ITEMID: 001-60726
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF PINCOVÁ AND PINC v. THE CZECH REPUBLIC
IMPORTANCE: 1
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Gaukur Jörundsson
TEXT: 9. On 29 December 1967 the first applicant and her husband purchased a forester’s house with a barn and cowshed which they had been renting since 1953. The sale price – 14,703 Czechoslovak korunas (CSK) – was fixed by a surveyor appointed by the landlord, a State enterprise which was also the couple’s employer and which had acquired the house without compensating the former owners, who had been dispossessed of their property in 1948 pursuant to Law no. 142/1947 on revision of the First Land Reform (zákon o revizi první pozemkové reformy).
10. On 30 June 1968 the first applicant and her husband paid the vendor CSK 2,030 under the terms of an agreement giving them the right to make personal use of the land attached to the house.
11. On 23 December 1992, after the entry into force of Law no. 229/1991 (zákon o půdě – “the Land Act”), the son of the persons to whom the forester’s house had belonged until its confiscation in 1948 instituted proceedings in the Příbram District Court (okresní soud) seeking recovery of the property by virtue of section 8(1) of the Land Act. He alleged that the acquisition of the house by the first applicant and her husband had been vitiated by a breach of the regulations in force at the time and that they had enjoyed an unlawful advantage in that the price they had been required to pay had been lower than the property’s real value. He argued that the valuation of the house had been neither objective nor compatible with the legislation then in force.
12. In their defence, filed with the District Court on 12 February 1993, the applicants submitted that the purchase price had been properly calculated in accordance with the provisions applicable at the material time, and pointed out that the contract of sale had been adjudged valid by the Příbram branch of the State notary service (státní notářství), which had registered it.
13. On 7 February 1994 the District Court commissioned an expert opinion to establish whether the 1967 valuation had complied with the regulations then in force. The expert’s report was filed with the court on 30 March 1994. In it the expert stated that after studying the file and the 1967 valuation he had found that “this valuation was not entirely compatible with the legislation in force at the time” and that he had “in addition noted instances of underestimation of area”. He had therefore decided to “carry out a complete revaluation, applying the legislation formerly applicable and taking as [his] basis the state of affairs as described in the course of the proceedings” in order to be able to compare the two valuations and quantify the difference between them. The expert report assessed (a) the inhabitable parts of the property and (b) the non-inhabitable parts, namely the barn and cowshed. With regard to the latter, the expert reported:
“... the small barn and the adjoining cowshed were classified as ‘small constructions’, as they served only for the use of the occupier, not for any agricultural activity. That led to an essential difference between the valuation produced ... in 1967 and the present one. My valuation is justified by a written instruction of 1965 relating to Article 7, which provides: ‘The purchase price may also be applied to small constructions used for animal husbandry, provided that this activity does not go beyond the personal needs of the owner and the members of his family.’ The barn is currently used as a toolshed. ... My classification of the two buildings complied with Annex 5 to Decree no. 73/1964 ... I took the barn and cowshed to be possessions in personal ownership, as they were not used for agricultural activities but only for the needs of the owner. If they had been private property the legislation then in force would not have permitted their transfer. Public establishments could sell to individuals only buildings classifiable as properties in personal ownership ... The difference in price for these two buildings, in relation to the 1967 valuation, is nearly CSK 4,600 ...”
14. The applicants pointed out that the expert’s valuation of the inhabitable parts of the premises was practically identical to the 1967 valuation, the difference of CSK 4,600 being solely due to the valuation of the barn and cowshed. They challenged the valuation procedure because it had been based on Decree no. 73/1964, which did not specify the prices applicable in practice to buildings belonging to socialist organisations, and whose Article 7 § 2, they argued, excluded its application to their case. They further submitted that the price difference that had been noted was due in large part to a different assessment of the depreciation to be taken into account for the two buildings in question.
15. After the death of the first applicant’s husband, her son, the second applicant, became the co-owner of the forester’s house.
16. In a judgment of 12 September 1994 the District Court allowed the application by the son of the former owners and decided to transfer title to the disputed property to him, ruling as follows:
“After assessing the evidence, particularly the depositions of the parties and the witnesses, the contract of sale registered by the Příbram State notary service on 3 February 1969, the agreement of 30 June 1968 conferring the right to make personal use of the land, ..., the valuation of the house ... made on 20 December 1967 ..., the expert report of 15 December 1992, drawn up in accordance with instructions from [the first applicant] and admitted by the court in evidence, ..., and the expert report on the price of the buildings, drawn up by the court-appointed expert ..., the Court notes that ... the Land Act (Law no. 229/1991) applies, since the dispute concerns transfer of title to buildings intended for forestry production, within the meaning of section 1(1)(c) of the Land Act ...
The claimant ... is entitled to claim restitution under the restitution legislation ... The members of the defendants’ family were not leading figures of the former communist regime but simple forestry workers who moved into the house as employees of the enterprise. They agreed to buy it when their employer gave them the opportunity to do so because they had no alternative accommodation. As for the purchase price, they accepted the amount fixed by [the surveyor], which they had no reason to challenge.
Nevertheless, it is incontestable that whereas the purchase price of the house should have been fixed at CSK 19,477, it cost them only CSK 14,703. Consequently, the conditions of section 8(1) of the Land Act are satisfied in the instant case because, in 1967, the defendants acquired the property at a price lower than the true value. The difference amounted to a quarter of the true value.”
17. On 11 October 1994 the applicants appealed against the above judgment to the Prague Regional Court (krajský soud). They submitted that at the time when the proposal that they should purchase the house had been made to them they were under threat of eviction. They pointed out that both the surveyor’s report and the contract of sale had been drawn up by the vendor, and that the transaction had been effected in accordance with the legislation then in force – indeed the Příbram State notary service had verified the purchase price before registering the contract. They alleged that the court expert’s report did not constitute sufficient proof that the purchase price had been lower than the price required by the regulations at that time. They accordingly asked the Regional Court to order a new expert report.
18. On 4 January 1995 the Prague Regional Court upheld the first-instance judgment, ruling as follows:
“It emerges from the [1994] expert report ... that the valuation made [in 1967] did not comply with the rules in force at the time. ... The barn and the cowshed should have been valued as buildings in personal ownership, since they were not used for agricultural purposes but had been placed at the disposal of the owners of the house. ... According to Regulation 10/1964 of the Ministry of Economic Affairs ... only buildings in personal ownership could be sold to citizens by a socialist organisation. If the regulation then in force and Decree no. 73/1964 had been applied, the purchase price would have been fixed at CSK 19,477.
Consequently, the Regional Court upholds the District Court’s finding that the question of the transfer of title must be considered under Law no. 229/1991 ... It has been established that the purchase price was determined by the vendor without the benefit of any expert report ... and that it was lower than the price required by the rules on prices then in force, which is apparent from the [court] expert’s report.
As to the appellants’ objection that the contract of sale was registered by the State notary service ... which deemed the barn and cowshed to be buildings in private ownership, it should be noted that this classification was the result of a legal opinion which is not a binding precedent for adjudication of the case ... Moreover, regard being had to the fact that the claimant has already obtained the restitution of 50 hectares of woodland, it is desirable, in accordance with Law no. 229/1991 ..., for the forester’s house to be used for its original purpose.”
19. On 17 March 1995 the applicants appealed to the Constitutional Court (Ústavni soud), submitting that they had purchased the house in accordance with the rules then in force and without any unlawful advantage. They also relied on Article 399 § 2 of the Civil Code, under which a contract of sale could be declared void only when the purchase price was too high. They argued that the Regional Court had deprived them of their property and that accordingly their right to protection of their property under Article 11 § 1 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) had been infringed. They further complained that they had been deprived of fair and appropriate compensation, contending that although by virtue of section 8(3) of the Land Act a natural person was entitled to reimbursement of the purchase price and the costs reasonably incurred for the upkeep of the property, the sum of 14,703 Czech korunas (CZK) for the purchase price and reimbursement of their costs could never make good the loss of the house. They had been deprived of their title to the property on account of the difference noted between two prices calculated according to two different methods. Moreover, in the judicial proceedings they had not been on an equal footing with the other party, particularly in view of the possibility the claimant enjoyed of consulting the relevant documents. In that connection they relied on Article 37 of the Charter.
