ITEMID: 001-57881
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF KEEGAN v. IRELAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 6-1;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: R. Pekkanen
TEXT: 6. The applicant met his girlfriend Miss V. ("V.") in May 1986. They lived together from February 1987 until February 1988. Around Christmas 1987 they decided to have a child. Subsequently, on 14 February 1988, they became engaged to be married.
On 22 February 1988 it was confirmed that V. was pregnant. Shortly after this the relationship between the applicant and V. broke down and they ceased co-habiting. On 29 September 1988 V. gave birth to a daughter S. of whom the applicant was the father. The applicant visited V. at a private nursing home and saw the baby when it was one day old. Two weeks later he visited V.’s parents’ home but was not permitted to see either V. or the child.
7. During her pregnancy V. had made arrangements to have the child adopted and on 17 November 1988 she had the child placed by a registered adoption society with the prospective adopters. She informed the applicant of this in a letter dated 22 November 1988.
8. The applicant subsequently instituted proceedings before the Circuit Court to be appointed guardian under section 6A, sub-section 1, of the Guardianship of Infants Act 1964, which would have enabled him to challenge the proposed adoption. He also applied for custody of the child. Pursuant to the Adoption Act 1952, an adoption order cannot be made, inter alia, without the consent of the child’s mother and the child’s guardian (see paragraph 19 below). While a married man is a guardian of his children, an unmarried man is not unless so appointed by the court (see paragraphs 25 and 26 below).
9. On 29 May 1989 the Circuit Court appointed the applicant guardian and awarded him custody.
10. Following an appeal against the judgment of the Circuit Court by V. and the prospective adopters, the High Court found in July 1989 that the applicant was a fit person to be appointed guardian and that there were no circumstances involving the welfare of the child which required that the father’s rights be denied. Mr Justice Barron of the High Court stated:
"I am of the opinion that in considering the applications both for custody and guardianship I must have regard to circumstances as they presently exist and that in considering the welfare of the child I must take into account the fact that she has been placed for adoption. Each application must be taken as part of a global application and not as a separate and distinct one. The test therefore is:
(1) whether the natural father is a fit person to be appointed guardian, and, if so:
(2) whether there are circumstances involving the welfare of the child which require that, notwithstanding he is a fit person, he should not be so appointed.
In the present case, I am of the opinion that he satisfies the first condition and that unless the welfare of the child is to be regarded as the sole consideration, he satisfies the second condition ...
In my opinion, having regard to the purposes of the Status of Children Act 1987, the rights of the father should not be denied by considerations of the welfare of the child alone, but only where - and they do not exist in the present case - there are good reasons for so doing."
11. After the conclusion of the High Court proceedings Mr Justice Barron acceded to an application by V. and the prospective adopters to state a case for the opinion of the Supreme Court. The questions put to the Supreme Court by the judge were as follows:
"(1) Am I correct in my opinion as to the manner in which section 6A of the Guardianship of Infants Act 1964, as inserted by section 12 of the Status of Children Act 1987, should be construed?
(2) If not, what is the proper construction of that section and what other, if any, principles should I have applied or considered whether in relation to guardianship or custody which derive either from law or from the provisions of the Constitution?"
12. Delivering the majority judgment of the Supreme Court on 1 December 1989, Chief Justice Finlay stated that the High Court had incorrectly construed section 6A of the 1964 Act as conferring on the natural father a right to be a guardian. He considered that the Act only gave the natural father a right to apply to be guardian. It did not equate his position with that of a married father. The first and paramount consideration in the exercise of the court’s discretion was the welfare of the child, and the blood link between child and father as merely one of the many relevant factors which may be viewed by the court as relevant to that question. He added, inter alia:
"... although there may be rights of interest or concern arising from the blood link between the father and the child, no constitutional right to guardianship in the father of the child exists. This conclusion does not, of course, in any way infringe on such considerations appropriate to the welfare of the child in different circumstances as may make it desirable for the child to enjoy the society, protection and guardianship of its father, even though its father and mother are not married.
The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances of each individual case.
The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all of the characteristics of a constitutionally protected family, when the rights would be very extensive indeed ..."
He concluded that:
"... regard should not be had to the objective of satisfying the wishes and desires of the father to be involved in the guardianship of and to enjoy the society of his child unless the Court has first concluded that the quality of welfare which would probably be achieved for the infant by its present custody which is with the prospective adoptive parents, as compared with the quality of welfare which would probably be achieved by custody with the father is not to an important extent better".
The matter was then referred back to the High Court for the case to be decided in light of this interpretation.
13. The High Court resumed its examination of the case in early 1990. It heard, inter alia, the evidence of a consultant child psychiatrist who considered that the child would suffer short-term trauma if moved to the applicant’s custody. In the longer term she would be more vulnerable to stress and be less able to cope with it. She would also have difficulty in forming "trust" relationships.
14. In his judgment of 9 February 1990 Mr Justice Barron recalled that the applicant wished bona fide to have custody of his daughter and that he felt the existence of an emotional bond.
He had also noted that if the child remained with the adopters she would obtain the benefit of a higher standard of living and would be likely to remain at school longer. However, he considered that differences springing solely from socio-economic causes should not be taken into account where one of the claimants is a natural parent. In his view "to do otherwise would be to favour the affluent as against the less well-off which does not accord with the constitutional obligation to hold all citizens as human persons equal before the law".
Applying the test laid down by the Supreme Court in the light of the dangers to the psychological health of the child he allowed the appeal of the natural mother and the prospective adopters and concluded as follows:
"The result, it seems to me, is this. If the child remains where she is, she will if the adoption procedures are completed become a member of a family recognised by the Constitution and freed from the danger of psychological trauma. On the other hand if she is moved she will not be a member of such a family and in the short and long term her future is likely to be very different. The security of knowing herself to be a member of a loving and caring family would be lost. If moved, she will I am sure be a member of a loving and caring unit equivalent to a family in her eyes. Nevertheless the security will be lost and there will be insecurity arising from the several factors which have been enumerated.
In my view these differences and the danger to her psychological health are of such an importance that I cannot hold that the quality of welfare likely to be achieved with the prospective adopters would not be to an important extent better than that likely to be achieved by custody with the father. That being so, his wish and desire to be involved in the guardianship of and to enjoy the society of his child is not a factor which I am to take into account. In these circumstances, the welfare of the infant requires her to remain in her present custody. Accordingly the application for relief must be refused."
15. An adoption order was subsequently made in respect of the child.
16. A decision of the High Court which determines an appeal from the Circuit Court cannot be appealed to the Supreme Court (Eamonn Andrews Productions Limited v. Gaiety Theatre Enterprises [1978] Irish Reports 295). The High Court can, however, ask for the opinion of the Supreme Court on points of law by way of a case stated.
