ITEMID: 001-95271
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: JAKOWICZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 1. The applicant, Mr Wiktor Jakowicz, is a Polish national who was born in 1917 and lives in Grotniki. He was represented before the Court by Mr P. Radek and subsequently by Mr B. Zacharek, lawyers practising in Łódź. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
2. The realities of the international situation following the end of the Second World War prevented the Republic of Poland from asserting any claims arising out of persecution of its citizens by Nazi Germany, including as forced labourers.
3. In the period immediately following the Second World War Poland did not conclude a specific agreement with Germany regarding the issue of reparations. It relied on the Potsdam Agreement of 1 August 1945, concluded by the Governments of the United States of America, the United Kingdom of Great Britain and Northern Ireland and the Union of Soviet Socialist Republics.
4. On 27 February 1953 the London Agreement on Germany's External Debts (London Debt Agreement) was concluded by the United States of America, Great Britain, France and the Soviet Union. Under this Agreement, consideration of claims arising out of the Second World War by countries which were at war with or were occupied by Germany during that war, and by nationals of such countries, against the Reich or agencies of the Reich was deferred until final settlement of the issue of reparations.
5. On 23 August 1953, a day after a similar declaration by the Government of the Soviet Union, the Government of Poland declared that it renounced any claims against Germany in respect of war reparations as of 1 January 1954. In a declaration of 27 September 1969, made at the United Nations, the Government of Poland clarified that the renouncement of 1953 did not affect individual claims arising out of unlawful acts.
6. In 1972 the Federal Republic of Germany made an ex-gratia payment of DM 100 million to the Polish Government for the victims of pseudomedical experiments.
7. It was only after the conclusion of the Treaty on the Final Settlement with respect to Germany of 12 September 1990 (the socalled TwoPlusFour Treaty) and the conclusion of two treaties between the Federal Republic of Germany and the Republic of Poland in 1990 and 1991 that the issue of persons persecuted by the Nazi regime was addressed in the bilateral Agreement of 16 October 1991 (see paragraph 30 below).
8. The issue of compensation for slave and forced labour during the Second World War was addressed in the Joint Statement of 17 July 2000 and the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (see relevant law below).
9. The applicant lived in the Vilnius region of pre-war Poland. It appears that following the Soviet Union's invasion of Poland in 1939 he was detained by the Soviet authorities.
10. Subsequently, in June 1941, following the outbreak of the GermanSoviet war, the applicant was interned in the Hammerstein (Czarne) POW camp for 41 months. He submitted that he had not been a member of the military personnel of either side in that war and had been interned with many other Polish civilians, alongside captured Soviet soldiers. He claimed that the said camp had served as an extermination camp for the first year of its operation. The applicant further submitted that he had been subjected to forced labour in the camp under very harsh conditions.
11. On 21 October 1944 the applicant was released from captivity on the basis of forged documents. Subsequently he worked as a forced labourer on a farm until 28 February 1945.
12. The applicant received a payment from the “Polish-German Reconciliation” Foundation (“the Foundation”) under the first compensation scheme in respect of the 41 months during which he was obliged to provide forced labour.
13. On 28 May 2001 the applicant applied to the Foundation seeking compensation from the funds of the German Foundation “Remembrance Responsibility and Future” (“the German Foundation”) on account of his detention and forced labour in the Hammerstein (Czarne) camp and his subsequent forced labour on a farm. He submitted that from June 1941 to October 1944 he had been imprisoned in the said camp. The applicant enclosed various documents in evidence. That request was made under the scheme for slave and forced labourers (“the second compensation scheme”) established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (“the German Foundation Act”; “the GFA”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation (“the German Foundation”) and the Polish-German Reconciliation Foundation (see relevant law below).
14. On 7 January 2002 the Foundation's Verification Commission (Komisja Weryfikacyjna) found that the applicant was eligible for compensation payment, as his persecution came under the 4th category, which included persons subjected to forced labour in the agricultural sector who had been deported to the Third Reich. It consequently awarded him DEM 2,000 in compensation. The decision did not contain any specific reasoning, in particular with regard to the period of the applicant's forced labour which was taken into account by the Verification Commission.
15. On 5 April 2002 the applicant appealed against the decision of 7 January 2002. It appears that he alleged that the Verification Commission had not taken into account the forced labour during his 41monthinternment in the Hammerstein (Czarne) camp. He submitted that he had been detained in particularly harsh conditions.
16. On 24 May 2002 the Appeal Commission (Komisja Odwoławcza) upheld the decision of the Verification Commission, holding that the applicant had not adduced any new evidence of persecution which could justify a change in his eligibility status.
17. In the letter accompanying the decision, the Appeal Commission informed the applicant that his request for consideration of his internment in the POW camp as falling under the 1st category of eligibility could not be granted. It stated that pursuant to section 11 § 3 of the GFA he was not eligible for compensation on account of his internment and forced labour in the POW camp. The Appeal Commission emphasised that, under the applicable regulations, the only persons who came under the 1st category of eligibility were the detainees of those camps which had been listed in the German Indemnification Act. However, the applicant's camp had not been listed in that Act.
18. On 12 August 2002 the applicant appealed against that decision. He submitted that he had been unlawfully detained in inhuman conditions and subjected to forced labour in the Hammerstein (Czarne) camp for 41 months following the outbreak of the German-Soviet war. In support of his appeal he relied on a number of documents which had already been filed with the Foundation.
19. One of those documents was a letter which had been sent to him by the Koszalin Regional Commission for the Examination of Nazi Crimes (Okręgowa Komisja Badania Zbrodni Hitlerowskich) on 16 August 1978, confirming that the Hammerstein (Czarne) camp had served as a POW camp for Soviet soldiers, who had been interned there following the outbreak of the German-Soviet war. However, the letter stated that a considerable number of Polish nationals who had not served in the Soviet army had been interned in the same camp. They had been captured by the German army in the pre-war Polish territories which had originally been occupied by the Soviet Union.
20. The applicant also relied on a letter received from the German Foundation in early 2002 regarding the eligibility conditions. The letter stated that persons eligible for compensation under the GFA were, inter alia, those who had been detained and subjected to forced labour in a concentration camp listed in the German Indemnification Act or detained in another place of confinement or a ghetto in conditions comparable to those existing in a concentration camp. The applicant further relied on two witness statements by individuals who had been interned with him.
21. In a letter of 2 September 2002 the German Foundation informed all Partner Organisations, including the Polish Foundation, about the new interpretation of the GFA. Pursuant to that interpretation, civilians who had been subjected to forced labour during their detention in a POW camp were henceforth, subject to certain conditions, entitled to receive payments. In consequence, the Foundation decided to recognise the period of the applicant's forced labour in the Hammerstein (Czarne) camp.
22. On 8 October 2002 the Appeal Commission, having reopened the proceedings in the applicant's case, held that the applicant was eligible for compensation on account of persecution coming under the 3rd category, that is, persons subjected to forced labour in the industrial and public sectors who had been deported to the Third Reich. The decision did not contain any reasoning.
