ITEMID: 001-106171
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SCHNEIDER v. GERMANY
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1958 and lives in Fulda.
6. From 2001 onwards Mr and Mrs H., a married couple, lived in different places as Mr H. was working in the United Kingdom while Mrs H. remained in Germany. The spouses have a daughter born in 1997. In May 2002 Mrs H. and the applicant entered into a relationship. Mrs H. became pregnant in June 2003.
7. The applicant claimed that he was the father of the child to be born, and that the birth had been planned by Mrs H. and him. This was contested by the Government and the third party interveners.
8. In September 2003 Mrs H. left the applicant and subsequently went to live with her husband in the United Kingdom.
9. On 25 November 2003 the applicant acknowledged paternity of the child to be born before the Heidelberg Youth Office.
10. On 6 March 2004 Mrs H. gave birth to a boy, F., in the United Kingdom. Mr and Mrs H. have been living in the United Kingdom since then; they raise F. together with their daughter. They acknowledged that the applicant might be F.’s biological father. They claimed, however, that it could just as well be Mr H. as they had also had intimate relations at the relevant time. The latter allegation is contested by the applicant. The spouses preferred not to verify paternity in the interest of their family relationship.
11. On 20 October 2005 the Fulda District Court dismissed the applicant’s requests of 24 August 2004 for access to F. twice per month and for regular information on the boy’s development.
12. The District Court noted that the applicant claimed to be F.’s biological father. The applicant had submitted that he and Mrs H. – who at the time was considering a divorce – had planned to have the child. When Mrs H. had become pregnant, the applicant had accompanied her to her medical consultations as the child’s father. Mr and Mrs H., for their part, had not contested that there had been an intimate relationship between the applicant and Mrs H. at the relevant time. However, Mrs H. had not planned to have a child and Mr H. could equally be F.’s biological father.
13. The District Court found that the applicant, even assuming that he was F.’s biological father, did not fall within the group of persons who had a right of access and information under Article 1684 or Article 1685 of the Civil Code (see paragraphs 32-33 below). He did not have a right of access under Article 1684 of the Civil Code as he was not F.’s legal father. According to Article 1592 of the Civil Code (see paragraph 35 below) the boy’s legal father was Mr H., the husband of the child’s mother. The applicant’s acknowledgement of paternity before the Youth Office was not valid under Article 1594 § 2 of the Civil Code as Mr H.’s paternity prevailed (see paragraph 36 below). Nor was he entitled to challenge Mr H.’s paternity as the conditions of Article 1600 § 2 of the Civil Code (see paragraph 37 below) were not met. He had no right to contest Mr H.’s paternity because there was a social and family relationship between Mr H. and F., who was living with Mr and Mrs H.
14. The District Court further found that the applicant did not have a right of access under Article 1685 § 2 of the Civil Code either. He claimed to be F.’s biological father, but whether this was in fact the case was unclear. Moreover, he was not a person with whom the child had close ties and there was no social and family relationship between them. The fact that in the applicant’s submission, Mrs H. and he had planned to have the child and had wanted to live together did not alter that conclusion. The applicant had never lived with Mrs H. or the child. The child had lived with Mr and Mrs H., a married couple, since his birth. During that time there had been no possibility for the applicant to build up a social and family relationship with F.
15. On 9 February 2006 the Frankfurt am Main Court of Appeal, without hearing the parties in person, dismissed the applicant’s appeal as well as his request to be allowed to offer F. presents on special occasions.
16. The Court of Appeal confirmed the District Court’s finding that the applicant did not have a right of access and information under Article 1684 and Article 1686 of the Civil Code (see paragraph 34 below) as those provisions conferred rights only on a child’s legal parents. Under Article 1592 no. 1 of the Civil Code it was Mr H., who was married to Mrs H. at the time of F.’s birth, who was F.’s legal father. The applicant’s acknowledgement of paternity of F. did not alter that fact as it was not valid (Article 1594 § 2 of the Civil Code).
17. Furthermore, the applicant did not have a right of access and information under Article 1685 of the Civil Code. There was no social and family relationship between the applicant and F. as the applicant had so far never even seen F., let alone built up a relationship with him.
18. The Court of Appeal considered that the fundamental right to respect for one’s family life under Article 6 § 1 of the Basic Law (see paragraph 30 below) and Article 8 of the Convention did not afford the applicant more far-reaching rights. It was not even established that the applicant was F.’s biological father. Paternity could, however, only be determined in separate proceedings and under certain conditions, which the applicant was most probably unable to meet. In any event, even assuming that the applicant was F.’s biological father, he would still not have a right of access and information, for lack of a social and family relationship with F. The case of Keenan v. Ireland, in which the European Court of Human Rights had strengthened the rights of biological fathers who had not yet built up a social and family relationship with their child, was not comparable to the present case. The facts of that case, in which the child’s mother had given up the child for adoption, were not comparable to those of the present case as the interests of all persons concerned had to be weighed in the balance. In the present case, the applicant’s right in his position as biological father could not outweigh the protection of the family, the mother and the child under Article 6 § 2 of the Basic Law (see paragraph 30 below). In this conflict of interests, anything which could upset a child’s trust in his family had to be prevented. It was preferable that F. grew up in his family without learning about the problematic circumstances of his origin.
19. The Court of Appeal’s decision was served on the applicant’s counsel on 14 February 2006.
20. On 18 April 2006 the Frankfurt am Main Court of Appeal dismissed the applicant’s objection alleging a violation of the right to be heard (Anhörungsrüge).
21. In his constitutional complaint dated 14 March 2006 the applicant claimed that the decisions of the family courts refusing him contact with and information about the personal circumstances of his child had violated, in particular, his right to respect for his family life under Article 6 of the Basic Law and Article 8 of the Convention and his right to equal treatment under Article 3 §§ 1 and 2 of the Basic Law (see paragraph 29 below) and Articles 8 and 14 of the Convention. He argued that for a biological father to relate closely to his child, so as to have a right of access and information, it was sufficient that the father was willing to take responsibility for the child. Otherwise, the child’s mother would have the right to prevent any contact between father and child. Such contact, and knowledge of his own origins, were in the child’s best interest. The applicant further claimed that the family courts’ refusal to determine whether he was F.’s biological father and their failure to examine, with regard to the circumstances of his case and by taking evidence, whether contact with him would be in F.’s best interest had disproportionately interfered with his right to respect for his family life. Moreover, the domestic courts’ decisions had discriminated against him in his right of access and information compared to fathers of children born in or out of wedlock, mothers, grandparents and siblings.
22. On 20 September 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 1 BvR 1337/06). It held that the complaint had no prospect of success as it was, in any event, ill-founded.
23. In so far as the applicant had complained about the family courts’ failure to determine paternity of F., his complaint was inadmissible owing to the subsidiarity of a constitutional complaint. The applicant should have contested Mr H.’s paternity in separate proceedings under Article 1600 § 1 of the Civil Code prior to lodging his constitutional complaint.
24. In so far as the applicant complained about the family courts’ refusal to grant him access to and information about F., his rights under Article 6 §§ 1 or 2 and Article 3 § 1 of the Basic Law had not been breached.
25. The parental rights guaranteed by Article 6 § 2 of the Basic Law afforded protection to the person having parental responsibility, irrespective of whether that person was the biological or the legal parent of the child. In the present case, this provision thus protected Mr H. and not the applicant. Neither Article 1684 nor Article 1686 of the Civil Code, which provided for rights of access and information only for legal parents, nor the decisions of the family courts which were based on those provisions, were in breach of Article 6 § 2 of the Basic Law.
26. The family courts’ refusal to grant the applicant access under Article 1685 § 2 of the Civil Code had not violated his rights under Article 6 § 1 of the Basic Law either. Article 6 § 1 protected the relationship between a biological, but not legal, father and his child only where there was a social relationship between them which was based on the fact that the father had borne actual responsibility for the child at least for some time. Conversely, the (presumed) biological father’s wish to take over responsibility or to build up a social and family relationship with the child was not sufficient to attract the protection of Article 6 § 1. As there had never been a social and family relationship between F. and the applicant, the family courts had complied with Article 6 § 1 of the Basic Law in denying the applicant a right of access pursuant to Article 1685 § 2 of the Civil Code.
27. Furthermore, the fact alone that the presumed biological father, unlike the biological mother, had no right of access to the child did not render the decisions of the family courts arbitrary and thus in breach of Article 3 § 1 of the Basic Law.
