ITEMID: 001-67420
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF APICELLA v. ITALY
IMPORTANCE: 4
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1962 and lives in Pesco Sannita (Benevento).
5. On 17 January 1992 the applicant brought proceedings in the Benevento Magistrate's Court, sitting as an employment tribunal, seeking acknowledgement of her right to be reregistered on the lists of farmers and of her status as farm labourer. That status had been contested by the Farmers' Social Insurance Fund (Servizio Contributi Agricoli Unificati – “the S.C.A.U.”). Her right to a maternity allowance depended on the type of employment contract she had.
6. On 22 February 1992 the magistrate's court set the case down for an initial hearing on 14 March 1994. On that day the magistrate's court requested documents relating to the records drawn up by the labour inspector and ordered them to be filed at a hearing on 8 November 1995. On that date, at the request of counsel for the defendant, the magistrate's court declared the proceedings interrupted on the ground that the S.C.A.U. had been abolished.
7. On 24 November 1995 the applicant lodged an application with the court registry for the proceedings to be resumed against the social-security department (Istituto Nazionale di Previdenza Sociale – 'the I.N.P.S.”). On 25 January 1996 the magistrate's court set the case down for hearing on 21 October 1997. However, that hearing was adjourned by the court of its own motion to 4 March 1999. The next three hearings, held between 8 April 1999 and 18 September 2000, were devoted to hearing evidence from witnesses. On 13 November 2000 the parties made their final submissions.
8. In a judgment of the same date, the text of which was deposited with the registry on 21 November 2000, the magistrate's court dismissed the claim.
9. On 24 April 2001 the applicant lodged an appeal with the Naples Court of Appeal. On 11 February 2001 the President of the Court of Appeal set the appeal down for hearing on 26 January 2004. On that day the Court of Appeal reserved judgment. According to information provided by the applicant on 23 March 2004, the proceedings were still pending on that date.
10. On 3 October 2001 the applicant lodged an appeal with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto” Act, complaining of the excessive length of the above-described proceedings. She asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the non-pecuniary damage sustained.
11. In a decision of 28 February 2002, the text of which was deposited with the registry on 30 April 2002, the Court of Appeal found that a reasonable time had been exceeded. It awarded the applicant 2,500 euros (EUR), on an equitable basis, in compensation for non-pecuniary damage and EUR 710 for costs and expenses. That decision became final by 15 June 2003 at the latest and was enforced by the authorities between 23 March 2004 and 12 July 2004.
12. In a letter of 7 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of her application.
In the same letter the applicant also informed the Court that she did not intend to appeal to the Court of Cassation because an appeal to that court could only be on points of law.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83973
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF TOMAŽIČ v. SLOVENIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: 6. The applicant was born in 1946 and lives in Maribor.
7. On 10 May 1993 the applicant instituted civil proceedings against a company, SCT, and the Ministry of Transport and Communications (“the MTC”) in the Maribor Basic Court (Temeljno sodišče v Mariboru) seeking compensation and restitutio in integrum in respect of damage caused by the construction of a motorway near real estate he owned.
8. On 28 June 1994 the Convention entered into force in respect of Slovenia. Thereafter, the (renamed) Maribor District Court (Okrožno sodišče v Mariboru) held four hearings in the case. The hearing held on 18 September 1995 was adjourned sine die in order for the applicant to submit further submissions. The next hearing scheduled for 27 January 1997 was called off at the applicant’s request due to a change in his legal representation. Subsequently, the hearing held on 9 April 1997 was adjourned sine die since the parties were given sixty days to reach an out-of-court settlement. On 20 October 1997 the applicant informed the court that the settlement had not been reached. The next hearing, held on 23 September 1998, was adjourned until 11 November 1998 (see paragraph 11 below) in order for the applicant to reply to the MTC’s late submissions. However, due to another change in his legal representation, the applicant failed to submit his reply.
9. During the proceedings, the court appointed three experts in construction science. The first expert, appointed on 10 August 1994, withdrew on 23 August 1994. The following day, the court appointed the second expert, who submitted a report on 22 December 1994. The third expert was appointed on 22 January 1998 and submitted a report on 23 May 1998.
10. Between 22 January 1997 and 29 September 1998 the applicant submitted four preliminary written submissions.
11. At the hearing held on 11 November 1998 the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on the applicant on 7 January 1999.
12. On 20 January 1999 the applicant appealed to the Maribor Higher Court (Višje sodišče v Mariboru). In his appeal, the applicant referred, inter alia, to the building permits obtained by the MTC in 1990 and 1991, which allegedly obliged the MTC to compensate the damage caused as a result of the construction work on the motorway.
On 5 June 2001 the court allowed the applicant’s appeal in part and remitted the respective part of the case to the first-instance court for re-examination.
13. On 24 August 2001 the applicant lodged a constitutional appeal against the second-instance judgment. The appeal was dismissed by the Constitutional Court on 25 April 2002 due to non-exhaustion.
14. Meanwhile, in the remitted part of the proceedings, the applicant lodged, between 2 October 2001 and 11 May 2004, six preliminary written submissions and adduced evidence.
15. On 15 October 2001 the court held the first hearing in the remitted proceedings, which was then adjourned sine die. Although the reasons for the adjournment were not stated in the records of the hearing, it appears that the applicant asked the court to allow him a sixty-day time-limit to prepare his answer to the MTC’s preliminary written submissions of 11 October 2001 which he had received only at the hearing. He further asked the court to adjourn the hearing until the Constitutional Court had decided on his constitutional appeal (paragraph 13 above). At the same time he also made a request for the withdrawal of the sitting judge. That request was rejected on 7 December 2001.
16. On 27 May 2003 the court forwarded a document concerning an assessment of certain plots of the relevant real estate to the parties. They submitted their pleadings in reply by 9 July 2003.
17. On 21 October 2003 the court appointed another expert in construction science and an agricultural expert. The experts submitted their reports on 24 February and 25 March 2004 respectively.
18. The court held hearings on 1 June and 20 September 2004.
19. At the hearing held on 20 September 2004 the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim in part, was served on him on 21 October 2004.
20. On 3 November 2004 the applicant appealed to the Maribor Higher Court.
On 14 June 2005 the court dismissed the applicant’s appeal.
21. On 5 September 2005 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
On 13 July 2006 the latter dismissed the appeal as unfounded in so far as the compensation was concerned and as inadmissible in respect of the remainder.
22. On 7 November 2006 the applicant lodged a constitutional appeal. The proceedings are currently pending before the Constitutional Court.
23. The Act on the protection of the right to a trial without undue delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Gazette, no. 49/2006 – “the 2006 Act”) became operational on 1 January 2007. It provides for two remedies to expedite pending proceedings – a supervisory appeal (nadzorstvena pritožba) and a motion for a deadline (rokovni predlog) – and, under certain conditions, for a claim for just satisfaction in respect of damage sustained because of the undue delay (zahteva za pravično zadoščenje). The relevant provisions read as follows:
“(1) If a party considers that the court is unduly protracting the decision-making, he or she may lodge a supervisory appeal in writing before the court hearing the case; the decision thereon is taken by the ... president of the court
...”
“(1) If, under section 6(1) or (5) of this Act, the president of the court dismisses the supervisory appeal or fails to respond to the party within two months or fails to send the notification referred to in section 6(4) of this Act within the said time-limit or if appropriate procedural acts have not been performed within the time-limit set in the notification or ruling of the president of the court, the party may lodge a motion for a deadline under section 5(1) of this Act with the court hearing the case.
