ITEMID: 001-90836
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GRUDZINSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Albert Grudziński, is a Polish national who was born in 1945 and lives in Warszawa. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
J.G., the applicant's legal predecessor, owned a brickyard located in Błonie. By virtue of a decision issued on 2 November 1950 the Minister of Light Industry (Minister Przemysłu Lekkiego) nationalised the brickyard pursuant to the Law of 3 January 1946 on Nationalisation of Principal Sectors of National Economy.
In 1991 J.G. made an application to the Minister of Industry and Commerce (Minister Przemysłu i Handlu) for annulment of the 1950 decision on nationalisation. On 23 February 1993 the Minister declared the 1950 decision null and void. The Błonie municipality appealed against that decision. On 1 December 1993 the Supreme Administrative Court (Naczelny Sąd Administracyjny) dismissed its appeal.
On 30 December 1993 J.G. requested the Minister of Industry and Commerce to award her compensation for damage sustained as a result of the nationalisation decision. In May 1994 the Minister ordered J.G. to indicate the actual damage (szkoda rzeczywista) sustained in connection with the nationalisation. In April 1995 J.G. submitted that her compensation claim amounted to 3,378,233 Polish zlotys (PLN).
On 11 December 1996 the Minister awarded J.G. compensation in the amount of PLN 1,819,895.
J.G. contested the amount of the award. In January 1997 she sued the State Treasury before the Warsaw Regional Court (Sąd Wojewódzki), seeking further compensation in the amount of PLN 1,558,338. On 10 December 1998 the Regional Court dismissed her claim. J.G. appealed against that judgment to the Warsaw Court of Appeal (Sąd Apelacyjny).
Following J.G.'s death, the applicant and her four other successors became parties to the proceedings before the Court of Appeal.
On 27 April 2001 the Court of Appeal upheld the judgment of the Regional Court.
In August 2001 the applicant and other co-plaintiffs lodged a cassation appeal against the judgment of the Court of Appeal. They also requested to be exempted from court fees required for proceeding with their cassation appeal. They claimed that due to their difficult financial situation they could not afford to pay them. The applicant stressed that his monthly salary amounted to 5,560 PLN. However, he had to support his unemployed wife and his mother-in-law.
On 27 September 2001 the Court of Appeal dismissed their application for exemption from court fees. Its decision was not reasoned and no appeal lay against it.
On 8 October 2001 the Court of Appeal ordered the applicant and other co-plaintiffs to pay court fees in the amount of PLN 79,516.90. On 27 November 2001 it rejected their cassation appeal for failure to pay the court fees. The applicant did not appeal against this decision although it would have been open to him to have done so under the Code of Civil Procedure.
The legal provisions relating to setting court fees as applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also Jedamski and Jedamska v. Poland, no. 73547/01), §§ 29-9).
Article 394 of the Code of Civil Procedure as applicable at the material time, guarantees a party to proceedings a right to appeal against a decision of the first-instance court which terminates the proceedings. Such an interlocutory appeal (zażalenie) is also available against certain decisions, specified in this provision. An appeal is available against a refusal of exemption from court fees when such decision has been given by a firstinstance court. The Supreme Court has held in a number of its decisions that no appeal is available against an interlocutory decision on court fees given by a second-instance court. Court fees for lodging such an interlocutory appeal should amount to one fifth of the court fee due in the proceedings.
Pursuant to Article 380 of the Code of Civil Procedure, on the request of a party, a second-instance court shall consider the interlocutory decisions of the first-instance court against which that party could not have filed an interlocutory appeal.
The Supreme Court has also held on many occasions that when examining an interlocutory appeal against a decision to reject a cassation appeal for failure to pay court fees, it would also consider the previous decision on refusal to give an exemption from the payment of court fees (see I CZ 259/99 unpublished, I CZ 81/2006, OSNC 2007 No. 2, item 36).


ITEMID: 001-101252
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: COMMITTEE
DATE: 2010
DOCNAME: CASE OF EWALD v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mark Villiger
TEXT: 5. The applicant was born in 1957 and lives in Zweibrücken.
6. On 24 February 2000 she suffered a heart attack. With regard to her treatment before and after this incident she accused her family practitioner of medical malpractice.
7. At the beginning of February 2002, after having been granted legal aid, the applicant lodged a claim of medical malpractice against her family practitioner with the Zweibrücken Regional Court.
8. On 3 April 2002 the Regional Court ordered an expert report and on 31 May 2002 appointed the expert. By letter of 28 June 2002 the expert informed the court that due to illness he was unable to take up his work. On 21 August 2002 the court appointed a new expert who had been recommended by the medical association in late July.
9. On 7 January, 4 and 21 February 2003 the court enquired about the report but did not receive an answer. On 15 April 2003 it ordered the expert to submit his report until 30 May 2003 on pain of a fine of 250 EUR. On 8 July 2003 the court again requested, to no avail, information from the expert as to the current state of affairs.
10. On 13 February 2004 the court ordered the expert to return the files by 27 February 2004. On 20 April 2004, after it had received no response from the expert, the court once more ordered the return of the files. On 28 May 2004 the court unsuccessfully tried to contact the expert by telephone. On 15 June 2004 the court again ordered the return of the files, setting a deadline of 15 July 2004 and threatening to forward the case to the Office of the Public Prosecutor. On 22 October 2004 the parties were informed that the matter had been handed over to the Regional Court’s president for further action. On 28 October 2004 the court imposed on the expert all costs caused by his refusal to draw up the report and return the files. On 4 November 2004 the court notified the parties that the delivery of the files was now to be enforced. On 16 December 2004 the parties were informed that in the meantime the files had been returned to the court.
11. On 28 June and 7 December 2005 the court held two hearings, in the course of which it heard eight witnesses.
12. On 12 January 2006, after the single judge had referred the case to the chamber, a new expert report was ordered, to be submitted at the latest on 15 May 2006. On the same day the court also scheduled an oral hearing for 27 June 2006. On 7 May 2006 the expert submitted his report. On 12 June 2006 the court ordered a supplement to the report and rescheduled the hearing for 5 December 2006. On 4 December 2006 this hearing was cancelled.
13. On 27 August 2007 a new hearing was scheduled for 8 January 2008. Upon request of defendant’s counsel the hearing was subsequently rescheduled for 19 February 2008.
14. On 14 February 2008 the oral hearing was postponed until 4 March 2008. On 1 April 2008 the applicant applied for an amendment of the transcript of this hearing. The application was dismissed on 22 April 2008. On 9 May 2008 the court ordered another expert report. On 21 August 2008 the expert submitted his report. On 9 December 2008 the court held another hearing.
15. On 9 February 2009 the Regional Court dismissed the applicant’s claim. The judgment was served on 26 February 2009.
16. On 20 March 2009 the applicant lodged an appeal. After it had informed the applicant that her appeal was inadmissible, because it had not been filed by a lawyer, the Court of Appeal dismissed the appeal on 26 June 2009.
17. On 8 January 2002 the applicant pressed criminal charges against her family practitioner. On 15 January 2002 the proceedings were suspended pending the outcome of the civil proceedings. On 4 September 2006 the proceedings were discontinued in view of the death of the family practitioner.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91724
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF GUTL v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 14+9;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant was born in 1977 and lives in Belgrade (Serbia).
7. On 6 July 1991 the applicant was baptised in accordance with the ceremonial rite of the Jehovah’s Witnesses and became an active member. On 1 December 1995 he assumed the function of a preacher (“special full-time servant” or “regular pioneer” – Sondervollzeitdiener, allgemeiner Pionier).
8. On 20 December 1995 the Styrian Military Authority (Militär-kommando) found the applicant fit to perform military service. It subsequently called him up (Einberufungsbefehl) to begin his military service on 1 July 1996. That order was later revoked.
9. The applicant, on 13 January 1997, filed a request with the Federal Minister for Internal Affairs (Bundesminister für Inneres) for recognition as a conscientious objector (Zivildiensterklärung).
10. Subsequently, on 14 April 1997, the Minister for Internal Affairs recognised the applicant as a conscientious objector. Accordingly, he was exempted from the duty to perform military service but liable to perform civilian service (Zivildienst).
11. From 28 July 1997 until 1 July 1998 the applicant lived in a community of preachers (“Bethel family” – Bethelfamilie), which, in the applicant’s view, is similar to a religious order (Orden) and is called the Religious Order of the Jehovah’s Witnesses (Orden der Sonder-vollzeitdiener der Zeugen Jehovas).
12. On 1 April 1998 the Ministry for Internal Affairs ordered the applicant to commence his civilian service (Zuweisungsbescheid) with the Styrian Regional Fire Brigade (Landesfeuerwehrkommando Steiermark) on 2 June 1998.
13. On 17 April 1998 the applicant became a deacon (“ministerial servant” – Diakon, Dienstamtgehilfe) within the Jehovah’s Witnesses.
14. On 30 April 1998 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) against the Ministry’s order of 1 April 1998, also requesting the suspension of its effect. The applicant submitted that he had been living in a community of preachers since 28 July 1997 and devoted all his time to religious activities. On 17 April 1998 he had become a deacon and aspired to assume the function of an elder within the Jehovah’s Witnesses. Referring to German law (section 10(1)(3) of the German Civilian Service Act) and the case-law and practice of the Federal Administrative Court (BVerwG, 29 September 1989, Zl. 8 C 53.87), he argued that persons in a similar situation (preachers and deacons) were exempt from compulsory military or civilian service. Further, the applicant complained that section 13a(1) of the Civilian Service Act exempted only members of recognised religious societies performing specific services relating to worship or religious instruction from the obligation to perform civilian service, whereas he held a comparable clerical position within the Jehovah’s Witnesses. Furthermore, section 11(1) of the newly introduced Federal Act on the Legal Status of Registered Religious Communities (Bundesgesetz über die Rechtspersönlichkeit von religiösen Bekenntnisgemeinschaften, hereafter referred to as the “1998 Act”), which had entered into force on 10 January 1998, established that recognition under the Recognition Act was only possible after ten years’ existence as a registered religious community. Therefore this new provision precluded any recognition during the following ten years and made the Recognition Act inapplicable until 2008. The applicant requested the Constitutional Court to revoke the restriction limiting the application of section 13a(1) of the Civilian Service Act to “recognised religious societies”, and in the alternative to revoke the ten-year’ requirement laid down in section 11(1) of the 1998 Act.
