ITEMID: 001-75627
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF OMEROVIC v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1945 and lives in Gračanica, Bosnia and Herzegovina.
5. On 18 September 2000 the applicant sought enforcement of a judgment awarding him compensation following an employment dispute with the company G. (“the debtor”). He applied for enforcement on the debtor’s bank account and on its movable property.
6. On 6 February 2001 the Slatina Municipal Court (Općinski sud u Slatini) issued en enforcement order, which became final on 21 February 2001.
7. On 24 October 2001 the court made a list of the debtor’s movable property in the applicant’s absence and scheduled a public auction for 25 January 2002. The auction was unsuccessful.
8. Another public auction was held on 16 April 2002, which was again unsuccessful, as no bids were made.
9. On 12 August 2002 the court made a new list of the debtor’s movables on which the applicant, who had been duly summoned, did not appear.
10. On 28 October 2003 the applicant requested an injunction prohibiting the debtor to transfer or encumber shares it held in other companies.
11. On 19 November 2003 the court held yet another unsuccessful public auction.
12. On 6 July 2004 the applicant requested the court to order that the debtor should disclose its assets (prokazni popis imovine).
13. On 23 July 2004 the debtor paid the applicant the principal amount of his claim, stating that it would satisfy the remainder of the claim within eight days.
14. On 17 August 2004 the applicant informed the court that the claim had not been settled in full. The court forwarded the applicant’s submission to the debtor, for observations.
15. On 27 September 2004 and 19 January 2005 the court imposed fines on the debtor, for failure to comply with its orders.
16. On the latter date the court also denied the applicant’s motion for the disclosure of the debtor’s assets. At the same time, the court also dismissed the applicant’s motion for injunction prohibiting the transfer of the debtor’s shares. Instead it instructed the applicant to provide a detailed list and addresses of companies in which the debtor held such shares. On 25 January 2005 the applicant submitted the requested information.
17. The proceedings are still pending.
18. Meanwhile, on 10 June 2002 the applicant filed a constitutional complaint concerning the length of the proceedings.
19. On 2 October 2002 the Constitutional Court (Ustavni sud Republike Hrvatske) declared his complaint inadmissible finding that the enforcement order had already been issued.
20. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske –Official Gazette no. 49/2002 of 3 May 2002; “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits...
(3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.”
21. Under the case-law of the Constitutional Court, constitutional complaints lodged under section 63 in the context of enforcement proceedings were to be declared inadmissible. In its decision no. U-IIIA/1165/2003 of 12 September 2003 the Constitutional Court interpreted section 63 as follows:
“The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section 63 of the Constitutional Act [on the Constitutional Court] for the length of proceedings only in cases where the court has not decided within a reasonable time on the merits of the rights and obligations of the complainant, that is, where it has failed to deliver a decision on the merits within a reasonable time.
In the present case the constitutional complaint has been lodged for non-enforcement of a final decision by which the party’s rights and obligations had already been decided.
Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] ..., the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.”
In its decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional Court provided further interpretation of section 63:
“Taking into consideration the above cited provisions of the Constitutional Act [on the Constitutional Court] and the fact that the constitutional complaint was not lodged for a failure to deliver a decision within a reasonable time but rather because the enforcement was not carried out, the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.”
22. In decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional Court changed its practice, accepting a complainant’s constitutional complaint and awarding him compensation as well as ordering the competent court to conclude the enforcement proceedings within six months from its decision. In doing so, the Constitutional Court expressly relied on the Court’s case-law on the matter.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-91430
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF VLADIMIROVA AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: 5. The first applicant, Mrs Nadezhda Stoyanova Vladimirova, was born in 1945. Her husband, Mr Hristo Velimirov Vladimirov, born in 1946, and her mother, Mrs Ivanka Marinova Petkova, born in 1920, are the second and third applicants. All applicants are Bulgarian nationals and live in Sofia.
6. In 1968 the applicants purchased from the State a four-room apartment of 140 square metres in the centre of Sofia. Until then, the applicants’ family and two other families had been sharing the apartment as tenants. The apartment had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following several years. The apartment was on the third floor of a five-storey building constructed in the beginning of the 1930s.
7. After the adoption of the Restitution Law in 1992, the former pre-nationalisation owners brought proceedings under section 7 of that law against the applicants.
8. By judgment of 30 July 1996 the District Court found that the 1968 transaction was null and void on several grounds, including abuse of office, since at the relevant time the second applicant’s father had been an employee of the municipal real estate service. The applicants appealed.
9. By judgment of 12 April 2000 the Sofia City Court upheld the lower court’s judgment while it modified its reasoning. The court found that the allegation about abuse had remained unproven, the very fact that a relative of the applicants had worked in the municipal real estate service being insufficient.
10. The court found, however, that a relevant document concerning the 1968 transaction had been signed by the deputy to the official in whom the relevant power had been vested. The court considered that as a result the applicants’ title was null and void. The applicants were ordered to vacate the apartment.
11. The judgment of the Sofia City Court was recorded in the court’s register on 19 June 2000. From that moment it became possible for the parties to learn about that judgment, if they visited the Sofia City Court’s registry.
12. The applicants, who had been waiting for the Sofia City Court’s judgment since 10 May 1999, the date of the last hearing, checked the register on an unspecified date between 19 August and 20 September 2000. On 20 September 2000 they submitted a petition for review (cassation) against the Sofia City Court’s judgment.
13. By decisions of 22 February 2001, 26 March and 25 October 2002 the Supreme Court of Cassation decided that the cassation appeal had been submitted outside the relevant two-month time limit, which had expired on 19 August 2000 and refused to renew that time limit. The Supreme Court of Cassation agreed with the applicants that the Sofia City Court had delivered its judgment more than one year after the last hearing in the case and that the applicants had never been informed that the judgment had been ready and recorded. It found, however, that according to the relevant law the twomonth period for the submission of a petition for review (cassation) ran from the date on which the impugned judgment had been made available in the court’s register.
14. On unspecified dates between 2000 and 2002, it became possible for the applicants to obtain compensation from the State, in the form of bonds which could be used in privatisation tenders or sold to brokers. The applicants did not avail themselves of this opportunity.
15. The applicants were evicted in March 2004.
16. In 2003 the applicants were granted the tenancy of a two-room municipal apartment, which they rented at low regulated price. In order to obtain this tenancy, the applicants were required to declare their financial situation.
17. In November 2005 the municipality sold that apartment to the applicants for a regulated price below market value – 31,300 Bulgarian levs (BGN), the equivalent of approximately EUR 16,000. The applicants paid, in addition, the equivalent of approximately EUR 650 in fees.
18. In 2003 the applicants issued proceedings for damages against the State under the State Responsibility for Damage Act, arguing that the State administration had been responsible for the omission that had led to the nullification of their title. In accordance with their practice in similar cases, the courts rejected those claims. The final judgment was delivered by the Supreme Court of Cassation on 1 November 2007.
19. The relevant background facts and domestic law and practice have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-110757
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BIRAGA AND OTHERS v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: 1. The first applicant, Alem Biraga, and the second applicant, Yosef Kashsay Tekle, are Ethiopian nationals, born in 1976 and 1980, who live in Sweden. The third applicant, Abigail Kahsay, is their daughter, an Ethiopian national, born in Sweden in 2009. They are represented before the Court by Mr Bo Karlsson, a lawyer practising in Sollentuna.
2. The Swedish Government (“the Government”) were represented by their Agent, Ms Gunilla Isaksson from the Ministry for Foreign Affairs.
