ITEMID: 001-61490
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF LEONARDI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1926 and lives in Rome.
5. He is the owner of a flat in Rome, which he had let to A.M.A.
6. In a registered letter of 7 June 1983, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1983 and asked her to vacate the premises by that date.
7. In a writ served on the tenant on 7 December 1983, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Rome Magistrate.
8. By a decision of 10 March 1984, which was made enforceable on 11 April 1984, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 June 1984.
9. On 9 January 1986, the applicant served notice on the tenant requiring her to vacate the premises.
10. On 30 January 1986, he informed the tenant that the order for possession would be enforced by a bailiff on 20 February 1986.
11. Between 20 February 1986 and 23 January 1996, the bailiff made forty attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
12. On 6 July 1999, the applicant served a second notice on the tenant requiring her to vacate the premises.
13. On 19 July 1999, he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 4 August 1999.
14. Between 4 August 1999 and 25 November 1999, the bailiff made five attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
15. On 7 December 1999, the applicant recovered possession of the flat.
16. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003.
17. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
18. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
19. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
20. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
21. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”
22. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
23. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
24. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59338
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF DOUGOZ v. GREECE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicant claims that, while in Syria, he was accused of national security offences, namely having leaked information during his military service. The applicant left that country. He claims that he was subsequently found guilty of these offences and sentenced to death.
9. The Government claim that the applicant entered Greece surreptitiously, probably in July 1983. The applicant claims that he entered Greece lawfully.
10. In 1987 the applicant was arrested by the Greek authorities for drug-related offences. In 1988 he was found guilty by the threemember Court of Appeal of Athens, sitting as a first-instance court. The court, considering that the applicant was himself a drug user, sentenced him to two years’ imprisonment. The applicant’s conviction was upheld by the fivemember Court of Appeal of Athens in 1989.
11. In 1989 the applicant applied for refugee status to the Athens Office of the United Nations High Commissioner for Refugees (UNHCR) and was recognised as a refugee under the UNHCR mandate. On that occasion he was issued by the Greek authorities with an alien’s residence card.
12. According to the Government, his leave to remain in Greece expired on 8 January 1991. However, he remained illegally.
13. In the course of 1991, the applicant was arrested for theft and bearing arms without authorisation. He was placed in detention on remand. In 1993 he was found guilty of these offences by the Nafplio Court of Appeal, composed of judges and jurors, and was sentenced to five and a half years’ imprisonment.
14. On 6 June 1994 the applicant was released on licence. On the same day, the Chief of Police ordered his expulsion from Greece in the public interest.
15. On 23 June 1994 the applicant applied to the Greek authorities for refugee status. On 4 August 1994 the Minister of Public Order rejected his application, which was found to be abusive because “it had been submitted ten years after the arrival of the applicant in Greece, obviously with the aim of avoiding his lawful expulsion after his release from prison where he had served long sentences for very serious crimes”.
16. The Government claim that, following this decision, the applicant requested to be expelled to “the Former Yugoslav Republic of Macedonia”, and on 19 September 1994 he was sent to that country, but thereafter he returned to Greece illegally. However, the applicant claims that he was never “lawfully expelled” to “the Former Yugoslav Republic of Macedonia”. He neither asked to go there, nor was he accepted by that country.
17. On 9 July 1995 the applicant was arrested in Greece for drug-related offences. On 26 November 1996 he was found guilty and sentenced to three years’ imprisonment and a fine by the threemember Athens Court of Appeal. In 1998 the five-member Athens Court of Appeal upheld his conviction and sentence.
18. On 25 June 1997 the applicant asked for his release on licence claiming, inter alia, that he could return to Syria because he had been granted a reprieve. The Indictments Division of the Piraeus Criminal Court of First Instance examined the applicant’s request in camera on 16 July 1997. Although the applicant was not allowed to attend the hearing, the prosecutor was present and was heard. The court decided that the applicant should be released on licence and expelled from Greece. It considered that the applicant’s conduct during his detention indicated that he was not going to commit any further offences once released and that it was not necessary to prolong the detention.
19. Following this decision the applicant was released from prison on 10 July 1997 and was placed in police detention pending his expulsion, on the basis of an opinion given by the deputy public prosecutor at the Court of Cassation that decision no. 4803/13/7A of 18-26 June 1992 applied by analogy in cases of expulsion ordered by courts (see paragraph 39 below). Initially the applicant was detained at a detention centre in Drapetsona. He was issued with a temporary passport by the Greek authorities and on 12 September 1997 was given leave to enter Syria by the Syrian embassy in Athens.
20. The applicant claims that the Drapetsona detention centre consisted of twenty cells. At times there were up to one hundred people detained there. The applicant’s cell was overcrowded. The number of persons in his cell would increase tenfold depending on the detainee population each night. There were no beds and the detainees were not given any mattresses, sheets or blankets. Some detainees had to sleep in the corridor. The cells were dirty and the sanitary facilities insufficient, since they were supposed to cater for a much smaller number of persons. Hot water was scarce. For long periods of time there would not be any. There was no fresh air or natural daylight and no yard in which to exercise. The only area where the detainees could take a walk was the corridor leading to the toilets.
21. According to the applicant, there was no recreational or other activities at the Drapetsona detention centre. The applicant could not even read a book because his cell was so overcrowded. Detainees were served with a “passable plate of food” twice a day. No milk was ever provided while fruit, vegetables and cheese rarely appeared on the menu. Moreover, the detainees could not obtain any food from outside. The applicant had no access to a doctor or a chemist. Only family visits were allowed and, as a result, foreign detainees did not receive any visits at all. The applicant could not address himself to the social services or the public prosecutor. Although payphones existed, their number was clearly insufficient. Cases of ill-treatment by the guards were not uncommon.
22. The Government claim that hot water was available on a 24hour basis at the Drapetsona detention centre. The food served to detainees was sufficient and of a very high quality. The police officers had the same menu. There was adequate natural light where the applicant was detained. The applicant was able to circulate freely in a wide corridor at regular intervals during the day. The detention area was cleaned every day by the staff of the centre and was regularly disinfected. There was medical care.
23. In the autumn of 1997 there was a hunger strike at the Drapetsona detention centre.
24. On 28 November 1997 the applicant asked the Minister of Public Order to allow him to travel to a country other than Syria where he allegedly faced the death penalty.
25. On 2 February 1998 the applicant applied for the order for his expulsion to be lifted, relying on, inter alia, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the fact that he had been recognised as a refugee by the UNHCR. He also claimed that his continued detention contravened Article 5 of the Convention and that the expulsion order had been made in breach of national law.
26. In March 1998 there were forty to fifty people detained at the Drapetsona centre.
27. In April 1998 the applicant was transferred to the police headquarters in Alexandras Avenue in Athens. According to the applicant, the conditions were similar to those at Drapetsona, although there was natural light, air in the cells and adequate hot water. The Government described the conditions in Alexandras Avenue as being the same as those at Drapetsona.
28. On 28 April 1998 the UNHCR representative in Athens requested the Ministry of Public Order not to expel the applicant to Syria as long as his case was under review.
29. On 11 May 1998 the Indictments Division of the Piraeus Criminal Court of First Instance, sitting in camera, refused to lift the expulsion order recalling, inter alia, that in his application of 25 June 1997 the applicant had claimed that he was no longer subject to persecution in Syria. The decision of the court did not contain any express ruling on the applicant’s claim concerning his detention.
