ITEMID: 001-60763
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF TONA v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1942 and lives in Florence.
9. The applicant is the owner of a flat in Florence which he had let to G.F.
10. In a registered letter of 6 June 1989, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 30 April 1992 and asked him to vacate the premises by that date.
11. In a writ served on the tenant on 27 September 1989 the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
12. By a decision of 6 November 1989, which was made enforceable on 7 December 1989, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1993.
13. On 28 September 1991, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter.
14. On 14 May 1993, the applicant served notice on the tenant requiring him to vacate the premises.
15. On 18 June 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 23 June 1993.
16. Between 23 June 1993 and 15 December 1998 the bailiff made 13 attempts to recover possession.
17. On 10 September 1998, the applicant made a second statutory declaration that he urgently required the premises as accommodation for his daughter.
18. Each attempt of the bailiff proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
19. On 25 August 1999, the applicant served notice again on the tenant informing him that the order for possession would be enforced by a bailiff on 9 November 1999.
20. On 17 September 1999, the tenant asked the Florence District Court to set a fresh date for the enforcement of the order for possession pursuant to Section 6 of Law No. 431/98.
21. On 9 November 1999, the bailiff attempted to recover possession of the applicant’s apartment without success due to the lack of police assistance. He adjourned the enforcement proceedings to 23 March 2000.
22. On 26 January 2001, the applicant recovered possession of his flat.
23. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-112586
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF ER AND OTHERS v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
TEXT: 5. The applicants were born in 1980, 1974, 1978, 1984, 1989, 1990, 1994, 1954 and 1953 respectively and live in Hakkari. The first seven applicants are the children of Mr Ahmet Er, who disappeared in July 1995, and the remaining two applicants are his siblings. At the time of his disappearance Ahmet Er was 44 years old.
6. The facts of the case are disputed by the parties. The facts as presented by the applicants are set out in Section B below. The Government’s submissions concerning the facts are summarised in Section C below. The documentary evidence submitted by the applicants and the Government is summarised in Section D.
7. On 14 July 1995 an armed clash took place between members of the PKK and members of the security forces in Kurudere village, which comes within the administrative jurisdiction of the town of Çukurca in south-east Turkey. After the operation the soldiers took the applicants’ relative Ahmet Er and an elderly relative by the name of Hacı Mehrap Er from Kurudere to the nearby Işıklı gendarmerie station.
8. The same day the applicants informed the public prosecutor in Çukurca of the incident.
9. Hacı Mehrap Er was released on 15 July 1995 but nothing further was heard from Ahmet Er.
10. The Government submitted that Ahmet Er had not been taken into custody. He had assisted soldiers in searching for landmines planted in the area by terrorists and had been released following the soldiers’ return to their barracks.
11. An effective investigation carried out by the judicial authorities had shown that following his release Ahmet Er had joined the terrorists in northern Iraq.
12. The following information emerges from the documents submitted by the parties.
13. On 14 July 1995 Mr Ali Er, who is the brother of Ahmet Er and one of the applicants, informed the public prosecutor in Çukurca in writing about the disappearance of his brother. He also stated that the family feared for Ahmet Er’s life, and asked for the public prosecutor’s help.
14. On 16 July 1995 the Çukurca public prosecutor recorded in a report that he had had a telephone conversation with Major C.Y. of the Çukurca commando headquarters. Major C.Y. was also the commanding officer in charge of the soldiers who had carried out the operation on 14 July. The major told the public prosecutor that Ahmet Er had been taken from the village by his soldiers on 14 July to help them with their operations. However, he had been released on 16 July 1995 in an area near Narlı village.
15. On 18 July 1995 Ali Er made submissions to the offices of the governor and the public prosecutor in Çukurca. He stated in his submissions that his brother Ahmet Er had not been released, contrary to the information given to him by the Çukurca public prosecutor on 16 July. He added that he had tried unsuccessfully to find his brother in the surrounding villages and towns.
16. On the same day the Çukurca public prosecutor initiated an investigation into Ahmet Er’s disappearance and issued writs to the Çukurca gendarmerie headquarters and Çukurca commando headquarters requesting information about Ahmet Er’s whereabouts. The public prosecutor reminded the military authorities that if Ahmet Er was in their custody they needed to obtain official permission from the public prosecutor’s office in order to keep him in detention.
17. On 1 August 1995 the commander of the Çukurca gendarmerie headquarters, Captain S.A.U., replied to the Çukurca public prosecutor’s letter and informed him that Ahmet Er had not been detained at his headquarters. The village of Kurudere had been evacuated for security reasons and it was therefore impossible to trace Ahmet Er.
18. Following the failure of the Çukurca commando headquarters to respond to his request for information, the Çukurca public prosecutor repeated his request in a letter of 25 August 1995. The public prosecutor also referred to his telephone conversation with Major C.Y. (see paragraph 14 above), and asked the commando headquarters to inform him exactly where Ahmet Er had been released and whether there had been any eyewitnesses to the release.
19. In a letter of 22 September 1995 a military officer from the Çukurca commando headquarters informed the public prosecutor that Ahmet Er and “his elderly relative” had been taken from their village by soldiers on 14 July 1995 to act as guides to the area. The two men had helped the soldiers to locate a number of landmines in the area and had then “left the soldiers at 3 p.m.” the same day. No documents had been drawn up concerning the two men as they had not been arrested or detained.
20. On 16 October 1995 a public prosecutor questioned the applicant Ali Er, who repeated that his brother Ahmet had been taken away from their village by soldiers on 14 July 1995. The gendarmerie first lieutenant who was with the soldiers had even slapped his brother in front of the villagers before taking him away. Following this incident the villagers had left the village the same day, but the applicant’s elderly uncle, Hacı Mehrap Er, had stayed behind to wait for Ahmet. The latter had returned to the village with the soldiers the same evening, very distraught. The soldiers had then taken both Ahmet and Hacı Mehrap Er to Işıklı gendarmerie station, where they had tied them to a pole and left them until the following morning. The two men had also been beaten up. The following morning Hacı Mehrap Er and two other villagers who had also been taken away by the soldiers had been released. According to his uncle, Ahmet had been unconscious when he left him. Furthermore, Fettah Arslan, a fellow villager, had seen the applicant’s brother being taken from Işıklı gendarmerie station to the commando unit in a military vehicle.
21. The public prosecutor summoned Hacı Mehrap Er and Fettah Arslan to his office. On 23 October 1995 Fettah Arslan told the public prosecutor that he had seen Ahmet Er in a military vehicle, wearing handcuffs.
22. On 25 October 1995 Hacı Mehrap Er told the public prosecutor that on the day of the incident the villagers had been preparing to leave their village as ordered by the military. However, some PKK members had heard about the evacuation and the presence of the soldiers in the village and had attacked the soldiers. During the armed clash that had ensued, Ahmet Er had attempted to leave the village in order to find his son, who was out in the fields. However, the soldiers had misinterpreted Ahmet Er’s intentions and had taken him to Işıklı gendarmerie station. Subsequently, Hacı Mehrap Er had also been taken to the same gendarmerie station, where he and Ahmet had been tied to a pole and beaten up. The soldiers had also doused them with hot water. The bones in Ahmet’s feet had been broken with a stone. When Hacı Mehrap Er was released the following morning, Ahmet was being dragged along the ground by ten or eleven soldiers. When he returned to the village, the soldiers had already burned it down.
23. After making two unsuccessful attempts to summon him to his office, the public prosecutor finally questioned Major C.Y. of Çukurca commando headquarters on 14 December 1995. The major confirmed that he had heard that Ahmet Er had been taken from the village by his soldiers on 14 July 1995 to act as a guide to the area. After his telephone conversation with the public prosecutor he had ordered Ahmet Er’s release. However, he had later found out that the person released on his orders was not Ahmet Er. Major C.Y. added that he did not know whether Ahmet Er had been taken away by his soldiers.
