ITEMID: 001-90321
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: FURDIK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Milan Furdík, is a Slovakian national who was born in 1941 and lives in Banská Bystrica. He was represented before the Court by Ms M. Čulenová, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 July 2005 the applicant’s daughter, Ms Vanda Furdíková, who was then 27 years old, died as a result of injuries which she sustained while climbing the Široká veža peak in the High Tatras. The peak’s summit is at 2,461 metres above sea level.
Ms Furdíková and her partner started the climb in excellent weather conditions at 9 a.m. on 30 July 2005. Both climbers were sufficiently experienced for the climb.
At 12.14 p.m. Ms Furdíková fell when a block of rock came loose. She remained hanging on the rope with her head pointing downwards some 25 metres below her co-climber. Some 120 metres below her two other climbers, Mr. and Mrs. J., were preparing to start the same climb and witnessed the accident.
At 12.16 p.m. and at 12.18 p.m. Mrs J. attempted to contact the Air Rescue Service and the Mountain Rescue Service using a mobile phone. Both lines were busy. After another attempt she reached the Mountain Rescue Service at 12.19 p.m. She was told that a helicopter would be sent immediately and that it would arrive at the place of the accident in 20-25 minutes.
The accident had also been reported to the operations centre of the Mountain Rescue Service in Poprad by a tourist passing near the foot of the mountain. The records indicate that the operations centre received the first emergency call about the accident at 12.15 p.m.
Between 12.15 and 12.25 p.m. the co-climber fixed the ropes with a view to preventing Ms Furdíková from any further falls and descended by rope to the latter. Ms Furdíková was badly injured, but she remained conscious and communicated with her partner until 4 p.m. At 12.23 p.m. Mr. and Mrs. J. decided to climb up to Ms Furdíková and her partner.
At 12.30 p.m. the duty officer of the Mountain Rescue Service informed Mr J. by phone that the helicopter would arrive in some 20 minutes as it was on a different rescue mission in Smrekovica at that time.
At 1 p.m. the doctor of the Air Rescue Service called Mr J. to tell him that the rescue team was on its way.
The three climbers supported Ms Furdíková, hydrated her and communicated with her.
At 1.17 p.m. the rescue service helicopter landed in Poprad to fill the fuel tank and to prepare the equipment needed for the rescue of Ms Furdíková. At 1.40 p.m. the helicopter took off from Poprad. On its flight to the mountain it landed in Starý Smokovec at 1.45 p.m., to board one member of the Mountain Rescue Service. It reached the place of the accident at 2 p.m.
At 2.02 p.m. the pilot informed the land operator that strong turbulence was preventing Ms Furdíková from being rescued directly from the helicopter in flight. A reinforcement of the rescue team and special equipment were required in order to reach the injured person.
The helicopter returned to Poprad. Between 2.25 and 2.45 p.m. a member of the Mountain Rescue Service with the necessary equipment joined the rescue team and the fuel tank was refilled.
At 3.30 p.m. another two members of the Mountain Rescue Service boarded the helicopter in Starý Smokovec.
At 3.45 p.m. the rescue team was dropped on the summit of the mountain. The helicopter flew off to attend to another accident. Several minutes later the three climbers who had stayed with the injured person spotted the members of the rescue team some 15 metres above them.
The Government submitted that the team reached Ms Furdíková at 3.47 p.m.
According to the climbers involved, the rescue team reached the injured at approximately 4 p.m.
By that time Ms Furdíková had lost consciousness.
The Government submitted that Ms Furdíková had by that time already reached the stage of clinical death.
The members of the rescue team and the climbers fixed Ms Furdíková to a transport stretcher. She died at 4.10 p.m.
Her body was lowered to the foot of the mountain by ropes at 4.45 p.m.
A forensic doctor concluded, on 4 August 2005, that her death had been caused by the shock resulting from the injuries and by bleeding, and by a third degree embolism. The report indicated that Ms Furdíková had dislocated her right thigh bone, that the soft tissues of her right arm and thigh had been massively contused and that she had suffered from an intracranial haemorrhage.
The applicant requested the Health Care Supervisory Office (Úrad pre dohľad nad zdravotnou starostlivosťou) to examine whether appropriate medical assistance had been provided to his daughter.
On 30 September 2005 the Prešov branch office of that institution replied to the applicant that no shortcomings had been established in the providing of medical assistance to Ms Furdíková.
The letter stated that the helicopter team had been trained and equipped in accordance with the relevant law. The doctor, who had entered the climbing area of the mountain despite the fact that he had not been obliged to do so, found that Ms Furdíková had died before she was released from the rope and put on a transport stretcher. Resuscitation had not been possible in the situation. The question as to whether the life of the injured person could have been saved had there been an earlier intervention was purely hypothetical.
The letter further stated that nothing indicated that the actions of the Air Rescue Service and the Mountain Rescue Service had not been duly coordinated. According to the Mountain Rescue Service, it had been more efficient to have recourse to Air Rescue Service in the case of the applicant’s daughter. In a letter of 19 September 2005 the Minister of the Interior informed the Health Care Supervisory Office that he had discovered no shortcomings in the action of the Mountain Rescue Service which fell under the authority of his Ministry.
On 3 October 2005 the sister of Ms Furdíková challenged the conclusions of the Prešov branch office.
On 7 November 2005, in its protocol, an expert commission under the authority of the President of the Health Care Supervisory Office found an infringement of the relevant health care legislation by the Air Rescue Service.
The commission held that the operator of the Air Rescue Service had proceeded erroneously when sending a helicopter based in Poprad to intervene at the very extreme point of its operation area in Smrekovica while a different helicopter based in Sliač had been available for the same territory.
The commission qualified the operator’s misjudgment as a “human factor” failure. It had resulted in a delay of 53 minutes during which the helicopter based in Poprad had not been available for operations in the High Tatras.
On 14 November 2005 the Health Care Supervisory Office informed the Ministry of Health of the commission’s findings. The Ministry was requested to bring administrative proceedings against the Air Rescue Service and to impose a fine for the latter’s failure to comply with its duties.
The Ministry of Health discontinued the proceedings, on 28 June 2006, holding that the Air Rescue Service had not contravened any of the duties imposed by law.