23. On 7 January 2003 the Appeal Commission informed the applicant that he would receive payment from the funds of the German Foundation in the amount of DEM 4,400 (PLN 8,852.50) on account of his forced labour in the industrial or public sectors. It appears that the applicant did not appeal further.
Article 4
Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them.
They must be humanely treated.
All their personal belongings, except arms, horses and military papers, remain their property.
Article 6
The State may utilize the labour of the prisoners of war according to their rank and aptitude, officers excepted. The tasks, however, shall not be excessive and shall have no connection with the operations of the war.
24. Article 9 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997, states:
“The Republic of Poland shall respect international law binding upon it.”
Article 45 § 1 of the Constitution reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.”
Chapter III of the Constitution, entitled “Sources of Law”, refers to the relationship between domestic law and international treaties.
Article 87 § 1 provides:
“1. The sources of the universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations. ...”
Article 91, in so far as relevant, states:
“1. After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly, unless its application depends on the enactment of a statute.
2. An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes.”
25. Chapter VIII of the Constitution contains provisions related to the judiciary. Article 175§ 1 of the Constitution provides:
“The administration of justice in the Republic of Poland shall be implemented by the Supreme Court, the ordinary courts, administrative courts and military courts.”
Article 177 of the Constitution states:
“The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts.”
Article 184, in so far as relevant, provides:
“The Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by statute, control over the performance of public administration.”
26. On 16 October 1991 the Governments of the Federal Republic of Germany and the Republic of Poland concluded an agreement on the basis of which the German Government declared that, prompted by humanitarian considerations, it was prepared to contribute DEM 500 million for the benefit of the Polish-German Reconciliation Foundation. The Foundation was to be established by the Government of Poland with a view to providing financial assistance to victims of Nazi persecution who had been particularly wronged. The Foundation was to determine the necessary criteria for the granting of compensation payments, having regard both to serious damage to the victims' health and to difficulties in their current financial situation. The Government of Poland declared that it would not pursue further individual claims by Polish citizens arising out of Nazi persecution. Both Governments indicated that their agreement should not amount to limitation of the rights of citizens of either country.
27. Subsequently, on 27 November 1991, the Minister–Head of the Cabinet Office (Minister – Szef Urzędu Rady Ministrów) acting as a Founder, made a declaration before the State Notary on the establishment of the Foundation. He declared that, acting on the initiative of the Government of the Republic of Poland and on behalf of the State Treasury, he was establishing the Polish-German Reconciliation Foundation. The Foundation's aim was to provide assistance to the victims of Nazi persecution and to undertake other activities for the benefit of those persons. The Minister also declared that the Foundation's capital fund consisted of DEM 500 million, contributed by the German Government to the Polish Government. The Polish-German Reconciliation Foundation was established in accordance with the Foundations Act of 6 April 1984, which regulates the activities of foundations in Poland. In principle, supervision of a foundation's activities is exercised by the regional governor (Wojewoda) or the competent minister.
28. The statutes of the Polish-German Reconciliation Foundation were drafted and subsequently registered by the Warsaw District Court on 24 February 1992. On that date the Foundation began its activities. Under paragraph 6 of the statutes, the Foundation's primary aim was to render direct financial assistance to those victims of Nazi persecution whose health had been seriously damaged and who were in a difficult financial situation as a result of that persecution.
29. The Foundation's organs were the Supervisory Board (Rada Nadzorcza) and the Management Board (Zarząd). The members of those organs were appointed and dismissed by the Founder (government minister) who exercised full control in this respect. The two other organs of the Foundation were the Verification Commission (Komisja Weryfikacyjna), and the Appeal Commission (Odwoławcza Komisja Weryfikacyjna).
30. From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland.
31. The parties to the Joint Statement acknowledged the intention of the Government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act.
32. According to the Joint Statement, the Government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace.
33. Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”). It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts. The disbursement of payments terminated at the end of 2006.
34. The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide:
Recognising
that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human-rights violations,
that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it,
that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility,
that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments,
that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime,
the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations.
...
(1) A legally recognised Foundation with the name 'Remembrance, Responsibility and Future' shall be established under public law.
...
(1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period.
...
(1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment.
...
(1) Eligible under this Law are:
1. persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour;
2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions;
...
(2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant's eligibility may be substantiated in some other way.
(1) Specific characteristics of other places of confinement referred to in Section 11, Paragraph 1, Number 1 are inhumane conditions of detention, insufficient nutrition and lack of medical care.
...”
35. Section 42 § 2 of the German Indemnification Act (Bundesentschädigungsgesetz) provided that the German Government would issue a decree containing a list of concentration camps within the meaning of the Act. The German Government issued the decree in 1967 with an annex listing concentration camps. It was twice amended, most recently in 1982. The list of concentration camps does not contain the POW camp where the applicant was detained during the Second World War.
36. The Federal Constitutional Court examined a constitutional complaint against various provisions of the GFA which had been filed, among others, by a former Italian military internee and a civilian who had been subjected to forced labour. The complainants alleged, inter alia, that prior to the entry into force of the GFA they had had claims for compensation for forced labour against the Federal Republic of Germany, under German civil law in conjunction with international public law. They contended that the exclusion of judicial review of decisions by the International Organisation for Migration (one of the partner organisations) had violated their right to an effective remedy under Article 19 § 4 of the German Basic Law. Furthermore, they argued that the exclusion of former prisoners of war from the ambit of compensation under the Foundation Act was discriminatory.
37. On 28 June 2004 the Federal Constitutional Court held that the complaint was partly admissible, but unfounded. Referring to the Hague Convention on the Laws and Customs of War on Land (“The Hague Convention”) the court held that international public law had not established individual claims for compensation for forced labour. It noted, however, that it was not excluded that national law might establish such claims, but that in such a case the legislator enjoyed wide discretion. The court held further that the exclusion by section 11 § 3 of former prisoners of war from the scope of those eligible for benefits under the Foundation Act had not been discriminatory, since under the Hague Convention prisoners of war could be compelled to perform labour. In this respect the court observed that the legislator was allowed to distinguish, when awarding compensation, between victims of general hardships caused by the war and victims of particular ideological persecution by the Nazi regime, especially as the funds of the Foundation were limited.
38. In respect of the exclusion of judicial review by the Foundation Act, the Federal Constitutional Court found that Article 19 § 4 of the Basic Law required that a right did in fact exist, whose alleged violation could be examined by the courts. The court concluded that the legislator was free to decide not to establish an individual's claims vis-à-vis a public-law foundation and to exclude judicial review in this connection.
39. On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill, the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000.
40. On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the PolishGerman Reconciliation Foundation (“the partnership agreement”). Under its terms the PolishGerman Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the GFA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000.
41. The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3).
42. The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of compensation payments. The relevant parts provide:
“Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government's efforts, former slave and forced labourers will receive in total DEM 1.812 thousand million, which constitutes a very positive outcome to the negotiations.
The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.”
43. The statutes of the Polish-German Reconciliation Foundation was amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001.
44. The amended statutes stipulated that the Foundation was to disburse compensation payments to the victims specified in section 11 of the GFA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation's decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5).
