ITEMID: 001-80846
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GONCHAROVA AND ALEKSEYTSEV  v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Ms Zinaida Ivanovna Goncharova and her son Mr Artem Alekseytsev, are Russian nationals who were born in 1955 and 1986 respectively and are currently in Sweden.
On 31 August 2002 the applicants (together with S., the husband/father of the applicants) arrived in Sweden from Russia and, on the following day, they applied to the Migration Board (Migrationsverket) for asylum and residence permits. The first applicant stated that she was a trained engineer and had worked at a construction site in Siberia where she had met S. who also worked there. In 1998 the family had moved to Kaliningrad, where they had lived until the departure to Sweden. According to the applicants, the first applicant had been working as an election administrator during the mayor’s election in 1994 and had revealed irregularities, for which reason she had been dismissed from work. Following this, the authorities had harassed the family in different ways, inter alia, by creating administrative problems for them (their apartment had not been repaired, they had been prohibited from using electrical appliances in their home, their telephone had been cut off and they had not received proper medical care). The first applicant had complained about their problems to the authorities, the Duma and the President but the only result had been that the local authorities had threatened them and had told the first applicant to stop complaining. In 1999 the applicants had been assaulted and battered by unknown men; they strongly suspected that the authorities were responsible. The second applicant had been granted 1,500 roubles in compensation for the battering but he had only received 500 roubles. He alleged that the persons who had battered him had told him that his mother should stop complaining. He still suffered from headaches and problems with his heart. The second applicant further stated that he feared being drafted for military service and being sent to Chechnya, where several of his friends had died.
On 12 May 2003 the Migration Board rejected the family’s application for asylum and residence permits. It found that the difficulties which the family had endured in their home country could neither be classified as persecution nor be considered serious enough to grant the family residence permits on humanitarian grounds. With regard to the second applicant’s fear of being drafted for military service, the Board observed that this was not a ground on which he could be granted leave to stay in Sweden.
The applicants appealed to the Aliens Appeals Board (Utlänningsnämnden), maintaining their claims and adding a number of examples of how the family had been treated unjustly by the authorities because of the first applicant’s complaints to them. The applicants had, inter alia, not been given a proper apartment to live in and had also been refused housing benefits from the State. The first applicant further alleged that she had been threatened and harassed in Sweden because she had reported a person for drug abuse. She stated that she could take no more and that both she and S. were receiving psychiatric help following an attempt by S. to hang himself. The second applicant claimed that he suffered from recurring headaches.
On 24 February 2004 the Aliens Appeals Board rejected the appeal, sharing the Migration Board’s reasoning and conclusion. It further found that the applicants’ mental health problems were not of such a serious nature that they could be granted residence permits on humanitarian grounds.
The applicants then lodged a new application for residence permits, relying on the same grounds as before and adding that the Swedish authorities had not examined their application properly. The first applicant claimed that her life would be in danger if she were forced to return to Russia, since they had been denied all civil and human rights there. Moreover, she had written more letters to the Russian President and the State Prosecutor which had led to her sister being harassed by Government representatives and local authorities in Kaliningrad. The sister had been asked questions about the whereabouts of the first applicant and threatened.
On 22 April 2004 the Aliens Appeals Board rejected the new application. It observed that it had already considered the applicants’ claims in its earlier decision and found no reason to change it. In reaching this conclusion, it had regard to the additional submissions made by the applicants.
The applicants lodged another new application with the Aliens Appeals Board, adding to their earlier claims that the second applicant would face a real risk of being bullied if, upon return, he had to do his military service. Due to the family’s very difficult situation, he had tried to commit suicide in August 2004 and the personnel at the hospital had had to watch over him 24 hours a day. He had remained in psychiatric care as an in-patient on a voluntary basis for three weeks. They submitted several medical certificates concerning the entire family.
On 21 September 2004 the Aliens Appeals Board also rejected this application, noting that the second applicant did not suffer from a serious mental disorder but that his poor mental health was due to the family’s stressful and insecure living situation. It therefore concluded that neither his nor his parents’ mental health was so poor that the family could be granted leave to stay in Sweden
On 5 November 2004 the applicants were deported to Kaliningrad.
On 10 December 2004 the second applicant returned to Sweden and his girlfriend’s mother let him stay with them. However, he did not apply for asylum and a residence permit until 22 April 2005. Before the Migration Board, he claimed that he and his parents had been detained by the police for two days upon return to Russia and that he had been beaten with batons. When they had returned to their home town, Sovetsk, he had once been attacked by three unknown persons at the entrance to their apartment building. His mother had also been threatened on the phone by unknown persons. It had been impossible for him to live in Russia because of all the threats against him and his parents. If he had to return, he would not be able to study, get a job or have access to health care. Moreover, he alleged that he had been called to do his military service and that, since he had left the country, he was considered a deserter and would risk a long prison sentence. The second applicant further stated that he was depressed and feeling unwell, for which he was seeing a counsellor. Lastly, he invoked his relationship with his Swedish girlfriend (born in July 1990) and the fact that he lived with her and her family. They had met in January 2004 and been together since then.
On 11 November 2005 the Migration Board rejected the application. It first noted that the second applicant could not be granted asylum because he had evaded military service and it found nothing to suggest that he would receive a disproportionate sentence if he was tried and convicted of desertion. The Board then considered that it was for the Russian authorities to deal with threats and violence from unknown persons and that the second applicant had failed to show that the Russian authorities neither could nor would help him. Moreover, he could not be granted leave to stay either based on reasons of a social/economic nature or based on his alleged poor health. Lastly, the Board noted that the second applicant’s girlfriend was only 15 years old and that it was normally required that both persons in a relationship were adults (over 18 years old) for the Board to consider granting a residence permit based on a close relationship. In any event, it observed that the second applicant could apply for a residence permit based on the relationship from Russia, as was the normal procedure.
The second applicant appealed to the Aliens Appeals Board, relying on the same grounds as before and adding that it would be inhumane to send him back.
On 23 February 2006 the Aliens Appeals Board upheld the Migration Board’s decision in full.
The Migration Board then carried out a new examination of the second applicant’s case under the interim amendments to the Aliens Act in force at the time. The second applicant submitted that he should be allowed to stay in Sweden since he had been in the country for a long time and had developed strong ties to Swedish society. In this respect, he referred to his girlfriend with whose family he lived, that to the fact that he was playing in a local football club and that he had been promised a job if he got a residence permit. He further stated that it would be devastating to his mental health and development if his medical treatment was interrupted. Lastly, he claimed that the Russian military authorities were looking for him because he had not yet done his military service.
On 22 June 2006 the Migration Board decided that he could not be granted leave to stay in Sweden based on the interim amendments to the Aliens Act. It considered that the second applicant had not been in Sweden for such a long time that he had established strong ties to Swedish society. Moreover, his medical condition was not so serious that he could be granted leave to stay on this ground and he should have applied for a residence permit on the basis of his relationship with his girlfriend before having entered Sweden. The Board concluded that the second applicant had not invoked any new circumstances which had not already been considered by itself or the Aliens Appeals Board and that there were no reasons to depart from their earlier conclusions. This decision could not be appealed against.
During the spring of 2006 the first applicant returned to Sweden and renewed her application for asylum and a residence permit. This application is still pending before the Migration Board. It would seem that S. remains in Kaliningrad.
According to medical certificates, dated 27 May 2004, 30 August 2004 and 14 October 2004, written by M. Hansson, counsellor, O. Elmgren, resident doctor, and E. Erenius, chief physician and specialist in psychiatry, at the child and youth psychiatric unit at Karlshamn hospital, the second applicant had been in contact with the unit since the end of October 2003. He had contacted them for problems with recurring headaches which he claimed had been caused by the battering in Russia and for which he had also seen a neurologist in Kaliningrad. The second applicant had been very afraid, anxious and stressed by the thought of being deported and had preferred to be with his friends, playing football, instead of being at home. His insecure living situation had deeply affected him and, on 16 August 2004, he had tried to commit suicide by taking an overdose of pills. He had been hospitalised and, initially, kept under surveillance. He had left the hospital at the beginning of September 2004 but had been hospitalised again on 23 September 2004, following another rejection by the Aliens Appeals Board. Apparently, he had threatened to kill himself using a knife but his mother had intervened. This time he had remained at the hospital for four weeks, diagnosed as suffering from severe depression and post-traumatic stress disorder (PTSD) caused by various traumas over many years.