30. On 26 and 28 July 1998 the applicant requested the Ministers of Justice and of Public Order to lift the expulsion order and, in any event, to release him.
31. On 3 December 1998 the applicant was expelled to Syria. The Government claim that they had been informed by Interpol that Syria had not asked for his extradition.
32. The applicant claims that upon his arrival in Syria he was placed in detention.
33. Article 74 § 1 of the Criminal Code provides as follows:
“The court may order the expulsion of an alien who has been given a prison sentence under Articles 52 and 53 of the Criminal Code, provided that the country’s international obligations are respected. An alien lawfully present in Greece may only be expelled if given a sentence of at least three months’ imprisonment. The expulsion takes place immediately after the alien has served his or her sentence or is released from prison. The same applies when the expulsion has been ordered by way of a secondary penalty.”
34. Article 105 of the Criminal Code provides for the release of prisoners on licence.
35. Article 106 of the same Code provides that the court may impose on the person released on licence certain obligations concerning, inter alia, his place of residence.
36. On 15 January 1981 the public prosecutor at the Court of Cassation opined that, although persons released on licence could not leave the country, a court could order their expulsion under Article 74 of the Criminal Code.
37. Section 27(6) of Law no. 1975/1991 provides that the Minister of Public Order may, in the public interest and if the person to be expelled is dangerous or might abscond, order his detention until his deportation from Greece becomes feasible.
38. Section 27(7) of Law no. 1975/1991 provides that the details concerning the execution of deportation orders issued in accordance with the provisions of that Law, as well as those ordered by the criminal courts in accordance with Article 74 of the Criminal Code, will be fixed by a common decision of the Ministers for Foreign Affairs, of Justice and of Public Order.
39. Decision no. 4803/13/7A of 18-26 June 1992 of the Ministers for Foreign Affairs, of Justice and of Public Order makes a number of provisions concerning the expulsion of aliens by administrative order. According to section 6 of the decision, “aliens subject to expulsion are detained in police detention centres or other appropriate places determined by the Minister of Public Order”. On 1 April 1993 the deputy public prosecutor at the Court of Cassation opined that decision no. 4803/13/7A of 18-26 June 1992 applied by analogy in cases of expulsion ordered by the courts.
40. On 29 November 1994 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report following its visit to Greece in March 1993, which contains the following findings and recommendations concerning the Athens police headquarters in Alexandras Avenue:
“54. The principal detention facilities at the Athens Police Headquarters were situated on the 7th floor of the Headquarters building. They consisted of 20 cells divided into two sections. The cells measured just over 12 m2, and were equipped with fixed benches for rest/sleeping purposes; the lighting was adequate, as would be the ventilation in the absence of overcrowding. In principle, the cellular accommodation could be considered as acceptable for persons obliged to remain in police custody for a relatively short period, on condition that the premises are kept clean and those obliged to spend the night in custody are provided with mattresses and blankets.
55. However, the delegation found that in addition to criminal suspects (who might stay for a maximum of some four to six days ... ), the Headquarters were being used to accommodate for lengthy periods persons held under the Aliens legislation. Many of these persons met by the delegation had been held in the Headquarters’ detention facilities for periods in excess of a month, and a few had been there for over three months. Such a situation is not acceptable. The physical surroundings and the regime are quite unsuitable for such lengthy stays. There is not even the possibility of access to the open air: out of the cell “exercise” is taken in a corridor adjacent to the cells.
56. There were between 50 to 60 detained persons in the Headquarters at the time of the delegation’s visit, some 60% of whom were being held under the Aliens legislation. However, it was clear that shortly before the delegation’s visit, the number of persons accommodated had been much higher. At least 50 persons had been transferred a few days earlier from the Headquarters to a new holding centre for aliens situated close to the airport ...
For the most part, the detainees were being held two or three to a cell, though a cell reserved for women was accommodating five detainees. The delegation was told by persons detained that in the very recent past, ten or more persons had been held per cell. Given the cells’ dimensions, such occupancy levels would be grossly excessive.
57. Police officers told the delegation that one set of cells was reserved for criminal suspects, and the other for persons held under the Aliens legislation; however, it was observed that, in practice, the separation between these two very different types of detained persons was not assured.
Further, some persons detained under the Aliens legislation stated that they had received no information about the procedure applicable to them (at least not in a language they understood). On the other hand, such detainees did have access to a telephone.
58. Persons detained had blankets at their disposal (though the delegation heard allegations that they had only been made available the day before the delegation’s first visit), but not mattresses.
Toilet and shower facilities were situated alongside the cells, and no complaints were heard about access to those facilities; however, detainees did complain that they had not been provided with towels or soap. The state of cleanliness and overall state of repair of the toilets/shower facilities was appalling, although an attempt to improve the situation was made between the delegation’s different visits.
59. As regards the detention facilities on the 7th floor of Athens Police Headquarters, the CPT wishes to make the following recommendations:
– that no-one be held in these facilities for longer than is absolutely necessary;
– that there be a maximum occupancy level of four persons per cell (with a possible exception as regards persons only staying a few hours in custody);
– that persons detained overnight be provided with both blankets and mattresses;
– that the toilet/shower facilities be renovated in a hygienic condition, and detained persons provided with the wherewithal to keep themselves clean;
– that means be sought of enabling persons detained for more than 24 hours to be offered outdoor exercise on a daily basis;
– that persons detained under the Aliens legislation be strictly separated from criminal suspects;
– than an information leaflet be given to persons detained under the Aliens legislation explaining the procedure applicable to them and their related rights; this leaflet to be available in the languages most commonly spoken by such persons and, if necessary, the services of an interpreter provided.”
41. In May 1997 and in October 1999 the CPT carried out two more visits to the Alexandras police headquarters and the Drapetsona detention centre. The reports following these visits have not yet been made public.
VIOLATED_ARTICLES: 3
5
VIOLATED_PARAGRAPHS: 5-1
5-4


ITEMID: 001-99923
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GIZA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1950 and lives in Bystra Podhalańska.
5. In 1995 the applicant's neighbours, K.G. and J.G., constructed a sawmill on a plot of land adjacent to his property without the required building permit. The applicant informed the authorities about the illegal construction.
6. On 22 November 1995, the Nowy Targ District Office ordered the applicant's neighbours to demolish part of the building by 30 April 1996.
7. On a motion lodged by the applicant, on 29 September 1997 the Director of the Nowy Targ District Office ordered K.G. and J.G. to demolish the building by 30 January 1998 as it had been built without the appropriate permit. That decision was upheld on appeal by the Nowy Sącz Regional Office on 4 December 1997.
8. On 24 June 1998 the District Office fined K.G. and J.G. for failure to comply with the decision of 4 December 1997. Upon a further appeal, on 25 August 2000 the Supreme Administrative Court declared part of the decision of 4 December 1997 null and void in so far as it related to the timelimit for carrying out the demolition.
9. On 20 November 2002 part of the sawmill burned down. It appears that, subsequently, the applicant's neighbours reconstructed the destroyed part of the building without the required building permit.
10. On an unknown date in 2004 the applicant complained to the Małopolski Regional Inspector of Construction Supervision, alleging that the length of the enforcement proceedings had been excessive.
11. In its decision of 12 October 2004 the Regional Inspector considered that the applicant's complaint was well-founded and ordered the Nowy Targ District Office to take the necessary measures in order to enforce the decision of 29 September 1997 within one month. The Regional Inspector's decision was subsequently upheld on 4 December 1997.
