ITEMID: 001-103785
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DELVINA v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13+6-1;Violation of P1-1
JUDGES: Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano
TEXT: 6. The applicants were born in 1932, 1934 and 1942, respectively, and live in Albania.
7. In 1950 a plot of land measuring 1,600 sq. m., which belonged to the applicants' father, was confiscated without compensation by the State, which subsequently constructed a building on the plot of land.
8. On 1 July 1991 the Italian Embassy in Albania purchased two buildings in Tirana, one of which was situated on the applicants' inherited plot of land. The transaction was concluded through an inter-State agreement validated by means of note verbale exchanges between the two governments. The relevant property titles were not entered in the Tirana Property Register.
9. The Albanian Government subsequently used the income from the transaction to purchase the premises of the Albanian Embassy in Rome (see also Vrioni and Others v. Albania and Italy, nos. 35720/04 and 42832/06, §§ 7-16, 29 September 2009 for a similar description of facts).
10. Under the Property Restitution and Compensation Act, the applicants lodged an application with the Tirana Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”) claiming title to their father's property.
11. On 28 July 1999 the Commission recognised the applicants' father's property title over 1,600 sq. m. and acknowledged the fact that the plot of land was occupied by the Italian Embassy in Albania. Since buildings had been constructed on the land, the Commission ruled that their owner, the Italian Government, had to pay rent for the land or repurchase the land by agreement.
12. The applicants were also issued with a certificate of registration of property by the Registry Office: registration no. 137, dated 9 August 1999.
13. The applicants claimed that they sent letters to the Italian Embassy to enter into a lease or to sell the plot of land according to the Commission's decision. However, the Italian Embassy explained that the property had been transferred to them through the exchange of notes verbales in 1991.
14. The applicants filed an action on 16 January 2003 to recover the property and to obtain damages from the Italian authorities.
15. On 22 June 2004 the Tirana District Court quashed the Commission's decision as regards the physical return of the property to the applicants, since that plot of land had been lawfully occupied by the Italian Embassy since 1991. Instead, it ruled that the applicants should be compensated for 1,600 sq. m in one of the ways provided for by law. The Court of Appeal and the Supreme Court, by way of reasoned decisions, upheld the District Court's decision on 25 March 2005 and 6 June 2006, respectively. On 24 November 2006 the applicants lodged a constitutional complaint with the Constitutional Court.
16. On 8 December 2006 the Constitutional Court, sitting as a bench of three judges, declared the application inadmissible.
17. The relevant provisions of the Albanian Constitution read as follows:
Article 42 § 2
“In the protection of his constitutional and legal rights, freedoms and interests, or in the case of a criminal charge brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
Article 142 § 3
“State bodies shall comply with judicial decisions.”
Article 131
“The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
18. The relevant domestic law as regards property restitution and compensation in Albania has been described in the judgments of Gjonbocari and Others v. Albania, no. 10508/02, §§ 36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§ 36-43, 13 November 2007, Ramadhi and Others v. Albania, no. 38222/02, §§ 23-30, 13 November 2007.
19. New and substantial legislative measures have been enacted amending the principal 2004 Property Act since the adoption of those judgments. The principal amendments are as follows:
20. Section 3 extended until 31 December 2007 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of the amount of compensation, the time-limit for which was fixed for 2015.
21. Section 13 established the Agency for the Restitution and Compensation of Properties (“the central Agency”) which replaced the State Committee on the Restitution and Compensation of Properties (“the State Committee”). The central Agency, which was headed by a Director, had its seat in Tirana and was made up of twelve regional Agency offices.
22. According to section 14, the regional Agency office was responsible for the initial examination of applications for the recognition of property rights, in response to which it decided on the restitution of property and/or compensation in lieu thereof. Section 15 set the time-limit for the submission of applications for the recognition of property rights for 1 October 2007.
23. Section 16 stipulated that an appeal against a decision of the regional Agency office could be lodged with the central Agency. The decision of the central Agency could be appealed against to the Tirana District Court within thirty days of its notification.
24. Section 21 extended until 31 June 2008 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of compensation.
25. Section 22 provided for the establishment of the In-kind Compensation Fund (IkCF) alongside the Financial Compensation Fund (“FCF”). Within sixty days from the Act's entry into force, the Government had to approve the list of properties to be allocated to the IkCF.
26. Section 1 provided that the central Agency was responsible for examining claims for in-kind and financial compensation. The central Agency was also responsible for examining appeals against the decisions of regional Agency offices.
27. Section 2 reiterated that the regional Agency offices continued to be responsible for the initial examination of applications for the recognition of property rights. The claimant or the State Advocate's Office had the right to appeal against that decision within thirty days to the central Agency, which was the highest administrative body. Such an administrative decision was amenable to judicial review in accordance with the provisions of the Code of Civil Procedure.
28. Section 1 extended until 31 December 2008 the time-limit for the submission of applications for the recognition of property rights and the restitution of properties by the regional Agency offices. It also provided for the possibility for a claimant to be given a new time-limit by way of a court decision.
29. According to section 2, the completion of the examination of applications for the recognition of property rights and restitution of properties would be finalised on 30 June 2009, with the exception of the payment of the amount of compensation, the deadline for which was fixed for 2015.
30. Section 3 extended until 31 December 2008 the deadline for the allocation of properties to the IkCF.
31. Section 2 provided that in addition to the budgetary appropriations, the allocations obtained by virtue of this law and other donors, the FCF would also be made up of proceeds obtained through auctions of State properties' which had not been the subject of a Commission decision.
32. Section 6 abolished the regional Agency offices. It stated that the archives of those offices would be transferred to the central Agency. According to section 1, the central Agency would complete the examination of applications for recognition of property rights and restitution of properties lodged with the former regional Agency offices. The central Agency continued to examine appeals lodged with it against former regional Agency offices' decisions.
33. According to section 5, the claimant or the State Advocate's Office had the right to appeal against the central Agency's decision within thirty days of its notification to the Tirana District Court.
34. Section 7 set the deadline for the completion of the examination of applications for the recognition and restitution of properties for 31 December 2011.
35. The 2010 Property Act chiefly introduced the possibility of requesting a revision of decisions of former Commissions / regional Agency offices.
36. Section 4 extended until 31 December 2011 the deadline for the allocation of properties to the IkCF.
37. Pursuant to Article 23 of the 2004 Property Act which established the Financial Compensation Fund, the Government adopted the above-mentioned decisions, between 2005 and 2009, in respect of the award of financial compensation to former owners.
38. In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission's decisions. In 2006 financial compensation was awarded in respect of compensation claims arising out of the decisions of the Tirana and Kavaja Commissions. In 2007 the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued. In 2008 and 2009 all former owners, who were entitled to compensation, following a Commission / regional Agency's decision, were eligible to apply for financial compensation.