After his return to Sweden, in December 2004, he had contacted the psychiatric unit at the hospital. He had begun to have regular contact with his counsellor, M. Hansson, who, in a medical certificate dated 12 July 2006, stated that, on 8 July 2006, he had tried to commit suicide by taking pills, following a rejection of his application for asylum by the Migration Board. He had been urgently hospitalised as he had lost consciousness. He had been disappointed that the suicide attempt had failed but had been released from hospital after a few days when the treating physician considered that he was no longer suicidal. The counsellor concluded that the second applicant was in great need of care and treatment to deal with his situation and the trauma of having been an asylum seeker for many years without any stability in his life. There was a risk that his mental health had been seriously damaged which could lead to him developing a serious mental disorder.
The last medical certificate, dated 11 September 2006, was written by O. Elmgren and stated that the second applicant suffered greatly from his insecure situation and had lost faith in the future. The doctor considered that the second applicant was on the verge of a serious mental crisis and that there was a clear risk of suicide.
On 4 August 2006 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of their deportation to Russia.
On 9 August 2006 the President of the Second Section decided to apply Rule 39. He further decided to request the Swedish Government to provide information on the second applicant’s current mental health and whether it would be an impediment to his deportation.
On 9 November 2006 the Government informed the Court that, on 11 August 2006, the Migration Board, following the Court’s request, had decided to stay the deportation of the second applicant until further notice. However, since the first applicant’s application for asylum and a residence permit was still pending before the Migration Board, no enforceable deportation decision existed against her which could be suspended.
As concerned the second applicant’s mental health and the possibility to deport him, the Government submitted that, based on the medical evidence available, his poor mental health related primarily to his uncertain situation as an asylum seeker in Sweden and the prospect of being expelled. In this respect, they noted that both his suicide attempts had been directly linked to decisions to reject his asylum applications or preparations to enforce the deportation orders. Moreover, the care offered by the psychiatric unit had focused on ways for the second applicant to cope with his situation and to support him. The diagnosis from 2004 that he suffered from PTSD and severe depression had not been repeated and, in the Government’s view, there was nothing to support such a diagnosis at the present time. On the contrary, they observed that he had only met with the counsellor three times between January and July 2006. In any event, they found nothing in the medical evidence available to substantiate that his current state of health was so poor that he could be considered to be suffering from a serious mental disturbance. In these circumstances, and referring to the Court’s case-law, the Government considered that there were no impediments to deporting the second applicant to his home country. They also expressed their confidence that a deportation would be carried out in such a manner as to minimise the suffering of the second applicant, taking into account his medical condition.
The basic provisions, applied in the present case, concerning the right of aliens to enter and to remain in Sweden were laid down in the 1989 Aliens Act (utlänningslagen, 1989:529 – hereinafter referred to as “the 1989 Act”). However, the 1989 Act was replaced, on 31 March 2006, by a new Aliens Act (Utlänningslag, 2005:716 – hereinafter referred to as “the 2005 Act”). Both the 1989 and 2005 Acts define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
Chapter 1, Section 4 of the 1989 Act provided that an alien staying in Sweden for more than three months should have a residence permit. Such a permit could be issued, inter alia, to an alien who, for humanitarian reasons, should be allowed to settle in Sweden (Chapter 2, Section 4). For example, serious physical or mental illness could, in exceptional cases, constitute humanitarian reasons for the grant of a residence permit if it was a life-threatening illness for which no treatment could be provided in the alien’s home country.
Further, according to the 1989 Act, an alien who was considered to be a refugee or otherwise in need of protection was, with certain exceptions, entitled to residence in Sweden (Chapter 3, Section 4). The term “refugee” referred to an alien who was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group, or religious or political opinion, and who was unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country. This applied irrespective of whether the persecution was at the hands of the authorities of the country or if those authorities could not be expected to offer protection against persecution by private individuals (Chapter 3, Section 2). By “an alien otherwise in need of protection” was meant, inter alia, a person who had left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 3, Section 3).
An alien who was to be refused entry, deported or expelled, in accordance with a decision that had gained legal force, could be granted a residence permit if he or she filed a new application based on circumstances which had not previously been examined, and if the alien was entitled to a residence permit under Chapter 3, Section 4, or it would be contrary to the requirements of humanity to enforce such a decision (Chapter 2, Section 5 b). Regard could also be had to serious illness under this provision. Such new applications were filed with and examined by the Aliens Appeals Board (Chapter 7, Section 7).
As regards the enforcement of a refusal of entry, deportation or expulsion, account had to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien could not be sent to a country where there were reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 8, Section 1).
In essence, the 2005 Act did not substantially amend the above provisions, except for the following.
By the 2005 Act, the Aliens Appeals Board has been replaced by the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3). Moreover, it is no longer possible to renew applications but, instead, the Migration Board shall, on its own initiative, determine whether there is any impediment to the deportation or expulsion (Chapter 12, Section 18).
Furthermore, between 15 November 2005 and 30 March 2006, certain interim amendments to the 1989 Act were in force, according to which the Migration Board, upon application by an alien or on its own initiative, could re-determine final decisions already taken by the Aliens Appeals Board. The object of these temporary amendments was to grant residence permits to aliens who, inter alia, had been in Sweden for a very long time or where there existed “urgent humanitarian interests” (humanitärt angeläget). Special consideration was given to the situation of children.


ITEMID: 001-98575
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: CAKIR v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The five applicants are Cypriot nationals who live in the “Turkish Republic of Northern Cyprus” (“TRNC”). The first applicant, Mrs Halide Çakir, is the mother of the second, third and fourth applicants, Mr Serkan Çakir, Mrs Sinem Çakir and Mr Songür Çakir. The fifth applicant, Mr Mehmet Çakir, is the brother-in-law of the first applicant. The applicants were born in 1947, 1965, 1968, 1971 and 1943 respectively. The first four applicants have lodged the application on their own behalf and on behalf of Mr Erdoğan Çakir, the husband of the first applicant and the father of the second, third and fourth applicant. The fifth applicant has lodged the application on his own behalf and on behalf of his brothers, Mr Erdoğan Çakir and Mr Mustafa Çakir. The applicants were represented before the Court by Mr Z. Necatigil and Ms S. Karabacak, lawyers practising in the TRNC.
The complaints raised in the present application concern events that took place during the second round of military operations by Turkey in northern Cyprus in August 1974.
Before the events of August 1974, the applicants, Mr Erdoğan Çakir and Mr Mustafa Çakir lived in Ktima, in the district of Paphos.
On 14 August 1974, the Turkish quarter of Ktima was under heavy fire from units of the Cypriot National Guard. The United Nations Peace Force advised Turkish-Cypriot residents, through loudspeakers, to remain in their houses and the Çakir family, including the applicants and Erdoğan and Mustafa Çakir, gathered in the house of Erdoğan Çakir. At the time, the second, third and fourth applicants were children aged nine, six and three years respectively, Mustafa Çakir was 22 years old and Erdoğan Çakir was 36 years old. Everyone in the house was in civilian clothes and unarmed. While they were in the house, members of the Greek-Cypriot forces fired at the door with automatic weapons. They subsequently kicked the door open while continuing to fire, shooting and wounding Erdoğan Çakir, who was close to the door. Mustafa Çakir then entered from the adjacent room with his hands on his head pleading with the assailants not to shoot as there were women and children among them. He was taken outside and shot with an automatic weapon. He died immediately. The dead and wounded were taken outside while the women and children were kicked, humiliated, abused and struck with rifle butts before being pushed out of the house. Erdoğan Çakir, who was still alive at the time not having received fatal wounds, was taken away by the Greek-Cypriot forces, together with the dead body of Mustafa Çakir.
All the remaining Turkish Cypriots were taken from their houses to the football pitch in town. There they were divided into groups. A number of them, including the fifth applicant, were sent to a prisoners' camp and the rest were sent back to their homes. The fifth applicant was detained in the prisoners' camp for 42 days.
