ITEMID: 001-114522
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PYATKOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1963 and lived before his arrest in Ufa, Republic of Bashkortostan. He is currently detained in Ufa IZ-3/1 remand prison.
6. On 24 November 2006 the applicant was arrested on suspicion of drug trafficking.
7. On 25 November 2006 he was charged with large-scale drug trafficking committed in conspiracy with other drug dealers. On the same date Leninskiy District Court (Ufa) examined the investigator’s request to remand the applicant in custody. The court held as follows:
“Mr Pyatkov Yu.A. is charged with a serious offence, which is punishable by a term of imprisonment of more than two years.
Moreover, Mr Pyatkov Yu. A. was previously convicted of criminal offences on several occasions; his most recent conviction was in 2006.
Furthermore, Mr Pyatkov Yu.A. is a drug addict, and if released, he might engage in further criminal activities related to drugs in order to provide himself with drugs and improve his financial situation.”
8. Taking into account the above elements, the danger to society presented by the offences imputed to the applicant, and the need to secure the execution of his sentence, Leninskiy District Court remanded the applicant in custody. The applicant did not appeal against that decision.
9. On 23 January 2007 Leninskiy District Court extended the applicant’s detention until 17 May 2007, referring to the gravity of the charges against him. The court further held that the applicant was a drug addict, had a criminal record and if released he might abscond, continue his criminal activities or interfere with the proceedings, and noted that his detention was necessary in order to secure the execution of his sentence. The applicant did not appeal against that decision.
10. On 11 May 2007 Kirovskiy District Court (Ufa) extended the applicant’s detention until 17 August 2007. The court held, in particular, that the period fixed by the court for the applicant’s detention was not sufficient to allow a judge, who would receive the case for examination on the merits, to take a decision concerning the applicant’s detention during the trial. The court also held that the applicant was charged with a serious offence presenting a danger to society, and that if released he might continue criminal activities, abscond, or interfere with the proceedings. The court also noted that the applicant’s detention was necessary in order to secure the execution of the sentence.
11. On 14 August 2007 Kirovskiy District Court extended the applicant’s detention until 17 November 2007, on the same grounds as given in its decision of 11 May 2007.
12. On 29 September 2007 the applicant was presented with the final version of the charges. He was accused of several episodes of large-scale drug trafficking committed as a member of an organised criminal group.
13. On 22 October 2007 the applicant and his counsel started familiarising themselves with the materials of the criminal case as did the other twenty-nine defendants. According to the Government, the file consisted of 160 volumes.
14. On 15 November 2007 the Supreme Court of the Republic of Bashkortostan (“the Supreme Court”) extended the applicant’s detention until 17 February 2008, bringing its total duration to fourteen months and twenty-four days. In taking that decision the Supreme Court stated that the applicant was charged with a serious offence, and that if released he might flee from justice, engage in criminal activities or obstruct the establishment of the truth.
15. On 7 February 2008 the Supreme Court granted the investigation authorities’ request for the applicant’s detention to be extended until 17 May 2008, bringing its total duration to seventeen months and twenty-four days. The court held as follows:
“Mr Pyatkov is charged with particularly serious offences punishable by more than two years’ imprisonment. The grounds on which he was initially remanded in custody ... had not changed. The investigation of the criminal case is particularly complex. These circumstances should be regarded as extraordinary circumstances which can serve as a basis for the extension of the defendant’s detention.”
16. In his appeal against that detention order the applicant requested that the preventive measure be changed to a written undertaking not to leave the town since he was suffering from a serious disease.
17. On 16 April 2008 the Supreme Court of the Russian Federation upheld the detention order of 7 February 2008. It found, in particular, that the fact that the applicant was under medical supervision in the remand prison because he had been diagnosed with Human Immunodeficiency Virus (“HIV”) could not be a ground for his release on a written undertaking.
18. On 15 May 2008 the Supreme Court, at the investigator’s request, extended the applicant’s detention until 24 May 2008, thus bringing its total duration to eighteen months. The court held as follows:
“... the grounds on which his [the applicant’s] detention had been based had not changed. These grounds had been sufficient for placing him in detention, since he had been charged with particularly serious offences as a member of an organised criminal group. Therefore, the investigator’s request is duly reasoned and should be granted.”
19. On 20 May 2008 the Supreme Court examined the investigator’s request, supported by the prosecutor, for extension of the applicant’s detention beyond the maximum period of eighteen months. The investigator submitted that owing to the volume and complexity of the criminal case and the large number of co-defendants and their counsel, the applicant and his counsel needed additional time to familiarise themselves with the criminal case. The Supreme Court decided, referring to Article 109 of the Criminal Procedure Code (“the CCrP”, see Relevant domestic law below), to extend the applicant’s detention until 17 August 2008, bringing its total duration to twenty-one months. The court held as follows:
“The term of Mr Pyatkov’s detention is to expire on 24 May 2008. As required by Article 109 § 5 of the CCrP, the investigation was completed and the materials of the criminal case presented to the applicant and his counsel no later than thirty days before the expiration of the maximum period of detention. However, it appears difficult to complete the pre-trial investigation by the above date, since the applicant and his counsel need additional time to comply with the requirements of Article 217 of the CCrP.
The preventive measure applied to Mr Pyatkov had been duly justified in accordance with Article 108 of the CCrP, since he had been charged with a large number of particularly serious offences as a member of an organised criminal group and if released he might interfere with the proceedings or abscond, and therefore the court does not see any reason to alter the preventive measure.”
20. In his appeal against that extension order the applicant submitted, among other things, that having regard to his poor health, the absence of any intention to abscond or interfere with the proceedings, and also the fact that he had a permanent place of residence, he should have been released under a written undertaking.
21. On 29 July 2008 the Supreme Court of the Russian Federation examined the applicant’s appeal. It held, in particular, that the 142 volumes of the criminal case had been presented to the defendants, including the applicant, and their counsel, for their perusal, and that the investigation of that voluminous and complex criminal case had been carried out without any major delays. The Supreme Court dismissed the applicant’s appeal, finding as follows:
“The large volume of evidence in the criminal case and the need to comply with the requirements of Article 217 of the CCrP in respect of all defendants and their counsel confirmed that the court [Supreme Court of the Republic of Bashkortostan] had correctly concluded that it was impossible to change the preventive measure applied to Mr Pyatkov and showed that there existed grounds, provided for in Article 109 § 7 of the CCrP, for further extension of the applicant’s detention.
The materials of the case do not refer to any new circumstances which came to light after the preventive measure – namely his placement in custody – was lawfully imposed on Mr Pyatkov in accordance with Article 108 [of the CCrP] and which would make it necessary to cancel or change that measure.