28. The decision was served on the applicant’s counsel on 4 October 2006.
29. Under Article 3 of the Basic Law, everyone is equal before the law (§ 1); men and women have equal rights (§ 2).
30. Article 6 of the Basic Law, in so far as relevant, provides:
(1) Marriage and the family shall enjoy the special protection of the state.
(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty.
31. Parental custody includes the right to determine access to the child (Article 1632 § 2 of the Civil Code).
32. According to Article 1684 § 1 of the Civil Code, a child has a right of access to each parent, and each parent in turn has the right and the duty to have contact with the child. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties (Article 1684 § 3). They may restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office or an association (Article 1684 § 4).
33. Under Article 1685 § 1 of the Civil Code, grandparents and siblings have a right of access to the child if this serves the child’s best interest. Article 1685 § 2 of the Civil Code, in its version applicable at the relevant time, further provides for persons with whom the child has close ties (enge Bezugspersonen) to have a right of access to the child if this serves the child’s best interest and if they are bearing actual responsibility for the child or have done so in the past (social and family relationship). It is to be assumed, as a rule, that a person who lived with the child in domestic community for a lengthy period of time has borne such actual responsibility. Article 1684 §§ 3 and 4 apply mutatis mutandis (see Article 1685 § 3 of the Civil Code).
34. Under Article 1686 of the Civil Code, each parent who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the other parent in so far as this is not contrary to the child’s best interest.
35. According to Article 1592 of the Civil Code, a child’s father is either the man who at the date of the child’s birth was married to the child’s mother (no. 1), or the man who acknowledged paternity (no. 2) or whose paternity is judicially established under Article 1600d of the Civil Code (no. 3).
36. An acknowledgement of paternity is not valid as long as the paternity of another man exists (Article 1594 § 2 of the Civil Code).
37. Paternity may be challenged. Under Article 1600 § 1 of the Civil Code, entitlement to challenge paternity lies with the man whose paternity exists under Article 1592 nos. 1 and 2, with the mother and with the child, and also with the man who makes a statutory declaration that he had sexual intercourse with the child’s mother during the period of conception. However, pursuant to § 2 of Article 1600, this last man has a right to challenge the paternity of the man who is the child’s legal father under Article 1592 nos. 1 or 2 only if he is the child’s biological father and if there is no social and family relationship between the legal father and the child. If there is no paternity under Article 1592 nos. 1 or 2 of the Civil Code, paternity is to be established by the family court (Article 1600d § 1 of the Civil Code).
38. Research undertaken by the Court in relation to 23 Council of Europe Member States shows that there is no uniform approach in the Member States of the Council of Europe to the question whether, and if so, under what circumstances, a biological father (who is not only a sperm donor) has a right to contact with his child where a different father exists in law.
39. In a considerable number of States (including Bosnia and Herzegovina, Estonia, France, Ireland, Portugal, Russia, Slovenia, Spain, the United Kingdom and Ukraine), where a child is born to a woman who is living with her husband, a biological father can ensure his contact rights by first challenging the paternity presumption in place, in some cases within a fixed time-limit. In these States, as indeed in all of the countries surveyed, a presumption exists in law to the effect that a child born of a married woman during the subsistence of the marriage is also the child of her husband. Having been recognised as the (legal) father of the child concerned, the biological father then has a right to contact with his child like any other noncustodial parent, subject to the child’s best interest.
40. According to an expert report drawn up in March 2010 by the German Institute for Youth Human Services and Family Law (Deutsches Institut für Jugendhilfe und Familienrecht e.V., a registered association and non-governmental organisation), which was submitted by the Government and covered, in addition to Germany, seventeen other Council of Europe Member States, the same applied in Greece. That report, however, interpreted differently the provisions applicable in France and Spain. The applicant submitted that there were several other countries where a biological father could challenge the legal father’s paternity under conditions which were less restrictive than those applicable in Germany, such as Azerbaijan, Lithuania, Moldova, Norway, San Marino and Serbia (see paragraphs 41 and 43 below for the research undertaken by the Court in respect of Azerbaijan). He contested in general terms the comparative law analysis submitted by the Government, arguing that the legal situation in only seventeen of the forty-seven Member States of the Council of Europe was not representative.
41. In a considerable number of Council of Europe Member States, according to the Court’s research, the biological father of a child would, on the contrary, not be able to challenge the said paternity presumption in circumstances similar to those in the present application (see, in particular, Azerbaijan, Belgium, Croatia, Finland, Hungary, Italy, Latvia, Luxembourg, Monaco, the Netherlands, Poland, Slovakia and Switzerland). Biological fathers in those countries lack standing to bring an action to challenge that presumption, be it in all circumstances or at least in cases in which the mother is still living with her husband (see in this latter regard the law in force in Belgium and Luxembourg).
42. According to the expert report of the German Institute for Youth Human Services and Family Law submitted by the Government, the same applies in Austria, the Czech Republic, Denmark, Liechtenstein, Sweden and Turkey.
43. In these Member States it is open to the biological father to apply for contact only as a third party, not as a parent. However, in some of these States (Azerbaijan, Croatia, Finland, Hungary, Italy, Luxembourg and Poland) the biological father does not have standing to apply for contact even as a third party, as the law provides a right of contact only to legal parents and (to some extent) to other relatives.
44. According to the same expert report of the German Institute for Youth Human Services and Family Law, the biological father would also not have standing to apply for contact in Liechtenstein and in the Czech Republic.
45. In the remaining Member States surveyed by the Court in which the paternity presumption may not be challenged by a biological father (Belgium, Latvia, Monaco, the Netherlands, Slovakia and Switzerland), different preconditions apply for that father to be granted contact if such contact is in the child’s best interest. According to Article 375 bis of the Belgian Civil Code, there has to be “proof of a tie of special affection with the child”; according to Article 181 § 3 of the Latvian Civil Code, the father must have lived together with the child for a long time in the same household. In Monaco a third person can be granted contact by a judge where that would be in the best interest of the child, without additional preconditions having to be met (compare Article 300 of the Monegasque Civil Code). In the Netherlands, third persons (including mere sperm donors) may be granted contact under Articles 1:377f and 1:377a § 3 of the Civil Code of the Netherlands if they have a close personal relationship with the child, unless contacts run counter to the child’s best interest. According to section 25 § 5 of the Slovakian Family Act, the biological father may be granted access if he is regarded as being “close” to the child (according to the expert report submitted by the Government, a similar provision applies in Sweden), and under Article 274a of the Swiss Civil Code, he has a right to contact in exceptional circumstances (according to the expert report submitted by the Government, the same precondition applies in Turkey).
46. According to the report submitted by the Government, Section 20 of the Danish Act on Parental Responsibility provides that access may be granted only to close relatives having close personal ties with the child concerned and only if the parents have no or hardly any contact with the child. The report further states that under Article 148 § 3 of the Austrian Civil Code, a biological father may be granted access to his child if the child’s welfare is endangered otherwise.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-80880
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: TROCELLIER v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Marie-Thérèse Trocellier, is a French national who was born in 1943 and lives in Marvejols. She was represented before the Court by Mr P. Sirgue, a lawyer practicing in Bordeaux. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs.
The facts of the case, as presented by the parties, may be summarised as follows.
On 11 July 1988, the applicant underwent gynaecological surgery (a hysterectomy) under general anaesthetic in the Montpellier Public Hospital. When she came round, her left leg was paralysed. Whereas she had been able-bodied prior to the operation, subsequently she could only move about in a wheelchair or on crutches.
On 2 May 1990 Dr Arnaud, an expert in forensic medicine at the court of appeal, examined the applicant at her request. His report stated, inter alia:
“... immediately after [the] operation paralysis of the entire ... lower left limb occurred. To date, in spite of the various hypotheses put forward and ... the numerous in-depth examinations which have been carried out ..., it has not been possible to ascribe a precise aetiology to Mrs Trocellier’s paralysis which would cause her sensory-motor disorder. The only undisputed fact is that this flaccid paralysis appeared in the immediate aftermath of the most recent operation on 11 July 1988 (on the following day). Mrs Trocellier would appear to have a medico-psychological ‘field’ which could have had an adverse impact on the durability of such disorders and the establishment of her current state. Nevertheless, as all the specialists agree ..., [she] has sustained a serious sensory-motor neurological injury, affecting the entire lower left limb, which arose following the operation of 11 July 1988. Is this the result of direct traumatic lesions to the nerve trunks ... or incorrect positioning on the operating table? It is very difficult to choose between the various hypotheses put forward. In any event, [the applicant] has a serious disability which, in spite of every attempt at physiotherapy, seems to be permanent and without any significant possibility of improvement. Even if, as has been suggested, Mrs Trocellier’s personal psycho-pathological ‘field’ could have played a role in this situation, it is not the cause of it, which must be ascribed to the operation of 11 July 1988. It thus appears reasonable to request compensation for these post-operational complications from Montpellier Hospital. On the other hand, no ‘serious’ fault giving rise to personal liability can be ascribed to the various specialists who treated the patient.”