Between 17 and 25 August 2005 the Supervision Office of the Ministry of the Interior examined the way in which the operators of the Mountain Rescue Service had organised the rescue of the applicant’s daughter.
The report indicates that the operators had correctly decided to organise the rescue in co-ordination with the Air Rescue Service. To that effect they had contacted the latter at 12.22 p.m., immediately after the incident had been reported.
In particular, access to the place of the incident had been difficult. The rescue team would have needed three and a half hours to reach it on foot. In addition, the operators had correctly presumed that the assistance of the Air Rescue Service was required with a view to ensuring the rapid transportation of the injured person to hospital. The members of the Mountain Rescue Service had been prepared to intervene in co-operation with the Air Rescue Service within ten minutes after the receipt of the information about the incident.
The Supervision Office found no shortcomings in the way in which the Mountain Rescue Service had acted.
On 30 July 2005 criminal proceedings were brought within the Poprad District Police Directorate in the context of the accident as a result of which the applicant’s daughter had died. The investigator questioned thirteen witnesses. He considered a forensic report and questioned a forensic expert. Records of communications and reports on the rescue action were submitted by the Air Rescue Service and the Mountain Rescue Service. The investigator also considered other documentary evidence including reports of the Slovak Hydrometeorological Institute and the Slovak Aviation Office.
On the basis of the evidence obtained the police investigator concluded, on 30 January 2006, that the death of the applicant’s daughter was the result of the injuries which she had suffered during the climb. Criminal liability of a third person in that context was not established. The criminal proceedings were therefore discontinued.
The applicant filed a complaint. He argued, inter alia, that the investigator had disregarded the above protocol of the expert commission of the Health Care Supervisory Office.
On 20 February 2006 a prosecutor of the District Prosecutor’s Office in Poprad, after having obtained additional documentary evidence, dismissed the applicant’s complaint. The decision stated that the rescue helicopter had been intervening at a different place within its operation area at the time when the emergency call about the incident of the applicant’s daughter had reached the operations centre. It had started attending to the incident in the High Tatras immediately after it had ended the previous rescue action. The expert commission’s conclusion that a different helicopter could have been used for the intervention in Smrekovica did not provide a sufficient basis for prosecuting any person for injury to health. The prosecutor found no shortcomings in the way in which the rescue action had been carried out. Reference was made to a report indicating that the doctor had attended to the victim directly in the exposed climbing area despite the fact that he had not been obliged to do so and that the scope of the climber’s injuries were such that only immediate intervention at a specialised health care centre could have saved her life.
On 15 June 2006 a prosecutor of the Regional Prosecutor’s Office in Prešov upheld the above conclusion that no criminal offence had been committed. The letter admitted, however, that the rescue of the applicant’s daughter had not been organised in an optimal manner. In particular, the decision to send the helicopter based in Poprad to a remote place, albeit within its operation area, had not been correct. It was also questionable whether the helicopter should not have deposited the rescue climbers on the summit of the mountain immediately instead of attempting to rescue the injured person directly from the air. With reference to the statement of a forensic expert the prosecutor held that those considerations could not affect the position in the case. In particular, the saving of the life of the injured person would only have been possible in the case of immediate medical intervention which had not been possible for objective reasons.
On 13 November 2006 the General Prosecutor’s Office, with reference to the above conclusions, dismissed the applicant’s claim that appropriate medical assistance had not been provided to his daughter in a timely manner. The letter stated that there was no justification for the criminal proceedings to be resumed.
At the request of the sister of Ms Furdíková, the Security Commission of the Czech Mountaineering Association carried out an analysis of the accident and of the subsequent events.
The report dated 7 October 2005 states, inter alia, that the decision of the three climbers present not to attempt to lower Ms Furdíková to the foot of the mountain by ropes had been correct given that they had been informed that a professional rescue team would arrive shortly. However, that information had turned out to be false. The speediness of the rescue in such cases was of primordial importance. Timely medical intervention could probably have saved the life of the injured climber. There were obvious mistakes as regards the professional rescue system. The most important one seemed to be the late arrival of the helicopter for which no satisfactory explanation existed at the time when the report was drafted.
The report further contains recommendations on action to be taken by mountaineers in cases of similar accidents.
In July 1998 the Council of the European Society for Emergency Medicine adopted a Manifesto for Emergency Medicine in Europe. It provides, inter alia, that emergency medical care of a high standard should be available to every person in need in all situations and at all times. This requires a dedicated system which provides appropriate care for all acutely ill or injured persons.
In a speech given at the Congress of Emergency and Disaster Medicine held in Germany in 1998, Professor Dr. B. Domres, President of the German Association of Disaster Medicine, stated, inter alia, that one of the essential elements of the rescue chain was the statutory definition of delays in first-aid intervention while taking into account the territorial and geographical situation of the country concerned. While it was not realistic to require that an emergency team should reach a person whose life was in danger within 10-15 minutes in all European states, that period should be set as a standard in densely populated and highly developed countries.
The applicant submits that, as from the moment when an accident is reported, a physician attached to an emergency service is required to start life-saving intervention within 10 to 12 minutes in various Länder in Germany, within 15 minutes in the Czech Republic and within 8 minutes in the United Kingdom.
Pursuant to Article 15 § 1, everyone has the right to life.
Article 40 guarantees to everyone the right to protection of health.
Article 127 enacted with effect from 1 January 2002 provides:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...
In accordance with its established practice, the Constitutional Court lacks jurisdiction to examine a complaint lodged by natural or legal persons when the determination of the point in issue involves the preliminary question of conflict of legal rules (see, for example, I. ÚS 96/93, decision of 16 November 1993; II. ÚS 806/00, decision of 16 November 2000; II. ÚS 19/2001, decision of 22 March 2001; or IV. ÚS 11/04, decision of 22 January 2004).
Act 576/2004 governs health care and health services.
Pursuant to section 4(3), health care is provided correctly where, without delay, medical intervention occurs which is necessary for the correct identification of a disease and for ensuring timely and efficient treatment with a view to healing or improving the state of a person with due regard to the current state of medical science.
Act 578/2004 Coll. governs, inter alia, persons providing health services.
