ITEMID: 001-98692
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DOKIĆ v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. Flats represented nearly 20% of the pre-war housing stock of Bosnia and Herzegovina (around 250,000 housing units out of 1,315,000). By local standards, they were a particularly attractive type of home, equipped with modern conveniences and located in urban centres. Practically all flats were under the regime of “social ownership” – a concept which, while it does exist in other countries, was particularly highly developed in the former Socialist Federal Republic of Yugoslavia (“the SFRY”). They were generally built by socially owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. All citizens of the SFRY were required to pay a means-tested contribution to subsidise housing construction. However, the amount an individual had contributed was not amongst the legal criteria taken into account in the waiting lists for allocation of such flats.
6. The rights of both the allocation right holders (public bodies which nominally controlled the flats) and the occupancy right holders were regulated by law (the Housing Act 1984, which is still in force in Bosnia and Herzegovina). In accordance with this Act, an occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a nominal fee. When occupancy right holders died, their rights transferred, as a matter of right, to their surviving spouses (indeed, spouses held occupancy rights in common) or registered members of their family households who were also using the flat (sections 19 and 21 of this Act). In practice, these provisions on transfer meant that occupancy rights originally allocated by public bodies to their employees could pass, as of right, to multiple generations for whom the initial employment-based link to the allocation right holder no longer existed. Occupancy rights could be cancelled only in court proceedings (section 50 of this Act) on limited grounds (sections 44, 47 and 49 of this Act), the most important of which was failure by the occupancy right holders to physically use their flats for their own housing needs for a continuous period of at least six months, without justified grounds (such as, military service, medical treatment, prison sentence, or temporary work elsewhere in the SFRY or abroad). Although inspections were foreseen to ensure compliance with this requirement (section 42 of this Act), occupancy rights were rarely, if ever, cancelled on these grounds prior to the 1992-95 war. Moreover, on 24 December 1992 the Constitutional Court of the Republic of Bosnia and Herzegovina annulled the inspection provisions.
7. Following its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. More than 2.2 million people left their homes as a consequence of “ethnic cleansing” or generalised violence. As a rule, they fled to areas controlled by their own ethnic groups. All parties to the conflict quickly adopted procedures allowing the flats of those who had fled the territory under their control to be declared “abandoned” and allocated to new occupancy right holders. While the alleged rationale for the allocation of “abandoned” properties was to provide humanitarian shelter to displaced persons, particularly attractive properties – typically urban flats – were commonly awarded to the military and political elites. In some cases, occupancy rights were cancelled pursuant to the aforementioned section 47 of the Housing Act 1984, because of failure by the occupancy right holders to use their flats for a continuous period of at least six months. In most cases, however, the authorities applied legislation specially enacted for those purposes: the Abandoned Flats Act 1992, the Abandoned Flats Decree 1993, the Refugee Accommodation Decree 1993, the Refugee Accommodation Act 1995 and the Abandoned Property Act 1996.
8. The concept of “social ownership” was abandoned during the 1992-95 war . As a result, socially owned flats were effectively nationalised.
9. On 14 December 1995 the General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Peace Agreement”) entered into force. Pursuant to that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. In the immediate aftermath of the war, legislation on abandoned property remained in force in both Entities and reallocation of flats continued nearly unabated, which further reinforced ethnic separation.
10. All such legislation was repealed in 1998 under international pressure. Initially, however, in the Federation of Bosnia and Herzegovina only those who could prove that they were genuine refugees or displaced persons were entitled to return to their pre-war homes (former section 3(2) of the Restitution of Flats Act 1998). The vague terms of this provision left broad discretion to the housing authorities and reportedly led to abuses. The High Representative therefore repealed it in July 1999. Nevertheless, as a result of strong resistance of the military of the Federation of Bosnia and Herzegovina (see decision CH/97/60 et al. of the Human Rights Chamber of 7 December 2001, § 56), a similar restriction remained in force as regards military flats (section 3a of this Act). While this was done on the pretext of creating a pool of flats which could be used to house destitute war veterans and their families, the domestic Human Rights Chamber held that there was no evidence that the property was necessarily being used for this stated purpose (see, for example, its decision CH/97/60 et al. of 7 December 2001, § 154). The Organisation for Security and Cooperation in Europe maintained, in its third-party submissions to that Chamber, that many high-ranking military officials in the Federation of Bosnia and Herzegovina whose housing needs were otherwise met had nevertheless been allocated military flats, in direct contravention of domestic legislation, and that the Ministry of Defence of the Federation of Bosnia and Herzegovina had almost 2,000 unclaimed military flats at its disposal to pursue the legitimate aim of housing war veterans without the need to reach out for claimed ones (see decision CH/02/8202 et al. of the Human Rights Chamber of 4 April 2003, § 121; see also the High Representative's submissions in decision CH/97/60 et al. of the Human Rights Chamber of 7 December 2001, § 61).
11. The JNA, the armed forces of the SFRY, nominally controlled around 16,000 flats in Bosnia and Herzegovina until the 1992-95 war.
12. On 6 January 1991 the JNA members were offered the opportunity to purchase their flats at a discount on their market value (see the Military Flats Act 1990). On 18 February 1992 Bosnia and Herzegovina put on hold the sale of military flats on its territory (see the Suspension on the Sale of Flats Decree 1992). The Decree was respected in what is today the Federation of Bosnia and Herzegovina, and those who had purchased military flats located in that Entity could not register their ownership and remained, strictly speaking, occupancy right holders (a purchase contract does not of itself transfer title to the buyer under domestic law). Since the Decree was ignored in what is today the Republika Srpska, those who had purchased military flats in that Entity became their registered owners.
13. During the war, the local armed forces (namely, the ARBH, HVO and VRS forces) assumed the nominal control of all non-privatised military flats on the territory under their respective control. Although on 1 January 2006 those forces merged into the armed forces of Bosnia and Herzegovina, non-privatised military flats are still under the nominal control of the Entities (see “Relevant domestic law and practice” below).
14. The dissolution of the SFRY was a gradual process which took place in 1991/92 (see Opinion No. 11 of the Arbitration Commission of the International Conference on the Former Yugoslavia of 16 July 1993). Bosnia and Herzegovina declared its independence on 6 March 1992. It was recognised by the European Community and the United States on 7 April 1992 and admitted to membership of the United Nations on 22 May 1992.
15. On 15 May 1992 the United Nations Security Council, acting under Chapter VII of the United Nations Charter, demanded that all units of the JNA and all elements of the Croatian Army either be withdrawn from Bosnia and Herzegovina, or be subject to the authority of the Government of Bosnia and Herzegovina, or be disbanded and disarmed with their weapons placed under effective international monitoring (see Resolution 757). While the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the United Nations Secretary General and the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990s, later established that JNA members born in Bosnia and Herzegovina actually remained there with their equipment and joined the VRS forces and only those born in Serbia and Montenegro left and joined the VJ forces (see the United Nations Secretary General's report of 3 December 1992, A/47/747, § 11, and the ICTY judgment in the Tadić case, IT-94-1-A, § 151, 15 July 1999).
16. The ICTY has also held that the VRS forces were to be regarded as acting under the overall control of and on behalf of the Federal Republic of Yugoslavia and that hence, even after 19 May 1992, the armed conflict in Bosnia and Herzegovina between the local Serbs and the central authorities of Bosnia and Herzegovina must be classified as an international armed conflict (see the ICTY judgment in the Tadić case, IT-94-1-A, §§ 146-62, 15 July 1999, and the ICTY judgment in the Čelebići case, IT-96-21-A, §§ 34-51, 20 February 2001). It has arrived at a similar conclusion as regards the relationship between neighbouring Croatia and the HVO forces (see the ICTY judgments in the Blaškić case, IT-95-14-T, §§ 95-123, 3 March 2000, and IT-95-14-A, §§ 167-78, 29 July 2004).
17. The International Court of Justice (“the ICJ”), the principal judicial organ of the United Nations, has arrived at a different conclusion in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) case. It held that despite much evidence of direct and indirect participation by the VJ forces, along with the VRS forces, in military operations in Bosnia and Herzegovina, the acts of those who committed genocide at Srebrenica cannot be attributed to the Federal Republic of Yugoslavia under the rules of international law of State responsibility (see the judgment of 26 February 2007, §§ 377-415).
18. The applicant was born in Serbia in 1960. He lives in Niš, Serbia.
19. Being a lecturer at a military school in Sarajevo, the applicant was allocated a military flat there in 1986.
20. On 9 March 1992 he bought the flat pursuant to the Military Flats Act 1990. Although he had paid the full purchase price on 18 February 1992 (in the amount of 379,964 Yugoslav dinars), the local authorities refused to register his title (see paragraph 12 above).
