ITEMID: 001-87363
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF YUMAK AND SADAK v. TURKEY
IMPORTANCE: 1
CONCLUSION: No violation of P1-3
JUDGES: Anatoly Kovler;Antonella Mularoni;Corneliu Bîrsan;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Mindia Ugrekhelidze;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Vladimiro Zagrebelsky;Volodymyr Butkevych
TEXT: 11. The applicants were born in 1962 and 1959 respectively and live in Şırnak. They stood for election in the parliamentary elections of 3 November 2002 as candidates of the People’s Democratic Party (DEHAP) in the province of Şırnak, but neither of them was elected.
12. Following the 1999 earthquakes, Turkey went through two serious economic crises in November 2000 and February 2001. There then followed a political crisis, due, firstly, to the state of health of the then Prime Minister and, secondly, to the numerous internal divisions within the governing coalition, a grouping of three political parties.
13. It was in that context that on 31 July 2002 the Grand National Assembly of Turkey (“the National Assembly”) decided to bring forward the date of the next parliamentary elections to 3 November 2002.
14. In early September three left-wing political parties, the People’s Democracy Party (HADEP), the Labour Party (EMEP) and the Democratic Socialist Party (SDP), decided to form a “Labour, Peace and Democracy Block” and to form a new political party, DEHAP. The applicants began their electoral campaign as the new party’s leading candidates in the province of Şırnak.
15. Such pre-electoral alliances had already been formed in 1991: the Nationalist Labour Party (MÇP – the successor to and predecessor of the MHP) and the Reformist Democracy Party (IDP) had secured seats for their candidates by joining the list presented by the Welfare Party (RP); and the People’s Labour Party (HEP – the predecessor of DEHAP) had won eighteen seats in Parliament by placing candidates on the list of the People’s Social Democrat Party (SHP). In that way some parties not likely to obtain 10% of the national vote sometimes manage to obtain parliamentary representation: they join the list of a larger party and then, once elected, leave it and go their own way, either with independent MPs or under the banner of another party.
16. The results of the elections of 3 November 2002 in the province of Şırnak gave the DEHAP list 47,449 of the 103,111 votes cast, a score of about 45.95%. However, as the party had not succeeded in passing the national threshold of 10%, the applicants were not elected. The three seats allocated to Şırnak province were shared as follows: two seats for the AKP (Adalet ve Kalkınma – the Justice and Development Party, a party of the conservative right), which had polled 14.05% (14,460 votes), and one seat for Mr Tatar, an independent candidate who had polled 9.69% (9,914 votes).
17. Of the eighteen parties which had taken part in the elections, only the AKP and the CHP (Cumhuriyet Halk Partisi – the People’s Republican Party, a left-wing party) succeeded in passing the 10% threshold. With 34.26% of the votes cast, the AKP won 363 seats, 66% of those in the National Assembly. The CHP, which polled 19.4%, obtained 178 seats, or 33% of the total. Nine independent candidates were also elected.
18. However, not only DEHAP, which polled 6.22%, but many other political parties were unable to obtain seats in Parliament. These included the True Path Party (DYP, centre-right), the National Action Party (MHP, nationalist), the Young Party (GP, centrist) and the Motherland Party (ANAP, centre-right), which polled 9.54%, 8.36%, 7.25% and 5.13% of the votes cast respectively.
19. The results of these elections were generally interpreted as a huge political upheaval. Not only did the proportion of the electorate not represented in Parliament reach a record level in Turkey (approximately 45%) but in addition the abstention rate (22% of registered voters) exceeded 20% for the first time since 1980. As a result, the National Assembly which emerged from the elections was the least representative since 1946, the year in which a multiparty system was first introduced. Moreover, for the first time since 1954, only two parties were represented in Parliament.
20. To explain the National Assembly’s unrepresentativeness, some commentators have referred to the cumulative effect of a number of factors over and above the existence of a high national threshold. For example, because of the protest-vote phenomenon linked to the economic and political crisis, the five parties which had obtained seats in the 1999 parliamentary elections – including the three which had formed the governing coalition between 1999 and 2002 – were unable to reach the 10% threshold in 2002 and were accordingly deprived of representation in Parliament. Similarly, electoral fragmentation had an effect on the results in that numerous attempts to form pre-electoral coalitions had come to nothing.
21. After these elections the AKP, which had an absolute majority in Parliament, formed a government.
22. In early May 2007 the Turkish Parliament decided to hold early parliamentary elections, choosing 22 July 2007 as the date. The decision followed a political crisis resulting from Parliament’s inability to elect a new President of the Republic to follow on from Ahmet Necdet Sezer before the expiry of his single seven-year term of office, on 16 May 2007. In the normal course of events, these elections should have been held on 4 November 2007.
23. Fourteen political parties took part in the elections, which were marked by two characteristics. Firstly, a strong mobilisation of the electorate was observed following the presidential crisis, since the participation rate rose to 84%. Secondly, political parties used two pre-electoral strategies to circumvent the national 10% threshold. The Party of the Democratic Left (DSP) took part in the poll under the banner of the CHP, a rival party, and by that means managed to win thirteen seats. The Party for a Democratic Society (DTP, pro-Kurdish, left-leaning) presented its candidates as independents using the slogan “A thousand hopes”; it also supported certain left-wing Turkish candidates. This movement was backed by other small left-wing groups such as the EMEP, the SDP and the ÖDP (the Liberty and Solidarity Party, socialist). More than sixty independent candidates stood for election in about forty provincial constituencies.
24. In the elections the AKP, the CHP and the MHP managed to get over the 10% threshold. With 46.58% of the votes cast, the AKP won 341 seats, 62% of the total. The CHP, with 20.88% of the votes, won 112 seats, 20.36% of the total; however, the thirteen MPs mentioned in paragraph 23 above subsequently resigned from the CHP and went back to the DSP, their original party. The MHP, which polled 14.27% of the votes, won seventyone seats, or 12.9% of the total.
25. The strong showing by independent candidates was one of the main features of the elections of 22 July 2007. There were none in the National Assembly in 1980 but 1999 saw them return, when there were three. In 2002 nine independent MPs were elected from a national total of 260 independent candidates. In the elections of 22 July 2007, twenty-seven independent MPs were elected. In particular, more than twenty “thousand hopes” candidates were elected, after obtaining approximately 2.23% of the votes cast, and joined the DTP after the elections. The DTP, which had twenty MPs, the minimum number to be able to form a parliamentary group, was thus able to do so. The independents also included a socialist MP (the former president of the ÖDP), a nationalist MP (the former president of the Great Union Party – BBP, nationalist) and a centrist MP (the former president of ANAP).
26. A government was formed by the AKP, which again secured an absolute majority in Parliament.
27. Article 67 of the Constitution, as amended on 23 July 1995, provides:
“Citizens shall have the right to vote, to stand for election, to engage in political activities independently or as members of a political party and to take part in referenda in accordance with the rules laid down by law.
Elections and referenda shall be conducted under the administration and supervision of the judiciary and in accordance with the principles of free, equal, secret and universal suffrage, in a single round of voting, the votes cast being counted and recorded in public. Nevertheless, the law shall make suitable provision for Turkish citizens resident abroad to be able to exercise their right to vote.
Every Turkish citizen of at least eighteen years of age shall have the right to vote and to take part in referenda.
Exercise of these rights shall be regulated by law.
Serving members of the armed forces, officer cadets and persons serving prison sentences, other than those convicted of an unintentional offence, shall be deprived of the right to vote.
The National Electoral Commission shall determine the measures to be taken to guarantee the security of the operations to count and record the votes in prisons and remand centres, and those operations shall be conducted in the presence of the competent judge, who shall take charge of and supervise them.
Electoral laws must reconcile fair representation with governmental stability.
Amendments to electoral laws shall not be applicable to elections taking place during the year following their entry into force.”
28. Article 80 of the Constitution provides:
“Members of the Grand National Assembly of Turkey shall represent the whole nation and not the regions or persons which have elected them.”
29. Under the terms of Article 95 of the Constitution and section 22 of Law no. 2820 on political parties, a political party which has at least twenty MPs may form a parliamentary group.
30. Law no. 2839 on the election of members of the National Assembly, published in the Official Gazette on 13 June 1983, lays down the rules of the system for parliamentary elections.
31. Turkey’s Grand National Assembly is a single-chamber parliament which currently has 550 members elected to serve for five years. The elections are held in the constituencies formed by the eighty-one provinces in a single round of voting. They take place throughout the national territory, on the same day; suffrage is free, equal, universal and secret. Counting the votes and recording the results is done in public. Each province is represented in Parliament by at least one MP. The other seats are allocated in proportion with the local population. Provinces which have between one and eighteen MPs form a single constituency; those with between nineteen and thirty-five MPs are divided into two constituencies; while Istanbul, which has more than thirty-five seats, is divided into three constituencies.
32. Section 16 of Law no. 2839 provides:
“... [P]olitical parties may not present joint lists ...”