On 13 April 1991 Dr Bondeelle, who held a degree in judicial compensation for personal injury and acted as an expert for the Carpentras court, examined the applicant at her request. His report, dated 29 April 1991, found that the applicant’s paralysis had begun immediately after the operation of 11 July 1988 and concluded:
“... the only possibilities are: (a) incorrect positioning on the operating table; or (b), ‘sleep syndrome’, which is very similar ... Whatever the underlying psychological reality – and in this regard we ... found Mrs Trocellier not merely uncomplaining but also surprisingly serene – the causal link is clear to all.”
On an urgent application by the applicant, the President of the Montpellier Administrative Court appointed a medical expert (Dr Giraud), who examined the applicant and studied her medical file. His report, dated 10 December 1992, concluded that there had been no medical or organisational error on the part of the hospital department. In particular, the report stated:
“... Mrs Trocellier underwent a hysterectomy on 11 July 1988. Since the operation there have been indications of a left crural injury, namely minor problems of sensitivity and motility in the area of the lower left limb which is innervated by the crural nerve. This is a relatively frequent post-operative complication following a hysterectomy. The reason [for it] has not yet been identified with any precision; it is known, however, that these problems generally disappear after about three months. Four years later, however, Mrs Trocellier is still suffering from monoplegia of the lower left limb ... We are ... led to conclude that what we have here is pithiatic monoplegia of the lower left limb, linked to conversion syndrome. No psychosomatic or anatomical condition corresponds to the dysfunction complained of. Consequently, we can state that the observed monoplegia, of a conversion-syndrome type, has no causal link to the operation. However, while the operation is not responsible for the establishment of this pithiatic monoplegia, there is no doubt that [it] occurred immediately after the operation and especially after a crural injury linked to that operation. This pithiatic monoplegia could only have appeared in a woman who had a predisposition to psychological problems of this nature, but the Court of Cassation has ruled that under no circumstances may one refer to a predisposition that had not [previously] come to light, and it would not appear that Mrs Trocellier had shown signs of psychological problems of this nature in the years preceding the operation, not having seen a doctor for that reason and not having been treated at home or in hospital for such problems. ... No medical error occurred and the operation proceeded normally but, in a predisposed environment, [it] triggered a conversion syndrome on a bias point which, in Mrs Trocellier’s case, took the form of pithiatic monoplegia of the lower left limb. In consequence, even if there was no error or fault on the part of the care team or hospital, given that the problems were indisputably triggered following the operation, it might be possible to envisage compensation for the consequent dysfunctions from a legal perspective, without a medical error having occurred during the operation; this will be for the court to decide. We emphasise that, in this approach, imputability must be considered absolute from the medico-legal perspective, since it has been impossible to produce evidence of [Mrs Trocellier’s] previous condition, even if, medically speaking, her previous condition is perfectly clear. ...”
The applicant applied to the Montpellier Administrative Court, seeking to have the Montpellier Hospital declared liable for the detrimental consequences of the surgery of 11 July 1988 and to obtain an order that it was to pay compensation for her personal injury. Her application was dismissed on the following grounds by a judgment of 8 October 1997.
“... The inquiry into the facts, and particularly the expert report ordered in interlocutory proceedings, revealed that the operation ... proceeded normally, with no medical error or fault by the theatre team which could be alleged to have caused the emergence of the problems complained of by the claimant, and that the monoplegia observed in [Mrs Trocellier] is not imputable to the conditions in which the operation was carried out; the circumstance that this operation could, as a psychological factor, have triggered a conversion syndrome on a bias point which, in the patient’s case, took the form of pithiatic monoplegia of the lower left limb is not in itself sufficient to establish a causal link between the operation and the paralysis complained of by the claimant ...”
The applicant appealed against that judgment to the Marseilles Administrative Court of Appeal. She complained, in particular, that the hospital had failed in its obligation to inform her fully of the risks connected with the operation that she was to undergo, with the result that she had not been able to give informed consent and had failed to carry out prior research into whether she was predisposed to somatisation. The Administrative Court of Appeal dismissed the appeal in a judgment of 1 April 1999, giving the following reasons.
“... The expert report reveals that, although the problems suffered by Mrs Trocellier, which appeared in the hours following the operation before assuming a permanent nature, arose on the occasion of that operation, they are not a direct consequence of it but are only the expression of psychosomatic tendencies which had already been exhibited at a previous stage by Mrs Trocellier; there is therefore no direct causal link between the symptoms shown and the operation carried out.
Mrs Trocellier also seeks to establish the hospital’s liability, alleging that it had committed a fault in failing to carry out in-depth tests prior to the operation in order to take account of these tendencies and cancel the operation in question; on the one hand, it is not alleged that the hospital was aware of this psychological frailty in Mrs Trocellier and, on the other, in any event, the investigation reveals that the persistence of the appellant’s gynaecological problems over several months, in spite of various measures, amounted to an indisputable indication for the operation, having regard to the chronic and disabling nature of those problems, which were indeed completely removed by the operation. ...”
The applicant appealed to the Conseil d’Etat. In her full pleadings, complaining in particular that the appeal court’s judgment had not replied to her argument alleging a lack of investigation and information, she invited the Conseil d’Etat to hold that that judgment should be quashed and to determine the merits of the case.
On 6 June 2001 the Conseil d’Etat dismissed the appeal in a judgment which was worded as follows:
“... The evidence submitted to the trial judges reveals that, when finding that ‘there is ... no direct causal link between the symptoms shown and the operation carried out’, the court did not distort either the facts of the case or the conclusions of the expert report drawn up at the request of the Montpellier Administrative Court, which noted that there is no direct link of cause and effect between the monoplegia suffered by Mrs Trocellier and the operation.
In ruling that ‘there is ... no direct causal link between the symptoms shown and the operation carried out’ and by thus finding that the precondition for any liability on the part of the hospital, either on the ground of strict liability or of liability for negligence, was not met, the court gave sufficient reasons for its judgment ...”
In her observations in response to those of the Government, the applicant added that, at her lawyer’s request, an expert named Michelet had confirmed the following in a report of 30 April 2005 (not produced).
“In this case, there is an obvious cause for the patient’s condition, namely the operation of 1[1] July 1988, complicated by a lesion of the left crural nerve.
The relationship between this cause and its consequences is substantiated by several factors: an initial injury to the crural nerve, confirmed by electromyogram; a neurological syndrome of functional lameness of the lower left limb, in a person who was thus predisposed; and an unconscious conversion in relation to the experience of the operation and the subsequent complication, taking the form of an injury to the crural nerve, which developed into a pithiatic symptom.
These complications are disproportionate to what might have been expected from the initial hysterectomy.
Conclusion: the problems evidenced on this date are to be directly and exclusively ascribed to the consequences of the operation of 1[1] July 1988.”


ITEMID: 001-113723
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PIĘTKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Preliminary objection dismissed (Article 35-1 - Six month period);Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant lives in Wrocław.
6. On 2 April 2002 the applicant, together with A.Ł. – his partner in his commercial partnership (spółka cywilna) – brought a joint action before the Wrocław Regional Court against a certain G.P. for payment of 237,739 Polish zlotys (PLN) with statutory interest. He requested exemption from court fees. In the statement of claim he gave his permanent address and another address specified for service of court correspondence.
7. By an order of 6 May 2002 the court ordered that the statement of claim be served on G.P.
8. On 21 May 2002 G.P., represented by a privatelyhired lawyer, replied to the claim. That reply was sent to the applicant’s address for service of correspondence.
9. On 22 May 2002 the applicant moved out of his permanent address.
10. On 5 June 2002 the court requested the plaintiffs to submit additional information in respect of their request for exemption from court fees. The summons was sent to the applicant’s permanent address, but it was not served on him as he was no longer living at that address. The summons was sent to the coplaintiff’s permanent address and was served on him on 10 June 2002.
11. On 5 July 2002 the court refused to grant an exemption as the plaintiffs had failed to submit the necessary information. This decision was sent to the applicant’s permanent address. It was not served on him as he was no longer living there.