15. On 8 June 1998 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It further dismissed the applicant’s request for his complaint to have suspensive effect.
16. Subsequently, on 24 June 1998, the applicant agreed with the Ministry for Internal Affairs that he would begin his civilian service in an institution for disabled persons on 1 July 1998, and he consequently left the community of preachers.
17. On 7 July 1998 the applicant requested the Constitutional Court to transmit his complaint of 30 April 1998 to the Administrative Court (Verwaltungsgerichtshof).
18. On 23 July 1998 the Constitutional Court granted the applicant’s request.
19. On 18 August 1998 the applicant supplemented his complaint and requested the Administrative Court to institute proceedings to review the constitutionality (Gesetzesprüfungsverfahren) of the wording “recognised religious societies” in section 13a(1) of the Civilian Service Act. In the alternative, he requested that the provision at issue be interpreted in conformity with the principle of equality. He thus argued that, in view of his position as a deacon in the Jehovah’s Witnesses, he should be dispensed from the obligation to perform civilian service as his position involved supporting elders by guiding the communities, carrying out clerical work in cooperation with other fellow Jehovah’s Witnesses, giving Bible readings, speeches and commentaries during worship and offering guidance for prayers; accordingly, his functions were equivalent to those of members of registered religious societies who provided services relating to spiritual welfare or clerical teaching after graduating in theological studies, or to those of students of theology who were preparing to assume a clerical function.
20. By a decision of 10 November 1998 the Administrative Court dismissed his complaint. It noted that the 1998 Act and in particular section 11(1) had not been applied and were not to be applied by the Ministry for Internal Affairs in the applicant’s case. Rather, the Ministry had to apply section 13a(1) of the Civilian Service Act, requiring recognition of a religious society as a precondition for exemption from civilian service. The provision as such raised no concerns as regards constitutionality, since its objective was not to grant an exemption from the obligation to perform civilian service to every functionary of a religious community, whether or not it was recognised. It further held that the impugned provision, on account of its explicit wording, could not be interpreted in the manner suggested by the applicant. The decision was served on the applicant’s counsel on 15 January 1999.
21. On 30 June 1999 the applicant ended his civilian service and, on 1 July 1999, he rejoined the Religious Order of the Jehovah’s Witnesses, where he stayed until the end of July 2000. Subsequently, he left the community of preachers, continued to work as a preacher and received further clerical training.
22. In September 2003 the applicant began to do missionary work as a preacher in Serbia and Montenegro.
23. Section 13a(1) of the Civilian Service Act (Zivildienstgesetz) provides as follows:
“An exemption from the obligation to perform civilian service shall apply to the following members of recognised religious societies:
1. ordained priests,
2. persons involved in spiritual welfare or in clerical teaching after graduating in theological studies,
3. members of a religious order who have made a solemn vow, and
4. students of theology who are preparing to assume a clerical function.”
24. For a detailed description of the legal situation in Austria in this field see Löffelmann v. Austria (no. 42967/98).
VIOLATED_ARTICLES: 14
9


ITEMID: 001-115641
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KÄRKKÄINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Timo Juhani Kärkkäinen, is a Finnish national, who was born in 1953 and lives in Vantaa. He was represented before the Court by Mr Esko Sydänmäki who was granted leave to represent the applicant by the President of the Chamber (Rule 36 § 2 of the Rules of Court).
2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 1 April 1975 the applicant became a civil servant employed by the Bank of Finland (Suomen Pankki, Finlands Bank; henceforth “the Bank”) where he worked until his retirement on 1 August 2008.
5. On 3 May 1977 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) introduced an equal retirement age of 60 years for all men and women who entered the service of the Bank on that date or later. The retirement age for women was thereby raised from 55 years to 60 years while for men the retirement age remained unchanged. As the rule was not retroactive, the different retirement ages for men and women still applied to those persons who had started employment before 3 May 1977.
6. On 17 June 1998 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) amended the pension rules of the Bank so that men who had joined the Bank prior to 3 May 1977 and who continued their employment until retirement were also granted an opportunity to lower their retirement age from 60 to 55-59. For each month the retirement age was lowered, and the pension accrued prior to 1 January 1994 was reduced by 0.33%. At its highest the early retirement reduction was 19.8% for five years. Under the pension rules of 13 December 1966 the retirement age for women who had joined the Bank prior to 3 May 1977 was 55 and no reductions applied to pension accrual.
7. Since 10 March 1994 the pension rules of the Bank had provided that a civil servant who applied for early retirement, who had been employed by the Bank prior to 3 May 1977 and who had 30 years of service behind him, had a right to a pension guarantee (takuueläke, garantipension) which was 60% of the salary. This pension guarantee was increased by 1.5% for each year the person’s personal retirement age (henkilökohtainen eläkeikä, individuell pensionsålder), which was 60 years for men and 55 years for women, fell short of 63 years (the personal retirement age before 1 December 1993). This guarantee was significantly reduced as from 1 January 2005.
8. Prior to his retirement the applicant applied twice for a preliminary ruling from the Bank on how his pension would be calculated. His application was rejected twice by the Bank’s Directorate (johtokunta, direktionen) in 2008.
9. On 23 May 2008 the applicant was granted a pension, which was calculated with a 47.14% pension guarantee which included the increase of 4.5% as his personal retirement age was 60 years. This method of calculation was chosen as it was more beneficial to the applicant than the method by which the pension was reduced by 19.8%, or 268.82 euros (EUR) per month, on the ground that he had retired at the age of 55. The pension so calculated amounted to EUR 2,244.95 per month, starting from 1 August 2008.
10. On an unspecified date the applicant submitted a letter of appeal to the Bank, requesting that his pension be recalculated so that the years from 55 to 63 brought him an additional pension of 1.5% per year, altogether 12%. He claimed that the amendments made to the pension guarantee on 1 January 2005 had led to discrimination between men and women due to the fact that the theoretical personal retirement age for men was 60 years, even if they had retired earlier, whereas for women it was always 55 years. In the applicant’s situation the percentage for accrued pension was 4.5% while for a woman in the same situation it would be 7.5% higher, namely 12%. He also complained about the fact that his pension had been reduced by 19.8%, or EUR 268.82 per month, on the ground that he had retired at the age of 55. As the Bank could not rectify the pension decision, it referred the case on appeal to the Insurance Court (Vakuutusoikeus, Försäkringsdomstolen).
11. On 18 May 2010 the Insurance Court partly accepted, partly rejected the applicant’s appeal. As concerned the percentage for accrued pension, the court accepted the applicant’s appeal and ordered that the percentage be 12% instead of 4.5%. It found that in this respect the pension was not calculated in an equitable manner with regard to men and women, and that women were placed in a more favourable position than men. The applicant’s personal retirement age should also have been 55 years, as was the case for women in the same position. As this inequality affected also the time after 1 January 1994, the date on which the EU rules on equal pay became applicable in respect of Finland, the applicant’s pension had been calculated in a manner contrary to EU law during the period starting from 1 January 1994 until 31 December 2004. In this respect the case was referred back to the Bank for a new decision. As to the rest of the applicant’s complaints, they were rejected. As concerned the reduction of 19.8% due to early retirement, the court found that as the reduction concerned the time before 1 January 1994, it was not contrary to EU law.
12. On 2 August 2010 the Bank issued a new pension decision to the applicant. The percentage for accrued pension was now 12%, increasing his personal pension guarantee percentage to 54.64%. The pension calculated in this manner amounted thus to EUR 2,554.97 per month.
13. By letter dated 3 September 2010 the applicant submitted an appeal to the Bank, requesting that the pension decision of 2 August 2010 be recalculated as his pension guarantee still remained at 54.64% when it should have been 29.75/30 x 60% = 59.75% on the ground that he had 29.75 years of service. He noted that the Insurance Court had already, on 25 October 2005, amended a similar pension decision in the case of Mr K.H. and granted him a pension right amounting to 60% on the ground that he had fulfilled the pension guarantee requirement as he had completed 30 years of service. Moreover, the applicant complained about the amendment to the Pension Regulations on 17 June 1998 which introduced the reduction system in cases of early retirement. He claimed that it was discriminatory and unconstitutional and that therefore it should be declared null and void or at least left unapplied. Such practice was not in use in the State pension system and under the State Pension Act (valtion eläkelaki, lagen om statens pensioner), which the Pension Regulations of the Bank were intended to follow. The applicant also pointed out that the European Commission had also found in this respect that the Finnish system was contrary to EU law. Finally, the applicant complained about lack of transparency in the Bank’s decision.
14. As the Bank could not rectify the pension decision, it referred the case on appeal to the Insurance Court on 6 October 2010. These proceedings are still pending before the Insurance Court.
15. Article 6 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that:
“No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.”
16. Article 15 of the Constitution provides that the property of everyone is protected.
17. Section 7 of the Act on Equality between Women and Men (laki naisten ja miesten välisestä tasa-arvosta, lagen om jämställdhet mellan kvinnor och män; Act no. 609/1986) prohibits both direct and indirect discrimination based on gender. According to its section 7, subsection 2, direct discrimination means, inter alia, putting women or men in an unequal position on the basis of gender. Section 8, subsection 1, point 3, of the same Act provides that:
“An employer’s conduct constitutes discrimination prohibited under the Act if the employer applies the pay or other terms of employment in such a way that one or more employees, because of their gender, find themselves in a less favourable position than one or more other employees performing the same work or work of equal value in the employer’s service.”