33. Section 33 of Law no. 2839 (as amended on 23 May 1987) provides:
“In a general election parties may not win seats unless they obtain, nationally, more than 10% of the votes validly cast ... An independent candidate standing for election on the list of a political party may be elected only if the list of the party concerned obtains sufficient votes to take it over the 10% national threshold ...”
34. In allocating seats the D’Hondt system of proportional representation is used. That method – under which the votes cast for each list are first divided by a series of whole numbers (1, 2, 3, 4, 5, etc.) and seats then allocated to the lists which have the highest quotients – tends to favour the majority party.
35. Sections 21(2) and 41(1) of Law no. 2839 read as follows:
“Persons wishing to stand as independent candidates shall deposit with the competent Treasury authorities, as a guarantee, a sum equal to the gross monthly salary of a civil servant of the highest rank, and shall place a receipt for payment of that sum in the file presenting their candidature in the parliamentary election.”
“... if, in a parliamentary election, an independent candidate has not obtained sufficient votes to win a seat, the sum deposited as a guarantee shall be forfeited to the Treasury.”
36. Section 36 of Law no. 2820 on political parties (published in the Official Gazette of 24 April 1983) provides:
“In order to be able to take part in an election, a political party must have a seat in at least half the provinces and have held its general meeting at least six months before polling day, or must have a group within the Grand National Assembly.”
37. Section 81 of Law no. 2820 provides:
“Political parties are not entitled to assert that there exist within the territory of the Republic of Turkey minorities based on a race, religion, sect, culture or language.”
38. Under the relevant legislation the name of independent candidates is not printed on the voting slips provided near the Turkish borders. That means that Turkish electors resident abroad may vote for only a political party when using the ballot boxes placed at border crossing-points or large airports. Similarly, whereas political parties have time allocated on television and radio for electioneering broadcasts, independent candidates do not.
39. The Constitutional Court’s case-law on the compatibility of electoral thresholds with the principle of a democratic State has been contradictory.
40. At first, in a judgment delivered on 6 May 1968 (E. 1968/15, K. 1968/13), the Constitutional Court held to be contrary to the principle of a democratic State the “ordinary threshold” introduced by Parliament in order to correct the effects of the proportional representation system. This is a threshold which varies in accordance with the number of seats to be filled in each parliamentary constituency. The threshold applied in a constituency is calculated by dividing the number of votes cast by the number of seats to be filled, and seats are awarded only to candidates who pass it. The Constitutional Court held in particular that such a threshold, which could enable the representatives of a minority of electors to form a government, was likely to hinder the representation of all currents of thought.
41. Later, after the adoption of the 1982 Constitution, the Constitutional Court gave its views on the question of electoral systems in a judgment delivered on 1 March 1984 (E. 1984/1, 1984/2), ruling as follows:
“The first paragraph of Article 67 of the Constitution provides that citizens are entitled to vote and stand for election in accordance with rules laid down by law. However, it does not grant an unlimited margin of appreciation to the legislature. By virtue of Article 67, elections are conducted under the administration and scrutiny of the judicial power and according to the principles of free, equal, secret and universal suffrage in a single ballot, the votes being counted and recorded in public. Provided those rules are complied with, the legislature may therefore adopt whatever electoral system it deems most appropriate. If the constituent assembly had had a particular system in mind, it would have adopted a binding rule. As it did not do so, the legislature is free to adopt the system it considers best adapted to the country’s political and social conditions ...
Provided that it does not enact measures tending to restrict the free expression of the people, or subject political life to the hegemony of a single party, or destroy the multiparty system, Parliament can put in place one of the existing electoral systems.”
42. In a judgment of 18 November 1995 (E. 1995/54, K. 1995/59), the Constitutional Court had the opportunity to rule on the constitutionality of section 34/A of Law no. 2839. That section, which referred to section 33 of the same Law, also imposed the electoral threshold of 10% for the allocation of the seats for Assembly members elected in the “national constituency”. The Constitutional Court declared the provisions establishing the national constituency null and void, but held that the 10% national threshold could be regarded as compatible with Article 67 of the Constitution.
The relevant passages of the judgment read as follows:
“... [T]he Constitution defines the Turkish State as a Republic ... The constitutional structure of the State, which is based on national sovereignty, is a product of the nation’s will, mediated through free elections. That choice, emphasised in the various Articles of the Constitution, is set forth clearly and precisely in Article 67, entitled ‘The right to vote, to be elected and to engage in political activities’. Paragraph 6 of Article 67, as amended, provides that electoral laws must be framed in such a way as to strike a balance between the principles of ‘fair representation’ and ‘governmental stability’. The aim is to ensure that the electors’ will is reflected as far as possible [in] the legislature. ... [In order to] choose the system the methods of which are most conducive to the expression of the collective will and the taking of collective decisions in the legislature, ... enacting the appropriate legislation in the light of the country’s specific circumstances and the requirements of the Constitution, it is necessary to opt for [the system] which is most compatible with the Constitution or to reject any system incompatible with it.
The impact of a representative democracy is visible in various fields. The effect of unfair systems adopted with the intention of ensuring stability is to hamper social developments. ... Where representation is concerned, the importance attached to fairness is the main condition for governmental stability. Fairness ensures stability. However, the idea of stability, in the absence of fairness, creates instability. The principle of ‘fair representation’ with which the Constitution requires [compliance] consists in free, equal, secret and universal [suffrage], with one round of voting and public access to the counting of votes and the recording of results, and produces a number of representatives proportional to the number of votes obtained. The principle of ‘governmental stability’ is perceived as a reference to methods designed to reflect votes [within] the legislature so as to guarantee the strength of the executive power. The ‘governmental stability’ which it is sought to ensure through the threshold (described as a ‘hurdle’), just like ‘fair representation’ ..., is protected by the Constitution. In elections ... importance must be attached to combining these two principles, which seem antinomic in certain situations, in such a way [as to ensure] that they counterbalance and complement each other ...
In order to achieve the goal of ‘governmental stability’, set forth in the Constitution, a national [threshold] has been introduced ...
Clearly, the [threshold] of 10% of the votes cast nationally laid down in section 33 of Law no. 2839 ... came into force with the approval of the legislature. Electoral systems must be compatible with constitutional principles ..., and it is inevitable that some of these systems should contain strict rules. Thresholds which result from the nature of the systems and [are expressed] in percentages, and [which] at national level restrict the right to vote and to be elected, are applicable [and] acceptable ... provided that they do not exceed normal limits ... The [threshold] of 10% is compatible with the principles of governmental stability and fair representation ...”
Three judges of the Constitutional Court out of eleven disagreed with the arguments of the majority, considering that the 10% national threshold was incompatible with Article 67 of the Constitution.
43. In the same judgment, however, the Constitutional Court declared null and void an electoral threshold of 25% for the allocation of seats within provinces (provincial threshold). Holding that such a threshold was inconsistent with the principle of fair representation, it observed:
“Although a national threshold is imposed in parliamentary elections in accordance with the principle of ‘governmental stability’, imposing in addition a threshold for each electoral constituency is incompatible with the principle of ‘fair representation’.”
44. The elections of 1950, 1954 and 1957 – in which the majority representation system was used – were unable to ensure an institutional balance between the majority in Parliament and the opposition. This imbalance was one of the main reasons for the 1960 coup d’état. Following the intervention of the armed forces, Parliament adopted proportional representation, using the D’Hondt method, to strengthen pluralism and the political system. As a result, the elections in 1965 and 1969 produced stable majorities in the National Assembly while enabling small parties to be represented. However, in the elections of 1973 and 1977 the main political movements were unable to establish stable governments, although they had wide electoral support. That period of government instability was marked by the formation of one coalition after another, each made fragile by the disproportionate influence of the small parties on government policy.
45. Following the military regime between 1980 and 1983, Law no. 2839 on the election of members of the National Assembly, enacted on 13 June 1983, re-established proportional representation, with two electoral thresholds. To the 10% national threshold was added a provincial threshold (the number of electors divided by the number of seats to be filled in each constituency); in 1995 the Constitutional Court declared the provincial threshold null and void. In the 1983 parliamentary elections the Motherland Party (ANAP) obtained an absolute majority in Parliament.
46. The parliamentary elections of 29 November 1987 likewise enabled the ANAP, with 36.31% of the vote, to form a stable parliamentary majority. Two other parties also won seats. In the elections of 20 October 1991, five parties gained seats in Parliament. This result was due in particular to the fact that three small political parties (MÇP, IDP and HEP) had taken part in the elections under the banner of other political parties with the aim of circumventing section 16 of Law no. 2839, which makes it illegal to form joint lists before elections. The government was based on a coalition of two parties. In those elections the eighteen candidates of the HEP (People’s Labour Party, pro-Kurdish) were elected to Parliament on the list of the (social-democratic) SHP; they later resigned from the SHP to join the ranks of their own party, the HEP.
47. In the general election of 24 December 1995, five parties gained seats in Parliament. However, as none of them had a parliamentary majority, a coalition was formed.
48. The 1999 parliamentary elections again resulted in no party having a parliamentary majority. Five political parties won seats in the National Assembly. A coalition of three parties formed a government.