12. On 12 July 2002 that decision was served on the applicant’s coplaintiff.
13. On 2 August 2002 the court summoned the plaintiffs to pay PLN 13,486 in court fees and set a time-limit of 14 days for payment. The summons was sent to the applicant’s address for correspondence as indicated in his statement of claim and was served on him on 12 August 2002.
14. On 29 October 2002 the applicant informed the court that he had never been served with the decision of 5 June 2002 (see paragraph 10 above) refusing him an exemption from court fees.
15. The court served the decision on the applicant on 5 November 2002.
16. By a letter of 8 November 2002, received by the court on 12 November 2002, the plaintiffs informed the court that they wished to withdraw their claim as the court had refused to grant them an exemption from court fees. They further referred to the fact that the defendant had left Poland. Even if they obtained a judgment in their favour, it would be very difficult to obtain its effective enforcement against her.
17. Subsequently, on 2 December 2002, the applicant and his coplaintiff were ordered to pay legal fees incurred by the defendant in the amount of PLN 24,015.
18. On 13 December 2002 the applicant and his co-plaintiff appealed against this decision. Their appeal was dismissed by the Wrocław Court of Appeal on 21 February 2003. On an unspecified date the applicant paid half of the legal costs incurred by the defendant, in the amount of PLN 12,007.
19. Subsequently, the applicant and the co-plaintiff claimed compensation from the State Treasury. They submitted that the Wrocław Regional Court had breached Article 124 of the Code of Civil Procedure by setting the civil proceedings in motion despite the fact that their request for an exemption from court fees had not been decided at that time. The court had wrongly and unlawfully served the statement of claim on the defendant before the issue of exemption from the court fees had been decided. The defendant, relying on that service and assuming that there had been no impediment to proceeding with the case at that time, had incurred legal costs. The court had also failed to serve the refusal of exemption on the applicant properly, despite the fact that the applicant had already informed it of his address for service of judicial correspondence in his statement of claim. When this decision was ultimately served on them, the plaintiffs decided to withdraw their claim. Nonetheless, they had been obliged to pay in full the legal costs borne by the defendant.
20. Subsequently, during the same proceedings concerning his compensation claim, the applicant was heard by the Wrocław District Court. He stated that he was a businessman earning an average monthly income of PLN 10,000.
21. By a judgment of 19 May 2006 the Wrocław District Court dismissed the claim. It found that the decision to serve the statement of claim on the defendant was in breach of Article 124 of the Code of Civil Procedure. It further acknowledged that the plaintiffs had sustained damage as they had to reimburse the costs borne by the defendant.
However, the court was of the view that the plaintiffs had failed to show that the damage had been caused exclusively by the court’s procedural error in serving the summons. In their pleadings withdrawing their claim they had referred not only to the refusal of exemption but also to the fact that the defendant had left the country. Moreover, the plaintiffs had been obliged to pay the defendant’s costs not because the court had refused to grant them an exemption, but because they had withdrawn their claim. They had therefore failed to show the existence of a normal causal link (normalny związek przyczynowy) between the acts of the State Treasury, represented by the court, and the uncontested damage which they had suffered.
22. The applicant and his co-plaintiff appealed against that decision, arguing that their obligation to reimburse the defendant’s costs had arisen essentially because their statement of claim had been incorrectly served on the defendant. They had thereby been drawn into the litigation unlawfully and despite the fact that they had already requested exemption from the court fees in their statement of claim.
23. A hearing in the case was held on 3 January 2007. The applicant attended the hearing. The court informed him that the judgment on the merits of the case would be given on 16 January 2007.
24. By a judgment of 16 January 2007 the Wrocław Regional Court dismissed the claim, essentially sharing the conclusions of the lower court. The court read out the operative part of the judgment, giving a brief verbal explanation of the reasons for that judgment.
25. On 18 January 2007 the applicant and the co-plaintiff requested the court to prepare written grounds for the judgment.
26. The written grounds, comprising the facts of the case as established by the court and summarising the legal reasoning of both the first- and secondinstance courts, were served on them on 26 February 2007.
27. Article 124 of the Code of Civil Procedure, as applicable at the relevant time, reads, in so far as relevant:
“Submission of a request for exemption from court fees ... shall not result in the proceedings being stayed, save for cases where such a request has been lodged together with a statement of claim or before such a statement has been lodged with a court.”
28. Section 16 (1) of the 1967 Court Fees Act, applicable at the material time, provided:
“ A court shall not take any procedural measures following an application for which the relevant court fee has not been paid. The president shall summon the party to pay that fee within a seven-day time limit, on pain of the application being returned. If the fee has not been paid, the president shall return the application.”
29. Article 325 of the Code of Civil Procedure specifies which constituents the operative part of a judgment (sentencja) must contain. It lists the following: the name of the court, those of the parties, the judges, the court clerk and the prosecutor (provided that the last-named was a party to the case), the date and name of the town, matter in dispute and the substance of the decision (rozstrzygnięcie sądu o żądaniach stron).
30. Under Article 326 § 3 of that Code, the president of a judicial panel reads out the operative part of the judgment in open court. Afterwards the president or judge rapporteur orally explains the main grounds for the decision (podaje ustnie zasadnicze powody rozstrzygnięcia).
31. Pursuant to Article 328 of the Code, written grounds for a judicial decision shall be prepared at a party’s request submitted within one week from the date of the delivery. Written grounds must consist of a summary of the facts established by the court, refer to the evidence relied on by the court, indicate the reasons why the court considered that evidence to be credible and give legal reasons for the decision adopted.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72240
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ÖZTOPRAK AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 and 8 and of P1-1;No violation of Art. 5-1;Not necessary to examine Art. 6-1;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings
TEXT: 9. The applicants are all Turkish nationals. They were living in Halitpınar village at the time of the alleged events giving rise to the present application. The facts of the case are in dispute between the parties and may be summarised as follows.
10. Until October 1994 the applicants all lived in Halitpınar, a village of Ovacık district in Tunceli province, in the then state-of-emergency region of Turkey. In 1994, terrorist activity was a major concern in this area. Since the 1980s a violent conflict had been going on in the region between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Workers Party of Kurdistan). The inhabitants of the applicants’ village were suspected of “aiding and abetting terrorists”; and accordingly they were strictly and frequently controlled by the gendarmes stationed near the village.
11. On 4 October 1994 security forces surrounded Halitpınar and assembled the inhabitants in the village square. Using curse words, they told the villagers that the village would be evacuated at once with no possibility of return. The applicants took what they were able to carry with them and left the village. Immediately after the evacuation, the soldiers set the houses and the crops on fire.
12. The applicants moved temporarily into a prefabricated State disaster housing complex close to Ovacık.
13. Following the incident, the applicants filed individual petitions with the Ovacık Public Prosecutor’s office complaining about the burning down of their village by gendarmes. The applicants noted their temporary addresses as the reply address for their petitions.
14. As the case concerned an investigation into alleged acts of the security forces, the Ovacık Public Prosecutor issued a decision of nonjurisdiction and referred the petitions to the office of the District Governor in Ovacık in accordance with the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu).
15. The District Governor sent a letter to the Ovacık Gendarmerie Headquarters and requested information about the applicants’ allegations.
16. In a letter of 1 November 1994 the Gendarmerie Commander informed the District Governor that the security forces had not burned any house during their operations in the area. Accordingly, the Ovacık Administrative Council issued a decision to discontinue the criminal proceedings against the gendarmes.
17. On 25 October 1995 the Ovacık District Governor sent a letter to the applicants. Relying on the Ovacık Gendarmerie Commander’s letter of 1 November 1994, he explained that he was unconvinced by their allegations. He further explained that pursuant to the established case-law of the Supreme Administrative Court (Danıştay), no inquiry was possible unless the identity of the accused civil servant were specified. He therefore stated that the authorities would not initiate an investigation into the alleged events.
18. The applicants did not receive this letter. They learned about the Ovacık Public Prosecutor’s decision of non-jurisdiction and the Ovacık Administrative Council’s decision from their fellow villagers and acquaintances at a much later stage.
19. In 1994 members of the PKK started a propaganda campaign for the organisation in the villages of Ovacık district. They kidnapped young men from these villages and forced them to join the organisation. The PKK militants issued threats against the villagers and harassed them. The inhabitants of the villages left their homes as a result of the pressure exerted by the PKK.
20. The investigation carried out by the authorities revealed that the applicants’ houses had not been burned by the security forces but by terrorists wearing military uniforms. In their statements to the investigating authorities, the applicants failed to indicate the identity of the perpetrators of the alleged crime.
