ITEMID: 001-21916
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: N.V. and A.P. v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants are Finnish citizens, born in 1969 and 1963 respectively and resident in Helsinki. They are represented before the Court by Mr Matti Wuori, a lawyer in Helsinki. The respondent Government are represented by Mr Holger Rotkirch, Director-General for Legal Affairs in the Ministry for Foreign Affairs, and by Mr Arto Kosonen, Director in the same Ministry.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants are partners and have two children: G., born in 1989, and J., born in 1994. While the family was living in Sweden in 1992 G. was placed in public care during the applicant mother’s arrest. Following the mother’s disappearance on her release the applicant father and G. went to Finland to look for her. On arrival in Finland the father was in a confused state of mind necessitating an examination at a psychiatric hospital. G. was taken into public care by means of an emergency order issued pursuant to section 18 of the Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983) but this care was apparently not prolonged.
The applicants later moved to Lahti, where the social authorities were monitoring the family from September 1992 onwards.
On 11 January 1994 an official of the Social Welfare and Health Board (sosiaali- ja terveyslautakunta, social- och hälsovårdsnämnden) of Lahti decided to place G. in public care by an emergency order. The applicant had left a shelter in contravention of an agreed care plan and had taken G. to an unknown place. They returned to the shelter on 26 January 1994 but again left it a few hours later before the care order could be enforced.
On 1 February 1994 the Social Welfare and Health Board confirmed the care order pursuant to section 16 of the Child Welfare Act and decided that G. be placed in a children’s home in Lahti. The Board found that she had been forced to live in an unsafe environment due to the applicants’ alcohol and drug abuse and their criminal behaviour. She had also had been exposed to, and frightened by, domestic violence. The parents had declined an offer of treatment against their drug abuse and had avoided co-operation with the social workers. In 1992 G. had been placed in a foster home in Sweden with the parents’ consent. The mother had later fetched her from there without giving advance notice. On 23 December 1993 the mother and G. had been forced to seek shelter in a home for abused women and children because of the father’s violent behaviour. The mother had not fully accepted the care plan drawn up by social workers and, on 27 January 1994, she had moved with G. to whereabouts unknown to the Board. The Board estimated that the public care would need to be long-lasting.
The applicants appealed to the County Administrative Court (lääninoikeus, länsrätten) of Häme, arguing that their home conditions had improved and stating that they were no longer abusing drugs.
On 7 April 1994 G. and the applicant mother were located by the authorities and G. was placed in the children’s home. On 11 April 1994 the applicants fetched her from there without permission and again disappeared. They were located in May 1994 but G. was not forcibly removed from the applicants, since the authorities feared the applicant father could turn violent. In July 1994 the applicants reached an agreement with social workers that G. would be placed in a foster family and not in the children’s home. Before handing G. over to the foster family the applicant mother again disappeared with her.
On 7 September 1994 the County Administrative Court dismissed the applicants’ appeal against the care order. The applicant father’s further appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) was dismissed on 22 March 1995.
Meanwhile, on 17 September 1994, the applicants were located at the Central Hospital in Rovaniemi, where the mother was about to give birth to her second child. She had told hospital staff that she wished to leave the hospital with the baby immediately after the birth.
In a decision of the same day the Social Director placed the new-born baby in public care by an emergency order. The two children were first cared for in the hospital which the applicant mother had left without indicating any contact address. On 19 September the baby was moved to a children’s home, whereas G. was placed in a foster family, whose whereabouts were not disclosed to the applicants. Access was prohibited until 31 March 1995. In upholding the access prohibition on 20 September 1994 the Board noted that in April 1994 the mother had fetched G. from a children’s home without permission and that the father had repeatedly threatened to take her away from there. The Board again referred to the applicants’ criminal behaviour and alcohol and drug abuse.
On 22 September 1994 baby J. was placed in the same foster family and a similar access prohibition was issued on 4 October 1994. On 1 November 1994 the Social Welfare and Health Board replaced the emergency care order with an ordinary order and upheld the access prohibition. It noted that immediately after having delivered the baby the applicant mother had gone into hiding in order to evade enforcement of the care order concerning G. The applicants had been found guilty of different crimes and had been using alcohol and narcotic substances. In such circumstances they were incapable of ensuring J.’s healthy development and of providing her with a secure environment. The applicants had further refused services offered to them in order to deal with their alcohol problem.
On 10 February 1995 the County Administrative Court dismissed the applicants’ appeals against the care order concerning J. and the access prohibitions issued in respect of the two children. The applicants’ further appeals were dismissed by the Supreme Administrative Court on 11 September 1995.
On 21 March 1995 the Social Welfare and Health Board extended the respective access prohibitions until 31 March 1996, again without disclosing the children’s whereabouts. The applicants’ appeal was dismissed by the County Administrative Court on 22 August 1996.
On 6 September 1995 the County Administrative Court rejected the applicant mother’s appeal against the respective access prohibitions prolonged in March 1995.
On 20 March 1996 the Social Welfare and Health Board extended the respective access prohibitions until 31 March 1997, again without disclosing the children’s whereabouts. In regard to G. the Board noted, inter alia, a medical report dated 15 March 1995 concluding that she had been subjected to sexual abuse. It also noted that the father was serving a prison sentence and that the mother was corresponding with the children and sending them packages via the social authorities.
On 22 August 1996 the County Administrative Court dismissed the applicants’ appeal against the respective access prohibitions, noting that they had been issued in view of the risk that the applicants might again attempt to remove the children from the foster home and go into hiding with them.
According to the Government, the applicants have been convicted of various violent and drug-related offences, most recently in 1996.
The relevant legislation is outlined in the Court’s judgment in K. and T. v. Finland ([GC], no. 25702/94, §§ 94-136, ECHR 2001). Those provisions of particular relevance to the present case are described below.
According to section 16 of the Child Welfare Act, the Social Welfare Board shall take a child into care and provide substitute care for him or her if (a) the child’s health or development is seriously endangered by lack of care or other conditions at home, or if the child seriously endangers his or her health and development by abuse of intoxicants, by committing an illegal act other than a minor offence, or by any other comparable behaviour, (b) the measures of assistance in open care are not appropriate or have proved to be inadequate; and (c) foster care is considered to be in the best interests of the child. Foster care shall be provided without delay where it is needed and is in the best interests of the child (section 9, subsection 2). The care order must be forwarded to the administrative court for approval if a party opposes it and in certain other circumstances (section 17, subsection 2).
If a child is in imminent danger for a reason stated in section 16 or is otherwise in need of an urgent care order and substitute care, the Social Welfare Board may take him or her into care without submitting the decision to the administrative court for approval (section 18). An emergency care order expires within 14 days of the decision unless a normal order under section 17 is requested during that period. Such an order must be made within 30 days, or on special grounds within 60 days of the emergency order.
The child’s custodians, biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken (section 17, subsection 1, of the Child Welfare Act, as amended by Act no. 139/1990). The hearing procedure is governed by the Administrative Procedure Act (hallintomenettelylaki, lag om förvaltningsförfarande 598/1982). Under section 15 of the said Act a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken. The Administrative Procedure Act does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply. A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary, would jeopardise the purpose of the decision or if the decision cannot be postponed. Section 17 of the Administrative Procedure Act requires that the competent authority duly investigate the matter before it and ensure the equality of the parties.
According to section 47 of the Social Welfare Act (sosiaalihuoltolaki, socialvårdslag 710/1982), a decision made by the Social Welfare Board is enforceable regardless of an appeal (a) if the decision requires immediate implementation; (b) if, for reasons due to the arrangement of social welfare, the enforcement of the decision cannot be delayed; or (c) when the Social Welfare Board has ordered the decision to be enforced at once.
According to section 24 of the Child Welfare Act, a child who is being cared for outside his or her original home shall be ensured those important, continuous and secure human relations which are important for his or her development. The child is entitled to meet his or her parents and other close persons and to keep in touch with them (subsection 1). The Social Welfare Board shall support and facilitate the child’s contacts with his or her parents and other close persons (subsection 2).
According to section 25 of the Child Welfare Act and section 9 of the Child Welfare Decree, the Social Welfare Board or the director of a children’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if (a) such access clearly endangers the development or safety of the child; or if (b) such a restriction is necessary for the safety or security of the parents, or the children or staff in the children’s home. The restriction shall be limited in time. It shall mention the persons whose rights are being restricted, the kind of contacts concerned by the restriction and the extent of the restriction.