24. First Lieutenant H.Ö., who was in charge of one of the three units of soldiers which had taken part in the operation on 14 July 1995, was questioned by the public prosecutor on 1 February 1996. The first lieutenant confirmed that he and his soldiers had gone to Kurudere village on the day of the incident. Following an armed clash with members of the PKK, during which an officer had been killed and two soldiers injured, they had seen Ahmet Er running away from the village. A number of soldiers had then been sent to catch him. The soldiers had caught him and “might have slapped him a few times” because they believed that Ahmet Er had been helping the PKK. Ahmet Er had then helped the soldiers to find a number of landmines. On their way they had seen Hacı Mehrap Er, who had asked permission to go with the soldiers. They had then taken Ahmet Er and Hacı Mehrap Er to Işıklı gendarmerie station. The first lieutenant had telephoned his superior officers at the battalion’s headquarters and told them about the two men. His superior officers had told them that it was not necessary to take the men to headquarters as there was no evidence against them. Ahmet and Hacı Mehrap had spent the night with the soldiers at Işıklı gendarmerie station. It was possible that the soldiers “might have got angry with the two men and slapped them” but they had not tortured them or broken the bones in Ahmet’s feet as alleged. The following day the “old man” had been released outside the station and Ahmet Er had been released some 200 metres away from the station.
25. First Lieutenant Ş.Ö. had been in charge of another unit on the day of the incident. He gave a similar statement to the public prosecutor.
26. On 2 February 1996 the public prosecutor questioned four other gendarmerie officers who had taken part in the operation on 14 July 1995. The officers confirmed that they had taken Ahmet Er and Hacı Mehrap Er to Işıklı gendarmerie station but denied that they had ill-treated them. They maintained that the two men had been released the following day and added that Ahmet Er had even waved to them when he was being released. The officers also told the public prosecutor that it was possible that Ahmet Er had subsequently joined the PKK.
27. On 16 February 1996 the Çukurca public prosecutor issued an instruction to find Ahmet Er and asked to be given a progress report every three months. In his instruction the prosecutor stated that Ahmet Er had not been arrested by the soldiers but had been taken by them to act as a guide to the area. He also stated that, since two of Ahmet Er’s sons had joined the PKK, it was possible that Ahmet Er himself might also have joined.
28. It appears from the documents that the police and soldiers searched unsuccessfully for Ahmet Er and informed the public prosecutor at regular intervals until 2 October 2000. On 1 February 2001 the Çukurca public prosecutor requested the police to continue their search. After the prosecutor’s letter the police continued to inform the prosecutor at twomonthly intervals about the unsuccessful search for Ahmet Er.
29. On 3 May 2002 the first applicant, Mehmet Er, applied to the Hakkari Civil Court of First Instance, alleging that his father had disappeared in life-threatening circumstances on 14 July 1995 and that nothing had been heard from him since that date. He asked the court to issue a decree stating that his father was to be presumed dead. This request was accepted on 29 May 2003. On 24 February 2004 custody of Ahmet Er’s three youngest children – the applicants Mr Hızır Er, Ms Hatice Er and Ms Belkısa Er – was awarded to their elder brother İslam Er, who is also one of the applicants.
30. On 10 December 2003 the Çukurca public prosecutor issued a decision stating that, according to the allegations made and the information given to him by eyewitnesses, Ahmet Er had last been seen in a military area, where he had been “tortured by soldiers”. Hence, the military were responsible for the incidents in question and the military prosecutor in the city of Van had jurisdiction to continue the investigation.
31. The military prosecutor in Van began his investigation on 14 January 2004 by requesting information from local military units about whether or not anything had been heard from Ahmet Er and whether he had sons who were PKK members. He also asked for regular updates every three months.
32. On 10 February 2004 the military units informed the military prosecutor that, according to information obtained from intelligence officers, Ahmet Er had been taken from his village by soldiers. Following his release on 16 July 1995, Ahmet Er had gone to northern Iraq to join the PKK. Nothing had been heard from him since that date.
33. On 17 February 2004 the military prosecutor questioned the applicant Ali Er, and Hacı Mehrap Er. Both men reiterated the information they had already provided to the Çukurca public prosecutor.
34. On 3 March 2004 the applicants’ legal representative requested information from the Çukurca public prosecutor about the investigation. He was informed of the transfer of the investigation to the military prosecutor’s office in Van.
35. At regular intervals between 7 April 2004 and 23 November 2005 eight identical copies of a document stating that Ahmet Er had joined the PKK were signed by various military officers and sent to the Van military prosecutor in connection with his request of 14 January 2004 (see paragraph 31 above).
36. On 28 July 2005 the military prosecutor decided that he also lacked jurisdiction to investigate the disappearance. In his decision the prosecutor summarised the steps taken in the investigation and stated that on 14 July 1995 Ahmet Er had been acting suspiciously and had been taken away by soldiers. He had then been taken to various places where he had shown the soldiers explosives planted by members of the PKK. The soldiers had then taken him to the barracks. The military prosecutor concluded that, in taking Ahmet Er to their barracks in order to question him, the soldiers had been carrying out judicial rather than military functions. Military prosecutors could only investigate offences committed by members of the armed forces in the performance of their military duties. Hence, the civilian prosecutors had jurisdiction to continue the investigation. The file was therefore sent back to the Çukurca public prosecutor’s office.
37. The Çukurca public prosecutor continued his investigation by instructing the gendarmes to continue to search for Ahmet Er.
38. On 15 December 2005 the Çukurca public prosecutor summarised his investigation in a report. According to the report, on 14 July 1995 Ahmet Er had been acting suspiciously and had therefore been taken away by soldiers. He had then assisted the soldiers in locating two landmines. He had stayed at the Işıklı gendarmerie station and had been “released” on 16 July 1995. According to “secret investigations” conducted by the gendarmes, Ahmet Er had joined the PKK following his release. The Çukurca public prosecutor concluded that the Van public prosecutor’s office had jurisdiction to continue the investigation, and sent the investigation file there.
39. On 5 January 2006 a public prosecutor in the city of Van issued a search and arrest warrant for Ahmet Er for the offence of membership of an illegal organisation, namely the PKK.
40. In response to an apparent query from the Çukurca gendarmerie, the Van public prosecutor noted in a letter of 29 March 2006 that the fact that Ahmet Er’s family had obtained a decree from a civil court presuming him to be dead did not mean that Ahmet Er had indeed died. He decided that the search for Ahmet Er should continue with a view to arresting him under the warrant of 5 January 2006.
41. On subsequent dates the Çukurca gendarmerie informed the Van public prosecutor that their efforts to find and arrest Ahmet Er had been unsuccessful.
VIOLATED_ARTICLES: 13
2
3
5
VIOLATED_PARAGRAPHS: 2-1
5-1


ITEMID: 001-71467
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KORGA v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1952 and lives in Budapest.
5. On 20 February 1995 the applicant’s wife filed for divorce. She also requested the division of the matrimonial property and the settlement of the use of the couple’s flat.
6. After five hearings, on 26 June 1996 the court gave a partial decision and pronounced the parties’ divorce. The proceedings concerning the matrimonial property continued.
7. Meanwhile, on 13 June 1995 the applicant brought an action before the same court, challenging the validity of a contract by which his ex-wife had meanwhile sold their common flat.
8. After five hearings, on 16 January 1997 these proceedings were joined to the dispute concerning the division of the matrimonial property.
9. After another two hearings, on 16 July 1997 a valuation expert was appointed.
10. Following four further hearings, on 26 June 1998 the District Court gave a partial decision. It established the parties’ respective shares of the ownership of the flat, annulled the above-mentioned contract and suspended the examination of the remainder of the case (i.e. the distribution of movable property) until the partial decision became final.