20. The applicants also asked the Constitutional Court to stay execution of the Regional Court’s judgment and declare null and void part of section 8(1) of the Land Act. They argued that in so far as the provision in question permitted restitution in the event of “the purchase of immovable property at a price lower than the price required by the regulations on prices then in force”, thus threatening title acquired in accordance with the legislation applicable at the time of purchase, it gave former owners the possibility of challenging the valuation of properties made at the time of their transfer. They asserted that section 8(1) of the Land Act thus caused them prejudice identical to that caused between 1948 and 1989, which the Act was supposed to attenuate. They submitted that it was inadmissible to make natural persons who had acquired property in good faith and in accordance with the legislation applicable at the material time bear responsibility for unlawful decisions or incorrect procedures adopted by the State.
21. On 24 April 1995 the applicants asked the District Court to stay execution of the Prague Regional Court’s judgment, to exempt them from payment of the costs of the proceedings and to reopen the case. In the latter application they based their arguments on an opinion on the question of methodology delivered by the author of an exegesis of the relevant legislation published by the Czech Prices Authority (Český cenový úřad), which in their submission proved unequivocally that the court expert had made a mistake. They also submitted to the District Court documents from the State archives capable of proving what use the disputed property had been put to in the past.
22. On 21 April 1995 people living in the municipality of Hříměždice and other villages sent a petition to the President of the Republic and to Parliament expressing their belief that the human rights guaranteed by the Constitution had been infringed in the applicants’ case. They pointed out that the son of the former owners had recovered possession of a large estate (40 hectares of woodland and 100 hectares of other land), whereas the applicants had lost nearly all their possessions, although they had acquired them in good faith.
23. On 20 June 1995, in response to the petition, an MP sent a written question to the Deputy Prime Minister, the Minister of Agriculture and the Director of the Legislation and Public Administration Office, saying that he wondered whether section 8(1) of the Land Act, which provided for the possibility of restitution in the event of “the purchase of immovable property at a price lower than the price required by the regulations on prices then in force”, was not contrary to the principle of legal certainty, in so far as it made it possible to transfer the responsibility for unlawful acts by the State to individuals who had acted in good faith. He also considered problematical, from the point of view of equality between litigants, legal provisions such as section 21(a) of the Land Act, which guaranteed persons who could claim restitution the right to various forms of assistance or exemption from costs in the judicial proceedings.
24. The Deputy Prime Minister replied on 7 July 1995. He said the doubts expressed were unfounded and pointed out that the Land Act had been framed in such a way as to pose, in addition to the general conditions, three additional tests each designed to exclude the purchasers’ good faith. The fact that the Land Act referred to the legislation in force at the time of purchase could not be considered to impair legal certainty on account of some retrospective effect.
25. On 23 August 1995 the District Court examined at a public hearing the applicants’ application for the proceedings to be reopened. Despite a new expert report submitted by them and drawn up on their own initiative, it refused the application, noting, inter alia, that in the original proceedings neither party had called as a witness the expert appointed by the court and that it was only on appeal that the applicants had asked for the expert evidence to be reviewed. Consequently, the statutory conditions for a retrial had not been met in the instant case.
26. On 27 September 1995 the applicants appealed against the above decision, asserting that they had submitted evidence which it would have been objectively impossible for them to present during the original proceedings. On 26 February 1996 the Prague Regional Court upheld the decision of 23 August 1995, holding that there were no facts, decisions or evidence which it would have been impossible for the defendants to rely on in the initial proceedings. However, it gave leave for an appeal on points of law against its ruling.
27. On 11 April 1996, therefore, the applicants appealed on a point of law to the Supreme Court (Nejvyšší soud). They argued that in the proceedings on their appeal against the judgment which had transferred title they had proposed in vain the commissioning of a second expert report and that the Regional Court’s attitude had prompted them to have a new expert report drawn up on their own initiative.
28. On 13 January 1997 the Constitutional Court dismissed the applicants’ constitutional appeal as manifestly ill-founded, ruling as follows:
“The alleged violation of Article 11 § 1 of the Charter of Fundamental Rights and Freedoms must be examined not just from the appellants’ point of view but also from that of the person claiming restitution... The Court refers in that connection to its judgment published under file no. 131/1994 ..., in which it noted that the purpose of restitution was to attenuate infringements of the rights of real-property owners by making reparation for the unlawful act committed at the time of the transfer of the property and by giving priority to the restitution of properties in their original condition. Consequently, the Court cannot find a violation of Article 11 § 1 unless the statutory conditions for restitution are satisfied. ...
The annulment sought by the applicants, of part of section 8(1) of the Land Act (Law no. 229/1991), would have limited the right to restitution and would have harmed the interests of a large number of restitution claimants ... The laws on restitution must establish the conditions for redressing wrongs, it being understood that it is for the national courts to examine all the circumstances in the light of the purport and general object of those laws.
The reporting judge has established, in the light of all the documents submitted, that the ordinary courts correctly applied the law to the case in allowing the claim for restitution and in deciding that title should be transferred to the claimant ..., as the appellant and her husband had bought the house at a price lower than the price resulting from application of the rules on prices then in force.
As regards violation of Article 37 of the Charter, which enshrines the principle of equality between litigants, the Court notes that during the judicial proceedings the courts scrupulously examined both the evidence adduced by the person claiming restitution and the evidence adduced by the defendants. ...
29. On 24 March 1997 the applicants submitted further grounds for their appeal on points of law (dovolání), observing that all the courts dealing with their case, including the Constitutional Court, had proceeded on the assumption that the report of the court-appointed expert was correct, whereas, among other defects, it had been established on the basis of a directive from the Ministry of Economic Affairs which had no legal validity, and that Decree no. 73/1964 was not applicable to the case. They also drew attention to the fact that, according to the second expert report drawn up at their request, the purchase price they had paid in 1967 was not lower but higher than the price required by the legislation in force at the time of the sale.
30. On 28 April 1997 the Supreme Court declared the applicants’ appeal on points of law inadmissible, pointing out that it could have been admitted in the initial proceedings but could not be in proceedings brought by means of an application for a retrial.
31. The applicants were reimbursed by the Ministry of Agriculture the purchase price they had paid in 1967 and the sum they had paid for the right to make personal use of the land. They thus received altogether CZK 16,733. On the other hand, reimbursement of the costs they had reasonably incurred for the upkeep of the house was put off on account of a disagreement between the applicants and the State over the applicable rate. According to the applicants, the State had announced that it was prepared to pay them CZK 156,646 but had never made the slightest payment, in spite of their request that it do so. The amount must therefore be fixed by the District Court, the applicants having brought an action against the Ministry of Agriculture in April 2000 seeking payment in the sum of CZK 364,430.
32. According to the information supplied by the parties, the new owner of the property has not to date offered the applicants alternative accommodation and they still live in the house. They contended that the new owner had refused to sign a tenancy agreement with them in order to regularise the situation but had brought an action in the District Court seeking payment of arrears of rent in the sum of CZK 28,072 (corresponding to more than CZK 900 per month), plus default interest. Apparently this action led on 31 March 2000 to an order to pay being made against them. When they appealed, two hearings were seemingly held on 27 April and 26 June 2000, and the owner, it would appear, is now seeking a still higher sum, corresponding to a rent of CZK 1,200 per month. The applicants observe that the proceedings they brought in April 2000 in order to determine how much they should be reimbursed for the costs they incurred for the upkeep of the property are still pending. They therefore consider that their position vis-à-vis the public authorities is less favourable than that of the new owner.