The care plan to be drawn up in respect of a child in public care shall mention (a) the purpose and objectives of the placement; (b) what kind of special support will be organised for the child, for the persons in charge of the child’s care and upbringing and for the child’s parents; (c) how the child’s right of access to its parents and other persons close to the child will be organised; and (d) how after-care is going to be organised. According to section 4 of the Child Welfare Decree, the care plan shall be elaborated in co-operation with those involved.
Under the Social Welfare Act officials may not, without the consent of the person concerned or that of, for instance, his or her custodian, disclose personal and family information obtained in the performance of their duties. This duty of confidentiality does not prevent officials from disclosing information to those entitled to obtain it for the performance of their official duties (section 57). Thus the social welfare authorities are entitled to obtain, from a public body such as a municipal care centre, any material required for the performance of their duties (section 56). The confidentiality of patient records, as stipulated in the Act on the Status and Rights of Patients (laki potilaan asemasta ja oikeuksista, lagen om patientens ställning och rättigheter 785/1992), may thereby be waived (section 13 of the said Act). A refusal to disclose information requested under section 56 of the Social Welfare Act constitutes an offence (section 58).
The Child Welfare Act obligates the authorities to provide social welfare authorities with information not only in accordance with Section 56 of the Social Welfare Act but also actively and on their own initiative. According to section 40 of the Child Welfare Act, certain officials are under a duty to notify the social authorities immediately whenever a child appears to be in evident need of child welfare measures. Others may also notify the Social Welfare Board of similar suspicions.
Under the Act on Publicity of Public Documents as in force at the relevant time (laki yleisten asiakirjain julkisuudesta, lagen om allmänna handlingars offentlighet 83/1951) documents drawn up and issued by an authority, or which had been submitted to an authority and were still in that authority’s possession, were public (section 2, subsection 1). An exception to the rule of full publicity was made, inter alia, for medical and similar reports, which were accessible to the public only with the consent of the person they related to (section 17). The refusal of access to a document could be submitted for reconsideration by the authority refusing such access, following which there lay an appeal under the general rules for appeals against a decision of that authority. If no right of appeal existed under such general rules, an appeal could be lodged with the superior authority. If no such authority existed, an appeal against a state authority’s decision could be lodged with the Supreme Administrative Court. An appeal against a decision by another authority could be lodged with an administrative court (section 8, subsection 1). On 1 December 1999 the Act on Publicity of Public Documents was replaced by the Act on Publicity of the Activities of Public Authorities (laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet 621/1999) which provides for similar access and avenues of appeal.


ITEMID: 001-68580
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ROSCA v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant, Mr Ion Roşca, is a Moldovan national who was born in 1943 and lives in Chişinău. He was a shareholder in a private bank.
8. In 1999 he had a disagreement with the bank as to the redemption of two thousand shares and consequently he brought an action against the bank, seeking compensation of 163,422 Moldovan Lei (MDL).
9. On 21 September 2000 the Râşcani District Court found in favour of the applicant and awarded him MDL 20,000. Both the applicant and the bank appealed against that judgment.
10. On 14 February 2001 the Chişinău Regional Court dismissed the applicant’s appeal but upheld the bank’s appeal. By its judgment it rejected the applicant’s claim. The applicant lodged an appeal in cassation.
11. On 17 April 2001 the Court of Appeal upheld the appeal in cassation and by its judgment ordered the bank to pay the applicant MDL 102,653 (the equivalent of 8,959 euros (EUR) at the time). The judgment became final and enforceable on the same date.
12. In June 2001 the Prosecutor General’s Office filed a request for annulment of the judgment of the Court of Appeal of 17 April 2001, and asked the Supreme Court of Justice to uphold the judgment of the Chişinău Regional Court of 14 February 2001.
13. On 11 July 2001 the Supreme Court of Justice upheld the Prosecutor General’s request for annulment and quashed the final judgment of the Court of Appeal of 17 April 2001. The judgment of the Chişinău Regional Court of 14 February 2001 became final.
14. On 22 October 2004, following a request by the Government Agent, the Prosecutor General’s Office applied to the Supreme Court of Justice for the revision of its judgment of 11 July 2001. The application was based on Article 449 (j) of the Code of Civil Procedure (see paragraph 17 below).
15. On 15 December 2004, by a final decision, the Supreme Court of Justice admitted the Prosecutor General’s revision application and quashed its judgment of 11 July 2001. It found the Prosecutor General’s request justified since inter alia the quashing of the final judgment of the Court of Appeal of 17 April 2001 constituted a breach of the principle of legal certainty and consequently was in breach of Article 6 § 1 of the Convention. The judgment of 17 April 2001 became final again.
16. The old Code of Civil Procedure of 1964, repealed on 12 June 2003
Upon request from a party to the proceedings, the Prosecutor General and his deputies can file a request for annulment with the Supreme Court of Justice against any final decision of the domestic courts.
The request for annulment can be filed in the following cases:
- when the final judgment lacks a legal basis or has been delivered in breach of the law or the law was wrongly applied;
- when the issuing court has exceeded its jurisdiction;
- when offences has been committed by judges in connection with the final decision.
There is no time limit for filing a request for annulment.
The request for annulment has to be made in written form and has to contain the reasons provided for in Article 333. The request for annulment has to be filed in as many copies as there are participants to the proceedings. The Prosecutor General or his deputies can withdraw the request for annulment at any time before the closure of pleadings in the case, by prior notice, stating the reasons for the withdrawal. In such a case, the parties to the proceedings may request the continuation of the proceedings.
The proceedings related to the request for annulment shall be governed by the rules set forth in Chapter 35 of the Code of Civil Procedure. The presence of the Prosecutor General at the proceedings is compulsory.
17. The new Code of Civil Procedure, entered into force on 12 June 2003
Grounds for revision.
The revision may be requested:
j) When the European Court of Human Rights has started a procedure of friendly settlement in a case where the Government of the Republic of Moldova is a Party, and the Government consider that by a final decision of a court a fundamental right guaranteed by the Constitution of the Republic of Moldova or by the European Convention for the Protection of Human Rights and Fundamental Principles has been breached.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101579
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2010
DOCNAME: CASE OF ŞERİFE YİĞİT v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (exhaustion of domestic remedies);No violation of Art. 14+P1-1;No violation of Art. 8
JUDGES: András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Luis López Guerra;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky
TEXT: 9. The applicant was born in 1954 and lives in İslahiye.
10. She was the partner of Ömer Koç (Ö.K.), a farmer whom she married in a religious ceremony in 1976 and with whom she had six children. Ö.K. died on 10 September 2002. The applicant stated that on that date, while she and her partner had been making preparations for an official marriage ceremony, Ö.K. had died following an illness.
11. On 11 September 2003 the applicant brought proceedings before the İslahiye District Court on her own behalf and on behalf of her daughter Emine seeking rectification of the entry concerning her in the civil status register. She requested that her religious marriage to Ö.K. be recognised and that her daughter be entered in the register as the deceased's daughter.
12. In a judgment of 26 September 2003 the District Court refused the applicant's request concerning her religious marriage but granted the request for Emine to be entered in the register as Ö.K.'s daughter. As no appeal was lodged, the judgment became final.
13. On an unspecified date the applicant requested the Hatay retirement pension fund (“BağKur”) to award her and her daughter Emine a survivor's pension and health insurance cover on the basis of her late partner's entitlement. The fund refused the request.
14. On 20 February 2003 the applicant applied to the İslahiye Labour Court to have that decision set aside. On 20 May 2003 the latter decided that it had no jurisdiction ratione loci and that the case should be heard by the Hatay Labour Court.
15. In a judgment of 21 January 2004 the Hatay Labour Court, in a ruling based on the judgment of the İslahiye District Court, found that the applicant's marriage to Ö.K. had not been validated. Accordingly, since the marriage was not legally recognised, the applicant could not be subrogated to the deceased's rights. However, the court set aside the retirement fund's decision in so far as it related to Emine and granted her the right to claim a pension and health insurance cover on the basis of her deceased father's entitlement.
16. On 10 February 2004 the applicant appealed on points of law to the Court of Cassation. She argued that the extract from the civil status register stated that she was the wife of Ö.K., who was registered in the village of Kerküt. She explained that in 1976 she had married Ö.K. in accordance with custom and practice. The couple had had six children. The first five children had been entered in the civil status register in 1985 under their father's name, while the last child, Emine, born in 1990, had been entered under her mother's name in 2002. The applicant asserted that, unlike her six children, she had been unable to claim a pension or health insurance cover based on her deceased partner's entitlement.