39. According to the CMDs adopted between 2005 and 2008, a claimant was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency's decision that recognised his right to compensation. Only those former owners who had not received previous compensation were entitled to financial compensation from 2005 to 2008. The 2009 CMD provided that a former owner was entitled to financial compensation on the condition that he had not benefited from: a) previous compensation; b) partial restoration/restitution of the property; c) the right to first refusal; d) the implementation of the Act on the Distribution of Land (Law no. 7501 of 19 July 1991).
40. Applications would be examined in chronological order on the basis of the Commission's / regional Agency's decision date and number. The amount of financial compensation, which was to be calculated on the basis of property valuation maps, was limited to a maximum of 200 sq. m.
41. The lodging of an application entailed the payment of a processing fee. Former owners who had been unsuccessful in their application for financial compensation in a preceding year could re-submit their application in the following year(s) once they had paid the processing fee.
42. None of those decisions provided for the award of compensation to holders claims arising out of a final, enforceable court decision.
43. By virtue of the above-mentioned decisions, two of which were adopted in 2007 and two in 2008, the Government approved and issued property valuation maps as listed above. The maps included the reference price per square metre throughout the country.
44. The first decision fixed the price of land for the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land for the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër. The fourth decision contained an updated price list for certain cities. According to that decision, the reference price per square metre for the area in which the applicants' property was located was valued at ALL 180,000.
45. The 2006 Property Act provided for the establishment of an In-kind Compensation Fund (“IkCF”). The Government would adopt the procedures for the allocation of properties covered by the IkCF.
46. By decision of 5 September 2007 the Government laid down the criteria and the procedures for the determination of State properties covered by the IkCF (CMD no. 567 of 5 September 2007). Section 1 lists the types of properties, for example: a) public immovable property which is located in tourist areas; b) properties of the Ministry of Defence which are not used by the armed forces and have been approved by the President of the Republic; c) available agricultural land belonging to the Ministry of Agriculture; d) forests, pastures and meadows; and e) property of State institutions which falls outside their intended activity.
47. The Agency and its regional offices are responsible for checking the legal status of each property as submitted by the respective State institution. The Agency submits the final list of immovable properties for inclusion in the IkCF to the Minister of Justice. The Government are to approve the list and publish it in the Official Journal.
48. To date, it would appear that no such list has yet been approved.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-104040
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 2011
DOCNAME: CASE OF LAUTSI AND OTHERS v. ITALY
IMPORTANCE: 1
CONCLUSION: No violation of P1-2
JUDGES: András Sajó;Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Giovanni Bonello;Guido Raimondi;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Mihai Poalelungi;Nicola Lettieri;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Rait Maruste;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva
TEXT: 10. The first applicant and her two sons, Dataico and Sami Albertin, also applicants, were born in 1957, 1988 and 1990 respectively. They are resident in Italy. In the school year 2001-2002 Dataico and Sami attended the Istituto comprensivo statale Vittorino da Feltre, a State school in Abano Terme. A crucifix was fixed to the wall in each of the school's classrooms.
11. On 22 April 2002, during a meeting of the school's governors, the first applicant's husband raised the question of the presence of religious symbols in the classrooms, particularly mentioning crucifixes, and asked whether they ought to be removed. On 27 May 2002, by ten votes to two with one abstention, the school's governors decided to keep religious symbols in classrooms.
12. On 23 July 2002 the first applicant contested that decision in the Veneto Administrative Court, complaining of an infringement of the principle of secularism, relying in that connection on Articles 3 (principle of equality) and 19 (religious freedom) of the Italian Constitution and Article 9 of the Convention, and on the principle of the impartiality of public administrative authorities (Article 97 of the Constitution).
13. On 3 October 2002 the Minister of Education, Universities and Research adopted Directive no. 2666, instructing the competent services of his Ministry to take the necessary measures to see to it that school governors ensured the presence of crucifixes in classrooms (see paragraph 24 below).
On 30 October 2003 the Minister joined the proceedings brought by the first applicant. He argued that her application was ill-founded since the presence of crucifixes in the classrooms of publicly run schools was based on Article 118 of royal decree no. 965 of 30 April 1924 (internal regulations of middle schools) and Article 119 of royal decree no. 1297 of 26 April 1928 (approval of the general regulations governing primary education; see paragraph 19 below).
14. By a decision of 14 January 2004 the Administrative Court referred to the Constitutional Court the question of the constitutionality, with regard to the principle of the secular character of the State and Articles 2, 3, 7, 8, 19 and 20 of the Constitution, of Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 (approving the single text bringing together the legislative provisions in force regarding education and schools), in their “specifications” resulting from Articles 118 and 119 of the above-mentioned royal decrees, and of Article 676 of the same legislative decree.
Articles 159 and 190 make municipalities responsible for purchasing and supplying the furniture of primary and middle schools. Article 119 of the 1928 decree specifies that each classroom must have a crucifix and Article 118 of the 1924 decree that each classroom must have a portrait of the king and a crucifix. Article 676 of legislative decree no. 297 stipulates that provisions not included in the single text remain in force, “with the exception of provisions contrary to or incompatible with the single text, which are repealed”.
By a decision of 15 December 2004 (no. 389), the Constitutional Court declared the question as to constitutionality manifestly inadmissible, on the ground that it was in reality directed towards texts which, not having the status of law, but only that of regulations (the above-mentioned Articles 118 and 119), could not form the subject of a review of constitutionality.
15. On 17 March 2005 the Administrative Court dismissed the application. After ruling that Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 were still in force and emphasising that “the principle of the secular nature of the State [was] now part of the legal heritage of Europe and the western democracies”, it held that the presence of crucifixes in State-school classrooms, regard being had to the meaning it should be understood to convey, did not offend against that principle. It took the view, in particular, that although the crucifix was undeniably a religious symbol, it was a symbol of Christianity in general rather than of Catholicism alone, so that it served as a point of reference for other creeds. It went on to say that the crucifix was a historical and cultural symbol, possessing on that account an “identity-linked value” for the Italian people, in that it “represent[ed] in a way the historical and cultural development characteristic of [Italy] and in general of the whole of Europe, and [was] a good synthesis of that development”. The Administrative Court further held that the crucifix should also be considered a symbol of a value system underpinning the Italian Constitution. It gave the following reasons:
“... 11.1. At this stage, the Court must observe, although it is aware that it is setting out along a rough and in places slippery path, that Christianity, and its older brother Judaism – at least since Moses and certainly in the Talmudic interpretation – have placed tolerance towards others and protection of human dignity at the centre of their faith.
Singularly, Christianity – for example through the well-known and often misunderstood “Render unto Caesar the things which are Caesar's, and unto ...” – through its strong emphasis placed on love for one's neighbour, and even more through the explicit predominance given to charity over faith itself, contains in substance those ideas of tolerance, equality and liberty which form the basis of the modern secular State, and of the Italian State in particular.