45. Pursuant to paragraph 20 of the amended statutes, the Verification Commission was to determine individual claims for assistance filed by victims of Nazi persecution. Members and the president of the Verification Commission were to be appointed and dismissed by the Foundation's management board (paragraph 21.1). Detailed regulations as to the organisation of the Verification Commission and the rules and criteria on the granting of assistance were specified in the internal regulations of the Verification Commission, drafted by the management board and adopted by the supervisory board (paragraph 21.2).
46. Decisions taken by the Verification Commission could be appealed against to the Appeal Commission. Its president and members are appointed and dismissed by the Foundation's management board, having consulted the supervisory board. The Appeal Commission operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board (paragraph 23.2). The amended statutes stipulated that the decisions of the Appeal Commission were final (paragraph 23.3).
47. In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted resolution no. III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation's decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant's eligibility had been established but the benefit was not paid, a claim could arise under civil law.
48. In Resolution no. OPS 3/01 of 3 December 2001, the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that:
“The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.”
It further observed:
“There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.”
49. On 27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation. The Supreme Court held that:
“The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.”
In the reasons for its Resolution the Supreme Court found, inter alia, that:
“The procedure concerning examination of claims under the first and the second German fund ... may not be currently instituted. The relevant funds were allocated and the disbursement of payments has been finally concluded.
...
There is no doubt that the current state of affairs resulting from the relevant case-law, under which those persons interested in challenging before a court the Foundation's refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule.
...
The need for extensive interpretation of the individual's access to a court, or in other words, the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights, which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations.... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no. IV CSK 312/06, unpublished).
The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court. The [civil] court also has jurisdiction where a case has the features of a civil case only in the formal sense.”
50. A certain S.K. filed a constitutional complaint with the Constitutional Court after the administrative court rejected his appeal against inactivity of the Foundation, stating that it did not have jurisdiction. He challenged the constitutionality of certain provisions of the Law of 25 July 2002 on the Structure of Administrative Courts and of the Law of 30 August 2002 on Procedure before Administrative Courts, which delineated the jurisdiction of the administrative courts. On 14 November 2007 the Constitutional Court discontinued the proceedings on procedural grounds. It found that the claimant had not obtained a “final decision” within the meaning of Article 79 of the Constitution, since he had mistakenly seized the administrative courts and not the ordinary courts to pursue his appeal against the Foundation's decision. The Constitutional Court relied on the constitutional presumption in favour of jurisdiction of the ordinary courts and the Supreme Court's Resolution of 27 June 2007.


ITEMID: 001-105707
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MAJSKI v. CROATIA (No.2)
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant, who is of Serbian origin, was born in 1949 and lives in Vukovar.
6. On 28 October 2004 the applicant submitted an application for the post of deputy county state attorney in the Vukovar County State Attorney’s Office. He relied on section 22(2) of the Constitutional Act on the Rights of National Minorities and section 63(2) of the State Attorneys Act (see paragraphs 17 and 19 below).
7. On 11 January 2005 the State Attorneys Council (Državnoodvjetničko vijeće), after a secret ballot, unanimously adopted a decision appointing D.K.I. deputy county state attorney in the Vukovar County State Attorney’s Office. It found that both candidates satisfied the statutory requirements to be appointed deputy state attorney but gave priority to D.K.I., having regard to her extensive experience of working on civil and administrative law cases. The decision contained an information notice (pouka o pravnom lijeku) to the effect that administrative dispute proceedings could be instituted against it by bringing an action in the Administrative Court (Upravni sud Republike Hrvatske) within thirty days of its service. The information notice reads as follows:
“Against this decision an administrative dispute may be instituted by bringing an action in the Administrative Court within thirty days of the service of the decision.”
8. On 4 February 2005 the applicant instituted administrative dispute proceedings in the Administrative Court by bringing an action under section 23 of the Administrative Disputes Act (see paragraph 26 below) against the State Attorneys Council’s decision of 11 January 2005. He again relied on section 22(2) of the Constitutional Act on the Rights of National Minorities.
9. On 16 March 2005 the Administrative Court declared the applicant’s action inadmissible, finding that the contested decision did not constitute an “administrative act” within the meaning of section 6(2) of the Administrative Disputes Act (see paragraph 24 below). Therefore, instead of instituting administrative dispute proceedings by bringing an action (against an administrative act), the applicant should have lodged “a request for the protection of a constitutionally guaranteed right” (zahtjev za zaštitu ustavom zajamčenog prava), a remedy provided in section 66 of the Administrative Disputes Act (see paragraph 34 below). The Administrative Court also held that the applicant’s action could not have been, even in substance, regarded as such a request, because he had not relied on any provision of the Constitution, but only on the Constitutional Act on the Rights of National Minorities.
10. On 18 July 2005 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Administrative Court’s decision. In so doing the applicant, alleging a violation of his right of access to court, relied on Article 6 § 1 of the Convention.
11. On 13 February 2008 the Constitutional Court dismissed the applicant’s constitutional complaint. The relevant part of that decision reads as follows:
“The Constitutional Court finds that the complainant’s rights under Article 6 § 1 of the European Convention on Human Rights and Fundamental Freedoms were not breached in the proceedings before the Administrative Court because the Administrative Court did not proceed contrary to the legal views established by the European Court of Human Rights in the application of that provision to individual cases.
...
The Constitutional Court notes that in its practice it has established the rule that there is a remedy before the Administrative Court (a request under section 66 of the Administrative Disputes Act) against a decision on appointment of a deputy state attorney, and that this remedy has to be used before a constitutional complaint is lodged with the Constitutional Court (decision no. U-III-4364/2005 of 19 December 2005).”
12. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum) and 76/2010) read as follows:
“The right to appeal against decisions adopted in the first-instance proceedings before a court or other authorised body shall be guaranteed.
The right of appeal may exceptionally be excluded in cases provided by law if other legal protection is ensured.”
“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”
“Every national of the Republic of Croatia shall have the right, under equal conditions, to take part in the conduct of public affairs, and to be admitted to public service.”
13. In its decisions no. U-III-1733/2000 of 24 November 2004 (published in the Official Gazette no. 179/2004 of 17 December 2004), no. U-III-2808/2007 of 13 February 2008 (published in the Official Gazette no. 26/2008 of 29 February 2008) and no. U-III-3071/2006 (published in the Official Gazette no. 42/2009 of 6 April 2009) the Constitutional Court held that in cases where the first-instance courts had wrongly informed parties on legal remedies by indicating longer time-limits for lodging appeals against their decisions than those provided in the relevant legislation, and the parties lodged their appeals outside of the statutory time-limits but within the time-limits indicated by the first-instance courts, those appeals could not be declared inadmissible as lodged out of time. To do so would run contrary to the constitutional right to appeal guaranteed by Article 18(1) of the Constitution, and the constitutional right to a fair hearing, in its part concerning access to court, guaranteed by Article 29(1) of the Constitution (see preceding paragraph).
