ITEMID: 001-4588
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: WIELGOSZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1951 and living in Katowice.
A.
I.
On 18 February 1992 the Katowice District Court (Sąd Rejonowy) dissolved the applicant's marriage, awarded custody of the children, P., born in 1988, and Z., born in 1979, to his wife, and granted the applicant access to the children. The Court also decided that the applicant should pay maintenance.
On 25 January 1994 the Gorlice District Court pronounced its new decision concerning access, partly allowing and partly dismissing the applicant's claims. The court allowed the applicant to visit his 5-year-old son P. on every first and third Saturday of the month from 9 a.m. on Saturday to 6 p.m. on Sunday and to take him out so that he could stay overnight with his father in Gorlice; to visit P. on other dates, for not more than 3 days per month, from 9 a.m. of the first day until 6 p.m. of the last day and to take him home, upon 7 days' notice to his mother; to take P. home every other year, for the first or second day of Christmas and Easter, to spend 15 days of the holidays with P., and as from 1994, one month of the holidays and to see his older son Z. as ordered in the divorce judgment and, additionally, on the dates suggested by the applicant, if Z. agreed to it in writing.
The court ordered the mother to respect these arrangements and dismissed the remainder of the applicant's claims.
The applicant lodged an appeal against this judgment which was dismissed by the Nowy Sącz Regional Court (Sąd Wojewódzki) on 28 April 1994.
II.
On 23 November 1994 the applicant requested the Gorlice District Court to take enforcement measures against his former wife, in particular to impose a fine on her, complaining that she had been failing to comply with the access arrangements as set out in the decisions of 25 January and 28 April 1994. The applicant submitted that his wife had been persistently hindering his access to children and that she had made it unfeasible. Inter alia, when he had come to see them on 1 October 1994, she had provoked a violent altercation in the course of which she had breached the applicant’s bodily integrity and had refused permission for him to see P. The applicant further emphasised that it had not been for the first time that she had provoked such a scene. Subsequently, the police had been called in, and following their intervention, she had allowed the applicant to take P. The applicant further submitted that she had not been respecting his right to have a say in the children’s education, as shown by the fact that P. had ceased to attend a kindergarten, contrary to the applicant’s opinion. Moreover, she had put Z. in a boarding school in Katowice, contrary to a previous arrangement to the effect that he would attend secondary school in Katowice and that he would live with his father. The applicant maintained that Z. did not have suitable living conditions in the boarding school and that he would have had a better situation if he lived in the applicant’s apartment.
On 28 November 1994 the applicant challenged judge R.S. on the ground that she had been conducting two sets of proceedings in which he had previously been involved and that, as a result, she lacked impartiality. He submitted in particular that the records of the hearings, as dictated by her, had completely distorted the actual statements of the parties.
On 14 December 1994 the Nowy Sącz Regional Court dismissed the applicant’s challenge of judge R.S. The court considered that the challenge lacked statutory basis as it had not been shown that between the judge and the applicant there was a personal relationship of such nature as to cast doubt on her impartiality.
On 2 March 1995 the Nowy Sącz Regional Court dismissed the applicant’s appeal against this decision, considering that the statutory requirements for a judge to step down were not satisfied.
On 18 April 1995 the applicant lodged his pleadings with the court in which he asked that the police be requested to submit information concerning their intervention in his wife’s apartment on 1 October 1994 and, if possible, also on 20 July 1991. He also requested that a case-file of proceedings concerning division of marital property, pending before the Katowice District Court, or, failing that, certain pages of this file, be submitted to the court and that certain evidence obtained in the latter case be examined by the court. He argued that these documents were relevant to the outcome of the proceedings concerned.
On the same day he complained to the President of the Gorlice District Court that the proceedings exceeded a reasonable time.
On 7 May 1995, the applicant requested the court to give a provisional order allowing Z. to move to his apartment. He argued that the longer the lapse of time between the beginning of the proceedings and the decision to be given, the more his relationship with Z. suffered. This, he claimed, was largely a result of his mother’s animosity towards him, and of her incessant endeavours to hinder the effective exercise of his access rights. He argued that the fact that Z. had been placed in the boarding school had contributed to a limitation of his contacts with him, and that Z. did not have adequate living conditions there.
On 16 May 1995 a hearing was held.
By a motion of 14 June 1995 the applicant requested the court to rectify the record of the hearing held on 16 May 1995, arguing that it did not reflect the actual statements of the parties.
On 16 June 1995 a next hearing was held.
On 25 July 1995 the court in part upheld and in part dismissed the applicant’s request for rectification of the record of the hearing held on 16 May 1995.
On 24 July 1995 the applicant re-entered his motion for a provisional order submitted on 7 May 1995, and requested the court to oblige his former wife to cease any actions aimed at hindering the effective exercise of his access rights, on pain of withdrawal of parental rights. He requested the court to oblige her to permit him to see P. on each and every request made by him. The applicant submitted that since the last hearing, held on 16 June 1995, Z. had not lived in the boarding school and that he had not been informed of this. This, in the applicant’s opinion, showed the flagrant disregard of the mother for his parental rights, in particular in the light of her previous objections to Z. 's moving to his apartment, the altercations which she had provoked, and the fact that she had requested the court to hear Z. in the proceedings concerning access arrangements pending before the same court, which was not beneficial to the child’s emotional stability and was stressful to him. The applicant further complained that she hindered his access rights also with regard to P. She had refused that he could see P. on 14 and 15 May 1995. He further submitted that his contacts with P. were good, the boy was normally willing to see him and requested to be allowed to see his father for a longer time. The contacts with the applicant were beneficial to the boy’s intellectual development. The applicant finally argued that the mother and her family had incessantly been making disparaging comments about him in the presence of the children, trying to negatively influence the children and to destroy the emotional links between them and their father.
On 31 July 1995 the Gorlice District Court dismissed the applicant’s request that a fine be imposed on the boys’ mother and also his request for a provisional order. The court observed that the applicant’s access rights had been set out in the decision of 25 January 1994. It further noted that on 1 October 1994, when the applicant had come to the mother’s apartment, he had demanded in writing that Z. be allowed to see him and that P. should attend kindergarten. After he had been told that Z. had been in the apartment but had not expressed a wish to see him, an altercation ensued between the parties. P. had started to cry and did not want to go with his father. The applicant had called the police. After two policemen had come, there had again been an agitated exchange of views between the applicant and the mother. The applicant had eventually apologised and taken P. for a walk, as had been planned. Z. had not met his father on that day. In the court’s view, it could not be said that the mother had acted with an intention to prevent the applicant from seeing P. It had rather been a result of the fight between the parties and of the police intervention that P. had to be calmed before he had agreed to go out with the applicant.
The court further established that in 1995 before Easter P. had spent a week with his father in Katowice, and later, three days from 1 to 3 May 1995. Only on 13 and 14 May had the mother refused the applicant permission to see P. since she had wished to spend the weekend with the boy herself.
The court noted that the fact that P. had been attending a pre-school course in a kindergarten instead of a school, as the applicant wished, could not be regarded as disrespect for the applicant’s parental rights. P. had good professional teaching here and achieved good results. The court had further regard to the questioning of Z. in the access proceedings pending before the court. The court found that Z. was a sensitive, intelligent, independent boy, strongly attached to both parents. Z. had definitely refused to give his consent to moving to the applicant’s apartment. The court considered that, as the applicant had categorically refused access to his apartment in Katowice to his former wife, even if Z. had lived there, the boy’s position was understandable. The court also took into account Z.’s statement that if he was to be obliged to move to his father’s apartment, he would leave the school in Katowice and return to Gorlice. In the Court’s view, this opinion should be respected.
The court considered that the fact that Z. was in a boarding school, which could give him a good education, was in his best interest. The court further observed that there were no indications that the applicant was in any way prevented by his former wife from seeing Z. who had been living in the same town as the applicant. The court concluded that there were no grounds on which to accept that the mother had been acting in defiance of the access arrangements, and refused to impose a fine on her.