21. The parties submitted various documents with a view to substantiating their claims. These documents, in so far as they are relevant, can be summarised as follows.
22. The Human Rights Foundation is a non-governmental organisation with its head office in Ankara, Turkey. Its 1993 Report stated that, from 1990 to 1993, more than 913 villages and hamlets had been evacuated. The 1993 Report maintained that village evacuations had accelerated in 1993, mostly targeting the villages whose inhabitants refused to serve as village guards.
23. The 1994 Report of the TIHV argued that the Government’s policy was to claim that the evacuations and eventual destructions were caused by PKK terror, poverty and the forces of nature. According to the same report, some 50 to 60 villages were burned down in each of the provinces subject to the emergency rule.
24. The 1995 Report maintained that more than 400 villages had been evacuated in 1995. According to the 1996 Report, the State-of-Emergency Regional Governor once mentioned that a total of 918 villages and 1,767 hamlets had been evacuated for various reasons, although never admitting that evacuations had been carried out by security forces.
25. The 1997 and 1998 Reports described the Government’s policy of evacuating villages as a systematic “internal security operation” applied throughout the 1990s.
26. The excerpts gave a comprehensive list of burned-down and/or evacuated villages from February 1990 to January 1999. The list did not make any reference to Halitpınar as having been evacuated and destroyed.
27. The excerpts contained several articles reproduced from a daily newspaper Ülkede Gündem, relating to the evacuation of villages and its detrimental effects on the displaced persons. The articles stressed that numerous villagers had filed petitions with the State authorities, complaining that their villages had been burned down by security forces.
28. The articles also emphasized that the Government’s public declarations, which appeared to allow displaced villagers to return to their villages, were unreliable. Whenever villagers had attempted to do so, they were physically denied access to their villages.
29. This report was prepared by a Commission of Inquiry composed of ten members of parliament. According to the report, in 1993 and 1994 the inhabitants of 905 villages and 2,923 hamlets were evicted and forced to move to other regions of the country (p.13).
30. The report included a statement by Mr Doğan Hatipoğlu, a former governor of Diyarbakır. Mr Hatipoğlu explained that, during his office, occasional village evacuations by military authorities were brought to his attention. He stated that – although very rarely – he had received complaints about village burnings. According to Mr Hatipoğlu, it was inconceivable to assert that all the villages were vacated due to PKK coercion. He alleged that the Government had failed to take the necessary measures for a healthy resettlement of displaced persons (p.13).
31. The report also referred to the “Human Rights Report – Turkey”, prepared and submitted to the Commission of Inquiry in 1995 by Mr Yavuz Önen, the chairman of the Human Rights Foundation. This latter report dedicated a chapter to immigrants and evacuated villages. It argued that, in 1995, the practice of evacuation of villages and hamlets was widespread. Many houses in villages were either destroyed or made uninhabitable. People were forced to emigrate from the region and pressure was exerted on the inhabitants until they left their villages. In early 1995 there was practically no village or hamlet inhabited except those whose inhabitants agreed to become village guards (p.19).
32. The report of the Commission of Inquiry also referred to the speech delivered at the Turkish Grand National Assembly by Mr Salih Yıldırım, a deputy from Şırnak, on 3 June 1997 on the question of evacuated villages. Mr Yıldırım stated, inter alia, that the villages were evacuated either by the PKK, in order to intimidate those who opposed it, by the authorities since they were unable to protect the villages, or because the inhabitants of those villages refused to become village guards or were suspected of having aided the PKK (p. 20).
33. In conclusion, it was recommended in the report that the inhabitants of the settlement units should be re-housed in the provinces, districts or central villages – rather than hamlets – close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region, priority being given to the immigrants.
34. This report aims at establishing the property owned by each of the applicants. Having regard to the registers of the land registry office and municipality registry office, it appears that Abbas Öztoprak did not own any property. He was not subscribed to TEDAŞ, meaning that he did not have electricity at home. However, he receives pension from the State. It further appeared that Mr Öztoprak owned a “green card” given to very poor people for medical care and that he received TRL 75,000,000 in aid from the Ovacık District Governor’s office.
35. Mehmet Öztoprak owned 8,000 square metres of land according to the land registry records. It was estimated that he could derive TRL 128,000,000’s annual income at the relevant time. Mr Öztoprak owned a “green card” given to very poor people for medical care. The Ovacık District Governor’s office gave him 11 sheep, TRL 195,000,000 and food in aid for his living. Between 1994 and 2002 Mr Öztoprak lived in a house in the disaster houses complex provided by the Government. In 2002 he moved into a house which was built within the context of “return to village and rehabilitation project”.
36. Şahin Toprak did not own any property according to the land registry records. But he owned a 60 square metres, a house and a stable as well as land measuring 14,000 square metres according to his declaration of 9 June 1994 to the municipality registration office. It was estimated that he could derive TRL 224,000,000’s annual income at the relevant time. Since 24 April 1993 he is the holder of a “green card” given to very poor people for medical care. Mr Toprak received food and TRL 125,000,000’s in aid from the Ovacık District Governor’s office. Furthermore, he lived in a house in the disaster houses complex provided by the Government. In 2002 he moved into a house which was built within the context of “return to village and rehabilitation project”.
37. The witness is a former resident of Halitpınar village. He is currently the mayor of Kandolar neighbourhood in Ovacık. His statements were taken in order to determine the situation of the applicants who had lodged an application with the Court. The witness stated that between 1994 and 2002 the applicants had lived in prefabricated houses in Kandolar neighbourhood of Ovacık. In 2002 they had moved into new houses built by the Government. At the relevant time nobody lived in Halitpınar. There was no electricity, school or telephone in the village.
38. Gendarme Major Yüksel Sönmez informed the Chief Public Prosecutor that the houses belonging to Reis Toprak, Kamber Çelik, Veli Çelik and Süleyman Toprak in Halitpınar village and in Toprak hamlet had been burned down by terrorists wearing military uniforms. In his opinion, the terrorists aimed at pacifying the security forces and creating hostility between the latter and the people in the region.
39. Following an investigation conducted into the allegations that State security forces had burned down houses in Halitpınar village, the inspector established that the houses had not been burned down by the security forces but by terrorists wearing military uniforms. The terrorists had further forced the villagers to complain to the authorities that their houses had been burned down by the security forces. The inspector also noted that the security forces had been conducting operations in the region with a view to maintaining the security of the people and that therefore they would not burn villages or give damage to property.
40. A full description of the relevant domestic law may be found in Yöyler v. Turkey (no. 26973/95, §§ 37-49, 24 July 2003) and Matyar v. Turkey (no. 23423/94, §§ 93-106, 21 February 2002).
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 14
18
3
5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-61196
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF HARTMAN v. THE CZECH REPUBLIC [Extracts]
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (estoppel);Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Gaukur Jörundsson
TEXT: 9. On 31 December 1948 the applicants left the former Czechoslovakia clandestinely. Since 1954 the first applicant has been a permanent resident of France, where he was naturalised in 1968, while keeping Czechoslovak nationality. The second applicant settled in the United States of America in 1949. On 2 April 1958 he obtained American nationality, automatically losing Czechoslovak nationality in accordance with the bilateral treaty of 1928 on naturalisation. On 9 November 1999 he acquired Czech nationality.
10. After the applicants had emigrated all their immovable property, namely four houses in Prague, a detached house and adjoining land in Želízy, together with movable property in the shape of 1,200 books from the library of the famous singer Ema Destinnová (Emmy Destinn), were seized and administered by the local communist authorities. On 1 July 1955 the Klatovy People's Court (lidový soud) ordered the confiscation of this property.
11. After the change of regime in 1989 the applicants began to take steps to recover their former possessions.
12. On 17 November 1992 (9 December 1992 according to the Government) the first applicant brought proceedings in the Mělník District Court (of over) for recovery of the land in Želízy, under the Land Reform Act (Law no. 229/1991.
...
20. On 24 May 2000 ... the District Court gave judgment, dismissing the action brought by the first applicant to prove that he was the owner of the land in Želízy.
21. On 29 September 2000 the applicant appealed.
...
25. On 5 November 2001 the Prague Regional Court (krajský soud) set aside the first-instance judgment and remitted the case to the District Court.
...
27. On 22 May 2002 the District Court again dismissed the applicant's action, noting that he had not corrected its procedural defects in the time allowed.
...
29. On 4 September 2002 the Regional Court dismissed the applicant's appeal of 10 June 2002; the Government asserted that the case was finally concluded on 2 October 2002.
