ITEMID: 001-110378
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GRUDIĆ v. SERBIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46 - General measures);Pecuniary and non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 6. The applicants were born in 1952 and 1948, respectively, and are married to each other.
7. In 1995 and 1999, respectively, the applicants were granted disability pensions by the Serbian Pensions and Disability Insurance Fund (Republički fond za penzijsko i invalidsko osiguranje zaposlenih; hereinafter “the SPDIF”) – Branch Office in Kosovo.
8. Having lived in Kosovska Mitrovica for many years, in 2005 they moved to Novi Pazar, Serbia proper (i.e. the territory of Serbia excluding Kosovo), as documented in their personal identity cards issued by the respondent State’s Ministry of Internal Affairs (Ministarstvo unutrašnjih poslova).
9. The first and second applicants regularly received their pensions until 9 June 1999 and 15 January 2000, respectively, when the monthly payments stopped without any explanation having been provided by the SPDIF.
10. On 22 May 2003 the applicants sought that the payment of their pensions be resumed.
11. On 1 March 2005 and 17 May 2004, the SPDIF adopted formal decisions to suspend payment of the applicants’ pensions as of 9 June 1999 and 15 January 2000, retroactively. In so doing, it noted that Kosovo was now under international administration which was why the pensions could no longer be paid.
12. By two separate judgments of 11 July 2006 the District Court (Okružni sud) in Novi Pazar annulled (poništio) the impugned decisions, noting, inter alia, that they did not refer to the relevant domestic law or provide a satisfactory explanation as to why the payment of the applicants’ pensions should be suspended. In respect of the latter, the District Court effectively re-stated parts of the Supreme Court’s Opinion of 15 November 2005, but did not formally cite it (see paragraph 31 below).
13. The SPDIF thereafter filed two separate appeals on points of law (dva zasebna zahteva za vanredno preispitivanje presude) in respect of the District Court’s rulings of 11 July 2006. In its appeal as regards the second applicant the SPDIF, inter alia, stated that, since the respondent State has been unable to collect any pension insurance contributions in Kosovo as of 1999, persons who had already been granted SPDIF pensions in this territory could not continue receiving them. In support of this position the SPDIF cited the Opinion of the Ministry for Social Affairs (Ministarstvo za socijalna pitanja) of 7 March 2003 (see paragraph 29 below) and noted that it considered this opinion binding.
14. On 13 September 2007 and 26 February 2008 the Supreme Court (Vrhovni sud Srbije) rejected the said appeals on points of law. Whilst the appeal as regards the second applicant was rejected as incomplete, the same remedy concerning the first applicant was rejected on its merits. In the latter case, the Supreme Court confirmed the impugned decision of the District Court.
15. By means of two separate decisions of 3 April 2008 the SPDIF suspended the proceedings instituted on the basis of the applicants’ requests for the resumption of payment of their pensions until such time, as stated in the operative provisions, when the entire issue shall be resolved between the Serbian authorities and the international administration in Kosovo. The SPIDF decisions had an appearance of printed templates where merely the applicants’ names, their place of residence and case identification data were entered by hand.
16. The applicants maintain that they filed administrative appeals against these decisions. The Government contests this claim. The applicants have provided the Court with copies of postal certificates indicating that correspondence of some sort had been sent to the SPDIF, as well as the Ministry for Labour, Employment and Social Policy (Ministarstvo rada, zapošljavanja i socijalne politike), but have not supplied the Court with copies of the appeals in question.
17. Without formally deciding to resume the stayed proceedings, on 7 April 2008 the SPDIF requested (zaključkom o obezbeđenju dokaza) the applicants to provide them with the decisions granting their pensions. It would appear that the applicants complied with this request. They have also provided this Court with copies of the decisions in question.
18. There seem to have been no procedural developments thereafter.
19. In June 1999 Kosovo was placed under international administration.
20. The applicants submitted that all ethnically Serbian pensioners from Kosovo had continued receiving their pensions normally, as have many Bosniaks, Roma, Turks and Albanians. They further contended that they also could have solved their pension problem had they been willing to “bribe those in charge”.
21. On 18 June 2004 the Serbian Ministry for Work, Employment and Social Policy, in response to a prior query, informed Kosovo’s Ombudsman that the pension system in Serbia was based on the concept of “ongoing financing”. Specifically, pensions were secured through current pension insurance contributions. It followed that since the Serbian authorities have been unable to collect any such contributions in Kosovo as of 1999, persons who had already been granted SPDIF pensions in Kosovo also could not expect, for the time being, to continue receiving them. Further, the Ministry noted the adoption of Regulation 2001/35 on pensions in Kosovo, providing for a separate pension system for persons living in the territory (see paragraph 39 below).
22. In 2005, following the destruction of their house, the applicants moved from Kosovska Mitrovica to Novi Pazar located in Serbia proper.
23. On 2 April 2008 the SPDIF certified, inter alia, that the first applicant’s maiden family name had been Klapija.
24. Both applicants are suffering from serious heart-related conditions, and are living under very difficult financial circumstances. They maintain, however, that they have never applied for pensions in Kosovo.
25. Article 104 provides, inter alia, that administrative proceedings before the SPDIF may be reopened, at the request of the insured person or ex proprio motu, if new relevant facts or evidence become known or if in the original proceedings such facts or evidence were not presented.
26. Article 110 provides, inter alia, that one’s pension and disability rights shall be terminated if it transpires that one no longer meets the original statutory requirements. However, should an entitled pensioner secure an additional pension before another pension and disability insurance fund established by one of the other States formed in the territory of the former Yugoslavia, his or her pension paid by the SPDIF, unless stipulated otherwise by an international agreement, shall be reassessed (recalculated) based on the pensionable employment period (penzijski staž) already taken into account by the former.
27. Article 169 provides, inter alia, that the SPDIF’s assets consist of: pension and disability insurance contributions; its own property; earmarked sums in the States’ budget; subsidies and donations, return on various investments; and a certain portion of the funds obtained through the privatisation of State-owned and socially-owned capital.
28. These decisions set out details concerning the procedural competence of various branches of the SPDIF as regards the entitlements of insured persons from Kosovo.
29. These Opinions state, inter alia, that the pension system in Serbia is based on the concept of “ongoing financing”. Specifically, pensions are secured through current pension insurance contributions. Since the Serbian authorities have been unable to collect any such contributions in Kosovo as of 1999, persons who have been granted SPDIF pensions in Kosovo also cannot expect, for the time being, to continue receiving them. Further, it is noted that Regulation 2001/35 on pensions in Kosovo, adopted by the United Nations Interim Administration Mission, provides for a separate pension system for persons living in the territory, which in itself amounts to a serious issue (see paragraph 39 below).
30. The Serbian Constitutional Court (Ustavni sud Srbije) has consistently held that Opinions and Instructions issued by various Government ministries do not amount to legislation (ne predstavljaju propis ili opšti pravni akt), and are instead merely meant to facilitate the implementation thereof (see, for example, IU-293/2004 of 29 June 2006 and IUo-275/2009 of 19 November 2009).
31. In response to the situation in Kosovo, this Opinion states, inter alia, that one’s recognised right to a pension may only be restricted on the basis of Article 110 of the Pensions and Disability Insurance Act (see paragraph 26 above). In view of Article 169 of the said Act, one’s recognised pension rights cannot either depend on whether or not current pension insurance contributions can be collected in a given territory (see paragraph 27 above).
32. The Opinion further explains that administrative proceedings (upravni postupak) and, if needed, judicial review proceedings (upravni spor) would be the appropriate avenue to challenge any restriction of one’s pension rights.
33. Lastly, the Opinion notes that the civil courts shall, in this context, only be competent to adjudicate cases involving claims of malfeasance (nezakonit i nepravilan rad) on the part of the SPDIF.
34. Articles 5 and 6 provide, inter alia, that judicial review proceedings may be brought against an administrative decision issued by a competent State body or public authority.
35. Article 24 provides that should a second instance administrative body fail to decide on an appeal filed more than 60 days earlier, and should it again fail to do so in another 7 days, upon receipt of the claimant’s repeated request to this effect, the latter may directly institute a judicial review suit, i.e. as if his or her appeal had been rejected.
36. Article 41 § 3 provides that the competent court may not only quash the impugned administrative act but may also rule on the merits of the plaintiff’s claim, should the facts of the case and the very nature of the dispute in question allow for this particular course of action.
37. Article 1 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim in Serbian dinars until the date of its settlement.
