ITEMID: 001-114145
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: RUJAK v. CROATIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Vladimir Rujak, is a Croatian citizen of Serbian ethnic origin, who was born in 1981 and lives in Marinići. He is represented before the Court by Mr T. Sabljar, a lawyer practising in Rijeka.
2. The Croatian Government (“the Government”) are represented by their Agent, Ms Š. Stažnik.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 8 April 2004 the applicant, who was serving in the Croatian Army at the time, was involved in a quarrel in the Knez Trpimir military barracks in Divulje with two other recruits, Mr I.H. and Mr I.Š. The quarrel was witnessed by a number of other soldiers. At some point during the quarrel the applicant said to I.H. and I.Š.:
“I fuck your baptised mother!”
5. It would appear that shortly afterwards corporal D.B. summoned the applicant through a duty officer to report to him concerning the incident. As the applicant refused to do so, corporal D.B. went to look for him and, after having found him, asked why he had not reported to him as instructed. The applicant replied:
“This is not my State, I am not its national, I don’t recognise [respect] you, your rank or the Croatian Army!”
6. The applicant repeated this statement in the presence of other officers during a subsequent conversation with the battalion commander, first lieutenant B.V. Asked whether he intended to offend someone’s religion and ethnic origin he replied:
“Yes! I fuck your baptised mother! I fuck your Ustaše mother! You all originated from Serbs!”
7. On 6 April 2005 the Split County State Attorney’s Office (Županijsko državno odvjetništvo u Splitu) indicted the applicant before the Split County Court (Županijski sud u Splitu), accusing him of the criminal offence of tarnishing the reputation of the Republic of Croatia, defined in Article 151 of the Criminal Code.
8. At a hearing held on 28 February 2007 the applicant admitted making the above statements, expressed remorse and stated that he considered himself a national of the Republic of Croatia, that he recognised it as his State, and therefore that he also recognised its Army.
9. On the same date, the County Court delivered a judgment whereby it found the applicant guilty as charged and sentenced him to six months’ imprisonment. The relevant part of that judgment reads as follows:
“The [value] protected by [proscribing] this criminal offence is the reputation of the Republic of Croatia [and] its dignity, symbolised in the objects [listed in the definition of the offence]. The acts described [therein], that is, exposure to ridicule, contempt and severe disdain, indicate that the law [the Criminal Code] requires grave denigration, malice, hatred and demonstrative disrespect for those values and symbols, such that they would lose their dignity in the eyes of citizens and the world.
...
The [court] finds it proven ... that the accused committed the criminal offence defined in Article 151 of the Criminal Code because he publicly exposed the Republic of Croatia and the Croatian people to contempt and severe disdain by saying publicly, ..., in the presence of a large number of people that ... this State (the Republic of Croatia) was not his State, that he did not recognise it, that he was not its national, that he did not recognise the Croatian Army – which is, parenthetically, the foundation of the constitutional integrity and territorial existence of any legally organised state such as the Republic of Croatia – that he did not recognise the legitimacy of his superior officer in the Croatian Army ... and his rank, which [statements] were accompanied by [further statements] which offend religious and national affiliation, such as those in which he said that he fucks their baptised mothers, Ustaše mothers and that they all (Croats, Croatian people) originated from Serbs. Those [statements] indicate severe denigration, malice, hatred and demonstrative disrespect for the values and symbols [listed in the definition of the offence], whereby those values and symbols of the Republic of Croatia, by being treated in such a way in front of citizens (members of the Croatian Army), lost their dignity.
[When deciding on a penalty, the court takes into account] the fact that the accused admitted committing the offence, the fact that he [does not have a criminal record], his young age and correct conduct before the court, whereas, as an aggravating circumstance, it takes into account the manner in which the offence was committed, that is, a high level of perseverance and contempt in making the offending statements.
Taking into account all the above circumstances ... [the court] sentences the accused to six months’ imprisonment, considering that the purpose of the punishment may, given the type and gravity of the criminal offence, be achieved only by a prison sentence. This prison sentence will, in the opinion of [this court], primarily achieve the purpose of individual prevention, so that the accused will not commit this or a similar offence [in the future]. [It will also meet] the purpose of general prevention by deterring others from committing this or similar offences.”
10. The applicant appealed. He argued that his statements could have been qualified as the criminal offence of insult against recruits I.H. and I.Š. and/or a disciplinary offence of disobedience to his superior officers, rather than the criminal offence of tarnishing the reputation of the Republic of Croatia. Furthermore, his conviction for that criminal offence interfered with his freedom of expression because he had been entitled to express his opinion that Croats had originated from Serbs who had converted to Catholicism.
