ITEMID: 001-112140
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BESEN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 1. The applicant, Ms Ayşe Çiğdem Besen, is a Turkish national who was born in 1960 and lives in İstanbul. She was represented before the Court by Mr İ. D. Gökkılıç, a lawyer practising in İstanbul.
3. On 17 June 2003 the applicant’s mother had an endoscopy done in the American Hospital (a private hospital in Istanbul). It was discovered that she had a cancerous tumour in her stomach. She was referred to a doctor in the same hospital in order to have the cancerous tumour removed from her stomach.
4. On 29 July 2003 the applicant signed the first consent form (of four), which reads as follows:
“I, the undersigned, hereby give consent to the surgical treatment to be administered for stomach cancer.
I am aware that the below mentioned procedure is being planned and I am giving my free consent and authorisation for a “total gastrectomy”.
I have been given by my doctor understandable information on my health condition, the surgery to be carried out, the risks and benefits connected therewith, the possible complications, the alternatives and the risks of not undergoing treatment.
I know that the result cannot be guaranteed.
In the event that an additional or other operation is needed other than those already planned, I am giving consent to those operations as well...”
5. On 30 July 2003 she was operated on (“gastrectomy”, “esophagojejunostomy” and “jejunostomy” were applied).
6. On the third day after the surgery, an “anastomotic leakage” was detected. On 16 August 2003 another surgery was performed by another doctor from outside the hospital for fistulas. The “omega esophagojejunostomy” was converted into a “Roux-en Y” type reconstruction. Following this surgery a gastrointestinal haemorrhage occurred.
7. On 18 August 2003 another operation (“laparotomy”) was carried out to stop the bleeding, drain the blood and fix the leakage.
8. On 24 August 2003 when a leakage of intestinal contents started in the patient’s abdominal wound, another surgery was done (“laparotomy” and “drainage”).
9. On 11 September 2003 a “percutaneous tracheostomy” was performed.
10. On 4 October 2003 the last operation was carried out for duodenal fistula and complications associated with laparotomy.
11. On 11 October 2003 the patient developed “pneumothorax”.
12. On 11 or 12 October 2003 the applicant’s mother died of cardiac arrest resulting from multiple organ dysfunction. All attempts at resuscitation failed.
13. On 8 April 2004 the applicant and her daughter instituted compensation proceedings against the Vehbi Koç Foundation American Hospital and nine doctors for having caused their mother and grand mother’s death by negligence. On the same day, they also lodged a complaint with the public prosecutor of Şişli.
14. The public prosecutor started an investigation into the death of the applicant’s mother. As far as understood from the case file, the applicant, the doctor who had performed the first surgery, some other medical staff involved in the treatment of the applicant’s mother, including the doctor who had carried out the operation on 16 August 2003, gave statements. An expert opinion dated 27 September 2006 was obtained from the Forensic Medicine Institute (3rd committee). Relying on the applicant’s mother’s medical history and witness evidence, it was concluded in the expert opinion that the treatment administered following the diagnosis of stomach cancer had been adequate and that the anastomotic leakage, which led to the death of the applicant’s mother, had been a typical complication in this kind of surgery.
15. On 27 October 2006 the public prosecutor gave a decision of non-prosecution based on the expert opinion, witness statements and the deceased’s medical records. The objection filed against this decision was also dismissed on 6 December 2006.
16. Subsequently, the Şişli Civil Court of General Jurisdiction appointed three professors from the Ankara University School of Medicine for another expert opinion. In this expert report, the experts observed the following:
“It was the leakage after the first surgery that started the chain of events that led to the applicant’s mother’s death; the method to be used to close a surgical wound, namely stitching or stapling, is to be chosen by the surgeon depending on the circumstances. In view of the deceased’s age, manual suturing could be considered as convenient. By the same token, in a total gastrectomy, it is for the surgeon to decide on the method to be applied in gastric reconstruction, either “Omega” or “Roux-en Y” type. That the leakage was noticed on the third day after the first operation showed that the follow-up of the patient had been duly carried out. An anastomotic leak is the major post-operative complication of a total gastrectomy, the incidence of which has been reported to be between 5 and 7.5 %. In the deceased’s case, the anastomotic leakage began at an early stage in the post-operative period. Although this suggests technical incompetence, there is no evidence to that effect; the treatment to be administered for an anastomotic leakage is still debated. Treatment options range from conservative management to aggressive surgery. The course of treatment followed in the deceased’s case seems to be appropriate and in line with the medical practice. Unfortunately, after all these complications, the development of multiple organ dysfunction could have been expected. There is no finding which might substantiate that the hospital and/or doctors involved in the treatment were at fault.”
17. On 25 November 2007 the applicant challenged the findings of the three professors and demanded that a new expert report should be obtained.
18. Relying on the expert reports drawn up by the Forensic Medicine Institute and the three professors appointed from the Ankara University, the witness evidence, the medical records of the deceased and the investigation file of the Public Prosecutor, the first-instance court rejected the applicant’s action on 25 December 2007 on the grounds that they had been duly informed of the procedure followed and that there was no fault attributable to the hospital or doctors.
19. On 16 September 2008 the Court of Cassation upheld the judgment of the first instance court after having held a hearing. The applicant requested rectification. The Court of Cassation dismissed the request on 17 February 2009. The final decision was served on 10 March 2009.


ITEMID: 001-96025
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BUSHATI AND OTHERS v. ALBANIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Markelian Koca;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 7. The applicants were born in 1918, 1939 and 1944, respectively, and live in Shkoder.
8. Following the conclusion of a purchase contract on 10 July 1940, the applicants' relative became the owner of a plot of land measuring 5,000 sq. m and situated on the Durrës coast. The applicants' relative's title to the property was subsequently entered in the Durrës Land Register.
9. In 1946 the State nationalised – without compensation – all the land situated on the Albanian coast, including the applicants' relative's plot of land.
10. On 3 February 1994 the Durrës Commission on Restitution and Compensation of Property (Komisioni i Kthimit dhe Kompensimit të Pronave – hereafter “the Commission”), restored the applicants' property rights over their relative's property pursuant to the Property (Restitution and Compensation) Act of 1993 (see “Relevant domestic law”, paragraph 53 below). On 22 February 1994 the applicants' title to the property was entered in the Durrës Land Register.
11. Between 1994 and 1995 attempts by the applicants to recover possession of the property proved unsuccessful because buildings had been illegally erected on their land by unlawful occupiers.
12. On an unspecified date in 1995, being unable to recover possession of their property, the applicants initiated proceedings before the Durrës District Court (“the District Court”), seeking an order for three occupiers (M., R. and D.) to cease occupation of their property and for the illegal buildings to be demolished.
13. On 11 April 1995 the District Court confirmed the applicants' property rights over the plot of land allocated to them by the Commission and ordered the occupiers to vacate the applicants' property. That decision became final on 23 May 1995.
14. On 1 August 1995 one of the occupiers, M., submitted a request to the President of the then Court of Cassation for supervisory review of the District Court's decision of 11 April 1995 on the ground that he had not been notified of the proceedings. On 23 September 1995 the President of the Court of Cassation endorsed his request by putting it before the Civil Bench.
15. On 2 February 1996 the Court of Cassation quashed the District Court's decision of 11 April 1995 on the ground that none of the three occupiers had been duly informed of the proceedings before the District Court, and remitted the case to the same court for fresh examination.
16. The applicants were neither informed of the proceedings nor invited to attend the hearings before the Court of Cassation.
17. On 21 June 1996 the District Court decided to dismiss the case as none of the parties had attended the hearing and none had given legitimate reasons for their failure to attend.
18. It appears that the proceedings were reopened on an unspecified date. They were also directed against another unlawful occupier, B. On 20 January 1997 the District Court confirmed the applicants' title to their relative's plot of land and ordered the four occupiers (M., R., D. and B.) to cease occupation.
19. In February 1997 the applicants sold a plot measuring 500 sq. m to another party. That transaction was entered in the land register.
20. On an unspecified date the occupiers of the applicants' property appealed against the District Court's decision of 20 January 1997, challenging the lawfulness of the applicants' title to the plot of land. On 1 April 1998 the Durrës Court of Appeal (“the Court of Appeal”) dismissed their appeal and upheld the District Court's decision.
21. On 10 November 1998 the Court of Cassation quashed the Court of Appeal's decision on the ground that the latter had not examined the lawfulness of the applicants' relative's title to the property. It remitted the case to the Court of Appeal for fresh examination.