17. The adoption of children in Ireland is governed by the Adoption Act 1952. This Act was amended in 1964, 1974 and 1976.
Section 8 of the 1952 Act established a body to be known as the Adoption Board (An Bord Uchtála) to fulfil the functions assigned to it by the Act, its principal function being to make adoption orders on application being made to it by persons desiring to adopt a child.
18. Arrangements for the adoption of a child under the age of seven years may only be made by a registered adoption society or a Health Board (section 34 of the 1952 Act) and where the mother or guardian of a child proposes to place the child at the disposal of a registered adoption society for adoption the society must, before accepting the child, furnish the mother or father with a statement in writing explaining clearly the effect of an adoption order on the rights of the mother or guardian and the provisions of the Act relating to consent to the making of an adoption order (section 39 of the 1952 Act). When the applicant’s child was placed for adoption there was also a requirement that notice in writing had to be given to the Adoption Board before or within seven days after the reception of the child into the home of the proposed adopters (section 10 of the Adoption Act 1964).
19. As regards the requisite consent of the natural parent, section 14 of the 1952 Act provides as follows:
"(1) An adoption order shall not be made without the consent of every person being the child’s mother or guardian or having charge of or control over the child, unless the Board dispenses with any such consent in accordance with this section.
(2) The Board may dispense with the consent of any person if the Board is satisfied that that person is incapable by reason of mental infirmity of giving consent or cannot be found.
...
(6) A consent may be withdrawn at any time before the making of an adoption order."
20. As regards those persons who are entitled to be heard on an application for an adoption order, section 16 of the 1952 Act provides as follows:
"(1) The following persons and no other persons shall be entitled to be heard on an application for an adoption order -
(a) the applicants,
(b) the mother of the child,
(c) the guardian of the child,
(d) a person having charge of or control over the child,
(e) a relative of the child,
(f) a representative of a registered adoption society which is or has been at any time concerned with the child,
(g) a priest or minister of a religion recognised by the Constitution (or, in the case of any such religion which has no ministry, an authorised representative of the religion) where the child or a parent (whether alive or dead) is claimed to be or to have been of that religion,
(h) an officer of the Board,
(i) any other person whom the Board, in its discretion, decides to hear.
(2) A person who is entitled to be heard may be represented by counsel or solicitor.
(3) The Board may hear the application wholly or partly in private.
(4) Where the Board has notice of proceedings pending in any court of justice in regard to the custody of a child in respect of whom an application is before the Board, the Board shall make no order in the matter until the proceedings have been disposed of."
21. The Supreme Court has held in the leading case of the State (Nicolaou) v. An Bord Uchtála (the Adoption Board) [1966] Irish Reports 567 that the relevant provisions of the Adoption Act 1952, which permitted the adoption of a child born out of wedlock without the consent of the natural father or without the right to be heard by the Adoption Board prior to the making of an adoption order, were not repugnant to the Constitution on the grounds that they discriminated against the natural father or infringed his constitutional rights (Article 40, sections 1 and 3 of the Constitution). It also held that the protection afforded to the "family" in Article 41 of the Constitution related only to the "family" based on marriage.
22. Section 20 of the 1952 Act provides:
"20. (1) The Board may (and, if so requested by an applicant for an adoption order, the mother or guardian of the child or any person having charge of or control over the child, shall, unless it considers the request frivolous) refer any question of law arising on an application for an adoption order to the High Court for determination.
(2) Subject to rules of court, a case stated under this section may be heard in camera."
23. As regards proceedings relating, inter alia, to the custody or guardianship or upbringing of an infant, the Guardianship of Infants Act 1964 provided as follows:
"3. Where in any proceedings before any court the custody, guardianship or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration."
"Welfare" in relation to an infant is defined as follows in section 2 of the said Act:
"‘Welfare’, in relation to an infant, comprises the religious and moral, intellectual, physical and social welfare of the infant."
24. Section 6 of the 1964 Act provided as follows:
"(1) The father and mother of an infant shall be guardians of the infant jointly.
(2) On the death of the father of an infant the mother, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the father or by the court.
(3) On the death of the mother of an infant the father, if surviving, shall be guardian of the infant, either alone or jointly with any guardian appointed by the mother or by the court."
25. The definition of "father" under section 2 of the 1964 Act did not include the father of a child born out of wedlock.
26. The Status of Children Act 1987 amended the Guardianship of Infants Act 1964 in the following way:
"11. Section 6 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):
‘(4) Where the mother of an infant has not married the infant’s father, she, while living, shall alone be the guardian of the infant unless there is in force an order under section 6A (inserted by the Act of 1987) of this Act or a guardian has otherwise been appointed in accordance with this Act.’
12. The Act of 1964 is hereby amended by the insertion after section 6 of the following section:
‘6A (1) Where the father and mother of an infant have not married each other, the court may on the application of the father, by order appoint him to be a guardian of the infant.
(2) ... the appointment by the court under this section of the father of an infant as his guardian shall not affect the prior appointment of any person as guardian of the infant under section 8 (1) of this Act unless the court otherwise orders ...’"
27. As regards court applications for custody of an infant, the 1964 Act provided as follows:
"11. (1) Any person being a guardian of an infant may apply to the court for its direction on any question affecting the welfare of the infant and the court may make such order as it thinks proper.
(2) The court may by an order under this section
(a) give such directions as it thinks proper regarding the custody of the infant and the right of access to the infant of his father or mother;
..."
28. This section of the 1964 Act was amended by the 1987 Act as follows:
"13. Section 11 of the Act of 1964 is hereby amended by the substitution of the following subsection for subsection (4):
‘(4) In the case of an infant whose father and mother have not married each other, the right to make an application under this section regarding the custody of the infant and the right of access thereto of his father or mother shall extend to the father who is not a guardian of the infant, and for this purpose references in this section to the father or parent of an infant shall be construed as including him.’"
29. The 1964 Act provides, inter alia, that a guardian under the Act shall be entitled (1) to the custody of the infant and to take proceedings for the restoration of his custody of the infant against any person who wrongfully takes away or detains the child and (2) to the possession and control of all property of the infant (section 10).
30. The following developments have taken place subsequent to the facts of the present case.
By memorandum of 30 April 1990 from the Registrar of the Adoption Board, the relevant adoption societies and social workers have been notified, inter alia, of the rights of the natural father to apply for joint guardianship and/or custody of or access to his child. The memorandum also draws attention to the desirability of ascertaining from the mother and, where practicable, the father, his intentions in relation to the child as regards adoption although it recognises the practical difficulties which may arise when mothers do not want to involve the father or do not know who or where he is.
Where an adoption agency is given an indication by the natural father that he opposes the placement of the child for adoption the agency is advised to consider the prudence of delaying the placement for a period. The memorandum further states that where a natural father has applied to a court under no circumstances should the child be placed for adoption pending the determination of the court proceedings.