11. On 11 November 2009 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the first-instance judgment in part and reversed it in part. It upheld the lower court’s finding that the applicant was guilty of the offence in question. However, it overturned the sentence imposed and replaced it with a suspended sentence of six months’ imprisonment with a two-year probation period. The relevant part of the judgment reads as follows:
“The argument of the accused that ... the operative part of the contested judgment is incomprehensible and self-contradictory because the facts [of the case] do not correspond to the legal definition of the criminal offence [for which he has been convicted] is unfounded. In explaining this argument, the accused ... claims that cursing I.H. and I.Š.’s baptised mothers constitutes the criminal offence of insult defined in Article 199 of the Criminal Code, that by stating that he did not recognise the Croatian State, the Croatian Army and its officers [he had only] exposed himself to ridicule and contempt and not the Republic of Croatia, its Army or its officers, and that by saying that all Croats had originated from Serbs he [was merely expressing] one possible theory on the ethnogenesis of Croats, which [he] has the right to [do] on the basis of the Croatian Constitution, which, in [its] Article 38, guarantees the freedom of thought and freedom of expression.
Contrary to the foregoing, nothing in the appeal of the accused suggests that the operative part of the contested judgment is incomprehensible or contradictory, as the appellant argues ...
...
The first-instance court ... did not give sufficient weight to mitigating circumstances, that is, to the fact that the accused [does not have a criminal record], to his young age and correct conduct before the court, which was also demonstrated by his admission that he committed the ... offence and ... clearly expressed remorse for doing so, which suggests that the criminal offence perpetrated by the accused is a result of the impudence of youngsters. The Supreme Court ... therefore considers that in this particular case the purpose of the punishment may be achieved without imposing a prison sentence. For these reasons, the appeal of the accused has to be allowed in part [as regards] the penalty [imposed] and the first-instance judgment [must accordingly be] reversed ...”
12. The applicant subsequently lodged a constitutional complaint alleging, inter alia, a violation of his freedom of expression, guaranteed by Article 38 of the Croatian Constitution.
13. On 9 April 2010 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s complaint inadmissible. It found that even though the applicant relied on the relevant Articles of the Constitution in his constitutional complaint, he had not substantiated his complaint by any constitutional-law arguments but had merely repeated the arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint. The Constitutional Court’s decision was served on the applicant’s representative on 11 May 2010.
14. The relevant parts of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette 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)) provide as follows:
“(1) Rights and freedoms may be restricted only by law in order to protect the rights and freedoms of others, the legal order, public morals or health.
(2) Every restriction of rights and freedoms should be proportionate to the nature of the necessity for the restriction in each individual case.”
“(1) Freedom of thought and expression shall be guaranteed.
(2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and public expression, and free establishment of all media institutions.
(3) Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information.
(4) The right to correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or a statute were breached by public information.”
15. Article 151 of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments) reads as follows:
“Anyone who publicly exposes the Republic of Croatia, its flag, coat of arms or [national] anthem, the Croatian people, or ... national ... minorities living in the Republic of Croatia to ridicule, contempt or severe disdain, shall be punished by imprisonment from three months to three years.”


ITEMID: 001-105754
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF JURIČIĆ v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1954 and lives in Zagreb.
6. On 26 February 2008 the Committee on the Constitution, Rules of Procedure and Political System of the Croatian Parliament, (Hrvatski Sabor – Odbor za Ustav, Poslovnik i politički sustav – “the Parliamentary Committee”) published in the Official Gazette (no. 26/2008 of 29 February 2008) a Call for Applications for the Election of Three Judges to the Constitutional Court, inviting prospective candidates to submit their applications.
7. On 28 April 2008 the applicant, a judge of the Administrative Court, submitted her application for the post of judge of the Constitutional Court. Another eighteen candidates also submitted applications.
8. The Parliamentary Committee eventually compiled a shortlist of four candidates, namely, Mr M.J., Mrs D.Š., Mrs S.B. and the applicant, and submitted it to Parliament for a vote.
9. After a secret ballot in which the applicant received four of the required 77 votes, on 9 May 2008 Parliament adopted a decision electing Mr M.J., Mrs D.Š. and Mrs S.B., who each received 78 votes, as judges of the Constitutional Court.
10. On 26 May 2008 the applicant, relying on section 66 of the Administrative Disputes Act (see paragraph 32 below), lodged a request for the protection of a constitutionally guaranteed right (zahtjev za zaštitu ustavom zajamčenog prava) with the Administrative Court (Upravni sud Republike Hrvatske) contesting Parliament’s decision of 9 May 2008. She argued that S.B. had not proved that she had at least fifteen years of professional experience and thus did not demonstrate that she satisfied all the statutory criteria for election as a Constitutional Court judge set forth in section 5(1) of the Constitutional Court Act (see paragraph 25 below). Therefore, in the applicant’s view, by electing S.B. instead of her, Parliament had breached her right to equality before the law, the right to equality before the State and other public authorities, the right to equal access to public service and the right to equal access to employment guaranteed in Articles 14(2), 26, 44 and 54(2) of the Constitution (see paragraph 23 below), respectively.
11. On 26 June 2008 the Administrative Court invited M.J. and D.Š. to submit their observations as third (interested) parties (zainteresirane osobe). On 7 and 8 June 2008, respectively, they replied that they considered the applicant’s request unfounded and that the election of the Constitutional Court’s judges had been in accordance with the law. They also stated that they did not consider themselves third (interested) parties to the proceedings because the applicant had not challenged their election.
