ITEMID: 001-84373
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LUBOCH v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1+6-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award
JUDGES: Giovanni Bonello;Ján Šikuta;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1956 and lives in Rzeszów.
6. The applicant read law from 1981 to 1986. Subsequently, he did his four-year advocate training and in 1992 he began to practise as an advocate.
7. The applicant submits that from 1984 onwards he had often gone abroad to visit his family and to work.
8. On one occasion, after his return from abroad, the applicant met with his old colleague, W.C., who had offered his help in connection with a letter which had allegedly arrived from abroad and could have caused problems for the applicant. The applicant was not aware that W.C., who claimed to be working as a teacher, was in fact an officer of the Security Service (Służba Bezpieczeństwa).
9. In spring 1987 the applicant became aware of that fact. He then threw W.C. out of his flat and cut off all contacts with him. There were three witnesses to that event, T.L., B.M. and M.S.
10. On 11 April 1997 the parliament passed the Law on disclosing work for or service in the State's security services or collaboration with them between 1944 and 1990 by persons exercising public functions (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) (the “1997 Lustration Act”). Persons falling under the provisions of the Lustration Act, i.e. candidates or holders of public office such as ministers and members of parliament, were required to declare whether or not they had worked for or collaborated with the security services during the communist regime. The provisions of the Act extended to, inter alia, judges, prosecutors and advocates.
11. Following the entry into force of the 1997 Lustration Act the applicant declared that he had not been an intentional and secret collaborator of the communist-era security services.
12. On an unspecified date in 2000 the Commissioner of Public Interest (Rzecznik Interesu Publicznego) applied to the Warsaw Court of Appeal to institute proceedings in the applicant's case on the grounds that he had lied in his lustration declaration by denying his collaboration with the security services. The Commissioner heard W.C. as a witness.
13. On 30 May 2000 the Warsaw Court of Appeal instituted lustration proceedings in the applicant's case. On 5 June 2000 the applicant was informed that the lustration proceedings had been instituted and that he could consult the case file in the court.
14. On 8 May 2001 the court held a hearing partly in camera. It examined some archived classified documents.
15. On 16 June 2001 the court held a hearing partly in camera at which it examined the applicant's personal record (teczka osobowa). The applicant stated that he would not make any statements and would not answer any questions put to him by the court. He requested the court to call W.C. and M.R. as witnesses.
16. The court held hearings in camera on 27 June, 25 September and 25 October 2001. Witness W.C. summoned by the court failed to appear.
17. On 25 October 2001 the Warsaw Court of Appeal, acting as the first-instance lustration court, found that the applicant had been an intentional and secret collaborator with the Security Service and had therefore lied in his lustration declaration. The operative part of the judgment was served on the applicant on 20 December 2001. At the same time, the reasoning was considered “top secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the Court of Appeal's secret registry.
18. On 3 January 2002 the applicant lodged an appeal. He argued that the Court of Appeal's judgment had been primarily based on the statements of W.C. who had not been heard by the court. The court had instead relied on the transcript of W.C.'s statements given before the Commissioner. Those statements had been given without the applicant or his lawyer being present. W.C. was an officer of the Security Service which had allegedly managed the applicant as a secret collaborator.
19. On 16 May 2002 the Warsaw Court of Appeal held a hearing at which it heard W.C. as a witness. The court notified W.C. that the Head of the State Security Bureau (Urząd Ochrony Państwa) had discharged him from the obligation of confidentiality in respect of the subject matter of the proceedings.
20. W.C. was heard again at the hearing held on 18 November 2003. The court refused the applicant's request to call two additional witnesses (M.S. and J.S.) on the ground that their evidence would not be relevant for the determination of the case.
21. On 3 September 2004 the court held a hearing. It refused the applicant's request to call two further witnesses (B.M. and T.L.), considering their evidence irrelevant for the case.
22. On 3 September 2004 the Warsaw Court of Appeal, acting as the second-instance lustration court, upheld the original decision. It appears that the judgment and its reasoning were served on the applicant.
23. On 15 November 2004 the applicant lodged a cassation appeal with the Supreme Court. He submitted, inter alia, that the Court of Appeal had refused to call three crucial witnesses for the applicant whose evidence was to rebut the fact of his alleged collaboration with the security services. The applicant further submitted that the Court of Appeal had disregarded his arguments to the effect that his contacts with W.C. had been of a private nature. He submitted that his contacts with W.C. had not constituted secret and intentional collaboration. He also challenged the fact that he could not consult the file in the proceedings before the Commissioner or adduce any evidence at that stage of the proceedings.
24. On 14 April 2005 the Supreme Court dismissed the applicant's cassation appeal. The applicant was served with the operative part of the judgment. The written reasoning was designated “secret” by the Supreme Court and the applicant could consult it at the Institute of National Remembrance (Instytut Pamięci Narodowej).