33. Article 11 §§ 1 and 2 of the Charter of Fundamental Rights and Freedoms provide, among other matters, that everyone enjoys the right of property. Statute law must specify which goods necessary for society’s needs, development of the national economy and the public interest may be possessed exclusively by the State, by municipalities or by legal persons designated therein; it may also make provision for certain goods to be possessed exclusively by citizens or natural persons resident in the Czech and Slovak Federal Republic. Under Article 11 § 3, any abuse of property to the detriment of the rights of others or in conflict with the general interest protected by law is forbidden. Article 11 § 4 provides that expropriation or enforced restriction of the right of property is possible only in the public interest, in accordance with the law and in return for compensation.
34. Under Article 37 § 2 of the Charter everyone is entitled to legal assistance in proceedings before the judicial authorities, other State authorities or the administrative authorities. Article 32 § 1 provides that all parties to judicial proceedings must have the same rights.
35. Section 1(1)(c) of the Land Act provides that the Act is applicable to inhabitable and farm buildings and to constructions, including the land on which they have been built, used for agricultural or forestry production, or for water management linked with such production.
36. Section 4(1) provides that claims for restitution may be lodged only by a national of the Czech and Slovak Federal Republic whose lands, buildings and/or constructions which had formerly been part of an agricultural undertaking were transferred to the State or other legal persons under the conditions set out in section 6(1) between 25 February 1948 and 1 January 1990. Section 4(2)(c) provides that where such a person dies or is declared deceased before expiry of the time-limit laid down in section 13, his or her right to restitution is transferred, on condition of citizenship of the Czech and Slovak Federal Republic, to the following natural persons: in equal shares to the children and spouse of the person referred to in section 4(1); where a child dies before expiry of the time-limit laid down in section 13, his or her children succeed to the right to claim, and if one of them dies the right passes to his or her children.
37. Section 6(b) provides for the return, to persons entitled to claim its restitution, of immovable property transferred to the State or a legal person by confiscation without compensation under Law no. 142/1947 on revision of the First Land Reform or Law no. 46/1948 on the New Land Reform.
38. Section 8, amended by Law no. 195/1993, provides in particular that it is for the courts to decide whether to return a property in the possession of a natural person who acquired it from the State or another legal person in breach of the rules then in force or at a price lower than the price required by the regulations on prices applicable at the material time, or who enjoyed an unlawful advantage at the time of purchase. Section 8(3) provides that the person who is obliged to return a property pursuant to section 8(1) is entitled to reimbursement of the purchase price and the costs reasonably incurred for its upkeep.
39. Section 21(a) provides for exemption from the payment of administrative fees in connection with restitution, exchange of properties or compensation. A person entitled to claim restitution who seeks to assert his right against a person required to return the property concerned does not have to pay court fees. That exemption also applies to persons who seek to assert their rights under section 8. Costs for valuations and for identifying and surveying plots of land are borne by the State.
40. Under section 28(a), and except where otherwise provided, the amount of compensation awarded under the Land Act is fixed in relation to the prices valid on 24 June 1991, as Decree no. 182/1988 applies to the prices of real property.
41. Under Article 712 of the Civil Code, alternative accommodation may take the form of either a compensatory flat or compensatory housing. A compensatory flat means a flat whose dimensions and facilities are such as to guarantee that the tenant and his household can be housed in a manner consistent with respect for human dignity. Compensatory housing means a bed-sitting-room or a room in a hostel for young unmarried persons, or a sublet part, whether furnished or unfurnished, of a flat rented by another tenant. If the tenant is entitled to alternative accommodation, he is not obliged to vacate the flat from which his eviction is sought until he has received appropriate compensation; co-tenants are entitled to only one offer of alternative accommodation.


ITEMID: 001-61834
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF AZIZ v. CYPRUS
IMPORTANCE: 1
CONCLUSION: Violation of P1-3;Violation of Art. 14+P1-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Jean-Paul Costa
TEXT: 9. The applicant was born in 1938 and lives in Nicosia.
10. On 30 January 2001 the applicant applied to the Ministry of the Interior, requesting to be registered on the electoral roll in order to exercise his voting rights in the parliamentary election of 27 May 2001.
11. On 8 February 2001 the Ministry of the Interior refused to enrol the applicant. The Ministry specified that, by virtue of Article 63 of the Constitution, members of the Turkish-Cypriot community could not be registered on the Greek-Cypriot electoral roll. Furthermore, the Ministry informed the applicant that the matter was under consideration by the Attorney-General of the Republic and that he would be informed of any developments.
12. On 27 April 2001 the applicant lodged an application with the Supreme Court against the decision of the Ministry of the Interior. He relied on Article 3 of Protocol No. 1 and submitted that, following the dissolution of the Communal Chambers, the Cypriot government had failed to set up two electoral lists in order to protect the electoral rights of members of both communities.
13. On 23 May 2001 the Supreme Court dismissed the application on the following grounds:
“... The right to vote is directly linked to the communal checks and balances which provide for the compilation of separate electoral lists and for separate elections of the representatives of each community. The ideal of democracy – one person, one vote in the person's place of residence – does not provide any grounds for the Court to assume the power to reform the Constitution. Such competence is not vested in us, nor can the judicial authorities claim such power. This would be against the principle of the separation of powers on which the Constitution is based ...
Article 63 is contained in Part IV of the Constitution, which governs the matters pertaining to the House of Representatives and provides for the compilation of separate electoral lists in which the members of each community are included. The applicant belongs to the Turkish community and is one of the small number of Turkish Cypriots residing in the part of the territory of Cyprus under the control of the Republic of Cyprus. The denunciation by the applicant of the Turkish invasion and his loyalty to the law do not alter what the Constitution provides with respect to the election of the members of the legislative body.
Article 5 of the [Election of Members of the House of Representatives] Law makes the right to vote conditional on the provisions of Article 63 of the Constitution. The applicant admits, as it transpires from his counsel's address, that the proviso to which the right to vote is subject under Article 5, if construed literally, excludes the inclusion in the electoral list of any person other than members of the Greek community in Cyprus. Nevertheless, he suggested that this reservation must be interpreted in the light of the current situation in Cyprus, which renders the compilation of an electoral list of the members of the Turkish community impossible. Given this fact, it had to be surmised that when the House of Representatives enacted Article 5 of the Law it had this situation in mind and the impossibility of compiling an electoral list of the members of the Turkish community. Hence, this justified the interpretation of the reservation contained in Article 5 as referring only to those provisions of Article 63 of the Constitution which were rendered inactive.
Adopting the interpretation of Article 5 proposed by the applicant would amount to it being reworded. The fact that the legislator was apprised of all the facts relating to the situation in Cyprus and chose to place the right safeguarded by Article 5 under the reservation of Article 63, supports the opposite of what the applicant is suggesting; it indicates an intention by the legislature to subject the compilation of the electoral list to the statutory provisions of Article 63. From the wording of Article 5 we conclude that the legislature's intention was to place the right to vote under the reservation of all provisions of Article 63. This conclusion refutes the allegation of the illegality of the administrative decision under appeal.
The second ground on which the applicant's appeal is based is the law of necessity. The necessity of his inclusion in the electoral list ... is derived from the impossibility of compiling an electoral list of the members of the Turkish community. Given this state of affairs, Mr Drakos submitted that the inclusion of the applicant in the electoral list of electors of the Greek community was justified and gave him the right to participate as an elector in the forthcoming parliamentary election. This was justified by the fact that the applicant resided in the areas controlled by the Republic of Cyprus where he operates, having the same rights and obligations as every other citizen. ...
Assessment of the necessity relied on by the applicant and the establishment of measures to deal with it ... is a duty that falls upon the legislature. The competence of the judiciary is limited, provided the matter is submitted to it or arises in a case brought before it, to determining the constitutionality of the law ... It is not for the judiciary to assess the need to fill in gaps in the function of the constitutional statutes nor to establish measures to tackle them, which is basically what the applicant pursues with his application.”