3. On 1 February 2010 the President of the former Third Section decided, in the interest of the parties and the proper conduct of the proceedings, to indicate to the Government of Sweden, under Rule 39 of the Rules of Court that the first applicant should not be deported to Ethiopia for the duration of the proceedings before the Court.
4. The application was transferred to the Fifth Section of the Court, following the re-composition of the Court’s sections on 1 February 2011.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. At some unknown time the first applicant entered Sweden and requested asylum. In support of her request she explained that she had been a member of the political party CUD (Coalition for Unity and Democracy) since 2005. Following the election in May 2005, a conflict arose between the Government party and the CUD. She was summoned by the police in June 2006 but did not appear, as she knew that three other members of the CUD had disappeared after being summoned by the police. She was summoned a second time and went into hiding with her sister. In December 2006 she fled the country. She travelled by plane from Addis Ababa to Sweden on a false passport.
7. On 27 May 2008 the Migration Board (Migrationsverket) refused the first applicant’s request and ordered her deportation to Ethiopia. It noted that she had not proved her identity, but in assessing her request for asylum it assumed that she was from Ethiopia as she maintained. It found that the general situation in Ethiopia alone could not justify granting asylum. As to the applicant’s personal situation, it questioned her credibility, notably because during the interviews she had shown little knowledge of the CUD and had given divergent information about where and with whom she had been hiding from June to December 2006. Moreover, noting that the applicant had not played a leading role within the party, the Board found it unlikely that she would be of interest to the police, especially more than one year after the election, and that, if she had been of such interest, the police had not come to find her at her sister’s home. The Migration Board also noted that, according to international sources, many members of the CUD had in fact been arrested in connection with the election, but that almost all had been released in 2006. Those remaining were convicted in June 2007 and granted amnesty in August 2007. In these circumstances, the Migration Board did not find that the applicant had substantiated fulfilling the criteria for being granted asylum.
8. The first applicant appealed to the Migration Court (Migrationsdomstolen) and added that for one year and nine months she had had a relationship with the second applicant, an Ethiopian national, who had been granted a permanent residence permit in Sweden on 31 August 1998 in order to join his mother. On 18 April 2009 the first and the second applicants had a daughter, the third applicant, of whom the parents have joint custody.
9. On 24 August 2009, the Migration Court upheld the Migration Board’s decision as to the request for asylum.
10. As to the first applicant’s relationship with her partner and child, the Migration Court pointed out that by virtue of Chapter 5, Section 18 of the Aliens Act, an alien who wants a residence permit in Sweden must have applied for and been granted such a permit before entering the country. An application for a residence permit may not be granted after entry into Sweden except, among other grounds, if the alien has a very strong connection to a person residing in Sweden and it cannot reasonably be demanded that the alien travel to another country to hand in an application there. According to the preparatory work, a request to be exempted from the main rule should be refused if the alien’s identity cannot be established and the alien does not have a right to protection in Sweden.
11. In the present case the Migration Court noted that the third applicant did not have a residence permit in Sweden at the relevant time, thus the first applicant could not invoke the strong connection to her child to obtain a residence permit there. As regards the first applicant’s relationship with the second applicant, the Migration Court found on the one hand that it spoke in the first applicant’s favour that the couple had a child together. On the other hand, it spoke against her that she had not pointed to any reasons why it could not reasonably be demanded that she return to her home country and hand in her application for a residence permit there. In conclusion the Migration Court did not find the conditions fulfilled to apply the said exception set out in Chapter 5, Section 18, of the Aliens Act.
12. Leave to appeal to the Migration Court of Appeal (Migrationsöverdomstolen) was refused on 23 September 2009. The deportation order thus became enforceable.
13. By decision of 12 October 2009 the Migration Board granted the third applicant a permanent residence permit in Sweden on account of her ties to her father.
14. Subsequently, invoking Chapter 12, Section 18 of the Aliens Act the applicant maintained that there were impediments to her deportation because of her strong ties to her partner and her daughter.
15. By decision of 30 November 2009 the Migration Board refused to suspend the deportation order of the first applicant. It noted that Chapter 12, Section 18 of the Aliens Act was an extraordinary remedy and that the invoked new circumstances could not constitute an impediment within the said provision.
16. On 1 July 2010 a new Act entered into force in Sweden amending Chapter 5, Section 18 and Chapter 12, Section 18 the Aliens Act (see relevant domestic law below).
17. Invoking the amended Chapter 12, Section 18 of the Aliens Act, again the first applicant maintained that there were new circumstances which amounted to an impediment to enforce the deportation order. In particular she submitted that the second applicant objected to her taking their daughter with her to Ethiopia to apply for family reunification. Moreover, the second applicant worked as a truck driver, which meant that he was away for long periods and therefore could not take care of their daughter in Sweden.
18. By decision of 4 October 2010 the Migration Board refused the application since the applicant had not presented her original passport and therefore had not fulfilled the conditions set out in Chapter 12, Section 18, of the Aliens Act.
19. Submitting a valid passport, the first applicant re-maintained that there were impediments to her deportation by virtue of Chapter 12, Section 18 of the Aliens Act.
20. By decision of 15 November 2010 the Migration Board disagreed. It commenced by examining whether it could be considered clear that a residence permit would have been granted the first applicant, if her application had been examined before her entry into Sweden.
21. Firstly, at the relevant time the first and the second applicants did not fulfil the conditions set out in Chapter 5, Section 3, of the Aliens Act according to which a residence permit could be granted to an alien who is the spouse of, or cohabiting partner, with someone who is residing in Sweden. It was recalled in this respect that the applicants were not married and they had not lived together before the first applicant entered Sweden.
22. Secondly, at the relevant time the first and the second applicant did not fulfil the conditions set out in Chapter 5, Section 3 a) of the Aliens Act, which stipulated that a residence permit could be granted to an alien who intended to marry or cohabit with someone who was legally residing in Sweden, if their relationship was serious and no special reasons spoke against granting such a residence permit. It was recalled in this respect that the applicants’ relationship had only commenced in Sweden.
23. Accordingly, it could not be concluded that “it was clear that a residence permit would have been granted to the first applicant if the application had been examined before her entry into Sweden”.
24. Thereafter, the Migration Board found that there were no new circumstances or impediments to the enforcement of the deportation order under Chapter 12, Section 18 of the Aliens Act. It pointed out though that the implementation thereof had been suspended while the case was pending before the Court in accordance with the Rule 39 indication.
25. The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716). It defines 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.
26. Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has 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 4, Section 2, of the Aliens Act).
27. Moreover, if a residence permit cannot be granted on the above grounds, a permit may nevertheless be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6 of the Aliens Act). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. In the preparatory works to this provision (Government Bill 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for granting a residence permit.
28. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are 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 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act).
29. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances presented by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been presented previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a reexamination (Chapter 12, Section 19, of the Aliens Act).
30. The provisions on family reunification relating to a spouse, registered partner or cohabiting partner etc. of a person who is resident in Sweden are set out in Chapter 5, Section 3, of the Aliens Act and were given their present wording on 30 April 2006 in connection with the implementation of the EC Directive on the right to family reunification (Directive 2003/86/EC of 22 September 2003, hereinafter "the Family Reunification Directive"(see below).
31. Under Chapter 5, Section 3, first paragraph of the Act, unless otherwise provided in Sections 17-17b (about special grounds against granting a residence permit), a residence permit shall be granted to an alien who is a spouse or cohabiting partner (sambo) of someone who is resident in Sweden or who has been granted a residence permit to settle in Sweden, and under certain conditions to the alien’s minor children.
32. Under Chapter 5, Section 3 a) first paragraph of the Act a residence permit may be granted to an alien who intends to marry or become a cohabiting partner with someone who is legally residing in Sweden, if their relationship is serious and no special reasons speak against granting such a residence permit.