25. On 19 May 2005 the President of the Court of Appeal, pursuant to the 1997 Lustration Act, ordered the publication in the Official Law Gazette (Monitor Polski) of the information that according to the Warsaw Court of Appeal's final judgment of 25 October 2001 the applicant had lied in his lustration declaration.
26. Consequently, on 9 June 2005 the President of the Rzeszów Regional Bar Council issued a decision depriving the applicant of the right to practise as an advocate.
27. On 11 November 2005 the applicant requested the President of the Republic of Poland to grant him a pardon. He was informed, however, that a pardon could only be granted in respect of a person who had been convicted of a criminal offence.
28. On 3 August 1997 the 1997 Lustration Act entered into force. The relevant provisions of this Act, in the version in force at the material time, are the following:
Section 3 reads, in so far as relevant:
“1. Persons exercising public functions within the meaning of this law are: the President of the Republic of Poland, deputies, senators ... judges, prosecutors and advocates...”
29. Section 4 provides the following definition of the term “collaboration”:
“1. Collaboration within the meaning of this law is intentional and secret collaboration with operational or investigative branches of the State's security services as a secret informer or assistant in the process of gathering information.
2. Collaboration within the meaning of this law is not an action which was obligatory under the law in force at the material time. ...”
30. Section 6 concerns the obligation to submit a “lustration declaration” (oświadczenie lustracyjne”):
“1. Persons in the categories listed in section 7 of this law shall submit a declaration concerning work for or service in the State's security services or collaboration with these services between 22 July 1944 and 10 May 1990 (hereafter called 'the declaration').”
Section 40 requires such a declaration to be submitted also by those who at the date of entry into force of the 1997 Lustration Act are holding a public function.
31. Section 17 et seq. concerns the office of the Commissioner of the Public Interest. It reads, in so far as relevant:
“1. The Commissioner of the Public Interest (Rzecznik Interesu Publicznego), hereafter called 'the Commissioner', represents the public interest in lustration proceedings.”
Section 17(d) provides, in so far as relevant:
“1. The duties of the Commissioner shall include in particular
i) analysing the lustration declaration submitted to the court;
ii) collecting information necessary for a correct assessment of the declaration;
iii) lodging an application with the court with a view to initiating lustration proceedings;
....
2. In carrying out his duties enumerated in points 1 and 2 above, the Commissioner may require to be sent or shown the relevant case files, documents and written explanations, and if necessary may hear witnesses, order expert opinions or conduct searches; in this respect, and as regards the duties described in section 17(1), the provisions of the Code of Criminal Procedure concerning the prosecutor shall likewise apply to the Commissioner.”
32. Section 17(e) provides:
“The Commissioner, his deputies and the authorised employees of his office shall have full access to documentation and other information sources, regardless of the form in which they were recorded, provided that they were created before 10 May 1990 by
1. The Minister of Defence, the Minister of the Interior, the Minister of Justice, the Minister of Foreign Affairs, or by the services under their authority; or
2. The Head of the State Security Bureau.”
33. Sections 19 and 20 refer to the Code of Criminal Procedure. Section 19 reads as follows:
“Matters not covered by this law and relating to lustration proceedings, including the appeal and cassation phase, shall be governed by the Code of Criminal Procedure.”
The amendment to section 19, which entered into force on 8 March 2002, provides that the proceedings can also be conducted in camera on an application by the person subject to lustration. This provision replaced the one contained in section 21(4), which provided that the court could decide to conduct the proceedings in camera of its own motion or on an application by a party.
Section 20 provides:
“The provisions of the Code of Criminal Procedure relating to the accused shall apply to the person subject to lustration (hereafter called 'the subject').”
34. Section 23 provides for service of the judgment:
“1. The court's judgment, together with the written reasons, shall be served on the parties to the proceedings without delay....”
Section 28, amended with effect from 8 March 2002, provides:
“A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in the Official Law Gazette (Dziennik Urzędowy RP Monitor Polski) if
1) no cassation appeal has been lodged within the prescribed time-limit; or
2) the cassation appeal has been left unexamined; or
3) the cassation appeal has been dismissed.”
35. Section 30 lists the consequences of the judgment for a person subject to lustration who has submitted an untrue declaration. It reads, in so far as relevant:
“1. A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions, described according to the relevant laws as: unblemished character, immaculate reputation, irreproachable reputation, good civic reputation, or respectful of fundamental values. After 10 years the judgment shall be considered to be of no legal effect.
2. A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it.
3. A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of 10 years.”
On 8 March 2002 sub-section 4 was added, which provides:
“The consequences enumerated in sub-sections 1-3 above shall take place if
1) no cassation appeal has been lodged within the prescribed time-limit; or
2) the cassation appeal has been left unexamined; or
3) the cassation appeal has been dismissed.”
36. Article 100 § 5, which concerns delivery of a judgment, provides:
“If the case has been heard in camera because of the substantial interests of the State, instead of reasons notice shall be served to the effect that the reasons have actually been prepared.”