49. Before the election on 3 November 2002, the year which had seen the highest proportion of votes going to parties not ultimately represented in Parliament was 1987, with 19.4% of the votes cast. In 1991, owing to the participation of two pre-electoral coalitions, one between the RP, the MÇP and the IDP and the other between the SHP and the HEP, that proportion was brought down to 0.5%. After the elections on 22 July 2007 it was 13.1%.
50. As indicated above (see paragraphs 12-21), the elections of 3 November 2002 enabled the AKP to form a stable government which lasted until 22 July 2007, notwithstanding the fact that 45.3% of the votes – approximately 14,500,000 votes – were not reflected in the composition of Parliament.
51. The Council of Europe has not laid down binding rules on the question of electoral thresholds.
52. The relevant part of Resolution 1547 (2007) on the state of human rights and democracy in Europe, adopted by the Assembly on 18 April 2007, reads as follows:
“58. In well-established democracies, there should be no thresholds higher than 3% during the parliamentary elections. It should thus be possible to express a maximum number of opinions. Excluding numerous groups of people from the right to be represented is detrimental to a democratic system. In well-established democracies, a balance has to be found between fair representation of views in the community and effectiveness in Parliament and government.”
53. In its Recommendation 1791 (2007) on the state of human rights and democracy in Europe, adopted on 18 April 2007, the Assembly recommended that the Committee of Ministers take measures to remedy the deficiencies noted in the above-mentioned Resolution. With regard to electoral thresholds, it recommended that the Committee of Ministers urge member States to:
“17.10 consider decreasing thresholds over 3% for parliamentary elections and ... consider the balance between fair representation and effectiveness in Parliament and government.”
54. The Code of good practice in electoral matters, adopted by the Venice Commission in 2002, emphatically states: “The five principles underlying Europe’s electoral heritage are universal, equal, free, secret and direct suffrage.” “Within the respect of” those principles, “any electoral system may be chosen”.
55. The relevant part of the Venice Commission’s Report on electoral law and electoral administration in Europe, of 12 June 2006, reads as follows:
“[T]he effects of one particular electoral system can be different from country to country, [and] we must appreciate that electoral systems can pursue different, sometimes even antagonistic, political aims. One electoral system might concentrate more on a fair representation of the parties in Parliament, while another one might aim to avoid a fragmentation of the party system and encourage the formation of a governing majority of one party in Parliament. One electoral system encourages a close relationship between voters and ‘their’ constituency representatives, while another makes it easy for the parties to specifically introduce women, minorities or specialists into Parliament by way of closed party lists. In some countries, complicated electoral systems are accepted in order to combine several political aims. In other countries, it is seen as a priority that the electoral system be not too difficult for the electorate and the administration to understand and operate. The appropriateness of an electoral system is determined according to whether it will do justice, bearing in mind the local conditions and problems. In particular, transparency of the elaboration of the list should be ensured. Thus, the electoral system and proposals to reform should be assessed in each individual case.”
56. In its Report on electoral rules and affirmative action for national minorities’ participation in decision-making process in European countries, of 15 March 2005, the Venice Commission, having analysed the practices of certain member States, recommended five specific measures to promote the representation of minorities. Two of the measures concerned have a bearing on the question of electoral thresholds:
“...
d. Electoral thresholds should not affect the chances of national minorities to be represented.
e. Electoral districts (their number, the size and form, the magnitude) may be designed with the purpose to enhance the minorities’ participation in the decision-making processes.”
57. The Government referred to the report of the ad hoc Committee for the Observation of Parliamentary Elections in Turkey (3 November 2002), produced on 20 December 2002. The relevant parts of the report read as follows:
“As widely reported by the media, two parties only out of eighteen found their way into the new TBMM [the Grand National Assembly of Turkey]: the AKP (Justice and Development [Party]) and CHP (Republican People’s Party), leaving out all other parties, which had been represented so far in the Parliament because they could not meet the 10% threshold. The party in government until the elections received only 1% of the votes. Economic and corruption problems were determining in the elections.
A clear and absolute majority has emerged with 362 seats for the AKP, 179 seats for the opposition and 9 seats for independent members. (These independent members are elected in small towns where they have a good reputation.) It should be recalled that AKP had 59 seats in the previous Parliament, and the CHP 3 (1999 elections).
This situation might create probably greater stability in the country by avoiding complicated and unstable coalitions. On Monday 4 November 2002 the Turkish Stock Exchange went up by 6.1%.
However, it also means that approximately 44% of the voters have no representation in the Parliament.
The results must thus be considered as a clear protest vote against the Establishment as a whole, since none of the three parties in the old governing coalition got enough votes for a single seat!”
58. Paragraphs 6 and 23 of Resolution 1380 (2004) on the honouring of obligations and commitments by Turkey, adopted by the Parliamentary Assembly of the Council of Europe on 22 June 2004, are worded as follows:
“6. With regard to pluralist democracy, the Assembly recognises that Turkey is a functioning democracy with a multiparty system, free elections and separation of powers. The frequency with which political parties are dissolved is nevertheless a real source of concern and the Assembly hopes that in future the constitutional changes of October 2001 and those introduced by the March 2002 legislation on political parties will limit the use of such an extreme measure as dissolution. The Assembly also considers that requiring parties to win at least 10% of the votes cast nationally before they can be represented in Parliament is excessive and that the voting arrangements for Turkish citizens living abroad should be changed.
...
23. The Assembly therefore invites Turkey, as part of its authorities’ current reform process, to:
...
ii. amend the electoral code to lower the 10% threshold and enable Turkish citizens living abroad to vote without having to present themselves at the frontier;
...”
59. The relevant parts of the Report on observation of the parliamentary elections in Turkey, produced by an ad hoc Committee of the Parliamentary Assembly of the Council of Europe, read as follows:
“XII. Conclusions and recommendations
55. The parliamentary elections in Turkey, on 22 July 2007, were generally in compliance with Turkey’s Council of Europe commitments and European standards for free elections.
56. Overwhelmingly, the voting was well organised and conducted in an orderly and professional fashion, which testifies to a long-standing tradition of democratic elections in Turkey.
57. The high voter turnout shows that confidence in the democratic process exists in Turkey.
58. Electoral administrators at all levels dispatched their duties effectively and in good faith.
59. However, the Rapporteur believes that Turkey could do more in terms of organising even better elections that would guarantee a genuinely representative parliament. The 10% threshold requirement could be lowered, in accordance with Assembly Resolutions 1380 (2004) and 1547 (2007). The fact that the new Parliament elected on 22 July 2007 is far more representative than the outgoing Parliament, representing about 90% of the opinions of the electorate, is due to the fact that three instead of two parties are represented and to the ploy of opposition parties to launch party-sponsored independent candidates and not to any steps taken by the Turkish authorities themselves.
60. The Turkish authorities may wish to consider seizing the Venice Commission on this issue, as well as on simplifying electoral legislation.”
60. Moreover, in reply to a question from a parliamentarian following his address to the Parliamentary Assembly on 3 October 2007, the President of the Republic of Turkey said that the 10% threshold met a real need, but might in due course be dispensed with (see the verbatim record of the sitting on 3 October 2007). The relevant parts of his reply read as follows (Registry translation of summary in French in the verbatim record of the sitting on 3 October 2007):
“Mr Gül explained that the 10% threshold had been introduced to remedy the instability of previous years, in which there had been a large number of coalition governments in close succession. The threshold did not prevent independent candidates from standing. In the latest parliamentary elections, in July 2007, voter turnout had been 85%, which showed how representative Parliament was. Now that political stability had been restored the 10% threshold could be reconsidered.”
61. Although there is no uniform classification of types of ballot and electoral systems, it is usual to distinguish three main types: majority vote systems, proportional systems and mixed systems. In majority vote systems, the winner is the candidate or list of candidates obtaining the majority of the votes in the decisive round of voting. This type of ballot makes it possible to vote in governments with clear parliamentary majorities, but at the same time it militates against the representation of minority political parties. Thus, for example, in the United Kingdom the use over many decades of a single round of voting in a single-member majority vote system (“first past the post”), combined with the existence of two dominant political parties, has had the effect of giving few seats to other parties in relation to the number of votes that they obtain. There are other similar cases, in France for instance, where there is a majority vote system spread over two rounds of voting. At the opposite extreme, the aim of the proportional representation system is to ensure that the votes cast are reflected in a proportional number of seats. Proportional representation is generally considered to be the fairest system because it tends to reflect more closely the various political forces. However, the disadvantage of proportional representation is that it tends to lead to fragmentation among those seeking electoral support and thus makes it more difficult to establish stable parliamentary majorities.
62. Currently, proportional systems are the most widely used in Europe. By way of example, Bulgaria, the Czech Republic, Denmark, Estonia, Ireland, Luxembourg, Malta, Moldova, Norway, Poland, Portugal, Romania, Russia, Spain, Sweden and Turkey have opted for one or other variant of proportional representation. There are also mixed systems containing various combinations of the two types of ballot (in Germany, Italy and Lithuania, for example).