14. In its judgment no. Zpa-5/2004-5 of 2 December 2004, following a request for the protection of a constitutionally guaranteed right (see paragraph 34 below) the Administrative Court quashed the decision of the National Judicial Council on appointment of a municipal court judge. It held that every candidate satisfying the statutory requirements had the right to equal participation in a competition for public office. Therefore, by appointing a candidate who did not satisfy the statutory requirements for appointment as a judge of a municipal court, the National Judicial Council violated the other candidate’s constitutional right to “equal access to public service” guaranteed by Article 44 of the Constitution (see paragraph 12 above).
15. The relevant provision of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:
“(1) Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a state authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional right’)...
(2) If another legal remedy is available in respect of the violation of the constitutional right [complained of], a constitutional complaint may be lodged only after this remedy has been used.
(3) In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered to have been exhausted only after a decision on these legal remedies has been given.”
16. In its decision no. U-III-4364/2005 of 19 December 2005 (Official Gazette no. 6/2006 of 13 January 2006) the Constitutional Court held that a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 34 below) must be lodged against a decision of the State Attorneys Council on appointment of a deputy state attorney before a constitutional complaint under section 62 of the Constitutional Court Act.
17. The relevant provisions of the Constitutional Act on the Rights of National Minorities (Zakon o pravima nacionalnih manjina, Official Gazette of the Republic of Croatia nos. 155/2002 and 80/2010), which entered into force on 23 December 2002, read as follows:
“(2) The representation of members of national minorities in the organs of State administration and judicial organs shall be secured in accordance with special legislation, and taking into account the proportion of members of national minorities in the total population at the level in respect of which the organ of state administration or judicial organ is established, and acquired rights.
(4) In filling the posts referred to in paragraphs 2 and 3 of this section, priority shall be given under the same conditions to members of national minorities.”
18. On 23 March 2006 the Administrative Court delivered its judgment in case no. Zpa-39/2005, where an aggrieved candidate, member of a national minority, lodged a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 34 below) against a decision of the National Judicial Council on appointment of a municipal court judge. He argued that the contested decision had breached his right guaranteed by Article 44 of the Constitution (see paragraph 12 above) in conjunction with section 22(4) of the Constitutional Act on the Rights of National Minorities (see paragraph 17 above). The Administrative Court dismissed his request (only) because in his application for the post of a municipal court judge he had not expressed the wish to be treated as a member of a national minority and had not relied on section 22(4) of the Constitutional Act on the Rights of National Minorities.
19. The relevant provision of the State Attorneys Act (Zakon o državnom odvjetništvu, Official Gazette of the Republic of Croatia nos. 51/2001, 16/2007, 20/2007 (corrigendum), 146/2008), as in force at the material time, provided as follows:
“(1) Deputy state attorneys shall be appointed in a manner, under the conditions and according to a procedure that guarantees they possess the expertise, independence and moral standing necessary to discharge the duty of a state attorney.
(2) Any Croatian national who holds a law degree and has passed the bar exam may be appointed a deputy state attorney.”
“A person may be appointed a deputy state attorney in a county state attorney’s office if he or she has, as a holder of public office in the judiciary, exercised judicial duties, or has been an advocate, notary public or notary public’s assessor, or lecturer of law courses at a law faculty for at least ten years, or has worked in another legal profession for at least twenty years after passing the bar exam.”
20. The State Attorneys Act provided that decisions of the State Attorneys Council rendered in disciplinary proceedings (section 114) and decisions on removal from the office of a state attorney (section 118(5)) could be challenged by instituting administrative disputes proceedings before the Administrative Court in the form of an action under section 23 of the Administrative Disputes Act. However, the State Attorneys Act had no provisions on remedies available against decisions of the State Attorneys Council on appointment of state attorneys.
21. In its decision no. Us-6683/2004 of 17 November 2004 the Administrative Court held for the first time that a decision of the State Attorneys Council on appointment of a deputy state attorney was not an administrative act within the meaning of section 6(2) of the Administrative Disputes Act. It also held that such a decision could only be contested before that court by lodging a request for the protection of a constitutionally guaranteed right under section 66 of the Administrative Disputes Act (see paragraph 34 below).
22. The Administrative Disputes Act (Zakon o upravnim sporovima, the Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and the Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) in its relevant part provides as follows:
23. Section 6(1) provides that administrative dispute proceedings may be initiated only against an administrative act.
24. Section 6(2) provides that an administrative act, within the meaning of the Act, is an act whereby a State organ, in the exercise of public authority, decides on a right or obligation of an individual or an organisation in an administrative matter.
25. Section 10(1) provides that an administrative act may be challenged for: (a) misapplication of substantive law, (b) lack of jurisdiction, or (c) procedural errors or incorrect findings of fact.
26. Section 23 provides that administrative dispute proceedings are instituted by bringing an action.
27. Section 24(1) provides that the action has to be brought within thirty days from the service on the plaintiff of the administrative act (that is, a decision) being contested by the action.
28. Section 27(1) provides that a statement of claim must contain: (a) the first and last name, or the name and the seat, of the plaintiff; (b) the administrative act being contested by the action; (c) a brief statement of the cause of action; as well as (d) to which direction and to what extent it is proposed to quash the administrative act, and (e) the signature of the plaintiff. The statement of claim must be accompanied by the original or a copy of the contested act.
29. Section 29(1) provides that if the action is incomplete or incomprehensible, the president of the panel shall invite the plaintiff to rectify the shortcomings within a certain time-limit. In doing so, the president should instruct the plaintiff as to what has to be done and how and warn him or her of the consequences of failing to comply with the court’s request.
30. Section 29(2) provides that if the plaintiff does not rectify the shortcomings in his action within the time-limit fixed, and they are of such a nature as to prevent the court proceeding with the case, the court shall declare the action inadmissible as deficient.
31. Section 30 provides that the Administrative Court must declare an action inadmissible if, inter alia, the contested decision does not constitute an administrative act within the meaning of section 6 of that Act.
32. Sections 52-59 provide for the remedy of reopening of proceedings before the Administrative Court and regulate the procedure following a petition for reopening.
33. Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on the procedure before the Administrative Court (that is, in administrative disputes), the provisions of the Civil Procedure Act should apply mutatis mutandis.
34. Section 66 reads as follows:
“A request for the protection of a constitutionally guaranteed right or freedom ... if such a right or freedom has been violated by a final individual act [that is, a decision], and no other judicial protection is ensured, shall be decided by the [Administrative Court], by applying the provisions of this Act mutatis mutandis.”
35. According to the conclusion reached at the plenary session of judges of the Administrative Court held on 26 October 1987, an action against an administrative act is to be considered a request for judicial protection within the meaning of section 66 of the Administrative Disputes Act if from the content of the action it transpires that it may concern a breach of rights or freedoms guaranteed by the Constitution. In such cases the Administrative Court could not review every breach of procedural or substantive law but only those that amount to breaches of constitutionally guaranteed rights or freedoms.