The applicant lodged an appeal against this decision, arguing that the court had failed to establish the facts relevant for the determination of the case, that it had disregarded the flagrant contempt for his parental rights on the part of his former wife and that the decision under appeal had given countenance to her reprehensible and persistent refusal to respect his rights.
On 31 October 1995 the Nowy Sącz Regional Court dismissed the applicant’s appeal, considering that the lower court had carefully assessed extensive evidence and had properly concluded that there were no grounds on which to find that the applicant’s former wife had been acting in defiance of the access arrangements as set out in the judgment of 25 January 1994.
III.
On 23 November 1994 the applicant lodged a request with the Gorlice District Court that custody of Z. be awarded to him. He submitted that Z. had been put in the boarding school without his knowledge and consent, that his living conditions there were inadequate since the building was old and in bad repair and as Z. shared his room with three other boys. He argued that this was contrary to Z.’s best interest and that his wife, without any sound reasons, had refused her consent to a change of Z. ‘s residence. He alleged that the fact that Z. was living in the boarding school facilitated the weakening of the emotional links between Z. and him, in accordance with his wife’s intention. He requested the court to order Z. to move to his apartment and to rule that the contacts of his former wife with Z. be limited to meetings at times decided by the applicant and outside his apartment in Katowice.
On 28 November 1994 the applicant challenged judge R.S. on the ground that she had been conducting two sets of proceedings in which he had previously been involved and that, as a result, she lacked impartiality. He submitted in particular that the records of court hearings in these proceedings, as dictated by her, had completely distorted the actual submissions of the parties.
On 14 December 1994 the Gorlice District Court dismissed his request for the judge to step down, considering that the statutory condition, i.e. a personal relationship between her and the party, capable of casting doubt on her impartiality, was not satisfied.

On 31 December 1994 the applicant lodged an appeal against this decision, arguing that judge R.S. had been conducting other proceedings concerning custody and his access
rights and that she was biased against him, which should be construed as a personal relationship casting doubt on her impartiality within the meaning of Article 49 of the Code of Civil Procedure.
On 23 February 1995 the Nowy Sącz Regional Court dismissed the applicant’s appeal, considering that the statutory requirements for a judge to step down, contrary to the applicant’s submissions, were not met. His complaints could have been raised in the previous proceedings, but even if they had been upheld by an appellate court, it would not suffice in the present proceedings for a finding that the requirements for a judge to step down were satisfied and that she should therefore be prevented from examining the present case.
In a letter of 18 April 1995 to the President of the Gorlice District Court the applicant complained about the length of both sets of proceedings. He submitted in particular that no hearings were scheduled in these proceedings, despite a significant lapse of time since they had been instituted, and that he had been prevented thereby from lodging motions for evidence to be taken by the court. He complained that the court had requested the Katowice District Court to submit the case-file of the divorce proceedings, which would unduly prolong the proceedings. He also argued that the establishing of the facts of the cases would be more difficult due to this lapse of time. He finally submitted that the proceedings were not conducted in compliance with the requirements laid down by Article 6 § 1 of the European Convention of Human Rights as to a “reasonable time”.
On the same day the applicant requested the court to give a provisional order safeguarding his custody claims in that his son Z. would be ordered to move to his apartment. He further requested the court to order his former wife to cease any actions that would negatively affect his son’s relations with him. He further asked the court to request the Katowice District Court to investigate, by way of an enquiry carried out by a court guardian, Z.’s living conditions in the boarding school and the conditions which he could have if he lived with the applicant in Katowice. The applicant also objected to any evidence being taken or any investigations undertaken by experts of the Family Diagnostics Centre at the Nowy Sącz Regional Court as they had participated in the divorce proceedings and, as a result, were biased against him. He further argued that Z.’s marks at school had perceptibly deteriorated since he lived in the boarding school, and submitted a document showing the marks.
In a letter of 7 May 1995 the applicant reiterated his request for a provisional order and requested the court to speed up its actions in respect of his request that an enquiry be made regarding Z. ‘s living conditions in Katowice.
On 16 June 1995 the Court dismissed the applicant’s request for a provisional order.
In his pleading of 21 August 1995 the applicant reiterated his request to be granted custody. He submitted that in the boarding school Z. was deprived of parental care, and that, due to lack of adequate educational supervision by his teachers, he was exposed to negative influence of his environment, including such dangers as alcoholism, drugs and venereal diseases, such as, inter alia, AIDS. It was obvious that Z.’s arguments that he felt well in the boarding school were in part motivated by this freedom from parental supervision. The applicant further stressed that Z’s statements should not be decisive as they had been made under his mother’s influence and dictated by his loyalty to her. Therefore the court should not regard his arguments as being sincere and credible. The applicant reiterated that the mother had strong links with her children and that she deliberately abused their feelings in order to destroy his relationship with them, as shown by the incident of 1 October 1994.
On 25 August 1995 the Gorlice District Court dismissed the applicant’s request for custody of Z. The court had regard to the evidence gathered in the proceedings, which included the case-file of the divorce proceedings, the results of an enquiry made by the court guardian, a copy of the expert opinion prepared by the Nowy Sącz Court’s Family Diagnostics Centre for the purposes of the previous access proceedings, the statements of the parties and the testimony of Z.
The court recalled that in the divorce judgment the court had taken the decision concerning custody and access rights, having regard to the fact that the children had stronger emotional links with their mother and had preferred to be under her care. At that time, Z.’s opinion about his father had been rather disapproving as the child had thought that he had been too strict, very rigorous, that he had not had understanding for his needs and that he had been attaching undue weight to his orders being carried out. The court considered that the circumstances relevant for the determination of the question of custody and access, which had obtained at the time when the divorce judgment had been given, had not changed. Z. had refused to live with the applicant in Katowice in view of his categorical refusal to allow him to have contacts with his mother in his apartment. As the relation that Z. had with her mother was warm and affectionate, and since it was from her that he needed and obtained emotional support and understanding, his refusal had to be seen as justified. Z. was sixteen years’ old and therefore he was able to assess his own and his family situation reasonably and his wishes had to be taken into account.
The court went on to state that Z. lived in the boarding school in the same town as the applicant, but, as the applicant himself had stated before the court, their contacts had become even less frequent than when he had still been living with his mother in Gorlice. The court stressed that it fell to the applicant to ensure good and frequent contacts with the boy, to come to the boarding school and to show more interest in his problems and well-being. His attitude of criticising his son was not beneficial to their relationship. It would be conducive to developing a better relationship if the applicant ceased to communicate to Z. his opinion that boarding school was dangerous to him and that it exposed him to all the evils of civilisation.
In conclusion, the court dismissed the request for the transfer of custody to the applicant.
The applicant lodged an appeal against this decision, complaining that the court had been biased in its interpretation of evidence. The applicant disputed the conclusions of the court, in particular as to his parenting skills and his attitude towards his son. He stressed that he could not visit Z. more often in the school as there were no facilities therefor, and that the boarding school was located far from his apartment which, together with his professional obligations and Z.’s school duties, explained why the contacts between them were less frequent. He stressed that it was obvious that his former wife had been hindering his contacts with the children, having recourse to lengthy judicial proceedings and even to false testimony, and by lying and slandering him. He requested that the court upheld his claims in full.
On 14 November 1995 the Nowy Sącz Regional Court dismissed the appeal, considering that the lower court had taken extensive evidence, assessed it carefully and had drawn reasonable and well motivated conclusions.
B. Relevant domestic law and practice
Article 443 of the Polish Code of Civil Procedure provides that the court competent to deal with an action for divorce is also competent to issue any interim orders concerning the manner in which the care of the parties' minor children should be carried out and about the access rights until the divorce judgment is pronounced. Either of the parties can file a request to have such an order made; or the court gives a ruling acting ex officio.