On 15 August 1974, the day after the killings, the dead bodies of Erdoğan and Mustafa Çakir were returned to their relatives by the United Nations Peace Force. They were taken by their relatives to the courtyard of the local mosque for burial. Erdoğan Çakir's jaw and ribs were broken and he had pinholes in his body.
The Social Welfare Officer of the town, Murad Hüsnü Özad, identified by name six persons he alleged were responsible for the crimes committed on 14 August 1974. According to the applicants, the Greek-Cypriot authorities also knew the identities of the persons concerned and the Greek-Cypriot President at the time announced that those responsible would be punished.
In 2005, the second applicant visited the tombs of his father and uncle in the Greek part of the island. He was approached by a Greek-Cypriot who informed him of the names of three people responsible for their deaths; all three were among those previously accused by Murad Hüsnü Özad of the killings. The second applicant was also told that the massacre had been ordered by a Greek military chief commandant.
By letter dated 23 February 2006 the applicants' lawyer requested the Attorney-General of the Republic of Cyprus to inform him, by the end of March 2006, whether the authorities had carried out any investigation into the killings of Mr Erdoğan Çakir and Mr Mustafa Çakir; the result of any such an investigation; and whether the persons involved in the commission of the crimes had been brought to justice.
By letter dated 20 April 2006 the Attorney-General informed the applicants' lawyer that the contents of his letter of 23 February 2006 was under consideration and that he would contact him in due course. No further correspondence from the Attorney-General has been received by the applicants' lawyer.


ITEMID: 001-69560
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 2005
DOCNAME: CASE OF JAHN AND OTHERS v. GERMANY
IMPORTANCE: 1
CONCLUSION: No violation of P1-1
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 13. The first applicant, Ms Heidi Jahn, is the sister of the second applicant, Mr Albert Thurm. They were both born in 1947 and live in Sangerhausen. The third and fourth applicants, Ms Erika Rissmann and Ms Ilse Höller, are sisters. They were born in 1942 and 1944 respectively and live in Erftstadt and Stotzheim. The fifth applicant, Ms Edith Loth, was born in 1940 and lives in Frankfurt an der Oder.
14. In September 1945, people in the Soviet Occupied Zone of Germany who owned more than 100 hectares of land were expropriated under the land reform (Bodenreform). The land became part of a pool of State-owned land (Staatlicher Bodenfond) from which parcels of land averaging eight hectares in area were redistributed to farmers who had little or no land of their own.
15. The applicants are the heirs of the new owners (then called “new farmers” – Neubauern) of the land redistributed under the land reform (Bodenreformgrundstücke) and situated in the former German Democratic Republic (GDR).
16. The 1945 Land Reform Decrees (Bodenreformverordnungen – see paragraphs 55-56 below) constituted the statutory basis of this land reform. They provided that the disposal of land acquired under the land reform was subject to restrictions (Verfügungsbeschränkungen). The certificates of allotment (Zuteilungsurkunden) stated that the land could pass to the new owner's heirs.
17. The decrees stipulated that certain portions of the land had to be used for agricultural purposes in order to provide sufficient food for the population.
18. The Change of Possession Decrees of 21 June 1951, 7 August 1975 and 7 January 1988 (Besitzwechselverordnungen – see paragraphs 57-59 below) dealt with cases where the land was returned to the pool of State-owned land or assigned to third parties, with the proviso that the latter undertook to use it for agricultural purposes.
19. After the fall of the Berlin Wall on 9 November 1989, negotiations started between the two German States and the four former occupying powers (France, the United Kingdom, the United States and the Soviet Union) and led to the reunification of Germany, which took effect on 3 October 1990.
20. As part of those negotiations, and in order to ensure a transition from a socialist economy to a market economy, the GDR parliament passed the Law of 6 March 1990 on the rights of owners of land redistributed under the land reform (Gesetz über die Rechte der Eigentümer von Grundstücken aus der Bodenreform – see paragraph 61 below), also known as the Modrow Law (after the President of the State Council (Staatsrat) at the time), which came into force on 16 March 1990.
The Modrow Law lifted all restrictions on the disposal of land acquired under the land reform, whereupon those in possession of the land became owners in the true sense of the word.
21. On 18 March 1990 the first free elections took place in the GDR.
22. On 3 October 1990 the Modrow Law became an integral part of the law of the Federal Republic of Germany (FRG).
23. On 14 July 1992 the FRG legislature enacted the second Property Rights Amendment Act (Vermögensrechtsänderungsgesetz) on the liquidation (Abwicklung) of the land reform in the Länder of the former GDR. It came into force on 22 July 1992.
24. When passing that Act, the legislature inserted subsections (11) to (16) into section 233 of the Introductory Act to the Civil Code (Einführungsgesetz in das Bürgerliche Gesetzbuch – see paragraphs 65-69 below) on the basis of the principles set out at the time in the GDR by the Land Reform Decrees and the Change of Possession Decrees.
25. The first two applicants had inherited land in the Land of Saxony-Anhalt in 1976. They had been registered in the land register as the owners of that land since 14 July 1992.
26. On 18 January 1994 they attempted to sell it.
27. On 12 July 1994 the Department of Agriculture and Rural Land Consolidation (Amt für Landwirtschaft und Flurneuordnung) of the Land of Saxony-Anhalt opposed the sale, following which a right of pre-emption in favour of the tax authorities was registered in the land register.
28. On 15 February 1995 the department in question applied to the Sangerhausen District Court (Amtsgericht) for an order requiring the applicants to reassign their property to the Land of Saxony-Anhalt without compensation.
29. In a judgment of 2 November 1995, the Sangerhausen District Court ordered the applicants to reassign their property in accordance with section 233(11), paragraph 3, and 233(12), paragraphs 2 and 3, of the Introductory Act to the Civil Code (see paragraphs 67-69 below). It held that they had had no right to inherit land that had been acquired under the land reform because neither of them had been carrying on an activity in the agriculture, forestry or food-industry sectors on 15 March 1990 or during the previous ten years.
30. The applicants appealed.
31. In a judgment of 22 March 1996, the Halle Regional Court (Landgericht) dismissed their appeal on the ground that, on inheriting the property, the applicants had not acquired title to it for the purposes of the Basic Law (Grundgesetz), because in 1946 land acquired under the land reform had already been subject to substantial restrictions in the GDR. The Land Reform Decrees of 1945 and the Change of Possession Decree of 1951 prohibited the sale of such land and provided that any decision regarding a change of possession was a matter for the State. That position had not been altered by the Change of Possession Decree of 1975.
32. On 24 April 1996 the applicants appealed to the Federal Constitutional Court on the grounds that they were the legitimate heirs to and owners of the land. In their submission, the GDR Change of Possession Decrees restricting the use of land acquired under the land reform had been passed after their mother had acquired the land and were therefore inapplicable in their case.
33. On 17 June 1996 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, dismissed their appeal.
The Constitutional Court held, as it had previously held in its judgment of 4 October 1995 on the same issue (see paragraph 70 below), that the statutory provisions in question did not breach the applicants' right of property, or the principle that laws could not apply retrospectively, or the principle of equality.
34. The third and fourth applicants had inherited land in the Land of Mecklenburg-West Pomerania in 1978. They had been registered in the land register as the owners of that land since 1996.
35. They had leased their land to an agricultural company called Breesen for twelve years, from 1 January 1991 to 31 December 2002.
36. On 3 July 1998 the Land of Mecklenburg-West Pomerania requested that the land be transferred into its name on the ground that it had “superior title” (bessere Berechtigung) to it under section 233(11), paragraph 3, and 233(12), paragraphs 2 and 3, of the Introductory Act to the Civil Code (see paragraphs 67-69 below).
37. In a judgment of 29 October 1998, the Neubrandenburg Regional Court ordered the applicants to transfer their property to the Land of Mecklenburg-West Pomerania on the ground that on 15 March 1990 they had neither been members of an agricultural cooperative (Landwirtschaftliche Produktionsgenossenschaft) in the GDR nor applied for membership of one.