21. On 18 April 1992 the military school was transferred from Bosnia and Herzegovina to Serbia (initially to Sombor and then to Niš). On 19 May 1992 the applicant decided to leave Bosnia and Herzegovina and to continue lecturing at the same military school.
22. On 17 August 1998 the applicant made an application for the restitution of his flat in Sarajevo. On 30 March 2000 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998.
23. On 17 July 2000 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 30 March 2000.
24. On 21 May 2001 the applicant lodged an application with the Human Rights Chamber, a domestic human-rights body. He relied on Articles 6, 8 and 14 of, and Article 1 of Protocol No. 1 to, the Convention.
25. On 25 April 2002 the Sarajevo Cantonal Court, on an application for judicial review, quashed the administrative decisions of 30 March and 17 July 2000 for procedural reasons and remitted the case for reconsideration.
26. On 9 July 2002 the restitution commission set up by Annex 7 to the Dayton Peace Agreement, before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7 and declined jurisdiction.
27. On 12 November 2002 the competent housing authorities refused once again the applicant's application for restitution pursuant to section 3a of the Restitution of Flats Act 1998.
28. On 12 September 2003 the competent Ministry of the Sarajevo Canton upheld the first-instance decision of 12 November 2002.
29. On 26 November 2003 the applicant lodged an application for judicial review. On 22 June 2004 the Sarajevo Cantonal Court stayed the proceedings under an instruction from the legislature of the Federation of Bosnia and Herzegovina.
30. On 28 December 2005 the Ministry of Defence of the Federation of Bosnia and Herzegovina formally allocated the disputed flat to Dž.K., a former member of the ARBH forces. It would appear, however, that Dž.K. had lived in that flat even before, since 25 April 2000.
31. On 8 March 2006 the Human Rights Commission (which had succeeded the Human Rights Chamber in 2004) found a violation of Article 6 of the Convention because of the length of the restitution proceedings and awarded the applicant 2,100 convertible marks for non-pecuniary damage in this connection. Having established the excessive length of the restitution proceedings, the Human Rights Commission held that they did not constitute an effective remedy which would have to be used as a condition for the examination of the applicant's substantive complaints. In accordance with domestic jurisprudence, it considered that although the purchase contract of 9 March 1992 had not of itself transferred title to the impugned flat to the applicant, it had conferred on him valuable personal rights (that is, the rights to occupy the flat and to be registered as owner) amounting to “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. The Human Rights Commission further held that the situation complained of (that is, the applicant's inability to repossess the flat and to register his title to it) undoubtedly amounted to a continuing interference with the peaceful enjoyment of his “possessions”. While assessing the proportionality of the interference, the Human Rights Commission held that the applicant's service in the VJ forces after the 1992-95 war demonstrated his disloyalty to Bosnia and Herzegovina. Taking into consideration also the serious shortage of housing units and compensation to which the applicant was entitled, the Human Rights Commission concluded that the interference was justified. It therefore found no violation of Article 1 of Protocol No. 1 to the Convention and considered it to be unnecessary to examine the discrimination and Article 8 complaints.
32. On 30 August 2006 the Supreme Court of the Federation of Bosnia and Herzegovina quashed the decision of 22 June 2004 and remitted the case to the Sarajevo Cantonal Court for reconsideration.
33. On 19 December 2006 the Sarajevo Cantonal Court upheld the administrative decision of 12 September 2003.
34. The applicant has not been allocated a flat in Serbia, but receives from the Serbian authorities a rent allowance in the monthly amount of approximately 100 euros (EUR). It would appear that he has not applied for compensation pursuant to section 39e of the Privatisation of Flats Act 1997 (see paragraph 37 below).
35. On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void. As explained in paragraph 12 above, this affected flats in the Federation of Bosnia and Herzegovina only.
36. On 3 November 1997 the domestic Human Rights Chamber held that a contract to purchase a military flat, although it had not of itself transferred title to the buyer, conferred on the buyer valuable property rights (that is, the rights to occupy the flat and to be registered as owner) which constituted “possessions” for the purposes of Article 1 of Protocol No. 1 to the Convention. It then found a breach of that Article and ordered the Federation of Bosnia and Herzegovina to restore the legal validity of all such contracts (decision CH/96/3 et al.).
37. On 5 July 1999 the Federation of Bosnia and Herzegovina amended the Privatisation of Flats Act 1997 and the Restitution of Flats Act 1998. While all such contracts have since been regarded as legally valid, two categories of buyers are not entitled to repossess their flats and to register their title (see section 39e of the Privatisation of Flats Act 1997 and section 3a of the Restitution of Flats Act 1998). First, those who served in foreign armed forces after the 1992-95 war. Since those who were granted a refugee or equivalent status in a country outside the former SFRY are exempted, the restriction affects only those who served in the forces of the successor States of the SFRY and, in reality, almost exclusively those who served in the VJ forces referred to in paragraph 15 above. The second category is those who acquired an occupancy or equivalent right to a military flat in a successor State of the SFRY. At present, people falling into those categories are only entitled to the refund of the amount paid for their flats in 1991/92 plus interest at the rate applicable to overnight deposits (see section 39e of the Privatisation of Flats Act 1997, as amended on 11 July 2006). Previously the compensation was calculated differently: the value of a flat was to first be calculated at a rate of approximately EUR 300 per square metre, the age of the flat was to then be taken into consideration with the depreciation of 1% of its value for each year.
38. On 7 December 2001 the Human Rights Chamber considered the amended legislation to still be discriminatory and in conflict with Article 1 of Protocol No. 1 to the Convention. It ordered the Federation of Bosnia and Herzegovina to register the applicants as owners, regardless of their service in foreign armed forces (decision CH/97/60 et al.). The relevant part of that decision (§ 164) reads as follows:
“It could potentially be reasonable and necessary to bar persons serving in a foreign army from the exercise of certain rights; however service in a foreign army is not a basis for stripping a person of an otherwise valid property contract.”
The Human Rights Commission, which had succeeded the Human Rights Chamber in 2004, followed that approach in decisions CH/98/514 of 7 July 2004 and CH/99/1704 of 1 November 2004, but on 9 February 2005 it decided to depart from that jurisprudence (decision CH/98/874 et al.). It regarded those who had served in foreign armed forces after the 1992-95 war as disloyal to Bosnia and Herzegovina and held that it was hence justified to strip them of their purchase contracts. The same approach has subsequently been applied in numerous follow-up cases.
39. On 27 June 2007 the Human Rights Commission held in a similar case (also concerning the purchase of a socially owned flat before the 1992-95 war which had not been followed by the registration of ownership) that a legally valid purchase contract, although it had not of itself transferred title to the buyer, conferred on the buyer valuable property rights (notably the right to be registered as owner) which constituted “possessions” for the purposes of Article 1 of Protocol No. 1 to the Convention (see decision CH/03/13106 and CH/103/13402 of 27 June 2007).
40. On 9 July 2009 the Supreme Court of the Federation of Bosnia and Herzegovina held that a tenancy right of limited duration on a military flat in Serbia should not be regarded as equivalent to occupancy right for the purposes of the restitution legislation.
41. Since 2 August 1992 it has no longer been possible to acquire occupancy rights in Serbia (see section 30(1) of the Housing Act 1992). From that date until 14 December 2004 members of the armed forces had the opportunity to acquire a tenancy right of unlimited duration on a military flat. Since 14 December 2004 they have only had the right to acquire a tenancy right of limited duration.
42. The Dayton Peace Agreement was initialled at a military base near Dayton, the United States, on 21 November 1995. It entered into force on 14 December 1995 when it was signed in Paris, France. It put an end to the 1992-95 war in Bosnia and Herzegovina.
The relevant part of Annex 4 (the Constitution of Bosnia and Herzegovina) reads as follows:
“All refugees and displaced persons have the right freely to return to their homes of origin. They have the right, in accordance with Annex 7 to the General Framework Agreement, to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void.”
The relevant part of Annex 7 (the Agreement on Refugees and Displaced Persons) provides:
“All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina. The Parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries.”
“Any returning refugee or displaced person charged with a crime, other than a serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the Former Yugoslavia since January 1, 1991 or a common crime unrelated to the conflict, shall upon return enjoy an amnesty. In no case shall charges for crimes be imposed for political or other inappropriate reasons or to circumvent the application of the amnesty.”