.
Such an order can be appealed against to a second-instance court.
Under Article 106 of the Family and Custody Code, a final court decision as to parental rights and access arrangements can be changed at any time if the interests of the child so require, either upon a motion from either parent or by the court acting ex officio.
Pursuant to Article 107 of that Code, if both parents who are not married retain their parental rights in respect of their children, a court may award custody to one of them, limiting the exercise of other person’s parental rights to certain obligations and rights specified in the court’s decision.
If a parent who has been obliged by a court decision to respect the other parent's access rights refuses to comply therewith, access decisions are liable to enforcement. The provisions of the Code of Civil Procedure on enforcement of non-pecuniary obligations are applicable to the enforcement proceedings concerning judicial decisions on parental rights and access arrangements (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976/7-8).
Enforcement proceedings are instituted following a motion to this effect by an applicant, i.e. that parent to whom access rights have been granted, but are not respected by the other parent. The motion shall be accompanied by the decision concerned, certified as to its being executory. The motion is submitted to the bailiff who carries out the enforcement. The respondent is informed at the first enforcement measure that the enforcement proceedings have been instituted. He is also informed of the manner in which the enforcement is to be carried out (Article 805 § 1 of the CCP).
Enforcement of decisions concerning access arrangements aims at compelling the parent who has custody of the child to comply with the access decision.
If the parent refuses to comply with the enforcement measures, a motion to have a fine imposed on him or her can be submitted to the court in whose district the enforcement is carried out. The court hears submissions of the parties and imposes a fine if the decision is not complied with within this time-limit. Further fines can be imposed if the creditor persists in his or her refusal (Article 1051 of the CCP).
In pursuance of Article 49 of the Code of Civil Procedure, a judge steps down, upon the motion of one of the parties, if there exists a personal relationship between him or her and one of the parties which may cast doubt on his or her impartiality.


ITEMID: 001-113103
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: YILMAZ v. CYPRUS AND OTHER APPLICATIONS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. A list of the applicants is set out in the appendix.
2.
The applicants are either owners, or the heirs of owners, of property which is governed by the custodianship regime under Law 139/1991.
None of the applicants have taken proceedings in the domestic courts or brought such proceedings to a conclusion. The third applicant in no. 5702/10 claims to have proceedings pending but no documents or details have been provided.
3. The applicant is the heir of his grandfather who owned properties in the Republic of Cyprus. He stated that he was unable to access or enjoy these properties.
He complains under Article 1 of Protocol No. 1 and Article 14 of the Convention.
4. The applicant who lived with his family near Larnaca in the south of Cyprus prior to 1974 owned a number of properties, as did his deceased wife and other members of his family, also now deceased. Following 2003, the applicant sought to take steps to recover possession of this property. He instructed a lawyer who however took no steps to take proceedings. On 26 January 2011, the applicant sent a letter to the Minister of the Interior, listing the properties and requesting their return and compensation; he sent a follow-up letter in April 2011. He has received no substantive response.
5. The applicant invokes Article 1 of Protocol No. 1 and Article 8 as regards the properties, Articles 6 and 13 alleging lack of access to court and lack of an effective remedy and Article 14 alleging discrimination against Turkish Cypriots.
6. Various property including houses, fields and shops were transferred to the applicant by his father and mother between 2004-2007. This property was administered by the Custodian under Law 139/1991. On 31 March 2011, the applicant wrote to the Ministry of the Interior, requesting return of the properties and full compensation for loss of use since 1974. He has received no reply.
7. The applicant invokes Article 1 of Protocol No. 1 and Article 8 as regards the properties, Articles 6 and 13 alleging lack of access to court and lack of an effective remedy and Article 14 alleging discrimination against Turkish Cypriots.
8. The applicant, a Turkish Cypriot, bought land in 1962 and rented it out. The tenant paid rent until 1974 when the authorities took over the applicant’s property.
9. On 15 August 2011, the applicant wrote to the Ministry of the Interior, requesting return of the properties and full compensation for loss of use since 1974. She received a response in September 2011 that the application would be examined and she would be informed in due course. She has received no further reply.
10. The applicant invokes Article 1 of Protocol No. 1 and Article 8 as regards the properties, Articles 6 and 13 alleging lack of access to court and lack of an effective remedy and Article 14 alleging discrimination against Turkish Cypriots.
11. The relevant case-law and laws are set out in Kazali and Others v. Cyprus (no. 49247 et al, §§ 34-100, decision of 6 March 2012).


ITEMID: 001-86227
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GALICH v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 6. The applicant was born in 1952 and lives in Omsk.
7. In May 2000 the applicant lent a sum of money to a private person, Mr M. The amount of the debt was linked to the exchange rate of the United States dollar. Mr M. failed to repay the full amount in due time, and on 19 April 2001 the applicant brought a civil action against him. The applicant sought to recover 141,800 Russian roubles (RUB) on account of the outstanding debt, plus statutory interest for the period of delay (проценты за неисполнение денежного обязательства). The amount of statutory interest was calculated on the basis of the refinancing rate of the Central Bank of Russia.
8. In the domestic proceedings the applicant was represented by a lawyer. Mr M., the defendant, claimed that he had returned RUB 45,000 to the applicant. However, he acknowledged the remainder of the principal debt, and accepted the calculations of statutory interest.
9. On 15 January 2002 the Kirovskiy District Court of Omsk partially granted the applicant’s claim. The court found that a part of the debt (RUB 45,000) had already been paid to the applicant. Given the exchange rate of the United States dollar at that moment, the court awarded the applicant RUB 106,500 (equivalent to 3,970 euros (EUR)) on account of the outstanding debt, plus RUB 34,611 (equivalent to EUR 1,290) as statutory interest under Article 395 of the Civil Code for 491 days of delay in paying the outstanding debt. To calculate the interest the court applied the annual refinancing rate of the Central Bank of Russia, which amounted to 25% at the time.
10. The applicant appealed. In the points of appeal he contested the finding of the first-instance court that a part of the principal debt had been returned to him.
11. On 27 February 2002 the Omsk Regional Court examined the appeal and dismissed it. The issue of statutory interest was not raised by the parties during the appeal proceedings. However, the court proprio motu reduced the amount of statutory interest awarded to RUB 10,000 (EUR 373), stating as follows:
“In addition to the principal debt the court ordered recovery of statutory interest, in accordance with Article 395 of the Civil Code of the Russian Federation.
At the same time, in the opinion of the court of appeal, the amount of interest – 34,611 roubles 44 kopeks – is disproportionate to the consequences of the breach of the obligation and is excessive.
Consequently, the appeal court (кассационная инстанция) deems it necessary, pursuant to Article 333 of the Civil Code of the Russian Federation, to reduce the amount of the penalty to 10,000 roubles.”
The overall amount awarded to the applicant was therefore reduced to RUB 116,500. That decision became final.
12. Article 395 of the Civil Code (“Responsibility for non-compliance with a monetary obligation”) provided, insofar as relevant, as follows:
“For the use of monetary assets belonging to another person, as a result of their unlawful withholding, or the failure to pay them back ... a [statutory] interest should be paid .... The amount of that interest is defined as the refinancing rate [of the Central Bank of Russia] ... applicable in the place of residence of the creditor ... on the day of the execution of the monetary obligation. If the monetary debt is recovered through the court, the court may award [statutory] interest on the basis of the refinancing rate applicable on the day of lodging of the claim, or on the day of the delivery of the judgment. These rules are applicable unless another rate has been fixed by the law or by an agreement [between the parties] ...”
13. Article 333 of the Civil Code (“The Reduction of the Penalty”), insofar as relevant, stipulates as follows:
“If a penalty due [for a violation of a contractual obligation] is obviously out of proportion to the consequences of the violation of the civil obligation, the court has the right to reduce the amount of the penalty ...”