33. By virtue of Chapter 5, Section 18, of the Act, an alien who wants a residence permit in Sweden on account of family ties or serious relationships must have applied for and been granted such a permit before entering the country. An application for a residence permit may not, as a general rule, be approved after entry. However, exemptions from this rule can be made for example if the alien has strong ties to a person who is resident in Sweden and it cannot reasonably be required that he or she travel to another country to submit an application there (Chapter 5, Section 18, second paragraph, point 5). An exemption may also be made if there are some other exceptional grounds (Chapter 5, Section 18, second paragraph, point 6). The requirement that, in principle, residence permits for family members have to be granted before entry into Sweden was introduced as one of a number of measures aimed at reducing the possibilities of obtaining a residence permit by means of marriages or relationships of convenience. Subsequently, the Swedish Government and Parliament have underlined on several occasions that the requirement that residence permits be obtained before entry into Sweden is an important part of measures to maintain regulated immigration. Moreover, the preparatory works to the Aliens Act state that it is important that aliens staying in Sweden illegally do not enjoy a better position than those who comply with decisions by the authorities to return to their country of origin in order to apply for a permit from there (Government Bill 1999/2000:43). The same requirement is found in Chapter III, Article 5, point 3 of the Family Reunification Directive (see below).
34. As regards the exemptions that can be made according to Chapter 5, Section 18, second paragraph, point 5 of the Aliens Act, the preparatory works to the provision (Government Bill 1999/2000:43, p. 55 et seq.) state that the main emphasis should be placed on the question of whether it is reasonable to require that the alien return to another country in order to submit an application there. Relevant elements, which may be favourable for the alien, may be whether he or she can be expected, after returning home, to encounter difficulties in obtaining a passport or exit permit and this is due to some form of harassment on the part of the authorities in the country of origin. It may also be whether the alien will be required to complete a long period of national service or service under unusually severe conditions. It may also be relevant whether the alien has to return to a country where there is no Swedish foreign representation and where major practical difficulties and considerable costs are associated with travelling to a neighbouring country to submit the application there. Relevant elements, which may count against the alien, may be that he or she is staying in the country illegally, that their identity is unclear or if there are strong ties to the country of origin.
35. Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the Aliens Act).
36. On 1 July 2010 Chapter 5, Section 18 was amended adding in the last paragraph “when assessing what is reasonable under the second paragraph, point 5, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted if the application had been examined before entry into Sweden”. The wording was thus:
An alien who wants a residence permit in Sweden must have applied for and been granted such a permit before entering the country. An application for a residence permit may not be approved after entry. However, the rule given in the first paragraph does not apply if
1. the alien is entitled to a residence permit here as a refugee or other person in need of protection under Section 1 or can be granted a residence permit here pursuant to Chapter 21, Section 2, 3 or 4,
2. the alien should be granted a residence permit here pursuant to Section 6,
3. an application for a residence permit concerns extension of a temporary residence permit that has been granted to an alien with family ties pursuant to Section 3, first paragraph, point 1 or 2b or first paragraph, point 1 or 2b or Section 3a, first paragraph, point 1 or second paragraph,
4. the alien can be granted or has a temporary residence permit pursuant to Section 15,
5. the alien has strong ties, as defined in Section 3, first paragraph, points 1-4 or Section 3a, first paragraph, points 1-3 or second paragraph, to a person who is resident in Sweden and it cannot reasonably be required that the alien travel to another country to submit an application there,
6. an application for a residence permit concerns extension of a temporary residence permit that has been granted to an alien pursuant to Section 10 in a case referred to in Chapter 6, Section 2, first paragraph.
7. the alien can be granted a residence permit under Section 15a,
8. the alien has been granted a temporary residence permit for studies pursuant to Section 10 and has either completed studies equivalent to 30 higher education credits or has completed one academic term in the case of postgraduate education, or
9. there are some other exceptional grounds.
Furthermore, the rule given in the first paragraph does not apply if the alien has been granted a visa to visit an employer in Sweden or is exempt from the visa requirement if he or she is applying for a residence permit for work in a type of occupation in which there is great demand for labour. An additional requirement is that it would cause the employer inconvenience if the alien had to travel to another country to submit an application there or that there are some other special grounds. When assessing what is reasonable under the second paragraph, point 5, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted if the application had been examined before entry into Sweden. With regard to a residence permit for an alien who is to be refused entry or expelled in accordance with a judgment or order that has become final and non-appealable, the regulations in Section 15a, Chapter 8, Section 14 and Chapter 12, Sections 18-20 apply.
37. This provision was also amended on 1 July 2010 adding in the last paragraph “when assessing under the first paragraph, point 3 ... particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted ... if the application had been examined before entry into Sweden”. The wording was thus:
If, in a case concerning the enforcement of a refusal-of-entry or expulsion order, new circumstances come to light that mean that
1. there is an impediment to enforcement under Section 1, 2 or 3,
2. there is reason to assume that the intended country of return will not be willing to accept the alien or
3. there are medical or other special grounds why the order should not be enforced, the Swedish Migration Board may grant a permanent residence permit if the impediment is of a lasting nature.
If there is only a temporary impediment to enforcement, the Board may grant a temporary permit. When assessing under the first paragraph, point 3, whether there are other special grounds why an order should not be enforced, particular attention shall be paid to the consequences for a child of being separated from its parent, if it is clear that a residence permit would have been granted on the grounds of strong ties under Chapter 5, Section 3, first paragraph, points 1-4, or Chapter 5, Section 3a, first paragraph, points 1-3, or second paragraph, if the application had been examined before entry into Sweden. The Swedish Migration Board may also order a stay of enforcement.
38. The Government submitted that according to information received from the Embassy of Sweden in Addis Ababa in September 2011, it would take approximately two months to process an application for a residence permit at the Embassy. The subsequent processing time by the Migration Board in Sweden would normally be less than eight months depending on whether the application needed to be supplemented or not. Cases involving children were given priority. The time from the filing of an application at the Embassy until a decision is reached should thus not be longer than ten months. The applicants disputed this information. Referring to e-mail correspondence between the Embassy and their representative from February 2010, they maintained that it would take at least one year to have an application considered.
39. Council Directive, 2003/86/EC of 22 September 2003 on the right to family reunification, which applies to all EU Member States, except the United Kingdom, Denmark and Ireland, deals with the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States. Its Chapter III, Article 5, which carries the heading “Submission and examination of the application”, provides:
1. Member States shall determine whether, in order to exercise the right to family reunification, an application for entry and residence shall be submitted to the competent authorities of the Member State concerned either by the sponsor or by the family member or members.
2. The application shall be accompanied by documentary evidence of the family relationship and of compliance with the conditions laid down in Articles 4 and 6 and, where applicable, Articles 7 and 8, as well as certified copies of family member(s)’ travel documents. If appropriate, in order to obtain evidence that a family relationship exists, Member States may carry out interviews with the sponsor and his/her family members and conduct other investigations that are found to be necessary. When examining an application concerning the unmarried partner of the sponsor, Member States shall consider, as evidence of the family relationship, factors such as a common child, previous cohabitation, registration of the partnership and any other reliable means of proof.
3. The application shall be submitted and examined when the family members are residing outside the territory of the Member State in which the sponsor resides. By way of derogation, a Member State may, in appropriate circumstances, accept an application submitted when the family members are already in its territory.