38. Article 2 states that such interest shall be calculated on the basis of the official consumer price index plus another 0.5% monthly.
39. These regulations provide for a separate pension system whereby, inter alia, all persons “habitually residing” in Kosovo, aged 65 or above, shall have the right to a “basic pension”.
40. On 13 June 2008 the Kosovan Assembly adopted this Act which, essentially, endorsed the pension system as set up by the two Regulations cited above but transferred the functional competencies from the United Nations Interim Administration Mission in Kosovo to the Kosovan authorities.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-96220
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MIKHAYLYUK AND PETROV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicants were born in 1949 and 1951, respectively, and live in Odessa.
5. From 1976 until 1996 the second applicant worked for the Chernomorska Penitentiary Institution no. 74 (“the colony”). He was provided with a room in a hall of residence, which was situated on the site of the colony and had the same postal address. He resided there until 1991. Afterwards, the applicants lived together in the first applicant's flat. The second applicant is still entitled to reside in the colony and it remains his registered place of residence.
6. In September 1998 the applicants instituted civil proceedings in the Prymorskyy District Court of Odessa against the colony and the local post office. They alleged that letters addressed to them by domestic and international courts, which had been delivered to the address of the second applicant, had been unlawfully opened and read by the defendant institutions. The applicants sought compensation for non-pecuniary damage.
7. On 29 March 2001 the court rejected the applicants' claims. It established that the colony had opened two letters addressed to the applicants: the letter of 27 October 1998, sent by the Starokyivskyy District Court of Kyiv to the first applicant, and the letter of 24 August 1998, sent by the European Court of Human Rights to the second applicant in the context of his previous application to the Court (no. 44997/98, declared inadmissible on 26 October 1999).
8. The court held that, pursuant to Article 28 of the Correctional Labour Code of 1970 and section 7 of the Pre-Trial Detention Act of 1993, the administration of the colony had been authorised to monitor all correspondence delivered to it. Since the room of the second applicant was situated on the premises of the colony, his correspondence had been dealt with by its administration in accordance with the rules applicable to detainees' correspondence. The court also found that the administration had acted in accordance with the Instruction on the processing of documents in the organs of the Ministry of the Interior and the Instruction on the organization of the monitoring of correspondence of persons held in penitentiary institutions and pre-trial detention centres, issued by the Ministry of the Interior on 22 June 1993 and 28 May 1999, respectively. The court further stated that the letter addressed to the first applicant had been opened also due to the fact that there had been a detainee with the same name in the colony. The court concluded that the interception of the applicants' correspondence had not violated their constitutional rights.
9. On 19 July 2001 the Odessa Regional Court upheld the first-instance court's decision. On 15 May 2002 a panel of three judges of the Supreme Court rejected the applicants' request for leave to appeal in cassation.
10. The relevant provisions of the Constitution read as follows:
“Everyone shall be guaranteed privacy of mail, telephone conversations, telegraph and other correspondence. Exceptions shall be established only by a court in cases envisaged by law, with the purpose of preventing crime or ascertaining the truth in the course of the investigation of a criminal case, if it is not possible to obtain information by other means.”
“Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties.”
11. According to Article 2 of the Code, the correctional labour legislation regulated the procedure and conditions of serving criminal sentences and the activities of the organs enforcing criminal sentences.
12. Article 28 of the Code provided that detainees' correspondence was subject to censorship, and their parcels and packages were subject to opening and checking.
13. According to section 1 of the Act, pre-trial detention is a preventive measure in respect of an accused, a defendant or a person suspected of having committed a crime punishable with imprisonment, or a convicted person whose sentence has not yet become final.
14. Section 7 of the Act provides that detainees' personal belongings and correspondence must be checked.
15. At the material time Articles 177 and 187 of the Code empowered investigators to intercept a person's correspondence on the basis of a prosecutor's or a court's warrant if there were sufficient grounds to believe that such correspondence contained information of importance for establishing the truth in a criminal case.
16. According to section 1 of the Act, as worded at the material time, retrieval and search operations were aimed at detection and recording of information about unlawful activities by a person or groups of persons and about intelligence and subversive activities of foreign special services, and in the interests of public safety. Retrieval and search operations were to be carried out by the organs of the Interior, the Security Service, the Boarder Guard Forces, the State Guard Department, and the Tax Administration (section 5). Interception of correspondence, as one of the types of such activities, required a prosecutor's warrant (section 8).
17. Section 6 of the Act contained an exhaustive list of grounds pursuant to which retrieval and search operations might be carried out, which included the presence of sufficient information about crimes, intelligence and subversive activities against Ukraine, persons who were preparing or have committed crimes, persons hiding from the investigative bodies or evading the application of criminal sanctions, and disappeared persons; the submission of requests by the relevant authorities to check persons for the reasons of granting them access to secret information; and the need to obtain intelligence information in the interests of public and State safety.
VIOLATED_ARTICLES: 8


ITEMID: 001-58126
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF HELLE v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 6-1
JUDGES: N. Valticos;Pieter Van Dijk;R. Pekkanen
TEXT: 6. The applicant, Mr Pekka Helle, is a retired verger of the Evangelical-Lutheran parish of Mäntsälä. According to the applicant his family have for four generations provided a verger to the parish.
7. Although he had performed duties for the parish since 1952, it was only on 21 September 1966 that a decision (hereinafter, “the 1966 decision”) was taken by the Parish Council (kirkkovaltuusto, kyrkofullmäktige) to establish officially the post of verger and to confirm the applicant as the verger (see paragraph 8 below).
8. In creating the post, the Parish Council noted that the Parish Management Board (kirkkohallintokunta) had proposed that the verger be paid 75% of the salary on the Grade 9 salary scale for employees of the Evangelical-Lutheran Church. However the Parish Council ultimately decided that the verger’s post was to be considered as the main occupation (päätoimi) of the post holder and the holder remunerated according to Grade A3 of the salary scale. In salary terms, this in fact amounted to the same level of remuneration as suggested by the Parish Management Board. However, there was no indication as to whether it was a full-time or part-time post. The Parish Council further decided that Mr Helle, as the post holder, should not be remunerated for the performance of any extra duties and that he should be authorised, as was proposed by the Parish Management Board, to manage a funeral home.
9. As from the beginning of 1975 a new collective agreement for Church employees came into force. Under that agreement a new salary scheme was introduced under which salaries were fixed in respect of the various posts and the terminology was clarified so that a main occupation of a Church employee could henceforth either be full-time or part-time. The new salary system was applied in 1977 to the Church employees of the parish of Mäntsälä.
10. In a decision taken on 16 November 1977 (hereinafter “the 1977 decision”) in the context of the application of the new collective agreement arrangements to its employees, the Parish Board ((kirkkoneuvosto, kyrkorådet) noted that the decision of the Parish Council of 21 September 1966 creating the post of verger (see paragraph 8 above) did not specify whether that post was full-time or part-time. The view was taken that since the Parish Management Board at the relevant time had proposed that Mr Helle be granted permission to manage a funeral home it was probable that his post was a part-time main occupation.
The Parish Board confirmed that the verger’s working hours were thirtyfive hours per week and that his salary was 87% of that payable to a full-time verger on the revised salary scales. The applicant’s salary however remained the same as before. Further, the Parish Board authorised Mr Helle to manage a funeral home alongside his duties as verger.
11. From the moment of taking up his employment as verger, the applicant carried out his duties on the understanding that his post was in fact a full-time one. He was never informed of the 1977 decision and its implications were not apparent to him since he continued to receive the same salary and to work forty hours per week.
12. It was only in December 1988 when he enquired about his pension rights that he reached the conclusion that the Parish Board had in 1977 considered his post to be part-time and that some of his salary-related entitlements including pension rights were as a consequence lower than those of a full-time post holder.
13. On 9 January 1989 the applicant appealed against the 1977 decision to the Parish Council claiming arrears of salary owed to him as a full-time parish verger and other lost benefits.
14. In its decision of 10 October 1989 the Parish Council noted that, according to the decision of the Parish Board of 16 November 1977 (see paragraph 10 above), Mr Helle’s post was a part-time main occupation. The Parish Council considered that it was not legally obliged to grant the applicant any pecuniary benefits in addition to those he already received on the basis of the 1977 decision of the Parish Board (see paragraph 10 above). It nevertheless decided on an ex gratia basis that the applicant should be paid the difference between his part-time salary and a full-time salary as from 1 January 1987. It also increased his pension benefits and awarded him a compensatory lump sum.