14. Pursuant to Joint Ruling no. 13/14 by the Russian Supreme Court and the Supreme Commercial Court of 8 October 1998, Article 333 is applicable to the statutory interest provided under Article 395. In deciding whether or not to reduce the statutory interest payable, the courts “should take into account the fluctuation of the refinancing rate of the Central Bank during the period of delay, as well as other circumstances which may affect the rates of interest”.
15. Article 294 (“Scope of review of the case by the court of appeal”) of the Code of Civil Procedure of 1964, then in force, stipulated:
“The [court of appeal] shall verify the legality and reasonableness of the first-instance court judgment within the scope of the appeal. It may examine new evidence and establish new facts. The court shall examine newly submitted evidence if it considers that the evidence could not have been submitted to the first-instance court.
In the interests of legality, the court of appeal may examine the decision of the first-instance court in its entirety.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77398
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF TARNAVSKIY v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1936 and lives in Dnepryany, the Kherson region. He is a former employee of the State-controlled OJSC “Pivdenelektromash” (“the Company,” ВАТ “Південелектромаш”).
5. The background facts for the case are described in the case of Anatskiy v. Ukraine (no. 10558/03, §§ 5-8, 13 December 2005). The circumstances of the present case, as submitted by the parties, may be summarised as follows.
6. On 11 January 2000 the Company's labour disputes commission (“the Commission,” комісія з трудових спорів ВАТ “Південелектромаш“) ordered the Company to pay the applicant UAH 1,519 in salary arrears.
7. On 19 January 2000 the Novа Kakhovka Bailiffs' Service (“the Bailiffs,” Відділ Державної виконавчої служби Новокаховського міського управління юстиції) initiated the enforcement proceedings for the above decision.
8. On 10 January 2002 the Nova Kakhovka Court (Новокаховський міський суд Херсонської області) ordered the Company to pay the applicant an additional amount of UAH 3,193.70. This judgment became final and the enforcement writs were transferred to the Bailiffs.
9. On 26 June 2002 the Bailiffs returned the execution writs in respect of the judgment of 10 January 2002 to the applicant unenforced. They stated that the judgment could not be enforced for the debtor's lack of funds. They further advised the applicant of his right to resubmit these writs at any time, but until 26 July 2005. On 18 February 2004 the applicant resubmitted the writs and on 19 February 2004 the Bailiffs initiated the enforcement proceedings.
10. As of 15 March 2006, the applicant was no. 4,916 in the creditors' waiting list in respect of the enforcement of the Commission's decision and no. 4,918 in respect of the enforcement of the court judgment. Both of them remain unenforced to present day.
11. The relevant domestic law is summarised in the judgments of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004) and Trykhlib v. Ukraine (no. 58312/00, §§ 25-32, 20 September 2005).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-66589
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BOSKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger
TEXT: The applicant, Mr Ljube Boškoski, was born in 1960 in Tetovo in the former Yugoslav Republic of Macedonia. He has dual nationality: Macedonian and Croatian. His current place of residence is unknown. He is represented before the Court by Mr J. Arsov, a lawyer practising in Skopje.
On 24 March 2004 the applicant applied to the State Electoral Commission (Државна Изборна Комисија) (hereinafter referred to as the SEC) to be listed as an independent candidate in the presidential elections in the former Yugoslav Republic of Macedonia. For that purpose he had collected 10,000 signatures of citizens in support of his candidacy.
On 25 March 2004 the SEC rejected his application on the ground that the applicant did not satisfy the requirement in Article 80 § 5 of the Constitution governing the eligibility of candidates for presidential election. In particular, the applicant had not continuously resided in the former Yugoslav Republic of Macedonia for at least ten out of the previous fifteen years preceding the date of the election. The SEC found that on 14 September 1987 the applicant had informed the authorities that he was no longer resident in Skopje and had registered himself as resident in Rovinj in Croatia; he had continued residing in Croatia until 25 January 1999 (when he re-registered himself as resident in Skopje). Whereas the applicant's residence in Croatia between 14 April 1989 and 17 November 1991 was accepted as qualifying as domestic residence by the SEC pursuant to Article 132 of the Constitution (the latter date being the date the former Yugoslav Republic of Macedonia enacted its Constitution), his residence in Croatia between 17 November 1991 and 25 January 1999 was deemed foreign and not taken into account. The SEC calculated that in the previous fifteen years the applicant had resided in the former Yugoslav Republic of Macedonia for only seven years, nine months and twenty-two days.
On 26 March 2004 the applicant challenged the rejection of his candidacy in the Supreme Court (Врховен Суд на РМ), alleging that the SEC had incorrectly calculated the overall length of his residence in the former Yugoslav Republic of Macedonia by an erroneous (restrictive) construction of Article 132 of the Constitution. According to him, his residence in Croatia after 17 November 1991 should have been deemed domestic residence by the SEC. First, the applicant maintained that neither the Constitution nor the Law on the Implementation of the Constitution (Уставен Закон за имплементација на Уставот на РМ), nor any other statute imposed a time-limit on the application of Article 132 of the Constitution, which is a transitional provision. Second, he maintained that Article 132 of the Constitution, as well as the other provisions of the Constitution and the relevant statutes, did not specify that the qualifying period of residence in the other republics of the Socialist Federal Republic of Yugoslavia would be restricted to the period before the Constitution was enacted or any other period. Since neither the Constitution nor the statutes regulated the manner or duration of the application of Article 132 of the Constitution, the applicant argued that the said provision should have been construed by the SEC in accordance with the human rights conventions and the 1978 and 1983 Vienna Conventions on the Succession of States, that is to say, broadly, not restrictively. He claimed that he could not be blamed for leaving the former Yugoslav Republic of Macedonia for Croatia in 1987 and staying there for a certain period of time following the disintegration of Yugoslavia, and had done so for economic reasons. Finally, the applicant alleged that he had been discriminated against in comparison to other candidates in the 1994 and 1999 presidential elections, namely, Mr. K. Gligorov in 1994 and Mr. V. Tupurkovski in 1999, whose candidacies had been upheld by a differently composed SEC. He alleged that the SEC had not applied the aforementioned provision in the same manner in their cases as in his. The applicant requested the Supreme Court to order the SEC to serve and disclose its decisions on the candidacies of Mr. K. Gligorov and Mr. V. Tupurkovski.
On 27 March 2004 the Supreme Court dismissed the applicant's challenge, finding that the overall length of his domestic residence had been correctly assessed by the SEC. It held that the former Yugoslav Republic of Macedonia had declared its independence with the adoption of the Constitution on 17 November 1991, so that Article 132 of the Constitution could only be applied for the period prior to that date. It did not directly respond to the applicant's assertions or arguments.
On 29 March 2004 the applicant petitioned the Constitutional Court (Уставен Суд на РМ) for an order quashing the decisions of the Supreme Court and the SEC on the basis of Article 50 § 1 and Article 110 § 3 of the Constitution. He called the petition a request for the protection of an electoral right (барање за заштита на избирачко право). Before the Constitutional Court, the applicant repeated the assertions he had made and arguments he had advanced before the Supreme Court, adding that his right to stand for election under Article 23 of the Constitution and Article 3 of Protocol No. 1 of the Convention had been violated. He also complained that he had not received a reasoned answer from the Supreme Court to his arguments.
On the same date the applicant made an almost identical application to the Supreme Court, requesting it to adopt a common position on its decision of 27 March 2004 (and to set it aside) in a joint session of its three chambers.
On 31 March 2004 the Constitutional Court rejected the applicant's petition as being incompatible ratione materiae. It held that the right to stand for election was not among the individual rights and freedoms referred to in Article 110 § 3 of the Constitution whose violation could be challenged in the Constitutional Court by way of individual petition. According to the Constitutional Court, the SEC and the Supreme Court had exclusive jurisdiction to protect the right at issue pursuant to Article 10-e of the Law on the Election of the President of the Republic. In addition, the Constitutional Court held that it had no jurisdiction to review the complaint under Article 3 of Protocol No. 1 to the European Convention of Human Rights. The Constitutional Court reached its decision without a hearing.