37. Article 156, which deals with access to the case file, in so far relevant provides as follows:
“1. The court files pertaining to a case shall be made available to the parties, their defence counsels, legal representatives and guardians who shall have possibility to obtain copies from them. Other persons may access the case file provided that the president of the court agrees to it.
2. Upon a request from the accused or his defence counsel, photocopies of the documents of the case shall be provided at their expense.
3. The president of the court may on justifiable grounds, order certified copies to be made from the files of the case.
4. If there is a danger of revealing a state secret, inspection of files, making certified copies and photocopies shall be done under conditions imposed by the president of the court or by the court. Certified copies and photocopies shall not be released unless provided otherwise by law....”
38. Section 2 (1) of the 1982 Protection of State Secrets Act (Ustawa o ochronie tajemnicy państwowej i służbowej), which was in force until 11 March 1999, read as follows:
“A State secret is information which, if divulged to an unauthorised person, might put at risk the State's defence, security or other interest, and concerns in particular:
...
2) organisation of the services responsible for the protection of security and public order, their equipment and working methods, and the data enabling the identification of their officers and persons collaborating with the security services...”
39. Section 86 of the 1999 Protection of Classified Information Act (Ustawa o ochronie informacji niejawnych), in its relevant part, provided as follows:
“2. Persons referred to in section 21 (1) [those authorised to sign the document and to assign a confidentiality rating], or their legal successors in relation to documents containing information classified as a State secret, created before 10 May 1990, shall within 36 months from the date of enactment of this Act, review these documents with the purpose of adjusting their current security classification to the classifications provided by this Act. Until then, these documents shall be considered classified under the provisions of paragraph 1 unless otherwise provided by law...”
Appendix No. 1 to the Act provided, in so far as relevant:
“I. Information that can be classified as «top secret»:
21. information concerning documents that make it impossible to establish data identifying officers, soldiers or employees of State bodies, services and institutions authorised to engage in operational activities or on the resources that they use in their operational activities.”
Section 52 (2) of the 1999 Act concerned organisation of the secret registry. It provided in so far as relevant:
“Documents marked “top secret” and “secret” (ściśle tajne i tajne) can be released from the secret registry only if the recipient can secure the protection of those documents from unauthorised disclosure. In case of doubts regarding the conditions of protection, the document can be made available only in the secret registry.”
40. The following are extracts from Parliamentary Assembly of the Council of Europe Resolution 1096 (1996) on measures to dismantle the heritage of former communist totalitarian systems:
“9. The Assembly welcomes the opening of secret service files for public examination in some former communist totalitarian countries. It advises all countries concerned to enable the persons affected to examine, upon their request, the files kept on them by the former secret services...
11. Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph 7, but who nevertheless held high positions in the former totalitarian communist regimes and supported them, the Assembly notes that some states have found it necessary to introduce administrative measures, such as lustration or decommunisation laws. The aim of these measures is to exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now.
12. The Assembly stresses that, in general, these measures can be compatible with a democratic state under the rule of law if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasises the need for an individual, and not collective, application of lustration laws. Secondly, the right of defence, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy.
13. The Assembly thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law, and focus on threats to fundamental human rights and the democratisation process. Please see the "Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law" as a reference text.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-61325
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF HENNIG v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant was born in 1938 and lives in Oberwart/Austria. He is an auditor and tax consultant (Wirtschaftstreuhänder).
10. In December 1989, the Salzburg Tax Office (Finanzamt), in the course of investigations into a large scale fraud relating to the “WEB/IMMAG” group, instituted criminal proceedings against 97 persons, requesting them to submit in writing their comments as suspects.
11. On 14 December 1989 the applicant, who in his professional capacity assisted the “WEB/IMMAG” group, wrote a letter to the Oberwart Tax Office. Therein he asked that his income tax declarations for the years 1985 to 1987 be corrected, so that the losses declared be cancelled, in particular ATS 541,585 for the year 1985; ATS 1 million for 1986 and ATS 220,000 for 1987. He further asked that following a re-calculation of his income, new tax assessment orders be issued.
12. On 27 and 28 December 1989 the Salzburg Tax Office informed the applicant that he was suspected of tax evasion in that he had acted as a sham holder of shares in three cases concerning the years 1985–87. It further invited him to submit his comments in writing.
13. After the applicant's request of 15 January 1990 for an extension of the time-limit had been granted, he submitted his comments on 31 January 1990.
14. Until 29 October 1992 the Salzburg Tax Office for the Audit of Large-scale Companies (Großbetriebsprüfung) examined the “WEB/IMMAG” group.
15. On 22 March 1993 the Salzburg Tax Office requested the Oberwart Tax Office to transmit the applicant's tax file in order to determine the amount of evaded taxes.
16. On 17 May 1993 the Oberwart Tax Office replied to the Salzburg Tax Office that the file could not be transferred because of pending investigations.
