ITEMID: 001-57580
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 1982
DOCNAME: CASE OF SPORRONG AND LÖNNROTH v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Fair hearing;Public hearing);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
JUDGES: C. Russo
TEXT: 9. The two applications relate to the effects of long-term expropriation permits and prohibitions on construction on the Estate of the late Mr. Sporrong and on Mrs. Lönnroth, in their capacity as property owners.
10. The Sporrong Estate, which has legal personality, is composed of Mrs. M. Sporrong, Mr. C.-O. Sporrong and Mrs. B. Atmer, the joint heirs of the late Mr. E. Sporrong; they reside in or near Stockholm. They own a property, situated in the Lower Norrmalm district in central Stockholm and known as "Riddaren No. 8", on which stands a building dating from the 1860’s. In the 1975 tax year the rateable value of the property was 600,000 Swedish crowns.
11. On 31 July 1956, acting pursuant to Article 44 of the Building Act 1947 (byggnadslagen - "the 1947 Act"), the Government granted the Stockholm City Council a zonal expropriation permit (expropriationstillstånd) covering 164 properties, including that owned by the Sporrong Estate. The City intended to build, over one of the main shopping streets in the centre of the capital, a viaduct leading to a major relief road. One of the viaduct’s supports was to stand on the "Riddaren" site, the remainder of which was to be turned into a car park.
Under the Expropriation Act 1917 (expropriationslagen - "the 1917 Act"), the Government set at five years the time-limit within which the expropriation might be effected; before the end of that period the City Council had to summon the owners to appear before the Real Estate Court (fastighetdomstolen) for the fixing of compensation, failing which the permit would lapse.
12. In July 1961, at the request of the City, the Government extended this time-limit to 31 July 1964. Their decision affected 138 properties, including "Riddaren No. 8". At that time, the properties in question were not the subject of any city plan (stadsplan).
13. On 2 April 1964, the Government granted the City Council a further extension of the expropriation permit; this extension was applicable to 120 of the 164 properties originally concerned, including "Riddaren No. 8", and was valid until 31 July 1969. The City had prepared for Lower Norrmalm a general development plan, known as "City 62", which gave priority to street-widening for the benefit of private traffic and pedestrians.
Subsequently, "City 67", a revised general development plan for Lower Norrmalm and Östermalm (another district in the city centre), stressed the need to improve public transport by means of a better network of roads. Some of the sites involved were to be used for street-widening, but any final decision had to await a decision as to the utilisation of the orders. It was estimated that the revised plan, which was of the same type as "City 62", should be implemented before 1985.
14. In July 1969, the City Council requested a third extension of the expropriation permit as regards certain properties, including "Riddaren No. 8", pointing out that the reasons for expropriation given in the "City 62" and "City 67" plans were still valid. On 14 May 1971, the Government set 31 July 1979, that is to say ten years from the date of the request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation.
In May 1975, the City Council put forward revised plans according to which the use of "Riddaren No. 8" was not to be modified and the existing building was not to be altered.
On 3 May 1979, the Government cancelled the expropriation permit at the Council’s request (see paragraph 29 below).
15. The Sporrong Estate has never attempted to sell its property.
16. On 11 June 1954, the Stockholm County Administrative Board (länsstyrelsen) had imposed a prohibition on construction (byggnadsförbud) on "Riddaren No. 8", on the ground that the proposed viaduct and relief road would affect the use of the property. The prohibition was subsequently extended by the Board to 1 July 1979.
17. In 1970, the Sporrong Estate obtained an exemption from the prohibition in order to widen the front door of the building. It never applied for any other exemptions.
18. The expropriation permit and the prohibition on construction affecting; "Riddaren No. 8" were in force for total periods of twenty-three and twenty-five years respectively.
19. Mrs. I. M. Lönnroth lives in Stockholm, where she owns three-quarters of a property situated at "Barnhuset No. 6", in the Lower Norrmalm district; it is occupied by the two buildings erected in 1887-1888, one of which faces the street and the other the rear. In the 1975 tax year the rateable value of the applicant’s share of the property was 862,500 Swedish crowns.
20. On 24 September 1971, the Government authorised the Stockholm City Council to expropriate 115 properties, including "Barnhuset No. 6", and set 31 December 1979, that is to say ten years from the date of the Council request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation. They justified their decision by reference to the "City 67" plan which envisaged that a multi-storey car park would be erected on the site of the applicant’s property.
21. However, work in this district was postponed and new plans were prepared for consideration. Believing her property to be in urgent need of repair, Mrs. Lönnroth requested the Government to withdraw the expropriation permit. The City Council replied that the existing plans did not allow any derogation to be made, and on 20 February 1975 the Government refused the request on the ground that the permit could not be revoked without the express consent of the City Council.
On 3 May 1979, the Government cancelled the permit at the Council’s request (see paragraph 29 below).
22. Mrs. Lönnroth’s financial situation obliged her to try to sell her property. She made seven attempts to do so between 1970 and 1975, but the prospective buyers withdrew after they had consulted the city authorities. In addition, she sometimes had difficulty in finding tenants.
23. On 29 February 1968, the Stockholm County Administrative Board decided to impose a prohibition on construction on "Barnhuset No. 6", on the ground that the site was to be turned into a car park. The prohibition was subsequently extended by the Board to 1 July 1980.
24. In 1970, Mrs. Lönnroth was granted an exemption in order to make alterations to the third floor of her premises; she never sought any other exemptions.
She failed to obtain a loan when, in the early 1970’s, one of the property’s major mortgagees demanded that the façade be renovated.
25. To sum up, Mrs. Lönnroth’s property was subject to an expropriation permit and a prohibition on construction for eight and twelve years respectively.
26. For several decades, spectacular changes have been taking place in the centre of Stockholm, comparable to those which have occurred in many cities which were reconstructed after being destroyed or severely damaged during the second world war.
27. Lower Norrmalm is a district where most of the capital’s important administrative and commercial activities used to be concentrated. Around 1945, the view was taken that the district should be restructured so that those activities could be carried on satisfactorily. For instance, a proper network of roads was needed.
Furthermore, most of the buildings were decrepit and in a poor state of repair. A large-scale redevelopment scheme was necessary in order to provide suitable premises for offices and shops as well as to create a healthy and hygienic working environment. Zonal expropriation, introduced by an Act of 1953 which amended, inter alia, Article 44 of the 1947 Act, became the key instrument for implementing the City Council’s plans. In less than ten years more than one hundred buildings were demolished. Some of the vacant sites thereby created were used to make new roads and others were integrated into larger and more functional complexes.
28. During the 1970’s, town-planning policy in Stockholm evolved considerably. Far from being in favour of opening access roads to the centre, the city authorities were now trying to reduce the number of cars in the capital. This new policy was reflected in the "City 77" plan, which was adopted on 19 June 1978. It makes provision for urban renovation based above all on gradual rebuilding that takes account of the present urban fabric and it envisages the preservation and restoration of most of the existing buildings.
29. On 3 May 1979, the Government, granting a request submitted by the City Council in October 1978, cancelled, as regards about seventy properties including those of the applicants, the expropriation permits issued in 1956 and 1971. This was because it was by then considered unlikely that the City would need to acquire these properties in order to implement its new town-planning scheme.
30. Notwithstanding the difficulties occasioned by the existence of zonal expropriation permits, it has proved possible to sell sixty-six properties in Stockholm affected by such permits.
31. The 1947 Act is the main legal instrument of town-planning policy in Sweden. For this purpose, it provides for the drawing up of master plans and city plans.
32. A master plan (generalplan) will be drawn up by the municipality concerned in so far as this may be required in order to establish a framework for more detailed plans. Its adoption is a matter for the municipal council (kommunfullmäktige), which may refer the plan to the County Administrative Board - before 1 January 1973, to the Government - for approval (Article 10).
33. City plans are prepared for those urban areas in which this is deemed necessary (Article 24). A city plan is more detailed than a master plan: it will indicate the purposes for which the various areas may be utilised - housing, roads, squares, parks, etc. - and may also include more specific provisions on their use (Article 25). After adoption by the municipal council, it must be approved by the County Administrative Board. In the course of this procedure, property owners have various opportunities to submit their views to several agencies and they may, in the last resort, challenge the decision adopting the plan.
