ITEMID: 001-22148
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: UNISON v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Nicolas Bratza
TEXT: The applicant is a trade union, with its registered address in London. It is represented before the Court by Mr J. Clinch, the applicant’s legal officer.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a union for public service employees. It has members employed with the University College Hospital (UCLH), which is a National Health Service (“NHS”) Trust. A substantial proportion of its members at UCLH are employed on terms and conditions of employment negotiated, primarily, at a national level and the applicant plays a leading role in those national negotiations. Collective negotiations on terms and conditions for most staff so employed within the NHS take place within the framework of the so-called “Whitley Councils”. There is a General Council which agrees terms and conditions common to all staff groups, for example, on redundancy, equal opportunities, maternity rights and joint consultation machinery and ten other specialist councils dealing with particular jobs or professions. Each Council is composed of an equal number of employer-side staff and staff-side employees. The applicant inter alia provides the employee-side secretariat of the General Whitley Council which means that it plays the leading role in co-ordinating staff-side policy within the General Council negotiations and in representing employees at those negotiations.
During 1998, UCLH was negotiating to transfer a part or parts of its business to a transferee consortium of private companies, under a mechanism known as Private Finance Initiative, whereby the private companies would erect and run for UCLH a new hospital (the “primary transfer”). The consortium would subsequently transfer parts of the business transferred to it by UCLH to other private transferee companies (secondary transfers). Thereafter, there would be yet further transfers to private companies (tertiary and subsequent transfers). At all stages there was to be subcontracting out of parts of the work by transferee companies to specialist companies. The primary transfer and secondary transfers would involve most but not all the employees of UCLH being transferred to one or more of the transferee companies.
The applicant sought protection of its members for the terms and conditions of employment and collective bargaining arrangements, aiming to secure a collective agreement with UCLH by which the latter would impose on the transferees terms that would guarantee for thirty years that the terms and conditions of employment and the collective bargaining arrangements of those who would be employed by the primary and subsequent transferees would remain the same as or equivalent to those which would remain for existing employees who were not transferred from UCLH. UCLH refused the request or to offer any protection of existing terms and conditions beyond those guaranteed as a minimum by law.
The applicant put a question to its members in the statutorily required pre-strike ballot, asking whether they were prepared to take industrial action in support of the trade union’s demands for a guarantee. The ballot paper stated:
“The union has requested a guarantee that the terms, conditions and benefits enjoyed by UCLH staff to be transferred to the new employer, and also staff, subsequently employed and subcontracted staff remain the same (or at least as favourable as), and governed by the same collective bargaining arrangement as HNS, UCLH Trust staff. The UCLH Trust has not agreed to give this guarantee by making it part of the contract with the new employers or by making it part of individual contracts of employment. The union is therefore in dispute with the UCLH NHS Trust.
Are you prepared to take strike action in support of the request for the guarantee described above?”
On 2 September 1998, it was announced that members had voted overwhelmingly to take strike action. The applicant called for the strike to take place on 21 September 1998.
On 7 September 1998, UCLH brought proceedings applying for an injunction to prevent the strike taking place.
On 17 September 1998, the High Court ordered interlocutory injunctive relief in favour of UCLH, finding that the strike did not attract the protection of section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act).
On 13 October 1998, the Court of Appeal dismissed the applicant’s appeal, upheld the injunction and ordered costs against the applicant. It refused leave to appeal to the House of Lords. In its judgment, as summarised by the applicant, it was found:
(i) that there was no dispute wholly or mainly related to current terms and conditions but instead a dispute about future terms and conditions with an unidentified future employer (Section 244 of the 1992 Act did not extend to such a dispute);
(ii) the inclusion of future employees and sub-contracted employees in the demand for protection took the dispute outside section 244 of the 1992 Act;
(iii) even if the dispute was mainly about statutorily permitted matters and between statutorily permitted parties, the ballot paper before the strike must be restricted wholly to statutorily permitted issues to be valid.
In his judgment in the Court of Appeal, Lord Woolf M.R. noted that the applicant’s counsel had accepted that the arrangement which the applicant had sought to achieve would have been difficult to enforce in any event, though considered that the applicant could claim that the guarantee could have been of benefit to its members. While counsel had also conceded that any strike of hospital staff would, regrettably, have had an impact on persons being treated in the hospital, he held that the possible adverse consequences of a strike was not relevant to the court’s decision on the legal issue before it.
On 26 April 1999, the House of Lords rejected the applicant’s petition for leave to appeal.
The applicant withdrew the strike call to avoid acting unlawfully and being found liable for damages.
A strike by employees involves breaches of their respective contracts of employment. Calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing the breach of contracts of the employees concerned. Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) confers protection where the defendant is acting “in contemplation or furtherance of a trade dispute”. Statutory protection is lost and the trade union is necessarily acting unlawfully if the strike it calls is in contemplation or furtherance of something which does not fall within the statutory definition of a “trade dispute”.
The term “trade dispute” is defined by section 244 of the 1992 Act which provides as relevant:
“(1) In this Part, ‘trade dispute’ means a dispute between workers and their employer which relates wholly or mainly to one or more of the following -
(a) terms and conditions of employment or the physical conditions in which any workers are required to work;
(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
(c) the allocation of work or the duties or employment between workers or groups of workers;
(d) matters of discipline;
(e) a worker’s membership or non-membership of a trade union;
(f) facilities for officials of trade unions; and
(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of procedures.”
Pursuant to The Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1081/1974), protection is provided to workers on (most) transfers of undertakings (these regulations implemented Council Directive No. 77/187/EEC).
By regulation 5, a contract of employment of employees employed in an undertaking immediately before a relevant transfer are saved from automatic termination and “shall have effect after the transfer as if originally made between the person so employed and the transferee.” All rights, powers, duties and liabilities of the transferor are deemed to pass to the transferee (reg. 5(2)(a)), hence the transferee comes under an obligation to respect the terms and conditions of employment which have been agreed by the transferor. By virtue of reg. 5, employees whose contractual terms prior to transfer are expressly subject to collective negotiation, will continue to be subject to that collective negotiation following transfer, even if their new employer is not party to those negotiations (e.g. Whent and others v. T Cartledge Ltd [1997] IRLR 153(EAT)).
Pursuant to reg. 6 of TUPE, the effect of any collective agreement made between a transferor employer and a trade union is preserved, and the agreement treated as if it had been made between the trade union and the new transferee employer. Recognition of a trade union by a transferor, whether for collective bargaining purposes or otherwise also binds a transferee where the undertaking transferred maintains an identity distinct from the remainder of the transferee’s undertaking (reg. 9).
Pursuant to reg. 8(1), of TUPE, an employee who is dismissed because of a transfer or for a reason connected with it is deemed to have been unfairly dismissed, giving an automatic guaranteed claim for compensation and/or re-instatement or re-engagement under s. 94 of the Employment Rights Act 1996 (“ERA”). This is subject to the exception where the employee has been dismissed for “an economic, technical or organisational reason entailing changes in the work force” in which case the dismissal is not automatically unfair – reg. 8(2). Such dismissal may nevertheless be found unfair by an Employment Tribunal applying the ordinary principles set out in s. 98 of ERA. A dismissal may occur at the instigation of an employer or where an employee resigns having apprehended that there is to be, or has been, a fundamental breach of contracts by the employer or a substantial change of working conditions to his detriment (e.g. Rossiter v. Pendragon PLC [2001] IRLR 256).
A proposal by an employer to effect a transfer also gives rise to an obligation to consult “appropriate representatives” of affected employees about, inter alia, the date of the transfer and the reasons for it, its legal, economic and social implications for affected employees, and the measures, if any which will be taken by the transferor and/or transferee employers in relation to those employees (reg. 10(2)). The appropriate representatives include representatives of a recognised trade union.
Any reduction in wages paid by an employer must, with certain limited exceptions, be agreed in writing. If there is no written agreement, the employee will have a claim to the Employment Tribunal for unlawful deduction of wages under ss. 13-23 ERA.
Any reduction in wages or downgrading in other terms or conditions which is not agreed will give rise to a claim for breach of contract of employment in the ordinary courts, or, if employment has ended, in the ordinary courts or in the Employment Tribunal.
If an employee is dismissed for failing to agree to a change in contractual terms and conditions, he may bring a claim for unfair dismissal pursuant to s. 94 ERA. A claim for unfair dismissal may also be brought by an employee who resigns following a significant change to contractual terms and conditions (s. 95(1)(c) ERA). An employee dissatisfied with changes to terms and conditions may remain in his job and claim unfair dismissal, seeking compensation for the financial shortfall between the new terms and former terms of employment.
Pursuant to TUPE, recognition of trade union and collective agreements would automatically transfer to transferee employers (regs. 6 and 9). Where following transfer a transferee company wished to terminate recognition of a trade union, domestic law provides a mechanism whereby such employers may be compelled to engage in collective bargaining on certain matters.
Section 1 of the Employment Relations Act 1999 adds a new Schedule 1A to the 1992 Act, under which employers and trade unions are encouraged to agree upon recognition for collective bargaining and upon the consequences which should flow from recognition. In the absence of agreement, unions may, in certain circumstances, apply to the Central Arbitration Committee in order to secure compulsory recognition for the purposes of collective bargaining on pay, working hours and holidays. Certain conditions must be met if compulsory recognition is to be ordered, principally that the trade union can claim a minimum level of support amongst the workers it wishes to represent in collective bargaining (paragraphs 22 and 29(3) of the Schedule) and that no other trade union is already recognised as representing any of those workers (paragraph 35). The Schedule came into force on 6 June 2000.