22. On 24 November 1999 the Court of Appeal found that on 30 August 1994 the Commission had allocated to R. (who had subsequently donated his property to G.) a plot of land that overlapped with 720 sq. m of the plot of land allocated to the applicants by the same Commission on 3 February 1994. Moreover, the court declared null and void the Commission's decision of 3 February 1994 in respect of the plot measuring 720 sq. m, finding that the applicants' relative's purchase contract of 10 July 1940 was null and void. It therefore revoked the applicants' title to the entire plot of land measuring 5,000 sq. m.
23. On 2 April 2001, following appeals by the applicants and by three of the four occupiers (M., B. and D.), the Supreme Court, which had replaced the Court of Cassation after the Albanian Constitution's entry into force on 28 November 1998, quashed the Court of Appeal's decision in part. The court dismissed the occupiers' appeals on the ground that, as they occupied the land without title, they lacked standing to challenge the applicants' title to the property. The Supreme Court therefore ordered them to cease their occupation of the land. Moreover, the court upheld G.'s title to the plot measuring 720 sq. m that overlapped with the land allocated to the applicants and confirmed the applicants' property rights over the remaining 4,280 sq. m.
24. On 11 March 2003 the applicants lodged an appeal with the Constitutional Court under Article 131 (f) of the Constitution, arguing that the Supreme Court's judgment of 2 April 2001, which resulted in only partial recognition of their property, was unconstitutional. They complained that as the Supreme Court had wrongly assessed the evidence, its impartiality was open to doubt.
25. The Constitutional Court found that the applicants' constitutional complaint concerned the assessment of evidence, which fell within the jurisdiction of the lower courts and was outside its jurisdiction. It therefore declared the appeal inadmissible by a decision of 10 July 2003, which was served on the applicants on 14 July 2003.
26. On 28 June 2001 the District Court ordered the bailiffs to enforce the Supreme Court's judgment of 2 April 2001.
27. On 31 July 2001 the bailiff sent three separate letters to M., D. and B. to comply with the judgment within 10 days from the notification thereof. The bailiff drew the occupiers' attention to the mandatory enforcement of the judgment, should they fail to comply with the judgment voluntarily.
28. On 25 September 2001 the third applicant requested a stay in the execution of the judgment until 15 October for reasons which he did not disclose. The record states that the applicant would appear at the bailiff's office to request the continuation of the enforcement proceedings.
29. On 26 October 2001 the applicant and occupiers M. and D. appeared before the bailiff. The record states that “the parties agreed to postpone the execution of the judgment until 15 November 2001”.
30. On 16 January 2002 the third applicant requested the bailiff to waive the applicants' right of enforcement of the judgment against B. as both parties would resolve the issue by agreement. It appears that on an unspecified date in 2002 the applicants sold a plot measuring 164 sq. m to B.
On the same day the third applicant requested enforcement of the judgment against M. and D. by demolishing their constructions. The bailiff agreed to request the assistance of the police for this purpose.
31. On 22 January 2002 M. and D. were informed that the bailiff would proceed with the mandatory execution of the judgment on 4 February, in the presence of police officers.
32. On 4 February 2002 the bailiff decided to postpone the execution to an unspecified date owing to the applicants' absence. It results from the record that the bailiff did not go to the site to undertake any measures with a view to demolishing M.'s and D.'s constructions.
33. On 9 September 2002 the third applicant requested the bailiff to proceed with the enforcement of the judgment, given the failure of M. and D. to comply with an agreement on the amount of compensation in respect of the plots they had occupied.
34. On 10 September 2002 the bailiff sent two separate letters to M. and D. asking them to comply within 10 days with the agreement entered into with the applicants. The bailiff drew the occupiers' attention to the mandatory enforcement of the judgment, should they fail to comply with the judgment voluntarily.
35. On 16 September 2002 the bailiff had a meeting with M. and D., who informed him that they were unable to pay the price requested by the applicants. The occupiers stated that they would vacate the plot of land on the condition that the applicants compensated them for the construction they had erected or that they provided them with a lawfully constructed flat in another location. The bailiff decided to inform the third applicant of the occupiers' requests.
36. On 4 November 2002 the third applicant requested either the vacation of the plots of land or the payment of compensation by the occupiers at the indicated price. The third applicant consented to having the price paid in instalments over a two-year period. He would come to an agreement with the occupiers as regards the amount of the instalments and the method of payment. Failing an agreement, the third applicant affirmed that he would request that the plot of land be vacated.
37. The bailiff's record of a meeting on 14 February 2003 between the third applicant and both occupiers, states that,
“Following a series of discussions the parties did not agree on the price offered by the creditor [the third applicant], who requests [the amount of compensation per sq. m] over a three-year period.
The debtors offered to pay a [lower] price at (...).
Given this disagreement, it was decided that the creditor would request the mandatory enforcement of the judgment when he was ready (kur të jetë gati)”.
38. On the same day the bailiff decided to suspend the enforcement proceedings. The relevant parts of the decision read:
“The creditor [the third applicant] has unsuccessfully been trying to resolve the problem by friendly settlement, save with debtor B.
Under these circumstances, the creditor requested suspension of the enforcement proceedings until a later appearance before the bailiff at which he would request the mandatory execution as regards the vacation of the plot occupied by M. and D. This has also been reflected in the record of 14 February 2003.”
39. The Durrës Land Registry (“the Land Registry”) entered in the land register, inter alia, G.'s title to a plot of land measuring 975 sq. m, despite the fact that the Supreme Court's judgment of 2 April 2001 had recognised her property rights over a plot of land measuring 720 sq. m (see paragraph 23 above).
40. On an unspecified date the applicants initiated proceedings with the District Court seeking the removal of 255 sq. m from G.'s title of property as entered in the Durrës Land Registry.
41. On 24 December 2003 the District Court decided to suspend the proceedings pending the outcome of the proceedings for recovery of the property (see paragraph 50 below).
42. On 20 April 2004, following an appeal by the applicants, the Court of Appeal quashed the District Court's decision of 24 December 2003 on the ground that there was no connection between the two sets of proceedings as each of them could be decided upon independently, and remitted the case to the same court for continuation of the proceedings.
43. On 7 January 2005 the District Court decided to suspend the proceedings until the parties had provided updated copies of mortgage certificates issued by the Land Registry.
44. On 30 May 2005, following an appeal by the applicants, the Court of Appeal quashed the District Court's decision of 7 January 2005 and remitted the case to the same court for continuation of the proceedings.
45. On 16 January 2006 the District Court, after having received the updated mortgage certificates and the property plans, decided that there was no overlap between the applicants' property and that of G. That decision was upheld by the Court of Appeal on 20 November 2006.
46. On an unspecified date G. commenced construction works, which allegedly encroached upon the plot of land belonging to the applicants. On 17 June 2003, following proceedings initiated by the applicants, the District Court issued an injunction ordering G. to suspend the construction works since the buildings encroached upon the applicants' property.
47. On 20 June 2003 the District Court ordered the bailiffs to enforce the injunction of 17 June 2003. On 30 October 2003 the bailiffs decided not to enforce it because G. had not encroached upon the applicants' property.
48. On 16 December 20003, following an action initiated by the applicants in accordance with Article 610 of the Code of Civil Procedure, the District Court set aside the bailiffs' decision of 30 October 2003. It found that the bailiffs had exceeded their powers as they were not authorised to overrule a court decision. The decision was upheld by the Court of Appeal on 20 April 2004.
49. On an unspecified date in 2004 G. lodged an action with the District Court requesting that the writ of execution of 20 June 2003 be set aside in the light of the District Court's decision of 20 May 2004 (see paragraph 51 below). On 18 March 2005 the District Court dismissed her request on the basis of the Court of Appeal's decision of 24 November 2004, according to which the merits of the case would be heard by a different bench of the District Court (see paragraph 52 below).
50. In view of G's construction works, which had apparently encroached upon the applicants' property, on an unspecified date in 2003 the applicants initiated proceedings for recovery of possession of their property. In the meantime G. filed a counter civil claim requesting the applicants to vacate her plot of land, which was allegedly occupied by their buildings.
51. On 20 May 2004 the District Court concluded, on the basis of an expert valuation concerning the overlap of the properties, that the applicants had occupied a plot of 172.12 sq. m of G.'s property. It also found that G. had occupied a plot of 200.52 sq. m of the applicants' property. The District Court ordered G. to compensate the applicants in the amount of 2,556 United States dollars (USD) for a plot of 28.4 sq. m, which was the difference between the plots of land occupied by each party to the proceedings. Accordingly, it dismissed the applicants' civil claim and also decided to lift the injunction that had been issued on 17 June 2003 (see paragraphs 46 above).