34. In some cases master plans and city plans will be submitted to the Government for a decision.
35. In conjunction with - or independently of - these plans, the Swedish authorities may resort to expropriations and to prohibitions on construction, measures between which there is not necessarily any legal connection.
36. As regards expropriation, the law applicable in the present case was mainly that contained in the 1917 Act, which was replaced with effect from 1 January 1973 by the Expropriation Act 1972 ("the 1972 Act"). Some additional matters were dealt with in the 1947 Act.
37. It is for the Government to decide whether expropriation should be authorised. Their decision takes the form of an expropriation permit and is based on the various conditions laid down in the Act. Issue of the permit does not automatically lead to an expropriation; it simply entitles a given public authority (or, in exceptional cases, a private individual or a company) to effect the expropriation if necessary. It leaves intact the owner’s right to sell, let or mortgage his property, and is subject to a time-limit within which the expropriating authority must initiate judicial proceedings for the fixing of compensation, failing which the permit will lapse. The 1917 Act was silent as to the length of this time-limit and as to the extension of the validity of permits.
The official statement of reasons accompanying the Bill in which the 1972 Act originated drew attention to the disadvantages which expropriation permits occasion for property owners - uncertainly, restriction of the possibility of disposing of their property, difficulty in deciding whether to incur expenditure -, disadvantages which become more serious with the passage of time.
For this reason Article 6 par. 1 of Chapter 3 of the 1972 Act provides (translation from the Swedish):
"Expropriation permits shall set a time-limit for service of a summons to appear for the purposes of judicial proceedings. The time-limit may be extended if there are special reasons. Requests for extension shall be submitted before the time-limit expires. If the owner establishes that the fact that the question of expropriation remains pending has occasioned significantly more serious prejudice, the time-limit may, at his request, be reduced. No decision to reduce the time-limit can be taken until one year has elapsed since the issue of the expropriation permit."
The expropriation is not completed until compensation has been fixed and paid. The Real Estate Court has jurisdiction in the matter; its decisions may be challenged in the Court of Appeal and, in the final instance, the Supreme Court.
38. Before 1 July 1953, expropriation related only to individual properties; each request for an expropriation permit described in detail the use to which the expropriating authority intended to put the premises concerned.
The present applications involve another kind of expropriation, known as zonal expropriation. The relevant provision was introduced in 1953, by means of an amendment to Article 44 of the 1947 Act, and was repealed in 1971 with effect from 1 January 1972. It was as follows (translation from the Swedish):
"If it is deemed necessary, for the purposes of public transport or town planning, to carry out a complete redevelopment of a densely-populated district and if such redevelopment can be effected only by means of rebuilding the entire district, the King may - where the redevelopment measures involve the adoption or modification of a city plan for the district concerned - grant the municipality the right to buy up the land needed for the redevelopment and also any land which is situated in the same district or in the immediate vicinity and whose value is likely to increase considerably as a result of the implementation of the plan ..."
Between 1 January and 31 December 1972, provisions corresponding to this Article 44 were incorporated in the 1917 Act; they now appear in the 1972 Act (Chapter 2, Article 1).
Zonal expropriations were thus designed as an instrument for major town-planning schemes. The permits which they entail may be issued as soon as a new city plan is under consideration, that is to say even before detailed arrangements for its implementation have been worked out.
39. Under Article 11 of the transitional provisions of the 1972 Act, requests for expropriation permits submitted before this new Act came into force continue to be subject to the old Act.
40. Like the 1917 Act, the 1972 Act does not provide for any possibility of compensation for prejudice resulting from the length of the validity of, or failure to utilise, an expropriation permit. It does, however, contain one exception (Chapter, 5, Article 16): compensation is payable for prejudice occasioned by the issue of an expropriation permit if the authority or person to whom it was granted has instituted, but subsequently abandoned, proceedings for the fixing of compensation.
41. The 1947 Act prohibits any new construction that is not in conformity with the city plan (Article 34). It permits, even before, and until, such a plan has been adopted by the municipal authorities and approved by the regional authorities, the prohibition as an interim measure of any construction work (Article 35 combined with Articles 14 and 15 of the 1947 Act). Article 15 of the Act provides as follows (translation from the Swedish):
"If a question is raised concerning a request for the adoption of a master plan for a certain zone or for the amendment of a master plan that has already been approved, the County Administrative Board may, at the request of the municipality, prohibit all new construction (nybyggnad) in that zone. The prohibition shall remain in force until a decision in the matter has been taken by the municipal council, but not for more than one year. Where necessary, the County Administrative Board may, at the request of the municipality, extend the validity of the prohibition on contruction by a maximum of two years at a time.
Exemptions form the prohibition on construction referred to in the preceding paragraph may be granted by the County Administrative Board or, in accordance with rules laid down by the Government, by the building Board (byggnadsnämnd)."
The same principle applies where the authorities contemplate adopting a new city plan or amending an existing one (Article 35 of the 1947 Act). The principle concerns only new constructions, but Article 158 of the 1947 Act states that the provisions on new constructions shall extend "to such alterations to existing premises as may be classified as new construction under rules laid down by the Government". A rule to this effect appears in Article 75 of the 1959 Building Ordinance (byggnadsstadgan), which reads as follows (translation from the Swedish):
"The expression ‘new construction’ shall mean:
(a) the erection of entirely new premises;
(b) the horizontal or vertical extension of existing premises;
(c) any rebuilding of the exterior or interior of premises or any alteration thereto which, on account of its scale, may be equated to rebuilding;
(d) the complete or partial conversion of premises for a use substantially different from their previous one;
(e) such alteration to premises as results in their no longer being in conformity with the adopted master plan, city plan or building plan (byggnadsplan) or the regulations on building activities in zones situated outside the areas covered by city plans or building plans: and
(f) any other alteration to premises which, in their present state, are not in conformity with the above-mentioned plans or regulations, except in the case of residential premises comprising not more than two dwellings or of outbuildings belonging to such premises.
However, for the purposes of the present Article, the expression "new construction" shall not include the installation of central heating, water closets or other sanitary amenities in premises which, even if such installation has not been authorised, are expected to remain in their present state for a considerable length of time."
42. In his report of 1967, the Parliamentary Ombudsman (Justitieombudsmannen) referred to the consequences of long-term prohibitions on construction and envisaged certain solutions (translation from the Swedish):
"As for as can be ascertained from the facts, the property owners in the Borås and Östersund cases cannot have expected to reap any advantages from the town-planning scheme. This means that the scheme could not provide them with any compensation for the prejudicial effects that were clearly occasioned by the long-term prohibitions. If in such cases one does not institute some means of protecting property owners against the prejudicial effect of long-term prohibitions, then - in order to render the implementation of town-planning schemes less expensive for municipalities - one or more property owners will themselves have to bear the prejudicial effects of a prohibition which has been imposed mainly in the interests of the community to settle questions of town planning within a reasonable time. Such a system is irreconcilable with the position that should obtain in a State governed by the rule of law.
What arrangements should be made to protect a property owner against the prejudicial effects of temporary prohibitions on construction that remain in force for a lengthy period can hardly be stated without a thorough study of the problem. However, one possibility would be to set a maximum time-limit for the validity of temporary prohibitions. Nevertheless, such a solution could hardly be regarded as compatible with current requirements, for difficulties over determining what form future development should take mean that long delays cannot always be avoided. A preferable method would be to introduce a right for the property owner to seek compensation from the municipality for any loss he may establish or to require that it purchase the land once the prohibition has been in force for more than a certain period.
There should, however, be a condition that the prohibition has been in force for quite a long time and has occasioned significant prejudicial effects that cannot be compensated by the advantages which the owners could be expected to gain through the town-planning scheme.
In view of the foregoing, my opinion is that there should be a study of the question of introducing protection for private landowners against the prejudicial effects of unreasonably long temporary prohibitions on construction." (Justitieombudsmannens ämbetsberättelse 1967, pp. 478-479).