ITEMID: 001-119268
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: ZASTAVA IT TURS v. SERBIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
TEXT: 1. The applicant, ZASTAVA IT TURS, is a company based in Kragujevac. It was represented before the Court by Mr D. Joksimović
2. On an unspecified date the applicant company instituted civil proceedings before the Kragujevac Commercial Court against GRUPA ZASTAVA VOZILA A.D. Kragujevac u restrukturiranju (the debtor), seeking, inter alia, declaratory redress in the property context.
3. On 2 March 2010 the Commercial Court ruled in favour of the applicant company and, further, ordered the debtor to pay it 650,000 Serbian Dinars for legal costs.
4. This judgment became final on 3 August 2011.
5. On 19 August 2011 the applicant company filed a request for the enforcement of the above judgment in respect of the costs awarded, proposing that it be carried out by means of bank transfer.
6. On 23 August 2011 the Commercial Court rejected this request given that the debtor was “being restructured” (see paragraph 14 below).
7. On 16 September 2011 this decision was upheld at second instance.
8. On 2 November 2011 the applicant filed a constitutional appeal.
9. The case is currently pending before the Constitutional Court.
10. The applicant company and the debtor were companies predominantly consisting of socially-owned capital.
11. On 16 November 2006 the Privatisation Agency ordered the restructuring of the debtor, which process is still ongoing.
12. Article 5 § 1 of this Act provides that all enforcement proceedings are to be conducted urgently.
13. Articles 69-153 set out the relevant details as regards enforcement by means of a bank account.
14. Articles 19-20đ set out the details as regards the restructuring of companies about to be privatised. This restructuring, however, is optional and a company may be sold without having been restructured if the Privatisation Agency so decides. Article 20ž provides that companies undergoing restructuring cannot be subjected to an enforcement procedure until the end of restructuring process but no later than 30 June 2014.
15. These provisions are set out in the case of R. Kačapor and Others v. Serbia (nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January 2008, §§ 71-76).


ITEMID: 001-70291
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF "IZA" LTD AND MAKRAKHIDZE v. GEORGIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 5. The applicant company was incorporated as a limited liability company on 27 December 1995 by decision of the Kaspi District Court, Georgia. The second applicant was born in 1956 and lives in Tbilisi.
6. On 23 July 1998, the second applicant, in his capacity as founder and director of the construction company “Iza” Ltd, the applicant company, signed a building repair contract with a State school. The contract provided for the transfer of 117,514 Georgian Laris (“GEL”, EUR 53,892.50) from the budget of the Ministry of Education onto the account of the applicant company. In exchange, the applicant company would perform repairs to the school.
7. Despite the fact that, by August 1998, the applicant company had already done some of the repairs, equivalent to 13,000 GEL (EUR 5,965)1 the Ministry of Education only transferred 5,800 GEL (EUR 2,661)1 to the company's account.
8. The tax authorities initiated proceedings against the applicant company and the second applicant personally, demanding taxes in the amount of 30,735 GEL (EUR 14,104)1. According to the applicants' submissions, the tax claim was based on the total payment due for the work performed under the contract of 23 July 1998, whilst, in reality, the applicant company only received partial payment.
9. On 23 January 2001, the Kaspi District Court partially upheld the claim of the tax authorities. While dismissing the tax claim of 26,388 GEL (EUR 12,106)1 towards the applicant company as being unsubstantiated, the District Court, in view of the second applicant's recognition of his company's indebtedness before the State budget as of 22 April 1998 (well before the signing of the contract with the Ministry of Education), ordered the second applicant personally to pay the VAT debt of 4,347 GEL (EUR 1,994)1.
10. As the remaining sum for the work performed under the contract of 23 July 1998 was not paid by the Ministry of Education and the tax debt of the second applicant was outstanding, according to the applicants' submissions, the applicant company could hardly continue its economic activity.
11. The applicant company, represented by the second applicant, brought proceedings against the Ministry of Education claiming the remaining 7,200 GEL (EUR 3,304)1 for the performed work, as well as the second applicant's tax debt of 4,347 GEL (EUR 1,994)1, given the Ministry's failure to meet its contractual obligations. By a judgment of 14 May 2001, the Didube-Chughureti District Court granted the applicant company's claims in full.
12. There was no appeal against the judgment of 14 May 2001, which therefore acquired binding force on 14 June 2001. Based on that judgment, on 2 July 2001, the District Court issued an order obliging the Ministry of Education to pay the applicant company 11,628 GEL (EUR 5,332). However, the order remained unexecuted.
13. On 19 April 2002, the second applicant, acting again on behalf of the applicant company, requested the Execution Department of the Ministry of Justice to comply with the judgment of 14 May 2001. In response, on 13 May 2002, the Head of the Department explained that the enforcement of judgments against the State budget institutions still remained one of the most difficult tasks to accomplish for the Enforcement Authorities. No information was provided as to when exactly enforcement could be expected.
14. On 29 October 2002, the second applicant again addressed the Ministry of Justice. This time he appealed directly to the Minister of Justice, demanding the immediate implementation of the decision. This demand went unanswered.
15. On the same day, 29 October 2002, the second applicant applied to the Office of the Prosecutor General, requesting the initiation of criminal proceedings for the non-implementation of a binding judicial decision, as laid down in Article 381 of the Criminal Code. However, his request was dismissed on 27 December 2002; the Office of the Prosecutor did not find any intentional wrongdoing on the part of the authorities – the Ministry of Education, the Ministry of Finance and the Ministry of Justice – commenting that the delay had an objective reason, namely the lack of finances in the State budget. Therefore nobody could be held criminally liable.
16. On 10 November 2002, by the Notification No. 35 the Kaspi District Tax authorities imposed upon the applicant company the fine of 74,500 GEL (EUR 34,174)2 as an accrued penalty for the second applicant's outstanding tax debt of 4,347 GEL (EUR 1,994)2. However, following the applicant company's judicial dispute, the Kaspi Regional Court declared the notification null and void. This decision was upheld by the Tbilisi Regional Court on 5 May 2003; along with annulment of the notification, the court instructed the tax authorities to adopt a new administrative act after comprehensive re-examination and reassessment of the facts.
17. On 24 August 2004, the Gori regional tax authorities issued a new notification imposing on the applicant company a fine of 17,061 GEL (EUR 7,825.81)2 for the same VAT debt of the second applicant. This notification was never challenged by the applicants and is still in force.
18. The tax debt of the second applicant constitutes, at the same time, part of the judgment debt of 14 May 2001, which still has not been paid by the State, more than four years later.
19. On 2 July 2004, the Government adopted an Ordinance introducing a mechanism for the gradual payment of outstanding debts (see paragraph 26 below).
“Damage shall be compensated not only in respect of actual financial loss, but also in respect of loss of income. Loss of income is that which could have been obtained had contractual obligations been fulfilled properly.”
“Damages shall be paid only when the harm could have been foreseen by the party in default and there exists a causal link between the harmful action and the result.”
“... following satisfaction of a private suit against administrative authorities, the court shall declare unlawful the administrative action or decision which infringed the litigant's rights, and order relevant measures [to restore the litigant in his rights].”
“Enforcement Agents working at Executive Bureaus [of the Ministry of Justice] are responsible for the execution of the decisions foreseen in this law”.
“An Enforcement Agent's requests relating to his professional activities are equally binding on any natural or legal person irrespective of their hierarchical or juridical-organisational status.
In case of a delay in execution, partial execution or any other circumstances that impede proper execution, the Enforcement Agent shall apply to the Enforcement Department of the Ministry of Justice for a solution. Any disagreement with the resolution reached by the Enforcement Department in this respect should be clarified by a court.”
“... three months after the proposal to comply voluntarily with a judicial decision obliging budget-funded organisations to disburse money, forcible measures may be undertaken against them ...”
The Law does not specify either the kind of forcible enforcement measures which may be taken or the remedies that a litigant may pursue if no such measures are undertaken by the Enforcement Agent.
According to Article 381 of the Criminal Code, the non-execution of a judicial decision constitutes an offence:
“The non-execution of a binding judicial decision or other judicial decision, or the obstruction to its execution by the State, government or local-government officials, or by the executives of a corporation or other organisations [shall be punished] ...”
“... [In a limited liability company] ... directors represent the company in relationship to third parties ...”
25. General Administrative Code
“Administrative-legal act that has been declared null and void quashes legal effects deriving from its entry into force.”
By adopting this Ordinance, the Government introduced a mechanism for the gradual payment of outstanding debts. Following its paragraph 2, the Ministry of Justice was ordered to give priority to the enforcement of court decisions concerning (i) the payment of compensation for damages caused by injury or death; (ii) the payment of not more than three months' salary to workers; (iii) the payment of compensation to rehabilitated people. At the same time, the Ministry of Justice was instructed to ensure the proportionate payment of other creditors, but only after the enforcement of the above-mentioned decisions.
Following paragraph 3 of the Ordinance, the debtor State budget organisations and institutions, in agreement with the Ministry of Justice, have either to secure friendly settlements with their creditors, or to allocate, in accordance with Georgian legislation, the enforcement of judgments in time, since, due to the scarcity of funds, the simultaneous payment of judgment debts is not feasible.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75569
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KERŽINA-KUKOVEC v. SLOVENIE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: 5. The applicant was born in 1953 and lives in Ruše.
