ITEMID: 001-58274
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF KARATAS v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: John Freeland;Luzius Wildhaber;Paul Mahoney
TEXT: 8. Mr Hüseyin Karataş is a Turk of Kurdish origin and was born in 1963. He lives in Istanbul and works as a psychologist.
9. In November 1991 he published an anthology of poems in Istanbul entitled “The song of a rebellion – Dersim” (“Dersim – Bir İsyanın Türküsü”).
10. On 8 January 1992, the public prosecutor at the Istanbul National Security Court no. 1 (“the public prosecutor”, “the National Security Court”) accused the applicant and his publisher of disseminating propaganda against the “indivisible unity of the State”. He requested, inter alia, application of section 8 of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 18 below) and the confiscation of the copies of the work concerned (see paragraph 16 below). He relied on the following passages from that anthology in support of his request.
“…
[Freedom is the law of the clan]
… a great passion is taking shape in our holy hands – the light of ancient Kurdistan for as long as by the light of day the Munzursuyu[] is not reddened by our blood we shall not let the whelps of the Ottoman whore trample upon it after all for thousands of years we have obeyed the law freedom is the law of the clan.
[In solitude, they looked at the tombstones]
The heart of Dersim is torn to pieces its serpentine streets explosions of dynamite the noise of excavators the soldiers’ boots … a phial of medicine in one hand of poison in the other the towers of Babel in others the Turks are coming with their schools their language in which we know only too well the word for cruelty … in the corridors of Parliament in the galleries in the garrisons they are preparing genocide like those who know no bounds … On the head of Hızır[], my brave one we have never seen nor heard anything like this I ask you, brother, what Scripture would accept such cruelty? …
[Silently, they looked towards the village of Deşt] … and now cruelty is spreading apace our blood will mix with the blood shed. resistance and betrayal freedom and surrender side by side … have we not accepted as law for thousands of years that blood shall be washed in blood? …
[In their solitude their tears fell to the ground] … thousands of years of disasters have not altered our lives for our Kurdistan for our Dersim we will sacrifice our heads, drunk on the fire of rebellion …
[In solitude, they oiled the guns and rifles] … let us go children of the unyielding we have heard there is a rebellion in the mountains can we hear and do nothing? let the festivities and celebrations begin let flames as high as the rooftops reach for the sky so that before the day’s end the cannons fall silent venerable Kurdistan beautiful Kurdistan Kurdistan our friend …
[They marched towards the laws to be brothers] … for thousands of years, companion, we have been the close acquaintance of the most barbaric cruelties I ask you out of love for the age in which you live how much longer will we put up with this cruelty? … to the majestic mountains that will lead us to freedom …
[Snowy are the mountains] … the whelps of the Ottoman whore repeatedly pound our mountains the waters that run our springtime … they are preparing genocide like those who know no bounds. … for thousands of years, our clan has been under siege in our besieged land …
[The mountains before us have voices of snow] … an unbounded anger in my heart a speechless hatred … the laws do not give way rebellion comes from the mountains the millennia of history some have died for her some march to their deaths.
[They marched towards solitude] … those who were but a handful of brave men the hope and resistance of their blessed bodies they have, piece by piece, adorned freedom those who, before us, marched to their deaths … Young Kurds ‘I am seventy-five years old I die a martyr I join the martyrs of Kurdistan Dersim has been defeated but Kurdism and Kurdistan shall live on the young Kurd shall take vengeance’ when life leaves this body my heart shall not cry out What happiness to live this day to join the martyrs of Kurdistan. …
[Alişer is dead too] … we have lived for centuries without a State, in exile, during massacres for centuries along the paths we have hauled behind us a sword but never have we been conquered by the sword … the venerable Sheikh Alişer of Hasanan[] was brave enough to know how to die for his honour, his homeland and his freedom … how can I narrate to those who will come after us all that is brave and heroic impregnating my whole body with courage. … I invite you to freedom, to death in these mountains, in this sacred spring with death we march, freedom is blessed with death, I invite you to die; – time is wounded like the beat of a heart. …
[Exile] … Garrisons garrison schools kids women … valiant youths songs of revenge mothers of children hand-to-hand side by side surrender and resistance and the dignity and the honour and the pride of the Kurd become by the vows of the Mazlum Doğans[] of the Ali Haydar Yıldızes of the Hayri Durmuşes of the Delil Doğans little by little drop by drop a secret rebellion.”
11. The applicant denied the charges before the National Security Court, asserting, in particular, that the passage in inverted commas (see paragraph 10 above) was a quotation which in no way reflected his own opinions.
12. On 22 February 1993 the National Security Court, composed of three judges, including a military judge, found the applicant guilty of the offences charged and sentenced him under section 8(1) of Law no. 3713 to one year and eight months’ imprisonment and a fine of 41,666,666 Turkish liras (TRL), to be paid in ten monthly instalments. It also ordered confiscation of the publications concerned.
The National Security Court entirely accepted the submissions of the public prosecutor and found, inter alia, that the poems in issue referred to a particular region of Turkey as “Kurdistan” and had glorified the insurrectionary movements in that region by identifying them with the Kurds’ fight for national independence.
In the National Security Court’s view, the expression of praise apparent throughout the work amounted to separatist propaganda that was detrimental to the unity of the Turkish nation and the territorial integrity of the Turkish State and justified Mr Karataş’s conviction.
13. In a judgment of 1 July 1993, the Court of Cassation dismissed an appeal by the applicant. The applicant’s subsequent application to the same court for rectification of the judgment was also unsuccessful.
14. On 30 October 1995 Law no. 4126 of 27 October 1995 came into force. Inter alia, it reduced the length of prison sentences that could be imposed under section 8 of Law no. 3713 while increasing the level of fines (see paragraph 18 below). In a transitional provision relating to section 2, Law no. 4126 provided that sentences imposed pursuant to section 8 of Law no. 3713 would be automatically reviewed (see paragraph 19 below).
15. Consequently, the National Security Court reviewed the applicant’s case on the merits. In a judgment of 19 April 1996, it reduced Mr Karataş’s prison sentence to one year, one month and ten days but increased the fine to TRL 111,111,110.
On an appeal by the applicant, the Court of Cassation upheld that decision on 1 December 1997.
Mr Karataş was at that time still serving his sentence in Ümraniye Prison (Istanbul).
16. The relevant provisions of the Criminal Code read as follows:
“Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.”
“In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence …”
17. Section 3 of the Press Act (Law no. 5680) provides:
“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.
‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.
An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”
18. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) has been amended by Law no. 4126 of 27 October 1995, which came into force on 30 October 1995 (see paragraph 19 below). Sections 8 and 13 read as follows:
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.”
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.
...
Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras …
…”
“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.”
“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.
However, the provisions of this section shall not apply to convictions pursuant to section 8.”
19. The Law of 27 October 1995 contains a “transitional provision relating to section 2” that applies to the amendments which that law makes to the sentencing provisions (see paragraph 18 above) of section 8 of Law no. 3713. That transitional provision provides:
“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment to … section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 and 6 of Law no. 647 of 13 July 1965.”
20. The relevant parts of section 5 of the Execution of Sentences Act (Law no. 647) read as follows:
“The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits.