63. In some proportional systems statutory thresholds are used to correct the negative effects of proportional voting, and in particular to ensure greater parliamentary stability. These thresholds, generally expressed as a percentage of the votes cast, are “limits, fixed or variable, defined in terms of the electoral result, which determine the share of a list or candidate in the distribution of seats”. However, the role played by thresholds varies in accordance with the level at which they are set and the party system in each country. A low threshold excludes only very small groupings, which makes it more difficult to form stable majorities, whereas in cases where the party system is highly fragmented a high threshold deprives many voters of representation.
64. Analysis of the electoral thresholds adopted in the member States which have proportional representation shows that only four States have opted for high thresholds: Turkey has the highest, at 10%; Liechtenstein has an 8% threshold; and the Russian Federation and Georgia a 7% one. A third of the States impose a 5% threshold and thirteen of them have chosen a lower figure. The other member States (seven in number) do not use thresholds. Moreover, in several systems the thresholds are applied only to a restricted number of seats (in Norway and Iceland, for example). Thresholds for parties and thresholds for coalitions may be set at different levels. In the Czech Republic, for example, the threshold for one party is 5%, whereas in the case of a coalition it is raised by 5% for each of the constituent parties. In Poland, the threshold for coalitions is 8% whatever the number of constituent parties. There are similar variations among the thresholds for independent candidates: in Moldova, for example, the relevant threshold is 3%.


ITEMID: 001-103206
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF AKHUNDOV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1951 and lives in Baku.
6. The applicant worked as an inspector at the Baku Audit Department (Bakı şəhəri üzrə Nəzarət-Təftiş İdarəsi - “the Department”) of the Ministry of Finance (“the Ministry”). On 1 May 1997 the applicant was dismissed from his job by an order of the Ministry for unsatisfactory work performance.
7. The applicant lodged an action against the Ministry, claiming unlawful dismissal. By a judgment of 23 February 1998 the Sabayil District Court allowed the applicant's claim, ordering his reinstatement in his previous job. Moreover, the court ordered the Ministry to pay the applicant his unpaid salary in an unspecified amount for the period from 1 May 1997 (date of dismissal) to 23 February 1998 (date of delivery of the judgment). No appeals were lodged against the judgment of 23 February 1998 within the time-limits specified by law and, pursuant to the domestic law in force at the material time, it entered into legal force ten days after its delivery.
8. Despite the applicant's numerous demands and the fact that the writ of execution had been sent several times to the Ministry for execution, the competent authorities did not take any measures to enforce the judgment.
9. By a letter of 18 January 2000 the Ministry informed the applicant that, upon the reorganisation of the Ministry, the Department had been abolished by an internal order of 28 January 1999 of the Ministry and that therefore it was not possible to reinstate him in his previous job.
10. On 14 November 2002 the applicant lodged an action against the Ministry, seeking compensation for non-execution of the judgment of 23 February 1998. On 17 January 2003 the Nasimi District Court delivered a judgment in the applicant's favour. The court noted that the judgment of 23 February 1998 was still in force and awarded the applicant 4,704,000 Old Azerbaijani manats (AZM, approximately 920 euros (EUR)) as his unpaid salary calculated from 23 February 1998 to 17 January 2003 (date of delivery of this judgment). This amount was calculated on the basis of the applicant's previous average salary.
11. On 17 February 2003 the applicant appealed against the judgment of 17 January 2003, claiming a higher amount of compensation. In the meantime, it appears from the case file that the Ministry requested the Court of Appeal to suspend the proceedings due to the Ministry's cassation appeal lodged with the Supreme Court against the judgment of 23 February 1998. After the Ministry's above-mentioned request, the proceedings before the Court of Appeal were formally suspended.
12. By a judgment of 10 May 2006 the Court of Appeal upheld the firstinstance court's judgment, noting that the amount of compensation had been calculated correctly. On 15 March 2007 the Supreme Court upheld the Court of Appeal's judgment.
13. On 28 January 2009 the judgment of 17 January 2003 was executed and the applicant received the amount awarded by the judgment (approximately EUR 920).
14. On 8 April 2009 the Ministry executed the judgment of 23 February 1998: the applicant was reinstated in his previous post and an amount of AZN 9,155.12 (approximately EUR 9,063) was paid to him as compensation for lost earnings, in addition to compensation awarded by the judgment of 17 January 2003.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-68368
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SHARENOK v. UKRAINE
IMPORTANCE: 4
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
TEXT: 4. The applicant was a Ukrainian citizen born in 1948 who died on 16 September 2004. By letter of 5 November 2004, the applicant's widow and children informed the Court that they wished to pursue the application.
5. In 1997 the applicant instituted proceedings in the Novozavodsky District Court of Chernigiv seeking the recovery of salary arrears against his former employer - the State-owned “Atomspetsbud” company which performed construction work at Chernobyl in the zone which had been compulsory evacuated. By a decision of the court of 7 October 1998, the applicant was awarded 4,964 Ukrainian hryvnas (UAH) in salary arrears. On 25 January and 18 August 2000 the applicant received UAH 147.28 and UAH 77.90 respectively. However, the judgment remains to a large extent unenforced, the outstanding debt being UAH 4,738.82 (the equivalent of 677 euros [“EUR”]).
6. By letter of 4 January 2003, the Ukrainian Government Agent informed the applicant's lawyer about the large number of execution writs pending against the debtor company, in the total amount of UAH 3,849,312. Enforcement of the judgments by the attachment of property, however, required a special authorisation from the Ministry for Emergencies due to the location of the debtor's property in the Chernobyl area, contaminated by radiation. Such authorisation was not granted.
7. By the order of 27 June 2002 of the Ministry of Energy, the debtor company was liquidated and a liquidation commission established.
8. Accordingly, on 17 March 2003 the State Bailiffs' Service terminated the enforcement proceedings in the applicant's case and forwarded the execution writ to the liquidation commission as a creditor's claim. The liquidation proceedings are still pending.
9. A description of the relevant domestic law can be found in Mykhaylenky and Others v. Ukraine (nos. 35091/02 and following, §§ 2433, 30 November 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106454
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF TRETYAKOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1
JUDGES: Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger
TEXT: 5. The applicant was born in 1971 and lives in Kharkiv.
6. On 22 November 2001 B.’s body affected with injuries was found in his apartment. On the same date the Dzerzhinsky District Police of Kharkiv instituted a criminal investigation into the incident.
7. On 23 November 2001 A. reported to the police that he had witnessed the applicant beating B. on the head with a frying pan at a party in B.’s apartment. He further confessed that after B. had fallen to the floor unconscious, he and the applicant had taken valuables and left.
8. On 26 November 2001 the police drafted a bill of indictment charging the applicant with B.’s murder. Unable to establish the applicant’s whereabouts and question him, they subsequently put him on the “wanted” list.
9. On 5 December 2001 the investigation obtained a decision to remand the applicant in custody from the Dzerzhinsky District Court of Kharkiv (hereafter “the District Court”). In its decision, the court referred to the gravity of the charges against the applicant, his recent criminal record and his disappearance after the incident with B.
10. On 8 December 2001 the investigating authorities added to the case file a letter of confession addressed by the applicant to the President of the District Court and dated 26 November 2001. In this letter the applicant explained, in particular, that he had partied with A. and B. in B.’s apartment and a fight had started between A. and B., during which the applicant had escaped.
11. On 4 February 2002 the applicant was arrested. On the same date he signed the arrest record (протокол), stating that he had been detained pursuant to the decision of the District Court of 5 December 2001, on suspicion of murder. According to the applicant, he was not apprised of the content of the decision of 5 December 2001. He presented no documents in evidence that he had lodged any relevant requests or complaints before the commencement of the trial.
12. On 18 February 2002 the applicant was presented with a new bill of indictment drafted on that day, according to which he was charged with murdering B. and theft from his apartment.
13. On 28 February 2002 the case was transferred to the District Court for trial.
14. On 1 March 2002 the Dzerzhinsky District Prosecutors’ Office of Kharkiv modified the indictment, having substituted the murder charge with that of infliction of grievous bodily injuries resulting in death.
15. On 7 March 2002 the District Court held a preparatory hearing and scheduled the case for trial for 17 April 2002. According to the Government, at the preparatory hearing the District Court upheld the decision to keep the applicant in custody, having found no grounds for his release. The copy of the decision taken by the District Court on that date provided by the parties contains no reference to any ruling concerning the applicant’s release or continuing detention.
16. Between March 2002 and February 2003 the District Court scheduled some nine hearings; however, none of them took place. On five occasions the hearings were rescheduled on account of the judge’s inability to hear the case (sickness, vacations or being occupied in other proceedings). On other occasions the hearings were adjourned to accommodate procedural requests made by the parties or on other grounds.
17. On 17 and 18 February 2003 the District Court held the first hearings and adjourned the proceedings until 18 March 2003 in order for the expert who had examined B.’s corpse to be summoned.
18. Between March 2003 and June 2004 the court scheduled some ten hearings. Seven of them were adjourned or rescheduled on various grounds, including failure of the prosecutor or the witnesses to appear; failure of the detention-facility authorities to bring the defendants to the hearings; granting of the parties’ motions for additional time to study the case-file; and ordering further investigative activities and an expert assessment.