6. On 15 January 1992 the applicant instituted denationalization proceedings in the Ruše Municipality (Občina Ruše) seeking restitution of a property previously owned by her grandmother.
On 17 April 1992 the Municipality forwarded the applicant’s claim to the Maribor Basic Court, Maribor Unit (Temeljno Sodišče v Mariboru, enota v Mariboru). The court dismissed her claim twice and declared a lack of jurisdiction in the case. However, both decisions had been quashed on appeal and the case was ultimately considered by the renamed Maribor Local Court (Okrajno Sodišče v Mariboru).
On 28 June 1994 the Convention entered into force with respect to Slovenia.
Of the four hearings held between 8 December 1994 and 27 May 1999, none was adjourned at the request of the applicant.
On 5 May 2000 the court gave a judgement dismissing the applicant’s claim.
7. On 23 May 2000 the applicant appealed to the Maribor Higher Court (Višje sodišče v Mariboru).
On 26 September 2000 the court allowed her appeal and remitted the case to the first-instance court for re-examination.
8. On 13 November 2001 the first-instance court held a hearing.
On 5 July 2002 the court found that the legal grounds for the denationalisation proceedings existed but suspended the part of the proceedings concerning the form and means of restitution until the decision concerning the legal grounds became final.
9. On 19 July 2002 the first defendant (the National Farm Land and Forest Fund, represented by the State Attorney) and on 23 August 2002 the second defendant (the Selnica ob Dravi Agricultural Cooperative) appealed against that decision to the Maribor Higher Court.
On 22 October 2002 the court allowed the appeals and remitted the case to the first-instance court for re-examination by a new judge.
10. Between 12 November 2003 and 7 November 2005 the Maribor Local Court held four hearings. A hearing scheduled for 2 March 2005 was called off on the applicant’s request.
During the proceedings, the court appointed two experts to assess the property at issue.
Between 14 January and 9 February 2005 the applicant lodged three written submissions in which she disagreed with the estimated costs for one of the expert opinions.
On 9 November 2005 the applicant lodged preliminary written submissions.
The proceedings are still pending.
11. Throughout the proceedings, the applicant lodged three requests for supervision with the President of the Maribor Local Court and three petitions with the Human Rights Ombudsman (Varuh človekovih pravic) complaining about the length of the denationalisation proceedings.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61480
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF HENAF v. FRANCE
IMPORTANCE: 1
CONCLUSION: Violation of Art. 3;Preliminary objection rejected (non-exhaustion of domestic remedies)
JUDGES: Christos Rozakis
TEXT: 7. The applicant, who was born in 1925, is currently in prison in Nantes.
8. During the past few years he has been convicted of various criminal offences. In particular, he was sentenced on 9 November 1992 by the Assize Court for the département of Cher to ten years' imprisonment for armed robbery; on 2 September 1998 by the Bernay Criminal Court to six months' imprisonment for making off without payment; on 14 January 1999 by the Nevers Criminal Court to five years' imprisonment for armed robbery; and on 20 January 1999 by the Rouen Court of Appeal to six months' imprisonment for making off without payment. He was due for release from September 2001 onwards according to him, and from 17 February 2002 onwards according to the Government.
9. In February 1998 the applicant was also sentenced to six months' imprisonment by the Nevers Criminal Court for failing to return to prison on time after his last period of leave in 1998, having complied with the arrangements on the previous four occasions. The experts who examined him on the subject concluded that “at the material time” he had been suffering from a “psychological disorder” that had temporarily “impaired his judgment” and that prison could not be “therapeutic” for him, especially in view of his advanced age.
10. The applicant subsequently underwent a medical examination in prison and was found to have swollen glands in the throat area. The relevant service accordingly prescribed medical treatment. It was decided that the applicant would undergo an operation on 8 November 2000 after being taken to hospital on 7 November 2000 at 2.30 p.m.
11. On 6 November 2000 the governor of Eysses Prison informed the prefect that the prisoner needed to be taken to hospital and requested the presence of a police escort to supervise and guard him throughout his stay. As regards the security risk, the prison staff were issued with instructions that the applicant was to be kept under normal and not heightened supervision, left to the discretion of the senior escorting officer but in principle not requiring the permanent use of handcuffs and restraints.
12. On 7 November 2000, the day before the operation, the applicant was transferred, in handcuffs, to Pellegrin Hospital in Bordeaux in a prison van. Two police officers were waiting for him at the hospital in order to supervise and guard him throughout his time there. For the rest of the day the applicant remained handcuffed but not shackled.
13. During the night, a restraint was used on the applicant, consisting of a chain attaching one of his ankles to the bedpost. The Government assert that the restraint left him considerable freedom to move about in the bed, whereas the applicant maintains that the tension of the chain made any movement difficult or painful and sleep impossible.
14. On 8 November 2000, in the morning, the applicant stated that, if he could not be kept in humane conditions in hospital, he would prefer to be operated on once he had been released from prison. After a meeting with the hospital staff, he returned to prison on the same day at 11.45 a.m.
15. On 9 November 2000 the applicant lodged a criminal complaint, together with an application to join the proceedings as a civil party, with the senior investigating judge at the Agen tribunal de grande instance, alleging “serious ill-treatment”, “assault” and “torture”. In the complaint, lodged against the two police officers who had guarded him while he was in hospital, he alleged a violation of Article 803 of the Code of Criminal Procedure and of Article 3 of the Convention, on account of the use of a restraint during the night of 7 to 8 November 2000.
16. In an order of 16 November 2000, served on 24 November, the senior investigating judge set the amount of the security payable for costs at 6,000 French francs.
17. On 24 November 2000 the applicant appealed against that order in a registered letter with acknowledgment of receipt to the senior registrar of the Agen tribunal de grande instance, and also applied to the legal aid office on account of his limited resources. On the same day, he informed the senior investigating judge that he was appealing because his means were insufficient.
18. The application for legal aid was registered on 8 December and refused on 15 December 2000. In an order of 23 March 2001 the President of the Agen tribunal de grande instance confirmed the refusal on the following ground:
“The Code of Criminal Procedure expressly reserves the use of restraints for persons who are likely to attempt to abscond. That is so in the case of a prisoner who is outside the prison compound.”
19. In an order of 15 May 2001, the senior investigating judge declared the applicant's complaint inadmissible for failure to pay the security.
20. In the meantime, on 4 April 2001, the Investigation Division of the Agen Court of Appeal had declared the appeal against the order for payment of a security inadmissible for failure to comply with Article 503 of the Code of Criminal Procedure, by which an appeal by a prisoner must be lodged through the prison governor.
21. On 11 April 2001 the applicant appealed on points of law against that judgment. The proceedings are currently pending before the Court of Cassation.
22. Having been released on 1 October 2001 after completing his sentence, the applicant has subsequently been imprisoned in the context of separate proceedings.
23. Article 803 of the Code of Criminal Procedure provides:
“No one may be forced to wear handcuffs or restraints unless he is considered either a danger to others or to himself, or likely to attempt to abscond.”
24. A general circular of 1 March 1993 states:
“... that provision applies to all members of an escort, regardless of whether the person concerned is being held in police custody, brought to court, detained pending trial or detained following conviction.
's intention.
Except in special circumstances, ... persons whose mobility is impaired on account of their age or health ... are unlikely to pose the dangers referred to in the Law ...”
VIOLATED_ARTICLES: 3


ITEMID: 001-111208
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: HADZHIYSKA v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Ms Magdalena Angelova Hadzhiyska, is a Bulgarian national who was born in 1933 and lives in Lesichovo. She was represented before the Court by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv.
3. The applicant’s village is situated on the banks of Topolnitsa river, at about fifteen kilometres downstream from Topolnitsa Dam.
4. On 5 and 6 August 2006, following heavy rain, the river broke its banks and flooded the applicant’s house. The water ruined a stone fence, a shed and a summer kitchen, and carried away furniture, wood, home-canned food, and other chattels. The house’s cellar and basement were damaged by dampness.
5. On 18 April 2007 the applicant brought a claim for damages under section 1 (1) of the State Responsibility for Damage Act 1988 against the Ministry of Environment and Waters and the Governor of Pazardzhik Region. She alleged that the flood water had carried away trees and branches which had cluttered the riverbed. As the defendants had failed to clean it, this had impeded the flow of water and had caused flooding. She also alleged that no embankments or other protective facilities had been built to protect her village from flooding, and that no monitoring or alert systems had been put in place. She claimed that those omissions had been in breach of the defendants’ obligations under several provisions of the Waters Act 1999 that expressly envisaged such measures.
6. Having initially decided to proceed with the case, in a decision of 4 August 2008, the Pazardzhik Administrative Court dismissed the applicant’s claim as inadmissible. It held that the administrative courts were not competent to examine it because the alleged omissions of the defendants did not constitute administrative action within the meaning of Article 203 § 1 of the Code of Administrative Procedure and section 1 (1) of the 1988 Act. The relations between the applicant and the authorities in connection with the flood were not characterised by an exercise of authority and were therefore not governed by the rules of administrative law. The impugned omissions of the authorities did not form part of their administrative activities.
7. On appeal, on 11 November 2008 the Supreme Administrative Court upheld that decision, with almost identical reasoning. It went on to say that the applicant could bring a claim before the civil courts.