...
If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor.
...
The sentence of imprisonment thus substituted for the fine may not exceed three years …”
21. The relevant provisions of the Code of Criminal Procedure concerning the grounds on which defendants may appeal on points of law against judgments of courts of first instance read as follows:
“An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment.
Non-application or erroneous application of a legal rule shall constitute unlawfulness.”
“Unlawfulness is deemed to be manifest in the following cases:
1- where the court is not established in accordance with the law;
2- where one of the judges who have taken the decision was barred by statute from participating;
...”
22. The Government supplied copies of several decisions given by the prosecutor attached to the Ankara National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 18 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified.
Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty, namely: 1991/23 – 75 – 132 – 177 – 100; 1992/33 – 62 – 73 – 89 – 143; 1993/29 – 30 – 38 – 39 – 82 – 94 – 114; 1994/3 – 6 – 12 – 14 – 68 – 108 – 131 – 141 – 155 – 171 – 172; 1995/1 – 25 – 29 – 37 – 48 – 64 – 67 – 84 – 88 – 92 – 96 – 101 – 120 – 124 – 134 – 135; 1996/2 – 8 – 18 – 21 – 34 – 38 – 42 – 43 – 49 – 54 – 73 – 86 – 91 – 103 – 119 – 353; 1997/11 – 19 – 32 – 33 – 82 – 89 – 113 – 118 – 130 – 140 – 148 – 152 – 153 – 154 – 187 – 191 – 200 – 606; 1998/6 – 8 – 50 – 51 – 56 – 85 – 162.
As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the objective nature of the words used.
23. The applicant supplied a list of works that had led to prosecutions in the National Security Courts together with general information on sentences that had been handed down and proceedings then pending against a number of writers and publishers. He produced, as examples, copies of several judgments against İ.B., a writer, and A.N.Z., an editor, who had been convicted notably of inciting the commission of offences and of disseminating pro-Kurdish propaganda. These were judgments nos. 1991/149; 1993/109 – 148 – 169 – 229 – 233; 1994/28 – 143 – 249 – 257; 1995/10 – 32 – 84 – 225 – 283 – 319 – 327 – 436; 1996/87 – 136 – 175 – 213 – 214 – 252; 1997/49 – 50 – 53 – 63 – 120 – 167 – 274 – 571; 1998/22 – 23.
24. The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage:
“There may be acts affecting the existence and stability of a State such that when they are committed, special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to give judgment on a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence , they may not be described as courts set up to deal with this or that offence after the commission of such an offence.”
The composition and functioning of the National Security Courts are subject to the following rules.
25. The constitutional provisions governing judicial organisation are worded as follows:
“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.
No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”
“Judges shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution ”
“National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.
National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors.
The president, one of the regular members, one of the substitutes and the prosecutor shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges.
Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years.
Appeals against decisions of National Security Courts shall lie to the Court of Cassation.
...”
“Military legal proceedings
The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law ...”
26. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide:
“In the capitals of the provinces of … National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.”
“The National Security Courts shall be composed of a president, two other regular members and two substitute members.”
“The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank …”
“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act.
Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years …
…
If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.”
“National Security Courts shall have jurisdiction to try persons charged with
…
(d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution,
(e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free democratic system of government, and offences which directly affect the State’s internal or external security.
…”
“The Court of Cassation shall hear appeals against the judgments of the National Security Courts.”
“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession …
The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.”
“A National Security Court may be transformed into a Martial-Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court ”
27. The relevant provisions of the Military Legal Service Act are worded as follows:
“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926).
(a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.
…”
“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence …”
“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces …
…
The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors …”
“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”
“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:
A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.
…
B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.
…
The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file …”
“When military judges … sit in court they shall wear the special dress of their civilian counterparts …”
28. Article 112 of the Military Criminal Code of 22 May 1930 provides:
“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.”
29. Under section 22 of Law no. 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87763
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ROZEHNAL v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mr Aleš Rozehnal, is a Czech national who was born in 1970 and lives in Prague. He was represented before the Court by Mr T. Otty, a lawyer practising in London. The Czech Government (“the Government”) were represented by their Agent, Mr. V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In April 2001 Z., one of the applicant’s clients, was detained on suspicion of having attempted to defraud a creditor. On 12 April 2001 the applicant was heard as a witness.
On 3 November 2001 the applicant was charged with an attempt to defraud a creditor together with Z. Being Z.’s lawyer, he had allegedly tried to transfer Z.’s assets to certain private companies controlled by acquaintances and had prepared documents certifying non-existent rights and obligations to the detriment of not only the creditor, a private company, C., but also of the Czech State in connection with enforcement proceedings.
A search of the applicant’s home and office was carried out on 5 and 6 November 2001.
On 7 November 2001 his detention was ordered under sections 67(1)(b) and 67(2) of the Code of Criminal Procedure. The judge at the Prague 1 District Court found that there was a danger of the applicant’s influencing witnesses, referring in particular to Z. and three other persons. He did not accept the applicant’s pledge and a written guarantee offered in return for his release.
On 4 December 2001 the Prague Municipal Court quashed that order and decided anew, ordering the applicant’s pre-trial detention pursuant to sections 67(1)(a), (b) and 67(2) of the Code of Criminal Procedure, finding his detention necessary in order to prevent his absconding and influencing witnesses. The court, having regard to the contents of the file, found that there was a strong suspicion that the applicant had committed the offence. It stated that the applicant might influence witnesses who would have to give evidence again (as their first examination had taken place before the applicant had been charged, which made it inapplicable to his case), that it appeared from a transcript of his telephone conversation with Z. that some documents relating to the criminal proceedings might be concealed, and that he was under the threat of a heavy prison sentence and had contacts abroad, which justified the court’s concern that he might abscond and avoid the criminal proceedings. Referring to the applicant’s new status as an accused, the court dismissed his argument that should he have wished to abscond, he could already have done so between April 2001 (when Z. had been charged) and November 2001 (when he himself had been charged). The court refused the pledge offered by the applicant as well as the guarantee offered by third persons.
On 5 December 2001 the applicant applied to be released.
On 24 December 2001 the District Court decided to release the applicant on bail, requiring the payment of 5,000,000 Czech korunas (CZK – 166,667 euros (EUR)).
On 22 January 2002 the Municipal Court, on an appeal by the Prague Municipal Prosecutor, quashed that decision for formal shortcomings and remitted the application for release to the Municipal Prosecutor for further consideration.
On 31 January 2002 the Municipal Prosecutor decided that there was no longer any risk that the applicant would influence witnesses, but considered that his continued detention was necessary under section 67(1)(a) of the Code of Criminal Procedure as there was a risk that he might abscond.
On the same day, the prosecutor, further to an application lodged by the applicant on 29 January 2002, decided to release him on bail, requiring the payment of CZK 10,000,000 (EUR 333,333).
On 30 January 2002 the applicant lodged a constitutional appeal against the District Court’s decision of 7 November 2001 and that of the Municipal Court of 4 December 2001, alleging that they had violated his rights to a fair trial, judicial protection and personal liberty and invoking, inter alia, Article 5 § 1 and Article 6 § 1 of the Convention. He claimed that the decisions ordering his pre-trial detention were not based on concrete facts indicating a risk of his absconding or influencing witnesses.