43. The Agreement on Succession Issues was the culmination of nearly ten years of intermittent negotiations under the auspices of the International Conference on the former Yugoslavia and the High Representative (appointed pursuant to Annex 10 to the Dayton Peace Agreement). It entered into force between Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia), “the former Yugoslav Republic of Macedonia” and Slovenia on 2 June 2004. The provision concerning occupancy rights reads as follows:
“Domestic legislation of each successor State concerning dwelling rights ('stanarsko pravo/ stanovanjska pravica/ станарско право') shall be applied equally to persons who were citizens of the SFRY and who had such rights, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
44. The relevant principles, endorsed by the United Nations Sub-Commission on the Promotion and Protection of Human Rights in 2005 (E/CN.4/Sub.2/2005/17), are the following:
“1.1 The Principles on housing and property restitution for refugees and displaced persons articulated herein are designed to assist all relevant actors, national and international, in addressing the legal and technical issues surrounding housing, land and property restitution in situations where displacement has led to persons being arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence.
1.2 The Principles on housing and property restitution for refugees and displaced persons apply equally to all refugees, internally displaced persons and to other similarly situated displaced persons who fled across national borders but who may not meet the legal definition of refugee (hereinafter 'refugees and displaced persons') who were arbitrarily or unlawfully deprived of their former homes, lands, properties or places of habitual residence, regardless of the nature or circumstances by which displacement originally occurred.”
“2.1 All refugees and displaced persons have the right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.
2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to housing, land and property restitution.
“7.1 Everyone has the right to the peaceful enjoyment of his or her possessions.
7.2 States shall only subordinate the use and enjoyment of possessions in the public interest and subject to the conditions provided for by law and by the general principles of international law. Whenever possible, the 'interest of society' should be read restrictively, so as to mean only a temporary or limited interference with the right to peaceful enjoyment of possessions.”
“16.1 States should ensure that the rights of tenants, social-occupancy rights holders and other legitimate occupants or users of housing, land and property are recognized within restitution programmes. To the maximum extent possible, States should ensure that such persons are able to return to and repossess and use their housing, land and property in a similar manner to those possessing formal ownership rights.”
“21.1 All refugees and displaced persons have the right to full and effective compensation as an integral component of the restitution process. Compensation may be monetary or in kind. States shall, in order to comply with the principle of restorative justice, ensure that the remedy of compensation is only used when the remedy of restitution is not factually possible, or when the injured party knowingly and voluntarily accepts compensation in lieu of restitution, or when the terms of a negotiated peace settlement provide for a combination of restitution and compensation.
21.2 States should ensure, as a rule, that restitution is only deemed factually impossible in exceptional circumstances, namely when housing, land and/or property is destroyed or when it no longer exists, as determined by an independent, impartial tribunal. Even under such circumstances the holder of the housing, land and/or property right should have the option to repair or rebuild whenever possible. In some situations, a combination of compensation and restitution may be the most appropriate remedy and form of restorative justice.”
45. The relevant part of the Resolution reads as follows:
“...
9. In the light of the above, the Assembly calls on member states to resolve post-conflict housing, land and property rights issues of refugees and IDPs, taking into account the Pinheiro Principles, the relevant Council of Europe instruments, and Recommendation Rec(2006)6 of the Committee of Ministers.
10. Bearing in mind these relevant international standards and the experience of property restitution and compensation programmes carried out in Europe to date, member states are invited to:
...
10.4. ensure that previous occupancy and tenancy rights with regard to public or social accommodation or other analogous forms of home ownership which existed in former communist systems are recognised and protected as homes in the sense of Article 8 of the European Convention on Human Rights and as possessions in the sense of Article 1 of the First Protocol to the Convention;
10.5. ensure that the absence from their accommodation of holders of occupancy and tenancy rights who have been forced to abandon their homes shall be deemed justified until the conditions that allow for voluntary return in safety and dignity have been restored;
...”


ITEMID: 001-103951
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF OTEGI MONDRAGON v. SPAIN
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - claim dismissed;Non pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 6. The applicant was born in 1956. At the time the application was lodged he lived in Elgoibar (Gipuzkoa).
7. At the time of the events, the applicant was spokesperson for Sozialista Abertzaleak, a left-wing Basque separatist parliamentary group in the Parliament of the Autonomous Community of the Basque Country.
8. On 21 February 2003, following an order issued by central investigating judge no. 6 of the Audiencia Nacional, the premises of the daily newspaper Euskaldunon Egunkaria were searched and then closed, on account of the newspaper’s alleged links with the terrorist organisation ETA. Ten persons were arrested, including the newspaper’s senior managers (members of the board and the editor-in-chief). After spending five days in secret detention the persons concerned complained that they had been subjected to ill-treatment in police custody.
9. On 26 February 2003 the President of the Autonomous Community of the Basque Country received the King of Spain at the opening of an electricity power station in the province of Biscay.
10. At a press conference held the same day in San Sebastián, the applicant, as spokesperson for the Sozialista Abertzaleak parliamentary group, outlined his group’s political response to the situation concerning the newspaper Euskaldunon Egunkaria. Replying to a journalist he said, with reference to the King’s visit to the Basque Country, that “it [was] pathetic”, adding that it was “a genuine political disgrace” for the President of the Autonomous Community of the Basque Country to be inaugurating the project with Juan Carlos of Bourbon and that “their picture [was] worth a thousand words”. He went on to say that inaugurating a project with the King of the Spaniards, who was the Supreme Head of the Civil Guard (Guardia Civil) and the Commander-in-Chief of the Spanish armed forces, was absolutely pitiful. Speaking about the police operation against the newspaper Euskaldunon Egunkaria, he added that the King was in charge of those who had tortured the persons detained in connection with the operation. He spoke in the following terms:
“How is it possible for them to have their picture taken today in Bilbao with the King of Spain, when the King is the Commander-in-Chief of the Spanish army, in other words the person who is in charge of the torturers, who defends torture and imposes his monarchical regime on our people through torture and violence?”
11. On 7 April 2003 the public prosecutor lodged a criminal complaint against the applicant for “serious insult against the King” within the meaning of Article 490 § 3 of the Criminal Code read in conjunction with Article 208, on account of his remarks made on 26 February 2003.
12. In the proceedings before the Basque Country High Court of Justice, which had jurisdiction to try the applicant because of his status as a member of parliament, the applicant argued that his remarks had constituted political criticism directed against the Head of the government of the Basque Country. He added that to say that the King of Spain was the Supreme Head of the Civil Guard did not imply any intention to undermine dignity or honour; it was merely a statement of the political reality in the Spanish State, where the King exercised supreme command over the armed forces. The applicant further argued that there was no insult or attempt to dishonour in saying that the Civil Guard had tortured the persons detained in connection with the closure of the newspaper Euskaldunon Egunkaria because that was the reality, and proceedings had been instituted in that connection before the Madrid investigating judge no. 5. Numerous public figures had also commented on the subject. In sum, the applicant, as a politician, had sought to express political criticism in the context of freedom of expression, one of the foundations of the rule of law and democracy. He pointed out in that regard that politicians had greater freedom of manoeuvre when it came to informing society about matters of public interest.
13. In a judgment of 18 March 2005, the High Court of Justice found the applicant not guilty of the charges against him. After stating that his remarks had been “clearly offensive, improper, unjust, ignominious and divorced from reality”, the court found as follows:
“... This is not an issue concerning the private life of the Head of State but one of rejection of the ties of political power deriving from the hereditary nature of the institution which he personally symbolises. ... [C]riticism of a constitutional institution is not excluded from the scope of the right to freedom of expression; in this case the latter has the status of a constitutional right which takes precedence over the right to honour. The Constitution does not guarantee the right to freedom of expression solely in relation to certain points of view that are considered correct, but in relation to all ideas, subject to the limits which it lays down ...”
14. The High Court of Justice summed up as follows:
“[T]he [applicant’s] remarks were made in a public, political and institutional setting, regard being had not only to the speaker’s status as a member of parliament but also to the authority to which they were addressed, namely the State’s highest judicial authority, and to the context of political criticism of the [Head of the government of the Basque Country] for his official hospitality in receiving His Majesty King Juan Carlos I in the wake of the closure of the newspaper [Euskaldunon] Egunkaria and the detention of its senior managers, and the latter’s public allegations of illtreatment. This context is therefore unconnected to the innermost core of individual dignity protected by law from any interference by third parties.”