17. In a judgment of 3 June 2004, served on the applicant on 28 June 2004, the Court of Cassation upheld the impugned judgment.
18. Article 134 of the Civil Code provides:
“A man and a woman who wish to contract a marriage must apply together to the civil status registrar in the place of residence of either one of them.
The civil status registrar [who is to perform the ceremony] shall be the mayor in the case of a municipality, or the official whom he or she has designated for the purpose, or the muhtar in the case of a village.”
19. Articles 135 to 144 of the Civil Code lay down the substantive and formal conditions governing the solemnisation of marriage between men and women.
20. Article 143 of the Code reads as follows:
“At the close of the [civil] marriage ceremony the official shall issue the couple with a family record book.
No religious ceremony may be performed without the family record book being produced.
The validity of the [civil] marriage is not linked to the performance of a religious ceremony.”
21. Article 176 § 3 of the Civil Code concerning maintenance payments provides that maintenance in the form of an allowance or periodic payments ceases to be due when the recipient remarries or one of the two parties dies, or if the recipient is living in a de facto marital relationship outside marriage, is no longer in financial need or has an immoral lifestyle.
22. The sixth paragraph of Article 230 of the Criminal Code reads as follows:
“Any person who solemnises a religious marriage without having seen the document certifying that a marriage ceremony was performed in accordance with the law shall be liable to a term of imprisonment of between two and six months.”
23. Article 43 of the Code of Obligations concerns the determination of compensation awards depending on the circumstances and the seriousness of the fault. Article 44 of the Code deals with reductions in compensation awards. Article 45 concerns awards for damages following a death: persons deprived of financial support as the result of a death must receive compensation for loss of income.
24. Section 23(b) and (c) of the Social Security Act (Law no. 506) lists the persons eligible for a survivor's pension on the death of a spouse (where a civil marriage has taken place).
25. Sections 32 to 34 of the General Health and Social Security Act (Law no. 5510) set out the circumstances in which the persons entitled under the deceased (where there was a civil marriage) may claim a survivor's pension, and the method used to calculate the amount.
26. The aim of this Law is to safeguard women's social, economic, cultural and political rights and to combat all forms of discrimination against women and improve their level of educational attainment.
27. As its title indicates, this Law (repealed on 16 May 1996) dealt with the recording in the civil status register under the father or mother's name of children born within or outside civil marriage and with the regularisation of the situation of children whose parents had not contracted a civil marriage. The new Civil Code, which entered into force on 8 December 2001, no longer distinguishes between children born within and outside marriage.
28. In a judgment of 28 May 2007 (E. 2007/289, K. 2007/8718), the Twenty-First Division of the Court of Cassation quashed a first-instance judgment on the ground that a woman married in accordance with religious rites should be paid compensation under Articles 43 and 44 of the Code of Obligations following the death of her partner in a work-related accident.
29. In a judgment of 11 September 1990 (E. 1990/4010, K. 1990/6972), the Tenth Division of the Court of Cassation set aside a first-instance judgment awarding compensation to a woman living in a religious marriage following the death of her partner in a work-related accident. After reiterating that marriage was a legal institution, that a religious union between two persons of opposite sex could not be recognised as a marriage and that section 23(c) and (b) of the Social Security Act (Law no. 506) guaranteed compensation only to the children born of a marriage or a union other than marriage, the Court of Cassation ruled that the children were entitled to social security cover following the death of their father, but that the father's partner was not. The court held that in the absence of legislation on the subject, the social security agency could require the woman in question to repay the sums wrongly paid to her after her partner's death.
30. By a judgment of 11 December 2003 (E. 2003/14484, K. 2003/14212), on the basis of Article 176 § 3 of the Civil Code, the Third Division of the Court of Cassation set aside a judgment of the lower court on the ground that a former husband was no longer required to pay maintenance to his ex-wife since the latter was living in a de facto marital relationship with another man, albeit without a marriage certificate, and the couple had a child together.
31. In a judgment of 6 June 2000 (E. 2000/3127, K. 2000/4891) the Fourth Division of the Court of Cassation overturned a criminal court ruling acquitting an imam who had performed a religious marriage ceremony without first checking the document proving that a civil marriage had taken place in accordance with the law.
32. In a judgment of 17 October 1997 (E. 1995/79, K. 1997/479) the General Assembly of the plenary Supreme Administrative Court (Danıştay Dava Daireleri Genel Kurulu) upheld a first-instance judgment, thereby overturning the judgment of the Tenth Division of the Supreme Administrative Court, on the ground that the children and surviving partner from a religious marriage should be awarded compensation after their father and partner was accidentally killed (by police bullets fired on the fringes of a demonstration). The General Assembly observed that the action had been brought by the surviving partner on her own behalf and that of her children, that four children had been born of the relationship, resulting from a religious marriage, and that following the man's death, the children and their mother had been deprived of his financial support (destekten yoksun kalma tazminatı). It pointed out that, while domestic law did not afford protection to or validate such a union, the couple had had children together whose births had been recorded under the parents' names in the civil status register and the deceased had supported the family financially. Accordingly, it awarded compensation to the children and their mother on account of the man's death.
33. As cohabitation on the basis of religious marriage is a social reality, the courts apply two principles of civil liability in awarding compensation to women whose partner in a religious marriage has died:
(a) compensation for pecuniary and non-pecuniary damage (maddi ve manevi tazminat) on the basis of Articles 43 and 44 of the Code of Obligations;
(b) compensation for loss of financial support (destekten yoksun kalma tazminatı) following a death, on the basis of Article 45 of the Code of Obligations.
34. In the specific context of Article 176 § 3 of the Civil Code, the legislation refers to couples living together as de facto man and wife without having contracted a civil marriage. In practice, this means religious marriage, and there is no requirement to continue paying maintenance to the other party in the situations contemplated (see paragraph 21 above). However, the Court of Cassation does not award the two types of compensation referred to in the previous paragraph in the case of same-sex or adulterous relationships, which are deemed to run counter to morals (see, for example, the judgment of the Twenty-First Division of the Court of Cassation of 11 October 2001 (E. 2001/6819, K. 2001/6640)).
35. The legislature does not recognise any form of opposite-sex or samesex cohabitation or union other than civil marriage. The domestic courts interpret the law very strictly. The fact that the general principles articulated in the Civil Code and the Code of Obligations are applied cannot be viewed as tacit or de facto recognition of religious marriage. Although the domestic courts award surviving partners compensation on the basis of general principles of civil liability – which cannot be equated with the principles governing social security or civil marriage – they never grant them survivor's pensions or social security benefits based on the deceased partner's entitlement.
36. Under Islamic law, a religious marriage requires the presence of two male witnesses (or one man and two women). The marriage is solemnised simply by the couple exchanging vows in the presence of the witnesses, without the need for a cleric (imam or equivalent) to be present or for an official document to be drawn up. Under the Ottoman empire, following a decision taken by the supreme Sunni religious authority, the Sheikh-ul-Islam, the presence of an imam or a kadı (judge) became compulsory for all marriage ceremonies, on pain of penalties. This practice became widely established, and nowadays the presence of an imam is required. Muslim marriages also include a pecuniary element in the form of a dowry (mahr).
37. Islamic law, save in some specific circumstances (for instance, the death of the husband), recognises repudiation (talâk) as the sole means of dissolving a marriage. This is a unilateral act on the part of the husband, who dismisses his wife and thereby severs the marital bond. It entails the husband explicitly repudiating his wife by saying the required form of words three times to her (for example: “I repudiate you” or “You are repudiated”).
38. The Turkish Republic was founded on a secular basis. Before and after the proclamation of the Republic on 29 October 1923, the public and religious spheres were separated through a series of revolutionary reforms: the abolition of the caliphate on 3 March 1923; the repeal of the constitutional provision declaring Islam the religion of the State on 10 April 1928; and, lastly, on 5 February 1937, an amendment to the Constitution according constitutional status to the principle of secularism (see Article 2 of the 1924 Constitution and Article 2 of the Constitutions of 1961 and 1982). The principle of secularism was inspired by developments in Ottoman society in the period between the nineteenth century and the proclamation of the Republic (see Leyla Şahin v. Turkey [GC], no. 44774/98, §§ 30-32, ECHR 2005XI).