12. On 27 January 2005 the applicant filed a complaint with the Supreme Administrative Court, alleging that the length of the enforcement proceedings had been excessive. He further stressed that the illegal construction and the operation of the sawmill constituted a significant nuisance. The complaint was referred to the Cracow Regional Administrative Court.
13. On 25 May 2006, in response, the Cracow Regional Administrative Court delivered a judgment. It ordered the Sucha Beskidzka District Inspector of Construction Supervision to take all the necessary measures with a view to enforcing the decision of 29 September 1997, as upheld by the decision of 4 December 1997, within one month of the date on which it received the case file.
14. On 7 June 2006 the Sucha Beskidzka District Prosecutor instituted an investigation into the non-enforcement of the decision of 29 September 1997.
15. On 4 October 2006 the Małopolski Regional Inspector of Environmental Protection informed the Mayor of Such Beskidzka that the sawmill operated by the applicant's neighbours created excessive noise during the daytime.
16. On 18 December 2006 the Mayor of Sucha Beskidzka gave a decision and established that the maximum noise level caused by the sawmill should not exceed 55dB during daytime and 45dB at night. It further held that that decision was without prejudice to the legality of the construction of the building located on the plot in question.
17. On 28 April 2008 the Sucha Beskidzka District Prosecutor filed an act of indictment against the Sucha Beskidzka District Inspector of Construction accusing him of breach of duty concerning the nonenforcement of the administrative decision of 29 September 1997. The proceedings are pending.
18. It appears that the decision of 29 September 1997 has not been enforced yet.
19. The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the Court's judgments in the cases of Kaniewski v. Poland, no. 38049/02, §§ 22-28, 8 February 2006; Koss v. Poland, no. 52495/99, §§ 21-25, 28 March 2006; and Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61644
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF CSEPYOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1922 and lives in Komárno.
9. The applicant lodged a claim under the Land Ownership Act no. 229/1991 Coll. (Zákon o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku – “Act 229/91”) for the restitution of an ownership interest of 1/6 in an undivided plot of agricultural land which had belonged to her family before it was taken away during the communist regime.
10. On 15 September 1992 the applicant and the agricultural cooperative that was using the plot concluded a restitution agreement (dohoda o vydaní) concerning the modalities of the ownership interest transfer to her.
11. On 19 October 1992 the Komárno Land Office (Okresný úrad, odbor pozemkový, poľnohospodárstva a lesného hospodárstva) approved the restitution agreement in accordance with Act 229/91.
12. On 22 November 1992 the Land Office informed the applicant that a third person (G.N.) had filed an appeal with the Ministry of Agriculture (Ministerstvo pôdohospodárstva) against the approval of 19 October 1992. G.N. was an heir of a person to whom the plot was assigned (prídelový vlastník – “the assigned owner”) by the State after it had been taken away from the applicant’s family. In her appeal, she claimed ownership of the plot. On 2 December 1992 the applicant submitted her observations in reply to the appeal.
13. On 22 December 1992 G.N. died.
14. On 21 October 1993 the Ministry annulled the approval of the Land Office of 19 October 1992.
15. On 3 November 1994 the Land Office ordered the accelerated consolidation of the plot in accordance with the Act on Land Consolidation no. 330/1991 Coll. (Zákon o pozemkových úpravách, usporiadaní pozemkového vlastníctva, pozemkových úradoch, pozemkovom fonde a o pozemkových spoločenstvách – “Act 330/91”). Pursuant to Section 15 § 2 of the Act, the accelerated land consolidation was ordered for an interim period, namely until the completion of the ongoing general land consolidation proceedings in the area concerned or, alternatively, until the co-operative was dissolved without a legal successor; whichever would occur earlier.
16. On 1 December 1995 the applicant requested that the Land Office should deal with her case expeditiously.
17. On 6 December 1995 the cooperative rescinded the restitution agreement of 15 September 1992.
18. On 12 April 1996 the Land Office requested G.N.’s heir, P.N., to submit a decision on her estate.
19. On 27 September 1996, on a motion of the cooperative, the Komárno District Prosecutor asked the Land Office to submit to him the casefile concerning the applicant’s case. In his decision of 31 October 1996, the Prosecutor found that there had been undue delays in the proceedings in that the Land Office had failed to rule on the restitution agreement within the prescribed timelimit and that since 4 November 1993 it had failed to take any procedural steps. The Prosecutor instructed the Land Office to deal with the case without undue delays.
20. In its decision of 25 November 1996 the Land Office withheld its approval of the restitution agreement of 15 September 1992.
21. On 23 December 1996 the applicant petitioned for a judicial review of this decision. On 27 December 1996 she supplemented her petition.
22. On 3 September 1997 a notary public determined G.N.’s estate.
23. On 30 November 1998 the Nitra Regional Court (Krajský súd) upheld the decision of the Land Office of 25 November 1996. As a result, under Act 229/91, it became incumbent upon the Land Office to determine ex officio the applicant’s restitution claim.
24. The applicant requested the Land Office repeatedly, inter alia by letters of 19 April, 3 May, 18 May and 11 December 1999, to determine her restitution case expeditiously.
25. On 21 February 2000 the Land Office ordered preparatory measures to be taken with a view to opening land consolidation proceedings under Act 330/91 in respect of the plot in issue.
26. On 15 August 2000 the Land Office opened the land consolidation proceedings. It noted that “heirs of the assigned owners had submitted competing ownership claims to the plot” and that the rival claims had to be determined before it could be decided whether any part of the plot was to be restored to the applicant and, if so, which part. The applicant and another party to the proceedings filed appeals with the Nitra Regional Office (Krajský úrad).
27. On 8 September 2000 the Land Office decided to stay the proceedings on the applicant’s restitution claim pending the outcome of the consolidation proceedings opened on 15 August 2000.
28. On 17 October 2000 the Land Office asked the parties to the consolidation proceedings for their observations on the appeals filed by the applicant and by the other party.
29. In its decision of 2 January 2001, the Regional Office found factual inaccuracies and inconsistencies in the reasoning of the Land Office’s decision of 15 August 2000 to open the consolidation proceedings in respect of the plot. It quashed this decision and sent the casefile back to the Land Office for reconsideration. The decision of 8 September 2000 to stay the restitution proceedings was not affected by this decision.
30. On 13 February 2001 the applicant lodged a complaint with the Head of the Land Office (Prednosta okresného úradu) about the delays in her restitution proceedings. She demanded that the proceedings be resumed and her claim considered on the merits. On 28 February 2001 the Head of the Land Office informed the applicant that the Land Office would determine the applicant’s claim following the determination of the preliminary question in the consolidation proceedings, i.e. the competing ownership claims filed by the third parties.
31. On 13 March 2001 the applicant requested that the Land Office inform her about the state of her restitution proceedings.
32. On 19 March 2001 the Land Office informed the applicant that the restitution proceedings were still stayed pending the determination of the preliminary question that was being dealt with in the consolidation proceedings.
33. On 25 May 2001 the Land Office held a hearing on the applicant’s restitution claim.
34. On 18 September 2001 the Land Office allowed the applicant’s restitution claim. It noted that the allocation of the plot to the assigned owners had occurred prior to the formal confiscation of the ownership interest she was claiming. It concluded therefore that the allocation did not constitute an obstacle to the restitution of this share to the applicant. This decision became final on 26 October 2001.
35. The applicant’s title to the 1/6 ownership interest in the plot has not yet been recorded in the Land Register (kataster nehnuteľností).