By a letter of 6 April 1992 the Adoption Board has informed the relevant adoption societies and social workers of a review of its policy in relation to natural fathers of children placed for adoption and the necessity of following new procedures. The letter indicates that whenever a natural father is
(a) named as father on the child’s birth certificate, (b) in a continuous relationship with the mother,
he should be notified, if not already aware, of the application to adopt his child and offered a hearing by the Board on the application.
In addition two forms must now be completed by the adoption agency or by the applicant or applicants. These forms make the fullest relevant enquiries for the purpose, inter alia, of ascertaining the identity and intentions of the natural father as regards the proposed adoption.
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78291
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF NAMLI AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicants were born in 1958, 1923, 1949, 1961, 1955 and 1950 respectively and live in Tokat.
5. On 21 November 1957 the Koruluk village administration, the Ministry of Treasury and the Forest Directorate requested the annulment of the record in the title deed registry of the applicants’ father’s and other persons’ (hereinafter “the defendants”) ownership of four plots of land (nos. 49, 50, 51 and 52) situated in the village of Koruluk.
6. On 4 November 1971, 2 December 1975 and 16 March 1989 the Bafra Cadastre Court gave a decision on the merits of the case. Each of these decisions was in turn quashed by the Court of Cassation.
7. In the course of the proceedings several defendants including Mr Esat Namlı, who was the husband of the second applicant and the father of the remaining applicants, died. Shortly thereafter, in 1990, the applicants became parties to the proceedings.
8. On 28 November 1996 the Bafra Cadastre Court decided to annul the record in the title deed registry except for a part of plot no. 49 which remained under the name of the defendants.
9. On 10 March 1998 the Court of Cassation upheld the judgment of the first-instance court.
10. On 18 December 1998 the Court of Cassation dismissed the applicants’ request for rectification of its decision. This decision was not served on the applicants. However, it was sent to the registry of the Bafra Cadastre Court on 4 January 1999.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69480
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: LATIMER v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Neil Fraser Latimer, is a British national who was born in 1962 and lives in Armagh. He is represented before the Court by Mr John J. Rice, a solicitor practising in Belfast.
On 1 July 1986, the applicant, a former member of the Ulster Defence Regiment (UDR) was convicted, along with three others, of the murder of Adrian Carroll who was killed on 8 November 1983.
The applicant had been arrested on 29 November 1983 and detained in Castlereagh Holding Centre for seven days. He made admissions on 29 November 1983 but retracted them on 30 November 1983. He made further admissions on 2 December 1983. At the conclusion of the seven day period, he obtained access to his solicitor for the first time. He retracted his confession again. At his trial, the Crown case comprised his confession evidence, the evidence of Mrs Dunne and the evidence of Mrs A. Mrs Dunne gave evidence that she had seen the gunman and described him inter alia as wearing a tartan cap and gold rim glasses, with a light moustache. She said that it was not the applicant, whom she knew as a neighbour. Mrs A. stated that she had seen the applicant, unusually wearing a tartan cap and gold rim glasses, getting into a UDR Land Rover with two soldiers shortly before the time of the shooting. The applicant challenged the admissibility of his confession evidence. The trial judge found that the confession statements were made freely and voluntarily and that the content came from himself.
On 4 May 1988, the Court of Appeal in Northern Ireland rejected the appeals of the applicant and his co-defendants, agreeing that the confessions had been properly admitted and were reliable accounts of their complicity.
On 25 July 1991, the Secretary of State referred the case back to the Court of Appeal, in particular in view of the availability of ESDA (electrostatic detection apparatus) readings which showed that the police notes of interviews had been rewritten in 18 places and accordingly were not contemporaneous as claimed at trial
On 29 July 1992, the Court of Appeal allowed the appeal of the applicant's co-defendants but dismissed his appeal. It was satisfied from evidence other than that of the officers that the applicant had not made admissions because of threats, promises or improper pressure. It considered in detail the course of the interviews and the evidence of Mrs A. and Mrs Dunne and concluded that it remained satisfied beyond reasonable doubt that Mrs A.'s evidence was true, that Mrs Dunne was wrong in her assertion that the gunman whom she saw was not the applicant, that his initial detailed and elaborate account of the shooting had been clearly designed to protect the other members of the UDR patrol and that his second written confession on the night of 2-3 December 1983 was a "truthful confession made by a man who realised the game was up" when confronted with confirmation of witness evidence that he had been seen getting into a landrover in civilian clothes.
In 1998, the applicant was released from custody.
On 9 May 2001, the Criminal Cases Review Commission referred the applicant's case back to the Court of Appeal, on the basis of their concerns about a report that the applicant had unusual personality characteristics making him psychologically vulnerable during detention and interrogation; and fresh evidence that witness A. had a psychiatric history.
On 9 February 2004, after hearing various expert witnesses on the applicant's personality and Mrs A.'s psychological make-up, the Court of Appeal rejected the applicant's appeal. It reviewed the evidence about Mrs A.'s psychological make-up by three consultants based on their examination of her medical records (she had died two years previously) and noted that she had been admitted to hospital twice in 1964-1965 for periods of several weeks against a background, inter alia, of depression and feelings of persecution. It considered that the judge, if faced by the conflicting opinions as to the relevance of this evidence on her reliability as a witness, would have recognised the need for more caution in accepting her evidence as reliable than in the case of most witnesses. However, in light of the circumstances before and at trial, it still did not find her evidence was the product of a desire to seek attention or that she had invented the whole incident in which she recognised the applicant, a person she had known quite well as they had worked together in a factory for a year.
As concerned the psychological evidence concerning the applicant, it reviewed the evidence of Dr Gudjonsson for the applicant and Dr Heap for the DPP. It concluded that the assessment by Dr Gudjonsson concerning his suggestibility and vulnerability was not supported by the applicant's conduct during the interviews and trial, in particular the course of the interviews, his acceptance at the trial of the confessions and other statements which the police said he made to them and his alleged reasons and explanations for making them.
Finally, concerning a submission that there had been a violation of Article 6 §§ 1 and 3(c) as regarded denial of access to a solicitor during his interrogation period, the Court of Appeal observed that the Human Rights Act 1998 did not apply retrospectively to convictions before it came into force. While Dr Gudjonsson's report set out the applicant's claims that he had asked repeatedly to see a solicitor but that this was refused until he left Castlereagh for prison, the Court of Appeal noted that there was no mention of any requests in the custody records and he had not given evidence at trial that he had requested to see a solicitor.


ITEMID: 001-79879
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF STAROSZCZYK v. POLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (incompatibility ratione personae, non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 10. The applicants were born in 1932 and 1933 respectively and live in Pruszków.