12. On 15 October 2008 the Administrative Court delivered a judgment whereby it allowed the applicant’s request and quashed Parliament’s decision of 9 May 2008 in its part concerning S.B. The court held that the applicant was entitled to lodge her request even though that court’s judgment did not alter her legal status as unelected candidate. It also held that from the evidence submitted by S.B. to the Parliamentary Committee it could not be discerned whether she had the required professional experience and that therefore the applicant’s right to equal access to public service and her right to equal access to employment, guaranteed by Articles 44 and 54(2) of the Constitution, had been breached by the contested decision.
13. On 4 February 2009 S.B. lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Administrative Court’s judgment. At the same time she asked the Constitutional Court to order an interim measure that would postpone the effects of the contested judgment until that court had decided on her constitutional complaint. S.B. argued in her constitutional complaint that the impugned judgment of the Administrative Court had breached her right to equality before the law, the right to work and the right to equal access to employment guaranteed in Articles 14(2) and 54(1) and (2) of the Constitution (see paragraph 23 below), respectively. She also argued that the election of the Constitutional Court judges was a political rather than a legal issue. Therefore, Parliament’s decision of 9 May 2008 constituted a so-called act of State (akt vladanja) in respect of which the scope of constitutional review was limited to compliance with procedural rules (that is, to formal constitutionality) and was thus very narrow. In particular, she argued that the Administrative Court had not been authorised to assess whether the evidence she had submitted had been sufficient to prove that she had the required professional experience and to question the Parliamentary Committee’s findings in this respect.
14. On the same day, the Constitutional Court, sitting in a plenary session composed of ten judges (including judges M.J. and D.Š.), ordered an interim measure postponing the effects of the Administrative Court’s judgment of 15 October 2008. In so doing it held, inter alia, that:
“...the contested judgment [of the Administrative Court] requires detailed examination of the limits and scope of judicial review of decisions on appointment of State officials, ..., and in that sense, has a wider importance that goes beyond the limits of an individual case.”
The decision on the interim measure was published in Official Gazette no. 16/2009 of 5 February 2009 but has never been served on the applicant.
15. On 13 February 2009 the Constitutional Court served the constitutional complaint together with the request for an interim measure on the applicant.
16. On 18 February and 3 March 2009 S.B. supplemented her constitutional complaint, alleging a violation of her right to a fair hearing guaranteed by Article 29(1) of the Constitution. On 20 February and 5 March 2006, respectively, the Constitutional Court served the two supplements on the applicant.
17. On 7 March 2009 the applicant submitted her reply to S.B.’s constitutional complaint and two days later to its supplements of 18 February and 3 March 2009. She argued that because the election of the Constitutional Court judges was regulated by law, it was not a political but primarily a legal issue. Consequently, Parliament’s decision of 9 May 2008 was not an “act of State” and was therefore justiciable, that is, capable of being challenged in legal proceedings. In any event, section 66 of the Administrative Disputes Act entitled the Administrative Court to review any individual decision capable of violating constitutional rights, regardless of its nature or of whether it emanated from the legislative or the executive branch of government. As regards S.B.’s request for an interim measure, the applicant, after having remarked that the Constitutional Court had granted it on the same day the request had been made, argued that under section 67(2) the Constitutional Court Act such a measure could not postpone “the effects of a contested decision” but only its “enforcement” (see paragraph 25 below). Lastly, the applicant asked the Constitutional Court to “hold a public session (hearing)” and invite her to attend it (“održi javnu sjednicu (raspravu) na koju molim da me se pozove”).
18. During the proceedings, the Constitutional Court requested and obtained observations from the Parliamentary Committee, expert opinions from six law-faculty professors and two former judges of that court as well as opinions and information from the Croatian National Bank, the State Central Office for Administration, the Croatian Bar Association, the Ministry of Justice, the State Bureau of Statistics and a private bank Zagrebačka banka d.d.. The remaining nine law faculty professors from whom the Constitutional Court also requested expert opinions did not submit them. The attempt to obtain information from the Danish Red Cross failed because the NGO in question could not be found at the address indicated in the relevant register.
19. On 31 March 2009 the applicant wrote to the Constitutional Court asking it to serve her with “the expert opinions requested (from individuals and institutions)”, which she had found out about from the media.
20. On 30 April 2009 the Constitutional Court, sitting in a plenary formation of ten judges (including judges M.J. and D.Š.), held a session to which the applicant was not invited, and adopted a decision whereby it quashed the Administrative Court’s judgment of 15 October 2008. It held that the election of Constitutional Court judges was a hybrid (political and legal) issue and that, even though Parliament’s decision of 9 May 2008 was “an act of State”, the Administrative Court could have reviewed not only whether the prescribed procedure had been followed but also whether the candidates had satisfied the required statutory conditions. Nevertheless, the Administrative Court had overstepped the bounds of its jurisdiction when it had (re)assessed the evidentiary value of the documents S.B. had furnished as proof that she had possessed the required professional experience. By so doing the Administrative Court had not only encroached on matters within the exclusive jurisdiction of Parliament, but had also breached S.B.’s right to work and her right to equal access to employment guaranteed by Article 54(1) and (2) of the Constitution, as well as her right to equality before the law guaranteed by Article 14(2) of the Constitution.