11.2 Looking beyond appearances makes it possible to discern a thread linking the Christian revolution of two thousand years ago to the affirmation in Europe of the right to liberty of the person and to the key elements in the Enlightenment (even though that movement, historically speaking, strongly opposed religion), namely the liberty and freedom of every person, the declaration of the rights of man, and ultimately the modern secular State. All the historic phenomena mentioned are based to a significant extent – though certainly not exclusively – on the Christian conception of the world. It has been observed – judiciously – that the rallying call “liberty, equality, fraternity” can easily be endorsed by a Christian, albeit with a clear emphasis on the third word.
In conclusion, it does not seem to be going too far to assert that, through the various twists and turns of European history, the secular nature of the modern State has been achieved at a high price, and was prompted in part, though of course not exclusively so, by a more or less conscious reference to the founding values of Christianity. That explains why in Europe and in Italy many jurists belonging to the Christian faith have featured among the strongest supporters of the secular State. ...
11.5 The link between Christianity and liberty implies a logical historical coherence which is not immediately obvious – like a river in a karst landscape which has only recently been explored, precisely because for most of its course it flows underground – partly because in the constantly changing relations between the States and Churches of Europe it is much easier to see the numerous attempts by the Churches to meddle in matters of State, and vice versa, just like the frequent occasions on which Christian ideals have been abandoned, though officially proclaimed, in the quest for power, or on which governments and religious authorities have clashed, sometimes violently.
11.6 Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.
11.7 By studying history carefully, from a suitable distance, not from up close, we can clearly perceive an affinity between (but not the identity of) the “hard core” of Christianity, which, placing charity above everything else, including faith, emphasises the acceptance of difference, and the “hard core” of the republican Constitution, which, in a spirit of solidarity, attaches value to the freedom of all, and therefore constitutes the legal guarantee of respect for others. The harmony remains, even though around those cores – both centred on human dignity – there have been numerous accretions of extraneous elements with the passage of time, some of them so thick as to obscure the core, particularly the core of Christianity. ...
11.9 It can therefore be contended that in the present-day social reality the crucifix should be regarded not only as a symbol of a historical and cultural development, and therefore of the identity of our people, but also as a symbol of a value system: liberty, equality, human dignity and religious toleration, and accordingly also of the secular nature of the State – principles which underpin our Constitution.
In other words, the constitutional principles of freedom have many roots, which undeniably include Christianity, in its very essence. It would therefore be something of a paradox to exclude a Christian sign from a public institution in the name of secularism, one of whose distant sources is precisely the Christian religion.
12.1 This court is admittedly not unaware of the fact that, in the past, other values have been attributed to the symbol of the crucifix, such as, at the time of the Albertine Statute, the sign of Catholicism understood as the State religion, and therefore used to Christianise and consolidate power and authority.
The court is well aware, moreover, that it is still possible today to give various interpretations of the sign of the cross, and above all a strictly religious meaning referring to Christianity in general and Catholicism in particular. It is also aware that some pupils attending State schools might freely and legitimately attribute to the cross values which are different again, such as the sign of an unacceptable preference for one religion in relation to others, or an infringement of individual freedom and accordingly of the secular nature of the State, or at the extreme limit a reference to temporal political control over a State religion, or the inquisition, or even a free catechism voucher tacitly distributed even to non-believers in an inappropriate place, or subliminal propaganda in favour of Christian creeds. Although all those points of view are respectable, they are ultimately irrelevant in the present case. ...
12.6 It must be emphasised that the symbol of the crucifix, thus understood, now possesses, through its references to the values of tolerance, a particular scope in consideration of the fact that at present Italian State schools are attended by numerous pupils from outside the European Union, to whom it is relatively important to transmit the principles of openness to diversity and the refusal of any form of fundamentalism – whether religious or secular – which permeate our system. Our era is marked by the ferment resulting from the meeting of different cultures with our own, and to prevent that meeting from turning into a collision it is indispensable to reaffirm our identity, even symbolically, especially as it is characterised precisely by the values of respect for the dignity of each human being and of universal solidarity. ...
13.2 In fact, religious symbols in general imply a logical exclusion mechanism, as the point of departure of any religious faith is precisely the belief in a superior entity, which is why its adherents, the faithful, see themselves by definition and by conviction as part of the truth. Consequently, and inevitably, the attitude of the believer, faced with someone who does not believe, and who is therefore implicitly opposed to the supreme being, is an attitude of exclusion. ...
13.3 The logical mechanism of exclusion of the unbeliever is inherent in any religious conviction, even if those concerned are not aware of it, the sole exception being Christianity – where it is properly understood, which of course has not always been and still is not always the case, not even thanks to those who call themselves Christian. In Christianity even the faith in an omniscient god is secondary in relation to charity, meaning respect for one's fellow human beings. It follows that the rejection of a non-Christian by a Christian implies a radical negation of Christianity itself, a substantive abjuration; but that is not true of other religious faiths, for which such an attitude amounts at most to the infringement of an important precept.
13.4 The cross, as the symbol of Christianity, can therefore not exclude anyone without denying itself; it even constitutes in a sense the universal sign of the acceptance of and respect for every human being as such, irrespective of any belief, religious or other, which he or she may hold. ...
14.1 It is hardly necessary to add that the sign of the cross in a classroom, when correctly understood, is not concerned with the freely held convictions of anyone, excludes no one and of course does not impose or prescribe anything, but merely implies, in the heart of the aims set for education and teaching in a publicly run school, a reflection – necessarily guided by the teaching staff – on Italian history and the common values of our society legally retranscribed in the Constitution, among which the secular nature of the State has pride of place. ...”
16. The first applicant appealed to the Consiglio di Stato (Supreme Administrative Court), which confirmed that the presence of crucifixes in State-school classrooms had its legal basis in Article 118 of the royal decree of 30 April 1924 and Article 119 of the royal decree of 26 April 1928 and, regard being had to the meaning that should be attached to it, was compatible with the principle of secularism. On that point it found in particular that in Italy the crucifix symbolised the religious origin of values (tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination) which characterised Italian civilisation. In that sense, when displayed in classrooms, the crucifix could fulfil – even in a “secular” perspective distinct from the religious perspective to which it specifically referred – a highly educational symbolic function, irrespective of the religion professed by the pupils. The Consiglio di Stato held that the crucifix had to be seen as a symbol capable of reflecting the remarkable sources of the above-mentioned values, the values which defined secularism in the State's present legal order.
In its judgment (no. 556) dated 13 April 2006 the Consiglio di Stato gave the following reasoning:
“... the Constitutional Court has accepted on a number of occasions that secularism is a supreme principle of our constitutional order, capable of resolving certain questions of constitutional legitimacy (among numerous judgments, see those which concern the provisions relating to the compulsory nature of religious teaching in school or the jurisdiction of the courts over cases concerning the validity of marriages contracted according to canon law and recorded in the registers of marriages).
