ITEMID: 001-110943
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF OGRAZDEN AD AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Civil proceedings;Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. On 16 July 1999 the Strumica Court of First Instance ordered a certain Mr I.A. to pay a debt established in the first applicant’s favour. On 22 March 2010 the first-instance court stayed the enforcement proceedings since the debtor had died. The applicant did not appeal against this decision.
6. In the meantime, on 30 April 2009, the first applicant lodged a length complaint with the Supreme Court. On 3 July 2009 the court established that the enforcement proceedings, at that moment, had been pending for ten years before the first-instance court and had not yet ended. The court found that there was a violation of the first applicant’s right to a hearing within a reasonable time. It set a six-month time-limit for the first-instance court to bring the enforcement proceedings to a conclusion and awarded the first applicant the equivalent of 325 euros (EUR) by way of just satisfaction. In the absence of an appeal, this decision became final on 22 October 2009.
7. On 30 September 1998 the second applicant sought that the Pension and Disability Insurance Fund (“the Fund”) recognise her right to a disability pension. After several remittals ordered by the Government Appeal Commission and the Supreme and Administrative Courts, on 25 November 2009 the Fund accepted the second applicant’s request and acknowledged her right to a disability pension.
8. In the meantime, on 27 January 2009, the second applicant complained to the Supreme Court that the administrative proceedings had lasted too long and requested compensation. On 23 March 2010 the Supreme Court established that the impugned proceedings, at that time, had lasted for over ten years and awarded her the equivalent of EUR 410 by way of just satisfaction. On 31 May 2010 the second-instance panel of the Supreme Court allowed the second applicant’s appeal and awarded her a higher compensation, the equivalent of which was EUR 980. This sum was paid on 15 September 2010.
9. On 12 April 2001 the third applicant requested annulment of her dismissal. On 18 September 2007 the Skopje Court of Appeal overturned the lower court’s decision and dismissed her claim. On 22 January 2009 the Supreme Court dismissed on the merits the third applicant’s appeal on points of law (ревизија).
10. In the meantime, on 8 July 2009, the third applicant complained to the Supreme Court about the length of the labour proceedings. On 29 September 2009 the Supreme Court rejected (отфрла) her claim as having been submitted outside the statutory six-month time-limit, which, in her case, started to run on 18 September 2007. The second-instance panel of the Supreme Court confirmed this decision.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71870
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: BERGAUER AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicants are 90 German, Austrian or American nationals, all of German ethnic origin. They or their ancestors were residing in former Czechoslovakia, from the territory of which they were expelled after the Second World War. Before the Court they are represented by Mr T. Gertner, a lawyer practising in Bad Ems (Germany).
The applicants or their ascendants lost their Czechoslovak citizenship as a consequence of the Munich Pact (Mnichovská dohoda) concluded between Germany, the United Kingdom, France and Italy on 29 September 1938. In September 1938 border areas of Czechoslovak territory, termed by the applicants “Sudetenland”, were annexed to Germany under the Pact, on the basis of which 800,000 Czechoslovak citizens were ordered to leave their property and move to the remaining territory of Czechoslovakia known as the Second Republic. Their real estate was expropriated without compensation.
On 20 April 1939 the German Minister of the Interior adopted an Ordinance on the acquisition of German citizenship by former Czechoslovakian citizens of German ethnicity. These persons were collectively made German nationals without their consent.
On 9 May 1945 the Czechoslovak territory was liberated and the Government, led by President Mr Edvard Beneš, returned from their exile in London to re-establish the rule of law after the war. A number of presidential decrees was adopted.
The applicants submit that, during the liberation of Czechoslovakia and after 9 May 1945, they and/or their family’s predecessors became victims of severe and unjustified ill-treatment. This consisted of, inter alia, various unsubstantiated assaults, individual acts of violence and harassment allegedly committed by members of the Czech partisans’ guards, forcible replacement and internment in inadequate conditions, obligatory labelling of German nationals with distinguishing arm bands, forcible evictions, confiscation of movable assets and valuables, and forced labour.
On 23 May 1945 Presidential Decree no. 5/1945 on the Invalidation of Certain Property Transactions during the period of Lack of Freedom and on the National Administration of the Values of Germans, Hungarians, Traitors and Collaborators, and Certain Organisations and Institutes (dekret presidenta republiky o neplatnosti některých majetkově-právních jednání z doby nesvobody a o národní správě majetkových hodnot Němců, Maďarů, zrádců a kolaborantů a některých organisací a ústavů) entered into force. It provided, inter alia, that “any form of property transfer and transaction affecting property rights, in terms of movable and immovable assets and public and private property, shall be invalidated if it was adopted after 29 September 1938 under pressure by the Nazi occupation forces or due to national, racial or political persecution”. Moreover, “those persons who in any census held after 1929 declared themselves to be of German or Hungarian origin, or became members of national groups, formations or political parties, which functioned as associations for persons of German or Hungarian nationality, shall be deemed persons of German or Hungarian nationality”.
On 23 June 1945 Presidential Decree no. 12/1945 on the Confiscation and Accelerated Allocation of the Agricultural Property of Germans, Hungarians, Traitors and Enemies of the Czech and Slovak nations (dekret presidenta republiky o konfiskaci a urychleném rozdělení zemědělského majetku Němců, Maďarů, jakož i zrádců a nepřátel českého a slovenského národa) entered into force. It provided for the expropriation, with immediate effect and without compensation, of agricultural property for the purposes of land reform. It concerned any agricultural property, with its attachments - buildings and movable goods - in the ownership of all persons of German and Hungarian origin, irrespective of their citizenship status.
On 10 August 1945 Presidential Decree no. 33/1945 on the Adjustment of the Czechoslovak Citizenship of Persons of German and Hungarian Nationality (dekret presidenta republiky o úpravě československého státního občanství osob národnosti německé a maďarské) entered into force. On the basis of this decree, the Czechoslovak State released from its citizenship those persons who, “in compliance with the regulations of the foreign occupation forces, had acquired German or Hungarian citizenship”. Czechoslovak citizenship was retained by persons who had demonstrated “their loyalty to the Czechoslovak Republic, had never committed any offence against Czech and Slovak nationals, and who had either actively participated in the struggle for the liberation of the country, or had suffered under Nazi or fascist terror”. Citizenship was also retained by Germans and Hungarians who “in the period of the increased threat to the Republic, officially registered as Czech or Slovaks”. A further category provided for people who could apply to recover citizenship within six months from the date of the publication of the relevant Interior Ministry regulation. This group included German “opponents of Nazism and Fascism”. Applications for the recovery of Czechoslovak citizenship were to be filed with district national committees between 10 August 1945 and 10 February 1946.
Following the resolution adopted at the Potsdam Conference with the unanimous consent of the Allied Powers, the German populations from the territories of Czechoslovakia, Poland and Hungary were moved to Germany. The actual performance and technical modalities of the move were subject to regulation by subordinate legislation; no particular laws or presidential decrees providing for the execution of the relocation were adopted.
Presidential Decree no. 108/1945 on the Confiscation of Enemy Property and the National Restoration Funds (dekret presidenta republiky o konfiskaci nepřátelského majetku a Fondech národní obnovy) entered into force on 30 October 1945. It provided for the confiscation of the property of Germans, Hungarians, traitors and collaborators, and persons with an unreliable attitude to the State. However, the property of the people, including Germans and Hungarians, who took an active part in the fight for the preservation of the territorial integrity and liberation of the Czechoslovak Republic was not confiscated.
On 21 December 1945 the Final Act of the Paris Conference on Reparation (Dohoda o reparacích od Německa, o zřízení Mezispojeneckého reparačního úřadu a o vrácení měnového zlata) established, that:
“Each of the signatory governments, through the form fixed on its own discretion, will keep German enemy property under its authority, or will dispose of it in such a way that it could not return under German ownership or control, and will subtract this property from its share of the reparations.”
On 4 June 1946 Act No. 115/1946 on the Legality of Acts in connection with the Struggle to regain the Liberty of the Czechs and Slovaks (zákon o právnosti jednání souvisících s bojem o znovunabytí svobody Čechů a Slováků) entered into force. Under section 1, “Any act committed between 30 September 1938 and 28 October 1945, the object of which was to contribute to the struggle for the liberty of Czechs and Slovaks, or which represented just reprisals for actions of the occupation forces and their accomplices, is not unlawful even if it would be punishable under the currently applicable laws.”
