ITEMID: 001-122449
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: POVSE v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The first applicant, Ms Sofia Povse, born in 2006, is an Austrian and Italian national. The second applicant, Ms Doris Povse, born in 1976, is an Austrian national. The applicants live in Berndorf (Austria). They were represented before the Court by Mr F. Beglari, a lawyer practising in Judenburg.
2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department of the Federal Ministry for European and International Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 2005 the second applicant, who had been living and working in Italy for a couple of years, entered into a relationship with M.A., an Italian national. From September 2006 they lived together in M.A.’s apartment in the Vittorio Veneto community. The first applicant, born in December 2006, is the couple’s daughter. Under Italian law the second applicant and M.A. had joint custody of her.
5. The relationship between M.A. and the second applicant deteriorated. In December 2007 they had a violent dispute during which M.A. allegedly hit the second applicant in the face. The second applicant did not report this incident to the Italian police. In January 2008, following a further dispute during which M.A. allegedly picked up the first applicant and shook her violently and spat at the second applicant, the applicants left M.A.’s apartment.
6. On 4 February 2008 M.A. requested the Venice Youth Court (tribunale per i minorenni di Venezia) to award him sole custody of the first applicant and to issue a travel ban prohibiting her from leaving Italy without his consent.
7. On 8 February 2008 the applicants travelled to Austria, where they took up residence with the second applicant’s parents. It appears that on the same day the Venice Youth Court issued a travel ban in respect of the first applicant.
8. On 23 May 2008 the Venice Youth Court lifted the travel ban in respect of the first applicant, granted preliminary joint custody of the child to both parents, and authorised her residence with her mother in Austria, having regard to her young age and close relationship with her mother. It also appointed an expert who was entrusted with the task of collecting the necessary information for a final decision on custody. Moreover, the court granted M.A. access rights twice a month in a neutral location, noting that the meetings should alternate between Italy and Austria and that the dates and arrangements should be agreed with the expert.
9. Between October 2008 and June 2009 M.A. met his daughter fifteen times at a family centre in Knittelfeld. According to the respondent Government, M.A. then declared that he would not visit his daughter any more, and he did not attend any meetings after June 2009. The Government also submitted that the second applicant cooperated with the expert appointed by the Venice Youth Court.
10. M.A. requested the first applicant’s return under the Hague Convention. His request was forwarded via the respective central authorities in Italy and Austria to the Leoben District Court (Bezirksgericht), where the proceedings began on 19 June 2008. Subsequently, the court appointed an expert.
11. Meanwhile, on 6 June 2008 the Judenburg District Court, at the second applicant’s request, granted an interim injunction against M.A. prohibiting him from contacting the applicants for three months. The court noted that M.A. had sent the second applicant more than 240 threatening text messages, had called her by phone up to fifty times per day and had sent her an e-mail showing a video of the post-mortem of a female corpse. The court also noted that M.A. had not responded to its request to submit his arguments.
12. On 3 July 2008 the Leoben District Court dismissed M.A.’s request for the return of the child under the Hague Convention. Referring to the expert’s opinion and having regard to the very young age of the first applicant, the court found that her return would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention. The psychological expert opinion dated 1 July 2008 had shown a stable and loving relationship between mother and child and had warned that the child’s separation from her main caregiver would traumatise her and endanger her psychological development.
13. On 1 September 2008 the Leoben Regional Court (Landesgericht) set aside that decision because M.A. had not been duly heard in the proceedings.
14. On 21 November 2008 the Leoben District Court, having heard M.A., again dismissed his application for the first applicant’s return, referring to the Venice Youth Court’s decision of 23 May 2008.
15. On 7 January 2009 the Leoben Regional Court dismissed an appeal by M.A., finding that the first applicant’s return to her father and her separation from her mother would entail a grave risk of psychological harm within the meaning of Article 13(b) of the Hague Convention.
16. Meanwhile, in March 2009 the second applicant brought proceedings before the Judenburg District Court requesting to be awarded sole custody of the first applicant.
17. On 26 May 2009 the Judenburg District Court held that it had jurisdiction with regard to custody, access and alimony issues in respect of the first applicant by virtue of Article 15(5) of EU Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels IIa Regulation”).
18. On 25 August 2009 the same court granted preliminary sole custody to the second applicant, referring to the child’s close link with Austria and a danger to her well-being upon a possible return to Italy.
19. On 8 March 2010 the Judenburg District Court awarded the second applicant sole custody of the first applicant.
20. In the meantime, on 9 April 2009 M.A. made an application to the Venice Youth Court for the first applicant’s return under Article 11(8) of the Brussels IIa Regulation.
21. In its judgment of 10 July 2009, the Venice Youth Court, having held a hearing, ordered the first applicant’s return to Italy. The child would live with her mother, the second applicant, should the latter decide to return to Italy with her. In that case the Vittorio Veneto social services were required to provide accommodation to the applicants. Moreover, a programme for the exercise of M.A.’s access rights would have to be established. If the second applicant did not wish to return to Italy, the first applicant was to stay with her father.
22. The Venice Youth Court found that it remained competent to deal with the case, as the Judenburg District Court had wrongly determined its jurisdiction under Article 15(5) of the Brussels IIa Regulation. It noted that its previous decision of 23 May 2008 had been designed as a temporary measure in order to re-establish contact between the first applicant and her father through access rights and to obtain a basis for an expert opinion for the decision on custody. However, the second applicant had failed to co-operate with the appointed expert and had refused a programme of access rights for the father prepared by the expert. The latter had stated in her preliminary opinion that she was not in a position to answer all questions relating to the child’s best interests in a satisfactory manner.
23. It appears that the second applicant made written submissions in the proceedings before the Venice Youth Court and was represented by counsel at the hearing.
24. On 21 July 2009 the Venice Youth Court issued a certificate of enforceability under Article 42 of the Brussels IIa Regulation.
25. On 22 September 2009 M.A. requested the enforcement of the return order.
26. On 12 November 2009, the Leoben District Court dismissed M.A.’s request. It noted that the second applicant was not willing to return to Italy with the first applicant. However, the first applicant’s return to Italy without her mother would constitute a grave risk for the child within the meaning of Article 13(b) of the Hague Convention.
27. On 20 January 2010 the Leoben Regional Court quashed that decision and granted M.A.’s request for the enforcement of the Venice Youth Court’s order to return the child.
28. The Leoben Regional Court noted that under Article 11(8) of the Brussels IIa Regulation a judgment refusing return under Article 13 of the Hague Convention was not relevant where the court which was competent pursuant to the Brussels IIa Regulation had ordered the child’s return in a subsequent judgment. It confirmed that the Venice Youth Court had been competent to issue the judgment of 10 July 2009, as the second applicant had unlawfully removed the first applicant from Italy and M.A. had immediately requested her return. Moreover, M.A. had submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation in respect of the judgment at issue. The Austrian courts therefore had to recognise the judgment and to enforce it. They did not have to establish anew whether the first applicant’s return would be against her best interests. In any event, there was no indication that the circumstances had changed since the Venice Youth Court had given its judgment. It was for the court of first instance to order appropriate measures of enforcement.
29. The second applicant lodged an appeal on points of law with the Supreme Court (Oberster Gerichtshof). She submitted, in particular, that the Austrian courts were competent to deal with custody matters concerning the first applicant by virtue of Article 10(b) subparagraph (iv) of the Brussels IIa Regulation, as the Venice Youth Court had accepted the child’s residence in Austria in its decision of 23 May 2008. Moreover, the return order of the Venice Youth Court of 10 July 2009 did not fall under Article 11(8) of that Regulation as it did not contain a decision on custody. Further, that judgment had not taken the child’s best interests into account. The transfer of preliminary sole custody to the second applicant by the decision of the Judenburg District Court of 26 May 2009 prevented the enforcement of the return order pursuant to Article 47(2) of the Brussels IIa Regulation. Finally, the circumstances had changed after the Venice Youth Court had issued its judgment of 10 July 2009 in that M.A. had refused to exercise his access rights. The first applicant had therefore not seen her father since mid-2009. The enforcement of the return order would therefore violate the child’s best interests.