...”
“(1) The president of the higher court in the judicial area covering the local court, district court or other court of first instance, shall be competent to decide on the motion for a deadline concerning cases heard by the local court, district court or other court of first instance.
(2) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by a higher court or a court having the status of higher court.
(3) The president of the Supreme Court of the Republic of Slovenia shall have the competence to decide on the motion for a deadline concerning cases heard by the Supreme Court of the Republic of Slovenia.
...”
“The president of the court hearing the case shall forthwith refer the motion for a deadline together with the case file and the supervisory appeal file to the president of the court competent to decide on the motion for a deadline.”
“(1) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged, the party may claim just satisfaction under the present Act.
...”
“(1) Proceedings to enforce a claim for just satisfaction, provided that the condition referred to in section 15(1) of this Act is met, shall be instituted by a party by means of a motion for settlement lodged with the State Attorney’s Office with a view to reaching an agreement on the type or amount of just satisfaction. The party may lodge such motion within nine months of the final resolution of the case. The State Attorney’s Office shall rule on the motion of the party within a period of three months if it establishes that the just satisfaction claim is substantiated. Until the expiry of the above-mentioned period, the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court.
(2) If, in accordance with paragraph 1 of this section, the agreement has been reached with the party, the State Attorney’s Office shall enter into an out-of-court settlement with the party.”
“(1) If no agreement under section 19 of this Act is reached upon the motion for settlement, or the State Attorney’s Office and the party fail to negotiate an agreement within three months of the date of the motion being lodged, the party may bring an action for damages.
(2) An action for damages against the Republic of Slovenia shall be brought not later than eighteen months after the final resolution of the party’s case.
...”
“(1) In cases where a violation of the right to a trial without undue delay has already ceased to exist and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ...
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months of receiving notification from the State Attorney’s Office that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
24. The relevant provisions of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette, no. 83/2001) provide:
“A judgment, against which an appeal can no longer be lodged, shall become final (pravnomočen), in so far as the party’s claim or counter-claim has been decided therein.
...”
“The parties may lodge an appeal against a judgment delivered at first instance within thirty days from the service of its written grounds...
An appeal, lodged on time, precludes the judgment from becoming final in the part which has been challenged in the appeal.”
“The parties may lodge an appeal on points of law against a final judgment, delivered at second instance, within thirty days from the service of its written grounds.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101491
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ŞTEFĂNICĂ AND OTHERS v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 5. The applicants are all Romanian citizens.
6. The facts, as submitted by the parties, may be summarised as follows.
7. The applicants are all former employees of B., a bank, which was involved in a large restructuring process of State-owned companies in Romania, entailing collective dismissals.
8. The collective dismissal of employees of B. took place in different stages between September 1998 and October 1999. It affected hundreds of persons across Romania working either in the central office or in the local branches of the bank as follows: 632 persons dismissed in September 1998, seventy persons dismissed in February 1999 and 725 persons dismissed in May 1999. No precise numbers were available for the final stages of the dismissal process. From the case file, it appears that the applicants were dismissed during the period September 1998-October 1999.
9. The applicants made several attempts to receive compensatory sums for collective dismissal (see paragraph 14 below) before the Bucharest Employment and Vocational Training Agency (“the agency”), a State agency entrusted with the disbursement of these payments, but did not have any success.
10. On 3 December 2000, they brought an action against the agency, seeking to be granted the compensatory payments. They argued that according to the applicable law, their right had arisen on the date on which their contracts had been terminated. The fact that B. had failed to submit to the agency a list of the persons whose contracts had been terminated could not be imputed to the employees. Moreover, there was established case-law upholding applications submitted by other former employees in a similar situation from the same court of first instance in Bucharest and in final decisions of higher courts across the country.
11. By a judgment of 9 August 2001, Bucharest District Court upheld the applicants' claim. It established that B. had only submitted to the local agency a list of persons dismissed after 8 October 1999 and had failed to send a list of persons dismissed before that date, even though they were part of the same collective dismissal process. The court considered that this failure gave rise to inequalities among the people dismissed.
12. Allowing an appeal by the agency, the Bucharest County Court, by a final decision of 25 March 2002 (drafted on 1st July 2002), reversed the first-instance decision and concluded that the applicants did not meet the requirements for receiving the compensatory payments. For the applicants dismissed between September 1998 and May 1999, the appellate court referred to another condition provided by the national legislation, namely that the State Property Fund (FPS) should have mandated its special representatives on the board of shareholders to proceed with the reorganisation, in particular with the collective dismissal. In the case at issue, the appellate court established that such a mandate did not exist on the date when the applicants were dismissed and therefore they were not entitled to compensatory payments. For the applicants dismissed between August and October 1999, the county court established that they did not meet another condition, namely that they did not prove that they had taken part in the pre-dismissal procedures. It concluded that the applicants did not satisfy these specific conditions and dismissed their claims.
13. The applicants submitted requests to the Procurator General for leave to lodge an extraordinary appeal against the final decision, invoking, inter alia, the existence of conflicting final decisions concerning other former employees in the same situation as them, namely those dismissed before October 1999. Their requests were rejected.
14. Emergency Ordinance no. 9/1997, as modified by Emergency Ordinance no. 52/1998, provided that persons whose employment contracts were terminated due to collective dismissal procedures were entitled to compensatory payments ranging from six to twelve times the average net salary nationwide. On 24 June 1999 the newly adopted Emergency Ordinance no. 98/1999 changed the method for determining the quantum of the compensatory payments, which since then has ranged from six to twelve times the average net salary in the specific company.
15. Article 46 of Emergency Ordinance no. 98/1999 obliged the employer company to notify, in writing, the competent agencies of the collective dismissal process, as approved in the restructuring programme, and to provide lists of the staff to be dismissed. Based on those lists, the competent agencies were required to provide pre-dismissal services, including counselling and professional guidance. In order to be eligible for compensatory payments, the persons who were part of a collective dismissal had to take part in these pre-dismissal programmes.
16. In similar cases, former employees of B., dismissed before October 1999, requested recognition of their right to compensatory payments. Following the agency's refusal to pay compensation, they lodged complaints with the competent domestic courts. By different final decisions rendered by county courts between June 2000 and September 2001, their right to compensatory payments was recognised. The reasoning varied: some county courts considered that the condition regarding the special mandate of the FPS was satisfied, others did not even take this special condition into account.
The condition regarding participation in the pre-dismissal procedures was indirectly taken into account into some of the decisions. In those decisions reference was made to the fact that the employer had failed to submit to the competent agencies lists of the staff dismissed before October 1999.
Some decisions underline the fact that the collective dismissal took place in different stages and that the persons dismissed before October 1999 had been deprived of the social protection provided by the compensatory payments, even though the dismissal conditions had been identical and there was no objective reason for such discrimination.
17. Another group of former employees, who were dismissed between August 1998 and May 1999 and who lost their case by a final decision of the Bucharest County Court of 31 January 2002, submitted a request to the Procurator General for leave to lodge an extraordinary appeal (recurs în anulare) in their favour. The latter accepted their request and made a request in this respect to the Supreme Court of Justice.