18. Section 11 of the Act on the Bank of Finland (laki Suomen Pankista, lagen om Finlands Bank; Act no. 214/1998) provides, inter alia, that:
“The Trustees of the Bank shall confirm the Bank of Finland’s Pension and Survivors’ Pension Regulations and issue regulations concerning the management of the Bank’s pension liability, upon proposal of the Directorate.”
19. Section 9 of the Act on Officials of the Bank of Finland (laki Suomen Pankin virkamiehistä, lagen om Finlands Banks tjänstemän; Act no. 1166/1998) provides the following:
“The Bank of Finland shall treat all officials in its service equally to ensure that no-one is unjustifiably treated differently because of his origin, citizenship, gender, religion, age, political or union activities, or on other comparable bases.
The Bank of Finland shall not forbid an official to join or belong to an association or pressure him to join a particular association, nor forbid him to resign from such.”
20. Section 33, subsections 1-3, of the same Act provide the following:
“An official who considers that the Bank of Finland has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to the Board. No request for rectification can be made in a matter that falls within the jurisdiction of the Labour Court, unless the Labour Court has decided not to settle the matter under section 1, subsection 2, of the Act on the Labour Court (646/1974).
Rectification of a decision by which the Bank of Finland has issued an official with a warning, laid him off or given him notice, cancelled the service relationship, suspended him from office or decided on a matter concerning his pension contribution or secondary occupation, as well as a decision referred to in paragraph 6 on a request for rectification referred to in paragraph 1 can be requested by appealing to the Supreme Administrative Court in accordance with the provisions of the Administrative Judicial Procedure Act (586/1996). A matter referred to in this paragraph shall be treated as urgent by the Supreme Administrative Court.
Decisions of the Board concerning pensions can be appealed against to the Insurance Court. Otherwise, as regards a request for rectification on pension, the applicable provisions of the Act on State Pensions (280/1966) shall apply.”
21. Section 58, subsection 1, of the same Act provides that
“[t]he right of an employee of the Bank of Finland to a pension paid from the Bank’s funds is determined, to the extent applicable, on the same grounds as state pension cover. State pension cover refers to the right to pensions, survivors’ pensions and other benefits which are payable from the state’s funds and the content of and eligibility for which are regulated by the State Pensions Act and the related legislation. Pensions and survivors’ pensions are granted by the Directorate of the Bank.”
22. More detailed provisions on the payment of pensions and survivors’ pensions and pension cover in other respects are contained in the Bank’s Pension and Survivors’ Pension Regulations (Suomen Pankin eläke- ja perhe-eläkesäännöt; pensionsstadgan och familjepensionsstadgan för Finlands Bank). The Trustees of the Bank of Finland, elected by the Parliament, adopt the Regulations on the basis of the Directorate of the Bank’s proposals.
23. Section 3, subsection 1, of the Pension Regulations with its earlier wording, as amended on 14 March 1972, read as follows:
“Eligibility for old age pension requires that the beneficiary has completed his or her service and reached the age of 65 years, or 60 years if the beneficiary, immediately before retirement, has been serving the Bank of Finland or its Security Printing House for at least one month, and 55 years in the case of a female employee. A beneficiary who retires as a member of the Directorate is entitled to old age pension irrespective of age.”
24. The lower retirement age of 55 years for women was applied until 3 May 1977, when the amendment of section 3, subsection 1, of the Pension Regulations entered into force. With this amendment the retirement age for women was raised from 55 to 60 years but the retirement age for men remained unchanged at 60 years. The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the Bank began on 3 May 1977 or thereafter.
25. For the equalisation of the retirement ages, men were granted the right to opt for a lower retirement age. On 17 June 1998 the Trustees of the Bank amended the entry into force provision of the Pension Regulations in the following manner:
“However, as of 1 January 1994, the earlier provision is applicable both to women who entered service in the Bank prior to 3 May 1977 and to men who entered service in the Bank before that date.
The beneficiary has the right to choose between the lower retirement age, based on the earlier provision, or the higher retirement age. If a man chooses the lower retirement age, the amount of his pension accrued on the basis of the duration of his service is, in respect of the service prior to 1 January 1994, reduced by 0.33 percentage units per month of earlier retirement.”


ITEMID: 001-94875
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF YILDIZ v. GERMANY
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1963 and lives in Anzing.
5. On 8 August 1994 the applicant had an accident at work – a cut of about one centimetre to his right wrist. The same day he was treated by the company doctor, Dr B. On 10 August 1994 his general practitioner transferred him to hospital. That day and again on 24 August 1994 he was examined by a Dr M. On his second examination Dr M. diagnosed that the applicant was unable to flex his thumb. On 5 September 1994, following a further examination, he had surgery on a muscle, the flexor pollicis longus.
6. On 28 January 1997 the applicant instituted proceedings in the Munich Regional Court against Dr B. and Dr M., seeking an award of compensation for pecuniary and non-pecuniary damage in the amount of 60,000 euros (EUR). He argued that if the defendants had treated him properly, the operation would have been avoided, which in turn would have avoided severe pain and further problems, including reactive depression.
7. In February 1997 the court scheduled a hearing for 21 April 1997. Submissions by the parties followed and in April the case was transferred to a single judge.
8. On 12 May 1997, following the hearing, the Munich Regional Court decided to hear the applicant's general practitioner and scheduled a new hearing for 28 July 1997. On account of the absence of the first defendant's legal counsel, it later postponed it to 24 November 1997. It refused a subsequent request for a further postponement.
9. On 18 August 1997 the applicant's legal counsel ceased taking instructions from the applicant. On 24 October 1997 his new lawyer addressed the court.
10. In November 1997 the parties agreed on written submissions.
11. In February 1998 the applicant's second lawyer also ceased taking instructions from the applicant; subsequently, a new lawyer was appointed and requested access to the files.
12. On 26 March 1998 the applicant requested the court to await the outcome of the social court proceedings, which were also pending, and returned the files.
13. On 13 April 1999 the applicant's third lawyer also ceased taking instructions but was subsequently reappointed in May.
14. On 15 April 1999, upon the request of one of the defendants to continue the proceedings, the court scheduled a hearing for 10 May 1999. At the hearing the parties agreed that the files of the social court proceedings should be consulted. Between June and September 1999, having been granted access to those files, the parties submitted further observations.
15. In October 1999 the applicant asked for an expert to be commissioned. In November 1999 he submitted documents which had until then been missing.
16. In February and April 2000 he requested the court to continue with the proceedings. On 5 April 2000 he was informed that the judge had fallen ill.
17. On 23 June 2000 the Munich Regional Court decided to obtain an expert opinion. On 22 August 2000 the expert submitted his report.
18. The court then set the parties a time-limit for their observations of 18 September 2000.
19. On 5 October 2000 the court decided to obtain a supplementary report. On 31 October 2000, after payment of an advance, it transferred the files to the expert. In January 2001 it asked the expert when he would be submitting his report.
20. On 20 February 2001 the applicant did not attend the examination arranged with the expert. On 16 May 2001 the expert examined the applicant.
21. On 31 May 2001 the court set the expert a time-limit of four weeks for the submission of his report. On 27 June 2001 it set him another deadline of two weeks. On 3 July 2001 the expert submitted the supplementary report. The parties' submissions followed.
22. On 28 August 2001 the court scheduled the hearing for 29 October 2001 and also summoned the expert. It later had to be postponed to 13 November 2001 on account of the absence of one of the legal counsel.
23. On 27 December 2001, following the hearing, the Munich Regional Court rejected the applicant's claim. Relying on the expert opinion obtained and a statement from the applicant's general practitioner, it found that the muscle had not been cut and that no liability on the part of the doctors could be established.
24. On 11 February 2002 the applicant appealed. In April 2002, following an extension of the time-limit, he submitted the grounds of his appeal.
25. On 18 April 2002 the Munich Court of Appeal scheduled the hearing for 16 May 2002. A subsequent request by the applicant for a postponement was rejected.
26. At the hearing the Munich Court of Appeal heard the doctor who had operated on the applicant.
27. The parties' submissions followed. In July 2002 the applicant requested a further expert opinion regarding a number of questions.
28. The court then scheduled a hearing for 17 October 2002 and decided to obtain an additional statement from the expert appointed at first instance, which was submitted on 22 August 2002.
29. On 18 September 2002 the applicant challenged the expert on grounds of bias. On 2 October 2002 the Munich Court of Appeal rejected this challenge.
30. Subsequently, it commissioned another expert. The parties did not object when the expert announced that he would not submit his report before the following summer.
31. In May 2003 the applicant transferred further documents. On 16 June 2003 the expert examined the applicant.
32. On 1 August 2003 the expert submitted his report. The court then scheduled the hearing for 13 November 2003. The applicant again requested the court to obtain another expert opinion.
33. On 27 November 2003, following the hearing, the Munich Court of Appeal dismissed the applicant's appeal and refused leave to appeal on points of law. Relying on the experts' statements, it found that no liability of the defendants could be established.
34. On 29 December 2003 the applicant appealed against the refusal of leave to appeal. On 30 April 2004, following two requests for an extension of the time-limit set, he lodged the grounds of his appeal.
35. On 29 June 2004 the Federal Court of Justice dismissed the applicant's appeal.
36. On 2 August 2004 the applicant lodged a constitutional complaint.
37. On 7 December 2005 the Federal Constitutional Court refused to accept his constitutional complaint for examination.
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-70731
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN - PIRIN AND OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. UMO Ilinden – PIRIN was a political party founded on 28 February 1998 and based in southwest Bulgaria (in an area known as the Pirin region or the geographic region of Pirin Macedonia). It was declared unconstitutional by the Constitutional Court on 29 February 2000 and as a result dissolved.