52. On 24 November 2004, following an appeal by the applicants, the Court of Appeal found that the District Court had not examined the parties' updated property titles, particularly in the light of some changes that had taken place to their properties over the years. Accordingly, it quashed the District Court's decision and remitted the case to the same court for a fresh examination by a different bench.
53. On 10 June 2005 the Supreme Court declared G.'s appeal inadmissible in accordance with Article 472 of the Code of Civil Procedure (no valid grounds of appeal). It accordingly upheld the Court of Appeal's decision.
54. On 25 April 2006, on the basis of an expert valuation, the District Court found that the properties overlapped in respect of a plot of 255 sq. m. It concluded that that plot of land belonged to the applicants. The District Court did not find any occupation of G.'s property by the applicants, but ruled that G. had occupied a plot of 347 sq. m that belonged to the applicants. It rejected G's request to pay compensation for the occupation of that plot of land as this was not envisaged under the law. It ordered G. to vacate and return the plot of 347 sq. m to the applicants. The decision was upheld by the Court of Appeal on 5 March 2007.
55. On 25 April 2007 the District Court ordered the bailiffs to enforce its judgment of 25 April 2006. By a letter of 7 June 2007 the applicant informed the Court that the writ of execution of 25 April 2007 was unlikely to be enforced given the presence of two apartment blocks on the occupied plot of land.
56. On an unspecified date G. lodged an action with the District Court requesting the suspension of the writ of execution in respect of one of the illegal buildings, whose status she was trying to legalise. No further information about the enforcement proceedings has been submitted to the Court.
57. The relevant sections of the Constitution of Albania have been set out in Beshiri and Others v. Albania (no. 7352/03, § 20, 22 August 2006).
58. Article 171 of the 1981 Code of Civil Procedure (“the CCP”), which was in force until 1 June 1996, provided that decisions could be quashed for serious procedural violations, inter alia, when the case was tried in the absence of other parties without their having been informed of the hearing dates.
59. Section 9 of Law no. 7574 of 24 June 1992, which amended the Code of Civil Procedure of 1981 in force at the material time, provided that the Court of Cassation was empowered to examine the lawfulness of court decisions by way of an application for supervisory review (kërkesë për mbrojtje ligjshmërie) lodged by the President of the Court of Cassation or the General Prosecutor. The provision did not impose time-limits for applying for such a review.
60. As provided by the 1996 CCP, which abrogated the Code of Civil Procedure of 1981, supervisory review (rekurs në interes të ligjit) was an extraordinary remedy that enabled the Supreme Court (the new name for the Court of Cassation) to reopen proceedings where judgments had become final. Between 1996 and its abolition in 2001, by virtue of Law no. 8812 of 17 May 2001 the supervisory-review procedure underwent several legislative changes.
61. Article 451/a of the CCP provides that a final court judgment is binding on the parties, their heirs, the court that adopted the judgment and other courts and institutions.
62. Article 510 of the CCP stipulates that a judgment can be enforced only on the basis of an execution title, which includes, inter alia, a final court judgment. Under Article 511 of the CCP, an execution title is executed at the request of the creditor. An execution writ is issued for this purpose. In the wording of Article 515 of the CCP, an execution writ is enforced by the bailiff at, inter alia, the request of the creditor. The bailiff invites the debtor to comply voluntarily with the execution writ in accordance with the time-limits laid down in Article 517 of the CCP. Should the debtor fail to comply with a voluntary enforcement within the prescribed time-limits, the bailiff proceeds with a mandatory enforcement in accordance with Article 519 of the CCP.
63. Under Article 610 of the CCP, the parties may complain to the court of an act or failure to act by the bailiff within five days of the said act or omission. There is a right of appeal against the court decision in accordance with Article 611 of the CCP. The appeals has no suspensive effect on the execution.
64. The bailiff may decide to suspend execution at the request of the creditor in accordance with Article 615 of the CCP. The parties may challenge the bailiff's decision to suspend enforcement at the district court in accordance with Article 617 of the CCP.
65. The relevant sections of the Property (Restitution and Compensation) Act have been set out in Beshiri and Others v. Albania (no. 7352/03, §§ 21-29, 22 August 2006); Driza v. Albania (no. 33771/02, §§ 36-43, ECHR 2007... (extracts); and Ramadhi and Others v. Albania (no. 38222/02, §§ 23-30, 13 November 2007).
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-90722
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF WENERSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3 (substantive aspect);Violation of Art. 8;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 4. The applicant was born in 1970 and lives in Kluczbork.
5. The applicant is a habitual offender and has a criminal record. He was charged with robbery and detained on remand in the Wołomin Detention Centre and later in the Łódź Detention Centre from 18 December 2001 to 8 August 2003, when the final judgment was given in his case. At present he is serving prison sentences after conviction for various offences.
6. The applicant suffers from severe ophthalmological problems resulting from an eye injury sustained during a fight with a fellow inmate. In 1996, before he was detained, his right eye was removed. He is currently one-eyed. His problems concern mainly the socket of his extracted eye.
7. In 1998 an expert in ophthalmology, Prof. J.Sz., found it necessary to operate on the applicant’s right eye socket to have the remains of the extracted eye removed. The surgery should have been performed while the applicant was released from detention. However, it did not take place, for unknown reasons.
8. In April and June 2000 different specialists from Warsaw and Bytom examined the applicant. It was suggested that he undergo a reconstruction of his right eye socket at Warsaw Medical University Hospital, which was scheduled for 14 August 2000. In a decision of 3 July 2000 the Medical Commission at Warsaw Remand Centre ordered a two-month suspension of the applicant’s prison sentence. It appears that the operation was not performed as the applicant failed to appear for a preliminary examination.
9. On 14 February 2002, while the applicant was detained on remand, another specialist in ophthalmology discovered that there was a need to perform a reconstruction of his right eye socket. An operation was scheduled for 22 April 2002; it was, however, postponed until 27 May 2002, since as stated in the applicant’s medical certificate of 29 April 2002, the hospital refused to perform it “under escort”, which implied that he would be transported back to a detention centre’s hospital immediately after the operation.
10. The surgery scheduled for 27 May 2002 was not performed since the applicant was granted neither release from detention nor a suspension of his prison sentence for the necessary period. The Government observed that on 24 May 2002 new criminal charges had been brought against the applicant and that for this reason he could not be released. In this connection, the judge in charge of the applicant’s case asked the Bytom Remand Centre hospital whether the applicant’s operation could be postponed. This question was answered in the negative after an examination on 22 August 2002. Moreover, the applicant was found to be in need of a different operation on his left eye, namely a vitrectomy.
11. The applicant’s vitrectomy on his left eye was scheduled to be performed at the Bytom Remand Centre hospital on 3 October 2002. It was cancelled since the applicant refused to undergo this operation at the Bytom Remand Centre hospital. He protested against the conditions in which it was to take place and insisted on being treated at Warsaw Medical University Hospital.
12. On 10 June 2002 the applicant was examined in the ophthalmology ward of the Bytom Remand Centre hospital. The doctors, however, decided not to operate on the applicant’s right eye socket in the Remand Centre hospital, since special facilities had to be in place. Therefore it was decided to have the operation performed at Warsaw Medical University Hospital on 22 September 2002. It was further requested that the applicant be released for the period of the operation and aftercare. The surgery did not take place since the applicant was not granted release, for unknown reasons.
13. In the meantime a doctor at Warsaw Medical University Hospital agreed to operate on the applicant’s right eye socket “under escort”, which did not require the applicant to be released.
14. In a letter of 8 October 2002 the hospital which had agreed to perform the operation “under escort” scheduled the operation for 19 November 2002. Furthermore, in a letter of 29 October 2002 another hospital confirmed that an operation on the applicant could be carried out “under escort”.
15. An entry in the applicant’s medical records dated 19 November 2002 stated that the operation should be performed immediately. For unknown reasons, the surgery did not take place.
16. On 31 December 2002 the Łódź Detention Centre informed the Wołomin District Court that an operation had been scheduled for 4 February 2003 and that any postponement of the planned treatment of the applicant might harm his health and endanger his life. Nevertheless, it transpires from the case file that the applicant was not treated on that date.
17. On 18 February 2004 the partial reconstruction of the applicant’s right eye socket was performed at the Norbert Balicki Academic Clinical Hospital in Łódź. Subsequently, during a check-up on 20 October 2004 at the Bytom Remand Centre hospital, the applicant was found to be in need of a supplementary operation on his right eye socket.