By a final decision of 1 October 2003 the Supreme Court allowed the extraordinary appeal and quashed the final decision delivered in that particular case. It concluded that the lack of the special mandate of the FPS (issued in August 1999) did not affect the right of persons whose employment contracts had been terminated in the framework of a collective dismissal to receive compensatory payments. It further explained that in the event of a contrary interpretation, the effects would be unacceptable because it would create discrimination between persons placed in the same or similar positions. It also added that in the event that the former employees were not involved in the collective pre-dismissal procedures because of the negligence of the employer, they were still entitled to receive compensatory payments.
18. Subsequent final decisions of the Bucharest Court of Appeal of 30 June 2003 and 3 September 2004 followed the same approach and recognised the right to compensatory payments for former employees dismissed during the same period of time as the applicants.
19. The Romanian Code of Civil Procedure (“the CCP”) in force at the time provided in its Article 330 that the Prosecutor General, ex officio or upon request of the minister of justice, could lodge an extraordinary appeal (“recurs in anulare”) against final judicial decisions. This extraordinary appeal was repealed from domestic law by a Government ordinance published on 26 June 2003.
20. Article 329 of the CCP regulates another type of extraordinary appeal (“recurs in interesul legii”). The provisions in force at the time provided that in order to ensure uniform interpretation and application of the law, the Prosecutor General, ex officio or at the request of the minister of justice, could request the Supreme Court of Justice to deliver a decision concerning a legal issue which had received different solutions in the lower courts. The decision thus delivered could not alter the outcome of cases already decided. Amendments were made in 2005 and it was made possible to recognise the right of the managerial boards of the courts of appeal to lodge such a request with the High Court of Cassation and Justice.
21. Article 322 § 9 of the CCP further provides that a case may be reopened in front of the domestic courts if the European Court of Human Rights has found that a specific domestic decision violated fundamental rights or liberties.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58524
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF KILIÇ v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 2 in respect of failure to protect life;Violation of Art. 2 in respect of ineffective investigation;Not necessary to examine Art. 10;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 8. Kemal Kılıç, the applicant's brother, was a journalist working for the newspaper Özgür Gündem in Şanlıurfa.
Özgür Gündem was a daily newspaper, with its main office in Istanbul. Its owners described the newspaper as seeking to reflect Turkish Kurdish opinion. It was published between 30 May 1992 and April 1994. By the time it ceased publication, numerous prosecutions had been brought against it on the grounds, inter alia, that it had published the declarations of the PKK (Workers' Party of Kurdistan) and disseminated separatist propaganda. Following a search-and-arrest operation at the Özgür Gündem office in Istanbul on 10 December 1993, charges were brought against, inter alia, the editor, the manager and the owner of the newspaper, alleging that they were members of the PKK and had assisted the PKK and made propaganda in its favour. On 2 December 1994 the Istanbul office, which had been taken over by Özgür Gündem's successor, the newspaper Özgür Ülke, was blown up by a bomb.
9. Kemal Kılıç, who was unmarried, lived with his father in the village of Külünçe, outside Şanlıurfa. Besides working as a journalist, he was a member of the Şanlıurfa Human Rights Association.
10. On 23 December 1992 Kemal Kılıç sent a press release to the governor of Şanlıurfa. This stated that death threats had been made against the United Press Distribution representative carrying out the distribution of Özgür Gündem and against the driver and owner of the taxi used for deliveries. It stated that it was known that persons working for Özgür Gündem had been attacked or killed and that those involved in the sale and distribution of the newspaper had been the victims of arson attacks and assaults. Reference was made to the fact that in other provinces in the south-east security officers were protecting the offices, employees and distributors. Kemal Kılıç requested that measures be taken to protect the safety of people working for the Şanlıurfa office, including himself, another journalist and the newspaper's distributor and driver.
11. By letter dated 30 December 1992, the governor's office replied that Kemal Kılıç's request for protection had been examined. No protection had been assigned to distributors of newspapers in any of the provinces nor had there been any attacks on, or threats to, distributors in the area. His request was refused.
12. On 11 January 1993 Kemal Kılıç issued a press release stating that attacks against persons involved in the sale and distribution of Özgür Gündem in Şanlıurfa were continuing, despite urgent requests for protective measures. Details were given of an arson attack on a news-stand on 5 January 1993 and on another news-stand on 10 January 1993. The press release criticised the governor for not ensuring the safe distribution of the newspaper and called on him and the police to fulfil their responsibilities.
13. Following a complaint by the governor, Kemal Kılıç was charged with insulting the governor through the publication and circulation of the press release. He was taken into detention at the Şanlıurfa Security Directorate on 18 January 1993 and released the same day.
14. At around 5 p.m. on 18 February 1993 Kemal Kılıç left the newspaper office in the centre of Şanlıurfa and walked to the coach station. At about 5.30, he caught the Şanlıurfa to Akçale coach from Kuyubaşı. Before the coach reached the junction of the main road with the road to Külünçe, it was overtaken by a white Renault car, which turned into the village road, turned around and parked, with its headlights off. The car was noticed at about 6.20 p.m. by Ahmet Fidan, a night watchman at a nearby construction site. Kemal Kılıç was the only passenger to leave the coach when it stopped at the junction. He walked up the road towards the village. Ahmet Fidan heard voices arguing and a cry for help, followed by two shots.
15. The incident was reported to the gendarmes who rapidly arrived on the scene. Kemal Kılıç's body was discovered with two bullet wounds in the head. The applicant and other members of his family came from the village to see what had happened.
16. Captain Kargılı, the central district gendarmerie commander, took charge of the investigation at the scene. Two cartridges were found and handed over to the public prosecutor when he arrived. The victim's mouth was found to have been covered with four strips of packaging tape and there was a rope around his neck. A piece of paper bearing the letters U and Y, stained with blood, was also discovered. A sketch map of the scene was drawn up. Captain Kargılı took photographs with his own camera and looked, unsuccessfully, for tyre marks. A statement was taken by the gendarmes from Ahmet Fidan, the night watchman, who stated that because of the darkness he had not seen the victim, the assailants or the car.
17. An examination of the body was carried out by a doctor in the presence of the public prosecutor on 19 February 1993. The report found that two bullets had entered the head and noted the mark of a blow to the right temple, a graze on the right hand, bruising on the back and a semi-circular lesion on the left hand, which resembled a bite mark. It concluded that Kemal Kılıç had died due to destruction of brain tissue and brain haemorrhage.
18. On 19 February statements were taken by the gendarmes from the driver of the Şanlıurfa coach and his assistant. The gendarmes also took statements between 19 and 23 February from the applicant, his father, three of his brothers and two passengers on the coach.
19. On 26 February 1993 Captain Kargılı carried out a search, with a warrant, of the house where Kemal Kılıç had lived, removing, inter alia, books, newspaper cuttings, a photograph and two cassettes for further examination.
20. On 15 March 1993 Captain Kargılı informed the public prosecutor of the search, enclosing several of the items removed from the house and other documents concerning the investigation.
21. On 12 August 1993 the public prosecutor issued a decision to continue the investigation, which stated that it had not been possible to identify or apprehend the perpetrators of the killing and that the search should continue until the expiry of the twenty-year limitation period.
22. On 24 December 1993 an armed attack was carried out on the Aydın Ticaret shop in Diyarbakır. The suspected perpetrators were pursued by police and a number of persons were arrested. The police incident report dated 24 December 1993 stated that the suspect Hüseyin Güney had been seen trying to escape by running up the stairs of a block of flats and was apprehended in a breathless, perspiring state. It was understood that he was returning to recover the Czech 9 mm pistol located in front of the building.