On 2 April 2002 the Constitutional Court (Ústavní soud) dismissed the constitutional appeal as ill-founded.
The criminal proceedings are still pending.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. the Czech Republic (no. 40552/02 (dec.), §§ 11-24, 16 October 2007).
At the material time, the relevant provisions of the Code of Criminal Procedure read as follows:
“(1) An accused person may be remanded in custody only if there exist specific grounds for believing that he or she
(a) will abscond in order to avoid prosecution or punishment, in particular if his or her identity cannot be immediately established, if he or she has no permanent residence or if he or she is liable to a heavy penalty;
(b) will try to influence the witnesses or co-accused who have not been heard yet or otherwise frustrate the investigation into the facts which are of importance for the conduct of the proceedings; or
(c) will carry on the criminal activity for which he or she is prosecuted, will accomplish an offence attempted by him or her or will commit an offence which he or she was preparing or threatening to commit.
(2)


ITEMID: 001-86871
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF CVETKOVIC v. SERBIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of Art. 13+6;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
TEXT: 5. The applicant was born in 1934 and lives in Leskovac, Serbia.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 6 December 1988 the applicant, a labour inspector (inspektor rada), was declared redundant by the Municipality of Leskovac, which decision entered into force on 29 December 1990.
8. On 22 February 1991 the applicant therefore filed a claim with the Labour Court (Osnovni sud udruženog rada) in Vranje, seeking reinstatement or severance pay as provided for in the relevant domestic legislation.
9. Following a remittal, on 3 September 1991 this court relinquished jurisdiction in favour of the Municipal Court (Opštinski sud) in Leskovac.
10. Between 2 June 1992 and 5 January 1998 a total of fourteen separate decisions were adopted by the Municipal Court, at first instance, the District Court (Okružni sud) in Leskovac, on appeal, and the Supreme Court (Vrhovni sud Srbije) at third instance.
11. Following a remittal, on 16 March 1998 the Municipal Court again ruled in favour of the applicant.
12. On 5 June 1998 the District Court upheld this judgment on appeal and it thereby became final.
13. On 18 March 1999 the Municipal Court issued a separate decision, ordering the enforcement of this judgment.
14. On 21 November 2000, however, the same court accepted the respondent’s request for the re-opening of the labour dispute.
15. On 21 February 2001 and 23 May 2002 the District Court and the Supreme Court, respectively, upheld this decision.
16. On 21 November 2002 the Municipal Court therefore re-opened the proceedings in question.
17. The hearing scheduled for 21 April 2004 was adjourned because of the presiding judge’s illness.
18. On 3 March 2005 the President of the Municipal Court appointed another presiding judge to deal with the case, the reason being that the applicant had, in the meantime, filed a criminal complaint against the former.
19. On 18 April 2005 and 18 May 2005 two separate hearing were held.
20. On 24 May 2005 the Municipal Court appointed a financial expert and ordered him to calculate the amount of salary arrears sought by the applicant.
21. On 5 April 2006 the Municipal Court appointed another financial expert to carry out this order.
22. On 19 July 2006 the Municipal Court ruled partly in favour of the applicant. It awarded him most of the salary arrears and severance pay requested, but refused his claim for reinstatement since he had reached retirement age in the meantime.
23. On 1 December 2006 the District Court quashed this judgment on appeal and remitted the case to the Municipal Court.
24. On 24 January 2007 the Municipal Court again ruled partly in favour of the applicant.
25. On 26 April 2007, however, the District Court rejected the applicant’s claims in their entirety.
26. On an unspecified date thereafter the applicant filed an appeal on points of law. According to the information made available to the Court by the parties to date, the case is apparently still pending before the Supreme Court.
27. It would appear that throughout the above proceedings the applicant had represented himself.
28. The relevant provisions of the Constitution read as follows:
“Everyone shall have the right to ... [a hearing before a] ... tribunal ... within a reasonable time ... [in the determination] ... of his [or her] rights and obligations ...”
“A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”
“The Constitutional Court shall have fifteen judges who shall be elected or appointed for a period of nine years.
Five judges of the Constitutional Court shall be elected by the National Assembly, another five shall be appointed by the President of the Republic, and another five shall be appointed at the general session of the Supreme Court of Cassation ...
The National Assembly shall elect five judges of the Constitutional Court from among ten candidates proposed by the President of the Republic, the President of the Republic shall appoint five judges of the Constitutional Court from among ten candidates proposed by the National Assembly, and the general session of the Supreme Court of Cassation shall appoint five judges from among ten candidates proposed at the general session by the High Judicial Council and the State Prosecutors’ Council.”
“The Constitutional Court shall adjudicate by the majority of votes cast by all judges of the Constitutional Court.”
29. In accordance with Article 9 § 3 the Constitutional Court shall be deemed constituted when two thirds of the total number of judges have been elected or appointed.
30. The relevant provision of this Act read as follows:
“The decisions of the Constitutional Court shall be final, enforceable and binding.”
“The Constitutional Court shall have its Rules of Procedure ... which shall regulate, in greater detail, the organisation ... [and the functioning of the Constitutional Court] ... as well as the proceedings ... [before it] ...”
“ ... [T]he Constitutional Court shall have a Registry.
The organisation, the tasks, and the functioning of the Registry shall be regulated, in greater detail, by ... the Constitutional Court.”
“A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law.
A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant’s right to a trial within a reasonable time.”
“A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the Constitution has been violated or denied by an individual decision or an action of a State body or an organisation exercising delegated public powers.”
“A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...”
“When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time.
The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.”
“... [An applicant who has obtained a Constitutional Court decision in his or her favour] .., may lodge a compensation claim with the Commission for Compensation in order to reach an agreement in respect of the amount ... [of compensation to be awarded] ...
If the Commission for Compensation does not rule favourably in respect of a compensation claim or fails to issue a decision within thirty days from the date of its submission, the applicant may file a civil claim for damages before the competent court. If only partial agreement has been achieved, a civil claim may be filed in respect of the remainder of the amount sought.
The composition and operation of the Commission for Compensation shall be regulated by the Minister of Justice.”
“The Constitutional Court shall, within ninety days as of the date of entry into force of this Act, adopt its Rules of Procedure and ... [further regulate the organisation and functioning of its Registry] ...”
The Minister of Justice shall, within ninety days as of the date of entry into force of this Act ... [regulate the composition and the operation of the Commission for Compensation] ...”
31. Articles 72 and 73 provide additional details as regards the processing of the appeals lodged with the Constitutional Court.
32. The new Constitution of the Republic of Serbia, as well as the Constitutional Act on its implementation, entered into force in November 2006.
33. The Constitutional Court Act entered into force in December 2007.
34. The Rules of Procedure of the Constitutional Court entered into force in March 2008.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76776
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: GAVELLA v. CROATIA
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Nikola Gavella, is a Croatian national who was born in 1937 and lives in Zagreb. He was represented before the Court by Mrs I. K. Vucelić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 January 1997 the Act on the Restitution of and Compensation for Property Expropriated during the Yugoslav Communist Regime (“the Denationalisation Act”) entered into force.