It is not clear whether the Supreme Court acted upon the applicant's request for the adoption of a common position and an order setting aside its decision of 27 March 2004. The applicant was deprived of the possibility to stand as a candidate in the elections. The elections took place on 14 and 28 April 2004.
Article 79 of the Constitution (Устав на Република Македонија) stipulates that the President of the Republic is a Commander-in-Chief of the Armed Forces of the former Yugoslav Republic of Macedonia.
Article 84 of the Constitution (Устав на Република Македонија) lists the discretionary powers of the Head of the State. The President of the Republic has power to: (1) nominate an appropriate person to form the Government; (2) appoint and/or dismiss by decree ambassadors and other diplomatic representatives of the former Yugoslav Republic of Macedonia abroad; (3) accept the credentials and letters of recall of the foreign diplomatic representatives; (4) propose two candidates to sit as judges in the Constitutional Court; (5) propose two candidates for membership of the Republic's Judicial Council; (6) appoint three members to the Security Council of the former Yugoslav Republic of Macedonia; (7) propose candidates for membership of the Council for Inter-Ethnic Relations; (8) appoint and/or dismiss other holders of state and public office determined by the Constitution and the law; (9) grant decorations and honours; (10) grant pardons; and (11) perform other duties determined by the Constitution.
Article 90 § 1 of the Constitution provides that the President of the Republic is obliged, within 10 days of the formation of the Assembly, to entrust the mandate for forming the Government to a candidate from the party or parties with a majority of seats in the Assembly.
Article 75 §§ 1 and 2 of the Constitution stipulates that statutes are declared by decree (promulgation), signed by both the President of the Assembly and the President of the Republic.
Article 75 § 3 of the Constitution provides that the President of the Republic may refuse to sign a decree declaring a statute to be in force. His right to veto the declaration of the laws is only provisional since the same provision stipulates that should the Assembly re-adopt the statute by a majority vote of the total number of its representatives, the President of the Republic shall be bound to sign the decree.
Article 75 § 4 of the Constitution provides that the President shall have no right to refuse to promulgate those statutes which, under the Constitution, may only be adopted by a two-thirds majority vote of the total number of the representatives of the Assembly.
Article 63 §§ 1, 3 and 4 of the Constitution provides, inter alia, that the representatives of the Assembly are elected for a term of four years and that the new elections are to be held within the last 90 days of the term of the current Assembly. The term of office of the representatives may be extended only during a state of war or an emergency.
Article 63 § 7 of the Constitution stipulates that the Assembly is to be dissolved when more than half of the total number of its representatives vote for dissolution.
Article 71 § 1 of the Constitution provides that the right to propose a bill is given to every Representative of the Assembly, to the Government and to a group of at least 10,000 voters.
Article 71 § 2 specifies that an initiative for adopting a law may be submitted to the authorised bodies by any citizen, group of citizens, institution or association.
Article 90 § 3 of the Constitution stipulates that the Government shall be elected by the Assembly on the proposal of the person nominated by the President of the Republic, and on the basis of the programme, by a majority vote of the total number of Representatives of the Assembly.
Article 92 of the Constitution provides, inter alia, that the Government and each of its members shall be accountable to the Assembly which may take a vote of no-confidence in the Government.
Article 93 of the Constitution provides, inter alia, that the Government has the right to submit its resignation.


ITEMID: 001-113553
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PŁACZKOWSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1959 and lives in Mielec.
6. The applicant is a single mother of two children. Prior to her application for an early-retirement pension she had been employed from 1977 until 29 June 2001 and paid social security contributions to the State.
7. On 28 December 2000 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.
8. Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist medical centre on 21 December 2000. The certificate stated that the child (born in 1988) suffered from epilepsy and other medical conditions and was in need of her parent’s constant care.
9. On 19 June 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 June 2001 in the net amount of 742, 86 Polish zlotys (PLN).
10. On 23 August 2002 Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. On 19 September 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.
11. On 25 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early-retirement pension under the scheme provided for by the 1989 Ordinance.
12. The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.
13. On 18 December 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require her mother’s permanent care since her health condition did not significantly impair her bodily functions. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she did not satisfy the requirement of necessary permanent care.
14. The applicant further appealed against the first-instance judgment.
15. On 16 April 2004 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal.
16. On 17 September 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant.
17. Following the social security proceedings the applicant was not ordered to return her earlyretirement benefits paid by the Social Security Board, despite the revocation of her right to an earlyretirement pension.
18. The applicant submitted that after the revocation of the EWK pension she opened a small business in 2004 but it did not generate any income. For many years she had been unsuccessfully looking for a job but received no unemployment or other benefits from the State.
19. The Government submitted that between July 2004 and October 2006 the applicant had registered as selfemployed (dzialanosc gospodarcza). They did not specify whether the applicant’s business generated any income. Afterwards, in 2007 she received unemployment benefit for six months in the amount of PLN 3,800 and since 6 April 2009 she has been employed. The Government also stated that the applicant had been receiving childsupport payment in the amount of PLN 300.
20. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation.
21. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2019.
22. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.
23. Out of all applications lodged with the Court, about twenty-four applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.
24. One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.
25. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 3134, 15 September 2009.
26. The social security scheme for farmers is regulated by the Farmers’ Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników).
27. The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows:
“The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows:
“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”
28. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser.
29. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
30. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for re-examination. Where the Supreme Court failed to find nonconformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits.
31. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an agelimit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution.
32. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.
33. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted.
34. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-61562
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF COLAK AND FILIZER v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Feyyaz Gölcüklü;Georg Ress
TEXT: 9. The applicants were born in 1969 and 1964 respectively and live in Şanlı Urfa, Turkey.
10. Police officers from the anti-terrorist branch of the Istanbul Security Directorate arrested the applicants on suspicion of membership of an illegal organisation, the PKK (Kurdistan Workers' Party), and placed them in custody on 28 and 29 April 1995 respectively. Both applicants alleged that they had been beaten and insulted by policemen on the way to the Security Directorate Building.
11. On 29 April 1995 the public prosecutor attached to the Istanbul State Security Court ordered the extension of the applicants' custody period until 9 May 1995.
12. The applicants alleged that during their interrogation by the police, they had been kept blindfolded and forced to give information about persons they did not know. They were allegedly subjected to various forms of ill-treatment by police officers. They claimed they were beaten, strung up by the arms, threatened with death and given electric shocks.
13. On 2 May 1995 the applicants were allegedly forced to sign police statements about their activities in the PKK and their connections with other PKK members.
14. On 5 May 1995 the applicants were examined by the Istanbul Forensic Medicine Institute's medical expert along with fourteen other detainees. In his report, the institute's doctor noted that there were no signs of beating, force or violence on the bodies of the applicants, whereas he had spotted certain signs of injury on the bodies of two other detainees.
15. On 22 May 1995 the first applicant underwent a second medical examination in prison. According to the prison doctor's report, the applicant had fading bruises on his body and ecchymoses on his left foot. The applicant was later transferred to Fatih Forensic Medicine Institute where another medical expert examined him. In a report dated 20 June 1996, it was concluded that the applicants' injuries, as cited in the report of the prison doctor, would prevent him from carrying out his work for two days.
16. On 18 May 1995 the prison doctor also examined the second applicant. In his report, the doctor noted the presence of abrasions on the penis, pain in the chest and ecchymoses under the left eye. He also noted that the applicant had described a feeling of pain while chewing and pain on both shoulders.
17. On 5 May 1995 the applicants were brought before the public prosecutor attached to the Istanbul State Security Court. In their questioning they denied their police statements and rejected the allegations against them.