Under section 11(1), the Ministry of Health gives permission for the operation of an aerial ambulance as an emergency health service.
Section 79(1)(b) obliges persons providing health services to give to any person indispensable medical assistance without any unjustified delay.
Act 579/2004 Coll. governs the emergency health service, that is urgent assistance to persons whose life or health is at immediate threat (section 1).
The emergency health service comprises operation centres and providers of emergency health services. The latter run emergency ambulances on the basis of an authorisation issued by the Ministry of Health and form part of the integrated rescue system of Slovakia (section 2).
Operation centres are established by the Ministry of Health, and they direct and co-ordinate the emergency service in a manner which makes it possible to maintain its fluid and permanent character. They are entitled to order the provider of a health service to intervene (section 3).
Persons providing health services in an emergency are obliged, inter alia, to establish a response centre in the district concerned so that an ambulance can leave within one minute from the receipt of an order by the operations centre or co-ordination centre involved. The time-limit within which an aerial ambulance is to leave for an emergency intervention is to be laid down in a special regulation (section 5). According to the information available, no regulation governing the aforementioned point has been issued.
A person authorised to provide medical assistance in the case of an emergency can be fined by the Ministry of Health in the case of failure to meet one of the obligations under the Act (section 6).
At the relevant time the details concerning the emergency medical service were set out in the Regulation of the Ministry of Health no. 741/2007, as amended.
The Regulation specified the requirements as regards the equipment and staffing of operation centres, emergency medical stations and ambulances of the emergency medical service including the aerial ones.
Annex 3 to the Regulation provided that six stations of aerial emergency medical service were to be established, namely in Bratislava, Banská Bystrica, Nitra, Žilina, Poprad and Košice.
Act 544/2002 governs the Mountain Rescue Service. It is established under the authority of the Ministry of the Interior from the budget of which it is financed (section 2).
Pursuant to section 4(1)(a), the Mountain Rescue Service organises and carries out the rescue of persons, in particular in co-ordination with the Air Rescue Service. It forms a part of and carries out duties within the integrated rescue system in Slovakia (section 4(2)(a)).
Under section 17 of Act 581/2004 an Office is established which, among other things, is charged with the supervision, in the context of public administration, of the provision of health care (“the Health Care Supervisory Office”). It carries out its duties impartially and independently of public authorities or other persons (section 18(2)).
Under section 18(1)(b), the Health Care Supervisory Office controls whether health care is provided correctly as required by section 4(3) of Act 576/2004.
Where the Office has established shortcomings in the provision of health care, it can initiate the imposition of sanctions on the provider by the respective public authority.
Under Article 11, natural persons have the right to protection of their personal rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics.
Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personal rights be ended and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction.
Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been significantly diminished, the injured party is also entitled to financial compensation for non-pecuniary damage.
Pursuant to Article 15, after the death of the injured party the right to the protection of his or her personal integrity passes to his or her spouse and children or, in the case of there being none, to his or her parents.
In an action in the Nitra District Court (file no. 10C 142/2002) a mother claimed, among other things, financial compensation for non-pecuniary damage in connection with the death of her daughter. She relied on the previous conviction for manslaughter of a car driver who had run over her daughter.
In a judgment of 15 May 2006 the District Court accepted that the plaintiff had suffered damage of a non-pecuniary nature and awarded her 200,000 Slovakian korunas (SKK) by way of compensation.
In an action in the Žiar nad Hronom District Court (file no. 7 C 818/96) a mother claimed, among other things, financial compensation for non-pecuniary damage caused to her and her son in connection with the latter’s violent death. She relied on the defendant’s previous conviction for the extremely violent and racist murder of her son.
The District Court concluded that the plaintiff and her son had suffered non-pecuniary damage and in a judgment of 9 September 2004 it awarded the plaintiff SKK 100,000 in respect of the non-pecuniary damage which she had suffered and SKK 200,000 in respect of the non-pecuniary damage caused to her son. On 19 January 2005 the Regional Court in Banská Bystrica upheld the first-instance judgment.
In the Prešov District Court proceedings file no. 6C 67/2004 the plaintiff claimed compensation for non-pecuniary damage sustained as a result of the fact that her mother had died during childbirth due to the incorrect actions of the physician on duty.
On 17 May 2006 the District Court partially granted the claim. It relied on expert opinions concluding that the plaintiff’s mother had not received appropriate health care as required by the law. It ordered the defendant medical institution to pay SKK 400,000 to the plaintiff in compensation for non-pecuniary damage. The judgment became final on 6 November 2006.
Act 514/2003 Coll. governs liability for damage caused in the context of the exercise of public authority.
Section 2 provides that the Act extends to decision-making and official actions of public authorities related to the rights and interests protected by law and the obligations of natural or legal persons. Public authorities for the purpose of the Act comprise State organs, local self-administration bodies, public-law institutions and also natural or legal persons whom the law has entrusted with the exercise of public authority.
Under section 3(1), State liability under the Act comprises, inter alia, incorrect official action.
Section 9(1) qualifies as an incorrect official action, inter alia, a public authority’s failure to take an action within the time-limit set, inactivity of a public authority or any other unlawful interference with rights and interests of natural or legal persons protected by law.
Pursuant to paragraph 2 of section 9, any person who has suffered damage as a result of incorrect official action is entitled to compensation.
Section 17 provides for (i) compensation for pecuniary damage including loss of profit and, (ii) where the finding of a violation of a right does not constitute sufficient satisfaction, also compensation for damage of a nonpecuniary nature.


ITEMID: 001-100657
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF VLADIMIR POLISHCHUK AND SVETLANA POLISHCHUK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Violation of Art. 13+8;Remainder inadmissible
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicants are spouses. They were born in 1966 and live in Tokmak.
5. According to the applicants, in the period between January 2000 and August 2001 the first applicant lived and worked outside Tokmak.
6. On 21 January 2001 an unknown person broke six windows in a building near the applicants' flat.
7. On 30 January 2001 the Tokmak Town Police Office (“the Police Office”) instituted a criminal investigation into that event.
8. On 20 March 2001 the Police Office, suspecting that the first applicant might have been involved in that event, ordered a search of his residence. The decision to carry out the search was based on the reason that evidence related to the event could be found in the first applicant's home. On the same day the search order was approved by the local prosecutor.