19. On 14 June 2004 the District Court remitted the case for additional investigation, referring to various procedural and substantive shortcomings in the pre-trial investigation. The court further ordered, without providing any reasoning, that the applicant remain in custody.
20. On 12 October 2004 the Kharkiv Regional Court of Appeal (hereafter “the Court of Appeal”) annulled this decision and remitted the case back to the trial court. The court further ordered that the applicant remain in custody, without expounding on the reasons for his detention.
21. On 7 February 2005 the District Court allowed the applicant’s request for additional time to familiarise himself with the case-file materials and established a schedule for him to do so. It rejected the applicant’s request to be provided with photocopies of the case-file materials.
22. On 22 March 2005 the applicant requested that the case be transferred to another judicial panel, alleging numerous procedural irregularities in the conduct of the proceedings. In particular, he complained that the present panel had ignored the fact that his detention had been in breach of applicable law. Namely, the decision to place the applicant in custody had been taken in his absence and following his arrest he had not been brought before a judge to present his case, in contravention of the provisions of Article 165-2 of the Code of Criminal Procedure of Ukraine (hereafter “the CCP”). Further, contrary to the requirements of Article 165-1 of the CCP, he had not been provided with a copy of the decision to remand him in custody, and had not been afforded an opportunity to appeal against it. In addition, according to Article 148 of the CCP, the investigative authorities had to either present him with an indictment by 14 February 2002 or release him on that date. However, the bill of indictment in the applicant’s respect had only been drawn up on 18 February 2002. From 14 February 2002 onwards the applicant had therefore been held in custody arbitrarily. The applicant also complained that the District Court had refused to provide him with photocopies of various case-file materials at his request.
23. On 31 March 2005 the District Court rejected the applicant’s request, having found that it had not been based on law. It further ruled, without providing reasoning in response to the applicant’s arguments, that there had been no reasons to release him from custody. On 19 April 2005 the court rejected a further analogous request from the applicant without expounding on his arguments concerning the lawfulness of his detention.
24. On 12 April 2005 the applicant requested the District Court to renew the time-limit for appealing against the decision of 5 December 2001 to remand him in custody, alleging that he had not been apprised of this decision within the time-limit normally allowed for the appeal.
25. On 21 April 2005 the applicant inquired with the District Court about the status of the consideration of his request and on 26 April 2005 re-lodged it anew.
26. By letter of 27 May 2005 G., the Judge presiding over the applicant’s case, notified him that his requests had been received and added to the case file and that they would be taken into account in adjudicating his case.
27. On 18 July 2005 the applicant’s advocate complained to the District Court that the applicant had been detained in violation of Article 165-1 of the CCP and requested his release.
28. On the same day the District Court ruled, without providing any reasoning, that there were no reasons for releasing the applicant.
29. Between November 2004 and July 2005 the District Court held some five hearings in the case and on 25 July 2005 convicted A. and the applicant of infliction of grievous bodily injuries on B. and theft from his apartment and sentenced the applicant to ten years’ imprisonment.
30. On 28 July 2005 T., the applicant’s mother and his defence in the criminal proceedings, complained to the Kharkiv Regional Qualification Commission of Judges about the unlawfulness of the applicant’s detention, the lack of a response to his relevant complaints by the District Court and its refusal to provide her with photocopies of documents from the applicant’s case file in order to submit a case to the Court. On 2 August 2005 she was informed that the Commission was not competent to consider her complaints.
31. On 12 October 2005 the District Court found that the applicant and his representatives had been protracting the consideration of the case on appeal by repeated requests to familiarise themselves with the case-file materials, and gave them five more days to finish.
32. On 16 November 2005 the applicant’s mother complained to the President of the District Court about the refusals to provide her with photocopies of documents to be submitted to the Court. She specified the particular pages of the case-file to be copied (some sixty pages in total) and expressed her willingness to pay for the copies made using the court’s equipment. As an alternative, she requested permission to take the case file off the court premises, if need be, in presence of a court employee, to order copies from a commercial copier.
33. On 2 December 2005 the President of the District Court informed the applicant’s mother that the applicable law did not entitle the parties’ representatives to obtain photocopies of case-file documents.
34. On 23 December 2005 G., the Judge presiding over the applicant’s case, advised him in a letter that he had been granted twenty more days to study the case file, following which the case would be transferred to the Court of Appeal. She noted that, according to the case-file materials, the applicant and his representatives had already had three rounds of familiarising themselves with the case-file.
35. On 9 January 2007 the Kharkiv Regional Court of Appeal quashed the judgment of 25 July 2005 and remitted the case for a fresh consideration, referring primarily to procedural omissions in announcing the modified charges to the defendants.
36. Between 9 February and 11 April 2007 the applicant and A. familiarised themselves with the case-file materials. On 11 April 2007 they signed affidavits specifying that they had familiarised themselves with the case-file in full.
37. On 30 March 2007 the applicant’s mother requested the District Court for permission to use portable equipment to photocopy material from the case-file.
38. On 5 April 2007 the District Court noted in a letter that a similar request had already been granted to her and that T. had already used the copying equipment as she had wished. It further confirmed that she could continue using the copying equipment to copy material from the case file as needed.
39. On 11 April 2007 the District Court rejected the applicant’s request to be released from custody pending trial lodged on 21 February 2007. The court found that this request had been premature, as the case had been at the preparatory stage following its remittal from the Court of Appeal, and that the applicant had not been precluded from re-lodging his request during the trial.
40. On 21 August 2007 the District Court rejected a further request by the applicant to be released, having found that his detention had been in compliance with Article 148 of the CCP. It further noted, referring to the same grounds as mentioned in its decision of 5 December 2001 (the gravity of the charges, the applicant’s prior criminal record and his absconding at the beginning of the proceedings), that there had been no reasons for releasing the applicant.
41. On 7 September 2007 the District Court convicted the applicant and A. of having inflicted grievous bodily injuries on B. and theft from his apartment, sentenced the applicant to five year seven month and three days’ imprisonment and immediately released him from custody, as he had already served the term to which he had been sentenced.
42. The text of the relevant provisions of the Constitution of Ukraine of 1996 (Article 29) and the Code of Criminal Procedure of Ukraine of 1960 (the CCP) can be found in the judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 54 and 57, 28 October 2010).
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
6-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-60758
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF FOLLI CARE v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1914 and lives in Inzago (Milano).
9. The applicant is usufructuary of a flat owned by her husband A.C., which had been let to G.P.
10. In a registered letter of 28 February 1985, the applicant’s husband informed the tenant that he intended to terminate the lease on expiry of the term on 30 April 1986 and asked him to vacate the premises by that date.
11. In a writ served on the tenant on 15 April 1986, the applicant’s husband reiterated his intention to terminate the lease and summoned the tenant to appear before the Milan Magistrate.
12. By a decision of 26 April 1986, which was made enforceable on 14 May 1986, the Milan Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1987.
13. On 20 May 1987, the applicant’s husband served notice on the tenant requiring him to vacate the premises.
14. On 9 June 1987, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 10 July 1987.
15. Between 10 July 1987 and 17 February 1988, the bailiff made four attempts to recover possession.
16. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension, the applicant’s husband was not entitled to police assistance in enforcing the order for possession.
17. On 4 august 1988, the applicant’s husband died and the applicant inherited the usufruct of the flat.
18. Between 30 June 1989 and 10 December 1998, the bailiff made 30 attempts to recover possession.
19. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension, the applicant was not entitled to police assistance in enforcing the order for possession.
20. On 12 May 2000, the applicant recovered possession of her flat.
21. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79579
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MACIEJ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1949 and lives in Radom.
5. On 4 February 1993 the applicant was charged with acting as a procurer of prostitution.
6. On 15 October 1993 the Radom District Prosecutor filed a bill of indictment against the applicant with the Radom District Court.
7. The hearing set for 6 June 1994 was cancelled due to the applicant’s absence. Subsequently several hearings were cancelled. In particular, hearings scheduled for 4 July 1994, 22 September 1994, 3 November 1994 and 2 February 1995 were cancelled due to the absence of one of the coaccused. Seven hearings scheduled between 21 July 1995 and 7 February 1996 were cancelled for various procedural reasons. On 18 July 1996 the court held a hearing.
8. Between 20 February 1997 and 25 February 1999 the court held sixteen hearings at regular intervals of six weeks.
9. On 23 September 1999, 5 October 1999 and 18 October 1999 the court held further hearings.
10. On 25 October 1999 the Radom District Court gave judgment and convicted the applicant as charged. The court also sentenced the applicant to 1 year’s imprisonment stayed for 2 years.
11. On an unknown later date the applicant appealed against this judgment.
12. On 8 December 2000 the Radom Regional Court held a hearing and gave judgment. The court upheld the firstinstance sentence and dismissed the applicant’s appeal.
13. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 200V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-90625
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BRANKO TOMAŠIĆ AND OTHERS v. CROATIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 2 (substantive aspect);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni
TEXT: 4. The applicants were born in 1956, 1963, 1985, 1995 and 2001 respectively and live in Čakovec. The first and second applicants are husband and wife and the third to fifth applicants are their children.