23. A ballistics report dated 27 December 1993 reported that the Czech pistol had been used in fifteen other shooting incidents, including the killing of Kemal Kılıç. In an indictment dated 3 February 1994, also concerning sixteen other defendants, Hüseyin Güney was charged with the offence of membership of the outlawed Hizbullah organisation and carrying out activities with the intention of removing part of the country from the sovereignty of the State and forming a Kurdish State based on Islamic principles. These activities were said to include the attack on Aydın Ticaret and the fifteen incidents in which the Czech pistol had been used.
24. In the undated interrogation notes taken at the Diyarbakır Security Directorate, Hüseyin Güney was recorded as admitting his membership of the Hizbullah and his participation in the attack on Aydın Ticaret. He denied participation in the killing of Kemal Kılıç and stated that he had been given the Czech pistol by another member of the group. In his statement of 6 January 1994 to the public prosecutor, Hüseyin Güney stated that his confessions to the police had been obtained by torture and denied that he had joined the Hizbullah or that he had attacked Aydın Ticaret.
25. The trial of Hüseyin Güney, with other defendants, was conducted before the Diyarbakır National Security Court no. 3 between February 1994 and 23 March 1999. On 3 March 1994 Hüseyin Güney denied his involvement in any of the incidents. At the hearing on 27 October 1994, the police officers who had arrested him confirmed the incident report of 24 December 1993 without adding anything further. On 17 December 1996 the court issued a request for documents relating to the killing of Kemal Kılıç to be obtained.
26. In its judgment of 23 March 1999, the court convicted Hüseyin Güney of being a member of a separatist organisation, the Hizbullah. The court noted that he had been found trying to escape in the vicinity of the Czech 9 mm pistol and that, although he later denied it, he had admitted to the police that he was a member of the Hizbullah and that he had participated in the attack on the shop. It noted, however, that pistols belonging to the organisation could have been used by different individuals and that the defendants had stated that the guns had been given to them by other members of the group before the attack. It was found that although Hüseyin Güney had participated in the attack on the shop he could not be held responsible for any other actions. Hüseyin Güney was sentenced to life imprisonment.
27. Following the court's decision, the Diyarbakır National Security Court chief public prosecutor opened an investigation into the killing of Kemal Kılıç (file no. 1999/1187). By letter dated 20 December 1999, the prosecutor instructed the Şanlıurfa gendarmerie command to report to him every three months concerning any evidence obtained about the Kılıç murder.
28. The contents of the investigation file compiled by the gendarmes and public prosecutor at Şanlıurfa, as well as the minutes from the hearings in the trial of Hüseyin Güney in Diyarbakır National Security Court no. 3 from February 1994 to June 1997, were submitted to the Commission. The Government provided the Court with the judgment of the Diyarbakır National Security Court no. 3 of 23 March 1999.
29. The applicant provided the Commission with a copy of the so-called “Susurluk report”, produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld.
30. The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups.
31. The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result, particularly in the drug-trafficking sphere. The passages from the report that concern certain matters affecting radical periodicals distributed in the region are reproduced below.
“... In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir[] [p. 35] would say from time to time that he had planned and procured the murder of Behçet Cantürk[] and other partisans from the mafia and the PKK who had been killed in the same way ... The murder of ... Musa Anter[] had also been planned and carried out by A. Demir [p. 37].
...
Summary information on the antecedents of Behçet Cantürk, who was of Armenian origin, are set out below [p. 72].
...
As of 1992 he was one of the financiers of the newspaper Özgür Gündem. ... Although it was obvious who Cantürk was and what he did, the State was unable to cope with him. Because legal remedies were inadequate Özgür Gündem was blown up with plastic explosives and when Cantürk started to set up a new undertaking, when he was expected to submit to the State, the Turkish Security Organisation decided that he should be killed and that decision was carried out [p. 73].
...
All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. ... The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9[]). Other journalists have also been murdered [p. 74][].”
32. The report concludes with numerous recommendations, such as improving co-ordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security-force personnel implicated in illegal activities; limiting the use of “confessors”; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken.
33. The applicant provided this 1993 report into extra-judicial or “unknown perpetrator” killings by a Parliamentary Investigation Commission of the Turkish Grand National Assembly. The report referred to 908 unsolved killings, of which nine involved journalists. It commented on the public lack of confidence in the authorities in south-east Turkey on and referred to information that the Hizbullah had a camp in the Batman region where they received political and military training and assistance from the security forces. It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings.
34. A delegation from the Commission heard evidence from four witnesses: the applicant, Captain Cengiz Kargılı, the gendarme in charge of the investigation into the killing of Kemal Kılıç, Mr Cafer Tüfekçi, public prosecutor at the Diyarbakır National Security Court who had initiated the proceedings against Hüseyin Güney, and Mr Mustafa Çetin Yağlı, public prosecutor at the Diyarbakır National Security Court who had acted in the trial against Hüseyin Güney.
35. Three other witnesses did not appear. Ahmet Fidan, the night watchman, could not be traced. Mr Hüseyin Fidanboy, the Şanlıurfa public prosecutor, was due to attend but his flight to Ankara was cancelled due to snow. Mr Ziyaeddin Akbulut, the governor of Şanlıurfa at the material time, was asked to attend the hearings on 4 February and 4 July 1997 but did not appear. After the first hearing, the Agent of the Government provided the explanation that Mr Akbulut had been taking his annual leave. Regarding the second hearing, the Agent submitted a letter from Mr Akbulut which stated that he could not remember being petitioned by Kemal Kılıç, that the allegations made were false and that he could not attend due to his annual leave.
36. The principles and procedures relating to liability for acts against the law may be summarised as follows.
37. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. The authorities' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors' offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).
If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment.
A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
38. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.
39. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against a decision of the council. If a decision not to prosecute is taken, the case is automatically referred to that court.
40. By virtue of Article 4, paragraph (i), of Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 39 above) also applies to members of the security forces who come under the governor's authority.
41. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353).
The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person's life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 37 above) or with the offender's superior.
42. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
43. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities are subject to judicial review ...
...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
That provision establishes the State's strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people's lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.
44. Article 8 of Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 43 above), provides:
“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
45. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant's guilt (Article 53).
However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative” act or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim's right to bring an action against the authority on the basis of its joint liability as the official's employer (Article 50 of the Code of Obligations).
VIOLATED_ARTICLES: 13
2


ITEMID: 001-5636
LANGUAGEISOCODE: ENG
RESPONDENT: LIE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: HILBE v. LIECHTENSTEIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Erich Hilbe] is a Liechtenstein national who was born in 1934 and lives in Riehen, in the Canton of Basle, in Switzerland.
On 21 March 1995 the applicant made an application to be entered in the electoral register (Stimmregister) for the municipality of Schaan in Liechtenstein in order to vote in the referendum (Abstimmung) scheduled for April 1995 on whether Liechtenstein should join the European Economic Area.