14. Articles 31, 62 and 63 of the Cypriot Constitution provide as follows:
“Every citizen has, subject to the provisions of this Constitution and any electoral law of the Republic or of the relevant Communal Chamber made thereunder, the right to vote in any election held under this Constitution or any such law.”
“1. The number of representatives shall be fifty:
Provided that such number may be altered by a resolution of the House of Representatives carried by a majority comprising two-thirds of the Representatives elected by the Greek community and two-thirds of the representatives elected by the Turkish community.
2. Out of the number of representatives provided in paragraph 1 of this Article, seventy per cent shall be elected by the Greek community and thirty per cent by the Turkish community separately from amongst their members respectively, and in the case of a contested election, by universal suffrage and by direct and secret ballot held on the same day. ...”
“1. Subject to paragraph 2 of this Article every citizen of the Republic who has attained the age of twenty-one years, and has such residential qualifications as may be prescribed by the Electoral Law, shall have the right to be registered as an elector in either the Greek or the Turkish electoral list:
Provided that the members of the Greek community shall only be registered in the Greek electoral list and the members of the Turkish community shall only be registered in the Turkish electoral list.
2. No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of the Electoral Law.”
Article 5 of the 1979 Election of Members of the House of Representatives Law (Law 72/79) provides as follows:
“The right to elect belongs to those who have the qualifications provided for under Article 63 of the Constitution, that is to say citizens of the Republic who have attained the age of twenty-one and have had their ordinary residence in Cyprus for a period of six months immediately before the date fixed by the Minister, by publication in the Official Gazette of the Republic, as the date of acquisition of the electoral qualifications.”
Article 146 of the Cypriot Constitution grants the Supreme Court exclusive jurisdiction to adjudicate finally on applications made to it complaining, inter alia, that a decision, act or omission of any organ, authority or person exercising any executive or administrative authority is contrary to any of the provisions of the Constitution or any law, or is made in excess or in abuse of powers vested in such organ, authority or person.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-3


ITEMID: 001-57455
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1982
DOCNAME: CASE OF CAMPBELL AND COSANS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of P1-2;No violation of Art. 3;Just satisfaction reserved
TEXT: 8. Both Mrs. Campbell and Mrs. Cosans live in Scotland. Each of them had one child of compulsory school age at the time when she applied to the Commission. The applicants' complaints concern the use of corporal punishment as a disciplinary measure in the State schools in Scotland attended by their children. For both financial and pratical reasons, the applicants had no realistic and acceptable alternative to sending their children to State schools.
9. At the time of Mrs. Campbell's application to the Commission (30 March 1976), her son Gordon, who was born on 3 July 1969, was attending St. Matthew's Roman Catholic Primary School in Bishopbriggs which is situated in the Strathclyde Region Education Authority area. In that school, corporal punishment is used for disciplinary purposes, although it was disputed before the Commission and the Court whether it is applied to pupils below the age of 8. The Strathclyde Regional Council had refused Mrs. Campbell's requests for a guarantee that Gordon would not be subjected to this measure. He was, in fact, never so punished whilst at that school, where he remained until July 1979.
10. Mrs. Cosans' son Jeffrey, who was born on 31 May 1961, used to attend Beath Senior High School in Cowdenbeath which is situated in the Fife Region Education Authority area. On 23 September 1976, he was told to report to the Assistant Headmaster on the following day to receive corporal punishment for having tried to take a prohibited short cut through a cemetery on his way home from school. On his father's advice, Jeffrey duly reported, but refused to accept the punishment. On that account, he was immediately suspended from school until such time as he was willing to accept the punishment.
11. On 1 October 1976. Jeffrey's parents were officially informed of his suspension. On 18 October, they had an inconclusive meeting with the Senior Assistant Director of Education of the Fife Regional Council during which they repeated their disapproval of corporal punishment. On 14 January 1977, the day after a further meeting, that official informed Mr. and Mrs. Cosans by letter that he had decided to lift the suspension in view of the fact that their son's long absence from school constituted punishment enough; however, he added the condition that they should accept, inter alia, that "Jeffrey will obey the rules, regulations or disciplinary requirements of the school". However, Mr. and Mrs. Cosans stipulated that if their son were to be readmitted to the school, he should not receive corporal punishment for any incident while he was a pupil. The official replied that this constituted a refusal to accept the aforesaid condition. Accordingly, Jeffrey's suspension was not lifted and his parents were warned that they might be prosecuted for failure to ensure his attendance at school.
In the event, Jeffrey never returned to school after 24 September 1976. He ceased to be of compulsory school age on 31 May 1977, his sixteenth birthday.
12. Under Scottish law, the use of corporal punishment is controlled by the common law, particularly the law of assault. The general principle is that an assault may give rise to a civil claim for damages or to prosecution for a criminal offence. However, teachers in both State and other schools are, by virtue of their status as teachers, invested by the common law with power to administer such punishment in moderation as a disciplinary measure. Excessive, arbitrary or cruel punishment by a teacher or its infliction for an improper motive would constitute an assault. The teacher's power of chastisement, like that of a parent, derives from his relationship with the children under his care and is therefore not in the nature of a power delegated by the State. Thus, the administration of corporal punishment as a disciplinary measure is, subject to the limitations imposed by the common law as described above and to any conditions incorporated in the teacher's contract with the education authority employing him, left to the discretion of the teacher.
13. In the two schools concerned, corporal chastisement takes the form of striking the palm of the pupil's hand with a leather strap called a "tawse". For misconduct in the class-room, punishment is administered there and then, in the presence of the class; for misconduct elsewhere and for serious misconduct, it is administered by the Headmaster, or his deputy, in his room.
The Commission noted that, on the facts of the case, it could not be established that the applicants' children had suffered any adverse psychological or other effects which could be imputed to the use of corporal punishment in their schools.
14. At the time of the events giving rise to this case, the administration of the Scottish educational system was regulated by the Education (Scotland) Act 1962, now repealed and reenacted without material change by the Education (Scotland) Act 1980. Central government formulates general policy, promotes legislation and exercises supervision; the primary responsibility for organising facilities is vested in regional education authorities who are required to secure that "adequate and efficient provision" of school education is made for their area. Section 29 (1) of the 1962 Act provided that "in the exercise and performance of their powers and duties under this Act, the Secretary of State and education authorities shall have regard to the general principle that, so far as is compatible with the provision of suitable instruction and training and the avoidance of unreasonable public expenditure, pupils are to be educated in accordance with the wishes of their parents".
15. Successive Education Acts have empowered the Secretary of State for Scotland "to make regulations prescribing the standards and general requirements to which every education authority shall conform" in discharging its functions. According to the Government, he is not thereby permitted to change the substantive law on a teacher's right to administer corporal punishment, which would require primary legislation. There are, in fact, no statutory provisions governing the use of corporal punishment and the utilisation of this method of discipline is a matter for the discretion of the individual teacher, subject only to the limits set by the common law and to any particular conditions in his contract of employment.
16. Following agreement in principle that the teaching profession should be encouraged to move towards the gradual elimination of corporal punishment as a means of discipline in schools, a consultative body - the Liaison Committee on Educational Matters, on which the Scottish Education Department, the Association of Directors of Education and the teachers' associations were represented - prepared in 1968 a booklet entitled "Elimination of Corporal Punishment in Schools: Statement of Principles and Code of Practice". The Code reads as follows:
"Until corporal punishment is eliminated its use should be subject to the following rules:
(i) It should not be administered for failure or poor performance in a task, even if the failure (e.g., errors in spelling or calculation, bad homework, bad handwriting, etc.) appears to be due not to lack of ability or any other kind of handicap but to inattention, carelessness or laziness. Failure of this type may be more an educational and social problem than a disciplinary one, and may require remedial rather than corrective action.
(ii) Corporal punishment should not be used in infant classes. Its elimination from infant classes should be followed by progressive elimination from other primary classes.
(iii) In secondary departments, only in exceptional circumstances should any pupil be strapped by a teacher of the opposite sex or girls be strapped at all.