9. Between 1990 and 1998 more than fifteen organisations of persons declaring to have Macedonian ethnic consciousness were formed and were active on the territory of Bulgaria. Apparently most of these never sought to be registered.
10. One of them, the United Macedonian Organisation Ilinden (“UMO Ilinden”), was founded on 14 April 1990. Its aims, according to its articles of association and programme, were to “unite all Macedonians in Bulgaria on a regional and cultural basis” and to achieve “the recognition of the Macedonian minority in Bulgaria”. The same year it applied for, but was refused, registration. In their judgments of July and November 1990 and March 1991 the competent courts found that the association’s aims were directed against the unity of the nation, that it advocated national and ethnic hatred, and that it was dangerous for the territorial integrity of Bulgaria. The aims of the association included the “political development of Macedonia” and the “united, independent Macedonian State” (see Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, §§ 1014, ECHR 2001IX).
11. UMO Ilinden made an additional attempt to register in 199899 (see The United Macedonian Organisation Ilinden and Others v. Bulgaria (dec.), no. 59491/00, 9 September 2004). Registration was again refused.
12. The applicant party was founded in the town of Gotze Delchev on 28 February 1998 by fiftyone persons. Some of its founders had previously been members of UMO Ilinden. It applied for registration at the Sofia City Court.
13. In the course of the proceedings the public prosecutor, who participated ex officio, maintained that the party’s aims were contrary to Article 44 § 2 of the Constitution and that registration should therefore be refused. In connection with these remarks the founders decided to amend one point of the party’s constitution. They did so at a meeting on 14 November 1998 and presented the amended copy to the court.
14. By a judgment of 12 February 1999, a notice of which was published in the State Gazette on 23 February 1999, the Sofia City Court registered the applicant party, holding that its aims, as set out in its constitution and programme, were not contrary to the proscriptions of Article 44 § 2 of the Constitution and of section 3(2) of the Political Parties Act of 1990.
15. On 4 March 1999 sixtyone members of the Bulgarian parliament requested the Constitutional Court to declare the applicant party unconstitutional, more specifically, contrary to Articles 11 § 4 and 44 § 2 of the Constitution of 1991. They argued that the party had in fact been formed in 1990 and was a successor of the “illegal” UMO Ilinden. They further argued that the party’s ultimate aim was the formation of an independent Macedonian state through the secession of Pirin Macedonia from Bulgaria. The party’s members and leaders had on numerous occasions declared such goals. The party’s original constitution, amended in the course of the proceedings before the Sofia City Court, contained language to the effect that it would “protect the interests of the population of Pirin Macedonia [and] of the refugees from Aegean and Vardar Macedonia”. This indicated its separatist character. Also, the applicant party’s chairman, Mr Ivan Singartiyski (the second applicant), had sent letters to the state institutions and media of a neighbouring country, urging them to look for a “Macedonian minority” in Bulgaria. It was true that the party’s public influence was negligible, but its registration had created a dangerous precedent.
16. On 9 March 1999 the Constitutional Court declared the request admissible and invited the applicant party, the National Assembly, the Council of Ministers, the Ministers of Internal Affairs and of Justice, the ProsecutorGeneral, the Bulgarian Helsinki Committee and the Bulgarian Centre for Human Rights to submit written observations within thirty days.
17. The second applicant, Mr Singartiyski, acting in his capacity of chairman of the applicant party, filed written observations in which he argued that UMO Ilinden – PIRIN was a democratic party and its activities were fully compliant with the Constitution and the laws of the country.
18. In a joint memorial the Bulgarian Helsinki Committee and the Bulgarian Centre for Human Rights argued against the applicant party’s dissolution. They pointed out that it had existed for only a short time and that it was therefore too early to judge whether its activities rendered it unconstitutional. The few public statements of its leaders and members could not lead to a firm conclusion in that respect. On the contrary, the applicant party had never questioned the country’s territorial integrity. A measure as radical as dissolution would be justified only if there was an immediate and direct threat to national security or public order, which was clearly not the case.
19. A hearing was held on 25 November 1999 at which the Constitutional Court heard oral argument. At the hearing the Ministry of Internal Affairs presented as evidence a letter written by Mr Kiril Ivanov, former chairman of the applicant party, and sent by him on the party’s behalf to the Open Society Institute in Budapest. In the letter Mr Ivanov had stated that “Pirin Macedonia ha[d] to gain cultural, political and economic autonomy” and that “the human rights of Macedonians in Pirin Macedonia [stood] higher than Bulgaria’s national sovereignty”.
20. That letter was discussed at a meeting of the National Executive Council of the applicant party held on 28 November 1999. The Council distanced itself from the letter and expressed the opinion that Mr Ivanov’s actions had been contrary to the party’s constitution and aims. The Council recommended that Mr Ivanov be expelled from the party. The applicant party informed the Constitutional Court of this resolution.
21. The Constitutional Court gave judgment on 29 February 2000, declaring the applicant party unconstitutional (реш. № 1 от 29 февруари 2000 г. по конституционно дело № 3 от 1999 г., обн., ДВ брой 18 от 7 март 2000 г.).
22. The court started by observing that the constitutionality of a party should mainly be assessed on the basis of its activity. It was not sufficient to make the assessment solely on the basis of the statements contained in its constitution and programme. The constitution of a party could be just a façade for facilitating its registration; this is why it was necessary to have regard to the party’s real activities. It could not be ruled out that the documents could conceal objectives, intentions and activities that were different from those which were publicly proclaimed. It was therefore necessary to compare their content with the party’s practical actions. The European Court of Human Rights had ruled on this issue in its judgment in the case of United Communist Party of Turkey and Others v. Turkey (judgment of 30 January 1998, Reports of Judgments and Decisions 1998I).
23. The court went on to hold that although the applicant party had been registered in February 1999 on the basis of a constitution which had been adopted at a founding meeting on 28 February 1998, it was not a novel organisation. It had a predecessor and was continuing its activities. The court described the founding of UMO Ilinden in 1990 and its unsuccessful attempt to register in 199091 (see paragraph 10 above). It further found that UMO Ilinden had split in 1994, the radicals remaining on one side and the more moderate members forming two separate organisations: UMO Ilinden – Democratic Action and UMO Ilinden – Blagoevgrad. Most of the applicant party’s current leaders, including Mr Ivan Singartiyski (the second applicant) and Mr Kiril Ivanov, had been members of these two organisations, which had merged and, after an unsuccessful attempt to register as an association at the Blagoevgrad Regional Court, had managed to register as a political party at the Sofia City Court. It could thus be concluded that the applicant party was not a novel organisation, but was closely connected with the former unregistered association UMO Ilinden. The two had almost the same name and the same persons were their leaders and members. Moreover, the second applicant and another leader of the applicant party had intimated in newspaper interviews that they considered the applicant party and UMO Ilinden as one and the same organisation. The court therefore concluded that the activities of the applicant party’s predecessor organisations should be taken into account for purpose of assessing its constitutionality.
24. The court then turned to the specific grounds invoked by the sixtyone members of parliament for declaring the applicant party unconstitutional.
25. With regard to its alleged incompatibility with Article 11 § 4 of the Constitution, the court found that there was no Macedonian ethnos in Bulgaria. Therefore, it could not be said that the applicant party was based on ethnic origin. Moreover, it was clear from its constitution that every Bulgarian citizen could become its member. This part of the request was therefore unfounded.
26. As to the other ground for declaring the applicant party unconstitutional, incompatibility with Article 44 § 2 of the Constitution, the court pointed to a number of specific instances in which members of the applicant party and its predecessor organisations had engaged in conduct prohibited under Article 44 § 2 of the Constitution:
– A meeting on 20 April 1991 at the Rozhen Monastery. At this meeting a declaration had been adopted, demanding full cultural, economic and political autonomy of the Pirin region; withdrawal of the Bulgarian troops, referred to as “occupational”; dissolution of all Bulgarian political parties and organisations; the establishment of a Macedonian orthodox church independent of the Bulgarian orthodox church, etc.
– A commemorative rally held on 1 August 1993 in the area Samuilova krepost. A brochure announcing the event had featured a map of Macedonia, which had included territories that are part of Bulgaria (the Pirin region) and Greece, and in the middle of the map there had been depicted the sixteenray Macedonian star symbol.
– In 1994 the newspaper Skornuvane, published by UMO Ilinden, had printed a map of Macedonia featuring territories belonging to Bulgaria and Greece.
– On 2 August 1997 the faction of UMO Ilinden lead by Mr Kiril Ivanov had issued a memorandum according to which in Bulgaria there existed “modern-day genocide, discrimination and assimilation” and the Macedonians there were deprived of the right to honour the memory of the thousands of fighters who had fallen in the struggle for “free and independent Macedonia”. That memorandum had been circulated abroad.
– Immediately after the applicant party’s founding, the newspaper New Macedonia in its issue of 2122 March 1998 had reprinted an interview of Mr Ivan Gargavelov, the party’s secretary, in which he had allegedly insulted the Bulgarian nation and had attacked representatives of the Bulgarian authorities. He had portrayed the Pirin region as part of Macedonia and had indicated that the unique folklore, culture, traditions and individuality of the Macedonian people had been destroyed, that its history and customs had been stolen, and that its national identity had been denied.
– In February 1999 Mr Ivan Gargavelov had attended a press conference of the Conservative Party held in Skopje, as a representative of UMO Ilinden. When asked why he spoke Bulgarian, he had replied: “This is not Bulgarian, but Macedonian, and this is the language spoken in Bulgaria, whereas the Bulgarians there speak Tatar language”.