11. After a hearing on 20 January 1999, on 21 April 1999 the Budapest Regional Court confirmed the partial decision.
12. In review proceedings, on 8 May 2001 the Supreme Court quashed the partial decision while upholding, again as a partial decision, the establishment of the parties’ respective shares of the ownership of the flat. However, it did not annul the disputed contract.
13. Subsequently, on 14 March 2002 the District Court resumed the proceedings. After a hearing on 2 July 2002, on 4 December 2002 it divided the matrimonial property.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5418
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: SELIGMAN v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is a Polish citizen, a farmer residing in Świerczyny.
A.
By an administrative decision of 9 April 1991 the applicant was obliged to re-establish the previous state of the waterflow through his property, as he had executed works which altered it.
On 23 May 1991 the Toruń Governor upheld this decision. The applicant filed an appeal with the Supreme Administrative Court.
In its judgment of 24 October 1991 the court established that water relations on the applicant’s lands and neighbouring farms had been severely disturbed in 1984, which caused frequent flooding of certain plots. Following requests from farmers, in 1985 the local municipality had carried out certain drainage works. However, they had proved ineffective in that the facilities had repeatedly been repaired, to no avail. The court considered that the administrative authorities had failed to establish, in particular by calling an expert, what measures should be taken in order to improve the overall situation, including that on the applicant’s property. Accordingly, the court quashed the contested decisions and ordered the case to be reconsidered, as the administrative bodies had failed to establish correctly the facts relevant for their decisions.
Reconsidering the case, on 16 June 1992 the Brodnica Regional Office established inter alia that following the ineffective drainage works carried out in 1985, the applicant had blocked the gravitational flow of rain water through his land. As a result, a road nearby, used by many farmers, had been damaged. Subsequently, a ditch had been dug along this road in order to remedy problems caused by the works done by the applicant. The applicant had reacted by building a stone dam, which had blocked the flow of water along the edge of the road. In 1988 the inhabitants of the village had agreed to reinstate the status quo ante. It was, in the opinion of the administrative body, the only possible solution, as another remedy, consisting of further costly drainage works, had not been accepted by the local community. The applicant was therefore ordered to re-establish the status quo ante in order to restore natural gravitational flow of rain and ground waters on his land by demolishing a dam he had constructed.
On 16 July 1992 J.S., the owner of a farm adjacent to the applicant’s, was ordered to re-establish the status quo ante by liquidating a ditch by which water had been directed toward the applicant’s land.

On 12 August 1992 the Toruń Regional Office quashed the decision of 16 June 1992 and ordered that the case be reconsidered.
By a decision of the Brodnica District Office of 22 January 1993 the applicant was again obliged to restore the previous state of waterflow on his property, by demolishing the dam and by digging a ditch along the local road going through his land. The applicant appealed to the Toruń Governor, who on 24 March 1993 upheld the contested decision.
On 14 October 1993 the Supreme Administrative Court dismissed the applicant’s further appeal and upheld the contested administrative decisions. The court established that the drainage works carried out by the local municipality in the 1980s had proved ineffective. Subsequently the applicant, trying to block rain and ground waters flowing onto his property from higher located neighbouring properties, had constructed a stone dam on the border between his plot and that belonging to his neighbour. This had rendered the natural gravitational flow of rain and ground water impossible and had severely disturbed existing waterflow in that the water had repeatedly been flooding the municipal road nearby, thus making difficult the access to the fields in the vicinity, belonging to 16 farmers.
The court had regard to Article 50 of the Water Code providing that an owner of property could not alter the waterflow on his or her ground, existing for at least five years, if such change could negatively affect neighbouring properties. The court observed that the drainage facilities made in 1985 by the municipality were so defective that it was not economically viable to repair them. Moreover, the owners of the farms concerned, including the applicant, had refused to bear the cost of any further drainage facilities. The court also noted the decision of 16 July 1992 by which the applicant’s neighbour J.S. had likewise been compelled to take measures in order to re-establish the status quo ante on his plot. Consequently, it was only the demolition of the dam constructed by the applicant that could restore the status quo ante and also minimise damage caused by the fact that the drainage works had proved unsuccessful, and by further alterations made by the applicant.
On 18 February 1994 the applicant was served with a reminder to carry out the works ordered by the decisions.
On 21 October 1994 the applicant was served with a decision of 10 October 1994 to proceed to the enforcement of the decisions by an authorised company. He filed a complaint against the enforcement decision, which was subsequently dismissed. The applicant lodged a further appeal against the decision taken in the enforcement proceedings with the Supreme Administrative Court. In December 1994 a drainage ditch was dug on the applicant’s land, in enforcement of the relevant administrative decisions.
On 25 January 1996 the Supreme Administrative Court dismissed the applicant’s appeal against the enforcement decisions. The court recalled that its jurisdiction in administrative enforcement proceedings was limited to examining whether the enforcement decisions were in compliance with the provisions of the Administrative Enforcement Act of 1966. The court had regard to its considerations expressed in its judgment of 14 October 1993, namely that in the absence of any wish of the owners of the lands concerned to bear costs of new drainage facilities, the solution contested by the applicant was the only feasible one. This judgment and the decisions on the merits contested by the applicant remained valid. It was not in dispute that the applicant had failed to take the steps indicated in these decisions. In these circumstances, the applicant’s objections against the enforcement decisions aimed in fact at having the case reconsidered on the merits. This could not be done in the enforcement proceedings. In so far as the applicant called into question the manner in which the company had carried out the works on his land in December 1994 in order to secure compliance with the final decision on the merits, it remained open to him to submit relevant pecuniary claims, if any, in separate proceedings.
B. Relevant domestic law
1. Judicial review of administrative decisions
Article 196 § 1 of the Code of Administrative Procedure, as applicable at the relevant time, provided that an appeal could be lodged with the Supreme Administrative Court against a second-instance administrative decision on the merits on the ground that the decision was not in conformity with the law.
Article 207 § 2 of the Code states that the Court could set the decision aside wholly or in part if it established that the decision was issued in breach of substantive law, that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void, or if such procedural shortcomings had occurred in the proceedings leading to the decision which would justify their reopening.
2. Enforcement of administrative decisions
Pursuant to Article 26 of the Administrative Enforcement Act of 1966 the administrative enforcement proceedings are instituted at the request of the creditor who is obliged to submit a valid enforcement title to the enforcement authority. In cases in which the enforcement authority is at the same time the creditor, the proceedings are instituted ex officio on the basis of an enforcement title issued by this authority.
Article 27 of the Act provides that the enforcement title should identify the creditor and the debtor, specify the contents of the obligations subject to enforcement and its substantive legal basis. Further, the legal basis for conducting administrative enforcement proceedings in respect of the obligation should be indicated. If the obligation is of a pecuniary character, the exact sums must be itemised. The title must also contain the date at which it was issued, together with the name and rank of the person who issued it. A copy of a reminder to ensure compliance with the administrative decision, served on the debtor, must be attached to the title.


ITEMID: 001-108867
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SINDICATUL "PĂSTORUL CEL BUN" v. ROMANIA
IMPORTANCE: 2
CONCLUSION: Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Pecuniary and non-pecuniary damage - award
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Mihai Poalelungi;Nona Tsotsoria
TEXT: 6. On 4 April 2008 thirty-five clergymen and lay staff of the Romanian Orthodox Church, the majority of them Orthodox priests in parishes of the Metropolis of Oltenia (a region of south-western Romania), held a general meeting at which they decided to form the Păstorul cel Bun trade union. The relevant parts of the union’s constitution read as follows:
“The aim of the union of clergy and lay persons working in parishes or other ecclesiastical bodies within the administrative and territorial jurisdiction of the Metropolis of Oltenia shall be accepted voluntarily and concerns the representation and protection of the professional, economic, social and cultural rights and interests of clergy and lay members of the union in their dealings with the Church hierarchy and the Ministry of Culture and Religious Affairs.