9. On 21 March 2001, when the applicants' son was celebrating his birthday with a number of his friends, the police officers entered the applicants' flat to carry out the search. The second applicant, who was in the early stage of pregnancy, objected to the search, stating that the search order contained no reasonable explanation for her or her husband's possible involvement in the crime or for the need to search the flat. In response, the police officers allegedly threatened her and began the search operation in the presence of the guests. The first applicant was absent.
10. In the course of the search nothing was identified or seized for the purpose of the investigation.
11. On unspecified date the applicants complained to the Zaporizhzhya Region Prosecutor's Office (“the Regional Prosecutor's Office”) alleging that the search had been unlawful.
12. On 12 October 2001 the Regional Prosecutor's Office informed the applicants that following an inquiry it had been established that the search had been carried out without a valid reason, in breach of Article 177 of the Code of Criminal Procedure.
13. On 13 November 2001 the Regional Prosecutor's Office informed the applicants that the police officers who had carried out the search had been disciplined.
14. On 19 August 2002 the applicants instituted proceedings in the Tokmak District Court against the Police Office, the Regional Prosecutor's Office, and the Zaporizhzhya Region State Treasury Department, seeking to have the search operation declared groundless and unlawful. The second applicant additionally claimed compensation for non-pecuniary damage caused by the unlawful act. She relied on Articles 440-1 and 443 of the Civil Code and on the Act “On the procedure for compensation for damage caused to citizens by unlawful acts of bodies of inquiry, pre-trial investigation authorities, prosecutor's offices and courts” (“the Compensation Act”).
15. On 22 May 2003 the Tokmak District Court considered the applicants' claims. As to the first applicant, the court found that the search had been carried out two months after the crime and there had not been sufficient grounds to believe that evidence could be found in the applicants' home. The court therefore allowed his claim and declared that the search had been groundless and unlawful. As to the second applicant, the court examined the invoked provisions of the Civil Code and the Compensation Act and concluded that damage caused by the procedural acts of bodies of inquiry, investigative authorities, prosecutor's offices and courts could be compensated only in cases provided for by the Compensation Act. It further stated that the search had been carried out in connection with the suspicion against the first applicant only; the second applicant was not entitled to claim damages for procedural acts which had been carried out in respect of another person. For those reasons it rejected the second applicant's claim.
16. On 26 August 2003 the applicants appealed against the judgment of 22 May 2003, stating, inter alia, that the first applicant had not suffered any damage on account of the unlawful search, and that it had been the second applicant who had incurred damage, as she had been present in the flat at the time.
17. On 16 December 2003 the Zaporizhzhya Region Court of Appeal endorsed the rejection of the claim of the second applicant, reconfirming that it was only the Compensation Act that had to be applied and that under that provision the second applicant could not claim any damages, since the search had been carried out only in connection with the first applicant, who had been a suspect in the criminal proceedings. The court further quashed the judgment of 22 May 2003 as regards the claim of the first applicant and dismissed it, stating that such a claim had to be considered in the course of relevant criminal proceedings.
18. On 8 January 2004 the applicants appealed in cassation against the decision of 16 December 2003, reiterating in particular that it had been the second applicant, but not the first, who had suffered damage on account of the unlawful acts. They asked the Supreme Court to adopt a new judgment satisfying the claim of the second applicant.
19. On 31 January 2006 the Supreme Court rejected the applicants' cassation appeal as unsubstantiated.
20. The relevant extracts of the Code provide as follows:
“Acts and decisions of a body of inquiry can be challenged before the prosecutor, while their decisions on termination of criminal proceedings can also be challenged before the courts ...”
“A search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important for the case are kept on certain premises. ...”
“Investigators' acts can be challenged before a prosecutor ...”
21. In accordance with Article 355 of the Code, an application for review of the civil case may be submitted on the ground that an international judicial authority, whose jurisdiction was recognised by Ukraine, found that Ukraine violated its international obligations in the course of consideration of the civil case by the courts.
22. The relevant extracts of the Code provide as follows:
“Non-pecuniary damage caused to a citizen or an organisation ... shall be compensated by the person who has caused that damage unless the latter proves not to have been guilty. ...”
“Damage caused to a citizen by unlawful conviction, unlawful bringing to criminal responsibility, unlawful pre-trial detention in the course of criminal proceedings, unlawful imposition of such administrative penalties as arrest or correctional labour shall be compensated for by the State in full regardless of the guilt of the officials of the bodies of inquiry, pre-trial investigation authorities, prosecutor's offices and courts, in accordance with the procedure established by the law.”
23. The relevant provisions of the Act can be found in the judgment of Volokhy v. Ukraine (no. 23543/02, § 28, 2 November 2006).
24. In accordance with paragraph 7 of this Resolution, moral (nonpecuniary) damage shall be compensated to the physical person or legal entity whose rights have been directly affected by the unlawful acts (inactivity) of the other persons.
VIOLATED_ARTICLES: 13
8


ITEMID: 001-59218
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF KURZAC v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Georg Ress
TEXT: 9. H.K., the applicant’s brother, had been a member of the Polish resistance troops of the underground National Armed Forces (Narodowe Siły Zbrojne), commonly referred to as the “NSZ”. The NSZ had been founded in September 1942 and, originally, formed partisan forces fighting the Germans during the Second World War. At the end of 1943 the NSZ’s command, considering that the defeat of the Germans was inevitable, decided that the main enemy was the communist Soviet Union and ordered that, from that time on, the NSZ should direct its attacks against the Red Army and the Polish communist partisan forces. After the liberation of Poland, some of the NSZ members took refuge in the West, while others, after being ordered not to attack the Red Army directly, established an underground resistance movement against the communist government. On 10 February 1948 H.K. was convicted by the Warsaw District Military Court (Wojskowy Sąd Rejonowy) in connection with, inter alia, his membership of the NSZ, which was considered an “illegal organisation established with the aim of subverting the political and legal system of the State”. He was sentenced to seven years’ imprisonment and then served his sentence. He was released on an unspecified date. On 7 August 1956 he was shot dead by a militia officer.