(iv) Corporal punishment should not be inflicted for truancy or lateness unless the head teacher is satisfied that the child and not the parent is at fault.
(v) The strap should not be in evidence, except when it is being used to inflict corporal punishment.
(vi) Where used, corporal punishment should be used only as a last resort, and should be directed to punishment of the wrong-doer and to securing the conditions necessary for order in the school and for work in the classroom.
(vii) It should normally follow previous clear warning about the consequences of a repetition of misconduct.
(viii) Corporal punishment should be given by striking the palm of the pupil's hand with a strap and by no other means whatever."
17. The above-mentioned booklet, whose issue was welcomed by the Secretary of State of Scotland, was sent to all education authorities in February 1968. The code of Practice, which was reissued in 1972, has no statutory force; however, the courts might be expected to have regard thereto in civil or criminal proceedings concerning an allegedly unlawful use of corporal punishment, and failure to observe it might be relevant in disciplinary proceedings.
The authorities take the view that, within the guidelines set by the Code, it is for the teachers in each school to determine the disciplinary measures needed in the school. The Code is not incorporated into the contracts of employment of teachers in the Strathclyde or Fife Education Authority areas, although they have been recommended to abide by it.
18. In 1974, the Secretary of State for Scotland appointed an independent committee of inquiry ("the Pack Committee") to investigate indiscipline and truancy in Scottish schools. The Committee, which reported in 1977, was of the opinion "that corporal punishment should, as was envisaged in 1968, disappear by a process of gradual elimination rather than by legislation".
The Government remain committed to a policy aimed at abolishing corporal punishment as a disciplinary measure in Scottish schools, but they take the view that that policy is best implemented by seeking to secure progress in this direction by consensus of all concerned rather than by statute. A working group established in 1979 by the Convention of Scottish Local Authorities has been considering, inter alia, the introduction of alternative sanctions and there are, in fact, some schools in which the use of corporal punishment has ceased or will soon be abandoned. However, its continued use by teachers is apparently, according to a recent opinion survey, favoured by a large majority of Scottish parents and, according to the Pack Committee's report, by pupils, who even prefer it to some other forms of punishment.
19. Under regulation 4 of The Schools General (Scotland) Regulations 1975, an education authority may exclude a pupil from school if "the parent of the pupil refuses or fails to comply, or to allow the pupil to comply, with the rules, regulation or disciplinary requirements of the school".
Under section 35 of the 1962 and of the 1980 Education (Scotland) Acts, if a child fails "without reasonable excuse" to attend school regularly, the parent is guilty of an offence; unless the court otherwise determines, a child is deemed to have so failed if he has been required to discontinue his attendance on account of "his parent's refusal or failure to comply" as aforesaid.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-59762
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF E.H. v. GREECE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - financial award
JUDGES: András Baka
TEXT: 7. The applicant is a Greek national, born in 1963 and living in Veroia (Greece).
8. The applicant graduated in 1991 from the Faculty of Humanities of the University of Bari (Italy) with a Bachelor’s Degree in Literature. On 20 June 1991 he submitted his degree to DIKATSA, a public body empowered to award to Greek students recognition of diplomas obtained from foreign schools and Universities. On 14 October 1991 the committee of history and archaeology of DIKATSA examined the degree and proposed to recognise it as equivalent to a Greek degree. However, the committee considered that the applicant should take part in fourteen supplementary examinations. On 9 July 1992 the committee of classical literature of DIKATSA decided that the applicant should take eighteen supplementary examinations. On 30 July 1992, the Chairman of the Board of Directors of DIKATSA considered the degree as equivalent to a Greek degree but not fully corresponding to such a degree and, accordingly, invited the applicant to take nine supplementary disciplines. On 4 December 1992 the applicant introduced an application for review of the decision of 30 July 1992, but on 25 May 1993 DIKATSA reiterated its refusal to recognise the applicant’s degree and invited him to sit eighteen supplementary examinations (decision N° 11/55/93).
9. On 24 April 1995 the applicant applied to the Supreme Administrative Court asking it to set aside decision No. 11/55/93 of DIKATSA. He also requested the Supreme Court to refer to the Court of Justice of the European Communities the prejudicial question of Community law raised by the case. He alleged that the above-mentioned decision was not taken in conformity with Council Directive 89/48/EEC of 21 December 1988 setting up “a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration”; in particular, he stressed that the Greek State had not yet taken the necessary measures to comply with the Directive although two years had elapsed since its notification to the member States of the EEC. He also maintained that following that decision, it was impossible for him to find a job or to work in a public school because he did not meet any longer the condition of the age limit.
10. The Supreme Administrative Court fixed the date of the hearing on 24 September 1996. On that date, the hearing was adjourned ex officio and the case was referred to an enlarged formation of the Chamber because of its major importance. Then the Chamber set down the hearing for 7 October 1996 but on that date three more actions aiming at setting aside decisions of the DIKATSA having the same subject-matter with that concerning the applicant were introduced before the same Chamber. The hearing was thus adjourned until 13 January 1997. However, the Chamber decided to relinquish jurisdiction in favour of the Plenary for the three new cases and, accordingly, the hearing in the applicant’s case was adjourned again until 17 March 1997, 2 June 1997, 1 December 1997, 6 April 1998, 1st June 1998 and 7 December 1998.
11. On 20 May 1994 the applicant had introduced an action for damages before the First Instance Administrative Court of Veroia. He claimed a substantial amount for the pecuniary damage he had suffered as a result of the omission of the State to implement Directive 89/48/EEC and alleged that the amount sought corresponded to the loss of income he would have earned if he had been able to work as a teacher in a private school. The hearing was listed for 24 September 1996. However, on that date the Administrative Court adjourned the consideration of the case due to the parliamentary elections. A new hearing date was fixed on 21 July 1997 but the hearing was adjourned by agreement of both parties awaiting the Supreme Administrative Court’s judgment. On 29 September 1997, 17 March 1998 and 24 November 1998 the Court adjourned again the examination of the action.
12. On 11 January 1999 the Supreme Administrative Court rejected the abovementioned application because the applicant was not represented by a lawyer at the hearing. The judge rapporteur had, however, proposed to have the decision of the DIKATSA set aside for lack of reasoning.
13. The hearing before the Administrative Court of Veroia took place on 22 June 1999. In its judgment of 24 September 1999 the Administrative Court declared that it was incompetent to deal with the case and referred it to the Administrative Court of Athens, on the ground that the competent administrative authorities which allegedly omitted to take the necessary measures to comply with the European Communities directives and amend the relevant legislation in matters relating to recognition of degrees had their seat in Athens.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-100287
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GEORGIEVA AND MUKAREVA v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of P1-1
JUDGES: Georgieva;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 6. The applicants were born in 1935 and 1957 respectively and live in Varna. They are mother and daughter.
7. In 1985 the first applicant and her husband bought from the Varna municipality an apartment of 54 square metres, situated in the centre of the city, which had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria after 1945.
8. On an unspecified date after that the first applicant's husband died and his property was inherited by the two applicants.
9. In February 1992 the Restitution Law entered into force.
10. On 8 July 1992 one of the heirs of the former pre-nationalisation owner of the flat brought proceedings against the applicants under section 7 of the Restitution Law. In a final judgment of the Supreme Court of Cassation of 7 July 1997 the action was allowed partially, the domestic courts finding that the plaintiff could only claim half of the property.
11. The courts found that the applicants' title over half of the property was null and void on two grounds: 1) their apartment had been part of a bigger apartment, which had, prior to 1985 and in breach of the relevant construction requirements, been divided by the State into two; and 2) the area where the apartment was located had been earmarked for the construction of buildings of more than three storeys and the applicants' building was of two storeys; the relevant legislation at the time prohibited the sale of apartments in such buildings.