In order to achieve the above aim, the union shall seek to:
(a) ensure respect for the fundamental rights of its members to work, dignity, social protection, safety at work, rest, social insurance, unemployment benefits, pension rights and other rights laid down in the legislation in force;
(b) ensure that each of its members is provided with work corresponding to his professional training and skills;
(c) ensure compliance with the statutory provisions concerning the duration of leave and days of rest;
(d) promote initiative, competition and freedom of expression among its members;
(e) ensure the implementation and strict observance of the statutory provisions concerning protection of employment and the rights deriving therefrom;
(f) apply fully the provisions of Law no. 489/2006 on religious freedom and the legal status of religious denominations, the Statute of the Romanian Orthodox Church and the Holy Canons of the Romanian Orthodox Church;
(g) negotiate collective and individual labour agreements with the Archdiocese and the Metropolis expressly setting out all the rights and duties of the clergy and laity;
(h) afford protection to its President and representatives, both during and after their terms of office;
(i) ensure that it is involved and represented at all levels and on all decision-making bodies, in accordance with the statutory provisions in force;
(j) use petitions, demonstrations and strikes as means of defending its members’ interests and protecting their dignity and fundamental rights;
(k) take legal action against any individuals or other entities that disregard employment legislation, trade-union law, the provisions of the collective agreement drawn up within the Metropolis or employment contracts, if it has proved impossible to resolve the disputes in question by means of negotiation;
(l) ensure the observance and implementation of statutory provisions relating to remuneration and guarantees of decent living conditions;
(m) secure to the clergy and laity the benefit of all the rights enjoyed by other sectors of society;
(n) set up its own mutual-aid funds;
(o) produce and issue publications providing information to its members and defending their interests;
(p) establish and operate cultural, educational and research organisations in the trade-union sphere, as well as social and socio-economic institutions, in accordance with the relevant statutory provisions and in the interests of its members;
(r) raise equity to support its members;
(s) organise and fund religious activities;
(ş) make proposals for elections to local Church bodies and put forward a priest from among its members to take part in the Holy Synod of the Romanian Orthodox Church;
(t) ask the Archdiocese to submit a report on its revenues and expenditure to the Assembly of Priests; and
(ţ) ask the Archdiocesan Council to notify it, on a quarterly or annual basis, of any decisions relating to appointments, transfers and allocation of budgetary resources.”
7. In accordance with the Trade Unions Act (Law no. 54/2003), the union’s elected president applied to the Craiova Court of First Instance for the union to be granted legal personality and entered in the register of trade unions.
8. The representative of the Archdiocese opposed the application. He acknowledged that the members of the union were employed by the Archdiocese on individual contracts, but argued that the internal regulations of the Orthodox Church, approved by Government Ordinance no. 53/2008, prohibited the establishment of any form of association without the archbishop’s prior consent.
9. The union’s representative pursued his application, pointing out that the statutory requirements for establishing a trade union, as set out in the Trade Unions Act, were fulfilled and that the Act in question did not bar the professional groups concerned in this case from forming a union.
10. The public prosecutor’s office supported the application, expressing the view that the establishment of the union was lawful and that the Church’s internal regulations could not prohibit it, as the priests and lay persons concerned were all employed by the Church and as such were entitled to form an association to defend their rights.
11. In a judgment of 22 May 2008 the court allowed the union’s application and ordered its entry in the register of trade unions, thereby granting it legal personality.
12. The court based its decision on the provisions of section 2 of Law no. 54/2003, Article 39 of the Labour Code, Article 40 of the Constitution, Article 22 of the International Covenant on Civil and Political Rights and Article 11 of the European Convention on Human Rights.
13. It noted that the Religious Freedom Act (Law no. 489/2006) allowed religious organisations to operate independently as long as there was no threat to national security, public order, public health, morals and fundamental rights and freedoms. Noting further that it was not disputed that the union’s members were employed on contracts, it held that as a result, their right to organise, which was guaranteed by labour law, could not be made subject to their employer’s prior consent.
14. Regarding the Church’s internal regulations, the court held that the fact that priests had a duty of subordination and obedience vis-à-vis their employer under the Church’s Statute could not justify restricting a right guaranteed by labour legislation since such a duty did not constitute a measure that was necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.
15. Reviewing the union’s constitution, the court found that its establishment was not necessarily a manifestation of a dissident faction within the Romanian Orthodox Church with a disregard for hierarchy and traditions, but that, on the contrary, it might encourage employer-employee dialogue regarding the negotiation of employment contracts, observance of working and non-working hours and the rules on remuneration, protection of health and safety at work, vocational training, medical cover and the right to elect representatives and stand for election to decision-making bodies, in accordance with the special characteristics of the Church and its spiritual, cultural, educational, social and charitable purpose.
16. The Archdiocese appealed against the court’s judgment, submitting that the provisions of domestic and international law on which it had been based were not applicable to the present case. It argued that Article 29 of the Constitution guaranteed religious freedom and the autonomy of religious communities and that this principle could not be overridden by freedom of association. It further submitted that by acknowledging the trade union’s existence, the court had interfered with the traditional organisation of the Church, thus undermining its autonomy.
17. In a final judgment of 11 July 2008 the Dolj County Court allowed the appeal, quashed the first-instance judgment and, on the merits, refused the application for legal personality and for entry in the register of trade unions.
18. The County Court observed that the Constitution and Law no. 489/2006 guaranteed the autonomy of religious communities and their right to make their own organisational arrangements in accordance with their internal regulations. It further noted that there was no reference to the concept of a trade union in the Statute of the Orthodox Church, which provided that the establishment, operation and dissolution of religious associations and foundations were subject to the blessing of the Church’s Synod and that priests had a duty of obedience towards their superiors and could not undertake civil transactions, including those of a personal nature, without their prior written approval.
19. It held that the prohibition on setting up any form of association within the Church without the consent of the hierarchy was justified by the need to protect the Orthodox Christian tradition and its founding tenets, and that if a union were to be established, the Church hierarchy would be obliged to work together with a new body operating outside that tradition and the rules of canon law governing decision-making.
20. Lastly, it noted that under Law no. 54/2003, persons performing management functions were not allowed to form trade unions and, bearing in mind that under the Church’s Statute, priests assumed leadership of their parishes, concluded that they were covered by this ban.
21. The relevant provisions of the Constitution read as follows:
“Citizens may freely associate to form political parties, trade unions, employers’ organisations and other forms of association.”
“The right to work shall not be restricted. Everyone is free to choose his or her profession, trade or occupation and workplace.
Employees are entitled to social protection measures. These concern employees’ health and safety, working conditions for women and young people, the establishment of a national gross minimum wage, weekly rest, paid annual leave, work performed in particular or special conditions, vocational training, and other specific situations as provided for by law.
The normal average working day is a maximum of eight hours.
For equal work, women shall receive equal pay to men.
The right to collective labour bargaining and the binding force of collective agreements shall be guaranteed.”
“Freedom of thought and opinion and freedom of religion shall not be restricted in any form. No one shall be compelled to embrace an opinion or religion contrary to his or her own beliefs.
Freedom of conscience is guaranteed; it must be manifested in a spirit of tolerance and mutual respect.
Religious denominations shall be free and religious communities shall be organised in accordance with their own regulations, subject to the conditions laid down by law.
All forms, means, acts and actions of religious enmity shall be prohibited in relations between religious denominations.
Religious communities shall enjoy autonomy in relation to the State and shall receive State support, including the provision of facilities offering religious assistance in the army, hospitals, prisons, asylums and orphanages.”
22. The relevant provisions of the Trade Unions Act (Law no. 54/2003) are worded as follows:
“Anyone working on the basis of a contract of employment, including public officials, shall have the right to form or to join trade unions.