11. The applicants owned a plot of land situated in Pruszków, near Warsaw. In 1982 the applicants were informed by the local authorities that, pursuant to a local zoning plan, their land was to be expropriated as a construction of dwelling buildings was planned in its place.
12. The applicants requested the Pruszków City Council to be compensated by another plot of land. Their son also filed a request asking that a plot of land be allocated to him. By a letter of 16 May 1986 the Pruszków City Council informed the applicants that their request could not be granted. On 22 April 1987 the applicants' son was informed that his request to be allocated a plot of land within the Pruszków community was viewed favourably by the Social Commision (Komisja Społeczna) but could only be processed after the expropriation of his parents' plot. In 1987 the expropriation procedure commenced. In their letters the local authorities confirmed that after the expropriation of the applicants' land an allocation of a plot of land within the Pruszków community to the applicants' son would become possible.
13. Eventually the applicants' land was not expropriated but the applicants consented to a contract of sale. On 8 December 1987 they transferred ownership of their land to the State Treasury represented by the Pruszków City Council. They received the amount.
14. Following the sale they repeatedly inquired about the allocation of building land within the municipality but no steps were taken in order for the allocation to become effective and no decision as to the allocation was given.
15. In 1990 the applicants' son was informed by the City Council that the allocation of plots of land within the community had been conducted in violation of the law and in disregard of the principles of transparency. Therefore, the entire process was to be reviewed.
16. On 26 November 1991 the applicants instituted proceedings against the State Treasury represented by the Pruszków City Council. They requested the Pruszków District Court “to oblige the Pruszków City Council to allot a plot of land to their son, as promised”. The Pruszków District Court transferred the matter to the Warsaw Regional Court which rejected the claim finding that only the administrative authorities had jurisdiction in matters concerning expropriations and granting replacement plots. The Court of Appeal upheld that decision on 10 February 1993.
17. On 26 August 1993 the applicant sent a letter of complaint to the Ministry of Justice. On an unspecified date the Ministry of Justice transferred the letter to the Warsaw Regional Court. That court recognised that the applicants' action should be interpreted as an action to revoke the contract of sale with the Pruszków City Council of 8 December 1987 as they had consented to it on the mistaken belief that the City Council would allocate a comparable plot of land to their son. On 15 December 1993 the Warsaw Regional Court decided that, in view of fact that the value of the claim amounted to PLN (old) 10,000,000, a district court should examine the matter. The case was transferred to the Pruszków District Court. Subsequently, the applicants extended their claim and, on 18 August 1994, the Pruszków District Court transferred the case to the Warsaw Regional Court. On 18 October 1994 the case was transferred back to the Pruszków District Court and that court examined the case. On 3 June 1996 the first instance judgment was delivered. The court allowed the applicants' claim finding that they had indeed acted on the assumption that the sale of their property had been the condition for the allocation of a new plot of land to their son and that that assumption had been prompted and maintained by the Pruszków City Council.
18. The State Treasury, represented by the Pruszków City Council, filed an appeal. On 6 February 1997 the Warsaw Regional Court quashed the judgment and remitted the case to the first-instance court for reconsideration. The Warsaw Regional Court-instance court and that although the applicants had indeed acted upon the promise that the applicants' son would be allocated a plot of land, no time limit had been set for that. Therefore, the trial court was instructed, in particular, to examine whether the applicants' son could still be allocated a plot of land.
19. Having reconsidered the case, on 26 February 1998 the Pruszków District Court dismissed the applicants' action. It found that the transfer of the applicants' plot of land to the State had been inevitable since it had been planned for expropriation. Thus, the applicants could not validly claim that they had relied on the promises that their son would be allocated another plot of land and that they had therefore been unduly induced to sign the contract.
20. The applicants appealed.
21. On an unspecified date the applicants tried to obtain free legal aid in the proceedings. By a letter of 23 June 1998 the Polish Bar Association informed the applicants that it was not competent to grant legal aid and that such a request should be addressed to a court. On 29 June 1998 the applicants sent a letter to the President of the District Court in Pruszków requesting free legal aid in the proceedings. On 11 September 1998 the court granted free legal aid to the applicants and on 21 September 1998 it addressed the Warsaw Bar to appoint an advocate for the applicants. Following this decision, on 6 October 1998 the Warsaw Bar Association appointed advocate A.Z. as the applicants' ex officio attorney. Apparently, advocate A.Z. could not represent the applicants. On 3 Nobember 1998 A.Z. informed the court that she did not wish to represent them. The Warsaw Bar Association accepted this argument and discharged A.Z. from the representation of the applicants. On 3 December 1998, the Warsaw Bar Association appointed advocate G.P-R. to represent the applicants. On 31 December 1998 G.P.-R. sent a letter to the Warsaw Bar requesting the Bar to discharge her of her duties.
22. On 7 January 1999 the applicants wrote a letter to the President of the Pruszków District Court in which they complained that despite the court's decision granting them legal aid none of the attorneys appointed so far expressed any interest in their case. In response, the President of the Pruszków District Court instructed the applicants that they should address the Warsaw Bar Association directly. At the same time, the President also undertook to draw attention of the Warsaw Bar Association to the applicants' problem. On 18 January 1999 the applicants wrote to the President of the Warsaw Regional Court. They stated that their case was about to be examined by the secondinstance court for the second time and that they were at a significant disadvantage in comparison with the defendants, the State Treasury, which was represented by a lawyer.
23. On 5 February 1999 the Warsaw Bar Association appointed advocate K.B. to represent the applicants. He met with the applicants in March 1999 and represented them at the hearing held before the appellate court on 25 May 1999. On that date the Warsaw Regional Court issued a judgment dismissing the applicants' appeal. The applicants were informed by that court that a cassation appeal could be filed.
24. After the hearing the lawyer instructed the applicants to take steps in order to have the judgment with its written grounds served on them.
25. On 25 May 1999 the applicants themselves requested the court to serve on them the judgment with its written grounds.
26. On 23 September 1999 the applicants were duly served with a copy of the judgment together with its written grounds.
27. In a letter to the court of 30 September 1999 the applicants complained about certain errors in the judgment. Subsequently, the court corrected certain clerical errors in the written grounds of the judgment and sent it to the applicants by registered post. The applicants did not collect it from the post office.
28. On 23 October 1999 the applicants sent a registered letter to advocate K.B. asking him to indicate when he could be available for consultation or to call them back. There was no reply to this letter.
29. On 22 November 1999 the applicants wrote to the Warsaw Bar Association asking for assistance. They complained that since the date of the hearing before the appellate court they could not reach advocate K.B.
30. On 30 November 1999 the applicants wrote to the President of the Warsaw Regional Court stating that they could not reach their ex officio lawyer and asking for instructions. In response, the applicants were informed that the President of the Court did not have any supervisory powers in respect of ex officio attorneys and that they should contact the Warsaw Bar Association. The President of the Regional Court also stated that he had obliged the President of the Civil Division at that court to draw the attention of the Warsaw Bar to the problem submitted by the applicants.