Established in 1947, ad hoc parliamentary committees investigated the circumstances of acts of violence committed after the liberation in 1945, as a result of which a number of criminal proceedings had commenced and continued until February 1948, when the democratic constitution of Czechoslovakia was undermined again.
II. The period shortly before and after 18 March 1992, the date of the entry into force of the European Convention on Human Rights with regard to the Czech Republic
On 1 April 1991 the Extra-Judicial Rehabilitation Act no. 87/1991 entered into force. The act affirmed the intention to redress the consequences of certain infringements of property and other rights which had occurred between 1948 and 1989. Section 3(1), inter alia, provides that, in order to be entitled to the restitution of property, a claimant must be a natural person and a citizen of the Czech and Slovak Federal Republic.
On 24 June 1991 the Land Ownership Act no. 229/1991 entered into force. It regulates, inter alia, the restitution of certain agricultural and other property, defined in section 1, which was assigned or transferred to the State or other legal entity between 25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving rise to a restitution claim. The persons entitled to claim restitution are set out in section 4 which provides, inter alia, that any natural person who is a citizen of the Czech and Slovak Federal Republic and who lost property which once formed his or her agricultural homestead in the period from 25 February 1948 to 1 January 1990, in one of the ways set out in section 6(1), is entitled to claim restitution.
On 15 April 1992 the Restitution Act no. 243/1992 entered into force. It established Czechoslovak (Czech) citizenship and permanent residence within the Czechoslovak territory as the prerequisite conditions for claiming expropriated real estate.
In a judgment of 12 July 1994 the Constitutional Court (Ústavní soud) abrogated the condition of permanent residence within the territory of the Czech Republic, laid down in the Extrajudicial Rehabilitation Act, for persons claiming restitution.
On 8 March 1995 the Constitutional Court dismissed a constitutional appeal (ústavní stížnost) filed by Mr R. Dreithaler who had sought to repeal Presidential Decree No. 108/1945. It stated in particular:
“(...) since the enemy occupation of the Czechoslovak territory by the armed forces of the Reich had made it impossible to assert the sovereign State power which sprang from the Constitutional Charter of the Czechoslovak Republic, introduced by Constitutional Act no. 121/1920, as well as from the whole Czechoslovak legal order, the provisional Constitutional Order of the Czechoslovak Republic, set up in Great Britain, must be looked upon as the internationally recognised legitimate constitutional authority of the Czechoslovak State. In consequence thereof and as a result of their ratification by the Provisional National Assembly by Constitutional Act no. 57/1946 of 28 March 1946, all normative acts of the Provisional Constitutional Order of the Czechoslovak Republic are expressions of legal Czechoslovak (Czech) legislative power, so that as a result thereof the striving of the nations of Czechoslovakia to restore the constitutional and legal order of the Republic was achieved. (...)
(...) it is true in principle that that which emerges from the past must, face to face with the present, pass muster in respect of values; nevertheless, this assessment of the past may not be merely the present passing judgment upon the past. In other words, the present order, which has been enlightened by subsequent events, draws upon those experiences, and looks upon and assesses a great many phenomena with the advantage of hindsight, may not sit in judgment upon the order which has prevailed in the past. (...)
In view of the fact that [the Decree] has already accomplished its purposes and for a period of more than four decades has not created any further legal relations, so that it no longer has any constitutive character, in the given situation its inconsistency with constitutional acts or international treaties (...) cannot be reviewed today.”
In a judgment of 13 December 1995 the Constitutional Court abrogated the condition of permanent residence within the territory of the Czech Republic, laid down in the Land Ownership Act and the Restitution Act, for persons claiming restitution.
On 9 February 1996 Act No. 30/1996, amending the Land Ownership Act and the Restitution Act, entered into force. It amended the condition of permanent residence within the territory of the Czech Republic into the condition of lasting Czechoslovak (Czech) citizenship, and enabled the entitled persons, originally discriminated by the condition of residence, to re-introduce their restitution claim.
In a judgment of 29 June 2000 the Supreme Court (Nejvyšší soud) referred to Presidential Decree No. 108/1945 as valid legislation.
According to the applicants, this state of law, whereby the Presidential Decrees of 1945 were considered a valid part of the national legal system and a condition of lasting citizenship was required for claiming restitution, prevented them from raising their restitution claims before the courts. Due to this discouragingly defined position, they did not attempt to seek either restitution or financial compensation before the national courts, nor did they lodge an appeal or a proposal to repeal particular acts with the Constitutional Court.
On 21 January 1997 the Czech-German Declaration regarding Mutual Relations and their Future Development (Česko-německá deklarace o vzájemných vztazích a jejich budoucím rozvoji; Deutsch-tschechische Erklärung über die gegenseitigen Beziehungen und deren künftige Entwicklung) was concluded by the respective governments expressing their regret for the grievances arising from the period of 1938–1945 and a determination to maintain good neighbourly relations.
On 22 April 2002 the Czech Parliament adopted a resolution providing, inter alia, that “the legal and property relations resulting therefore [from the post-war laws and presidential decrees] are incontestable, unimpeachable and unchangeable.”


ITEMID: 001-87359
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: JAASKA v. ESTONIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Mr Kalmer Jaaska, is an Estonian national who was born in 1967 and lives in Põdra village, Tartu County. He is represented before the Court by Mr M. Paabumets, a lawyer practising in Tartu.
On 4 July 2003 a police investigator drew up a decision to charge the applicant with unlawful felling of forest and aggravated fraud.
On 8 July 2003 the Tartu County Court (maakohus) heard the police investigator’s request to take the applicant into custody. The hearing was held in the presence of the police investigator, public prosecutor and the applicant’s lawyer. The court granted the request and authorised the applicant’s detention for four months from the day of his arrest. It noted in its decision that according to the information presented by the investigator, the applicant had failed to appear before the investigator on three occasions in June 2003. On 2 July 2003 the police had sought to compel him by force to appear (sundtoomine) but he was not found at his place of residence. The court concluded that there were sufficient grounds to believe that the applicant was evading the proceedings and could commit further offences.
On 10 July 2003 the applicant appeared before the police investigator. He was presented with the decision to bring charges against him and with the County Court’s decision, and was taken into custody.
The applicant’s lawyer appealed against the County Court’s decision, complaining that the applicant had not been present at the court when his detention had been authorised and thus could not present his arguments against the detention. In any event, the applicant had been in contact with the police investigator and had not evaded the proceedings. Nor had there been any risk of the applicant committing further offences. The applicant’s lawyer noted in the appeal that the applicant wished to participate in the Court of Appeal (ringkonnakohus) hearing.
On 30 July 2003 the Tartu Court of Appeal heard the appeal in the presence of the applicant’s lawyer and the prosecutor. It dismissed the appeal. The court did not agree with the argument of the applicant’s lawyer that application of a preventive measure (tõkend) could be decided only in the presence of the accused. The court pointed out that as the applicant had been evading the investigation it had been necessary to make a decision by default. The Court of Appeal’s decision was final.
On 26 November 2003 the applicant was released from custody.
According to the applicant’s lawyer he posted an application, together with copies of relevant documents, addressed to the Court, on 22 September 2003. The letter was sent by registered mail but without a request for receipt. It never arrived at the Court’s Registry.
On 3 February 2005 the applicant’s lawyer sent an inquiry to the Court, noting that he had received no response. He asked for information about the state of the proceedings. Copies of the application of 22 September 2003 and of a receipt from the post office were appended to the letter. According to the post office receipt a letter from the lawyer’s law office to the Registrar of the European Court of Human Rights had been sent by registered mail on 22 September 2003. There was a printed text on the receipt according to which requests and complaints concerning registered mail could be made within six months from the date of the posting.
By a letter of 15 February 2005 the Registry informed the applicant’s lawyer that the Court had not received his letter of 22 September 2003. A case file concerning the application was opened and the applicant’s lawyer was requested to complete the application form and submit copies of all pertinent documents.
On 21 April 2005 the applicant’s lawyer submitted a completed application form together with copies of the application of 22 September 2003 and of the relevant documents. He also submitted a copy of his inquiry to the post office in Estonia, made on 16 March 2005, concerning the correspondence of 22 September 2003, and a reply of 18 March 2005, according to which it was possible to search for international registered mail within six months from the day following the posting of the correspondence. It had therefore not been possible to search for the letter sent by the applicant’s lawyer. The applicant’s lawyer requested that the Court consider 22 September 2003 as the date of the introduction of the application.