In a letter of 28 March 1995 Schaan Town Council (Gemeinde-vorstehung) informed the applicant that it could not grant his application, because he had been residing in Riehen, in Switzerland, for several years and therefore did not satisfy the statutory requirement as to place of residence. By the terms of section 1(1) of the 15 November 1984 version of the Rights of the People Act (Volksrechtegesetz) (Official Gazette 1985, no. 4), persons are entitled to vote only if they are Liechtenstein nationals who have reached the age of 20 and have a place of ordinary abode (ordentlicher Wohnsitz) in Liechtenstein one month before the date of the elections or the referendum.
On 30 March 1995 the applicant appealed to the Liechtenstein government on the ground that the result of the referendum would be decisive for him and for all Liechtenstein nationals living abroad and that place of residence could not be accepted as the only criterion for participation in elections or a referendum.
In a decision of 4 April 1995 the government dismissed the appeal, likewise referring to section 1(1) of the Rights of the People Act.
On 7 April 1995 the applicant lodged an appeal against this decision with the Liechtenstein Administrative Court of Appeal (Verwaltungs-beschwerdeinstanz). He argued that by denying them the right to vote, the legislature deprived Liechtenstein nationals living abroad of the fundamental right to participate in their country’s democratic life.
In a decision of 7 June 1995 the Administrative Court of Appeal refused to refer the question of the constitutionality of the impugned statutory requirement to the Constitutional Court (Staatsgerichtshof). It held that the principle of depriving Liechtenstein nationals living abroad of the right to vote was not unconstitutional and referred to a judgment of the Constitutional Court on that issue. As to the applicant’s application for inclusion in the electoral register for the municipality of Schaan, the court upheld the government’s decision.
From late 1995 onwards there was a debate nationally and in Parliament on the question of introducing a postal vote (Briefwahl) in Liechtenstein.
In two letters dated 27 November 1995 and 14 May 1996 the applicant drew Parliament’s attention to the need to include also Liechtenstein nationals living abroad.
In observations of 30 April 1996 sent to Parliament the government expressed its opposition to giving Liechtenstein nationals living abroad the right to vote, having regard, in particular, to their large number in proportion to the number of residents. In 1993 about 2,700 Liechtenstein nationals lived abroad as opposed to 14,000 who lived in Liechtenstein.
On 23 May 1996 Parliament confirmed that Liechtenstein nationals living abroad did not have the right to vote.


ITEMID: 001-110280
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BEKAURI v. GEORGIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (Article 35-3 - Abuse of the right of petition)
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria
TEXT: ITMarkFactsComplaintsStart 6. The applicant was born in 1977 and is currently detained in Ksani prison no. 7.
7. On 2 May 2005 the Court communicated the application, asking the parties about the compatibility of the applicant’s life sentence, which had resulted from his conviction for murder of a police officer, with Article 3 of the Convention.
8. On 30 August 2005 the Government submitted their observations on the admissibility and merits of the case, which the Court transmitted to the applicant, who was represented by Ms Butkhuzi (“the applicant’s first representative”) at that time. The representative was invited to submit observations on behalf of her client by 24 November 2005 but failed to do so. The Court then extended of its own motion the relevant timelimit until 10 February 2006, but the representative still failed to submit any observations.
9. By a letter of 14 February 2006 the Court, noting her persistent failure to submit observations on behalf of the applicant, advised Ms Butkhuzi that it would proceed with the examination of the case as its file stood.
10. On 10 May 2006 the applicant’s first representative, claiming to have lost the case materials, requested the Court to provide her with a copy of the file. The Court granted that request on 16 May 2006.
11. On 3 July 2006 Ms Mukhashavria and Mr Vakhtangidze informed the Court of their designation as additional legal counsels for the applicant (“the new representatives”) and expressed their intention to submit observations on the admissibility and merits of the case in the near future. The Court replied on 10 July 2006, reminding the new representatives of the applicant’s unjustified failure to submit observations within the previously allotted and extended time-limits, in breach of the relevant procedural rules. The Court stated that no further extension of the relevant time-limit could be allowed at that stage and advised the new representatives to contact their colleague, Ms Butkhuzi, in order to obtain the necessary documents and additional information about the proceedings.
12. On 12 July 2006 the new representatives again requested the Court to give them another time-limit for the submission of observations. The Court rejected that reiterated request on 31 July 2006.
13. On 15 February 2007 the new representatives requested the Court to provide them with another copy of the case materials, explaining that the applicant’s first representative had not shared the materials with them. In reply, the Court, noting that the relevant materials had already been sent to the first representative, still granted, as an exception, the new representatives’ request on 6 March 2007 by providing them with another copy of the file.
14. On 7 May 2007 the applicant’s new representatives reiterated for the third time their readiness to submit observations on behalf of the applicant.
15. On 21 January 2010 the applicant’s father enquired with the Court about the state of the proceedings. He complained that he had been in a complete information vacuum as regards the development of the case and also requested to be provided with a copy of the case materials.
16. On 5 October 2010 the Government submitted, as part of their observations on the merits, a copy of the final and enforceable decision of 12 March 2007 of the Supreme Court of Georgia.
17. As disclosed by that decision, the Supreme Court, granting Ms Butkhuzi’s request of 28 April 2006, had commuted the applicant’s life sentence to the sixteen years’ imprisonment in the light of amendments to the Criminal Code mitigating criminal responsibility for the offence he had committed. Consequently, the applicant’s new prison term would expire and result in his release on 7 August 2014.
18. The applicant complained that the mode of the execution of his life sentence under Georgian law was incompatible with Article 3 of the Convention. This provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
19. In their observations on the merits of the applicant’s complaint under Article 3 of the Convention, the Government raised two preliminary objections. Firstly, referring to the fact of the commutation of his life sentence by the Supreme Court on 12 March 2007, they submitted that the applicant had lost victim status. Secondly, the Government stated that the applicant’s failure to inform the Court of such a focal development of his case amounted to an abuse of the right of individual petition, within the meaning of Article 35 § 3 of the Convention.
20. In reply, the applicant’s new representatives, apart from maintaining the complaint on the merits, briefly commented that they had first learnt of the commutation of their client’s life sentence during a meeting with him at the end of May 2010. They added that the applicant himself had learnt of the Supreme Court’s decision of 12 March 2007 only in November 2007.
21. The Court points out that, according to Rule 47 § 6 of the Rules of Court, applicants, acting in person or through their legal representatives, are under the continuous obligation to keep the Court informed of all important circumstances regarding their pending applications. It recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006; and Rehak v. Czech Republic (dec.), no. 67208/01, 18 May 2004). Incomplete and therefore misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Pirtskhalaishvili v. Georgia (dec.), no. 44328/05, 29 April 2010; and Khvichia v. Georgia (dec.), no. 26446/06, 23 June 2009). Furthermore, the Court reiterates that it cannot be its task to deal with a succession of ill-founded and querulous complaints or with otherwise manifestly abusive conduct of applicants or their authorised representatives, which creates gratuitous work for the Court, incompatible with its real functions under the Convention (see Petrović v. Serbia (dec.), no. 56551/11, 18 October 2011; and The Georgian Labour Party v. Georgia (dec.), no. 9103/04, 22 May 2007).
22. Returning to the circumstances of the present case, the Court first finds that the conduct of the applicant’s first representative, Ms Butkhuzi, was deplorable. Apart from the fact that she had failed to submit observations on the admissibility and merits of the case despite the extension of the relevant time-limit, had lost the case materials twice, had failed to cooperate with the applicant’s other representatives and had apparently left the applicant’s family in ignorance as regards the developments of the case, which omissions naturally resulted in an additional, gratuitous administrative workload for the Court, her negligent attitude went as far as withholding from the Court the crucial information about the commutation of the applicant’s life sentence to the fixed prison term, which fact related to the very core of the subject matter of the present application.