43. At the time when the applicants referred the matter to the Commission, the Municipal Act 1953 and, in the case of the capital, the City of Stockholm Act 1957 provided for and regulated a right of appeal (kommunalbesvär) against decisions by municipalities. These Acts enabled any local resident - with certain exceptions - to challenge a municipal council’s decisions before the County Administrative Board.
Such an appeal could be based on the following grounds only: failure to observe the statutory procedures, infringement of the law, ultra vires conduct, violation of the appellant’s own rights or application of powers for an improper purpose. The appeal had to reach the County Administrative Board within three weeks of the date on which approval of the minutes of the decision had been announced on the municipal notice-board; the place where the minutes might be consulted was also indicated on the notice-board.
Unless otherwise provided, the County Administrative Board’s decision could, within three weeks from its notification to the appellant, be the subject of an appeal to the Supreme Administrative Court (regeringsrätten).
Almost identical provisions now appear in Chapter 7 of the Municipal Act 1977 (kommunallagen). They were slightly amended in 1980, with effect from 1 January 1981, in that the appeal now has to be made to the Administrative Court of Appeal (kammarrätten) and not to the County Administrative Board.
44. The above-mentioned rules apply to a municipal council’s decision to request the Government to issue or extend an expropriation permit.
On the other hand, they do not apply to a decision to request the County Administrative Board to issue or extend a prohibition on construction: such a decision is, in fact, not open to any appeal to an administrative court.
45. In Sweden, administrative functions devolve largely on administrative authorities whose decision-making machinery is independent of the Government: such authorities do not come under any Ministry, and neither the Government nor the various Ministries may give them orders or instructions on how they should apply the law in this or that case.
46. It is often possible, however, to appeal to the Government against administrative authorities’ decisions.
Thus, a decision by the County Administrative Board to issue or extend a prohibition on construction may be challenged by means of an appeal to the Government (Article 150 par. 2 of the 1947 Act).
47. Generally speaking, the Swedish administration is not subject to supervision by the ordinary courts. Those courts hear appeals against the State only in contractual matters, on questions of extra contractual liability and, under some statutes, in respect of administrative decisions.
48. Judicial review of the administration’s acts is, therefore, primarily a matter for administrative courts. These courts, which had their origin within the administration itself, comprise three levels: the County Administrative Court (länsrätterna); the Administrative Courts of Appeal; and the Supreme Administrative Court, which was set up in 1909 on the pattern of certain foreign institutions, such as the French Conseil d’État, but differs therefrom in certain fundamental respects. These courts are composed of independent judges appointed for life and, as a rule, they enjoy wide powers which enable them not only to set aside administrative acts but also to modify or replace them. In practice, it is very common for the lawfulness of such acts to be challenged.
There is, however, an important exception to this principle, in that no appeal may be made against decisions of the Government.
49. Certain administrative cases - those with the most important political or financial implications - are reserved for decision by the Government as the first and last instance. Expropriation permits fall within this category (see paragraph 37 above).
Although the Public Administration Act 1971 (förvaltningslagen) is not formally applicable to proceedings before the Government, they must be conducted in compliance with a number of principles: the right of the person concerned to have access to all the documents in the case; an obligation on the authority to inform him of any document added to the file and to give him an opportunity of stating his opinion thereon; the right of the person concerned to express his views orally if he so wishes.
Before the Government take a decision on a request for an expropriation permit, the request will be submitted to the County Administrative Board which will prepare the file. The Board must, notably, give the property owner an opportunity to present his views on the request; it will also hear such public authorities as may have an interest in the matter. After collecting the necessary data, the Board will transmit them to the Government which will then be in a position to arrive at their decision.
50. Cases examined by the Government give rise to decisions which, as a rule, are not open to appeal. However, in special cases it is possible to lodge an extraordinary appeal, of limited scope, known as an application for re-opening of the proceedings (resningsansökan). Prior to 1 January 1975 such applications - which may also relate to a decision taken by the Government in an appellate capacity - were made to the Supreme Court. Since that date they are made to the Supreme Administrative Court (Chapter 11, Article 11, of the Constitution). The grounds for re-opening proceedings are to be found - although the provision is not formally binding on the Supreme Administrative Court - in Chapter 58, Article 1, of the Code of Judicial Procedure (rättegångsbalken), which reads (translation from the Swedish):
"Once a judgment in a civil case has acquired the authority of res judicata, the re-opening of the proceedings in the interests of any of the parties may be ordered:
1. if a member or an official of the court has been guilty of a criminal offence or of misconduct in connection with the litigation or if an offence in connection with the litigation has been committed by a lawyer or legal representative, and if such offence or misconduct can be assumed to have affected the outcome of the case;
2. if a document submitted in evidence was forged or if a party examined on oath, a witness, an expert or an interpreter made false statements, and if such document or statements can be assumed to have affected the outcome of the case;
3. if there have come to light facts or evidence which, had they been put before the court previously, would probably have led to a different outcome; or
4. if the application of the law underlying the judgment is manifestly inconsistent with the law itself.
Re-opening of the proceedings on the ground referred to in paragraph 3 above may not be ordered unless the party concerned establishes that in all probability he was unable to put the facts or evidence before the first instance or a superior court or that he had some other valid reason for not doing so."
If, in a case like the present one, the Supreme Administrative Court accepts that the proceedings should be re-opened, it may either re-examine the whole case itself or refer it back to the Government.
The very numerous decisions taken by the Government each year in fact give rise to very few applications for re-opening of the proceedings.
51. In the past, State and municipal bodies incurred no liability in respect of decisions which they took in the exercise of public authority, and no compensation could therefore be awarded for damage resulting from such decisions, although there were some doubts about the scope of this immunity. Swedish law on this subject was derived from case-law, specific statutes and unwritten principles.
52. The same law still applies on many points, but on 1 July 1972 the Civil Liability Act (skadeståndslagen) entered into force. This Act consolidates and develops a branch of the law governing compensation for damage in extra-contractual matters. It provides that the State and the municipalities are not civilly liable for damage caused by their acts. It does, however, make one radical change: the acts of the public authorities may now give rise to an entitlement to compensation in the event of fault or negligence (Chapter 3, Article 2).
However, the legislature imposed an important restriction on this new principle, in that, save where the decisions in question have been set aside or modified, an action for damages "may not lie" in respect of decisions taken by Parliament, the Government, the Supreme Court, the Supreme Administrative Court and the National Social Security Court (Chapter 3, Article 7). According to authoritative commentaries, the court must, of its own motion, declare the action inadmissible in such case.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-96123
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: LESKO v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Jozef Leško, is a Slovak national who was born in 1922 and lives in Soľnička. The Slovakian Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 September 1992 the Social Security Administration refused to adjust the applicant’s old-age pension. The decision stated that the applicant had not fulfilled the statutory requirements which would entitle him to the pension’s adjustment according to the Law No. 319/1991 (see "The relevant domestic law" below).
The case was subsequently dealt with by courts at two levels. On 8 April 2005 the Supreme Court upheld the judgment of the Košice Regional Court of 23 September 2004 by which the administrative decision of 18 September 1992 had been upheld. The courts established that the applicant had been abducted to the Union of Soviet Socialist Republics as a captive of the Hungarian army from the present territory of Austria and not as an individual from the territory of Slovakia. These established facts led to the conclusion that the applicant had not been entitled to the adjustment of his old-age pension.
On 6 October 2005 the applicant complained to the Constitutional Court about unfairness and length of the proceedings before the Supreme Court. On 25 October 2006 the Constitutional Court rejected his complaint. The latter observed that the length of proceedings complaint had been submitted belatedly. As far as the alleged unfairness was concerned, the Constitutional Court stated that it was primarily for the ordinary courts to interpret and apply the domestic legislation and that its role was limited to verifying whether the effects of such interpretation are compatible with the Constitution or international conventions on human rights. The Constitutional Court declared this part of the complaint inadmissible as being manifestly-ill founded as the applicant had alleged errors of facts and law committed by ordinary courts.