15. In the meantime, on 25 January 1989, the applicant had also lodged an appeal with the Cathedral Chapter (tuomiokapituli, domkapitlet) of the Helsinki Diocese (hiippakunta, stift), complaining that the Parish Board’s 1977 decision amounted to a unilateral change by the Board to the nature of his post and had prejudiced him financially. Under section 443 of the Church Act 1964 (kirkkolaki, kyrkolag 635/64), the Cathedral Chapter acted as “a court of first instance” in cases concerning salary claims of parish officials.
On 15 November 1989, following the Parish Council’s decision of 10 October 1989, the applicant lodged a supplementary appeal with the Cathedral Chapter, complaining about the low level of the benefits granted to him in that decision and claiming, inter alia, compensation.
16. The Cathedral Chapter joined the two appeals. In its decision of 1 June 1990 it stated that the applicant had locus standi and that the appeal could not be considered as time-barred since the applicant had not been notified of the 1977 decision as required by Finnish law (see paragraph 11 above). As regards the merits, the Cathedral Chapter noted that, in its opinion, the 1977 decision of the Parish Board was primarily a decision on the working hours for the verger’s post. It had not been possible to ascertain from the documents produced in the case whether the post in question was created in 1966 as a full-time or part-time main occupation. In any event, the Parish Board lacked the competence to convert a full-time post into a part-time one since the Parish Council was solely competent in 1977 to take such a decision. On the other hand, the Parish Board’s specification of the working hours for the post had been the basis for the revised method of calculating salaries under the new collective agreement arrangements.
On these grounds the Cathedral Chapter found that the 1977 decision had not altered the applicant’s post from a full-time to a part-time one. In view of the fact that the parish had sole competence to decide on the working hours for a post, the Cathedral Chapter dismissed the verger’s appeal in that regard. It further considered that it was not competent to examine his claims for compensation and dismissed this part of the appeal without examining the merits.
17. On 28 June 1990 the applicant appealed against the Cathedral Chapter’s decision to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), claiming that the decisions of the Cathedral Chapter, the Parish Council and the Parish Board should be repealed and that he should be compensated for the financial loss suffered since 1 January 1978 through not being recognised as a full-time verger.
At the Supreme Administrative Court’s request, the Cathedral Chapter submitted on 5 September 1990 an opinion in which it stated that the appeal should be rejected. The applicant filed his comments on the opinion on 16 October 1990.
18. In a decision of 8 March 1991 the Supreme Administrative Court, without having held an oral hearing, upheld the Cathedral Chapter’s decision as regards the effects of the 1977 decision, finding no reason to alter it. On the other hand, the Supreme Administrative Court considered that the Cathedral Chapter did have jurisdiction to examine the dispute regarding his compensation claim and therefore referred the case back for fresh examination.
The Cathedral Chapter’s decision of 1 June 1990 was appended to the decision of the Supreme Administrative Court but the latter decision did not refer to the Cathedral Chapter’s opinion or to the applicant’s comments thereon.
19. In a fresh appeal of 31 May 1991 to the Cathedral Chapter the applicant maintained his previous complaints in respect of both the 1977 decision and the level of compensation set by the earlier decision of the Parish Council. Moreover, he maintained that in the event of the Cathedral Chapter not being satisfied that his post had been full-time since its creation, he requested the Cathedral Chapter to hold an oral hearing and hear witnesses on the matter.
In this connection, the applicant submitted a written statement by six former members of the Parish Council who had participated in the creation of his post in 1966. In their view, the Parish Council had been aware of the fact that the anticipated number of working hours clearly sufficed for the purposes of a full-time post and it had therefore rejected a proposal to establish a part-time post.
The applicant also submitted a written statement of his trade union to the effect that the parish had never contested the fact that he had worked at least forty hours per week, although he had only been paid a salary based on thirty-five hours per week. The fact that he had (in 1966) been granted permission to have a secondary occupation (to manage a funeral home) had not entitled the parish to amend his employment contract unilaterally.
20. In its decision of 29 August 1991 the Cathedral Chapter took account of the various written statements submitted in support of the applicant’s claims. Having regard to the evidence adduced and to the fact that it had not been possible to submit further evidence concerning his working hours especially as the applicant had a secondary occupation closely related to his duties as verger, the Cathedral Chapter upheld the decision of the Parish Council of 10 October 1991 and rejected his other claims for compensation for lack of sufficient evidence. The applicant’s request for an oral hearing was not mentioned in the decision.
21. The applicant appealed to the Supreme Administrative Court against the decision of the Cathedral Chapter, claiming that the compensation had been fixed at too low a level.
22. On 11 December 1991 the Cathedral Chapter, at the request of the Supreme Administrative Court, submitted a further opinion to the court in which it stated that the applicant’s appeal should be rejected. The applicant filed his comments on the opinion on 16 January 1992.
23. On 31 March 1992 the Supreme Administrative Court, without holding an oral hearing, upheld the Cathedral Chapter’s decision of 29 August 1991, finding no reason to alter it. The decision referred to section 538b of the Church Act 1984 as well as to the Regulations on Posts and Salaries of the parish as adopted by the Cathedral Chapter in 1988. According to section 538b the terms of employment for posts within the Church were to be specified in regulations adopted by the Church Assembly (kirkolliskokous, kyrko-mötet), to the extent that they were not indicated in already existing regulations and collective agreements.
The decision of the Cathedral Chapter of 29 August 1991 was appended to the decision of the Supreme Administrative Court but the latter decision did not refer to the Cathedral Chapter’s opinion or to the applicant’s comments thereon.
24. Under the Church Act 1964 (kirkkolaki, kyrkolag 635/64) a decision by the Church Council could be appealed against to the Cathedral Chapter by any person claiming that the decision entailed a violation of his or her private rights (section 323 (1) as in force at the relevant time).
25. The Cathedral Chapter is both an administrative and a judicial body of the Diocese (section 432). At the relevant time its members included the Bishop, as the chair, three Church assessors and one legal assessor. One of the Church assessors was Dean of the Cathedral Congregation (tuomiokirkko-seurakunnan tuomiorovasti, domkyrkoförsamlingens domprost) and also Vice-Chairman of the Cathedral Chapter. The two others were elected by the priests and curates of the Diocese from among its permanent priests. The Church assessors sat for a period of three years. As long as they were priests in the same parish or parish confederation they could not sit on the Cathedral Chapter for more than two periods. The legal assessor was a lawyer appointed by the Cathedral Chapter (sections 433435).
26. The statutory rules on the disqualification of judges extended to the members of the Cathedral Chapter (section 436 (3)). Before taking up their duties, the members had to swear a judicial oath (section 437).
27. In determining cases brought before it, the Cathedral Chapter was to base itself on the case file. If it was deemed necessary to hear witnesses, evidence was to be taken by an ordinary court of first instance on request by the Cathedral Chapter submitted via the County Administrative Board (section 455).
On 1 January 1994 the 1964 Act was replaced by the 1993 Church Act (kirkkolaki, kyrkolag 1054/93) which expressly provides that the Cathedral Chapter may hold oral hearings (Chapter 19, sections 6 and 7).
28hallintolainkäyttölaki, förvaltningsprocesslag 588/96 – “the 1996 Act”, which entered into force on 1 December 1996) the Supreme Administrative Court must hold an oral hearing if a private party has requested this, but may nevertheless refuse this in certain circumstances (section 38 (1)).
29. The instrument of ratification of the Convention deposited by the Finnish Government on 10 May 1990 contained the following reservation, made in accordance with Article 64 of the Convention, in respect of the right to a public hearing guaranteed by Article 6 § 1:
“ For the time being, Finland cannot guarantee a right to an oral hearing insofar as the current Finnish laws do not provide such a right. This applies to:
1. proceedings before the Courts of Appeal, the Supreme Court, the Water Courts and the Water Court of Appeal in accordance with Chapter 26 Sections 7 and 8, as well as Chapter 30 Section 20, of the Code of Judicial Procedure, and Chapter 15 Section 23, as well as Chapter 16 Sections 14 and 39, of the Water Act;
2. proceedings before the County Administrative Courts and the Supreme Administrative Court in accordance with Section 16 of the County Administrative Courts Act and Section 15 of the Supreme Administrative Court Act;
3. proceedings, which are held before the Insurance Court as the Court of Final Instance, in accordance with Section 9 of the Insurance Court Act;
4. proceedings before the Appellate Board for Social Insurance in accordance with Section 8 of the Decree on the Appellate Board for Social Insurance.