The establishment of a trade union shall require a minimum of fifteen employees in the same occupation or branch of activity.
No one shall be compelled to join, not to join or to leave a trade union.”
“Persons performing management functions or functions involving the exercise of public authority, the judiciary, the military, the police and members of the special forces may not set up trade unions.”
23. Under the Religious Freedom Act (Law no. 489/2006), freedom to practise religious beliefs is guaranteed. The relevant provisions of the Act read as follows:
“The Romanian State shall respect and guarantee the right to freedom of thought, conscience and religion of any person within the territory of Romania, in accordance with the Constitution and international treaties to which Romania is a party.”
“Members of religious communities shall be free to choose the form of association in which they wish to practise their faith – religious community, association or group – in accordance with the terms and conditions of this Act.
Religious communities, associations and groups shall be required to observe the Constitution and the law and not to threaten public safety, public order, health, morals and fundamental rights and freedoms.”
“Recognised religious communities shall have the status of charitable corporations. Under the provisions of the Constitution and this Act, they shall be organised and shall operate independently in accordance with their own statutes or canons.”
“The State shall contribute, on request, to the remuneration of clergy and lay staff of recognised religious communities, according to the number of worshippers and the actual needs of the communities.”
“On a proposal by the Ministry of Culture and Religious Affairs, the Government shall grant the status of a State-recognised religious community to religious associations which, through their activities and number of members, are of public interest and of proven sustainability and stability.
The State shall recognise statutes and canons to the extent that their content does not threaten public safety, public order, health, morals and fundamental rights and freedoms.”
“Religious communities shall select, appoint, employ and dismiss staff in accordance with their own statutes, codes of canon law and regulations.
Religious communities may impose disciplinary sanctions on their employees, in accordance with their own statutes, codes of canon law and regulations, for breaches of the community’s doctrine or moral principles.”
“Employees of religious communities who are insured within the State insurance scheme shall be subject to the legislation on the State social-insurance system.”
“Matters of internal discipline shall be exclusively subject to the provisions of internal regulations and canon law.”
24. The State-Funded Remuneration Act (Law no. 330/2009) contains provisions on the remuneration of the clergy and lay staff. It provides that the State is to contribute to the remuneration of clergy members and lay persons employed by recognised religious communities. Thus, the State pays clergy employed by recognised religious communities a monthly stipend equivalent to between 65% and 80% of the salary of a secondary-school teacher. The State also covers all social contributions payable by employers in respect of members of the clergy.
25. As regards lay staff, Law no. 330/2009 provides that they are to receive a monthly allowance equivalent to the national guaranteed minimum wage. This allowance and all social contributions payable by employers in respect of these employees are covered by local government budgets. Clergymen holding senior positions receive a higher stipend.
26. The Statute of the Romanian Orthodox Church, adopted by the Church’s Synod in November 2007 and approved by Government Ordinance no. 53 of 16 January 2008, replaced the previous Statute, which dated from 1949. The relevant provisions read as follows:
“The Patriarchate is made up of dioceses and archdioceses, grouped into metropolises.”
“The Holy Synod shall take decisions on the establishment, organisation and dissolution of national ecclesiastical associations and foundations ... It shall grant or refuse its blessing for the establishment, organisation and dissolution of Orthodox associations and foundations that operate in dioceses and have their own governing bodies.”
“The parish is the community of believers, clergy and laity, within a specified geographical territory and subject to the canonical, legal, administrative and economic authority of the diocese or archdiocese. It is led by a priest appointed by the bishop.”
“Without the bishop’s prior written consent, the priest may not represent the parish in court proceedings or in dealings with the authorities or third parties. By virtue of the oath of obedience taken at the time of their ordination, members of the clergy and monks may not take part in court proceedings save with the prior written permission of the bishop.”
“Priests and other church staff have the rights and are bound by the obligations set forth in the Holy Canons, this Statute, church regulations and the decisions of the archdiocese.”
“The bishop ... shall order the appointment, transfer or dismissal of clergy and lay staff in the various parishes ... He shall ensure the observance of discipline by members of the clergy and lay staff in his diocese, whether directly or through ecclesiastical bodies.”
“Members of the clergy shall serve the diocese in accordance with the duties they have freely assumed and with the vows and the solemn public undertaking they have read out and signed prior to their ordination. Before commencing their pastoral functions, they shall receive a decision from the bishop setting out their rights and duties.
Without the bishop’s blessing, no priests, deacons or monks may form, be members of or take part in associations, foundations or other organisations of any kind.
The status of priest, deacon or monk is incompatible with the pursuit of any other personal activities of an economic, financial or commercial nature that are contrary to Orthodox Christian morals and the interests of the Church.”
“By virtue of the autonomy of religious communities under the law, the ecclesiastical courts shall resolve matters of internal discipline. Their decisions are not subject to appeal in the civil courts.”
27. In a judgment of 19 September 2005 the High Court held that it had jurisdiction to review the lawfulness of the dismissal or enforced retirement of Orthodox priests, seeing that employees of the Orthodox Church were covered by the general social-security scheme and, as a result, the statutory provisions on social insurance. That position was confirmed in two judgments delivered by the Cluj and Iaşi Courts of Appeal on 3 February 1998 and 3 June 2008 respectively.
28. In its judgment of 3 June 2008 the Iaşi Court of Appeal was required to determine a case in which the appellant, an Orthodox priest, challenged his enforced retirement on grounds of age, arguing that the measure was motivated by his membership of the Sfântul Mare Mucenic Gheorghe union of Orthodox clergy. It rejected the priest’s argument, observing that the decision on his enforced retirement had been taken before the union had been established.
29. In a judgment of 4 February 2010 the High Court of Justice and Cassation, on an appeal by an Orthodox priest against the refusal of the Labour Inspectorate to review the application of labour law by the diocese (his employer), upheld the refusal, holding that in matters of internal discipline, the provisions of internal regulations alone were applicable.
30. In a final judgment of 4 October 1990 the Medgidia Court of First Instance ordered the entry of Solidaritatea, a union of Orthodox clergy of the Archdiocese of Tomis (Constanţa), in the register of trade unions and granted it legal personality.
31. It further appears from the reasoning of the Iaşi Court of Appeal’s above-mentioned judgment of 3 June 2008 that the Sfântul Mare Mucenic Gheorghe union of Orthodox clergy was entered in the register of trade unions and granted legal personality as a result of a final judgment delivered on 5 June 2007 by the Hârlau Court of First Instance.
32. Romania ratified the revised European Social Charter on 7 May 1999. Article 5 of the Charter, concerning the right to organise, is worded as follows:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
33. Article 12 § 1 of the Charter of Fundamental Rights of the European Union reads as follows:
“Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests.”
34. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation reads as follows, in so far as relevant:
“...
(4) The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. Convention No. 111 of the International Labour Organisation (ILO) prohibits discrimination in the field of employment and occupation.
(5) It is important to respect such fundamental rights and freedoms. This Directive does not prejudice freedom of association, including the right to establish unions with others and to join unions to defend one’s interests.
...
(24) The European Union in its Declaration No. 11 on the status of churches and non-confessional organisations, annexed to the Final Act of the Amsterdam Treaty, has explicitly recognised that it respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States and that it equally respects the status of philosophical and non-confessional organisations. With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity. ...”
“1. ... Member States may provide that a difference of treatment which is based on [religion or belief] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
2. Member States may maintain national legislation in force ... or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. ...
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”
VIOLATED_ARTICLES: 11
VIOLATED_PARAGRAPHS: 11-1


ITEMID: 001-68646
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MACKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1923 and lives in Liptovský Mikuláš.
9. The father of the applicant owned a residential house. At some point in the late 1940s or early 1950s the house was expropriated and attributed to a State company. The applicant's father died in 1959.
10. On 23 January 1991 the applicant lodged a demand with the State company for restoration of the house to her under the ExtraJudicial Rehabilitations Act (Law no. 87/1991 Coll.).