18. On 10 November 2004 another specialist gave an opinion on the applicant’s condition in which he stated that the operation had merely an aesthetic purpose and that it could be performed “under escort” in January 2005.
19. In a letter of 12 April 2005 a different hospital, which had been asked to perform the operation “under escort”, refused to do so.
20. In the applicant’s medical records covering the period from July until October 2005 it was repeatedly stated that the operation should be performed immediately.
21. On 1 April 2005 at the surgical ward of the Medical Academy in Gdańsk a foreign body (a metal bar) was removed from the applicant’s right eye socket. It was the result of a self-inflicted injury of an unspecified date.
22. On 17 January 2006 the applicant was transported to a hospital to see a doctor. There, the applicant was diagnosed with an inflammation of his right eye socket. The specialist recommended waiting for an operation until the inflammation had healed.
23. In a letter of 15 March 2006 the applicant informed the Court that the operation had not yet been performed. He stressed that his state of health had seriously deteriorated and that he was suffering from an inflammation of his right eye socket.
24. During an examination of 14 August 2006 at the Łódź Detention Centre, the specialist found that the applicant’s right eye was infected with a virus and that his condition required urgent surgery.
25. In December 2006 the applicant was transported to the Plastic Surgery Ward of the Clinical Hospital of the Polish Ministry of Defence, as the operation to be performed was of a highly complicated character. A specialist examining the applicant found that a complex, multi-stage plastic operation on the applicant’s right eye socket had to be performed. It was stressed, however, that such procedures were not covered by the Polish National Health Fund. In a letter of 2 January 2007 the applicant was informed that the operation could be performed, provided that he covered its costs.
26. On 9 January 2007, after the applicant had again been examined at the Łódź Detention Centre, it was found that his right eye socket had to be urgently operated on.
27. Medical certificates of 16 January 2007 issued by the Łódź Detention Centre stated that there was no inflammation of the applicant’s right eye socket and that his condition could be treated at the centre’s hospital ward. It appears that the surgery was not performed.
28. After another refusal to have the operation performed, the applicant contacted the Oncology Centre at the Maria Skłodowska-Curie Institute, headed by Prof. E.T., requesting help. In reply to the applicant’s letter Prof. E.T., after examining his medical records, stated that his condition required immediate surgery and scheduled the date of the consultation for 15 February 2007. The consultation did not take place, since it appears that the management of the Łódź Detention Centre did not grant the necessary leave.
29. On 9 February and 30 March 2007 the Bytom Remand Centre hospital informed the applicant that its ophthalmology ward did not perform plastic surgery on eye sockets.
30. The applicant used various means in order to draw the attention of the authorities to his health problems.
31. On numerous occasions he requested to be released from detention on remand on account of his eye problems.
32. His requests were repeatedly refused (decision of the Wołomin District Prosecutor of 4 March 2002 and decisions of the Wołomin District Court of 30 July 2002 and 12 November 2002). His appeal against the decision of 4 March 2002 was dismissed (the Warsaw Regional Prosecutor’s decision of 5 April 2002).
33. The applicant also tried to challenge his detention by lodging an appeal against an order of 20 November 2002 prolonging his detention on remand. In a decision of 13 December 2002 the Warsaw Regional Court dismissed his appeal against the detention order of 20 November 2002.
34. The applicant also lodged requests for a suspension in serving his prison sentence for the period of his treatment in hospital and aftercare. His requests were refused by the Łódź Regional Court in decisions of 2 December 2002, 29 November 2004 and 27 February 2006.
35. The courts repeatedly stated in their reasons for their decisions that the requested operation could be performed “under escort”, without leave being necessary, and that the delay in performing the operation would not result in any deterioration of the applicant’s health. In its refusal of 27 February 2006 the court also relied on the fact that the inflammation of the applicant’s right eye socket was a medical contra-indication against the immediate performance of the operation. It considered that the operation should be delayed until the inflammation had healed.
36. The applicant also lodged numerous complaints with the authorities in charge of detention centres, as well as with supervisory institutions, about his lack of proper medical care. All his complaints were found to be unsubstantiated. The authorities repeatedly stated that the applicant had been seen by doctors on numerous occasions, that he had been given all medicines prescribed for him and that there were no medical arguments against the operation being carried out “under escort” (letters of the Warsaw-Białołęka Detention Centre of 10 January 2003 and the Warsaw Regional Inspectorate of 27 January 2003). It was also emphasised that the applicant had not proved that he had used the suspensions of his prison sentence which he had previously been granted in compliance with their purpose (undergoing medical treatment).
37. The applicant contested the finding that he had not undergone any medical treatment during the periods when he had been granted suspensions of his prison sentence. He instituted criminal proceedings against the health-care institution of the detention centre on a charge of making a false statement. In the course of these proceedings it was established that the applicant had undergone some medical treatment during the contested periods (he had had his eye removed).
38. The applicant submitted an envelope sent to him from the Court, bearing the logo of the Council of Europe. It bears stamps marked “censored” and “a judge” and a stamp of the Warsaw-Białołęka Detention Centre with the date 9 April 2003 and an illegible signature. It also bears a stamp of the Council of Europe with the date 25 March 2003. It appears from the case file that the applicant was not present when the correspondence was censored. Furthermore, the applicant claimed that his correspondence had been stopped and that he had received it with a delay of about one month.
39. Rules on access to medical assistance for convicted prisoners are set out in the Code of Execution of Criminal Sentences of 6 June 1997 (Kodeks karny wykonawczy – “the 1997 Code”), which entered into force on 1 September 1998.
40. The relevant part of Article 115 § 1 of the Code provides as follows:
“A convicted person shall have access to free health care ...”
Article 115 was substantially amended in 2003 and on subsequent occasions, the amendments extensively covering the range of medical assistance available to convicted persons and rules for its application. The provision referred to above remained unchanged in substance.
41. As regards access to medical assistance for persons detained on remand, Article 214 § 1 of the Code provides as follows:
“Unless exceptions are provided for in the present Chapter, a person detained on remand shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of remand prisoners.”
42. The relevant domestic law concerning the censorship of prisoners’ correspondence is set out in the Court’s judgment in the case of Michta v. Poland, no. 13425/02, §§ 33-39, 4 May 2006.
VIOLATED_ARTICLES: 3
8


ITEMID: 001-70576
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: GOUDSWAARD-VAN DER LANS v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs A.C. Goudswaard-van der Lans, is a Netherlands national who was born in 1942 and lives in Aalsmeer. She is represented before the Court by Ms T. Spronken, a lawyer practising in Maastricht. The respondent Government are represented by Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
In the interest of the proper administration of justice, the President has granted leave to the following persons to submit written comments: Mrs J.M. Breugem-Westerkamp, Mrs G. Gosschalk-Wigboldus, Mrs M.E.C. Santoro-van Halm Braam, Mrs W. Hop-Bloemberg, Mrs M.J.C. Braspenning, Mr M.J. Lens, Mr J.H.M. Boerland, Mrs M. Scholte-Sleumer, Mrs W.C. Monster and Mr M.C.A. Glas (Article 36 of the Convention and Rule 44 § 2 of the Rules of Court). These persons, referred to hereafter as “third parties”, are represented by Mr T. Barkhuysen, a lawyer practising in Amsterdam.
.
The applicant’s husband died on 18 January 1977. The applicant was left with two children born in 1970 and 1972 respectively. She was granted a pension under the General Widows and Orphans Act (Algemene Weduwen- en Wezenwet; “AWW”).
She entered into a relationship with a Mr H., by whom she had a child in 1980, and set up home with him some time before 1 July 1996.
At the time of the events complained of, the applicant’s AWW pension amounted to 21,981.12 Netherlands guilders (NLG) annually.
The AWW was repealed on 1 July 1996 and replaced by the General Surviving Dependants Act (Algemene Nabestaandenwet; “ANW”).
By a decision of 1 December 1997 the competent executive authority, the Social Insurance Bank (Sociale Verzekeringsbank), reduced the applicant’s pension to NLG 6,815.40 annually, with effect from 1 January 1998. The reason for this reduction was the fact that the applicant had been living with Mr H. on 1 July 1996, the date on which the ANW entered into force, and was expected to continue to do so beyond 31 December 1997.
On 8 January 1998 the applicant lodged an objection against this decision with the Social Insurance Bank. It was dismissed on 17 February 1998.
On 26 March 1998 the applicant lodged an appeal with the Amsterdam Regional Court (arrondissementsrechtbank).
On 30 June 1998, owing to the entry into force of new transitional legislation (the Act of 18 June 1998 – see below), the Social Insurance Bank raised the applicant’s pension to NLG 8,449.44 annually, with effect from 1 July 1998.
