitutional complaint for adjudication without giving any reasons.
Since July 2002 the second applicant stayed with his natural father. On 26 September 2002 the Alsfeld District Court transferred parental authority from the first applicant to the second applicant’s father.
On 10 January 2003, following the first applicant’s complaint, the Frankfurt Court of Appeal decreed that parental authority remained with the first applicant and ordered the father to return the child.
“...
(2) Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them. The State watches over the performance of this duty.
(3) Separation of children from the family against the will of the persons entitled to bring them up may take place only pursuant to a law, if those so entitled fail in their duty or if the children are otherwise threatened with neglect.”
Section 1666 § 1 of the Civil Code provides that the family courts shall be entitled to take the necessary measures to avert dangers to the physical, mental or spiritual welfare of a child caused by an abusive exercise of parental custody, by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers.
Pursuant to section 1666a § 1 of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including assistance by public authorities.
The second sub-paragraph of Article 1666a provides:
“Full [parental] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger.”
According to section 1684 of the Civil Code, a child is entitled to have access to his or her parents; each parent is obliged to have contact with, and entitled to have access to, the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare.
A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child’s well-being would be jeopardised (section 1684 § 4).


ITEMID: 001-107665
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: BULAKH v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The application was lodged on 21 March 2008 in the name of Mr Mykola Grygorovych Bulakh, a Ukrainian national who was born in 1958, by his widow, Mrs Kateryna Vasylivna Bulakh. Subsequently, in her letter of 14 November 2008, she informed the Court about the death of her late husband on 11 May 2006, expressing, at the same time, her wish to pursue the application.
The Ukrainian Government (“the Government”) were represented by their Agent, Ms V. Lutkovska, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 November 1998 Mr Bulakh instituted civil proceedings in the Makarivsky District Court against his employer seeking compensation for his occupational disability.
Following repeated reconsiderations of the case by the courts of two judicial levels, on 2 June 2004 the Makarivsky Court partly allowed the claim and awarded Mr Bulakh UAH 14,009.97 in compensation.
On 12 October 2004 the court of appeal upheld the first instance judgment.
On 11 May 2006 Mr Bulakh died.
On 25 September 2007 the cassation instance, upon the parties’ appeal on points of law of 15 November 2004, confirmed the lower courts’ decisions.
Mrs Bulakh did not take part in the proceedings.


ITEMID: 001-82541
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ANISINA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Ms Liliya Nikolayevna Anisina, is a Ukrainian national who was born in 1952 and lives in Makyiyvka. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs I. Shevchuk and Mr Y. Zaytsev.
The applicant was born in 1952 and lives in Makyiyvka.
In April 2001 she instituted proceedings in the Sovetskyy District Court of Makyiyvka against Mr M., seeking recovery of a debt and compensation for non-pecuniary damage. The applicant submitted that on 10 June 2000 Mr M. had borrowed USD 3,000 from her, which he had undertaken to give back in two months. In September 2000 the applicant asked him to return the money, but Mr M. refused.
In the course of the proceedings, Mr M. confirmed that he had received the money from the applicant. He however stated that the applicant had given him the money for the use in commercial transactions under the condition that he would pay her 60% of his monthly income. Mr M. further stated that by November 2000 he had given the full amount back to the applicant.
On 9 July 2001 the court ruled in part for the applicant. It found that the parties had reached an oral agreement on the money loan, which was evidenced by their submissions before the court. The court also noted that in 2000 Mr M. had made similar written submissions to the police, confirming that he had taken the money from the applicant for the use in his commercial transactions.
The court further found that the submissions of Mr M. that he had paid back the money were unsubstantiated, as they were not supported by any documentary evidence.
It ordered Mr M. to pay the applicant the equivalent of USD 3,000 in the Ukrainian national currency (hryvnya). The court also awarded her UAH 2,000 in compensation for non-pecuniary damage.