12. On 20 November 1998 the applicants requested to be compensated with compensation bonds for half of the property. The request was granted and in January 2003 the applicants received bonds for 10,300 Bulgarian levs (BGN), the equivalent of approximately 5,280 euros (EUR), in accordance with an expert valuation of a half of their apartment drew up in 2001 or 2002. On 25 November 2004 the applicants sold their bonds for approximately 50% of their face value and received BGN 5,145, the equivalent of EUR 2,640.
13. In the meantime, on 8 December 1997, following a legislative amendment whereby the time-limit to bring an action under section 7 of the Restitution Law was renewed, the remaining heirs of the former pre-nationalisation owner brought such an action against the applicants regarding the second half of the apartment.
14. The action was granted in a final judgment of the Supreme Court of Cassation of 14 July 2004. Putting forward arguments identical to the ones concerning the first half of the apartment (see paragraph 11 above), the courts found that the applicants' title to the second half of the property was likewise null and void.
15. The applicants did not apply for compensation bonds for that half of the apartment, as they were entitled to.
16. On several occasions after 1997 the first applicant requested to be provided with municipal housing but was informed that no such housing was available. By 2003 the two applicants and the second applicant's family were still living in the disputed flat. In December 2003 they vacated it and rented another apartment. In 2004 the second applicant bought another flat and her family and the first applicant moved in there.
17. The relevant background facts and domestic law and practice have been summarised in the Court's judgments in the cases of Velikovi and Others v. Bulgaria (nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007) and Tsonkovi v. Bulgaria (no. 27213/04, §§ 14-15, 2 July 2009).


ITEMID: 001-58173
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF MAILLARD v. FRANCE
IMPORTANCE: 3
CONCLUSION: Art. 6-1 inapplicable
JUDGES: John Freeland
TEXT: 6. The applicant was born in 1946 and lives at Saint-Germain-en-Laye (département of Yvelines). He is an officer in the French navy.
7. On 2 December 1983 Mr Maillard caused to be entered in the complaints register of the fleet escort ship D’Estrées the following application for reconsideration of his assessment for 1983:
“…
I … learnt that at senior level and at supreme level my marks had been significantly reduced: for the criterion ‘standard of service’ the mark had been lowered from 3 to 4 and for the criterion ‘promotion’ from B to C+, the whole being accompanied by the following written appraisal: ‘Is not up to the level that should be achieved by a second in command’ (or, within a word or two, a very similar expression). To this day I have been given no explanation of this reduction in marks or of what prompted such a statement.
I consider that this appraisal is excessively severe, unjust and personally offensive. I would refer in this connection to the appraisal made by Commander Gazzano, the assessor at immediate-superior level, to the smooth running of the ship during the period on which my assessment was based and to the responsibility I bear under the rules for that smooth running, and, lastly, to the good performance of the D’Estrées during the general inspections of 1982 and 1983, attested by the messages of congratulations sent by the admiral commanding the Mediterranean fleet on those occasions.
Furthermore, the appraisal calls in question the wisdom of the decisions of those of my superiors who on two occasions saw fit to appoint me to a second-in-command post and the appraisals made by the various commanding officers who assessed me as their second in command.
I accordingly have the honour to request that
(1) the sentence ‘Is not up to the level that should be achieved by a second in command’ should be deleted. It is an appraisal made not of the standard of my performance which is meant to be the subject of the assessment, but of my person, in a manner which casts a slur on my honour as it is offensive;
(2) the criteria 39, 40 (standard of service and promotion) and consequently 44 and 46 (promotion and ‘class’ at supreme level) should be raised in consequence, given the implied meaning of the sentence complained of in regard to the level of my service and my promotion potential; and
(3) once my marks at senior and supreme level have been reassessed, given the effect that my 1983 assessment may have under the current rules, on the introductory memorandum submitted by the Naval Service Personnel Department for the competitive examination for entry to the National Naval Warfare College, it should be considered whether that reassessment is not such as to justify reconsideration of my failing that examination.”
8. On 16 February 1984 the Navy Chief of Staff dismissed the complaint. In a letter of the same date he informed the Commander-in-Chief for the Mediterranean of the fact and requested that the applicant should be notified of it.
9. On 3 February 1984, having still not received any reply, the applicant had sent his complaint to the Minister of Defence; it was dismissed in a decision taken by the Minister on 9 April 1984.
10. On 18 April and 6 July 1984 Mr Maillard applied to the Conseil d’Etat for judicial review of those two decisions. He filed supplementary pleadings on 17 and 29 August 1984.
11. In a judgment of 20 July 1988 the Conseil d’Etat quashed the decision containing the applicant’s assessment for 1983 and the decisions of 16 February and 9 April 1984. It gave the following reason:
“It is unnecessary to consider the grounds of the applications.
According to the provisions of section 25 of the Law of 13 July 1972 making general regulations for service personnel, as amended by the Law of 30 October 1975, ‘service staff shall be assessed at least once a year. The marks and appraisals shall be compulsorily communicated to the service personnel each year. When the assessment is made, the chief shall make known to each of his subordinates his appraisal of each individual’s performance’. The same Law provides in section 107 that implementing provisions shall be laid down in decrees adopted after consultation of the Conseil d’Etat. Similarly, under section 3 of the Law, the special rules governing professional service personnel must be laid down in a decree adopted after consultation of the Conseil d’Etat.
… Mr Maillard’s assessment for 1983 was drawn up according to the procedure of assessment at several successive levels of authority and to an assessment scale laid down in the ministerial directive of 1 February 1980 concerning the assessment of naval officers. That directive laid down new general rules which govern the implementation of the Law and which could therefore only have been lawfully laid down by a decree adopted after consultation of the Conseil d’Etat. It follows that the impugned decision containing Mr Maillard’s assessment for 1983, together with the decisions whereby the Navy Chief of Staff and thereafter the Minister of Defence refused to revise the assessment, decisions made under rules issued by an authority lacking the necessary competence, are unlawful…”
12. On 12 September 1988 Mr Maillard sent the following letter to the admiral superintendent of Cherbourg naval dockyard:
“I have the honour to ask you to kindly forward to the higher authorities the present letter in which I am seeking
(1) pursuant to the Conseil d’Etat’s decision [of 20 July 1988], to have my assessment for 1983 removed from my personal file;
(2) to be assessed for that same year 1983 in accordance with the legal requirements;
…
(3) given the substantial damage I have suffered by reason of the impugned assessment, which is evident to me, inter alia, from the fact that since the year in question I have not been given any post of responsibility at sea (command or second in command), to have my career retrospectively adjusted as laid down in the Conseil d’Etat’s case-law.”
13. On 15 December 1988 the Navy Chief of Staff decided to remove the impugned assessment from the applicant’s personal file, to draw up and add to that file a new assessment for 1983 identical with the first one and to refuse the application for retrospective adjustment of career. On the latter point the Chief of Staff considered that “the development of [the applicant’s] career [had] not been affected by the formal irregularity impugned by the Conseil d’Etat, an irregularity which [had] not, in particular, had the consequence of placing this senior officer in circumstances different from those in which the other officers competing with him [found] or [might] have found themselves”.
14. Mr Maillard complained to the Report and Research Division of the Conseil d’Etat about the difficulties he considered he was encountering in having the judgment of 20 July 1988 executed.
On 17 February 1989 the Deputy General Rapporteur replied that the administrative authorities had in fact drawn the appropriate conclusions from the judgment setting aside the first assessment for 1983 and that if he wished to challenge the lawfulness of the decision of 15 December 1988 on its merits, he would have to apply to the Judicial Division of the Conseil d’Etat.
15. On 20 February 1989 the applicant applied to the Conseil d’Etat for judicial review of the decision of 15 December 1988 and, consequently, of the one of 13 December 1988 establishing the table of command posts for 1989. He produced supplementary pleadings on 19 June 1989.
On 19 February 1990 Mr Maillard lodged another application seeking judicial review of a decision of 14 December 1989 establishing the table of command posts for 1990 and an order that the State should pay him the sum of 10,000 French francs (section 75-1 of Law no. 91-647 of 10 July 1991).