30. On 20 April 2010, the Supreme Court requested a preliminary ruling by the Court of Justice of the European Union (CJEU), submitting a number of questions concerning the application of the Brussels IIa Regulation.
31. On 1 July 2010 the CJEU issued a preliminary ruling (C-211/10 PPU) confirming the jurisdiction of the Italian courts in the case and the enforceability of the Venice Youth Court’s judgment of 10 July 2009. It found, in particular, that
(1) a provisional measure [as the one issued by the Venice Youth Court in 2008] did not constitute a ‘judgment on custody that does not entail the return of the child’ within the meaning of Article 10(b) subparagraph (iv) of the Brussels IIa Regulation and could not be the basis of a transfer of jurisdiction to the courts of the Member State to which the child had been unlawfully removed;
(2) Article 11(8) of the Regulation applied to a judgment of the court with jurisdiction ordering the return of the child, even if it was not preceded by a final judgment of that court relating to rights of custody of the child;
(3) Article 47(2) subparagraph (2) of the Regulation had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member State of enforcement which awarded provisional rights of custody, could not preclude enforcement of a certified judgment delivered previously by the court which had jurisdiction in the Member State of origin and had ordered the return of the child;
(4) enforcement of a certified judgment [ordering the child’s return] could not be refused by the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change had to be pleaded before the court which had jurisdiction in the Member State of origin which also had to hear any application to suspend the enforcement of its judgment.
32. On 13 July 2010 the Supreme Court dismissed the second applicant’s appeal on points of law. It noted that according to the CJEU’s ruling the Austrian courts’ only task was to take the necessary steps for the enforcement of the return order, without proceeding to any review of the merits of the decision. If the second applicant asserted that the circumstances had changed since the Venice Youth Court had given its judgment, she had to apply to that court, which would also be competent to grant such an application suspensive effect.
33. On 31 August 2010 the Venice Youth Court refused to grant a request by the second applicant for the enforcement of its judgment of 10 July 2009 to be stayed. Referring to that decision, M.A. requested the Leoben District Court to order the first applicant’s return to Italy.
34. On 17 February 2011 the Leoben District Court requested M.A. to submit evidence that appropriate accommodation would be [made] available to the applicants [by the social services of the Vittorio Veneto community], as required by the Venice Youth Court’s judgment of 10 July 2009.
35. By a judgment of 23 November 2011 the Venice Youth Court withdrew the second applicant’s custody rights and awarded sole custody of the first applicant to her father, M.A. It further ordered the first applicant’s return to her father in Italy, to reside with him in the Vittorio Veneto community. The court ordered the Vittorio Veneto social services – if need be in co-operation with the neuro-psychiatric service of the local health authority – to see to maintaining contact between the first and the second applicants and to give the first applicant linguistic and pedagogic support for her integration into her new family and social environment.
36. The Venice Youth Court referred to its decision of 23 May 2008, which had aimed at preserving the first applicant’s relationship with her mother while re-establishing contact with her father, noting that such attempts had failed owing to lack of co-operation from the second applicant. It had therefore ordered the first applicant’s return to Italy in its judgment of 10 July 2009. It further considered that the second applicant had unlawfully removed the first applicant to Austria and had subsequently deprived her of having any contact with her father without good reason. She had thus acted against the child’s best interests. It therefore found that sole custody was to be awarded to the father. Since so far any attempts to establish contact step by step had failed, the first applicant was to reside with him immediately. The court noted that this would entail a difficult transition for the first applicant but considered that the damage of growing up without her father would weigh even heavier. The court considered that the social services would have to give the first applicant pedagogical and linguistic support to settle in her new family and social environment and to maintain contact with her mother. Finally, the court considered that the first applicant’s return would not entail any grave risk of psychological or physical harm within the meaning of Article 11 of the Brussels IIa Regulation, which in turn referred to Article 13 of the Hague Convention.
37. The second applicant did not appeal against the judgment.
38. On 19 March 2012 M.A. notified the Leoben District Court of the Venice Youth Court’s judgment of 23 November 2011. He also submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation.
39. On 3 May 2012 the Leoben District Court dismissed M.A.’s request for the order of the first applicant’s return. It considered that he had failed to submit proof that appropriate accommodation would be available for the first and second applicants upon their return.
40. M.A. appealed. He submitted, in particular, that the Venice Youth Court’s judgment of 23 November 2011 had granted him sole custody of the child and had ordered her return to Italy, where she would reside with him.
41. On 15 June 2012 the Leoben Regional Court allowed M.A.’s appeal and ordered the second applicant to hand over the first applicant to her father M.A. within fourteen days, noting that enforcement measures would be taken in case of failure to comply.
42. The Regional Court found that the condition that appropriate accommodation be made available to the applicants was no longer valid: in its judgment of 23 November 2011 the Venice Youth Court had awarded sole custody of the first applicant to M.A. and had ordered that she return to reside with him. M.A. had submitted that judgment, together with a certificate of enforceability under Article 42 of the Brussels IIa Regulation. The second applicant’s obligation to return the first applicant to her father thus resulted directly from the Venice Youth Court’s judgment of 23 November 2011. Finally, the Leoben Regional Court noted that the custody decision of the Judenburg District Court of 8 March 2010 could not prevent the enforcement of the Venice Youth Court’s judgment. The latter had retained its competence to rule on custody, as the second applicant had unlawfully removed the first applicant to Austria and M.A. had made a timely request for her return under Article 10 of the Brussels IIa Regulation.
43. The second applicant did not comply with the return order. She lodged an extraordinary appeal on points of law with the Supreme Court.
44. On 13 September 2012 the Supreme Court rejected the second applicant’s extraordinary appeal on points of law as the case did not raise an important legal issue. It noted that the return order had become final and was enforceable. The first-instance court now had no other task than to define the steps to be taken to enforce the return order. The CJEU had clarified that where there was a certificate of enforceability under Article 42 (1) of the Brussels IIa Regulation, the requested court had to proceed to the enforcement. Any questions relating to the merits of the return decision, in particular the question whether the requirements for ordering a return were met, had to be raised before the courts of the requesting State in accordance with the laws of that State. Consequently, any change in circumstances affecting the question whether a return would endanger the child’s well-being had to be raised before the competent court of the requesting State. The second applicant’s argument that the first applicant’s return would lead to serious harm for the child and entail a violation of Article 8 of the Convention was therefore not relevant in the proceedings before the Austrian courts but had to be raised before the competent Italian courts.
45. On 1 October 2012 the Leoben District Court held that it was not competent to conduct the enforcement proceedings and transferred the case to the Wiener Neustadt District Court, due to a change of the applicants’ place of residence.
46. On 4 October 2012 the Wiener Neustadt District Court issued a decision on the next steps to be taken in the enforcement proceedings. The judge noted, in particular, that a continuation of the path chosen by both parents, namely the use of the child in the conflict between them, would lead to the child’s traumatisation, especially if the parents’ unbending position eventually led to an enforcement of the return order by coercive measures as a last resort. He noted that the best interests of the child required the parents to reach a workable compromise. The judge therefore proposed that a hearing in the presence of both parents be organised in order to seek a constructive solution. Accordingly, he requested both parents to indicate within two weeks whether they were ready to participate in the proposed meeting. The judge further noted that if the parents were not willing to participate in the hearing, the enforced return of the child would be arranged. In this context the judge stated that any trauma suffered by the first applicant because of such enforcement would then have to be laid at the door of the parents. Moreover, the child’s father would be required to find a way to deal with the trauma caused to the child.
47. On 16 October 2012 M.A. informed the Wiener Neustadt District Court that he was not ready to participate in a hearing with the second applicant, but wanted to arrange the return of the child with the least traumatic impact possible. He therefore suggested that he come to Austria with his parents to pick up the child or, alternatively, that the second applicant travel to Italy with the child to hand her over. He therefore requested the second applicant to either fix a pick-up date in Austria or to inform him of a date when she would bring the child to Italy.
48. On 23 October 2012 the second applicant informed the District Court that she was ready to take part in the proposed hearing. She also informed the court that she had appealed against the decision which had transferred the case from the Leoben District Court to the Wiener Neustadt District Court. Consequently, the decision establishing the Wiener Neustadt District Court’s competence had not become final. She therefore requested the court to await the decision on her appeal before taking any further steps.