– In an interview for the Macedonian Sun newspaper of 27 March 1998 the applicant party’s deputychairman, Mr Anguel Bezev, had accused Bulgaria of genocide and lack of democracy, and had spoken of a “Pirin part of Macedonia”, as if of a nonBulgarian territory. He had obviously agreed with its secession from Bulgaria but had thought that it was not the opportune time and had concluded: “I believe time works for us”.
– A declaration of UMO Ilinden, signed by its chairman, Mr Ivan Singartiyski (the second applicant), and its secretary, Mr Ivan Gargavelov, had been published in the issue of Macedonian Sun of 10 April 1998. In this declaration the Pirin region had been referred to as “part of Macedonia”. The organisation had proclaimed that it was a defender of “the Macedonians in Pirin Macedonia and Bulgaria”, that is, a distinction had been drawn between Pirin Macedonia and Bulgaria.
– The issues of the newspaper Dnevnik of 16 and 20 February 1999 had contained publications relating to a letter issued by the applicant party and to a press conference given by its chairman, Mr Ivan Singartiyski, in Skopje. It had been indicated in them that “Bulgaria even [then] continue[d] to misappropriate Macedonia’s cultural heritage” and that “Bulgaria [had] incited Macedonia’s partition”.
– the applicant party had, together with several foreign organisations, participated in the issuing of a Declaration for the protection of the Macedonian people’s national distinctiveness, addressed to the former Yugoslav Republic of Macedonia’s Government. Point five of the declaration had requested an affirmation to the effect that part of the Macedonian people lived on Macedonian territory given in temporary trusteeship to Albania, Bulgaria and Greece by the 1913 treaty of Bucharest. It had been once again proclaimed that this part of Bulgaria’s territory was only temporarily under Bulgarian administration.
– On 8 October 1999 Mr Atanas Manushkin, running for mayor of Razlog on the applicant party’s ticket, had declared at a press conference: “In several statements made by members of the Bulgarian Government it was said that if the [United Democratic Forces] do not win the elections in Razlog, no funding will be forthcoming to the region. Thus, if we win, the government gives us the right to freely choose and declare that this is a free territory, which may decide subsequently where to turn to.”
– In an interview of 20 October 1999 the applicant party’s chairman, Mr Ivan Singartiyski (the second applicant), had been even more radical. He had noted that the party should be firm and assert the interests of Pirin Macedonia. He had gone on to say that the prime minister should be presented with the following statement: “We have certain demands, or else we will secede Macedonia”.
– The letter sent by Mr Kiril Ivanov on 20 July 1999 on behalf of the applicant party to the Open Society Institute in Budapest (see paragraphs 19 and 20 above) was also significant. In it he had expressed the wish that “Pirin Macedonia gain cultural, political and economic autonomy”. He had also stated that “the human rights of the Macedonians in Pirin Macedonia [stood] higher than Bulgaria’s national sovereignty”. In the court’s view, the fact that the applicant party’s leadership had distanced itself from Mr Ivanov was not relevant, as this had happened only after the letter had reached the addressee and had become known to the public.
27. The Constitutional Court continued:
“The facts set out above indicate that the [applicant party’s] activity is focused around the Pirin region. It treats this part of the country’s territory as nonBulgarian land. In its view, it is foreign territory, given to Bulgaria for temporary administration pursuant to an international treaty. [The applicant party’s] activity is in that direction, going as far as secession of the territory in question from Bulgaria.
This is indicated by the calls for autonomy, which is expressly proscribed by Article 2 § 1 of the Constitution. It is also indicated by the maps of Macedonia issued and circulated [by the applicant party], by the definition of the Pirin region as part of Macedonia and by the interpretations of the Balkan War and the Bucharest treaty of 1913. Its culmination is the threat to secede the Pirin region if the party’s demands are not met. Such a threat, when made by the chairperson of a party, could not only be in words. It is real and shows the positions of the party itself; moreover, it has been supported by its other leaders.
The actions in question constitute an activity aimed against the territorial integrity of the country within the meaning of Article 44 § 2 of the Constitution. Each and every one of them [goes against this Article’s proscription].
The constitutional rule protects a value of the highest calibre, namely the territorial integrity of the Republic of Bulgaria, which Article 2 § 2 of the Constitution proclaims as inviolable. That is why [the proscription has been breached] even in the absence of effective damage to the protected value – the country’s territory. An activity aimed against the territorial integrity, such as the one present here, is quite sufficient.
A political party which declares part of Bulgaria’s territory as foreign and engages in actions for its secession is an unconstitutional party. It has no right to exist.
The Constitutional Court deems it necessary to underscore that its notion of unconstitutionality is in line with Article 22 § 2 of the International Covenant on Civil and Political Rights sand Article 11 § 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. These provisions allow restrictions of the freedom of association when necessary in the interests of national security, as here. There is no doubt that an activity aimed against the territorial integrity of the Republic of Bulgaria imperils its national security.”
28. Three judges voted against the majority. In their dissenting opinions they, inter alia, expressed the view that the activities of UMO Ilinden should not be taken into account for the purpose of evaluating the applicant party’s constitutionality. They went on to say that the Constitutional Court had erred in taking into account only certain statements of members and leaders of the applicant party. Its most fundamental activity since its registration was rather its normal and fully democratic participation in the local government elections in October 1999. However, the court had chosen to ignore that fact. Lastly, the dissenting judges expressed the opinion that the applicant party was being penalised for expressing its views, which it was entitled to convey, although they were shocking and probably offensive for the majority of Bulgarians.
29. The relevant provisions of the Constitution of 1991 read as follows:
“1. The Republic of Bulgaria is a unitary country with local selfgovernment. No autonomous territorial entities shall be allowed [on its territory].
2. The territorial integrity of the Republic of Bulgaria shall be inviolable.”
“No political parties shall be formed on ethnic, racial, or religious basis, nor parties which aim to accede to power by force.”
“1. Everyone is entitled to express an opinion or to publicise it through words, written or oral, sound, or image, or in any other way.
2. This right shall not be used to the detriment of the rights and reputation of others, or for the incitement of a forcible change of the constitutionally established order, the perpetration of a crime, or the incitement of enmity or violence against anyone.”
30. In its interpretative judgment no. 7 of 1996 (реш. № 7 от 4 юни 1996 г. по конституционно дело № 1 от 1996 г., обн., ДВ брой 55 от 28 юни 1996 г.), in which it gave a binding interpretation of Article 39 of the Constitution, the Constitutional Court held, inter alia, that “speech which is deprived of constitutional protection is that which calls for a violent change of the constitutional order, i.e. for the destruction of the democratic constitutional order in a nonpeaceful way, which may even lead to the suspension of the Constitution”.
“1. Citizens may freely associate.
2. Organisations whose activities are directed against the country’s sovereignty or territorial integrity or against the nation’s unity, or which aim at stirring racial, national, ethnic or religious hatred, or at violating the rights and freedoms of others, as well as organisations creating secret or paramilitary structures, or which seek to achieve their aims through violence, shall be prohibited. ...”
“The Constitutional Court shall:
...
5. rule on the constitutionality of political parties...”
31. This Act, which was superseded by new legislation in 2001, regulated the formation, registration, functioning and dissolution of political parties at the material time. Its relevant provisions read as follows:
“No political parties shall be formed:
1. which are aimed against the country’s sovereignty or territorial integrity, the nation’s unity, or the citizens’ rights and freedoms;
2. whose aims are contrary to the Constitution and the laws of the country;
3. [which have] religious or ethnic basis or [aim to stir] racial, national, ethnical or religious hatred;
4. which advocate a fascist ideology or seek to achieve their aims through violence or other illegal means.”
VIOLATED_ARTICLES: 11


ITEMID: 001-57911
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 1994
DOCNAME: CASE OF HOKKANEN v. FINLAND
IMPORTANCE: 2
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 6 - Right to a fair trial (Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: C. Russo;R. Pekkanen
TEXT: 8. Mr Hokkanen, a Finnish citizen, was born in 1953. He lives at Tuusula.
He has a daughter, Sini, who was born in September 1983. Following the death in April 1985 of Mrs Tuula Hokkanen (the child’s mother, to whom the applicant had been married since 11 June 1983), Sini was looked after by her maternal grandparents, Mr Reino and Mrs Sinikka Nick (hereinafter referred to as "the grandparents"). According to the applicant, he had agreed to this as a provisional arrangement so that he could deal with various problems caused by his wife’s death, including the reorganisation of his farming activities.
In late 1985 the grandparents informed the applicant that they did not intend to restore Sini to him. Efforts, involving the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Tuusula, were made to achieve reconciliation between the applicant and the grandparents, but to no avail.
9. On 2 May 1986 the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa as the competent Chief Bailiff (ulosotonhaltija, överexekutor; see paragraph 44 below) rejected a request by the applicant to have Sini returned in accordance with section 8(2) of the 1975 Act on the Enforcement of Decisions concerning Custody of and the Right of Access to Children (laki 523/75 lapsen huollosta ja tapaamisoikeudesta annetun päätöksen täytäntöönpanosta, lag 523/75 om verkställighet av beslut som gäller vårdnad om barn och umgängesrätt - "the 1975 Act"). It observed that the applicant had consented to the arrangement leaving Sini in the care of the grandparents. In view of the time which had elapsed since she had moved to them and of the little contact Sini had had with the applicant, returning her could be contrary to her own interests; both parties should therefore institute custody proceedings before the District Court (kihlakunnanoikeus, häradsrätten) of Tuusula. They did so.
10. Following a hearing on 16 July 1986, the District Court ordered provisionally that Sini should remain with her grandparents; at the same time it granted the applicant access rights, according to which Sini was to stay with him every fourth weekend and, from 8 August 1986, every fourth week.
11. On 30 September 1986 the County Administrative Board ordered the grandparents to respect the applicant’s visiting rights on pain of an administrative fine (uhkasakko, vite) of 2,000 Finnish marks each. However, they did not comply.