5. During 2004 M.T., the first and second applicants’ daughter and the third to fifth applicants’ sister, entered into a relationship with a certain M.M. They started living together with the applicants in their home. On 1 March 2005 they had a child, V.T. Soon afterwards M.M. had a series of disputes with the members of the household and often expressed verbal threats against M.T., which resulted in him moving out of the house in July 2005. On 4 January 2006 the Čakovec Social Welfare Centre (Centar za socijalnu skrb Čakovec – hereinafter “the Welfare Centre”) filed a report with the Međimurje Police Department (Policijska uprava međimurska) stating, inter alia, that on 2 January 2006 M.M. had come to the Centre and claimed that he had a bomb and would “throw it at his former wife [meaning M.T.] and child”.
6. On 5 January 2006 M.T. lodged a criminal complaint with the Čakovec State Attorney’s Office against M.M. She alleged that on a number of occasions since July 2005 M.M. had come to her parents’ house where she also lived with her daughter and had threatened to kill her and their daughter with a bomb unless she agreed to come back to him. He had also often made telephone calls and sent SMS messages to her by mobile phone repeating the same threats.
7. On 3 February 2006 M.M. was detained following the instigation of the criminal proceedings against him in the Čakovec Municipal Court (Općinski sud u Čakovcu) on 27 January 2006. A psychiatric opinion obtained during the proceedings stated that on 2 January 2006 M.M. had claimed before the employees of the Welfare Centre that he had a bomb and that his threats had been meant seriously. He had repeated the same claim on 19 January 2006 before police officers from the Međimurje Police Department. The relevant parts of the conclusions of the report read as follows:
“1. Defendant M.M. is a person suffering from a profound personality disorder etiologically linked to innate malfunctioning of the brain and the highly unfavourable pedagogical circumstances of his childhood. Dg: mixed personality disorder ...
2. In the context of the said personality disorder the defendant’s reaction to a problematic situation was an inadequate and pathological defence mechanism with inflated ideas and related activities. These inflated ideas do not amount to a mental illness.
3. I have not found elements of either permanent or temporary innate mental illness, diminished intellectual capacity or epilepsy which might be linked to the criminal offences with which the defendant is charged.
4. He is not addicted to alcohol, drugs or other substances ...
5. In view of what has been said under 1, 2 and 3 and in view of all the other information collected so far in connection with the criminal offences, I consider that his ability to wilfully control and understand the meaning and consequences of his act tempore criminis was diminished, but that [he was not] completely unaccountable.
6. There is a strong likelihood that he will repeat the same or similar criminal offences. In order to prevent this, I recommend that the court, apart from the other measures, order compulsory psychiatric treatment with a predominantly psychotherapeutic approach with the aim of developing an ability to resolve difficult situations in life in a more constructive manner.”
8. On 15 March 2006 the Municipal Court found M.M. guilty of threatening M.T. on several occasions during the period between July and 30 December 2005 both in front of her family house and at the parking lot near the city graveyard when M.T. had been alone. He had shouted threats that he would kill her, himself and their child with a bomb; at the Welfare Centre on 2 January 2006 he had said that his threats had been meant seriously, that he actually had a bomb and that he would kill himself and the child with the bomb on the child’s first birthday on 1 March 2006. He was sentenced to five months’ imprisonment and a security measure of compulsory psychiatric treatment was ordered during his imprisonment and afterwards as necessary. In ordering the defendant’s compulsory psychiatric treatment the court relied entirely on the findings of the psychiatric report. The relevant part of the judgment read as follows:
“... throughout the whole period in question the defendant had been telling the victim that he would throw a bomb at himself and their child as well as her [the victim] if she happened to be around. These events came to a head on 30 December. The defendant did not refrain from mentioning a bomb either in front of the Welfare Centre’s employees or a policeman. Furthermore, he said in front of the policemen that he would blow himself and the child up with a bomb on the child’s first birthday. Therefore, there is no doubt that both the victim and the witnesses understood these threats as being meant seriously ... Thus, the victim’s fears for her own as well as her child’s safety were justified ...
...
... all conditions for ordering a security measure [of compulsory psychiatric treatment] have been fulfilled since the defendant committed a crime while his capacity for understanding was diminished and it is likely that he will repeat the same or similar offence. It is necessary to order compulsory psychiatric treatment during his prison term and after his release. The treatment shall take a predominantly psychotherapeutic approach, as recommended by the expert, in order to develop [the defendant’s] ability to address difficult situations in life in a more constructive manner.”
9. On 28 April 2006 the Čakovec County Court (Županijski sud u Čakovcu) reduced the security measure to the duration of M.M.’s prison sentence and upheld the remaining part of the judgment. The relevant part of the judgment reads as follows:
“... there is no doubt that frequent murder threats by ... a bomb should by any objective test have been understood as meant seriously and that [such threats] would cause a real sense of disquiet, fear and anxiety in an average person, in particular in a situation where the victim has known the perpetrator as an aggressive person out of control, as is the case with the victim in the present case.
There is also no doubt that ... the defendant’s threats extended throughout a period of half a year during which the victim feared, owing to continued threats, not only for her own safety but also for the safety and wellbeing of her child which was not even a year old at the time. The victim was thus undoubtedly put in a difficult and unenviable position where she feared daily for her and her daughter’s life, which was confirmed not only in her testimony but also the fact that she sought assistance from the competent authorities [such as] the police, the Social Welfare Centre and the State Attorney.
...
While examining ... the impugned judgment under Article 379 paragraph 1(2) of the Code of Criminal Procedure this appellate court has established that the first-instance court violated the statutory provisions to the detriment of the defendant when it ordered that a security measure of compulsory psychiatric treatment should continue after the defendant’s release [from prison], which is contrary to Article 75 of the Criminal Code according to which compulsory psychiatric treatment may last as long as the reasons for its application exist but no longer than the prison term.
...
... this court does not agree with the defendant’s argument that in his case the purpose of punishment would be achieved by a suspended sentence, especially in view of the fact that the defendant ... did not show any self-criticism as regards his acts or any feelings of remorse for what he had said ...”
10. M.M. served his sentence in Varaždin Prison and was released on 3 July 2006. On 15 August 2006 he shot M.T., her daughter V.T. and himself. Before the shooting he was spotted by M.T.’s neighbour carrying an automatic gun and leaving his bicycle in the adjacent woods. The neighbour immediately called the police. The police arrived at the scene twenty minutes later, just after the tragic event.
11. On 15 August 2006 the police interviewed M.T.’s neighbour I.S. who had seen M.M. approaching M.T.’s house immediately before the critical event. At the request of the police, on 17 August 2006 an investigating judge of the Varaždin County Court issued a search warrant of a flat and a vehicle belonging to a certain M.G. who was suspected of having procured weapons for M.M. The warrant was executed the same day, but no connection was established between M.G. and the weapons used by M.M.. The investigating judge has not taken any further steps in that case.
12. On 18 August 2006 the police submitted a report to the Čakovec County State Attorney’s Office detailing the circumstances of the tragic event.
13. On 28 November 2006 the State Attorney’s Office dismissed a criminal complaint against M.M. for murdering M.T. and V.T. on the ground that he was dead. It is unclear who lodged that complaint, but a copy of this decision was sent to the applicants. In a letter of the same day the State Attorney’s Office asked the Međimurje Police Department to collect all information concerning psychiatric treatment of M.M. in Varaždin Prison. The relevant part of a report drawn up on 13 December 2006 by the Varaždin prison authorities reads as follows:
“M.M. had been kept in detention on remand in Varaždin Prison from 3 February to 22 May 2006 when he was sent to serve his prison term ... which expired on 3 July 2006.
A psychiatric examination of M.M. carried out during his stay in detention showed that he suffered from a mixed personality disorder which derived from innate malfunctioning of the brain and the unfavourable pedagogical circumstances of his childhood. In the same opinion the expert psychiatrist recommended that compulsory psychiatric treatment be ordered with a predominantly psychotherapeutic approach with the aim [that M.M.] develop an ability to resolve difficult situations in life in a more constructive manner.
While M.M. served his prison term, intensive treatment consisting in frequent individual conversational sessions was envisaged, in accordance with the individual programme of serving a prison term. He rarely came for the sessions of his own accord and was therefore, in [order to satisfy] the need for treatment, requested to do so by the staff. ...
While in prison M.M. saw the prison doctor on five occasions, sometimes of his own accord, sometimes at the doctor’s call. He did not insist on his psychiatric therapy and therefore his treatment was based, as recommended by the expert, on intensive psychotherapeutic treatment by the staff, the prison governor and the others who talked to him. He was a highly introverted person, so his true personality could not be detected in detention or prison conditions.”
14. On 11 December 2006 the Međimurje Police Department interviewed the Varaždin prison governor, P.L. The relevant part of a report on the interview drawn up on 2 December 2006 reads as follows:
“The above-mentioned is the governor of Varaždin Prison and he states that the late M.M. served his prison term in Varaždin Prison from 3 February to 3 July 2006 ...