Mr M. appealed, alleging that the first instance court had erred in establishing the facts of the case. In particular, he stated that, since the court had found that there had been a debt without having any documentary evidence before it, it should not have rejected his submissions that the debt had been paid in full.
On 20 September 2001 the Donetsk Regional Court of Appeal (the Donetsk Court) quashed the judgment of 9 July 2001. It held, referring to Article 375 of the Civil Code of 1963, that Mr M. should not have been required to provide documentary evidence to establish that he had fulfilled the obligation deriving from the contract which had been concluded orally. Such a requirement existed in respect of written contracts. Since the applicant failed to provide any documentary evidence to demonstrate that there was an outstanding debt, which was contested by Mr M., her claim for the recovery of that debt was rejected as unsubstantiated.
By the same judgment, the court of appeal ordered the applicant to pay the State the court fee of UAH 181.40.
The applicant appealed in cassation, alleging that the judgment of the Donetsk Court was arbitrary. On 11 January 2002 the panel of three judges of the Supreme Court rejected the applicant’s appeal, finding that the judgment of the court of appeal was lawful.
On 28 March 2002 the Donetsk Court adopted a supplementary decision, by which it rejected the applicant’s claim for compensation for non-pecuniary damage as unsubstantiated. The applicant did not appeal in cassation against that decision, as, according to her, it was not to be appealed under Ukrainian law.
The relevant provisions of the Code read as follows:
“[The following] should be concluded in writing:
2) agreements between citizens concerning a sum of more than 100 karbovantsiv[]...
3) other agreements between citizens which the law requires to be concluded in a written form...”
“The parties shall have no right to refer to witnesses’ statements to prove the existence of a contract in case of a dispute, if that contract was not put in writing, which was required by the law[. In] cases specifically mentioned in the law, [the failure to observe the requirement of written form] entails the nullity of a contract...”
“Pursuant to a contract of loan, a party (the lender) gives [a sum of] money ... to another party (the debtor), and the debtor undertakes to return the same sum of money...
A contract of loan shall be considered as concluded at the time of the money transfer...
“A contract of loan for more than 100 karbovantsiv shall be concluded in writing.”
“A debtor has a right to deny a contract of loan ... by proving that the money ... was not in fact received by him ... or that [he] received less money than mentioned in the contract.
If a contract of loan must be concluded in writing (Article 375 of this Code), [the parties] are not allowed to deny [that the money were transferred or received] on the basis of witnesses’ statements, except if the matter involves an act punishable under criminal law.”
The relevant provisions of the Code read as follows:
“
“The court, who delivered a judgment [in the case], may, upon an application of persons who take part in the case or upon its own motion, adopt a supplementary decision in [the following] cases:
1) if any of the claims, concerning which the parties submitted evidence and observations, was not adjudicated;
...
The question concerning [possible] adoption of a supplementary decision may be raised within ten days of the date of the judgment.
The court adopts a supplementary decision after the question was considered in a hearing to which the parties were summoned.
An appeal may be lodged against a supplementary decision within ten days following its adoption...”
The relevant extracts from paragraph 8 of the Resolution read as follows:
“... According to Article 29 of [the Code of Civil Procedure] the existence of legal relations, concerning which there is a requirement of written form (Article 46 of [the Civil Code]), may not be established on the basis of witnesses’ statements.
At the same time, the fact that such a contract was executed can be established on the basis of any evidence ..., including witnesses’ statements.”


ITEMID: 001-90985
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF PETIKON OY AND PARVIAINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;No violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The second applicant was born in 1947 and lives in Espoo.
5. The applicant company, which is wholly owned and administered by the second applicant, bought shares in a housing corporation on 18 June 1992. Later the applicants found out that the same shares had been given as security by company X. which had been declared bankrupt. They also found out that the whole of the real estate had been placed under an interdiction against sale or dispersal.