31. On 23 December 1999 the applicants sent a letter to the Warsaw Bar Association, complaining about the lawyer's failure to contact them and asking for assistance in their case.
32. On 5 January 2000 the applicants sent another registered letter to K.B. asking for urgent contact in view of the impossibility to reach him. They stated that they had unsuccessfully tried to get in touch with him for several months as his cellular phone had been changed and the fixed phone did not reply.
33. On 12 January 2000 the judgment of 23 May 1999 was sent to the lawyer's office by registered post. It was served on K.B. on 21 January 2000.
34. On 27 January 2000 the applicants and the lawyer met at his office. They were informed during this meeting that there were no grounds for filing a cassation appeal in their case.
35. By a letter of 28 January 2000 the applicants informed the President of the Warsaw Regional Court of the meeting held on 27 January 2000. They submitted that K.B. had given them the judgment, had informed them that there were no grounds on which he could lodge a further appeal against it and suggested that they sign a declaration that they wished to give up pursuing the case.
36. On 15 February 2000 they sent a further letter to the Warsaw Regional Bar Association, in which they complained that the legal aid lawyer had met with them “seven months after the termination of the proceedings” and informed them that he saw no grounds to pursue the case any further.
37. On 1 March 2000 the Secretary of the Warsaw Bar Association informed the applicants that K.B. had responded to the charges brought against him in the applicants' complaint lodged on 22 November 1999. According to his explanations, there were no grounds for lodging a cassation appeal in the applicants' case and the applicants had been informed thereof. The Secretary informed the applicants that if an ex officio attorney had found no grounds on which to lodge a cassation appeal, the Bar Association would not appoint another lawyer to do so.
38. Article 45 of the Constitution, insofar as relevant, reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...”
39. Article 17 of the Constitution, insofar as relevant, reads:
“By means of a statute, associations may be created within a profession in which the public repose confidence, and such professional associations shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, public interest.”
40. Pursuant to Article 5 of the Code of Civil Procedure, a court should give all necessary procedural instructions to a party acting without a lawyer and, in particular should indicate the consequences of that party's acts or failures to act.
41. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family's standard of living.
42. Pursuant to Article 117 of the Code, persons exempted from the court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant's case.
43. At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court which terminated the proceedings.
44. Under Article 393 4 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected.
45. Article 393 1 of the Code as applicable at that time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law by its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
46. Article 393 3 specified the requirements of a cassation appeal. It read in its relevant part:
“§ 1. A cassation appeal should include:
1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only;
2) an indication of the grounds for the cassation appeal;
3) arguments showing that its examination would be justified;
4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.”
47. Article 393 4 read as follows:
“A second-instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).”
48. The reasons justifying the examination of a cassation appeal by the Supreme Court could be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part:
“1. The Supreme Court may refuse to entertain the cassation appeal, if:
i) there is no appearance of any significant legal issue in the case,
ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case law,
iii) the appeal is manifestly ill-founded.
2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.”
49. In its judgment of 31 March 2005 the Constitutional Court examined a number of constitutional complaints in which the complainants argued essentially about certain provisions of Article 393 of the Code of Civil Procedure, also insofar as they regulated the conditions that cassation appeals had to comply with.
50. The Court observed, inter alia, that certain terms describing the conditions which cassation appeals had to meet under Article 393 et seq. of the Code (“important legal issue”, “provisions raising serious doubts or causing discrepancies in the courts' case law”, “arguments showing that examination of the cassation appeal would be justified”) were drafted in the broadest terms. It noted that the judicial practice regarding their application had given rise to serious interpretational difficulties and discrepancies in the caselaw of the Polish courts.
51. Article 1 of the Bar Act of 1982, as amended, reads, insofar as relevant:
“1. The Bar is established to provide legal assistance, co-operate in protecting a person's rights and freedoms as well as to formulate and apply the law.
2. The Bar is organized as a self-governing association.
3. An advocate whilst executing his/her professional duties is accountable only to the law.”
52. Article 3 of the Act provides as follows:
“The general tasks of the professional Bar Council are as follows:
1) creation of conditions for the statutory performance of the Bar's tasks,
2) representation of the Bar and protection of its rights,
3) supervision over the observance of the rules regulating the practice of the profession,
4) development of professional skills and training of advocates,
5) determination and promotion of professional ethics and ensuring their observance,
6) management (...) of the Bar's assets.”
53. Article 28 of the Act reads:
“1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council.
2. In cases where legal assistance is granted on the basis legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.”
54. Under Article 21 § 3 of the Act, an advocate shall provide legal aid services in the jurisdiction of a court where he or she has its office.
55. Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by the Bar Association. They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court.
56. Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under legal aid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney terminate the representation, or notify the refusal to the body which appointed him or her.
57. In 2000 the Supreme Court issued a resolution in reply to a legal question whether a legal aid lawyer could refuse to lodge a cassation appeal. It replied to the question in the positive.
58. The court observed that issues involved in the legal aid concerned not only proper administration of justice, but also touched on human rights, and a right of access to a court in particular. Nevertheless, there was no comprehensive and coherent regulation of legal aid available under Polish law.
59. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism. However, a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. In particular, the scope of legal aid lawyers' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. This was so partly because the essential body of law concerning civil procedure had been enacted in 1964, while the provisions on mandatory legal representation for the purposes of the cassation appeal had been introduced in 1996, when this new kind of appeal had been created.
60. As a result, the scope of legal aid lawyers' obligations to provide a party to the proceedings with “legal aid” in civil proceedings was unclear. In particular, the provisions on the lawyers' legal aid obligations in connection with cassation proceedings before the Supreme Court lacked clarity. The court noted that the judicial practice regarding the application of relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts.
61. The court observed that the issue of possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law. It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client's wishes. The role of a legal aid lawyer had rather to be understood as obliging him or her to provide legal advice to the party, including as to the prospects of success offered by a cassation appeal against a given judgment.
62. The constitutional role of the Supreme Court, the highest judicial authority, was also an argument in favour of a conclusion that a legal aid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail. In case of a disagreement between the party and the lawyer, it was open to the party to complain to the local Bar under Article 28 of the Bar Act. The Bar could then appoint a new lawyer who could lodge a cassation appeal, requesting at the same time to be granted leave to appeal out of time under Article 169 of the Code of Civil Procedure. It was true that the practice of the Supreme Court was not coherent in that in some cases it had been rejecting such requests and in other it accepted them. However, it did not prevent the parties from having recourse to this course of action.
63. Pursuant to Article 169 of the Code of Civil Procedure, a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time-limit; this measure shall be performed simultaneously with lodging the request.