38. The applicants appealed on the ground, inter alia, that, since the leading judgment of the Federal Court of Justice of 17 December 1998 (see paragraph 71 below), it had been established that title to land acquired under the land reform could pass to the owner's heirs.
39. In a judgment of 17 August 1999, the Rostock Court of Appeal (Oberlandesgericht) dismissed the appeal, holding that the statutory provisions in question were compatible with the Basic Law. It found, inter alia, that the German legislature had thus sought to remedy the loopholes in the Modrow Law, which contained no transitional provisions for cases where changes of ownership had not been recorded in the land register.
40. The applicants appealed to the Federal Constitutional Court, alleging a breach of their property and inheritance rights, of the rule that laws could not apply retrospectively, and of the principle of equality. They submitted that there had been no constitutional justification for interfering with their right of property without compensation and that the interference had been neither proportionate nor necessary.
Furthermore, they were no longer in a position to satisfy the requisite criteria, for example by becoming members of a GDR agricultural cooperative.
41. In a leading decision of 6 October 2000, the Federal Constitutional Court, ruling as a panel of three judges, dismissed the applicants' appeal on the ground that there had not been a breach of their fundamental rights.
42. The relevant extract of that decision reads as follows:
“1. The decisions that are the subject of this appeal are contrary neither to Article 14 of the Basic Law nor to the principles of protection from retrospective laws, which in that provision has an autonomous meaning ...
(a) The rules under section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code, which were applied by the civil courts, are compatible with the right of property enshrined in Article 14 of the Basic Law.
(aa) According to the undisputed and not manifestly unconstitutional finding of the Court of Appeal, title to land acquired under the land reform in the Soviet Occupied Zone and the German Democratic Republic could pass to the owner's heirs. That is how, under inheritance law, the appellants acquired title to the land in question. Although their rights were initially subject to the restrictions set out in Article VI, no. 1, of Decree no. 19 of 5 September 1945 on the land reform in the Land of Mecklenburg-West Pomerania ... and the various Change of Possession Decrees, those restrictions were subsequently lifted when the Law of 6 March 1990 came into force. It can therefore be assumed, as it was by the Court of Appeal, that from then on title to property acquired under the land reform conferred full ownership and as such fell within the scope of the Basic Law, including in those cases where it had passed to the heirs [Alterbfälle], that is, in cases where the owner originally registered in the land register had died before 16 March 1990.
(bb) Section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code has the effect of depriving the owners of land acquired under the land reform of their title to the land. That does not mean, however, that the land is expropriated within the meaning of Article 14 § 3 of the Basic Law. Expropriation is the taking by the State of an individual's property. It fully or partially deprives individuals of their personal and actual legal title guaranteed by Article 14 § 1 of the Basic Law, in order to achieve specific public aims ... Section 233(11) to (16) of the Introductory Act to the Civil Code is designed to remedy ex post facto the repeal without transitional provisions [ersatzlose Aufhebung] of the change of possession provisions [Besitzwechselvorschriften] implemented by the Law of 6 March 1990 and to clarify the position regarding title to land acquired under the land reform ... The provisions of section 233(11), paragraph 3, first sentence, taken in conjunction with section 233(12), paragraph 2, no..2, letter (c), and paragraph 3 being indirectly challenged here are part of this idea of regularisation [ist Teil dieses Regelungskonzepts] and thus amount to rules establishing the substance and limits of ownership (of land), within the meaning of Article 14 § 1, second sentence, of the Basic Law.
(cc) In order to accomplish the task required of it under the said provision, the legislature has to take account of both the legal position of the owner and the requirements of the system of socially fair ownership under Article 14 § 2 of the Basic Law. It also has to strike a fair balance [gerechter Ausgleich] and proportionate relationship [ausgewogenes Verhältnis] between the legitimate interests of the persons concerned. Unilateral favourable or unfavourable treatment of some rather than others would not be in keeping with the constitutional foundations of a socially just system of private property ...
In exercising its legislative power under Article 14 § 1, second sentence, of the Basic Law, the legislature can also, in certain circumstances, nullify existing legal positions protected by a property safeguard when undertaking a general reform of a particular legal area ... Moreover, fundamental changes in the economic and social situation can broaden its margin of manoeuvre when creating new legislation. The legislature can also, in enacting provisions on the basis of Article 14 § 1, second sentence, of the Basic Law, take account of the difficulties caused by the transition from the socialist legal order and its property regime, including the legal positions subsequently acquired, to the legal system of the Federal Republic of Germany and to the fact that such a transition cannot be implemented overnight. This will have implications for the interpretation of a particular law. Individual provisions imposing a burden cannot be examined in isolation regardless of their legislative context, or without regard to the fact that the desired legal position can only be put in place step by step ...
(dd) Judged in the light of those criteria, the rules under section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code are compatible with Article 14 § 1 of the Basic Law.
(aaa) The provisions complained of pursue a legitimate aim.
According to the legal reasoning of the Federal Court of Justice, which was adopted by the Court of Appeal in the original proceedings, section 233(11), paragraph 3, first sentence, taken together with section 233(12), paragraph 2, no. 2, letter (c), and paragraph 3 of the Introductory Act to the Civil Code remedies a hidden legislative loophole in the Law of 6 March 1990 regarding the inheritance of title to property acquired under the land reform, which is at the heart of the instant case. In theory, this finding binds the Federal Constitutional Court. Like the establishment and assessment of the facts relevant to the decision, the interpretation and application of the law of another State are matters for the jurisdiction of the ordinary courts. Only under certain conditions does the Federal Constitutional Court have corrective power in that regard. Those conditions would only be met here if the assessment of the law of the German Democratic Republic relating to a hidden loophole in the Law of 6 March 1990, which forms the basis of the Court of Appeal's judgment, had breached Article 3 § 1 of the Basic Law ... in so far as it prohibits arbitrariness ... This is not the case, however.
In the light of the relevant statutory provisions, the Federal Court of Justice established that the deliberations in the People's Chamber [Volkskammer] on 6 March 1990 were designed to prepare the German Democratic Republic's statutory agricultural regime for adjustment to a social market-economy orientated agriculture. It noted in that connection that priority had been given to amending the Agricultural Cooperatives Act. At the same time, however, the restrictions on the disposal of land acquired under the land reform were also to be lifted and inheritance rights guaranteed in the future. In doing so, the People's Chamber apparently did not realise that the repeal (deemed necessary for that purpose) of the Change of Possession Decrees without any transitional provisions for those transfers and returns that had not been implemented also extended to cases where title to property acquired under the land reform had passed to the owner's heirs. The Federal Court of Justice found that simply transferring title to land used for agricultural purposes to the heirs of beneficiaries who had died, even where the heirs in question did not live in the German Democratic Republic or did not work in the agricultural sector ... did not contribute to the adjustment of a State agricultural system to a market one.
That reasoning is understandable [nachvollziehbar] and does not in any way support the assumption that the assessment of the Federal Court of Justice – and therefore of the Court of Appeal – was based on considerations that were irrelevant to the facts of the case and thus breached the prohibition on arbitrariness contained in the Basic Law. It is not for the Federal Constitutional Court to decide whether the drafting history of the Law of 6 March 1990 and legal development in the territory that subsequently acceded to the Federal Republic up until reunification indicate that it was the legislature's intention to repeal – without any transitional provisions, including for cases where land acquired under the land reform had passed to the owner's heirs – the restrictions on the disposal of title to land acquired under the land reform and the Change of Possession Decrees.
(bbb) Nor is the manner in which the legislative loophole identified by the Federal Court of Justice was remedied by the provisions in question open to criticism from the point of view of compatibility with the Basic Law. It leads, against the background of the former decrees of the German Democratic Republic on changes of possession, to an appropriate system of ownership reflecting the factual situation and one that is, moreover, acceptable to the interested parties and clarifies the position for the future.
1. Article 4 § 1 of the Change of Possession Decree of 7 August 1975, in the version set out in the Decree of 7 January 1988, provided that, on the request of an heir to land acquired under the land reform, the district council was to transfer the rights and obligations relating to the use of the land to the heir or to a member of his family designated by him, with the proviso that the heir or the member of his family concerned use the land for agricultural purposes as a member of a cooperative or as a labourer. Where there were several heirs, they had to inform the district council promptly to which heir or other member of their family the rights and obligations associated with farming the land should be transferred. If the conditions for transfer were not satisfied, the land would return to the pool of State-owned property, in accordance with Article 4 § 5 of the decree.