ITEMID: 001-97350
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF CHESNYAK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 4. The applicant was born in 1953 and lives in the town of Zaporizhzhya, Ukraine.
5. On 9 March 1998 criminal proceedings were instituted against the applicant in connection with several straightforward episodes of smuggling goods to Ukraine.
6. In the period from 9 March 1998 to 22 May 1998 criminal proceedings were instituted against Mrs T., Mrs K. and four other persons in connection with the same episodes.
7. On 8 May 1998 the applicant gave a written undertaking not to abscond.
8. On 30 July 1998, while undergoing a course of treatment in a hospital, the applicant was arrested and remained under arrest in the hospital. On 28 August 1998 the applicant finished his treatment. On the same date he was placed in custody.
9. On 11 August 1998 the proceedings against the applicant, Mrs T. and Mrs K. were joined.
10. On 7 September 1998 the case was transferred to the Zaporizhzhya Regional Court for examination. On 12 May 1999 it sentenced the applicant to five years and six months' imprisonment.
11. On 16 September 1999 the Supreme Court quashed that judgment and remitted the case for fresh consideration to the Zaporizhzhya Regional Court On 16 March 2000 the Zaporizhzhya Regional Court sentenced the applicant to one year, seven months and sixteen days' imprisonment. Since the applicant had already spent an equivalent time in prison he was considered to have served his sentence. By the same judgment the court placed the applicant under an obligation not to abscond. On the same date the applicant was released.
12. On 1 June 2000 the Supreme Court quashed the judgment of 16 March 2000 and remitted the case to the prosecutor's office for further investigation.
13. On 25 December 2000 the further investigation was completed and the case was transferred to the Leninsky District Court of Zaporizhzhya.
14. On 15 October 2001 the Leninsky District Court of Zaporizhzhya sentenced him to two years' imprisonment. The applicant was exempted from serving his sentence under the Amnesty Act. By the same judgment the court released the applicant from the undertaking not to abscond.
15. On 10 December 2001 the Zaporizhzhya Regional Court of Appeal, acting as a court of appeal, upheld that judgment.
16. On 8 October 2002 the Supreme Court quashed the ruling of 10 December 2001 and remitted the case for fresh consideration to the court of appeal since the latter had failed to consider the applicant's appeal in a due manner.
17. On 18 December 2002 the Zaporizhzhya Regional Court of Appeal quashed the judgment of 15 October 2001 and remitted the case for further investigation to the prosecutor's office.
18. On 17 September 2003 the case was transferred to the Leninsky District Court of Zaporizhzhya.
19. On 24 September 2003 the Leninsky District Court of Zaporizhzhya terminated the criminal proceedings against the applicant since the charges against him had become time-barred. On 16 February 2004 and 17 May 2005 the Zaporizhzhya Regional Court of Appeal and the Supreme Court, respectively, upheld that ruling.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-94985
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SALONTAJI-DROBNJAK v. SERBIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 6. The applicant was born in 1949 and lives in Vrbas, Serbia.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
8. Since 1973 the applicant has brought, mostly before the Municipal Court (Opštinski sud) in Vrbas, some two hundred lawsuits against his employer and its management, as well as various private parties and Government officials, alleging irregularities, harassment and/or malfeasance. He has also lodged numerous criminal complaints on the same grounds.
9. In 2003 insolvency proceedings were instituted in respect of the applicant's employer and the applicant was laid off.
10. The said lawsuits, however, continued, some of which were subsequently concluded in favour of the applicant.
11. In June 1996 the applicant threatened his employer's general manager with a hunting knife and a fake hand grenade. Ultimately, however, he voluntarily surrendered both, leaving the manager with a cut on his right hand.
12. The applicant was subsequently charged with the crime of intimidation (ugrožavanje sigurnosti).
13. In the course of these proceedings the applicant was examined by two teams of medical experts.
14. On 30 August 1996 the first team of experts (Medicinski centar Novi Sad - Institut za psihijatriju) stated that he was mentally ill, suffering from paranoid psychosis, and could not therefore be held criminally liable. Further, since there was a real danger that the applicant could reoffend, the team recommended mandatory psychiatric treatment on an in-patient basis.
15. On 6 November 1996 the second team of experts (KPD bolnica u Beogradu) found that the applicant had a borderline personality disorder, but deemed him not seriously aggressive and recommended no in-house psychiatric treatment.
16. On 22 November 1996 the Municipal Court in Vrbas found that the applicant was not criminally liable given that he could not control his actions nor properly comprehend their meaning (see paragraph 84 below). It ordered, however, the applicant's mandatory psychiatric treatment on an out-patient basis.
17. Between 22 November 1996 and 15 November 1998 the applicant regularly reported for treatment. On 16 November 1998 he was discharged from this obligation.
18. On 5 September 2003 the applicant was summoned by the Vrbas police in order to give a statement concerning his repeated threats allegedly made to the same general manager.
19. Following receipt of requests to this effect from the District Court (Okružni sud) in Novi Sad and the Supreme Court of Serbia (Vrhovni sud Srbije) of 26 October 2001 and 31 October 2001 respectively, which courts had themselves already been dealing with the applicant's claims in a number of separate, pending civil suits (see paragraph 106 below, Articles 82 and 79, in that order), in March 2002 the Municipal Court in Vrbas recommended to the local Social Care Centre (Centar za socijalni rad, “the SCC”) to formally request the institution of proceedings for the assessment of the applicant's legal capacity.
20. On 18 March 2002 the SCC agreed with this proposal.
21. On 21 March 2002 the Municipal Court noted that the said proceeding had thus been instituted ex officio and ordered that the applicant be subjected to a psychiatric examination by the Forensic Medical Board of the Novi Sad Medical Faculty (Sudsko-medicinski odbor medicinskog fakulteta u Novom Sadu). In so doing, it reasoned as follows:
“Considering the fact that [the applicant] is involved in many legal cases and that the number of these cases ... is sharply on the increase, it is in the court's interest that his decision-making ability be examined ... [as already] ... pointed out by the District Court in Novi Sad and the Supreme Court of Serbia ...”
22. On the same day the applicant was served with this decision.
23. The Forensic Medical Board thereafter scheduled examinations for 8 April 2002 and 15 April 2002, but the applicant refused to be examined unless certain conditions were met. In particular, the applicant requested that: (i) he be informed in advance of the identity of the experts who would examine him; (ii) he, ultimately, be given an opportunity to accept or reject the experts selected; (iii) his examination be carried out in a courtroom in the presence of the judge as well as the public; and (iv) the entire examination be recorded audio-visually.
24. On 26 April 2002 and again on 14 March 2003 the Forensic Medical Board informed the Municipal Court that these conditions were unacceptable.
25. Two other experts, appointed by the Municipal Court subsequently, shared this view and declined the assignment, while another two were unavailable or unwilling to personally examine the applicant.
26. In the meantime, on 20 March 2003, the SCC appointed Lj.Z. to act as the applicant's temporary guardian and represent him in the proceedings.
27. On 29 May 2003 the applicant was informed that the President of the Municipal Court had agreed to allow him to make an audio recording of his psychiatric examination.
28. On 8 November 2003 the SCC appointed Z.P. to act as the applicant's new temporary guardian.
29. On 17 February 2004 the applicant requested a loan from one of the experts, given his “difficult financial situation”.
30. On 19 February 2004 the applicant informed the Municipal Court about his family's grave financial difficulties, citing his inability to obtain compensation in various civil suits as the main reason therefor.
31. Following several hearings, held by June 2004, attended by the experts and/or the applicant, on 28 June 2004 the Municipal Court ordered that the latter be subjected to a compulsory examination and placed in a psychiatric institution for a period of no longer than three months. In so doing, the court relied on the opinions of the experts heard to date and the applicant's own unwillingness to be subjected to a psychiatric examination.
32. The applicant and Z.P. each filed an appeal against this decision.
33. On 12 July 2004 the District Court confirmed the decision rendered at first instance.
34. On 5 August 2004 the District Public Prosecutor (Okružni javni tužilac) in Novi Sad urged the Municipal Court to expedite the proceedings, alleging that the applicant had recently threatened his staff in a telephone conversation.
35. The Municipal Court subsequently, on two separate occasions, invited the applicant to willingly undergo a psychiatric examination.
36. On 13 September 2004, 17 September 2004 and 8 October 2004 Z.P. complained to the President of the Municipal Court, the President of the Supreme Court and the SCC, respectively, stating that the proceedings were initiated in violation of the law, that they were excessively long and had a negative impact on the applicant and his family.
37. On 20 October 2004 Z.P. informed the SCC and the Municipal Court that he had decided to cease being the applicant's temporary guardian.
38. On 25 November 2004 the SCC informed the Municipal Court that the applicant could represent himself in the proceedings.
39. On an unspecified date the Municipal Court ordered the police to arrest the applicant and place him in a psychiatric institution for examination.
40. On 7 December 2004 the applicant accepted to be examined in the premises of the Novi Sad Psychiatric Institute (Institut za psihijatriju kliničkog centra u Novom Sadu). Upon his request, the judge in charge of his case was present during the examination.
41. On 24 December 2004 the Novi Sad Psychiatric Institute concluded that the applicant suffered from litigious paranoia (paranoia querulans), and recommended that his legal capacity be restricted. The experts recalled, inter alia, numerous lawsuits brought and submissions lodged by the applicant, the criminal proceedings instituted against him in 1996, the threats allegedly made in August 2004, and his debt incurred on account of legal costs.