The court had every reason to believe, having regard to the lengthy period of the criminal activities concerned and their character, that if released Mr Pyatkov might interfere with the proceedings or abscond from the investigation and trial.
The age [of the applicant] and [his] permanent place of residence are not sufficient grounds to cancel or change the measure of restraint.
There is nothing to indicate that Mr Pyatkov cannot be detained in a remand prison due to his state of health.
In those circumstances the court rightly found that there were grounds for extending Mr Pyatkov’s detention beyond eighteen months.”
22. The Supreme Court further extended the applicant’s detention on 14 August until 17 November 2008 and on 12 November 2008 until 17 February 2009 referring to the same grounds as in its decision of 20 May 2008. Those detention orders were upheld by the Supreme Court of the Russian Federation on 15 October 2008 and 12 February 2009 respectively.
23. On 12 February 2009 the Supreme Court extended the applicant’s detention until 17 May 2009, bringing its duration to twenty-nine months and twenty-four days. That decision was based on the same grounds as previous detention orders.
24. On 22 February 2009 the applicant appealed against the detention order of 12 February 2009. He informed the appeal court that he would submit additional grounds of appeal after he received a copy of the detention order of 12 February 2009. According to the applicant, on 24 February 2009 he submitted additional grounds of appeal in which he requested the appeal court to grant him leave to participate in the appeal hearing. He provided the Court with a copy of that request. The Government claimed that the applicant had not submitted a special request to take part in the hearing. However, they did not contest the authenticity of a copy of that request provided by the applicant to the Court.
25. In his appeal against the detention order of 12 February 2009 the applicant complained that the extension of his detention had been unlawful and was not based on sufficient grounds. He also complained that he was not provided with an opportunity to familiarise himself with the documents which had served a basis for extension of his detention.
26. On 6 March 2009 the applicant and his counsel finished familiarising themselves with the materials of the criminal case.
27. On 10 April 2009 the investigator in charge of the case informed the applicant that while the defendants were familiarising themselves with the criminal case, twenty volumes of the case file had been stolen. On 16 January 2009 criminal proceedings had been initiated in this respect and the lost volumes had been restored. According to the investigator, the applicant could now familiarise himself with those volumes of the case file.
28. On 23 April 2009 the Supreme Court of the Russian Federation examined and dismissed the applicant’s appeal against the detention order of 12 February 2009. Neither the applicant nor his counsel were present at the hearing, whereas the prosecutor was present and requested that the appeal be dismissed.
29. On 8 May 2009 the Supreme Court extended the applicant’s detention until 17 August 2009, bringing its total duration to thirty-two months and twenty-four days. That detention order referred to Article 109 of the CCrP and was worded in the same terms as the detention order of 20 May 2008.
30. On 14 May 2009 the applicant appealed against the detention order of 8 May 2009 to the Supreme Court of the Russian Federation. He submitted, in particular, that he had finished familiarising himself with the materials of the criminal case in April 2009, including with the copies of the lost volumes. He considered that the extension of his detention was not based on sufficient grounds, since his state of health would not allow him to influence witnesses or abscond. He also requested the appeal court to examine his appeal in his presence or by video link.
31. According to the Government, on 16 July 2009 notification of the date and the time of the hearing on the applicant’s appeal against the decision of 8 May 2009 was sent to the applicant and his counsel. The Government submitted that the applicant had received that notification on 20 July 2009.
32. On 3 August 2009 the criminal case against the applicant and his co-defendants was referred to the Supreme Court for trial.
33. On 5 August 2009 the Supreme Court set the preliminary hearing of the case for 13 August 2009. However, two of the applicant’s co-defendants (M. and T.), who were under a written undertaking, did not appear on that date.
34. On 11 August 2009 the Supreme Court of the Russian Federation examined the applicant’s appeal against the detention order of 8 May 2009. It dismissed the applicant’s request for leave to appear at the hearing, finding that the criminal case against the applicant and his co-accused had not yet arrived at the court for trial and had not yet been examined, that the applicant had sent his written submissions to the court, and that the prosecutor was not taking part in the examination of his appeal. As to the merits of the applicant’s appeal, the Supreme Court held that the detention order of 8 May 2009 was lawful and duly reasoned. The applicant’s counsel was not present at the appeal hearing.
35. At the preliminary hearing of 14 August 2009 the trial court held that the crimes of which the absconded co-defendants were accused were closely linked to crimes allegedly committed by other co-defendants, and that it would therefore be impossible to examine the charges against them separately. The court accordingly decided to put the missing co-defendants on the warrant list and suspended criminal proceedings against all defendants until the missing co-defendants were captured. Regarding the other co-defendants, including the applicant, the court held as follows:
“... [the other co-defendants] are charged with serious and particularly serious offences. The grounds on which they had been placed in detention ... still remained valid. The defendants’ and their counsel’s arguments about their permanent place of residence and job, family situation, and serious health problems, cannot be regarded as grounds for changing the measure of restraint. In such circumstances, the preventive measure applied to them in the form of detention should not be changed until the preliminary hearing of the case. However, taking into account the requirements of Article 255 § 2 [of the CCrP], they should not stay in detention more than six months after the criminal case has come to court ...
... the measure of restraint [applied to other co-defendants, including the applicant] should be detention on remand, for a period which should not go beyond 3 February 2010 ...”
At the hearing of 14 August 2009 the applicant was represented by legal counsel.
36. On 20 August 2009 the applicant appealed against the decision of 14 August 2009 to the Supreme Court of the Russian Federation. He complained that the extension of his detention had been unlawful and excessively severe, since he had been in detention for almost three years and his health was deteriorating.
37. On 17 November 2009 the Supreme Court of the Russian Federation upheld the detention order of 14 August 2009 having found that the applicant’s detention had been extended in compliance with Article 255 § 2 of the CCrP and that it was based on sufficient reasons.
38. By a decision of 24 November 2009 the trial court decided to resume the proceedings, and set the preliminary hearing of the case for 14 December 2009. By the same decision the trial court held that the measure of restraint applied to the applicant and some of his co-defendants should remain unchanged.
39. The case was adjourned on 14 December and 18 January 2010 because two co-defendants were sick.
40. On 29 January 2010, after holding a preliminary hearing, the trial court set the examination of the case for 10 February 2010. By the same decision the trial court severed the proceedings against co-defendant T., who was still at large, into separate proceedings and extended the applicant’s and his co-defendants’ detention until 3 May 2010. The trial court held as follows:
“On 3 August 2009 the criminal case arrived to the Supreme Court of the Republic of Bashkortostan ...