64. Article 133 § 3 of the Code of Civil Procedure reads, insofar as relevant:
“3. If a legal representative or a person authorised to receive court correspondence on behalf of a party has been appointed in a case, the court correspondence shall be served on these persons.”
65. Pursuant to the case-law of the Supreme Court, if a party to civil proceedings is represented by a lawyer, the procedural time-limits set by the Code of Civil Procedure start to run on the date of the service of judicial decisions on him or her (III CRN 324/72; I UZ, 65/04).
66. The Council of Bars and Law Societies of Europe has adopted a Code of Conduct in the European Union.
Its Article 1 provides that a lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is his or her duty not only to plead his or her client's case but also to be his or her adviser.
67. A lawyer's function therefore lays on him or her a variety of legal and moral obligations, sometimes appearing to be in conflict with each other, towards the client, the courts and other authorities before whom the lawyer pleads his or her client's case or acts on his or her behalf; the legal profession in general and each fellow member of it in particular; the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society.
68. Pursuant to Article 3.1.2 of the Code, a lawyer shall advise and represent his or her client promptly, conscientiously and diligently.
69. Under Article 3.1.4 a lawyer shall not be entitled to exercise his or her right to withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prejudice being suffered by the client.
70. This recommendation, insofar as most relevant, reads:
“4. No litigant should be prevented from being assisted by a lawyer. The compulsory recourse of a party to the services of an unnecessary plurality of lawyers for the need of a particular case is to be avoided. Where, having regard to the nature of the matter involved, it would be desirable, in order to facilitate access to justice, for an individual to put his own case before the courts, then representation by a lawyer should not be compulsory.”
71. The Recommendation, in its most relevant parts, provides:
“Recalling that in addition to the right of access to the law and to justice provided for in Article 6 of the European Convention on Human Rights, the other provisions of the Convention and particularly Articles 2, 3 and 8 are equally applicable to the very poor, as are the other legal instruments of the Council of Europe such as the European Social Charter;
Considering that this recommendation is intended to improve, especially with regard to the very poor, existing legal advice and legal aid systems, and therefore to complement existing machinery with regard to the other categories of people for which the systems were designed.
Recommends that the governments of member states:
1. Facilitate access to the law for the very poor (“the right to the protection of the law”) by:
[...]
b. promoting legal advice services for the very poor;
[...]
3. Facilitate effective access to the courts for the very poor, especially by the following means:
[...]
c. recognising the right to be assisted by an appropriate counsel, as far as possible of one's choice, who will receive adequate remuneration;
[...]
e. simplifying the procedure for granting legal aid to the very poor, [...]”
72. The Recommendation provides, inter alia:
“The Committee of Ministers, under the terms of Article 15.b of the Statue of the Council of Europe, [...]
Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms; [...]
Considering that access to justice may require persons in an economically weak position to obtain the services of lawyers,
Recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation.
[...]
1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights.
[...]
1. All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers,
2. Lawyers should be encouraged to provide legal services to persons in an economically weak position.
3. Governments of member States should, where appropriate to ensure effective access to justice, ensure that effective legal services are available to persons in an economically weak position, in particular to persons deprived of their liberty.
4. Lawyers' duties towards their clients should not be affected by the fact that fees are paid wholly or in part from the public funds.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-102151
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KÖSE v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: András Sajó;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 4. The applicants İbrahim Halil Köse and Zöhre Köse are Turkish nationals who were born in 1955 and 1927 respectively and live in Şanlıurfa. They are represented before the Court by Mr M. Erkmen, a lawyer practising in Şanlıurfa.
5. On an unspecified date the Ministry of Energy and Natural Resources expropriated several plots of land, namely parcels nos. 155, 193, 157, 195, 27, 150, 171, 135, 203 and 129, belonging to the applicants in the Meteler village of Birecik, in Şanlıurfa, for the construction of the Birecik Dam.
6. In 1996, the applicants commenced proceedings before the Birecik Civil Court for additional compensation for their respective plots. Following the applicants’ requests, the Birecik Civil Court of First Instance awarded them additional compensation plus interest at the statutory rate. However, no interest was awarded for parcels nos. 203 and 129. The Ministry of Energy and Natural Resources appealed and the Court of Cassation upheld the judgments of the first instance court.
7. In February and June 1997 the administration made payments to the applicants of additional compensation. The details regarding the proceedings and payments are indicated in the table below:
8. The relevant domestic law and practice are set out in the cases of Akkuş v. Turkey (9 July 1997, Reports of Judgments and Decisions 1997IV), Aka v. Turkey (23 September 1998, Reports 1998VI), Gaganuş and Others v. Turkey (no. 39335/98, §§ 15-19, 5 June 2001), and Ak v. Turkey (no. 27150/02, §§ 11-13, 31 July 2007).


ITEMID: 001-92427
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: KISSKA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Boris Kišška, is a Slovak national who was born in 1977 and lives in Žilina. He was represented before the Court by Mr M. Klimašovský, a lawyer practising in Žilina. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 8 August 1997 a private entrepreneur initiated proceedings before the District Court in Žilina concerning the payment of a sum of money. The applicant and the plaintiff concluded an agreement under which the relevant title was transferred to the former. The applicant asked the District Court for leave to replace the original plaintiff in the proceedings. On 30 January 2004 the District Court granted the request.
On 10 May 2005 the District Court granted the action. The defendant appealed.
On 13 October 2005 the District Court discontinued the proceedings.
On 20 February 2006 the Court of Appeal quashed that decision.
On 5 September 2006 the District Court discontinued the appeal proceedings as the defendant had failed to pay court fees.
On 7 July 2006 the Constitutional Court found that the District Court in Žilina had violated the applicant’s right under Article 48 § 2 of the Constitution to a hearing without unjustified delay. The case was not complex. The applicant by his conduct had not contributed to the length of the proceedings. However, his predecessor, the initial plaintiff, had submitted only on 3 December 2003 a reply to the District Court’s request of 5 September 2002. The District Court had failed to proceed in an appropriate manner and it was responsible for delays totalling 52 months.
The Constitutional Court awarded the equivalent of EUR 1,300 to the applicant as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant’s legal costs.


ITEMID: 001-5923
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: VAN DEN HOOGEN v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch national, born in 1943 and living in Kerkrade. He is represented before the Court by Mr J.J.M. Goltstein, a lawyer practising in Kerkrade.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died in 1980. At that time, the applicant was employed in Germany. He did not, at that time, apply for a widower’s pension under the Netherlands Widows and Orphans Benefits Act (Algemene Weduwen- en Wezenwet; “AWW”). On 27 October 1980, the applicant had a traffic accident resulting in his becoming incapacitated for work.