21. On the same day, the President of the Constitutional Court and her Deputy held a press conference at which they announced that the Administrative Court’s judgment of 15 October 2008 had been quashed, that S.B. remained a judge of the Constitutional Court and that the case would not be remitted to the Administrative Court in order to “stop this agony”.
22. On 4 May 2009 the Constitutional Court served its decision, together with the opinions and information obtained during the proceedings, on the applicant. On 5 June 2009 the decision of the Constitutional Court was published in the Official Gazette (no. 65/2009).
23. 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:
“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other beliefs, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.”
“All nationals of the Republic of Croatia and foreigners shall be equal before the courts and other State or public authorities.”
“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.”
“Everyone shall have the right to work and enjoy freedom of work.
Everyone shall be free to choose his or her vocation and occupation, and every job or duty shall be accessible to everyone under equal conditions.”
“The Constitutional Court of the Republic of Croatia shall consist of thirteen judges elected among eminent lawyers, especially judges, State attorneys, advocates and university professors of law, by the Croatian Parliament for a term of eight years.
The Croatian Parliament’s Committee on the Constitution shall conduct proceedings related to candidatures for election to the Constitutional Court of the Republic of Croatia and propose candidates to the Croatian Parliament.
The Constitutional Court of the Republic of Croatia shall elect its President for a term of four years.”
24. 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 32 below) the Administrative Court quashed the decision of the National Judicial Council on the 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 to be a judge of a Municipal Court, the National Judicial Council had violated the other candidate’s constitutional right to equal access to public service guaranteed by Article 44 of the Constitution (see the preceding paragraph).
25. The relevant part 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:
Section 5
“(1) A Croatian national who is a bachelor of laws with at least fifteen years of experience in the legal profession, and who has become eminent in that profession by virtue of his or her academic or professional work or his or her public activities, may be elected as a judge of the Constitutional Court.
(2) A person who has obtained a doctoral degree in legal science and satisfies the other conditions referred to in paragraph 1 of this section may be elected as a judge of the Constitutional Court if he or she has at least twelve years of experience in the legal profession.”
“(1) The Croatian Parliament’s Committee on the Constitution (hereinafter: ‘the competent committee’) shall institute the procedure for electing judges of the Constitutional Court by publishing a call in the Official Gazette inviting judicial institutions, law faculties, the Bar Association, lawyers’ associations, political parties and other legal entities and individuals to nominate candidates for the election of one or more judges of the Constitutional Court (hereinafter: ‘the call’). An individual may also put himself or herself forward as a candidate.
(2) The call shall set down the conditions for electing a judge of the Constitutional Court set forth in the Constitution and this Constitutional Act, the time-limit for submission of a candidate’s nomination to the competent committee, and the enclosures to be delivered with the nomination.
(3) After the time-limit referred to in paragraph 2 of this section expires, the competent committee shall examine whether the candidates satisfy the conditions for being elected as judges of the Constitutional Court set forth in the Constitution and this Constitutional Act, and shall reject invalid candidatures.
(4) The competent committee shall hold a public interview with each candidate who satisfies the conditions for being elected as a judge of the Constitutional Court and shall, on the basis of information collected and the results of the interviews, compile a shortlist of candidates for judges of the Constitutional Court. The shortlist shall, as a rule, comprise more candidates than the number of judges ... who are to be elected.
(5) The competent committee shall submit to the Croatian Parliament, together with its proposal, the list of all candidates who satisfy the conditions for being elected as judges of the Constitutional Court. The proposal of the competent committee shall contain reasons showing why the committee gave a particular candidate priority over other candidates.
(6) Representatives in the Croatian Parliament shall vote individually for each proposed candidate.
(7) A candidate proposed for election to the Constitutional Court shall be considered to have been elected as a judge of the Constitutional Court if a majority of the total number of representatives in the Croatian Parliament have voted for him.”
“A judge of the Constitutional Court may not abstain from voting, unless he has participated in the enactment of a statute or subordinate legislation or the adoption of a decision upon which the Constitutional Court is required to rule.”
“Unless provided otherwise by this Constitutional Act, in the proceedings before it the Constitutional Court shall apply mutatis mutandis the provisions of the relevant procedural laws of the Republic of Croatia as subsidiary rules.”
“(1) The Constitutional Court may, in a [plenary] session, conclude to decide the merits [of a case] on the basis of a public hearing.
(2) A public hearing shall be scheduled by the President of the Constitutional Court.
(3) The participants in the proceedings and the representatives of State authorities, local government and associations, as well as [other] persons whose participation at the public hearing is required, shall be summoned to the public hearing.
(4) The failure of the summoned participants ... and other summoned persons to attend [the hearing] shall not prevent the Constitutional Court from continuing the proceedings and reaching a decision, if it considers that the conditions for doing so exist.
(5) In justified cases, the Constitutional Court may postpone the public hearing and schedule a new one.”