... They [the co-defendants, including the applicant] are charged with serious and particularly serious offences relating to drug trafficking as members of an organised criminal group. At present the grounds on which their detention was ordered, namely the risk that they would interfere with the proceedings, abscond or continue criminal activities, remain unchanged, and they have not provided any guarantees of their appearance in court. In such circumstances, the measure of restraint applied to them should remain unchanged. Since the six-month time-limit running from the date of arrival of the case to the trial court expires on 3 February 2010, and in accordance with Article 255 § 3 of the CCrP, the defendants’ detention should be extended for three months ...”.
41. On 28 April 2010 the trial court ordered the applicant’s release under a written undertaking.
42. On 20 April 2011 the Supreme Court found the applicant guilty of attempted drug trafficking and acquitted him of the remaining charges. The applicant was sentenced to nine years’ imprisonment. It appears that appeal proceedings are pending.
43. From 25 November 2006 and until his release on 28 April 2010 under a written undertaking the applicant was detained in Ufa IZ-3/1 remand prison.
44. On his admission to the remand prison the applicant was examined by the prison doctor and given a chest fluorography examination, which revealed no signs of tuberculosis.
45. According to the information provided by the Government and not disputed by the applicant, between June 2007 and July 2008 the applicant was given three more fluorography tests, which revealed no pathology in his lungs.
46. On 17 February 2009 a new fluorography test detected changes indicating tuberculosis in the applicant’s lungs. On 18 February 2009 the applicant was examined by a doctor who diagnosed him with infiltrative tuberculosis of the right lung. The applicant was placed in the tuberculosis ward of the remand centre and was prescribed anti-tuberculosis treatment.
47. A fluorography test carried out on 28 January 2010 detected improvement in the applicant’s condition.
48. “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112).
49. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).
50. Detention may be ordered by a court in respect of a person suspected of or charged with a criminal offence punishable by more than two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
51. After arrest the suspect is placed in detention “pending investigation”. Detention “pending investigation” must not exceed two months (Article 109 § 1).
52. A judge may extend the detention up to six months. Further extensions to up to twelve months may be granted by a judge only in relation to those accused of serious or particularly serious criminal offences, provided that the criminal case is particularly complex and there are grounds justifying detention (Article 109 § 2).
53. An extension of detention beyond twelve months and up to eighteen months may be authorised by a court only in exceptional circumstances in respect of those accused of particularly serious offences, upon an investigator’s request approved by the Prosecutor General or his Deputy (Article 109 § 3).
54. Extension of detention beyond eighteen months is prohibited, and the detainee must be immediately released, unless the prosecution’s request for an extension for the purpose of studying the case has been granted by a court in accordance with Article 109 § 8 of the CCrP (Article 109 § 4).
55. Upon completion of the investigation, the detainee must be given access to the case file no later than thirty days preceding the expiry of the maximum period of detention indicated in paragraphs 2 and 3 of Article 109 (Article 109 § 5).
56. If access was granted at a later date, the detainee must be released after the expiry of the maximum period of detention (Article 109 § 6).
57. If access was granted thirty days before the expiry of the maximum period of detention but the thirty-day period proved to be insufficient to read the entire case file, the investigator may request the court to extend the period of detention. The request must be submitted no later than seven days before the expiry of the detention period. If several defendants are involved in the proceedings and the thirty-day period is insufficient for at least one of them to read the entire case file, the investigator may request the court to extend the period of detention in respect of those defendants who have completed reading the case file, provided that the need to apply a custodial measure to them persists and there are no grounds for choosing another preventive measure (Article 109 § 7).
58. Within five days of receipt of the request for an extension the judge must decide whether to grant it or reject it and release the detainee. If the extension is granted, the period of detention is extended until such time as would be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court (Article 109 § 8).
59. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during trial”). The period of detention “during trial” is calculated from the date on which the court receives the criminal case and to the date on which the judgment is adopted. Detention “during trial” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
60. An appeal against a judicial decision ordering or extending detention may be lodged with a higher court within three days. The appeal court must decide on the appeal within three days of its receipt (Article 108 § 11).
61. If a convict wishes to attend an appeal hearing, he should indicate that wish in his statement of appeal (Article 375 § 2).
62. Upon receipt of the criminal case and the statement of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and venue of the hearing no later than fourteen days before the scheduled hearing. The court shall decide whether the detainee should be summoned to the hearing. A detainee held in custody who expresses a wish to be present at the examination of the appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall make a decision with respect to the form of participation of the detainee in the court hearing. If individuals who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude examination of the case (Article 376).
63. By its decision no. 184-O of 6 June 2003 the Constitutional Court of the Russian Federation (“the Constitutional Court”) declined to examine a complaint by Mr Yest., in which he challenged compliance with the Constitution of Article 109 § 8 of the Code of Criminal Procedure, in so far as it allowed the extension of detention pending investigation beyond the maximum time-limit and indefinitely while the defendant finished reading the material in the case file. The Constitutional Court held that such an extension was only possible if there still existed “sufficient grounds to believe” that the accused might abscond during the investigation or trial, reoffend or otherwise obstruct the establishment of the truth, as provided by Article 97 of the Code of Criminal Procedure. In so far as the challenged provision did not set a specific time-limit for holding the defendant in custody while he studied the case file, the Constitutional Court considered that it allowed for the possibility of determining such a time-limit for each particular case, depending on its specific features, on condition that the grounds for detention established in Article 97 had been sufficiently confirmed. The court concluded that the challenged provision could not be interpreted as providing for superfluous or unlimited detention. Neither did it deprive the defendant and his counsel of the right to challenge before a higher court the lawfulness and validity of the extension order, as well as the right to make an application for the custodial measure to be overturned or altered.
64. In its ruling no. 245-O-O of 20 March 2008, the Constitutional Court noted that it had reiterated on several occasions (rulings nos. 14-П, 4-П, 417-O and 330-O of 13 June 1996, 22 March 2005, 4 December 2003 and 12 July 2005 respectively) that a court, when taking a decision under Articles 100, 108, 109 and 255 of the CCrP on the placement of an individual in detention or on the extension of a period of an individual’s detention, was under obligation, inter alia, to calculate and specify a time-limit for such detention.
65. By its decision no. 271-O-O of 19 March 2009, the Constitutional Court declined to examine a complaint by Mr R. With reference to its previous decisions of 13 June 1996, 25 December 1998 and 6 June 2003, the Constitutional Court held that even though Article 109 § 8 did not define the maximum period within which an extension could be granted for the purpose of studying the case file, it did not imply the possibility of excessive or unlimited detention because, in granting an extension, the court should not rely solely on a well-founded suspicion that the defendant had committed the offence, but should mainly base its decision on specific circumstances justifying the continued detention, such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending, as well as the importance of the subject matter of the proceedings, the complexity of the case, the conduct of the defendant and other relevant factors.