36. To date, no new decision to open the land consolidation proceedings has been taken.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69274
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: M.A. v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr M.A., is a Moroccan national who was born in 1965 and lives in Stafford. He was represented before the Court by Miss J.A. Roberts, a solicitor practising in Stafford.
In February 1996 the applicant married M.
On 2 August 1996 their daughter D. was born.
On 2 November 1998 the applicant and his wife separated.
On 11 November 1998 M. filed for divorce and a residence order in respect of D. There were problems with contact from the beginning. The mother made allegations that she feared that the applicant would abscond with D. to Morocco and that he was violent towards her.
On 27 November 1998 a County Court judge ordered interim residence with M. and issued an interim contact order.
On 30 June 1999 a County Court judge by consent ordered that the applicant be given contact at a supervised centre each Saturday.
On 12 July 1999 a County Court judge by consent ordered the mother to allow the applicant to have contact with his child each Saturday. A penal notice was attached.
A report of the child welfare officer dated 7 April 2000 noted the mother's implacable opposition to contact taking place.
On 12 April 2000 a judge again ordered that the mother allow the applicant to have contact with his child and attached a penal order. The applicant applied for her to be committed for contempt for failure to comply.
On 26 April 2000 a judge ordered that she be committed to prison for seven days, the order to be suspended until final hearing.
On 5 July 2000, the date fixed for final hearing, the judge adjourned the applications pending a report from a psychologist concerning the mother's allegations that the father represented a risk to her and the child. It does not appear that the psychologist received instructions until 4 September 2000.
On 17 October 2000 the judge consolidated the mother's application for a non-molestation order. The applicant withdrew another application for committal of the mother due to lack of contact.
In a report dated 2 February 2001, a consultant psychologist, after conducting interviews and assessments, noted that the mother's accounts of long-standing violence by the applicant were highly inconsistent, with no reference in her medical records to any alleged abuse/violence, that she scored highly on tests indicating stress and difficulty in establishing a parent-child bond, and that she presented many characteristics commensurate with a diagnosis of borderline personality disorder, with possible co-morbidity of histrionic personality disorder. She noted that, during a supervised contact session on 17 January 2001, the applicant had been responsive, sensitive and creative in his play with D., that he had a warm, caring relationship with her and that D. only grew anxious when she became aware that her mother was in the building. Tests showed that the applicant presented as a balanced, well-integrated man, without any particular problem in relation to anger management. She concluded that the applicant did not represent any threat to the child and that any fear of abduction was ill-founded, that the mother's fears in this respect were not realistic, and that there was no reason for the applicant's contact with D. to be supervised. She recommended that contact be increased to contexts outside a contact centre and that such regular contact with her father be actively promoted and facilitated. It was not, however, in D.'s interests for residence to be changed in favour of the applicant.
On 20 February 2001 the County Court judge found the mother in flagrant breach of contact orders and committed her to prison for fourteen days and ordered a section 37 report to be prepared by the local authority. After being sent to prison for one week, the mother began to comply with contact orders.
On 31 August 2001 the County Court judge found as a fact that the applicant, settled in the United Kingdom, had no intention of moving D. unlawfully to Morocco. He noted that the mother had constantly disobeyed contact orders from the court, while the section 37 report showed that D. enjoyed and benefited from contact. While he accepted that the mother was genuinely anxious about D., he ordered that contact be increased to weekly overnight stays. He made a final residence order in favour of the mother.
The mother failed to make D. available for the first three planned sessions, alleging continued concern that the applicant had not handed in his passport. Following another application for committal by the applicant, the mother complied, allowing two overnight contact visits at the applicant's home which took place in October 2001. D. then refused to attend further visits. The independent social worker reported that the mother was saying little to reassure D. or to encourage her to go, failing, in particular, to counter D.'s guilt about leaving her alone. An agreement was reached in court that the mother would make D. available for contact outside Hanley police station. An incident appears to have taken place on or around 1 December 2001 outside the police station, where D. witnessed her parents' hostility to each other and her mother crying. Contact visits were again discontinued, apparently as D. was objecting. The applicant issued a further notice of application for committal proceedings against the mother. On unspecified dates he also made further applications for contact and renewed applications for residence.
On 13 December 2001 the judge ordered the case to be transferred to the High Court.
On 22 February 2002 a High Court judge made directions for the proceedings, ordering indirect contact with the child by weekly cards and letters.
On 25 March 2002 the consultant psychologist recommended that the mother receive therapy to cope with her anxiety and parenting attitudes and that a CAFCASS (Children and Family Court Advisory and Support Service) officer be appointed to mediate and work constructively with the parties on D.'s behalf.
On 26 March 2002, a High Court judge drew up a schedule of contact and directed that a consultant family therapist be instructed to undertake systemic family therapy with the parties, with emphasis on contact issues. It was later reported that the therapist concerned stated that he was unable to undertake the work required and that there were difficulties in finding any other service that could.
Four attempts were made in April 2002 to facilitate contact between the applicant and D., but D. refused to accompany the independent social worker. No contact visits took place.
On 24 April 2002 the High Court appointed a guardian for the child.
On 5 July 2002 the independent social worker reported that D. was settled with her mother and had not suffered any emotional or psychological damage and that residence should not be changed. She noted that D. was refusing to see the applicant now and considered that attempts at enforcing direct contact would place her in danger of significant emotional harm, since she now viewed the applicant negatively and with fear. Any contact would have to be indirect for the near future.
On 9 July 2002 a High Court judge ordered indirect contact and a psychiatric report on the mother. A programme of indirect contact facilitated by the independent social worker commenced on 16 July 2002. This involved a session of one hour a fortnight in which the social worker met with D. and the mother and a letter from the applicant was delivered. Only two out of four planned sessions occurred due to the mother's unavailability. The independent social worker withdrew as she believed the mother was not committed.
On 26 September 2002 the psychiatrist reported that the mother was not suffering from any personality disorder or current depression, and that her current stress and anxiety symptoms would benefit from a course of anxiety/stress management, but that these did not pose a problem to her meeting D.'s needs.
In a report dated 9 October 2002, the consultant psychologist reported that D. now showed signs of having suffered emotional harm. She had now become aware that she was the centre of her parents' battle, was increasingly distressed by attempts to encourage contact and was demonstrating anxiety. She also noted that the applicant's position had become as entrenched as the mother's and he had shown limited insight into D.'s feelings. The applicant's relationship with D. had been seriously jeopardised by the incident in December 2001 and D.'s image of him was negative (angry, aggressive and potentially threatening and anxiety-provoking). Consequently, she was likely to continue to resist direct contact, and indirect contact was the only option, with a view to initiating possible interest in future direct contact.
On 17 October 2002 the High Court judge ordered fortnightly indirect contact to be facilitated by the guardian who reported that the parents cooperated with her proposals and suggestions.
On 8 January 2003 the guardian reported that D. was adamant that she did not wish to see the applicant, that her physical needs were well met by her mother but her emotional needs had not been met due to her mother's failure to promote regular and consistent contact, that D.'s responses to the attempts to promote contact demonstrated an escalation of her resistance to contact and increasing distress, and that it was apparent that she had internalised the feelings of hostility that the adults had displayed to each other and did not feel secure enough to see her father despite support and encouragement. The guardian did not consider that anything could be done in the short term to alleviate the level of anxiety and distrust displayed by D. when her father was discussed. She concluded that D. should remain with her mother, as any change in residence would cause her considerable disruption and further emotional harm.