Pursuant to section 22 of the Denationalisation Act, nationalised flats in respect of which third persons had acquired specially protected tenancies (stanarsko pravo) were not to be restored to their former owners. The tenants had a right to purchase such flats from the Fund for the Restitution of and Compensation for Expropriated Property (Fond za naknadu oduzete imovine – “the Fund”) under favourable conditions set out in the Specially Protected Tenancies (Sale to Occupier) Act. At the same time, the former owners or their heirs were entitled to financial compensation in respect of the flats.
In addition, section 29 of the Denationalisation Act provided that, in the event of subsequent “disposal in rem” of flats purchased by such tenants, the former owners had the right of pre-emption (pravo prvokupa). In such cases, the new owner (the former tenant) was obliged to offer it first to the former owner for the same price as he or she had paid to the Fund. If the former owner accepted the offer and concluded a contract of sale with the new owner, he or she had to pay the Fund the difference between the sale price and the amount of financial compensation previously received.
Pursuant to section 29 (2) of the Denationalisation Act, the right of pre-emption was to be noted (zabilježba) in the land register on the basis of a mandatory clause to be inserted into every contract of sale concluded between a tenant and the Fund.
Three residential buildings in the centre of Zagreb had been owned by the applicant's family and were nationalised during the Communist regime.
On 2 February and 29 March 2001 respectively, the Office for Property Affairs of the City of Zagreb (Grad Zagreb, Gradski ured za imovinskopravne poslove) issued two decisions finding that the applicant, as the sole heir of his late mother, E.G., was entitled to financial compensation in the amount of 2,763,164 Croatian kunas in respect of 27 flats situated in the nationalised buildings. Twenty-five percent of the compensation was to be paid within six months of the decisions becoming final, while the rest was to be paid in State bonds in 40 twice-yearly instalments over the period between 1 January 2000 and 1 July 2019.
The applicant submitted that he had renounced his pre-emption rights in respect of five of the flats.
In 1996 24 members of the upper house of Parliament – the House of Counties (Županijski dom Sabora Republike Hrvatske) – lodged an application with the Constitutional Court challenging the constitutionality of the Denationalisation Act (application for abstract constitutional review – zahtjev za ocjenu ustavnosti) under section 13 of the 1991 Constitutional Act on the Constitutional Court (“the 1991 Constitutional Court Act”).
In addition, in the period between 1996 and 1999, the Constitutional Court received 64 petitions lodged by various individuals requesting the institution of proceedings to review the constitutionality of the Denationalisation Act (petition for abstract constitutional review – prijedlog za ocjenu ustavnosti) under section 15 of the 1991 Constitutional Court Act.
On 21 April 1999 the Constitutional Court delivered a single decision on the above application and petitions. It quashed certain provisions of the Denationalisation Act as unconstitutional. Among other provisions, the Constitutional Court quashed section 29 (1), which provided for pre-emption rights for former owners. As a result, the applicant lost his right of pre-emption.
The Constitutional Court held that the constitutionally protected right to ownership included the right to dispose of a property, which meant, inter alia, the right to sell it at a contracted (market) price. Since the statutory right of pre-emption restricted the right of disposal, thereby placing a limitation on the constitutional right of ownership, that limitation had to meet the aim which it sought to achieve. The aim of the right of pre-emption was to protect former owners and the legal order against any unjustifiable profit which the new owner of a flat (the former tenant) might make by selling it at the market price (having previously bought it from the Fund at a significantly lower price). However, it was not necessary to provide for the right of pre-emption in perpetuity in order to meet that aim. Instead, the aim could have been achieved by imposing a reasonable time-limit. A perpetual right of pre-emption was not proportionate to the aim pursued, and therefore constituted an excessive restriction on the rights of current owners, hampering even socially desirable disposal of property (aimed, for example, at meeting the housing needs of the owner's immediate family members) and paralysing real property transactions to a significant extent.
In addition, section 29 (1) was found to be contrary to the principle of legal certainty and thereby to the rule of law, on account of the vague and imprecise nature of the terms used. In particular, it was not clear whether the right of pre-emption in question constituted a right in rem or in personam (and if the latter was the case, whether it existed for the lifetime of the former or the current owner). Moreover, the Constitutional Court held that the use of the term “disposal in rem” (which, apart from sale, could involve other forms of alienation and mortgaging of the property) to describe an event triggering the former owner's right of pre-emption, was inconsistent with the other provisions of the Denationalisation Act, which used the term “sale” to describe the same event.
The Constitutional Court deferred the effects of its decision by giving the legislature one year to comply with the decision and enact amendments to the Denationalisation Act to replace the unconstitutional provisions. The quashed provisions were to lose their legal force with the entry into force of the envisaged amendments, but no later than one year from the date of publication of the court's decision. The decision was published in the Official Gazette on 23 April 1999.
Following several requests by the Government, the Constitutional Court extended this time-limit on five occasions. The time-limit was finally set at 1 July 2002.
On 5 July 2002 Parliament adopted amendments to the Denationalisation Act (“the Amendments”) which entered into force on the same day. Section 4 of the Amendments repealed sections 29, 30 and 31 of the Denationalisation Act, that is, the provisions providing for pre-emption rights for former owners.
Parliament did not accept the Government's bill, which provided for pre-emption rights for former owners in the event of a flat's subsequent sale, donation or exchange, for a period of fifteen years. It considered that the proposed solution would result in an undesirable stalemate whereby the current owner would have no incentive to sell his or her flat, and therefore making it impossible for former owners to make use of their right of pre-emption. If adopted, the bill would impose an excessive burden on the current owners while not benefiting the former owners. Moreover, since property transactions concerning these flats would be paralysed, it would deprive the State of the taxation revenue from such transactions.
On 19 August 2002 the applicant requested the Constitutional Court to institute proceedings to review the constitutionality of the Amendments (petition for abstract constitutional review), arguing that they were in breach of the Constitution. The Constitutional Court has not yet decided on the applicant's petition.
The relevant provisions of the 1990 Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/97, 113/2000 and 28/2001) read as follows:
“Rights and freedoms may be restricted only by law, in order to protect the rights and freedoms of others, the legal order, public morals or public health.”
“1. The right of ownership is guaranteed.
2. Ownership implies duties. Owners and users of property shall contribute to the general welfare.”
“1. Property may be restricted or taken in accordance with the law and in the interest of the Republic of Croatia subject to payment of compensation equal to its market value.
2. The exercise...of property rights may, on an exceptional basis, be restricted by law for the protection of the interests and security of the Republic of Croatia, nature, the environment or public health.”
“The Croatian Parliament shall:
- ...
- enact statutes,
...”
The relevant provisions of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu, Official Gazette no. 13/1991 of 21 March 1991), as in force in the material time, provided as follows:
“An application instituting proceedings before the Constitutional Court may be submitted by:
Parliament;
one-third of the members of each House of Parliament;
the President of the Republic of Croatia;
the Government of the Republic of Croatia, to review the constitutionality and legality of subordinate legislation;
the Supreme Court of the Republic of Croatia, if the issue of constitutionality and legality has arisen in proceedings before a court;
the Ombudsman, in proceedings under Article 83 of the Constitution of the Republic of Croatia;
...”