ITEMID: 001-91777
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SALMANOĞLU AND POLATTAŞ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 4. The applicants, who were born in 1983 and 1980, live in Izmir and Switzerland respectively. They were sixteen and nineteen years old at the time of the events giving rise to the present application.
5. On 6 March 1999 at 2 a.m. Nazime Ceren Salmanoğlu was taken into custody by police officers from the Anti-Terrorist Branch of the İskenderun police headquarters on suspicion of membership of the PKK (the Workers’ Party of Kurdistan, an illegal organisation).
6. On the same day at 3 a.m. she was taken to the İskenderun State Hospital, along with two other persons. In a document of the police headquarters in which the names of the detainees were put, the doctor, E.B., noted that there were no signs of physical violence on the applicant’s body.
7. On the same day, the head of the Anti-Terrorist Branch of the İskenderun police headquarters requested the İskenderun Maternity Hospital to establish Nazime Ceren Salmanoğlu’s virginity status and determine whether she had had recent sexual relations (bakire olup olmadığı ve yakın zamanda cinsel ilişkide bulunup bulunmadığını gösterir kati doktor raporunun verilmesi). The medical expert, S.S., who conducted the examination, noted, on a document of the police, that Nazime Ceren Salmanoğlu was still a virgin and had not had recent sexual relations.
8. On 8 March 1999 at 11.30 a.m. Fatma Deniz Polattaş was arrested by police officers from the Anti-Terrorist Branch of the İskenderun police headquarters, pursuant to an arrest warrant issued against her within the context of a police operation conducted against the PKK.
9. On the same day, the head of the Anti-Terrorist Branch of the İskenderun police headquarters requested the İskenderun Maternity Hospital to establish Fatma Deniz Polattaş’s virginity status and determine whether she had had recent sexual relations. She was examined by S.S. who subsequently informed the police that the applicant was a virgin and had not had recent sexual relations.
10. The applicants allege that they were subjected to ill-treatment while in police custody. In particular, Nazime Ceren Salmanoğlu was blindfolded, forced to stand for a long time, and deprived of food, water and sleep. She was also insulted and threatened with death and the torture of other members of her family. She was sexually harassed and beaten. Fatma Deniz Polattaş was blindfolded, insulted and beaten. The police officers also inserted a truncheon into her anus, which caused bleeding. A female police officer asked her family to provide clean underwear, which the applicant changed into. The applicants were both stripped naked by this female police officer, A.Y.
11. On 9 March 1999 at 12.35 a.m. the applicants and two other detainees were examined by a medical expert, B.I.K., at the İskenderun State Hospital who noted, in a letter sent to the hospital by the İskenderun police headquarters containing the detainees’ names, that Fatma Deniz Polattaş had been sensitive upon palpation of the scalp and in the lumbar region. The doctor observed no sign of physical violence on the applicants’ persons.
12. On 12 March 1999 at 10.15 a.m. the applicants were once again referred to the İskenderun Maternity Hospital for virginity testing. The applicants were not examined as they refused to undergo a gynaecological examination.
13. On the same day, the applicants and two other persons were also examined by a general practitioner, A.A., in a health clinic, who noted that there was no sign of physical violence on the detainees’ bodies in the letter which had actually been sent to him by the police.
14. On the same day the applicants were brought before a judge, who remanded them in custody. They were then placed in Adana prison. Subsequently, criminal proceedings were brought against them before the Adana State Security Court.
15. On 26 March 1999 Fatma Deniz Polattaş submitted a request to the İskenderun public prosecutor’s office, in which she contended that she had been subjected to mental and physical torture while in police custody and requested a gynaecological examination.
16. On an unspecified date the İskenderun public prosecutor started an investigation into the allegations of Fatma Deniz Polattaş.
17. On 6 April 1999 Fatma Deniz Polattaş was examined by a doctor, B.K., at the İskenderun State Hospital. Following a digital rectal examination, the doctor noted that there was no sign of intercourse in the anal region.
18. On 14 May 1999 the İskenderun public prosecutor issued a decision based on lack of jurisdiction (görevsizlik kararı) and passed the investigation to the İskenderun District Administrative Council for further proceedings under the Law on the prosecution of civil servants (Memurin Muhakematı Kanunu).
19. On 15 December 1999 the İskenderun District Administrative Council decided not to grant authorisation to prosecute two police officers from the Anti-Terrorist Branch of the İskenderun police headquarters. The district council based its decision on the medical reports of 8 and 12 March and 6 April 1999.
20. In the meantime, on 1 June 1999 Nazime Ceren Salmanoğlu made a statement to the Adana State Security Court in which she alleged that she had been subjected to various forms of ill-treatment while in police custody, including sexual abuse and psychological pressure.
21. On 19 July 1999 the Turkish Medical Association issued an opinion on the applicants’ previous medical examinations, without examining the applicants. Fatma Deniz Polattaş submitted to the Turkish Medical Association that she had been subjected to various types of ill-treatment while in police custody, including sexual abuse, rape (the insertion of a truncheon into her anus) and beatings, as a result of which one of her teeth was broken. The applicant further stated that she had pain, bleeding and difficulty in defecating. The medical report referred to the medical report of 9 March 1999, according to which the applicant had been sensitive upon palpation of the scalp and in the lumbar region. It further referred to the report dated 12 March 1999 which stated that there was no sign of physical violence on the applicant’s body. The doctors of the Association considered that the applicant’s complaints about her anal region were consistent with the allegation of rape. They also considered that her other complaints, such as pain in the lumbar region and in the legs, as well as difficulty in respiration, matched her allegations of ill-treatment.
22. Nazime Ceren Salmanoğlu submitted that she had been subjected to various types of ill-treatment while in police custody, including threats, sexual abuse and beatings to numerous parts of her body, in particular to her head, legs, genitals and anal region. She complained of pain in her teeth, heart, head, neck, back, shoulders, arms and hands, and difficulty in respiration. She also stated that she had sleep and memory problems. The medical report referred to the reports of 9 and 12 March 1999, according to which the applicant did not bear any sign of physical violence. The doctors considered that Nazime Ceren Salmanoğlu’s complaints matched the applicant’s allegations of ill-treatment.
23. The doctors from the Turkish Medical Association further considered that the applicants should undergo several medical examinations. They noted in respect of both applicants that the medical examinations which they had undergone following their release from police custody were not capable of establishing whether the applicants had actually been subjected to ill-treatment as alleged. The experts considered that these examinations were not “medically valid” as they did not comply with the standards established by the Ministry of Health and the Turkish Medical Association. In that connection, they noted that a record of the subjects’ statements and their complaints of physical and psychological symptoms had not been noted. They further considered that there had not been a detailed record of the findings of a thorough clinical examination. The doctors from the Turkish Medical Association also observed that the reports did not give details regarding the psychological complaints of the subjects and the doctors’ findings in this respect. They particularly criticised the virginity tests, stating that the doctors who had conducted these tests should have obtained the subjects’ consent and listened to their statements. They considered that, in the circumstances of the applicants’ case, the virginity tests appeared to have been carried out in order to humiliate the applicants.
24. On 9 November 1999 the applicants’ lawyers made a statement to the İskenderun public prosecutor’s office, alleging that the applicants had been subjected to ill-treatment while in police custody. They requested an investigation into the actions of the medical experts who had examined the applicants during and after their detention in police custody, and those of the police officers from the Anti-Terrorist Branch of the İskenderun Security Directorate. They also requested that the applicants be examined by medical experts from the Departments of Psychiatry at Çapa and Çukurova Universities.
25. On 24 November 1999 the applicants were examined by a doctor from the Adana Forensic Medicine Institute. The report concerning Fatma Deniz Polattaş referred to the latter’s complaints of pain in the anal region while sitting and on defecation. The doctor observed that one of her teeth was broken and concluded that she was unfit for work for ten days. As regards Nazime Ceren Salmanoğlu, the doctor observed a bruise of 1.5 cm. on her back and considered that she was unfit for work for three days.