15. The public prosecutor lodged an appeal on points of law, arguing firstly that the law protected the honour of the King as a specific individual possessed of personal dignity, who had been the object of the offence of insult, and secondly that the law was aimed at ensuring respect for the symbolic content of the institution of the Crown as established by the Spanish Constitution and “represented by the Head of State, the symbol of its unity and permanence”. The seriousness of the offence could be inferred from the fact that the legislature had sought to afford increased protection to the dignity of the King, including vis-à-vis other public authorities (Articles 496 and 504 of the Criminal Code). Furthermore, the inviolability of the King, as proclaimed in Article 56 § 3 of the Constitution, demonstrated the unique position occupied by the Crown in the system of the 1978 Spanish Constitution. That constitutional position highlighted the disproportionate nature of the vexatious and insulting remarks made by the applicant. In the view of the public prosecutor, who referred several times to the case-law of the Strasbourg Court, it was clear that the King had been performing official duties and that he was a figure in the public eye; however, that did not deprive him of the right to respect for his honour. In that regard, the public prosecutor pointed out that Article 20 § 1 (a) of the Constitution did not protect a supposed right to proffer insults. Drawing a parallel with the special protection to be afforded under Article 10 § 2 of the Convention to the judiciary, the public prosecutor further argued that the same protection should be afforded to the Head of State, who was the “symbol of the unity and permanence of the State” and was above party politics, from the “destructive and baseless attack” constituted by the applicant’s remarks. Lastly, in the public prosecutor’s view, the applicant’s remarks could be said to amount to “hate speech” within the meaning of the Court’s caselaw, given the existing situation with regard to terrorist attacks.
16. In two judgments delivered on 31 October 2005, the Supreme Court set aside the judgment of the lower court, making several references to the Court’s case-law. It sentenced the applicant to one year’s imprisonment, suspended his right to stand for election for the duration of the sentence and ordered him to pay costs and expenses, on the ground of his criminal liability for the offence of serious insult against the King. The Supreme Court considered the impugned remarks to have been value judgments rather than statements of fact. The remarks, described as “ignominious” by the lower court, had expressed contempt for the King and the institution he represented, affecting the innermost core of his dignity by accusing him of one of the most serious manifestations of criminal conduct in a State governed by the rule of law. The exercise of the right to freedom of expression had therefore been contrary to the principle of proportionality and had been unnecessary, overstepping the limits beyond which criticism could be deemed to be hurtful or upsetting. The Supreme Court further observed that the context in which the remarks had been made did nothing to alter their offensiveness. Firstly, the proceedings relating to the complaints of ill-treatment of the persons detained in connection with the operation against the newspaper Euskaldunon Egunkaria had been discontinued for lack of evidence. Secondly, the impugned remarks could not be construed as a reaction or response to a political debate with the King. In view of the seriousness of the insulting comments and the fact that the applicant had deliberately expressed them in public, the Supreme Court sentenced him to one year’s imprisonment.
17. Judge P.A.I. issued a dissenting opinion in which he argued that the comments complained of had been of a political nature, in view of the applicant’s status as a member of parliament and the context in which they had been made, namely the King’s visit to the Basque Country and the attitude of the Head of the government of the Basque Country in that regard. The judge agreed with the Basque Country High Court of Justice that the remarks had not targeted the King’s private life or his personal honour but had been directed solely at his institutional role as Commander-in-Chief of the Spanish armed forces. The applicant had not claimed that the King was responsible for actual acts of torture, only that he was strictly liable as Head of the State apparatus. The judge pointed out that the limits of freedom of expression were wider with regard to institutions since the latter did not possess honour, an attribute that was confined to individuals.
18. The applicant lodged an amparo appeal with the Constitutional Court alleging, inter alia, a breach of his right to freedom of expression (Article 20 § 1 (a) of the Constitution) and of his right to freedom of ideas (Article 16 of the Constitution).
19. In the applicant’s view, the Supreme Court’s judgment had incorrectly weighed the competing interests at stake, as the comments complained of had not contained any insulting or vexatious expressions, had been directed principally against the President of the Autonomous Community of the Basque Country rather than the King of Spain and, in any event, had reflected the reality of the situation and had not referred to the King’s private life or his attitudes. The statements in question had not been disproportionate in the context in which they had been uttered, namely the warm welcome extended to the King of Spain by the government of the Basque Country in the wake of the closure of the daily newspaper Euskaldunon Egunkaria and, in connection with that closure, the detention of several individuals who had stated before the courts and the Basque Parliament that they had been tortured.
20. In a decision (auto) of 3 July 2006, served on 11 July 2006, the Constitutional Court declared the applicant’s amparo appeal inadmissible as manifestly devoid of constitutional content. The Constitutional Court noted at the outset that the right to freedom of expression did not encompass a right to proffer insults. It pointed out in that connection that the Constitution did not prohibit the use of hurtful expressions in all circumstances. However, freedom of expression did not protect vexatious expressions which, regardless of their veracity, were offensive and ignominious and were not pertinent for the purpose of conveying the opinions or information in question.
21. The Constitutional Court considered that the weighing of the competing rights at stake had been carried out in an appropriate manner by the Supreme Court, as the latter had concluded that the impugned remarks had been disproportionate, while taking into account the context in which they had been made, the public nature of the act, the public interest in the subject in question (the use of torture) and the fact that the persons targeted (a politician and the King) were public figures. In the Constitutional Court’s view, there was no denying the ignominious, vexatious and derogatory nature of the impugned remarks, even when directed against a public figure. That finding was all the more valid with regard to the King, who, by virtue of Article 56 § 3 of the Constitution, was “not liable” and was a “symbol of the unity and permanence of the State”. Regard being had to his role as “arbitrator and moderator of the lawful functioning of institutions”, the King occupied a neutral position in political debate. This implied that he was owed institutional respect of a kind that was “substantively” different from that due to other State institutions. The Constitutional Court stated as follows:
“... [I]n a democratic system which recognises freedom of ideas and freedom of expression, the fact that [the figure of the King] is characterised in this way does not shield him from all criticism ‘in the exercise of his duties or on account of or in connection with them’ ...; however, such criticism may not extend to attributing acts of public authority to the King – which, as indicated above, is prohibited by the Constitution – as a pretext for gratuitous attacks on his dignity or public esteem.”
22. Lastly, the Constitutional Court held that the applicant’s remarks, on account of their obviously derogatory nature, had clearly gone beyond what could be considered legitimate. It agreed with the Supreme Court that the remarks had expressed open contempt for the King and the institution he embodied, affecting the essential core of his dignity. Hence, such statements could manifestly not fall within the exercise of the right to freedom of expression.
23. In a decision (auto) of 15 May 2006, the Basque Country High Court of Justice ordered that enforcement of the applicant’s sentence be stayed for three years. According to the Government, his sentence was remitted on 16 July 2009.
24. The applicant was imprisoned on 8 June 2007 after the Supreme Court upheld a judgment of the Audiencia Nacional of 27 April 2006 sentencing him to fifteen months’ imprisonment for publicly defending terrorism.
25. He is currently in pre-trial detention in connection with other criminal proceedings.
26. The relevant provisions of the Spanish Constitution read as follows:
“Spaniards shall be equal before the law; they may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.”
“1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law.
...”
“1. The following rights shall be recognised and protected:
(a) the right freely to express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction;
...
2. The exercise of these rights may not be restricted by any prior censorship.
...
4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children.
...”
“1. The King shall be the Head of State, the symbol of its unity and permanence. He shall be the arbitrator and moderator of the lawful functioning of institutions. He shall be the supreme representative of the Spanish State in its international relations, in particular with those nations belonging to its historic community, and shall exercise the functions expressly attributed to him by the Constitution and the law.
...
3. The King shall be inviolable and shall not be liable. ...”
“It shall be incumbent on the King to:
...
(h) exercise supreme command over the armed forces;
(i) exercise the right of clemency in accordance with the law, but without the power to grant general pardons
...”
27. The relevant provisions of the Criminal Code (as amended by Institutional Act no. 10/1995 of 23 November 1995) read as follows:
“Acts or expressions which undermine another’s dignity by attacking his or her reputation or self-esteem shall constitute insult.
Only insults which, by virtue of their nature, effects and context, are generally acknowledged to be serious shall constitute an offence ...”
“The offence of serious public insult shall be punishable by a day-fine payable for between six and fourteen months. Where the insult is not proffered publicly, the fine shall be payable for between three and seven months.”
28. With regard to the offence of insult against the King, Article 490 of the Criminal Code provides for the penalties indicated below:
“...
3. Anyone who falsely accuses or insults the King or any of his ascendants or descendants, the Queen consort or the consort of the Queen, the Regent or any member of the Regency, or the Crown Prince, in the exercise of his or her duties or on account of or in connection with them, shall be liable to a term of imprisonment of between six months and two years if the false accusation or insult is of a serious nature, and otherwise to a day-fine payable for between six and twelve months.”