2. By enacting section 233(11), paragraph 3, first sentence, taken together with section 233(12) of the Introductory Act to the Civil Code, the parliament of reunified Germany transposed these legal principles wholesale. The parties have therefore been placed in the situation that they would have been in if the Change of Possession Decrees had been properly applied and implemented by the authorities of the German Democratic Republic prior to the entry into force of the Law of 6 March 1990 or if, before reunification, the legislature of the German Democratic Republic had enacted transitional provisions akin to the rules previously governing changes of possession. The provisions complained of, as the Court of Appeal rightly held, moreover, did not destroy the legitimate confidence [schutzwürdiges Vertrauen] of the heirs of owners of land acquired under the land reform.
It was not generally possible to have confidence in the continued application of the laws of the German Democratic Republic at the time of the change of regime [Wende], given the possible reunification of the two German States. Such confidence would have been justified only if there were special reasons for believing that the law of the German Democratic Republic would exceptionally remain in force ... The expectation that property ownership acquired prior to the entry into force of the Basic Law in the territory that had acceded to the Federal Republic would in principle be recognised could not be as extensively protected as the expectation that the rights acquired by virtue of the Basic Law would be maintained. In any event, the only factor to be taken into consideration for the protection of this expectation is the factual and legal position the German federal legislature found to obtain in the German Democratic Republic when it ceased to exist as a State and which, in the course of reunification, was so to speak transposed as a legal element into the sphere of application of the Basic Law ...
Consequently, the heirs of the owners of land acquired under the land reform could no longer legitimately expect to maintain the title they had acquired by virtue of the failure to implement the Change of Possession Decrees enacted at the time of the German Democratic Republic. Nor did the transition, in terms of both the general and the constitutional law, of the German Democratic Republic to a legal order protecting private property offer particular grounds for expecting that, where land acquired under the land reform passed to the owner's heirs, title to the land – described in the law in question as full ownership – would be maintained. Once transition had been achieved, only ownership of private property knowingly and intentionally conferred on an individual was to be protected. This was not the case regarding the ownership of land that had been acquired under the land reform and subsequently inherited from the owners, since, as observed by the Federal Court of Justice, there was a hidden legislative loophole in the Law of 6 March 1990. It therefore has to be assumed that the legislature of the German Democratic Republic would itself have enacted analogous provisions to those by which the land became State-owned property again if it had been aware of the factual and legal position regarding cases where there were no heirs satisfying the conditions by which the rights and obligations governing use of the land could be transferred to them.
In these circumstances, the legislature of reunified Germany was justified in compensating, comprehensively, for provisions that had been overlooked at the material time. The fact that it did not remedy this loophole when the Unification Treaty was signed does not justify a legitimate expectation that the legal position created by the Law of 6 March 1990 would be maintained. Having regard to the multiplicity and complexity of the tasks that had to be undertaken in connection with reunification, the authors of the Unification Treaty were not in a position to enact in a single stroke of the pen, as it were, and in a definitively satisfactory manner, all the rules necessary to ensure the smooth adjustment of the law of the German Democratic Republic to that of the Federal Republic of Germany ... Thus all persons subject to the jurisdiction of the courts had to expect that legal positions initially transferred as they stood would be modified and clarified by the reunified German legislature once it had ascertained the scope of the laws enacted by the German Democratic Republic.
The same also applies to ownership of land acquired under the land reform, which the legislature of the German Democratic Republic had transformed into full ownership when privatising the agricultural system.”
43. The fifth applicant had inherited land in the Land of Brandenburg in 1986.
44. From 1968 to 1979, she had been a member of an agricultural cooperative in the GDR. From 1 January 1980, she had worked as a cleaner at the Ministry of National Security (Ministerium für Staatssicherheit) in the GDR. After the dissolution of the GDR, she had been a member of the National People's Army until 31 December 1990.
45. Prior to German reunification, the town of Frankfurt an der Oder had opened a leisure centre called the Helensee on the applicant's land. After reunification, the town had leased the leisure centre to a managing company. The applicant had accordingly been paid 60,000 German marks (DEM) in rent paid to the town in error.
46. From 30 November 1991, the applicant had been registered in the land register as the owner of the land. On 3 September 1996 she signed a lease with the managing company of the leisure park for an annual rent of DEM 12,000.
47. On 28 July 1995 the Land of Brandenburg requested that the land be transferred into its name on the ground that it had superior title to it under section 233(11), paragraph 3, and 233(12), paragraphs 2 and 3, of the Introductory Act to the Civil Code (see paragraphs 67-69 below).
48. In a judgment of 16 July 1997, the Frankfurt an der Oder Regional Court ordered the applicant to transfer her land on the ground that, on 15 March 1990, she had not been carrying on an activity in the agriculture, forestry or food-industry sectors. It also ordered her to pay the Land of Brandenburg DEM 60,000 plus interest at the annual rate of 4% from 24 January 1997.
49. This judgment was upheld on 10 June 1998 by the Land of Brandenburg Court of Appeal, which held, among other things, that the mere fact that the applicant had technically always been a member of an agricultural cooperative, even after starting her job at the Ministry of National Security, did not suffice to give her valid title to the land in question. Moreover, referring to the decisions of the Federal Constitutional Court of 17 June 1996 and 4 October 1995, the Court of Appeal held that section 233(11) did not infringe the right of property or the principle that laws could not apply retrospectively even if the “new farmer” had paid a certain sum on being allotted his or her land under the land reform.
50. In a decision of 15 July 1999, the Federal Court of Justice allowed an appeal on points of law by the applicant regarding the amount she had been ordered to pay and dismissed the remainder of the appeal.
51. In a judgment of 4 February 2000, the Federal Court of Justice remitted the case to the Court of Appeal regarding the first point, on the ground that the applicant had been justified in keeping the compensation for loss of enjoyment (Nutzungsentschädigung) that she had received from the town of Frankfurt an der Oder prior to 22 July 1992.
52. In a judgment of 26 July 2000, the Brandenburg Court of Appeal ordered the applicant to repay an aggregate amount of DEM 27,000.
53. The applicant lodged a constitutional appeal with the Federal Constitutional Court, relying on a breach of her rights of property and inheritance, of the principle that laws could not apply retrospectively, and of the principle of equality. In her submission, there had been no constitutional justification for interfering with her right of property without paying her compensation, and the interference had been neither proportionate nor necessary.
54. In a leading decision of 25 October 2000, the Federal Constitutional Court dismissed the applicant's appeal on the ground that there had not been a breach of her fundamental rights (see paragraph 72 below).
55. The Land Reform Decrees of 1945 constituted the statutory basis of the land reform and imposed restrictions on the disposal of land acquired under the land reform. They provided, among other things, that land acquired under the land reform could not be divided up, sold, leased or seized and that part of the harvest had to be handed over to the State.
In certain exceptional cases, the land could be divided up and leased, however, if the local administrative authorities agreed. The certificates of allotment described the land as “private property capable of passing to the owner's heirs”.
56. The decrees stipulated that certain portions of the land had to be used for agricultural purposes in order to provide sufficient food for the population.
57. The Change of Possession Decrees of 21 June 1951, 7 August 1975 and 7 January 1988 dealt with cases where land was returned to the pool of State-owned land or authorisation was obtained to assign it to third parties, with the proviso that the latter undertook to use it for agricultural purposes.
58. As the applicants had inherited their property in the GDR in 1976, 1978 and 1986 respectively, it was the decree of 7 August 1975 on changes of possession, in the version of the decree of 7 January 1988, that was applicable.
59. The relevant extracts of this decree read as follows:
“Land redistributed under the land reform may be transferred through a change of possession to members of an agricultural cooperative or to persons working in the agriculture, forestry or food-industry sectors ...”
“1. Where he falls into the category of persons referred to in Article 1 and is in a position to use the land in accordance with the prescribed purpose [zweckentsprechend], an heir shall assume the rights and obligations pertaining to land acquired under the land reform.