Section 2 of Law No. 319/1991 on Mitigation of Certain Wrongs of Material Nature and on Powers of State Authorities in the Sphere of Extrajudicial Rehabilitation (Zákon o zmiernení niektorých majetkových krívd a o pôsobnosti orgánov štátnej správy Slovenskej republiky v oblasti mimosúdnych rehabilitácií) was intended to give means of redress to individuals who were forcibly abducted to the Union of Soviet Socialist Republics or to the camps established by the Union of Soviet Socialist Republics in other states between 1944 and 1946. The persons concerned (or their heirs) are to be awarded pecuniary compensation for the period of abduction and for death during the period of abduction.
The entitled person is an individual, who was unlawfully and forcibly abducted by the forces of the Ministry of the Interior of the Union of Soviet Socialist Republics to the Union of Soviet Socialist Republics from the present territory of the Slovak Republic, where such person is a citizen of the Czech and Slovak Federative Republic or its successor States, has permanent residence within its territory, originates from the present territory of the Slovak Republic and the descendants of such person live there.


ITEMID: 001-58225
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF MUSIAL v. POLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 7. The applicant was born in 1953. He lives in Stalowa Wola, Poland.
8. In 1986 the Katowice regional prosecutor instituted criminal proceedings against the applicant on suspicion of manslaughter of his wife. On 18 October 1987 the applicant was examined by a medical panel composed of two psychiatrists, who found that, on health grounds, he could not be held criminally responsible. The panel further concluded that the applicant posed a threat to public order. On 31 October 1987 the Jastrzębie-Zdrój district prosecutor, having regard to the medical opinion, decided to discontinue the criminal proceedings against the applicant. On 30 November 1987 the Jastrzębie-Zdrój district prosecutor requested the Katowice Regional Court to order the applicant’s committal to a psychiatric institution.
9. On 8 February 1988 the Katowice Regional Court committed the applicant to a mental hospital. The court, taking into consideration the submission of the prosecutor that the applicant had killed his wife and the expert medical opinion of 18 October 1987, concluded that the applicant posed a threat to public order. On 18 March 1988 the Supreme Court upheld this decision. On 13 April 1988 the applicant was placed in Rybnik Psychiatric Hospital.
10. On 4 November 1988, 15 September 1989, 13 November 1989, 12 March 1990, 9 July 1990 and 17 December 1990 the Katowice Regional Court gave decisions concerning the applicant’s continued detention. The court had regard to the applicant’s medical file, including opinions of psychiatrists from Rybnik Psychiatric Hospital, which indicated that in view of the applicant’s condition, which remained unchanged, his continued detention was necessary as he still presented a threat to public order.
11. On 4 April 1991 the applicant’s officially appointed lawyer requested the latter’s release from the psychiatric hospital. On 27 May 1991 the Katowice Regional Court again refused to order the applicant’s release, finding that it would entail a threat to public order.
12. In a further medical opinion of 27 December 1991 the Rybnik Hospital psychiatrists stated that the applicant’s condition required his continued detention and in its subsequent decision the Katowice Regional Court again refused to order his release.
13. On 10 January 1992 the Minister of Justice refused leave for an extraordinary appeal against the decision of 8 February 1988 concerning the applicant’s committal to a psychiatric institution.
14. On 22 June 1992 the court, having considered the opinion of psychiatrists, again refused to order the applicant’s release.
15. On 16 March 1993 the applicant’s lawyer lodged a further request for the applicant’s release with the Katowice Regional Court. He also insisted that psychiatrists from Cracow University examine the applicant as he was convinced that it was only from this institution that an unbiased opinion could be obtained. By letters of 25 March 1993 and 13 April 1993, the court ordered Rybnik Psychiatric Hospital to submit an up-to-date medical opinion on the applicant’s condition.
16. In their opinion of 19 April 1993, the Rybnik Hospital psychiatrists stated that the applicant’s condition required his continued detention and suggested that in view of his repeated requests for a medical examination by psychiatrists from another institution it would be advisable to order such an examination. By a decision of 26 April 1993, the court ordered that the applicant’s condition should be assessed by psychiatrists from Cracow University.
17. On 5 May 1993 the court found that the applicant could undergo the necessary medical examination in the Psychiatric Department of Cracow Detention Centre. On 17 May 1993 it fixed the date of the applicant’s admission to the Centre at 31 May 1993. The applicant was brought to the Centre on that date, but was not admitted since certain necessary documents had not been submitted to the Centre. The Centre informed the court that the applicant could only be admitted on the strength of an order for his detention on remand and that persons detained at the Centre were subject to the legal provisions governing detention on remand.
18. In a letter of 31 May 1993, the applicant complained to the court that he had not been examined by the Psychiatric Department of Cracow University. He contended that any opinion prepared by psychiatrists of the Cracow Detention Centre would be biased and threatened to go on hunger strike if he was brought to the Centre for a medical examination.
19. On 25 June 1993 the applicant requested the reopening of the criminal proceedings.
20. On 4 August 1993 the Psychiatric Department of Cracow University informed the Katowice Regional Court that the exact date of the applicant’s out-patient examination could be fixed only after 23 August 1993. By a letter of 18 August 1993, the Katowice Regional Court forwarded that information to the applicant.
21. On 1 and 2 September 1993 Cracow University informed the court that the applicant could be admitted to the University hospital in late October or early November 1993, after an analysis of his medical file had been completed.
22. By a letter of 15 September 1993, the Katowice regional prosecutor informed the applicant that his request of 23 June 1993 to have the criminal proceedings reopened would not be considered.
23. On 22 September 1993 the applicant’s medical file was sent to Cracow University. On 18 November 1993 the applicant requested the court to order his examination without further delay. On 17 December 1993, the University, in reply to the court’s enquiry, informed it that the applicant would be admitted for an out-patient examination from 31 January to 3 February 1994. On 24 January 1994 the court informed the applicant that his file had been transmitted to the Psychiatric Department of Cracow University.
24. From 31 January to 4 February 1994 the applicant underwent an examination at the Psychiatric Department of Cracow University.
25. On 18 May 1994 the Katowice Regional Court informed the applicant that his file was still with the Psychiatric Department of the University and that the expert medical report was not yet ready. On 30 May 1994, the University informed the court that the opinion would be ready by the end of June 1994.
26. On 16 June 1994 the applicant requested access to his medical file. On 21 June 1994 the court informed him that it was still at Cracow University.
27. On 21 June 1994, in reply to the court’s enquiry, the University informed the Katowice Regional Court that it could not return the applicant’s medical file to the court, as the medical opinion had not been prepared. On 5 July 1994, the applicant again requested to be granted access to his medical file. On 21 July 1994 the Katowice Regional Court informed him that his file was still being examined by the specialists of the Cracow University Psychiatric Department, who were preparing an opinion.
28. In their opinion of 30 November 1994, the psychiatrists from Cracow University stated that the applicant’s condition required continued detention and that the grounds on which his committal to a psychiatric institution had been ordered had not ceased to exist. This opinion was submitted to the Katowice Regional Court on 15 December 1994.
29. On 9 January 1995 the court, having considered the medical opinion of 30 November 1994, decided that the applicant’s detention should be maintained.
30. Subsequently, by decisions of 4 March 1996 and 30 December 1996, the Katowice Regional Court ordered that, in the light of medical opinions of 18 January 1996 and 24 September 1996 respectively, the applicant should remain in detention. On 28 September 1996, the applicant attempted to commit suicide at Rybnik Psychiatric Hospital. On 23 June 1997, the Katowice Regional Court ordered the applicant’s release.
31. Conditions for the detention of persons of unsound mind who are not criminally responsible were laid down in the Polish Criminal Code, as it stood at the material time:
Article 99
“If it has been established that a person has committed an offence in a state of mental disorder [excluding his criminal responsibility], and his remaining at liberty entails a serious danger to public order, the court shall commit him to a mental hospital or another appropriate institution.”
“In cases provided for in Article 99 ... the period of detention is not determined in the decision of committal to the psychiatric institution; the court shall order release if the detention ceases to be necessary.”
32. According to the case-law of the Polish Supreme Court, a threat to public order is to be determined on the basis of the situation obtaining at the time when the offender’s detention in the psychiatric institution is imposed. The assessment of the existence and the degree of such threat should be made in the light of an expert medical opinion. For a decision ordering detention in a psychiatric hospital to be given, it is not necessary that the expert medical opinion should state expressly that public order would be threatened if the offender were to remain at liberty. It suffices that such a conclusion may be drawn from the expert medical opinion taken as a whole (Orzecznictwo Sądu Najwyższego, Izba Karna i Wojskowa 1974, item 47).