66. In its decision no. 22 of 29 October 2009 “On the Practice of Application by the Courts of Preventive Measures in the Form of Remand in Custody, Bail and House Arrest” the Plenum of the Supreme Court of the Russian Federation held as follows:
“18. ... Pursuant to Article 109 § 7 of the CCrP [Code of Criminal Procedure], following a request by an investigator the court may extend an accused’s detention until such time as he and his defence counsel have finished studying the case file and the prosecutor has submitted it to the [trial] court, if upon completion of the pre-trial investigation the accused has been given access to the case file no later than thirty days before the expiry of the maximum period of detention indicated in Article 109 §§ 2 and 3 [six, twelve or eighteen months]. In that case the relevant extension order should indicate the exact period for which the extension is made ...
20. After a court accepts for examination a criminal case in which the defendant is remanded in custody, it should verify whether the time-limit set by a court order for that detention has expired ... The court decision to maintain the applicant in detention [taken after arrival of the criminal case to the court for examination on the merits] should have an indication of the end-date of the defendant’s detention”.
67. On 22 January 2004 the Constitutional Court delivered decision no. 66-O on a complaint about the refusal to permit a detainee to attend appeal hearings on the issue of detention. It held:
“Article 376 of the Code of Criminal Procedure regulating the presence of a defendant remanded in custody before the appeal court... cannot be read as depriving the defendant held in custody ... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms ...”
68. By its decision no. 432-O of 24 November 2005 the Constitutional Court declined to examine a complaint by Mr G. With reference to its previous decisions of 10 December 2002 and 25 March 2004, the Constitutional Court held that convicts, but also others, including suspects in criminal proceedings and those charged with criminal offences and remanded in custody, had to be given the right to bring to the knowledge of the appeal court their position in respect of issues which would be examined by that court either by way of personal participation in the hearing or by other means. This position was later confirmed in its decision no. 538-O of 16 November 2006.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-3
5-4
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-84054
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF NURETTIN ALDEMIR AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits (victim) and dismissed;Violation of Art. 11;Remainder inadmissible
TEXT: 5. The applicants are members of “EĞİTİM-SEN” (Eğitim ve Bilim Emekçileri Sendikası – The Education Workers’ Trade Union), a trade union which is a member of “KESK” (Kamu Emekçileri Sendikaları Konfederasyonu – The Confederation of Public Employees’ Trade Unions).
6. In 2001 the Turkish Parliament prepared a draft bill to amend the Act on Trade Unions. While this bill was being discussed in the Parliament, “KESK” decided to organise meetings in Ankara to protest the bill. The aim was to draw public attention to and achieve the withdrawal of this bill, which in their view did not meet international standards.
7. In the meantime, on 18 December 2000, the Governorship of Ankara had issued a circular, providing guidelines on meetings and demonstrations organised in the city of Ankara, in accordance with the Law on Meetings and Demonstration Marches (Law no. 2911). According to this circular, the meeting place chosen by KESK was not among the permitted areas.
8. On 7 June 2001 Nurettin Aldemir, Şehrinaz Artar, Ömer Buzludağ, Sami Evren and Ali Rıza Özer, and on 25 June 2001 Arzu Doğan, Tacettin Yağdıran and Elif Akgül, gathered in Kızılay together with other persons.
9. On both occasions, while the president of “KESK” was reading out press statements, police officers warned the demonstrators that their action was contrary to the law and that they had to disperse. The demonstrators blocked the main street of the Kızılay district (Atatürk Avenue) and attempted to march towards the Prime Minister’s Office. The police officers then intervened and used truncheons, sticks and tear gas with a view to dispersing the crowds. Some of the demonstrators attacked the security forces using pavement stones and sticks which caused the injury of seven police officers and the destruction of a police vehicle. The applicants were also wounded during the incidents.
10. On 7 June 2001 Şehrinaz Artar and Ömer Buzludağ were examined by a doctor from the Hacettepe University Hospital. The doctor noted an ecchymosis of 2x2 cm on the left eyebrow of Şehrinaz Artar. As regards Ömer Buzludağ, he noted an abrasion of 3 cm on his right eyebrow. Nurettin Aldemir, Sami Evren and Ali Rıza Özer did not submit any medical evidence to the Court in support of their subsequent allegations of ill-treatment.
11. On 25 June 2001 Arzu Doğan was examined by a forensic medical expert from the Ankara Forensic Medicine Institute who observed an ecchymosis on her lip, a hyperaemic graze on her left wrist and superficial abrasions on her right wrist and arm. The expert concluded that the injuries rendered Arzu Doğan unfit for work for one day.
12. On the same day, Tacettin Yağdıran was examined by a forensic medical expert from the Ankara Forensic Medicine Institute. The doctor observed a sutured injury on the occipital lobe of his head and a haematoma under the injury, and considered that his injuries rendered the applicant unfit for work for seven days.
13. Also on the same day, Elif Akgül was examined by a doctor from the Ankara Forensic Medicine Institute. The doctor observed abrasions on the skin on the left scapula and on the back, and a haematoma of 2x2 cm on the right frontal lobe. He concluded that the injuries rendered Elif Akgül unfit for work for five days.
14. On an unspecified date, the applicants filed a complaint with the Ankara public prosecutor’s office against the Ankara Governor, the director of the Ankara Security Directorate, the director of the Rapid Intervention Force branch of the Ankara Security Directorate and the police officers who were involved in the incidents.
15. In the meantime, on 26 June 2001 the Ankara public prosecutor brought charges against twenty-seven demonstrators, including Arzu Doğan and Sami Evren, for violation of the Law on Meetings and Demonstration Marches.
16. On 23 July 2001, pursuant to Law no. 4483 on the prosecution of civil servants, the Ankara public prosecutor transferred the file to the Ministry of Interior seeking an authorisation to initiate criminal proceedings.
17. On 9 October 2001 the Ministry of the Interior, relying on Article 4 of Law no. 4483, decided not to take an action against the officials and officers accused by the applicants as it found that the allegations were of an “abstract nature”. The Ministry considered that the force used by the police was lawful and justified in the circumstances of the case and that the officers had been under an obligation to disperse the demonstrators who had organised an illegal meeting. This decision was sent to the Ankara public prosecutor’s office on 19 December 2001.