17. Following another request for transfer of the file by the Salzburg Tax Office on 23 July 1993, the Oberwart Tax Office, on 24 January 1994, replied that the file had been sent to the Vienna Tax Office for the Audit of Large-scale Companies and could only be transmitted after these investigations had been completed.
18. Upon the Salzburg Tax Office's request of 28 January 1994, the Vienna Tax Office for the Audit of Large-scale Companies transferred the applicant's file on 25 May 1994.
19. On 3 June 1994 the Salzburg Tax Office informed the Salzburg Public Prosecutor's Office of the result of its investigations and requested that the applicant be prosecuted for tax evasion. It noted that the losses declared by the applicant for the years 1985–1989 (ATS 541,585 for the year 1985, ATS 1 million for 1986 and ATS 220,000 for 1987) resulted in tax evasion of ATS 327,016 for the year 1985, ATS 603,552 for 1986 and ATS 148,821 for 1987. Thus, the total amount of evaded taxes was ATS 1,079,389.
20. On 8 August 1994, when interrogated by the Oberwart District Court, the applicant stated that he wished to submit his comments in writing directly to the Salzburg Regional Court by 31 August 1994. On that date and on 30 September 1994, he requested extensions of the time-limit as he had fallen ill. On 27 January 1995 he submitted his comments and observations in writing.
21. On 9 February 1995 the Public Prosecutor's Office preferred a bill of indictment against the applicant charging him with tax evasion of ATS 1,079,389 in that he had made false statements of losses in his income tax forms between 1985 and 1987 (ATS 541,585 for 1985; ATS 1 million for 1986 and ATS 220,000 for 1987). The bill of indictment comprised eleven pages.
22. On 31 March 1995, the presiding judge of the chamber dealing with the applicant's case informed the President of the Regional Court that he considered himself biased since he had been the deputy investigating judge in proceedings against other accused relating to the same case. On 21 June 1995, the President decided nevertheless that the presiding judge should not withdraw from the case.
23. On 4 September 1995 the applicant requested that the trial scheduled for 13 September 1995 be adjourned. This request was granted by the court.
24. On 22 November 1995 the Regional Court convicted the applicant of tax evasion, pursuant to Section 33 § 1 of the Code of Tax Offences (Finanzstrafgesetz). As regards the applicant's argument that he could not be punished because his letter of 14 December 1989 constituted “self-denunciation” of a tax offence resulting in exemption from punishment, the court observed that it had not been made in time because the tax authorities had already discovered the offence, and it had not been sufficiently detailed for the purposes of a “self-denunciation”.
25. On 29 October 1996 the written version of the judgment, comprising twelve pages, was served on the applicant's counsel. Thereupon, on 26 November 1996, the applicant filed a plea of nullity (Nichtigkeitsbeschwerde) and requested that the transcripts of the trial be corrected. On 4 February 1997, after having obtained various statements, the Salzburg Regional Court corrected the transcripts.
26. On 28 May 1997 the Procurator General (Generalprokurator) submitted his observations on the applicant's plea of nullity.
27. On 25 June 1997 the Supreme Court scheduled the hearing on the plea of nullity for 29 July 1997. On that day the Supreme Court dismissed the applicant's plea of nullity. This decision was pronounced orally. On 2 October 1997 the written version of the judgment, consisting of twelve pages, was served on the applicant's counsel.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23156
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: DELI HATZOGLOU v. GREECE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens
TEXT: The applicant, Mr Mehmet Deli Hatzoglou, is a Greek national, who was born in 1956 and lives in Xanthi. The Government are represented by Mr M. Apessos, Senior Adviser at the State Legal Council, and Mr D. Kalogiros, Legal Assistant at the State Legal Council.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, who considers himself a member of the Muslim Turkish minority of Thrace, is a graduate of the Special Academy for Teachers of Thessaloniki. He used to work as a teacher in the minority schools of Thrace. His conditions of employment were no different from those of other civil servants.
On 18 January 1993 the Minority Schools Office of the Prefecture of Rodopi called all the Muslim teachers of the minority schools of Rodopi to attend an educational meeting on 1 February 1993. The aim of the meeting was to present new books for the teaching of the Turkish language, which were to be delivered to the directors of the schools between 2 and 5 February 1993. A similar order was issued on 19 January 1993 by the Minority Schools Office of the Prefecture of Xanthi.
On 26 January 1993 the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement to the effect that the content of these books “was in breach of the autonomy of the Muslim Turkish Minority of Western Thrace” and failed to respect certain international agreements. The Muslim teachers were called upon not to collect these books and the Muslim pupils not to attend school between 1 and 5 February 1993, in order to voice the protest of the Muslim Turkish Minority of Western Thrace.
On 29 January 1993 the Union of Turkish Teachers of Western Thrace issued a statement to the effect that the Turkish schools of Western Thrace would be closed between 1 and 5 February 1993, because the Turkish teachers of Western Thrace were against the Turkish language books which the Greek State intended to distribute to the pupils of the minority schools. The statement also said that all the Turkish Muslim teachers of Western Thrace would participate in the strike. Reference was made to the members of the Union of Teachers of Western Thrace who were graduates of the Special Academy for Teachers of Thessaloniki. The statement specified that all those who felt they were Turkish and who wanted to learn or teach the Turkish language would take part in the boycott.