49. Finally, the second applicant argued that if enforcement measures had to be taken, they must be taken in accordance with Austrian law pursuant to Article 47 of the Brussels IIa Regulation. Austrian law, namely section 110(3) of the Non-Contentious Proceedings Act, allowed the court to refrain from an enforcement if the child’s interests were at risk. The second applicant drew attention to the fact that the first applicant, who was about six years old, had not seen her father since mid-2009 and did not speak Italian, while M.A. did not speak German. A return as envisaged by M.A. would traumatise the child, as would the application of any coercive measures. The only way of avoiding this was to build up the relationship between the first applicant and her father step by step. She therefore requested the Wiener Neustadt District Court to order M.A. to come to Austria as often as was necessary to establish a relationship with the child and to organise her return to Italy without having recourse to coercive measures.
50. In a decision of 20 May 2013 the Wiener Neustadt District Court ordered the second applicant to hand over the child to her father by 7 July 2013 and stated that in case of failure to comply coercive measures would be applied. The District Court noted that it was for the second applicant to choose whether she would accompany her daughter to Italy or whether she would fix a date within that time-limit for the father to pick up the child in Austria. Furthermore, the District Court referring to the Supreme Court’s judgment of 13 September 2012, repeated that it was for the Italian courts to examine any question relating to the child’s well-being. It noted finally, that the deadline for handing over the child had been fixed in such a way as to allow her to finish the school year in Austria.
51. Since their arrival in Austria in February 2008 the first applicant has been living with the second applicant. In 2009 the second applicant entered into a relationship with a new partner. She gave birth to a son in March 2011. The second applicant, her new partner and the two children are living in a common household. It appears that the first applicant does not speak Italian and has not seen her father since mid 2009.
52. Two sets of criminal proceedings are pending against the second applicant before the Treviso Court. In the first set of proceedings (no. 4983/09), she is accused of removal of a minor and failure to comply with court orders. The second set of proceedings (no. 8927/11) concerns charges of abduction of a minor to another country.
53. The relevant provisions of the Hague Convention read as follows:
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
...
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
54. The relevant provisions of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels IIa Regulation”)[, repealing Regulation (EC) No. 1347/2000,] read as follows:
“(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.
...
(21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required.
...
(23) The Tampere European Council considered in its conclusions (point 34) that judgments in the field of family litigation should be ‘automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement’. This is why judgments on rights of access and judgments on return that have been certified in the Member State of origin in accordance with the provisions of this regulation should be recognised and enforceable in all other Member States without any further procedure being required. Arrangements for the enforcement of such judgments continue to be governed by national law.”
“1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:
(a) divorce, legal separation or marriage annulment;
(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.
2. The matters referred to in paragraph 1(b) may, in particular, deal with:
(a) rights of custody and rights of access;
(b) guardianship, curatorship and similar institutions;
(c) the designation and functions of any person or body having charge of the child’s person and property, representing or assisting the child;
(d) the placement of the child in a foster family or in institutional care;
(e) measures for the protection of the child relating to the administration, conservation or disposal of the child’s property.
...”
“In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;
or
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained.
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11 (7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”
“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter ‘the 1980 Hague Convention’), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.
2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.
3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.
Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make it impossible, issue its judgment no later than six weeks after the application is lodged.
4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.
5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.
6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority of the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.
7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submission to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.
Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.
8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.”
55. Pursuant to Article 40(1)(b) of the Regulation, its section 4 applies to “the return of a child entailed by a judgment given pursuant to Article 11 (8). Article 42 in section 4 provides as follows:
“1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.
Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8) the court of origin may declare the judgment enforceable.
2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if:
(a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;
(b) the parties were given an opportunity to be heard; and
(c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention.
In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.
The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning the return of child(ren)).
The certificate shall be completed in the language of the judgment.”
“1. The enforcement procedure is governed by the law of the Member State of enforcement.
2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.
In particular, a judgment which has been certified according to Article 41(1) or Article 42(1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.”
“In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by the Regulation:
...
(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.”
56. The enforcement of custody decisions is based on section 110 of the Non-Contentious Proceedings Act (Außerstreitgesetz). This provision applies also to the enforcement of decisions under the Hague Convention and, according to the Supreme Court’s case-law, to the enforcement of return orders under Article 11(8) of the Brussels IIa Regulation.
Section 110(1), taken in conjunction with section 79(2), provides for the imposition of fines or imprisonment as coercive measures for contempt of court. As more lenient measures the court may also reprimand a party or threaten to take coercive measures.
Section 110(2) allows for the use of reasonable direct coercion. Direct coercion may only be applied by court organs and is in practice entrusted to specially trained bailiffs.
Section 110(3) provides that the court may refrain from continuing with the enforcement if and as long as it constitutes a risk for the well-being of the minor.
The Government argued that in accordance with the CJEU ruling of 1 July 2010, the courts were not entitled to rely on section 110(3) of the Non-Contentious Proceedings Act to review a return order on the merits or to examine whether there were reasons for granting a stay of enforcement, even if it was alleged that there had been a change in circumstances, as it was exclusively within the competence of the courts of the State of origin to rule on a request for a stay of a return order given under Article 11(8) of the Brussels IIa Regulation. In the context of the enforcement of a return order under that Regulation, the scope of application of section 110(3) of the Non-Contentious Proceedings Act was limited to cases in which the act of enforcement in itself endangered the minor’s well-being because of an acute danger to the child arising during the removal (for instance on account of strong resistance by or acute health problems of the minor concerned).


ITEMID: 001-57493
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1986
DOCNAME: CASE OF GILLOW v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;No violation of Art. 14+8;No violation of Art. 6;Just satisfaction reserved
JUDGES: Gaukur Jörundsson
TEXT: 9. Mr. Joseph Gillow and his wife Mrs. Yvonne Gillow were born in England in 1916 and 1918 respectively. They are both British citizens and retired.
10. In April 1956, Mr. Gillow was appointed Director of the recently-created States of Guernsey Horticultural Advisory Service. Consequently, the applicants, after selling their home in Lancashire, moved with their family and furniture to Guernsey. Initially, they occupied a house owned by the States of Guernsey. However, in 1957, Mr. Gillow bought a plot of land on Guernsey, on which, after obtaining the requisite planning permission, he built a house, called "Whiteknights". He and his family took occupation of this house on 1 September 1958.
The property's rateable value was £51, of which £49 was attributable to the house itself. It was then, and still is, "controlled housing" (see paragraph 30 below). However, the applicants did not require a licence to occupy the house, since they had "residence qualifications" by virtue of the Housing Control (Extension and Amendment) (Guernsey) Law 1957 ("the Housing Law 1957") (see paragraph 30 below).
11. In August 1960, after Mr. Gillow had resigned from his post in the Guernsey Horticultural Advisory Service, the applicants and their family left Guernsey and Mr. Gillow took up employment with the Food and Agriculture Organisation (F.A.O.). Thereafter, and until he retired in 1978, he worked overseas for various development Agencies on the basis of temporary contracts.
12. From August 1960 to July 1978, "Whiteknights" was let either to persons with the necessary "residence qualifications" or under a licence from the States of Guernsey Housing Authority ("the Housing Authority") in accordance with the Housing Law 1957 and its subsequent amendments (see paragraphs 30-33 below). During this period, the applicants corresponded periodically with the Housing Authority from various addresses, inter alia, to inquire as to the operation of the Housing Laws in the event of their selling the property.
In November 1963, Mr. Gillow transferred ownership of the house to his wife.
13. On 26 July 1978, the Housing Authority wrote to Mrs. Gillow advising her of the current tenant's intention to leave "Whiteknights" and enquiring who would be the next tenant. By letter of 31 August, Mrs. Gillow informed the Housing Authority that she and her husband proposed to return to Guernsey. The Authority replied, on 15 September, that the applicants were not entitled to occupy their house unless they were granted a licence under section 3 of the Housing (Control of Occupation)(Guernsey) Law 1975 (the "Housing Law 1975" - see paragraph 33 below).