6. On 23 August 1993 the applicant company initiated an action for damages in the Espoo District Court (käräjäoikeus, tingsrätten) against the bank and the bank director responsible for selling the shares, claiming compensation for the loss of the shares. On 25 October 1993 the District Court dismissed the claim as premature without considering the merits.
7. On 23 December 1993 the applicant company initiated, together with the other share holders, a new action for damages against the bank as the rules on civil procedure had changed in the meantime. The company claimed that the damage had been caused by a bank manager and that the bank as employer was liable for its employees. Allegedly, the bank manager had given incorrect information, had not acted diligently but in breach of good banking practice and was guilty of criminal conduct. The company claimed that the bank was obliged to compensate, inter alia, by reimbursing the purchase price of the shares, the condominium charges paid to the housing corporation and the company’s legal expenses incurred in the criminal case.
8. The case was postponed pending the outcome of other civil proceedings related to the present case. The final judgment in those proceedings was rendered on 7 December 1995.
9. After the conclusion of the above-mentioned civil proceedings, the present case was postponed once more pending the outcome of criminal proceedings which had been brought against the representatives of the bank and which concerned the same sale of shares. The Helsinki District Court judgment in the criminal proceedings was issued on 19 December 1997.
10. In letters dated 14 January and 2 April 1998 and addressed to the Espoo District Court, the applicant company requested that, despite the pending appeal against the judgment in the criminal case, the consideration of the present case be resumed.
11. On 2 April 1998 the applicant company also informed the Espoo District Court that the shares in the housing corporation had been declared part of the bankruptcy estate of company X. pursuant to the above-mentioned final judgment of 7 December 1995. The shares were thus worthless since the housing company was de facto bankrupt.
12. On 18 June 1998 the defendant bank requested that the proceedings remain adjourned pending the outcome of criminal proceedings since the proceedings were still pending on appeal.
13. On 6 November 1998 the Espoo District Court held a preparatory meeting. On 4 March 1999 it decided to adjourn the proceedings pending the final outcome of the criminal proceedings. According to the court, it was important to await that outcome as the question of criminal liability formed the basis of the civil proceedings and the cases partly overlapped.
14. On 8 March 1999 the applicant company lodged an appeal with the Helsinki Appeal Court (hovioikeus, hovrätten), requesting that the Espoo District Court decision of 4 March 1999 be annulled and that the civil proceedings be immediately resumed. It claimed that, due to the adjournment, the proceedings would necessarily last over ten years and that, as a result, the excessive length of the proceedings would violate its rights under Article 6 of the Convention. It requested that the proceedings in the Appeal Court be examined urgently.
15. On 6 May 1999 the Appeal Court found that the applicant company’s appeal did not give reason to take any action.
16. By an appeal dated 21 June 1999 the applicant company appealed against this decision to the Supreme Court (korkein oikeus, högsta domstolen), which refused leave to appeal on 10 December 1999.
17. The applicant company filed a written statement dated 31 July 2001 informing the Espoo District Court that the criminal proceedings had been terminated by a final judgment given on 9 March 2001 and requesting the resumption of the civil proceedings.
18. On 27 November 2001 the second applicant lodged a request to intervene in his own name in the proceedings before the Espoo District Court and claimed compensation. The applicants presented as written evidence a deed of sale with which the second applicant had purchased the said shares of the housing corporation from the applicant company on 1 December 1992 and with which the claim for compensation had been transferred to the second applicant.
19. The court held an oral hearing in the case on 3 and 7 May 2002.
20. By a judgment of 10 July 2002, the Espoo District Court first rejected the second applicant’s request to intervene and found that the first applicant was the correct plaintiff. The court rejected the remainder of the complaints and considered that the circumstances of the sale of the shares and the documents relating to it were so obscure that the risk involved in the purchase had been apparent. Moreover, the court found no causal link between the acts of the defendant bank and the damage suffered by the first applicant.