While in prison M.M. underwent psychiatric treatment pursuant to the expert opinion and recommendation. The treatment was based on intensive psychotherapeutic treatment of M.M. consisting of conversational sessions between M.M. and the prison staff, himself [meaning the governor] and the prison doctor. During the treatment M.M. neither received nor asked for any pharmacotherapy. It was also established that M.M. was a very introverted person who did not wish to cooperate in the treatment.
During his stay in the prison M.M. saw the prison doctor on five occasions in connection with some other problems, that is to say, illnesses.
He further maintains that there are no internal regulations on the implementation of security measures and that all treatment is carried out in accordance with the Enforcement of Prison Sentences Act.”
15. According to the Government, since no oversights on the part of the persons in charge of the execution of the M.M.’s prison term and security measure had been established, the investigation was concluded, although no formal decision to that effect has been adopted.
16. M.M.’s medical record from prison, submitted by the Government, does not indicate any psychiatric or psychotherapeutic treatment.
17. On 6 November 2006 the applicants submitted a proposal to the State Attorney for a settlement of their claim for non-pecuniary damages related to the deaths of M.T. and V.T. They alleged failures by the competent authorities to take adequate steps to protect the lives of M.T. and V.T. and inadequacy of the investigation into the circumstances of their deaths. They sought 1,105,000 Croatian kunas (HRK) in compensation and HRK 13,481 for costs. They received no reply. Under section 186(a) of the Civil Procedure Act, where such a request has been refused or no decision has been taken within three months of its submission the person concerned may file an action with the competent court. The applicants have not brought a civil action.
18. Article 21 of the Constitution (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000 and 28/2001) reads as follows:
“Every human being has the right to life.
...”
19. The relevant part of the Constitutional Court Act (Ustavni zakon o Ustavnom sudu, Official Gazette no. 29/2002) reads as follows:
“Everyone has the right to request the institution of proceedings to review the constitutionality of statutes ...”
“(1) The Constitutional Court shall quash a statute or its provisions if it finds that they are incompatible with the Constitution ...”
20. The relevant part of Article 75 of the Criminal Code (Kaznenei zakon Republike Hrvatske, Official Gazette nos. 110/1997, 28/1998, 50/2000, 129/2000, 51/2001, 11/2003 and 105/2004) reads as follows:
“The security measure of compulsory psychiatric treatment may be imposed only as regards a perpetrator who, at the time of committing a criminal offence, suffered from significantly diminished responsibility [and] where there is a risk that the factors giving rise to the state [of diminished responsibility] might incite the future commission of a further criminal offence.
The security measure of compulsory psychiatric treatment may be imposed, under the conditions set out in paragraph 1 of this Article, during the execution of a prison sentence, in lieu of a prison sentence or together with a suspended sentence.
Compulsory psychiatric treatment shall be imposed for as long as the grounds for its application exist, but [it shall not] in any case exceed the prison term ... Compulsory psychiatric treatment shall not under any circumstances exceed three years.
...”
21. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 63/2002, 62/2003 and 115/2006) read as follows:
“In order to ... decide whether to request an investigation ... the State Attorney shall order the police to collect the necessary information and take other measures concerning the crime [at issue] with a view to identifying the perpetrator ...”
“Where there is a suspicion that a criminal offence liable to public prosecution has been committed, the police shall take the necessary measures with a view to indentifying the perpetrator ... and collect all information of possible relevance for the conduct of the criminal proceedings...”
“(1) An investigation shall be opened against a particular individual where there is a suspicion that he or she has committed a criminal offence.
(2) During the investigation evidence and information necessary for deciding whether an indictment is to be brought or the proceedings are to be discontinued shall be collected ...”
22. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette no. 35/2005) read as follows:
“(1) Every legal entity and every natural person has the right to respect for their personal integrity under the conditions prescribed by this Act.
(2) The right to respect for one’s personal integrity within the meaning of this Act includes the right to life, physical and mental health, good reputation and honour, the right to be respected, the right to respect for one’s name and privacy of personal and family life, freedom et alia.
...”
“(1) Where a court finds it justifiable, on account of the seriousness of an infringement of the right to respect for one’s personal integrity and the circumstances of a particular case, it shall award non-pecuniary damages, irrespective of compensation for pecuniary damage or where no such damage exists.
...”
“(1) In the case of death or particularly serious invalidity of a person the right to non-pecuniary damages shall vest in his or her close family members (spouse, children and parents).
(2) Such damages may be awarded to the siblings, grandparents, grandchildren and a common-law spouse where these persons and the deceased permanently shared the same household.
„
23. Section 13 of the State Administration Act (Zakon o ustrojstvu državne uprave, Official Gazette nos. 75/1993, 48/1999, 15/2000 and 59/2001) reads as follows:
“The Republic of Croatia shall compensate damage caused to a citizen, legal entity or other party by unlawful or wrongful conduct of a State administration body, a body of local self-government and administration ...”
24. The relevant part of section 186(a) of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03 reads as follows:
“A person intending to bring a civil suit against the Republic of Croatia shall beforehand submit a request for a settlement with the competent State Attorney’s office.
...
Where the request has been refused or no decision has been taken within three months of its submission, the person concerned may file an action with the competent court.
...”
25. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:
“The main purpose of a prison term, apart from humane treatment and respect for personal integrity of a person serving a prison term, ... is development of his or her capacity for life after release in accordance with the laws and general customs of society.”
“During the enforcement of a prison sentence a penitentiary or prison shall, together with the institutions and other legal entities in charge of assistance after release, ensure preparation of a prisoner for his or her release [from prison].”
(1) The individual programme for the enforcement of a prison term (hereinafter “the enforcement programme”) consists of a combination of pedagogical, working, leisure, health, psychological and safety acts and measures aimed at organising the time spent during the prison term according to the character traits and needs of a prisoner and the type and possibilities of a particular penitentiary or prison. The enforcement programme shall be designed with a view to fulfilling the purposes of a prison term under section 7 of this Act.
(2) The enforcement programme shall be designed by a prison governor on the proposal of a penitentiary or a prison’s expert team ...
(3) The enforcement programme shall contain information on ... special procedures (... psychological and psychiatric assistance ... special security measures ...)
...”
“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...”
26. Section 22 of the State Attorney Act (Zakon o državnom odvjetništvu, Official Gazette 75/1995) reads as follows:
“(1) The State Attorney’s Office is entitled to compensation for the costs of representation before the courts and other competent bodies according to the regulations on lawyers’ fees.
(2) Funds obtained as the costs of representation are paid into the State’s budget.”
27. As regards civil proceedings for damages the Government submitted several decisions of the Supreme Court expressing its opinion on the responsibility of the State for damage caused by the administrative authorities.
The relevant parts of decision no. Rev 2203/1991-2 of 30 December 1991 read as follows:
“The employees of Open Penitentiary V.-P. and of L. State Prison caused the damage in question by their unlawful and wrongful conduct in allowing D.P. to escape from the penitentiary instead of preventing his escape by the use of force if necessary (sections 175 and 176, paragraph 140, of the Enforcement of Penal and Misdemeanours Sanctions Act, Official Gazette nos. 21/74 and 39/74).
Enforcement of a sentence, and in particular the enforcement of a prison term, fulfils the purpose of punishment defined by law which includes, inter alia, preventing a perpetrator from committing [a further] criminal offence by restricting his freedom of movement. In the circumstances of the present case the employees of the above-mentioned penitentiaries, for whose conduct the defendant [the State] is liable, failed to [prevent the escape] of a convict who repeated the same act of violence (in even more serious circumstances) as the criminal offence for which he had been convicted and placed in prison ... The fact that he committed a criminal offence of robbery and caused damage to the plaintiff and numerous other persons by acts of violence during his escape shows that he is a danger to society who should have been prevented from committing criminal offences by being kept in prison. The same transpires from his previous criminal record ...
Therefore, in the case at issue there is a legally relevant causal link between the unlawful and wrongful conduct of the defendant’s employees, the escape and the harmful act ... which all lead to the defendant’s liability.”
The relevant part of decision no. Rev 186/04-2 of 10 January 2006 reads as follows:
“Pursuant to section 13 of the State Administration Act (Official Gazette nos. 75/93, 48/99, 15/00 and 59/01) the Republic of Croatia is obliged to compensate damage resulting from unlawful or wrongful conduct of the State administration bodies, bodies of local self-government and administration ...
...
Conduct or an omission that is against a law or any other regulation amounts to an unlawful act ... if there exists an intent to cause damage to the rights or interests of third persons or acceptance of that outcome .”
28. The applicants submitted several decisions of the Supreme Court concerning the same issue.
The relevant part of decision no. Rev 713/1998 of 13 September 2000 reads as follows:
“Conduct or an omission that is against a law or any other regulation amounts to an unlawful act only if there exists an intent to cause damage to the rights and interests of a third person or acceptance of that outcome. The same is true in respect of conduct or a failure to act, contrary to the common or prescribed manner of acting, amounting to wrongful conduct.”