26. On 14 December 1999 the İskenderun public prosecutor issued a decision not to prosecute anyone in relation to the applicants’ allegations, holding that there was insufficient evidence to bring criminal proceedings.
27. On an unspecified date, the applicants submitted an objection to the decision of 14 December 1999.
28. On 26 January 2000 the President of the Hatay Assize Court quashed the decision of the İskenderun public prosecutor. It decided that criminal proceedings should be brought under Article 243 of the Criminal Code against the police officers who had questioned the applicants while they were in custody. In its decision, the President noted that the applicants’ allegations had not been adequately examined by the public prosecutor. In particular, Nazime Ceren Salmanoğlu’s allegations that her dental braces had been broken as a result of the beatings in police custody and had therefore been removed were not examined. Likewise, the public prosecutor had not determined the date on which Fatma Deniz Polattaş’ tooth had been broken. The medical examinations indicated in the report of the Turkish Medical Association had not been carried out. Moreover, the public prosecutor had not looked into the question whether the applicants had actually submitted complaints against the prison doctor. Nor had he taken statements from the police officers who had taken the applicants’ statements or the doctors who had examined them.
29. On 18 February 2000 the İskenderun public prosecutor filed a bill of indictment with the İskenderun Assize Court, charging four police officers from the Anti-Terrorist Branch of the İskenderun police headquarters - M.Ç., H.Ö., A.Y. and G.İ., under Article 243 of the former Criminal Code, with torturing the applicants.
30. On 14 April 2000 the İskenderun Assize Court held the first hearing on the merits of the case. The court heard the accused police officers, the applicants, Nazime Ceren Salmanoğlu’s father and the doctors who had examined the applicants after their release from police custody.
31. The applicants alleged that they had been subjected to various forms of ill-treatment (see paragraph 10 above). They further submitted that they had not stated on 12 March 1999 before the public prosecutor and the judge that they had been subjected to ill-treatment as they were scared. Nazime Ceren Salmanoğlu submitted that during the medical examination conducted at the end of her detention in police custody there were police officers in the examination room. She also submitted that one of the accused officers, G.İ., had been in the public prosecutor’s office when the prosecutor had taken their statements. Fatma Deniz Polattaş contended that an object had been inserted into her anus and there had been bleeding. Therefore, A.Y. asked her parents to bring clean underwear. She further submitted that she had told the doctor who had examined her during her custody period that she had been ill-treated. However, the police officers had arrived to the room where she was medically examined and the doctor, who was a woman, had not noted her complaints in the report. She also stated that one of her teeth had been broken as she had been punched in the face in police custody.
32. The police officers denied the allegations of ill-treatment and the allegations that they had been in the office of the prosecutor or the medical examination room. As regards the virginity testing, G.İ. submitted that they had requested this examination in order to prevent any false allegations of sexual abuse in police custody.
33. The doctors, B.K., B.I.K., E.B. and T.S. maintained that they had not observed any signs of physical or psychological violence when they had examined the applicants. They denied the applicant’s allegations that the medical examinations had taken place in the presence of police officers. As regards the sensitivity on Fatma Deniz Polattaş’s scalp and lumbar region upon palpation noted in the report of 9 March 1999, B.I.K., who had examined her, maintained that the applicant had been disturbed as she had not wished to have physical contact. The doctor stated that the sensitivity noted in the report was not an indication of an injury.
34. One of the accused officers, M.Ç., and the doctor who had examined Nazime Ceren Salmanoğlu on 6 March 1999 stated that this applicant had consented to the virginity test.
35. Nazime Ceren Salmanoğlu’s father contended before the court that he and his wife had seen their daughter on different occasions when she had been in police custody. He observed that Nazime Ceren Salmanoğlu had an injury to her lips. He further maintained that his wife had told him that she had seen a bruise on their daughter’s cheek.
36. At the end of the hearing, the court ordered, inter alia, that the applicants be examined at the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University. The court requested information from the Faculty of Medicine as to whether the applicants were suffering from any psychological problem and, if so, whether the cause of their psychological suffering could be established. The assize court further ordered a medical examination of Nazime Ceren Salmanoğlu, in particular a bone scintigraphy, in order to determine whether she had been subjected to violence and if so when.
37. During a hearing held on 16 June 2000 the first-instance court heard the doctor who had examined the applicants on 12 March 1999, A.A. He maintained that the police officers had waited outside the examination room, one metre from the door, where they could hear the conversation with the patients and even see inside the room if they wanted. He contended that he had asked the applicants to show him their abdomen, backs and half of their legs. He submitted that he had not conducted an examination concerning their psychological state. The examination he conducted could only have revealed traces of physical violence on their bodies. A.A. finally stated that both applicants were present in the room during their examination and that they had witnessed each other’s examinations.
38. On the same day S.S., the doctor who conducted the virginity testing on the applicants on 6 and 8 March 1999, was also heard by the court. He submitted that the applicants had given consent to the examination. They did not have any allegation of rape or sexual abuse. The sole purpose of the examination was to establish their virginity status. S.S. also submitted that police officers had not been present in the room where this examination had taken place.
39. On the same day, Nazime Ceren Salmanoğlu’s mother stated before the first-instance court that she had seen her daughter one day after her arrest and that there had been a bruise on her daughter’s lips then. She further contended that three to four days after the arrest she had seen the applicant again and observed another injury on her lips. She finally stated that her daughter had not told her that she had been subjected to ill-treatment in custody. The first-instance court also heard Fatma Deniz Polattaş’s uncle, who was a retired police officer, and who submitted that he had taken clean underwear to the police headquarters as A.Y. had asked him to do so. He also noted that the applicant had appeared to be exhausted when he had seen her in Adana prison.
40. On 12 September 2000 F.A., a woman who was detained in Adana prison, made statements before the court. She said that the applicants had appeared to be exhausted when they were brought to the prison. She further contended that there had been a swelling on the lips of Nazime Ceren Salmanoğlu and that Fatma Deniz Polattaş had had difficulty in sitting. She submitted that Fatma Deniz had told her that a truncheon had been inserted into her anus while in police custody. During the same hearing, the applicants and Nazime Ceren Salmanoğlu’s father joined the proceedings as civil parties (müdahil).
41. On 27 October 2000 the İskenderun Assize Court heard the nurse who had assisted B.K. during the rectal examination of Fatma Deniz Polattaş carried out on 6 April 1999. The nurse, J.E., stated that there had been a female prison guard in the examination room when the examination had taken place. She submitted that the guard had not wished to leave the room and had therefore turned her back and stayed. She maintained that the presence of the prison guard had not had any impact on the examination.
42. On the same day, four inmates detained in the same prison as the applicants made statements before the court and contended that they had not noticed any sign of physical violence on the applicants’ persons when they had arrived at the prison.
43. On 12 April 2001 the medical reports regarding the applicants’ examinations at the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University were submitted to the İskenderun Assize Court.
44. On 19 July 2001 the Hatay public prosecutor requested the assize court to order the Forensic Medicine Institute to draw up a further report, as the medical reports drafted during the preliminary investigation and the reports by the Medical Association and Istanbul University were contradictory. On the same day, the İskenderun Assize Court decided to send the case file to the Forensic Medicine Institute and requested the latter to submit a report containing information as to whether the applicants had been subjected to ill-treatment while in police custody and whether the findings of the doctors from Istanbul University could be considered to be the result of the alleged illtreatment.
45. On 10 May 2002 Nazime Ceren Salmanoğlu refused to consent to an examination by the experts from the Forensic Medicine Institute. On 11 July 2002 the applicants’ lawyer informed the İskenderun Assize Court that she had not consented to the examination as the medical experts wished to conduct a digital rectal examination, although this applicant had not alleged that she had been raped while in police custody. On the same day the first-instance court once again requested the Forensic Medicine Institute to submit a report.
46. Between 9 October 2002 and 13 March 2003 the assize court postponed the hearings as the Forensic Medicine Institute did not submit the requested report.
47. On 22 April 2003 the Forensic Medicine Institute submitted two reports drawn up by its 6th and 4th Sections of Expertise (İhtisas Kurulu) on 9 December 2002 and 5 March 2003 respectively, concerning Nazime Ceren Salmanoğlu, to the first-instance court.
48. On the same day the İskenderun Assize Court requested the Forensic Medicine Institute to conduct a medical examination on Fatma Deniz Polattaş and submit a report about her.