This provision is contained in Title XXI of Book II of the Criminal Code (“Offences against the Constitution”), under Chapter II (“Offences against the Crown”).
29. Articles 496 and 504 of the Criminal Code deal with the offence of serious insult against Parliament, the government or other State institutions. These provisions feature in Title XXI of Book II of the Criminal Code (“Offences against the Constitution”), under Chapter III (“Offences against State institutions and the separation of powers”).
“Anyone who seriously insults the Cortes Generales [Congress of Deputies and Senate] or the legislative assembly of an Autonomous Community ... shall be liable to a day-fine payable for between twelve and eighteen months ...”
“Anyone who seriously threatens, falsely accuses or insults the nation’s government, the General Council of the Judiciary, the Constitutional Court, the Supreme Court, or the Governing Council or High Court of Justice of an Autonomous Community shall be liable to a day-fine payable for between twelve and eighteen months ...”
30. Reference should first be made to the Declaration on freedom of political debate in the media adopted by the Committee of Ministers of the Council of Europe on 12 February 2004, which provides:
“The Committee of Ministers of the Council of Europe,
...
Conscious that some domestic legal systems still grant legal privileges to political figures or public officials against the dissemination of information and opinions about them in the media, which is not compatible with the right to freedom of expression and information as guaranteed by Article 10 of the Convention;
...
II. Freedom to criticise the State or public institutions
The State, the government or any other institution of the executive, legislative or judicial branch may be subject to criticism in the media. Because of their dominant position, these institutions as such should not be protected by criminal law against defamatory or insulting statements. Where, however, these institutions enjoy such a protection, this protection should be applied in a restrictive manner, avoiding in any circumstances its use to restrict freedom to criticise. Individuals representing these institutions remain furthermore protected as individuals.
...
VI. Reputation of political figures and public officials
Political figures should not enjoy greater protection of their reputation and other rights than other individuals, and thus more severe sanctions should not be pronounced under domestic law against the media where the latter criticise political figures. ...
...
VIII. Remedies against violations by the media
Political figures and public officials should only have access to those legal remedies against the media which private individuals have in case of violations of their rights by the media. ... Defamation or insult by the media should not lead to imprisonment, unless the seriousness of the violation of the rights or reputation of others makes it a strictly necessary and proportionate penalty, especially where other fundamental rights have been seriously violated through defamatory or insulting statements in the media, such as hate speech.”
31. Parliamentary Assembly Resolution 1577 (2007), entitled “Towards decriminalisation of defamation”, is worded as follows:
“...
11. [The Assembly] notes with great concern that in many member States the law provides for prison sentences for defamation and that some still impose them in practice – for example, Azerbaijan and Turkey.
...
13. The Assembly consequently takes the view that prison sentences for defamation should be abolished without further delay. In particular it exhorts States whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms.
...
17. The Assembly accordingly calls on the member States to:
17.1. abolish prison sentences for defamation without delay;
17.2. guarantee that there is no misuse of criminal prosecutions ...;
17.3. define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation;
...
17.6. remove from their defamation legislation any increased protection for public figures, in accordance with the Court’s case-law ...”
VIOLATED_ARTICLES: 10


ITEMID: 001-22285
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: S.T. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are a mother (the first applicant) and her son (the second applicant). They are both Finnish nationals, born in 1947 and 1984 respectively. They are represented before the Court by Ms A. Suomela of the League for the Protection of the Family (Perheen Suojelun Keskusliitto).
The facts of the case, as submitted by the parties, may be summarised as follows.
G. is the child of Ms S.T.’s marriage to a citizen of Gambia. The marriage ended in 1985. She had sole custody of G. In 1988 the applicants moved from Sweden to Finland. G. apparently started to gain more weight than was average for a child of his age. In 1989 the applicant mother took him to the Aurora Hospital in Helsinki for examinations. It appears that a psychologist there reported G.’s overweight condition to the social authorities, which appointed a support person for the family.
On 19 August 1991 Ms S.T. brought G. in for further examinations at the Aurora Hospital. G. was voluntarily placed in the department for child psychiatry (although it is alleged that this was contrary to Ms S.T.’s wishes). G. reacted strongly to his placement. Ms S.T. allegedly found out at a later stage that the staff was severely punishing children at the hospital. In 1992 she repeatedly requested that G. be discharged, but the staff underlined the importance of his continued hospital care. After the hospital treatment had lasted for a year and a half, the applicant mother demanded that G. be returned home in April 1993.
On 29 March and 7 April 1993 Ms S.T. was informed of a proposal to place G. in public care. According to a written notice, this proposal was to be considered by the local Social Welfare and Health Board (sosiaali- ja terveyslautakunta, social- och hälsovårdsnämnden; hereinafter “the Board”) on 29 April 1993.
On 29 April 1993 the Board placed G. in public care, finding that the applicant mother lacked the resources to set the necessary boundaries for G. and that the applicants had “too close a relationship”. The Board estimated that G.’s public care was likely to last a long time. G. was to be placed in the special children’s home. Ms S.T. appealed to the County Administrative Court (lääninoikeus, länsrätten), complaining that the written notice had referred to the wrong year (1994 and not 1993). She did not appeal against the public care decision as such.
In May 1993 Ms S.T. allegedly discovered that G. had been severely punished by hospital staff as bruises were found on his body. It was G.’s firm wish to go home. The applicant mother’s wish that G. be discharged immediately was refused.
On 7 June 1993 G. was placed in the special unit of the children’s home. On 8 June 1993 the police decided, in the absence of sufficient evidence, to discontinue the investigation initiated as a result of a report made by the applicant mother about the suspected assault on G. at the Aurora Hospital.
On 29 June 1993 the director of the Social Services approved the proposal to modify the substitute care as from 7 June 1993 (G. was transferred from the Aurora Hospital to the children’s home). The applicant mother appealed against this decision, firstly to the Board and then to the County Administrative Court. She did not appeal to the County Administrative Court against the Board’s later decision of 19 August 1993 upholding the director’s decision.
On 15 July 1993 the County Administrative Court, without holding an oral hearing, rejected the applicant mother’s appeal against the decision of 29 April 1993 to place G. in public care. The court found that Ms S.T. and her representative had both been informed orally before the Board’s meeting that the written notice had been incorrect and that the Board would consider the matter on 29 April 1993. The court upheld the Board’s decision, stating, inter alia, the following:
“The shortcomings in the care of G., especially taking into account his illness, are seriously threatening his health and further development. The mother is not able to take care of his upbringing at the present time. The open care measures have proved to be insufficient. The public care is found to be in the interest of the child. The Board has, thus, been obliged to take G. into public care and to organise his substitute care.”
The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen).
Ms S.T.’s sister and brother-in-law then informed the social workers in charge of the case that they could care for G. in their home so as to avoid his placement in a children’s home. They were well-off and had a big house with a separate flat which could be used by the applicants. The request was apparently rejected. In proceedings instituted before the District Court (käräjäoikeus, tingsrätt), Ms S.T’s sister, L.L., and brother-in-law, R.L., requested shared custody of G. together with Ms S.T.
On 19 August 1993 the Board decided to uphold the decision concerning the change of substitute care made by the director on 29 June 1993. As noted earlier, the applicant mother did not appeal to the County Administrative Court against the decision of 19 August 1993.
According to a social worker’s notes from a meeting which she and apparently other social workers had with Ms S.T. on 24 August 1993, Ms S.T. had requested to be allowed to visit G. every day at the children’s home. It had nevertheless been agreed at the meeting that G. would visit his mother at home every second weekend and that the applicant mother would visit him at the children’s home for three hours on three different weekdays and telephone him daily at a certain hour.
The first applicant later alleged that no such agreement had been reached. In a letter of 29 September 1993 she pointed out that the care order had not restricted her access to G. and that she intended to visit him every day.
On 7 October 1993 the Board restricted Ms S.T.’s access to G. until 6 November 1993. She was allowed to receive G. in her home every second weekend, visit him for three hours on three different weekdays and telephone him daily at a certain hour.
On 28 October 1993 the Board prolonged the restriction until 30 April 1994, after having heard the applicant and her legal counsel at its meeting. According to the Board’s decision, G. had a serious overweight condition and eating disorder. It appeared that his mother could not set any boundaries for him as G. had managed to gain three kilos during a one-night visit to his mother’s home. The applicant appealed against the prolonged restriction, requesting an oral hearing. On 10 February 1994 the County Administrative Court rejected the appeal without holding an oral hearing. There is no right of appeal from a County Administrative Court’s decision concerning the restriction of access rights.