On an unspecified date, a Muslim religious leader, the mufti of Xanthi, called on the Muslim teachers who felt they were Turkish not to go to the presentation of the books on 1 February 1993.
On 1 February 1993 eleven teachers of the minority schools of Xanthi, including the applicant, signed a statement to the effect that they would not attend the educational meeting in the Minority Schools Office of the Prefecture of Xanthi in order to protest about certain unfair decisions against them concerning their posting, transfer and secondment and their exclusion from training seminars in Thessaloniki and Strasbourg. They specified that they would not carry out their duties between 1 and 5 February 1993.
On 5 February 1993 the Executive Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights.
On 8 February 1993 the Minority Schools Office of the Prefecture of Xanthi decided to institute disciplinary proceedings under Article 206 § 1 of the Civil Servants’ Code against thirteen minority school teachers, including the applicant, for having failed to attend the educational meeting of 1 February 1993.
On 10 February 1993 the Regional Disciplinary Board of Xanthi ordered an inquiry and decided provisionally to suspend the applicant from his duties for a year pending the outcome of the disciplinary proceedings against him.
On 31 March 1993 the Ministry of Education confirmed the decision of the Regional Disciplinary Board of Xanthi regarding the provisional suspension of the applicant from his duties.
On 5 April 1994 the Regional Disciplinary Board of Xanthi issued a decision in which it considered the following:
– Firstly, the applicant had been asked by his superiors to attend the educational meeting of 1 February 1993 but had failed to do so, arguing that attendance at the meeting would have disrupted his relationship with his pupils and their parents and put his personal integrity in danger. However, the Board considered that this excuse was not valid, because the meeting would have taken place in the city of Xanthi far from the applicant’s school area. Moreover, the applicant took part in the strike between 1 and 5 February 1993 complying with the order and appeal of the irregular Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993. He had accused the State of persecuting him. His illegal acts had contributed to creating tension and commotion in the minority community. The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in Western Thrace. Thus, he had become an agent of foreign anti-Greek powers. These facts constituted the following disciplinary offences: not having faith in and dedication to his country (Article 206 § 1–1 of the Civil Servants’ Code), refusing to discharge his duties or employing obstructive tactics (Article 206 § 1–19 of the Code), taking part in a strike in breach of Article 23 § 2 of the Constitution and the relevant legislation (Article 206 § 1–20 of the Code) and intentionally engaging in an act or omission which could damage or endanger the interests of the State (Article 206 § 1–27 of the Code).
– Secondly, the applicant had publicly criticised the Ministry of Education on the ground that the new books were distributed in breach of international agreements concluded by Greece. As a result, he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed a lack of respect or intentionally using unfounded arguments (Article 206 § 1–6 of the above-mentioned Code).
– Thirdly, the applicant had become an organ of irregular committees acting against the interests of the nation. His actions had stirred up trouble in the minority community and had led to the involvement of Turkish newspapers, to tension between the two countries and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools. As a result, the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law (Article 206 § 1–28 of the Code).
The Board was fully satisfied that the applicant “acting in full conscience and with intent and malice, behaving in a manner incompatible with [his] status as a civil servant, acting against the nation and obeying the commands of anti-Greek power structures, aimed at destabilising the region where the situation was until then normal and creating social unrest”. In the light of all the above, the Board decided to dismiss the applicant.
On 7 April 1994 the Prefect of Xanthi ordered the applicant’s dismissal by virtue of Article 12 of Presidential Decree no. 1024/1979. Under that decree, pertaining to the appointment and career of Muslim teachers in the minority schools of Thrace, the Prefect is the competent authority to pronounce the termination of service of Muslim teachers.
On 30 May 1994 the applicant challenged the decision of the Disciplinary Board and the Prefect’s decision before the Supreme Administrative Court. He claimed that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to collect the books in person because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment was aimed at his destruction. He further submitted that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that the Board had not heard a number of witnesses he had proposed. Finally, the applicant argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty.
On 22 June 1995 the Supreme Administrative Court rejected the applicant’s appeal against the decision of the Disciplinary Board of 5 April 1994. The court considered that the inquiry ordered on 10 February 1993 satisfied the requirements of the law and that the Board had not failed to examine any witnesses proposed by the applicant. The court also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of 8 February 1993 by which the disciplinary proceedings had been instituted. The applicant could only be punished for having failed to attend the educational meeting of 1 February 1993. However, the Disciplinary Board and the Supreme Administrative Court remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings. The court considered that the applicant’s failure to attend the meeting of 1 February 1993 in order to participate in a strike between 1 and 5 February 1993 amounted to the disciplinary offence of serious disobedience under Article 207 § 4–10 of the Civil Servants’ Code. The court found that the punishment imposed was appropriate given the circumstances in which the offence had taken place. The court referred in this connection to the statement of 26 January 1993 of the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace, the statement of 29 January 1993 of the Union of Turkish Teachers of Western Thrace and the statement of the mufti of Xanthi which called on all the Muslim teachers who considered themselves Turkish not to attend the educational meeting of 1 February 1993. The court considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above-mentioned statements of organisations which purported to represent the self-proclaimed Turkish minority of Western Thrace. Seen in the light of the above, the applicant’s actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous, albeit unwarranted, disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace.