...
3. If the conditions for transfer of the right of use of land acquired under the land reform are not satisfied, the land in question shall be returned to the pool of State-owned land.”
60. Often, however, these transfers were not effected and entered in the land register in practice, with the result that discrepancies arose between the persons actually farming the land and the persons registered as owners in the land register.
61. The Law of 6 March 1990 on the rights of owners of land redistributed under the land reform, which came into force on 16 March 1990, lifted all restrictions on the disposal of that land.
The Law provided:
“As regards the right of possession [Besitz], use [Nutzung] or disposal [Verfügung] of land acquired under the land reform, the provisions [Bestimmungen] of the Civil Code of 19 June 1975 of the German Democratic Republic ... shall apply. The contrary restrictions on disposal contained in [other] legal provisions [Rechtsbestimmungen] are hereby lifted.”
“(1) The Decree of 15 December 1977 on land transactions [Grundstücksverkehrs-ordnung] ..., in the version set out in the Decree of 14 December 1988 on the adaptation of the provisions relating to the remedies available to citizens and the determination of jurisdiction to review administrative decisions [Verordnung zur Anpassung von Regelungen über Rechtsmittel der Bürger und zur Festlegung der gerichtlichen Zuständigkeit für die Nachprüfung von Verwaltungsentscheidungen], shall apply to transactions concerning the land referred to in section 1.
(2) As regards the protection of the use of agricultural and forestry land [Nutzung des land- und forstwirtschaftlichen Bodens], the Decree of 26 February 1981 ... on the use of land [Bodennutzungsverordnung] shall apply.
“(1) This Law shall come into force on the date of publication.
(2) On that date the following instruments shall be repealed:
(i) the Decree of 7 August 1975 on implementation of the changes in possession of land acquired under the land reform [Verordnung über die Durchführung des Besitzwechsels bei Bodenreformgrundstücken] ...; and
(ii) the second Decree of 7 January 1988 on implementation of the changes in possession of land acquired under the land reform.”
62. Article 1 of the State Treaty between the FRG and the GDR on the Creation of an Economic, Currency and Social Union (Staatsvertrag über die Schaffung einer Währungs-, Wirtschafts- und Sozialunion zwischen der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik) of 18 May 1990 refers to a social market economy (soziale Marktwirtschaft) and to the protection of the right of property.
63. During the negotiations on German reunification between the governments of the FRG and the GDR and the four former occupying powers (France, the United Kingdom, the United States and the Soviet Union), the two German governments issued on 15 June 1990 a Joint Declaration on the Resolution of Outstanding Property Issues (Gemeinsame Erklärung der Bundesrepublik Deutschland und der Deutschen Demokratischen Republik zur Regelung offener Vermögensfragen), which became an integral part of the German Unification Treaty (Einigungsvertrag) of 31 August 1990.
64. In the Joint Declaration, the two German governments indicated that, in their attempt to resolve the property issues in question, they had had to establish a socially acceptable balance (sozial verträglicher Ausgleich) between competing interests, having regard to the principles of legal certainty and clarity and to the protection of property rights.
65. On 14 July 1992 the FRG legislature enacted the second Property Rights Amendment Act on the liquidation of the land reform in the Länder of the former GDR. It came into force on 22 July 1992.
66. When passing that Act, the legislature inserted subsections (11) to (16) into section 233 of the Introductory Act to the Civil Code on the basis of the principles formerly set out in the Land Reform Decrees and the Change of Possession Decrees.
67. Section 233(11), paragraph 3, of the Introductory Act to the Civil Code provides that land acquired under the land reform will, in theory, pass to the registered owner's heirs unless there are persons or institutions having “superior title” (bessere Berechtigung) to it under section 233(12).
Such persons or institutions with superior title can request that the land be assigned to them without compensation.
68. Section 233(12) makes a distinction in respect of persons or institutions with superior title to that of heirs to the land, according to whether the owner registered in the land register was dead or alive when the GDR Law of 6 March 1990 on owners' rights came into force.
Thus, if the owner registered in the land register was still alive on 16 March 1990, the persons having superior title are those to whom the land had been formally allotted in accordance with the Land Reform Decrees or the Change of Possession Decrees even if the appropriate details were not entered in the land register.
However, if the owner registered in the land register had died before 15 March 1990, the persons with superior title are:
(a) those to whom the land had been formally allotted in accordance with the Land Reform Decrees or the Change of Possession Decrees, even where there is no corresponding entry in the land register;
(b) the heir of the last owner registered in the land register, on condition that he or she satisfies the conditions of allocation (zuteilungsfähig), that is, carried on an activity in the agricultural, forestry or food-industry sectors (see paragraph 69 below);
(c) the tax authorities of the Land in which the property is situated.
69. Section 233(12), paragraph 3, provides that the only persons who can inherit land acquired under the land reform are those who on 15 March 1990 were carrying on an activity in the agriculture, forestry or food-industry sectors in the GDR or had carried on an activity in one of those sectors during the previous ten years. If this is not the case, title to the land in question vests in the tax authorities of the Land in which it is situated. The case-law has subsequently extended this obligation to require the person to have also been a member of an agricultural cooperative in the GDR (Reports of the decisions and judgments of the Federal Court of Justice in civil cases, vol. 136, p. 283).
70. In a judgment of 4 October 1995, the Federal Constitutional Court held that these provisions were compatible with the Basic Law, as at the time of the GDR land acquired under the land reform had not passed to the owner's heirs in accordance with the general principles of civil law, but had from the outset been subject to special rules.
71. In a leading judgment of 17 December 1998 (Rechtspfleger 1999, pp. 222 et seq.), the Federal Court of Justice indicated for the first time that on the death of a person who had acquired land under the land reform, title to the land could pass to their heirs. It added that section 233(11-16) of the Introductory Act to the Civil Code was nevertheless compatible with the Basic Law. The legislature had thereby intended to remedy the loopholes in the GDR Law of 6 March 1990, which had failed to take account of the fact that very often the GDR authorities had in practice failed to ensure that the land was returned to the pool of State-owned land and to amend the entries in the land register in accordance with the principles set out in the Land Reform Decrees and Change of Possession Decrees.
72. Similarly, in two leading decisions of 6 and 25 October 2000 (1 BvR 1637/99 and 1 BvR 2062/99), the Federal Constitutional Court also held that section 233(11-16) of the Introductory Act to the Civil Code was compatible with the Basic Law even if it had now been established that land acquired under the land reform could pass to the owner's heirs.
73. According to the figures submitted by the Government for the Land of Mecklenburg-West Pomerania, in approximately 80,000 cases land acquired under the land reform had been returned to the pool of State-owned land in the GDR before 1990.
74. The applicants disputed those figures, considering that the land in question had probably been voluntarily returned.
They pointed out that for the whole of the GDR, between 1946 and 1952, approximately 80,000 parcels of land had been voluntarily returned to the pool of State-owned land on account of the difficulties in farming the land after the war (W. Bell, “Expropriations in the GDR farming industry after 1949 and the corresponding political reasons” – Enteignungen in der Landwirtschaft der DDR nach 1949 und deren politische Gründe, 1992).
75. According to the figures submitted by the Government – also for the Land of Mecklenburg-West Pomerania – in 41,000 cases heirs to land acquired under the land reform had been able to keep their land; in 3,300 cases, in the absence of any heirs, the Land had recovered it; and in 4,400 cases the Land had requested reassignment of the land of heirs who did not satisfy the conditions of allocation.
76. The applicants disputed those figures, submitting that, in all, between 50,000 and 70,000 persons who had inherited land acquired under the land reform had already been expropriated without compensation in favour of the tax authorities of the Länder.
They indicated, by way of example, that the Land of Saxony-Anhalt had obtained the reassignment of land from heirs in 17,288 cases extrajudicially and in 677 cases through the courts; the Land of Brandenburg, for its part, had requested the reassignment of land from heirs in 14,500 cases extrajudicially and in 3,542 cases through the courts.


ITEMID: 001-72286
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF BALCI AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 4. The applicants were born in 1937, 1921, 1963, 1929, 1945, 1926, 1943, 1948 and 1950 respectively and live in Gebze.