“Everyone has the right to request the institution of proceedings to review the constitutionality of statutes...
The Constitutional Court may of its own motion institute proceedings to review the constitutionality of statutes...”
“(1) The Constitutional Court shall quash a statute or its provisions if it finds that they are incompatible with the Constitution.
(2) Unless the Constitutional Court decides otherwise, the quashed statute or its provisions shall cease to have legal force on the day of publication of the Constitutional Court's decision in the Official Gazette.”
Sections 527-33 of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999), as in force in the material time, laid down general rules (lex generalis) concerning pre-emption rights.
Section 531 provided that the contractual right of pre-emption would expire five years after the conclusion of the contract of sale, unless it was stipulated that it would expire earlier.
Section 533 provided, inter alia, that the statutory right of pre-emption was of unlimited duration.
The relevant provisions of the Act on the Restitution of and Compensation for Property Expropriated during the Yugoslav Communist Regime (Zakon o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette no. 92/96 of 30 October 1996), as in force in the material time, read as follows:
“(1) Unless expropriated by confiscation, flats [...] let under specially protected tenancies shall not be returned to their former owners.
...
(3) The former owner shall have the right to compensation and the holder of the specially protected tenancy shall have the right to purchase the flat.”
“The contract referred to in paragraph 2 of this section [by which the Fund sells the flat to the holder of the specially protected tenancy] shall stipulate, in the form of a mandatory clause, the right of pre-emption in favour of the former owner in case of further disposal in rem of the purchased flat. The right of pre-emption shall be noted (zabilježba) in the land register.”
“(1) In the case of further disposal in rem of the flat purchased [from the Fund], the former owner shall have the right of pre-emption.
(2) The right of pre-emption of the former owner shall be noted in the land register of the competent court.
(3) The owner of a purchased flat who intends to sell it shall, through the notary public, offer the flat for sale to the former owner and notify him or her of the price [paid by the owner when he or she purchased the flat from the Fund] and the terms and conditions of the sale.”
Paragraph 5 provided that the former owner, within sixty days of conclusion of the contract of sale with the flat owner, had to (re)pay to the Fund the difference between the price set forth in paragraph 3 and the amount he or she had received in compensation for the nationalised flat.
Paragraphs 4, 6 and 7 set forth in detail the obligations of the current owner (former tenant) in respect of the former owner's right of pre-emption.
Section 30 of the Act provided for the remedies (a civil action) available to the former owner if the current owner failed to observe his or her right of pre-emption.
Section 31 stated that no turnover tax was payable on the sale of the flat, in accordance with the former owner's right of pre-emption.
The relevant provision of the Amendments to the Act on the Restitution of and Compensation for Property Expropriated during the Yugoslav Communist Regime (Zakon o izmjenama i dopunama Zakona o naknadi za imovinu oduzetu za vrijeme jugoslavenske komunističke vladavine, Official Gazette nos. 80/02 and 81/02 (amended)), provides as follows:
“Sections 29, 30 and 31 [of the Act] are hereby repealed.”
“Proceedings instituted under the Denationalisation Act which have not ended in a res judicata decision by the date of entry into force of this Act shall be continued under the provisions of this Act.”
The relevant provisions of the Land Register Act (Zakon o zemljišnim knjigama, Official Gazette no. 91/96 of 28 October 1996), as in force at the material time, provided as follows:
REGISTER ENTRIES
Section 1
Entries in general
a. Types of entries
Section 30
“(1) Register entries shall take the form of registration, preliminary registration and annotation.
(2) Registration (uknjižba) is a form of entry whereby the register rights are acquired, transferred, limited or extinguished without ... subsequent validation.
(3) Preliminary registration (predbilježba) is a form of entry whereby the register rights are acquired, transferred, limited or extinguished subject to subsequent validation, and within the limits of that validation.
(4) Annotation (zabilježba) is a form of entry making public any relevant circumstances which may, by law, be noted in the land register. Annotation may give rise to certain legal effects where a statute so prescribes.”
b. Subject matter of registration and preliminary registration
Section 31(1)
“Only the right of ownership and other rights in rem may be the subject of registration in the land register. The same shall apply to rights of redemption, pre-emption, lease, as well as concessions and other rights in immovables, where provided for by another statue.”
c. Subject matter of annotation
Section 39
“Annotations may be made in the land register for the following purposes:
- to make public the legal relationships concerning personal status, in particular restrictions concerning the administration of property (for example, minority, guardianship, continuation of parental authority, opening of bankruptcy proceedings, etc.), as well as other legal relationships and facts prescribed by law, in order that no one may claim that he did not know or should not have known of their existence;
- to establish the legal effects of annotations prescribed by this or another statute (annotation of order of priority..., compulsory auction, prohibition of alienation or encumbrances, annotations prescribed by the rules governing enforcement and provisional remedies, etc.).”


ITEMID: 001-100883
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DMD GROUP, A.S., v. SLOVAKIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant company was established in 1997 and has its seat in Trenčín.
6. In the late 1990s the applicant company commenced proceedings against two major companies, seeking the enforcement of financial claims against the companies through seizure of their shares and transfer of title to the shares to the applicant company.
7. The companies in question had been involved in arms production and had gone through a restructuring that resulted in a large number of job losses and a high rate of unemployment in the region. The relevant events therefore received media attention.
8. The judicial enforcement officer (súdny exekútor), A., who had been involved in the enforcement of the claims in issue, was charged with abuse of authority. A. was eventually acquitted of that charge by the Bratislava III District Court (Okresný súd) on 7 February 2003. Criminal proceedings were also brought against other individuals.
9. Further details concerning the background can be found in the Court's judgment of 2 June 2009 in the case of Borovský v. Slovakia (no. 24528/02).
10. On 23 September 1998 the applicant company petitioned A. to enforce a claim for payment of an amount equivalent to approximately 2,900,000 euros (EUR) against B., a private joint-stock company. A. subsequently sought judicial authorisation of the enforcement.
11. On 30 September 1998 the President of the Martin District Court, C., sitting as a single judge, authorised A. to carry out the enforcement proceedings against B.
12. In the course of the enforcement proceedings, A. seized B.'s movable property and certain shares relating to B. A. attempted to sell the seized property at two public auctions. As the auctions failed, the shares and movable property were transferred to the applicant company at fifty percent of their officially estimated value.
13. On 20 April 1999 the applicant company requested that the enforcement proceedings be ended, as its claim had been satisfied by the above-mentioned award of property.
14. In a decision (uznesenie) of 30 June 1999, D., the newly appointed President of the District Court sitting as a single judge, ruled that the enforcement of the applicant company's claim by means of selling the shares was improper (neprípustná). At the same time, judge D. discontinued the enforcement proceedings.
Judge D. observed that the shares had been sold by way of a procedure that applied to movable property. However, as shares were not deemed to be movable property, a different procedure requiring special authorisation should have been used.
The two-page decision was not subject to appeal.
15. The distribution of cases and organisation of work at the District Court is regulated by a work schedule (rozvrh práce).