On 18 February 2003 Mr Justice Munby considered the prospects of contact. He noted that the last contact visit had been in October 2001 and that the applicant had last seen D. in December 2001 and that it had to be said, clearly and firmly, that the blame for the present unhappy situation lay primarily, indeed overwhelmingly, at the mother's door. Reviewing the breakdown of visits in October 2001, he found that the mother had sabotaged the sessions which had previously been successful. It was obvious that, even if she was not actively poisoning D.'s mind, she was wholly unable to conceal her own antipathy and hostility to the idea of contact. As regards the incident on 1 December 2001, where the applicant had behaved most foolishly, he considered that it was the mother's constant sabotage of contact that had goaded him beyond endurance and that she had behaved no better than he had. The mother had also conspicuously failed to cooperate in the indirect contact attempts, professing herself unable to persuade D. to write even the shortest card to her father: the judge did not think that she had even tried. It was also clear that D. had regularly been subjected to negative statements about her father by the mother and other members of the mother's family. He concluded that D. had suffered emotional harm due to the mother's failure to allow her to develop a proper relationship with the applicant but, although she had not yet suffered significant harm, she probably would in the future. This harm was caused by the mother. He had no doubt that D.'s best interests required her to go on living with her mother but at the same time enjoying a proper and rewarding relationship with her father.
“It is a tragedy for D. that she cannot have such a relationship with her father. If she does not have a proper relationship with her father – a father who it is obvious has much to offer his daughter and whose company she thoroughly enjoys – then D. is likely to grow up as a damaged child, a damaged adolescent and, in time, a damaged adult.
There are times when a judge ... has to speak plainly, indeed brutally, if his message is to be understood. The tragedy which lies ahead for D. is that mother may, although of course without any intention of doing so, end up wrecking her daughter's life. The tragedy which lies ahead for mother is that the time may come when D. blames mother for denying her a relationship with her father and turns against mother ...”
He decided to adjourn the applicant's application for residence so that one final attempt could be made to establish contact, both indirect and direct. He warned the mother that, if she still could not facilitate contact, the applicant would inevitably restore his application for residence and she should realise that there was a very real chance that the court would be compelled to remove D. from her care, as in the applicant's care D. would be able to continue to see both her parents. He considered that the mother had shown herself largely impervious to the threat of imprisonment and appeared willing to pay that price; however, her avowed fear of losing her daughter would become a horrible reality if she did not promote contact in the future. He ordered that the burden be lifted from D.'s shoulders; that D. be informed that contact would take place and that a tightly structured approach to contact leading to direct contact within three months be adopted. The parties agreed to the detailed order, which provided for review in March 2003.
The case was reviewed by the court on 17 March 2003.
On 15 April 2003 the guardian reported on the progress of work. The mother, despite initial reluctance, had attended eight sessions on the subject of contact and had been following advice on reintroducing the subject of contact with D., delivering gifts and reading out letters, and maintaining a firm approach when D. was negative. A first direct contact visit was planned to take place in the presence of the mother and her new partner and other children in a bowling alley. However, on the day concerned, 3 May 2003, when the social worker arrived, D. remained in her room, screaming and refusing to dress or come down. The contact was cancelled. D. later refused to see the social worker.
On 23 June 2003 the case was reviewed by the court. Mr Justice Munby ordered that the applicant's application for contact and restored application for residence be listed for final hearing in November 2003.
In her report of 27 October 2003, the guardian reported that D. had refused to talk to her but that it was clear that she was distressed when the issue of contact was raised and that she had stated that she did not wish to have contact. She was unable to make any further suggestions regarding the promoting of contact and was of the view that the mother had, this time, attempted to promote contact to the best of her ability. She did not recommend any change in residence.
On 10 and 11 November 2003 the case came back before Mr Justice Munby, who reviewed the attempts at renewing contact and approved a consent order. He had no doubt that the guardian and the independent social worker had done everything possible to resume contact, though it was now impossible to say if they could have achieved more if they had been brought in earlier. The situation was now all too clear and the experts were unanimous that there was no alternative to leaving D. with the mother. As a result, he noted that the applicant “bravely but realistically” withdrew his applications for residence and direct contact. He approved the consent order drawn up by the parties, which contained, inter alia, the mother's undertaking to promote a positive image of the applicant and provided for indirect contact as specified in the appendix and allowed such direct contact as might be later agreed between the parties or as the child wished. He made remarks urging the applicant to persevere with indirect contact as in time D. would need him, warning the mother that she had not won a victory but stored up terrible problems for herself in the future. He agreed that the applicant, who had nothing to reproach himself for, was entitled to feel let down by the system and stated that there were lessons to be learned from this: in the public interest he intended to give a judgment dealing with the wider aspects.
His full judgment on this occasion does not appear to have been delivered until 16 February 2004.
On 1 April 2004 Mr Justice Munby issued a further judgment dealing with the wider issues of procedure highlighted by the case. In his judgment of thirty-three pages, he noted that the case could be seen as exemplifying everything that was wrong with the system. He handed down this judgment in public, with names anonymised, to deal with the failings revealed.
Among other things he emphasised the importance that both parents, residential and non-residential, played in a child's life and acknowledged that there were cases where mothers deliberately alienated children to prevent contact taking place and where the court process had not proved successful in dealing with them. While mothers and fathers had equal rights before the courts, there were, however, more non-resident fathers than non-resident mothers and when the system failed, as it did, it was disproportionately fathers not mothers who found themselves, as well as the children, victims of that failure. In this case, he criticised: the length of the proceedings (five years); the large number of hearings and astonishing number of different judges involved (namely 43 hearings by 16 different judges); the vast bulk of evidence filed over the years, more than 950 pages, a ceaseless proliferation of paper which was the product of delay, as with every adjournment fresh reports were needed in order to keep the case file up to date; the fact that the final hearing for residence was listed on four different occasions in 1999 but adjourned, and that five dates in 2000 and 2001 were also adjourned until the final order was made on 31 August 2001; the great delay in the courts making findings in relation to the mother's wholly groundless allegations which could have been made earlier and some allegations of domestic violence which were never subject to any findings; the great delay in seeking expert assistance other than the court welfare officer (the independent social worker had not been involved until 31 August 2001, the guardian on 26 March 2002); and the characteristic judicial response when difficulties with contact emerged to reduce the amount of contact and replace direct contact with indirect contact. He summarised the problems as being:
(i) the appalling delays in the court system, exacerbated by the absence of any judicial continuity, seemingly endless directions hearings, the lack of any overall timetable and the failure of the court to adhere to such timetable as had been set;
(ii) the court's failure to get to grips with the mother's (groundless) allegations; and
(iii) the court's failure to get to grips with the mother's defiance of its orders, and the court's failure to enforce its own orders.
After reviewing Strasbourg jurisprudence concerning the obligation on authorities to facilitate or enforce access arrangements, he considered that it could not be assumed that conventional domestic approaches met the standards required by Articles 6 and 8 of the Convention, in particular noting that it was almost impossible to see how a five-year timescale as in this case could be compatible with the Convention. He recommended taking steps to divert parents into a non-court process including parent education and contact-focused mediation, concentrating court time and resources on serious cases which required greater judicial input. He also recommended improving court procedures, including a fast-track procedure, the highest practical level of judicial continuity (not more than two judges at the most) and case management, the timetabling of cases to final hearing at the earliest practical stage, with not more than four intermediate hearings, to ensure conclusion within months rather than years and the fixing of a judicial strategy for each case. He also identified the immense value of children's guardians and the need for skilled social-work intervention, in particular an independent social worker, and recommended that allegations of misconduct be speedily investigated and resolved, not left to fester and cause continuing friction and dispute, and that once findings had been made, the questions were not to be reopened. Swift, efficient enforcement of court orders was also called for, with direct judicial supervision of contact and the imposition of imprisonment for one or several days could suffice to deter the mother without significantly impairing her ability to look after her children.