On 23 September 1998 the applicant’s representative wrote to the Regional Court informing it that the applicant’s appeal was one of several that had been selected as pilot cases intended to allow the courts to establish case-law. On 22 October 1998 the Social Insurance Bank also wrote to confirm this.
The Regional Court gave a decision on 17 March 1999 declaring the appeal well-founded on grounds not relevant to the case before the Court. It quashed the decisions of 17 February and 30 June 1998 but left the effects of the latter decision unaffected.
On 21 April 1999 the applicant lodged a further appeal with the Central Appeals Tribunal (Centrale Raad van Beroep), the highest tribunal with jurisdiction in social-security matters. The Social Insurance Bank also lodged an appeal, directed against aspects of the Regional Court’s decision with which it disagreed.
The Central Appeals Tribunal dismissed the applicant’s further appeal in a decision delivered in open court on 24 January 2001 and notified to the applicant on the same day. It accepted that there had been a “partial deprivation of possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. Its reasoning included the following:
“In this legal provision [i.e. section 67 of the ANW – see below] one of the basic assumptions of the ANW, namely that statutory insurance for surviving dependants should be based on actual need (dat aan een wettelijke nabestaandenverzekering het behoefteprincipe ten grondslag moet liggen), has been elaborated in respect of former recipients of AWW pensions. As compared to the ordinary ANW regime – under which, in short, the pension is reduced by the entire amount of work-related benefits [i.e. unemployment and disability benefits] and by income from work excluding a sum equal to 50% of the statutory minimum wage before tax, plus one third of any income in excess thereof – the deduction applicable to former AWW beneficiaries under the [Act of 4 July 1996 – see below] is more advantageous: 70% of the statutory minimum wage before tax, in respect of both forms of income, together with one third of any income from work in excess thereof, is disregarded for the purposes of the reduction. It can also be said in such cases that, regardless of the level of income, an amount of benefit equal to 30% of the statutory minimum wage before tax remains unaffected.
As regards the transitional regime under section 67 of the ANW it is also relevant that, in the case of persons maintaining a common household who are treated under the ANW as married persons (with the exception of first-degree relatives), the former AWW beneficiary who is regarded as married on this ground retains, from 1 January 1998, an ANW pension equal to 30% of the statutory minimum wage, that percentage in the case of persons maintaining a common household in order to take care of an invalid rising to 50% (of the statutory minimum wage after tax), 20% of which is means-tested.
The Regional Court held that this result was consistent with the criteria embodied in Article 1 of Protocol No. 1, which provides:
...
The Central Appeals Tribunal agrees that the transitional arrangements under the ANW fulfil those criteria, and in particular that the legislature, in determining what can and must be considered necessary in the general interest, has not overstepped its margin of appreciation. In addition to the Regional Court’s findings on this point, the Central Appeals Tribunal considers the following important: according to current opinion the statutory insurance regime for surviving dependants acts as a basic provision (bodemvoorziening) in terms of supplementary arrangements for surviving dependants and as an income provision (inkomensvoorziening) at the level of the social minimum. This does not sit well with the idea of leaving the (basic) benefit intact where circumstances indicate that the surviving dependant concerned is, or has been, able to meet his or her own needs. The fact that there was no provision of this nature in the AWW may plausibly be attributed to the then insignificant proportion of married women in employment, as a consequence of which the concurrence of an AWW pension and a salary, or social benefit in lieu of salary (loondervingsuitkeringen), was relatively rare. From the perspective of the aims of the new system, the social changes in this area required an arrangement that dealt with the concurrence of benefits for surviving dependants and other income. In addition, the legislature found it appropriate to extend the equal treatment of married couples and unmarried cohabitants (in a general sense), as for other social arrangements, to the statutory insurance for surviving dependants.
The fact that the adaptations in question also extend to existing cases (persons in receipt of AWW pensions) is considered acceptable by the Central Appeals Tribunal within the scope of its present review, from the equality point of view, and also in the light of the potentially considerable duration of the benefit; and what is also acceptable within the same scope of review is the position of the legislature that, in terms of legal security, a temporary and/or partial (in the present case: an initially complete and subsequently partial) respect for existing rights is required.
The position that only ‘full compensation’ would be consistent with Article 1 of Protocol No. 1, as has been argued by the persons concerned by the cases dealt with in the present proceedings, is based on an incorrect understanding of that provision, which does not go so far as to make it utterly impossible for a State to make changes to existing (social security) rights.”
The AWW, which entered into force on 1 October 1959, insured against the risk of the death of the family breadwinner. Under the AWW scheme, all persons residing in the Netherlands and non-residents gainfully employed in the Netherlands were compulsorily insured. Contributions to this scheme were paid by all persons gainfully employed in the Netherlands.
Entitlement to AWW benefit was not dependent on the level of contributions paid as, unlike a social-security scheme based on employment (werknemersverzekering), it was a nationwide social-security scheme (volksverzekering). The level of benefit was linked to the statutory minimum wage.
The AWW conferred entitlement to a widow’s pension on the widow of an insured person, provided she was under the age of 65 and was caring for an unmarried child born or conceived no later than the date of her spouse’s death. A widow without children was also entitled to claim benefit subject to certain conditions, for example if she was incapacitated for work or was aged 40 or over at the time of her husband’s death. “Widow” meant the woman to whom the insured person was married on the date of his death.
At the time when the AWW was replaced by the ANW, the amount of the pension was equal to the statutory minimum wage after tax in the case of a widow with dependent children below the age of 18, and 70% of that wage in other cases. This amount was the same for all widows, regardless of any income which they might have been receiving from other sources.
Entitlement to an AWW pension was lost upon remarriage.
From 1988 onwards, widowers enjoyed the same entitlement to benefit after the death of their wives pursuant to the case-law of the domestic tribunals under Article 26 of the International Covenant on Civil and Political Rights.
By 1987 the Government of the day felt that the AWW, based as it was on the traditional division of labour between men and women, had become obsolete. It gave surviving dependants an entitlement to benefit even if they were not in need of it: increasingly, beneficiaries included widows and widowers in paid employment.
For this reason the Government decided to introduce new legislation granting an entitlement to a pension only to certain categories of surviving dependants who could not be expected either to provide entirely for themselves or to take out private insurance.
A first bill was introduced in 1991. It was rejected by the Upper House of Parliament, which disapproved of, among other things, the proposed transitional provisions.
A revised bill was introduced during Parliament’s 1994-95 session.
According to figures quoted by the Government in support of their proposals, in 1993, the percentages of working women among widows and female divorcees in the age groups 45-49 and 50-54 were 58% and 42% respectively (see the Explanatory Memorandum – Memorie van Toelichting –, Lower House of Parliament, no. 24, 169, 1994-95 session, no. 3).
The ANW (Act of 21 December 1995, Official Gazette (Staatsblad) 1995, no. 690, as amended (with retroactive effect from 1 July 1996) by the Act of 4 July 1996, Official Gazette 1996, no. 369) entered into force on 1 July 1996.
Under section 13 of the ANW, the persons insured under the Act are those who are either Netherlands residents or, if not Netherlands residents, are liable for wage tax (loonbelasting) in respect of work carried out in the Netherlands under a contract of employment.
Section 14 of the ANW provides that the surviving dependants of an insured person shall be entitled to a pension if they have an unmarried child under eighteen years of age who does not form part of any other person’s household, or if they are unfit for work, or if they were born before 1 January 1950.
Section 16 provides for the termination of the entitlement to an ANW pension in the event that the surviving dependant no longer meets the requirements of section 14 (unless he or she was born before 1 January 1950) or reaches the age of 65 (at which age, in the Netherlands, one normally becomes entitled ipso facto to an old-age pension under different legislation).
The ANW pension is equal, after tax, to 70% of the statutory minimum wage after tax (section 17). The pension is reduced by an amount equal to the surviving dependant’s other income, if any; however, a proportion of income from paid employment (inkomen uit arbeid) equal to 50% of the statutory minimum wage before tax plus, if the surviving dependant’s income from work exceeds that sum, one third of the remainder, is disregarded for the purposes of the deduction (section 18).
Section 67 laid down a transitional regime for persons who, before the entry into force of the ANW, had been entitled to benefit under the AWW.
In accordance with section 67 (3), persons, like the applicant who maintained a common household with another person on the day on which the ANW entered into force (i.e. 1 July 1996), and were still maintaining that common household on 31 December 1997, lost their entitlement to an ANW pension entirely with effect from 1 January 1998 unless they were born before 1 January 1941, in which case they were entitled to an ANW pension amounting to 30% of the statutory minimum wage (after tax).