Finally, the court considered that the decision of the Board was duly reasoned. All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of 1 February 1993, although he had been asked to do so by his superiors. The decision also specified that the applicant had complied with the order and appeal of the irregular Coordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993 (decision no. 3592/1995).
On 4 December 1995 the Prefect of Xanthi revoked his decision of 7 April 1994 and, in compliance with decision no. 3592/1995 of the Supreme Administrative Court, ordered the applicant’s dismissal as from the same date.
On 4 April 1996 the Supreme Administrative Court struck out the proceedings instituted against the Prefect’s decision of 7 April 1994, on the ground that the decision complained of had already been revoked by the Prefect (decision no. 1721/1996).
On 2 December 1997 the Prefect ordered for the third time the applicant’s dismissal.
On 4 March 1998 the applicant appealed against the Prefect’s decision of 2 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by decision of a Prefect was contrary to religious freedom. He further complained that he was not previously heard by the Prefect. The applicant further invoked Articles 6 and 14 of the Convention and 1 of Protocol No. 1.
On 22 March 2000 the Administrative Court of Appeal rejected the appeal (decision no. 80/2000). The court held that, by definition, the Prefect has a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated religious freedom. Moreover, the court held that the Prefect’s decision was aimed at complying with the relevant decisions of the Supreme Administrative Court; therefore, the prior hearing of the applicant was not required. The applicant did not appeal against this decision to the Supreme Administrative Court.
The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant alleges that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further alleges that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims were statute-barred.
On 2 September 1997 the applicant instituted proceedings also before the First Instance Administrative Court of Komotini. On 28 December 2001 the court awarded the applicant EUR 3,965 for pecuniary damage (decision no. 280/2001). The applicant did not appeal against this decision within the sixty days time-limit provided for by the Code of Administrative Proceedings.


ITEMID: 001-95562
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SEFCIKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 5. The applicant was born in 1926 and lives in Prešov.
6. The applicant's mother had a share in a plot of agricultural land. The land is located in the Bardejov area and is registered as plot number 2612.
7. In 1958 the Bardejov local authority (Miestny národný výbor) assigned the “right of use” in respect of the plot to the Bardejov State Property Enterprise (Štátny majetok).
8. The right of use was later conferred on the Bardejov Agricultural Cooperative and, under a 1980 contract on the Bardejov Union of Gardeners.
9. The area where the plot is located was turned into a “garden community” named Kira-Juh and consisting of individual gardens which were put at the disposal of members of the above Union (“the gardeners”). The plot has been used as such a garden area since. It is situated outside the built-up area of Bardejov and it has been entered in the land register as arable land.
10. On 9 October 1995 the Bardejov District Court issued an inheritance decree confirming that the ownership of 6,557.25 square metres of land in the above plot had devolved to the applicant.
11. On 26 March 1997 special legislation on the use of plots of land in allotment gardens and arrangements as regards their ownership (Zákon o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k nim – “Law no. 64/1997”) entered into force (see “Relevant domestic law and practice” below).
12. Pursuant to section 3 of Law no. 64/1997, if no other arrangement has been made between an owner and a tenant of land in a garden community, their relation would become ex lege that of the parties to a lease. The applicant attempted twice to terminate the lease of her land by notice. She argued that, despite her efforts, no fair agreement concerning the use of the plot had been reached and that the statute used for the calculation of the rent in the absence of an agreement was outdated. Moreover, the Union of Gardeners was in any event in default of payment.
13. In 1998 the applicant sued the gardeners before the Bardejov District Court. She claimed that the defendant should be obliged to conclude a lease contract with her and pay 19,671 Slovakian korunas (SKK) as rent. On 2 October 2000 the District Court rejected the action as the defendant, as indicated in the applicant's action, lacked standing in the case. On 14 February 2001 the Prešov Regional Court upheld the first-instance judgment.
14. On 30 October 2000 the Bardejov District Office informed the applicant, with reference to sections 3 and 4 of Law no. 64/1997, that rent payable by the gardeners amounted to 10% of the value of the land, determined pursuant to Regulation 456/1991. In any event, the minimum rent was SKK 0.3 per square metre.
15. In 2000 the gardeners sent SKK 5,208 to the applicant as rent for the period from 1997 to 1999. In 2001 the gardeners paid another SKK 1,736.6 to the applicant as rent for 2000. Those sums correspond approximately to SKK 0.3 per square metre a year.