5. In 1996 the Kocaeli Provincial Private Administration Office (Kocaeli İl Özel İdare Müdürlüğü) expropriated nineteen plots of land belonging to the applicants. A committee of experts assessed the value of the plots and the relevant amount was paid to the applicants when the expropriation took place.
6. On 5 November 1996 the applicants brought three separate actions for compensation before the Gebze Civil Court of First-instance.
7. In order to assess the real value of the land, the court ordered on-site inspections and expert reports. Primarily, the experts worked on the classification of the plots since the value of urbanised land (arsa) was higher than rural land (arazi). In this context, the experts observed that the plots were not reserved for habitation under any urban plan (imar planı) of the Municipality or the Ministry of Public Works and Settlement; they were not situated within residential areas; and there was no annotation in the land registry that these plots were to be used for tourism purposes. Instead, the plots were classified as “fields” in the Land Registry. As a result of the on-site inspections and their findings, the experts decided that the plots should be classified as rural land. They therefore calculated the value of the plots on that basis.
8. In their written submissions the applicants contested the expert reports. They submitted an expert report dated 5 March 1998 which concluded that the land in question should have been considered urbanised.
9. After taking into consideration three expert reports for each case, the Gebze Civil Court of First-instance rejected the applicants’ objections in respect of the nature of the land.
10. On 15 September 1998, 13 March 1998 and 4 May 1998, the court issued three decisions and awarded the applicants the below-mentioned amounts:
11. On 2 March 1999 the Court of Cassation upheld these decisions.
12. On 14 May 1999 the Court of Cassation rejected the applicants’ requests for rectification.
13. Three sets of enforcement proceedings were initiated before the Execution Offices.
14. At the end of the enforcement proceedings, the amounts indicated below were paid to the applicants by the Kocaeli Provincial Private Administration Office on the dates mentioned:
15. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-61150
LANGUAGEISOCODE: ENG
RESPONDENT: SMR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF TIERCE v. SAN MARINO
IMPORTANCE: 1
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
TEXT: 4. The applicant was born in 1972 and lives in Pesaro (Italy).
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. By a writ filed on 11 March 1993 C.R., a bank, brought proceedings against Mrs Tierce before the Commissario della legge (“the Commissario”) seeking termination of her lease and an eviction order against her for non-payment of her rent. On 26 March 1993 the Commissario authorised the commencement of the action against the applicant and summoned the parties to appear on 7 April 1993. As the applicant did not attend the hearing the case was listed for 7 May 1993. On 29 April 1993 the applicant deposited with the registry a bankbook (libretto al portatore), mentioning a sum to be handed over to the claimant bank if it were to accept a settlement out of court.
7. On 13 May 1993 C.R. claimed the sum in question, the Commissario ordered notification of the claim to the applicant and gave her five days to file her submissions. On 3 June 1993, as Mrs Tierce had not filed any observations, C.R. repeated its claim of 13 May.
8. On 17 June 1993 C.R. declared that it did not wish to withdraw its action, even if it obtained the sum concerned. On the following day the Commissario gave the applicant five days to file submissions.
9. At a hearing on 9 September 1993 the applicant confirmed her offer of 29 April 1993 and asked for the money to be attached to guarantee payment. C.R. objected, seeking the applicant’s eviction. On the same day the Commissario scheduled a hearing for 7 October 1993, which was later put back by one week because he had another engagement, for the attempt to reach a friendly settlement prescribed by law in eviction cases (section 21 of Law no. 26 of 20 February 1991); when that attempt came to nothing the Commissario opened the first of two time-limited stages for adducing evidence, each waivable by the claimant (primo termine probatorio – see paragraph 22 below). On 30 October 1993 he opened the second such stage (secondo termine probatorio).
10. On 9 December 1993 the applicant asked the Commissario to open the first of two further time-limited stages waivable by the defendant (primo termine reprobatorio), and he did so on 10 December 1993. On 23 December 1993 the applicant asked for evidence to be taken from a witness. The Commissario listed a hearing for that purpose to take place on 17 February 1994, but on that date the witness failed to appear. On 3 March 1994 the applicant filed documents, and on 21 March 1994 the Commissario asked her to inform him whether she wished to maintain her request for witness evidence to be taken. On 25 March 1994, at the applicant’s request, the Commissario listed a new hearing for that purpose to take place on 28 April 1994, later adjourned to 20 May 1994 on account of another engagement. As the witness failed to appear, the Commissario fixed a new hearing for 14 June 1994, that being the last opportunity to hear the witness. On 8 September 1994 C.R. asked the Commissario to declare that the witness could no longer be called, having failed to appear within the time allowed; on 13 September 1994 the Commissario allowed that application.
11. On 22 September 1994 Mrs Tierce requested the opening of the next time-limited stage (secondo termine reprobatorio); the Commissario complied with that request on the following day. On 6 October 1994 Mrs Tierce asked for evidence to be taken from another witness, who was examined on 1 December 1994.
On 15 December 1994 the applicant asked the Commissario to open the fifth and last time-limited stage for the completion of the evidence-taking (termine di controprova), which he did the next day. On 3 February 1995 the Commissario observed that the time allowed for the last stage of the presentation of evidence had expired. On 16 February 1995 the applicant asked for the return of a cheque that she had previously deposited with the registry. On the next day the Commissario gave C.R. five days to make its final submissions. On 2 March 1995 C.R. asked Mrs Tierce to vacate the premises, as her lease had expired on 31 December 1994. On 13 March 1995 the Commissario gave the applicant five days to submit her observations.
12. On 9 March 1995 C.R. had again applied to the Commissario for an eviction order against the applicant, as it needed the building in order to carry on its own business there. On the next day the Commissario scheduled a hearing for 6 April 1995 for the attempt to reach a friendly settlement prescribed by Law no. 26 of 20 February 1991.
On 24 March 1995, at the request of C.R., with no objection on the applicant’s part, the two cases were joined on account of the connection between them as regards their subject matter and the identity of the parties.
13. On 6 April 1995 Mrs Tierce declared that she was prepared to vacate the premises in exchange for compensation. The case was adjourned for thirty days to give the parties time to reach an agreement on that point.
On 22 June 1995 the applicant requested the opening of the statutory five-week period for the submission of objections (termine statutario per rispondere ed eccepire), and the Commissario allowed that application on the following day. On 5 October 1995, as the applicant had not raised any objection, C.R. requested the opening of the first termine probatorio. On the following day the Commissario observed that the time allowed for the applicant to lodge objections had not yet expired. On 19 October 1995 the applicant asserted that her lease had not yet run out.
On 20 October 1995 the Commissario gave C.R. five days to submit observations. On 26 October C.R. contested Mrs Tierce’s assertion. On the next day the Commissario gave Mrs Tierce five days to submit observations.
14. On 8 February 1996 C.R. again sought an order for the applicant’s eviction, and the Commissario gave her five days to submit observations. On 22 February 1996 the applicant confirmed what she had asserted on 19 October 1995, and on the following day the Commissario gave C.R. five days to submit observations.
On 7 March 1996 C.R. requested the opening of the second termine probatorio (thus waiving the right to the time allowed for the first stage). On the following day the Commissario gave Mrs Tierce five days to submit observations and opened the second stage. On 14 March 1996 C.R. filed documents. On 21 March 1996 the applicant submitted that C.R.’s assertions were ill-founded in fact and in law, and on the following day the Commissario gave C.R. five days to submit observations.
On 11 April 1996 C.R. requested the opening of the first termine reprobatorio, and on 15 April 1996 the Commissario decided to close the proceedings on account of the parties’ inaction. On 18 April 1996 C.R. again requested the opening of the first termine reprobatorio. The next day the Commissario rescinded his decision of 15 April 1996 as having been taken on the basis of a mistake as to the facts and opened the first termine reprobatorio. On 25 April 1996 C.R. asked for a date to be fixed for oral argument and the examination of one witness; on the following day the Commissario arranged a hearing for that purpose, to be held on 20 June 1996. On 15 May 1996 the witness indicated that he could not attend the hearing on the date chosen. On 13 September 1996, at C.R.’s request, the Commissario decided to hold a new hearing on 26 September 1996, on which date evidence was taken from the witness. On 3 October 1996 C.R. asked for a date to be fixed for the presentation of oral argument; on the following day the Commissario set the case down for hearing on 17 October 1996.