On 4 November 1993 the County Administrative Court did not consider the merits of the applicant mother’s appeal concerning the changes made to the substitute care as no appeal is allowed against such decisions.
On 11 February 1994 the director of the Social Services prohibited on a short-term emergency basis the right of access of the applicant mother to G., including telephone contact, until 24 February 1994 as the mother-son relationship was found to be too symbiotic and dependant. Moreover, G. had started to become very aggressive and stressed in anticipation of the visits and phone calls. He had thrown tantrums and acted in a threatening way towards other children and adults. According to the decision, G. had been hospitalised on 9 February 1994 because of his disorderly behaviour. It was considered that G. had to be “removed from his mother’s sphere of influence” and be given “the peace required by his treatment”. G. had to integrate into the children’s home.
A further access prohibition was issued on 24 November 1994 and lasted until 6 December 1994 as G. had again acted so aggressively at the children’s home that a psychiatrist had to be called to visit him. The decision was taken by the director of the Social Services. This was a short-term emergency decision which also prohibited the access of L.L. and R.L. to the child.
On 1 June 1994 the District Court granted the request for the shared custody of G. after having heard, inter alia, the Board. The Board had expressed a negative opinion on the request.
On 13 October 1994 Ms S.T. requested the Board to revoke G.’s public care. She submitted, inter alia, that G. had not received proper care in the children’s home and that she would move to the house of her sister and brother-in-law in order to provide him with optimal care.
During negotiations with the social workers in charge of the case Ms S.T. requested that she be allowed to take G. with her to the Consultation Centre of the Mannerheim Child Welfare League in order to obtain support and therapy. This was allegedly refused. Allegedly, the social authorities also prevented Ms S.T. from taking G. to be examined by a private therapist specialising in the upbringing of children.
On 9 February 1995 the Supreme Administrative Court rejected Ms S.T.’s appeal against the confirmation of the care order. It had obtained written submissions from the Board and a written opinion from the Ministry for Social Welfare and Health Matters. This opinion relied on a written opinion submitted by Dr T., a child and youth psychiatrist of the State Centre for Research and Development in the Social Welfare and Health Field (sosiaali- ja terveysalan tutkimus- ja kehittämiskeskus). Ms S.T. submitted a rejoinder, pointing out, inter alia, that Dr T.’s opinion had been exclusively based on the documents at her disposal and on her own speculations.
In February 1995 G. was moved from the children’s home to the home of his joint custodians, L.L. and R.L., and Ms S.T., but his public care was maintained. Ms S.T. withdrew her request that G.’s public care be revoked.
On 22 June 1995 the head social welfare officer of the Social Services approved the changes to the substitute care as from 1 June 1995 according to the care plan.
On 12 December 1995 the director of the Social Services decided to terminate G.’s public care.
The relevant legislation is outlined in the Court’s judgment of 12 July 2001 in the case of K. and T. v. Finland (no. 25702/94, §§ 94-136, to be published in the Court’s official reports). Those provisions of particular relevance to the present case are described below.
When the need for child welfare is caused primarily by inadequate income, deficient living conditions or lack of housing, or when these factors constitute a serious obstacle to the rehabilitation of a child and family, local authorities must provide adequate financial support without delay, and improve the family’s housing conditions. Open-care assistance includes both general support measures in accordance with the Social Welfare Act (sosiaalihuoltolaki, socialvårdslagen, Act no. 710/1982) and specific assistance, inter alia by appointing a lay helper or a support family, by providing adequate therapy and by assisting the child in his or her personal needs through financial and other support. The assistance must be provided in co-operation with the child and its parents or other carers (section 13 of the Child Welfare Act).
According to section 16 of the Child Welfare Act, the Social Welfare Board must take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2). The public care ceases when the child turns 18 (the age of majority) or marries (section 20). Care orders may be appealed to the administrative courts.
The child’s custodians, biological parents and de facto carers must be heard in respect of a proposal to issue or revoke a public care order or to place a child outside his or her original home. They must further be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act (hallintomenettelylaki, lagen om förvaltningsförfarande, Act no. 598/1982). Under section 15 of the said Act, a party must be afforded an opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken.
A child who has attained the age of 15 is entitled to state his or her opinion in child welfare matters. A child who has attained the age of 12 is entitled to be heard as stipulated in section 15 of the Administrative Procedure Act; he or she is also entitled to demand the social services and other support measures (section 10, subsection 2, of the Child Welfare Act).
According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board must support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2).
According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree (lastensuojeluasetus, barnskyddsförordningen, Degree no. 1010/1983), the Social Welfare Board or the director of a children’ home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the residential home. The restriction must be limited in time. It must mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction.
Any decision concerning public care, the transfer of a child into foster or other care outside his or her home, access restrictions and isolation of the child must be drawn up on a form approved by the Ministry for Social Welfare and Health Affairs (section 14 of the Child Welfare Decree).
The care plan to be drawn up in respect of a child in public care must mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan must be elaborated in co-operation with those involved.
A County Administrative Court’s decision in respect of a public care order, the transfer of a child into foster care or the termination of public care may be appealed further to the Supreme Administrative Court. Other decisions of a county administrative court relating to child welfare measures cannot be so appealed (section 37 of the Child Welfare Act).
If, in the course of his or her activities, an employee or elected official in health care, social welfare, education, the police or a parish finds out that a child is in evident need of family-oriented or individual child welfare, he or she must notify the Social Welfare Board without delay. Any other person may also contact the Social Welfare Board to this end (section 40 of the Child Welfare Act).


ITEMID: 001-5362
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CERNECKI v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1951 and living in Linz (Austria). He is represented before the Court by Mr Günter Tews, a lawyer practising in Linz.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the father of two daughters born in wedlock in 1984 and 1985, respectively.
On 4 October 1995 the Linz District Court (Bezirksgericht) granted the petition of the applicant and his wife for divorce by consent. In the settlement regulating the legal consequences of the divorce, the applicant and his wife agreed, outside the framework of section 177 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) which was at that time under review by the Constitutional Court, to exercise joint custody over their daughters. The settlement provided that the applicant and his wife would share responsibility for their children. Further, it stated that the children would mainly live with their mother, the applicant being granted extensive access rights. It also contained provisions for the children’s maintenance. The settlement was subject to approval in separate custody proceedings.
On 6 February 1996 the Linz District Court refused to approve the settlement. Referring to section 177 § 2 of the Civil Code, the court found that joint custody could not be granted. The Court granted sole custody to the applicant’s divorced wife, noting that according to both parents’ submissions she was better suited to exercise custody. Thus, the transfer of custody was also in the interests of the children. Further, the court endorsed the settlement insofar as it concerned the applicant’s rights of access and his maintenance obligations. The applicant did not appeal against this decision.
B. Relevant domestic law and practice
Award of custody over children upon divorce or separation
Section 177 of the Civil Code provides as follows:
“(1) In case the marriage of the parents of a minor born in wedlock ends in divorce, or is dissolved or declared null and void, or in case the parents live separately for more than a limited period, they may submit an agreement to the court stating which one of them will exercise sole custody over the child in the future. The court will approve the agreement if it corresponds to the interests of the child’s well-being.
(2) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child’s well-being, the court has to decide which parent should have the right to sole custody in the future. In case the parents live separately for more than a limited period, the court only decides upon the request of one of them.
(3) Section 167 applies accordingly.”
Section 167 of the Civil Code provides, for children born out of wedlock, that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child’s well-being.
In a judgment of 10 October 1995, the Constitutional Court ruled on the constitutionality of section 177 of the Civil Code. It noted the Supreme Court’s constant case-law according to which section 177 excluded an award of joint custody to both parents in case of divorce, except in the rare case when they continued to live together with the child in a common household. As to Article 8 of the Convention, it found that the award of sole custody after divorce to one parent was an interference with the other parent’s right to respect for his or her family life, which was justified under the second paragraph of this Article. Given the legislator’s margin of appreciation, it was to be considered necessary for the protection of the rights of others. In particular, it was proportionate, as the parent not having custody retained a number of rights, such as the right of access and the right to be informed and heard on certain important matters. Moreover, the law did not prevent parents who wished to share their parental rights after divorce from doing so in practice by mutual agreement, but provided a clear solution in case such agreement ceased to exist. As to Article 5 of Protocol No. 7, the Constitutional Court found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender alone. It did not generally demand that joint custody be awarded to parents after divorce.
Rights of the parent not having custody
According to section 148 of the Civil Code, the parent not having custody has a right of access.