“(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 vested 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 rights’)...
(2) If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.
(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 exhausted only after a decision on these legal remedies has been given.”
“(1) The constitutional complaint, as a rule, does not prevent the application of the contested decision.
(2) The Constitutional Court may, at the request of the complainant, postpone the enforcement [of the contested decision] until it decided on the constitutional complaint, if the enforcement would cause the complainant a harm that would be difficult to repair, and the postponement is not contrary to the public interest nor would cause greater harm to anyone.”
“(1) A panel composed of six judges shall decide on a constitutional complaint.
(2) ...
(3) The panel may only decide unanimously and with all its members present.
(4) If the panel does not reach a unanimous decision, or if the panel considers that the issue [raised in] the constitutional complaint is of wider importance, the constitutional complaint shall be decided by the [plenary] session of the Constitutional Court.”
“The judge rapporteur shall:
- ...
- serve, if need be, a copy of the constitutional complaint to interested persons and invite them to respond to it,
...”
26. Section 72 provides that, if a constitutional complaint is successful, the Constitutional Court must quash the impugned decision and remit the case to the competent authority.
27. On 8 April 2011 the Constitutional Court for the first time in its history held a public hearing in the proceedings following an individual constitutional complaint. The complainant Mr. P.T., who had taught a denominational (Catholic) religious education course in a public school, had been dismissed from his job because the Catholic Church had revoked his canonical mandate of catechist after he had remarried. The President of the Constitutional Court explained a decision to hold a public hearing by saying that the Constitutional Court’s decision in that case “[went] beyond the limits of a particular case” and “[would] mark future relations with religious communities”.
28. The relevant provision of the Rules of the Constitutional Court (Poslovnik Ustavnog suda Republike Hrvatske, Official Gazette of the Republic of Croatia nos. 181/2003 and 30/2008 – “the Constitutional Court Rules”) reads as follows:
“(1) In the proceedings before the Constitutional Court ... a judge rapporteur is authorised to:
....
4. seek expert opinions on particular cases from jurisconsults of the Constitutional Court,
...”
29. The Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) in its relevant part provides as follows:
30. Section 34 reads as follows:
“The [Administrative Court] decides administrative disputes in closed session.
The [Administrative Court] may decide to hold an oral hearing on account of the complexity of the dispute or if it otherwise finds it useful for better clarification of the matter at issue.
For the same reasons a party may ask that an oral hearing be held.”
31. Section 60 provides that if the Administrative Disputes Act does not contain specific provisions on the procedure before the Administrative Court, the provisions of the Civil Procedure Act should apply mutatis mutandis.
32. 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, decision], and no other judicial protection is secured, shall be decided by the [Administrative Court], by applying mutatis mutandis the provisions of this Act.”
33. The relevant part 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) provides as follows:
“A judge ... shall be disqualified from exercising his functions:
1. if he or she himself or herself is a party...;
...
5. if, in the same case, he or she participated in the proceedings before a lower court or some other authority;
...
7. if other circumstances exist which cast doubt on his or her impartiality.”
34. The grounds enumerated in section 71 subparagraphs 1-6 are considered absolute grounds for withdrawal, in that the judge concerned is automatically disqualified from sitting.
35. Section 72(1) provides that, from the moment he or she becomes aware of an absolute ground disqualifying him from sitting, the judge must take no further part in the case and bring the circumstances which disqualify him or her from sitting to the immediate attention of the president of the court of which he or she is a member, whereupon the president designates another judge to hear the case.
36. Section 73(6) provides that the party has to make a request for withdrawal of a judge as soon as he or she learns of a reason for withdrawal and at the latest before the conclusion of the trial before the first-instance court, or, if there was no trial, before the decision is rendered.
37. Section 73(7) provides that the withdrawal of a judge of a higher court may be requested by the party in the legal remedy or in the reply to the legal remedy.
38. Section 74(1) reads as follows:
39. Section 75 reads as follows:
“When a single judge, the president of the panel, a member of the panel or the president of the court learns that his or her withdrawal has been requested, he shall immediately stop all work on the case, and, if the withdrawal was requested on the ground provided in section 71(1), subparagraph 7 of this Act, he or she may, until a the request is decided, undertake only those actions which entail the risk of a delay.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111347
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: COLON v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
TEXT: 1. The applicant, Mr Ferdinand Jozef Colon, is a Netherlands national born in 1947 who lives in Amsterdam. He was represented before the Court by Mr H.A. Sarolea, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond, of the Netherlands Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties and as apparent from documents available to the public, may be summarised as follows.
3. In response to a rise in violent crime in the city of Amsterdam the Burgomaster (Burgemeester) of that city gave an order designating certain areas as security risk areas (veiligheidsrisicogebieden). Relying on section 151b of the Municipalities Act (Gemeentewet), the Burgomaster designated most of the old centre of Amsterdam as a security risk area for a period of six months on 20 November 2002. By virtue of such a decision, a public prosecutor (Officier van Justitie) was empowered, in accordance with section 52(3) of the Arms and Ammunition Act (Wet Wapens en Munitie), to order that for a randomly selected period of twelve hours any persons present in the designated area might be subjected to a search for the presence of weapons. The process came to be known as “preventive searching” (preventief fouilleren).