49. Between 22 April 2004 and 23 September 2004, the first-instance court postponed the hearings as it was waiting for the report by the Forensic Medicine Institute concerning Fatma Deniz Polattaş.
50. On 23 September 2004 the Forensic Medicine Institute submitted three reports drawn up by its 2nd, 6th and 4th Sections of Expertise on 15 October 2003, 20 and 25 August 2004 respectively, concerning Fatma Deniz Polattaş, to the firstinstance court.
51. On the same day, the assize court requested the Plenary Assembly of the Forensic Medicine Institute (Adli Tıp Kurumu Genel Kurulu) to submit a final medical opinion as to whether the applicants had been subjected to illtreatment while in police custody.
52. On 3 March 2005 the Forensic Medicine Institute submitted two reports dated 13 January 2005 drawn up by its Plenary Assembly to the İskenderun Assize Court.
53. On the same day the first-instance court requested the parties to submit final observations on the merits of the case.
54. On 22 April 2005 the İskenderun Assize Court acquitted the accused police officers, finding that there was insufficient evidence to convict them. In its judgment, the first-instance court noted that there was no evidence demonstrating that the applicants had been subjected to physical or psychological violence while in police custody. The assize court considered that the distress which the applicants might have suffered could have stemmed from their detention and conviction at a very young age. The İskenderun Assize Court further noted that it had taken into consideration the opinion of the majority of the Plenary Assembly of the Forensic Medicine Institute that the applicants had not suffered from post-traumatic stress disorder. It considered that the Forensic Medicine Institute, although a State institution, was an independent body. It noted the minority dissenting opinions as an indication of the independence of the members of the Plenary Assembly. The first-instance court finally noted that there had been a disciplinary investigation into the doctors who had examined the applicants during and after their detention in police custody and no sanctions had been imposed on them as a result.
55. On 7 June 2005 the applicants appealed. In their petition, they maintained, inter alia, that the virginity tests had constituted a sexual assault.
56. On 15 November 2006 the Court of Cassation quashed the judgment of 22 April 2005. It decided to terminate the criminal proceedings against the police officers on the ground that the prosecution was timebarred (zamanaşımı).
57. Between 2 June and 28 September 2000, Nazime Ceren Salmanoğlu and Fatma Deniz Polattaş were examined eight and nine times respectively by three experts from the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University. After referring to the psychological findings in two reports dated 23 October 2000, the experts diagnosed the applicants as suffering from post-traumatic stress disorder. Fatma Deniz Polattaş was further diagnosed with major depressive disorder. The experts concluded that Nazime Ceren Salmanoğlu had suffered a traumatic experience and Fatma Deniz Polattaş had suffered an aggravated traumatic experience. The doctors reached these conclusions having regard to the applicants’ submissions about traumatic experiences which had allegedly involved physical, psychological and sexual assault that they had endured one and half years prior to their examination. Subsequently, Nazime Ceren Salmanoğlu underwent psychotherapy at the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University. Fatma Deniz Polattaş underwent psychotherapy and drug therapy.
58. On 25 September 2000 the applicants were further subjected to bone scintigraphy tests. According to the relevant report, all values were normal in respect of both applicants.
59. The report submitted to the assize court on 22 April 2003 (see paragraph 47 above), drawn up by the 6th Section of Expertise (İhtisas Kurulu) on 9 December 2002 stated that there was no evidence demonstrating that the applicant had been subjected to physical violence. The 6th Section took into consideration the reports issued in respect of the first applicant during and after her police custody when rendering this decision. It further noted that the bruise recorded in the report of 24 November 1999 (see paragraph 25 above) was three to five days old. The 6th Section considered that Nazime Ceren Salmanoğlu should be subjected to an examination by the 4th Section of Expertise in relation to the diagnosis of post-traumatic stress disorder.
60. The second report submitted to the first-instance court, dated 5 March 2003, was drawn up by the 4th Section of Expertise. According to this report, the first applicant did not show any sign of post-traumatic stress disorder on the day of her examination on 8 November 2002. However, the Section considered that the applicant had suffered from this disorder due to the trauma which she had experienced when she was detained in police custody, and that she had recovered as a result of the psychiatric treatment which she had received at the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University.
61. In its report of 15 October 2003 the 2nd Section considered that there was no evidence demonstrating that Fatma Deniz Polattaş had been subjected to physical violence. The 2nd Section took into consideration the reports issued in respect of the applicant during and after her police custody when rendering this decision. It also opined that the date on which the applicant’s tooth had been broken could not be determined.
62. The report of the 6th Section dated 20 August 2004 stated that the veracity of the second applicant’s allegations of anal rape could not be assessed, since the rectal examination had been conducted long after the alleged sexual assault.
63. In its report of 25 August 2004, the 4th Section of Expertise considered that Fatma Deniz Polattaş had suffered, like Nazime Ceren Salmanoğlu, from post-traumatic stress disorder and also from major depressive disorder, but had recovered as a result of the treatment which she had undergone. The Section noted that Fatma Deniz Polattaş had experienced a traumatising event prior to her medical examinations between 2 June and 28 September 2000.
64. According to the reports dated 13 January 2005 and submitted to the assize court on 3 March 2005 (see paragraph 52 above), the majority of the Plenary Assembly (fifteen members) considered that the applicants were not suffering from posttraumatic stress disorder. The Assembly considered that there were no physical findings in support of the diagnosis of the doctors from the Psychosocial Trauma Centre at the Faculty of Medicine of Istanbul University. Noting that the only basis for this diagnosis had been the applicants’ statements, the Assembly considered that the reports issued by the doctors from the Istanbul University had not been objective.
65. Attached to the opinion of the majority of the Plenary Assembly, the Forensic Medicine Institute also submitted dissenting opinions. One member of the Plenary Assembly considered that, on the basis of the file, it could not be determined whether or not the applicants were suffering from any psychological disorder. Fourteen of the members considered that the applicants were suffering from post-traumatic stress disorder. However, the date on which the traumatic experience had occurred could not be determined. Another member opined that no decision could be made, since there were contradictions in the file. Finally, eight members of the Plenary Assembly opined that the reports of 4th Section of Expertise stating that the applicants were suffering from post-traumatic stress disorder were accurate.
66. On 24 March 1999 the public prosecutor at the Adana State Security Court filed a bill of indictment against the applicants and five other people. The applicants were charged under Articles 168 § 2 and 264 § 6 of the Criminal Code and Article 5 of Law no. 3713 with membership of an illegal organisation and for throwing Molotov cocktails.
67. On 2 November 1999 the Adana State Security Court convicted the applicants of membership of an illegal organisation and sentenced Nazime Ceren Salmanoğlu and Fatma Deniz Polattaş to eight years and four months’ and twelve years and six months’ imprisonment, respectively. The applicants were also convicted of throwing Molotov cocktails, for which they were sentenced to three years, eight months and thirteen days, and five years, six months and twenty days’ imprisonment, respectively. In its judgment, the State Security Court took into consideration the applicants’ statements to the police. The court noted that, although the applicants had alleged that they had been subjected to ill-treatment while in police custody, the medical experts who had examined them following their release from custody had not observed any signs of ill-treatment on their bodies. The State Security Court considered that the applicants’ allegations were therefore unsubstantiated.
68. The relevant law and practice in force at the material time are outlined in the judgment of Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 95-100, ECHR 2004-... (extracts)); Annexes to the Interim Report of the Turkish Government in response to the Report of the European Committee for the Prevention of Torture (the “CPT”) on its visit to Turkey from 5 to 17 October 1997, CPT/Inf (99) 3; Report to the Turkish Government on the visit to Turkey carried out by the CPT from 5 to 17 October 1997, CPT/Inf (99) 2, § 39.
The CPT expressed its views on the provisions of Turkish law concerning medical examination of persons in police custody in the following reports: CPT/Inf (2000) 17 § 19; CPT/Inf (2001) 25 §§ 64-66; CPT/Inf (2002) 8 § 42; CPT/Inf (2003) 8 § 41; CPT/Inf (2006) 30, § 25.
VIOLATED_ARTICLES: 3


ITEMID: 001-96118
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DUDNYK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 2 - Right to life (Procedural aspect)
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The applicant was born in 1959 and lives in Chapayivka.
6. On 30 May 2000 an unidentified individual broke the skull of I.D., the applicant's son, in the corridor of a dormitory at Cherkasy Technological University.