42. On 16 December 2004 the presiding judge, V.J., requested to be removed from the case, noting that he had been subjected to continued harassment by the applicant. On 27 December 2004, however, the acting President of the Municipal Court rejected this request.
43. In response to the Municipal Court's prior motion, on 12 February 2005 the SCC appointed M.G. to act as the applicant's temporary guardian and represent him in the proceedings.
44. On 20 January 2005 the applicant informed the Municipal Court about his family situation. He described the ongoing conflict with his wife concerning his alleged failure to contribute to the family budget, the mutual threats made, and her opinion that all problems stemmed from his “status”.
45. The applicant subsequently gave a written authorization to his neighbour S.N. to represent him before the Municipal Court. S.N. duly submitted his power of attorney and was accordingly summoned to appear at the next hearing.
46. The hearing scheduled for 7 February 2005 was adjourned, at the applicant's request, and the next hearing was scheduled for 22 February 2005.
47. On 22 February 2005 the hearing was held and presided over by another judge. The applicant was not present because he had already been placed in pre-trial detention within a separate criminal case brought against him (see paragraph 53 below). The applicant's representative, S.N., appeared at the hearing, but was not allowed inside the courtroom. The applicant was instead represented by M.G., the lawyer employed at the SCC who had been appointed to represent him. It would seem that the applicant had never met M.G. and was not aware of her appointment.
48. After the hearing, on the same day, the Municipal Court ruled that the applicant was to be partially deprived of his legal capacity. It further specified that his capacity for taking part in legal actions, deciding about his own medical treatment, and dealing with large amounts of money, was to be restricted (“ograničava se poslovna sposobnost za učestvovanje u pravnim radnjama, odlučivanje o sopstvenom lečenju i raspologanje većim novčanim sredstvima”). The Municipal Court relied on the report produced by the Novi Sad Psychiatric Institute, and recalled the expert reports produced in 1996. Lastly, it stated that there was no need to hear the applicant in person since, based on the available psychiatric evidence, this would serve no useful purpose (nije celishodno) within the meaning of Article 36 § 2 of the Non-contentious Proceedings Act (“the NCPA”; see paragraph 101 below). There is no evidence in the case file indicating that M.G. had challenged this decision or the report issued by the Novi Sad Psychiatric Institute.
49. On 24 March 2005 the applicant filed an appeal, arguing that: (i) the proceedings had been instituted unlawfully; (ii) the SCC had appointed a person to represent him without his knowledge; (iii) the person whom he had authorised to represent him was not allowed to do so; and (iv) he had personally been excluded from the hearing when his legal capacity was being considered.
50. On 12 May 2005 the District Court in Novi Sad upheld the decision rendered at first instance.
51. On 31 May 2005 the applicant filed an appeal on points of law (revizija) with the Supreme Court, relying on the same arguments. He further complained about the methods of his examination and its conclusions.
52. On 28 February 2006 the Supreme Court ruled against the applicant.
53. On 9 February 2005 the applicant was arrested by the police and charged with the crime of intimidation. These charges were based on complaints filed by V.J., the judge who had been dealing with the applicant's civil case, the President of the Municipal Court in Vrbas, and several other individuals.
54. On the same day the applicant was questioned by the investigating judge of the Municipal Court in Vrbas who ordered his detention.
55. On 14 February 2005 the investigating judge opened a formal judicial investigation against the applicant, and on 23 March 2005 he ordered that the applicant be subjected to a psychiatric examination.
56. On 26 April 2005 a team of medical experts from the Belgrade Prison Hospital (KPD bolnica u Beogradu) issued a report. The report, inter alia, concluded as follows:
“It is evident that at the time when ... [the criminal act in question was allegedly committed by the applicant] ... he had had distorted ideas ... [about] ... the court ... [as well as] ... the judges and other ... [persons] ... involved in the proceedings ... Taking into account ... [the applicant's] ... personality and his ... disorder ... we consider that his capacity to comprehend the meaning of his actions, as well as to control them, was significantly reduced ... [but not excluded] ...”
57. On 9 May 2005 the applicant was released from detention.
58. On 25 May 2005 the investigating judge questioned one of the members of the said team of medical experts in order to clarify their current conclusions in the light of any inconsistencies with their report of 1996. The expert explained, inter alia, that the applicant suffered from a borderline personality disorder, that this disorder was not, as such, a mental illness, but that it was also characterised by occasional psychotic episodes when the applicant' state could be considered as a temporary mental illness. The decisive factor was the specific situation faced by the applicant and his reaction thereto. In 1996, in view of the relevant circumstances, the applicant was therefore rightly considered as not being criminally responsible, whilst in 2004 his criminal responsibility could not be excluded altogether.
59. On 12 September 2005 the District Court in Novi Sad decided that the proceedings should be continued before the Municipal Court in Bačka Palanka. It reasoned that this was necessary because the alleged victims in the case were all employed with the Municipal Court in Vrbas.
60. On 16 May 2006 the Municipal Court in Bačka Palanka found the applicant guilty and sentenced him to six months in prison, suspended for a period of three years. The court noted that the applicant had already been deprived of his legal capacity, but relied on the opinion of the Belgrade Prison Hospital as regards his criminal responsibility.
61. On 30 May 2006 and 31 May 2006, respectively, the applicant's lawyer and the applicant personally each filed an appeal with the District Court in Novi Sad. Both appeals, however, were ultimately rejected.
62. On 7 June 2005 the applicant filed a request with the Municipal Court in Vrbas, seeking restoration of his full legal capacity. The clerk, however, refused to accept it, referring to an internal order issued by the court's vice-president on 31 May 2005, whereby no submission lodged by the applicant was to be accepted until he was provided with a guardian.
63. On 13 June 2005 the SCC appointed I.S., the applicant's son, as his guardian. The SCC specified that, in order to undertake the “restricted actions” on the applicant's behalf, I.S. would have to obtain its consent.
64. On 23 June 2005 I.S lodged a request with the Municipal Court, seeking restoration of the applicant's full legal capacity (2P 6/05).
65. On 25 August 2005 I.S. filed another submission with the Municipal Court to the same effect (2P 8/05).
66. On 12 September 2005 the SCC informed the Municipal Court that it would not support the request.
67. On 23 September 2005 the court rejected the request of 23 June 2005, explaining that, in the absence of the SCC's consent, I.S. had no standing to initiate the proceedings at issue. On the same date the Municipal Court also rejected the request of 25 August 2005, stating that a motion of this sort had already been filed.
68. I.S appealed both decisions, but on 25 January 2006 the District Court in Novi Sad confirmed the decision adopted in case no. 2P6/05. On the same date, however, it quashed the decision adopted in case no. 2P 8/05, stating that the submission filed on 25 August 2005 was not a separate matter, but merely additional written pleadings to the first request.
69. On 30 March 2006 the applicant filed a request with the SCC, seeking institution of judicial proceedings for the restoration of his full legal capacity.
70. On 20 April 2006 the SCC rejected this request, stating that the applicant's legal capacity was restricted which is why he could not file any requests personally.
71. On 28 April 2006 the applicant filed an appeal, via the SCC, against this decision. The appeal was addressed to the Regional Secretariat for Health and Social Policy (Pokrajinski sekretarijat za zdravstvo i socijalnu politiku).
72. On 5 June 2006 the SCC rejected the appeal, stating that the applicant was not authorised to file it.
73. On 8 June 2006 I.S. filed a new request for the restoration of the applicant's legal capacity with the Municipal Court (2P 4/06). On the same day he filed an identical request with the SCC.
74. On 10 June 2006, as part of the process of reviewing the applicant's status, the SCC stated, inter alia, that he had remained litigious, the only difference being that his submissions were now being signed by I.S. The SCC's team comprised of a psychologist, a lawyer, and a social worker.
75. On 14 June 2006 the applicant again filed an appeal against the SCC's decision of 20 April 2006, this time directly with the Regional Secretariat.
76. On 19 July 2006 I.S received a letter from the Regional Secretariat informing him that he should address his requests to the SCC.
77. On 3 October 2007 the SCC lodged a disability pension request on behalf of the applicant.
78. On 21 November 2007 the SCC, inter alia, reaffirmed its views of 10 June 2006.
79. On 19 December 2007 the Municipal Court decided to join the proceedings in case files nos. 2P 8/05 and 2P 4/06, and on 20 December 2007 it invited the SCC to express its opinion as to whether proceedings for the restoration of the applicant's full legal capacity should be instituted.
80. On 25 December 2007 the SCC stated that there were no reasons for so doing, and on 26 December 2007 the Municipal Court rejected the request in question.
81. On 18 March 2008 the SCC appointed T.M. as the applicant's new guardian.
82. The applicant subsequently wanted to take out a loan in order to purchase a new car, but T.M. refused to act on his behalf. The SCC thereafter appointed I.S. as the applicant's temporary guardian in this respect only.
83. On 11 August 2008 the SCC discharged T.M. from being the applicant's guardian and re-appointed I.S. to this position.
84. The relevant provisions of Article 12 read as follows:
“1. A perpetrator [was] mentally incompetent if, at the time of commission of the offence in question, he was unable to understand the significance of his own actions or control his behaviour due to a permanent or temporary mental illness, a temporary mental disorder or mental retardation ...