"Whiteknights" was empty after the departure of the last-mentioned tenant on 31 July 1978. It appears that neither the Housing Authority nor the applicants received any request to let the house after that date.
14. In November 1978, the applicants returned to England from Hong Kong and they lived temporarily with Mrs. Gillow's mother in England.
On 21 April 1979, Mrs. Gillow wrote to the Housing Authority advising it that she and her husband intended to return to "Whiteknights" to retire. She added that she was currently seeking a teaching post in Guernsey. Furthermore, the house required various repairs, some of which the applicants proposed to carry out themselves. Accordingly, in addition to seeking a long-term occupation licence, Mrs. Gillow also requested a temporary licence, until September 1979, so that this work could be carried out.
15. On 29 April 1979, Mr. and Mrs. Gillow went back to Guernsey and re-occupied "Whiteknights". On 7 May, Mrs. Gillow, having received no reply from the Housing Authority, wrote again to it repeating her request and stating that she and her husband had returned to Guernsey.
The Housing Authority replied on 14 May, informing Mrs. Gillow that, after having been considered at a meeting on 3 May, her application for a long-term licence to occupy "Whiteknights" had been rejected in the light of the "present adverse housing situation". The reply also stated: firstly, that the applicants had at no time been granted a licence to occupy this house; secondly, that even assuming that Mrs. Gillow took up employment considered essential to the community (see paragraph 33 below), the applicants would not be permitted to stay in their property after her retirement, because she was too old to complete a minimum of ten consecutive years in such employment, as required by the Housing Law 1975.
No reference was made in the letter to the request for a temporary licence.
16. On 5 July 1979, a representative of the Housing Authority visited the applicants and furnished them with an official form of application for a temporary licence. They lodged the application four days later, but it was refused by decision of the Housing Authority on 19 July. Notification of the refusal was given to Mrs. Gillow on 27 July, and was accompanied by the reasons therefor, namely:
- that Mrs. Gillow had failed to adduce evidence showing that she would be employed in a position essential to the community;
- that "Whiteknights" was likely to be sought after by persons fulfilling the residential qualifications which the applicants lacked;
- that in the "present adverse housing situation", the Housing Authority was unable in principle to justify granting a licence to the applicants.
Mrs. Gillow was also informed of her right to appeal from this decision to the Royal Court, under section 19 of the Housing Law 1975 (see paragraph 33 below). Finally, she was notified that, unless she and her husband could show good reasons to the contrary, the Housing Authority would refer their occupation of "Whiteknights" to the Guernsey Law Officers with a view to prosecution if they did not vacate the house within seven days.
17. In their reply of 29 July 1979, the applicants repeated their request for a temporary licence at least until the end of August, in order to complete the necessary repairs to the property and to put it on the market for sale. They claimed that they had not been "occupying" the house, within the meaning of the Housing Law 1975. They maintained that the Law could not reasonably prevent them from carrying out the repairs necessitated by the fact that the property had been let for the previous eighteen years, and that the Law allowed them to take the steps required to sell the property, steps which precluded anyone else from occupying it in the meantime. The applicants also contended that they had not been informed until September 1978 that they required a licence to live in "Whiteknights"; in particular, they had not been notified of the entry into force on 2 February 1970 of the Housing Control (Guernsey) Law 1969 ("the Housing Law 1969"), which contained new provisions under which they ceased to have "residence qualifications" (see paragraph 32 below).
18. That letter was considered at a meeting of the Housing Authority on 9 August 1979. A reply was sent to Mrs. Gillow on 15 August, confirming that she had not been notified before 15 September 1978 of the change in the law or of the need to obtain a licence. The Housing Authority also agreed that, if the applicants vacated "Whiteknights" by 1 September 1979, it would take no action in respect of their unlawful occupation.
19. On 23 August, Mrs. Gillow requested a further extension, until the end of September, of the applicants' permission to stay, since the property had not yet been sold. This request was refused on 30 August and Mrs. Gillow was so informed on 3 September. Furthermore, the applicants were given seven days to leave the house, on pain of prosecution.
On 11 September 1979, Mr. and Mrs. Gillow met the President of the Housing Authority and sought, inter alia, permission to remain in their property for a further six months, in order to effect the sale. On this occasion, they raised the question of compensation for their loss of residence rights.
The Housing Authority wrote to the applicants on 20 September, reporting that their application had been reconsidered on 13 September and refused. They were informed that proceedings would accordingly be instituted against them for unlawful occupation, unless they vacated "Whiteknights" by 31 October 1979.
20. Mr. and Mrs. Gillow consulted an advocate in early October and, on 13 October, instructed him to appeal to the Royal Court against all the Housing Authority's decisions. Such appeals could only be lodged by an advocate of the Royal Court, but the applicants' advocate failed to file them within the statutory time-limit (31 October 1979).
However, on 5 November he requested the Housing Authority to take no action against the applicants until he had had a further opportunity of advising them. On 9 November, he submitted on their behalf a fresh application for a licence to occupy "Whiteknights" until 30 April 1980, in order to effect its sale. In its reply of 13 November, the Housing Authority stated that:
"On 8 November 1979 the Housing Authority noted the contents of your letter but resolved with regret that as [the applicants] took occupation without [a] licence and have been given an adequate time to vacate the premises, it is unable to justify withholding action in this matter. The documents in the case have been referred to the Law Officers."
On 16 November, the Authority notified the advocate that the further licence application had been refused on 12 November.
21. On 20 November, the advocate notified the Housing Authority, the police and the prosecuting authorities that the applicants intended to appeal. However, on 17 December the police visited the applicants at "Whiteknights" and asked them to make a statement but they refused to do so unless their advocate was present. By letter of 19 December to the chief of police, they explained that an appeal was being lodged. They were nevertheless summoned to appear in court on 1 February 1980.
22. On 22 January 1980, the applicants discovered that the appeal to the Royal Court had not yet been lodged and addressed a complaint to the Chambre de Discipline of the Guernsey Bar against their advocate. He finally filed an appeal - in the name of Mrs. Gillow and directed against the Housing Authority's decisions of 3 May, 19 July and 12 November 1979 refusing the licences - on 1 February 1980 at about 9 a.m. This appeal sought the grant of either an unrestricted licence or, alternatively, permission to occupy "Whiteknights" until 30 April 1980, and alleged that the decisions in question were an unreasonable exercise of the Housing Authority's discretion and were ultra vires. The appeal was accepted by the Royal Court for examination, although it had been lodged out of time.
23. Later on the same day, the applicants appeared, in accordance with the summons, before the Magistrate's Court. They asked for an adjournment on the ground that Mrs. Gillow's appeal went to the heart of the question whether their occupation of "Whiteknights" was unlawful or not. However, the adjournment was refused on the insistence of the Law Officer.
The applicants cases were dealt with separately, the charges against Mr. Gillow being taken first. He was convicted of occupying "Whiteknights" without a licence and fined. Mrs. Gillow's trial was adjourned twice and then suspended sine die, the court having taken into account, inter alia, Mrs. Gillow's appeal to the Royal Court and the fact that Mr. Gillow had appealed against his conviction.
24. The applicants finally sold "Whiteknights" on 15 April 1980 for a price of £33,000, which in their view was less than its actual value.
25. On 8 July 1980, the Royal Court, which was composed of a President and eleven Jurats, dismissed Mrs. Gillow's appeal, unanimously as regards the Housing Authority's decisions of 3 May and 19 July 1979 (see paragraphs 15 and 16 above) and by a majority of 8 votes to 3 as regards the decision of 12 November 1979 (see paragraph 20 above). By virtue of section 19(4) of the Housing Law 1975, this judgment was final and conclusive.
26. Mr. Gillow's appeal against his conviction was heard and dismissed by the Royal Court on 26 August 1980. Before and during the hearing, Mr. Gillow challenged the accuracy of the transcript of the first-instance proceedings and asked for leave to hear the original tape. This request was refused, but the Registrar of the Court listened to the tape during a recess and pronounced the transcript accurate.