16. The work schedule for the District Court in 1999 was drawn up in 1998 by the then President of the District Court, judge C. According to this work schedule, all enforcement proceedings – including the proceedings for the enforcement of the applicant company's claim – were assigned to the District Court's Ninth Section, which was presided over by judge C. The work schedule provided that judge C. and judge D., who was at that time with the District Court's Seventh Section, were to substitute for each other if necessary.
A copy of the work schedule was sent to the Žilina Regional Court for information on 7 December 1998.
17. On 21 January 1999 judge D. was appointed as President of the District Court. He occupied that position until 5 June 2002.
18. On 4 February 1999 judge D. issued an amendment to the work schedule. With effect from 1 March 1999, new enforcement proceedings were to be distributed evenly among eight different sections of the court, including the Seventh Section. Enforcement proceedings that had originally been assigned to the Ninth Section were also to be reassigned and distributed evenly among the eight designated sections. The amendment was worded in general terms without identifying any specific proceedings.
A copy of the amended work schedule was sent to the Regional Court for information on 30 March 1999.
19. On 30 June 1999 judge D., in his capacity as President of the District Court, issued a decree (opatrenie) reassigning the proceedings for the enforcement of the applicant company's claim to himself.
In the one-page decree, reference was made to section 2(2) and 2(3) of the Administrative Rules for District and Regional Courts (Regulation no. 66/1992 Coll., as amended) (“the Rules”).
The decree formally stated that the reason for the reassignment was “a change in the work schedule” and that the reassignment was made “in accordance with the system of substitution of judges fixed in the work schedule and for the purpose of ensuring the proper functioning of the court”.
20. In the period between 1 March and 15 July 1999, a total number of 348 cases were reassigned from the Ninth Section of the District Court. Of the total, 49 cases were reassigned to judge D's section and 52, 48, 45, 42, 60 and 52 cases were reassigned to the remaining six Sections of the District Court respectively.
21. Further amendments to the District Court's work schedule were issued by judge D. throughout 1999, taking effect on 1 June, 23 June, 1 August and 1 October 1999. They were all notified to the Regional Court. Under these amendments, judge D. was in charge of one in seven enforcement proceedings and also continued to stand in for judge C. (on a mutual basis).
22. The applicant company lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd).
It contended, inter alia, that its right to a hearing by a tribunal established by law had been violated by judge D.'s assignation of the case to himself. The applicant company pointed to the fact that the case had been decided by judge D. on the same day that it was reassigned to him. It also alleged that there had been frequent modifications to the work schedule of the District Court in 1999 which had rendered the process of assignment and reassignment of cases uncontrollable, thus leaving room for arbitrariness.
The applicant company also challenged the above-mentioned ruling declaring the enforcement proceedings improper.
23. On 4 July 2002 the Constitutional Court declared the part of the applicant company's complaint concerning the reassignment of the case to judge D. admissible under Article 48 § 1 of the Constitution. At the same time, it declared the remaining part of the complaint concerning the ruling on the merits inadmissible as manifestly ill-founded.
24. In a judgment (nález) of 17 January 2003, the Constitutional Court held, by a two to one majority, that there had been no violation of the applicant company's rights under Article 48 § 1 of the Constitution.
25. Having received extensive documentary evidence and having held a public hearing, the Constitutional Court established, inter alia, the facts summarised in paragraph 20 above.
The Constitutional Court found that the evidence available indicated that judge D. had made the impugned decree of 30 June 1999 in the context of modifications to the court's work schedule for 1999, in the interests of an equal distribution of cases concerning enforcement proceedings, and in accordance with section 2(2) of the Rules.
The court further held that the fact that judge D. decided the case on the same day that he had given the above-mentioned decree did not, as such, affect the legal framework within which the change in judges had been effected.
The Constitutional Court concluded that the applicant company had not sufficiently substantiated its allegation that the case had been assigned to judge D. in an unjustified manner.
26. The judge in the minority gave a dissenting opinion. He pointed to the fact that the work schedule of the District Court had been modified several times in the course of 1999 without any acceptable explanation. There was no indication that an objective and transparent method for the reassignment of cases had been established and applied. Moreover, during the relevant period no similar steps had been taken at the District Court to redistribute cases in differing categories despite the far heavier case load in those other categories.
27. Article 48 § 1 provides that no one may be deprived of his or her lawfully appointed judge (zákonný sudca). The jurisdiction of a court in a particular matter is to be established by law.
28. According to the Constitutional Court, the right “not to be deprived of his or her lawfully appointed judge” pursuant to Article 48 § 1 of the Constitution is vested in each party to the proceedings (as opposed to the judge) (decision of 22 July 1997 in case no. II. ÚS 43/97).
29. The Constitutional Court held in its judgment of 28 February 1994 in case no. I. ÚS 8/94 that the right “not to be deprived of his or her lawfully appointed judge” attaches to the person of the judge and not to a court. A 'lawfully appointed' judge is one who, fulfilling the statutory requirements for being a judge, has been assigned to a case under the work schedule of the court concerned.
30. The Constitutional Court has also held (by a decision of 3 April 1996 in case no. II. ÚS 15/96) that the right of a person “not to be deprived of his or her lawfully appointed judge” cannot be interpreted in so broad a manner as to pertain to a specific, individual judge.
The purpose of this constitutional right is therefore satisfied if an individual's rights are decided upon by a judge who has been duly appointed to a court which has jurisdiction ratione loci and ratione materiae and is at the appropriate level of jurisdiction.
31. In reviewing the additional constituent elements of the notion of a “lawfully appointed judge” under Article 48 § 1 of the Constitution, the Constitutional Court held that it is not only statutory provisions, in particular those of the Courts and Judges Act, that are of relevance but above all the provisions of the Constitution, chiefly Article 46 § 1, which provides that everyone may claim his or her rights by way of a procedure established by law before an independent and impartial court (judgment of 15 June 2000 in case no. III. ÚS 16/00).
32. The Constitutional Court has also held (in its judgments in cases nos. II. ÚS 87/01, II. ÚS 118/02 and II. ÚS 119/02) that, in principle, a “lawfully appointed judge” is the judge assigned to a specific case under the work schedule of the court concerned. However, if there are circumstances justifying the reassignment of the case or of the entire agenda to a different judge for the reasons envisaged in sections 2(2) and (3) of the Rules, any newly assigned judge becomes a lawfully appointed judge. Such circumstances comprise, for example, the long-term absence of a judge, significant differences in workload among judges, or sudden events preventing a judge from taking specific steps in the proceedings.
33. In a judgment of 9 June 1999 in case no. II. ÚS 47/1999, the Constitutional Court held that a president of a court must not use his discretion, contrary to the law, to take a case away from a lawfully appointed judge and assign it to another judge in order to accommodate one of the parties without providing a precise ground of justification for the reassignment.
34. The Rules were issued by the Minister of Justice. As then in force, they defined the internal rules of District Courts and Regional Courts and the discharge of tasks by those courts.
Section 2 of the Rules governed courts' work schedules, that is to say the distribution of cases among court divisions and judges.