As originally enacted in 1995, the ANW provided that persons previously entitled to an AWW pension who maintained a common household with another person on the day on which the ANW entered into force lost their entitlement to an ANW pension entirely with effect from 1 January 1998 unless they were born before 1 January 1941, in which case they were entitled to an ANW pension amounting to 30% of the statutory minimum wage (after tax).
The Act of 4 July 1996 amending the transitional regime and introducing certain technical adaptations (Wet van 4 juli 1996 tot wijziging van de Algemene nabestaandenwet (wijziging overgangsrecht alsmede enkele technische aanpassingen)) amended this arrangement, limiting it to those who were still maintaining a common household with someone else on 31 December 1997 (section 67 (3) of the ANW – see above).
As early as 31 October 1997 the Deputy Minister for Social Affairs and Employment (Staatssecretaris van Sociale Zaken en Werkgelegenheid) decided on a “Temporary Remedial Arrangement for Transitional Provisions of the ANW” (Tijdelijke regeling reparaties overgangswet ANW; Official Bulletin (Staatscourant) 1997, no. 210, page 6). Its stated intention was to remove some of the effects of section 67 of the ANW, which were widely felt to be excessively harsh in that they frequently led to the complete termination of entitlement to an ANW pension.
The solution chosen, as relevant to the present case, was to reduce the ANW pension of surviving dependants who had previously enjoyed an AWW pension and were cohabiting in a common household to 30% of the statutory minimum wage (after tax) regardless of their date of birth.
This temporary arrangement was withdrawn with effect from 1 July 1998 (Official Bulletin 1998, no. 133, page 8), having been made redundant by the Act of 18 June 1998 (see below).
The Act of 18 June 1998 amending the ANW in view of apparent unfairness (Wet van 18 juni 1998 tot wijziging van de Algemene nabestaandenwet in verband met gebleken onbillijkheden; Official Gazette 1998, no. 377), amended section 67 (3) of the ANW to provide, in so far as relevant to the case before the Court, that for persons previously entitled to an AWW pension who maintained a common household with someone else on 1 July 1996, for reasons other than taking care of an invalid, and who were still maintaining that household on 31 December 1997, the ANW pension would be reduced to 30% of the statutory minimum wage (before tax) with effect from 1 January 1998.


ITEMID: 001-58909
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF JANOWSKI v. POLAND
IMPORTANCE: 1
CONCLUSION: No violation of Art. 10
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 7. The applicant was born in 1937. He is a journalist and lives in Zduńska Wola, Poland.
8. According to the applicant, on 2 September 1992 he noticed two municipal guards who were ordering street vendors to leave a square in Zduńska Wola where selling was allegedly not authorised by the municipal authorities and to move their makeshift stands to a nearby market-place. The Government maintain however that the guards, who were acting on sanitary and traffic considerations, merely requested the vendors to move to a nearby market-place. The applicant further submits that he intervened, informing the guards that their actions had no legal basis and infringed the laws guaranteeing freedom in the economic field. He pointed out that the municipal authorities had not passed any resolution which would allow the guards to clear the square. The applicant observed that the guards were apparently acting only on the basis of verbal instructions from the mayor and urged the vendors to stay. The exchange between the applicant and the guards was witnessed by a group of bystanders.
9. Subsequently, on an unspecified date, the Zduńska Wola district prosecutor (Prokurator Rejonowy) instituted criminal proceedings against the applicant. On 5 January 1993 the district prosecutor lodged a bill of indictment with the Zduńska Wola District Court (Sąd Rejonowy). The applicant was charged with having insulted municipal guards while they were carrying out their duties and with having acted with flagrant contempt for legal order, an offence specified in Article 236 of the Criminal Code read together with Article 59 § 1.
10. On 29 April 1993 the District Court convicted the applicant under Article 236 of the Criminal Code of verbally insulting two municipal guards. It held that the offence was an act of hooliganism within the meaning of Article 59 § 1 of the Criminal Code. The applicant was sentenced to eight months’ imprisonment suspended for two years and a fine of 1,500,000 old zlotys (PLZ). He was also ordered to pay the sum of PLZ 400,000 to charitable institutions and court costs of PLZ 346,000.
11. On an unspecified date the applicant filed an appeal against this judgment, submitting that his conviction was based on insufficient evidence. He pointed out that the District Court had failed to establish precisely what defamatory words had been used and had only found that the applicant had called the guards “ignorant”. This word should not have been regarded as an insult but as an acceptable criticism of public servants. The applicant further contended that the trial court had wrongly applied the law since, contrary to its findings, it was evident that his acts had not involved any act of hooliganism as he had only intended to protect street vendors from illegal actions of the municipal guards.
12. On 29 September 1993 the Sieradz Regional Court (Sąd Wojewódzki) quashed the part of the contested judgment relating to the sentence of imprisonment and the order to pay PLZ 400,000 to charitable institutions. However, it upheld the fine of PLZ 1,500,000 and reduced the court costs to the sum of PLZ 150,000. The Regional Court was of the opinion that the trial court had wrongly considered that the offence at issue had been hooligan in nature as the applicant’s motive had been to defend street vendors against the acts of the municipal guards which he had considered illegal. Therefore the applicant had not acted as he did without any justifiable motive, which was a prerequisite for finding that the offence was an act of hooliganism.
13. Furthermore, the Regional Court agreed with the applicant that the Zduńska Wola municipal council had not passed any resolution prohibiting the sale of merchandise on the streets and that no public notice to this effect had been posted at the material place and time. Therefore, there were no grounds for the trial court’s finding that the applicant had demonstrated flagrant contempt for legal order.
14. Finally, the Regional Court observed that the judgment had not mentioned the abusive words used by the applicant. Nevertheless, it considered that there was sufficient evidence in the case file to conclude that the applicant had in fact insulted the guards by calling them “oafs” and “dumb” (“ćwoki” and “głupki”). These words were widely considered to be offensive and by using them the applicant had exceeded the limits of freedom of expression. The court found that the resulting conviction was rightly imposed under Article 236 of the Criminal Code whose object was to ensure that civil servants were not hindered in carrying out their duties.
15. At the relevant time the legislation provided as follows:
Article 236 of the Criminal Code:
“Anyone who insults a civil servant ... during and in connection with the carrying out of his official duties is liable to up to two years’ imprisonment, to restriction of personal liberty or to a fine.”
“Kto znieważa funkcjonariusza publicznego … podczas i w związku z pełnieniem obowiązków służbowych, podlega karze pozbawienia wolności do lat 2, ograniczenia wolności albo grzywny.”
Article 59 § 1 of the Criminal Code:
“If a perpetrator has committed a premeditated offence of a hooligan nature, the court shall impose a sentence of imprisonment not lower than one and a half times the minimum sentence provided ...”
“Jeżeli sprawca dopuścił się umyślnego występku o charakterze chuligańskim, sąd wymierza karę pozbawienia wolności nie niższą od dolnego zagrożenia zwiększonego o połowę …”
Article 120 § 14 of the Criminal Code provided that an offence should be regarded as being of a hooligan nature if the perpetrator acted in public, without any justifiable motive or with an obviously unjustified one, thus demonstrating flagrant contempt for legal order.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-102793
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SIEDLECKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The main applicant, Mr Andrzej Siedlecki (“the applicant”), is a Polish national who was born in 1963 and lives in Płock. He was represented before the Court by Mr T. Włoczyk, a lawyer practising in Gliwice. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The names and personal details of the remaining applicants (“the applicants”) and the facts pertaining to their cases are presented in the attached statements setting out the particular circumstances of each case.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 10 January 2001 the applicant was committed to Zabrze Prison. After that date he was continuously detained in several penitentiary facilities. On 27 July 2009 he was released.
The parties gave partly differing accounts of the conditions of the applicant’s detention.
The applicant maintained that throughout his detention he had been held in overcrowded cells in conditions below the basic standard of hygiene. He further stated that in the Zabrze Prison detainees had been allowed to smoke in the central corridor from where the smoke had penetrated into the cells.
The Government submitted that they could not confirm whether or not during his stay in the Zabrze Prison the applicant had been detained in cells with a surface area of at least 3 m² per person. They further stated that in all penitentiaries smoking had only been permitted in designated zones. The Government maintained that in the Zabrze Prison two smoking areas had been designated near the entrances to units and that the applicant had not been exposed to tobacco smoke during his detention in that establishment.
The Government did not comment on the conditions of the applicant’s detention in the remaining detention establishments.