This is a principle which is not proclaimed in express terms in our Constitution, a principle which is rich with ideological resonances and has a history full of controversy, but one nevertheless which has a legal importance that can be deduced from the fundamental norms of our system. In reality the Court derives this principle specifically from Articles 2, 3, 7, 8, 19 and 20 of the Constitution.
The principle uses a linguistic symbol (“secularism”) which indicates in abridged form certain significant aspects of the above-mentioned provisions, the content of which established the operating conditions under which this symbol should be understood and function. If these specific operating conditions had not been established, the principle of “secularism” would remain confined to ideological conflicts and could be used only with difficulty in a legal framework.
In that framework, the operating conditions are of course determined by reference to the cultural traditions and the customs of each people, in so far as these traditions and customs are reflected in the legal order, and this differs from one nation to another. ...
In the context of this court and the problem placed before it, namely the legitimacy of displaying the crucifix in classrooms, on the part of the competent authorities acting pursuant to the regulations, what has to be done in practice is the simpler task of verifying whether that requirement does or does not infringe the content of the fundamental norms of our constitutional order, that give form and substance to the principle of “secularism” which now characterises the Italian State and to which the Constitutional Court has referred on a number of occasions.
Quite clearly, the crucifix is in itself a symbol that may have various meanings and serve various purposes, above all for the place in which it has been displayed.
In a place of worship the crucifix is properly and exclusively a “religious symbol”, since it is intended to foster respectful adherence to the founder of the Christian religion.
In a non-religious context like a school, used for the education of young people, the crucifix may still convey the above-mentioned values to believers, but for them and for non-believers its display is justified and possesses a non-discriminatory meaning from the religious point of view if it is capable of representing and evoking synthetically and in an immediately perceptible and foreseeable manner (like any symbol) values which are important for civil society, in particular the values which underpin and inspire our constitutional order, the foundation of our civil life. In that sense the crucifix can perform – even in a “secular” perspective distinct from the religious perspective specific to it – a highly educational symbolic function, irrespective of the religion professed by the pupils.
Now it is obvious that in Italy the crucifix is capable of expressing, symbolically of course, but appropriately, the religious origin of those values – tolerance, mutual respect, valorisation of the person, affirmation of one's rights, consideration for one's freedom, the autonomy of one's moral conscience vis-à-vis authority, human solidarity and the refusal of any form of discrimination – which characterise Italian civilisation.
Those values, which have pervaded traditions, a way of life, the culture of the Italian people, form the basis for and spring from the fundamental norms of our founding charter – contained in the “Fundamental Principles” and the first part – and especially from those which the Constitutional Court referred to and which delimit the form of secularism appropriate to the Italian State.
The reference, via the crucifix, to the religious origin of these values and their full and complete correspondence with Christian teachings accordingly makes plain the transcendent sources of the values concerned, without calling into question, rather indeed confirming the autonomy of the temporal power vis-à-vis the spiritual power (but not their opposition, implicit in an ideological interpretation of secularism which has no equivalent in the Constitution), and without taking anything away from their particular “secular” nature, adapted to the cultural context specific to the fundamental order of the Italian State and manifested by it. Those values are therefore experienced in civil society autonomously (and not contradictorily) in relation to religious society, so that they may be endorsed “secularly” by all, irrespective of adhesion to the creed which inspired and defended them.
As with any symbol, one can impose on or attribute to the crucifix various contrasting meanings; one can even deny its symbolic value and make it a simple trinket having artistic value at the most. However, a crucifix displayed in a classroom cannot be considered a trinket, a decorative feature, nor as an adjunct to worship. Rather, it should be seen as a symbol capable of reflecting the remarkable sources of the civil values referred to above, values which define secularism in the State's present legal order. ...”
17. The obligation to hang crucifixes in primary school classrooms was laid down in Article 140 of royal decree no. 4336 of 15 September 1860 of the Kingdom of Piedmont-Sardinia, promulgated in accordance with Law no. 3725 of 13 November 1859, which provided: “each school must without fail be equipped with ... a crucifix” (Article 140).
In 1861, the year which saw the birth of the Italian State, the 1848 Statute of the Kingdom of Piedmont-Sardinia became the Constitution of the Kingdom of Italy; it provided in particular: “the Roman Catholic Apostolic religion shall be the only religion of the State [and] other existing creeds shall be tolerated in conformity with the law”.
18. The capture of Rome by the Italian army on 20 September 1870, following which the city was annexed and proclaimed capital of the new Kingdom of Italy, caused a crisis in relations between the State and the Catholic Church. By Law no. 214 of 13 May 1871 the Italian State unilaterally regulated relations with the Church, granting the Pope a number of privileges for the orderly conduct of religious activity. According to the applicants, the display of crucifixes in schools fell little by little into disuse.
19. During the fascist period the State took a series of measures aimed at ensuring compliance with the obligation to display the crucifix in classrooms.
For instance, on 22 November 1922 the Ministry of Education sent out a circular (no. 68) with the following wording: “... in the last few years in many of the Kingdom's primary schools the image of Christ and the portrait of the King have been removed. That is a manifest and intolerable breach of the regulations and especially an attack on the dominant religion of the State and the unity of the Nation. We therefore order all municipal administrative authorities in the Kingdom to restore, to those schools which lack them, the two sacred symbols of the faith and the consciousness of nationhood.”
On 30 April 1924 royal decree no. 965 of 30 April 1924 was adopted. This decree laid down the internal regulations governing middle schools (ordinamento interno delle giunte e dei regi istituti di istruzione media). Article 118 provided:
“Each school must have the national flag and each classroom must have a crucifix and a portrait of the King”.
Article 119 of royal decree no. 1297 of 26 April 1928, approving the general regulations governing the provision of primary education (approvazione del regolamento generale sui servizi dell'istruzione elementare), provides that the crucifix must form part of the “necessary equipment and supplies in school classrooms”.
20. The Lateran Pacts, signed on 11 February 1929, marked the “Conciliation” of the Italian State and the Catholic Church. Catholicism was confirmed as Italy's official religion, Article 1 of the Conciliation Treaty being worded as follows:
“Italy recognizes and reaffirms the principle established in the first Article of the Italian Constitution dated March 4 1848, according to which the Roman Catholic Apostolic religion is the only State religion.”
21. In 1948 Italy adopted its republican Constitution, Article 7 of which provides: “The State and the Catholic Church, each in its own order, shall be independent and sovereign ... their relations shall be regulated by the Lateran Pacts [and] amendments to the Pacts accepted by both parties shall not require proceedings to revise the Constitution.” Article 8 provides: “All religious creeds shall be equally free before the law ... religious creeds other than Catholicism shall have the right to organise in accordance with their own statutes, in so far as these are not incompatible with the Italian legal order [and] their relations with the State shall be determined by the law on the basis of agreements with their respective representatives”.
22. The Protocol to the new concordat, of 18 February 1984, ratified by Law no. 121 of 25 March 1985, states that the principle laid down in the Lateran Pacts, that the Catholic religion is the only State religion, is no longer in force.