10. On 3 September 1993 the applicant lodged an application under section 3(1) of the Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland (Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu Państwa Polskiego) (“the 1991 Act”) with the Warsaw Regional Court (Sąd Wojewódzki), seeking to have his late brother’s conviction of 10 February 1948 declared null and void. Shortly afterwards, the court decided that the applicant’s request would be examined together with a similar application, which had been lodged by the widow of a co-defendant of his brother on 24 June 1993.
11. On 27 December 1993 the applicant’s lawyer asked the court to set a date for a hearing as soon as possible, submitting that his client was an elderly person suffering from various ailments and that the court should therefore give priority to his case.
12. On 9 November 1994 the applicant’s lawyer again asked the Warsaw Regional Court to fix a date for a hearing, maintaining that his previous application for the proceedings to be accelerated had been to no avail and that the period of total inactivity on the part of that court had, in the meantime, exceeded one year.
13. On 21 November 1994 the Deputy Chief Judge of the Criminal Division of the Warsaw Regional Court informed the applicant that 10,000 similar applications had been lodged with that court during the previous three years. This had created inevitable organisational problems because the judges of the Criminal Division were doubly overburdened: by the number of criminal cases which they had to deal with as their normal work and by the extra work arising from the significant number of cases concerning applications for wrongful convictions to be declared null and void. Moreover, as far as possible, the court was giving priority to applications lodged by living victims of repression and, therefore, it had to postpone the examination of those lodged on behalf of deceased victims. However, and in any event, there was no possibility of clearing the existing backlog within the next few years.
14. On 7 April 1998 the Warsaw Regional Court listed a hearing in the applicant’s case for 25 May 1998. On that date the court annulled the conviction of 10 February 1948 insofar as it concerned the charges relating to activities regarded as having been aimed at achieving independence for Poland. Since no party to the proceedings appealed within the statutory time-limit of seven days, the first-instance decision became final on 2 June 1998.
15. The Law of 23 February 1991 on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for Poland sets out rules concerning the conditions under which certain politically-motivated convictions rendered from 1 January 1944 to 31 December 1956 can be declared null and void, and provides for the State’s civil liability for such convictions.
16. At the material time the relevant part of section 1(1) of the 1991 Act provided:
“Convictions or other decisions rendered by the Polish judicial, prosecuting or extra-judicial authorities during the period ... from 1 January 1944 to 31 December 1956 shall be declared null and void if the offence with or of which the person concerned was charged or convicted related to activities undertaken by him with the aim of achieving independence for Poland, or if the decision in question was taken on the ground that he had undertaken such activity. The same applies to persons convicted of resisting the collectivisation of farm land and compulsory contributions of foodstuffs.”
17. The relevant part of section 3, as applicable at the material time, read:
“1. A conviction or decision [referred to in Section 1(1)] shall be declared null and void on an application lodged by [one of the following persons]: the Ombudsman, the Minister of Justice, a prosecutor, a victim of repression or any person authorised by law to lodge an appeal on his behalf; where a victim of repression has since died, or he has left the territory of Poland, or is mentally ill, such an application may be lodged by any of his close relatives: ... siblings or spouse, or by an association of persons persecuted for activities undertaken by them with the aim of achieving independence for Poland.
2. The court shall determine the case at a hearing on the basis of the case-file of the organ which made the original decision. It may, where necessary, obtain additional evidence.
3. A party entitled to file an application under paragraph 1 shall be entitled to appeal against a decision on whether or not the original decision should be declared null and void.
4. Unless otherwise provided, the provisions of the Code of Criminal Procedure shall apply by analogy to the proceedings [relating to applications under paragraph 1]; however, a prosecutor must participate in the hearing. A victim of repression [and other persons entitled under paragraph 1 to lodge an application] or, with the court’s leave, other persons may participate in the hearing. The hearing shall be recorded in minutes.”
18. On 21 May 1993 the 1991 Act was amended to the effect that its provisions from that date on became applicable to persons who had been persecuted or convicted for political reasons by the Stalinist Soviet authorities by virtue of an agreement concluded on 26 July 1944 between the Polish Committee of National Liberation (Polski Komitet Wyzwolenia Narodowego) and the government of the USSR. Under that amendment, only the Warsaw Regional Court was competent to deal with applications lodged by this group of repressed or wrongly convicted persons. Later, on 3 February 1995, the 1991 Act was again amended; this time to the effect that all regional courts could deal with applications lodged by such persons. The second amendment took effect on 1 April 1995.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101945
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HAJDUOVA v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1960 and lives in Košice.
6. On 21 August 2001 the applicant's (now former) husband, A., attacked her both verbally and physically while they were in a public place. The applicant suffered a minor injury and feared for her life and safety. This led her and her children to move out of the family home and into the premises of a non-governmental organisation in Košice.
7. On 27 and 28 August 2001 A. repeatedly threatened the applicant, inter alia, to kill her and several other persons. Criminal proceedings were brought against him and he was remanded in custody.
8. On 29 November 2001 a public prosecutor indicted A. before the Košice I District Court (“the District Court”). The indictment stated that the accused had been convicted four times in the past. Two of the offences had been committed in the last ten years and involved breaches of court or administrative orders.
9. In the course of the criminal proceedings, experts established that the accused suffered from a serious personality disorder. His treatment as an inpatient in a psychiatric hospital was recommended.
10. On 7 January 2002 the District Court convicted A. The court decided not to impose a prison sentence on him and held that he should undergo psychiatric treatment. At the same time, the court released him from detention on remand. A. was then transported to a hospital in Košice. That hospital did not carry out the treatment which A. required, nor did the District Court order it to carry out such treatment. A. was released from the hospital on 14 January 2002.
11. After his release from hospital on 14 January 2002, A. verbally threatened the applicant and her lawyer. On 14 and 16 January 2002, respectively, the applicant's lawyer and the applicant herself filed criminal complaints against him. They also informed the District Court (which had convicted him on 7 January 2002) about his behaviour and of the new criminal complaints they had filed.
12. On 21 January 2002 A. visited the applicant's lawyer again and threatened both her and her employee. On the same day he was arrested by the police and accused of a criminal offence.