11. On 25 March 1992 the applicant filed a claim against the State company with the Liptovský Mikuláš District Court (Okresný súd) for the restitution of the house. In response to the District Court's request the applicant clarified and supplemented her original submission on 4 November 1992.
12. On 9 September 1993 the applicant submitted a further specification of the subjectmatter of her action.
13. On 14 September 1993 the District Court held a hearing.
14. By a submission of 23 September 1993 the applicant restated the scope of the subjectmatter of her action.
15. On 7 October 1993 the District Court held a hearing and granted the action.
16. On 3 November 1993 the judgment was sent by registered mail to both parties. The State company confirmed receipt of the judgment by signing a postal delivery card (doručenka) indicating 22 November 1993 as the date of service.
17. On 6 December 1993 the State company filed an appeal to the Banská Bystrica Regional Court (Krajský súd). It claimed that the District Court's judgment had been served on it on 22 November 1993.
18. On 23 December 1993 the applicant filed her observations in reply to the appeal.
19. On 11 January 1994 the District Court transmitted the casefile to the Regional Court for a determination of the appeal. On 14 March 1994 the Regional Court returned the casefile to the District Court as the latter had failed to collect the court fee from the appellant State company. On 25 August 1994 the District Court resubmitted the appeal to the Regional Court after having collected the court fee.
20. On 17 November 1994 the Regional Court held a hearing on the appeal, quashed the District Court's judgment and remitted the case to the District Court for reexamination.
21. On 11 January 1995 the District Court requested the parties to submit further evidence and especially the Decree of 8 July 1950 on nationalisation of the estate of the applicant's father (the “Nationalisation Decree of 1950”). On 19 February 1995 the applicant submitted evidence and informed the District Court that she was still searching for the Nationalisation Decree of 1950 and that she would submit it as soon as it was found.
22. On 9 March 1995 the applicant informed the District Court that, according to reports of 16 February and 2 March 1995 from the Slovakian National Archive and the Liptovský Mikuláš District Library, respectively, the Nationalisation Decree of 1950 could not be found there.
23. On 14 September 1995 the applicant appointed a lawyer to represent her in the proceedings.
24. On 11 October 1995 the Ministry of Administration and Privatisation of National Property (Ministerstvo pre správu a privatizáciu národného majetku) decided under the Act on the Transfer of State Property to Private Persons (Law no. 92/1991 Coll., as amended) to privatise the subsidiary of the State company whose assets comprised the house. The State company was transformed into a private joint stock company (“the privatised company”). Its assets were transferred to the National Property Fund (Fond národného majetku – “the Fund”) and later invested in the privatised company. The Fund subsequently sold 51% of the shares of the privatised company to a third private party.
25. The hearing scheduled for 14 March 1996 had to be adjourned as none of the parties appeared, the applicant having duly apologised for her absence.
26. On 22 April 1996 the National Archive informed the applicant again that it was unable to find the Nationalisation Decree of 1950.
27. On 4 June 1996 the applicant requested that the District Court investigate when its judgment of 7 October 1993 had been served on the State company.
28. The District Court then made an inquiry with the Liptovský Mikuláš Post Office about the service of the judgment of 7 October 1993 to the State company and obtained the information that service had been effected on 4 November 1993.
29. On 2 September 1996 the applicant informed the District Court that she had withdrawn the power of attorney from her previous legal representatives. She appointed as a new representative her son who permanently resided in Toronto (Canada) but, at that time, was staying and had an address in Slovakia. The applicant identified the privatised company as the new defendant to her action and made a new submission concerning the merits of her case. Among other things, she pointed out that the District Court's judgment of 7 October 1993 had in fact already been received by the State company on 4 November 1993. She maintained that in order to satisfy the fifteen days' timelimit for its appeal of 6 December 1993, the State company had forged the date stated in the postal delivery card to indicate 22 November 1993 as the judgment service date. She requested that that appeal be declared inadmissible as having been lodged out of time and that her action be granted.
30. The applicant made six written submissions between September 1996 and February 1997. The privatised company also made three written submissions between November 1996 and February 1997.
31. In the meantime, on 19 September 1996 and 23 January and 7 February 1997 the District Court held hearings. The hearing of 23 January had to be adjourned in order that the District Court could examine the recent submissions of the parties.
32. On 19 February 1997 the applicant informed the District Court of her witnesses.
33. On 28 February 1997 the District Court requested information from the Fund concerning the settlement of the applicant's restitution claims in the process of privatisation of the State company. The Fund replied on 6 March 1997.
34. The applicant made further written submissions on 21 March, 24 March and 9 April 1997.
35. On 10 April 1997 the District Court held a hearing and gave a new judgment in the case. It ordered the privatised company to surrender the house to the applicant. The District Court further decided that the applicant was entitled to compensation in respect of her legal costs. As to the amount of this compensation, the District Court accepted only a minor part of the applicant's claim and dismissed its remainder.
36. On 14 April 1997 the applicant submitted a further specification of her claim for compensation in respect of the costs and expenses.
37. On 27 May 1997 the privatised company lodged an appeal against the District Court's judgment of 10 April 1997 with the Žilina Regional Court. On 13 June 1997 the applicant filed her observations in reply to the company's appeal.
38. The Regional Court called a hearing for 10 February 1998 but it had to be adjourned as neither the applicant nor her representative who was at that time in Canada appeared. On 26 February 1998 the applicant requested that the Regional Court fix the next hearing for 18 March 1998 as on that day her representative would be able to attend.
39. On 17 March and 21 April 1998 the Regional Court held hearings. Following the later one, on the same day, the Regional Court gave a judgment in which it upheld the District Court's judgment as regards the merits of the case. As to the applicant's argument concerning the admissibility of the State company's appeal of 6 December 1993, the Regional Court found it established that the judgment of 7 October 1993 had in fact been served on the State company on 4 November 1993 and not on 22 November 1993. It however held that it was not competent to reexamine the admissibility of the appeal of 6 December 1993 as this appeal had already been determined by the Banská Bystrica Regional Court in its decision of 17 November 1994. The Regional Court found the District Court's ruling in respect of the applicant's costs and expenses to be “absolutely incomprehensible”, quashed it and remitted the matter to the District Court for a new decision. The decision on the merits of the case became final and binding on 20 August 1998.
40. On 1 December 1998 the Regional Court corrected a clerical error in its judgment of 21 April 1998.
41. On 1 March 1999 a Judicial Enforcement Officer (súdny exekútor), commissioned by the applicant to enforce the District Court's judgment of 10 April 1997, as upheld by the Regional Court on 21 April 1998, notified the privatised company that enforcement proceedings had been instituted. The privatised company filed objections against this enforcement with the District Court.
42. On 19 May 1999 the District Court dismissed the company's objections and the enforcement was successfully completed.
43. On 6 April and 13 October and 14 October 1999 and 2 May 2001 the applicant made further submissions concerning her claim for reimbursement of her costs and expenses. In the meantime she was instructed by the District Court to bring her claims in line with the applicable procedural requirements.
44. In its decision of 21 May 2001 the District Court made an award for costs. As no appeal was lodged, it became final and binding.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98941
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: K.M. AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicants are Ms M.H., who was born in 1963, Ms M.D., who was born in 1998, and Mr L.C., who was born in 1965. The applicants are Chinese nationals. The first and the third applicants are married; they are the parents of the second applicant. Prior to the deportation of the first two applicants to China in March 2007, the applicants lived in St. Petersburg, Russia. After that the third applicant was resettled in Sweden by the United Nations High Commissioner for Refugees (UNHCR).
The facts of the case, as submitted by the parties, may be summarised as follows.