On that day C.R. withdrew its request for an adversarial hearing and requested the opening of the second termine reprobatorio. On the following day the Commissario gave the applicant five days to submit observations. On 7 November 1996 C.R. again asked the Commissario to open the second termine reprobatorio, and he did so on 8 November 1996. On 28 November 1996 C.R. asked for evidence to be taken from a witness; on the following day the Commissario arranged a hearing for that purpose to be held on 13 February 1997, at which the witness gave evidence.
15. On 27 February 1997 Mrs Tierce requested the opening of the termine di controprova, and the Commissario allowed that application on the following day. On 13 March 1997 the applicant filed documents and asked for an expert report and the convening of an arbitration board. On the following day the Commissario gave C.R. five days to file observations. On 20 March 1997 C.R. requested Mrs Tierce’s immediate eviction and asked for a witness to be called; on the following day the Commissario arranged a hearing for that purpose to be held on 8 May 1997, when a witness gave evidence. On 15 May 1997 C.R. asserted that it had not received instructions from the judge about the appointment of an expert, and the applicant repeated her request for the convening of an arbitration board and confirmed the appointment of her expert. On 26 May 1997 the Commissario asked C.R. to appoint its expert and on 19 June 1997 the applicant asked the Commissario to repeat his request of 26 May 1997. On 30 June 1997 the Commissario gave C.R. five days to file observations. On 18 September 1997 the applicant again asked for an arbitration board to be convened and an expert appointed. On the following day the Commissario asked C.R. to specify how much the applicant owed it. On 23 October 1997 the applicant repeated her request of 18 September 1997. On the following day the Commissario observed that C.R. had not expressed an opinion on either the convening of an arbitration board or the expert report. On 6 November 1997 C.R. indicated the amount of the applicant’s debt and on the following day the Commissario gave her five days to file observations.
16. On 11 December 1997, noting that all five time-limited stages for the presentation of evidence had expired, C.R. requested the opening of the time-limited stage for the filing of final submissions (termine ad allegare); the Commissario allowed that application on 15 December 1997.
On 19 February and 12 March 1998 C.R. and Mrs Tierce filed their final submissions.
The Commissario reserved judgment (irrotulazione) at a hearing on 26 March 1998.
17. In a judgment of 28 August 1998 the Commissario ordered the applicant to vacate the premises with immediate effect.
18. On 22 October 1998 Mrs Tierce appealed to the judge of civil appeals (Giudice delle appellazioni civili) and on 30 October 1998 she summoned C.R. On 3 November 1998 the Commissario authorised the summons and a hearing was set down for 10 December 1998 so that the parties’ lawyers could enter an appearance.
On 3 December 1998, as the first-instance judgment was enforceable with immediate effect, C.R. asked for the applicant to be evicted, which was done on 22 February 1999.
On 29 April 1999 the applicant asked the Commissario to open the first termine probatorio, which he did the next day. On 20 May 1999 she asked for C.R. to be served with the decision to open the previous stage.
On 23 September 1999 C.R. asked the Commissario to open the second termine probatorio, which he did on 27 September 1999. On 7 October 1999 C.R. asked for that decision to be served on the applicant.
On 18 November 1999 the applicant requested the opening of the first termine reprobatorio; the Commissario allowed her application on the following day. On 25 November 1999 the applicant asked for that decision to be served on C.R. On 13 January 2000 she filed documents.
19. On 27 January 2000 C.R. asked the Commissario to open the second termine reprobatorio, and he did so on 2 February 2000. On 24 February 2000 C.R. asked for the sum recorded in the bankbook (deposited by the applicant on 29 April 1993) to be checked and the accrued interest added; this was done by the registrar on 8 March 2000.
On the following day C.R. requested the opening of the termine di controprova, and the Commissario complied in a decision of 13 March 2000. On 16 March 2000 C.R. asked for that decision to be rescinded, as the decision of 2 February 2000 had not yet been served. The Commissario allowed the above application on 17 March 2000. On 23 March 2000 C.R. again asked for the decision of 2 February 2000 to be served. On 6 April 2000, C.R. indicated that it wished to have evidence taken from two witnesses and the Commissario set down a hearing for that purpose on 25 May 2000, but the witnesses failed to appear. On 29 June 2000, at C.R.’s request, the Commissario arranged for a new and final hearing to be held on 12 October 2000 for the witnesses to be examined; only one witness gave evidence on that occasion.
On 19 October 2000 Mrs Tierce asked the Commissario to fix the termine di controprova, which he did on 20 October. On 6 November 2000 the Commissario corrected a clerical error. On 23 November 2000 the applicant deposited a cheque with the registry.
On 18 January 2001 she asked for the opening of the time allowed for the filing of final submissions; the Commissario complied on the following day. On 29 March and 5 April 2001 the parties filed their final submissions.
20. On 6 April 2001 the Commissario set down for 10 May 2001 the hearing for the appearance of the parties and transmission of the file to the judge of civil appeals for judgment to be reserved.
In a judgment of 24 October 2001, published on 21 December 2001, the judge of civil appeals upheld the applicant’s appeal in part by reducing the arrears of rent to be paid.
21. Under Title VI of Book II of the Leges Statutae, once the claimant has appeared and confirmed that he wishes to bring an action the judge must give the defendant, if he so requests, time equivalent to five hearings (corresponding to five weeks) to reply and raise objections.
22. Under section 2 of Law no. 55 of 17 June 1994,
(a) evidence may be adduced by the parties, both at first instance and on appeal, during five time-limited stages, divided up as follows:
(i) two termini probatori, each lasting for three consecutive hearings (three weeks);
(ii) two termini reprobatori, each lasting for three consecutive hearings;
(iii) a termine di controprova, lasting for two consecutive hearings;
(b) the termini probatori, the termini reprobatori and the termine di controprova are opened by the judge at the request of the most diligent party, in succession, when all the evidence adduced in the previous stages has been admitted, or when the time allowed for those stages has been waived or has expired;
(c) termini probatori can be waived unilaterally by the claimant; termini reprobatori can be waived by the defendant only; the termine di controprova cannot be waived except with the consent of all parties;
(d) the termine ad allegare (the time-limited stage for the filing of the parties’ final submissions) is opened by the judge at the request of the most diligent party; it lasts for sixty ordinary days. Once the time allowed for the parties to file their final submissions has expired, the registry transmits the file to the judge within ten days. The judge, of his own motion, sets down a hearing at which judgment will be reserved and keeps the file with a view to reaching his decision;
(e) the judge gives his decision within five months of the hearing at which he reserves judgment.
23. Title IV of Law no. 26 of 20 February 1991 (the “Sole law on the renting of immovable property”) contains the following procedural rules:
Section 21
(Jurisdiction of the Commissario della legge)
“Disputes about the level of rent, termination of the lease at or before the end of its term or failure to comply with its conditions fall in the first instance within the jurisdiction of the Commissario della legge.
Judicial proceedings must be preceded by an attempt to reach a friendly settlement conducted by the Commissario della legge.
Judgments are immediately enforceable even in the event of an appeal, save where the Commissario della legge decides otherwise.
Judgments concerning the level of rent take effect between the parties immediately.
The Commissario della legge, after considering the application for an eviction order and assessing the grounds advanced, may order immediate enforcement of such a measure within the time specified.”
Section 22
(Delayed payment by the tenant)
“In the event of a delay in payment, at the first hearing of the termination proceedings the judge may, if requested to do so, allow the tenant not more than ninety days to put matters right. Payment of arrears of rent, service charges, statutory interest and costs shall prevent termination of the lease.
The period of grace mentioned in the first paragraph may be granted to the tenant only once in any two-year period.”
Section 23
(Date of execution)
“Where, in his decision, the judge orders the tenant to vacate the premises, he shall, after taking into account the arguments of the opposing parties, fix the date of enforcement not more than six months after the date on which the decision itself takes effect.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1