4. The competent authorities of the Member State shall give the person, who has submitted the application, written notification of the decision as soon as possible and in any event no later than nine months from the date on which the application was lodged. In exceptional circumstances linked to the complexity of the examination of the application, the time limit referred to in the first subparagraph may be extended. Reasons shall be given for the decision rejecting the application. Any consequences of no decision being taken by the end of the period provided for in the first subparagraph shall be determined by the national legislation of the relevant Member State.
5. When examining an application, the Member States shall have due regard to the best interests of minor children.


ITEMID: 001-22206
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: INOCENCIO v. PORTUGAL
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Aníbal Armando Inocêncio] is a Portuguese national who was born in 1935 and lives at Covilhã (Portugal). He is a lawyer and acted in person before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 November 1995 the Covilhã Municipal Council decided to impose an administrative fine (coima) of 500,000 Portuguese escudos (PTE) on the applicant for carrying out work on his house without obtaining the necessary building permit – an administrative offence (contra-ordenação) under Legislative Decree no. 445/91.
On 11 December 1995 the applicant challenged that decision in the Covilhã District Court.
On 16 March 1996 the District Court upheld the fine; however, its decision was quashed by the Coimbra Court of Appeal (Tribunal da Relação) in a judgment of 25 September 1996, on the ground that State Counsel had not been present at the hearing in the Covilhã District Court.
In an order of 9 December 1996 the judge of the Covilhã District Court set the case down for hearing on 6 February 1997 and requested the applicant to appoint a lawyer, stating that it was “not acceptable to conduct one’s own case in criminal proceedings”. On 9 January 1997 the applicant appealed against the order, alleging, in particular, a breach of Article 6 § 3 (c) of the Convention. In an order of 4 February 1997 the judge declared the appeal admissible and decided that it should not be heard by the appellate court until a decision had been given on the merits of the case.
At the hearing on 6 February 1997 the judge, noting that the applicant was absent and considering his presence to be necessary, adjourned the hearing until 27 February 1997.
At the hearing on 27 February 1997 the judge, noting that the applicant was in the section of the courtroom reserved for lawyers, asked him to take his place in the dock. The applicant replied that he was a lawyer and reaffirmed his intention to conduct his own case. The judge again asked him to take his place in the dock and, when the applicant again refused to do so, decided to exclude him from the courtroom and to appoint Mr P.C. as his official defence counsel. Mr P.C. requested an adjournment of five minutes in order to confer with the applicant, and the judge allowed his request. Once that time had elapsed, the hearing resumed in the applicant’s absence. After hearing evidence from a witness and the addresses of State Counsel and counsel for the defence, the judge ordered the applicant to return to the courtroom and delivered his judgment, upholding the fine of PTE 500,000.
On 14 March 1997 the applicant, acting in person, appealed against that decision to the Coimbra Court of Appeal. He submitted, in particular, that his right to defend himself in person had been infringed. He also stated that the court had not heard evidence from the two witnesses called by him and argued that that had amounted to a further infringement of his defence rights. He relied, in particular, on Article 6 §§ 1 and 3 (b) and (c) of the Convention.
In a judgment of 11 February 1998 the Court of Appeal dismissed that appeal and the one he had lodged on 9 January 1997. It stated, inter alia:
“... It is still generally accepted – and this court has consistently held ... – that the accused must be assisted by counsel... The purpose of the defence in criminal proceedings is not merely to assist the accused but also to serve the interests of justice... Article 64 of the Code of Criminal Procedure implies that an accused cannot defend himself in person; that assertion has already been upheld by this Court of Appeal and the Lisbon Court of Appeal... Even where the accused has had appropriate legal training, statute law requires him to be assisted by counsel, who will be required to retain his composure, since it may be assumed that the accused would display a certain degree of agitation which would be harmful to his case and to the proper administration of justice... It follows that, where purely technical steps need to be taken by the defence, counsel cannot be replaced by the accused, even if the latter is a lawyer. In the instant case, the appeal was not filed by counsel for the defence; consequently, it cannot be entertained.”
No appeal lay against that decision.
Legislative Decree no. 445/91 of 20 November 1991 on the rules governing construction work by private individuals made it an administrative offence to carry out work on a house without obtaining the relevant permit from the local council (Article 54 § 1 (a)). Under Article 54 § 2, the maximum administrative fine that could be imposed for a breach of that provision was PTE 20,000,000.
The rules governing administrative offences are laid down in Legislative Decree no. 433/82 of 27 October 1982. Article 1 of the Legislative Decree defines an administrative offence as an unlawful and reprehensible (censurável) act, contravening a legal provision which makes the offender liable to an administrative fine. The amount of the fine must be determined in each case by reference to the seriousness of the offence, the degree of guilt (culpa) attributable to the offender, the offender’s financial circumstances and the financial benefit he derived from carrying out the unlawful act in question (Article 18). Administrative fines may not in any circumstances be replaced by a custodial sentence. They may only give rise to enforcement proceedings (Article 89). Lastly, Legislative Decree no. 433/82 provides that the Criminal Code and the Code of Criminal Procedure are to apply, on a subsidiary basis, in relation to procedural matters.
Article 32 of the Constitution, entitled “Safeguards in criminal proceedings”, provides in paragraph 8 that persons accused in proceedings relating to an administrative offence must be allowed to exercise their defence rights.


ITEMID: 001-71234
LANGUAGEISOCODE: ENG
RESPONDENT: EST
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TAAL v. ESTONIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. The applicant was born in 1954 and lives in Tallinn.
9. On 5 June 2000 the Tallinn police initiated criminal proceedings against the applicant on suspicion of having committed extortion under Article 142 of the Criminal Code. On 17 June 2000 the applicant was taken into custody.
The applicant was charged with having threatened, by way of telephone calls, to explode a bomb in the supermarket Pirita Selver if his demands for a sum of money were not met.
10. Following the conclusion of the preliminary investigation the criminal case-file was sent to the Tallinn City Court (Tallinna Linnakohus). On 11 January 2001 witnesses K., R. and V. failed to appear at the hearing in the City Court and the hearing was adjourned to 5 February 2001. At the hearing of 5 February 2001 the applicant was questioned. The City Court again adjourned the hearing, since the witnesses had not appeared. Subsequently, the City Court heard the case on 20 February 2001.
11. According to the record of the City Court hearing, which set out the documents disclosed to the prosecution and defence at the public hearing, the City Court’s case-file included, inter alia, written witness statements made during the preliminary investigation by K. and R., who were both employees of the supermarket. Witness K. had stated that the phone calls on 2 and 4 June 2000 had been made by a male person, probably 40-50 years of age or more. She had submitted that it was possible that she would recognise the voice. Witness R. had submitted that she had received phone calls from a male person on 3 and 4 June 2000. The case-file further contained six tapes with recordings of several phone calls made to the supermarket (from 4, 5, 7, 8 and 11 June 2000) and one tape with an undercover recording of a phone call by the applicant from 29 June 2000, as well as transcripts of the tape recordings.
According to the written records of witness V.’s statements during the preliminary investigation, on 13 June 2000 the applicant had asked him to dial a phone number of the applicant’s girl-friend and hand the handset over to the applicant. They tried to make four phone calls, but none of the calls was answered. The number called to was a local number, the last three digits containing a combination of “fives”, possibly “550” or similar.
The City Court’s case-file also included a written statement of witness R.’s testimony, according to which, on 10 August 2000, she had been presented with an undercover recording of a phone call made by the applicant for recognition. She had been of the opinion that the male voice in the recorded conversation closely resembled the voice of the person who in June 2000 had made the bomb threats to the supermarket. She had answered four phone calls to the supermarket. When the threats were made, the voice had been more nervous, but otherwise the voices were identical.