A threat to public order is considered serious if an offender’s remaining at liberty gives rise to a risk that he might commit an unlawful act (Orzecznictwo Sądu Najwyższego, Izba Karna i Wojskowa 1972, item 183).
33. Article 242 § 1 read together with Article 244 § 1 of the Code of Criminal Procedure, as applicable at the relevant time, provided that a court could impose a fine on an expert who, without reasonable cause, consistently failed to comply with his or her obligation to submit a report to the court.
34. Article 197 of the Enforcement of Sentences Code, as applicable at the relevant time, read:
“1. The director of a medical institution is obliged to keep the court informed of the detainee’s health and of the progress of the treatment.
...
3. The court, at intervals of not longer than six months, shall decide, on the basis of a medical opinion, on the necessity to maintain further security measures.”
According to Article 8 of the Enforcement of Sentences Code an offender, in the proceedings before a court supervising execution of criminal judgments, was entitled to submit requests and to lodge appeals against the court’s decisions if the law expressly provided for such appeals.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4


ITEMID: 001-68693
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: KUDUZOVIC v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: The applicant, Ismet Kuduzović, is a Bosnian national, who was born in 1966 and lives in Šoštanj, Slovenia. He is represented before the Court by the Verstovšek law office from Celje.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 14 February 1987 the applicant, a mine worker of Bosnian citizenship who has lived on the territory of Slovenia since 1984, had a work-related accident while working for »Rudnik lignita Velenje«, a mining enterprise.
On 10 March 1992 the Pension and Disability Fund of Slovenia granted the applicant the status of partial (“third-degree”) disability, including the right to a reduced workload.
In 1991, after Slovenia became an independent state, the applicant did not obtain Slovenian citizenship because, as he claims, he lived in a bachelor's home and did not, therefore, satisfy the statutory condition of “permanent residence”. He thus became an alien and lodged a request to obtain a work permit, which was issued for the period of one year, expiring on 8 October 1993.
On 21 September 1993 the »Rudnik lignita Velenje« enterprise terminated the applicant's contract of employment on the ground that his work permit was about to expire. The termination was to take effect on 8 October 1993.
On 6 October 1993 the applicant lodged an objection with the appellate authority of the enterprise, claiming that the enterprise could not dismiss him because he was a disabled worker with the right to a reduced workload. The objection was rejected on 18 November 1993.
On 17 December 1993 the applicant instituted proceedings at the Celje Employment Tribunal, arguing that the legislation on the protection of disabled workers should have precedence over the legislation governing the employment of aliens.
On 14 March 1994 the Tribunal held a hearing and adopted a decision on the same day, rejecting the applicant's claim on the ground that his employment contract had been terminated ex lege, as provided by the Aliens Employment Act 1992 in force at the material time. The Tribunal stated that the Act did not provide for any exception for disabled persons, nor did it require an employer to obtain a work permit for disabled persons.
On 30 March 1994 the applicant lodged an appeal against the first-instance decision, but on 1 June 1995 the Higher Labour and Social Court rejected the appeal.
On 24 July 1995 the applicant lodged an appeal on points of law, which was rejected by the Supreme Court on 28 May 1996. The Supreme Court held that the Aliens Employment Act 1992 was adopted later (lex posterior) and governed a more specific subject-matter (lex specialis) than the Basic Rights of Employees Act 1989, which regulates the protection of disabled workers. The applicant's employment had accordingly been lawfully terminated.
On 2 August 1996, the applicant lodged a constitutional appeal with the Constitutional Court. The constitutional appeal was declared admissible on 23 June 1999 but was rejected on the merits on 20 January 2000. The Constitutional Court found that the interpretation of the legislation adopted by the Supreme Court did not infringe the applicant's human rights and fundamental freedoms (“fourth-instance”). One judge wrote a dissenting opinion.
Further to two separate requests in April and July 2004, the applicant's lawyer informed the Court in December 2004 that the applicant and his two children had acquired the Slovenian citizenship on 29 April 2002 by virtue of a decision issued by the Ministry of Interior. It could also be understood from the lawyer's submissions that the applicant had been working on a temporary basis for different companies, including for the Velenje mining enterprise since the beginning of the nineties.
Section 3
“An employer may not enter into an employment relation or a work contract with an alien who does not have a work permit ...
A contract of employment or a work contract concluded with an alien who does not have a work permit is void.”
Section 16
“An alien's employment relation with his employer is terminated if the work permit expires ... or if it is revoked ..., on the expiry date or on the date when the revocation decision becomes final respectively.”
Section 48
“A disabled worker has the right to be transferred to an appropriate post with due regard to his remaining capacity to work, the right to retraining or additional training, the right to be transferred to a post appropriate to his skills, and the right to appropriate wage compensation related to the exercise of these rights according to the legislation on retirement and disability insurance.
...
In all cases mentioned in the first ... paragraph of this section the organisation or the employer must provide the worker a post appropriate to his skills, under conditions and in the manner provided by an internal act or a collective agreement in accordance with the law.”


ITEMID: 001-86820
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KOPALIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Konstantin Valentinovich Kopalin, is a Russian national who was born in 1972 and lives in Arkhangelsk. He was represented before the Court by Mr I. Telyatyev, a lawyer practising in Аrkhangelsk. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
As a seaman serving in the Extreme North, the applicant was entitled to a reimbursement of his holiday travel expenses. His employer, a State meteorological enterprise, had defaulted on this obligation, and the applicant had to apply to a court.
On 20 February 2002 the Solombalskiy District Court of Arkhangelsk held for the applicant and awarded him 9,088.03 Russian roubles. On 21 March 2002 the enterprise paid this award to the applicant.
In separate proceedings, the applicant’s trade union tried to bring a civil action on the applicant’s behalf. Domestic courts found that the trade union had no authority to represent the applicant. The ﬁnal decision in this regard was given by the Arkhangelsk Regional Court on 16 April 2001.
Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.


ITEMID: 001-58032
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1997
DOCNAME: CASE OF X, Y AND Z v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;Not necessary to examine Art. 14+8
JUDGES: C. Russo;John Freeland;N. Valticos
TEXT: 12. The applicants are British citizens, resident in Manchester, England.
The first applicant, "X", was born in 1955 and works as a college lecturer. X is a female-to-male transsexual and will be referred to throughout this judgment using the male personal pronouns "he", "him" and "his".
Since 1979 he has lived in a permanent and stable union with the second applicant, "Y", a woman born in 1959. The third applicant, "Z", was born in 1992 to the second applicant as a result of artificial insemination by donor ("AID"). Y has subsequently given birth to a second child by the same method.
13. X was born with a female body. However, from the age of four he felt himself to be a sexual misfit and was drawn to "masculine" roles of behaviour. This discrepancy caused him to suffer suicidal depression during adolescence.
In 1975, he started to take hormone treatment and to live and work as a man. In 1979, he began living with Y and later that year he underwent gender reassignment surgery, having been accepted for treatment after counselling and psychological testing.
14. In 1990, X and Y applied through their general practitioner ("GP") for AID. They were interviewed by a specialist in January 1991 with a view to obtaining treatment and their application was referred to a hospital ethics committee, supported by two references and a letter from their GP. It was, however, refused.
15. They appealed, making representations which included reference to a research study in which it was reported that in a study of thirty-seven children raised by transsexual or homosexual parents or carers, there was no evidence of abnormal sexual orientation or any other adverse effect (R. Green, "Sexual identity of 37 children raised by homosexual or transsexual parents", American Journal of Psychiatry, 1978, vol. 135, pp. 692-97).
In November 1991, the hospital ethics committee agreed to provide treatment as requested by the applicants. They asked X to acknowledge himself to be the father of the child within the meaning of the Human Fertility and Embryology Act 1990 (see paragraph 21 below).
16. On 30 January 1992, Y was impregnated through AID treatment with sperm from an anonymous donor. X was present throughout the process. Z was born on 13 October 1992.