23. As regards the applicant’s new representatives, the Court finds it unacceptable that they, legal professionals who had assumed responsibility for the case as early as on 3 July 2006, did not learn about the commutation of their client’s life sentence, which occurred in March 2007, until the end of May 2010. In any event, pursuant to their obligations under Rule 47 § 6 of the Rules of Court, both the applicant and his representatives should have informed the Court of that critical development of the case immediately upon its discovery, which important circumstance would then have been taken into consideration by the Court upon the examination of the admissibility of the application on 29 June 2010. Unfortunately, they failed to do so and did not even provide a justifiable explanation for that serious procedural omission.
24. The Court thus considers that the conduct of the applicant and of his representatives, in particular that of Ms Butkhuzi, was a “vexing manifestation of irresponsibility” (see The Georgian Labour Party, the decision cited above), incompatible with the purpose of the right of individual application as provided for in the Convention, and significantly impeded the proper functioning of the Court. In general, lawyers must understand that, having due regard to the Court’s duty to examine allegations of human rights violations, they must show a high level of professional prudence and meaningful cooperation with the Court by sparing it from the introduction of unmeritorious complaints and, once proceedings have been instituted, then meticulously abide by all the relevant rules of the procedure and urge their clients to do the same. Otherwise, the wilful or negligent misuse of the Court’s resources may undermine the credibility of lawyers’ work in the eyes of the Court and even, if done systematically, may result in them being banned from representing applicants under Rule 36 § 4 (b) of the Rules of Court (see Petrović, the decision cited above).
25. In the light of the foregoing, the Court considers that the Government’s preliminary objection is well-founded and the present application is abusive within the meaning of Article 35 § 3 (a) in fine of the Convention.


ITEMID: 001-76925
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KONRAD v. GERMANY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The four applicants are Mr Fritz Konrad, a Swiss and German national born in 1951, Mrs Marianna Konrad, a Swiss national born in 1956, and their children, Rebekka, a Swiss and German national born in 1992, and Josua, a Swiss and German national born in 1993. They live in Herbolzheim (Germany) and were represented before the Court by Mr W. Roth and Mr R. Reichert, two lawyers practising in Bonn.
The applicants belong to a Christian community which is strongly attached to the Bible and reject the attendance of private or State schools for religious reasons. The applicant parents find that school education does not suit their beliefs since sex education is taught, mythical creatures such as witches and dwarfs appear in fairy tales during school lessons, and physical and psychological violence among pupils at school is on the increase.
They educate their children at home in accordance with the syllabus and materials of the “Philadelphia School”, an institution based in Siegen which is not recognised as a private school by the State. The institution specialises in assisting devout Christian parents in educating their children at home. The school’s syllabus contains both books and materials which are used by State or private schools and materials specially prepared to support the education of religious beliefs. Teaching by parents is supervised by staff trained by the Philadelphia School. The teaching is supplemented by occasional gatherings of parents, children and staff members.
The applicant parents applied for their children to be exempted from compulsory primary school attendance and for permission to educate them at home. The third and fourth applicants reached the age for compulsory school attendance in 1999 and 2000 respectively. At present, they do not attend a private or State school.
On 28 August 2000 the Offenburg Education Office (Staatliches Schulamt Offenburg) rejected the application pursuant to section 72(1), in conjunction with section 76(2), of the Baden-Württemberg School Act (Schulgesetz Baden-Württemberg). The Freiburg Regional Education Office (Oberschulamt Freiburg) dismissed an objection by the applicants on 30 October 2000.
On 11 July 2001 the Freiburg Administrative Court dismissed a request by the applicants for exemption from compulsory primary-school attendance. The court noted that the Basic Law granted the parents both freedom of religion and the right to educate their children with regard to religious and philosophical convictions, which also included the negative aspect of keeping their children away from convictions which would be harmful in their opinion. That freedom, however, was restricted by the State’s obligation to provide education and tuition. Hence compulsory schooling was not a matter for the parents’ discretion. The applicant parents’ wish to let their children grow up in a “protected area” at home without outside interference could not take priority over compulsory school attendance. Even if the children could be sufficiently educated at home, the State’s obligation to provide education under the Basic Law would not be met if the children had no contact with other children. Attending a primary school, with children from all backgrounds, would enable the children both to gain their first experiences of society and to acquire social skills. Neither would be possible if the parents were authorised to educate the children at home, in particular because the applicant parents had openly stated that they wished to avoid their children having regular contact with other children. The court noted that the State’s obligation to educate would also further the children’s interests and served the protection of their personal rights. Because of their young age, the applicant children were unable to foresee the consequences of their parents’ decision to opt for home education. Therefore, they could hardly be expected to make an autonomous decision for themselves. Moreover, the applicant parents’ right to educate their children would not be undermined by compulsory school attendance as the parents could educate their children before and after school, as well as at weekends. They were also free to send their children to a denominational school, which would possibly be more sensitive as to sex education than a State school, although the court questioned whether the issue of sex education would be of any relevance in a primary school’s syllabus.
On 18 June 2002 the Baden-Württemberg Administrative Court of Appeal dismissed an appeal by the applicants. It found that, even though the applicant parents’ right to educate their children included religious education, they were not exclusively entitled under the Basic Law to educate their children. The State’s constitutional obligation to provide the children with an education was on an equal footing with the parents’ right. The court stressed that the decisive point was not whether home education was equally as effective as primary school education, but that compulsory school attendance required children from all backgrounds in society to gather together. Parents could not obtain an exemption from compulsory school attendance for their children if they disagreed with the content of particular parts of the syllabus, even if their disagreement was religiously motivated. The applicant parents could not be permitted to keep their children away from school and the influences of other children. Schools represented society, and it was in the children’s interests to become part of that society. The parents’ right to provide education did not go so far as to deprive their children of that experience. Parents could require the State to take positive measures in order to prevent their children being ill-treated by other children. The applicant parents had not, however, argued that the school authorities in Baden-Württemberg would fail to do so. Neither had the parents sufficiently argued that the applicant children would be exposed to religious influence which was opposed to their own views. The school’s obligation of religious neutrality would prevent the applicant children from any indoctrination against their will. In so far as the applicants complained that the school’s syllabus was too scientific and denied any divine influence on the creation and the history of the world, the court found that freedom of religion did not entail the freedom not to deal with any possible conflicts between science and religion. The “mythical figures” such as dwarfs or witches which the applicants considered to represent occultism were characters in fairy tales and children’s books which were well known to all children. At school, they would be introduced to children as fictional characters. Hence the State did not promote superstition through its schools.
On 7 January 2003 the Federal Administrative Court dismissed an application by the applicants for leave to appeal on points of law.