In a decision taken on 7 December 1988, the Central Appeals Tribunal (Centrale Raad van Beroep) determined that also widowers were entitled to benefits under the AWW.
On 12 March 1989, the applicant applied for a pension under the AWW and, in its decision of 23 June 1989, the Maastricht Social Insurance Bank (Sociale Verzekeringsbank) awarded him an AWW pension. In accordance with Article 25 § 3 of the AWW, the starting date of the pension was fixed at one year prior to the first date of the month in which the applicant had filed his request for AWW benefits. Although Article 25 § 5 of the AWW provided for the possibility to grant a pension with retroactive effect on grounds of special circumstances, the Social Insurance Bank held that no such circumstances existed in the applicant’s case. Consequently, the applicant was entitled to AWW benefits as from 1 March 1988.
On 22 November 1991, the Social Insurance Bank informed the applicant that it was withdrawing his AWW pension and, on 14 February 1992, issued a decision terminating the applicant’s AWW benefits as from March 1992 under the application of an arrangement according to which his pension would be gradually reduced to nil by reducing it each month with 100 Netherlands Guilders. In view of his personal circumstances he was further not required to repay any benefits already paid to him until that time. The reason given was that, as the law stood at the time of the death of the applicant’s wife, no entitlement under the AWW could arise because the applicant was then employed outside the Netherlands and covered by German social insurance. That being so, his wife was ipso facto excluded from the insurance scheme set up under that Act.
On 6 March 1992, the applicant lodged an appeal against this decision with the Roermond Regional Court (Arrondissementsrechtbank). In its judgment of 7 December 1992 the Regional Court held that the statutory provision at issue was discriminatory and, therefore, contrary to the Netherlands Constitution and Article 26 of the International Covenant on Civil and Political Rights. Although that statutory provision excluded the wife of a Netherlands resident who was employed abroad and covered by foreign social security from the insurance scheme set up under the AWW, it did not so exclude the husband of a Netherlands resident similarly employed and covered. The Regional Court referred obiter dictum to a directive of the Council of the European Communities (79/7/EEC of 19 December 1978), which could not, however, apply directly since it did not cover social insurance payable upon the death of one spouse to the survivor.
On 13 January 1993, the Social Insurance Bank appealed to the Central Appeals Tribunal (Centrale Raad van Beroep), which overturned the judgment of the Regional Court on 2 July 1997, holding that according to its case-law married men could not derive any entitlement from the AWW before 23 December 1984. Although admittedly this placed men whose wives had died before that date in a disadvantageous position, this was due to the fact that married women simply were not insured under the AWW before then. The Central Appeals Tribunal declined to rule as to whether this “[could] be seen as a form of unequal treatment of men and women, or otherwise”.
In the light of a judgment handed down on 26 August 1998 by the Supreme Court (Hoge Raad) in which it was held that employment abroad did not constitute a ground for excluding a married woman from insurance under the AWW, the Social Insurance Bank reconsidered the applicant’s case and decided on 4 May 1999 to withdraw its decision of 14 February 1992 and to award him a AWW pension as from 1 March 1988 as well as interest for the period between March 1992 and May 1999. He was further informed that he could file an objection (bezwaar) against this decision within six weeks. The applicant did not avail himself of this possibility.
The AWW, which has been replaced on 1 July 1996 by the General Act on Surviving Dependents (Algemene Nabestaandenwet), provided for benefits for the widow and child(ren) of a deceased person who was insured under this Act. Under the AWW scheme, all persons residing in the Netherlands and non-residents gainfully employed in the Netherlands were compulsory insured. Contributions to this scheme were paid by all persons gainfully employed in the Netherlands.
AWW benefits were, in principle, granted to widows younger than 65 from whom it could not be expected that they would provide for themselves and, in case there were any, their child(ren) by working. AWW benefits stopped when the widow attained the age of 65. Benefits for children were in principle stopped when they reached the age of 16 but could be prolonged until the age of 27 where the child was studying.
The AWW did not provide for any benefits for widowers. This situation changed on 7 December 1988, when the Central Appeals Tribunal handed down a decision in which it held that also widowers were entitled to benefits under the AWW (Rechtspraak Sociale Verzekering 1989/67).
Entitlement to an AWW pension was not dependent on the level of contributions paid as, contrary to a social security scheme based on employment (werknemersverzekering), it was a general social security scheme (volksverzekering). The level of benefits was linked to the statutory minimum wage.
On 19 December 1978, the Council of the European Communities issued Directive 79/7/EEC concerning the gradual implementation of equal treatment between men and women in the field of social security based on employment, allowing member states a period of six years until 23 December 1984 within which to make any amendments to legislation which might be necessary in order to bring it in conformity with the directive.
Article 93 of the Constitution provides that provisions of international treaties and decisions of international (intergovernmental) organisations which, according to their content, may be binding on anyone shall have binding force after they have been published.
With regard to the prohibition of discrimination, the Netherlands is a party to, inter alia, the Convention, which was ratified by Act of 28 July 1954, and the ICCPR of 1966 which, as regards the Netherlands, entered into force on 11 March 1979. Article 26 of the ICCPR provides as follows:
"All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
The Supreme Court recognised in its judgment of 2 February 1982 (Nederlandse Jurisprudentie (“NJ”) 1982, no. 424 [corrected in NJ 1982, no. 475]), that Article 26 of the Covenant is a provision of an international treaty which, according to its content, may be binding on anyone, and must therefore in principle be applied directly by the Netherlands courts.


ITEMID: 001-78784
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: TAIVALAHO v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Juhani Taivalaho, is a Finnish national who was born in 1946 and lives in Rovaniemi. He is represented before the Court by Ms Kaisa Korpijaakko-Labba, Docent at the Universities of Helsinki and Lappland. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is an owner of real properties Tsahaltsokka Rn:o 34:7 and Aatasalmi Rn:o 34:8 in the municipality of Utsjoki, which lies in Lapland. He acquired the plots of land in 1987 and 1996, respectively. The properties included water areas in the Teno River, which is a border river between Finland and Norway, and its lower course is located in Norwegian territory. The applicant is resident in Rovaniemi, a town situated outside the Teno River valley.
Since 1873 Finland and Norway have concluded treaties on fishing in the fishing area (in Finnish “kalastuspiiri”, in Norwegian “fiskeområde”) of the Teno River. The Treaty currently in force was concluded on 1 March 1989 (Treaty on the Mutual Fishing Regulations regarding the Fishing Area of the Teno River, “the 1989 Treaty”; sopimus Tenojoen kalastuspiirin yhteisestä kalastussäännöstä, överenskommelsen angående gemensam fiskeristadga för Tana älvs fiskeområde; Finnish Treaty Series no. 94/1989), and it was adopted by an Act of 1 December 1989 (Act no.1197/89). The Treaty was accompanied by the Fishing Regulation (kalastussääntö, fiskeristadgan) of Teno River (“the Fishing Regulation”). The 1989 Treaty and the Fishing Regulation were incorporated into Finnish law by an Act enacted according to the order prescribed for the enactment of constitutional legislation. They entered into force on 1 January 1990.