39. One of the major achievements of the Civil Code was the institution of compulsory monogamous civil marriage between men and women, requiring religious marriages to be preceded by a civil ceremony. The new Civil Code, which entered into force on 8 December 2001, does not cover any forms of cohabitation other than marriage. The national parliament chose not to enact legislation in this sphere.
40. According to the Religious Affairs Directorate (Diyanet İşleri Başkanlığı), imams, who are appointed by the Directorate, are expressly required to verify that the future husband and wife have been married by a civil status registrar. The “religious” ceremony before an imam appointed by the Directorate is a mere formality which entails little solemnity. The civil marriage takes precedence over the religious marriage.
41. Of the thirty-six countries surveyed in a comparative-law study, fourteen (Cyprus, the Czech Republic, Denmark, Finland, Greece, Ireland, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Spain and the United Kingdom) recognise varying forms of religious marriage. Exclusively religious marriages are not recognised and are treated on the same footing as cohabitation in the following countries: Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, France, Georgia, Germany, Hungary, Luxembourg, Moldova, Monaco, the Netherlands, Romania, Serbia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine.
42. Of the thirty-six countries surveyed, four (France, Greece, Portugal and Serbia) expressly recognise cohabitation. In other countries, although such arrangements are not expressly recognised, they produce legal effects to one degree or another. This is the case in Austria, Belgium, the Czech Republic, Denmark, Hungary, Italy, the Netherlands, Slovenia and Switzerland. However, the majority of States do not recognise cohabitation at all (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Finland, Georgia, Germany, Ireland, Latvia, Lithuania, Luxembourg, Malta, Moldova, Monaco, Poland, Romania, “the former Yugoslav Republic of Macedonia”, Ukraine and the United Kingdom).
43. In twenty-four countries (Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Cyprus, the Czech Republic, France, Germany, Greece, Hungary, Ireland, Luxembourg, Moldova, Monaco, the Netherlands, Poland, Romania, Serbia, Slovenia, Spain, Switzerland, “the former Yugoslav Republic of Macedonia” and Ukraine), the national legislation allows the surviving spouse, subject to certain conditions, to claim benefits based on the deceased's social security entitlements. Of these countries, only six (Austria, Belgium, France, Hungary, the Netherlands and Spain) extend this right to cohabitants. In most of the member States of the Council of Europe, only married couples who have contracted a civil marriage qualify for health insurance cover on the death of one of the partners; hence, cohabitants are not eligible.
44. In Denmark, Hungary, the Netherlands, Portugal, Slovenia and Spain a survivor's pension may be awarded to a surviving cohabitant in certain circumstances. In the vast majority of countries which have a survivor's pension, cohabitants are not eligible to receive it.
NON_VIOLATED_ARTICLES: 14
8
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-58136
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF BAHADDAR v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies)
TEXT: 6. Mr Shammsuddin Bahaddar is a Bangladeshi national born in 1966. He is currently resident in the Netherlands.
7. Mr Bahaddar arrived in the Netherlands on 7 July 1990. On 13 July 1990 he lodged applications for refugee status or, in the alternative, a residence permit on humanitarian grounds.
8. With the assistance of a Bengali interpreter, Mr Bahaddar was interviewed by an official of the Ministry of Justice (Ministerie van Justitie) on 22 May 1991. He claimed to have been a member of the illegal organisation Shanti Bahini (Peace Troops), the military wing of the Jana Samhati Samiti (People’s Solidarity Association, an organisation seeking autonomy for the inhabitants of the Chittagong Hill Tracts), and to be in danger of persecution on that ground.
Mr Bahaddar’s applications for refugee status or, in the alternative, a residence permit on humanitarian grounds were refused on 16 July 1991 by the Deputy Minister of Justice (Staatssecretaris van Justitie). The applicant then applied to the Deputy Minister for revision (herziening) of this decision.
9. The Deputy Minister refused to grant suspensive effect to Mr Bahaddar’s application for revision of his decision. In order to obtain an injunction against his expulsion pending the revision proceedings, the applicant instigated summary injunction proceedings (kort geding) before the President of the Regional Court (Arrondissementsrechtbank) of The Hague sitting at ’s-Hertogenbosch (nevenzittingsplaats ’s-Hertogenbosch).
10. On 14 November 1991 the President granted the injunction requested. The President found the applicant’s story consistent and credible.
11. The applicant was heard by the Advisory Board on Matters concerning Aliens (Adviescommissie voor Vreemdelingenzaken) on 21 December 1992.
12. On the same day the Advisory Board expressed the opinion that the applicant was not a refugee within the meaning of the 1951 Geneva Convention relating to the Status of Refugees (see paragraph 24 below) and that he was not eligible for a residence permit on humanitarian grounds either. The Advisory Board considered that on essential points the applicant’s account was vague and contradictory.
13. Adopting the Advisory Board’s proposal and reasoning, the Deputy Minister of Justice rejected the application for revision on 26 March 1993.
14. On 31 March 1993 the applicant lodged an appeal against the Deputy Minister’s decision with the Judicial Division (Afdeling Rechtspraak) of the Raad van State, adding that the grounds for the appeal would be submitted as soon as possible. As this appeal was denied suspensive effect, the applicant instigated summary injunction proceedings before the President of the Regional Court of The Hague sitting at Amsterdam.
15. Following a hearing on 22 October 1993 the President of the Regional Court, on 11 November 1993, granted the applicant an injunction against his expulsion pending the proceedings before the Judicial Division.
16. In the meantime, the applicant’s lawyer was informed by the Judicial Division on 28 June 1993 that she had not so far submitted the grounds for the appeal with the Judicial Division and she was given the opportunity to comply with this requirement before 29 July 1993. The applicant’s lawyer submitted grounds for the appeal on 20 October 1993, without providing an explanation for the delay.
17. On 7 March 1994 the President of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak, the successor of the Judicial Division – see paragraph 34 below) in simplified proceedings (vereenvoudigde procedure) declared the applicant’s appeal inadmissible for failure to comply with a formal requirement. The applicant lodged an objection (verzet) against this decision with the Administrative Jurisdiction Division on 11 March 1994.
18. At the hearing of the applicant’s objection, which took place on 22 September 1994, the applicant argued that it had not been possible to submit his grounds of appeal before 20 October 1993 since it had been necessary, given that the Deputy Minister of Justice had disputed the authenticity of documents submitted by him, to try and obtain further proof of his allegations from Bangladesh and that this had taken a long time.
19. The Administrative Jurisdiction Division rejected the applicant’s objection on 29 September 1994, on the grounds that he had been given ample opportunity to submit his grounds of appeal, that he had been informed of the possible consequences of failure to do so and that, even if he considered it impossible to cure that failing in time, he ought to have submitted a request for an extension of the time-limit before it lapsed.
20. Neither the Administrative Jurisdiction Division nor its President in his decision of 7 March 1994 examined the merits of the applicant’s appeal.
21. Mr Bahaddar applied to the Commission on 2 December 1994 (see paragraph 35 below).
22. In the meantime, on 21 July 1994, Mr Bahaddar had lodged a second application for a residence permit, arguing that he had been legally resident in the Netherlands for four years already. On being given notice that he would be expelled from the Netherlands on 1 August, he brought summary injunction proceedings before the President of the Hague Regional Court for a suspension of the expulsion order. A hearing took place on 7 December.
23. At that hearing it transpired that Mr Bahaddar had lodged new applications for refugee status or, in the alternative, a residence permit on humanitarian grounds on 5 December 1994, arguing that the second declaration issued by the Shanti Bahini and the certified copy of the complaint filed against him, as well as information provided by his lawyer in Bangladesh, constituted new facts which the Deputy Minister of Justice had not been able to take into account when deciding on the applicant’s initial applications. In view of this information the representative of the Deputy Minister of Justice promised that the applications of 21 July and 5 December 1994 would be considered together and that the applicant would not be expelled in the meantime.
In a single decision of 12 January 1995, the Deputy Minister of Justice rejected both applications.
According to the Government, Mr Bahaddar, through his lawyer, appealed against this decision to the Hague Regional Court, but failed to submit any grounds therefor within the time-limits set for that purpose. His appeal was declared inadmissible for that reason on 21 June 1995. The applicant did not lodge any objection against that decision.