18. In a decision of 14 November 2001 the Ankara Criminal Court acquitted the applicants Arzu Doğan and Sami Evren, as well as other demonstrators, of the charges. The court decided that the demonstrators enjoyed a right to hold unarmed and peaceful meetings and demonstrations without prior permission.
19. On 29 January 2002 the Ankara public prosecutor issued a decision of non-prosecution as regards the applicants’ complaints.
20. Article 34 of the Constitution provides:
“Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. ...
The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.”
21. At the material time section 10 of the Meetings and Demonstration Marches Act (Law no. 2911) was worded as follows:
“In order for a meeting to take place, the governor’s office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board...”
22. Section 22 of the same Act prohibited demonstrations and processions on public streets, in parks, places of worship and buildings in which public services were based. Demonstrations organised in public squares had to comply with security instructions and not disrupt individuals’ movement or public transport. Finally, section 24 provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor’s office and after the demonstrators had been warned.
According to a circular issued by the Governorship of Ankara on 18 December 2000, which provides guidelines on meetings and demonstrations, Kızılay avenue is not among the permitted areas for demonstrations.
“The police may use firearms in the event of:
(a) self defence, ...
(h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.”
“In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack, the police may use violence to subdue these actions.
Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm.
In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force.”
23. According to Article 165 of the now defunct Code on Criminal Procedure, a complainant may file an appeal against the decision of a public prosecutor not to institute criminal proceedings. This appeal must be lodged, within fifteen days from the day of notification of the decision to the complainant, with the president of the assize court in whose jurisdiction the public prosecutor works.
VIOLATED_ARTICLES: 11


ITEMID: 001-57999
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF SÜSSMANN v. GERMANY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 6-1
JUDGES: C. Russo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 7. Mr Süßmann, a German national born in 1916, worked as a physicist in research institutes whose remuneration and pension system was the same as that of the civil service.
8. The applicant retired in 1980 and receives, in addition to the statutory pension, a supplementary pension (Versorgungsrente) paid to him by the Supplementary Pensions Fund of the Federation and the Länder (Versorgungsanstalt des Bundes und der Länder - VBL - "the Fund"). The Fund administers a supplementary old-age pensions scheme, which enables German civil servants or persons with an equivalent status to receive a progressive supplementary pension.
9. As the total of the sums paid under the general old-age pensions scheme and the civil service supplementary scheme regularly exceeded the last net civil service salary, employers’ and employees’ representatives reached an agreement to amend the rules governing the Fund. These amendments, which came into force in March 1982 and March 1984, also concerned persons who were already affiliated to the supplementary scheme or in receipt of a pension thereunder.
On 16 March 1988, giving judgment in a series of test cases, the Federal Court (Bundesgerichtshof) upheld the validity of these amendments.
10. On 30 April and 31 May 1985 the Fund calculated the sum payable to the applicant under the amended scheme with the result that his supplementary pension was reduced.
11. The applicant appealed to the Arbitration Tribunal of the Supplementary Pensions Fund (Schiedsgericht der VBL), challenging, inter alia, the legality of the amendments made to the rules governing the scheme.
12. Under an arbitration agreement of 3 and 18 September 1985 Mr Süßmann and the Fund had recognised the jurisdiction of the Fund’s arbitration tribunals.
13. On 20 February 1987 the Arbitration Tribunal dismissed the applicant’s appeal.
14. On 11 May 1987 Mr Süßmann appealed from that decision to the Arbitration Appeals Tribunal of the Supplementary Pensions Fund (Oberschiedsgericht der VBL).
15. On 10 March 1989 the Appeals Tribunal likewise dismissed the applicant’s appeal finding that the reduction in his supplementary pension resulting from the amendment of the rules governing the Fund was not unlawful.
16. On 11 July 1988 the applicant lodged an appeal in the Federal Constitutional Court (Bundesverfassungsgericht) concerning the amendments to the Fund’s rules made in 1982 and 1984. Subsequently he also invoked other grounds.
On 4 April 1989 he extended the scope of his appeal to cover the decision of the Arbitration Appeals Tribunal of 10 March 1989.
17. Sitting as a panel of three members, on 6 November 1991 the Second Section of the First Division (zweite Kammer des ersten Senats) of the Federal Constitutional Court declined to accept the case for adjudication on the ground that the prospects of its succeeding were insufficient.
The Federal Constitutional Court noted that the appeal was inadmissible in so far as it raised for the first time issues of fact or of law that could have been pleaded in the ordinary courts. However, it found the remaining complaints admissible, in particular those relating to the unfair character of the proceedings in the Federal Court and the interference with the applicant’s right of property. As the Federal Court had ruled on the issues of fact and law at last instance in its judgments in the test cases of 16 March 1988, it was not necessary to file further appeals to exhaust the remedies in the ordinary courts.
However, even in regard to the complaints declared admissible, the Federal Constitutional Court considered that the constitutional appeal lacked sufficient prospects of success. It gave the following reasons:
1. There had been no violation of the applicant’s right to be heard in a court (Recht auf Gewährung rechtlichen Gehörs). In particular there was nothing to suggest that the tribunals had not taken due account of evidence concerning the amendment of the Fund’s rules. The decisions were essentially based on two reports drawn up by expert commissions in September 1975 and November 1983. It had not been necessary to take additional evidence.
2. Even if it were accepted that pension rights came within the ambit of the constitutional right of property, there was nothing to indicate that there had been an infringement of that right. It was lawful to reduce pension rights by amending the rules which were of a private-law character.
The Federal Court had held that the pensions under the scheme administered by the Fund were a matter of private law and this view had not been contested by the applicant. The Federal Court had moreover regarded the old-age pensions scheme in question as a collective insurance scheme (Gruppenversicherung), under which only the employers were considered to be insured, the employees (Arbeitnehmer) remaining mere beneficiaries (Bezugsberechtigte). Finally, the Federal Court had examined whether the amendment of the Fund’s rules had respected the interests of the employees and the principle of "good faith" (Treu und Glauben) and had taken the view that the measure in question had checked a development that was unacceptable socially and politically and had put an end to a situation that represented a considerable departure from the aims of the supplementary pensions scheme. In its opinion, the amendment of the rules was intended to consolidate all the old-age pensions schemes in order to meet the problems arising from economic and demographical changes and was based on a decision of principle taken by the employers’ and employees’ representatives.