The case-file further contained a written record of the examination of an anonymous witness “Artur”, who stated that in June 2000 he had met the applicant at a party, where the latter had said that he had made the threats to the supermarket. In this way the applicant had had a chance to make good money. The owner of a shop located near the supermarket had asked him to make the threats. Every time after making the threats he had called the owner of the shop. Witness Artur stated that from the recordings of the bomb threats on six tapes he recognised the applicant’s voice. Witness Artur considered that the sound of the voice bore a resemblance to that of the applicant, as did some expressions and the manner of speaking.
In the case-file there was included a written record of an examination of witness R., who said that, as of 11 June 2000, the information line of the supermarket did not answer calls made from public payphones. Witness R. stated that, based on the voice, the manner of speaking and the references to earlier phone calls, the threats had been made by one person.
12. All the witnesses failed to appear at the City Court’s hearing of 20 February 2001. Witnesses K. and R. submitted that they were unable to attend the hearing but that they maintained the statements given during the preliminary investigation; witness V. did not live at the address noted by the City Court. At that hearing the City Court refused the request of the applicant’s lawyer to call witnesses K. and R. The record of the hearing does not disclose the reasons why the request was refused.
13. By a judgment of 20 February 2001 the Tallinn City Court convicted the applicant of the charge and sentenced him to 3 years’ imprisonment. It relied on the testimony of the witnesses K., R., V. and of the anonymous witness Artur, given during the preliminary investigation, as well as on the transcripts of tape recordings of telephone conversations.
14. According to the judgment, the anonymous witness Artur had recognised the applicant’s voice on the tape and had heard him brag about his bomb threats. Witnesses K. and R. testified that they had received repeated phone calls from the same person, approximately 40-50 years of age, threatening to explode a bomb and demanding a sum of money. In addition, witness R. stated that the applicant’s voice on the tape played to her closely resembled the voice of the man who had made the bomb threats. According to the testimony of witness V., the applicant had told him that he was in need of money and asked him to dial a number, using public phones, of which he remembered the first and last digits. In the event that somebody should answer, he was supposed to hand over the phone to the applicant. The first and last digits of the phone number corresponded to the phone number of the supermarket.
15. On 26 February 2001 the applicant’s lawyer filed an appeal against the judgment requesting the applicant’s acquittal. She argued that the City Court had not heard any of the witnesses at its hearing and that her request to summon the witnesses had been denied. The City Court had convicted the applicant on the basis of insufficient evidence. The record of the court hearing had stated incorrectly that several items of evidence in the case-file had been disclosed. In fact, this had not been done. As regards the voice identification, the applicant’s lawyer noted that, as the witness R. had been presented with only one voice for recognition, she had not been able to compare voices. In his appeal the applicant noted that the bomb threats continued in July and August 2000, after he had been taken into custody.
The applicant’s lawyer did not request in her appeal that any witnesses be called to the appeal court’s hearing.
16. On 28 March 2001 the Tallinn Court of Appeal (Tallinna Ringkonnakohus) heard the appeal at a public hearing. The applicant’s lawyer reiterated that at the hearing in the City Court it had not been possible to put questions to the witnesses and that her request to summon the witnesses had been denied.
According to the record of the Court of Appeal’s hearing neither the applicant nor his lawyer requested that any witnesses be summoned to the hearing.
The Court of Appeal dismissed the appeal. It noted in its judgment:
“The [Criminal] Chamber [of the Court of Appeal] finds, as did the City Court, that [the applicant’s] guilt has been established on the basis of an aggregate of evidence and that this aggregate [of evidence] does not include solely the statements of witnesses; all the evidence collected during the pre-trial investigation and examined at the court hearing has been taken into account.”
The Court of Appeal found no substantial infringement of the procedural law which would have entailed a reversal of the lower court judgment.
17. On 18 April 2001 the applicant’s lawyer filed an appeal with the Supreme Court (Riigikohus) repeating the arguments raised before the Court of Appeal. She reiterated that, in violation of the law of criminal procedure, the City Court had not based its judgment on evidence examined at the hearing. The applicant requested in his appeal that an independent expert assessment of the voice be carried out.
18. On 17 May 2001 the Supreme Court refused the applicant leave to appeal.
19. Pursuant to Articles 205 and 206 of the Code of Criminal Procedure, as in force at the material time, a judge was to preside over court hearings so that all facts were examined thoroughly, from all perspectives and objectively and the truth was ascertained. When hearing a criminal case a court of first instance had to examine the evidence directly by hearing the accused, the victims, witnesses and expert opinions, inspecting physical evidence and disclosing records and other documents. Article 262 § 2 of the Code provided that a court judgment had to be based only on evidence that had been heard at a court hearing. Article 274 of the Code provided that the statement of facts and reasons in a court judgment had to set out, inter alia, the facts ascertained in the examination by the court and the evidence on the basis of which the court deemed the facts to be established, the reasons why the court based its judgment on such evidence and deemed other evidence in the case to be unreliable, the charges on which the court convicted each of the defendants and the evidence on which such a conclusion was based.
20. Article 233 § 1 of the Code of Criminal Procedure provided that where a witness failed to appear, the court heard the opinions of the participants in the proceedings as to whether it was possible for the hearing to proceed and ruled on the continuation or adjournment of the hearing.
21. According to Article 243 of the Code of Criminal Procedure, after a witness had given testimony, he or she could be examined by the participants in the proceedings, including the accused and his or her lawyer. Additional questions could be submitted to a witness to clarify and supplement the testimony previously given by him or her. If a court deemed it necessary to hear a witness who had been granted anonymity, the witness could be heard in the absence of the participants in the proceedings on the basis of the questions submitted by them. The content of the testimony had to be disclosed at a court hearing.
22. Pursuant to Article 246 of the Code of Criminal Procedure, testimony given by a witness during the pre-trial investigation could be disclosed if the witness failed to appear at a court hearing or if the whereabouts of the witness was unknown, or if the witness had been granted anonymity.
23. According to Article 791 § 1 of the Code of Criminal Procedure, in order to ensure the security of a victim or a witness or persons close to him or her, the person in question could be granted anonymity. Anonymity could be granted in a reasoned order by a preliminary investigator at the request of a witness or a victim, or on the initiative of the preliminary investigator.
24. According to the criminal procedure law the trial in second instance court was, in substance, trial de novo, within the limits of the appeal and according to what the appeal court considered necessary under the law.
25. Article 8 § 3 of the Code of Criminal Court Appeal and Cassation Procedure provided that, in an appeal, the appellant had to set out the names and addresses of the persons whom he or she wished to have examined by the court of appeal.
26. Under Article 15 § 1 of the Code of Criminal Court Appeal and Cassation Procedure a court of appeal could order expert assessments and demand evidence during pre-trial proceedings. Under Article 17 § 2(3) of the Code, a judge, when assigning a criminal case for hearing by means of a ruling, also decided who should be summoned to the hearing as participants in the proceedings, witnesses or experts. Article 17 § 4 of the Code provided that a court of appeal could, of its own motion, summon to the hearing witnesses and experts and also order expert assessments and demand evidence. Article 17 § 5 of the Code provided that applications by the participants in the proceedings for the re-summoning of witnesses had to be granted if the court of first instance had denied such applications incorrectly or if a witness or expert summoned had failed to appear in the court of first instance or if the court of appeal found that a further examination of a witness or expert was of material importance.
27. Article 20 of the Code of Criminal Court Appeal and Cassation Procedure provided that, in appeal proceedings, the court of appeal had to verify whether a decision of the court of first instance was lawful and reasoned only to the extent set out in the appeal, and an appellant had no right to exceed the limits of an appeal during a court hearing.