Moreover, according to section 178 of the Civil Code, the parent not having custody has the right to be informed by the other parent about certain measures listed in section 154 §§ 2 and 3 (which in cases of joint custody require the agreement of both parents), and has the right to be heard within a reasonable time. The submissions of the non-custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child’s well-being. The measures at issue include the change of the child’s first or family name, the entry into or secession from a church or other religious group, the child’s placement in care, the acquisition or renunciation of a particular nationality, the early termination of an apprenticeship or employment contract, the recognition of paternity of a child born out of wedlock, as well as certain important provisions concerning the child’s property.


ITEMID: 001-76122
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PREVALNIK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1970 and lives in Orehova vas.
6. On 20 May 1995 the applicant was injured at work in a lignite mine. The applicant’s employer had taken out insurance with the insurance company ZT.
7. On 4 November 1996 the applicant instituted civil proceedings against his employer and ZT in the Celje Local Court (Okrajno sodišče v Celju) seeking damages in the amount of 1,950,000 SIT (approximately 8,120.00 euros) for the injuries sustained.
Between 20 November 1996 and 3 January 2000 the applicant lodged four preliminary written submissions and/or adduced evidence.
Between 2 September 1997 and 12 November 1999 he made three requests that a date be set for a hearing.
Of the three hearings held between 26 November 1998 and 20 January 2000 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert. The court also sought an additional opinion from the appointed expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 24 February 2000.
8. On 10 March 2000 the applicant’s employer and ZT appealed to the Celje Higher Court (Višje sodišče v Celju).
On 6 December 2000 the court allowed the ZT’s appeal in part, amended the judgment and remitted the case to the first-instance court for re-examination.
The judgment was served on the applicant on 27 December 2000.
9. During the re-examination proceedings, between 2 February 2001 and 4 April 2001, the applicant made two requests that a date be set for a hearing.
Between 7 February 2001 and 6 June 2002 he lodged four preliminary written submissions and/or adduced evidence.
Of the three hearings held between 12 June 2001 and 6 June 2002 none was adjourned at the request of the applicant.
During the proceedings the court appointed a medical expert.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 17 June 2002.
10. On 27 June 2002 the applicant appealed the Celje Higher Court.
On 18 September 2003, the second-instance court dismissed his appeal. The judgment was served on the applicant on 8 October 2003.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83877
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VOLOVIK v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1939 and lives in Zaporizhzhya.
5. On 25 April 1993 the applicant's son, who was a Russian national and served in the Russian Army, died because of an accident while on duty. The Russian State Military Insurance Company paid his wife and child, who resided in Russia, the insurance settlement to which they were entitled under the Russian law.
6. In 2001 the applicant lodged several requests with the Zaporizhzhya Regional Enlistment Office and the Ukrainian State Insurance Company “Oranta” (the “Oranta Company”), seeking the insurance settlement allegedly due to him under the Treaty on Payment of Pensions to Military Servicemen and Their Families and on State Insurance of Military Servicemen of the Member States of the Commonwealth of Independent States of 15 May 1992 (the “CIS Treaty of 15 May 1992”, see Relevant domestic law), which had entered into force in respect of Ukraine on that day. By letters of 9 July and 1 August 2001 respectively, the Oranta Company and the Enlistment Office rejected the applicant's requests on the ground that his son had served in the Russian Armed Forces and, thus, the applicant was not entitled to receive an insurance settlement under Ukrainian law.
7. In 2002 the applicant sought the insurance settlement by the Russian State Military Insurance Company. By letter of 27 September 2002, that company refused his request and informed the applicant that the amounts due to him because of the death of his son were to be paid by the Oranta Company pursuant to the CIS Treaty of 15 May 1992.
8. In December 2001 the applicant instituted proceedings in the Komunarskyy District Court of Zaporizhzhya against the Oranta Company, seeking the recovery of the insurance settlement which the latter allegedly had to pay him because of his son's death. He also sought compensation for non-pecuniary damage. The applicant argued that he was entitled to receive the insurance settlement in respect of his son on the ground that he, the applicant, resided on the territory of Ukraine, which had undertaken, pursuant to the CIS Treaty of 15 May 1992, to make such payments if a military serviceman had died while on duty in the Armed Forces of one of the CIS Member States.
9. On 10 April 2002 the court ruled against the applicant. This judgment was upheld by the Zaporizhzhya Court of Appeal on 18 July 2002 and the Supreme Court on 8 January 2003.
10. The courts found that under Ukrainian law the applicant was not entitled to receive the insurance settlement payable in similar cases to the relatives of Ukrainian military servicemen. The courts held that according to the CIS Treaty of 15 May 1992, read in conjunction with the decision of the Economic Court of the Commonwealth of Independent States (the “CIS Economic Court”) of 20 March 1997, such a payment should have been made by the Russian Federation, in the Armed Forces of which his son had served.
11. In 2002 the applicant instituted proceedings in the Zhovtnevyy District Court of Zaporizhzhya against the Zaporizhzhya Regional Enlistment Office, seeking the recovery of a special pension, which he was allegedly entitled to receive under the Law of Ukraine on Social and Legal Protection of Military Servicemen and Their Families of 20 December 1991 (the “Law of 1991”), read in conjunction with the provisions of the CIS Treaty of 15 May 1992, because of his son's death. He relied on the same reasons as in respect of his claim against the Oranta Company.
12. On 17 October 2002 the court ruled against the applicant, finding that he was not entitled to receive the pension under Ukrainian law, since his son had been a Russian national and had served in the Russian Armed Forces.
13. On 6 November 2002 the applicant lodged an appeal with the same court.
14. On 7 November 2002 the court invited the applicant to rectify certain shortcomings in his appeal by 25 November 2002. In particular, the court noted that the appeal did not contain the correct names of the parties, reasons for challenging the judgment of 17 October 2002, or an exact formulation of the applicant's request.
15. On 20 November 2002 the applicant lodged with the court the corrected version of his appeal, in which the opposite party was named as the Zaporizhzhya Regional Enlistment Office. As regards the reasons for his disagreement with the judgment of 17 October 2002, the applicant stated that the first-instance court had wrongly interpreted and applied specific provisions of the Law of 1991 and that it had disregarded the guarantees contained in the CIS Treaty of 15 May 1992. He requested that the Zaporizhzhya Court of Appeal quash the impugned judgment and adopt a new decision on the merits of his claim.
16. On 28 November 2002 the Zhovtnevyy District Court declared the applicant's appeal inadmissible. Referring to the applicant's appeal of 6 November 2002, the court stated that the applicant had failed to make the necessary corrections to it by the deadline set by the court. The applicant was sent back both versions of his appeal along with a copy of the decision of 28 November 2002 by the court.
17. On 6 December 2002 the applicant lodged with the same court an appeal against the decision of 28 November 2002. The applicant requested its annulment on the ground that the Zhovtnevyy District Court, deciding on the admissibility of his appeal against the judgment of 17 October 2002, had not taken into account the corrected version of his appeal lodged with that court on 20 November 2002.
18. In his appeal of 6 December 2002 the applicant cited the parts of his appeal of 20 November 2002 that contained the reasoning for and the formulation of his request.
19. In a cover letter accompanying his appeal of 6 December 2002 the applicant stated that he annexed three copies of that appeal, copies of his appeals of 6 and 20 November 2002, and copies of the judgment of 17 October 2002 and the decisions of 7 and 28 November 2002.
20. On 6 December 2002 the Zhovtnevyy District Court found that the applicant's appeal of the same day did not comply with the procedural formalities. In particular, it held that the appeal was directed against the decision of 28 November 2002 and the judgment of 17 October 2002 at the same time and that it did not contain sufficient reasoning or a list of annexed documents. The court invited the applicant to rectify the shortcomings of his appeal by 20 December 2002.
21. On 18 December 2002 the applicant lodged with the Zhovtnevyy District Court an appeal against its decision of 6 December 2002. On 10 January 2003 the Zaporizhzhya Regional Court of Appeal held that the latter decision could not to be appealed against and refused to consider the applicant's appeal.
22. On 27 January 2003 the Zhovtnevyy District Court declared the applicant's appeal against the decision of 28 November 2002 inadmissible on the ground that the applicant had failed to rectify the shortcomings indicated in its decision of 6 December 2002.
23. The applicant did not appeal against the decision of 27 January 2003.
24. Article 139 of the Code of 1963 provided that the judge to whom the case had been allocated should not entertain a claim which had not been lodged in compliance with the requirements set out in the Code or in respect of which court fees had not been paid. The judge was to grant a time-limit to rectify the shortcomings in the claim.