21. By an appeal dated 2 September 2002, the applicants appealed to the Appeal Court, requesting that the Espoo District Court judgment be quashed. By a letter dated 6 August 2003, the applicants asked the appellate court to accelerate the proceedings.
22. On 1 February 2005 the Appeal Court found that the rightful owner of the shares was the second applicant and that, consequently, only the second applicant could claim damages. The court noted, however, that the defendant bank had already paid compensation and interest due from 6 February 1996 onwards. Since the second applicant had claimed damages in his own name only on 27 November 2001, he no longer had any claims against the bank. The Appeal Court thus rejected the applicants’ appeal.
23. On 4 April 2005 the defendant bank appealed to the Supreme Court, complaining about the partial rejection by the Appeal Court of its claim for costs and expenses. On 18 January 2006 the Supreme Court refused leave to appeal.
VIOLATED_ARTICLES: 6
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-58254
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF SÖDERBÄCK v. SWEDEN
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: R. Pekkanen
TEXT: 6. Mr Söderbäck was born in 1957 and lives in Stigtomta. Since 1987 he has worked as a bus driver.
7. The applicant met K.W. in 1980. They were friends but did not have a steady relationship. On 19 September 1982 K.W. gave birth to a daughter, M., of whom the applicant was the father. The applicant visited K.W. and the child at the maternity ward on one occasion. In the following months he met M. twice at K.W.’s home. He also attended M.’s christening. During the spring of 1983, he once looked after M. for about an hour. No further contacts took place between the applicant and his daughter that year.
As appears from a report by the Social Council (socialnämnden) of Nyköping (see paragraph 13 below), K.W. claimed that the applicant had a problem with alcohol and considered it inappropriate that he met the daughter unless he was sober. The applicant maintained that he gave up his attempts to see M., in part because he felt obstructed by K.W., in part because his continued commitment to the daughter had been undermined by difficulties in his job. He had also had problems with alcohol.
8. According to the applicant, these problems ceased when he met A.H. in 1984. She had a two-year-old son. They started cohabiting in January 1985.
9. In 1983 K.W. met M.W. They began to live together in May 1983. K.W. and M.W. married in January 1989.
10. The applicant met his daughter once in 1984. He wished to see her more often but K.W. allegedly opposed further contacts. However, the applicant saw the daughter from time to time between 1984 and 1986 when he and A.H. took her son to his childminder, who lived close to M.’s childminder. The applicant met M. again in June 1986 when she attended A.H.’s son’s birthday party.
11. Since K.W. allegedly refused the applicant access to M., he contacted the social authorities in Nyköping in June 1987 and asked for help in arranging for access to M. In November 1987 the applicant and K.W. met once at the social welfare office to discuss the matter. K.W. expressed the wish that the applicant should not have access to his daughter yet. The responsible social worker had some further contacts with the applicant and K.W. separately in 1988, but no meetings took place between the applicant and M. As appears from the relevant diary entries, he contacted the authority concerned once every other month, at the most.
12. In November 1988, M.W. applied to the District Court (tingsrätten) of Nyköping for permission to adopt M. In February 1989 the applicant, who objected, requested the District Court to grant him access. The court decided to obtain an opinion from the Social Council of Nyköping (Chapter 4, section 10 of the Parental Code – Föräldrabalken) and to adjourn its examination of the question of access pending the outcome of the adoption proceedings.
13. The Council carried out an investigation during which it heard the applicant (Chapter 4, section 10, of the Parental Code), K.W. and M.W. In an opinion of 31 October 1989, the Council concluded that adoption of M. by M.W. would not be in the child’s best interests and, accordingly, recommended the District Court to reject M.W.’s application. In reaching this conclusion, the Council had regard to the following considerations.
In the first place, it was observed that K.W. and M.W. had been living together for over six years and had been married since January 1989. It appeared that their marriage was stable and harmonious. M.W. had become M.’s psychological father and had feelings for her as though she was his own child. M.W. considered it appropriate to confirm this by adopting her and thereby secure her position within the family.