4. The reasoning on which the order was based referred to statistics of incidents involving the use of weapons (shootings, knifings, robberies, fatal and non-fatal casualties) in each of the areas concerned. It was observed that such incidents occurred most often in the old centre of the city, especially around the Wallen (the red-light district), the central station and around the concentrations of restaurants, bars and places of entertainment.
5. By order of 26 June 2003 the Burgomaster designated the same area as a security risk area for another twelve months based on the fact that weapons were still being confiscated during searches and there had been insufficient decrease in the number of violent crimes.
6. On 19 February 2004 the applicant, while in the designated security risk area, was stopped by police acting on orders of the public prosecutor to conduct searches of every person present in the security risk area. The applicant refused to submit to a search. He was then arrested (aangehouden) and taken to a police station, where he refused to give a statement (verklaring).
7. On 27 January 2005 a single-judge chamber (politierechter) of the Amsterdam Regional Court (rechtbank) convicted the applicant of failing to obey a lawful order under article 184 of the Criminal Code (Wetboek van Strafrecht). He was sentenced to a fine of 150 euros (EUR).
8. The applicant lodged an appeal with the Amsterdam Court of Appeal (gerechtshof), which acquitted him of all charges on 23 September 2005. The Court of Appeal considered that section 151b of the Municipalities Act imposed stringent requirements with regard to the decision to designate an area as a security risk area, especially in the light of individuals’ freedom of movement and respect for the right to privacy. The Burgomaster’s decisions (including the one dated 26 June 2003) did not meet the requirements of section 151b as the Burgomaster had failed to give any reasons why the security risk area had to be designated for such lengthy periods and cover such a large area. Accordingly, the decisions were not in conformity with Articles 5 and 8 of the Convention either.
9. The Advocate General (Advocaat-Generaal) at the Amsterdam Court of Appeal lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad) against the judgment of the Court of Appeal.
10. After the applicant submitted his application to the Court, the Supreme Court, on 20 February 2007, granted the appeal lodged by the Advocate General. The Supreme Court held that in considering the validity of the designation order the criminal judge should follow the approach of administrative courts in the matter. On that basis, and quoting from a judgment of the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) of 9 November 2005 (Administrative Law Reports (AB Rechtspraak Bestuursrecht) 2006, no. 90), it found that the Burgomaster had a wide margin of appreciation (beoordelingsmarge) in assessing the need for any such order after consultation with the public prosecutor. It was for him or her to balance the interests involved, including public order and individual private life, against each other. The designation order should be limited in time and in area to what was necessary (noodzakelijk) to maintain public order. The Burgomaster’s choices had to be properly reasoned and proportionate to the interference with the private life of anyone present in the area concerned. The role of the criminal courts was limited to assessing the lawfulness and reasonableness of the Burgomaster’s decision.
11. Considering the case in this light, the Supreme Court held that the Court of Appeal had correctly considered that the Burgomaster’s decision of 26 June 2003 had to be read in conjunction with his original decision of 20 November 2002. Nevertheless, in finding that insufficient reasons had been given for the decision of 26 June 2003 the Court of Appeal had failed to take into account the extensive report which had formed the basis for the 20 November 2002 decision. The Supreme Court therefore quashed the judgment of the Court of Appeal and remitted the case to the Court of Appeal for re-hearing.
12. In a judgment of 12 December 2007, the Amsterdam Court of Appeal found that the Burgomaster had given sufficient reasons for his decision of 26 June 2003 by referring to the considerations contained in the original decision of 20 November 2002. The Court of Appeal further considered that any interference with the applicant’s rights under Article 8 of the Convention and Article 2 of Protocol No. 4 had taken place in the interests of the protection of public order and in accordance with the margin of appreciation awarded to States. For those reasons the Court of Appeal found the applicant guilty of failing to obey a lawful order, but imposed no sentence on him.
13. The applicant did not lodge an appeal on points of law against this judgment.
14. By decision of 24 June 2004 the Burgomaster again designated the same area as a security risk area for the next twelve months as weapons were still being confiscated even though the number of violent crimes had decreased significantly.
15. On 16 June 2005 the Burgomaster again designated the same area of the centre of Amsterdam as a security risk area, this time for a period of twenty-four months.
16. On 7 October 2005, the Burgomaster, taking into account the judgment of the Court of Appeal (see paragraph 8 above), issued a decision altering the original decision of 16 June 2005 by designating the same area as a security risk area for twelve months instead of the original twenty-four. The Burgomaster also set out more extensive reasons for his decision, including a breakdown of the decrease in weapon-related crimes following the introduction of preventive searching in the security risk areas. For Amsterdam city centre alone, it was noted that numbers of weapons-related incidents had dropped to 728 between 1 November 2002 and 1 July 2003, down from 773; between 1 July 2003 and 1 July 2004, from 728 to 640; between 1 July 2004 and 1 July 2005, from 640 to 500. In 95% of all preventive search operations until then at least one weapon had been found.