35. Pursuant to paragraph 1 of section 2, the distribution of work at courts was to be determined in a work schedule for a whole calendar year. The schedule of work was also to provide for the substitution of judges.
36. Under paragraph 2, where a judge was absent for a long period or where there were substantial differences in the workload of judges at the same court, the President of the court was given power to decide that a certain amount of work be transferred to a different division of the court.
37. Paragraph 3 provided that, where a sudden event prevented a judge from carrying out individual acts in a case, the court's president might charge a different judge to take the action required.
38. Under paragraph 4, a court's president was to take the measures indicated in paragraphs 2 and 3 in accordance with the rules concerning the replacement of judges as defined in the work schedule, unless a different action was required with a view to ensuring the proper functioning of the court.
39. No further statutory rules on the status and creation of courts' work schedules existed at the relevant time.
40. At the relevant time, the State administration of the judiciary was governed by Law no. 80/1992 Coll., as amended. Pursuant to section 8 of the Law, the bodies charged with the State administration of the judiciary were the Ministry of Justice and the Presidents and Vice-presidents of the courts.
41. The State administration of District Courts was carried out by the Ministry of Justice directly or through the Presidents of those courts (section 9(1)).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-110180
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF MANZANAS MARTIN v. SPAIN
IMPORTANCE: 3
CONCLUSION: Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property);Pecuniary damage - reserved;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. The applicant was born in 1926 and lives in Barcelona.
6. From 1 November 1952 to 30 June 1991, when he reached retirement age, the applicant worked as a minister of the Evangelical Church. During his years as a minister, he received remuneration from the Evangelical Church. However, the Church did not pay any social security contributions on his behalf, as there was no provision in Spanish law for it to do so.
7. The applicant had previously worked as an employee between 1 January 1944 and 15 October 1946. After being ordained he again worked as a salaried employee from 13 March 1974 to 9 September 1978, while carrying out his duties as a minister.
8. The applicant applied to the National Social Security Agency (INSS) for a retirement pension. By a decision of 26 October 2004 the INSS rejected his application on the grounds that he had not completed the minimum period of pensionable service, that is, 15 years (5,475 days). Added together, the two periods during which the applicant contributed, between 1944 and 1946 and between 1974 and 1978, totalled 2,560 days.
9. The applicant asked the INSS to reconsider his case. In two decisions of 15 March and 23 May 2005 the INSS again rejected the applicant’s claims, confirming its initial decision.
10. The applicant brought proceedings against the INSS before the Employment Tribunal to secure a retirement pension. He alleged that he was being discriminated against in so far as the legislation provided for Catholic priests to receive a retirement pension as they were part of the general social security scheme.
11. In a judgment of 12 December 2005 Barcelona Employment Tribunal no. 33 allowed the applicant’s claims and ordered the INSS to pay him a retirement pension. Analysing the changes in the legislation on the subject, the court considered that the law clearly treated Catholic priests more favourably than Evangelical ministers, which was contrary to the secularity of the State enshrined in the Constitution of 1978.
12. The court noted that even prior to the promulgation of the Constitution the first paragraph of Article 1 of Royal Decree 2398/1977 of 27 August 1977 had already established that priests and ministers of all faiths and churches registered with the Ministry of the Interior should be treated as salaried employees and be covered by the social security scheme. However, the second paragraph of that same Article specified that this was for immediate application only in respect of Catholic priests, which was done by order of the Ministry of Health and Social Security on 19 December 1977. Two subsequent Royal Decrees (nos. 487/1998 of 27 March 1998 and 2665/1998 of 11 December 1998) provided for Catholic clergy and priests who left the priesthood or ceased their religious activities to be able to count all their years of service with the church towards the years of contributions necessary to qualify for a retirement pension, provided that they made the capital payments corresponding to those years. Evangelical Church ministers were brought into the scheme twenty-two years after their Catholic counterparts, by Royal Decree 369/1999 of 5 March 1999, although they were not given the same possibility as Catholic priests of making up the missing annuities to qualify for a retirement pension. The court observed that by the time this decree took effect the applicant had ceased his pastoral activities, and according to the provisions of the decree his years as a minister could not be taken into account in calculating his years of contribution. The court considered that depriving the applicant of access to a retirement pension in the same conditions as those enjoyed by Catholic priests violated his right to equal treatment and freedom of worship enshrined in the Constitution. The court referred to Articles 6 and 7 of the Judicature Act (Ley Orgánica del Poder Judicial LOPJ) (see paragraph 16 below) and noted that Article 9 (2) of the Spanish Constitution stated: “It is the responsibility of the public powers to promote conditions so that liberty and equality of the individual and the groups he joins will be real and effective, to remove those obstacles which impede or make difficult their full implementation, and to facilitate participation by all citizens in political, economic, cultural, and social life”. Consequently, in the interest of the applicant’s fundamental rights the court considered that the provisions applied to Catholic priests – particularly Royal Decrees 487/1998 and 2665/1998 – could be applied to the applicant by analogy, enabling him to accumulate the minimum number of years of contribution thanks to his years as a minister, provided that he paid the capital corresponding to those missing years. It awarded the applicant a retirement pension from 22 July 2004 onwards, on the basis of 398.44 euros (EUR) a month.
13. The INSS lodged a súplica appeal against that decision. By a judgment of 26 July 2007 the High Court of Catalonia set aside the first-instance judgment. It noted that Evangelical Church ministers had been included in the general Social Security scheme by Law 24/1992 of 10 October 1992 approving the cooperation agreement between the State and the Federation of Evangelical religious entities of Spain (FEREDE). The right of Evangelical Church ministers to contribute and to receive the corresponding benefits had thus come into being under that law and the practical conditions of their integration in the general Social Security scheme had been laid out in Royal Decree 369/1999. In the instant case the court observed that the applicant had reached retirement age in 1991, prior to the enactment of Law 24/1992, which would have allowed him to pay Social Security contributions in order to be entitled to a pension. The fact that the applicant’s previous years of pastoral activity could not be taken into consideration was not the result of inactivity on the part of the State but of a lack of legislation because of the failure of the State and the various Evangelical Church authorities to reach an agreement. In the light of these considerations the court deemed that the applicant did not satisfy the statutory conditions to qualify for a retirement pension, which was a matter of ordinary law and not of discrimination in comparison with the situation of Catholic priests.
14. The applicant lodged an amparo appeal with the Constitutional Court. By a decision notified on 29 September 2009 that court declared the appeal inadmissible on the ground that it lacked the constitutional importance provided for in Article 50 § 1 b) of the Institutional Act on the Constitutional Court.
15. The relevant provisions of the 1978 Constitution provide as follows:
“Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”
“1. Freedom of ideology, religion and worship of individuals and communities is guaranteed, with no other restriction on their expression than may be necessary to maintain public order as protected by law.
2. No one may be compelled to make statements regarding his religion, beliefs or ideologies.
3. There shall be no State religion. The public authorities shall take the religious beliefs of Spanish society into account and shall consequently maintain appropriate cooperation with the Catholic Church and the other confessions.
16. The relevant parts of the Judicature Act read as follows:
“The judges and courts shall apply no regulations or other provisions which are contrary to the Constitution, the law or the principle of hierarchy of legal norms.”