12. On 31 October 1986 the District Court held a further hearing. It adjourned the case and again provisionally granted the applicant access rights: as from 5 November he could visit his daughter at her grandparents’ home for two hours every Wednesday and six hours every Sunday and, as from 1 December, she was to visit him at the same times and for the same periods at his home. The grandparents refused to comply with these arrangements.
13. On 21 January 1987 the County Administrative Board rejected a request from the applicant asking it to enforce the right of access granted to him by the District Court on 16 July 1986. It observed that the District Court, in its decision of 31 October 1986, had varied his right of access. The County Administrative Board was therefore of the view that its decision of 30 September 1986 that the grandparents would be liable to pay fines should they fail to comply with the access order (see paragraph 11 above) no longer applied.
14. By judgment of 26 January 1987, the District Court confirmed the applicant’s custody and ordered that Sini be handed over to him. It took into account, among other things, a report of 22 January 1987 by the Child Guidance Centre (kasvatusneuvola, uppfostrings- rådgivningen - "the Centre") of Central Uusimaa.
15. On 10 March 1987 the County Administrative Board ordered the grandparents to comply with the District Court’s judgment of 26 January on pain of a fine of 8,000 marks each should they fail to do so. The grandparents persisted in not complying.
16. On 6 May 1987, on an appeal by the grandparents, the Court of Appeal (hovioikeus, hovrätten) of Helsinki upheld the District Court’s judgment of 26 January. On 23 June it dismissed their appeal against the County Administrative Board’s decision of 10 March.
17. On 7 May 1987 the County Administrative Board had again ordered the grandparents to return Sini to the applicant within a week and to pay 2,000 marks each of the fines imposed on them previously. The Board further ordered that, in the event of the grandparents’ failure to return her, the Bailiff should use coercion to ensure that she was so returned.
18. On 30 July 1987 the Supreme Court (korkein oikeus, högsta domstolen) granted the grandparents leave to appeal against the Court of Appeal’s judgments of 6 May and 23 June 1987. It ordered a stay, or alternatively suspension, of both judgments (see paragraph 16 above).
The Supreme Court, in two separate judgments of 17 May 1988, dismissed the appeal and lifted the two decisions staying execution.
19. The grandparents asked the local Social Welfare Board to investigate whether execution of the Supreme Court’s judgments would be in Sini’s interests. The Board referred the matter to the National Social Welfare Board (sosiaalihallitus, socialstyrelsen).
At the same time, the grandparents requested the Supreme Court to stay the execution of, and annul, its judgments of 17 May 1988, which it refused to do on 13 September.
20. In the meantime, on 13 and 18 May 1987, the applicant had asked the District Chief of Police of Järvenpää to execute the County Administrative Board’s decision of 7 May (see paragraph 17 above). On 28 May the authorities discovered that the grandparents had moved Sini and that her whereabouts were unknown. The Järvenpää police then contacted their counterpart in Mäntyharju, where the grandparents had a summer home. Subsequently Sini was found to be with her grandparents at their summer home. On 10 June the applicant requested the Chief of Police of Mäntyharju to return her, but the latter official refused to do so, finding it contrary to the child’s interests to interrupt her summer vacation.
21. On 29 May 1987 the applicant complained to the Chancellor of Justice (oikeuskansleri, justitiekanslern), alleging that the authorities had failed to take sufficient action to find and return Sini. The Chancellor replied on 6 July 1988 that he did not consider that any measures were called for in view of, firstly, the steps taken to execute the County Administrative Board’s decision of 7 May 1987; secondly, the Supreme Court’s subsequent decision to stay the execution of the Court of Appeal’s judgments of 6 May and 23 June 1987 (see paragraphs 16 and 18 above) and, thirdly, the grandparents’ request for a stay and annulment in respect of the Supreme Court’s judgments of 17 May 1988 (see paragraph 19 above).
22. On 30 May 1990 the National Social Welfare Board recommended that the Social Welfare Board in Tuusula take steps to have custody of Sini transferred from Mr Hokkanen to the grandparents, to obtain access for the applicant and to have a person other than him appointed Sini’s guardian.
On 25 July 1990, at the Social Welfare Board’s request, the Guardianship Board (holhouslautakunta, förmyndarenämnden) of Tuusula submitted an opinion on the above matter, stating that the applicant had performed his duties as a guardian in a satisfactory manner. It did not consider the transfer of custody and guardianship advisable and concluded that he should continue as Sini’s custodian and guardian.
23. On 13 August 1990 the Social Welfare Board of Tuusula asked the District Court to transfer custody to the grandparents. The Board noted that the applicant was a fit person to bring Sini up and was able to offer her a good home environment. The Board placed emphasis on the fact that since 1985 she had been living with the grandparents, with whom she had close relations. In view of the fact that Sini had not met her father for many years it was necessary for their meetings in the autumn of 1990 to be well prepared and that they should take place in a neutral environment. It also recommended that the applicant remain Sini’s guardian.
24. On 19 September 1990 the District Court held a hearing but adjourned the case until 14 November after deciding to obtain an opinion from the Guardianship Board. The Board submitted a report on 31 October, recommending that the applicant cease to be the child’s guardian.
At the hearing scheduled for 14 November 1990 the District Court again adjourned the case, this time until 8 May 1991, pending an opinion from the Child Guidance Centre of Central Uusimaa. On 7 May 1991 the Child and Family Guidance Centre (perhe- ja kasvatusneuvola, familje - och uppfostringsrådgivningen) of Tuusula, which had taken over the former’s functions, confirmed the views expressed by that Centre in its opinion of 22 January 1987 (see paragraph 14 above). It observed that the grandparents had refused to allow Sini to be subjected to an examination (requested by the National Board of Social Welfare) and to participate in related interviews. It also referred to a statement of 13 December 1989 by a working group of the Lastenlinna Children’s Hospital that, although Sini related to the grandparents as her psychological parents, there were no psychological obstacles as far as she was concerned to her meeting the applicant; on the contrary, such meetings were in her interests.
25. During the proceedings before it the District Court had, on 14 November 1990, provisionally ordered that Sini remain with the grandparents and granted the applicant certain rights of access: in December 1990 and January 1991 he was to be permitted to meet his daughter for six hours on the first Sunday of the month at a place chosen by the Board and in the presence of one of its officials; as from January they were in addition to meet from Saturday noon to Sunday noon on the third weekend of the month and, as from February, also the first weekend.
However, the grandparents would not allow the applicant to meet the child outside their home. On 20 December 1990 he asked the County Administrative Board to take enforcement measures. He renewed this request on 31 January 1991.
26. On 28 March 1991 the Board ordered the grandparents to comply with the District Court’s provisional order of 14 November 1990 and decided that failure to do so would make them liable to pay an administrative fine of 5,000 marks each. The grandparents persisted in their refusal to comply. The applicant did not request the enforcement of the fines, such a request being a legal condition for their imposition.
27. The District Court, by judgment of 8 May 1991, rejected the Social Welfare Board’s request to transfer custody and guardianship. It moreover noted that its provisional access order of 14 November 1990 no longer applied.
28. On 24 July 1991, on separate appeals by the grandparents and the Social Welfare Board, the Court of Appeal ordered a stay of execution of the District Court’s judgment of 8 May 1991 (see paragraph 24 above).
29. By judgment of 25 September 1991 the Court of Appeal, by a majority, held that the applicant should remain Sini’s guardian but transferred custody to the grandparents, finding that the fact that she had lived with them since 30 April 1985 militated strongly in favour of her remaining in their care. It referred to the above-mentioned opinion of 13 December 1989 by the Children’s Hospital (see paragraph 24 above), according to which she had strong ties of security, confidence and affection with her grandparents and perceived their home as her own. No substantial changes should be made to this situation. She should be able to meet the applicant and develop a normal relationship with him. In view of her low age (eight at the time) and the fact that she had not been in a position to form her views independently, the Court of Appeal considered that no significant importance could be attached to Sini’s own wish not to see the applicant, mentioned in the Child and Family Guidance Centre’s opinion of 7 May 1991 (see paragraph 24 above).
The judgment prescribed the following access arrangements: during the first three months the applicant and his daughter were to meet for four hours one Saturday each month, at a place chosen by the Tuusula Social Welfare Office, in the presence of one of its officers and, after that, every other weekend between Saturday noon and Sunday noon. She was to spend Christmas with her grandparents and two weeks of the following summer with the applicant; subsequently her stays during holidays should alternate between the applicant and the grandparents.
30. On 19 December 1991 the Court of Appeal quashed the County Administrative Board’s order of 28 March 1991 requiring the grandparents to comply with the District Court’s provisional order of 14 November 1990 regarding access (see paragraph 25 above). The Court of Appeal had regard to the lower court’s decision of 8 May 1991 (see paragraph 27 above), which in effect revoked its decision of 14 November 1990.
31. On 21 January 1992 the Supreme Court refused the applicant leave to appeal.
32. On 25 June 1992 the Social Welfare Board of Järvenpää replied to an enforcement request by the applicant. It observed that the Child and Family Guidance Centre of Järvenpää had offered the grandparents "an opportunity to obtain assistance and to discuss the matter concerning visiting rights" but they had refused to contact the Centre. The latter had, in a letter to the Board of 16 June 1992, stated that in those circumstances "nothing else could be done by the Centre".
33. In the meantime, on 22 June 1992 the applicant asked the County Administrative Board to take steps to execute the Court of Appeal’s judgment of 25 September 1991 (see paragraph 29 above). He referred to the fact that in 1991 all three meetings planned between him and Sini had failed to take place, as the grandparents had refused to bring her. They had moreover declined to respond to attempts to arrange further meetings.
34. On 23 June 1992 the County Administrative Board gave an interim decision ordering the applicant to communicate the documents in the case to the grandparents in order to enable them to comment on his request to the Board. This they did on 21 July. The decision further indicated that the case would be struck off the list if the applicant did not renew his enforcement request within a year.