2. A perpetrator ... whose ability to understand the significance of his own actions or control his behaviour was substantially diminished due to any of the conditions referred in paragraph 1 of this Article ... may be punished with more leniency ...”
85. Article 15 provided that at the age of 18 all persons shall gain full legal capacity.
86. Article 274 § 2 provided that persons of age who, due to mental illness or “retardation”, substance abuse or “old age feebleness”, or another similar reason, put in jeopardy their own rights and interests, or those of others, shall be partially deprived of their legal capacity.
87. Article 12 § 1 provides, inter alia, that family support and guardianship shall be provided by the guardianship authority (organ starateljstva), i.e. the competent SCC.
88. Article 64 §§ 1, 2 and 3 provides that a child below the age of 14 shall only be able to independently engage in legal actions of minor significance or those which do not entail the undertaking of any obligations. A child aged between 14 and 18, however, shall be able to undertake all legal actions, albeit with the prior or subsequent consent of his or her parents, or the consent of the guardianship authority concerning particularly valuable properties. A child aged 15 shall be able to independently undertake legal actions as regards the management and disposal of his or her earnings or of other property acquired through employment.
89. Articles 124, 125 § 3 and 137 state that a child without parental care, as well as a person of age who has been deprived of his or her legal capacity, shall be provided with a guardian. The guardian shall be appointed by the guardianship authority, and shall represent his or her ward in the same way in which a parent represents a child. With the prior consent of the guardianship authority, the guardian shall, inter alia, be able to decide about any medical procedures needed by the ward, give consent to any legal actions undertaken by a ward aged 14 or more, and undertake all legal actions necessary for the management and disposal of the income acquired by a ward below the age of 15.
90. Article 139 provides that the ward's property not acquired through his or her own work shall be managed by the guardian. The guardian shall be independent as regards the “regular management” of this property, but may undertake additional actions only with the prior consent of the guardianship authority.
91. Article 140 §§ 1 and 2 provides that the guardian shall, with the prior consent of the guardianship authority, be able to dispose of the ward's property not acquired through his or her own work.
92. Article 147 provides that a person of age may be fully or partially deprived of legal capacity if, due to an illness or developmental problems, he or she endangers his or her own rights or interests or the rights and interests of others. The legal capacity of the person partially deprived thereof shall be equal to the legal capacity of a minor between the age of 14 and 18. A court decision shall determine the legal actions which the person concerned may or may not undertake independently.
93. Article 132 § 1 provides that the guardianship authority may also, if needed, appoint a temporary guardian to safeguard the rights and interests of the ward.
94. Article 148 provides that a ward's legal capacity may be restored by the competent court once the reasons for its deprivation have ceased to exist.
95. The Family Act entered into force on 1 July 2005, thereby repealing the Marriage and Family Relations Act.
96. Articles 31-44 provide details as regards the procedure for the full or partial deprivation of legal capacity, as well as its possible subsequent restoration.
97. Article 31 § 1, in particular, states that a person of age shall be fully or partially deprived of legal capacity depending on the degree of ability to independently take care of his or her rights and interests, and providing there are legal grounds for so doing.
98. Article 32 provides that the proceedings can be instituted by the competent court ex officio, by the guardianship authority, by a spouse, a child or a parent of the person concerned, or by his grandparents, brothers, sisters, or grandchildren, if they live together. The procedure may also be initiated by the person concerned if he or she is capable of understanding the significance of such a motion.
99. Article 33 § 2 provides that if the proceedings have not been instituted by the guardianship authority, the request must be submitted with the necessary authorisation.
100. Article 35 provides that the court shall decide after having held a hearing. The court shall summon to this hearing the person concerned, a representative of the guardianship authority, the concerned person's guardian or temporary representative, as well as the person who had proposed the institution of the proceedings. At the hearing the person concerned shall be heard by the judge. Should he or she happen to be placed in a medical institution, the hearing shall be held in that institution.
101. Article 36 § 1 provides that the court shall “personally hear” the individual concerned. Under Article 36 § 2, however, the court may dispense with a hearing if it would be harmful to his or her health or if no hearing is possible due to his or her mental or physical condition.
102. Article 37, inter alia, provides that the court shall also hear all other persons capable of providing relevant information.
103. Article 38, inter alia, provides that the person concerned shall be examined by at least two medical specialists who shall give their opinion as regards his or her mental condition. If needed in this respect and if this would not be harmful to his or her health, the competent court shall have the right to order the placement of the person concerned in a psychiatric institution for a period no longer than three months.
104. Article 42 provides that full legal capacity shall be restored by the court, either upon a motion filed by the guardianship authority or ex officio, when the reasons for the deprivation have ceased to exist. All those entitled to file a motion for the deprivation of legal capacity may also file a motion for its restoration.
105. Finally, Article 43 states that the provisions concerning the deprivation of legal capacity shall, mutatis mutandis, be applied in the proceedings concerning its restoration.
106. The relevant provisions of this Act provide as follows:
“A party with full legal capacity may personally undertake all acts in the proceedings (litigation capacity).
A person of legal age whose legal capacity has been partially restricted ... [shall be able to litigate] ... within the limits of his or her [existing] legal capacity.
...”
“Throughout the proceedings the [civil] court shall ex officio monitor whether the person appearing as a party may [indeed] be a party to the proceedings, as well as whether he or she has the [necessary] litigation capacity ...”
107. On 23 February 1999 the Committee of Ministers of the Council of Europe adopted “Principles concerning the legal protection of incapable adults”, Recommendation No. R (99) 4. The relevant provisions of these Principles read as follows:
“1. The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient, in scope or flexibility, to enable suitable legal responses to be made to different degrees of incapacity and various situations. ...
4. The range of measures of protection should include, in appropriate cases, those which do not restrict the legal capacity of the person concerned.”
“1. The legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary from time to time. Accordingly, a measure of protection should not result automatically in a complete removal of legal capacity. However, a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned.
2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so. ...”
“1. Where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned.
2. The measure of protection should interfere with the legal capacity, rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention. ...”
“The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity.”
“1. Measures of protection should, whenever possible and appropriate, be of limited duration. Consideration should be given to the institution of periodical reviews. ...
3. There should be adequate rights of appeal.”
VIOLATED_ARTICLES: 6
8
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-75656
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: MIRAZOVIC v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Dragan Mirazović, is a citizen of Bosnia and Herzegovina and Sweden, who was born in 1948 and lives in Malmö, Sweden. He is represented before the Court by Mr D. Sadović, a lawyer practising in Mostar, Bosnia and Herzegovina. The respondent Government are represented by Ms Z. Ibrahimović, Agent, and Ms M. Mijić, Deputy Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 May 1992 the HVO forces (one of the legal predecessors of the armed forces of Bosnia and Herzegovina) requisitioned 70 empty gas cylinders from the applicant.
Since the cylinders were neither returned to him nor did he obtain compensation for the loss, on 25 January 1999 the applicant initiated civil proceedings before the Second Municipal Court in Mostar seeking pecuniary damages together with default interest and legal costs from the Ministry of Defence of the Federation of Bosnia and Herzegovina.
On 8 September 2000 the Second Municipal Court in Mostar granted the applicant’s claim for damages in the amount of almost 5,000 Bosnian markas (approximately 2,500 euros), his claim for default interest and his claim for legal costs.
On 18 October 2001 the Mostar Cantonal Court upheld the award of damages, amended the award of legal costs and rejected the claim for default interest.
On 27 March 2002 the First Municipal Court in Sarajevo decided not to enforce the final judgment indicated above pursuant to the Claims Arising from Requisitions for Warfare Act 2001.
On 25 April 2003 the Sarajevo Cantonal Court upheld the first instance decision of 27 March 2002.
The applicant did not appeal to the Constitutional Court of Bosnia and Herzegovina.
The Constitution entered into force on 14 December 1995.
The Constitutional Court of Bosnia and Herzegovina (hereinafter “the Constitutional Court”), which was set up pursuant to Article VI of the Constitution, is composed of nine members: four members from the Federation of Bosnia and Herzegovina (an Entity of Bosnia and Herzegovina), two from the Republika Srpska (the other Entity) and three non-citizens of Bosnia and Herzegovina or of neighbouring States, selected by the President of the European Court of Human Rights.
The following are the relevant provisions of the Constitution:
Article II § 2
“The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law.”
Article VI § 3
“The Constitutional Court shall uphold this Constitution.
a. The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to:
Whether an Entity’s decision to establish a special parallel relationship with a neighbouring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina.
Whether any provision of an Entity’s constitution or law is consistent with this Constitution.
Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity.
b. The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina.
c. The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court’s decision.”
Article VI § 4
“Decisions of the Constitutional Court shall be final and binding.”
According to the Constitutional Court’s decision no. U 23/00 of 2 February 2001 the term “judgment” contained in Article VI § 3 (b) of the Constitution cited above is to be interpreted extensively:
“The term includes not only all kinds of decisions and rulings, but also a failure to take a decision where such failure is claimed to be unconstitutional.”
In that case, the Constitutional Court found a violation of the right to a hearing within a reasonable time guaranteed by Article 6 of the Convention and ordered the competent court to decide the case “as a matter of urgency”.
The Constitutional Court has found a violation of the “reasonable time” guarantee on a number of occasions thereafter (see, for example, the Constitutional Court’s decision no. AP 129/02 of 30 June 2004 ordering, on the one hand, that the competent court decide the case without further delay and, on the other hand, that the Federation of Bosnia and Herzegovina pay 1,000 Bosnian markas – approximately 500 euros – to the appellant within 30 days).