The provisions of the Finnish laws referred to above are attached to this reservation as a separate annex.”
30. According to the annex to the above reservation, the relevant part of section 15 of the Supreme Administrative Court Act reads:
“In investigating a case, the Supreme Administrative Court may ... hold oral hearings ... In an oral hearing the parties, witnesses and experts may be heard, and other evidence may be taken.
The Supreme Administrative Court may decide that oral hearings ... be conducted by one or more members of the Court together with the referendary.”
31. On 20 December 1996, following the entry into force of the 1996 Act, Finland withdrew the above reservation, inter alia, in respect of proceedings before the Supreme Administrative Court concerning decisions taken after 1 December 1996.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-70289
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KALNASI v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
TEXT: 4. The applicants were born in 1958 and 1953 respectively and live in Füzérkomlós, Hungary.
5. On 20 October 1995 the applicants brought an action in trespass against their neighbours before the Miskolc District Court. The court held nine hearings between 14 February 1996 and 5 January 1998 and obtained an expert opinion. On 15 June 1998 the court partly accepted the applicants' claims.
6. On appeal, on 4 February 1999 the Borsod-Abaúj-Zemplén County Regional Court gave a partial decision. It upheld part of the first-instance decision, but quashed the remainder and remitted the case to the District Court. It appears that the applicants' repeated efforts to have the Regional Court's decision enforced were to no avail.
7. In the resumed proceedings before the District Court, hearings took place on 12 July, 6 September, 4 October, 14 December 1999, 19 January and 9 March 2000. On 3 May 2000 the District Court ordered that the proceedings be stayed under section 137 § 1 (b) of the Code on Civil Procedure because the applicants failed to appear at the hearing scheduled for that date.
8. On 8 September 2000 the applicants requested that the proceedings be continued.
9. Meanwhile, on 23 April 1999 the applicants filed a petition for the review by the Supreme Court of the partial decision of 4 February 1999.
The Supreme Court appointed a legal-aid lawyer, who subsequently had to be replaced twice at the applicants' request.
On 30 November 2000 the Supreme Court eventually rejected the petition as inadmissible, without examining it on the merits, since the applicants had, despite warning, failed to contact the legal-aid lawyer and were therefore not properly represented before the Supreme Court.
10. In the pending proceedings before the District Court, the applicants were repeatedly requested to clarify their claims at the hearings of 2 and 9 May 2001.
11. At the applicants' request, on 10 July 2001 the District Court appointed a legal-aid lawyer.
12. In its order of 30 November 2001 the District Court discontinued the proceedings in respect of the pending claims. On appeal, on 1 March 2002 the Borsod-Abaúj-Zemplén County Regional Court quashed the first-instance order and remitted the file to the District Court.
13. In the resumed proceedings, the applicants requested the District Court to hold a hearing in their absence because they felt that their presence at the previous hearings had been useless.
14. At the hearing on 24 September 2003 the District Court dismissed the applicants' claims. In the absence of an appeal, this decision became final on 25 November 2003.
15. In 1999 the representative of the building, in which the applicants lived, brought an action against them claiming overdue charges.
On 9 June 1999 the Miskolc District Court partly accepted the plaintiff's claims. On 16 December 1999 the Regional Court dismissed the applicants' appeal. On 11 April 2001 the Supreme Court's review bench refused to grant leave to appeal.
In similar proceedings, on 10 December 2001 the Sátoraljaújhely District Court partly accepted some further claims for overdue charges. On 4 April 2002 the Regional Court dismissed the applicants' appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104911
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF R.R. v. POLAND
IMPORTANCE: 1
CONCLUSION: Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies;victim);Violation of Art. 3 (susbtantive aspect);Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 6. The applicant was born in 1973.
7. Early in December 2001 the applicant visited Dr S.B. in a hospital in T., in the region covered by the then Małopolska Regional Medical Insurance Fund (replaced later by the countrywide National Health Fund). Having performed an ultrasound scan, Dr S.B. estimated that the applicant was in the 6th or 7th week of pregnancy.
8. On 2 January 2002, in the 11th week of her pregnancy, the applicant – who was at that time 29 years old, was married and had two children – was registered as a pregnant patient in her local clinic.
9. On 23 January and 20 February 2002 ultrasound scans were performed, in the 14th and 18th weeks of the applicant’s pregnancy. On the latter date Dr S.B. estimated that it could not be ruled out that the foetus was affected with some malformation and informed the applicant thereof. The applicant told him that she wished to have an abortion if the suspicion proved true.
10. The Government submitted that in January and February 2002 the applicant had visited Dr S.B. at a private clinic. They argued that such an institution had no right to issue a referral to any public health institution.
11. The applicant disagreed. She first submitted that at the material time Dr S.B. worked both at a public hospital in T. – where she had visited him in December 2001 and in February 2002, after the second scan – and at a non-public clinic. She further submitted that the Polish health care system was composed of so-called public health units and non-public health units. The latter, most often being first contact and basic care institutions, had financing contracts with the public National Health Fund (and had had such contracts with its predecessors, the Regional Medical Insurance Funds, at the material time). Medical services available in non-public clinics were partly financed by public funds, constituted by premiums paid by all persons covered by the universal system of health insurance. Doctors working for non-public units had the same rights and duties to provide health care to patients as doctors employed by public units, including a right to refer a patient to a public unit.
12. Subsequently, the applicant went to a hospital in T. The results of a third ultrasound scan performed in that hospital confirmed the likelihood that the foetus was suffering from some malformation. A genetic examination by way of amniocentesis was recommended by Dr O., in order to confirm or dispel this suspicion.
13. On 28 February 2002 the applicant had another ultrasound scan in a private clinic in Łódź. She had no referral from Dr S.B. and had therefore to pay for the service herself. Under the applicable laws, her expenditure could not be reimbursed. The results of that scan confirmed the likelihood that the foetus was affected with an unidentified malformation. Genetic tests were recommended again.
14. She was subsequently received by Professor K.Sz. in Łódź, a specialist in clinical genetics. A genetic test was again recommended. Professor K.Sz. recommended that the applicant should obtain a formal referral from her family doctor, S.B., to have the test carried out in a public hospital in Łódź, which was outside her region covered by the then Universal Medical Insurance Fund.
Subsequently, Dr S.B. refused to issue a referral, because in his view the foetus’ condition did not qualify the applicant for an abortion under the provisions of the 1993 Act (see paragraph 66 below).
15. The Government submitted that no reference to the possibility of the foetus being affected with Edwards syndrome had ever been made.
16. The applicant disagreed. She submitted that during that visit she was told that the scan gave rise to a suspicion of either Edwards or Turner syndrome.
17. In the first week of March 2002 the applicant and her husband visited Dr S.B. during his night duty at the hospital in T. They demanded termination of the pregnancy. He refused and indicated that the results of the ultrasound scan could not be treated as a sole ground for diagnosis that the foetus was affected with severe malformation. He proposed having a panel of doctors from the same hospital review his decision. The applicant refused.
18. On 11 March 2002 the applicant was admitted to a public hospital in T., within her region covered by the National Health Insurance Fund, and requested advice. She was told that a decision on termination could not be taken at that hospital and was referred to a university hospital in Kraków, to a pathological pregnancies ward, in another region of the Fund, for further diagnosis (“w celu dalszej diagnostyki”).
19. During the applicant’s stay in the hospital in T. a hospital lawyer was asked to give an opinion with a view to ensuring that the laws on the availability of legal abortion were respected. The applicant was also told that termination of pregnancy would entail a serious risk to her life and that the two caesarean births which she had previously had constituted the most important risk factor in deciding whether she should have a genetic test at all.
20. On 14 March 2002, immediately after being discharged from the T. hospital, the applicant travelled 150 kilometres to Kraków. She went to see Dr K.R. at Kraków University Hospital. He criticised her for contemplating a termination. She was also informed that the hospital categorically refused to carry out abortions and that no abortions had ever been performed there for the last 150 years. She was also refused a genetic examination, Dr K.R. being in the opinion that it was not necessary in her case. She stayed in the hospital for three days and had another ultrasound scan performed, the results of which were inconclusive. Urine and blood tests were also performed. She was discharged on 16 March 2002. The applicant’s discharge record stated that the foetus was affected with developmental abnormalities (“wady rozwojowe płodu”). The same was stated in a medical certificate signed by Dr K.R. He recommended genetic testing in order to establish the character of the ailment.