According to the applicants' submission, the first applicant is a RussianChinese interpreter. She married the third applicant in 1987. The applicants furnished the Court with a certified copy of their marriage certificate. Their daughter, the second applicant, was born in July 1998. The third applicant had lived in St. Petersburg since 1997; he had a valid work permit.
Between 1992 and 1998 the first applicant worked in St. Petersburg, and then from September 1998 to July 1999 she was in China. In August 1999 she returned to St. Petersburg. Her residence permit was valid until 25 August 2003.
Since 1997 the first applicant has been a follower of the Falun Gong (also spelled as Falung Gong and Falung Dafa) movement persecuted by the Chinese authorities. In March 2003 she went to Switzerland to take part in an international conference of Falun Gong. There she learnt that her name had been placed by the Chinese authorities on a “blacklist” as an activist of the movement.
In April 2003 the first applicant was interviewed at the UNHCR Office in Moscow. In October 2003 she was granted refugee status under the mandate of the UNHCR.
The Government submitted that the first and second applicants had been registered by the Russian authorities as persons seeking asylum in Russia. The third applicant had never been registered as an asylum seeker; he was in Russia on a valid work visa. The first applicant has never applied for authorisation to remain in Russia as his spouse. The Government further stated that the first and third applicants were not married and that the third applicant was not the father of the second applicant. They referred to a copy of the second applicant's birth certificate which did not provide information about her father but simply stated: “Russian”. In addition, the third applicant was never registered as the second applicant's father with the Russian immigration authorities.
On 20 August 2003 the first applicant applied to the Department of Migration Affairs of the Ministry of the Interior in St. Petersburg (the Department of Migration Affairs) for asylum. The asylum request also included the second applicant, her daughter. In her request the applicant stated that she was not being sought by the authorities in China, that she did not follow any religion and that her relatives had not been arrested by the Chinese authorities. At the same time she submitted that she could not return to China due to the persecution of members of Falun Gong, even though she had not played any role in the movement.
On 30 April 2004 the Department of Migration Affairs rejected her request. The decision comprised eleven pages and provided a detailed explanation of the reasons for the refusal to grant refugee status. In particular, it stated that the applicant had been inconsistent in her submissions concerning the circumstances under which she had learnt that her name had been put onto the authorities' blacklist, having provided four different versions of the events; that her husband, who was also a follower of the same movement, had never applied for asylum and that she had submitted her request for asylum when her permission to remain in Russia was about to expire.
On 31 May 2004 the first applicant appealed against the refusal to the Kuybyshevskiy district court. On 21 November 2005 the district court dismissed her appeal and on 29 June 2006 the St. Petersburg City Court upheld the decision of the first-instance court.
On 18 November 2005 the first applicant issued an official authority form authorising a number of persons, including Ms. Oshirova, to represent her in all legal proceedings.
On 30 July 2007 Ms Oshirova, on the basis of the form of 18 November 2005, authorised Ms Tseytlina to represent the first applicant in all legal proceedings. It appears that the first applicant was not aware of this.
On 4 September 2007 the first applicant cancelled the authority form of 18 November 2005 (see below).
On 29 June 2006 the first applicant lodged a request for temporary asylum with the Department of Migration Affairs. On 18 September 2006 her request was refused. The first applicant appealed against the decision to the Dzerzhinskiy district court of St. Petersburg (“the Dzerzhinskiy district court”). On 6 December 2006 the court upheld the refusal to grant temporary asylum. On 12 February 2007 the court's decision entered into force.
The first applicant appealed against that decision but did not pay the court fee. On 21 February 2007 the district court ordered a stay of the appeal proceedings. On 14 March 2007 the first applicant had applied to the same court with a request for the time-limit for submitting an appeal to be restored. The district court scheduled a hearing for the restoration of the time-limit for 30 March 2007 and summoned the first applicant to that hearing.
On 30 March 2007 the district court rejected the claim concerning reinstatement of terms for appeal against its decision of 6 December 2006. Meanwhile, on 13 March 2007 the Department of Migration Affairs decided to deport the first applicant.
On 28 February 2007 the Department of Migration Affairs issued a decision to deport the first and second applicants from Russia, which was confirmed by the Federal Migration Service (the FMS) on 13 March 2007.
On 28 March 2007 officers of the FMS arrived at the applicant's flat and took the first and second applicants to the airport for deportation. They were put on a plane to Beijing and left Russia the same day.
On 9 April 2007 (in the submitted documents the date was also referred to as 6 April 2007) the third applicant appealed to the Dzerzhinskiy district court against the deportation order. On 13 April 2007 the court delivered two rulings. The first one concerned the court's refusal to examine the appeal as it had been lodged with a court which did not have jurisdiction; the second one stated that the third applicant was not empowered to submit complaints on behalf of the first and second applicants.
On 5 June 2007 the St. Petersburg City Court quashed these two rulings and instructed the court to review these complaints in a single set of proceedings.
On 30 June 2007 the third applicant left Russia.
On 28 July 2007 the third applicant asked the district court to examine his appeal against the deportation in his absence.
On 5 September 2007 (in the submitted documents the date was also referred to as 4 September 2007) the first applicant revoked the authority form issued for her representatives Ms Tseytlina and Ms Oshirova and requested that all legal proceedings initiated on her behalf, including those concerning the deportation, be discontinued. The Government furnished the Court with a certified translated copy of the request to this effect, no. 32414, dated 5 September 2007. The text of the document, which was certified by a notary in China, included the first applicant's address in Harbin, China and the following text:
“...I declare that hereby I am cancelling the authority form of 18 November 2005 for the representation of my interests in civil and other proceedings in courts, governmental and other institutions...
I request that the appellate proceedings initiated by my representatives in connection with the deportation decision of the Russian Federal Migration Service and the actions taken by the Department of Migration Affairs in connection with my deportation be discontinued.
I understand the consequences of the refusal to continue the above proceedings...”
It appears that on 9 November 2007 the Dzerzhinskiy district court discontinued the proceedings initiated by the third applicant and on 20 November 2007 this decision became final.
On 23 November 2007 the applicants' representative Ms Tseytlina lodged the third applicant's request dated 22 November 2007 for postponement of a hearing scheduled for 23 November 2007 as the third applicant had not been able to properly prepare the authority form for Ms Tseytlina and Ms Oshirova as his passport had been in the process of being issued.
On the same date, 23 November 2007, the Dzerzhinskiy district court discontinued the proceedings initiated by the third applicant, stating that the proceedings did not concern his legitimate rights. On 3 December 2007 the applicant's representatives appealed against this decision.
On 15 January 2008 the St. Petersburg City Court forwarded the applicants' case to the Dzerzhinskiy district court to determine the right of the third applicant to appeal against the decision of 23 November 2007 as he had failed to submit any documents authorising Ms Tseytlina and Ms Oshirova to participate in the appellate proceedings.
It is unclear whether the third applicant was able to submit any documents authorising Ms Tseytlina and Ms Oshirova to participate in the appellate proceedings and if not whether the proceedings have been discontinued.
The applicants submitted that the first applicant's relatives in China had come to the airport to meet her; however, she and the second applicant had not come out and had not been on the list of passengers. The second applicant had later been taken by the police to the relatives' house in Harbin, China. It appears that the first applicant had been arrested upon arrival and released after nine days. No information concerning the time, the place of the arrest or the authority effecting it, the detention facility, its location or any other details pertaining to these events were provided to the Court.
The applicants further submitted that since their return to China the first and the second applicants had been living with their relatives. According to their submission, the first applicant's passport had been taken away from her, she had been instructed to inform the police about her movements and put under pressure to renounce the practice of Falun Gong. The first applicant asked the third applicant not to call her because it put her relatives at risk. No details pertaining to this part of the applicants' submission had been submitted to the Court.
For a summary of the relevant provisions see Y. v. Russia (no. 20113/07, 4 December 2008).