16. The Minister of Defence filed his defence on 27 September 1990. The applicant replied on 18 November 1990 and produced fresh documents on 22 December 1990.
17. The reporting judge was appointed on 9 July 1993 and submitted his report on 18 October 1993.
18. A preparatory sitting was held on 18 February 1994 and the hearing took place on 9 March 1994.
19. In a judgment of 8 April 1994 the Conseil d’Etat quashed the decision of 15 December 1988 on the following ground:
“It is unnecessary to consider the other grounds…
… under Article 3 of the decree of 31 December 1983 on the assessment of service personnel, adopted pursuant to the Law [of 13 July 1972, as amended, making general regulations for service personnel], ‘service personnel shall be assessed at one or more levels by the authorities to which they are subordinate’. That decree did not come into force until 1 January 1984.
It appears from the evidence that while Mr Maillard’s new assessment for 1983 was drawn up according to the procedure of assessment at several successive levels provided for in Article 3 of the decree of 31 December 1983 on the assessment of service personnel, that decree was not applicable to assessments drawn up for 1983. Moreover, no other provision of service regulations provided for the implementation of such a procedure for 1983. The applicant is accordingly justified in seeking to have his assessment for 1983 quashed. Furthermore, the administrative authorities could not lawfully refuse him retrospective adjustment of his career without undertaking a fresh review of his position and his merit.”
The applicant’s other claims were dismissed.
20. On 16 August 1994 the Director of Naval Service Personnel reinstated the assessment drawn up in 1983.
21. In a letter of 21 September 1994 the applicant informed the Report and Research Division of the Conseil d’Etat of the difficulties he considered he was encountering in levying execution of the judgments of 20 July 1988 and 8 April 1994. On 14 December 1994 the Deputy General Rapporteur replied as follows:
“…
After interventions by the Report and Research Division of the Conseil d’Etat the Department of Naval Service Personnel informed me in a letter of 25 October 1994 that your position would be re-examined by the advisory board provided for in section 41 of Law no. 72-662 of 13 July 1972. That board met at the beginning of November and did not agree to a revision of your assessment that would have enabled your superiors to adjust your career retrospectively if appropriate.
That being so, seeing that your assessment for 1983 and your career position have been reviewed and a fresh individual assessment decision has been taken by the Naval Personnel Department, the Report and Research Division considers that the authorities have taken the necessary measures to execute the Conseil d’Etat’s judgment [of 8 April 1994].
That being so, I can only close your file, without prejudice to the rights you might again have occasion to assert before the Judicial Division of the Conseil d’Etat.
…”
22. On 21 November 1994 Mr Maillard applied to the Conseil d’Etat seeking, firstly, judicial review of the assessment drawn up on 16 August 1994 and, secondly, an order for full discovery of a 1983 report on his assessment.
On 27 February 1995 he lodged another application, in which he sought judicial review of two decisions taken by the Minister of Defence on 20 December 1994 establishing, firstly, the promotion table for 1995 and, secondly, the table of command posts for 1995.
23. The hearing took place on 21 February 1996, and in a judgment of 25 March 1996 the Conseil d’Etat quashed the assessment of 16 August 1994 on the following grounds:
“…
In a decision of 20 July 1988 the Conseil d’Etat, acting in its judicial capacity, quashed the decision of 25 June 1983 whereby Mr Maillard’s assessment for 1983 was determined, on the ground that the assessment had been drawn up according to the procedure of assessment at several successive levels and to an assessment scheme, both of which (the procedure and the scheme) had been laid down in a ministerial directive of 1 February 1980, setting out general rules, which by sections 3 and 107 of the Law of 13 July 1972, as amended, must be enacted in a decree adopted after consultation of the Conseil d’Etat. In a decision of 8 April 1994 the Conseil d’Etat, acting in its judicial capacity, quashed the decision of 15 December 1988 whereby Mr Maillard’s assessment for 1983 was redetermined, on the ground that the assessment had been drawn up according to the procedure for assessment at several successive levels which was provided for in Article 3 of the decree of 31 December 1983 on the assessment of service personnel, although that decree was not applicable to assessments drawn up for 1983 and there was no provision in general regulations for the implementation of such a procedure for 1983. Following the quashing of those decisions, it was for the Minister of Defence to take the necessary measures to ensure that Mr Maillard was retrospectively assessed for 1983 under the rules then applicable. In the absence of a decree adopted after consultation of the Conseil d’Etat as provided in the Law of 13 July 1972, as amended, it was for the commanding officer of the D’Estrées in 1983, the ship on which Mr Maillard performed the duties of second-in-command, to make that assessment and, if appropriate, for the assessed officer to appeal to a higher authority. Only if it had been impossible to carry out that exercise for factual or legal reasons could the administrative authority have lawfully reviewed Mr Maillard’s performance for 1983 in the sole light of all the information in his file which concerned the assessment period.
…[W]ithout ascertaining whether it was possible to have Mr Maillard’s assessment carried out afresh by the commanding officer of the D’Estrées in 1983, the Director of Naval Personnel, instead of making a fresh assessment of the qualities of the assessed officer for the period in question, did no more than reproduce in full the quashed assessments which had been drawn up by means of a procedure entailing several successive levels of authority, a procedure that had been censured in the aforementioned decisions of the Conseil d’Etat. The impugned decision of 16 August 1994 was accordingly unlawful and must be quashed, without its being necessary to order discovery of the [report of the] inquiry by commanding officers as sought by Mr Maillard.”
The applicant’s other claims were dismissed.
24. In the meantime the assessment complained of had been revised on the basis of reports made in 1983 by the commanding officer of the D’Estrées and signed by him.
25. On 15 November 1995 the Director of Naval Service Personnel had informed the applicant that the Promotions Advisory Board had reconsidered his file and delivered the following opinion:
“After making a fresh annual assessment of Commander Maillard for 1983 and looking at the effect of that new assessment on his total marks, the Advisory Board finds that the assessment did not have any bearing on his subsequent career and that a retrospective adjustment of his career is not justified.”
26. On 2 February 1996 the applicant had applied to the Conseil d’Etat for judicial review of the decision of 15 November 1995 whereby his application for retrospective adjustment of his career had been refused and of decisions of 20 and 21 December 1995 establishing the promotions table for 1996 and the table of command posts for the same year respectively.
On 15 November 1996 the President of the Seventh Section of the Judicial Division of the Conseil d’Etat made an order striking out the proceedings, on the ground that Mr Maillard had failed to produce within the statutory time the supplementary pleading he had announced in his application.
27. Service personnel are not subject to the “Central and Local Government Service Code” but to the “General Regulations on Service Personnel” (Law no. 72-662 of 13 July 1972, as amended).
28. Section 25 of the Law of 13 July 1972, as amended, provides:
“Service personnel shall be assessed at least once a year.
The marks and appraisals shall be compulsorily communicated to the service personnel each year.
When making the assessment the chief shall make known to each of his direct subordinates his appraisal of each individual’s performance.”
The Law provides in section 107 that the regulations for its implementation are to be laid down in a decree made after consultation of the Conseil d’Etat. The decree relating to assessment was made on 31 December 1983 (Decree no. 83-1252, which came into force on 1 January 1984); Article 2 provides:
“Assessment is an evaluation by the immediate superior of the serviceman’s moral, intellectual and professional qualities, his physical fitness, his performance during a given period and his ability to occupy higher posts in the immediate future and thereafter.
It takes the form of
General reports;
Merit levels or marks determined according to a scale or marking scheme respectively, laid down for each service or attached formation in the light of the corps which compose it.
Assessment is distinct from proposals for promotion.”
Article 3 of the decree provides:
“The serviceman shall be assessed at one or several levels by the authorities to which he is subordinate.
The number of levels of assessment and the designation of the corresponding authorities shall be laid down by the minister responsible for the armed forces in the light of the serviceman’s corps, grade and function and of the specific organisation of each service or attached formation.”
29. Service personnel have the possibility of challenging their assessments in the administrative courts (Conseil d’Etat, 22 April 1977, Pierron).