On 10 November 1992 the applicant renewed his request of 22 June to the County Administrative Board. Following this, the Board, as required by the relevant legislation, referred the matter to the conciliator for mediation (see paragraph 45 below). The latter submitted a report to the Board on 2 December and the applicant filed his comments on 7 December.
35. On 31 December 1992 the County Administrative Board ordered the grandparents to comply with the Court of Appeal’s decision of 25 September 1991, on pain of having to pay an administrative fine of 5,000 marks.
On the other hand, the Board dismissed a request by the applicant for Sini to be transferred to him; such a measure could only be taken in enforcement of a custody order. However, it noted that the grandparents had totally refused to co-operate in attempts to arrange for the applicant to meet his daughter. Bearing in mind her age and the grandparents’ strong influence over her, she could not be considered sufficiently mature for her views to be taken into account.
The County Administrative Board had regard also to the conciliator’s above-mentioned report (see paragraph 34 above), submitted by the Social Welfare Board of Järvenpää. According to that report the grandparents had agreed to allow the applicant to see Sini in their own home, whilst the applicant had categorically refused to have anything to do with them. The conciliator in question had met Sini only in the grandparents’ presence in their home on 27 November 1992. On being questioned about her father she had been very reserved but had said that she objected to seeing him. The conciliator was of the view that Sini’s wishes in this regard should be taken into consideration.
36. The grandparents refused to bring Sini to a meeting with the applicant which the Social Welfare Board of Järvenpää had arranged to take place on 3 April 1993.
37. By judgment of 21 October 1993 the Court of Appeal, referring to section 6 of the 1975 Act (see paragraph 47 below), upheld an appeal lodged by the grandparents against the County Administrative Board’s decision of 31 December 1992 (see paragraph 35 above). The Court of Appeal noted that, according to a medical report of 8 September 1992 by Dr Arajärvi, Sini was physically and mentally healthy and a psychological test had shown that she was clearly of above average intelligence for a twelve-year-old; she should not therefore be forced to meet the applicant but be allowed to decide for herself. Moreover, the conciliator’s report (see paragraphs 34 and 35 above) stated that she had clearly and consistently refused to meet the applicant and was sufficiently mature for her wishes to be taken into account. The judgment concluded that in view of the child’s maturity, access could not be enforced against her wishes and lifted the fines imposed on the grandparents.
On 4 February 1994 the Supreme Court refused the applicant leave to appeal.
38. The applicant visited Sini in the grandparents’ home on a few occasions until 1986. The last time he met her was on 14 January 1987.
39. Custody of children is governed by the 1983 Act on Custody and Access Rights with regard to Children (laki 361/83 lapsen huollosta ja tapaamisoikeudesta, lag 361/83 ang. vårdnad om barn och umgängesrätt - "the 1983 Act"). Section 1 provides that the aim of such custody is to ensure the child’s balanced development and well-being, regard being had to the latter’s special needs and wishes, as well as to encourage a close relationship between the child and the parents. The custodian represents the child in his or her personal matters, unless the law provides otherwise (section 4).
40. The parents, or any other person to whom care of the child has been entrusted, are his or her custodians (section 3). Parents who are married to each other at the time of the child’s birth are the latter’s custodians (section 6).
41. The District Court may order that custody of a child be entrusted to one or more persons together with, or instead of, the parents (section 9 para. 1). It may transfer custody from the parents to other persons only if, from the child’s point of view, there are particularly strong reasons for doing so (section 9 para. 2).
The District Court is moreover empowered to decide on access (section 9). The aim of access is to secure a child’s right to maintain contacts with a parent with whom he or she is not living (section 2).
In deciding on matters of custody and access the competent court must take into account the wishes and interests of the child in accordance with the following considerations: primary emphasis must be placed on the interests of the child and particular regard should be had to the most effective means of implementing custody and access rights in the future (section 9 para. 4 and section 10 para. 1); the child’s views and wishes must, if possible and depending on its age and maturity, be obtained if the parents are unable to agree on the matter or if the child is being cared for by a person other than its custodian or if it is otherwise deemed necessary in the latter’s interests; the consultation must be carried out in a tactful manner, taking into account the child’s maturity and without causing harm to its relations with the parents (section 11).
42. Pending court decisions on matters of custody and access, the competent court may issue an interim order as to where the child should live, access arrangements and, in special circumstances, custody (section 17 paras. 1 and 2).
43. A decision on custody, access or a child’s place of residence is, unless it states otherwise, immediately enforceable (section 19).
44. According to section 1 of the 1975 Act (for references, see paragraph 9 above), the Act applies to the enforcement of a court decision, including an interim order, regarding custody and access. It may also apply to the enforcement of an order that a child should live with a particular person or that it should be handed over to its custodian.
A request for enforcement may be submitted to the Chief Bailiff in the area where the child lives (section 2), which authority is vested in the County Administrative Board (section 1 of the 1895 Act on Enforcement - ulosotto laki 1895/37, utsökningslagen 1895/37).
45. Pursuant to section 4, as amended by Act no. 366/83, before ordering enforcement the Chief Bailiff must assign as a conciliator a person appointed by the Social Welfare Board or another suitable person to mediate between the parties with a view to enforcing the decision. Such mediation is aimed at persuading the person taking care of the child to comply voluntarily with his obligations under the relevant decision.
Conciliation may not be ordered if it is evident from previous attempts that it would be unsuccessful or, in the case of a custody decision, if immediate enforcement is in the child’s interests and dictated by strong reasons.
46. The Chief Bailiff may impose an administrative fine in connection with an enforcement decision or, when the matter relates to the custody of a child or the handing over of a child to its custodian, he may order the Bailiff to transfer the child (section 5).
A fine as mentioned above must be fixed on the basis of the means of the person concerned (chapter 2, section 4 (b) para. 2, of the 1889 Penal Code). If the fine cannot be collected, it must be converted into a prison sentence (section 5 para. 1, as amended by Act no. 650/86).
47. Enforcement must not take place against a child’s own wishes if he or she is twelve years of age or is sufficiently mature for her wishes to be taken into account (section 6 of the 1975 Act, as amended by Act no. 366/83).
48. A decision by the Chief Bailiff under the 1975 Act may, unless otherwise stated therein, be enforced immediately (section 13 para. 1).
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1
NON_VIOLATED_ARTICLES: 6
8
NON_VIOLATED_PARAGRAPHS: 6-1
8-1


ITEMID: 001-81724
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: POZNANSKI AND OTHERS v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The application was lodged with the Court by Mr Mordechai Poznanski, Mr Jakob Silberstein, Mrs Erna Stasiak and in the name of Mr David Handwohl. Mr Poznanski and Mr Silberstein, born in 1925 and 1924 respectively, are Israeli nationals and reside in Israel. Mr Handwohl, who was born in 1923 and died on 29 May 2005, was a U.S. national. Mrs Stasiak is a Polish national and resides in Poland. They are represented before the Court by Ms S. Reppenhagen, a lawyer practising in Berlin.
The respondent Government are represented by their agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
During the Second World War Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak’s late husband Leon Stasiak, then Polish nationals, were subjected to forced labour in the Auschwitz-Monowitz concentration camp which was operated by the I.G. Farbenindustrie Corporation (I.G. Farbenindustrie AG). The forced labourers had to carry out physically hard work for 84 hours a week without receiving adequate nutrition. Once they were no longer physically capable of working, the forced labourers were sent to the Auschwitz-Birkenau extermination camp to be killed.
Mr Poznanski, Mr Silberstein and Mr Handwohl, who are of Jewish faith, and Mrs Stasiak’s late husband had been arrested by the German army following the occupation of Poland. Having been detained in several concentration camps, they were finally transferred to the Auschwitz-Monowitz concentration camp, where they remained until their liberation by the Red Army in January 1945.
Following the end of the Second World War, the allied forces split up the I.G. Farbenindustrie Corporation inter alia into the companies Bayer, Hoechst and BASF. Legal successor to the corporation was the I.G. Farbenindustrie Corporation in liquidation (I.G. Farbenindustrie AG in Abwicklung, “IG Farben”).
The Federal Republic of Germany, after its foundation on 23 May 1949, did not establish any compensation schemes for forced labourers.
Under the London Agreement on Germany’s External Debts (London Debt Agreement) of 27 February 1953, the regulation of compensation claims was deferred until the final settlement of reparation.
Subsequently many actions brought by former forced labourers against German companies were rejected with reference to the London Debt Agreement. Nevertheless, the Federal Republic of Germany paid compensation to victims of the Nazi regime, mostly to those who were living in Israel, the Federal Republic of Germany and other Western European States, in particular pursuant to the provisions of the Federal Act on Compensation for Victims of Nazi Persecution (Bundesentschädigungs-gesetz), which entered into force on 1 October 1953. It provides inter alia compensation for the detention in a concentration camp and the resulting damage to the health of the former detainees. Forced labour as such was not covered by the existing legislation.
Mr Poznanski received payments of 8,100 Deutschmarks (DEM) in 1957 and 21,705 DEM in 1964, as well as a monthly pension of 136 DEM as of 1 June 1964. In 1989 he received additional payments of 3,271 and 10,365 DEM and his monthly pension was increased from 580 to 723 DEM. As of August 2004 the applicant has been in receipt of a monthly pension of 526 euros (EUR).
Mr Silberstein received a payment of 10,050 DEM in 1959.
On 6 February 1957 IG Farben and the Conference on Jewish Material Claims against Germany (“Jewish Claims Conference”) entered into a friendly settlement during the course of a lawsuit brought by a former forced labourer (the so-called Wollheim case). Pursuant to that settlement I.G. Farben undertook to pay 30 million DEM to its former forced labourers. Mr Poznanski and Mr Silberstein received 5,000 DEM each under that settlement. Although the settlement stipulated that the recipients were to waive all further claims against I.G. Farben, it is not clear whether the applicants signed such a waiver.