ITEMID: 001-139269
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: BRÁS DE MATOS AND DA COSTA TORREZÃO v. PORTUGAL
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 1. The applicant in the first case, Ms Silvia Brás de Matos, is a Portuguese national, who was born in 1968 and lives in Entroncamento.
2. The applicant in the second case, Ms Sandra Maria da Costa Torrezão, is a Portuguese national, who was born on 7 September 1984 and lives in Setúbal.
4. On 3 November 2009 the applicant gave birth to C. in Leiria.
5. On an unknown date, the Commission for the Protection of Children and Young Persons (Comissão de Protecção de Crianças e Jovens – CPCYP) of Torres Novas reported the applicant’s family situation to the Prosecutor’s Office at the Entroncamento Court. Proceedings for the protection of children and young persons (processo de promoção e protecção de crianças e jovens em risco) were initiated and the prosecutor ordered that C. was not to leave the hospital.
6. On 12 November 2009, C. was provisionally placed in a foster home 12 kilometres away from the applicant’s home. The admission into foster care was decided on the grounds that the applicant was living in substandard housing, without furniture, that she was suffering from a mild psychological and emotional condition and that she was unemployed. The decision was also based on the fact that the applicant’s partner, who was the father of the child, was alcoholic and had displayed violent behaviour towards the applicant.
7. On an unknown date, the applicant moved to a new apartment in Entroncamento and left her partner.
8. On 2 December 2009, the prosecutor confirmed the placement of C. in foster care for a period of three months and the applicant agreed to see a psychiatrist on a regular basis.
9. Between 12 May and 3 June 2010, the applicant, who was then suffering from depression owing to the separation from her child, was admitted to the Coimbra Psychiatric Unit.
10. On 29 June 2010, the placement of C. in foster care was extended for another six months and the applicant renewed her promise to see a psychiatrist and promised to find a job, as well as better housing.
11. On 21 December 2010, the prosecutor confirmed the placement of C. pending review of the interim protection order as provided for by law.
12. The applicant, who was granted legal aid, opposed the extension of the measure and the case was brought before the Entroncamento Court. The prosecutor requested that the child be placed in foster care with a view to her adoption; the applicant requested that she be returned to her.
13. By a judgment of 17 May 2011, the Entroncamento Court ordered the final placement of C., then eighteen months old, in foster care with a view to her adoption. Relying, in particular, on the statements from the social services in Torres Novas and from the foster home’s staff, the court considered that the applicant was not in a position to change her situation and fulfil her parental duties. As no other family member was available to take care of the child, the court considered that the placement in foster care, with a view to adoption, would be in the best interests of the child.
14. The applicant challenged the decision before the Evora Court of Appeal (Tribunal da Relação de Évora), which, on 22 September 2011, dismissed the appeal and upheld the decision of the firstinstance court.
15. There was no subsequent appeal before the Supreme Court of Justice (Supremo Tribunal de Justiça).
16. On 7 April 2009, the CPCYP was informed that the applicant was living in poor conditions and about to give birth. The applicant and her partner were both HIV-positive. The former had an unstable professional and personal life and had previously suffered the loss of a child in circumstances which remained unclear. The latter had a long history of drug addiction.
17. On 13 May 2009 the applicant gave birth to J.P. in Setúbal.
18. The child was immediately admitted to the paediatric service of the hospital and then placed in foster care following an interim protection order issued on 28 May 2009.
19. On an unknown date, the case was brought before the Setúbal Family Court (Tribunal de Família e Menores de Setúbal), which held a hearing on 3 May 2010. The applicant alleged that she had not been informed of the hearing and had therefore not been heard by the court.
20. On 6 May 2010, the Setúbal Family Court ordered the placement of the child in foster care with a view to his adoption.
21. On 11 May 2010, the applicant’s newly appointed lawyer challenged that decision before the Evora Court of Appeal, which, on 17 November 2010, upheld the first-instance decision.
22. Despite the applicant’s wish, the appointed lawyer did not bring the case before the Supreme Court, considering that an appeal against a decision based on “suitability and appropriateness” (conveniência ou oportunidade) would be barred by Article 1411, paragraph 2, of the Code of Civil Procedure.
23. On an unknown date, the applicant wrote a letter to the Supreme Court, which replied, on 18 November 2011, that it could only hear formal appeals against decisions of lower jurisdictions lodged in compliance with the applicable rules.
24. On 10 February 2011, the applicant lodged an administrative request with the Prosecutor’s Office. The request was closed on 23 March 2012 and a similar request was again closed on 24 September 2012.
25. On 25 September 2012, the applicant was informed that the case was being transferred to the Barreiro Family Court (Tribunal de Família e Menores do Barreiro). The reasons for this transfer are unknown.
26. On 24 October 2012 the applicant was notified that the Barreiro Court would discontinue the proceedings as the case had already been settled by the Evora Court of Appeal.
27. The relevant legislation relating to interim protection orders is described in the Court’s judgments in the cases of Assunção Chaves v. Portugal, no. 61226/08, §§ 56-58, 31 January 2012 and Pontes v. Portugal, no. 19554/09, §§ 61-63, 10 April 2012.
In particular, Section 100 of Law no. 147/99 of 1 September 1999 on proceedings for the promotion of rights and protection of children and young persons in danger (processo de promoção de direitos e protecção das crianças e jovens em risco), as amended by Law no. 31/2003 of 22 August 2003, reads as follows:
“Proceedings for the protection of children and young persons in danger ... are based on voluntary jurisdiction [Jurisdição voluntária].”
28. Article 1411, paragraph 2, of the Portuguese Code of Civil Procedure reads as follows:
2 – Decisions adopted on grounds of suitability or appropriateness [conveniência ou oportunidade] shall not be subject to appeal before the Supreme Court of Justice.
29. The relevant case-law of the Supreme Court of Justice shows a general trend towards recognition of the Supreme Court’s jurisdiction to hear appeals relating to the protection of children and young persons as long as the appeals raise issues of law and do not question the “suitability or appropriateness” of the lower court’s decisions, which are matters of fact. The following are some excerpts from relevant decisions:
“... The intervention of the Supreme Court of Justice in the judgment of appeals is limited to an assessment of the decisions taken in accordance with strict legality. 3. It can verify compliance with requirements, procedural or substantive, the power to choose the most convenient measure to protect the interests at stake and the compliance with the purpose for which such powers were allocated to the courts, but not the suitability or appropriateness of that choice.” (10 April 2008)
“... However, this limitation does not imply that the intervention of the Supreme Court of Justice should be totally excluded with regard to this type of appeal; it merely restricts it to an assessment of the appealed decisions as far as the strict application of the law is concerned. In particular, [it restricts the Supreme Court’s assessment] to the procedural and substantive grounds on which the power to adopt the relevant measure ... is exercised” (20 January 2010).
“As proceedings for the promotion and protection of children and young persons at risk are qualified as voluntary jurisdiction proceedings, ... its [Supreme Court of Justice] intervention can only be limited to verifying the procedural and substantive assumptions legally established for the application of the measure that has been determined by the lower court and its adequacy for the purpose to which the criteria of suitability and appropriateness must be subordinated.” (4 May 2010)
“... However, this legal provision must be carefully interpreted as, frequently, the appeals do not only relate to lower courts’ decisions based on suitability or appropriateness but also to the enforceability of the legal requirements or other requirements on which the decisions are based, namely their compliance with constitutional or supranational norms, which are subject to the scrutiny of the Supreme Court of Justice.” (21 October 2010).
“Granting custody [of the child] to the person selected for adoption or to an institution with a view to future adoption triggers a severance in any existing relation with the biological family of the child. ... Such a measure is based on the general assumption that there is no affective parent-child relationship, or that any such relationship is severely impaired, and can only be decided in the situations described [Article 1978, paragraph 1, of the Civil Code] where verification is subject, on appeal, to the Supreme Court of Justice’s scrutiny.” (30 June 2011).