7. On 7 June 2000 the Prydniprovsky district police department of Cherkasy initiated criminal proceedings into a suspected offence of inflicting grievous bodily harm.
8. On 8 June 2000 I.D. died without regaining consciousness. Subsequently the investigation amended the characterisation of the suspected offence to inflicting grievous bodily harm resulting in death.
9. On 25 July and 15 August 2000 the Prydniprovsky district prosecutor's office advised the investigation as to various procedural steps to be taken.
10. As no leads concerning the perpetrator had been picked up by 25 September 2000, the police suspended the investigation.
11. On 1 February 2001, following complaints by the applicant's family, the Prydniprovsky district prosecutor's office annulled the decision to suspend the proceedings, finding that the police had not fully complied with the requirements of the applicable procedural law and had also failed to comply with the instructions issued by the prosecutor's office on 25 July and 15 August 2000.
12. On 5 April 2001 the applicant was granted leave to join the proceedings as an injured party and a civil claimant.
13. On 15 June 2001 the Cherkasy regional prosecutor's office acknowledged to the applicant's family that the investigation had been beset by unnecessary delays for which it could not provide a plausible explanation. Moreover, the investigator in charge of the case had been subjected to disciplinary action on account of serious procedural omissions. The prosecutor's office also informed the applicant's family that progress in the case had twice been discussed at recent staff meetings and assured her that the investigation would be closely monitored.
14. On 20 September and 27 November 2001 the applicant's family received further similar acknowledgments from the Cherkasy regional prosecutors' office and the Ministry of the Interior.
15. By a letter of 5 December 2001 the General Prosecutor's Office acknowledged to the applicant's family that the investigation into the circumstances leading to I.D.'s death had been perfunctory as the instructions given by the prosecutor's office had not been carried out in full. They further informed the applicant's family that they had instructed the Cherkasy regional prosecutor's office as to the specific steps to be taken and had advised that the case should be transferred to an experienced investigator.
16. On 14 December 2001 the case was transferred for investigation to the Cherkasy regional police department.
17. On several occasions (on 19 May and 6 December 2002, 17 March 2003 and 23 October 2004) the investigation was suspended on account of a failure to pick up any leads as to the perpetrator's identity.
18. These decisions were annulled by the supervising prosecutors (on 22 November and 20 December 2002, 18 April 2003 and 12 January 2009 respectively), with reference to the inadequacy of the measures taken.
19. On several occasions (in particular, on 7 May and 1 July 2003 and 20 October 2004) the prosecutor's office and the Ministry of the Interior acknowledged to the applicant's family that the investigative work aimed at identifying the person responsible for I.D.'s wounding had been inadequate. In October 2004 the Prydniprovsky district prosecutor's office further proposed that the police department carry out an official internal investigation into the reasons for the inadequate performance. No information regarding the outcome of this internal investigation has been provided by the parties.
20. On 20 September 2005 and 25 December 2008 the Cherkasy Regional Department of the Ministry of Interior studied the case-file and gave additional instructions to the investigative authorities. On 12 January 2009 the Prosecutor of the Prydniprovskyy District of Cherkasy quashed the investigator's order of 23 October 2004 to suspend the investigation and formal proceedings were resumed.
21. Overall, in the course of the investigation the law-enforcement authorities carried out forty-seven interviews, one confrontation and two line-ups. They further ordered two medical expert assessments.
22. The criminal proceedings are currently pending.
23. On 25 May 2003 the applicant's family instituted civil proceedings in the Prydniprovsky District Court of Cherkasy seeking damages from Cherkasy Technological University for failure to ensure security in its dormitory, thus leading to I.D.'s wounding and death.
24. On 1 October 2003 the Prydniprovsky District Court dismissed this claim, having found that I.D. had been injured through no fault of the University. On 20 November 2003 and 17 August 2004 the Cherkasy Regional Court of Appeal and the Supreme Court of Ukraine respectively upheld this judgment.
25. The relevant provisions of the Constitution and the Code of Criminal Procedure can be found in the judgment in the case of Sergey Shevchenko v. Ukraine (no. 32478/02, §§ 36-39, 4 April 2006).
VIOLATED_ARTICLES: 2


ITEMID: 001-79543
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SUPA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Vladimír Šupa, is a Slovakian national who was born in 1948 and lives in Topoľčany. He was represented before the Court by Ms R. Záhoráková, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a Roman Catholic priest. In 1989 he had been appointed to a parish in Pruské. On 8 August 1994 his superior informed the applicant that he had been transferred to a different parish. The applicant challenged this decision. His objection was declared inadmissible by the Supreme Tribunal of the Apostolic Signature on 10 February 1996. The decision on the applicant’s transfer thus became effective. In the meantime, on 15 January 1995, a different priest had been transferred to the parish in question. The applicant was suspended by the Bishop’s decision of 2 April 1996. The applicant filed an objection. The Congregation for Clergy in Rome upheld that decision on 29 August 1996.
In 1996 the applicant brought proceedings before the Považská Bystrica District Court claiming the payment of his remuneration which the defendant diocesan office had stopped. The case was transferred to the Nitra District Court to which the applicant submitted the same claim on 14 March 1997.
On 17 August 1998 the Nitra District Court dismissed the action. In its decision the court referred to the Code of Canon Law, to sections 5(2) and 7(1-3) of Act 308/1991 and concluded that the legal relations between the applicant and the defendant diocesan office were governed by canon law. Those relations were not labour law relations within the meaning of the Labour Code the provisions of which could not, therefore, be applied. The judgment stated, with reference to the decree of the Supreme Tribunal of the Apostolic Signature of 10 February 1996, that the bishop’s decision to transfer the applicant had been effective as from 1 August 1994 and that the applicant’s appeal against it could not affect the position. The judgment also stated that the applicant had lost the right to carry out pastoral activity as a result of the bishop’s decision to suspend him given on 2 April 1996.
The applicant appealed. He claimed that the first-instance court had decided arbitrarily in disregard of section 7(1) of Act 308/1991. He also submitted that the ordinary courts should examine whether the application of its internal rules by the Roman Catholic Church was in accordance with the generally binding legal rules. He argued that the defendant diocesan office was to be regarded as his employer. It had paid health insurance contributions in respect of the applicant in the same way as other employers and it had issued a certificate indicating the period of the applicant’s employment for the purpose of health and social insurance. The applicant also submitted that the relevant regulations published in the Collection of Laws governed the remuneration of priests.
In its observations on the case the defendant diocesan office underlined that the applicant’s service within the church was governed by canon law and that the relevant issues could not be examined under the Labour Code as suggested by the applicant. The defendant explained that the applicant, of his own will, had carried out no pastoral activity after 28 August 1994 when he had handed over the parish in Pruské to a different priest. Under the relevant provisions of Act 219/1949 and of Regulations 578/1990 and 187/1997 the applicant had therefore no right to remuneration after that date. In accordance with the provisions of canon law, the bishop had suspended the applicant after attempts to redress the situation had failed. The Congregation for Clergy in Rome had confirmed the validity of the bishop’s decree on 29 August 1996.
On 10 December 1999 the Nitra Regional Court upheld the first-instance judgment. It noted that churches were autonomous in the exercise of their functions and that interference by courts with their decisions relating to the modalities of service of their ministers or its termination would be contrary to the Constitution. With reference to the relevant law, the Regional Court held that clergymen were entitled to remuneration for the exercise of pastoral activity. Should a church fail to pay remuneration and other sums due to a member of its clergy for exercise of pastoral activity, the person would be entitled to seek redress before the ordinary courts. However, since the applicant’s claim for remuneration related to a period when he did not exercise his function as a priest, and since the ordinary courts lacked power to examine whether or not the church authority’s decisions to transfer the applicant to a different parish and to suspend him had been justified, his action could not be granted.
On 17 July 2000 the applicant petitioned the Constitutional Court. He alleged a violation of his constitutional rights to judicial protection, to equality of rights without discrimination and to freedom of religion and expression, as well as of his right to satisfactory working conditions including remuneration.