The report further noted that the applicant seemed to have a stable relationship with A.H. and her son. He had affirmed that he had always had an interest in his daughter but that, for a few years, he had not had the energy to have contact with her because of his difficult situation. He was opposed to adoption and considered that his daughter had a right to know her natural father. The applicant was aware of the fact that the contact had to be developed cautiously over a certain period.
In addition, the report observed:
“The investigators are of the opinion that [M.], like all other children, has a right to know her descent. It is also important that she be informed as early as possible. Thus, we disagree with [K.W.’s] and [M.W.’s] opinion that it is better for [M.] to wait. On the contrary, we believe that, in all probability, it will be a traumatic experience for [M.] to be told, in her teens or as an adult, that [M.W.] is not her natural father. We also consider that [M.] has a right to get to know her father and his family. We do not share [K.W.’s] and [M.W.’s] fears that [M.] would become distant from [M.W.], although it would be natural for her to react in one way or another. However, we are of the opinion that it could be beneficial for [M.] to get to know her father and his family. Her feeling of belonging to [M.W.] does not, for that reason, have to be changed and [M.W.] will probably always be [M.’s] psychological father.

The investigators do not consider that there is question of making an assessment of who is the ‘best’ father but rather a matter related to the right to know, and to enjoy access to one’s descent. Therefore we do not find it appropriate to support M.W.’s request to adopt M.”
14. The District Court held a hearing on 12 December 1989 during which it heard the applicant (Chapter 4, section 10, of the Parental Code) and M.W. By decision of 22 December 1989, the court granted M.W. permission to adopt M. under Chapter 4, section 6, of the Parental Code. The court gave the following reasons:
“The investigation in the case shows that [M.] since birth has lived with [K.W.] and that [M.W.] has taken part in the care of [M.] since she was eight months old. According to the information received, [M.] sees [M.W.] as her father. [The applicant] appears to have met [M.] occasionally in the beginning, but access has thereafter practically ceased. In these circumstances, M. cannot be considered to have such a need of contact with [the applicant] as to constitute an impediment to adoption.
For these reasons, and since adoption must otherwise be considered to be in her interest, the application shall be granted.”
15. On 5 February 1991 the Svea Court of Appeal (Svea hovrätt) upheld the District Court’s decision. On 19 June 1991 the Supreme Court (Högsta domstolen) refused leave to appeal.
16. General provisions on custody and access are to be found in Chapter 6 of the Parental Code. Section 3 provides that, from birth, the custody of a child rests with the child’s parents, if they are married, or its mother, if the parents are not married. According to section 4, unmarried parents may obtain joint custody on application.
Under Chapter 6, section 15, the child’s custodian shall see to it that the child’s need of access to, inter alia, a parent who does not have custody is satisfied to the largest possible extent. If the custodian objects to the access requested by a parent who does not have custody, the courts shall, on an action brought by the latter parent, determine the question of access in keeping with the child’s best interests.
17. Chapter 4 of the Parental Code contains provisions on adoption. Section 3 provides that a spouse may, with the consent of the other spouse, adopt the other spouse’s child. According to section 5(a), a child who has not attained the age of 18 may not be adopted without the consent of its parents. Such consent is however not required from a parent who does not have custody of the child.
Under Chapter 4, section 6, the competent court is to examine whether adoption is appropriate and may grant permission only if it is to the advantage of the child and if the prospective adopter has brought up the child or intends to do so or if there are special reasons for the adoption in view of the special relationship between the adopter and the child.
According to Chapter 5, section 8, an adopted child is for legal purposes regarded as the adopter’s child and not that of the natural parent, except where the natural parent is the adopter’s spouse. Where this exception does not apply, the rights of access enjoyed by the natural parents to the child cease by virtue of the adoption.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-118590
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF TRUNK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
TEXT: 5. The applicant was born in 1957 and lives in Portorož.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. The applicant was a public servant working for the Centre for Educational and Extracurricular Activities (“the Center”). He was laid off following disciplinary proceedings. On 11 October 1996 he instituted proceedings before the Ljubljana Labour and Social Court against the Ministry of Education and Sport (“The Ministry”) and the Centre seeking the annulment of the decision on termination of his employment contract together with all the rights and benefits stemming from the termination of the contract.