17. In February 1992, X had enquired of the Registrar General (see paragraph 22 below) whether there was an objection to his being registered as the father of Y’s child. In a reply dated 4 June 1992 to X’s Member of Parliament, the Minister of Health replied that, having taken legal advice, the Registrar General was of the view that only a biological man could be regarded as a father for the purposes of registration. It was pointed out that the child could lawfully bear X’s surname and, subject to the relevant conditions, X would be entitled to an additional personal tax allowance if he could show that he provided financial support to the child.
18. Nonetheless, following Z’s birth, X and Y attempted to register the child in their joint names as mother and father. However, X was not permitted to be registered as the child’s father and that part of the register was left blank. Z was given X’s surname in the register (see paragraph 24 below).
19. In November 1995, X’s existing job contract came to an end and he applied for approximately thirty posts. The only job offer which he received was from a university in Botswana. The conditions of service included accommodation and free education for the dependants of the employee. However, X decided not to accept the job when he was informed by a Botswanan official that only spouses and biological or adopted children would qualify as "dependants". He subsequently obtained another job in Manchester where he continues to work.
20. English law defines a person’s sex by reference to biological criteria at birth and does not recognise that it can be changed by gender reassignment surgery (Corbett v. Corbett [1971] Probate Reports 83 and R. v. Tan [1983] Queen’s Bench Reports 1053 (Court of Appeal)).
As a result of this principle, a female-to-male transsexual is not permitted to marry a woman and cannot be regarded as the father of a child.
21. The Human Fertility and Embryology Act 1990 ("the 1990 Act") provides, inter alia, that where an unmarried woman gives birth as a result of AID with the involvement of her male partner, the latter, rather than the donor of the sperm, shall be treated for legal purposes as the father of the child (section 28 (3)).
22. Section 1 (1) of the Births and Deaths Registration Act 1953 ("the 1953 Act") requires that certain prescribed details concerning the birth of every child born in England and Wales, including the names of the parents, be entered in a register. The Registrar General is the official ultimately responsible for the administration of this scheme.
23. If the child’s father (or the person regarded by law as the father - see paragraph 21 above) is not married to the mother, his name shall not automatically be entered on the register in the space provided for the father. However, it will be entered if he and the mother jointly request that this be done (section 10 of the 1953 Act, as amended by the Family Law Reform Act 1987).
24. A birth certificate takes the form either of an authenticated copy of the entry in the register of births or an extract from it. A certificate of the latter kind, known as a "short certificate of birth", is in a prescribed form and contains such particulars as are prescribed by regulations made under the 1953 Act. These particulars are the name, surname, sex and date and place of birth of the individual concerned. Under English law, a child may be given any first name or surname as the parents see fit, and may change his or her name or surname at any time, without restriction.
25. "Parental responsibility" in respect of a child automatically vests in the mother and, where she is married, in her husband. It may, additionally, be granted to certain other persons (see paragraphs 26-27 below).
"Parental responsibility" means all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his or her property (section 3 of the Children Act 1989 - "the 1989 Act").
It does not, without more, confer on the child any rights in the property of the person granted parental responsibility, such as the right to inherit on intestacy or to financial support. Similarly, it does not entitle the child to benefit through that person from the transmission of tenancies pursuant to certain statutory provisions, from nationality and immigration measures or from rights accruing from that person’s citizenship in the European Union.
26. The father of a child who was not married to the mother at the time of the birth may apply for a court order granting him parental responsibility or may attain it by virtue of an agreement, in a prescribed form, with the mother (section 4 of the 1989 Act).
27. Parental responsibility cannot vest in any other person, unless a "residence order" in respect of the child is made in his or her favour.
A residence order is "an order settling the arrangements to be made as to the person with whom the child is to live" (section 8 of the 1989 Act). Any person may apply for such an order (although individuals outside certain defined categories must first seek the leave of the court in order to apply).
Where the court makes a residence order in respect of any person who is not the parent or guardian of the child, that person is automatically vested with parental responsibility for the child as long as the residence order remains in force (section 12 (2) of the 1989 Act).
28. Thus, although the first applicant could not apply directly for parental responsibility of the third applicant, he could apply with the second applicant for a joint residence order which would have the effect of giving him parental responsibility while it remained in force. On 24 June 1994, Mr Justice Douglas-Brown in the Manchester High Court made a joint residence order in favour of two cohabiting lesbian women in respect of the child of one of them (unreported).
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-5320
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: ALTINOK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant, born in 1950, is a Turkish citizen and living in Istanbul.
He is represented before the Court by Mrs Naciye Kaplan, a lawyer practising in Istanbul.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Applicant’s version of the facts
Until 1993 the applicant lived in the Bölükören hamlet of the Aydınlar village attached to the Yayladere district of the province of Bingöl. He had a farm of 5-6 hectares on which he grew wheat, barley, beans, tomatoes, potatoes, and chickpeas. He was breeding 50-60 sheep and goats. He also had a three storey farm house.
The applicant was intimidated by village guards from the Yayladere and Kığı districts. The village guards accused him of assisting PKK terrorists and requested him and other villagers to evacuate the village. As he was threatened with death and intimidated by village guards and gendarmes the applicant left his village and went to Istanbul.
In January 1995 the applicant's cousin, K.A., who lived in a nearby village, received a phone call and was told that the applicant's house had been burned down. The applicant immediately went to his village. He saw that his house had been burned down with all its contents.
On 25 February 1995 the applicant and other residents of Bölükören and Pınarcık hamlets presented petitions to several administrative bodies, namely the Yayladere District Governor’s office, the Bingöl Governor’s office, the State of Emergency Region Governor’s office in Diyarbakır, the Minister of the Interior’s office, the President of the Republic’s office and the Turkish Grand National Assembly. He and the other villagers requested an investigation into the destruction of their property and evacuation of their village. They also requested compensation for the damage they had sustained.
On 16 May 1995 the District Governor of Yayladere sent a letter to the applicant. He stated:
“An investigation was conducted by the [Yayladere] District Gendermerie Command concerning the allegations stated in your petition [of 25 February 1995] which was signed by you and your fifteen friends. It has been observed in this investigation that you had been misinformed about the reason for the destruction of your property and the burning of your houses by unknown persons. Some of the houses had collapsed because they were abandoned. It was also established that those who had broken into your houses were militants of the PKK terrorist organisation.
Therefore your request for compensation claimed in your petition cannot be granted by the District Governor’s office under current regulations...”
2. The Government’s version of the facts
The authorities carried out an investigation into the applicant’s allegations of destruction of his property and his forced eviction from his village.
On 21 February 1998 statements were taken from the mayor of Yolgüden village attached to the Yayladere district and an inhabitant of the applicant’s village.
The mayor (muhtar) of the Yolgüden village, Sabri Bozaba stated, inter alia:
“... I have been the muhtar of the Yolgüden village for 9 years. I know very well the inhabitants of the nearby Aydınlar village and those of its hamlets, Pınarcık and Bölükören. I also know the villagers who emmigrated. In 1993 the inhabitants of the Pınarcık and Bölükören hamlets and the Aydınlar village emmigrated as a result of the pressure, oppression and violence of militants of the PKK terrorist organisation who had taken their foodstuff. At the end of 1993 there was no one [living] in the Pınarcık and Bölükören hamlets of the Aydınlar village. They all emmigrated to İstanbul taking their belongings. There were definitely no members of the security forces. No pressure was applied by gendarmes or other military units with a view to forcing people to emmigrate. Citizens emmigrated in order to secure their lives and property. By way of example we can mention the village muhtars and other citizens who were killed... We knew through the terrorists who used to come to our village that members of the separatist organisation had been lodging in the villages which had been evicted. We definitely did not hear, did not see and don’t know that gendarmes had burned houses [in our region].
In 1991 Mir Ali’s son Mehmet Altınok emmigrated to İstanbul taking his family and his belongings in order to find a job. His father and mother did not go. During 1993 his house was in good condition. Whatever occurred must have occurred after the emmigration. Nobody saw or knows of this [incident]. The houses in the Pınarcık and Bölükören hamlets were demolished as a result of the bad weather conditions. I don’t know who burned the houses, but they were not burned by soldiers... All these incidents occur because of the PKK militants in the region... Between 1991 and 1993 these incidents took place on account of terrorism. Terrorist activities have now abated and we are living in peace and security...”