18. On 6 May 1995 they were brought before the State Security Court, where they repeated their denials in relation to the statements taken by the public prosecutor. The court ordered the applicants' detention on remand on account of the nature of the accusations against them and of the evidence already available.
19. On 22 June 1995 the public prosecutor initiated criminal proceedings against the applicants in the Istanbul State Security Court and charged them with carrying out acts aimed at the separation of a part of the State territories.
20. On 1 June 1995 the applicants filed a complaint with the Fatih public prosecutor's office alleging that they had been subjected to various forms of ill-treatment during their detention in police custody.
21. By decisions of 19 and 21 September 1995 the Fatih public prosecutor declined to bring any criminal proceedings against the police officers, because of a lack of evidence against them.
22. On 13 October 1995 the applicants filed an appeal with the Istanbul Beyoğlu Assize Court against this decision.
23. On 14 December 1995 the Assize Court dismissed the appeal lodged by the second applicant on the ground that there was insufficient evidence to commit the police officers for trial. The court, however, upheld the appeal in respect of the first applicant.
24. On 8 June 1998 the Istanbul Chief Public Prosecutor filed an indictment with the Istanbul Assize Court accusing two police officers from the Istanbul Security Directorate of inflicting ill-treatment on the first applicant.
25. On 27 October 1999 the Istanbul Assize Court acquitted the two police officers on the ground that there was no sufficient and convincing evidence which would enable the court to convict the accused. The court reasoned that the complainant could not identify the police officers since he had allegedly been kept blindfolded while being tortured and that the Istanbul Forensic Medical Institute's report stated that no lesions had been seen on his body. It further noted that the Fatih Forensic Medicine Institute's report had been given fifteen days after the alleged incident and that the accused had denied the allegations.
26. The Criminal Code makes it a criminal offence to subject an individual to torture or ill-treatment (Articles 243 and 245 respectively).
VIOLATED_ARTICLES: 3


ITEMID: 001-57903
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF HENTRICH v. FRANCE
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of P1-1;Violation of Art. 6-1;No violation of Art. 6-2;Not necessary to examine Art. 13;Not necessary to examine Art. 14+P1-1;Not necessary to examine Art. 14+6;Not necessary to examine Art. 14+13;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings;Pecuniary damage - reserved
JUDGES: N. Valticos
TEXT: 6. Mrs Liliane Hentrich, who is a French national, lives in Strasbourg.
7. On 11 May 1979 she and her husband, Mr Wolfgang Peukert, bought 6,766 square metres of land in Strasbourg for a total sum of 150,000 French francs (FRF). Further building was not permitted on the land, which was entered in the land register in several different parcels: 2,126 sq. m of land, 406 sq. m of ground, house and appurtenant buildings, 130 sq. m of ground and cowshed, 2,353 sq. m of garden, ground and shed, and 1,751 sq. m of garden.
8. The sale was concluded on the condition precedent that the SAFER (Regional Development and Rural Settlement Corporation) of Alsace did not exercise its right of pre-emption over the property within two months. The main tax office at Molsheim registered the sale on payment of duties, firstly on 28 May 1979 and then on 13 August 1979, when the sale took effect on expiry of the statutory time allowed for the SAFER to exercise its right, which it had not done.
9. On 5 February 1980 Mrs Hentrich and her husband were notified by a bailiff of the following decision:
"As [the Commissioner of Revenue] considers the sale price declared in the contract of sale ... to be too low, he is exercising, for the benefit of the Treasury and with all the effects it entails, the right of pre-emption provided for in Article 668 of the General Tax Code over all the real property and appurtenant rights [acquired by them] ... [the Commissioner of Revenue] offers to pay [the buyers] or any other rightful claimant
(a) the price specified in the contract of sale,
(b) the ten per cent premium provided for in law, and
(c) the costs and fair expenses of the contract on production of all the appropriate vouchers."
10. On 31 March 1980 the applicant and her husband instituted proceedings in the Strasbourg tribunal de grande instance against the Commissioner of Revenue for the département of Bas-Rhin. They sought to have the pre-emption set aside on the grounds that the time-limit for exercising the right had not been complied with, the notification had been null and void (this ground was not pursued at the hearing) and there had been a misuse of powers and a breach of the Convention and of Protocol No. 1. In the alternative, they applied for an assessment by a court expert of the market value of the property in issue and an examination of the sellers.
11. The tribunal de grande instance gave judgment against them on 16 December 1980. It ruled that the time allowed for exercising the right of pre-emption had begun to run on 13 August 1979 and it held that the State could not be blamed for not having exercised its right of pre-emption so long as the sale had not taken effect and was subject to the condition precedent.
12. It rejected the complaints based on the Convention in the following terms:
"As to the breach of the Convention ... allegedly constituted by the right of pre-emption in Art. 668 of the GTC [General Tax Code]
...
If the Court were to conclude on that account that Article 668 GTC conflicted with the provisions of the Human Rights Convention, [the plaintiffs] could legitimately maintain that the French courts must in future refuse to apply Article 668 GTC.
...
[The plaintiffs] began by arguing that Article 668 GTC was blatantly inconsistent with Article 1 para. 1 of the Protocol to the Convention (P1-1), which provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions and that no one shall be deprived of his possessions except in the public interest.
But the Article referred to has a second paragraph, which provides: ‘The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary ... to secure the payment of taxes ...’
It so happens that the French State, faced with tax evasion on an increasingly large scale, has felt obliged to enact the provisions of Article 668 GTC.
By means of that Article the State hopes to ensure proper payment of the duties levied on contracts of sale.
The impugned enactment is therefore not inconsistent with the provisions relied on.
[The plaintiffs] went on to argue that Article 668 fell foul of Article 6 para. 2 (art. 6-2) of the Convention ..., which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law;
that the exercise of the right of pre-emption by the Revenue was a penalty for a ‘presumed offence of tax evasion’; and
that they were therefore regarded, by the very fact of the right of pre-emption having been exercised, as tax evaders with all that that implies in the way of disgrace and without their having any possibility of exculpating themselves.
Article 668, however, states that the Revenue may exercise a right of pre-emption over property sold at a price it considers too low.
It is therefore not necessary to prove tax evasion before this provision can be applied.
It is sufficient for the price to appear to the Revenue to be too low without its having to determine the reason why it is too low, which may in fact have nothing to do with tax evasion (e.g. ignorance of the real value or kindness).
Admittedly, the provision was enacted solely to counter tax evasion, but those to whom it is applied are nevertheless not necessarily tax evaders and cannot be regarded as such; no penalty is imposed on them and the State even pays them 10% more than the price they paid.
This 10% premium has been provided for precisely because it may inadvertently happen that the right of pre-emption is applied in cases where there has been no attempt to evade tax by the persons concerned.
[The plaintiffs] are therefore wrong to regard themselves as disgraced and as having been punished for committing tax evasion.
[The plaintiffs] also alleged a breach of Article 6 para. 1 (art. 6-1) of the Convention ..., which lays down that a punishment can be imposed only after a hearing of the person whose rights are disputed or who is charged with a criminal offence.
But Article 668 GTC in no way disputes the rights of anyone who has acquired a property and the purchaser is not charged with any offence.
The provision merely confers a privilege on the State for the purpose of ensuring that taxes are paid.
It is therefore not necessary, as [the plaintiffs] maintained, to allow them to prove that they paid the proper price and did not conceal any payment.
Lastly, [the plaintiffs] asserted that they were the victims of a discriminatory measure prohibited by Article 14 (art. 14) of the Convention ...; and
that the measure was discriminatory in relation to other buyers of neighbouring properties at almost identical prices, against whom the Revenue had not exercised its right of pre-emption.
But the Revenue has complete freedom to exercise its right of pre-emption as it wishes.