On 29 April 2003 the Federal Constitutional Court refused to consider a constitutional complaint by the applicants because it had already dealt with the decisive constitutional issues in its settled case-law. It pointed out that the administrative courts’ decisions had neither violated the applicant parents’ right to educate their children nor the applicants’ freedom of religion. The balance of interests between the applicants’ rights on the one hand and the State’s obligation to provide school education on the other did not require exemption from compulsory school attendance. The Federal Constitutional Court stressed that the State’s obligation to provide education did not only concern the acquisition of knowledge, but also the education of responsible citizens to participate in a democratic and pluralistic society. To hold that home education under the State’s supervision was not equally effective for pursuing these aims was at least not erroneous. The acquisition of social skills in dealing with other persons who had different views and in holding an opinion which differed from the views of the majority was only possible through regular contact with society. Everyday experience with other children based on regular school attendance was a more effective means of achieving that aim. The Federal Constitutional Court found that the interferences with the applicants’ fundamental rights were also proportionate given the general interest of society in avoiding the emergence of parallel societies based on separate philosophical convictions. Moreover, society also had an interest in the integration of minorities. Such integration required not only that minorities with separate religious or philosophical views should not be excluded, but also that they should not exclude themselves. Therefore, the exercise and practising of tolerance in primary schools was an important goal. Lastly, the Federal Constitutional Court considered that the interference was reasonable as the parents still had the possibility of educating their children themselves outside school hours, and the school system was obliged to be considerate towards dissenting religious beliefs.
The relevant provisions of the Basic Law are the following:
“1. Marriage and the family shall enjoy the special protection of the State.
2. The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The State shall supervise them in the performance of this duty.
...”
“1. The entire school system shall be under the supervision of the State.
2. Parents and guardians shall have the right to decide whether children should receive religious instruction.
3. Religious instruction shall form part of the regular curriculum in State schools, with the exception of non-denominational schools. Without prejudice to the State’s right of supervision, religious instruction shall be given in accordance with the tenets of the religious community concerned. Teachers may not be obliged to give religious instruction against their will.
4. The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to State schools shall require the approval of the State and shall be subject to the laws of the Länder. Such approval shall be given where private schools are not inferior to State schools in terms of their educational aims, their facilities, or the professional training of their teaching staff, and where segregation of pupils according to the means of their parents will not be encouraged thereby. Approval shall be withheld if the economic and legal position of the teaching staff is not adequately assured.
...”
Article 14 § 1 of the Constitution of the Land of Baden-Württemberg provides:
“School attendance is compulsory.”
The relevant provisions of the Baden-Württemberg School Act are the following:
“(1) Compulsory school attendance shall apply to all children and juveniles who are permanently resident ... in the Land of Baden-Württemberg.
...
(4) Pupils are required to attend a German school. The school supervisory authority shall decide on any exemption.
...”
“(1) All children and juveniles are obliged to attend schools within the meaning of section 72(2)2 of this Act, unless provision is otherwise made for their education and tuition. Alternative tuition instead of primary-school attendance may only be granted in exceptional circumstances by the school supervisory authority.
...”


ITEMID: 001-69629
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TURCZANIK v. POLAND
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;No violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings
TEXT: 10. The applicant was born in 1934 and lives in Wrocław. He is a lawyer belonging to the Wrocław Bar.
11. The applicant was a party to proceedings before the Council of the Wrocław Bar Association to determine where his practice was to be located, a necessary preliminary to any activity in his profession.
12. On 24 November 1982 the Bar Association of the Wrocław region (Okręgowa Rada Adwokacka) refused to enter the applicant's name in the list of practising lawyers. On 11 January 1983 the National Bar Association (Naczelna Rada Adwokacka) upheld that decision. On 21 October 1983 the Minister of Justice set aside the Bar Association's decision. On 25 November 1983 the Wrocław Bar Association entered the applicant's name in the list, but refused to determine a location for his practice on the ground that he had not joined a lawyers' cooperative (zespół adwokacki) in order to carry on his profession.
13. On 20 December 1983 the applicant appealed, informing the Wrocław Bar Association that he had been retired since 19 July 1982 and only worked from time to time. He received no reply.
14. On 13 June 1991 the applicant asked the Wrocław Bar Association to forward to the Minister of Justice his application for permission to carry on his profession as an independent lawyer and to have his practice established in Wrocław at the address he indicated.
15. On 5 September 1991 the Wrocław Bar Association refused his application on the ground that he had not made any request for the location of his practice to be designated. According to the Government, the applicant did not appeal against that decision.
16. On 23 December 1991 the applicant submitted a request to have his practice located in Wrocław; that request was refused on 23 January 1992 because there were no places available. On 18 March 1992 the National Bar Association dismissed an appeal by the applicant citing the lack of places and the need to give priority to trainee lawyers.
17. On 26 January 1993 the Supreme Administrative Court (Naczelny Sąd Administracyjny), sitting in Warsaw, set aside the decisions given. It held that the Bar Association had been required to designate a location for the applicant's practice at the time when it entered his name in the list of members of the Bar, that is on 25 November 1983. It also held that when designating the location of the applicant's practice the Bar Association had a duty to take into account, among other considerations, his state of health.
18. On 29 April 1993 the Wrocław Bar Association decided that the applicant's practice should be located in Wołów (approximately 46 km from Wrocław). On appeal, that decision was upheld on 18 August 1993 by the National Bar Association.
19. On 31 January 1995 the Supreme Administrative Court once again set aside the decisions given. It held that the governing bodies of the profession, when designating the location of the applicant's practice, had still not taken into account his state of health, had not explained why, despite the growing number of law practices in the chief town of the region (Wrocław), the applicant's request had not been allowed, and had not explained why requests similar to the applicant's had been dealt with and granted as a priority.
20. That decision was served on the Wrocław Bar Association on 29 March 1995. On 8 June 1995 the Bar Association asked the applicant to supply information about his professional activity and his state of health. The applicant described his professional activity and stated that he had suffered two heart attacks.
21. On 14 September 1995 the Wrocław Bar Association decided to suspend the proceedings to determine where the applicant's practice was to be located and brought an action to have the applicant declared unfit to carry on his profession on the ground that he had suffered heart attacks. On 9 January 1996 the National Bar Association upheld the decision.
22. On 19 October 1995 the applicant complained to the Supreme Administrative Court, sitting in Warsaw, of the Wrocław Bar Association's refusal to comply with its decision of 31 January 1995. On 7 March 1996, according to the Government, the Supreme Administrative Court dismissed the complaint as being out of time.
23. On 5 September 1996 the Supreme Administrative Court set aside the decisions given on 14 September 1995 and 9 January 1996. It observed that the proceedings instituted by the Bar Association could be brought only against a practising lawyer, whereas in the present case, although the applicant's name had been entered in the list of lawyers, he could not carry on his profession because the location of his practice had not been determined.
24. On 23 January 1997 the Wrocław Bar Association directed the applicant to supply medical certificates attesting to his state of health. Citing the Supreme Administrative Court's decision of 5 September 1996, the applicant refused to comply. In consequence, on 16 April 1997, the Bar Association determined the location for the applicant's practice as Strzelin (approximately 41 km from Wrocław). It held that there were no medical reasons why the practice should not be located outside the chief town of the region, in which there were too many practising lawyers. On 4 June 1997 the applicant appealed, and on 4 August 1997 he complained of the Wrocław Bar Association's continued failure to comply with the decision of the Supreme Administrative Court, sitting in Warsaw. On 19 August 1997 the National Bar Association overturned the Wrocław Bar Association's decision. On 12 September 1997 the Supreme Administrative Court put off its decision until a later date.