“There are no simple solutions. And it is idle to imagine that even the best system can overcome all problems. The bitter truth is that there will always be some contact cases so intractable that they will defeat even the best and most committed attempts of judges. But that is no reason for not taking steps – urgent steps – to improve the system as best we can.
Whether an improved system would have provided a better outcome for this child and this father is now almost impossible to know. Perhaps it would. Perhaps not. But they were denied the chance of a better outcome and for that they deserve a public, albeit necessarily anonymous, apology. We failed them. The system failed them.”


ITEMID: 001-105575
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: GRANDCHAMBER
DATE: 2011
DOCNAME: CASE OF STUMMER v. AUSTRIA
IMPORTANCE: 1
CONCLUSION: No violation of Art. 14+P1-1;No violation of Art. 4
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Kristina Pardalos;Nicolas Bratza;Peer Lorenzen;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 8. The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1 January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison.
9. On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office (Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”).
10. By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods.
11. Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court (Arbeits- und Sozialgericht). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights.
12. On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination.
13. The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system.
14. On 24 October 2001 the Vienna Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme.
15. On 12 February 2002 the Supreme Court (Oberster Gerichtshof) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002.
16. On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments (Notstandshilfe). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR 15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses).
17. The basis of the Austrian social security system is laid down in two laws: the General Social Security Act (Allgemeines Sozialversicherungsgesetz) and the Unemployment Insurance Act (Arbeitslosenversicherungsgesetz). Austrian social security law is based on the contributory principle.
18. The General Social Security Act encompasses health and accident insurance and old-age pension.
19. Section 4 of the General Social Security Act regulates compulsory affiliation to the social security system. Pursuant to section 4(1)(1), employees are affiliated to the health and accident insurance scheme and to the old-age pension scheme. Section 4(2) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency. A further condition for compulsory affiliation is that the salary exceeds the marginal earnings threshold (Geringfügigkeits-grenze). At current levels, this amount is set at EUR 366.33 per month (section 5(2)).
20. For an employee affiliated to the social security system, compulsory contributions have to be paid in part by the employer and in part by the employee.
21. Section 17(1) provides that persons who are no longer covered by compulsory affiliation to the social security system may continue to pay voluntary contributions (freiwillige Weiterversicherung) if they have accumulated at least twelve insurance months out of the previous twentyfour months within the system or at least three insurance months during each of the previous five years. Contributions can be reduced within certain limits if the economic circumstances of the person concerned justify such a reduction.
22. Entitlement to an old-age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance months, namely a minimum of 180 months or, in the case of an early retirement pension, 240 months. When calculating the number of insurance months, certain periods during which no gainful activity has been pursued, and thus no contributions were made, are nevertheless taken into account as substitute periods (Ersatzzeiten), for instance periods of child-rearing, military service or unemployment.
23. The amount of an old-age pension depends mainly on the number of insurance months and the level of contributions paid. If the pension thus calculated does not reach a certain minimum level, which at current rates is EUR 783.99 per month for a single person and EUR 1,175.45 for a couple, a supplementary payment (Ausgleichszulage) is added in order to reach the minimum level.
24. During a prison term exceeding one month, entitlements to health, accident and pension insurance are suspended (section 78 of the General Social Security Act). The livelihood of prisoners is to be provided by the prison authorities. Likewise, their health care and care in case of an accident have to be provided for by the State in accordance with the Execution of Sentences Act (see paragraphs 41 and 44 below).
25. As a matter of principle, working prisoners are not affiliated to the general social insurance system. According to the Supreme Court’s case-law, prisoners performing work are not treated as employees within the meaning of section 4(2) of the General Social Security Act.
26. In a judgment of 27 February 1990 (no. 10 ObS 66/90), the Supreme Court examined an appeal by a former prisoner against a decision refusing him an invalidity pension on the ground that he had not accumulated the requisite number of insurance months. The Supreme Court ruled as follows:
“According to the unanimous legal opinion of the competent Federal Ministry (Collection of Publications in Social Insurance Matters, SVSlg 19.570), the Administrative Court (2 February 1972, 782/71 and 62/72, VwSlgNF 8162 = SVSlg 21.171) and the Vienna Court of Appeal (SVSlg 8.868, 21.172, 26.918, 30.930 and 32.418), this work, which is performed on the basis of a statutory rather than a voluntarily accepted duty to work, does not fall within the scope of the compulsory insurance scheme. Legal commentators also favour the interpretation that social insurance law, like labour law, requires that employment contracts be established voluntarily. Services rendered compulsorily under public law are not based on any service contract. Accordingly, work performed in the context of execution of a sentence cannot be subsumed within section 4(2) of the General Social Security Act (see Krejci-Marhold in Tomandl, SV-System 3. ErgLfg 46; MGA ASVG 49, ErgLfg 125; Krejci in Rummel, ABGB § 1151 Rz 16). In its judgment of 26 November 1971 (B 128/71, VfSlg 6582 = SVSlg 21.170), the Constitutional Court held that the decision of the legislature that work performed in the context of execution of a prison sentence did not fall within the social insurance scheme – because the requisite voluntary acceptance of a specific duty to work required in order to make out a contract of employment necessitating the payment of social insurance contributions was absent – did not infringe the principle of equal treatment.
...
The medical care due to prisoners in accordance with sections 66 et seq. of the Execution of Sentences Act and the benefits due to them, in accordance with sections 76 et seq. of that Act, after work-related accidents or illnesses within the meaning of section 76(2-4) of that Act, provide to this category of persons a statutory health and accident insurance scheme adapted to the prison context.
The fact that prisoners also, in the context of their duty to work – other than, for example, in the context of an employer-employee relationship – are not covered by compulsory insurance under the statutory pension scheme is justifiable on grounds of the above-mentioned substantive differences in relationship and accordingly – as held by the Constitutional Court in its judgment – does not infringe the principle of equal treatment.