8. On 23 February 1998 the first hearing was held.
9. On 22 September 1998 the court issued a decision after the applicant withdrew his claim against the Ministry.
10. Between 8 October 1998 and 8 November 1999 the first-instance court held three hearings. In addition, in May and April 1999 two hearings were postponed on the request of the defendant party. A hearing was held on 8 November 1999.
11. On 22 December 1999 the first-instance court rendered a judgment rejecting the applicant’s request. He appealed.
12. On 5 April 2002 the Ljubljana Higher Labour and Social Court upheld the appeal in part and remitted the case for re-examination. The court remitted part of the case because a preliminary submission of the defendant had not been sent to the applicant and he could therefore not submit his comments on the matter.
13. On 18 June 2002 the first-instance court held a hearing and rendered a judgment. The court found the first-instance disciplinary decision (see paragraph 7 above) to be lawful and the second-instance decision to be unlawful. Accordingly the court concluded that the applicant’s employment contract had been terminated lawfully, however the decision on termination became final only when the judgment became final. The court therefore found that the applicant was entitled to the employment rights and benefits for the relevant period. The applicant appealed.
14. On 25 September 2002 the Ljubljana Labour and Social Court issued a corrigendum of the judgment.
15. On 27 August 2004 the Ljubljana Higher Labour and Social Court delivered a judgment. As the applicant kept lodging new requests concerning his rights and benefits throughout the proceedings the appeal court considered one such request in the appeal as a request for a supplementary judgment. The court rejected the remainder of the appeal and in this part the judgment became final. The applicant lodged an appeal on points of law.
16. On 4 November 2004 the Ljubljana Labour and Social Court rejected the appeal on points of law on procedural grounds. The applicant appealed.
17. On 14 January 2005 the Ljubljana Higher Labour and Social Court upheld the appeal. The appeal on points of law was sent to the Supreme Court.
18. On 25 October 2005 the Supreme Court rejected the appeal on points of law. The applicant lodged a constitutional appeal.
19. On 7 June 2006 the first-instance court issued a judgment (see paragraph 15 above). The applicant appealed.
20. On 5 October 2006 the appeal was rejected. The appeal court found inter alia that the applicant had been requesting rights and benefits after the appeal judgment became final without any grounds.
21. On 12 February 2007 the Constitutional Court rejected the constitutional appeal.
22. On 20 December 1996 the applicant’s former employer instituted proceedings against him before the Ljubljana District Court seeking the restitution of work-related material following the dismissal.
23. On 14 May 1997 the Ljubljana District Court issued a decision ordering the applicant to return the disputed material. The applicant appealed.
24. On 3 July 1997 the court held a hearing and annulled the decision. The plaintiff appealed.
25. On 14 October 1997 the Ljubljana Higher Court rejected the appeal.
26. On 18 December 1997 a decision was issued, whereby due to lack of jurisdiction the case was transferred to the Piran District Court.
27. On 28 November 1998 the applicant lodged a counter claim seeking payment for the updates he made to a computer and car expenses.
28. On 8 January 2001 the proceedings were stayed. The proceedings resumed on 9 April 2001.
29. On 15 October 2001 the Piran District Court issued a decision on termination of proceedings following the withdrawal of the claim by the plaintiff. The applicant, however, decided to pursue his counter claim.
30. On 5 February 2002 the Piran District Court issued a decision on lack of jurisdiction. The case was transferred to the Ljubljana Labour Court.
31. Between 12 April 2002 and 14 March 2003 the Ljubljana Labour Court held four hearings.
32. After the last hearing the court rendered a judgment upholding the applicant’s request in part. Both parties appealed.