There is no evidence before the Court to support the contention that the State was influenced by considerations of race, nationality, language, political opinion or any of the other criteria referred to in Article 14 (art. 14) of the Convention.
..."
13. The applicant and her husband appealed to the Colmar Court of Appeal on 23 January 1981. On 4 December 1981 the judge responsible for preparing the case for trial directed them to make their submissions by 5 February 1982.
After securing an extension of time until 7 May, the applicants filed pleadings on 29 April 1982 in which they reiterated the arguments they had adduced at first instance. They supplemented their complaint of discriminatory treatment by pointing out that there was another piece of land that could, they said, have been pre-empted and by criticising the Revenue for having chosen the special procedure of pre-emption instead of the ordinary procedure of making a supplementary tax assessment. Lastly, they argued that the decision to exercise the right of pre-emption did not contain the reasons required by section 3 of Law no. 79-587 of 11 July 1979 (see paragraph 22 below).
14. The Revenue filed its pleadings on 3 February 1983, as the judge responsible for preparing the case for trial had requested on 5 November 1982. The time-limit of 5 May 1983 that was given to the applicant and her husband for their reply was put back to 3 June and then 7 October. They filed their submissions on 19 September 1983. The pre-trial proceedings were concluded on 6 January 1984.
15. The Colmar Court of Appeal held a hearing on 21 January 1985 and gave judgment on 19 February 1985. It upheld the lower court’s determination of the date on which the time allowed for exercising the right of pre-emption had begun to run and dismissed the appeal for the following reasons:
"The ground of appeal alleging that the notification of 5 February 1980 was unlawful because it did not, as required by section 3 of Law no. 79-587 of 11 July 1979, give any reasons must be rejected, account having been taken of the fact that it does not appear sufficiently substantial to constitute a preliminary point of administrative law, seeing that the notification appears to set out the legal basis and the reason of fact which prompted the Revenue to exercise the right of pre-emption.
For the rest, the Court, without the slightest hesitation, adopts the excellent reasons for which the court below rejected the grounds relating, firstly, to the misuse of powers of which the Revenue was allegedly guilty by acting speculatively and, secondly, to the contravening by Article 668 of the General Tax Code of several fundamental principles laid down in the Convention ..."
16. The applicant and her husband appealed on points of law on 13 June 1985 and filed supplementary pleadings on 13 November.
They argued two grounds of appeal, the first based on failure to comply with the time-limit for exercising the right of pre-emption and the second on breaches of Article 1 of Protocol No. 1 (P1-1) and Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention.
In support of the second ground - the only relevant one here - they maintained, firstly:
"...
It appears from reading these provisions [Article 1 of Protocol No. 1 and Article 6 para. 1 of the Convention (P1-1, art. 6-1)] together that no one can be deprived of his property, even by a tax law, without being able to defend himself in court proceedings. The fact remains, however, that the right of pre-emption conferred by Article 668 of the GTC (which has become Article L.18 of the Tax Proceedings Code) is exercised at the discretion of the State, which does not have to prove the allegation that the price was too low, and that this provision does not allow a dispossessed purchaser to show that he acted in good faith or that the price in question was a normal one. In the instant case the Court [of Appeal], which noted that the State’s right was a discretionary one and that it was impossible for the expropriated party to be heard in his own defence and still concluded that Article 668 of the GTC conformed with the provisions of Article 1 of the First Protocol and Article 6 para. 1 (P1-1, art. 6-1) of the ... Convention ..., did not draw from its own findings the legal conclusions which followed from them and thus breached the aforementioned provisions ..."
They went on:
"Article 6 para. 2 (art. 6-2) of the ... Convention ... provides: ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ It is established that the purpose of Article 668 of the GTC is to prevent tax evasion and it provides for a penalty in respect of those guilty of it. In the instant case the Court [of Appeal], which refused to recognise that this was the purpose and nature of the State’s pre-emption so as not to apply to the State the provisions of Article 6 para. 2 (art. 6-2) of the Convention, misunderstood the meaning and scope of Article 668 of the GTC (which has become Article L.18 of the Tax Proceedings Code) and accordingly breached that provision.
Lastly, the Court [of Appeal], which noted that the Revenue could exercise its right of pre-emption without having to prove the expropriated party’s guilt and without that party being able to prove his innocence, but still considered that such a measure did not contravene Article 6 para. 2 (art. 6-2) of the Convention, breached that provision in refusing to apply it."
17. The Revenue’s defence was registered on 7 March 1986. The reporting judge, who was appointed on 18 April 1986, filed his report on 18 November 1986. The advocate-general was chosen on 2 January 1987. Initially heard on 31 March 1987, the case was transferred on 19 May 1987 to a full court of the Court of Cassation’s Commercial Division.
18. On 16 June 1987 the Court of Cassation (Commercial Division) delivered four leading judgments, including one dismissing the applicant and her husband’s case.
As to the ground of appeal relating to the breach of provisions of the Convention, it said:
"... in the first place, where the Revenue exercises the powers vested in it by Article 668 of the General Tax Code, the dispossessed purchaser may ask a court to rule on a challenge by him seeking to establish that the conditions for applying the aforementioned provision were not satisfied.
In the second place, exercising the State’s right of pre-emption as provided by the aforementioned Article 668 does not imply that the dispossessed purchaser has committed a criminal offence, from which it follows that the exercise of this right was not within the contemplation of Article 6 para. 2 (art. 6-2) of the Convention ...
The ground of appeal is therefore unfounded in every limb."
19. Since 1981, it has been possible to build on the land, subject to conditions. The land has not been resold but has been left at the disposal of a neighbouring market gardener. Its current value is in the region of FRF 330 per square metre.
20. At the time of the pre-emption in question, Article 668 of the General Tax Code provided:
"Without prejudice to the provisions of Article 1649 quinquies A and for a period of six months from the date on which the formality of registration for tax purposes or the combined formality [simultaneous registration for tax purposes and entry in the land charges register] is completed, the Revenue may exercise for the benefit of the Treasury a right of pre-emption over real property, real-property rights, businesses or goodwill, rights to leases or to the benefit of a promise of a lease of all or part of a property where it considers the sale price to be too low, by offering to pay the rightful claimants the price in question and a premium of ten per cent.
The six-month period shall be reduced to three months where the formality is completed at the office for the area in which the property is situated.
The decision to exercise the right of pre-emption shall be served by a bailiff."
21. On 1 January 1982 Article 668 became Article L.18 of the Tax Proceedings Code and now provides:
"For a period of six months from the date of registration for tax purposes or the date on which the combined formality [simultaneous registration for tax purposes and entry in the land charges register] is completed, the State, represented by the Revenue, may exercise a right of pre-emption over real property, real-property rights, businesses or goodwill, rights to leases or to the benefit of a promise of a lease of all or part of a property where the Revenue considers the sale price to be too low, by offering to pay the purchaser or his successors in title the price in question and a premium of ten per cent.
The six-month period shall be reduced to three months where the formality is completed at the office for the area in which the property is situated.
The decision to exercise the right of pre-emption shall be served on the purchaser, vendor or their successors in title by a bailiff.
The exercise of this right shall not prejudice the Revenue’s right to bring, where appropriate, adversarial supplementary assessment proceedings as provided for in Article L.55."
22. The administrative decision to exercise the right of pre-emption provided for in this Article must - so it is stated in the Prime Minister’s circular of 10 January 1980 - contain reasons in accordance with Law no. 79-587 of 11 July 1979, which came into force on 11 January 1980 and whose relevant sections provide:
"Natural or legal persons shall have the right to be informed without delay of the reasons for unfavourable individual administrative decisions concerning them.
To this end, reasons must be given for decisions which:
(a) restrain the exercise of civil liberties or generally amount to a policing measure;
(b) impose a penalty;
(c) make the grant of an authorisation subject to restrictive conditions or impose obligations;
(d) withdraw or rescind decisions creating rights;
(e) assert prescription, an estoppel or a forfeiture;
(f) refuse a benefit to which persons who satisfy the statutory conditions for receiving it are entitled."