The relevant part of decision no. Rev 218/04-2 of 27 October 2004 reads as follows:
“The plaintiffs’ claim for damages against the Republic of Croatia is justified only where the statutory conditions have been fulfilled, namely, that the damage is a consequence of unlawful or wrongful conduct of a person or a body performing [civil] service. Unlawful conduct means acting against a law or any other regulation or an omission to apply a regulation with intent to cause harm to a third person or acceptance of that outcome. Wrongful conduct means an act or a failure to act that is contrary to the common or prescribed manner of acting and from which it can be concluded that there has been an intent to cause harm to the rights and interests of a third person or acceptance of that outcome.”
The relevant part of decision no. Rev 730/04-2 of 16 November 2005 reads as follows:
“... unlawful conduct means acting against the law or omitting to apply statutory provisions with intent to cause damage to a third person or acceptance of that outcome. Wrongful conduct means an act or a failure to act, contrary to the common or prescribed manner of acting ... The burden of proof is on the plaintiff. ... The plaintiff claiming damages is obliged to prove the existence of damage, a harmful act by the defendant (in this case unlawful or wrongful conduct of the State administration bodies within the meaning of section 13 of the State Administration Act) and a causal link between the harmful act and the actual damage.”
The relevant part of decision no. Rev 257/06-2 of 18 May 2006 reads as follows:
“The purpose of section 13 of the State Administration Act is [to make] the State liable for the damage caused by consciously acting against the law with intent to cause damage to another.”
VIOLATED_ARTICLES: 2


ITEMID: 001-75389
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: USEINOV v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicant, Mr Kazim Useinov, is a national of the Former Yugoslav Republic of Macedonia (“the FYR of Macedonia”), who was born in 1965 and lives in Kudelstaart. He is represented before the Court by Mr M.F. Wijngaarden, a lawyer practising in Amsterdam. The respondent Government are represented by their Agent Ms J. Schukking, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant came to the Netherlands on 19 May 1992 and applied for asylum. This request was rejected on 15 June 1992. The applicant’s subsequent request for revision (herziening) was dismissed on 13 April 1994. The final decision on the asylum application was taken by the Amsterdam Regional Court (arrondissementsrechtbank), which rejected the applicant’s appeal on 12 April 1995. However, the applicant did not leave the country and neither was he forcibly expelled.
In 1993, while the proceedings on his request for asylum were still pending, the applicant formed a relationship with a Ms van B., a Netherlands national. Ms van B. was living next door to the applicant with her parents, but she spent so much time with the applicant that they were de facto living together. On 7 January 1995 a daughter, M., was born to the applicant and Ms van B. The applicant did not at that time recognise his daughter given that Ms van B.’s father was vehemently opposed to this. Being an asylum seeker, the applicant was not allowed to work in the Netherlands and he was thus unable to contribute financially to his daughter’s upbringing. However, he did spend one or two afternoons per week with her.
On 26 November 1997 the applicant applied for a residence permit for compelling reasons of a humanitarian nature related to his having a Netherlands partner and daughter. On 28 November 1997 Ms van B. informed the immigration authorities that her relationship with the applicant had ended.
The applicant’s request for a residence permit was rejected by the Deputy Secretary of Justice (Staatssecretaris van Justitie) on 7 May 1998. It was held that, even assuming that it could be established – quod non – that the applicant was the father of M., it had in no way been shown that he had enjoyed family life with her. Neither had it appeared that there had existed a lasting and exclusive relationship between the applicant and Ms van B.
The applicant lodged an objection (bezwaar) against this decision, arguing that he saw his daughter on a regular basis – at least once and sometimes twice a week – and that, as his relationship with Ms van B. had ended, it could not be expected of the latter to move to the FYR of Macedonia in order to enable him to enjoy family life with his daughter. He further submitted a letter written by Ms van B. to his lawyer, in which she confirmed that the applicant was the biological father of her daughter M.; that the applicant had insufficient means to contribute financially to M.’s upbringing but that he did sometimes buy presents for her; that, although their relationship had ended, they were still friends; and that the three of them undertook activities together at least once a week.
By a decision of 2 February 1999, the Deputy Minister rejected the objection, considering that the refusal to grant the applicant a residence permit did not constitute an interference with the applicant’s family life since that refusal was not aimed at taking from the applicant a residence permit which enabled him to enjoy family life in the Netherlands. Neither did there exist any special facts or circumstances which placed the State under a positive obligation to grant the applicant a residence permit. In this context the Deputy Minister noted that the applicant had never officially lived together with Ms van B. and that his claim that he saw his daughter once or twice a week had remained unsubstantiated. It had further not been shown that he had custody of M. or that he contributed financially to her upbringing. In addition, in view of the geographical distance between the Netherlands and the FYR of Macedonia and the cost of regular trips between those two countries, it was held that the contact which the applicant had with his daughter would not need to undergo a substantial change as a result of the refusal of a residence permit.
The applicant appealed this decision to the Amsterdam Regional Court, submitting that his return to the FYR of Macedonia would render regular contact with his daughter impossible. As the FYR of Macedonia was the poorest country in Europe, it was unlikely that he would be able to afford regular trips to the Netherlands. If he had a job in the FYR of Macedonia, he would not have enough holidays to make regular longer trips to the Netherlands. In addition, there was no guarantee whatsoever that the applicant would be granted a visa. It was further not to be expected that Ms van B. would travel to the FYR of Macedonia to enable the applicant to see his daughter in view of the difficulties between the applicant and Ms van B.’s father and the latter’s influence over his daughter. The applicant also argued that not all relevant circumstances had been taken into account by the Deputy Minister when the interests of the community as a whole were balanced against those of the applicant’s. The circumstances which, in his view, merited to be taken into account were the fact that he had been living in the Netherlands since 1992, that his daughter was four years old, that he had regular contact with her, that due to an insufficiency of means it was impossible for him to contribute financially to his daughter’s upbringing, and that he did not dare take legal proceedings in order to recognise his daughter out of fear that Ms van B.’s father would stop him from seeing his daughter. In the proceedings before the Regional Court the applicant submitted a letter from the owner of a company saying he should like to employ the applicant and requesting that the applicant be granted a residence permit.
On 21 February 2000 the Regional Court rejected the appeal. It found that the Deputy Minister had been justified in attaching greater weight to the economic well-being of the country than to the applicant’s interest in exercising family life with his daughter in the Netherlands. In this context the Regional Court had regard to the fact that the applicant and his daughter had never lived together as a family unit (gezin), that there was no arrangement concerning access and that the applicant did not contribute financially to his daughter’s upbringing. Finally, the Regional Court considered that the applicant should be deemed capable of maintaining some kind of contact with his daughter from the FYR of Macedonia. No further appeal lay against this decision, which was notified to the applicant on 14 March 2000.
On 24 May 2000 the applicant requested the juvenile court judge of the Amsterdam Regional Court to establish an access arrangement between him and his daughter. In her decision of 14 November 2000, the juvenile court judge noted that M. was born out of the relationship between the applicant and Ms van B., and that the parents had themselves agreed on an access arrangement which had latterly, however, not been working out. Given that, pending the proceedings, it had appeared that the parents had reached agreement, the juvenile court judge established the access arrangement as agreed by the parents, to the effect that the applicant would see M. every Saturday from midday to 7 p.m. and that further contacts would take place by mutual agreement.
On 3 January 2001 the applicant recognised his daughter with the permission of Ms van B., as a result of which legally recognised family ties (familierechtelijke betrekkingen) were created between them. Moreover, on 11 December 2001 a son, J., was born to the applicant and Ms van B., who was recognised by the applicant on 31 January 2002. In a letter to the Court of 24 February 2004 the applicant described his family situation as “living apart together”. Ms van B. worked four days a week, during which the applicant, who lived just two-hundred metres away, looked after the children. The family spent the remaining three days of the week mainly together.
As of 9 August 2005 the local authorities of the town where the applicant was residing stopped providing him with State-sponsored accommodation, social benefits and health insurance. Legal proceedings instituted by the applicant against this decision were to no avail.
On 1 September 2005 Ms van B. lost her job. As a result, the applicant is prevented from applying for a residence permit for the purpose of residing with his partner and children since one of the requirements for such a permit is that the partner who is already residing in the Netherlands is in employment and in receipt of a salary of at least 1,320 euros per month.
At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case.
Under Article 11 paragraph 5 of the Aliens Act 1965 a residence permit could be refused on public interest grounds. The Government pursued – and still pursue – a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of obligations arising from international agreements, or if their presence serves an essential national interest, or on compelling humanitarian grounds. Respect for family life is one of those obligations arising from international agreements. To implement this restrictive policy, further conditions have been drawn up relating to each of the various grounds for the admission of aliens wishing to stay in the Netherlands.
The admission policy for the purposes of forming a family was laid down in the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire 1994). Section B1/11 of these Guidelines addressed the requirements of Article 8 of the Convention regarding initial admission and continued residence. It had to be determined whether family life existed within the meaning of Article 8, whether refusal to grant admission to the alien would constitute an interference with his or her right to respect for family life and whether the interference would be justified under Article 8 § 2.