17. On 2 November 2005 the applicant lodged an objection (bezwaar) against the decision of the Burgomaster of 7 October 2005. The applicant submitted that the designated security risk area was too large and that there were insufficient reasons for including the different districts, considering the impact on people’s right to respect for their privacy and freedom of movement. The applicant further alleged that the percentages used by the Burgomaster to support his decision had been calculated in such a way as to make his policy seem more effective than it really was.
18. On 1 February 2006, whilst awaiting the outcome of his objection, the applicant also applied for a provisional measure (voorlopige voorziening) on the same grounds as his objection.
19. On 9 March 2006 the provisional-measures judge (voorzieningenrechter) of the Amsterdam Regional Court declared the applicant’s request inadmissible on the ground that the applicant did not appear to have a direct interest in the decision of the Burgomaster dated 7 October 2005 and that presumably the applicant’s objection would be declared inadmissible for the same reason.
20. On 1 June 2006 the Burgomaster declared the applicant’s objection inadmissible as the applicant could not be regarded as a person with a direct interest (belanghebbende) as required by article 1:2 of the General Administrative Law Act (Algemene wet bestuursrecht). The Burgomaster held that a person could only be said to have a direct interest if that interest was strictly personal, real and direct and could be identified objectively. According to the Burgomaster, the applicant neither lived in the security risk area nor had a paid job which required him to be in the area at regular set times. The fact that the applicant claimed to be engaged in volunteer work and paid social visits to friends in the designated area did not suffice to give him a direct interest.
21. The applicant did not appeal against this decision to the Regional Court; the reason he gives is that the designation order of 7 October 2005 was due to expire on 30 June 2006.
22. The municipality of Amsterdam commissioned the COT Institute for Safety and Crisis Management (COT Instituut voor Veiligheids- en Crisismanagement), a body based in The Hague, to produce a series of evaluation reports on preventive searches in the security risk areas. The Court has studied two of these, which contain data pertaining to the time of the events complained of.
23. On 11 May 2006 the COT Institute for Safety and Crisis Management published a report entitled “Evaluation of preventive body searches in Amsterdam: The current situation” (Evaluatie Preventief Fouilleren in Amsterdam: De stand van zaken). It covered the period between November 2002 and March 2006.
24. In Amsterdam city centre, between November 2002 and May 2003 one weapon had been found for every 28 persons searched. Between July 2003 and May 2004 one weapon had been found for every 37 persons searched; between July 2004 and June 2005, again, one weapon for every 37 persons searched; and between July 2005 and March 2006, one weapon for every 40 persons searched. In Amsterdam South-East, which has a far more modern and open layout than the old city centre, there were generally far fewer weapons found until the search operations were planned to cover times and places at which the risk of violent incidents was highest; the number of weapons found then rose to one per 28 persons searched. The report mentioned that the operations that had had the greatest effect in relation to the police manpower invested had lasted for five hours or less, which could be explained by the loss of the advantage of surprise as an operation dragged on for longer.
25. The number of incidents involving the use of weapons had dropped during this period. In Amsterdam city centre, between November 2002 and May 2003 there had been 747 such incidents; between July 2005 and March 2006, only 488, or 34.7% fewer. The number of muggings in this area dropped from 254 to 130, a reduction of 48.8%. In Amsterdam South-East, the number of weapons-related incidents had dropped by 29.4% in comparison of the same periods. Within the area of jurisdiction of the Amsterdam-Amstelland Police Force as a whole, the total decrease had been 14.3%; if the security risk areas were excluded, it had been 6.6%.
26. The evaluation report mentions the applicant’s case, which at the time the report was published was still pending before the Supreme Court.
27. The report recommended that random searches be continued in the same two areas, given their obvious effectiveness. It also made further proposals aimed at increasing efficiency.
28. In May 2007 the COT Institute for Safety and Crisis Management published a report entitled “Evaluation of preventive body searches in Amsterdam: Gains, incidents involving weapons and hot spots” (Evaluatie Preventief Fouilleren in Amsterdam: Opbrengsten, wapenincidenten en hot spots). It was noted that searches had become more efficient, which had allowed more persons to be searched within a given time. Between July 2006 and April 2007 one weapon had been found for every 52 persons searched in Amsterdam city centre; in Amsterdam South-East, the corresponding figure was one weapon for every 40 persons searched.
29. Numbers of weapons-related incidents had continued to decline. As compared to the period from April 2003 until March 2004, between April 2006 and March 2007 there were 35% fewer such incidents (565, down from 864); in Amsterdam South-East, 16.5% fewer (532, down from 591).
30. The frequency of weapons-related incidents had increased by 6.4% in Amsterdam outside the security risk areas; within the area of jurisdiction of the Amsterdam-Amstelland Police Force as a whole, there had been a reduction of 4.4%.
31. The report identified seven “hot spots” outside the existing security risk areas where incidents involving the use of weapons were frequent. In two of them the problem was so serious that preventive searches should be carried out there too.