23. In a judgment of 12 April 1989 (no. 203), rendered in a case which raised the question of the non-compulsory nature of Catholic religious instruction in State schools, the Constitutional Court held that the principle of secularism was derived from the Constitution, ruling that it implied not that the State should be indifferent to religions but that it should guarantee the protection of the freedom of religion in a context of confessional and cultural pluralism.
Dealing in the present case with an application concerning the conformity of the presence of crucifixes in State-school classrooms with the principle of secularism, the Constitutional Court ruled that it did not have jurisdiction, since the texts which required the presence of the crucifix were only regulations (decision of 15 December 2004, no. 389; see paragraph 14 above). When called upon to examine this question, the Consiglio di Stato held that, regard being had to the meaning that should be attached to it, the presence of the crucifix in State-school classrooms was compatible with the principle of secularism (judgment of 13 February 2006, no. 556; see paragraph 16 above).
In a different case, the Court of Cassation had taken the contrary view to that of the Consiglio di Stato in the context of a prosecution for refusing to serve as a scrutineer in a polling station on the ground that a crucifix was displayed there. In its judgment of 1 March 2000 (no. 439), it held that the presence of the crucifix infringed the principles of secularism and the impartiality of the State, and the principle of the freedom of conscience of those who did not accept any allegiance to that symbol. It expressly rejected the argument that displaying the crucifix was justified in that it was the symbol of “an entire civilisation or the collective ethical conscience” and – here the Court of Cassation cited the terms used by the Consiglio di Stato in an opinion of 27 April 1988 (no. 63) – also symbolised “a universal value independent of any specific religious creed”.
24. On 3 October 2002 the Minister of Education, Universities and Research issued the following instruction (no. 2666):
“... The Minister
... Considering that the presence of crucifixes in classrooms is founded on the provisions in force, that it offends neither against religious pluralism nor against the objectives of multicultural education of Italian schools and that it cannot be considered a limitation of the freedom of conscience guaranteed by the Constitution, since it does not refer to a specific creed but constitutes only an expression of Christian civilisation and culture, and that it therefore forms part of the universal heritage of mankind;
Having assessed, with respect for different allegiances, convictions and beliefs, the desirability of requiring all schools, within the limits of their own autonomy and by decision of their competent collegiate organs, to set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish;
Issues the following instruction:
The Ministry's competent service ... shall take the necessary measures to see to it that:
1) school governors ensure the presence of crucifixes in classrooms;
2) all schools, within the limits of their own autonomy, and by decision of the members of their collegiate organs, set aside part of their premises to be used, without any obligation and without any fixed hours being appointed, for contemplation and meditation by those members of the school community who so wish ...”.
25. Articles 19, 33 and 34 of the Constitution are worded as follows:
“Everyone is entitled to freely profess their religious beliefs in any form, individually or with others, and to promote them and celebrate rites in public or in private, provided that they are not offensive to public morality.”
“The Republic guarantees the freedom of the arts and sciences, which may be freely taught.
The Republic lays down general rules for education and establishes State schools of all branches and grades. ...”
“Schools are open to everyone.
Elementary education, given for at least eight years, is compulsory and free. ...”
26. In the great majority of member States of the Council of Europe the question of the presence of religious symbols in State schools is not governed by any specific regulations.
27. The presence of religious symbols in State schools is expressly forbidden only in a small number of member States: the former Yugoslav Republic of Macedonia, France (except in Alsace and the département of Moselle) and Georgia.
It is only expressly prescribed – in addition to Italy – in a few member States, namely: Austria, certain administrative regions of Germany (Länder) and Switzerland (communes), and Poland. Nevertheless, such symbols are found in the State schools of some member States where the question is not specifically regulated, such as Spain, Greece, Ireland, Malta, San Marino and Romania.
28. The question has been brought before the supreme courts of a number of member States.
In Switzerland the Federal Court has held a communal ordinance prescribing the presence of crucifixes in primary school classrooms to be incompatible with the requirements of confessional neutrality enshrined in the Federal Constitution, but without criticising such a presence in other parts of the school premises (26 September 1990; ATF 116 1a 252).
In Germany the Federal Constitutional Court has ruled that a similar Bavarian ordinance was contrary to the principle of the State's neutrality and difficult to reconcile with the freedom of religion of children who were not Catholics (16 May 1995; BVerfGE 93,1). The Bavarian parliament then issued a new ordinance maintaining the previous measure, but enabling parents to cite their religious or secular convictions in challenging the presence of crucifixes in the classrooms attended by their children and introducing a mechanism whereby, if necessary, a compromise or a personalised solution could be reached.
In Poland the Ombudsman referred to the Constitutional Court an ordinance of 14 April 1992 issued by the Minister of Education prescribing in particular the possibility of displaying crucifixes in State-school classrooms. The Constitutional Court ruled that the measure was compatible with the freedom of conscience and religion and the principle of the separation of Church and State guaranteed by Article 82 of the Constitution, given that it did not make such display compulsory (20 April 1993; no. U 12/32).
In Romania the Supreme Court set aside a decision of the National Council for the Prevention of Discrimination of 21 November 2006 recommending to the Ministry of Education that it should regulate the question of the presence of religious symbols in publicly run educational establishments and, in particular, authorise the display of such symbols only during religious studies lessons or in rooms used for religious instruction. The Supreme Court held in particular that the decision to display such symbols in educational establishments should be a matter for the community formed by teachers, pupils and pupils' parents (11 June 2008; no. 2393).
In Spain the High Court of Justice of Castile and Leon, ruling in a case brought by an association militating in favour of secular schooling which had unsuccessfully requested the removal of religious symbols from schools, held that the schools concerned should remove them if they received an explicit request from the parents of a pupil (14 December 2009; no. 3250).


ITEMID: 001-22102
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: GIOACCHINI v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mrs Annamaria Gioacchini, is an Italian national, who was born in 1953 and lives in Ancona. She is represented before the Court by Mr E. Salvatore, a lawyer practising in Ancona.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant applied to the Mayor of Ancona for a farmhouse building permit on 3 December 1993.
The City Planning Commission rejected the request on 9 March 1994 because a modification of the city plan forbade new buildings in the areas in question.
On 13 May 1994 the applicant lodged an appeal against this decision with the Marche Regional Administrative Court, asking for it to be quashed and for a declaration of her right to obtain the building permit. She alleged that the decision of the City Planning Commission was unlawful because, before the approval of the modification of the city plan by the City Council, she had made written submissions to obtain a building permit in those areas which had been considered by the City Council to fall within the modified city plan.
On 28 July 1995 the Marche Regional Administrative Court quashed the decision of the City Planning Commission on the basis of the reasons stated by the applicant, but rejected the request to declare that she had a right to obtain the building permit.