13. On 22 February 2002 the District Court arranged for psychiatric treatment of A. in accordance with its decision of 7 January 2002 (see paragraph 10 above). He was consequently transported to a hospital in Plešivec.
14. On 7 March 2002 the applicant filed a complaint with the Constitutional Court. She alleged a violation of Articles 5 and 6 of the Convention and of Articles 16 (§ 1) and 19 (§ 2) of the Slovak Constitution, in that the District Court had failed to ensure that her husband be placed in a hospital for the purpose of psychiatric treatment immediately after his conviction on 7 January 2002.
15. The Constitutional Court rejected the applicant's complaint on 2 October 2002. In its decision it found that there had been no interference with the applicant's rights under Article 5 § 1 of the Convention, as interpreted by the Convention organs. As to the alleged violation of the applicant's rights under Articles 16 (§ 1) and 19 (§ 2) of the Constitution, the applicant should have pursued an action for the protection of her personal integrity before the ordinary courts. Reference was made to the Constitutional Court's decisions on cases nos. I. ÚS 2/00 and II. ÚS 23/00.
16. Article 16 § 1 of the Slovak Constitution guarantees to everyone the inviolability of his or her home and privacy.
17. Article 19 § 2 guarantees to everyone the right to protection from unjustified interference with his or her private and family life.
18. In a decision of 5 January 2000 in case no. I. ÚS 2/00 the Constitutional Court declared inadmissible a petition in which the plaintiff alleged a violation of Article 19 of the Constitution in that the public authorities had systematically requested that he should submit his higher education diploma to them. The decision stated that the plaintiff should have sought the protection of his rights under Article 19 of the Constitution by means of an action for protection of his personal integrity pursuant to Articles 11 et seq. of the Civil Code.
19. In a decision of 23 March 2000 in case no. II. ÚS 23/00 the Constitutional Court rejected, for lack of jurisdiction, a petition in which the plaintiff had complained about a violation of his rights under Article 19 of the Constitution on the ground that the Minister of Justice had asked him to submit, as president of a District Court, information about his financial situation. The Constitutional Court held that the issue fell within the jurisdiction of the ordinary courts which had power to deal with it under Articles 11 et seq. of the Civil Code.
20. Under Article 351 § 1 of the Code of Criminal Procedure (Law no. 141/1961 Coll., as applicable at the relevant time) the president of the relevant chamber shall order the medical institution concerned to carry out the treatment of a person in accordance with the court's decision. Where the person concerned represents a danger to his or her environment, the president of the chamber shall arrange for his or her immediate transfer to the medical institution (paragraph 2 of Article 351).
21. In accordance with the practice of the Supreme Court (R 46/1977) the medical treatment of a person ordered by a court should, in principle, be arranged for immediately after the relevant decision has become executable.
22. The Civil Code reads as follows:
“Every natural person shall have the right to protection of his or her personal integrity, in particular his or her life and health, civil and human dignity, privacy, reputation and expressions of a personal nature.”
“1. Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.
2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party's dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for nonpecuniary damage.
3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.”
23. Act no. 514/2003 on Liability for Damage Caused in the Context of Exercise of Public Authority (Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci a zmene niektorých zákonov) was adopted on 28 October 2003. It became operative on 1 July 2004 and replaced, as from that date, the State Liability Act of 1969.
24. The explanatory report to Act No. 514/2003 provides that the purpose of the Act is to render the mechanism of compensation for damage caused by public authorities more effective and thus to reduce the number of cases in which persons are obliged to seek redress before the European Court of Human Rights.
25. Section 17 of the Act provides for compensation for pecuniary damage including lost profit and, where appropriate, also for compensation for damage of a non-pecuniary nature.
26. For a more detailed analysis of the relevant domestic law, see also the Court's admissibility decision in the case of Kontrová v. Slovakia (dec.), no. 7510/04, 13 June 2006.
27. For a summary of relevant international material see the Court's judgment in Opuz v. Turkey, no. 33401/02, §§ 72-86 , ECHR 2009..., in particular the Committee of Ministers of the Council of Europe's Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence.
VIOLATED_ARTICLES: 8


ITEMID: 001-114244
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF HODE AND ABDI v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for home;Article 8 - Right to respect for private and family life)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 4. The first applicant was born on 13 February 1980 and currently lives in Leeds. The second applicant was born on 15 January 1990 and currently lives in Djibouti.
5. The first applicant arrived in the United Kingdom on 18 February 2004. He claimed asylum and that claim was accepted in March 2006. Prior to 30 August 2005, successful asylum seekers were granted Indefinite Leave to Remain in the United Kingdom along with refugee status. However, after 30 August 2005 the Immigration Rules were amended and refugees were granted an initial period of 5 years’ Leave to Remain, following which they could apply for Indefinite Leave to Remain. Consequently, the first applicant was granted five years’ leave to remain in the United Kingdom, to expire on 16 March 2011. At the same time, he was provided with a Refugee Convention Travel Document (“CTD”), also to expire on 16 March 2011.
6. In June 2006 the first applicant was introduced to the second applicant through a friend. In February 2007 he travelled to Djibouti to meet her and they married on 5 April 2007. They lived together in Djibouti until the first applicant returned to the United Kingdom on 15 May 2007.
7. The second applicant applied for a visa to join the first applicant in the United Kingdom. Although the first applicant was a refugee, the applicants did not qualify for “family reunion” under the Immigration Rules HC 395 (as amended) (“the Immigration Rules”) because paragraph 352A of the Immigration Rules only applied to spouses who formed part of the refugee’s family unit before he or she left the country of permanent residence. The second applicant therefore applied for leave to enter the United Kingdom under paragraph 281 of the Immigration Rules, as the spouse of a person present and settled in the United Kingdom.
8. On 18 November 2007 the Entry Clearance Officer refused the application on the ground that the first applicant, having only been granted five years’ Leave to Remain, was not a person present and settled in the United Kingdom for the purposes of paragraph 281.
9. On 17 February 2008 the second applicant gave birth to a son. The first applicant was named as the father on the birth certificate.