The Constitutional Court has also examined the issue of statutory prevention of the enforcement of judgments on a number of occasions. The following is the relevant part of its decision no. AP 288/03 of 17 December 2004:
“...31. The Constitutional Court holds that the administrative authorities must comply with legally valid court judgments. Moreover, the Constitutional Court points out that the state, in principle, cannot adopt laws [preventing] enforcement of legally valid court decisions, as it would be in contravention with the principle of the rule of law under Article I § 2 of the Constitution of [Bosnia and Herzegovina] and with the right to a fair hearing under Article II § 3 (e) of the Constitution of [Bosnia and Herzegovina] and Article 6 § 1 of the European Convention.
...35. The Constitutional Court concludes that in the present case there has been a violation of the right to a fair hearing under Article II § 3 (e) of the Constitution of Bosnia and Herzegovina and Article 6 § 1 of the European Convention.”
It would appear that following the Constitutional Court’s decision in that case, the judgment in issue has been enforced. There was no award of damages.
The Constitutional Court has subsequently come to the same conclusion in at least one similar case (see the Constitutional Court’s decision no. AP 703/04 of 23 March 2005). It would appear that the judgment in issue in that case has also been enforced following the Constitutional Court’s decision. There was again no award of damages.
Finally, the Constitutional Court has accepted to examine a number of other issues (such as, for example, those relating to missing persons and the “old” foreign-currency savings) in which no effective remedy, other than an appeal to the Constitutional Court, was provided (see, for example, the Constitutional Court’s decision nos. AP 143/04 of 23 September 2005 and AP 130/04 of 2 December 2005).
As to a constitutionality review, the Constitutional Court practises an abstract review pursuant to Article VI § 3 (a) of the Constitution and concrete review pursuant to Article VI § 3 (c). The abstract constitutionality review proceedings may be initiated only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity. The concrete constitutionality review may be initiated by any court in Bosnia and Herzegovina, including the Constitutional Court itself. The following is the relevant part of the Constitutional Court’s decision no. AP 106/03 of 27 October 2004 in which the latter concept (the concrete constitutionality review) was explained:
“...32. Finally, the Constitutional Court notes ... that the problems of this sort arise out of a situation when challenged decisions are legal but unconstitutional, or when a law does not grant court protection to appellants in cases where a legislator failed to provide court protection of full jurisdiction at least in one instance although this was decreed by constitutional standards. In conclusion, the primary issue that is being raised here concerns the quality of a law.
33. In order to resolve this conflict, competent courts, when faced with such a problem, are obliged to initiate procedures of control of constitutionality ...
34. Should the courts fail to do so, it rests on the Constitutional Court of Bosnia and Herzegovina, the upholder of the Constitution of Bosnia and Herzegovina (the first sentence in Article VI § 3 of the Constitution of Bosnia and Herzegovina), to examine that issue if it occurs in a procedure under appellate jurisdiction. In doing so, the Constitutional Court entertains full jurisdiction as referred in Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina since this is the only way to protect the principle of the rule of law in its entirety, the principle that, inter alia, implies that laws are in hierarchical harmony. If this was not the case, the Constitutional Court would depend on the discretion of other courts and the legislator in fulfilling their positive obligation under Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina, which would be contrary to the first sentence of Article VI § 3 of the Constitution of Bosnia and Herzegovina. Moreover, the Constitutional Court is one of the “courts” in Bosnia and Herzegovina. Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina provides that “the Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution”. By linking the previous two sentences for the purpose of interpretation of Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina, one may infer that the Constitutional Court, if need be, entertains jurisdiction to assess constitutionality in a procedure under appellate jurisdiction by virtue of Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina. If this was the other way around, the Constitutional Court would be deprived of its function as “a court”. This conclusion is not affected by the fact that the Constitutional Court carries out both functions in one procedure at the same time (deciding a case within appellate jurisdiction under Article VI § 3 (b) and control of constitutionality of laws) whereas there are two procedures with other courts: deciding a case on the merits and initiation of procedure under Article VI § 3 (c) of the Constitution of Bosnia and Herzegovina before the Constitutional Court.”
The Federation of Bosnia and Herzegovina passed a number of acts dealing with claims arising from requisitions for warfare: see, for example, the Claims Arising from Requisitions for Warfare Act 2001 (Zakon o utvrđivanju i ostvarivanju potraživanja nastalih za vrijeme ratnog stanja i neposredne ratne opasnosti; published in the Official Gazette of the Federation of Bosnia and Herzegovina – “OG FBH” – no. 43/01 of 8 October 2001), the Claims Arising from Requisitions for Warfare Decree 2002 (Uredba o načinu utvrđivanja i realizaciji javnog duga Federacije Bosne i Hercegovine nastalog za vrijeme ratnog stanja i neposredne ratne opasnosti; published in OG FBH no. 17/02 of 9 May 2002; amendments published in OG FBH nos. 32/02 of 16 July 2002 and 34/02 of 20 July 2002), the Temporary Postponement of Enforcement Act 2004 (Zakon o privremenom odlaganju od izvršenja potraživanja na osnovu izvršnih odluka na teret budžeta Federacije Bosne i Hercegovine; published in OG FBH no. 9/04 of 16 February 2004; amendments published in OG FBH no. 30/04 of 31 May 2004) and the Settlement of Domestic Debt Act 2004 (Zakon o utvrđivanju i načinu izmirenja unutrašnjih obaveza Federacije Bosne i Hercegovine; published in OG FBH no. 66/04 of 27 November 2004; amendments published in OG FBH no. 49/05 of 8 August 2005).


ITEMID: 001-76979
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: POULSEN v. DENMARK
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Snejana Botoucharova
TEXT: The applicant was born in 1956 and lives in Hørsholm. He is represented before the Court by Claus Hanghøj, a lawyer practising in Kalundborg. The Danish Government (“the Government”) are represented by their Agent, Mrs Nina Holst-Christensen, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked as a printer from 1976 until January 1993, when he had to report sick, having suffered from headaches, nose bleedings, dizziness and fatigue for some time.
On 15 January 1993 his doctor reported to the National Board of Industrial Injuries (Arbejdsskadestyrelsen, formerly called Sikringsstyrelsen) that the applicant’s illness could be a work related injury resulting from organic-solvents poisoning, and thus giving rise to compensation.
On 12 October 1993, the Board informed the applicant that it was unable to make its assessment within the nine-month’s time-limit set out in the Act on Protection against the consequences of Industrial Injuries (lov om forsikring mod følger af arbejdskade), the reason being that the disease did not meet the conditions for recognition according to the list of occupational diseases pursuant to the said Act. Therefore the case had to be submitted to the Occupational Diseases Committee (Erhvervsudvalgsstyrelsen) before a decision could be taken.
On 10 May 1994 the Occupational Diseases Committee recommended dismissal of the case as the disease was not exclusively or predominantly due to the applicant’s work. By decision of 3 June 1994 the Board refused to acknowledge that the applicant’s illness was an occupational disease within the meaning of the Act on Protection against the consequences of Industrial Injuries.
On 6 July 1994, the applicant appealed against the decision to the Social Appeal Board (Den Sociale Ankestyrelse), which on 2 February 1995 upheld the decision.
Twice, enclosing new medical assessments, the applicant requested in vain that the case be reopened. His requests were refused by the National Board of Industrial Injuries on 4 May 1995 and 31 October 1996 and, on appeal, by the Social Appeal Board on respectively 12 September 1995 and 5 February 1997, with the reasoning that the result of the new medical examinations confirmed the previous ones.
On 22 August 1997, anew the applicant requested a reopening of his case, which resulted in the National Board of Industrial Injuries initiating a neurological examination of the applicant. On 18 May 1998 the National Board of Industrial Injuries, on the basis of the neurological medical certificate, re-opened the case and, by decision of 29 June 1998, it recognised that the applicant’s injury was work related.
Thereafter, on 10 July 1998 the National Board of Industrial Injuries found that the applicant’s degree of disablement amounted to 20 %.
On 13 November 1998 it found that the degree of his loss of working capacity amounted to 50 %.
On appeal, on 27 November 1998 the Social Appeal Board upheld the calculation as to the degree of disablement and on 23 June 1999 as to the degree of the loss of working capacity.
On 20 August 2001, the applicant applied for free legal aid with the County of Copenhagen (Københavns Statsamt) with a view to initiating civil proceedings before the courts against the Social Appeal Board claiming that his loss of working capacity amounted to 100 %, In this connection the latter heard the Social Appeal Board, which on 4 February 2002 decided to re-open the case and re-calculate the applicant’s degree of loss of working capacity to 85 %.
1. On 8 March 2002, having been granted free legal aid, the applicant instituted civil proceedings before the High Court of Eastern Denmark (Østre Landsret) claiming that the degree of his loss of working capacity be set to 100 %. By judgment of 7 February 2003 the High Court found for the Social Appeal Board. On appeal, on 20 January 2004, the Supreme Court (Højesteret) upheld the judgment.