24. In so far as it is relevant to the present case, Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 (the 1951 Geneva Convention), as amended by the Protocol relating to the Status of Refugees of 31 January 1967, defines the term “refugee” as follows:
“… any person who … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
25. Article 33 § 1 of the 1951 Geneva Convention prohibits the expulsion or return of a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
The Netherlands are party to both the convention and the protocol.
26. Under section 15(1) of the Aliens Act (vreemdelingenwet), aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political conviction, or of belonging to a particular race or a particular social group, may be admitted by the Minister of Justice as refugees.
The expression “refugee” in this provision is construed to have the same meaning as in the 1951 Geneva Convention, as amended (see paragraph 24 above; decision of the Judicial Division of the Raad van State of 16 October 1980, Rechtspraak Vreemdelingenrecht – Immigration Law Reports – 1981, no. 1).
27. Aliens, other than refugees, wishing to reside in the Netherlands for any length of time have to hold a residence permit (section 9 of the Aliens Act). Such a permit is applied for to, and granted by, the Minister of Justice (section 11(1) of the Aliens Act).
28. Given the situation obtaining in the Netherlands with regard to population size and employment, government policy is aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if:
(a) the Netherlands are obliged under international law to do so, as in the case of citizens of the European Union or Benelux member States and refugees covered by the above-mentioned Geneva Convention; or
(b) this serves “essential interests of the Netherlands”, e.g. economic or cultural interests; or
(c) there are “cogent reasons of a humanitarian nature” (klemmende redenen van humanitaire aard).
29. An alien who does not, or does no longer, qualify for admission to the Netherlands can be expelled (section 22(1) of the Aliens Act). However, aliens who claim that their removal from the Netherlands will compel them to travel to a country where they have reason to fear persecution on one of the grounds set out in section 15(1) (see paragraph 26 above) cannot be expelled except by a specific order of the Minister of Justice (section 22(2)).
30. Prior to the entry into force of the General Administrative Law Act on 1 January 1994, an alien could, in the event of a refusal to grant refugee status or a residence permit, apply in writing to the Minister of Justice for administrative revision of his decision (section 29(1) of the Aliens Act). If such an application was not decided on within six months, it was deemed to have been refused (section 29(2)).
Such a request for revision did not suspend the alien’s expulsion unless it was made more than one month before the expiry of the period during which the alien was allowed to remain in the Netherlands (section 32(2)). It was, however, open to the Minister to decide that the request would have “suspensive effect”.
If suspensive effect was withheld, the alien could bring summary civil proceedings before the President of the Hague Regional Court for an injunction preventing his or her expulsion pending the Minister’s decision. The latter decision, however, was not prejudged by such an injunction.
31. The advice of the Advisory Board on Matters concerning Aliens had to be obtained if a request was made for revision of a decision to refuse refugee status to an alien who would be compelled as a result of such refusal to return to a country where he or she had reason to fear persecution (section 31(1)(b) of the Aliens Act), or to expel an alien whose main place of residence for three months or more had been in the Netherlands and who had complied with the formalities required by the Aliens Act (section 31(1)(c) taken together with section 29(1)(g)).
32. In the event of a negative decision, or of failure to decide within due time, an appeal lay to the Judicial Division of the Raad van State (section 34(1) of the Aliens Act).
However, such an appeal had no suspensive effect if the Minister’s decision was in accordance with the advice of the Advisory Board on Matters concerning Aliens (section 34(2)(a)); in such a case, the alien could seek an injunction preventing his expulsion pending the decision of the Judicial Division in summary civil proceedings before the President of the Hague Regional Court. Like the Minister’s decision (see paragraph 30 above), the decision of the Judicial Division was not prejudged by such an injunction.
33. An alien appealing to the Judicial Division of the Raad van State had to submit grounds of appeal and, if possible, all documents pertaining to the dispute (section 72(1) of the Raad van State Act (Wet op de Raad van State). If this was not done at the time the appeal was lodged, the opportunity would be offered to do so at a later date, within a time-limit to be set by the President of the Judicial Division; failure to comply with that time-limit could lead to a decision declaring the appeal inadmissible (section 74). Such a decision could be given by the President of the Judicial Division in simplified proceedings (section 105(1)).
An objection lay, within fourteen days, to a Chamber of the Judicial Division (section 106(1)).
34. The entry into force of the General Administrative Law Act on 1 January 1994 brought extensive changes to the procedural provisions of the Aliens Act.
An appeal against the refusal to grant refugee status or a residence permit lies to the Administrative Law Section of the Hague Regional Court (section 8:1 of the General Administrative Law Act; section 33a of the Aliens Act). No further appeal is allowed (section 33e of the Aliens Act).
Pending such an appeal the alien will not be expelled if refugee status has been claimed and the claim is not manifestly ill-founded, or if another application for admission has been lodged which is the subject of an objection or appeal that has a prima facie chance of success.
It is possible to apply to the Administrative Law Section for an order for interim measures (section 8:81 of the General Administrative Law Act).
A transitional provision (section I(3) of the Act of 16 December 1993, Staatsblad (Official Gazette) 1993, no. 250), provides that cases pending before the Judicial Division of the Raad van State prior to the entry into force of the General Administrative Law Act shall be determined according to the former law, but by the successor to the Judicial Division, the Administrative Jurisdiction Division.


ITEMID: 001-73266
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF AVDIC  v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1954 and lives in Velenje.
6. On 5 December 1995 the applicant was injured in an accident at work in a mine. The applicant’s employer had taken out insurance with the insurance company ZT.
7. On 3 July 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 9,177,050 tolars (approximately 38,000 euros) for the injuries sustained.
Between 31 July 1997 and 6 September 2000 the applicant lodged six preliminary written submissions and/or adduced evidence.
On 31 August 1998 and 3 November 1998 he requested that a date be set for a hearing.
Of the three hearings held between 26 March 1999 and 25 September 2000 none was adjourned at the request of the applicant.
During the proceedings the court appointed two medical experts.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 29 November 2000.
8. On 11 December 2000 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). On 13 December 2000 he amended the appeal. ZT cross-appealed.
On 14 March 2002 the court allowed both appeals in part, annulled a part of the first-instance court judgment and remitted the case to the first instance court for re-examination.
9. On 27 June 2002 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče). ZT cross-appealed.
On 25 March 2004 the court dismissed both appeals.
The judgment was served on the applicant on 12 May 2004.
10. On 31 January 2005 the first-instance court held a hearing and decided to deliver a written judgment.
The judgment, upholding the applicant’s claim in part, was served on the applicant on 3 February 2005.
11. On 4 February 2005 the applicant appealed to the Celje Higher Court against the part of the judgment concerning costs and expenses of the proceedings.
On 15 February 2006 the court dismissed the appeal. The decision was served on the applicant on 6 March 2006.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-82273
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: WEINEIS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Ms Chonchita Weineis, is a German national who was born in 1951 and lives in Solingen in Germany. She was represented before the Court by Mr W. Burdenski, a lawyer practising in Frankfurt.
On 11 April 1998 the applicant’s daughter N., born on 29 October 1980, was stabbed several times with a knife by her partner W. on a camping-site in France, where they had spent their holidays. N. died shortly afterwards.
On the evening of 11 April 1998 the applicant was informed about her daughter’s death by two German police officers in Solingen.
On 3 November 2000 the Seine-Maritime Criminal Court convicted W. of manslaughter and sentenced him to eighteen years’ imprisonment.
Section 1, sentence 1 of the Crime Victims Compensation Act, as far as relevant, provides as follows:
“A person who suffered health damage within the area of applicability of this law or on a German ship or airplane as the result of a deliberate, unlawful attack directed against himself or against a third person...receives on request compensation for the consequences to his health and economic situation...”
On 10 December 2002 the Federal Social Court rejected the compensation claims of another plaintiff who was informed in Germany that her two children had been murdered in Spain on the ground that the crime had been committed outside German territory. On 10 April 2003 the Federal Constitutional Court refused to admit that plaintiff’s constitutional complaint without giving any reasons.


ITEMID: 001-67225
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: BEALE v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Mr Lancelot Scott Beale, is a United Kingdom national, who was born in 1950 and lives in Bromham. He is represented before the Court by Messrs Clarke Willmott & Clarke, a firm of lawyers practising in Taunton.