The Federal Constitutional Court concluded its reasoning in the following terms:
"This application of the civil law does not infringe any fundamental right. The objective protection afforded by the right of property is not undermined by the classification of the insurance contract as group insurance, in which the employees are mere beneficiaries, or in the assessment of their individual interests. The argument that the public interest, and notably the interest of all employees in the consolidation of their pensions schemes, called for a reform of those schemes is plausible and is in any event not open to criticism from the point of view of constitutional law. The interests of employees regarded as beneficiaries may be adequately protected by the organisations that represent them. In view of the superior interest of all civil service employees in having a sound and affordable pensions scheme, a collective defence of those interests would seem objectively appropriate, as it is the sole means of ensuring the necessary balancing of interests within the group. Whatever the case may be, the objective substance of the right of property does not require additional protection of the individual beneficiary. The same applies to the assessment of the merits of the new rules. This is based on both the principle of proportionality and the need to protect confidence in the preservation of acquired pension rights."
Nor, it added, did the reversal of case-law by the Federal Court, which had previously considered employees to be insured under the rules in question, interfere with the right of property, because case-law had no legislative force and could evolve.
Finally, the Federal Constitutional Court observed that the amendment of the Fund’s rules did not breach the principle of equality before the law or that of the freedom of association. The applicant’s doubts as to the impartiality of the arbitrators were not relevant as the latter were not members of the judiciary, but sat on private-law arbitration tribunals.
18. The decision was notified to the applicant on 5 December 1991.
19. In the two years that followed the lodging of the applicant’s appeal in July 1988, the Second Section of the First Division dealt with twenty-four cases concerning the compatibility of the new rules of the Supplementary Pensions Fund with the Basic Law (Grundgesetz). Other appeals were lodged with it relating, inter alia, to redundancy notices served on employees (decision of 30 May 1991), an employer’s right to lock out strikers (decision of 26 June 1991) and the appeals filed by former civil servants of the German Democratic Republic challenging a provision of the Treaty on German Unification which terminated the employment contract of some 300,000 persons (decision of 24 April 1991).
20. Article 93 para. 1 of the Basic Law (Grundgesetz) provides as follows:
"The Federal Constitutional Court shall rule:
...
4. (a) on constitutional appeals which may be lodged by any person who considers that the public authorities have infringed one of his or her fundamental rights or one of his or her rights as guaranteed under Articles 20 (4), 33, 38, 101, 103 and 104 [of the Basic Law]."
21. The composition and functioning of the Federal Constitutional Court are governed by the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht).
22. Sections 90 to 96 of that Act concern constitutional appeals lodged by individuals (see paragraph 20 above). At the material time the version adopted in 1985 (applicable with effect from 1 January 1986) was in force .
"1. Any person who claims that one of his basic rights or one of his rights under Articles 20 (4), 33, 38, 101, 103 and 104 of the Basic Law has been violated by public authority may lodge a complaint of unconstitutionality with the Federal Constitutional Court.
2. If legal action against the violation is admissible, the complaint of unconstitutionality may not be lodged until all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a complaint of unconstitutionality lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant.
..."
"The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed."
"A complaint of unconstitutionality shall require acceptance prior to a decision (Annahme zur Entscheidung)."
"(1) A section may refuse acceptance of a complaint of unconstitutionality by a unanimous order if
1. the complainant has not paid the required advance at all (section 34 (6)) or has not paid it on time,
2. the complaint of unconstitutionality is inadmissible or does not offer sufficient prospects of success for other reasons, or
3. the division is not likely to accept the complaint of unconstitutionality in accordance with the second sentence of section 93c below.
The order shall be final.
(2) The section may uphold the complaint of unconstitutionality by a unanimous order if it is clearly justified because the Federal Constitutional Court has already decided on the relevant question of constitutional law ...
(3) The decisions of the section shall be taken without oral pleadings. In stating the reasons for an order by which acceptance of a complaint of unconstitutionality is refused, it is sufficient to refer to the legal aspect determining the refusal."
"If the section neither refuses acceptance of a complaint of unconstitutionality nor upholds it, the division shall then decide on acceptance. It shall accept the complaint of unconstitutionality if at least two judges hold the view that a question of constitutional law is likely to be clarified by a decision or that the denial of a decision on the matter will entail a serious and unavoidable disadvantage for the complainant. Section 93b (3) above shall apply mutatis mutandis."
Section 94 provides for the right of third parties to be heard in appeal proceedings in the Federal Constitutional Court.
"1. If the complaint of unconstitutionality is upheld, the decision shall state which provision of the Basic Law has been infringed and by which act or omission. The Federal Constitutional Court may at the same time declare that any repetition of the act or omission complained of will infringe the Basic Law.
2. If a complaint of unconstitutionality against a decision is upheld, the Federal Constitutional Court shall quash the decision and in cases pursuant to the first sentence of section 90 (2) above it shall refer the matter back to a competent court.
3. If a complaint of unconstitutionality against a law is upheld, the law shall be declared null and void. The same shall apply if a complaint of unconstitutionality pursuant to paragraph 2 above is upheld because the quashed decision is based on an unconstitutional law ..."
23. The Federal Constitutional Court Act was subsequently amended with a view to reducing the court’s workload. The amendments adopted in 1993 (which entered into force on 11 August 1993), among other things, reorganised the procedure for individual appeals (section 93a-93d of the 1993 Federal Constitutional Court Act).
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71901
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: VESELA AND LOYKA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants, Ms Marta Veselá and Mr Tobiáš Loyka, are Slovakian nationals, who were born in 1939 and 1947 respectively and live in Bratislava. They are represented before the Court by Mr P. Kočička, a lawyer practising in Banská Bystrica. The respondent Government are represented by Mrs A. Poláčková, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants set up a commercial limited liability company (“the company”) with a seat in Bratislava. Under Article 18 § 2 of the Civil Code in conjunction with the applicable provisions of the Commercial Code the company has a distinct legal personality. The company was later transformed into a joint stock company, its name was changed and its seat was moved to Banská Bystrica and than back to Bratislava. Since 23 October 2001 the name of the company has been PEAT GROUP Inc., a.s.
The applicants each own 50% of shares in the company and the first applicant is the chairperson of its board of directors and the second applicant is the chairperson of its supervisory board.
On 27 February 2001 the Banská Bystrica Regional Court (Krajský súd) made an insolvency order against the company. The order was however quashed on appeal by the Supreme Court (Najvyšší súd) on 31 July 2001.
On 20 December 2001 a new insolvency order was made. Under Article 14 § 1 (a) and (l) of the Bankruptcy and Composition Code (Law no. 328/1991 Coll., as amended), the declaration of insolvency entailed an automatic transfer of the right to make any dispositions in respect of the company’s estate and its operational affairs to the bankruptcy trustee. Pursuant to subparagraph 1 (d) in conjunction with subparagraph 5 of Article 14 of the Code, any pending judicial or other proceedings involving the company were automatically stayed and could only continue on the trustee’s request.