10. The second applicant appealed against the decision to refuse her application for leave to enter. The Immigration Judge accepted that the applicants were married and that the first applicant had sufficient funds to accommodate and maintain his wife and child. He also accepted that the refusal of entry clearance engaged the rights of both applicants under Article 8 of the Convention. He dismissed the appeal, however, holding that the refusal of entry clearance would not interfere disproportionately with the second applicant’s rights under Article 8 of the Convention. In particular, he noted that she had never enjoyed her family life in the United Kingdom and there were no obstacles to prevent the first applicant from living in Djibouti other than that he could not speak French and would be unlikely to secure employment there.
11. The second applicant applied for reconsideration of the decision. In a decision dated 28 August 2008, the Asylum and Immigration Tribunal refused to order reconsideration. On 24 October 2008 the Administrative Court also dismissed the application for reconsideration.
12. The first applicant’s leave to remain in the United Kingdom expired on 16 March 2011. He was subsequently granted Indefinite Leave to Remain.
13. In April 2011 the Immigration Rules were amended to permit refugees to be joined in the United Kingdom by post-flight spouses during their initial period of leave to remain, provided certain other conditions were met.
14. The second applicant has not re-applied for leave to enter the United Kingdom as the spouse of the first applicant.
15. The second applicant gave birth to the applicants’ second child on 17 July 2011.
16. At the relevant time paragraph 352A of the Immigration Rules contained the requirements for family reunion for refugees. It provided that:
“The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a refugee are that:
(i) the applicant is married to or the civil partner of a person granted asylum in the United Kingdom ; and
(ii) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum; and
(iii) the applicant would not be excluded from protection by virtue of article 1F of the United Nations Convention and Protocol relating to the Status of Refugees if he were to seek asylum in his own right; and
(iv) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage is subsisting; and
(v) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”
17. Consequently, at the relevant time a refugee could only be joined in the United Kingdom by a spouse pursuant to paragraph 352A if the marriage took place before leaving the country of formal habitual residence.
18. In April 2011 the Government introduced paragraph 319L of the Immigration Rules, which made family reunion available to post-flight family members of refugees. It provided that:
“319L. The requirements to be met by a person seeking leave to enter the United Kingdom as the spouse or civil partner of a person with limited leave to enter or remain in the United Kingdom as a refugee or beneficiary of humanitarian protection, are that:
(i) (a) the applicant is married to or the civil partner of a person who has limited leave to enter or remain in the United Kingdom as a refugee or beneficiary of humanitarian protection granted such status under the immigration rules and the parties are married or have formed a civil partnership after the person granted asylum or humanitarian protection left the country of his former habitual residence in order to seek asylum or humanitarian protection; and
(b) the applicant provides an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant’s name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference) unless:
(i) the applicant is aged 65 or over at the date he makes his application; or
(ii) the Secretary of State or Entry Clearance Officer considers that the applicant has a physical or mental condition that would prevent him from meeting the requirement; or
(iii) the Secretary of State or entry Clearance officer considers there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement; or
(iv) the applicant is a national of one of the following countries: Antigua and Barbuda; Australia; the Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; USA; or
(v) the applicant has obtained an academic qualification (not a professional or vocational qualification), which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Masters degree or PhD in the UK, from an educational establishment in one of the following countries: Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Ireland; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and The Grenadines; Trinidad and Tobago; the UK; the USA; and provides the specified documents; or
(vi) the applicant has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Masters degree or PhD in the UK, and
(1) provides the specified evidence to show he has the qualification, and
(2) UK NARIC has confirmed that the degree was taught or researched in English, or
(vii) has obtained an academic qualification (not a professional or vocational qualification) which is deemed by UK NARIC to meet the recognised standard of a Bachelor’s or Masters degree or PhD in the UK, and provides the specified evidence to show:
(1) he has the qualification, and
(2) that the qualification was taught or researched in English; and
(ii) the parties to the marriage or civil partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”
19. Paragraph 281 of the Immigration Rules is a general provision enabling persons present and settled in the United Kingdom to be joined by a spouse or civil partner if certain conditions are met. It provided that:
“The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the spouse or civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement are that:
(i) (a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application; and
(ii) the parties to the marriage or civil partnership have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”
20. Prior to 30 August 2005, successful asylum seekers were given Indefinite Leave to Remain alongside refugee status. As they were “persons present and settled in the United Kingdom”, post-flight spouses could join them provided the other requirements set down in paragraph 281 of the Immigration Rules were met. After 30 August 2005 the rules were changed and refugees were instead granted an initial period of five years’ leave to remain, although they could subsequently be granted Indefinite Leave to Remain. As a consequence of the change of the rules, for the first five years refugees were not “persons present and settled in the United Kingdom” and could not be joined by a post-flight spouse during this period even if all the other requirements of paragraph 281 were met.
21. Under the Immigration Rules the spouses of other categories of person granted limited leave to enter the United Kingdom could accompany or join their spouse without any requirement that the marriage took place in the country of former habitual residence. Paragraph 76 of the Immigration Rules contained the requirements for entry to the United Kingdom as the spouse of a student or prospective student. It provided that:
“The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the spouse or civil partner of a student or a prospective student are that:
(i) the applicant is married to or the civil partner of a person admitted to or allowed to remain in the United Kingdom under paragraphs 57-75 or 82-87F; and
(ii) each of the parties intends to live with the other as his or her spouse or civil partner during the applicant’s stay and the marriage or the civil partnership is subsisting; and
(iii) there will be adequate accommodation for the parties and any dependants without recourse to public funds; and
(iv) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(v) the applicant does not intend to take employment except as permitted under paragraph 77 below; and
(vi) the applicant intends to leave the United Kingdom at the end of any period of leave granted to him.”