The applicant was a sheep farmer who was under investigation by the local trading standards officers for the way in which he kept his sheep. He voluntarily attended two interviews, on 30 November 2000 and on 19 February 2001. The interviews were set up six and ten days respectively in advance. On each occasion, the applicant was cautioned, told that he was free to leave, that he could obtain legal advice, and that he could have a solicitor present at the interview. At the first interview, the applicant answered all questions. At the second, he stated at one point that he would have been happier if he had been accompanied by a solicitor.
In the proceedings, the applicant contended that the transcripts of both interviews should not be admissible as evidence. The magistrates excluded the transcript of the second interview, but admitted that of the first. On 16 May 2002, the applicant was convicted on 23 counts of causing unnecessary suffering to sheep, of failing to dispose of animal by-products, and of failing to keep proper records.
The applicant appealed, contending that the transcript of the interview of 30 November 2000 should also have been excluded from the case on the ground that the applicant had not been informed that free legal advice was available. On 11 December 2002 the High Court (Rose LJ and Fulford J) dismissed the application. It found under that domestic law, there was a right to free legal aid (from the duty solicitor) where a person was questioned at a police station, but not in circumstances where, as here, a person is questioned voluntarily in other premises and no constable is present. As free “police station” legal aid was not relevant, it could not be expected of a trading standards officer to give the applicant information as to means-tested legal advice. The High Court also considered that Article 6 § 3 (c) did not extend to requiring free legal advice to be given for initial, voluntary questioning, and that accordingly there could be no requirement to give information as to such advice. Leave to appeal was refused, regardless of whether the matter was civil (in which case the appeal would have been, with leave, to the Court of Appeal) or criminal (in which case it would have been, with a certificate that the case raise a point of law of general public importance and leave, to the House of Lords).
Section 58 of the Police and Criminal Evidence Act 1984 (PACE) grants a person arrested and “held in custody in a police station or other premises” the right to consult a solicitor “if he so requests”. The obligation to inform a person of his rights to legal advice is restricted to persons under arrest and at a police station or elsewhere in the charge of a constable (Section 118(2) PACE). Code of Practice C under PACE provides at C:3.1 that where a person is brought to a police station under arrest, or is arrested at the police station after having attended voluntarily, the custody officer must inform him of the right to consult privately with a solicitor and the fact that independent legal advice is available free of charge.
Under Code C:6.1, subject to certain provisos, all persons in police detention must be informed that they may at any time consult and communicate privately with a solicitor, and that independent legal advice is available free of charge from the duty solicitor.
Under Regulation 6 of the Legal Advice and Assistance Regulations 1989, advice given to persons interviewed at a police station (including volunteers who attend voluntarily at a police station or other place where a constable is present) is free in that it is available without reference to the person's financial resources.
A separate scheme exists whereby freestanding advice and assistance is available for those who contact a solicitor, and the solicitor determines whether the individual is eligible for the means-tested advice.


ITEMID: 001-22793
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: COLLINS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää;Nicolas Bratza
TEXT: The applicant, Ms Katie Collins, is a United Kingdom national, who was born in 1966 and lives in Lincoln. She is represented before the Court by Mr I. Wise, counsel practising in London, and Ms S. Hawson, a solicitor practising in Lincoln.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, now aged 36, is microcephalic, has spasticity to her lower limbs and is autistic. She has limited verbal skills and has been assessed as having the mental age of about four and a half years.
From 1986, she was resident in a longstay hospital for the mentally handicapped. In about January 1990, she was moved to live in Long Leys Court, a purpose built complex of five bungalows and communal facilities for severely disabled adults which forms a unit within the grounds of St George’s Hospital, Lincoln. At the time of her move, the applicants and others who were also moved at this time were promised a “home for life” at Long Leys Court.
In August 2000, the Lincolnshire Health Authority (the “LHA”) issued proposals for consultation which would result in the provision at Long Leys Court ceasing and the site being used for 16 assessment/treatment and forensic beds. It was envisaged that the current residents would be transferred to social care in the community by April 2001.
During the period of consultation, the applicant’s parents wrote to the LHA complaining of this intention to renege on its promise to provide a home for life for the applicant at Long Leys Court. The applicant’s parents took the view, as later set out in their judicial review application, that the applicant would be adversely affected by the change to her routine and environment and that the applicant was adamant that she wished to remain in Long Leys Court.
On 26 October 2000, the LHA considered the outcome of the consultation process, whose proposals had been supported by the Community Health Council but opposed by the residents’ carers. While they agreed to proposals to transfer provision for the residents to “Social Care Providers” they deferred a decision about the future use of the site and sought legal advice concerning the “home for life” promises allegedly made to the residents. It was acknowledged by the LHA, in face of the consistent statements by the families of Long Leys residents, that there was a possibility that such had been given to some of the residents.
The LHA were given advice by solicitors that:
“The view is that ‘home for life’ does not necessarily mean a ‘home for life’ at a particular hospital or place of residence; rather a ‘home for life’ by reference to the needs of those individuals being met appropriately. Their need at the time that any decision is made to transfer them to other accommodation must be taken into account as must their own wishes.”
On 30 November 2000, the LHA took the decision to stop the provision of long term care beds at Long Leys and to transfer the future care of the residents to the Social Service Directorate, with due regard to working closely with the users of the services, their relatives and carers in the shape and design of new services to replace those long term care beds.
The applicant took judicial proceedings through her mother and litigation friend, alleging inter alia that the LHA had failed to respect the promise made to the applicant of a home for life at Long Leys Court, that the LHA had failed to assess her needs prior to deciding to move her and failed to give rational reasons for the decision to resile from the promise.
In his judgment of 6 September 2001, the Deputy High Court judge rejected all the applicant’s arguments. He found that the decision reflected the government policy which was to encourage the removal of persons with learning disabilities away from long term care in institutions, particularly where there was no need for the use of health resources, since the view was being taken that it would benefit the individual by promoting their independence, choice and civil rights. The decision was not taken on an erroneous view that all persons in institutional care had to be moved but was based on an assessment of the personal circumstances of the residents in this case. The judge was also satisfied that the authority did properly take into account the strong preference of the applicant and her family that she should continue to live at Long Leys. While the LHA regarded this as a weighty factor, they nonetheless concluded that it would be very much in the interests of the applicant to move into the community as she had no health needs requiring a hospital setting and her autonomy and progress would be enhanced by the move. He referred to the evidence of the consultant psychiatrist, according to whom previous patients moved into community homes had made impressive progress in health, behaviour, social skills and communication, and to his opinion that such a move would have a positive impact. He considered that there was no failure in assessment of the applicant’s situation as the consultant psychiatrist and the LHA were entitled to rely on their experience of the applicant to conclude that she would be able to adjust well to a move with adequate support without seeking a specific psychological assessment of the impact of the change. As regarded the giving of the promise of “a home for life”, the judge found that the local health authority’s approach had accorded with legal requirements of giving due consideration to the promise - they had quite properly taken legal advice on the point – and that they had been entitled to decide to move the applicant in light of their conclusion that she would benefit positively from the move. He concluded:
“For similar reasons, I am satisfied that the assessment ... of the benefits to [the applicant] of moving her out of NHS care and the [LHA’s] decision to act on those views, mean that the interference with [the applicant’s] right to respect for her home is justified under Article 8 § 2 of the Convention. The [LHA] are entitled to a degree of deference in relation to such a decision and I cannot say that their decision is a breach of Article 8, in the particular circumstances of [the applicant’s ] case, having regard, again, as I have mentioned, to the fact that moving [the applicant] will promote other aspects of her rights as a citizen in the community.”
The applicant applied for permission to appeal against this decision. A single judge of the Court of Appeal refused permission finding that the judge had reached the right decision for the right reasons. The Court of Appeal refused the renewed application on 7 November 2001, finding that the judge had taken into account all relevant matters and that his approach to the issues could not be faulted.


ITEMID: 001-103114
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF MORGANTI v. FRANCE
IMPORTANCE: 2
CONCLUSION: Lack of jurisdiction (out of time)
TEXT: 6. Mr Michel Morganti is a prisoner at Melun Prison (Seine-et-Marne).
On 22 November 1985 he was charged with the attempted murder of two Spanish Basque refugees, membership of a criminal organisation, unauthorised possession and transport without a lawful reason of category IV arms and ammunition and handling stolen goods. On the same day he was remanded in custody in Pau Prison (Pyrénées-Atlantiques).