36. According to the Administrative Court’s case-law (judgment no. Zpa-5/2004-5 of 2 December 2004), the requirements for affording judicial protection under section 66 of the Administrative Disputes Act, which must be met in their totality, are: (a) the request has to concern rights or freedoms expressly guaranteed by the Constitution, (b) those rights or freedoms were allegedly breached by a final decision which does not have the characteristics of an administrative act, and (c) the legal system does not provide for another judicial avenue of redress. If the request lodged under section 66 of the Administrative Disputes Act does not concern a right or freedom guaranteed by the Constitution, it should be declared inadmissible (decision no. Zpa-4/2003 of 15 December 2004). The time-limit for lodging such a request is the same as the time-limit for bringing an action against an administrative act under section 23 of the Administrative Disputes Act (see paragraphs 26-27 above), that is, thirty days from the service of the contested decision (Zpa-9/05 of 13 April 2005).
37. The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, the Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and the Official Gazette of the Republic of Croatia no. 53/1991) provide as follows:
“(1) By notice on legal remedies a party is informed whether he or she may lodge an appeal against the decision or institute administrative dispute proceedings or other judicial proceedings.
(3) Where administrative dispute proceedings may be instituted against the decision, the notice shall indicate in which court and within what time-limit the action should be brought. Where other judicial proceedings may be instituted, it [the notice] shall indicate before which court and within what time-limit the proceedings should be instituted.
(4) When incorrect information has been given, a party may follow the legislation in force or the notice. A party which followed the incorrect information shall not suffer any adverse consequences as a result.”
38. In its decision no. Zpa-9/2005-4 of 13 April 2005 the Administrative Court held that an incorrect information as regards the remedies available against a decision of the State Attorneys Council did not give rise to the rights stipulated in section 210 of the Administrative Procedure Act (see preceding paragraph).
39. The relevant provision of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008 and 123/2008) reads as follows:
“(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or additional protocols thereto ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision by which the human right or fundamental freedom was violated.
(2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on the reopening of proceedings.
(3) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78866
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF FENER RUM ERKEK LİSESİ VAKFI v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 14;Pecuniary damage - payment of compensation or re-registration of the applicant's title to the disputed property at the Land Registry;Costs and expenses partial award - Convention proceedings
JUDGES: András Baka;Ireneu Cabral Barreto;Jean-Paul Costa;Volodymyr Butkevych
TEXT: 11. The applicant is a foundation existing under the laws of Turkey whose purpose is to provide educational facilities at the Greek Orthodox High School in Fener, Istanbul. It operates in accordance with the provisions of the Lausanne Treaty, which afforded protection to old foundations providing public services for religious minorities. It is one of a number of foundations dating from the Ottoman era. After the proclamation of the Republic it fell under Law no. 2762 of 13 June 1935, by virtue of which it obtained legal personality. In 1936, in accordance with section 44 of that Act, the applicant foundation filed a declaration indicating its aims and its immovable property.
12. On 10 October 1952 the applicant foundation acquired, by way of donation, title to part of a building situated in Istanbul. That acquisition was based on a certificate issued on 3 October 1952 by the Governor of Istanbul. The relevant part of that certificate read as follows:
“Fener Rum Erkek Lisesi Vakfı is a legal entity authorised to acquire immovable property by virtue of the Foundations Act. It is run by an administrative board consisting of ... Further to a request of 3 October 1952 by the Beyoğlu Land Registry, the present document is issued for the purposes of the transaction concerning immovable property located at ... by virtue of section 2 of the Land Registry Act [Law no. 2644 of 29 December 1934 on the Land Registry – see paragraph 27 below].”
13. The immovable property in question was subsequently registered at the Land Registry. The applicant foundation duly paid property taxes in respect of its property.
14. Similarly, on 16 December 1958, the applicant foundation acquired, by purchase, co-ownership of another part of the same building. On 15 November 1958 the Governor of Istanbul had issued the certificate required by section 2 of the Land Registry Act, again indicating that “Fener Rum Erkek Lisesi Vakfı [was] a legal entity authorised to acquire immovable property by virtue of the Foundations Act”. The applicant’s title to that property was accordingly registered at the Land Registry and the relevant property taxes were duly paid.
15. On 15 July 1992 the Treasury lodged an application with the District Court of Beyoğlu (Istanbul) seeking the annulment of the applicant foundation’s title to the above-mentioned immovable property and the registration thereof in the name of the former owners, by virtue of the established case-law of the Court of Cassation. In support of its application, it argued in particular that the applicant did not have the capacity to acquire immovable property. In addition, given that the property in question was not mentioned in its declaration of 1936, an instrument regarded as the legal foundation constitution (vakıfname) of those establishments in accordance with the case-law of the Court of Cassation, the applicant was not entitled to obtain the relevant title. The Treasury therefore requested that the property be re-registered in the name of its former owner.
16. On 19 December 1994, further to a request from the District Court, an expert in cartography and land surveys filed a report on the case. Referring to the case-law of the combined civil divisions of the Court of Cassation, as established on 8 May 1974 (see paragraph 28 below), he observed that foundations belonging to religious minorities as defined by the Lausanne Treaty which had not indicated in their constitution a capacity to acquire immovable property were precluded from purchasing or accepting gifts of such property. Consequently, the real estate of such foundations was limited to the property indicated in their constitutions, which had become final with the declarations of 1936. In conclusion, the expert considered that the applicant foundation’s title should be annulled, as it lacked the capacity to acquire immovable property, and that the property in question should be re-registered in the name of its former owners.
17. Before the District Court, the applicant foundation objected to the characterisation given to the 1936 declarations by the Treasury. It contended in particular that these declarations had been required by the State for the registration of the assets and income of foundations and that they could not be regarded as constitutive instruments. It further argued that such foundations did have the capacity to acquire property, by virtue of the Land Registry Act.
18. In a judgment of 7 March 1996 granting the request of the Treasury, the District Court ordered both the annulment of the applicant’s title and the re-registration of the property in the name of the former owners. It found in particular as follows:
“As the Treasury stated, the defendant foundation did not indicate in [its] declaration of 1936 ... its [disputed] acquisitions by way of donation and purchase. Thus, as observed in the expert’s report, those acquisitions are devoid of legal basis and must accordingly be struck out of the land register and re-registered in the name of the former owners.”
19. On 17 April 1996 the applicant foundation appealed to the Court of Cassation. It relied in particular on its right to the peaceful enjoyment of its possessions under Article 1 of Protocol No. 1. Its appeal was dismissed on 11 June 1996.
20. On 9 December 1996 the Court of Cassation dismissed an application by the applicant foundation for rectification of the judgment of 11 June 1996.
21. On 16 October 2000 the applicant foundation submitted a request to the Directorate-General of Foundations (the “Directorate”) for the amendment of its constitution. It sought a new constitutive instrument that would grant it the capacity to acquire immovable property. The request was rejected on 20 October 2000. In the grounds for its decision, relying on the judgment of the combined civil divisions of the Court of Cassation of 8 May 1974, the Directorate observed that the 1936 declarations by foundations of religious communities were to be regarded as the “constitutive instruments” of those establishments and that amendment of those constitutions was impossible for reasons of public policy.
22. The Government argued that the striking-out of the applicant’s title from the land register did not take place until 2002. In this connection they referred to a decision taken by the Beyoğlu Municipal Council on 13 March 2001 whereby the applicant foundation, as owner, together with its tenant, had been fined for adding an additional storey onto the building without authorisation.