Periods spent in pre-trial detention or serving a prison sentence or in preventive detention will, in accordance with the General Social Security Act, only be regarded as compulsory contributory periods if the custodial measures have been imposed either on political grounds – other than national socialist activity – or on religious grounds or on grounds of descent (section 500 and section 502(1)) or if an Austrian court (in accordance with the Compensation (Criminal Proceedings) Act) has given a binding decision in respect of the periods of detention recognising a claim for damages for the detention or conviction (section 506a). Such periods of time, regarded as valid compulsory contributory periods, are to be regarded in the first-mentioned case as not requiring the payment of contributions (section 502(1), third sentence); in the second-mentioned case, the Federal State shall pay the corresponding contributions to the relevant insurance institution (section 506a, second sentence). The purpose in both cases is to compensate for the disadvantages incurred under social insurance law that have arisen on socially acceptable grounds rather than deprivation of liberty on grounds of guilty conduct. An extension of these exceptional provisions to time served in detention on grounds of culpable conduct would be contrary to the principle of equal treatment. Recognition of such periods of time as substitute periods would also be contrary to the principle of equal treatment, for similar reasons. ... Prisoners to whom the above-mentioned exceptions under section 502(1) and section 506a do not apply shall not thereby accumulate, in the context of their duty to work, either contributory periods under the compulsory insurance scheme or substitute periods. They are not, however, prevented by the execution of the sentence from continuing to make contributions to the old-age pension insurance scheme under section 17 and accumulating contributory periods through the payment of voluntary contributions, whereby continued insurance, at the request of the contributor, as far as this appears justified on the basis of his or her economic situation, shall be permitted, in accordance with section 76a(4), at a lower contribution level than the one provided for in subsections (1-3) of that provision. In accordance with section 75(3) of the Execution of Sentences Act, prisoners are to be informed of the possibilities and advantages of, inter alia, optional continued insurance, and they are also permitted to use funds for the payment of contributions to the social insurance scheme which are not otherwise available to them during execution of their sentence. By virtue of the very flexible continued insurance (see section 17(7-8)) – particularly in respect of the beginning, end and determination of the contributory months – a prisoner can also accumulate further contributory months in order to make up the qualifying period and/or obtain a higher pensions increment. In this connection, the fact should not be overlooked that if one were to proceed on the basis that a prisoner is covered under the invalidity and old-age pension insurance scheme in respect of work done during the execution of the sentence, contributions would accordingly have to be made for the relevant periods. Other than under section 506a, according to which the Federal State has to pay the contributions corresponding to these contributory periods (as part of the criminal compensation scheme) to the relevant insurance institution, a State contribution would not be reasonable here. ... It would not be reasonable in such cases to expect the community of insured persons to accept that periods for which no contributions have been made should give rise to pension entitlements; prisoners would have to make such contributions, so the position would not be essentially different from optional insurance. Accordingly, if the legislature has decided that work done in the context of a prisoner’s duty to work cannot fundamentally give rise to compulsory contributory periods or substitute periods and, in the light of that, has made provision only for the above-mentioned exceptions, that decision is based on objective considerations.
Accordingly, the Supreme Court has no doubts regarding the constitutionality of the statutory provisions applicable to the present case.”
27. In a judgment of 16 March 1999 (no. 10 ObS 52/99s) the Supreme Court confirmed its previous judgment.
28. For the purpose of calculating entitlement to an old-age pension, periods spent in prison are only taken into consideration in specific circumstances defined in the General Social Security Act. For instance, periods spent in prison for which compensation has been granted under the Compensation (Criminal Proceedings) Act (Strafrechtliches Entschädigungsgesetz) are counted as substitute periods.
29. Employees are also affiliated to the unemployment insurance scheme. Compulsory contributions have to be paid in part by the employer and in part by the employee.
30. Since the 1993 amendment to the Unemployment Insurance Act, prisoners who perform work in accordance with section 44(1) of the Execution of Sentences Act are affiliated to the unemployment insurance scheme pursuant to section 66a of the Unemployment Insurance Act. The employee’s part of the contributions is to be paid from the prisoner’s remuneration, if the remuneration exceeds the marginal earnings threshold, while the employer’s part is to be paid by the State, through the Ministry of Justice. The amendment came into force on 1 January 1994.
31. As regards the amendment to the law, which formed part of a broader reform of the system of execution of sentences, the Parliamentary Judicial Committee (Justizausschuß) considered the affiliation of working prisoners to the unemployment insurance scheme to constitute a first step towards their full integration into the social security system. The Judicial Committee underlined that affiliating working prisoners to the unemployment insurance scheme was an important step towards increasing their chances of reintegration into society and limiting the prospect of recidivism (see p. 1253 of the annex to the minutes of the National Council (Beilagen zu den Stenographischen Protokollen des Nationalrates, XVIII.GP).
32. Entitlements under the Unemployment Insurance Act include access to training courses, job-search facilities, and payment of unemployment benefits (which, to a certain extent, are related to previous salary) for a certain period. Upon the expiry of unemployment benefits, the insured person is entitled to payment of emergency relief, which is designed to provide a minimum amount of subsistence. Emergency relief will continue to be paid after a person has reached pensionable age if no entitlement to a pension is granted.
33. At the hearing, the Government provided the following information on the percentage of working prisoners and prisoners receiving unemployment benefits following their release.
(a) In 2009, 12,460 persons were detained, of whom 8,903 (approximately 71%) were working and thus covered by unemployment insurance. Only 2,490 of these working prisoners actually paid contributions as they earned more than the required minimum level, and the others did not have to pay contributions.
(b) Between 1 January and 30 June 2010, 9,477 persons were detained, of whom 6,791 (approximately 71%) were working and thus covered by unemployment insurance. Only 1,879 of these working prisoners actually paid contributions as they earned more than the required minimum level per month, and the others did not have to pay contributions.
(c) Between 1 January 2009 and 30 June 2010, 2,086 persons qualified to receive unemployment benefits on account of the fact that they were included in the unemployment insurance scheme during their prison term; 1,898 of them applied for unemployment benefits upon their release, receiving an average benefit of EUR 21.09 per day (the general average being EUR 26.90 per day).
34. Social security is complemented by means-tested social assistance. The latter is designed to provide persons who do not have the necessary means (personal means or entitlements from old-age pension insurance or unemployment insurance) with a minimum income in order to meet their basic needs.
35. On 1 September 2010 a new system, namely the means-tested minimum income scheme (bedarfsorientierte Mindestsicherung), came into force, replacing social assistance. It guarantees a minimum income to all persons who are willing and able to work or who are over 65 years old and do not have other means of subsistence. The amount is aligned with the minimum pension.
36. Pursuant to section 44(1) of the Execution of Sentences Act (Strafvollzugsgesetz), any prisoners who are fit to work are obliged to perform work assigned to them.
37. Section 45(1) of the Act obliges the prison authorities to provide each prisoner with useful work. Section 45(2) specifies the different kinds of work which may be assigned to prisoners. They include, inter alia, tasks to be carried out within the prison, work for public authorities, work for charities, and work for private employers.
38. Under section 46(3), the prison authorities may conclude contracts with private enterprises as regards prisoners’ work.
39. Pursuant to section 51, the Federal State (der Bund) receives the proceeds of prisoners’ work.
40. Prisoners who perform their work satisfactorily have a right to remuneration. The amounts of remuneration – per hour and type of work – are fixed in section 52(1). At current rates, they are as follows:
(a) for light unskilled work EUR 5.00
(b) for heavy unskilled work EUR 5.63
(c) for manual work EUR 6.26
(d) for skilled work EUR 6.88
(e) for work performed by a skilled worker EUR 7.50
41. The prison authorities have to provide for the livelihood of prisoners (section 31).
42. Pursuant to section 32 of the Act, all prisoners have to contribute to the costs of the execution of their sentence unless they fall within the scope of certain exceptions. If the prisoner works, the contribution amounts to 75% of his or her remuneration. It is deducted automatically from the remuneration.
43. Moreover, the employee’s part of the contribution to the unemployment insurance scheme is deducted from the prisoner’s remuneration. The remainder of the prisoner’s remuneration is used as follows: half of it is given to the prisoner as “pocket money” and the other half is kept as savings which the prisoner receives upon release (section 54).
44. Health and accident care for prisoners is to be provided by the prison authorities pursuant to sections 66 et seq. and 76 et seq. of the Execution of Sentences Act. In essence, the entitlement to health and accident care corresponds to the entitlement under the General Social Security Act.