On 31 January 2001 the Constitutional Court found that the ordinary courts dealing with the case had violated the applicant’s rights under Article 46 § 1 in conjunction with Article 12 §§ 1 and 2 of the Constitution and also his rights under Article 36(a) and (b) of the Constitution. The Constitutional Court expressed the view, among others, that the applicant’s claims for payment of a sum of money and for remuneration fell to be examined under the Slovakian legal order and, as such, they should have been determined by the ordinary courts. The Constitutional Court’s judgment in its relevant parts reads as follows:
“The ordinary courts considered the church law to form a part of the legal and not of the factual aspect of the case. They decided in application of rules which are not a part of the legal order of the Slovak Republic [which] does not allow their particular use; [they] thereby violated the petitioner’s right under Article 46 § 1 of the Constitution...
The decision on the existence, termination and nature of the legal relations between the petitioner and the Roman Catholic Diocesan Office in Nitra determines the preliminary issue in respect of the decision on the financial claims of the petitioner. A preliminary question is one which can be decided upon in separate proceedings in which, of course, the legal order of the Slovak Republic would be applied. In this context the Constitutional Court points out that even when deciding on a preliminary issue, the courts were obliged to apply the legal order of the Slovak Republic or rules the use of which the Slovakian legal order permits...
The church authorities deciding on the legal relations between the petitioner and the Roman Catholic Diocesan Office in Nitra are not public authorities and they applied canon law. For this reason the [ordinary courts] should not have accepted their decision as determining a preliminary issue by a different authority under Article 135 § 2 of the Code of Civil Procedure. By accepting the decisions of the church authorities concerning the legal relations between the applicant and the Roman Catholic Diocesan Office in Nitra as decisions within the meaning of Article 135 § 2 of the Code of Civil Procedure, the District Court and the Regional Court in Nitra violated the petitioner’s right to judicial and other legal protection under Article 46 § 1 of the Constitution...”
At the relevant time the Constitutional Court lacked power to afford effective redress to the applicant (see below).
Pursuant to Article 1 of the Constitution, the Slovak Republic is a sovereign and democratic State of law. It is not bound by any ideology or religion.
Article 12 §§ 1 and 2 provides, inter alia, that human beings are equal in dignity and rights. The fundamental rights and freedoms are guaranteed to everybody without distinction.
Article 24 § 1 guarantees to everyone the freedom of thought, conscience, religion and faith. Paragraph 3 of Article 24 provides that churches and religious communities administer their matters themselves. In particular, they establish their organs and appoint their clergymen independently of State authorities.
Article 36(a) and (b) guarantees to employees, inter alia, the right to remuneration for their work and protection against arbitrary dismissal and against discrimination in employment.
Article 46 § 1 guarantees the right to judicial protection. It provides, in particular, that everybody has the right to seek protection for his or her rights before an independent and impartial tribunal in accordance with the procedure set out in the law or, in cases provided for by the law, before a different authority of the Slovak Republic.
Pursuant to Article 130 § 3 of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“podnet”) presented by any individual or corporation claiming that their rights had been violated. According to its case-law under this provision, the Constitutional Court lacked power to draw legal consequences from its finding that a petitioner’s rights had been violated. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. The Constitutional Court held that it was therefore for the authority concerned to provide redress to a petitioner who was successful in proceedings before it.
Article 7 §§ 1 and 2 provides that courts in civil proceedings examine matters related to civil law relations and also to labour, family, co-operative as well as business relations unless the law reserves their examination to other authorities. Courts examine and decide upon other issues only where the law so provides.
Article 135 § 1 provides that courts are bound, inter alia, by decisions given by competent authorities that an offence or a minor offence was committed as well as by decisions determining the status of a person. Under paragraph 2 of Article 135, a court can otherwise itself determine issues which fall to be determined by a different authority. However, where a competent authority has determined such an issue in an earlier decision, courts shall base themselves on such a decision.
Under section 5(2), churches and religious communities administer their own affairs. In particular, they establish their organs, appoint their ministers and establish their own orders and other institutions independently of the State authorities.
Section 7(1) provides that persons carrying out ecclesiastical activities do so upon authorisation by churches and religious communities in accordance with their internal rules and the generally binding rules. As regards the latter rules, the law expressly refers to the Labour Code.
Paragraph 2 of section 7 provides that churches and religious communities assess the capacity of persons to carry out ecclesiastical activities and decide on their appointment to posts in accordance with such assessment.
Under section 7(3), churches and religious communities, in accordance with their internal rules, appoint persons who carry out ecclesiastical activities and teachers of religion, and assign them to a certain geographical district where appropriate.
Act 218/1949, as amended, governs the economic maintenance by the State of churches and religious communities.
Section 1(1) provides that, where registered churches and religious communities so request, the State remunerates, in accordance with this Act, ministers who act as employees of churches and religious communities in ecclesiastical matters, in church administration or in institutions for the education of ministers.
The scale of basic salaries and of supplements payable to clergymen is set out in Government’s Regulation 587/1990 as amended by Regulation 187/1997. Section 1(4) provides that the period of pastoral activity to be taken into account for determination of the remuneration of clergymen is to be determined by the church concerned.
The Ministry of Culture has been charged with carrying out state administration in matters relating to churches and religious communities. Its activities comprise, inter alia, finalising the proposals as regards the relevant part of the State budget, distribution of financial means from the State budget to churches and supervision of the use of such means. The Ministry does not, however, interfere with internal matters of churches and religious communities.


ITEMID: 001-5419
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: GOLDSTEIN v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: The applicant is a national of the United States of America, born in 1951 and living in Sweden. He is represented before the Court by Mr Sten De Geer, a lawyer practising in Stockholm.
The applicant arrived in Sweden on 4 July 1997 and requested asylum. During lengthy interviews by the Swedish authorities, he stated that since 1990 he had worked actively to reveal police brutality and other misconduct by the police in the United States. In 1990 he had founded an association called “The Commission on Police Ethics” and in 1995 he had started another organisation called “The Standing Committee on Law Enforcement Development”. As a consequence of his activities, he had allegedly been subjected to systematic police persecution since 1993. By 1997 the persecution had reached serious proportions. Allegedly, there had been serious attempts to injure him, he had been subjected to surveillance, his property had been destroyed and he had been attacked with chemical substances. His reports to the police authorities had been to no avail.
On 19 August 1997 the National Immigration Board (Statens invandrarverk) refused the applicant public legal counsel in the proceedings before the Board. The applicant appealed against this decision to the Legal Aid Board (Rättshjälpsnämnden).
The applicant’s asylum application was rejected by the National Immigration Board on 24 September 1997. The Board found that there was no evidence to show that the United States police authorities had been persecuting the applicant. Thus, he was not in need of protection in Sweden. The applicant appealed against this decision to the Aliens Appeals Board (Utlänningsnämnden).
On 20 October 1997 the Legal Aid Board upheld the National Immigration Board’s decision not to award the applicant public legal counsel.
On 24 October 1997 the Aliens Appeals Board refused the applicant public legal counsel in the proceedings before the Board. It appears that this decision was not appealed against by the applicant to the Legal Aid Board.
The National Immigration Board’s decision not to grant the applicant asylum in Sweden was upheld by the Aliens Appeals Board on 30 January 1998. The Board found that if the applicant had been subjected to the alleged maltreatment in the United States, it was the result of criminal acts committed by individuals and was not attributable to the State. No appeal lay against this decision.
Subsequently, against the same background as initially, the applicant submitted a new request for asylum to the Aliens Appeals Board and also applied for legal aid. On 4 September 1998 the Board refused the applicant public legal counsel and also rejected his new application for asylum. No appeal lay against either of these decisions.


ITEMID: 001-79406
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: J.L. AND M. H.-L. v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Mr J.Ł. and Mrs M. H.-Ł., are Polish nationals, who were born in 1957 and 1959 respectively. They are married to each other. The first applicant is a physiotherapist and the second is a teacher. They live in Warsaw. In the proceedings before the Court the applicants chose not to be represented. The respondent Government are represented by Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 November 1998 the applicants signed an agreement with the Catholic Adoption Centre in Warsaw. Under the terms of the agreement they agreed to provide care to X, a boy born on 16 July 1998. The applicants were chosen as prospective adopters for X because of their professions since the child required special care on account of his health problems. In this connection, the applicants referred to the conclusions of a medical opinion of 30 October 1998 which stated that X showed disturbed physical development and slightly retarded psychomotor development. It was also recommended in the opinion that the child should be placed without delay with a caring adoptive family, which would create the conditions for his proper development.