After 1990 the Federal Republic of Germany paid lump sums to several Eastern European States, which then created funds for victims of the Nazi regime. The Federal Republic of Germany paid 500 million DEM to a Polish foundation, which then granted compensation to former detainees of concentration camps.
That Polish foundation granted Mrs Stasiak’s late husband benefits amounting to 3,780 new Polish zlotys (PLN) on 19 March 1993 and 4,301 PLN on 9 June 1997.
However, individual compensation for forced labour as such was still not provided by the Federal Republic of Germany. Many of those former forced labourers brought actions against German companies, in particular class action suits in the United States of America. Against that background the Government of the Federal Republic of Germany and the Government of the United States of America concluded a treaty that envisaged the creation of the foundation “Remembrance, Responsibility and Future” (Stiftung “Erinnerung, Verantwortung und Zukunft” - hereinafter called “Foundation”) which would provide individual compensation for former forced labourers.
Russia, Poland, the Czech Republic, Ukraine, Byelorussia, the Jewish Claims Conference, legal representatives of former forced labourers and representatives of German industry had participated in those negotiations.
In 1999 Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak’s late husband brought actions for compensation for non-pecuniary damages and actions for restitution of the unjustified enrichment (Klage auf Herausgabe der ungerechtfertigten Bereicherung) against the I.G. Farben requesting between 40,000 DEM (20,452 EUR) and 70,000 DEM (35,790 EUR) each.
On 12 August 2000 the “Law on the Creation of the Foundation “Remembrance, Responsibility and Future” (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft” – hereinafter called “Foundation Law”) entered into force (see “Relevant domestic law and practice” below). The Foundation was subsequently set up and both the Government of the Federal Republic of Germany and the German companies provided for the Foundation’s funding. I.G. Farben did not make any contributions.
The Frankfurt Regional Court rejected the actions stating that claims against I.G. Farben were excluded by the Foundation Law.
Rejecting the claimants’ appeal the court held that their claims were excluded by the Foundation Law. Nevertheless, the court came to the conclusion that some of their claims had not been time-barred when the Foundation Law entered into force. At the outset the court recalled that the statute of limitations (Verjährung) for claims relating to forced labour during the Second World War had been suspended (gehemmt) by the London Debt Agreement. That suspension had been lifted with the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the socalled TwoPlusFour Treaty).
As regards the claims for compensation for non-pecuniary damages the court applied a prescription period of three years, holding that the claims had become time-barred in the end of 1993. In respect of their claims of restitution of the unjustified enrichment (Anspruch auf Herausgabe der ungerechtfertigten Bereicherung) the court found that, contrary to the case-law of the Federal Court of Justice (see “Relevant domestic law and practice” below), those claims were not time-barred. Instead of applying a prescription period of two or four years as the Federal Court of Justice had done, the Court of Appeal applied a prescription period of thirty years.
In its reasoning the court stressed that before the Foundation Law had entered into force the question whether claims for forced labour were time-barred had not been finally settled. Leave to appeal on points of law was refused.
The Federal Court of Justice rejected the complaint against the refusal of leave to appeal on points of law. The court stated that the Court of Appeal’s holding that claims of restitution of the unjustified enrichment were not time-barred deviated from the existing case-law of the Federal Court of Justice. However, the court found it unnecessary to rule on that issue because the claims were excluded by the Foundation Law in any event.
During the proceedings before the Federal Constitutional Court Mr Stasiak died and his widow pursued the proceedings. The Federal Constitutional Court refused to admit the constitutional complaint against the aforementioned decisions and section 16 of the Foundation Law, holding that they did not violate the complainants’ rights under Article 14 of the German Basic Law (right of property). The court found that Article 14 was applicable, because the complainants had had claims for restitution of the unjustified enrichment prior to the Foundation Law’s entry into force, as held by the Court of Appeal; the findings of which were binding as a starting point for the constitutional review insofar the question of prescription was concerned. The Federal Constitutional Court went on to say that although there had been an interference with the complainants’ right of property, it did not constitute an expropriation. It found that the exclusion of claims under the Foundation Law was not undertaken for public purposes (zur Erfüllung öffentlicher Aufgaben). On the contrary, the exclusion of claims was meant to balance the purely private interests of the former forced labourers on the one hand and German industry on the other hand. Therefore, section 16 of the Foundation Law determined the extent of the right of property and its limitations (Inhalts- und Schrankenbestimmung). The court concluded that the Foundation Law was an overall settlement (Gesamtregelung) which had struck a fair balance between those competing interests. The court held that both the creation of a compensation scheme on the one hand and the achievement of legal certainty for German companies and the State on the other hand pursued legitimate interests. The court acknowledged that the amount of compensation under the Foundation’s scheme was in some cases inferior to the claims the former forced labourers had had under German civil law. However, the court pointed out that the overall settlement as set up by the Foundation Law had several advantages that balanced its shortcomings. First, the court noted that the Foundation Law created legal certainty for former forced labourers by replacing their claims against companies which were bankrupt or no longer existed with claims against a foundation endowed with sufficient funds. Moreover, the Federal Constitutional Court highlighted that, before the Foundation Law had entered into force, it had been open whether the Federal Court of Justice would change its case-law regarding the prescription of claims for forced labour. Hence the former forced labourers did not have to bring proceedings before the German courts, which would have entailed considerable financial risks and would have been time-consuming. In this respect the court stressed that all former forced labourers were well advanced in years and that only the Foundation’s compensation scheme guaranteed that they would receive compensation within their lifetime.
The decision was served on 4 January 2005.
On an unknown date Mr Poznanski, Mr Silberstein, Mr Handwohl and Mrs Stasiak, as her late husband’s heir, were granted payments under the Foundation Law amounting to the equivalent of 7,669 EUR each.
On 29 May 2005 Mr Handwohl died.
According to the preliminary sixth report of the Federal Ministry of Finances on the activities of the Foundation, which covers its activities until 31 March 2006, about 2,330,000 applications for compensation had been lodged with the Foundation’s partner organisations. In approximately 1,650,000 cases the partner organisations rendered positive decisions, while about 678,000 requests were denied. Approximately six thousand cases were still pending before the partner organisations’ appeals boards. All partner organisations combined had awarded payments amounting to about 4.3 billion EUR. In about 22,400 cases the partner organisations were still in the process of making the payments.
According to the judgment of the Federal Court of Justice of 22 June 1967, claims against a company for the restitution of the unjustified enrichment or claims for compensation for non-pecuniary damages for forced labour carried out during the Second World War were time-barred. The court found that tort claims were prescribed after three years, while claims for restitution of the unjustified enrichment became time-barred after either two or four years (no. VII ZR 181/65, Decisions of the Federal Court of Justice in Civil Matters (BGHZ) vol. 48, pp. 125 et seq.).
In decisions rendered after the year 2000 several Courts of Appeal held that the statute of limitations for claims relating to forced labour during the Second World War had been suspended (gehemmt) by the London Debt Agreement. That suspension had been lifted with the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the socalled TwoPlusFour Treaty) because that treaty was considered a final settlement of reparation. However, applying the prescription periods (Verjährungsfristen) as determined by the Federal Court of Justice in its aforementioned judgment, the courts concluded that the claims against the respondent companies had become time-barred before the actions were brought (see the judgment of the Stuttgart Court of Appeal of 20 June 2000, no. 12 U 37/00; the decision of the Court of Appeal of Schleswig-Holstein of 19 January 2001, no. 4 W 47/99; the decision of the Koblenz Court of Appeal of 30 October 2000, no. 10 W 542/00; decision of the Bamberg Court of Appeal of 17 October 2000, no. 3 W 86/00).
There has never been a final judgment confirming the existence of claims arising from forced labour carried out during the Second World War.
The Foundation Law stipulates that the Foundation should be endowed with 10 billion DEM (5.11 billion EUR), to be provided equally by the Government of the Federal Republic of Germany and German companies. The sum of 8.1 billion DEM was intended for the compensation of forced labour. The remaining funds inter alia aimed at compensating the loss of property or were granted as humanitarian aid to the Jewish Claims Conference and the International Commission on Holocaust Era Insurance Claims which finance social programmes for Holocaust survivors.
All German companies which exploited forced labourers during the Second World War are protected by the Foundation Law, regardless of whether they actually contributed to the Foundation.
Requests for compensation are not processed by the Foundation itself, but by its regional partner organisations in several European countries. The highest amount of compensation - for forced labour in a concentration camp - is 15,000 DEM (7,669 EUR). That amount can be reduced if the funds do not suffice to fully compensate all individuals entitled under the Foundation Law. The compensation is made in two instalments. First, 35 % or 50 % of the total sum is paid out, while the second instalment is made after all requests have been processed, provided that the funds suffice. As a matter of principle, only the forced labourers themselves are entitled to compensation. Heirs are only eligible if the forced labourer died after 15 February 1999.
According to section 16 of the Foundation Law all further claims against the German State or German companies are excluded. That provision reads as follows:
“Exclusions from Claims
(1) Payments from public funds, including social security, and from German business enterprises for injustice suffered under National Socialism as defined in Section 11 may be claimed only under the terms of this Law. Any further claims in connection with National Socialist injustices are excluded. This applies also to cases in which claims have been transferred to third persons by operation of law, transition, or a legal transaction.
(2) On receipt of a payment under this Law, each claimant shall provide a statement ... irrevocably renouncing, without prejudice to Sentences 3 to 5, after receipt of a payment under this Law any further claim against the authorities for forced labour and property damage, all claims against German enterprises in connection with National Socialist injustice, and forced-labour claims against the Republic of Austria or Austrian enterprises. The renunciation becomes effective upon receipt of a payment under this Law. ...”