Under Article 31 of the Code of Criminal Court Appeal and Cassation Procedure, insufficiency or one-sidedness of the examination of the case by the court of first instance and discrepancy between the conclusions of the court as set out in the judgment and the facts were among the grounds on which a court of appeal could set aside the judgment of a court of first instance.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-58159
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF FISANOTTI v. ITALY
IMPORTANCE: 3
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: C. Russo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 8. Mr Gian Carlo Fisanotti was born in 1935 and lives in Cagliari. He was a civil servant until he took early retirement on 31 July 1989.
9. On 13 July 1992 the applicant applied to the Sardinia Regional Division of the Court of Audit (“the Regional Division”) for an enhanced pension. He claimed that his illness had been caused by his work.
10. On 11 November 1992 the file was forwarded to Principal State Counsel for preparation of the case. Following the entry into force of Legislative Decree no. 232 of 17 July 1993, which abolished the role of State Counsel in pensions litigation, the file was sent back to the Regional Division on 28 July 1993.
11. The first hearing was held on 28 January 1995. By an order of the same date, which was deposited with the registry on 4 March 1996, the Regional Division requested the opinion of the Medical Board of Cagliari Military Hospital. On 3 June 1997 the applicant was examined by the Board.
12. On 6 October 1997 the President of the Regional Division set down a hearing for 11 February 1998.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-79604
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS AND FIREMEN (ASLEF) v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 11;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 5. The applicant is a trade union, representing mainly train drivers on the United Kingdom's railways. Founded in 1880, it has some 18,000 members and most train drivers are members of ASLEF. It is an independent trade union. The various companies on the United Kingdom rail network do not operate a “closed shop” and railway workers, including drivers, are free to join ASLEF or other unions or not to join a union at all.
6. Its Rules provide that its objects include, as well as regulating relations between workers and employers and protecting the welfare of members and the industry, that it “assist in the furtherance of the labour movement generally towards a Socialist society (Rule 3.1(vii) and to “promote and develop and enact positive policies in regard to equality of treatment in our industries and ASLEF regardless of sex, sexual orientation, marital status, religion, creed, colour, race or ethnic origin” (Rule 3.1(viii)).
7. In 1978 the Annual Assembly of Delegates(“AAD”) of ASLEF, its governing body, resolved, pursuant to rule 14(a) of ASLEF rules, that "this AAD being concerned with the rise of Fascist activists and groups instruct the Executive Committee to campaign vigorously to expose the obnoxious policies of political parties such as the National Front."
8. In February 2002, a Mr Lee (a member of the far-right, lawful, British National Party ('BNP'), previously known as the National Front) applied for membership in ASLEF and was accepted. In April 2002 Mr Lee stood as a candidate in the local elections in Bexley for the BNP.
9. On 17 April 2002 an ASLEF trade union officer sent a report to the General Secretary concerning Mr Lee, attaching information that Mr Lee was an activist in the BNP, had handed out anti-Islamic leaflets dressed as a priest and that in 1998 he had stood as a candidate for the BNP in Newham. The report included an article written by Mr Lee for Spearhead (the BNP magazine) and a fax from Bexley Council for Racial Equality stating that Mr Lee had seriously harassed Anti-Nazi League pamphleteers, including taking pictures of them, taking their car numbers, making throat-cutting gestures and following one woman in his car and visibly noting her home address, which matters had been reported to the police.
10. On 19 April 2002, an Executive Committee meeting of ASLEF voted unanimously to expel Mr Lee, who was so informed by a letter of 24 April 2002, which stated that his membership of the BNP was incompatible with membership with ASLEF, that he was likely to bring the union into disrepute and that he was against the objects of the union.
11. Mr Lee appealed against the expulsion and was informed that a hearing would take place on 13 March 2003. On 20 February 2003, he stated that he would not attend. On 13 March 2003, the Appeals Committee of ASLEF met and rejected his appeal.
12. On 18 May 2002, AAD resolved "that membership of the BNP or similar Fascist organisation is incompatible with being a member of ASLEF as determined under Rule 5-Objects. Therefore any members of BNP who are members of, or apply for membership, of ASLEF shall be removed from membership or refused membership." The rules were changed accordingly to read:
Rule 4.1(d):
“No person shall be admitted into membership of ASLEF if by choice they are members of, supporters of, or sympathisers with, organisations which are diametrically opposed to the objects of the union, such as a fascist organisation.”
13. In the meantime, Mr Lee had brought proceedings in the Employment Tribunals ('ET') in respect of his expulsion, on the basis of section 174 Trade Union and Labour Relations (Consolidation) Act 1992 ('section 174'), which prohibits trade unions from excluding a person or expelling a member wholly or to any extent on the ground that the individual is or was a member of a political party. The ET found in favour of Mr Lee on 21 May 2003. The applicant appealed to the Employment Appeal Tribunal ('EAT'), which on 10 March 2004 found that the first ET had fallen into serious errors of law, quashed the decision and remitted it to a second ET.
14. The EAT considered that it could construe section 174 without the need to resort to Article 11. It noted the parties' submissions, including the applicant's reliance on the decision in Cheall v. the United Kingdom (no. 10550/83, Comm. Dec. 13.5.85, D.R. 42, p. 178) and continued:
“As we have indicated [counsel for the applicant] accepts that we are not in a position to grant a declaration of incompatibility, on the one hand... But it is also clear to us that the very existence of competing claims under Article 11 (albeit that it would seem to us, on the authorities, that, absent a case of prejudice to livelihood, in this case [the applicant's] right of negative association for the Union and its members would seem likely to override the asserted right of association of [Mr Lee]) renders it more appropriate for us to seek to resolve the construction of the statute without reference to those competing rights. [Counsel for the applicant], while reserving his position, does not dissent from that course, and [counsel for Mr Lee] said that he understood, and indeed accepted that it was thereby being assumed in [his favour] that there is at least arguable an Article 11 right, such as he asserts.”
15. The EAT's conclusion on the meaning of section 174 was that a union could rely as a legitimate ground for expulsion on the conduct of the expelled member so long as that conduct was not the fact of being a member of a political party. It found that a union could not rely on conduct which was a “necessary act for the purpose of being or continuing to be a member” (at paragraph 29 of its judgment). It specifically rejected the submission advanced by the applicant that included in the concept of membership (and thus amounting to conduct on which the union was not permitted to rely) was conduct as a member, or in the capacity as a member, of a political party (paragraph 28.5 of the EAT judgment).
16. A second ET again upheld Mr Lee's complaint by way of decision promulgated on 6 October 2004. It rejected the applicant's defence that Mr Lee's expulsion was entirely attributable to his conduct (apart from the fact of membership of the BNP) for the purpose of section 174, holding that the expulsion was “primarily because of his membership of the BNP” (paragraph 25 of its judgment).
17. The applicant did not appeal to the EAT against the second decision of the ET.
18. In consequence of the second decision of the ET, the applicant has been obliged to re-admit Mr Lee to the membership of the Union. It is in breach of its own Rules in so doing. Had the applicant not re-admitted Mr Lee, it would have been liable to pay him compensation in such sum as the ET considered just and equitable (subject to a statutory minimum of, currently, just over 8,600 euros (EUR), with no upper limit). Even though it has re-admitted Mr Lee, the applicant remains exposed to an application from Mr Lee for compensation in such sum as the ET considers just and equitable but subject to an upper limit of around EUR 94,200. It does not appear that Mr Lee has made any such application.
19. Section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 reads in relevant part:
(1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section.
(2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if) –
...
(d) the exclusion or expulsion is entirely attributable to his conduct.
...
(3) For purposes of subsection 2(d) 'conduct,' in relation to an individual, does not include –
(a) his being or ceasing to be, or having been or ceased to be -
(...)