On 13 November 1998 E.K., the biological mother of X, was deprived of her parental authority for X. On the same day the boy began to live with the applicants.
On 16 December 1998 the Warsaw District Court appointed a guardian (opiekun prawny) for X.
On 25 January 1999 the applicants filed with the Warsaw District Court an application for the adoption of X.
On 4 February 1999 E.K. requested the Warsaw District Court to restore her parental authority for X. As a result of this request the Warsaw District Court stayed the adoption proceedings on 8 February 1999.
On 25 March 1999 the court held the first hearing at which it heard E.K. and X’s guardian. The next hearing was held on 15 June 1999.
On an unspecified date in 1999 E.K. applied to the Warsaw District Court for interim measures. In particular, she asked the court to change the guardian of X and to grant her and her parents, J.K. and B.K., visiting rights.
On 23 June 1999 the District Court rejected her application for interim measures. The court did not see any grounds for changing the guardian. It pointed out that X had been born with a serious neurological disorder and required physiotherapy on a daily basis. As for the request to grant visiting rights to E.K. and her parents, the court rejected it for the following reasons:
“The application for interim measures does not contain any reasons for allowing [E.K.] and her parents to visit the child. The District Court considers that this request is not aimed at the well-being of the child but results from the change in the attitude of [E.K] and (...) her parents’ endeavours to obtain the legal custody of [X].
The evidence gathered shows that [E.K.] is still undergoing therapy. Getting back the child is a part of that therapy and would allow [E.K.] to return to normal life.
The decision to allow [E.K.] and her parents to visit the child would require the return of the child to a child-care facility. Therefore, the child would be deprived of his present living conditions which provide him with proper physical and (...) emotional development. The child has been living in this environment for six months. (...)”
On 21 September 1999 the Warsaw Regional Court (Sąd Okręgowy) dismissed E.K.’s appeal against the decision of 23 June 1999.
The Warsaw District Court held hearings on 21 October, 18 November and 16 December 1999 and 9 February 2000.
On 2 March 2000 the Warsaw District Court dismissed E.K.’s request to restore her parental authority for X. The court observed that since June 1997 E.K. had cohabited with a man who had fathered X. Her parents had not approved of that relationship. E.K. had concealed her pregnancy. She had not consulted a doctor and smoked. E.K. had been interested in continuing the relationship with her child’s father, who had, however, not accepted the child. When X was born, E.K. declared that she wanted to leave him in the hospital for subsequent adoption. In August 1998 the father of X had left E.K. and she had moved into her parents’ flat. She started psychological therapy and in December 1998 informed her parents about the birth of X. The court considered that E.K. was not emotionally ready to take care of a child. Moreover, her actions had been influenced by her parents. E.K. was responsible for the fact that there did not exist any emotional bonds between her and X. At the same time, X had strong emotional bonds with the applicants who provided him with very good living conditions.
On 29 May 2000 E.K. appealed against this decision.
On 13 July and 23 November 2000 the Warsaw Regional Court held hearings and on the latter date it quashed the decision of the Warsaw District Court and remitted the case for reconsideration.
On 19 December 2000 the Warsaw District Court held the first hearing at which it decided to order opinions of two experts in psychology. The experts submitted their opinions on 2 March 2001.
At the hearing held on 8 March 2001 the Warsaw District Court again dismissed E.K.’s request to restore her parental authority for X. At the same time the court decided that X should be placed in the foster family of J.K. and B.K. It pointed out that E.K. was not able to provide X with proper care. The court referred to expert evidence which showed that she was emotionally and socially immature and behaved like a child who needed care and who was not responsible for her actions. As for its decision to place X with E.K.’s parents the court was of the view that “it was justified to place the child in the foster family of the maternal grandparents since the advantages from growing up in a biological family exceeded the disadvantages resulting from the change of [X’s] environment.”
E.K. appealed against the decision.
On 23 May 2001 the Warsaw District Court refused the applicants’ standing in the proceedings for an application for the restoration of E.K’s parental authority. The applicants appealed, but their appeal was dismissed on 26 June 2001 by the Warsaw Regional Court. On 4 July 2001 the Warsaw District Court rejected the applicants’ appeal against its decision to place X with his biological grandparents, J.K. and B.K., since the applicants did not have standing in those proceedings.
On 5 September and 4 October 2001 the court held hearings. At one of the hearings the Regional Court heard the applicants.
On 18 October 2001 the Warsaw Regional Court allowed E.K.’s appeal against the decision of the Warsaw District Court and granted her parental authority for X. Basing itself on the expert opinions, the court established that there were at present no indications that E.K. should not be personally taking care of X. The court then stated:
“An important issue, undoubtedly of the greatest significance, is to establish whether the wellbeing of [X] requires that he be returned to his biological mother. The interest of the child is the overriding factor in the instant case.
According to the experts, whose opinions were followed by the District Court, a child will have the best conditions for its development in the biological family. Other forms of foster family are allowed only if the biological parents are unable or inept to care [for the child]. Obviously, every change in the environment of [X] might give rise to difficulties of adaptation; however, it is common knowledge that small children adapt quickly to new conditions. The Adoption Centre offers to help in this respect.
The experts underlined that the removal of [X] to the biological family had to be carried out correctly; it did not have to create a shock for him. The pre-adoptive family, for which the separation would be extremely painful, declares that, to ensure the best for X, they will do everything to make the removal of X as painless as possible for him. The behaviour of the biological family ... shows their understanding that ... entering into X’s life must come gradually, consensually and in a manner accepted by both parties. The [applicants’ and E.K.’s] position on that issue lead [the court] to believe that the biological mother’s taking over the care of [X] would not create a shock for the child.
In the light of the above, the court decided as in the operative part.”
The decision was final.
On 8 November 2001, X, who had been living with the applicants for three years and considered them as his parents, was taken away from them.
On 30 January 2002 the Warsaw District Court discontinued the adoption proceedings.
On 25 September 2002 the Warsaw District Court dismissed the applicants’ application to grant them visiting rights.
The custody and adoption of children are regulated by the Family Code 1964 (Kodeks Rodzinny i Opiekuńczy).
Article 111 of the Family Code provides as follows:
“1. If parental authority cannot be carried out due to a permanent obstacle or due to fact that the parents abuse their parental authority or grossly neglect their duties with respect to children, the family court shall deprive the parents of their parental authority...
2. If the reasons for which deprivation of the parental responsibilities was ordered cease to exist, the family court may restore parental authority.”
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Krasuski v. Poland, no. 61444/00, §§ 3446, ECHR 2005–... (extracts) and in Charzyński v. Poland (dec.), no. 15212/03, §§ 1223, ECHR 2005–....


ITEMID: 001-109324
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF ROIDAKIS v. GREECE (No. 3)
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos
TEXT: 4. The applicant was born in 1953 and lives in Athens.
5. On 21 August 1997 he lodged an opposition (ανακοπή) with the Athens First Instance Civil Court challenging his arrest as compulsory enforcement measure regarding a decision of the Athens First Instance Civil Court issued against him for unpaid debt to an individual (decision no. 951/1995).
6. On 30 October 1998 the opposition was rejected (judgment no. 8769/1998).
7. On 30 November 1998 the applicant filed an appeal before the Athens Civil Court of Appeal challenging the court’s findings and its evaluation of the evidence.
8. By judgment dated 21 June 1999, the court accepted the applicant’s appeal and the case was remitted to the Athens First Instance Civil Court in order to be retried (judgment no. 5619/1999).
9. On 6 March 2001 a preliminary decision was issued partially rejecting the applicant’s opposition and asking him to submit supplementary evidence regarding the remainder of his allegations (judgment no. 1923/2001).
10. On 17 June 2002 the applicant filed an application asking for a hearing date to be set as soon as possible.
11. On 15 March 2004, after a subsequent re-hearing was held, the Athens First Instance Civil Court rejected the applicant’s opposition (judgment no. 1299/2004).
12. On 2 February 2007 the applicant lodged an appeal challenging the First Instance Court’s decisions nos. 1923/2001 and 1299/2004.
13. By judgment dated 6 March 2009, the Athens Civil Court of Appeal accepted the applicant’s appeal after quashing the ruling of the first instance court. Subsequently, after examining the applicant’s opposition de novo, the court held that it was well founded (judgment no. 1236/2009).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1