21. On 21 March 2002 the applicant again contacted Professor K.Sz., who had examined her in February. Another ultrasound scan performed in a private clinic where Professor K.SZ. received patients confirmed the suspicion of malformation. The applicant obtained a referral from the professor to the Mother and Child Hospital in Łódź, but he informed her that he was in fact not competent to issue it. The professor told her that in order to have a genetic test carried out in Łódź, which was outside her region, she needed a referral issued by a doctor practising in her region and, in addition, an approval by a regional insurance fund, together with an undertaking that it would reimburse the costs of the test to the regional fund where the test was to be performed. The professor advised her to report to the Łódź hospital as an emergency patient, claiming that she was about to miscarry, as it was likely that she would then be admitted to that hospital.
22. Subsequently, on 22 March 2002, the applicant asked Dr K.R. for a referral.
The Government submitted that Dr K.R. could not have referred the applicant for a genetic test in Kraków because neither the University Hospital nor any other hospital in Kraków carried out such tests as a routine procedure. The applicant disagreed. She submitted that Dr K.R. had told her that she would not obtain the referral for testing because if the results were positive she would want to have an abortion.
23. Afterwards, on the same day, she again unsuccessfully asked Dr S.B. for a referral to the Łódź hospital.
24. The Government submitted that the applicant had obtained from him a referral to the same Kraków University Hospital where she had already been hospitalised between 11 and 14 March. The applicant disagreed and submitted that no referral had been issued to her.
The Court notes this discrepancy in the parties’ submissions and notes that no copy of that referral has been submitted to it.
25. On 24 March 2002 the applicant went to the Łódź Mother and Child Hospital.
26. The Government submitted that she had gone to the hospital with a referral issued by Professor K.Sz.
27. The applicant disagrees. She submits that she had gone to that hospital without a referral, as advised, and had been admitted as an emergency patient.
28. A genetic test (amniocentesis) was performed there on 26 March 2002, in the 23rd week of pregnancy, and the applicant was told that she had to wait two weeks for the results.
29. The Government submitted that the tests were carried out despite the fact that the applicant had not sought from the Małopolska section of the medical insurance fund any approval for financing them.
30. The applicant was discharged from the Łódź hospital on 28 March 2002. Before the results were available, on 29 March 2002 the applicant, increasingly desperate as by then she was very afraid that the foetus was suffering from severe genetic abnormalities, reported to the T. hospital, where she submitted a written request for an abortion. Dr G.S. told her that he could not take such a decision himself. He had to speak with the consultant.
31. By a letter of 29 March 2002 the applicant requested the hospital in T. to terminate the pregnancy, referring to the provisions of the 1993 Act. She requested that in case of a negative reply it should be made in writing “as soon as possible”.
32. On 3 April 2002 the applicant went to that hospital again and was told that the consultant could not see her because he was ill. The visit was rescheduled for 10 April 2002. On the same day she wrote a letter of complaint to the director of the T. hospital, submitting that she had not received adequate treatment and that she felt that the doctors were intentionally postponing all decisions in her case so that she would be unable to obtain an abortion within the time-limit provided for by law.
33. On 9 April 2002 she again requested doctors at the T. hospital to carry out an abortion. She referred to the results of the genetic tests which she had received on that date. The certificate, established by Professor K.Sz., confirmed that the karyotype indicated the presence of Turner syndrome. The certificate further read:
“A chromosomal aberration and an ultrasound image were established, indicating the presence of congenital defects which can have a serious impact on the child’s normal development. Further handling of the case under the provisions of the 1993 law on termination of pregnancy can be envisaged. A relevant decision should be taken with due regard to the parents’ opinion”.
The doctors in the T. hospital refused to carry out an abortion, Dr G.S. telling her that it was too late by then as the foetus was able at that stage to survive outside the mother’s body.
34. On 11 April 2002 the applicant again complained in writing to the Director of the T. hospital about the manner in which her case had been handled and about the procrastination on the part of Dr G.S.
35. In April 2002 the applicant and her husband submitted a number of complaints to various health care system institutions. In a reply from the Ministry of Health, dated 16 May 2002, it was stated that “it was impossible to establish on the basis of the available documents why the genetic tests were postponed until 28 February 2002 when the foetus had already become capable of surviving outside the mother’s body.”
36. On 29 April 2002 she received a reply from the T. hospital to her complaints of 29 March 2002 and 3 April 2002. The letter contained an account of the facts of the case and quoted provisions of the 1993 Act. No assessment of the lawfulness of the conduct of the medical staff involved was made.
37. On 11 July 2002 the applicant gave birth to a baby girl affected with Turner syndrome.
38. On 31 July 2002 the applicant requested the prosecuting authorities to institute criminal proceedings against the persons involved in handling her case. She alleged serious failure on the part of the doctors, acting as public agents, to safeguard her interests protected by law, on account of their failure to perform timely prenatal examinations. As a result, the applicant had been denied information on the foetus’ condition and, consequently, divested of the possibility to decide for herself whether or not she wished to terminate her pregnancy in the conditions provided for by law, and she had been forced to continue it.
39. On 16 December 2002 the Tarnów District Prosecutor discontinued the investigations, finding that no criminal offence had been committed. The prosecutor relied on an expert opinion prepared by the Białystok Medical University, according to which under the 1993 Act legal abortion was possible only when foetal malformation was severe. It was not possible to assess whether malformations of a foetus were severe enough to justify an abortion until the foetus was able to live on its own outside the mother’s body. It concluded that in the applicant’s case an abortion would have been possible until the 23rd week of pregnancy. The applicant appealed.
40. On 22 January 2003 the Regional Prosecutor allowed her appeal and ordered that the investigation be re-opened. Additional medical evidence was taken during the investigation. On 5 December 2003 the prosecutor again discontinued the investigation, finding that no criminal offence had been committed.
41. The applicant appealed, complaining, inter alia, that the prosecuting authorities had failed to address the critical issue of whether,, genetic tests should have been carried out in order to obtain a diagnosis of the foetus’ condition. Instead the investigation had focused on whether or not the applicant had a right to an abortion under the applicable law.
42. Ultimately, on 2 February 2004, the competent court upheld the decision of the prosecuting authorities. The court held that doctors employed in public hospitals did not have the quality of “public servantsthe criminal offence of breach of duty by a public servant.
43. On 11 May 2004 the applicant filed a civil lawsuit with the Kraków Regional Court against doctors S.B., G.S. and K.R. and against the Krakow and T. hospitals. She argued that the doctors dealing with her case had unreasonably procrastinated in their decision on her access to genetic tests and had thereby failed to provide her with reliable and timely information about the foetus’ condition. They had also failed to establish the foetus’ condition in time for her to make an informed decision as to whether or not to terminate the pregnancy. As a result of an unjustified delay in obtaining relevant information she had been divested of the possibility of exercising an autonomous choice as to her parenthood.
The applicant further argued that the laws in force authorised abortion in specific situations. However, that right had been denied her as a result of difficulties in obtaining timely access to genetic tests and the lengthy delay before she had ultimately obtained such access.
The applicant referred to section 4 (a) 1.2 of the 1993 Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act and to Articles 23 and 24 of the Civil Code guaranteeing socalled personal rights.
The applicant argued that the circumstances in which the determination of her access to genetic testing had been decided had breached her personal rights and dignity and had deeply humiliated her. No regard had been had to her views and feelings.
She also claimed compensation from Dr S.B. for hostile and disparaging statements about her character and conduct which he had made in a press interview about her case. He had disclosed to the public details about her and the foetus’ health covered by medical secret and told the journalist that the applicant and her husband were bad and irresponsible parents.
44. She claimed just satisfaction in a total amount of PLN 110,000 for breach of her rights as a patient and her personal rights. She also sought a declaration that the three medical establishments were responsible in respect of future costs to be borne by the applicant in connection with her daughter’s treatment.
45. On 28 October 2004 the Tarnów District Court found S.B. guilty of having disclosed to the public, in an interview he had given to the press, information covered by medical secrecy, including the fact that she had envisaged the termination of the pregnancy. It conditionally discontinued the proceedings against him and fixed a period of probation.
46. On 19 October 2005 the Kraków Regional Court awarded the applicant PLN 10,000 against S.B., finding that in a press interview published in November 2003 he had disclosed information relating to the applicant’s health and private life in connection with her pregnancy. He had also made disrespectful and hurtful comments about the applicant’s conduct and personality.