(iii) a member of a political party, or ...”
20. Subsequent to the decision of the second ET in Mr Lee's case, section 174 was amended (with effect from 31 December 2004) to read as follows (again in material part only):
“(1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section.
(2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if) –
(...)
(d) the exclusion or expulsion is entirely attributable to conduct of his (other than excluded conduct) and the conduct to which it is wholly or mainly attributable is not protected conduct.
...
(3) For purposes of subsection (2)(d) “excluded conduct,” in relation to an individual, means –
(a) conduct which consists in his being or ceasing to, or having been or ceased to be, a member of another trade union
(b) conduct which consists in his being or ceasing to be, or having been or ceased to be, employed by a particular employer or at a particular place, or
(c) conduct to which section 65 (conduct for which an employer may not be disciplined by a union) applies or would apply if the references in that section to the trade union which is relevant for the purposes of that section were references to any trade union.
(4A) For the purposes of subsection (2)(d) “protected conduct” is conduct which consists in the individual's being or ceasing to be, or having been or ceased to be, a member of a political party.
(4B) conduct which consists of activities undertaken by an individual as a member of a political party is not conduct falling within subsection (4A). ..”
21. Section 177(1)(b) provides that “'conduct' includes statements, acts and omissions.”
22. Article 5 of European Social Charter 1961 provides for the following “right to organise”:
“With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.”
23. In that context, the European Committee of Social Rights of the Council of Europe (formerly the “Committee of Independent Experts”, which is the supervisory body of the European Social Charter 1961 has given consideration on numerous occasions to sections 174-177 of the 1992 Act. Concern with the interference by section 174 in the right of trade unions to fix their own rules and choose their own members was expressed by the Committee in Conclusions XIII-3, p. 109; Conclusions XV-1 p. 629; and in November 2002, Conclusions XVI-1, p. 684 where it held:
“Section 174 of the 1992 Act limits the grounds on which a person may be refused admission to or expelled from a trade union to such an extent as to constitute an excessive restriction on the rights of a trade union to determine its conditions for membership and goes beyond what is required to secure the individual right to join a trade union....The Committee concludes that, in light of the provisions of the Trade Union and Labour Relations (Consolidation Act) 1992 referred to above (sections 15, 65, 174 and 226A) the situation in the United Kingdom is not in conformity with Article 5 of the Charter”
24. In Conclusions XVII-1 (2004) it again concluded that the United Kingdom was not in conformity with Article 5 of the Charter as section 174 constituted an excessive restriction on trade unions' right to determine their membership conditions.
25. The (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) provides, inter alia:
“Part I. Freedom of Association
...
Article 2
Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”
VIOLATED_ARTICLES: 11


ITEMID: 001-21979
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: MEADS AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are United Kingdom nationals, who were born in 1959, 1993 and 1996 respectively and live in Haverhill, Suffolk. The first applicant is the mother of the second and third applicants.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant suffers from chronic obstructive pulmonary disease, which is a terminal illness affecting the heart and lungs. Her doctor advised her to rest and that she was in no state to do anything else. Her oldest son, the second applicant, suffers from asthma.
The first applicant is divorced from her husband, who is in the United States Air Force and apparently no longer lives in the United Kingdom. The applicants continued to live in the matrimonial home which was in his name. It was a large house, with a garden and therapeutic pool for use of her son.
The applicant’s former husband was made bankrupt and his interest in the property was vested in the trustee in bankruptcy.
Barclays Bank took proceedings for possession of the matrimonial home, claiming considerable arrears in mortgage payments. An order for possession was made by Cambridge County Court on 29 February 2000. The first applicant made various applications to suspend possession which resulted in short extensions.
On 23 June 2000, the County Court heard an application for ancillary relief in the divorce proceedings. The District Judge made no order for the transfer of the matrimonial home but awarded the applicant a lump sum. Because of the costs attached to the home, it was considered that she would not have received any benefit from such a transfer.
The first applicant applied to extend the time for appealing against the ancillary relief order and for permission to appeal against the order refusing to suspend the warrant of possession. These requests were refused by the County Court on 26 September 2000. The applicant’s appeal was refused by the Court of Appeal on 12 January 2001.
The date for execution of the order was set for 27 April 2001. This was adjourned pending the applicants’ application for a cancellation of the eviction. The eviction of the applicants from their house was then set for 4 May 2001. This date was also vacated when the first applicant made a further application to the court to stay the eviction. She raised arguments, inter alia, that due to her medical condition it was not reasonable for the bank to evict her, that she had made offers to pay the arrears in the past which the bank had refused and that she could now pay the arrears.
On 2 May 2001, the County Court judge refused the first applicant’s applications. He noted that there were substantial arrears in payments (in excess of 26,400 pounds sterling (GBP)) and that monthly instalments now stood at GBP 686.70, with 165.40 payable as interest on the arrears. In her previous letters to the bank, she had made it clear that it was her former husband who was to pay the arrears but the bank however had found that there was no adequate agreement as to how the arrears were to be dealt with. Though the first applicant claimed that she could pay out of her income, her income was noted as being GBP 1,514 per month, whereas the current mortgage instalments were GBP 852. She had no capital or savings with which to pay off the arrears. As regards her medical condition, the court had not been provided with a medical report but seen a note from which it appeared that the first applicant suffered from chronic obstructive pulmonary disease. The judge concluded:
“There is no realistic chance that the mortgage will be paid within a reasonable time... I have no alternative but to dismiss the application. I am concerned by the practical consequences. What in practical terms will happen?... where are [the applicants] to go? [The first applicant] has not been in touch with social services since September last year and therefore does not know if she can pack up in a day or two.
I’ve come to the conclusion, bearing in mind the practical realities of eviction, to... remove the eviction from 4 to 21 May 2001. Beyond that seems unfair on the claimant, now that there is a possibility of a negative equity... I also intend to direct the court office immediately to phone the Suffolk Social Services and the local housing authority of St Edmondsbury Borough Council to explain to them this order and to seek their assistance in finding alternative accommodation. It is incumbent on [the first applicant] to contact the housing department and make sure they are appraised.”
On 18 May 2001, the applicants were informed that they should vacate the house by 22 May 2001, at 10.30 a.m.
The first applicant made a further application to the court against the enforcement. On or about 8 May 2001, the County Court judge refused her application. He noted that he had directed the court office to notify the social services and that the first applicant had been in touch with them and the housing authority. She had a meeting arranged with the latter. He found no new matters arising and stated that her medical problems did not give him any right to suspend the warrant for possession.
On 22 May 2001, the applicants were required to leave their home by the bailiffs enforcing the possession order. They went to live with the first applicant’s father, who lives in a one-bedroom property. The first applicant made an application to this Court on the same day.
The local housing authority meanwhile offered the applicants accommodation in a two-bedroom bungalow. The first applicant refused it, alleging that it was unsuitable for her and her children, as, inter alia, there were steps leading to the front door and it was too small to house all their possessions. On 24 May 2001, the housing authority informed her that they had no other accommodation that they could offer and that if she declined this property they would have to regard her decision as a discharge of their duty towards her and she would have to find her own property. By letter of 30 May 2001, the housing authority stated that modifications could be made to the house on the recommendation of an occupational therapist (e.g. concerning the applicants’ claimed health requirements) and urged her to accept the property. The first applicant declined.
On 8 June 2001, the bank obtained an order to remove the applicants’ personal possessions from the house unless the applicants took them within seven days. The first applicant claimed that she was unable to arrange for storage due to the costs involved. The bank informed her on 18 June 2001 that she should inform them of where her possessions should be delivered or they would be obliged to dispose of them to defray their costs of storage.