Mr. Gillow also alleged that the Royal Court was inherently biased because, with the exception of one Jurat, its composition was the same as when it had determined his wife's appeal against the decisions of the Housing Authority. He further maintained that the composition of the Royal Court, as such, was archaic.
27. The complaint which the applicants lodged with the Bar Chambre de Discipline on 26 January 1980 against their advocate for delay in filing the appeals against the Housing Authority's decisions was found to be substantiated on 9 September 1980.
28. The Bailiwick of Guernsey is a dependency of the British Crown. It has its own legislative assembly, courts of law and administrative and fiscal systems, which are separate from those of Great Britain and Northern Ireland.
The legislative assembly is the States of Deliberation, which has 60 members and is presided over by the Bailiff or Deputy Bailiff, both of whom are appointed by the Sovereign. The States legislate for the Island by way of "Laws" or, in some circumstances, by way of Ordinances; the former require approval by Her Majesty in Council before they can take effect. Although the United Kingdom Parliament has power to legislate for Guernsey, it would be contrary to constitutional convention for it do so in respect of matters domestic to the island, such as the Housing Laws.
The Royal Court of Guernsey is a court of unlimited jurisdiction which sits either at first instance or on appeal. It is composed of the Bailiff, the Deputy Bailiff or a Lieutenant Bailiff, as President, together with twelve Jurats appointed by the States of Election. The Magistrate's Court has summary jurisdiction in criminal matters and jurisdiction up to a limited amount in civil suits.
29. Following the liberation of the Island in 1945 after the Second World War, the return of many families and the influx of a large number of new residents created acute housing problems, which were followed by considerable increases in property prices. To meet this situation, the States enacted the Housing Control (Emergency Provisions)(Guernsey) Law 1948 (the "Housing Law 1948"), which came into force on 17 July 1948. The Law limited the right to reside in Guernsey without a licence to persons having "residence qualifications", that is persons who had been ordinarily resident there at some time between 1 January 1938 and 30 June 1940. The system of housing control introduced by this law has been modified from time to time to meet changing circumstances pertaining in the island.
30. On 12 October 1957, this Law was replaced by the Housing Law 1957, which replaced the above-mentioned final qualifying date of 30 June 1940 by 30 June 1957. Thus, persons, like the applicants, who had been ordinarily resident in Guernsey on or before that date had "residence qualifications" and were permitted to live there without a licence.
The new Law also freed from control all houses of a "rateable value" (for the purposes of local taxation) in excess of £50 per annum. Such properties, known as "open market houses", could be occupied by anyone, without any restrictions. Houses with a lower rateable value, on the other hand, fell into the category of "controlled housing" and could be occupied only by persons having either "residence qualifications" or a licence granted by the Housing Authority for the particular house.
31. The Housing Law 1957 was amended on matters of detail in 1962 and 1965 (with regard to furnished accommodation) and in 1966, when the Housing Control (Amendment) (Guernsey) Law 1966 raised the minimum rateable value for "open market houses" to £100. This was later reduced, by the Housing Control (Rateable Value) Ordinance, to £85.
The Housing Control (Guernsey) Law 1967 and the Housing Control Ordinance 1967 consolidated all the previous legislation in this area.
32. In the late 1960's, a significant number of people who had "residence qualifications" under the Housing Law 1957 but had subsequently left Guernsey, sought to return to the island. On 2 February 1970, there entered into force the Housing Law 1969, which added a further requirement as regards "residence qualifications": to possess these the person concerned should not only have been ordinarily resident in Guernsey at some time between 1 January 1938 and 30 June 1957 but also in occupation of a dwelling on 31 July 1968 or be the spouse or child of someone so resident. The Law, however, included a saving provision in favour of anyone in lawful occupation of controlled premises on 29 January 1969, but solely as regards those premises. The applicants therefore ceased to possess "residence qualifications" entitling them to occupy "Whiteknights" without a licence, since they were not resident in Guernsey on the relevant date.
As regards the grant of licences to persons without "residence qualifications" to occupy controlled houses, the Housing Law 1969 gave the Housing Authority discretionary powers which were limited by the enumeration of factors to be considered in deciding particular cases. Furthermore, the Law provided for appeals from the Housing Authority's decision to the Royal Court.
33. The Housing Law 1969, which was originally enacted for three years, was extended until 31 December 1975. On 1 January 1976, it was replaced by the Housing Law 1975. This statute preserved the basic distinction between "open market houses", available to all, and "controlled housing" for which "residence qualifications" or a licence were required. The categories of persons having "residence qualifications" were set out in section 6 of the Law. It altered the basis of determining "residence qualifications" by allowing them also to be acquired by a certain period of lawful, licensed, residence in controlled housing and not only by residence on a particular date (section 6(1)(j)). At the same time, certain provisions were designed to preserve existing rights; in particular, "residence qualifications" continued to be possessed by persons who had been both ordinarily resident in Guernsey at some time between 1 January 1938 and 30 June 1957 and in occupation of a dwelling on 31 July 1968 (section 6(1)(h)). Since the applicants did not possess "residence qualifications", they needed a licence from the Housing Authority.
As far as the granting of a licence was concerned (section 3), section 5 of the Housing Law 1975 enumerated the factors to be taken into account by the Housing Authority, including, inter alia:
(a) whether the person concerned was engaged in employment considered essential to the community (sub-section 1 (a) - "essential licence" holder);
(b) whether the number of dwellings similar to that for which application was made and available for occupation was sufficient to meet the housing requirements of persons possessing "residence qualifications" (sub-section 1(b)).
However, the Housing Authority could, in the exercise of its discretion, take into account "such other factors as [it] may, from time to time, deem necessary or expedient" (sub-section 2). According to the Government, prolonged ownership was a factor which the Housing Authority took into account in this connection, but it was not given substantial weight in the absence of other special features. The fact that an applicant had formerly possessed "residence qualifications" under an earlier law was also a factor to which the Housing Authority would have regard but more weight would be attached to the time that the applicant had actually spent in Guernsey.
Section 19 of the Law provided for an appeal to the Royal Court against the refusal of a licence on the grounds that the decisions of the Housing Authority were ultra vires or constituted an unreasonable exercise of its powers.
Section 24 defined the offence of unlawful occupation as follows:
"Any person
(a) who occupies or causes or permits any other person to occupy a dwelling in contravention of any of the provisions of this Law; or
(b) who contravenes any condition of a housing licence;
shall be guilty of an offence and liable, on conviction, to a fine not exceeding five hundred pounds, and, in the case of a continuing offence, to a further fine not exceeding fifty pounds for each day during which the offence continues after conviction."
34. The Housing (Control of Occupation) (Guernsey) Law 1982 entered into force on 1 November 1982. It is designed to replace gradually the old "residence qualifications" developed from the Housing Law 1948 by a system of periods of residence: 10 years for persons born in Guernsey or having a parent born in Guernsey; 15 years for essential workers and their families; and 20 years for other licence holders.
35. Guernsey is an island of 62 square kilometers (24 square miles). In 1939, the population of Guernsey was 43,800, and in 1951, three years after the introduction of the Housing Law 1948, it was 45,747. Between 1951 and 1976, the census data available showed an increase to 54,057, but by 1981 the population had dropped to 53,488. Today the island has an estimated overall population of 55,000 and an average population per square mile of 2,300 persons. This makes Guernsey one of the most densely populated areas within the member States of the Council of Europe. In addition, during the summer months there are up to 12,500 tourists on the island at any one time, giving an average population at that time of 2,750 per square mile.
The 1976 census reveals that in the period from 1971 to 1975 6,379 persons moved into Guernsey to live and 4,093 moved out. Between 1976 and 1981, which is the period relevant to the present case, 5,393 persons moved in and 5,817 moved out, giving an excess of outflow over inflow of 424.
The economy of the island depends on horticulture, agriculture and tourism and, in more recent years, the international finance industry. One of the island's greatest problems has been finding sufficient housing accommodation, while protecting the relatively small area of countryside and other spaces from overdevelopment.
36. On 31 December 1981, 1,776 licences were in force, of which more than 25 per cent had been issued in the four-year period since 1977.