ITEMID: 001-4889
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: TILES v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: A.
On 21 September 1991 the applicant claimed, pursuant to the Extrajudicial Rehabilitation Act (see "Relevant domestic law" below), restitution of real property. He alleged that he had been forced, in 1979, to sell the property to the State under conditions that had been imposed on him.
On 16 October 1992 the Topoľčany District Court (Okresný súd - "the District Court") granted the applicant's claim. It noted that the applicant had been threatened with expropriation should he refuse to sell the property in question. The District Court found that the purchase price had been determined by an expert of the company which had been in charge of carrying out the purchase on behalf of the State. It was not clear from the expert's opinion whether he had considered all the relevant facts when determining the price. The District Court therefore considered that the applicant was entitled to restitution of the property pursuant to Section 6 para. 1 (g) of the Extrajudicial Rehabilitation Act.
On 1 July 1993 the Nitra branch office of the Bratislava Regional Court (Krajský súd Bratislava - pobočka v Nitre - "the Regional Court") granted the appeal lodged by the defendant authority and dismissed the applicant's claim. The Regional Court noted that the 1979 sale contract had been drafted and signed in accordance with the law, and that the applicant had been paid the purchase price as determined by an expert.
The Regional Court further established that the State had purchased the applicant's real property in order to use it as a building site in the context of construction, on adjacent plots, of a heat pipe-line. After the construction had been completed, the land originally owned by the applicant was used as a parking place.
Finally, the Regional Court noted that beside the price for his property the applicant had also been granted, in 1980, a flat in Topoľčany which had been put at the disposal of his son, and that in the relevant documents the applicant had not mentioned that he had disagreed with the sale of his property. In the Regional Court's view, the applicant had not shown that the requirements laid down in Section 6 para. 1 (g) of the Extrajudicial Rehabilitation Act were met in his case.
On 20 September 1993 the applicant complained to the president of the Regional Court that at the hearing held on 1 July 1993 he had not been allowed to submit orally all facts concerning his case, that the chamber president had put irrelevant questions to him and his wife, and that there had been delays in the service of the Regional Court's judgment.
On 13 October 1993 the president of the Regional Court informed the applicant that there was nothing to show that the chamber president dealing with his case had lacked impartiality or had otherwise infringed the applicant's right to a fair hearing. The president of the Regional Court further stated that the written version of the judgment of 1 July 1993 had been submitted for distribution on 14 September 1993, and admitted that there had been a delay of several days in its drafting.
On 25 October 1993 the applicant lodged an appeal on points of law (dovolanie) against the Regional Court's judgment of 1 July 1993. He alleged that he had been obliged to sell the property under threat of expropriation, possibly without any compensation. The applicant had also been warned that criminal proceedings could be brought against him should he incite other owners not to sell their property.
The applicant further challenged the sale contract and the expert opinion, mainly because the expert determining the purchase price had not taken into consideration a part of the property which originally had been used as a bakery. He alleged that he had only obtained the contract and the expert opinion in 1991 and in 1993 respectively.
On 30 November 1993 the Supreme Court (Najvyšší súd) quashed the Regional Court's judgment of 1 July 1993. It found that the Regional Court had failed to specify correctly the defendant authority and to establish the relevant facts with sufficient certainty.
On 28 February 1994 the Regional Court quashed the District Court's judgment of 16 October 1992.
On 23 April 1994 the applicant complained to the Regional Court that the Supreme Court's judgment on his appeal on points of law had not yet been served on him.
On 11 November 1994 the District Court granted the applicant's claim again. It established that the applicant could not check whether the purchase price was correct as he had been provided, prior to the sale of his house, neither with the relevant expert opinion nor with the sale contract. The District Court further found that the applicant had been informed by representatives of the competent authority that, should he not be willing to sell the property, it could be expropriated, with or without compensation.
The District Court found that prior to the sale the applicant had invested into the property. In its view, it was therefore unlikely that the applicant had been genuinely willing to sell the property. The District Court held that the conditions of the sale were obviously disadvantageous for the applicant since the expert had failed to take into account, when establishing the value of the property, the premises of a former bakery which had formed a part of the property, and also the fact that a part of the property had been re-built in 1957 and in 1972 respectively.
On 18 December 1995 the Regional Court granted the defendant's appeal and dismissed the applicant's claim. It found, after having taken further evidence, that the applicant had not concluded the contract under duress on strikingly unfavourable conditions within the meaning of Section 6 para. 1 (g) of the Extrajudicial Rehabilitation Act.
The Regional Court held, in particular, that immediately after the sale the applicant had moved to a new house which he had built. Furthermore, the applicant had arranged for an apartment, which had been granted to him in connection with the sale of the property in question, to be put at the disposal of his son in exchange for a smaller apartment used by the latter.
The Regional Court further recalled that the possibility of expropriation of the property had been provided for by the law and considered that its mentioning, by the representatives of the competent authority, could not be regarded as a threat. The Regional Court admitted that, as a result of the failure to provide him with the sale contract in advance, the applicant had been placed at a disadvantage. The Regional Court recalled, however, that the applicant had signed the contract and found no evidence showing that he had done so under duress.
As to the applicant's allegations concerning the conditions of the sale, the Regional Court noted that the applicant had received 214,149 Czechoslovak crowns for the property notwithstanding that the expert had evaluated it at 220,124 crowns. It held, however, that only a price considerably below the value determined by an expert could be considered as imposing strikingly unfavourable conditions.
The Regional Court further examined in detail the way in which the expert had determined the value of the applicant's property. It found, with reference to the relevant price regulations, that even if the bakery invoked by the applicant had actually formed a part of the property, the latter would have fallen under a different category for which a lower compensation had been foreseen. The Regional Court therefore found that the expert's omission to mention the bakery in his opinion was to the applicant's advantage.
The Regional Court also recalled that the sale of the property had permitted the applicant to improve the living conditions of his son and concluded that the sale in question had not been carried out under conditions that were strikingly unfavourable for the applicant.
Finally, the Regional Court referred to Section 8 para. 3 of the Extrajudicial Rehabilitation Act and held that, in any event, the property claimed by the applicant could not be restored since a heat pipe-line had been built on it.
The judge who, in the applicant's view, had lacked impartiality in the proceedings leading to the Regional Court's judgment of 1 July 1993 was not involved in the delivery of the aforesaid court's judgment of 18 December 1995.

On 1 April 1996 the applicant lodged an appeal on points of law. He claimed that there was no need for him to prove that he had acted under duress as it was generally known that under the communist regime the representatives of public authorities had commonly used threats and had acted arbitrarily, and that the prices for real property foreseen by the relevant regulations had been disproportionately low.
On 19 September 1996 the Supreme Court dismissed the applicant's appeal on points of law. It held that the obligation to restore the property could not be deduced generally from the then existing law or economic conditions, and that it was for the applicant to show that the requirements laid down in Section 6 para. 1 (g) of the Extrajudicial Rehabilitation Act were met in his particular case.
The Supreme Court found that the Regional had established all relevant facts of the case and had correctly assessed the evidence before it. In particular, the Supreme Court held that the Regional Court had given detailed and correct reasons for its judgment and noted that in his appeal on points of law the applicant had not challenged, as such, the Regional Court's reasoning as regards the particular circumstances under which the contract had been concluded.
The Supreme Court's judgment was served on the applicant in October 1996.

B. Relevant domestic law
The Extrajudicial Rehabilitation Act (Zákon o mimosúdnych rehabilitáciách) of 23 March 1991, as amended, has for its aim to redress certain infringements of property and social rights which occurred between 1948 and 1989.
Section 6 para. 1 (g) of the Act provides for restitution of objects which were transferred to the State on the basis of a sale contract concluded under duress on strikingly unfavourable conditions.
Section 8 para. 3 of the Extrajudicial Rehabilitation Act provides that plots which were built up after their transfer to the State are not liable to restitution.