33. On 18 November 2004 the Higher Labour and Social Court upheld the appeals and remitted the case for re-examination.
34. On 23 March 2007 the Ljubljana Labour Court held a hearing and rendered a judgment upholding the applicant’s request in part. An appeal was lodged.
35. On 10 September 2008 the Higher Labour and Social Court rendered a judgment.
36. For relevant domestic law see Tomažič v. Slovenia (no. 38350/02,
13 December 2007).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-103763
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ŠEKEROVIĆ AND PAŠALIĆ v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Violation of Art. 14+P1-1;Non-pecuniary damage - award
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 5. Mr Šekerović was born in 1932 and lives in Tuzla, Bosnia and Herzegovina. Ms Pašalić was born in 1926 and lives in Belgrade, Serbia.
6. Mr Šekerović was granted an old-age pension in 1984 and Ms Pašalić in 1981.
7. In 1992 they moved from what is today the Federation of Bosnia and Herzegovina (“the Federation”) to what is today the Republika Srpska (each of the Federation and the Republika Srpska being an “Entity”). While they were internally displaced, they received their pensions from the Republika Srpska Pension Fund (“the RS Fund”).
8. Having returned to the Federation in 2000 and 2001 respectively, the applicants unsuccessfully sought to have their pension entitlements transferred from the RS Fund to the Federation Pension Fund (“the FBH Fund”). Therefore, in 2002 they lodged applications with the Human Rights Chamber, a domestic human-rights body set up by Annex 6 to the General Framework Agreement for Peace in Bosnia and Herzegovina.
9. On 10 January 2003 the Human Rights Chamber delivered a landmark decision concerning three applicants, including one of the applicants in the present case (Ms Pašalić) and the applicant in Karanović (cited above), who had been granted pensions in what is today the Federation before the war, who had then moved to what is today the Republika Srpska during the war, and who, for that reason only, continued to receive RS Fund pensions despite their return to the Federation after the war (pursuant to the Pension Agreement, see paragraph 16 below). They were thus treated differently from those who had stayed in what is today the Federation during the war. The Human Rights Chamber considered that difference in treatment to be discriminatory and an obstacle to the return of displaced persons to their pre-war homes (RS Fund pensions were normally lower than FBH Fund pensions, and the cost of living was normally higher in the Federation). Furthermore, it held that the situation complained of had racist connotations (given the nature of the war, the population that had moved from what is today the Federation to what is today the Republika Srpska during the war had primarily been Serbs, and those who had stayed were mostly Bosniacs and Croats). The Human Rights Chamber ordered the Federation: (a) to take all necessary legislative and administrative actions by 10 July 2003 to ensure that the applicants were no longer discriminated against, particularly in comparison to those pensioners who had remained in what is today the Federation during the war; and (b) to compensate the applicants for the difference between their RS Fund pensions and the amount they would have received from the FBH Fund from the date of their application to the Human Rights Chamber until the date of the Federation’s compliance with the order under (a) above.
10. Having assessed that her pension from the FBH Fund would have been lower than the nominal amount of her pension from the RS Fund, on 22 July 2003 the FBH Fund informed Ms Pašalić that she would not be paid any compensation. The FBH Fund disregarded the fact that, at that time, pensioners in the Republika Srpska, as opposed to those in the Federation, did not receive the nominal amount of their pensions, but only a fraction thereof, owing to fiscal difficulties in that Entity.
11. Mr Šekerović’s case was still pending when the Human Rights Chamber ceased to exist on 31 December 2003. The Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) took over his case and on 27 June 2007 delivered a judgment similar to that in Ms Pašalić’s case.
12. On 14 December 2007 the FBH Fund decided to pay Mr Šekerović 8,345 convertible marks (BAM) by way of compensation for the difference between the sum which he had received from the RS Fund between 16 April 2002 and 30 November 2007 and the sum which he would have received from the FBH Fund in the same period. It also decided to continue paying any such difference in the future. In March 2008, for example, the applicant received BAM 531 from the RS Fund and BAM 105 from the FBH Fund.