The statistics for the years 1978 to 1985 show that a certain balance had been maintained between the essential and non-essential licences granted by the Housing Authority (see paragraph 33 above). The number of essential licence holders exceeded that of non-essential licence holders for 1978, 1979, 1982, 1983 and 1984, but the contrary was the case in 1980 and 1985.
According to statistics supplied by the Government, the non-essential licences fall mainly into one or other of the following categories:
1. persons, principally in the tourist and horticultural industries, housed by their employer in staff quarters: 117 in 1978 and 119 in 1983;
2. returned Guernsey persons and persons with strong Guernsey connections: 152 in 1978 and 237 in 1983;
3. retired licence-holders and persons now qualified by virtue of long periods of residence under the 1975 and the 1982 Laws: 36 in 1978 and 154 in 1983;
4. compassionate and "en famille" (1982 Law) licences: 61 in 1978 and 184 in 1983;
5. miscellaneous (including licences from 1950's-1960's if house built): 190 in 1978 and 124 in 1983.
The strong demand for licences is also illustrated by the number of refusals: 84 in 1979, 109 in 1980, 158 in 1983 and 197 in 1985; the unsuccessful applicants included persons who had "residence qualifications" under previous Housing Laws and persons who had previously been in essential employment.
37. The official census statistics for 1981 show that there were a total of 18,716 dwellings on the island, of which 17,429 were occupied, leaving an unoccupied residue of 1,287 (as compared with 1,040 in 1976). The 1981 census stated that, of the vacant accommodation, 35 per cent consisted of "tourist units", 12 per cent were on sale, 10 per cent were being renovated and 29 per cent were "habitable and probably vacant pending new occupiers or for sale", leaving 14 per cent unexplained.
On the other hand, a limited survey, made in 1978 by the Housing Authority on the problem of the empty houses found that, after excluding holiday flats, flats over shops and partially-occupied houses, only 92 dwellings were unoccupied and available for long-term occupation. However, some of them were ruined or in very bad condition. Although the Housing Authority concluded that there had been "no significant deterioration in the situation since the last survey" made in 1974, it recommended, inter alia, the re-development of old buildings in town areas.
VIOLATED_ARTICLES: 8
NON_VIOLATED_ARTICLES: 14
6
8


ITEMID: 001-128044
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF SHEVCHENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Elisabeth Steiner;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 6. The applicant was born in 1949 and lives in Koksovyy, the Rostov Region.
7. The applicant worked for 15 years in the Extreme North of Russia. She instituted court proceedings against local pension authorities claiming recalculation of her pension.
8. On 18 July 2003 the Kolskiy District Court of the Murmansk Region granted her claim. The court ordered the Pension Fund of the Kolskiy District of the Murmansk Region to recalculate her pension paid after 1 January 2002 by counting one year of her service in the Extreme North as one and a half years of working record and to pay her respective pension arrears for the period between 1 January 2002 and 18 July 2003. On 20 August 2003 the judgment was upheld on appeal by the Murmansk Regional Court and entered into force. It appears that the parties were not present at the appeal hearing.
9. On 5 September 2003 the applicant received two writs of execution from the district court. By the accompanying letter, sent by registered mail, the court informed her that she had to submit the writs to the respondent authority. In case of the debtor’s refusal to enforce the judgment voluntarily, she was advised to forward it to the local bailiffs’ service, so that the enforcement proceedings could be opened.
10. The applicant did not forward the writs either to the local bailiffs’ service or the respondent pension authority. The judgment remained unenforced.
11. According to the Government, in the meantime the applicant’s oldage pension had been recalculated and on 1 October 2003 further indexlinked.
12. On 8 May 2008 and 27 July 2009 she applied to the Kolskiy District Court for a copy of the writs of execution. She argued without further details that, due to her lack of knowledge on the matter, she must have sent one of the writs to the Court and that she must have lost another one.
13. By two separate decisions of 17 June 2008 and 2 October 2009 the district court rejected her respective applications, since she had not complied with the three-year time-limit for lodging a request for the copy of the writ. The court found no valid reason for extension of that timelimit. The court further observed that in any event the applicant had already been in receipt of the old-age pension in the amount higher than that awarded by the judgment of 18 July 2003. If recalculated in line with that judgment, the amount of her pension would have been significantly reduced.
NON_VIOLATED_ARTICLES: 6
P1
NON_VIOLATED_PARAGRAPHS: 6-1
P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-103314
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF GYULANE SZABO v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Kristina Pardalos
TEXT: 4. The applicant was born in 1925 and lives in Budapest.
5. On 20 June 1996 the applicant brought an action against several private individuals before the Pest Central District Court, seeking the review of a resolution adopted by the community of flatowners of the house in which she lives.
6. Following several hearings and an interruption of two years due to the death of two of the respondents, the District Court delivered a judgment on 27 May 2004.
7. On appeal, the Budapest Regional Court adopted a partial judgment concerning the substitution of a legal statement, while remitting some claims on 24 June 2005.
8. In the resumed proceedings the first instance court discontinued the proceedings on 25 March 2008. However, the review bench of the Supreme Court quashed this decision and instructed the first instance court to resume the proceedings.
9. On 15 December 2009 the District Court gave judgment which was appealed by the applicant. The proceedings are now pending before the Budapest Regional Court.
10. On 4 April 2000 the applicant brought an action against several private individuals before the Pest Central District Court, requesting the court to establish the invalidity of yet another resolution of the flatowners.
11. On 5 October 2004 the District Court gave judgment, finding partly for the applicant. On appeal, on 12 October 2005 the Budapest Regional Court gave judgment. On 17 January 2007 the Supreme Court dismissed the applicant's petition for review.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58273
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF POLAT v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 10;Not necessary to examine P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 8. Mr Edip Polat, a Turkish national born in 1962, is a writer and lives in Diyarbakır.
9. In May 1991 he published in Ankara a book entitled “We made each dawn a Newroz” (Nevrozladık Şafakları). In an epic style he related historical episodes marked by Kurdish rebel movements in Turkey and gave an account, with his own comments, of facts relating in particular to the life of prisoners in Diyarbakır Prison and the ill-treatment they had allegedly been subjected to.
10. The book was republished in November 1991. On 31 December, on an application by the public prosecutor at the Ankara National Security Court (“the National Security Court”), the Ankara Court of First Instance ordered the seizure of the copies published as an interim measure in the context of a criminal investigation opened in respect of Mr Polat.
11. In an indictment of 22 April 1992 the public prosecutor accused the applicant, inter alia, of disseminating propaganda against the territorial integrity of the State and the indivisible unity of the nation, within the meaning of section 8(1) of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 19 below). According to the public prosecutor, Mr Polat’s book was inspired by hatred of the Turkish State and lauded Kurdish separatism. In reaching that conclusion, he noted that both the “separatist bandits” of the PKK and the rebel troops of Sheik Said were described in the book as “Kurdish patriots” and that the regime at the time which had put down the insurrection of 1925 had been called a “fundamentalist dictatorship of the bourgeoisie” and was alleged to have implemented an expansionist policy which had led to infringement of the Kurds’ fundamental rights and annexation of their territory.
He also accused the applicant of contravening section 6(1) of Law no. 3713 by divulging the identity of the staff of Diyarbakır Prison – who, he submitted, having been presented as torturers, ran the risk of reprisals – and the forensic pathologists, whose signatures appeared on the death certificates reproduced in the book.
In support of his submissions, the public prosecutor quoted extracts from the book, whose confiscation he also sought.
12. Before the National Security Court the applicant denied the charges against him. He expressed astonishment that he was being prosecuted on account of the republication of his book, six months after it had first appeared, and submitted in particular that he could not be held responsible for either the terms used in the preface – signed “Pélesor” – or the quotations incorporated in the text. For the rest, he contended that he had done no more than comment on the problems of the population of Kurdish origin on the basis of an account of actual events, which had, moreover, been discussed in the media and commented on by various politicians. He argued that the extracts quoted in the prosecution submissions had to be read in the context of the book as a whole; in that connection, he maintained that the use of a novelistic style meant that the book could not be seen as revealing an ideological or propagandist intention. It should be possible for everything in Turkey to be discussed and interpretation of history could not constitute an offence. In any event, it was not credible that a mere publication or the few quoted sentences could threaten the indivisibility of the State or influence readers’ minds to such a point that the unity of the Turkish nation would be impaired.