The criminal proceedings lasted from December 1985 to 21 June 1990, when the applicant was sentenced to fifteen years' imprisonment by the Pyrénées-Atlantiques Assize Court. On 16 October 1991 the Court of Cassation dismissed an appeal on points of law by the applicant.
7. Between 10 August 1987 (date of the first application) and 21 June 1990, Mr Morganti submitted fifteen applications for release, which were all dismissed by the Indictment Division of the Pau or the Bordeaux Court of Appeal on the grounds that the length of the proceedings was reasonable in view of the serious charges against the applicant and the gravity and complexity of the facts, that public order had been seriously prejudiced in the region and that there was a risk that he would abscond if released. The applicant lodged twelve appeals on points of law, which were all dismissed.
When one of the applications for release was being heard, on 23 August 1989, the applicant's lawyer requested his immediate release on the ground that the file did not contain any warrant ordering his detention. The Pau Indictment Division adjourned the case to 30 August. On 25 and 28 August the applicant lodged two appeals on points of law against this decision. On 30 August the Indictment Division refused to order his immediate release. It found that the missing warrant was in the file and rejected the argument concerning the identity of the person named in it, holding that the reference to Albert Morganti rather than Michel Morganti in the committal warrant of 22 November 1985 had been due to a clerical error.
The Court of Cassation delivered two judgments on 19 December 1989. In the first, it declared the appeal against the adjournment decision inadmissible; in the second, it declared the submission alleging a defect in the committal warrant inadmissible, but remitted the case to the Bordeaux Indictment Division, finding of its own motion that the impugned decision had not contained a statement of the reasons on which it was based. On 13 February 1990 the Bordeaux Indictment Division dismissed the application, holding that, in view of the circumstances, the length of the proceedings had not been excessive.
The applicant appealed on points of law against the latter decision, alleging, inter alia, a violation of Article 5 para. 3 (art. 5-3) of the Convention. In a judgment of 25 April 1990 the Court of Cassation declared the appeal devoid of purpose following the applicant's committal for trial at the Assize Court on 13 October 1989.


ITEMID: 001-61522
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF GUNDUZ v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1941. He is a retired labourer.
10. On 12 June 1995 the applicant took part in his capacity as the leader of Tarikat Aczmendi (a community describing itself as an Islamic sect) in a television programme, Ceviz Kabuğu (“Nutshell”), broadcast live on HBB, an independent channel.
11. It appears from the evidence before the Court that the programme started late in the evening of 12 June and lasted about four hours. Relevant excerpts from the programme are set out below.
Hulki Cevizoğlu (presenter – “H.C.”): “Good evening ... There is a group that is grabbing public attention because of the black robes [cüppe] worn by its members, the sticks they carry and their habit of chanting [zikir]. How can this group be described – it is called a sect [tarikat], but is it really a community or group? We will be discussing the various characteristics of this group – the Aczmendis – with their leader, Mr Müslüm Gündüz, who will be talking to us live. We will also be phoning a number of guests to hear their views. On the subject of the black robes, we'll be talking on the phone to Ms N. Yargıcı, a stylist and expert on black clothing. We'll also be hearing the views of Mr T. Ateş and Mr B. Baykam on Kemalism. As regards Nurculuk, we'll be calling one of its most important leaders. The Aczmendi group – or sect – has views on religious matters as well. We'll be discussing those with Mr Y. İşcan, of the Religious Affairs Department. And while we are on the subject, viewers may phone in with questions for the Aczmendis' leader, Mr Gündüz ...”
Ms Yargıcı, a stylist taking part in the programme via a telephone link, asked Mr Gündüz a number of questions about women's clothing. They discussed religious apparel and whether the clothing worn by the sect's members was in keeping with fashion or with Islam.
The presenter then discussed movements claiming to represent Islam and asked the applicant a number of questions on the subject. They also talked about methods of chanting. In this context Mr Gündüz stated:
Mr Gündüz (“M.G.”): “Kemalism was born recently. It is a religion – that is, it is the name of a religion that has destroyed Islam and taken its place. Kemalism is a religion and secularism has no religion. Being a democrat also means having no religion ...”
H.C.: “You have already expressed those views on a programme on the Star channel ... We are now going to have Bedri Baykam on the line to see what he thinks about your comments. We are going to ask him, as a proponent of Kemalism, if it can be regarded as a religion.”
H.C.: “Do you agree with Mr Gündüz's views on Kemalism? You are one of Turkey's foremost Kemalists.”
Bedri Baykam (“B.B.”): “I don't know where to begin after so many incorrect statements. For one thing, Kemalism is not a religion and secularism has nothing to do with having no religion. It is completely wrong to maintain that democracy has no religion.”
Mr Baykam challenged Mr Gündüz's arguments and explained the concepts of democracy and secularism. He stated:
B.B.: “A sect such as the one you belong to may observe a religion. But concepts such as democracy, philosophy and free thought do not observe a religion, because they are not creatures who can establish a moral relationship with God. In a democracy all people are free to choose their religion and may choose either to adhere to a religion or to call themselves atheists. Those who wish to manifest their religion in accordance with their belief may do so. Moreover, [democracy] encompasses pluralism, liberty, democratic thought and diversity. This means that the people's desire will be fulfilled, because the people may elect party A today and party B tomorrow and then ask for a coalition to be formed the day after tomorrow. All that is dictated by the people. That is why, in a democracy, everything is free, and secularism and democracy are two related concepts. Secularism in no way means having no religion.”
M.G.: “Tell me the name of the religion of secularism.”
B.B.: “Secularism is freedom of the people and the principle that religious affairs may not interfere with affairs of State.”
...
M.G.: “My brother, I say that secularism means having no religion. A democrat is a man with no religion. A Kemalist adheres to the Kemalist religion ...”
B.B.: “[Our ancestors were not without a religion.] True, our ancestors did not allow the establishment of a system based on sharia ... inspired by the Middle Ages, an undemocratic, totalitarian and despotic system that will not hesitate to cause bloodshed where necessary. And you call that 'having no religion' – that's your problem. But in a law-based, democratic, Kemalist and secular State all people are free to manifest their religion. Behind closed doors, they may practise their religion through chanting, worship or prayer; they may read what they like, the Koran, the Bible or philosophy – that is their choice. So I'm sorry, but your views are demagoguery. Kemalism has no connection with religion. It respects religion; all people are entitled to believe in a religion of their choice.”
M.G.: “Yes. But what I am saying is that a person who has no connection with religion has no religion. Isn't that so? ... I'm not insulting anyone. I am just saying that anyone calling himself a democrat, secularist or Kemalist has no religion ... Democracy in Turkey is despotic, merciless and impious [dinsiz] ... Because two days ago, six or seven of our friends were taken away while on the sect's premises [dergah] ...”
...
M.G.: “This secular democratic system is hypocritical [ikiyüzlü ve münafık] ...; it treats some people in one way and others in another way. In other words, we do not share democratic values. I swear that we are not appropriating democracy for ourselves. I am not taking refuge in its shadow. Don't be a hypocrite.”
H.C.: “But it is thanks to democracy that you can say all that.”
M.G.: “No, not at all. It is not thanks to democracy. We will secure our rights no matter what. What is democracy? It has nothing to do with that.”
H.C.: “I repeat that if democracy did not exist, you would not have been able to say all that.”
M.G.: “Why would I not have said it? I am saying these words while fully aware that they constitute a crime under the laws of tyranny. Why would I stop speaking? Is there any other way than death?”
The participants then entered into a debate on Islam and democracy.
M.G.: “According to Islam, no distinction can be made between the administration of a State and an individual's beliefs. For example, the running of a province by a governor in accordance with the rules of the Koran is equivalent to a prayer. In other words, manifesting your religion does not only mean joining in prayer or observing Ramadan ... Any assistance from one Muslim to another also amounts to a prayer. OK, we can separate the State and religion, but if [a] person has his wedding night after being married by a council official authorised by the Republic of Turkey, the child born of the union will be a piç [bastard].”
H.C.: “Do you mind ...”
M.G.: “That is how Islam sees it. I am not talking about the rules of democracy ...”
B.B.: “... In Turkey people are killed for not observing Ramadan. People are beaten at university. [Mr Gündüz] claims he is innocent, but people like that oppress society because they interfere with the way of life of others. In Turkey people who say they support sharia misuse it for demagogic purposes. As Mr Gündüz said, they want to destroy democracy and set up a regime based on sharia.”