47. The court dismissed the remaining claims which she had lodged against doctors G.S. and K.R. and against the hospitals. The courts found that the applicant’s personal and patient’s rights had not been breached by either of these doctors or the hospitals. There had been no procrastination on the doctors’ part in the applicant’s case. Under the World Health Organisation standards termination was permissible only until the 23rd week of pregnancy, whereas the applicant had reported to the hospitals concerned when she was already in the 23rd week of pregnancy, and on 11 April 2002 she had been in the 24th week. Hence, neither her right to decide about her parenthood nor her rights as a patient had been breached in such a way as to place the defendants at fault.
48. On 12 December 2005 the applicant appealed. She submitted that the right to health-related information was protected both by Article 24 of the Civil Code, providing for legal protection of personal rights, and by section 19 of the Medical Institutions Act of 1992. In her case doctors S.B., K.R. and G.S. had been of the view that genetic tests were relevant to establishing the foetus’ condition, but had not given her the necessary referral. K.R. had not been able to cite any legal basis for his refusal. G.S. had stated before the court that he had not issued a referral because the applicant had not asked for one. However, it was for a doctor with the required professional knowledge to decide what tests were called for in a given medical situation. The testimony given by the defendants had clearly shown that their conduct in the case had failed to comply with the applicable legal provisions. The doctors had tried to shift the responsibility for the way in which her case had been handled to the applicant, despite the obvious fact that the fundamental responsibility for the proper handling of a medical case lay with them as health professionals. The doctors had also been well aware, as shown by the evidence which they had given, that the applicant had been desperate, in reaction to information that the foetus might be affected with a genetic disorder.
49. The applicant submitted that the doctors’ conduct had breached the law, in particular section 2 (a) of the 1993 Act in so far as it imposed on the authorities an obligation to ensure unimpeded access to prenatal information and testing, in particular in cases of increased risk or suspicion of a genetic disorder or development problem, or of an incurable lifethreatening ailment. The applicant had therefore had such a right, clearly provided for by the applicable law, but the defendants had made it impossible for her to enjoy that right.
50. On 28 July 2006 the Kraków Court of Appeal dismissed the applicant’s appeal and upheld the first-instance judgment, endorsing the conclusions of the lower court.
51. On 11 July 2008 the Supreme Court allowed her cassation appeal, quashed the judgment of the appellate court in its entirety on grounds of substance and ordered that the case be re-examined.
The Supreme Court observed that the applicant’s claim was two-pronged: it was based firstly on the failure to refer her for genetic testing and, secondly, on the breach of her right to take an informed decision which resulted from this failure.
52. As to the first part of her claim, the Supreme Court observed that it was not open to doubt (and had been confirmed by an expert opinion prepared for the purposes of the criminal investigation) that only genetic testing could confirm or dispel suspicions that the foetus was affected with Turner syndrome. The doctors concerned had known of the procedure. They were obliged, under the Medical Institutions Act 1992 (ustawa o zakładach opieki zdrowotnej), insofar as it guaranteed patients’ rights, to refer the applicant for genetic testing of their own motion, without her asking for it. Under the same Act, the applicant had a legally protected right to obtain adequate information about the foetus’ health. Had the doctors had conscientious objections to issuing a referral, they should have informed the applicant thereof and referred her to another practitioner who would have referred her for the testing, in accordance with the applicable laws on the medical profession governing the relevant procedure, but they had failed to do so.
53. The procedures governing the carrying out of genetic tests and their financing by various parts of the then Medical Insurance Fund, applicable at the material time, could not be validly relied on as exempting doctors from issuing a referral, in particular as those procedures were not of a statutory character and could not be plausibly relied on to justify restricting the applicant’s rights as a patient. The obligation to refer the applicant had not, contrary to the courts’ position, ended on the date when legal abortion of a foetus affected with suspected malformation was no longer possible (that is, after the 22nd week), since there were no legal – or medical – grounds on which to automatically link genetic testing with access to legal abortion. Furthermore, at the material time there had been no temporal limitation in law on the carrying out of these tests during pregnancy. It was only in 2004 that an ordinance had been enacted under which genetic testing became available only until the 22nd week of pregnancy.
54. The Supreme Court considered that there were therefore good reasons to accept that the doctors dealing with the applicant’s case had breached her personal rights within the meaning of Article 24 of the Civil Code and her patient’s rights guaranteed by the Medical Institutions Act. They had been aware that only genetic testing was capable of determining the foetus’ genetic situation, but had still refused a referral; instead they had sent her for various tests carried out in a hospital setting which were not relevant to such a diagnosis.
Moreover, the lower courts had erred in their finding that the applicant had not suffered non-pecuniary damage as a result of the doctors’ acts. Such damage had been caused by the distress, anxiety and humiliation she had suffered as a result of the manner in which her case had been handled.
55. As to the second part of the applicant’s claim, the Supreme Court observed that it transpired from the case-law of the Supreme Court (IV CK 161/05, judgment of 13 October 2005; see paragraph 80 below) that a right to be informed about the foetus’ health and to take informed decisions, in the light of that information, as to whether to continue the pregnancy or not was a personal right within the meaning of the Civil Code. If a child affected with a genetic problem was born as a result of failure to carry out genetic testing, a claim for just satisfaction (zadośćuczynienie) arose on the parent’s part. The lower courts had erred in that they had found that there was no adequate causal link between the doctors’ conduct in the applicant’s case and the fact that she had not had access to legal abortion. In this respect the court noted that there had been enough time between the 18th week of the pregnancy, when the suspicions had arisen, and the 22nd, when the time-limit for legal abortion had expired, to carry out genetic testing. When the tests had finally been carried out, the applicant had received the results two weeks later. The tests should therefore have been carried out immediately after the suspicions had arisen, but instead, as a result of procrastination on the part of doctors S.B., G.S. and K.R., they had ultimately been conducted much later.
56. The court finally held that the amount of PLN 10,000 to be paid by doctor S.B. for denigrating statements he had made in a
57. Hence, the judgment had to be quashed and the case remitted for reexamination in its entirety.
58. On 30 October 2008 the Kraków Court of Appeal gave a judgment. It stated, referring to the findings of the Supreme Court, that Dr S.B. had failed to refer the applicant for genetic testing as soon as the suspicions as to the foetus’ condition had arisen. He had referred her twice to the Kraków hospital, despite the fact that she had already been at that hospital and that no genetic tests had been carried out at that time. The court held that the applicant’s claim of PLN 20,000 should therefore be allowed.
59. It further amended the judgment of the first-instance court by increasing to PLN 30,000 the just satisfaction to be paid to the applicant by S.B. for breach of her personal rights in making denigrating public statements about her in the press.
60. In so far as the action was directed against the T. hospital, the court held that the applicant had not received a proper diagnosis. Dr G.S., working at the T. hospital, had not referred her for genetic testing, but only to Kraków hospital, even though he had been aware that genetic testing was not carried out there. When the applicant had eventually received the results of the tests and, relying on them, had asked G.S. on 29 March 2002 to perform an abortion, a written negative reply had been served on her a month later, namely on 29 April 2002.
61. In respect of Kraków University Hospital, the court noted that when the applicant had been admitted there on 14 March 2002, she had already had the results of the scan made by Professor K.Sz. in Łódź, which strongly indicated that the foetus was affected with Turner syndrome. In such circumstances, the hospital was under an obligation to carry out tests in order to either confirm or dispel these suspicions, but had failed to do so. Other tests had been carried out instead, concerning a possible inflammatory condition of the foetus, which were irrelevant for the diagnosis of Turner syndrome. The hospital had exposed the applicant to unnecessary stress, while the correct diagnosis had not been made. The defendants had been aware that time was of the essence in the availability of legal abortion, but had failed to accelerate their decision-taking. The hospitals were liable for the negligent acts of their employees in so far as it was their duty to provide the applicant with full information about any genetic disorder of the foetus and how it might affect its development and to do so in time for her to prepare herself for the prospect of giving birth to a child with a genetic disorder. Moreover, the doctors had failed to make any record of their refusals and the grounds for them, an obligation imposed on them by section 39 of the Medical Profession Act.
62. As Kraków University Hospital had a higher referral level, its liability was more serious as a high level of professional skill could have been reasonably expected of it. The applicant had legitimately expected that she would obtain diagnostic and therapeutic treatment of the requisite quality, whereas her case had in fact been handled with unjustifiable delays.
63. Having regard to the defendants’ failure to respect the applicant’s rights, the court awarded the applicant PLN 5,000 against T. Hospital of St. Lazarus and PLN 10,000 against Kraków University Hospital, and dismissed the remainder of her appeal.