The insolvency proceedings are still pending.
In 1996 the company bought certain real property including a peat plant. The property was subject to a claim by a group of original owners and legal successors of original owners for restitution of their ownership title under the Land Ownership Act (Law no. 229/1991 Coll., as amended).
The restitution claim was granted by the Dolný Kubín Land Office (Okresný úrad, odbor pozemkový, poľnohospodárstva a lesného hospodárstva) in July 1996 and by the Tvrodšín Land Office in May 1997.
The decisions of July 1996 and May 1997 were quashed on the company’s administrativelaw appeals by the Banská Bystrica Regional Court on 29 November 1996 and the Košice Regional Court on 15 March 2003 respectively.
In the proceedings leading to the judgment of 15 March 2003 the bankruptcy trustee informed the Košice Regional Court by a letter of 15 November 2002 that she was the person entitled to act in the name of the company. By a letter of 16 December 2002 she requested under Article 14 § 5 the Bankruptcy and Composition Code that the proceedings continue.
In the meantime, on 31 January and 3 March 2000, respectively, the Tvrdošín Land Office had again granted the restitution claim in so far as brought by two categories of claimants. The trustee challenged these decisions by an administrativelaw appeal which is still pending in the Košice Regional Court.
On 3 September 2003 the Tvrdošín Land Office dismissed the whole of the restitution claim. Several of the claimants challenged the dismissal by an administrativelaw appeal which is also still pending in the Košice Regional Court.


ITEMID: 001-97228
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KOSTKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1934 and lives in Chmielno.
6. On an unspecified date the applicant applied to the Polish-German Reconciliation Foundation (“the Foundation”) for compensation on the ground that he and his parents had been deported to Germany with a view to performing forced labour in agriculture. That request was made under the scheme for slave and forced labourers (“the second compensation scheme”) established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (“the German Foundation Act”; “the GFA”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation (“the German Foundation”) and the Polish-German Reconciliation Foundation.
7. On 3 September 2003 the Foundation's Verification Commission decided that the applicant was not eligible for compensation. It informed him that under section 11 of the GFA only those forced labourers who had been deported to Germany or to an area occupied by it had been eligible for compensation. In the case of citizens of the Third Reich or persons placed on the List of German Nationals (Deutsche Volksliste; niemiecka grupa narodowościowa) their assignment to work by the German authorities was not considered compulsory. The Verification Commission established on the basis of documentary evidence that the applicant's parents had been placed on the List of German Nationals and that accordingly their assignment to work in Germany had not been compulsory.
8. On 27 October 2003 the applicant appealed against that decision. He strongly contested the Verification Commission's finding that the assignment to work of the persons who had belonged to the German Nationals' List had not been compulsory. He submitted that the farm of his parents had been sequestered by the German authorities without compensation. Subsequently, the applicant and his parents had been placed in the Jabłonów germanization camp. On account of his internment in the camp as a child the applicant was granted a veteran status by the Polish authorities. The applicant further argued that the seizure of his parents' prosperous farm without payment of compensation had been certainly effected against their will, as had been their transfer to work on a farm in Germany. He submitted that the placement on the German Nationals' List had resulted in most cases from various forms of coercion, in particular in Silesia and Pomerania where his family had been from. He concluded that his and his parents' deportation to perform forced labour in Germany had been compulsory.
9. On 20 August 2004 the Foundation's Appeal Commission dismissed the applicant's appeal. It reiterated that the applicant had not met the conditions specified in section 11 of the GFA. The Appeal Commission did not reason its decision.
10. On 29 November 2004 the applicant filed an appeal against that decision with the Appeal Commission for transmission to the Warsaw Regional Administrative Court. Since the appeal had not been transmitted, on 3 October 2005 the applicant made an application to the administrative court to impose a fine on the Appeal Commission.
11. On 19 October 2005 the Warsaw Regional Administrative Court rejected his application, finding that it did not have jurisdiction to examine appeals against decisions or inactivity of the Foundation. The court relied on the Supreme Administrative Court's Resolution of 3 December 2001 (no. OPS 3/01; see paragraph 37 below).
12. On 6 January 2006 the Supreme Administrative Court dismissed the applicant's appeal against the Regional Administrative Court's decision.
13. On 18 April 2006 the applicant lodged a constitutional complaint, alleging that the exclusion of the administrative court's jurisdiction in respect of the Foundation's decision had violated Article 45 § 1 of the Constitution, that provision guaranteeing access to court.
14. On 14 November 2007 the Constitutional Court discontinued the proceedings on procedural grounds (case no. SK 53/06). It found that the claimant had not obtained a “final decision” within the meaning of Article 79 of the Constitution, since he had mistakenly seized the administrative courts and not the civil courts to pursue his appeal against the Foundation's decision. The Constitutional Court relied on the constitutional presumption in favour of jurisdiction of the civil courts and the Supreme Court's Resolution of 27 June 2007 (see paragraph 38 below).
15. Article 9 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997, states:
“The Republic of Poland shall respect international law binding upon it.”
Article 45 § 1 of the Constitution reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
Chapter VIII of the Constitution contains provisions related to the judiciary. Article 175§ 1 of the Constitution provides:
“The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the ordinary courts, administrative courts and military courts.”
Article 177 of the Constitution states:
“The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts.”
Article 184, in so far as relevant, provides:
“The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration.”
16. On 16 October 1991 the Governments of the Federal Republic of Germany and the Republic of Poland concluded an agreement on the basis of which the German Government declared that, prompted by humanitarian considerations, it was prepared to contribute DEM 500 million for the benefit of the Polish-German Reconciliation Foundation. The Foundation was to be established by the Government of Poland with a view to providing financial assistance to victims of Nazi persecution who had been particularly wronged. The Foundation was to determine the necessary criteria for the granting of payments, having regard both to serious damage to the victims' health and to difficulties in their current financial situation. The Government of Poland declared that it would not pursue further individual claims by Polish citizens arising out of Nazi persecution. Both Governments indicated that their agreement should not amount to limitation of the rights of citizens of either country.
17. Subsequently, on 27 November 1991, the Minister–Head of the Cabinet Office (Minister – Szef Urzędu Rady Ministrów) acting as a Founder, made a declaration before the State Notary on the establishment of the Foundation. He declared that, acting on the initiative of the Government of the Republic of Poland and on behalf of the State Treasury, he was establishing the Polish-German Reconciliation Foundation. The Foundation's aim was to provide assistance to the victims of Nazi persecution and to undertake other activities for the benefit of those persons. The Minister also declared that the Foundation's capital fund consisted of DEM 500 million, contributed by the German Government to the Polish Government. The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984, which regulates the activities of foundations in Poland. In principle, supervision of a foundation's activities is exercised by the regional governor (Wojewoda) or the competent minister.