30. On 18 October 1995 (23 October according to the Government) the second applicant brought an action for recovery in the Mělník District Court against the current owners of the detached house and land in Želízy.
...
35. On 5 April 2000 the District Court gave judgment on the merits, dismissing the second applicant's action. The judgment became final on 5 July 2000.
36. On 17 October 1995 (25 October according to the Government) the second applicant brought an action against the Prague 7 District Office for recovery of the houses under Laws nos. 87/1991 and 119/1990.
...
39. At the end of the hearing on 5 March 1998 the District Court dismissed the applicant's action on the ground with that he was not a Czech national and was therefore not entitled to obtain recovery of the houses he claimed.
40. On 19 June 1998 the applicant appealed to the Prague Municipal Court (městský soud), arguing that the condition of Czech nationality was of negligible importance, since he had been a Czech citizen at the time when his property was confiscated.
On 9 November 1999, in accordance with Law no. 193/1999, he obtained a certificate of Czech nationality, issued by the Prague 7 District Office, and became on that date a citizen of the Czech Republic.
41. On 9 November 2000 the applicant brought a new action against the district of Prague 7 seeking recovery of half of the houses concerned. A hearing was set down for 6 August 2002.
42. On 10 January 2002 the Prague Municipal Court dismissed the second applicant's appeal of 19 June 1998 against the judgment of the Prague 7 District Court. The decision concerned was thus upheld and became final on 11 February 2002.
43. Under Article 38-2 of the Charter of Fundamental Rights and Freedoms, everyone is entitled, inter alia, to a hearing within a reasonable time.
44. Section 5(1) provides that judges are required to rule impartially and fairly and without delay.
45. By virtue of section 6(1) it is possible to lodge complaints with the organs of the judicial system (such as presidents of courts, or the Ministry of Justice) concerning the way courts have conducted judicial proceedings, whether these concern delays, inappropriate behaviour on the part of persons invested with judicial functions or interference with the proper conduct of court proceedings. An appellant is entitled to obtain information on the measures the supervisory authority has taken in response to his appeal, but the latter does not give him a personal right to require the State to exercise its supervisory powers.
46. Section 18(1) provided that the State was liable for damage caused by an irregularity committed in the exercise of their official duties by persons vested with public authority.
The State incurred strict liability when the following three conditions were satisfied: quantifiable pecuniary damage; an irregularity in the official proceedings of a State authority; and a causal connection between the two.
47. The Government cited in their observations two cases (nos. 3 C 305/96 and 13 C 368/99) in which claimants had been awarded compensation under Law no. 58/1969 for pecuniary damage caused by over-lengthy proceedings.
48. Section 13 provides that the State is liable for damage caused by an irregularity in the conduct of proceedings, including non-compliance with the obligation to perform an act or give a decision within the statutory time-limit. A person who has suffered loss on account of such an irregularity is entitled to damages which section 31(2) requires to include reimbursement of the costs incurred by the claimant in respect of the proceedings in which the irregularity occurred, in so far as those costs are linked to the irregularity.
49. Section 82(3) provides that when the Constitutional Court upholds a constitutional appeal it must either set aside the impugned decision by a public authority or, where the infringement of a right guaranteed by the Constitution is the result of an interference other than a decision, forbid the authority concerned to continue to infringe the right and order it to re-establish the status quo if that is possible.
50. The Constitutional Court's case-law shows that, in order to be able to declare admissible a constitutional appeal concerning the length of proceedings, it requires the appellant to have appealed to the organs of the judicial system. Where it finds an infringement of the right guaranteed by Article 38-2 of the Charter of Fundamental Rights and Freedoms it may order the court to put an end to the delay and expedite the proceedings (as it did in cases nos. I ÚS 313/97 and I ÚS 112/97, cited by the Government in their observations), but is not empowered to award compensation to the appellant.
51. In their additional observations of 18 February 2003 the Government gave a fuller account of the Constitutional Court's case-law on the question. In addition to the sixteen judgments mentioned in the final decision on admissibility in the case of Kuchař and Štis v. the Czech Republic (application no. 37527/97, 23 May 2000, unreported) they referred to the following judgments:
– no. III. ÚS 230/96: on 29 May 1997 the Constitutional Court dismissed the appeal on delays in guardianship proceedings on the ground that the appellant had contributed by his conduct to the prolongation of the proceedings.
– no. III. ÚS 70/97: on 10 July 1997 the Constitutional Court found that the Prague High Court (vrchní soud) had infringed with the appellant's right to have his case heard without unjustified delays. It held that such an infringement would not justify setting aside a decision which had become final unless the delays had led to the infringement of other Constitutional rights. Procedural delays alone, therefore, did not constitute grounds for setting the decision aside.
– no. III. ÚS 218/97: in this judgement of 4 December 1997 the Third Chamber of the Constitutional Court tried to establish a distinction between the judicial and administrative elements of judicial power by imputing the delays caused by the courts' excessive workload to the administrative element alone.
– no. Pl. ÚS 6/98: on 17 February 1998 the full court of the Constitutional Court decided that the right to a hearing without unjustified delays corresponded to the courts' obligation to comply with the principle of fair trial, without it being possible to draw a distinction between the various elements of judicial power.
– no. II. ÚS 342/99: on 4 April 2000 the Constitutional Court held that delays in proceedings concerning the award of damages could infringe the constitutional right to judicial protection. It therefore ordered the court concerned to expedite the proceedings.
– no. IV. ÚS 599/2000: in its judgment of 22 January 2001 the Constitutional Court ordered the court concerned to expedite the proceedings and implement the execution it had ordered. The Constitutional Court
– no. IV. ÚS 379/01: in this judgment of 12 November 2001 the Constitutional Court held that delays in proceedings already concluded by a decision which had become final did not in themselves amount to a breach of Article 38-2 of the Charter of Fundamental Rights and Freedoms. Setting aside the impugned decision, in a situation where the Constitutional Court did not have any other means of protecting Constitutional rights, would be justified only if procedural delays had entailed an infringement of the principle of fair trial or other substantive rights guaranteed by the Constitution. The appellants had alleged nothing of the sort, nor had they appealed to the president of the court under the Law on courts and judges.
– no. I. ÚS 663/01: on 19 November 2002 the Constitutional Court ordered the lower court to cease to infringe an appellant's right under Article 38-2 of the Charter and Article 6 § 1 of the Convention and to hear his claim without delay. It reiterated that procedural delays were not justified by the courts' excessive workload and that in such situations it was essential, before lodging a constitutional appeal, to apply to the president of the court in question by lodging an appeal under the Law on courts and judges. There were however exceptions to that rule since the remedy concerned could not be insisted upon where it proved to be manifestly ineffective.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77042
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF LUCZKO v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1962 and lives in Wydminy.
5. On 8 February 2000 the applicant was arrested on suspicion of having committed three burglaries. On 10 February 2000 the Giżycko District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody until 8 May 2000. It found that there were reasonable grounds for believing that the applicant had committed the offences in question and that he would obstruct the proper course of the proceedings. The applicant’s detention was subsequently prolonged by the District Court on unspecified dates. On 31 August 2000 the bill of indictment was filed with the court.
6. On 11 December 2000 the Giżycko District Court convicted the applicant of six counts of burglary and sentenced him to five years’ imprisonment. The applicant appealed against that judgment.
7. On 11 April 2001 the Regional Court (Sąd Okręgowy) quashed the first-instance judgment and ordered a retrial. The applicant was released on the same day.
8. On 19 February 2003 the Giżycko District Court convicted the applicant of five counts of burglary and sentenced him to four years’ imprisonment.
9. On an unspecified date in February 2000 the applicant was charged with homicide. On 20 March 2000 the Giżycko District Court ordered that the applicant be detained for three months in view of the reasonable suspicion that he had committed the offence at issue. On 30 June 2000 the District Court ordered the applicant’s release. On 15 November 2000 the criminal proceedings against the applicant were discontinued.
10. On 25 March 2002 the applicant was arrested on suspicion of burglary. On 27 March 2002 the Giżycko District Court ordered his detention on remand until 25 May 2002. It found that there was a reasonable suspicion that the applicant had committed burglary, having regard to the evidence obtained in the investigation. It also relied on the severity of the likely sentence given the fact that the applicant was a habitual offender. Lastly, it held that there was a risk that the applicant would tamper with evidence.
11. On 14 May 2002 the District Court ordered that the applicant be remanded in custody until 25 June 2002. On 21 June 2002 the applicant’s detention was further prolonged until 25 August 2002. The court relied on the same grounds as given in the original detention order.