64. Article 38 of the Constitution reads as follows:
“The Republic of Poland shall ensure the legal protection of the life of every human being.”
65. Article 47 of the Constitution reads:
“Everyone shall have the right to legal protection of his private and family life, of his honour and good reputation and to make decisions about his personal life.”
66. The Family Planning (Protection of the Human Foetus and Conditions Permitting Pregnancy Termination) Act, which is still in force, was passed by Parliament in 1993. Section 1 provided at that time that “every human being shall have an inherent right to life from the moment of conception”.
Section 2 (a) of the 1993 Act reads:
“The State and local administration shall ensure unimpeded access to prenatal information and testing, in particular in cases of increased risk or suspicion of a genetic disorder or development problem or of an incurable life-threatening ailment.”
67. Section 4(a) of the 1993 Act reads, in its relevant part:
“1. An abortion can be carried out only by a physician where
1) pregnancy endangers the mother’s life or health;
2) prenatal tests or other medical findings indicate a high risk that the foetus will be severely and irreversibly damaged or suffering from an incurable lifethreatening ailment;
3) there are strong grounds for believing that the pregnancy is a result of a criminal act.
2. In the cases listed above under 2), an abortion can be performed until such time as the foetus is capable of surviving outside the mother’s body; in cases listed under 3) above, until the end of the twelfth week of pregnancy.
3. In the cases listed under 1) and 2) above the abortion shall be carried out by a physician working in a hospital. ...
5. Circumstances in which abortion is permitted under paragraph 1, sub-paragraphs 1) and 2) above shall be certified by a physician other than the one who is to perform the abortion, unless the pregnancy entails a direct threat to the woman’s life.”
68. An ordinance issued by the Minister of Health on 22 January 1997, on qualifications of doctors authorised to perform abortions, contains two substantive sections. In its section 1, the requisite qualifications of doctors authorised to perform legal abortions in the conditions specified in the 1993 Act are stipulated. Section 2 of the Ordinance reads:
“The circumstances indicating that pregnancy constitutes a threat to the woman’s life or health shall be attested by a consultant specialising in the field of medicine relevant to the woman’s condition.”
69. On 21 December 2004 the Minister of Health enacted an Ordinance on Certain Medical Services (rozporządzenie Ministra Zdrowia w sprawie zakresu świadczeń opieki zdrowotnej). An Appendix No. 3 to this Ordinance, entitled Scope of Medical Prenatal Services (...) (Zakres lekarskich badań prenatalnych (...)) read, in so far as relevant:
“1. Prenatal tests are to be understood as examinations and diagnostic procedures carried out in respect of pregnant women during the first and second trimesters of pregnancy where there is an increased risk of genetic ailment or malformation, but not later than in the 22nd week of pregnancy.
2. Prenatal tests comprise: 1) non-invasive examinations [including ultrasound scans and biochemical tests [marking of serum levels in a pregnant woman’s blood]; 2) invasive tests [including biopsy of the trophoblast and amniocentesis].
3. Prenatal tests are recommended, in particular, where ... 5) results of the ultrasound scan carried out during the pregnancy indicate an increased risk of the foetus being affected with a chromosomal aberration or other malformation.”
70. Termination of pregnancy in breach of the conditions specified in the 1993 Act is a criminal offence punishable under Article 152 § 1 of the Criminal Code. Anyone who terminates a pregnancy in violation of the Act or assists such a termination may be sentenced to up to three years’ imprisonment. The pregnant woman herself does not incur criminal liability for an abortion performed in contravention of the 1993 Act.
71. Under Article 157 (a) 1, causing physical damage to an unborn child is a criminal offence punishable by a fine, by limitation of liberty, or by imprisonment of up to two years.
72. At the relevant time, patients rights were provided for by the Medical Institutions Act 1992 (ustawa o zakładach opieki zdrowotnej). Its section 19 (2) provided that a patient had a right to obtain information about his or her condition.
73. Under section 39 of the Medical Profession Act (ustawa o zawodzie lekarza), a doctor may refuse to carry out a medical service, invoking her or his objections on the ground of conscience. He or she is obliged to inform the patient where the medical service concerned can be obtained and to register the refusal in the patient’s medical records. Doctors employed in health care institutions are also obliged to inform their supervisors of the refusal in writing.
74. Section 31.1 of the Medical Profession Act 1996 provides that physicians are under an obligation to provide to the patient, or his or her representative, comprehensible information about his or her health, diagnosis, proposed and possible diagnostic and therapeutic methods, foreseeable consequences of a decision to have recourse to them or not, and about possible results of therapy and prognosis.
75. Section 37 of the 1996 Medical Profession Act provides that in the event of any diagnostic or therapeutic doubts, a doctor may, on his or her own initiative or at a patient’s request and if he or she finds it reasonable in the light of the requirements of medical science, obtain an opinion of a relevant specialist or arrange a consultation with other doctors.
76. Articles 415 et seq. of the Polish Civil Code provide for liability in tort. Under this provision, whoever by his or her fault causes damage to another person, is obliged to redress it.
77. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator shall be liable to cover all pecuniary damage resulting therefrom.
78. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation for nonpecuniary damage (krzywda) suffered by anyone whose personal rights have been infringed. Alternatively, the person concerned, without prejudice to the right to seek any other relief that may be necessary to remove the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific social interest. ...”
79. In a judgment of 21 November 2003 (V CK 167/03) the Supreme Court held that unlawful refusal to terminate a pregnancy where it had been caused by rape, that is to say in circumstances provided for by section 4 (a) 1.3 of the 1993 Act, could give rise to a compensation claim for pecuniary damage sustained as a result of such refusal.
80. In a judgment of 13 October 2005 (IV CJ 161/05) the Supreme Court expressed the view that a refusal of prenatal tests in circumstances where it could be reasonably surmised that a pregnant woman ran a risk of giving birth to a severely and irreversibly damaged child, that is to say in circumstances set out by section 4 (a) 1.2 of that Act, gave rise to a compensation claim.
81. On 21 June 1990 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (90) 13 on prenatal genetic screening, prenatal genetic diagnosis and associated genetic counselling. The recommendation contains, inter alia, the following principles:
“The Committee of Ministers [...] noting that in recent decades considerable progress has been achieved in detecting genetic abnormalities in the child to be born, through genetic screening and through prenatal diagnosis of pregnant women, but also noting the fears that these procedures arouse;
Considering that women of childbearing age and couples should be fully informed and educated about the availability of, the reasons for and risks of such procedures;
Convinced that the genetic diagnosis and screening must always be accompanied by appropriate genetic counselling but that such counselling should in no cases be of a directive nature and must always leave the woman of childbearing age fully informed to take a free decision; ...
Recommends that the governments of the member States adopt legislation in conformity with the Principles contained in this Recommendation or take any other measures to ensure their implementation.
"Prenatal diagnosis" is the term used to describe tests used to confirm or exclude whether an individual embryo or foetus is affected by a specific disorder.
Principle 1 : No prenatal genetic screening and/or prenatal genetic diagnosis tests should be carried out if counselling prior to and after the tests is not available.
Principle 2 : Prenatal genetic screening and/or prenatal genetic diagnosis tests undertaken for the purpose of identifying a risk to the health of an unborn child should be aimed only at detecting a serious risk to the health of the child. ...
Principle 4 : The counselling must be non-directive; the counsellor should under no condition try to impose his or her convictions on the persons being counselled but inform and advise them on pertinent facts and choices. ...
Principle 9 : In order to protect the woman’s freedom of choice, she should not be compelled by the requirements of national law or administrative practice to accept or refuse screening or diagnosis. In particular, any entitlement to medical insurance or social allowance should not be dependent on the undergoing of these tests.
Principle 10 : No discriminatory conditions should be applied to women who seek prenatal screening or diagnostic testing or to those who do not seek such tests, where these are appropriate.”
82. In 2008 the Parliamentary Assembly of the Council of Europe adopted Resolution 1607 (2008) “Access to safe and legal abortion in Europe”. This resolution, in so far as relevant, reads:
“1. The Parliamentary Assembly reaffirms that abortion can in no circumstances be regarded as a family planning method. Abortion must, as far as possible, be avoided. All possible means compatible with women’s rights must be used to reduce the number of both unwanted pregnancies and abortions.