Mr Polat likewise denied that he had denounced civil servants with the aim of turning them into targets.
13. On 23 December 1992 the National Security Court found the applicant guilty of disseminating separatist propaganda within the meaning of Law no. 3713.
In its judgment it considered separately the content of each of the six parts of the book alleged to be in breach of the law and in particular quoted substantial passages from the first two parts, including the following:
“[First part]
In spring 1925 you were not even a seed. Your parents had no ‘Hélin’. Other parents had a Hélin, while your grandfather had himself witnessed the destruction of other Hélins. Without suspecting that one day his granddaughter might be given the name Hélin, how many times did he see other Hélins running away or falling in a heap at the bayonet’s point?
That is why, 55 years later, while you are living through the reality of Diyarbakır today, you must also learn the history of what your forefathers lived through in the spring of 1925. So when people tell you ‘The history of our people is one of tyranny and torture’ you will know what they are talking about. Is there not a saying which goes ‘He who is ignorant of the past cannot understand the present’? ...
On 13 February 1925 the village of Piran was raided ... after a warrant had been issued for the arrest of ten Kurdish patriots. These patriots, preferring to fight rather than surrender to the gendarmes, shouldered their rifles and began a guerrilla campaign in the mountains. The events you are witnessing all these years later began with that clash. “On 13 February 1925 in the village of Piran ... ten of Sheikh Said’s men, who were wanted for ‘banditry’, refused to surrender to the gendarmes and fought back with weapons in hand; this sparked off an uprising. For three weeks the insurgents dominated the situation”. This uprising, which had begun with ten people, turned into a serious, large-scale insurrection ... and spread throughout the region. Scarcely five years after the proclamation of the Republic through the Turkish national democratic revolution – which has remained uncompleted - ... it was impossible for the new administration, which had taken over from the Ottoman administration, to resolve the Kurdish problem as it had not been able to bring about the necessary democratic transformations... But at the time of the revolution the Kurds had been promised that their rights would be recognised and by that means had been dragged into the war against the imperialist occupation. Following the establishment of the Turkish National Assembly the Kurds waited two years for the promises made about the resolution of the Kurdish problem to be honoured. That period of silent waiting was brought to an end by the above-mentioned uprising led by SAİD-İ PALOYİ. After the proclamation of the Republic, as the government had not satisfied the Kurds’ expectations ... the accumulated anger reached new heights and it was precisely this period of “angry” waiting which fuelled the insurrection. “By 7 March the forces of Sheikh Said had surrounded Diyarbakır. In the meantime they had dispersed several army regiments and captured the centre of Elazığ and the district of Palo”. The insurrection, which was spreading, did not perhaps succeed in drawing in all Kurds on account of its clan-based organisation, but it did manage to mobilise a large part [of the population] of Diyarbakır.
When we look at Turkey as it was during the years of rebellion we see that the new State was not yet stable... There was an attempt to implement an expansionist policy which involved ignoring the rights of the Kurds and denying the existence of their territory, which the government wanted to annex...
There was no doubt that the insurrection of Saidi Paloyi, begun in those circumstances, would be bloodily repressed by the fundamentalist dictatorship of the bourgeoisie. This first event formed part of the reality of Diyarbakır; it lasted three months. The insurrection, which had found some support around Diyarbakır and in the villages and districts of Elazığ, had finally reached the centre of Diyarbakır...
The old people still alive today who witnessed this event say that after the insurrection was put down about forty people were tried by Independence Courts Martial (İstiklâl Mahkemeleri) and executed. Mr Mazhar Müfit, the president of the court martial which convicted and ordered the execution of a number of eminent Kurds, including Saidi Paloyi, spoke as follows after pronouncing sentence: ‘You have all pursued a specific objective, namely establishment of an independent Kurdistan, and in order to bring that about some of you abused one group of the population for your own shameful interests, while others among you allowed yourselves to be guided by your political ambitions and to be influenced by provocations which originated abroad.’ ...
It was not on the manes of the horses of the fallen that the killers wiped their sabres clean. Those who climbed the scaffold kicked away the chairs under their feet themselves; the others were killed by cannonballs fired from the walls. When the streets of Amed were awash with blood the walls were tinted ash-grey. That is how the townspeople came to wear the armband with the three black dots! When you were not even a droplet of life, when we did not even know whether you would be born in a prison cell as a Kurdish girl, that is when the seed of the hatred [which was to explode] fifty-five years later was sown…
[Second part]
They forbade us to call you ‘Hélin’. They insisted that we call you ‘Meral’. On your birth certificate they ordered us to write ‘Meral’. Like the name of your country, your first name was proscribed…
It was at that time that the commando raids on the villages of the province of Diyarbakır began. Thousands of villagers were crushed under the soldiers’ rifle butts. The men of the villages were exhibited stark naked to their wives, daughters and daughters-in-law. During operations conducted under the pretext of searching for weapons, dozens of villagers were beaten to death. … The age-old hatred grew deeper. The official files contained reports about how the people of the region had rebelled against tyranny. Everything that had happened before was known about. Besides, isn’t there a saying ‘Crush the serpent’s head while it is still small’? However, the ‘serpent’ had grown and begun to bite. There had to be an explanation of the secret of this seedling, because the more it was cut back the more it budded. Battle was engaged between the ‘irreconcilable opposites…’ In 1925 the fighting, which had until then been rather clan-based, reached a higher level. Like those in the ‘opposite camp’, who had put their organisation in order, the revolutionary fighters on their side amalgamated the national struggle with the struggle between [social] classes. Breaking out from the regional and clan context, the Kurdish problem moved on towards a common front with class war. Socialism became the problem of the Kurds and the Kurdish question that of the socialists…”
The National Security Court, after rehearsing the historical facts that had led to the events referred to by Mr Polat, ruled that he had given an inexact version of them. It emphasised that the Turkish State was a single entity, that its territory formed a whole and that all its nationals, without exception, were “patriots”. It went on to say that it was unacceptable to describe as patriots insurgents who had caused the death of thousands of troops; it was not true that within Turkey there was a “Kurdish territory” or a “Turkish territory”; it flew in the face of the facts to give the name “Kurdistan” to a region where citizens of various origins lived; and that by going so far as to say that the State of the Republic of Turkey was expansionist and colonialist Mr Polat had supported the assertion that there were two nations – the Kurdish nation, whose history had allegedly been marked by tyranny and torture, and the Turks, who were enslavers. In the court’s view such assertions were unacceptable because they encouraged separatism and the dismemberment of the nation.
On the subject of the second part of the book, the court observed: “Even the opening phrase – ‘Like the name of your country, your first name was proscribed’ – suggested separatism.” It ruled that by discussing the prohibition of the forename “Hélin” the author had intended to allude to the ban on the name “Kurdistan”. Mr Polat had tried to conceal in that way his real intention, which had been to assert the existence of a separate country within the territory of the Turkish State.
The court said that during the periods when democracy had been suspended and the army was in power there had been restrictions on certain rights and freedoms and undesirable incidents – such as gathering villagers together with a view to collecting hidden weapons – had taken place. While it was conceivable that from time to time it had been necessary to use force against people who refused to hand over their weapons, it was unacceptable for Mr Polat to present such incidents as acts of torture which had exclusively affected the peasants of Diyarbakır, thus insinuating that one group of Turkish citizens were victims of discriminatory treatment. In fact, it was Mr Polat’s very approach which constituted discrimination based on region of origin and ethnic considerations.
As for the other parts of the book, the National Security Court held:
“[In the third part] ... the allegations – which the author attempts to back up by giving the names of prison staff – that ... repression has become the destiny of the Kurdish people and that people of Kurdish origin have been imprisoned and tortured to death on account of their struggle for independence ... are not credible and merely take advantage of people’s feelings... Remarks like those to the effect that the consciousness of nationhood has been strengthened by the inhuman treatment of the Kurdish people and that the national struggle is a noble one ... amount to nothing more than separatist propaganda...