Ruşen Atilla, from the applicant’s village, stated, inter alia:
“Until 1993 I lived in the Aydınlar village attached to the Yayladere district along with my [family]. Later I moved to İstanbul along with my family on account of the terrorist activities and the fact that PKK militants put pressure and oppressed the inhabitants of [our] village and abducted the young people to force them to join the organisation... Village guards never came to our village. Gendarmes used to come with a view to collecting information and carrying out searches. In 1991 Mir Ali’s son Mehmet Altınok moved to İstanbul for financial reasons. He then came to take his family and belongings [to İstanbul]. I remember very well that Mehmet Altınok’s house was in good condition in 1993. Until we and all the inhabitants of the villages and hamlets emmigrated from the region there has never been any house burning. Gendarmes or the State security forces never forced us and other inhabitants to evacuate the villages in the region. The villagers emmigrated since they were fed up with the terrorist incidents and they were victims. Everybody left taking their belongings...”
B. Relevant domestic law and practice
1. Administrative liability
Article 125 of the Turkish Constitution provides as follows:
“All acts or decisions of the administration are subject to judicial review...
The administration shall be liable to indemnify any damage caused by its own acts and measures.”
The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides:
“... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.”
2. Criminal responsibility
The Turkish Criminal Code makes it a criminal offence:
(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),
(b) to oblige an individual through force or threats to commit or not to commit an act (Article 188),
(c) to issue threats (Article 191),
(d) to make an unlawful search of an individual’s home (Articles 193 and 194),
(e) to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382),
(f) to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or
(g) to damage another’s property intentionally (Articles 516).
For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the Public Prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts).
If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind.
3. Provisions on compensation
Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts.
Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing.


ITEMID: 001-101187
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KORNEV AND KARPENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 5-3;Violation of Art. 6-3-d;Violation of Art. 6-1+6-3-b;Non-pecuniary damage - award
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1984 and 1951 respectively and live in Kharkiv.
6. On 16 May 2003 Ms Shch., on the instructions of the police, bought four grams of cannabis from the first applicant. Following this, the first applicant was arrested by the police on suspicion of supplying drugs. The 20-hryvnia (Ukrainian hryvnias, UAH) note given by the police to Shch. to buy the drugs had been found on him. During a search conducted at the applicant's house later the same day another twenty grams of cannabis were revealed.
7. During pre-trial investigation the applicant confessed to selling drugs to Shch., whom he knew by her first name, and to keeping drugs at his house.
8. On 19 May 2003 the applicant was released on an undertaking not to abscond.
9. On 23 July 2003 the criminal case against the applicant was referred to the Chervonozavodsky District Court of Kharkiv (the District Court).
10. At the end of November the first applicant was summoned to appear before the court on 2 December 2003. According to the applicant, he fell ill on 31 November 2003. The next day the doctor gave him a sick note.
11. On 2 December 2003, despite the fact that the second applicant had informed the court of the reasons for the first applicant's absence, the court decided to replace the undertaking not to abscond with detention.
12. On 8 December 2003 the first applicant was arrested, and on 16 December 2003 he was brought before the judge, who rejected his request for release.
13. During the hearing of 16 December 2003 the court rejected the applicant's request for Shch. to be summoned on the ground that in accordance with the law the buyer participating in a police drug test purchase operation should not be summoned to court.
14. On 26 January 2004 the court rejected another request for release lodged by the first applicant.
15. On 19 July 2004 the District Court found the applicant guilty of supplying drugs and sentenced him to five years' imprisonment, with confiscation of his property. The court established that the applicant had bought cannabis from an unknown person on 11 May 2003 and had kept it at home for selling. On 16 May 2003 he sold some cannabis to Shch. and more cannabis was found at his home. The court noted that during the trial the applicant retracted his confession and first claimed that a certain A. had forced him to keep the drugs and that Ms M. had taken them from him. Then the applicant denied completely that any drugs had ever been in his possession and stated that the police had planted money and drugs and forced him to confess. The court considered that despite this retraction the applicant's guilt was confirmed by the body of evidence, including the written statements of Shch., as well as statements made at the hearing by police officers N. and K., who had conducted the operation, and witnesses K. and E. who had been invited by the police to observe the operation. All of them confirmed that Shch. had gone to the applicant with a banknote and come back with a small packet of a substance later established to be cannabis.
16. The applicant appealed against his conviction, complaining, among other things, that despite numerous requests on his behalf, Ms Shch. had not been summoned and questioned by the court and that it had not been proven that he had sold drugs to Ms Shch.
17. On 29 July 2005 the Kharkiv Regional Court of Appeal changed the applicant's sentence to a suspended one of three years. The court did not reply to the applicant's complaint that witness Shch. had not been questioned in court.
18. The applicant appealed in cassation, further complaining that Shch. had not been questioned in the court hearings.
19. On 25 April 2006 the Supreme Court of Ukraine upheld the decision of the appellate court. No reply had been given to the applicant's complaint that Shch. had not been summoned or questioned in the court hearings.
20. On 2 December 2003 the second applicant attended the District Court and informed Judge O. that the first applicant was ill. She was accompanied by five other persons. According to the second applicant they were all invited to the judge's office but he later asked them to leave his office, which they could not do because police officers were barring the exit. The same day the judge's secretary drew up an administrative offence report on the second applicant. The report was passed to Judge Shch., who questioned the applicant, found her guilty of contempt of court and ordered her administrative arrest for fifteen days. In his decision Judge Shch. noted that at around 10 a.m. that day the second applicant entered the office of Judge O. with a “support group” consisting of Ms M., Ms I., Ms G., Mr K. and Mr P. in order to put pressure on the above judge in the criminal case against her son (the first applicant) and refused to leave the office when requested to do so by the judge, his secretary and the judicial police. The court found that the applicant had stayed in the office of Judge O. for forty minutes and prevented him from commencing the court hearings.
21. After the above decision the second applicant became unwell and was taken to hospital.
22. On 17 January 2004 the Deputy President of the Kharkiv Regional Court dismissed an extraordinary appeal by the second applicant against the decision of 2 December 2003 ordering her administrative arrest.
23. On 27 January 2004 the prosecutor of the Chervonozavodsky District requested the court to reduce the second applicant's sentence on account of her state of health. This request was granted and the administrative arrest was replaced by a fine of UAH 136.
24. The relevant provisions of the Code read, in so far as relevant, as follows:
Article 52-1. Security measures for persons participating in criminal trials
“Where there is a real threat to life, health, home, or property of those participating in criminal trials, such persons shall have the right to be protected by security measures
The right to be protected by security measures, where there are relevant grounds, shall be vested in:
a person who has reported a crime to a law-enforcement authority or otherwise participated in or contributed to actions to detect, prevent, stop, or solve a crime ...”
Article 52-3. Non-disclosure of information on a person being protected by security measures
“Non-disclosure of information on a person in respect of whom security measures have been taken may be ensured by restricting the availability of any data on the person in the materials (in petitions, statements and so on) and also in reports on the investigative actions or records of the court hearings. Having decided to take security measures, the body of inquiry, investigator, prosecutor, or court (judge) shall make a reasoned decision to replace by a pseudonym the surname, name and patronymic of the person taken under protection. Afterwards, the procedural documents shall only refer to the pseudonym of the person, while his or her real surname, name and patronymic (the year, month, and place of his or her birth, his or her family situation, place of work, occupation or position, place of residence, and other personal details characterising the person concerned) shall only be stated in the decision on the replacement of his or her personal details. A decision to that effect, which is not to be added to the case file, shall be kept separately by the authority in charge of the criminal case in question. If the surname of the person taken under protection is replaced by a pseudonym, the reports on investigative actions and other documents referring to real personal details of the person shall be replaced in the case file by copies in which his or her real surname is replaced by the pseudonym.
Information on security measures as well as on persons taken under protection thereby shall be restricted-access information. The rules laid down in paragraph 2 of Article 48, Articles 217 - 219 and 255 of this Code shall not apply to documents containing such information.”