“The rights and freedoms enshrined in Chapter II of Title II of the Constitution fully bind the judges and the courts and are guaranteed by them.
In particular, the rights set forth in Article 53 § 2 of the Constitution shall be upheld in their full constitutional content, and no judicial decision shall restrict, diminish or overrule that content ...”
17. The relevant provisions of Royal Decree 2398/1977 of 27 August 1977, regulating the social security of the clergy, read as follows:
“1. The priests of the Catholic Church and the ministers of the other Churches and religious denominations duly registered with the Ministry of the Interior shall be included in the scope of the general Social Security scheme, on terms to be established by regulation.
2. Diocesan priests of the Catholic Church shall be considered as salaried employees for the purposes of their inclusion in the general Social Security scheme, in the manner set forth in the present Royal Decree.”
18. The relevant parts of the Ministerial Order of 19 December 1977 (in force since 1 January 1978), which regulates certain aspects of the inclusion of diocesan Catholic priests in the general Social Security scheme, read as follows:
“Diocesan priests of the Catholic Church shall be considered as salaried employees for the purposes of their inclusion in the general Social Security scheme. The priests concerned are those who carry out their pastoral activities at the level of a diocese or archdiocese ... and receive a basic stipend to cover their needs.”
“In order to qualify for permanent disability, retirement and death benefits ... those priests who, on 1 January 1978, fell into the category referred to in Article 1 of this Order may pay the corresponding contributions to the general scheme for the periods preceding the entry into force of this Order, ... subject to the following conditions:
1. if they have reached the age of fifty by 1 January 1978, they may pay the relevant contributions for the periods comprised between 1 January 1978 and the day the priest reached that age, but no earlier than 1 January 1967.
...”
19. Under the terms of Institutional Act 7/1980 of 5 July 1980 on freedom of religion, the State may draw up cooperation agreements with the Churches, depending on how many members they have, their implantation in Spanish society and the beliefs of the majority of Spanish people.
20. Law 24/1992 of 10 November 1992 endorsing the cooperation agreement between the State and the Federation of Evangelical religious entities of Spain (FEREDE) regulated the following matters: the status of ministers of the Evangelical Church; the legal protection of their places of worship; the civil recognition of marriages celebrated in the Evangelical tradition; religious assistance in public places or establishments; Evangelical religious teaching in schools; and fiscal advantages applicable to certain assets and activities of the FEREDE member Churches. The relevant provisions read as follows:
“For all legal purposes the ministers of the FEREDE member Churches shall be considered as natural persons carrying out regular duties connected with religious worship or assistance where they can demonstrate this by means of a certificate issued by the Church concerned with the agreement of the Standing Committee of FEREDE.”
“In conformity with the provisions of Article 1 of Royal Decree 2398/1977 of 27 August 1977, the ministers of the FEREDE member Churches who meet the conditions set forth in Article 3 of the present Agreement shall be affiliated to the general Social Security scheme. They shall be considered as salaried employees.
The Churches concerned shall take on the rights and obligations incumbent on employers in the general Social Security scheme.”
21. Royal Decree 487/1998 of 17 March 1998 concerning the recognition, for the purposes of social security contributions, of the periods of religious activity of the clergy or priests of the Catholic Church who left the priesthood or ceased their religious activities, states:
“The present decree applies to those who, having served as priests or clergy of the Catholic Church, left the priesthood or ceased their religious activities before 1 January 1997, if they satisfy the following conditions:
...”
“1. At their request and for the purposes of entitlement to a retirement pension, the persons referred to in the previous Article shall be considered to have paid their social security contributions for the requisite number of years during which they served as priests or members of the clergy, together with the number of years of effective contribution, to enable them, where applicable, to reach a total of fifteen years’ contributions.
...”
22. Royal Decree 2665/1998 of 11 December 1998, which supplements Royal Decree 487/1998, provides:
“The present decree applies to those who, having served as priests or clergy of the Catholic Church, left the priesthood or ceased their religious activities before 1 January 1997.”
“At their request the persons referred to in the previous Article shall be considered to have paid their social security contributions for their periods of service as priests or clergy prior to the following dates:
For priests who left the priesthood: 1 January 1978.
For those who abandoned the religious profession: 1 May 1982.”
“1. When their pension entitlement is initially acknowledged the persons concerned must pay the pension contributions for the part of the pension derived from the years of service as priests or members of the clergy that were counted as years of contribution to the Social Security scheme.
For this purpose the part of the pension to be funded shall be calculated by applying the following percentages to the basic scale:
...
3. Payment of the capital concerned may be deferred for a maximum period of fifteen years and staggered in monthly payments deductible from each month’s pension ...”
23. Royal Decree 369/1999 of 5 March 1999, regulating the integration into the Social Security scheme of ministers of the member Churches of FEREDE provides:
“For the purposes of the present Royal Decree, the Churches or federations of Churches concerned shall take on the rights and obligations incumbent on employers in the general Social Security scheme.”
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-67167
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF CRNOJEVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 7. The applicant was born in 1921 and lives in Zagreb.
8. On 6 September 1991 his summer house in Starigrad, Croatia, was blown up by unknown perpetrators.
9. On 7 September 1994 he instituted civil proceedings before the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages from the Republic of Croatia for his damaged property.
10. On 16 November 1995 the Zagreb Municipal Court gave judgment partly allowing the applicant’s claim.
11. On an uncertain date the defendant appealed against the first instance judgment.
12. Pursuant to the Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima), the Zagreb Municipal Court stayed the proceedings on 3 September 1997.
13. On 31 July 2003 the “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija) entered into force. It provides that proceedings which were stayed pursuant to the Civil Obligations (Amendments) Act 1996 will resume. However, it is uncertain if and when the applicant’s proceedings before the Zagreb Municipal Court have resumed.
14. The relevant part of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette of the Republic of Croatia nos. 53/1991, 73/1991, 3/1994, 7/1996 and 112/1999) read as follows:
“Responsibility for loss caused by death or bodily injury or by damage or destruction of another’s property, when it results from violent acts or terror or from public demonstrations or manifestations, lies with the ... authority whose officers were under a duty, according to the laws in force, to prevent such loss.”
15. The Civil Obligations (Amendments) Act 1996 (Zakon o izmjeni Zakona o obveznim odnosima, Official Gazette of the Republic of Croatia no. 7/1996, hereinafter “the 1996 Act”) entered into force on 3 February 1996. The relevant parts of that Act read as follows:
“Section 180 of the Civil Obligations Act ... shall be repealed.”
“Proceedings for damages instituted under section 180 of the Civil Obligations Act shall be stayed.
The proceedings referred to in sub-section 1 of this section shall resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts.”
16. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 112/1999 and 117/2003) provides:
“Proceedings shall be stayed:
...
(6) where another statute so prescribes.”
17. The “Damage from Terrorist Acts and Public Demonstrations Act 2003” (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003, hereinafter “the 2003 Act”) entered into force on 31 July 2003. It provides that proceedings which were stayed pursuant to the 1996 Act will resume and defines circumstances in which the Republic of Croatia is liable for damage resulting from terrorist acts and public demonstrations.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1