The claim was to be declared inadmissible and sent back to the claimant if the latter had not followed the instructions of the judge.
25. According to Article 290, the parties were entitled to appeal against the judgment (decision on the merits of the case) of the first-instance court in full or in part. A ruling (procedural decision) of the first-instance court was to be appealed against separately from the judgment in the cases envisaged by the Code.
26. Under Article 291, a first-instance court's ruling could be appealed against if it impeded the further progress of the case. The parties could submit their objections against the rulings which were not to be appealed against along with their appeal against a judgment in the case.
27. Article 293 envisaged that an appeal should be typewritten. It was to set out
the name of the court with which the appeal was lodged;
the name of the appellant, and his contact details;
the full and exact names of other persons participating in the case, their places of residence and contact details;
reference to the judgment or ruling against which the appeal was lodged and the scope of that appeal;
the on which the appeal was based; new facts or means of proof important for the case or objections against the evidence, which the first-instance court had allegedly groundlessly refused to admit or which, for good reasons, could not have been submitted before; the list of evidence admitted by the first-instance court which the appellant sought to have reconsidered by the court of appeal;
the petition (object of the appeal);
a list of the written materials annexed to the appeal.
The appeal should be signed by the appellant or his representative. It should be accompanied by a power of attorney, if necessary, and copies of the appeal and written materials. The number of copies should correspond to the number of persons involved in the case.
28. According to Article 294, an appeal should be submitted to the court of first instance that had dealt with the case. The court should apply the rules contained in Article 139 of the Code in respect of an appeal which did not comply with the requirements set out in Article 293 or in respect of which court fees had not been paid.
29. Pursuant to Article 295, if an appeal was lodged in compliance with the requirements of the Code the court of first instance should send copies of it to the persons participating in the case in order that they could submit any comments they might wish to make.
Upon the expiry of the time-limit for lodging an appeal the same court should send the appeal together with the case file to the court of appeal.
30. Under Articles 301 and 305, the court of appeal verified whether a judgment or ruling of the first-instance court was lawful and duly reasoned. The court of appeal had the power to examine new evidence, and evidence which allegedly had not been examined in compliance with the Code. When considering an appeal against a judgment, the court of appeal was entitled
to reject the appeal;
to quash the judgment and to remit the case for a fresh consideration, if a procedural violation prevented the court of appeal from examining new evidence or the evidence which the first-instance court had not examined;
to quash the judgment and to discontinue the proceedings;
to change the judgment or to adopt a new judgment.
31. According to Article 310, when considering an appeal against a ruling of the first-instance court, the court of appeal was entitled
to reject the appeal, if the ruling had been delivered in compliance with the law;
to change the ruling, if it was a correct decision, though the provisions of the Code had been wrongfully applied;
to quash the ruling and to remit the matter to the first-instance court for a fresh consideration, if it had not been delivered in accordance with the procedure for its consideration;
to quash the ruling and to deliver a new ruling on the matter, which had been resolved by the first-instance court in violation of the provisions of the Code.
32. Article 296 of the Code of 2004 provides that an appeal shall be submitted through the court of first instance that adopted the contested decision. The court shall refer an appeal or appeals together with the case file to the court of appeal within three days of the expiry of the time-limit for lodging the appeal or if all persons who wish to contest the decision have lodged their appeals. Appeals arriving after the referral of the case file to the court of appeal shall be referred to the same court not later than the next working day.
33. Pursuant to Article 295 § 1, a judge of the court of appeal appointed as rapporteur shall decide on the admissibility of an appeal.
34. The relevant provisions of the CIS Treaty of 15 May 1992 read as follows:
“Payment of pensions to and compulsory State insurance of military servicemen of the Armed Forces of the Member States of the Commonwealth [of Independent States] ..., as well as payment of pensions to the families of those military servicemen shall be arranged on the basis of the conditions, norms and in the manner established or which will be established by the legislation of the Member States, on the territory on which the aforementioned military servicemen and their families reside, while before the [relevant] laws are adopted by these States [payment of pensions and compulsory State insurance shall be arranged] on the basis of the conditions, norms and in the manner envisaged in the legislation of the former Union [of Soviet Socialist Republics] ... [T]he level of pension payments ... shall not be lower than that established by the legislation ... of the former Union [of Soviet Socialist Republics].”
“...
The amount of allowance (salary) [necessary] for calculation of pension payments to be made to military servicemen and their families shall be determined in accordance with the legislation of the Member States on whose territory the military servicemen and their families reside.”
“The Member States shall bear the expenses [in respect of] payment of pensions to military servicemen and their families and compulsory State insurance of military servicemen ... without reciprocal payments between the States.”
“The questions concerning the application of the present Treaty shall be considered, if necessary, by the Council of Ministers of Defence of the Member States, as well as by the Ministries of Defence ... of the Member States of the Commonwealth on a bilateral or multilateral basis.”
“The Treaty enters into force when signed [by the Parties].”
35. Section 3 of the Law of 1991 read, as worded at the material time, as follows:
“This Law applies to:
[i] military servicemen serving on the territory of Ukraine, and military servicemen, who are nationals of Ukraine, serving outside Ukraine;
[ii] family members of servicemen who perished, died, disappeared, or became disabled in the course of their service;
[iii] reservists called for training, and their family members.”
36. According to Article 32 of the Statute of the Commonwealth of Independent States of 22 January 1993 and Article 5 of the Statute of the Economic Court of the Commonwealth of Independent States of 6 July 1992, the CIS Economic Court is entitled to give interpretation to treaties and other acts of the Commonwealth. Ukraine, not having ratified either the Statute of the Commonwealth or the Statute of the CIS Economic Court, does not recognise the latter's jurisdiction.
37. Pursuant to the judgment and the ruling, delivered by the CIS Economic Court on 4 September 1996 and 20 March 1997 respectively, on the interpretation of several treaties of the Commonwealth, including the CIS Treaty of 15 May 1992, the payment of an insurance settlement or of a lump sum payment to a member of the family of a deceased military serviceman shall be made by the State in which the serviceman was insured, irrespective of his family member's country of residence. The insurance company or other competent authority of the State, in the Armed Forces of which the military serviceman served, shall be responsible for the fulfilment of the obligations under the insurance contract of that serviceman.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5732
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SLICHKO v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a Ukrainian national, born in 1919 and living in Nizhni Vorta (Ukraine).
The facts of the case, as submitted by the applicant, may be summarised as follows.
From 5 May 1943 to 9 May 1945 the applicant was serving in the former Czechoslovak foreign army during the Second World War. After the Second World War, between 10 May 1945 and 1 August 1949, he was serving in the regular Czechoslovak army. In 1944 he suffered injuries, as confirmed the former Czechoslovak Ministry of National Defence (Ministerstvo národní obrany) on 20 March 1985.
On 1 August 1949 the applicant was dismissed from the army, allegedly without any reasons. Shortly afterwards, he was arrested and detained in the territory of former Czechoslovakia. On an unspecified date, the applicant left Czechoslovakia to live in Germany and the United States. It is not clear when he returned to the Ukraine where he had been living before the Second World War.
On 7 December 1992 the former Federal Ministry of Defence of the former Czech and Slovak Federal Republic agreed that the applicant had been dismissed from the army for the reasons set out in section 21 of the Extra-Judicial Rehabilitation Act. The Ministry delivered the certificate for the purposes of awarding damages to the applicant under the Extra-Judicial Rehabilitation Act.
On an unspecified date, the applicant applied to the Czech authorities for a pension, pursuant to the Extra-Judicial Rehabilitation Act. By letter of 16 October 1991 from the Division of rehabilitation and appeal of the former Federal Ministry of Defence (Oddělení rehabilitační a odvolací Federálního ministerstva obrany), the applicant was informed that the Division had received his appeal against the decision of the Central Rehabilitation Commission (Centrální rehabilitační komice) and that he would be notified of the result of his appeal.
The applicant has not submitted any relevant documents concerning these matters.
Extra-Judicial Rehabilitation Act No. 87/1991
Section 21(1)(e) of the Extra-Judicial Rehabilitation Act provides that any legal operation by which the employment relationship was terminated during the period from 25 February 1948 to 1 January 1990, in particular, an agreement on the severance of the employment relationship, is considered void if the termination was carried out as a result of political persecution or violated generally recognised human rights and freedoms.
Section 24 provides inter alia that if the severance of the employment relationship is void under section 21, the period between the termination of this employment relationship and the date on which the person concerned presents his or her claim to retirement or disability benefit is considered as a period of employment.