25. On 21 October 1997, as the Wrocław Bar Association had not given a ruling within the time allowed, the applicant asked the Supreme Administrative Court, sitting in Wrocław, to compel the Bar Association to reach a decision and “to take the necessary measures to comply with the instructions given by the Supreme Administrative Court in its decisions”. On 11 December 1997 the Wrocław Bar Association informed the Supreme Administrative Court that the applicant's case was due to be heard at its meeting on 18 December 1997. On that date the Bar Association fixed the location of the applicant's practice in Trzebnica (approximately 25 km from Wrocław), giving him permission to live elsewhere. On appeal, that decision was upheld on 12 May 1998 by the National Bar Association.
26. On 16 March 1998 the Supreme Administrative Court, sitting in Wrocław, refused to compel the Bar Association to give a ruling, given that in the meantime (on 18 December 1997) it had done so. It further noted that the applicant had appealed against the decision concerned. The part of his application containing the request for the necessary measures to be taken to comply with the Supreme Administrative Court's instructions was referred to the Supreme Administrative Court, sitting in Warsaw, which had jurisdiction over the matter.
27. On 26 May 1998 the applicant explained to the Supreme Administrative Court, sitting in Warsaw, exactly what it was he was seeking. He distinguished between the following requests: the setting aside of the National Bar Association's decision of 12 May 1998; the imposition of a fine on the Bar Association; damages for each year of delay in complying with the Supreme Administrative Court's instructions (to take the state of his health into account); and a decision on whether he had the right to bring civil proceedings to obtain compensation for the loss he had suffered through the failure to comply with the Supreme Administrative Court's decisions.
28. The National Bar Association submitted that the application should be refused. Firstly, it pointed out that the applicant was refusing to supply the medical certificates requested, which suggested that he was in good health. Secondly, it informed the court that the applicant worked as a legal adviser in a specific field, so that he was able to carry on an occupation successfully outside the legal profession. It further observed that he was in receipt of an invalidity pension (uprawnienia rentowe). Lastly, it submitted that Trzebnica, the town in which the Wrocław Bar Association had fixed the location of the applicant's practice, did not have the requisite number of lawyers. The choice of location had therefore been prompted by concern for the proper administration of justice.
29. On 20 August 1998 the Supreme Administrative Court, sitting in Warsaw, allowed only part of the applicant's claim, setting aside the National Bar Association's decision of 12 May 1998. It first observed that the Bar Association had not complied with the orders made in all the decisions it had given up to that date. It referred to the principle that decisions taken by the Bar Association concerning the location of a lawyer's practice were administrative decisions and therefore came under its jurisdiction. It pointed out that an administrative body could not ignore its legal opinion, since any decision taken in disregard of its orders would be null and void.
The Supreme Administrative Court also pointed out that an administrative body called upon to deal with a request like the one in issue was required to take into account the interest of the individual while protecting the general interest. It emphasised that in the present case the Bar Association's decisions gave no valid reason for refusing to allow the applicant to establish his practice in Wrocław. In conclusion, it described the proceedings before the Bar Association as unfair, since the applicant had been refused any opportunity to make his case and because the Bar Association had done no more than speculate about his state of health.
30. The Wrocław Bar Association invited the applicant to its meetings on 30 November 1998 and 18 February 1999. He was unable to attend, but presented his apologies.
31. On 25 March 1999 the Wrocław Bar Association again fixed the location of the applicant's practice in Trzebnica. On 21 April 1999 it annulled the above decision and finally fixed the location of the applicant's practice in Wrocław. On 31 July 1999 the applicant informed it that he would begin work on 1 August 1999.
32. The applicant also referred the matter to the Office for the Protection of Competition and Consumers (Urząd Ochrony Konkurencji i Konsumentów – “the Office”). At the end of the related proceedings, on 15 July 1998, the Warsaw regional anti-monopoly court (Sąd Wojewódzki Antymonopolowy) dismissed an appeal by the Bar Association against a decision given by the head of the Office (Prezes Urzędu Ochrony Konkurencji i Konsumentów) on 5 March 1998. After noting that the Bar Association engaged in monopoly practices restraining competition in the service provision market, the court ordered it to abandon the practices concerned. On 29 August 1998 the Wrocław Bar Association appealed on points of law.
33. On 29 May 2001 the Supreme Court quashed the previous decisions. It ruled that the case concerned the applicant alone and that the conduct of the Bar Association authorities could not be equated with monopoly practices. It held that the Bar Association was not required by its rules to locate a lawyer's practice in the town of his choice.
34. Section 30 of the Supreme Administrative Court Act (the Law of 11 May 1995) provides that the legal opinion expressed in a decision of that court is binding on the administrative body whose action or omission gave rise to the proceedings. The administrative body concerned is required to comply with the opinion until subsequent factual or legal elements cause it to lose its validity or until the decision is set aside as a result of an extraordinary appeal.
35. Section 68 of the Bar Association Act (the Law of 26 May 1982) provides, inter alia:
“3. The regional bar association shall give a decision to enter a lawyer's name in the list of its members and at the same time shall designate the location of his practice, taking into account the need to ensure appropriate geographical coverage in the supply of legal assistance.
4. The regional bar association may decide not to designate the location of the lawyer's practice in the event of one of the obstacles to carrying on the legal profession referred to in section 4b § 1 (1 and 2) and § 2.”
36. The obstacles to carrying on the legal profession listed in section 4b of the Bar Association Act are as follows:
“1. A lawyer may not carry on his profession
– if he is bound by a contract of employment,
– if his spouse works as a judge or prosecutor within the area covered by the regional bar association – in the inquiry and investigation agencies,
– if he has been declared permanently unfit to carry on the legal profession,
– if he has been declared unfit,
– if he has been punished by a suspension from his duties or provisionally suspended from his duties.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-77267
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SHAPOVALOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1961 and lives in the town of Arkhangelsk in the Arkhangelsk Region.
5. The applicant sued the Financial Division of the Arkhangelsk Regional administration and the social security services of the Arkhangelsk Region for payment of child support benefits, interest thereon and compensation for non-pecuniary damage.
6. On 5 January 2001 the Lomonosovskiy District Court of Arkhangelsk adjourned the examination of the action and requested the applicant to submit evidence and to clarify her claims. This decision was quashed on appeal by the Arkhangelsk Regional Court on 5 March 2001. The case was remitted for an examination on the merits.
7. On 5 April 2001 the Lomonosovskiy District Court awarded the applicant 490.91 Russian roubles (RUR, approximately 19 euros) in arrears in respect of child support benefits and dismissed the remainder of the claims. The judgment was upheld on appeal on 28 May 2001 and became final.
8. Enforcement proceedings were instituted but the judgment was not enforced because the Arkhangelsk Regional administration lacked necessary funds.
9. On 13 May 2003 the applicant received the sum in full.
10. On 2 April 2002 the applicant sued the Arkhangelsk Regional bailiffs' office and the Ministry of Justice for compensation for damage caused by non-enforcement of the judgment of 5 April 2001, as upheld on appeal on 28 May 2001.
11. On 9 April 2002 the Oktyabrskiy District Court disallowed the action because it should have been lodged with a court in Moscow. The decision was quashed on appeal on 27 May 2002 and the matter was remitted for an examination on its merits.
12. On 20 June 2002 the Oktyabrskiy District Court dismissed the applicant's action because the Arkhangelsk Regional administration lacked funds for the enforcement of the judgment concerned and the bailiffs' office was not at fault for non-enforcement. The judgment was upheld on appeal on 22 July 2002.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1