12. In June 2002 the bill of indictment was filed with the District Court. The applicant was charged with two counts of burglary and intimidation of a witness.
13. On 22 August 2002 the District Court prolonged the applicant’s detention until 25 October 2002. His detention was further prolonged on 7 October 2002. On 23 January 2003 the applicant was released.
14. On 13 May 2003 the Giżycko District Court convicted the applicant as charged and sentenced him to 3 years and 2 months’ imprisonment.
15. The following of the applicant’s letters to the Court bear a stamp “Judge” (Sędzia) and an illegible signature:
letter dated 25 September 2000 received by the Court on 2 October 2000. It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape;
letter dated 18 October 2000 received by the Court on 6 November 2000. That letter also bears a stamp “Giżycko District Court. Received 23 October 2000” (Sąd Rejonowy w Giżycku. Wpłynęło 23.10.2000) and an illegible signature. The envelope in which the letter was sent bears a stamp “Giżycko Detention Centre. Received 19 October 2000” (Areszt Śledczy w Giżycku. Wpłynęło 19.10.00). According to the postal stamp, the letter was posted on 24 October 2000;
letter dated 19 October 2000 received by the Court on 30 October 2000. It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape;
letter dated 27 December 2000 received by the Court on 9 February 2001;
letter dated 8 January 2001 received by the Court on 16 January 2001. The envelope in which that letter was sent bears a stamp “Giżycko Detention Centre. Received 8 January 2001” (Areszt Śledczy w Giżycku. Wpłynęło 08.01.2001). According to the postal stamp, the letter was posted on 11 January 2001. It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape;
letter dated 24 June 2002 received by the Court on 5 July 2002.
Most of the envelopes in which those letters were sent, except for the letters dated 27 December 2000 and 24 June 2002, bear a hand-written note “SR Giżycko” (D[istrict] C[ourt] Giżycko).
16. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) which entered into force on 1 September 1998.
17. The relevant part of Article 103 § 1 of the Code provides as follows:
“Convicted persons (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.”
18. Article 214 § 1 reads as follows:
“Unless exceptions are provided for in the present Chapter, a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison. No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings, to maintain order and security in a remand centre and to prevent demoralisation of detainees.”
19. Article 217 § 1 reads, in so far as relevant, as follows:
“(...) detainee’s correspondence shall be censored by [the authority at whose disposal he remains], unless the authority decides otherwise.”
Article 242 § 5 reads as follows:
“The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter.”
20. On 1 September 1998 the Rules of Detention on Remand (Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu wykonywania tymczasowego aresztowania) entered into force.
§ 36 of the Rules provides:
“A detainee’s correspondence, including correspondence with the international institutions for the protection of human rights, which act on the basis of international agreements ratified by the Republic of Poland, with the Ombudsman and public and local government institutions, is mailed through the intermediary of the organ at whose disposal he remains.”
VIOLATED_ARTICLES: 8


ITEMID: 001-97216
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF SALAKHUTDINOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. The applicant was born in 1946 and is now serving a prison sentence in Kazan UE-148/19 correctional colony.
6. On 16 December 2001 he was arrested. On 28 December 2001 the prosecutor’s office of the Novosheshminskiy District of the Republic of Tatarstan authorised his detention on charges of inflicting severe injuries which had caused the death of the victim.
7. By a judgment of 5 March 2002, the Novosheshminskiy District Court of the Republic of Tatarstan convicted the applicant as charged and sentenced him to ten years and six months’ imprisonment in a correctional colony with a special regime. On 14 May 2002 the Supreme Court of the Republic of Tatarstan upheld the judgment on appeal.
8. During the relevant periods the applicant was detained in the following detention facilities. From 16 December 2001 to 9 January 2002 he was held in the temporary detention facility at Novosheshminskiy police station (изолятор временного содержания Новошешминского РОВД). He was then transferred to Bugulma IZ-16/03 remand centre (следственный изолятор ИЗ-16/3 Главного управления Федеральной службы исполнения наказаний по Республике Татарстан) where he was held from 9 January to 20 August 2002, except for a short period from 28 to 29 January 2002, which he spent in the temporary detention facility at Novosheshminskiy police station. From 20 August 2002 to 26 August 2003 he was held in Chistopol UE-148/T prison (тюрьма УЭ-148/Т г. Чистополя Республики Татарстан).
9. The parties’ descriptions of the conditions of the applicant’s pre-trial and post-trial detention significantly differ on a number of counts.
10. The applicant was detained in the temporary detention facility at Novosheshminskiy police station, in two different cells, from 16 December 2001 to 9 January 2002.
11. As the facility was only used for temporary detention, the cells were not equipped with sanitary facilities. Therefore the applicant had restricted access to a toilet and was only able to go to the lavatory, under escort, to a special room, twice a day. The authorities did not allow his relatives to bring him any necessary toiletries, which meant that for twenty-four days he did not have toothpaste, a toothbrush or a shaver. Nor could he take a shower, because the facility did not have one.
12. The cell windows were fitted with grilles which restricted natural light. The artificial lighting was provided by 25-40-watt light bulbs. The ventilation in the cells was very poor, if there was any. The applicant was not allowed outdoor exercise even once during the entire period of his detention. He was given only one meal a day and was almost starving. Although he had been suffering from a cardio-vascular problem and coughing spells, he was refused medical assistance.
13. The applicant was again kept in this facility on 28-29 January 2002. Protesting against inhuman treatment, on 28 January he slit his wrists but was rescued. The next day he refused to return to Bugulma IZ-16/3 remand centre. His refusal angered the police officers, who beat him up and sent him back to the remand centre.
14. The applicant complained several times to prosecutors at different levels of authority of appalling conditions of detention and ill-treatment, but all to no avail. He particularly stressed that instead of the relatively short period of time which had been established by the relevant law, that is to say no more than ten days, he had been kept in a temporary detention facility for twenty-four days in appalling conditions.
15. According to the Government, throughout the time he was in the temporary detention facility the applicant was held in cell no.1, measuring 6.048 square metres with four sleeping places and cell no. 2, measuring 5.88 square metres with two sleeping places. The exact number of inmates held with the applicant could not be established but, in any event, the design capacity of the cells was never exceeded. The applicant was provided with an individual sleeping place. Bedding was available on demand though it is unclear whether he chose to use any.
16. In view of the fact that the facility was intended for short-term detention, the cells were not equipped with sanitary facilities. Inmates were allowed to go to the toilet twice a day, or more often when necessary. A shower was not provided. The facility was monitored and regularly fumigated by a special sanitary service.
17. The cells had central heating. Information about the average inside temperature at the material time could not be provided owing to the destruction of the relevant files. However, according to a report issued by the management of the police station, on 29 December 2006 the temperature in the cells was 21 degrees Celsius and it was 9 degrees Celsius in the corridor.
18. The cells were lit with natural light coming from glazed windows measuring 60 x 80 centimetres and with incandescent lighting of 100 to 150 watts. In addition to the natural ventilation provided by the windows, the cells were equipped with ventilation shafts.
19. The applicant was allowed one hour’s exercise daily.
20. While he was detained there he was twice assisted with medical problems, on 16 December 2001 for alcohol withdrawal and on 28 January 2002 for a self-inflicted injury. Both times he was treated at the scene by ambulance staff and then taken to a local hospital.
21. No information was submitted by the Government in respect of the food provided to the inmates.
22. The applicant was held in Bugulma IZ-16/3 detention facility from 9 January to 20 August 2002, except for a short period from 28 to 29 January 2002.
23. According to his submissions, at the material time the cells where he was detained measured 5 x 1.5 metres on average, had six beds and accommodated between twelve and fifteen inmates, who had to take turns to sleep and were not provided with personal bedding. The lights were permanently on. The windows had no glass and were sealed with metal shutters. It was very hot in the summer and freezing in the winter. The toilet was placed very close to the dining table, with no privacy. Despite regular complaints about insects, the administration took no action to fumigate the cells. A shower was available twice a month. No outside exercise was offered to the applicant. The detainees’ food consisted mainly of vegetables and soya products. The medical assistance was inadequate.
24. Relying on a certificate dated 27 December 2006 issued by the facility management, the Government submitted that the applicant had been held in five cells:
- cell no. 212, measuring 21 sq. m and accommodating five inmates including the applicant;
- cell no. 311, measuring 12 sq. m with six sleeping places;
- cell no. 312, measuring 12 sq. m with six sleeping places;
- cell no. 317, measuring 21 sq. m with fourteen sleeping places;
- cell no. 407, measuring 21 sq. m, with fourteen sleeping places.