23. Prior to 1912, foundations (vakıf) were not recognised as legal entities in the legal system of the Ottoman Empire. Not having legal personality, they used to have their property registered at the Land Registry in the name of a holy person who had died or of a living person in whom they trusted. A Law of 16 February 1328 anno Hegirae (1912), granting foundations the right of ownership, thus recognised their legal personality. Under that Law, foundations were entitled to have their property registered at the Land Registry.
24. After the Republic was proclaimed in 1923, the Civil Code and Law no. 864 on the implementation and application of the Civil Code came into force on 4 October 1926. Section 8 of Law no. 864 provided as follows:
“A special Law will be enacted to govern the operation of foundations established before the entry into force of the Civil Code.
Establishments founded after the entry into force of the Civil Code shall be governed by the provisions of the said Code.”
25. Law no. 2762 was thus enacted on 13 June 1935 and it recognised the legal personality of foundations set up under the Ottoman Empire. The legal status of foundations established after the entry into force of the Civil Code of 4 October 1926 was, however, governed by the Code itself.
26. Law no. 2762 imposed an obligation for foundations that had been created under the Ottoman Empire to submit a declaration indicating, among other things, the nature and amount of their income. For that purpose it contained the following transitional provision:
“A. Representatives ... of foundations which have not registered with the Directorate-General of Foundations ... shall file with it a declaration [beyanname] indicating the nature and amount of their income ... for the previous year ..., within three months from the entry into force of the present Act ...”
27. The Land Registry Act (Law no. 2644 of 22 December 1934) provided in section 2 as follows:
“Legal entities, in order to register transactions at the Land Registry, shall request the higher authority of the district in which their registered offices, or those of their branches, are located, to issue them with a certificate indicating their capacity to acquire immovable property and the power of the legal entity’s representative to enter into such transactions. ...”
28. In the case-law established by its judgment of 8 May 1974, the Court of Cassation decided that the declarations of 1936 were to be regarded as the constitutive instruments of the vakıf, finalising their constitutions. Unless the declaration included an express provision to such effect, foundations were not entitled to acquire immovable property other than that declared in the said document. The Court of Cassation appeared to consider that the acquisition by foundations of this type of property, in addition to that which was indicated in their constitution, could constitute a threat to national security. The court stated in particular as follows:
“The acquisition of immovable property by legal entities set up by persons who are not Turkish is prohibited. It is evident that the State would be exposed to various risks if it granted such foundations the capacity to acquire immovable property ...
The last paragraph of section 1 of the Foundations Act provides that the management of foundations belonging to religious communities and artisans is to be entrusted to the persons and organs appointed by them. A legal status is thus created for them, without prejudice to their legal personality. Under section 44 of the Foundations Act, the places [yerler] indicated in the registers and other similar documents filed with the Land Registry following the enactment of the Law of 16 February 1328 are transmitted, by this means, to the register of foundations. Consequently, it is appropriate to regard the declarations filed under section 44 of the above-mentioned Act by such organisations – now foundations – belonging to communities and engaged in charitable, scientific or aesthetical activities, as being their legal foundation constitutions [vakıfname]. A foundation is not entitled to acquire property unless it expressly indicated its capacity to do so in its constitution and the same applies to charities. They are not entitled to acquire immovable property, whether directly or by inheritance, if it is not clearly stipulated in their declaration that they can accept gifts ...”
29. Lastly, the legislation governing foundations was changed in 2002. Section 4 of Law no. 4771 of 9 August 2002 provides as follows:
“A. The following paragraphs shall be added at the end of section 1 of the Foundations Act of 5 June 1935.
Religious community foundations, whether or not they have a constitution, shall be entitled to acquire or possess immovable property, with the authorisation of the Council of Ministers, in order to meet their needs for religious, charitable, social, educational, sanitary or cultural purposes.
If a request is made within six months from the entry into force of the present Act, immovable property of which any form of possession is recorded in tax registers, leases or other documents shall be registered at the Land Registry in the name of the foundation in order to meet the needs of such foundations for religious, charitable, social, educational, sanitary or cultural purposes. Property that has been donated or bequeathed to the foundation shall be governed by the provisions of the present section.”
30. Moreover, section 3 of Law no. 4778 of 2 January 2003 provides that “religious community foundations” are now entitled to acquire and alienate immovable property, whether or not they have a constitutive instrument.


ITEMID: 001-91110
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: JANATUINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Ms Jaana-Mari Janatuinen, is a Finnish national who was born in 1980 and lives in Tampere. She was represented before the Court by Mr J. Tuutti, a lawyer practising in Tampere. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The police suspected the applicant’s husband of an aggravated drugs offence. They obtained permission to place his telephone under secret surveillance.
On 30 December 1999 the applicant phoned a third person, K., requesting him to come over and bring along a bag containing items belonging to her husband. The police intercepted this conversation. The facts are not clear on whether the conversation was recorded or not but, at any rate, it was cited in the subsequent criminal complaint and included in the pre-trial investigation material.
By a letter dated 4 January 2001 the applicant’s husband lodged a complaint with the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) criticising the conduct of the police, in particular their use and handling of the information obtained through the surveillance.
The Deputy Ombudsman (eduskunnan apulaisoikeusasiamies, riksdagens biträdande justitieombudsman, hereinafter “the Ombudsman”) procured statements from the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) and from Chief Inspector A., who had been in charge of the investigation. In his decision of 21 October 2003, the Ombudsman noted, in regard to the above-mentioned conversation between the applicant and K., that permission to intercept a suspect’s telephone conversations did not authorise the police to intercept conversations involving persons other than the suspect. In his view, this kind of conversation could not even be regarded as superfluous information and the interception should have been stopped as soon as it was evident that the conversation did not involve the suspect. He further noted that interception of telecommunications constituted an interference with the essence of the secrecy of communications protected under the Constitution.
The documents submitted to the Ombudsman did not suggest that more than one of the applicant’s conversations with a person other than her husband had been intercepted. According to Chief Inspector A., only one telephone conversation, that of 30 December 1999, was referred to in the pre-trial material and it was not included verbatim. The Ombudsman stated that the police should not have intercepted the conversation between the applicant and K. Although the conversation had apparently not been very long, the interception seemed to have lasted longer than was acceptable, under the circumstances, to identify the persons speaking. Even if the conversation had not been recorded, its contents had been included in the pre-trial material in quite detailed terms either from memory or from notes. The information thus obtained was later used in the questioning of K., who was suspected of a drugs offence. The Ombudsman concluded that the interception of the conversation, having lasted longer than necessary, and the inclusion of its contents in the pre-trial material constituted an unlawful act.
The Ombudsman found, however, that there was no reason to suspect that the act was anything other than a one-off mistake. He also considered its impact quite trivial under the circumstances. However he stressed the importance of the principle at stake. He did not find it necessary to engage in investigating which police officer should be held accountable for the unlawful act. He considered it sufficient to express his opinion on the matter to Chief Inspector A. and to the head of the National Bureau of Investigations. This opinion was also to be forwarded, for future guidance, to the police officers who had been involved in the investigation in question.