25. Paragraph 1 of Article 185-3 of the Code provides as follows:
“Contempt of court, which is defined as malicious avoidance of summons by a witness, victim, plaintiff or defendant; or as a failure by the above persons or others to comply with the orders of the presiding judge; or a violation of public order during a court hearing, or the committal by any person of acts which indicate blatant disrespect for the court or for the rules of court, shall be punishable by a fine of six to twelve times the monthly minimum income of citizens or by administrative arrest for up to fifteen days.”
26. Paragraph 1 of Article 268 of the Code provides, among others, the following rights of a person who is brought to administrative liability:
“A person placed under administrative liability shall be entitled to study case materials, to give explanations, to present evidence, to make requests; to have the assistance of a lawyer ... during the examination of the case...”
27. The right to a lawyer in administrative offence proceedings is further guaranteed by Article 271 of the Code.
28. Under Article 277 of the Code, cases concerning administrative offences set forth in the first paragraph of Article 185-3 shall be decided within one day.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-b
6-3-d
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-57797
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF T. v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
JUDGES: C. Russo;R. Pekkanen
TEXT: 8. On 19 May 1982 Mr T.’s minor daughter, who was at the time aged fourteen, lodged a complaint with the Genoa public prosecutor’s office, which opened an investigation concerning T. in connection with an alleged rape. On 15 February 1983 it sent to him in Jeddah (Saudi Arabia) a "judicial notification" advising him that proceedings had been instituted and inviting him to provide an address for service in Italy.
The applicant claims that he did not receive the notification in question because on 13 February he had left Jeddah, where he had worked for a time, for Khartoum (Sudan). He had, moreover, visited the Italian Embassy there to report his change of address.
9. On 26 November 1983 the investigating judge declared the applicant untraceable (irreperibile) and designated a lawyer to act for him. Thereafter all the documents which were to be notified to the applicant were lodged with the registry, his lawyer being informed thereof on each occasion.
10. On 13 December 1983 the investigating judge issued a warrant for Mr T.’s arrest, which was not executed as his whereabouts were unknown. In a report of 10 January 1984 the police noted that the applicant did not live at the place indicated.
11. After the investigating judge had committed the applicant for trial, the President of the Genoa District Court instructed the police to undertake new inquiries. On 25 September 1984 they drew up a report stating that their inquiries had proved unsuccessful; they advised the judge that, according to the information which they had obtained, the accused had found employment in the Sudan. The President in his turn declared Mr T. untraceable.
12. On 9 October 1984 the Genoa District Court convicted Mr T. in absentia and sentenced him to seven years’ imprisonment, to be stripped of his civic rights and to accessory penalties.
13. As the officially-appointed lawyer had appealed, the police made further attempts to find Mr T., but to no avail (reports of 20 March and 7 July 1986), with the result that he was again declared untraceable. On 1 October 1986 the Genoa Court of Appeal upheld the contested judgment. The decision was notified to the applicant in the manner provided for in Article 500 of the Code of Criminal Procedure in force at the material time (see paragraph 21 below) because according to a police report of 7 November 1986 the applicant was still untraceable. No appeal was filed in the Court of Cassation.
14. On 4 March 1987 the Genoa public prosecutor’s office issued a warrant for Mr T.’s arrest. On 20 August he was arrested in Copenhagen, on the premises of the Italian Embassy; he was extradited on 29 October. On his arrival in his country he received notification of his conviction and sentence and on 3 November 1987 the arrest warrant of 4 March was served on him.
15. On 5 November he lodged an objection to the execution of the warrant (incidente d’esecuzione). He complained that he had been convicted without being able to defend himself, despite the fact that the competent authorities had known his address.
The Genoa District Court dismissed his objection on 17 December. It considered that the applicant had been duly informed of the proceedings against him and that he had, in any case, been aware of them; this was shown in particular by a letter he had written to his wife on 30 September 1983.
The applicant filed an appeal on points of law, which the Genoa District Court found inadmissible on 10 March 1988 on the ground that no submissions had been lodged in support of it. Mr T. maintains that he was not given legal assistance to formulate such submissions.
Following a second appeal on points of law the Court of Cassation confirmed the finding of inadmissibility on 20 May 1988. It added that Mr T. could no longer, at the stage of the execution of a judgment which had since become final, raise complaints relating to the conduct of the proceedings.
16. At paragraphs 27 and 28 of its report, the Commission made the following findings of fact:
"27. The applicant acknowledges that he was indirectly aware of the proceedings against him because his wife had informed him in June 1982 that his daughter was pregnant and had accused him of rape.
Moreover, on 21 June 1982 he had written to the judge dealing with the case to contest the version of the facts given in the complaint ...
28. In addition, the applicant had explained his behaviour to his wife in a letter he sent her on 21 May 1983. That letter, bearing his address, had been added to the criminal file. He states that he wrote regularly to his wife, to whom he also sent money, and to his mother; [...] both of them knew his address. Lastly, he points out that his passport had been renewed on 8 February 1984 in Khartoum, and then again in 1987, also in Khartoum, implying a favourable opinion from the Italian Embassy in Saudi Arabia and the prefecture in Genoa. He was therefore not untraceable."
17. Before the Commission Mr T. had claimed that he had tried on several occasions to leave the Sudan between 15 February 1984 and 17 July 1987, but that the Sudanese authorities had prevented him from doing so.
18. He completed his sentence in 1991.
19. At the material time a judicial notification was the document by which the judicial authorities informed the person suspected of having committed an offence that an investigation had been opened and invited him to appoint a defence lawyer of his choice and to provide an address for service. It had to specify the legal provisions infringed and the date of the alleged offence.
20. The investigating judge, in the event of a "formal" investigation, or the public prosecutor, where the investigation was "summary", had to send the notification at the very beginning of their investigation (Articles 304 and 390 of the Code of Criminal Procedure).
The notification had to be sent by registered letter requiring acknowledgment of receipt. If the letter was not delivered because the addressee was untraceable (irreperibile), a bailiff had to serve the notification in accordance with the normal procedure (Articles 168 to 175 of the Code of Criminal Procedure).
21. In its judgments in Foti and Others v. Italy of 10 December 1982 (Series A no. 56, p. 12, paras. 33-36), Colozza v. Italy of 12 February 1985 (Series A no. 89, p. 11, paras. 18-19, and pp. 12-13, paras. 21-23) and Brozicek v. Italy of 19 December 1989 (Series A no. 167, pp. 13-14, para. 26), the Court gave a brief description of the Italian legislation then in force as regards notification to a person or an accused who was "untraceable" and trial in absentia (contumacia).
In the present case it is necessary to cite Article 177 bis of the former Code of Criminal Procedure (replaced with effect from 24 October 1989), which provided as follows:
"Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad, the public prosecutor or magistrate’s court (pretore) shall send him by registered letter notification of the proceedings against him with an invitation to declare or otherwise give notice of an address for service in the place where the proceedings are conducted. This formality shall neither suspend nor delay the proceedings.
Where the accused’s address abroad is unknown or where he has not declared or otherwise given notice of an address for service or if the information provided by him is insufficient or inadequate, the judge or the public prosecutor shall make the order (decreto) provided for in Article 170.
The above provisions shall not apply where the issue of an arrest warrant is mandatory."
The second sub-paragraph of Article 170 stated as follows:
"The judge or the public prosecutor ... shall take a decision appointing a defence lawyer to act for the accused where he does not yet have one in the place where the proceedings are conducted and ordering that notification which has proved impossible to carry out, or any future notification, be effected by means of lodging the relevant documents with the registry of the judicial organ before which the proceedings are pending. The defence lawyer shall be informed without delay when any such document is so lodged."
It is also necessary to reproduce the text of the following two Articles:
"In the case of in absentia proceedings, an extract of the judgment shall be notified to the accused who may lodge against it any appeal that would have been open to him in respect of a judgment delivered in adversarial proceedings, subject to the provisions of the third paragraph of Article 199."
"...
For the judgments referred to in Article 500, the period within which the accused may appeal shall begin to run from the notification of the decision or judgment.
..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1