The applicant sent a copy of the judgment to the Ancona City Council on 12 October 1995. No appeal was lodged by the Ancona City Council and the judgment became final on 11 December 1995.
In the meantime, on 7 November 1994, the City Council had approved new modifications of the city plan in relation to the areas in question.
On the basis of the judgment of the Marche Regional Administrative Court, the applicant asked the Ancona City Council for a building permit, but the City Council did not reply.
In relation to the delays in complying with the decision of the Marche Regional Administrative Court, on 23 February 1996 the applicant filed enforcement proceedings (ricorso per l’ottemperanza) with the same Administrative Court for enforcement of the judgment of 28 July 1995. The applicant requested the Administrative Court to find that the first judgment had not been enforced and to appoint a special commissioner (commissario ad acta) to enforce it.
On 18 October 1996 the Marche Regional Administrative Court admitted the claim and ordered the Ancona City Council to comply fully with the judgment of 28 July 1995 within 60 days from the communication of the decision. The Court also appointed a special commissioner who was to intervene if, upon expiry of the 60-day period, the Ancona City Council had not granted the permit. The commissioner was empowered to take the necessary measures to ensure compliance with the decision within 60 days. The Marche Regional Administrative Court held that the further modifications approved by the City Council on 7 November 1994 were not an obstacle to granting the building permit because the administrative proceedings for their approval had not ended when the judgment of the Marche Regional Administrative Court of 28 July 1995 became final.
The Ancona City Council lodged an appeal against the judgment of 18 October 1996 of the Marche Regional Administrative Court before the Consiglio di Stato, asking for it to be quashed.
On 14 November 1997 the Consiglio di Stato granted the appeal and rejected the application for enforcement. The Consiglio di Stato alleged that the new modifications to the city plan approved on 7 November 1994 were an obstacle to granting the building permit, even if the administrative proceedings for approval had not ended when the judgment of 28 July 1995 of the Regional Administrative Court had become final.


ITEMID: 001-80125
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LAAKSONEN v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (fair hearing);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1949 and lives in Riihimäki.
6. The applicant was the Administrative Director and a deputy board member in a company initially called ICC, later Cedro Oy (henceforward ICC/Cedro Oy). It bought, sold and rented out computers. It was declared bankrupt on 30 December 1992.
7. In the District Court, the public prosecutor charged the applicant with inter alia debtor dishonesty on the grounds that he allegedly had participated, while the company was already in serious financial difficulty, in arranging for the company to be bought essentially with its own money by another company. It was alleged that the applicant put together this plan with two other persons, R. and K., one of whom owned the purchasing company, and that the purpose of the purchase, which made no commercial sense, was to divert money away from the debtors of ICC/Cedro Oy. The indictment concerning count 9 read:
“On 24 July 1992 Cedro Oy's bank account contained 815,000 Finnish marks [FIM]. Before, the balance was FIM 135,655. For the return sale and the onward sale of the information technology equipment and the leases mentioned in count five, CPT IS Oy credited Cedro Oy's account with FIM 650,000.
According to a mutual agreement between [R., the applicant and K.], [K.], on behalf of Sipoon Finanssi Oy, immediately after CPT IS Oy had sold the worthless Cedro Oy shares for FIM 580,000 to Sipoon Finanssi Oy, owned by [K.], withdrew money from Cedro Oy's bank account leaving FIM 655.
The sale by CPT IS Oy of the Cedro Oy shares to Sipoon Finanssi Oy was actually financed by funds belonging to Cedro Oy itself. [K.], on behalf of Cedro Oy, lent FIM 580,000 to the insolvent Sipoon Finanssi Oy ... . Those moneys were used in order to pay for the Cedro Oy shares.
The transfer in the bookkeeping accounts of the information technology equipment ... from Cedro Oy back to CPT IS Oy was a condition for the purchase of the Cedro Oy shares. Accordingly, on 24 July 1992, by the joint measures of [R., the applicant and K.], FIM 815,000 was withdrawn to the detriment of Cedro Oy's debtors leaving a balance in the account of FIM 655. Of that amount, FIM 580,000 was withdrawn to the benefit of CPT IS Oy and the remaining over FIM 230,000 to the benefit of [K.]. This took place in accordance with an agreement made by him, [R.] and [the applicant.] There were no acceptable reasons for the withdrawals.
The mutual understanding between [the three men] had risen before and in connection with the purchase.”
8. On 27 March 1997, while convicting the applicant of two counts of an accounting offence and sentencing him to a suspended term of four months' imprisonment, the District Court rejected the charge of debtor dishonesty on count 9, on the grounds that it had not been shown that there had existed an agreed plan or that the applicant had been aware of the origin of the money used for the purchase. K., who in the pre-trial investigation had testified that there had been such a plan, had retracted his statement in the District Court.
9. The prosecutor appealed, charging the applicant again with debtor dishonesty. There was an oral hearing, in which however count no. 9 was not addressed.
10. On 22 June 1999, the Court of Appeal of its own motion convicted the applicant of aiding and abetting debtor dishonesty and imposed on him a suspended term of a total of ten months' imprisonment.
11. It found that it was undisputed that R. had been the chairman of ICC/Cedro Oy's board of directors and the applicant a deputy board member, authorised to act on behalf of the company and the administrative director until 24 July 1992, when K. had become a board member. R. who on behalf of CPT IS Oy signed the documents relating to the sale of the ICC/Cedro Oy shares was a board member in the first-mentioned company, of which the applicant was also a board member. It was further undisputed that K. stated in the pre-trial investigation that during the negotiations with the applicant it had become apparent to him that it would be his job to close down the companies in question. On 24 July 1992 CPT IS Oy bought back the information technology equipment (which it had sold earlier). As a result, ICC/Cedro Oy's bank account contained a balance of FIM 815,000 on that day. Following this, K. withdrew the said FIM 815,000 from the account. Of that amount, Sipoon Finanssi Oy borrowed FIM 580,000 without surety. It never repaid the loan (the Court of Appeal's judgment pages 22-23).
12. Contrary to the District Court, the Court of Appeal held that it had been clearly shown that the applicant, given his position in the company at the time of the offence under count 9, his training and experience, and the fact that he had taken an active part in the transactions, had known about the financial difficulties in spring 1992 at the latest (page 12). Further, it had been clearly shown, having regard to the pre-trial statements of R., K. and the applicant and other evidence, that the three of them had planned the transaction together. However, the applicant did not, in the Court of Appeal's view, hold a significant enough position of power in ICC/Cedro Oy to be convicted as a principal offender. As he had furthered the act of R. and K., he was guilty of having aided and abetted that act.
13. On 31 January 2001, the Supreme Court refused the applicant leave to appeal. On 28 September 2001 it rejected his extraordinary appeal.
14. Chapter 5, Article 3(1), of the Penal Code, in force at the relevant time, provided that a person who, during or before the commission of an offence by someone else, intentionally furthers the act through advice, action or exhortation, shall be convicted of aiding and abetting the principal offence. The sentence imposed on the person who aids and abets shall be reduced to three quarters of the maximum penalty prescribed for the principal offence.