16. In letters of 9 October 2000 and 9 April 2001 the applicant informed the gardeners that the sums paid were inadequate in view of the actual value of her land and that no agreement had been reached between her and the gardeners as to the lease of the land. It appears from the applicant's submission of 22 August 2006 that between 1996 and 2005 the gardeners had paid to her the overall sum of SKK 15,629 as rent for the use of her land.
17. On 20 November 1998, the gardeners requested that the ownership relations in respect of their gardens be settled in a procedure under section 7(1) of Law no. 64/1997.
18. On 27 September 1999 the District Office formally announced the commencement of a land consolidation procedure in respect of the gardens in question. The announcement contained a register of the original ownership and a surveyor's plan concerning the current state (“the preliminary inventory”).
19. On 26 October 1999 the applicant challenged the preliminary inventory, opposing the consolidation procedure as such and claiming possession of the original plot.
20. The challenge was dismissed by the District Office on 12 January 2000. The administrative authority noted that the gardeners had proposed to buy the applicant's land for SKK 7.5 per square metre and that the applicant had declined that offer in that she had claimed SKK 10. As to the applicant's arguments under the Land Ownership Act 1991, the authority noted that that piece of legislation (and namely section 22(3)) had ceased to be applicable to the land issue following the entry into force of Law no. 64/1997 on 26 March 1997.
21. The applicant appealed. On 4 May 2000 the Prešov Regional Office quashed the District Office's decision on the ground that it had not checked whether there were valid contracts on the use of the land entitling the gardeners to request its transfer under Law no. 64/1997.
22. In a new decision of 25 May 2000 the District Office again dismissed the applicant's objection to the preliminary inventory. It was noted, inter alia, that the applicant had no power to terminate the lease. No agreement had been reached between the owner and the gardeners on the transfer of the land in issue. On the basis of the contracts on use of the land included in the file the District Office was satisfied that the users of the land were entitled to request a consolidation procedure under Law no. 64/1997.
23. The applicant appealed. She claimed that the land should have been returned to her and requested that the rent payable by the gardeners should be determined.
24. On 13 December 2000 the Regional Office dismissed the appeal. The decision stated that the Land Ownership Act 1991 had ceased to be applicable after enactment of Law no. 64/1997. Any outstanding issues concerning the rent of the land fell to be determined by a court.
25. On 12 February 2001 the District Office approved the preliminary inventory. The applicant challenged the approval by an administrative appeal, arguing that Law no. 64/1997 was unconstitutional. She demanded that the consolidation be carried out according to market economy principles.
26. On 30 June 2001 the Regional Office upheld the decision of 12 February 2001. It noted that conformity with the Constitution of Law no. 64/1997 had been already examined and confirmed by the Constitutional Court and that the consolidation procedure had been conducted in compliance with that Act.
27. In a letter of 15 November 2001 the District Office invited the applicant to present her position by stating whether she preferred to be compensated for her title in the plot by being granted a substitute plot or paid an amount of money in lieu. The letter indicated that the applicant owned 5,720 square metres of land in the garden community concerned. The value of the land pursuant to section 11(5) and (6) of Law no. 64/1997 was SKK 3. Given that the land was located in a town which was a spa, the compensation was to be increased by 150% to reach SKK 7.5 per square metre.
28. In response, the applicant rejected the proposed options and reiterated her request for her plot to be restored to her. As to the proposed financial compensation, she objected that it was inadequate.
29. On 20 May 2002 the District Office ruled that the applicant was to be financially compensated for her title to the plot. It was observed that she had made no claim for substitute land in which case, under section 10(3)(a) of Law no. 64/1997, the compensation was automatically to be financial. The decision stated that the applicant owned 5,720 square metres of land in the area concerned and that she would receive SKK 42,900 (that is SKK 7.5, which is equivalent to EUR 0.249, per square metre) in compensation.
30. In November 2002 the District Office informed the land owners of the details of the consolidation project under Law no. 64/1997. On 9 July 2003 the Regional Office dismissed the applicant's objection to the project. On 11 May 2004 the Ministry of Agriculture dismissed the applicant's appeal against that decision. The authorities established that the applicant had claimed that the Land Ownership Act 1991 be applied and that her purchase price should be determined on the basis of its market value.
31. On 10 June 2004 the applicant lodged an action with the Supreme Court in which she challenged the decision of the Ministry of Agriculture. On 30 May 2005 she extended her claim in that she challenged the above Regional Office's decisions of 13 December 2000, 30 June 2001 and 9 July 2003.
32. On 27 October 2005 the Supreme Court discontinued the proceedings concerning the Regional Office's decisions of 13 December 2000 and 30 June 2001 as the action had been lodged outside the statutory two-month time-limit. It dismissed the claim concerning the decision of the Ministry of Agriculture of 11 May 2004.