18. The Foundation's organs were the Supervisory Board (Rada Nadzorcza) and the Management Board (Zarząd). The members of those organs were appointed and dismissed by the Founder (government minister) who exercised full control in this respect. The two other organs of the Foundation were the Verification Commission (Komisja Weryfikacyjna), and the Appeal Commission (Odwoławcza Komisja Weryfikacyjna).
19. From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland.
20. The parties to the Joint Statement acknowledged the intention of the Government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act.
21. According to the Joint Statement, the Government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace.
22. Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”; the German Foundation Act; the GFA). It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts.
23. The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide:
Recognising
that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human-rights violations,
that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it,
that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility,
that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments,
that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime,
the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations. (...)
(1) A legally recognised Foundation with the name 'Remembrance, Responsibility and Future' shall be established under public law. (...)
(1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period. (...)
(...) (8) In concert with the Board of Trustees, the partner organizations may subdivide the category of forced labourers, within its quota, in accordance with Section 11, Paragraph 1, Sentence 1, Number 1, insofar as this involves persons interned in other places of confinement, as well as affected persons within the meaning of Section 11, Paragraph 1, Sentence 1, Number 2, into subcategories depending on the severity of their fate and may set correspondingly gradated maximum amounts. This shall also apply to the eligibility of legal successors. (...)
(1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment. (...)
(1) Eligible under this Law are:
1. persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour;
2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions; (...)
(2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant's eligibility may be substantiated in some other way.
(1) Awards under section 11, paragraph 1, sentence 1, numbers 1 or 2, or sentence 2 or sentence 5 are strictly personal and individual and must be applied for in one's own name. In a case where the eligible person has died after February 15, 1999, or where an award under Section 11, Paragraph 1, Number 3 or Sentence 4 is being applied for, the surviving spouse and children shall be entitled to equal shares of the award. If the eligible person left neither a spouse nor children, awards may be applied for in equal shares by the grandchildren, or if there are no grandchildren living, by the siblings. (...)
The partner organizations are to create appeals organs that are independent and subject to no outside instruction. The appeals process itself is to be free of charge. However, costs incurred by the applicant are not to be reimbursed.”
24. The Federal Constitutional Court examined a constitutional complaint against various provisions of the GFA which had been filed, among others, by a former Italian military internee and a civilian who had been subjected to forced labour. The complainants alleged, inter alia, that prior to the entry into force of the GFA they had had claims for compensation for forced labour against the Federal Republic of Germany, under German civil law in conjunction with international public law. They contended that the exclusion of judicial review of decisions by the International Organisation for Migration (one of the partner organisations) had violated their right to an effective remedy under Article 19 § 4 of the German Basic Law. Furthermore, they argued that the exclusion of former prisoners of war from the ambit of compensation under the Foundation Act was discriminatory.
25. On 28 June 2004 the Federal Constitutional Court held that the complaint was partly admissible, but unfounded. Referring to the Hague Convention on the Laws and Customs of War on Land (“The Hague Convention”) the court held that international public law had not established individual claims for compensation for forced labour. It noted, however, that it was not excluded that national law might establish such claims, but that in such a case the legislator enjoyed wide discretion. The court held further that the exclusion by section 11 § 3 of former prisoners of war from the scope of those eligible for benefits under the Foundation Act had not been discriminatory, since under the Hague Convention prisoners of war could be compelled to perform labour. In this respect the court observed that the legislator was allowed to distinguish, when awarding compensation, between victims of general hardships caused by the war and victims of particular ideological persecution by the Nazi regime, especially as the funds of the Foundation were limited.
26. In respect of the exclusion of judicial review by the Foundation Act, the Federal Constitutional Court found that Article 19 § 4 of the Basic Law required that a right did in fact exist, whose alleged violation could be examined by the courts. The court concluded that the legislator was free to decide not to establish an individual's claims vis-à-vis a public-law foundation and to exclude judicial review in this connection.
27. On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill, the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000.
28. On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the PolishGerman Reconciliation Foundation (“the partnership agreement”). Under its terms the PolishGerman Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the GFA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000.
29. The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of payment awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3).
30. The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of payments. The relevant parts provide:
“Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government's efforts, former slave and forced labourers will receive in total DEM 1,812 thousand million, which constitutes a very positive outcome to the negotiations.
The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.”
31. The statutes of the Polish-German Reconciliation Foundation was amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001.
32. The amended statutes stipulated that the Foundation was to disburse payments to the victims specified in section 11 of the GFA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation's decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5).
33. Pursuant to paragraph 20 of the amended statutes, the Verification Commission (Komisja Kwalifikacyjna) was to determine individual claims for assistance filed by victims of Nazi persecution. Members and the president of the Verification Commission were to be appointed and dismissed by the Foundation's management board (paragraph 21.1). Detailed regulations as to the organisation of the Verification Commission and the rules and criteria on the granting of assistance were specified in the internal regulations of the Verification Commission, drafted by the management board and adopted by the supervisory board (paragraph 21.2).
34. Decisions taken by the Verification Commission could be appealed against to the Appeal Commission (Komisja Odwoławcza). Its president and members are appointed and dismissed by the Foundation's management board, having consulted the supervisory board. The Appeal Commission operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board (paragraph 23.2). The amended statutes stipulated that the decisions of the Appeal Commission were final (paragraph 23.3).
35. On 31 December 2006 the Foundation terminated the disbursement of payments under the second scheme.
36. In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted Resolution no. III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the PolishGerman Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation's decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant's eligibility had been established but the benefit was not paid, a claim could arise under civil law.
37. In Resolution no. OPS 3/01 of 3 December 2001, the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that:
“The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.”
It further observed:
“There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.”
38. On 27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation. The Supreme Court held that:
“The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.”
In the reasons for its Resolution the Supreme Court found, inter alia, that:
“The procedure concerning examination of claims under the first and the second German fund ... may not be currently instituted. The relevant funds were allocated and the disbursement of payments has been finally concluded. (...)
There is no doubt that the current state of affairs resulting from the relevant case-law, under which those persons interested in challenging before a court the Foundation's refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule. (...)
The need for extensive interpretation of the individual's access to a court, or in other words, the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights, which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations.... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no. IV CSK 312/06, unpublished).
The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court. The [civil] court also has jurisdiction where a case has the features of a civil case only in the formal sense.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1