15. The present case was commenced and therefore also concluded under the then provisions on criminal procedure in the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken). The rule according to which an accused might not be convicted of an offence other than the one with which he or she had been charged was not included in the legislation until the coming into force on 1 October 1997 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lagen om rättegång i brottmål; Act no. 689/1997). The rule was however established through case-law and it was codified upon the enactment of the new Act.
16. Chapter 11, section 3, of the Criminal Procedure Act provides that the court may only pass a sentence for an act for which a punishment has been requested. The court is not bound by the heading or the reference to the applicable provision in the indictment. The court is however bound by the conduct described in the indictment. The prosecutor is under an obligation to define the alleged offence and the accused must be provided with an opportunity to defend himself or herself within the limits of the indictment.
17. Chapter 26, Article 7, of the Code of Judicial Procedure in force at the relevant time (Act no. 661/1978) required the Court of Appeal to hold an oral hearing when it was needed. An oral hearing could be limited to only a part of the appeal. Article 8 provided that the Court of Appeal could not, on the basis of a reassessment of evidence, change the District Court's judgment in respect of a charge without holding an oral hearing unless the sentence was only a fine or the oral hearing was, particularly in view of the legal protection of the defendant, manifestly unnecessary.
According to a Supreme Court's precedent (Year Book 1980 II 80) on the application of Chapter 26, Article 8, the Court of Appeal should not have altered the District Court's acquittal following a reassessment of the evidence without holding an oral hearing, as a hearing was not to be considered clearly unnecessary, having regard in particular to the fact that the defendant had contested the charge. The Court of Appeal had imposed a term of imprisonment on the accused.
18. According to the terms of the reservation made by Finland in accordance with Article 64 of the Convention, as in force at the relevant time, Finland could not guarantee a right to an oral hearing insofar as Finnish laws at the time of the events in issue did not provide such a right. This applied, inter alia, to proceedings which were held before the Court of Appeal.
Chapter 30, section 3 (Act no. 104/1979), of the Code of Judicial Procedure reads in relevant part:
“Leave to appeal may be granted only if it is important to bring the case before the Supreme Court for a decision with regard to the application of the law in other, similar cases or because of the uniformity of legal practice; if there is a special reason for this because of a procedural or other error that has been made in the case on the basis of which the judgment is to be reversed or annulled; or if there is another important reason for granting leave to appeal.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-118599
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF VUKADINOVIČ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
TEXT: 4. The applicant was born in 1955 and lives in Ljubljana.
5. On 6 August 1998 the applicant instituted a labour dispute before the Ljubljana Labour and Social Court seeking the annulment of the decisions of 9 June 1998 and 23 July 1998 whereby her contract had been terminated due to her unauthorised absence from work.
6. On 16 February 2000 the first-instance court delivered a judgment rejecting her request. She appealed.
7. On 20 June 2003 the Higher Labour and Social Court upheld the appeal and remitted the case for re-examination. The appeal court found that the facts had not been properly established and that as a consequence the application of the law was also questionable.
8. On 29 January 2004 the first-instance court rejected the applicant’s claim. She appealed.
9. On 26 May 2006 the appeal was rejected. The applicant lodged an appeal on points of law.
10. On 11 March 2008 the Supreme Court rejected the appeal. The applicant lodged a constitutional appeal.
11. On 11 November 2008 the Constitutional Court rejected the appeal.
12. On 5 April 1995 the applicant instituted proceedings before the Ljubljana Labour and Social Court seeking payment of benefits.
13. On 9 June 2003 the first-instance court delivered a judgment upholding her request in part. An appeal was lodged.
14. On 2 September 2004 the Ljubljana Higher Labour and Social Court remitted the case for re-examination.
15. On 12 April 2006 the first-instance court rendered a judgment. An appeal was lodged.
16. On 14 February 2007 the appeal was rejected and on 15 December 2008 the appeal on points of law was rejected. The applicant lodged a constitutional appeal
17. On 17 November 2009 the Constitutional Court rejected the appeal as being lodged out of time.
18. For relevant domestic law see Tomažič v. Slovenia (no. 38350/02,
13 December 2007).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80575
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MUTTILAINEN v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Not necessary to examine Art. 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicant was born in 1971 and lives in Kylänpää.
7. On 14 June 1998 the applicant and T.A. were arrested by police officers M.H. and S.H. in the act of committing a theft. The applicant had a hammer in his hand at the time of arrest. Later he was charged with attempted theft and violent resistance to a public official (virkamiehen väkivaltainen vastustaminen, våldsamt motstånd mot tjänsteman).
8. At the trial hearing before the Helsinki District Court (käräjäoikeus, tingsrätten) the applicant admitted the attempted theft but denied the charge of violent resistance to a public official. Both the applicant and police officer M.H. were heard. M.H. testified, inter alia, that the applicant had threatened him and his colleague S.H. with a hammer by waving it above his head when the police officers had interrupted the attempted theft. The applicant, for his part, said that he had seen the police arrive and that he had raised the hammer above his head while leaving the building, before the police officers had ordered him to drop it. He denied any intention to threaten the police officers. T.A. testified that the applicant had tried to escape. S.H. was not heard as a witness.
9. On 11 September 2000 the District Court convicted the applicant of attempted theft and violent resistance to a public official, finding M.H.’s statement reliable. The applicant was sentenced to an aggregate punishment of six months’ imprisonment.
10. On 11 October 2000 the applicant appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten) requesting an oral hearing in which he, T.A., M.H. and S.H. should be heard in order to clarify his behaviour outside the building where he was arrested and the alleged threatening of the police officers. He did not specify why S.H. in particular should be called as a witness.
11. On 28 June 2001 the Court of Appeal upheld the conviction, reducing the sentence to three months’ imprisonment. It found an oral hearing manifestly unnecessary, holding that the applicant’s account before the District Court - which he had not contested - and his writ of appeal indisputably proved that he had seen the police officers outside the building. He had then left the building with a hammer raised in the air and had taken some steps towards the police officers. His intention had been to escape. Having seen one of the police officers draw a handgun, he obeyed their orders to drop the hammer when approximately five to six metres away from them. The Court of Appeal held that the question whether the applicant had violently resisted a public official could be reliably resolved on the basis of these undisputed facts without hearing witnesses.
As to the merits, it ruled that “the applicant must have understood that he had threatened the police officer with violence by, as he had stated himself, stepping towards him with a hammer in the air. The intention to escape mentioned by the applicant proves that he also intended to threaten the police officer with violence in order to escape from the scene of the crime.”
12. On 27 August 2001 the applicant sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). He claimed that according to the domestic legislation (Chapter 26, sections 14 and 15 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), see paragraphs 14 and 15 below) the Court of Appeal should have held an oral hearing and heard the witnesses. He stressed that the matter turned on the credibility of the oral evidence.