2. In most of the Council of Europe member states the law permits abortion in order to save the expectant mother’s life. Abortion is permitted in the majority of European countries for a number of reasons, mainly to preserve the mother’s physical and mental health, but also in cases of rape or incest, of foetal impairment or for economic and social reasons and, in some countries, on request. The Assembly is nonetheless concerned that, in many of these states, numerous conditions are imposed and restrict the effective access to safe, affordable, acceptable and appropriate abortion services. These restrictions have discriminatory effects, since women who are well informed and possess adequate financial means can often obtain legal and safe abortions more easily.
3. The Assembly also notes that, in member states where abortion is permitted for a number of reasons, conditions are not always such as to guarantee women effective access to this right: the lack of local health care facilities, the lack of doctors willing to carry out abortions, the repeated medical consultations required, the time allowed for changing one’s mind and the waiting time for the abortion all have the potential to make access to safe, affordable, acceptable and appropriate abortion services more difficult, or even impossible in practice.
4. The Assembly takes the view that abortion should not be banned within reasonable gestational limits. A ban on abortions does not result in fewer abortions but mainly leads to clandestine abortions, which are more traumatic and increase maternal mortality and/or lead to abortion “tourism” which is costly, and delays the timing of an abortion and results in social inequities. The lawfulness of abortion does not have an effect on a woman’s need for an abortion, but only on her access to a safe abortion.
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6. The Assembly affirms the right of all human beings, in particular women, to respect for their physical integrity and to freedom to control their own bodies. In this context, the ultimate decision on whether or not to have an abortion should be a matter for the woman concerned, who should have the means of exercising this right in an effective way.
7. The Assembly invites the member states of the Council of Europe to:
7.1. decriminalise abortion within reasonable gestational limits, if they have not already done so;
7.2. guarantee women’s effective exercise of their right of access to a safe and legal abortion;
7.3. allow women freedom of choice and offer the conditions for a free and enlightened choice without specifically promoting abortion;
7.4. lift restrictions which hinder, de jure or de facto, access to safe abortion, and, in particular, take the necessary steps to create the appropriate conditions for health, medical and psychological care and offer suitable financial cover ...”
83. The provisions of the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Convention on Human Rights and Biomedicine), adopted in Oviedo, Spain, on 4 April 1997, in so far as relevant, read:
“Article 5 – General rule
An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. ...
Article 10 – Private life and right to information
Everyone has the right to respect for private life in relation to information about his or her health.
Everyone is entitled to know any information collected about his or her health. However, the wishes of individuals not to be so informed shall be observed.”
84. The Polish Government, in their fifth periodic report submitted to the Committee (CCPR/C/POL/2004/5), stated:
“106. In Poland data about abortions relate solely to abortions conducted in hospitals, i.e. those legally admissible under a law. The number of abortions contained in the present official statistics is low in comparison with previous years. Nongovernmental organisations on the basis of their own research estimate that the number of abortions conducted illegally in Poland amounts to 80,000 to 200,000 annually.
107. It follows from the Government’s annual Reports of the execution of the [1993] Law [which the Government is obliged to submit to the Parliament] and from reports of non-governmental organisations, that the Law’s provisions are not fully implemented and that some women, in spite of meeting the criteria for an abortion, are not subject to it. There are refusals to conduct an abortion by physicians employed in public health care system units who invoke the so-called conscience clause, while at the same time women who are eligible for a legal abortion are not informed about where they should go. It happens that women are required to provide additional certificates, which lengthens the procedure until the time when an abortion becomes hazardous for the health and life of the woman. There [are] no official statistical data concerning complaints related to physicians’ refusals to perform an abortion. ... In the opinion of the Government, there is a need to [implement] already existing regulations with respect to the ... performance of abortions.”
85. The United Nations Human Rights Committee considered the fifth periodic report of Poland (CCPR/C/POL/2004/5) at its 2240th and 2241st meetings (CCPR/C/SR.2240 and 2241), held on 27 and 28 October 2004 and adopted the concluding observations which, in so far as relevant, read:
“8. The Committee reiterates its deep concern about restrictive abortion laws in Poland, which may incite women to seek unsafe, illegal abortions, with attendant risks to their life and health. It is also concerned at the unavailability of abortion in practice even when the law permits it, for example in cases of pregnancy resulting from rape, and by the lack of information on the use of the conscientious objection clause by medical practitioners who refuse to carry out legal abortions. The Committee further regrets the lack of information on the extent of illegal abortions and their consequences for the women concerned (art. 6).
The State party should liberalize its legislation and practice on abortion. It should provide further information on the use of the conscientious objection clause by doctors, and, so far as possible, on the number of illegal abortions that take place in Poland. These recommendations should be taken into account when the draft Law on Parental Awareness is discussed in Parliament.”
86. The Committee on the Elimination of Discrimination against Women (CEDAW), at its 37th session, held from 15 January to 2 February 2007, considered the combined fourth and fifth periodic report (CEDAW/C/POL/4-5) and the sixth periodic report of Poland (CEDAW/C/POL/6). It formulated the following concluding comments:
“24. ... The Committee is concerned about the lack of official data and research on the prevalence of illegal abortion in Poland and its impact on women’s health and life.
... 25. The Committee urges the State party to take concrete measures to enhance women’s access to health care, in particular to sexual and reproductive health services, in accordance with article 12 of the Convention and the Committee’s general recommendation 24 on women and health. It calls on the State party to conduct research on the scope, causes and consequences of illegal abortion and its impact on women’s health and life. It also urges the State party to ensure that women seeking legal abortion have access to it, and that their access is not limited by the use of the conscientious objection clause.”
87. The objective of the International Federation of Gynaecology and Obstetrics (FIGO) is to promote sexual and reproductive health and rights through educational research and advocacy activities. In 1991 its Ethics Committee issued a statement on Ethical Issues Concerning Prenatal Diagnosis of Disease in the Conceptus. It states that:
“Prenatal diagnosis has become an established service in the care of pregnant women. Further advances, especially at the molecular level, will expand the accuracy and diagnostic scope of manifest disease in later life. Such information may lead to termination of pregnancy, genetic engineering or to adjustments in future lifestyle. There is also the potential danger of stigmatization or discrimination against the parent or the child identified as affected by some disorder or potential disorder. ...
A potential benefit of prenatal diagnosis is the rejection of the diseased conceptus when requested by the woman and permitted by the law. The legal position and the likely attitude of the woman to termination of pregnancy should be ascertained in advance.
Prior to undertaking diagnostic procedures, women should be counseled about the risks and benefits of the technique to be used. Such counseling should be factual, respectful of the woman’s view, and non-coercive. Consent should be obtained for the use of the procedure.
Women should not be denied the availability of prenatal diagnosis because they will not agree in advance to pregnancy termination as an option. Nor should the techniques be withheld on social or financial grounds.
Knowledge of prenatally diagnosed disease should not be used as justification for withholding normal medical support or services during pregnancy, at birth, or thereafter, which are desired by the parents.
Equity requires that these important diagnostic services are made as widely available as possible. ...”
88. The FIGO Ethics Committee’s 1991 statement on Ethical Aspects of Termination of Pregnancy Following Prenatal diagnosis states, inter alia, that:
“3. Knowledge acquired by prenatal diagnosis allows for the possibility of termination of pregnancy in those countries where this is legal. This raises serious ethical questions with regard to the degree of abnormality and the reduction in quality of life which may justify this course of action. The attitude of the parents, particularly the woman, after counseling, is of major importance in reaching a decision. It is unethical for anyone to bring pressure to bear on the couple with a view to their accepting a particular option.
4. Doctors should be aware of the desire of parents for a “perfect baby”. However, this wish is unrealistic and parents should be counselled accordingly.
5. Termination should be discouraged when the disorder is treatable and will not necessarily affect the future quality of life.
6. In enabling parents to reach an appropriate decision the primary concern should be the quality of life and the longevity of the individual. A second consideration must be the effect that the birth and life of such a child might have on the woman herself and on her family. In this regard consideration must also be given to the effect of the termination of the pregnancy on the physical and/or psychological health of the woman and her family. A third concern is the availability of resources and support for long-term care.”
89. The Committee’s 1994 statement on the Ethical Framework for Gynecologic and Obstetric Care requires that:
“3. when decisions regarding medical care are required, women be provided with full information on available medical alternatives including risks and benefits. Informing women and obtaining their input and consent, or dissent, should be a continuing process.
4. If a physician is either unable or unwilling to provide a desired medical service for non-medical reasons, he or she should make every effort to achieve appropriate referral.”
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