33. The Supreme Court noted that in her action the applicant had claimed that the contested administrative decisions were unlawful on the ground that the administrative authorities had failed to correctly and reliably establish the relevant facts. The decision stated that the applicant had failed to specify, as required by the law, on the basis of which particular facts she considered the law to have been breached in the proceedings leading to the decision of the Ministry of Agriculture. The applicant rather expressed her disagreement with the land consolidation procedure as such and the amount of compensation offered to her in that context.
34. In the meantime, on 26 October 2004, the Land District Office in Bardejov approved the land consolidation project under Law no. 64/1997. The decision became final on 25 November 2004.
35. On 4 October 2007 the same authority ordered implementation of the land consolidation project pursuant to section 15(1) of Law no. 64/1997. On 4 June 2008 the Regional Land Office in Prešov upheld that decision. It noted that the applicant had challenged the decision of 4 October 1997 without submitting any reason for her appeal. She had merely stated that she had made an application to the European Court of Human Rights. At a later stage the applicant had requested that the administrative authorities should proceed pursuant to the Land Ownership Act 1991 and that the ownership rights in respect of the land should be determined in accordance with the Civil Code.
36. The regional land office noted that in the context of the consolidation proceedings the compensation for the landowners had been determined by a decision which had become final on 25 November 2004. None of the land owners had sought judicial review. Adequacy and form of compensation to be provided to land owners could therefore no longer be addressed in the subsequent proceedings, which concerned the implementation of the consolidation project.
37. On 12 February 2009 a real estate agency issued a certificate, at the applicant's request, according to which the approximate value of the applicant's land is EUR 20 per square metre.
38. On 2 April 2009, at the Government's request, the Forensic Engineering Institute in Žilina submitted an opinion according to which the market value of the applicant's land is EUR 4.31 per square metre. The opinion states that the land is located in the area of the town of Bardejov and that it has not been planned to use it for construction purposes according to the current plans. Furthermore, the land is in a zone of environmental protection of water resources whereby its use for purposes other than gardening is considerably affected.
39. In a reaction to the latter valuation the applicant proposed that the Court should accept that the value of her land was EUR 13.28 per square metre.
40. The relevant domestic law and practice, as well as the general background to consolidation of land used by garden communities, are set out in Urbárska obec Trenčianske Biskupice v. Slovakia, no. 74258/01, §§ 7-13 and 40-80, ECHR 2007... (extracts)).
41. As from 1 November 2004, after Regulation 465/1991 had been repealed (see Urbárska obec Trenčianske Biskupice, cited above, § 64), sections 4(1) and 11(2) of Law no. 64/1997 have provided for the value of the land in the allotments to be determined in accordance with a special law. In particular, section 4(1) has fixed the rent at 10% of its value thus determined. Reference is made to the Land Consolidation Act 1991, as amended. Section 43(2) of that Act empowers the Ministry of Agriculture to issue a binding regulation in that respect.
42. Such regulation was enacted with effect from 15 February 2005 (Regulation 38/2005). In it valuation is based on a scheme of “quality pedo-ecological units” (bonitované pôdno-ekologické jednotky) categorising agricultural land and other areas in Slovakia. Section 1(5) provides that such valuation is applicable also to gardens located outside a municipality's constructed area. The scheme provides for value of agricultural land within a range from EUR 0.0216 to EUR 0.402 (Annex 1). Pursuant to Annex 5, the value of a particular plot is determined by multiplying the unitary value as set out in Annex 1 by its surface area.
43. In addition, the following legal provisions and practice are relevant in the present case.
44. Article 152 § 4 of the Constitution provides that constitutional laws, laws and other generally binding legal regulations are to be interpreted and applied in conformity with the Constitution.
45. Pursuant to Article 154c § 1 of the Constitution, international treaties on human rights and fundamental freedoms which the Slovak Republic has ratified and which have been promulgated in the manner laid down by a law prior to the entry into force of Constitutional Act 90/2001 on 1 July 2001 form a part of its legal order and have precedence over laws where they provide for a broader array of constitutional rights and freedoms.
46. In judgment I. ÚS 36/02 delivered on 30 April 2003 the Constitutional Court, with reference to Articles 152 § 4 and 154c § 1 of the Constitution, held that the Convention and the case-law of its bodies represent binding guidelines for national authorities on interpretation and implementation of legal provisions with a bearing on fundamental rights and freedoms. The Convention and the case-law of its organs thus set a framework which the national authorities could not overstep when dealing with a case. The same view was expressed in its judgment I. ÚS 239/04 of 26 October 2005.
47. On 15 October 2003 the Constitutional Court delivered a judgment in proceedings III. ÚS 138/03. The case concerned alleged flaws in proceedings on implementation of a consolidation project under Law no. 64/1997. In particular, the plaintiff complained that by its decision to discontinue the proceedings concerning lawfulness of the administrative authorities' decisions a court had breached his rights to judicial protection and to own property.
48. The Constitutional Court granted the complaint considering that the court should have dealt with the merits of the case. It returned the case to the ordinary court for further proceedings.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1