The applicant did not resort to any other domestic remedies.
Under Chapter 5a, section 2 of the Coercive Measures Act (pakkokeinolaki, tvångmedelslag, Act no. 450/1987, as amended by Act no. 1026/1995 at the material time) an authority investigating a crime may be granted permission to intercept and record telecommunications sent by the suspect using an extension in his possession or another extension presumably used by him or her, or telecommunications received through such an extension and directed to the suspect, if the information thus obtainable can be assumed to be of very great significance in solving the crime. According to Chapter 5a, sections 5 and 7 of the said Act, the permission is granted by a competent court on the investigating authority’s request for a limited period of time.
The Constitution (Suomen Perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts:
Article 10 – The right to privacy:
“Everyone’s private life, honour and the sanctity of the home are guaranteed. ...
The secrecy of correspondence, telephony and other confidential communications is inviolable. Measures encroaching on the sanctity of the home, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, may be laid down by an Act. In addition, provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty may be laid down by an Act.”
Article 118 – Official accountability:
“A civil servant is responsible for the lawfulness of his or her official actions. ...
Everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task shall have the right to request that the civil servant or other person in charge of a public task be sentenced to a punishment and that the public organisation, official or other person in charge of a public task be held liable for damages, as provided in more detail by an Act. ...”
Intentional and negligent breach of official duty are punishable acts under Chapter 40 of the Penal Code (rikoslaki, strafflag, Act no. 39/1889 with later amendments). The statute of limitations for these offences is five years. Intentional breach of official duty carries a maximum penalty of one year of imprisonment, whereas negligent breach of official duty may only result in a reprimand or a fine.
According to sections 2, 5, 14 (2) and 43 (1) of the Criminal Investigations Act (esitutkintalaki, förundersökningslag, Act no. 449/1987 with later amendments) the investigating authority has to conduct a pre-trial investigation if there are reasons to suspect that a crime has been committed. During the investigation the police will clear up, inter alia, the offence, the circumstances thereof, the parties thereto, and possible damage caused by it. If the suspect is a police officer, the investigation is headed by a public prosecutor. After the investigation is completed the case is submitted to [another] public prosecutor for the consideration of charges.
Section 4a of the said Act (Act no. 692/1997, in force at the material time) provided that, at the proposal of the head of the investigation, the prosecutor could order the pre-trial investigation not to be conducted or that it be interrupted, if he or she were to waive the charges, unless an important public or private interest required otherwise. This provision was replaced by section 4 of the said Act (Act no. 645/2003), which came into force on 1 January 2004 and where the word “interrupted” was substituted by the word “terminated”.
According to Chapter 1, section 7 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål, Act No. 689/1997) the public prosecutor may decide not to prosecute where, inter alia, a penalty more severe than a fine is not anticipated for the offence and the offence is deemed of little significance in view of its detrimental effects and the degree of culpability of the offender manifested.
Prior to January 2004, Chapter 1, section 14 (1) of the Criminal Procedure Act further provided that the injured party could bring a charge for an offence only if the public prosecutor had decided not to prosecute. Article 118 (3) of the Constitution applied to the right of the injured party to bring a charge for an offence in public office (Act no. 1250/1999). Since 1 January 2004 the injured party has had the right to bring such charges also where the investigating authority or the prosecutor has decided not to conduct a pre-trial investigation or that an investigation shall be interrupted or terminated (Act no. 647/2003).
Under Chapter 3, section 1 of the Criminal Procedure Act, a civil claim arising from the offence for which a charge has been brought may be heard in connection with the charge. If such a claim is lodged separately, the provisions on civil procedure apply.
The Tort Liability Act (vahingonkorvauslaki, skadeståndslag, Act no. 412/1974) provides in relevant parts as follows:
Chapter 3, section 2:
“A public corporation shall be vicariously liable in damages for injury or damage caused through an error or negligence in the exercise of public authority. ...
However, the liability of the corporation referred to in paragraph (1) arises only if the performance of the activity or task, in view of its nature and purpose, has not met the reasonable requirements set for it.”
Chapter 4, section 1:
“An employee shall be liable in damages for injury or damage caused by him/her through an error or omission at work to an amount deemed reasonable in view of the extent of the injury or damage, the nature of the act, the status of the person causing the injury or damage, the needs of the person suffering the same, and other circumstances. If the negligence of the employee has been merely slight, he/she shall not be rendered liable in damages. ...
If the injury or damage has been caused deliberately, full damages shall be awarded unless it is deemed that there are special reasons for reducing the damages. ...”
Chapter 4, section 2 (as amended by Act no. 1423/1991):
“A public official shall be liable for damages for injury or damage caused by him/her through an error or omission at service in accordance with the provisions in section 1 of this chapter.”
Chapter 5, section 6:
“The provisions of this Act on personal injury apply also to damages for the anguish arising from an offence against liberty, honour or the domestic peace or from another comparable offence.”
As to the domestic practice in civil proceedings, reference is made, by way of example, to the following Supreme Court precedents where the State has been found liable in damages for the misconduct of the police or other authorities: KKO:1994:121, KKO:2005:66 and KKO:2008:10.
According to the Parliamentary Ombudsman Act (laki eduskunnan oikeusasiamiehestä, lag om riksdagens justitieombudsman, Act no. 197/2002), which came into force on 1 April 2002, the Ombudsman shall oversee the legality of the actions of authorities. Anyone who thinks that an authority has acted unlawfully or neglected a duty in the performance of their task, may lodge a complaint with the Ombudsman. He or she shall investigate the complaint if there is reason to suspect an unlawful act or negligence in the performance of official duties. The Ombudsman may order that a pre-trial investigation be carried out in order to clarify a matter under his or her investigation. If the Ombudsman concludes that a subject of his or her supervision has acted unlawfully or neglected a duty, he may initiate criminal or disciplinary proceedings or, if such measures are considered unwarranted in a particular case, issue a reprimand to the subject for future guidance. If necessary, the Ombudsman may express to the subject his or her opinion of proper observance of the law, or draw the subject’s attention to the requirements of good administration or to considerations of fundamental and human rights. The Ombudsman may also issue a recommendation to the competent authority that an error be redressed or a shortcoming rectified (sections 1 (1), 2 (1), 3 (1), 10 and 11 (1)). The Act substituted in relevant parts the previous Rules of Procedure of the Parliamentary Ombudsman (eduskunnan oikeusasiamiehen johtosääntö, instruction för riksdagens justititieombudsman, no. 251/2000), which had entered into force on 1 March 2000.


ITEMID: 001-22726
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: BASPINAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant, Mr Helmi Başpınar, is a Turkish national, who was born in 1975 and lives in Çorum.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1996 the applicant requested to have a social security card for his wife. This request was refused on the grounds that photography showing his wife carrying an Islamic scarf was not acceptable for the social security identity cards.