[In the fourth part] it is stated that in the prisons female prisoners ... were woken up in the middle of the night and falsely told that there was a fire, but that their fear suddenly transformed itself into a marriage ceremony and they then began to shout out cries of joy (tilili). The memory of persons who had committed suicide on the evening of 18 May is evoked in such a way as to exploit people’s feelings. In describing as heroic certain acts inspired by a primitive oriental mentality, in choosing to see a simple cry as a marriage ceremony and in presenting suicides as heroic acts the intention can only be to bolster [Kurdish] nationalist sentiment... It is obvious that conditions in prison are not ideal ... however, by using demagogic language the defendant misrepresented those conditions to a considerable extent, as if they were being used to repress the sacred and noble rebellion of the Kurdish people subjected to tyranny and torture. Such assertions amount to separatist propaganda...
[In the fifth part] the defendant ... discusses certain traditions and customs to which Turks and Kurds attach importance or a symbolic value... He relates, among others, the following anecdote: ‘According to legend, during Dersim’s rebellion government soldiers burned a village. While the village was on fire a child of eight to ten years of age who had escaped from the flames ran up and threw himself into the arms of the soldiers standing round the fire. When he suddenly caught sight of the earth-coloured uniforms, ... the child preferred to throw himself into the flames than to stay where he was, so he ran back to where he had come from and jumped into the fire. The Kurds have never throughout history been able to establish a lasting State and their quest for freedom has transformed itself in their hearts into glowing embers. That is why the fire of Newroz is in fact the fire of their desire for freedom...’ Kurdish society is based on a population which has existed for thousands of years. In the course of history it remained under the influence of a number of religions, languages and cultures. Every society goes through certain phases and when it moves from one to another some of its customs and traditions live on... That is perfectly natural. However, ... the defendant likens the fires lit in the mountains during the Newroz celebrations to the fire of freedom in people’s hearts... Whereas, in Turkish society too there are events at which fires are lit... That does not mean that the Turkish people or the Kurdish people intoxicate themselves with the fire of freedom. To claim that the Kurds are not free is to attribute to them a demand ... for freedom. But what would follow freedom for the Kurds is division of the territory and the nation. It is precisely that outcome which the author implicitly advocates and seeks. ... As for the legend related by the defendant ..., it constitutes clear and conclusive proof of hostility towards the Turks...
[In the sixth part] the defendant speaks of prisons and the resistance movements inside them. We will not examine each of these movements: a full account of them has already been given in the bulletins and statements put out by the PKK! ... Among the ... prisoners there are also members of the PKK’s central committee and other leading members. We know that when the prosecutors of the Military Legal Service drew up the indictments calling for ... application of the death penalty a movement of panic sprang up, and that to calm the situation down the PKK militants, in order to arouse so-called resistance movements, used people they had conditioned by saying to them: ‘Behold the fascist Turkish Republic which oppresses you; you are treated like soldiers, they wake you up at the same time as them, they make you take part in sport and they force you to go to sleep at fixed times’. Moreover, with regard to M.D. - who, according to the defendant, committed suicide – even his friends in prison confirmed that he had killed himself after a period of depression. Furthermore, did not one Ş.R.G. decide to commit suicide in Diyarbakır Prison when suffering from depression? He dressed himself in thick clothes, stuffed them with cotton soaked in eau-de-Cologne and then set fire to them with a match. When his clothes began to burn his skin he started to shout out and call to the other prisoners for help... When they had saved him he told those around him how much he regretted what he had done and that he realised how stupid he had been. In fact, suicides in prisons are committed ... as a result of depression originating in a ... feeling of guilt about offences committed. ... Misrepresenting all these facts, the defendant portrays PKK members as innocent freedom fighters and their resistance as legitimate and just, thus making manifest his criminal intent.”
In short, according to the National Security Court, it was “clearly and incontestably established” that Mr Polat had disseminated propaganda against the territorial integrity of the Republic of Turkey and the indivisible unity of the nation, which justified sentencing him, pursuant to section 8(1) of Law no. 3713, to two years’ imprisonment and a fine of 50 million Turkish liras (TRL). It held, however, that although the facts of the case also constituted an offence under section 6(1) of Law no. 3713, it was not necessary, regard being had to Article 79 of the Criminal Code (see paragraph 18 below), to pronounce sentence separately in respect of that offence.
In adition, the National Security Court ordered the confiscation of all the editions of the book.
14. The applicant appealed to the Court of Cassation. In his statement of the grounds of appeal he submitted that his intention had never been to work towards separatist ends but to set out his thoughts – in a critical spirit - about real events relating to the Kurdish question. He contended that the possibility of conducting such an exercise was an indispensable precondition for democracy and freedom of thought.
He further asserted that the judges at first instance had wrongly based their judgment on their own interpretation of historical events or their own perception of what was allegedly implicit. He argued that the National Security Court had been inconsistent in accepting on the one hand that there was such a thing as “Kurdish society” while denying on the other the possibility that this society might have its own patriotic feelings, epics, legends and demands for freedom. In any event, such questions were matters for sociologists or historians not judges. The National Security Court’s approach had therefore been more political than legal and was bound to have led to an unfair judgment.
15. After a hearing, the Court of Cassation dismissed Mr Polat’s appeal by a judgment of 27 May 1993, holding that the assessment of the evidence by the first-instance court had been consistent with the reasons it had given for rejecting the applicant’s defence.
16. In July 1993 Mr Polat was imprisoned. On his release in January 1995 he paid the fine of TRL 50,000,000 that had been imposed on him.
17. On 30 October 1995 Law no. 4126 of 27 October 1995 came into force. This reduced the terms of imprisonment prescribed by section 8 of Law no. 3713, but increased the fines it laid down (see paragraph 19 below).
In a temporary provision relating to section 2, Law no. 4126 also made provision for automatic re-examination of sentences pronounced in judgments rendered pursuant to section 8 of Law no. 3713 (see paragraph 20 below). In accordance with that provision, the National Security Court re-examined the merits of the applicant’s case. By a judgment of 14 December 1995 – the text of which reproduced to a considerable extent the wording of the judgment of 23 December 1992 (see paragraph 13 above) – it finally sentenced Mr Polat to pay an additional fine of TRL 50,000,000 and confirmed the order for the confiscation of his book.
On appeal by the applicant, the Court of Cassation upheld that decision by a judgment of 6 May 1997.
On 3 August 1998 Mr Polat, complying with an order to pay that had been served on him, paid the additional fine.
18. The relevant provisions of the Criminal Code are worded 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…”
“A person who commits an act which contravenes more than one provision of the law shall be punished pursuant to the article, of those relevant, that lays down the heaviest penalty.”
19. Law no. 3713 of 12 April 1991, on the prevention of acts of terrorism, was amended by Law no. 4126 of 27 October 1995, which came into force on 30 October 1995 (see paragraph 20 below). The relevant sub-sections of sections 6 and 8 provide:
“It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target.”
“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.”
20. Among the amendments it makes to section 8 of Law no. 3713 with regard to minimum and maximum sentences (see paragraph 19 above), the Law of 27 October 1995 contains a “temporary provision relating to section 2” worded as follows:
“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.
21. The relevant parts of section 5 of the Execution of Sentence 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…”
22. The relevant provisions of the Code of Criminal Procedure concerning the admissible grounds for appeals on points of law against judgments at first instance are worded 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;
…”
23. The Government supplied copies of six decisions given by the prosecutor attached to the Istanbul 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) and of five others withdrawing charges against persons suspected of disseminating separatist propaganda against the indivisible unity of the State (section 8 of the Prevention of Terrorism Act (Law no.3713)). In three of these cases where the offences had been committed by means of publications, the prosecutor based his decision on the fact that there was no evidence of some of the constituent elements of the offence.
Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the the above-mentioned offences had been found not guilty. These were the judgments of 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); and 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no. 1998/56), 21 April (no. 1998/ 87) and 17 June 1998 (no. 1998/133). In the judgments against the authors of works dealing with the Kurdish problem, the National Security Courts reached their decisions on account of the absence of “propaganda”, a constituent element of the offence.
VIOLATED_ARTICLES: 10