"The reasons required by this Law must be in writing and include a statement of the considerations of law and fact on which the decision is based."
23. Jurisdiction to hear appeals against pre-emption decisions under Article 668 of the General Tax Code is vested in the ordinary courts.
Firstly, in a judgment of 22 December 1950 (Dalloz 1951, jurisprudence, p. 547) the Conseil d’Etat held that it had no jurisdiction, stating that "by reason of the serious interference with the right of ownership which the power granted to the Revenue ... to exercise a right of pre-emption over sold real property entails ..., it is for the ordinary courts ... to deal with cases concerning the right of pre-emption". Secondly, the ordinary courts have agreed to rule on challenges to pre-emption decisions. They initially reviewed only the formal correctness of pre-emption decisions (Lyons Court of Appeal, judgment of 14 April 1947, Gazette du Palais 1947, 2, 48). Subsequently they extended their review so as to satisfy themselves that pre-emptions had not had a speculative purpose and that they did not disclose any misuse of powers (Court of Cassation, Commercial Division, Lucan judgments of 5 February 1957, Juris-Classeur périodique 1957, I, 9875 and 9876).
Having regard to the discretionary nature of the right of pre-emption, the Court of Cassation held, however, that the courts could not review the Revenue’s assessment that a declared price was too low.
In its four leading judgments delivered on 16 June 1987 (see paragraph 18 above) the Court of Cassation considerably widened the scope of judicial review. Explicitly abandoning its earlier view of the discretionary nature of the right of pre-emption, it held that the reasons given for decisions to exercise the right must be in writing and contain a statement of the considerations of law and fact on which the decisions were based. It concluded from this that reasoning which stated only "the Revenue considers the sale price to be too low" was inadequate as it was too summary and too general, the Revenue being required to specify the facts on which it based its assessment that the stipulated sale price was too low, in order to enable a dispossessed purchaser to challenge the assessment and establish that the agreed price corresponded to the real market value of the property.
In two of these cases the Court of Cassation quashed the impugned judgments for having contravened the provisions thus construed; in the other two, including the case of the applicant and her husband, it dismissed the appeals. The applicant and her husband were the only dispossessed purchasers who did not win their case in the Court of Cassation.
24. In 1980 the Revenue exercised its right of pre-emption only once in the département of Bas-Rhin - against the applicant and her husband - and twenty-five times in the rest of France.
Between 1980 and 1986 it carried out eighty-eight operations of this kind.
Since the judgments of 1987 (see paragraph 18 above) it has refrained from resorting to pre-emption.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-110902
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF H.N. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Burundi);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Burundi)
JUDGES: André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: 7. The applicant was born in 1984.
8. On 19 September 2006 the applicant arrived in Sweden. He applied for asylum the following day. He stated, in interviews and written submissions, that he is of mixed Tutsi/Hutu ethnicity and that his mother and younger brother had been killed in 1997 during ethnic violence. Following the victory in the 2005 general elections by CNDD-FDD (Conseil National pour la Défense de la Démocratie – Forces de Défense de la Démocratie), that party had set out to imprison and assassinate people suspected of being members of Palipehutu-FNL (Parti pour la Libération du Peuple Hutu – Forces Nationales de Libération) and other organisations hostile to CNDD-FDD. He claimed that he and his family had been threatened and harassed on several occasions, being accused of collaborating with the FNL group. On 5 August 2006 CNDD-FDD supporters had come to the family’s home and had killed the applicant’s father and arrested the applicant. He had then been detained for a month, during which time he had been beaten and tortured daily. A return to Burundi would entail the risk of renewed detention and torture as well as death, as he would be able to give evidence about what had happened to his family.
9. On 26 July 2007 the Migration Board (Migrationsverket) rejected his application. It stated that the general situation in Burundi, due to recent improvements, was not a sufficient ground for asylum. It further considered that the events alleged by the applicant had to be seen as acts of individual soldiers which did not constitute persecution by the Burundian authorities. Moreover, the applicant had not shown that the authorities were unwilling or unable to protect him from such crimes. The Board also considered that the situation in Burundi had changed since August 2006 and that there was no evidence that the applicant would any longer be of interest to the authorities or the FNL. Thus, he had not made plausible that there was a real risk of ill-treatment upon return.
10. The applicant appealed to the Migration Court (Migrations-domstolen) in Stockholm. He submitted a search warrant dated 10 September 2006, purportedly issued by the Burundian intelligence service (Service National des Renseignements), which had allegedly been given to a friend of his father and forwarded to the applicant by that friend’s wife. He further submitted a death certificate concerning his father issued by a hospital in Burundi. At the oral hearing before the court, he claimed that he had not been politically active in Burundi but had been involved in an organisation working for peace. He further stated that a guard had helped him to flee from detention. Then his father’s friend had contacted a man who had taken him out of the country. His father’s friend had subsequently been arrested.
11. On 4 April 2008 the court rejected the appeal. It noted that the applicant had not proved his identity. Moreover, it found that his explanation how he had come into possession of the above-mentioned documents of the security police and the hospital was peculiar. In these circumstances, the court considered that the documents had a low value as evidence. It further called into question the applicant’s account on how he had been able to flee the prison and then leave the country without himself showing identity papers en route. Thus, in general, the applicant was not credible. As to the alleged risks facing him in Burundi, the court noted that he had not been politically active or otherwise active in seeking justice for the alleged crimes against his family. It therefore questioned that the Burundian authorities would have any particular interest in him.
12. Following the applicant’s further appeal, on 26 June 2008 the Migration Court of Appeal (Migrationsöverdomstolen) refused him leave to appeal.
13. On three subsequent occasions, the applicant claimed that there were impediments to his deportation and requested that his application for a residence permit be examined anew. In support of the second of these applications, he submitted a birth certificate and other documents to prove his identity. He further stated that he had been the deputy head of the youth section of MIPAREC (Ministère pour la Paix et la Reconsiliation), a Christian organisation working for peace and reconciliation in Burundi. Because of his membership in MIPAREC and also due to his having refused to join the FNL, the latter organisation had tried to kill him several times and had also extorted food and money from his family. Moreover, in August 2008, the applicant had been informed that his remaining four siblings, who had been abducted by CNDD-FDD members on 5 August 2006, had been found murdered. Previously, he had not known of their fate.
14. By decisions of 16 December 2008 and 5 February 2009, the Migration Board found that the applicant’s new submissions were just additions or modifications of circumstances already alleged which could neither qualify as impediments to deportation or reasons to examine his asylum application anew.
15. In his third application for a new examination, the applicant added that he had been politically active in Sweden, having organised and participated in several demonstrations against the government of Burundi. He had also received telephone calls from an unknown person, who had stated that the Burundian government knew of these activities and would kill him upon return to the country.
16. On 16 June 2009 the Migration Board did not find that the applicant had made it plausible that he would risk persecution in Burundi on account of sur place activities in Sweden. Thus, no new circumstances constituting an impediment to his deportation had been adduced. Nor were there reasons to re-examine the question of a residence permit.
17. The applicant’s appeals against the Migration Board’s decisions of 16 December 2008 and 5 February 2009 were rejected by the Migration Court. It appears that the applicant did not appeal against the Board’s decision of 16 June 2009.
18. On 30 June 2009, following the Court’s decision under Rule 39 of the Rules of Court (see paragraph 4 above), the Migration Board decided to stay the applicant’s deportation until further notice.
19. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”).
20. An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1 of the 2005 Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).
21. Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6). Special consideration should be given, inter alia, to the alien’s health status. According to the preparatory works (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for the grant of a residence permit.
22. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).
23. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under this criteria, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19).
24. Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, section 3, and Chapter 16, section 9).
NON_VIOLATED_ARTICLES: 2
3