25. In cell no. 212 the applicant was detained from 8 to 20 August 2002. Due to the destruction of the facility’s records on the expiry of the statutory storage time-limit, it was not possible to establish the exact periods during which the applicant was detained in the other four cells and the exact number of inmates detained with him.
26. All cells were equipped with a sink and a lavatory separated from the living area by a partition of not less than one metre in height. Showers were available once a week with a simultaneous change of bedding. The inmates were provided with washbowls for their hygiene needs. The water was supplied centrally and could be heated with electric heaters.
27. The cells were ventilated through casement windows and in addition were equipped with ventilation shafts. The cells were aired daily, while the inmates were having their exercise. The average temperature and level of humidity met sanitary and hygiene requirements.
28. The windows were not covered with metal shutters, as a result there was enough natural light to allow reading and writing. The cells were also equipped with lamps which could be turned on when necessary. The lamps were covered with a protective fitting. During the night, the artificial lighting was dimmed.
29. The cells were fumigated regularly, with the assistance of a special sanitary service when necessary, and the detainees never complained about insects or rats.
30. The food met official nutritional standards. The quality of the food was controlled by the facility’s medical unit. In addition, the applicant could receive parcels and could buy food and other things from the facility’s shop.
31. During his detention the applicant was provided with an individual sleeping place, bedding, cutlery and utensils. He had an hour’s daily exercise. His state of health was monitored regularly and he was provided with medical assistance when necessary. He never complained about the conditions of his detention while in Bugulma IZ-16/3.
32. According to the applicant, at the time of his detention, that is from 20 August 2002 to 26 August 2003, the facility served as a prison. Later it was converted into a pre-trial detention centre. Due to this, the size and the configuration of the cells changed.
33. At the material time the cells were severely overcrowded. Cell no. 13 measured 80 square metres and accommodated over forty inmates. Twenty two-tier bunks, three tables and a lavatory left almost no space in which to move. He did not have an individual sleeping place and had to share a bunk with other inmates. Due to the large number of people, access to the lavatory was restricted. The water supply was often cut off. There was no ventilation. Windows were completely sealed by metal shutters and let no air or daylight in. The inmates did not have enough oxygen. The cells were stuffy and unbearably hot during the summer months. The facility’s exercise yards were very small, surrounded by solid concrete walls which prevented the free flow of air. Therefore, outside exercise was scarcely any different from staying in.
34. The insufficient lighting, either natural or artificial, impaired the applicant’s eyesight which diminished by 1.5 dioptres and continued to deteriorate. The inmates had to wash their bedding and clothing themselves. For this each of them was given a small piece of soap and had to share with others one tiny electric heater for warming the water. The inmates were only allowed to shower irregularly, that is once every ten, fifteen or twenty days. These unhygienic conditions resulted in skin diseases.
35. The food was very poor and consisted mainly of green tomatoes, cabbage and soya products. The applicant was later diagnosed with dystrophy. Medical assistance was inadequate and it was very difficult to arrange appointments with specialists.
36. The convicts were treated very badly and were often beaten up. On 23 August 2003 special armed forces (“спецназ”) arrived in the colony and proceeded systematically to beat up the inmates, including the applicant.
37. Referring to a certificate of 16 January 2007 issued by the management of the facility, the Government submitted that the applicant had been held in cell no. 13, measuring 48 sq. m and accommodating eleven inmates including the applicant, and in cell no. 17, measuring 30 sq. m and accommodating twelve inmates including the applicant.
38. The Government further submitted that, at the material time, according to a certificate of 26 December 2006 issued by the governor of the facility, the cells had been equipped with a sink and a lavatory separated from the living area by a partition at least one metre high. Showers were available once a week with a simultaneous change of bedding.
39. The ventilation was natural, through casements in the windows. In addition, the cells were equipped with ventilation shafts. The cells were aired on a daily basis, for more than one hour, while the inmates were having their outside exercise. Overall, the temperature and humidity levels met sanitary and hygienic requirements. The windows were not covered with metal shutters but were reinforced with metal grilles. The cells were equipped with lamps which were turned on when necessary. The lamps were covered with a protective fitting. During the night the artificial lighting was dimmed.
40. On arrival at the facility all convicts were provided with an individual sleeping place and bedding. The cells were fumigated regularly with the assistance of a special sanitary service when necessary, and the inmates had never complained about insects and rats.
41. Nutrition met official standards. Hot meals were provided three times a day. The quality of the food was controlled by a commission comprised of a worker from the facility’s medical unit and one of the governor’s deputies. During the first two months, the applicant was given health food.
42. The applicant had an hour and a half’s outside exercise every day. The space in the exercise yards was commensurate with the number of actual users.
43. During his imprisonment the applicant consulted doctors on a number of occasions and received all necessary and adequate medical treatment. The entries made in the applicant’s medical case file submitted by the Government reflected that in August, September and November 2002 and March, June and July 2003 he was attended by a general practitioner, a phthisiologist and an ophthalmologist; in July 2002 he was treated for bronchitis. Throughout the period in question he had three X-ray examinations and was prescribed various medicines, including antibiotics, antipyretic drugs and vitamins.
44. No special armed forces were sent to the facility on 23 August 2003.
45. Section 8 of the Law on Detention (Federal Law no. 103-FZ of 15 July 1995) provides that persons detained in accordance with a court order should be held in remand centres.
46. According to section 9, persons whose detention has not yet been ordered by a court with jurisdiction should be held in temporary detention facilities. In exceptional circumstances, persons detained in remand centres can be transferred to and detained in temporary detention facilities for a period of no longer than ten days in a month (section 13).
47. Section 23 provides that detainees should be kept in conditions which satisfy health and hygiene requirements. They should be provided with an individual sleeping place and be given bedding, tableware and toiletries. Each inmate should have no less than four square metres of personal space in his or her cell. Detainees should be given sufficient free food to keep them in good health in line with the standards established by the Government of the Russian Federation (Article 22).
49. According to Article 131, prisoners are housed in locked shared cells to which they are assigned on the basis of perceived security risk. They are allowed out of their cells for sixty minutes a day if they are on the strict regime and ninety minutes if they are on the ordinary regime. The inmates exercise in cell groups and in a designated area. A prisoner’s exercise privileges can be stopped at any time if he breaks internal rules.
VIOLATED_ARTICLES: 3


ITEMID: 001-105032
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KATSARSKA AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: The applicants, Ms Kina Koseva Katsarska, Mr Krasimir Stefanov Katsarski, Mr Lachezar Stefanov Katsarski and Ms Todorka Hristova Damyanova, are Bulgarian nationals who were born in 1927, 1955, 1962 and 1928 respectively. The first three applicants live in Blagoevgrad and the fourth applicant lives in Sofia. The applicants were represented before the Court by Mr Y. Yankov, a lawyer practising in Sofia.
The ancestors of the applicants owned a plot of land and a two-storey building in Blagoevgrad. A portion of that property was expropriated in 1948. However, in practice the whole property was taken and allocated for use by the State enterprise T.
Two additional storeys to the expropriated building were constructed by the State in 195455 and 196870 respectively.
In 1993, following the demise of the communist regime, T. was transformed into a State-owned limited liability company. Pursuant to the legislation in force at the time, it acquired ownership of the two additional storeys previously allocated for its use.
On an unspecified date after the adoption of legislation in Bulgaria in the early 1990s which provided for the restoration of titles to certain types of expropriated property, the applicants obtained restitution of the land and the first two storeys of the building.
In 1997 the first, second and third applicants brought a rei vindicatio claim against the company T. and the State. They argued that they had become coowners of the two storeys constructed after the expropriation, as only parts of the building had been expropriated from their ancestors. As their ancestors had never consented to another person constructing and becoming owner of the two new storeys, the State could not have acquired the entire property.
The claim was examined at three levels of jurisdiction and dismissed in a final judgment of the Supreme Court of Cassation of 29 December 2005. The domestic courts found that the two additional storeys could not be subject to restitution under the denationalisation legislation, because they had never been expropriated. Furthermore, even if the applicants’ ancestors had remained co-owners of the property, parts of which had been expropriated, and had thus become co-owners of the two additional storeys, their rights had been extinguished and the State had acquired full ownership of these storeys through adverse possession, once the applicable ten-year statutory period had expired. The provisions of the restitution legislation, relied on by the first, second and third applicants, stating that the rules on adverse possession did not apply to expropriated property, were not applicable in the case.