13. After the Karanović judgment, cited above, the FBH Fund revised its practice and agreed to compensate Ms Pašalić for the difference between the sum which she had actually received from the RS Fund (rather than the nominal amount of her RS Fund pension, see paragraph 10 above) and the sum which she would have received from the FBH Fund in the period after 18 February 2002. In order to determine the amount due, on 23 June and 22 July 2008 the FBH Fund asked the RS Fund to indicate the sums actually paid to Ms Pašalić. The RS Fund failed to respond. On 3 July and 28 August 2008 the FBH Fund sent letters to Ms Pašalić (one to an address in Sarajevo and the other to an address in Belgrade), but they were returned as undeliverable (addressee unknown). In June 2010 the applicant finally provided the necessary information and in July 2010 the FBH Fund paid Ms Pašalić BAM 1,425 (that is, BAM 839 for 2002, BAM 530 for 2003 and BAM 56 for 2004). Since 2005 the applicant had apparently been receiving more from the RS Fund than she would have received from the FBH Fund (in April 2010 she thus received BAM 627 from the RS Fund whereas she would have received BAM 483 from the FBH Fund).
14. On 13 October 2010 the Constitutional Court held that its decision in Mr Šekerović’s case of 27 June 2007 had not been enforced, because he had not yet been granted an FBH Fund pension (see paragraph 19 below).
15. According to official figures, the average pension has always been lower in the Republika Srpska than in the Federation. That difference has, however, decreased: while in 2003 the average pension was BAM 133 in the Republika Srpska and BAM 192 in the Federation, in 2009 the figures were BAM 335 in the Republika Srpska and BAM 346 in the Federation. Furthermore, pensioners in the Republika Srpska now receive, as do those in the Federation, the nominal amount of their pensions (until recently, the former, as opposed to the latter, were only receiving a fraction of their nominal pensions owing to fiscal difficulties in that Entity).
16. The Pension Agreement between the local pension funds entered into force on 27 March 2000. Pursuant to Article 2 § 1 of that Agreement, persons who were receiving pensions from, for example, the RS Fund on 27 March 2000 will continue to receive their pensions from that Fund, even if they subsequently move to the Federation.
17. All pensioners living in one Entity have equal access to health care, regardless of whether they receive their pensions from that Entity or from the other Entity (Article 2 § 2 of the Health Care Agreement).
18. Pensions are not taxable in either of the Entities, regardless of whether they are received from the Entity concerned, from the other Entity or from abroad (see the Income Tax Act 2008 and the Income Tax Act 2006).
19. The former Human Rights Chamber and the Constitutional Court rendered four decisions concerning nineteen pensioners (including the present applicants) who had been granted pensions in what is today the Federation before the war, who had then moved to what is today the Republika Srpska during the war, and who, for that reason only, had continued to receive RS Fund pensions despite their return to the Federation after the war. They held that this amounted to discrimination and ordered that some general measures be taken by the Federation (see paragraph 9 above). The Constitutional Court considered that the full enforcement of those decisions required that the applicants be granted FBH Fund pensions and that the applicable legislation be amended so as to render all others in that situation eligible to apply for FBH Fund pensions (see decisions CH/02/9364 of 13 December 2007 and CH/00/6413 of 13 October 2010).
20. In contrast, as regards those who had been granted pensions in what is today the Federation before the war, who had moved to what is today the Republika Srpska during the war and who had not returned to the Federation after the war, the same bodies held that the fact that they received RS Fund pensions (instead of higher FBH Fund pensions) did not amount to discrimination (Human Rights Chamber’s decision CH/03/12994 of 4 November 2003 and Constitutional Court’s decision AP/272/08 of 28 April 2010).
VIOLATED_ARTICLES: 14
6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1