In a letter dated 22 August 2001, the Government submitted that the social services had offered the first applicant advice and assistance which she had declined. The County Council Disability Team had meanwhile given the family a holiday grant. The housing authority records indicated that the first applicant had refused the two bedroom bungalow as it was too small and did not have a therapeutic pool. They had a long waiting list for the type of property which the first applicant would have liked and while willing to place her on the waiting list, could not justify housing her in such a property before persons who had been on the waiting list for many years.
In a letter of 27 September 2001, the first applicant informed the Court that she had found a house suitable to her needs and was in the process of moving in.


ITEMID: 001-114978
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: STÜRMER AND OTHERS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: 1. The applicants, Mr Christian Stürmer and ten others, are German nationals. Their names and personal details are listed in the annex at the end of this decision.
3. The applicants were born between 1959 and 1962 with deformities of their upper and/or lower extremities and other malfunctions of inner organs, resulting from the fact that their mothers had taken the tranquilliser “thalidomide”, sold in Germany under the name “Contergan”, during a certain, sensitive period of pregnancy. About 3,000 persons suffering from likewise impacts of the drug are living in Germany alone.
4. “Contergan” was produced by the pharmaceutical manufacturer G. GmbH, a company with limited liability, from 1957 until November 1961. It was available on the German market without a medical prescription and was sold as an analgesic suitable to soothe discomforts caused by pregnancy.
5. In 1970 the criminal proceedings for injuries caused by negligence against the management and the owners of the manufacturer company G. were stayed. Civil proceedings on compensation for damages lodged by some affected children or their parents were pending.
6. On 10 April 1970 the pharmaceutical manufacturer G. covenanted to pay a lump sum of 100 million Deutschmarks (DEM - 51 million euros (EUR)) to the victims in order to settle all compensation claims.
7. On 17 December 1971 a public law foundation “Hilfswerk für behinderte Kinder” was established by federal law in order to facilitate a settlement with all persons affected and in order to provide a solid financial basis for benefit payments. The foundation received DEM 100 million from the manufacturer and the same amount from the German State. Each person affected by “Contergan” was eligible for a single payment of at least DEM 1,000 and at maximum DEM 25,000 and additionally monthly pensions between DEM 100 and DEM 450. All payments from this fund were exempt from taxes and were not credited against other social benefits. All legal claims against the manufacturer expired by law. The law entered into force on 31 October 1972.
8. On 8 July 1976 the Federal Constitutional Court found the Law on Establishment of a Foundation of 17 December 1971 – henceforth: the 1971 Act – to be compatible with the provisions of the Basic Law, in particular compatible with the property protection of Article 14 of the Basic Law. It held that the legislator voluntarily incurred a position as a creditor and was therefore constitutionally obliged to guarantee the liquidity of the foundation in future and to safeguard that the pensions to the victims were adequate.
9. In 1976 and in 1980 the financial funds of the foundation were supplemented by DEM 50 and DEM 170 million by the German State. Since 1997 the monthly pensions have been financed entirely from the federal budget. From 1976 until 2002 the height of the pensions had been raised nine times.
10. In October 2005 the foundation was renamed to Contergan Foundation (Conterganstiftung für behinderte Menschen). The persons affected by “Contergan” received a non-recurring capital sum and again a monthly life-long pension depending on the established degree of health impairment. Payments from the foundation could not be credited against any other social benefit payment in order to ensure that the aggrieved persons received the pension as an extra monetary benefit.
11. On 1 July 2008 the monthly pensions were doubled by the First Law on Amending the Contergan Foundation Law. According to the legislator the higher pension should contribute to compensate for the increasing secondary health deterioration of the now middle-aged persons affected by “Contergan”.
12. On 30 June 2009 the Second Law on Amending the Contergan Foundation Law entered into force. The Foundation was endowed with a further EUR 100 million of which EUR 50 million were provided by the manufacturing company G. GmbH and the rest by the Federal Republic of Germany. The amendment slightly increased the monthly pensions (now between EUR 248 and EUR 1,116) which are still funded entirely from the federal budget and the non-recurring payment (Kapitalentschädigung) between EUR 1,278 and EUR 12,782 depending on the extent of the bodily damage caused by “Contergan”. The law further introduced an annual additional payment (jährliche Sonderzahlung) from the capital interests gained by the foundation. The amount of this payment varies between EUR 460 and EUR 3,680 depending on the degree of disability. Furthermore, the increase of the monthly pension was tied to the adaptations of the general retirement pension scheme. By the amendment a further 100 persons who had been previously time-barred to claim benefits became eligible for the benefits.
13. On 30 June 2009 the applicants directly lodged a constitutional complaint in which they attacked the constitutionality of the 1971 Act and all subsequent legislation in that respect. They invoked a violation of their property rights and felt discriminated against in comparison to other vulnerable groups. They further complained about a legislative failure to act insofar as they did not receive benefits to the extent they would receive if the present laws on pharmaceutical liability were applied.
14. On 26 February 2010 the Federal Constitutional Court, in a composition of a panel of three judges, declined to review the constitutional complaint of the applicants. The Constitutional Court held that the complaint was inadmissible for being time-barred insofar as the 1971 Act and the First Law on Amending the Contergan Foundation Law were challenged. Regarding the complaint on the Second Law on Amending the Contergan Foundation Law the Court found it inadmissible for reasons of subsidiarity of the constitutional complaint, as the applicants had not priorly objected against their pension with the competent administrative courts. The Court underlined that the applicants had failed to challenge the regulatory framework. The Court further reasoned that the complaint as a whole was not sufficiently substantiated. Insofar as the applicants complained about a violation of their property rights the Court held that the sum of all benefits the applicants had received since 1971 was significantly higher than the amount of damages the applicants could have reasonably claimed against the manufacturing company of limited liability. The applicants had further failed to clarify why the present statutory provisions on liability for pharmaceutical products which had been enacted well after the “Contergan scandal” had taken place should become applicable in this case. Furthermore, the current provisions on liability for pharmaceutical products provided for compensation only in cases which involved less than 200 severely damaged persons, whereas the “Contergan” case still affected around 3,000 persons. In regard to their complaint about arbitrary discrimination the Court held it insufficient to compare just the amount of the payments and disregard the different legal and factual circumstances. All other groups in question like victims of warfare, war crimes as well as of criminal deeds and of contaminated blood preserves were compensated under significantly different factual and legal circumstances. The benefit payments from the “Contergan” foundation were tax-free and not considered to be income or assets in order to guarantee that the benefits actually improved the financial situation of those affected by “Contergan”.
15. Section 23 § 1 of the Law on Establishment of a Foundation of 17 December 1971 – henceforth 1971 Act – (Gesetz über die Errichtung einer Stiftung „Hilfswerk für behinderte Kinder“) provided that claims against the manufacturing company of limited liability, G. GmbH, or against its associates, managers or clerks of that company be extinct insofar as the claims relate to a damage which falls under the scope of the 1971 Act.
16. Section 17 of the Second Law on Amending the Contergan Foundation Law stipulates that the benefits based on this law are exempt from income tax and are not considered to become part of the assets of the beneficiary. According to section 18 § 2 of the same law the obligation of other state authorities to provide for benefits is not affected. Authorities may not decline benefits provided for by law because the person receives benefits according to this law.
17. Section 93 § 1 of the Rules of Procedure of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) stipulates that a constitutional complaint shall be lodged and substantiated within one month after the final decision of the competent court. Section 93 § 3 stipulates that a constitutional complaint on the constitutionality of a statutory law against which there is no other way of recourse must be lodged within one year after the enactment of that law.