The applicant lodged several complaints with the penitentiary authorities regarding the conditions of his detention. He did not bring a civil action in tort to seek compensation for the infringement of his personal rights.
A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention are inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).


ITEMID: 001-85873
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DIXON v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Gordon Dixon, is a British national who was born in 1939 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 6 March 1999. On 24 January 2002, the applicant made a claim for widows’ benefits. On the same date the applicant was informed that his claim had been disallowed as he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-89153
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF NIKOLOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
JUDGES: Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 4. By a judgment of the Štip Municipal Court (“the first-instance court”) of 14 June 1989 (“the 1989 judgment”), confirmed by the Štip Court of Appeal on 30 October 1989, the applicant and his neighbour (“the defendant”) were ordered to build a concrete supporting wall between their adjacent plots of land to protect the applicant’s house from damage. The civil courts found that the applicant should bear 31.4% of the costs, and the defendant 68.6%. The defendant was ordered to reimburse the applicant for the trial costs. Finally, an injunction was issued authorising the applicant to build the wall at the defendant’s expense if the latter had failed to do so as required. The injunction was valid until the 1989 judgment became final.
5. On 12 July 1989 the first-instance court accepted the applicant’s request for enforcement of the 1989 judgment by way of seizure of the defendant’s immovable and immovable assets. The court also ordered the defendant to deposit his part of the costs for the construction of the wall (court deposit).
6. On 10 September 1990 the first-instance court decided that offers should be collected for construction of the wall. On 1 October 1991 company B. (“the construction company”) was chosen to build the wall. On 22 October 1991 an on-site inspection was carried out.
7. On 30 October 1991 the first-instance court ordered the parties to deposit with it money as established by the 1989 judgment. It further ordered the defendant to deposit an amount to secure the applicant’s trial and enforcement costs. It was also stated that in case of non-compliance, the payment would be enforced by an inventory and public sale of assets. The applicant deposited his part not with the court, as ordered, but with the construction company.
8. Four hearings fixed between 29 May 1992 and 29 April 1993 were attended by the applicant. As the defendant failed to deposit the amount required, the enforcement proceedings continued with the drawing up an inventory of his belongings. Despite the court’s orders of 20 July and 13 September 1993 requesting the defendant to surrender certain movable assets to bailiffs, it appears that no items were seized or sold by the enforcement authorities. In the meantime, the defendant had constructed a wall. On 30 June 1997 the court made a further on-site inspection to examine the wall. At a hearing of 23 September 1998, the applicant requested the construction company to use his deposit to complete the wall so as to comply with the 1989 judgment.
9. The applicant attended the four hearings which were scheduled between 30 April 1999 and 7 June 2001. On 7 December 2001 the first-instance court ordered the applicant to pay the costs of an on-site examination under threat of suspension of the proceedings. The applicant has submitted to the Court a payment slip of 26 December 2001.
10. On 27 February 2003 the first-instance court fixed an on-site examination to be carried out on 25 March 2003 at the defendant’s home with a view to seizing the latter’s movable assets. The court also requested the presence of two policemen in case assistance was needed. According to the minutes of the on-site examination, the first-instance court examined the wall again.
11. A hearing listed on 3 October 2003 was adjourned because of the absence of the sitting judge.
12. At a hearing of 16 March 2004, the first-instance court scheduled another on-site examination of the wall constructed by the defendant. The inspection took place on 13 April 2004. The next day, the applicant paid the expert fees.
13. On 15 May 2004 the first-instance court found that the wall constructed by the defendant in 1993 had not met the criteria established by the 1989 judgment. It further determined that the wall, as constructed, corresponded to 53.64% of the value of the wall as the court had ordered, and that the defendant should cover 14.96% of the expenses for the improvement works. With reference to the 1989 judgment, it ordered the applicant to cover 31.4% of the expenses for the improvement works. It established, inter alia, that the applicant had not deposited, as ordered, his part of the expenses with the court, but with the construction company, which had not released him from the obligation established by the 1989 judgment. It further stated that the applicant, after having realised that the defendant had constructed part of the wall, should have withdrawn his deposit from the construction company. Finally, it concluded that the applicant should have deposited the money with the court and that he should have required the court to order the construction company to build the wall. The part of expenses to be borne by the defendant was to be secured by an inventory and sale of the latter’s belongings. On 14 December 2004 the Štip Court of Appeal confirmed that decision.
14. On 5 July 2007 the first-instance court ordered the applicant to deposit money equivalent to 31.4% of the cost of improving the wall under threat of suspension of the proceedings. It appears that no such order was issued against the defendant given the latter’s statement that he would deposit the remaining part after the applicant had done so. On 23 July 2007 the applicant objected to that order arguing that he had already made his deposit with the construction company on the basis of the court decision of 30 October 1991.
15. No further information has been provided as regards the subsequent enforcement proceedings.
VIOLATED_ARTICLES: 13
6


ITEMID: 001-85520
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LANGROVA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Ms Hana Langrová, is a Czech national who was born in 1966 and lives in Brno. She was represented before the Court by Mr J. Pernica, a lawyer practising in Brno. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 28 August 1995 the applicant lodged an action with the Brno Municipal Court (městský soud) claiming the separation of the marital property.
It appears that the proceedings are still pending.
On 25 July 2006 the applicant applied for compensation pursuant to Act no. 82/1998 as amended. She claimed CZK 165,535 (EUR 6,409) in respect of pecuniary damage and expenses incurred in the judicial proceedings and CZK 500,000 (EUR 19,358) in respect of non-pecuniary damage.
In a letter of 9 January 2007 the Ministry of Justice informed the applicant that her application had been accepted, that it had been found that her right to a determination of their civil claim within a reasonable time had been violated and that the applicant had been awarded a sum of CZK 105,000 (EUR 4,065) in respect of non-pecuniary damage she might have sustained. The Ministry refused, however, the applicant’s claim regarding compensation for pecuniary damage.
On 18 January 2007 the applicant informed the Registry that she did not intend to turn to a court under section 15(2) of Act no. 82/1998 as amended.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-88312
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: CHROUST v. THE CZECH REPUBLIC
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Miroslav Chroust, is a Czech national who was born in 1949 and lives in Prague. He was represented before the Court by Mr E. Janča, of the Czech Bar. The respondent Government were represented by their Agent, Mr V.A. Schorm.
The facts of the case, as presented by the parties, may be summarised as follows.
In 1972 the applicant joined the armed forces: he worked as a warder in the prison service, then in the police (National Security Corps at the time) until 16 February 1990, the Bureau for the Protection of the Constitution and Democracy, the Federal Security Intelligence Service (Federální bezpečnostní informační služba) – which was dissolved on 31 December 1992 by Law no. 543/1992 – and, from 1 January 1993 to 30 April 1994, in the Security Intelligence Service of the Czech Republic (Bezpečnostní informační služba České republiky – “the SIS”). On that last date he stopped working and applied for a service allowance (příspěvek za službu), as provided for by law.
On 3 June 1994 the Social Security Department of the Ministry of the Interior decided, by virtue of sections 129 and 130 of Law no. 527/1992 on the SIS, and having regard to the fact that the applicant had served in the armed forces for twenty-three years, to grant him a service allowance as of 1 May 1994.
On 1 December 1994 and 28 June 1995 the Director of the SIS informed the applicant that his allowance had been increased.
On 26 April 1996 the Director of the SIS informed the applicant that the increase in his allowance had been wrongfully awarded as it did not apply to allowances awarded under Law no. 527/1992, and ordered him to refund the surplus. He did, however, confirm the applicant’s entitlement to the service allowance as determined on 3 June 1994. The applicant challenged the decision, alleging that the SIS had a duty to pay and adjust his allowance. Having obtained no satisfaction from the SIS, he asked the Prague 5 District Court (Obvodní soud) to order the SIS to increase his allowance. The court issued a decision of non-jurisdiction, terminating the proceedings. It also noted that it had not been for the Ministry of the Interior to take the decision concerning the applicant’s initial application for an allowance when he left the service, and that the decision of 3 June 1994 was therefore void. The case was referred to the Director of the SIS.
On 27 July 2000 the Director of the SIS decided, with immediate effect, that the applicant was not entitled to a service allowance. He noted that the decision of 3 June 1994 had been taken by an authority that had no power to take such a decision as it was a matter for the Director of the SIS to decide. That being so, he decided that the applicant did not meet the length-of-service requirement as, under section 158 of Law no. 527/1992, only the periods of service after 16 February 1990 could be taken into account.
On 21 August 2000 the applicant appealed, arguing that his right to receive the disputed allowance had been acknowledged by previous acts of the Director of the SIS and that his years of service from 1972 to 1990 should also be taken into account.