Under Article 1 of the 1989 Treaty its aim is to protect and maintain the natural stocks of anadromous salmonoids (salmon, sea trout and Arctic sea char) and freshwater fishes, so as to preserve local biodiversity and natural productivity. The Fishing Regulation is applicable to those parts of the Teno, Inari and Skietsham Rivers which belong to Finland and constitute part of the border between the two States.
The rights of ownership and the fishing rights in the Teno River are arranged differently in the two countries: the Finnish parts of the Teno River waters are mainly privately owned by partnership of joint owners, and each joint owner of fishing waters is entitled to pursue fishing up to the extent of his share in the joint fishing waters. In Norway, fishing rights are based on the use of land, and the Norwegian parts of the Teno River are owned by the State.
According to the Fishing Regulation persons who have fishing rights in their capacity as owners of the water area and who have a permanent residence in the Teno River valley, are in a privileged position compared to those land owners who live outside the river valley with respect to the price of the fishing licence and the fishing equipment allowed.
In March 1991 the Act on Compensation for the Losses Caused by the 1989 Treaty and by the corresponding Fishing Regulation entered into force (“the 1991 Compensation Act”; laki Tenojoen kalastussääntöä koskevan sopimuksen ja kalastussäännön eräiden määräysten aiheuttamien menetysten korvaamisesta, lag om ersättande av förluster på grund av vissa bestämmelser i överenskommelsen angående fiskeristadgan för Tana älv och i den därtill anslutna fiskeristadgan; Act no. 501/1991). Under the said Act a holder of fishing rights shall be paid full compensation for any losses that are caused by the 1989 Treaty or the accompanying Fishing Regulation and prevent him from using his fishing rights. Corresponding compensation is also paid for losses caused by the previous Treaties.
Apparently a redemption procedure prescribed in the 1991 Compensation Act for the determination of compensation for the losses caused to the applicant was initiated on 30 April 1992 before the Rovaniemi District Survey Office (maanmittaustoimisto, lantmäteribyrån). The procedure is still pending. According to the Government the proceedings were suspended because, inter alia, the shareholder lists for the fishing places outside the reparcelling unit have not yet been confirmed.
On 30 July 1998 the applicant fished with a rod and artificial lure in his waters, without having paid for the fishing licence required for those who were not resident in the Teno River valley.
On 5 February 1999 the public prosecutor preferred charges against the applicant for fishing in violation of the 1989 Treaty, the Fishing Regulation and the Fishing Act (kalastuslaki, lag om fiske) as the applicant had been fishing without a required fishing licence and had used a prohibited lure.
On 3 September 1999 the Lapland District Court (käräjäoikeus, tingsrätt) convicted him of breaching the 1989 Treaty, the Fishing Regulation and the Fishing Act and ordered him to pay five day-fines. It found that the fishing restrictions were not in breach of the applicant’s right to use his property, given that the Fishing Regulation had been adopted in order to safeguard future fish stocks and the rights and culture of the local residents. It further ruled that any losses caused by the fishing restrictions could be compensated under the 1991 Compensation Act.
The applicant appealed to the Court of Appeal (hovioikeus, hovrätt) of Rovaniemi, claiming that the restrictions on fishing based on residence violated his right to use his possessions and his freedom of movement and were furthermore discriminatory. He further alleged that the compensation provided by the 1991 Compensation Act was meaningless as the compensation proceedings had already begun on 30 April 1992 but were still pending.
On 11 June 2001 the Court of Appeal issued its judgment, rejecting the applicant’s appeal. It found that the provisions of the Fishing Regulation and the 1989 Treaty were not in obvious conflict with the Constitution of Finland (Suomen perustuslaki, Finlands grundlag) within the meaning of section 106 of the Constitution, and therefore found that they were applicable. It concluded that the impugned provisions of the 1989 Treaty and the Fishing Regulation did not violate the applicant’s right to use his possessions, nor his freedom of movement.
On 10 August 2001 the applicant applied to the Supreme Court (korkein oikeus, högsta domstolen) for leave to appeal, complaining, inter alia, that the domestic courts had not taken into account the requirements of section 106 of the Constitution, namely the direct applicability of fundamental rights. He further claimed that the 1989 Treaty and the Fishing Regulation had entered into force in Finland before the Convention and thus the said provisions should not have been applied, as they were contrary to Convention rights.
On 18 October 2002 the Supreme Court refused the applicant leave to appeal.
According to the Constitution Act of 1919 (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919) as amended by Act no. 969/1995, which entered into force on 1 August 1995, everyone was to be equal before the law and his or her property was to be protected (sections 5 and 12). A judge or other officer was under an obligation not to apply a provision in a decree which conflicted with constitutional or other Acts of Parliament (section 92, subsection 2). The Convention has been incorporated into Finnish law by an Act of Parliament with the status of ordinary law (Act no. 438/1990).
Chapter 2 (“Basic rights and liberties”) of the Constitution Act has been incorporated as such into the new Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), in force as of 1 March 2000. Equality and property rights are guaranteed under sections 6 and 15. Under the current Constitution a court of law must give precedence to a provision therein if the application of a provision of ordinary law was in obvious conflict with the Constitution (section 106). If a provision in a decree or any other statute of lower rank than an Act of Parliament is in conflict with the Constitution or ordinary law, that provision shall not be applied by a court of law or any other public authority (section 107).
According to Article 1 of the 1989 Treaty its aim is to protect and maintain fish stocks in the Teno River. Under section 2 of the Fishing Regulation anyone who intends to fish on the parts of the Teno, Inari and Skietsham Rivers constituting part of the border between Finland and Norway shall pay a fishing licence before fishing. Persons who live permanently in the river valley shall pay 5 euros (EUR) per calendar year. This also applies to persons who have inherited their fishing rights directly from a person who resided permanently in the Teno River valley. Those who do not have a residence in the river valley shall pay EUR 10 – 35 per day for a fishing licence, depending on the area.
Section 3 prescribes that local residents are also in a privileged position compared to others with respect to the methods they are allowed to use for fishing: they are entitled to use, subject to the restrictions laid down in the Regulation, barriers with bag nets, barriers with baskets, stationary nets, surrounding nets, seines, and rods and lures for catching salmon. Other persons may fish only with rods and lures, with the exception of those who have inherited the fishing rights. Such persons are, irrespective of their permanent place of residence, entitled to use barriers with bag nets, barriers with baskets, surrounding nets, stationary nets and seines.
The Fishing Regulation further prescribes that only boats owned by local residents may be used for fishing.