2. In the meantime, on 7 March 2003 the Social Appeal Board refused to re-open the case concerning its assessment of the applicant’s degree of disablement. Consequently, on 5 September 2003 the applicant instituted another set of proceedings before the High Court claiming that the Social Appeal Board should acknowledge that his degree of disablement be set to 50 %, or in the alternative between 20 % and 50 %. The Social Appeal Board stated that in accordance with the new scale (méntabel) to be used as from 1 January 2004, it could accept that the degree be set to 25 %. By judgment of 25 June 2004 the High Court found that the degree of disablement should be set to 25 %.
The applicant appealed against the judgment to the Supreme Court. Having obtained another medical expert statement on 5 August 2005, by judgment of 6 April 2006, the Supreme Court upheld the High Court judgment of 25 June 2004.
According to Danish law it is not a requirement for instituting civil court proceedings that administrative appeal proceedings have been exhausted beforehand, unless specifically provided.
The relevant provisions of the then applicable Act on Protection against the Consequences of Industrial Injuries (Lov om forsikring mod følger af arbejdskade, nu afløst af Lov om arbejdsskadesikring), were worded as follows:
Where nothing to the contrary has been provided, the National Board of Industrial Injuries shall make decisions on all matters under this Act.
1. Decisions made by the National Board of Industrial Injuries under section 54 may be brought before the Social Appeal Board by
a) the injured person or the injured person’s surviving relatives; [and] ...
A Supreme Court judgment printed in the Weekly Law Review (Ugeskrift for Retsvæsen), 2003, page 47, concerned a nurse who injured her back during work. Having acknowledged that her injury was work related, the National Board of Industrial Injuries fixed her degree of disablement at 20 % and her loss of working capacity at 25 %. Without pursuing any further administrative appeals, the nurse brought the decision concerning the degree of loss of working capacity directly before the High Court, which passed judgment remitting the case to the National Board of Industrial Injuries on the ground that the latter had not taken the nurse’s income into account when making its decision. The nurse appealed against the High Court’s judgment to the Supreme Court, which by judgment of 9 October 2002 fixed her loss of working capacity at 50 %.
Pursuant to section 224 of the Administration of Justice Act (Retsplejeloven), as the main rule, civil proceedings are instituted before the City Court being the first judicial instance. Certain lawsuits, however, are brought before the High Court (sections 225 and 226 of the said Act) as the court of first instance, for example if a dispute between an individual and the public concerns a review of a decision taken by the administrative body, which has the highest authority, like the Social Appeal Board.


ITEMID: 001-90250
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KALETA v. POLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1948 and lives in Taufkirchen, Germany.
6. The applicant and W.K. had a daughter M., born on 11 June 1989. The couple married in August 1989. The applicant and his wife separated on 1 August 1992.
7. On 3 September 1992 W.K lodged a divorce petition with the Katowice Regional Court (Sąd Wojewódzki). On 9 February 1993 the proceedings were discontinued as she had withdrawn her petition.
8. In 1993 W.K. again lodged a petition for divorce, this time with the Family Court in Munich.
9. Between 23 February 1994 and 3 August 1994 W.K. was detained on charges of child abduction and theft. On 3 August 1994 she was acquitted by the Munich Court.
10. On 27 February 1995 the Munich District Court awarded custody rights to W.K. The court considered that the mother took great care of the child and that the child had very good living conditions at her mother’s place.
11. On 15 June 1994 the applicant lodged an application with the Będzin District Court for sole custody of his daughter.
12. On 22 June 1995 the District Court in Będzin, Poland, gave a decision. The court awarded parental rights to W.K and limited the applicant’s rights to visiting rights. The court did not specify the access arrangements. The court also restricted W.K.’s parental rights by appointing a guardian to supervise her in the exercise of her rights.
13. Meanwhile, on 9 December 1994 the applicant asked the court to specify the access arrangements.
14. On 5 October 1995 the Będzin District Court gave a decision pursuant to the provisions of the Hague Convention. It allowed the applicant to visit the child on the first Friday of each month between 10 a.m. and 5 p.m. The meeting was to take place on the premises of the Będzin Family Centre (Ośrodek pomocy dziecku i rodzinie w Będzinie). In addition, W.K and a court guardian were to be present during the meeting.
15. On 14 November 1996 the Bedzin Family Centre confirmed that between October 1995 and 14 November 1996 the applicant failed to report for visits. On the other hand, the child and the mother were present at every meeting.
16. On 20 November 1996 the applicant applied to the Będzin District Court to change the access arrangements. He wished to see his daughter during ten days of the winter holidays and two weeks in summer. On 27 November 1997 the Będzin District Court dismissed his request.
17. On 25 November 1996 the applicant lodged an application with the Munich District Court challenging his paternity with respect to M.K. However, a DNA test confirmed his paternity.
18. On 15 August 1997 the Family Court in Munich dissolved the applicant’s marriage and awarded parental rights to W.K.
19. On 5 January 1998 W.K. instituted proceedings before the Będzin District Court in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her. She further requested that the court prohibit the applicant from having contact with his daughter.
20. On 20 October 1998 the applicant asked the court to dismiss W.K.’s request. He also requested that it grant him parental authority and limit W.K.’s parental authority to a right to have contact with the child. He submitted that W.K. was incapable of bringing up a child and had a history of criminal convictions for theft. In addition, criminal proceedings against her were pending (for assault on the applicant).
21. On 9 March 2000 the Będzin District Court gave a decision and dismissed both the applicant’s and his ex-wife’s requests. It also varied the contact arrangement of 1995. The court allowed the applicant to visit his daughter three times a year, on the first Friday of every fourth month between 1 p.m. and 5 p.m. The court held that the meeting was to take place on the premises of the Będzin Family Centre and W.K. and a court guardian were to be present during the meetings.
22. The applicant appealed. On 7 June 2000 the Katowice Regional Court dismissed his appeal. The court repeated the reasons given by the District Court.
23. On 20 June 2000 the Katowice District Court convicted W.K. of assault on the applicant.
24. A further cassation appeal by the applicant was dismissed by the Supreme Court (Sąd Najwyższy) on 12 December 2000. The court referred to the child’s best interest.
25. In 2000 and 2001 W.K. failed to report with the child to the Będzin Family Centre for visits. In particular, on 7 January, 5 May, and 1 September 2000, and 5 January and 4 May 2001 the applicant was present at the Będzin Family Centre. On all these occasions the mother did not bring the child.
26. The applicant met his daughter on 7 September 2001, 4 January, 4 May and 10 May 2002.
27. On October 2001 the applicant made a request for modification of his contact arrangements. He asked to see his daughter without the presence of the mother and the guardian. On 22 May 2002 the Będzin District Court gave a decision. On the basis of an expert’s report the court considered that contact with the applicant had been very stressful for the child. For these reasons and in view of the well-being of the child the court dismissed the applicant’s request.
28. On 11 October 2001 the applicant made a request to the Family Division of the Będzin District Court under Article 1050 of the Code, asking the court to fine W.K. for failure to comply with the order of 9 March 2000. On 5 June 2002 the court dismissed his request.
29. On 20 October 2003 the applicant met his daughter in the Będzin Family Centre.
30. In August 2004 the applicant’s daughter (then fifteen years old) sent a letter to her father stating that she did not wish to see him.
31. On 3 September 2004 the mother again failed to bring M. for a visit.
32. On 15 December 2004 the applicant made a request to the Family Division of the Będzin District Court under Article 1050 of the Code, asking the court to fine W.K. for failure to comply with the order of 9 March 2000. He also asked the court to vary the contact arrangements and to allow him to visit his daughter three times a year, on the first Friday of every fourth month between 10 a.m. and 8 p.m.
33. On an unknown date the request to impose a fine on W.K. was transferred to the Civil Division of the Będzin District Court. On 20 October 2005 she was fined (1,000 Polish zlotys (PLN)) for failing to appear at meetings. Her appeal against his decision was dismissed on 15 February 2006.
34. On 7 January 2005 the Będzin District Court gave a decision and dismissed the applicant’s request for modification of the contact arrangements. The court heard the sixteen -year-old M., who stated that she did not wish to have any contact with the applicant. The court held that it was not in the child’s best interest to vary the visiting arrangements.
35. The relevant domestic law concerning the enforcement of a parent’s visiting rights is set out in the Court’s judgment in the case P.P. v. Poland no. 8677/03, §§ 69-74, 8 January 2008.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-84643
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BILY v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Miroslav Bílý, is a Czech national who was born in 1926 and lives in Prague. He was represented before the Court by Mr Z. Koschin, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 August 1992 the Minister of Industry quashed ab initio a decree of 28 September 1950 by which the factory owned by the applicant’s parents had been nationalised. The applicant and his sister recovered the property in January 1994. The factory was in a very poor state. As the former occupants refused to make repairs, the applicant and his sister brought proceedings for damages on 31 January 1995.
By an interim judgment of 5 March 1999, the Prague 9 District Court (obvodní soud) decided that the claim of the applicant and his sister was, in respect of the first defendant, well founded.
On 17 September 1999 the District Court adopted a supplementary judgment by which it dismissed the applicant’s and his sister’s action in respect of the second defendant.
On 27 October 1999 the applicant and his sister filed an appeal against the two judgments.
On 28 February 2000 the Municipal Court quashed the judgments and sent the case to the District Court.
On 21 July 2004 the applicant informed the court that his sister had died. He proposed to suspend the proceedings on his late sister’s claim while the court continued to deal with his claim.
On 5 January 2005 the District Court decided to suspend the proceedings until the termination of the inheritance proceedings. The applicant appealed against this decision.
It seems that the proceedings are still pending.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).