In a decision of 5 January 2001, the Director of the SIS rejected the appeal and upheld the earlier decision. He maintained, first of all, that his predecessor’s actions, on 1 December 1994, 28 June 1995 and 26 April 1996, had been merely informative and could not be considered formal decisions; the first formal decision had been that of 27 July 2000. As to the period of service that should be taken into consideration when determining entitlement to the allowance, the Director considered, having examined the relevant provisions of Law no. 572/1992, that in the present case only the years of service after 1990 could be taken into account. He also noted that each Law contained its own regulations governing the conditions under which the service allowance should be granted, and that in so far as entitlement to the allowance was linked to the beneficiary’s leaving the armed forces, the obligations transferred by virtue of section 35 of Law no. 244/1991 could not include those concerning the service allowance.
On 14 March 2001 the applicant lodged an appeal with the Prague Municipal Court (Městský soud) to have the decisions of 27 July 2000 and 5 January 2001 reviewed. He complained that he had been deprived of a “welfare” benefit he had been awarded by an allegedly correct final decision (res judicata) and challenged the selective and discriminatory interpretation of Law no. 572/1992 developed in the impugned decisions. Other categories of staff assigned to comparable duties were treated differently in that they received the allowance in issue, he argued.
On 15 March 2001 the applicant challenged the same decisions in a constitutional appeal, alleging that they violated the principles of equality and legal certainty, as well as the principles of the rule of law according to which public authority must be exercised within the limits of the law and administrative acts are presumed to be valid. In this appeal he reiterated the objections raised in his 14 March 2001 appeal concerning the discriminatory interpretation of section 158 of Law no. 527/1992, the different treatment to which he alleged he had been subjected and the fact that he had been deprived of a “welfare” benefit. In supplementary pleadings dated 27 November 2001 the applicant complained that he had been discriminated against and, to all intents and purposes, penalised for having worked for the SIS, arguing that if he had left the armed forces on 31 December 1992 he would have been entitled to the disputed allowance (under Law no. 100/1970).
On 11 March 2002 the Municipal Court terminated the proceedings, pointing out that under the relevant provisions of the Code of Civil Procedure and new Law no. 154/1994 on the SIS the courts no longer had jurisdiction to review decisions taken by the SIS.
On 27 August 2002 the Second Section of the Constitutional Court (Ústavní soud) rejected the applicant’s appeal as manifestly ill-founded. It held that the applicant was merely disputing the findings of the impugned decisions, though these were based on an interpretation which remained within the bounds of the Constitution. Given that the decision of 3 June 1994 (whereby the applicant was initially granted the disputed allowance) had been taken by a body without authority to take it, the Constitutional Court considered it null and void.
The applicant enclosed a judgment delivered by the Fourth Section of the Constitutional Court on 9 October 2003 in a similar case concerning V.M. (see “Relevant domestic law and practice” below).
On 11 February 2001 the applicant submitted a new application for an allowance to the Social Security Department of the Ministry of the Interior in respect of the time he had served in the armed forces up to 31 December 1992, prior to joining the SIS. He alleged that, when he had moved from the National Security Corps to the Federal Security Intelligence Service (in keeping with the provisions of section 35(1) of Law no. 244/1991), he had acquired the right to the service allowance by virtue of Law no. 100/1970, and that the corresponding obligation had been transferred to the Federal Security Intelligence Service and subsequently, upon the liquidation of the Federal Security Intelligence Service, to the Czech Republic (by virtue of section 9(4) of Law no. 543/1992).
The application was forwarded to the SIS, whose Director informed the applicant in a letter dated 21 November 2002 that he had no right to the allowance as his period of service had not terminated on 31 December 1992 in such a way as to entitle the applicant to claim the allowance under the provisions of Law no. 100/1970. As there was no entitlement, the obligation to pay the allowance could not have been transferred to the SIS and there was no reason to take a decision.
Considering that his request had not been duly processed, the applicant took court action challenging the inactivity of the SIS. He mentioned that there were three other people in the same situation and that in one of those cases (V.M.’s) the Constitutional Court had found a violation of the Constitution.
On 27 October 2004 the Prague Municipal Court dismissed the claim, affirming that when the SIS had ruled on 27 July 2000 on the applicant’s initial 1994 claim it had taken into account the applicant’s service during the period when Law no. 100/1970 was in force, and concluded that his right to the impugned allowance did not exist as at 31 December 2002. As decisions on the merits of the applicant’s claim had been handed down on 27 July 2000 and 5 January 2001, even though the applicant disagreed with them, there was no reason to order the SIS to reconsider its decision. The court also reiterated that, under Law no. 100/1970, those persons who had taken on new functions in the armed forces were not entitled to the service allowance, that the applicant’s employment in the Federal Security Intelligence Service had come to an end with that body’s disappearance on 31 December 1992, which had entitled him to severance pay (but not the service allowance), and that since 1 January 1993 his rights and obligations had been governed by Law no. 527/1992. That Law made it quite clear that only service completed in institutions protecting the principles of democratic government should be taken into account when calculating length of service. As to the difference between the applicant’s situation and that of V.M., the court pointed out that the Constitutional Court had not examined whether their respective claims to the allowance were legitimate, but simply whether the decision of the Ministry of the Interior had been valid, having regard to the assumption that administrative acts are valid.
On 13 December 2004 the applicant challenged this judgment on points of law and that appeal was still pending on 27 October 2005, the date of the Government’s submissions.
Section 110(1) states that members of the aforesaid Corps who apply to terminate their “relation of service” (služební poměr) or are dismissed for certain specific reasons are entitled to a service allowance.
Under section 110(3) the allowance is not payable to people who take up (new) functions in the armed forces.
Similar provisions concerning service allowances are to be found in the Laws regulating service in the Czech police (no. 186/1992) and regular members of the armed forces (no. 221/1999).
Under section 35(1) of this Law, members of the National Security Corps who occupied posts in the Federal Intelligence Service became members of the Federal Security Intelligence Service as of the day on which this Law came into force; on that same day the rights and obligations associated with their service were transferred from the Ministry of the Interior to the Federal Security Intelligence Service.
Section 35(2) stipulated that until laws were passed regulating the relation of service of the members of the Federal Security Intelligence Service, that relation was to be regulated by Law no. 100/1970.
Under section 9(1) the relation of service of members of the Federal Security Intelligence Service ended with the Service’s dissolution on 31 December 1992; the persons concerned were entitled to severance pay.
Under the terms of section 9(4) the rights and obligations arising out of the relation of service thus terminated which had not been assumed by the Federal Security Intelligence Service were transferred to the State.
Under section 129(1) the service allowance was payable to those members of said service who applied to terminate their service or were dismissed for certain specific reasons.
Under the terms of section 129(2) a person who immediately entered into a relation of service regulated by another law upon termination of his or her service under this Law was not entitled to the allowance.
Under section 130(1) the allowance was payable to members who had been in service for at least ten years, or had reached the age of 50 by the time they left.
Section 158 stipulated that when an employee of the Federal Ministry of the Interior took up service in accordance with this Law after previously occupying a post in the Bureau for the Protection of the Constitution and Democracy or the Federal Intelligence Service, or being a member of the Federal Security Intelligence Service, the service completed therein and the resulting rights were to be considered as being part of the service completed under this Law.
Under section 120(1) the service allowance is payable to members who served for at least ten years in the bodies mentioned in section 116. Section 116 stipulates that the periods served by members of the National Security Corps who occupied posts in the Bureau for the Protection of the Constitution and Democracy or the Federal Intelligence Service, and also the time served in the Federal Security Intelligence Service and the Security Intelligence Service of the Czech Republic are taken into account.
The applicant, V.M., was deprived of his service allowance by a decision of the Director of the SIS after receiving it for six years by virtue of a decision of the Social Security Department of the Ministry of the Interior.
The Constitutional Court held that his application was justified, considering that it was necessary to protect the applicant’s good faith and that the Social Security Department had the power to decide to whom the allowance should be awarded, that power having been transferred to it by the SIS in an agreement concluded between them (which had been in force from 1991 to 1995). The Constitutional Court accordingly set aside the disputed decisions of the Director of the SIS, considering that they had violated the applicant’s fundamental rights, as well as constitutional principles. While it did not have the authority to decide whether V.M. was entitled to the allowance, the Constitutional Court noted that when that matter was examined, the criteria specified in the Strasbourg Court’s judgment in Bucheň v. the Czech Republic (no. 36541/97, 26 November 2002) could not be ignored.