22. Similarly, paragraph 194 of the Immigration Rules contained the requirements for entry to the United Kingdom of a person with leave to remain for the purpose of obtaining employment. It provided that:
“The requirements to be met by a person seeking leave to enter the United Kingdom as the spouse or civil partner of a person with limited leave to enter or remain in the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K) are that:
(i) the applicant is married to or a civil partner of a person with limited leave to enter the United Kingdom under paragraphs 128-193 (but not paragraphs 135I-135K); and
(ii) each of the parties intends to live with the other as his or her spouse or civil partner during the applicant’s stay and the marriage or civil partnership is subsisting; and
(iii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(iv) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(v) the applicant does not intend to stay in the United Kingdom beyond any period of leave granted to his spouse; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”
23. In 2009 the case of A (Afghanistan) v. the Secretary of State for the Home Department [2009] EWCA Civ 825 came before the Court of Appeal. The appellant, an Afghani national resident in Pakistan, was refused leave to join her husband, a refugee, in the United Kingdom because the marriage had taken place after he left his country of permanent residence. At the time of the application the appellant was heavily pregnant and there was evidence to suggest that her husband could not live in Pakistan. An Immigration Judge dismissed her appeal, which then went before the Asylum and Immigration Tribunal for reconsideration. The Tribunal was unable to identify any public interest being served by the omission from the Immigration Rules of any provision for a refugee to bring a post-flight spouse to the country. However, it held that Article 8 could not be used to plug lacunae in the Immigration Rules and, on the facts of the case, it was not engaged.
24. On appeal, the Court of Appeal had no doubt that the interference with family life which would result from not allowing a husband and his heavily pregnant wife in a genuine and subsisting marriage to cohabit had consequences of such gravity as potentially to engage the operation of Article 8. It therefore fell to the Court of Appeal to consider whether or not there was a public interest in refusing to grant the appellant leave to enter. As the Government had submitted its skeleton argument on the public interest point at a late stage, the court held that it was estopped from reopening the issue. Although it went on to allow the appellant’s appeal against the refusal of entry clearance, it clearly stated that its decision could be of no authority if and when the issue arose again.
25. The following year the Upper Tribunal (Immigration and Asylum Chamber) had to consider the same question in FH (Post-flight spouses) Iran [2010] UKUT 275. The appellant was an Iranian national resident in Iran who was refused leave to join her husband, also an Iranian national, who had been granted refugee status in the United Kingdom. It was not suggested that there was any other country where the appellant and sponsor could live together as husband and wife. An Immigration Judge refused her appeal. The Upper Tribunal allowed her appeal. It noted that with regard to the admission of post-flight spouses, refugees in the United Kingdom were in a particularly disadvantageous position compared to students, persons working in the United Kingdom, businessmen, artists and ministers of religion and so on. In particular, the Tribunal stated that:
“...the appellant’s situation is by no means an unusual one, and it arises from provisions of the Rules for which there appears to be no justification. Unless there is some justification, of which we have not been made aware, of the Rules’ treatment of post-flight spouses, we think that the Secretary of State ought to give urgent attention to amending the Rules, by extending either paragraph 281 or, (perhaps preferably) paragraph 194, so as to extend to the spouses of those with limited leave to remain as refugees. In the meantime, it seems to us that although a decision based on Article 8 does have to be an individual one in each case, it is most unlikely that the Secretary of State or an Entry Clearance Officer will be able to establish that it is proportionate to exclude from the United Kingdom the post-flight spouse of a refugee where the applicant meets all the requirements of paragraph 281 save that relating to settlement.”
26. Paragraph 20 of the Immigration Rules provided that:
“The leave of a person whose stay in the United Kingdom is subject to a time limit lapses on his going to a country or territory outside the common travel area if the leave was given for a period of six months or less or conferred by a visit visa. In other cases, leave lapses on the holder remaining outside the United Kingdom for a continuous period of more than two years. A person whose leave has lapsed and who returns after a temporary absence abroad within the period of this earlier leave has no claim to admission as a returning resident. His application to re-enter the United Kingdom should be considered in the light of all the relevant circumstances. The same time limit and any conditions attached will normally be reimposed if he meets the requirements of these Rules, unless he is seeking admission in a different capacity from the one in which he was last given leave to enter or remain.”
27. Paragraphs 11 and 13 (1) of the Schedule to the Refugee Convention provided that:
“When a refugee has lawfully taken up residence in the territory of another Contracting State, the responsibility for the issue of a new document, under the terms and conditions of article 28, shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply.
...
Each Contracting State undertakes that the holder of a travel document issued by it in accordance with article 28 of this Convention shall be readmitted to its territory at any time during the period of its validity.”
VIOLATED_ARTICLES: 14
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-85820
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: ASPINALL v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Kenneth Thomas Aspinall, is a British national who was born in 1951 and lives in Liverpool. He was represented before the Court by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 21 October 1998, leaving two children born in 1980 and 1983. By a letter of 29 December 2002, the applicant sought to claim a Widow’s Pension (“WP”). On 26 February 2003, the Department for Works and Pension (“DWP”) asked the applicant to fill in a claim form which he duly did and returned to them. On 12 March 2003 the applicant was informed that his claim had been disallowed as he was not a woman. By a letter of 10 April 2003 the applicant appealed. On 27 November the appeal was heard and dismissed. On 12 January 2004 the applicant appealed to the Social Security Commissioner who on 28 May 2004 issued a direction stating that he was minded to refuse the appeal.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-61764
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF KOCAK AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 14+P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: Georg Ress
TEXT: 4. The applicants were born in 1943 and 1939 respectively and live in Istanbul.
5. On 6 September 1993 the General Directorate of National Roads and Highways expropriated plots of land belonging to the applicants in Istanbul. A committee of experts assessed the value of the plots of land belonging to the applicants and compensation was paid to them when the expropriation took place.
6. On 4 February 1994, following the applicants’ request for increased compensation, the Kartal First Instance Court awarded them additional compensation of 48,410,250,000 Turkish liras (TRL) plus interest at the statutory rate of 30% per annum, namely the rate applicable at the date of the court’s decision. The date, 6 September 1993 was fixed by the domestic court for the running of the statutory rate of interest. The parties appealed.
7. On 12 May 1994 the Court of Cassation quashed the decision of the first instance court. On 2 November 1994 the first instance court re-examined the case and amended the amount of the additional compensation to TRL 45,692,700,000. The decision became final since none of the parties appealed. On 29 December 1997 the administration paid the applicants TRL 95,426,696,000 as the additional compensation together with interest. The interest on the additional compensation was calculated at the statutory rate applicable between the date of the decision of the first instance court in favour of the applicant and 31 December 1997.
8. Between 1993 and 1999 the rate of inflation averaged 81.7% per annum.
9. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).