13. On 22 March 2002 the Supreme Court, by a majority, refused the applicant leave to appeal.
14. Chapter 26, section 14 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken; Act no. 165/1998) provides that the Court of Appeal shall hold an oral hearing if the defendant in a criminal case so requests. An oral hearing may however be dispensed with if the appeal is manifestly ill-founded or if a hearing would be manifestly unnecessary for another reason.
15. Under Chapter 26, section 15 of the Code, the Court of Appeal shall hold an oral hearing regardless of whether one has been requested, if the decision on the matter turns on the credibility of the testimony admitted in the District Court or on new testimony to be admitted in the Court of Appeal. In that event, the evidence admitted in the District Court shall be readmitted at the hearing before the Court of Appeal unless there is an impediment to doing so.
16. Under Chapter 17, section 7 of the said Code (Act no. 571/1948) if a piece of evidence that a party wishes to adduce pertains to a fact that is not material to the case or has already been proved, or if the fact can be proved in another manner with considerably less inconvenience or cost, the court may decide not to admit this piece of evidence.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60721
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF PIECHOTA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 9. The applicant was born in 1934 and lives in Katowice, Poland.
10. On 13 November 1981 the Katowice District Court (Sąd Rejonowy) declared the applicant the sole heir of his mother’s estate. Consequently, he became a co-owner of an apartment building situated in Katowice. The building was owned in equal parts by the applicant and his brother, Mr M. P., who had inherited his share of the property from their father in 1973. It consisted of two separate apartments, a staircase and several rooms situated in the basement and in the attic.
11. On 10 January 1983 Mr M.P. instituted non-contentious proceedings (postępowanie nieprocesowe) before the Katowice District Court in which he sought a ruling on how the property should be used by the co-owners.
12. The Government averred that the proceedings were stayed between 1 March and 11 November 1983 because the parties had failed to make a downpayment to cover expert fees. The applicant claimed that he had made the required payment on time.
13. The Government submitted that before 1 May 1993 the trial court had held fifteen hearings and that the applicant had failed to attend six of them. The applicant contested that submission.
14. Before 1 May 1993 the presiding judge on two occasions inspected the property.
15. Between 17 August and 7 December 1993 the trial court held five hearings. The Government submitted that the applicant had failed to attend three of them and that one of these absences had not been justified. The applicant claimed that he had attended all five hearings.
16. During the hearing held on 11 January 1994 the trial court dismissed two requests concerning evidence submitted by the applicant. It also suggested a friendly settlement to the parties, but to no avail.
17. On 25 January 1994 the Katowice District Court decided that the applicant should have exclusive access to a room situated in the attic and that he should share a garden with his brother. Both parties appealed to the Katowice Regional Court (Sąd Wojewódzki) against that decision.
18. On 25 October 1994 the Regional Court held the first hearing, which was adjourned because of the applicant’s absence. The applicant submitted that he had not attended the hearing because he had not been served with the summons.
19. On 24 November 1994 the Katowice Regional Court quashed the judgment of the District Court except for a part concerning the division of the garden and remitted the case to the first-instance court. The Regional Court considered that the decision to award the applicant exclusive access to a room situated in the attic could lead to further conflicts between the parties. It also pointed out that on several occasions the applicant had changed his claims and that the District Court had failed to take into account certain proposals submitted by the plaintiff in the first-instance proceedings.
20. On 28 January 1995 Mr M. P. died and was replaced as a party to the proceedings by his widow, Mrs K. P. and his son, Mr L. P. During the hearing held on 14 March 1995 the District Court stayed the proceedings to allow them to obtain a declaration of heirs. The proceedings were resumed on 21 August 1995.
21. The next hearing was held on 19 October 1995. On 13 November 1995 the judge visited the property.
22. The Government submitted that during the hearing held on 19 March 1996 the applicant had asked the court to take evidence from two expert witnesses. The applicant disputed that submission.
23. Between 1 August and 28 November 1996 the District Court held four hearings. The Government submitted that the applicant had failed to attend the first of these hearings. The applicant disagreed with that submission.
24. During the hearing held on 4 March 1997 the court allowed the applicant’s request and appointed an expert witness. On 23 December 1997 the witness submitted his report. The Government submitted that a delay in taking evidence from the expert witness resulted from the trial court’s “unsuccessful attempts to find an expert who was able to prepare the opinion”.
25. On 10 March and 7 May 1998 the District Court held hearings.
26. On 27 May 1998 the presiding judge and the parties visited the property. The applicant refused to sign the record of the survey because he considered that it was not objective.
27. The next hearing was held on 16 June 1998. The applicant was absent for health reasons.
28. On 19 August 1998 the applicant challenged the presiding judge. On 24 August 1998 the challenge was dismissed by the District Court but the applicant appealed to the Katowice Regional Court.
29. On 25 August 1998 the District Court held a hearing. The Government submitted that it had been adjourned since the applicant had failed to attend it and his challenge to the judge had not been decided. The applicant claimed that he had not received the summons for that hearing.
30. On 14 October 1998 the Katowice Regional Court dismissed as manifestly ill-founded the applicant’s appeal against the District Court’s decision of 24 August 1998.
31. On 16 December 1998 the applicant filed with the Katowice District Court a written statement in which he complained about a delay in the proceedings and submitted several requests concerning evidence.
32. On 17 December 1998 and 25 February 1999 the District Court held hearings.
33. On 5 March 1999 the President of the Katowice Regional Court responded to the applicant’s complaint of 5 January 1999 about the excessive length of the proceedings in his case. He pointed out that the case involved both legal and factual complexity and that both parties had changed their claims on many occasions. Furthermore, he noted that fifteen hearings had taken place since 24 November 1994. The inspection of the property on 27 May 1998 had been necessary since a new judge had taken over the case and in order to establish the actual condition of the house. The President concluded that in those circumstances the court could not be blamed for the lack of activity in the case.
34. On 11 March 1999 the Katowice District Court decided that rooms situated in the attic should be used exclusively by the plaintiffs, whereas a room in the basement should be shared with the applicant. Both parties appealed to the Katowice Regional Court.
35. On 16 June 1999 the Katowice Regional Court dismissed the applicant’s appeal against the District Court’s decision rejecting as lodged out of time his request to supplement the judgment (wniosek o uzupełnienie wyroku).
36. On 7 July 1999 the Katowice Regional Court dismissed the applicant’s appeal. The court pointed out that the applicant contributed to a delay in the proceedings by submitting and changing numerous requests and appeals and refusing to settle the case.
37. On 6 September 1999 the applicant filed a cassation appeal but it was rejected by the Katowice Regional Court on 29 September 1999.
38. On 11 October 1999 the applicant lodged with the Supreme Court an appeal against the Regional Court’s decision rejecting his cassation appeal. On 2 February 2000 the Supreme Court dismissed his appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1