45. If prisoners refuse the work assigned to them, this constitutes an offence under section 107(1)(7) of the Execution of Sentences Act. The penalties set out in section 109 range from a reprimand, or a reduction or withdrawal of certain rights (for instance, the right to use “pocket money”, to watch television, to send and receive correspondence or telephone calls), to a fine or house arrest (solitary confinement).
46. According to the information provided by the Government, more than 70% of prisoners in Austria are currently working. Owing to the requirements of prison routine, the average working day is approximately six hours. However, time spent by a prisoner undergoing therapeutic or social treatment is regarded and remunerated as working time up to a maximum of five hours per week.
47. The Forced Labour Convention (No. 29) (“ILO Convention No. 29”) was adopted on 28 June 1930 by the General Conference of the International Labour Organization (ILO) and came into force on 1 May 1932. The relevant parts of Article 2 provide as follows:
“1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.
2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include:
...
(c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations;
...”
The International Labour Conference (the annual meeting of member States of the ILO) at its ninety-sixth session in 2007, carried out a general survey concerning ILO Convention No. 29 based on a report of the Committee of Experts on the Application of Conventions and Recommendations (“the Committee”).
The report dealt, inter alia, with the question of prison work for private enterprises. Noting that prison work for private employers was prohibited by Article 2 § 2 (c) of ILO Convention No. 29, the Committee found that there might be conditions in which, notwithstanding their captive circumstances, prisoners could be considered to have offered themselves voluntarily and without the menace of any penalty for work with a private employer. In this connection, apart from the formal written consent of the prisoner, conditions approximating a free labour relationship (in terms of wage levels, social security and occupational safety and health) were regarded to be the most reliable indicator of the voluntariness of labour. If such conditions were met, prison work for private enterprises was considered not to come under the definition of forced labour provided in Article 2 § 1 and, consequently, was considered to fall outside the scope of ILO Convention No. 29 (paragraphs 59-60 and 114-16 of the Committee’s report).
48. The International Covenant on Civil and Political Rights was adopted on 16 December 1966 by United Nations General Assembly Resolution 2200A (XXI) and came into force on 23 March 1976. The relevant parts of Article 8 read as follows:
“3. (a) No one shall be required to perform forced or compulsory labour;
(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;
(c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include:
(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;
...”
49. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by the Rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates.
50. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987.
51. In Part I, the 1987 Rules contained a number of basic principles, including the following:
“1. The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules.
...
3. The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release.
...”
52. In Part IV, under the heading “Treatment objectives and regimes”, they contained the following rules:
“64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.
65. Every effort shall be made to ensure that the regimes of the institutions are designed and managed so as:
(a) to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community;
(b) to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners;
...”
53. Also in Part IV, under the heading “Work”, they contained the following rules:
“71.1. Prison work should be seen as a positive element in treatment, training and institutional management.
71.2. Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer.
71.3. Sufficient work of a useful nature, or if appropriate other purposeful activities, shall be provided to keep prisoners actively employed for a normal working day.
71.4. So far as possible the work provided shall be such as will maintain or increase the prisoner’s ability to earn a normal living after release.
...
72.1 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of normal occupational life. ...
...
74.1. Safety and health precautions for prisoners shall be similar to those that apply to workers outside.
74.2. Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to workers outside.
...
76.1. There shall be a system of equitable remuneration of the work of prisoners.”
54. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”.
55. Part I of the 2006 Rules contains the following basic principles, inter alia:
“2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
...
5. Life in prison shall approximate as closely as possible the positive aspects of life in the community.
6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.”
The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems ) notes that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights, so that restrictions should be as few as possible. The commentary observes that Rule 5 underlines the positive aspects of normalisation, recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”.
56. In Part II (“Conditions of imprisonment”), Rule 26 of the 2006 Rules deals with the various aspects of prison work. The relevant parts thereof read as follows:
“26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment.
26.2 Prison authorities shall strive to provide sufficient work of a useful nature.
26.3 As far as possible, the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release.
...
26.7 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life.
...
26.9 Work for prisoners shall be provided by the prison authorities, either on their own or in cooperation with private contractors, inside or outside prison.
26.10 In all instances there shall be equitable remuneration of the work of prisoners.
...
26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside.
26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside.
...
26.17 As far as possible, prisoners who work shall be included in national social security systems.”
The commentary on Rule 26 underlines the principle of normalisation of prison work in that provisions for health, safety, working hours and “even involvement in national social security systems” should reflect those for workers on the outside. In contrast, the 1987 Rules, although they contain the notion of normalisation of prison work, are silent on the question of prisoners’ inclusion in national social security systems.
57. Part VIII of the 2006 Rules, entitled “Sentenced prisoners”, contains further rules regarding the objective of the regime for sentenced prisoners:
“102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.
102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.”
58. It also deals with work as one aspect of the regime for sentenced prisoners. The relevant parts of Rule 105 provide as follows:
“105.2 Sentenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner.
105.3 If sentenced prisoners are required to work, the conditions of such work shall conform to the standards and controls which apply in the outside community.”
59. The European Social Charter, a Council of Europe treaty which was adopted in 1961 and revised in 1996, is also of some relevance in the present context. Article 1, dealing with the right to work, provides:
“With a view to ensuring the effective exercise of the right to work, the Parties undertake:
1. to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment;
2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon;
...”
The European Committee of Social Rights, the body responsible for monitoring States Parties’ compliance with the European Social Charter, has interpreted Article 1 § 2 to mean that prison work must be strictly regulated, in terms of pay, working hours and social security, particularly if prisoners are working for private firms. Prisoners may only be employed by private enterprises with their consent and in conditions as similar as possible to those normally associated with a private employment relationship (see Digest of the Case Law of the European Committee of Social Rights, 1 September 2008, p. 23).
60. From the information available to the Court, including a survey on comparative law taking into account the national laws of forty out of the forty-seven member States of the Council of Europe, it would appear that
(a) in twenty-five member States, prisoners are, at least in some circumstances, required to work, namely Azerbaijan, the Czech Republic, Estonia, Finland, Georgia, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Montenegro, Russia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom;
(b) twenty-two member States give prisoners access to the old-age pension system, namely Albania, Andorra, Azerbaijan, Croatia, Cyprus, the Czech Republic, Finland, France, Ireland, Italy, Latvia, Lithuania, Norway, Portugal, Russia, Slovakia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom. In some of these States, prisoners are not automatically covered by the insurance scheme (by way of compulsory contributions or tax deduction) but only have the possibility of paying voluntary contributions;
(c) in twelve member States, prisoners are not covered by an old-age pension scheme, namely Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Greece, Hungary, Malta, Montenegro, the Netherlands, Romania and Serbia;
(d) in a third group of member States, affiliation to the social security system (including old-age pension) depends on the type of work performed, mainly on whether it is work for outside employers/remunerated work or not. This is the case in Germany, Luxembourg, Poland, Spain and Sweden. In Denmark, entitlement to an old-age pension is not related to work and payment of contributions. All persons of pensionable age are entitled to receive a basic pension; and
(e) thirty-seven member States, that is, an absolute majority, provide prisoners, or at least certain categories of prisoners, with some access to social security protection, either by affiliating them to the general social security system or parts of it, or by providing them with a specific type of insurance or other protection.
NON_VIOLATED_ARTICLES: 14
4
P1
NON_VIOLATED_PARAGRAPHS: P1-1