M.G.: “Of course, that will happen, that will happen ...”
12. The programme continued, the participants including Mr T. Ateş, a professor, Mr Y. İşcan, a representative of the Religious Affairs Department, and Mr Mehmet Kırkıncı, a prominent figure from Erzurum.
13. In an indictment preferred on 5 October 1995, the public prosecutor at the Istanbul National Security Court instituted criminal proceedings against the applicant on the ground that he had breached Article 312 §§ 2 and 3 of the Criminal Code by making statements during the television programme that incited the people to hatred and hostility on the basis of a distinction founded on religion.
14. On 1 April 1996 the National Security Court, after ordering an expert opinion, found the applicant guilty as charged and sentenced him to two years' imprisonment and a fine of 600,000 Turkish liras, pursuant to Article 312 §§ 2 and 3 of the Criminal Code.
15. The court held, in particular:
“The defendant, Müslüm Gündüz, took part in his capacity as the leader of the Aczmendis in a television programme, Ceviz Kabuğu, broadcast live on the independent channel HBB. The purpose of the programme was to give a presentation of the community, whose followers had attracted public attention on account of the black robes they wore, the sticks they carried and their manner of chanting. Those taking part included the stylist Neslihan Yargıcı (via a telephone link), the artist Bedri Baykam, the scientist Toktamış Ateş, Mr Yaşar İşcan, an official from the Religious Affairs Department, and a certain Mehmet Kırkıncı, a prominent figure from Erzurum. The programme's introduction, which was chiefly intended to familiarise viewers with the Aczmendi community, focused on the origin of its members' special garments and on their habit of chanting. However, as the programme went on, the debate between Mr Baykam, Mr Ateş and the defendant turned to the concepts of secularism, democracy and Kemalism.
During the debate, in which the participants had the opportunity to discuss the malfunctioning, usefulness and problems of institutions such as secularism and democracy in the context of social harmony, human rights and freedom of expression, the defendant Mr Gündüz made comments and used expressions contrary to that aim in stating (on page 21 of the transcript): 'anyone calling himself a democrat, secularist ... has no religion ... Democracy in Turkey is despotic, merciless and impious [dinsiz] ... This secular ... system is hypocritical [ikiyüzlü ve münafık] ...; it treats some people in one way and others in another way ... I am saying these words while fully aware that they constitute a crime under the laws of tyranny ... Why would I stop speaking? Is there any other way than death? ...' On page 27 [he states]: 'if [a] person has his wedding night after being married by a council official authorised by the Republic of Turkey, the child born of the union will be a piç ...'
[In addition,] Mr Bedri Baykam told Mr Gündüz that the aim of the latter's supporters was to 'destroy democracy and set up a regime based on sharia', and the defendant replied: 'Of course, that will happen, that will happen.' [Furthermore,] the defendant acknowledged before this Court that he had made those comments, and stated that the regime based on sharia would be established not by duress, force or weapons but by convincing and persuading the people.
Lastly, having regard to the fact that, in the passages quoted above and in his statements taken as a whole, the defendant, in the name of Islam, describes concepts such as democracy, secularism and Kemalism as impious [dinsiz], mixes religious and social affairs, and also uses the word 'impious' to describe democracy, the system regarded as the most suited to human nature, adopted by almost all States and supported by the overwhelming majority of the people making up our nation, the Court is satisfied beyond reasonable doubt that the defendant intended openly to incite the people to hatred and hostility on the basis of a distinction founded on religion. Furthermore, seeing that the offence in question was committed by means of mass communication, the defendant should be sentenced in accordance with Article 312 § 2 of the Criminal Code ...”
16. On 15 May 1996 the applicant appealed on points of law to the Court of Cassation. In his notice of appeal, referring to Article 9 of the Convention and Articles 24 (freedom of religion) and 25 (freedom of expression) of the Constitution, he relied on the protection of his right to freedom of religion and freedom of expression.
17. On 25 September 1996 the Court of Cassation upheld the judgment at first instance.
18. The relevant provisions of the Criminal Code read as follows:
“Non-public incitement to commit an offence
...
A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions shall, on conviction, be liable to between one and three years' imprisonment and a fine ... If this incitement endangers public safety, the sentence shall be increased by one-third to one-half.
The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”
“Public incitement to commit an offence
...
Where incitement to commit an offence is done by means of mass communication, of whatever type – tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled ...”
19. The relevant part of section 19(1) of the Execution of Sentences Act (Law no. 647 of 13 July 1965) provides:
“... persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...”
20. The solemnisation of marriage is governed by Articles 134 to 144 of the Civil Code. Article 134 provides that marriages are solemnised by a registrar, namely the mayor or an official delegated by the mayor in municipalities and muhtars in villages. Article 143 provides that a marriage contracted before a registrar is valid without a religious ceremony having to be conducted.
21. Provisions relating to the prohibition of hate speech and all forms of intolerance and discrimination on grounds such as race, religion and belief are to be found in a number of international instruments, for example: the 1945 United Nations Charter (paragraph 2 of the Preamble, Article 1 § 3, Article 13 § 1 (b), Articles 55 (c) and 76 (c)), the 1948 Universal Declaration of Human Rights (Articles 1, 2 and 7), the 1966 International Covenant on Civil and Political Rights (Article 2 § 1, Article 20 § 2 and Article 26), the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (Articles 4 and 5) and the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Furthermore, the Vienna Declaration, adopted on 9 October 1993, expressed alarm at the present resurgence of racism, xenophobia and anti-Semitism and the development of a climate of intolerance. Among such instruments, Resolution no. 52/122 on the elimination of all forms of religious intolerance, adopted by the United Nations General Assembly on 12 December 1997, deals more specifically with the issue of religious intolerance.
Instruments dealing more directly with the issue of “hate speech” are: Recommendation No. R (97) 20 on “hate speech”, adopted on 30 October 1997 by the Committee of Ministers of the Council of Europe, and General Policy Recommendation no. 7 of the European Commission against Racism and Intolerance on national legislation to combat racism and racial discrimination.
22. On 30 October 1997 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (97) 20 on “hate speech” and the appendix thereto. The recommendation originated in the Council of Europe's desire to take action against racism and intolerance and, in particular, against all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance. The Committee of Ministers recommended that the member States' governments be guided by certain principles in their action to combat hate speech.
The appendix to the recommendation states that the term “hate speech” is to be “understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance...”.
The recommendation lays down guidelines designed to underpin governments' efforts to combat all hate speech, for example the setting up of an effective legal framework consisting of appropriate civil-, criminal- and administrative-law provisions for tackling the phenomenon. It proposes, among other measures, that community-service orders be added to the range of possible penal sanctions and that the possibilities under the civil law be enhanced, for example by awarding compensation to victims of hate speech, affording them the right of reply or ordering retraction. Governments should ensure that within this legal framework any interference by the public authorities with freedom of expression is narrowly circumscribed on the basis of objective criteria and subject to independent judicial control.
23. On 13 December 2002 the Council of Europe's European Commission against Racism and Intolerance (ECRI) adopted a recommendation on key components which should feature in the national legislation of member States of the Council of Europe in order for racism and racial discrimination to be combated effectively.
24. The relevant parts of the recommendation read as follows:
“I. Definitions
1. For the purposes of this Recommendation, the following definitions shall apply:
(a) 'racism' shall mean the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons.
(b) 'direct racial discrimination' shall mean any differential treatment based on a ground such as race, colour, language, religion, nationality or national or ethnic origin, which has no objective and reasonable justification. Differential treatment has no objective and reasonable justification if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
(c) 'indirect racial discrimination' shall mean cases where an apparently neutral factor such as a provision, criterion or practice cannot be as easily complied with by, or disadvantages, persons belonging to a group designated by a ground such as race, colour, language, religion, nationality or national or ethnic origin, unless this factor has an objective and reasonable justification. This latter would be the case if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
...
18. The law should penalise the following acts when committed intentionally:
(a) public incitement to violence, hatred or discrimination,
(b) public insults and defamation or
(c) threats
against a person or a grouping of persons on the grounds of their race, colour, language, religion, nationality, or national or ethnic origin;
...
23. The law should provide for effective, proportionate and dissuasive sanctions for the offences set out in paragraphs 18, 19, 20 and 21. The law should also provide for ancillary or alternative sanctions.”
VIOLATED_ARTICLES: 10