On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94(b) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant, a non-commissioned officer, was a member of the Nakşibendi sect. He had an antisocial character and his wife carried an Islamic scarf. He adopted extreme religious ideology. His superiors considered the applicant as an undisciplined and insubordinate soldier.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.
...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review
...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Turkish Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-80701
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF LIZANETS v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection joinded to merits and dismissed (six-month period);Violation of Art. 6-1;Not necessary to examine Art. 6 (length of the proceedings);Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1945 and lives in the town of Mukacheve, the Zakarpatye region.
5. In February 1997 the Mukacheve City Prosecutor charged the applicant (a former inspector of the Mukacheve city market) with corruption, and ordered his detention on remand. In August 1997 the applicant was released against his undertaking not to abscond. In December 1997 his case was closed given the lack of any corpus delicti. This decision was subsequently quashed by the Zakarpatye Regional Prosecutor's Office and the investigation was reopened. On 8 August 1998 the criminal proceedings against the applicant were ultimately terminated given the absence of any corpus delicti.
6. On 3 September 1998 the applicant instituted proceedings against the Mukacheve District Prosecutor's Office of the Zakarpatye Region, seeking monetary compensation for unlawful prosecution.
7. On 30 September 1998 the Mukacheve City Court (hereafter “the City Court”) granted this claim and awarded the applicant UAH 60,000. In assessing the amount of moral compensation, the court took account of medical certificates attesting to the fact that subsequent to his release the applicant had suffered a nervous breakdown. On 10 October 1998 this judgment became final and binding.
8. On 18 November 1999 the Zakarpatye Regional Prosecutor lodged an supervisory appeal with the Presidium of the Zakarpatye Regional Court against the judgment of 30 September 1998. On 29 November 1999 the court, sitting in a closed session in the presence of a prosecutor, quashed this judgment and remitted the case for a new consideration.
9. On 17 May 2001 the City Court, in the resumed proceedings, allowed the applicant's claim. Having regard to the medical documents, the forensic psychological report and statements from a number of witnesses, the court found, inter alia, that the applicant's nervous breakdown had been caused by his detention, and ordered the Prosecutor's Office to pay the applicant UAH 80,000 in moral and material damages. On 27 May 2001 this judgment acquired legal force.
10. On 4 September 2001 the Zakarpatye Regional Prosecutor's Office challenged this judgment under the new cassation procedure (see “Relevant domestic law”, paragraph 24 below).
11. On 3 October 2001 the Constitutional Court declared unconstitutional Article 25 of the Law on the State Budget 2001, which provided that compensation for unlawful criminal prosecutions was to be deducted from the funds allocated to the relevant law-enforcement agencies. The Constitutional Court decided that the relevant amounts should be paid directly from the State Budget held by the State Treasury.
12. On 10 December 2001 a judge of the Supreme Court returned the prosecutor's appeal to the City Court, indicating that it had to examine the issue of the reopening of the proceedings on the ground of new circumstances.
13. On 24 January 2002 the City Court, on a request from the Zakarpatye Regional Prosecutor, reopened the proceedings in the case due to new circumstances, namely the annulment of the Article 25 of the Law on the State Budget 2001 by the aforementioned decision of the Constitutional Court.
14. On 5 April 2002 the City Court partly allowed the applicant's claim, ordering the State Treasury to pay him UAH 10,000 in compensation for unlawful prosecution. The court held that the criminal proceedings against the applicant had been unlawful but found the claim for moral damages excessive:
“With respect to the remainder of the claims [the court notes that] the claimant has failed ...to provide any corroborating evidence; nor did he submit to the court any calculation of the amount of compensation for moral damage.
No reliable link could be seen between the claimant's nervous breakdown and his criminal prosecution and arrest.”
The applicant appealed.
15. On 12 June 2002 the Zakarpatye Regional Court of Appeal upheld this judgment, indicating, inter alia, that, according to the forensic psychological report, the nervous breakdown, suffered by the applicant in 1997, could result either from his unlawful detention or from his general poor state of health, thus finding that the amount of UAH 10,000 constituted sufficient compensation for damages suffered due to unlawful prosecution.
16. On 2 December 2002 the Supreme Court rejected the applicant's request for leave to appeal under the cassation procedure.
17. On an unknown date in early 1999 the applicant applied to the Zakarpatye Regional Department of Justice for compulsory enforcement of the September 1998 judgment. The warrant of execution was on several occasions sent to the Zakarpatye Regional Department of the State Treasure. However on 18 November 1999 the enforcement proceedings were suspended pending the outcome of the prosecution's extraordinary appeal (paragraph 8 above).
18. On 2 December 2005 the City Court refused the applicant's request to initiate the enforcement proceedings for the judgment of 5 April 2002, ruling that its enforcement was time barred. The court found that Article 21 of the Law on Enforcement Proceedings envisaged that the writs of execution should be lodged with the relevant authority within three years after the judgment acquired legal force. The judgment in the applicant's case had become final on 12 June 2002 upon the decision of the Zakarpatye Regional Court of Appeal, whereas the applicant requested the issuance of the writ of execution on 23 November 2005, i.e. after the expiry of the statutory limitation. The applicant did not appeal against this decision.
19. The judgment of 5 April 2002 has not been enforced to date.
20. The relevant domestic law is summarised in the judgment of Voytenko v. Ukraine (no. 18966/02, §§ 20-25, 29 June 2004).
21. Article 347-6 of the Code provides that, having examined the request for reopening of the case on the ground of new circumstances, the competent court delivers the ruling, whereby it either quashes the relevant judgment or rejects the above request. If the judgment is quashed the case is examined on the merits according to the general rules contained in this Code.
22. The Constitutional Court held:
23. The relevant provisions of the Law are read as follows:
Article 320
Persons having the right to lodge a cassation appeal
“Parties and other persons who participate in court proceedings, and the prosecutor and other persons who have not participated in the proceedings in which the court has decided on their rights and obligations, may lodge a cassation appeal against judgments and rulings adopted by the court of first instance, only in relation to a violation of the substantive or procedural law and rulings and judgments of an appeal court.
The basis for such an appeal is the incorrect application of the norms of substantive law or infringement of the norms of procedural law.”
Section 321
The deadlines for lodging an application for annulment
“The deadline for lodging an application by the prosecutor is three months from the date of delivery of the ruling or judgment of the Court of Appeal, or one year from the date of delivery of the ruling or judgment of the court of first instance, if these rulings or decisions have not been appealed against.”
Chapter II. Transitional Provisions
“1. This Law shall enter into force as from 29 June 2001.
2. Laws and other normative acts adopted before this Law entered into force are effective in so far as their provisions do not conflict with the Constitution of Ukraine and this Law.
3. Appeals in civil cases lodged before 29 June 2001 shall be considered in accordance with the procedure adopted for the examination of appeals against local courts' decisions.
4. Protests against judicial decisions lodged before 29 June 2001 shall be sent to the Supreme Court of Ukraine for consideration in accordance with the procedure for consideration of cassation appeals (касаційних скарг).
5. Decisions that have been adopted and have entered into force before 29 June 2001 can be appealed against within three months in accordance with the procedure for consideration of cassation appeals (to the Supreme Court of Ukraine).”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1