32. By letter dated 27 May 2009 the applicant informed the Court that the same area had been designated as a security risk area for the seventh consecutive time.
33. Article 184 of the Criminal Code, in its relevant part, provides:
“1. Any person who intentionally fails to comply with an order or demand made in accordance with a statutory regulation by an official charged with supervisory powers or by an official responsible for the detection or investigation of criminal offences or duly authorised for this purpose, and any person who intentionally obstructs, hinders or thwarts any act carried out by such an official in the implementation of any statutory regulation, shall be liable to a term of imprisonment not exceeding three months or a second-category fine. ...”
34. Section 151b of the Municipalities Act provides:
“1. The local council (raad) may by municipal bye-law authorise the Burgomaster to designate an area, including buildings open to the public (and their grounds) situated therein, as a security risk area in the event of a public order disturbance caused by the presence of weapons, or if there is a serious fear of such a disturbance occurring. In a security risk area a public prosecutor may exercise the powers referred to in section 50, subsection 3, section 51, subsection 3 and section 52, subsection 3 of the Arms and Ammunition Act.
2. The Burgomaster shall not designate a security risk area without first consulting with the public prosecutor in the consultations referred to in section 14 of the 1993 Police Act (Politiewet 1993).
3. The designation of a security risk area is of a limited duration and covers a geographical area that is no greater than strictly necessary for maintaining public order.
4. The decision to designate a security risk area must be recorded in writing and state both the area to which it applies and its period of validity. If the situation is so urgent that the Burgomaster is unable to record the decision in writing in advance, he or she must both record the decision in writing and make it public as quickly as possible.
5. The Burgomaster shall notify the local council and the public prosecutor referred to in subsection 2 of the designation of a security risk area as quickly as possible.
6. As soon as the public order disturbance caused by the presence of weapons or the serious fear of such a disturbance occurring as referred to in subsection 1 has abated, the Burgomaster shall revoke the designation of the security risk area. Subsection 5 applies mutatis mutandis.”
35. Section 155 of the Municipalities Act, in its relevant part, provides:
“1. Any member of the council may put questions orally or in writing to the Burgomaster and Aldermen or the Burgomaster as the case may be (Een lid van de raad kan het college of de burgemeester mondeling of schriftelijk vragen stellen.) ...”
36. Section 155a of the Municipalities Act, in its relevant part, provides:
“1. The council may, at the proposal of one or more of its members, order an investigation into the administration carried out by the Burgomaster and Aldermen or the Burgomaster as the case may be (het door het college of de burgemeester gevoerde bestuur). ...”
37. Section 14 of the 1993 Police Act provides:
“The Burgomaster and the public prosecutor shall hold regular consultations with the head of the territorial unit of the regional police force within whose territory the municipality or part of it is located, and if necessary with the regional police force commander (korpschef), about the discharge by the police of their duties.”
38. Section 52(3) of the Arms and Ammunition Act provides:
“In areas that have been designated by the Burgomaster as security risk areas in accordance with section 151b, subsection 1 of the Municipalities Act, the public prosecutor may order that any individual can be subjected to a search of his clothing to establish whether he has firearms, ammunition or offensive weapons in his possession. The public prosecutor’s order shall describe the designated area and state the order’s period of validity, which may not exceed twelve hours. The order shall also explain the facts and circumstances that form the basis for concluding that it is necessary to exercise the power to subject any individual to a search of his clothing to establish whether he has weapons or ammunition in his possession.”
39. At the relevant time, the 1994 general municipal bye-law (Algemene Plaatselijke Verordening) of Amsterdam applied. Its section 2.5A provided:
“In the event of a public order disturbance caused by the presence of weapons, or if there is a serious fear of such a disturbance occurring, the Burgomaster may designate public highways and buildings (and their grounds) situated along them as a security risk area.”
40. According to section 8:1 of the General Administrative Law Act (Algemene Wet Bestuursrecht), anyone with a legal interest may challenge an administrative decision before the Regional Court, provided that he or she has first lodged an objection with the administrative body that has taken the decision in issue (section 7:1). A further appeal lies to the Administrative Jurisdiction Division of the Council of State (at the relevant time, section 37 of the Council of State Act (Wet op de Raad van State)).
41. The Supreme Court has held that a conviction under Article 184 § 1 of the Criminal Code is possible only if the order disobeyed by the accused was given by an official within the limits of his or her lawful authority (see its judgment of 11 December 1990, Netherlands Law Reports (Nederlandse Jurisprudentie) 1990, no. 423). From this it follows that the criminal court has a responsibility of its own to determine whether the statutory regulation on which the order is based is actually binding, and whether the order has been lawfully given; if the issue is raised by the defence, the criminal court must answer it, irrespective of whether or not the accused has first addressed these matters before the competent administrative tribunals (see the Supreme Court’s judgment of 24 September 2002, Netherlands Law Reports 2003, no. 80).
42. In a decision of 9 March 2005, Administrative Law Reports 2005, no. 251, the Administrative Jurisdiction Division of the Council of State dismissed an appeal lodged against the designation of much of the centre of the town of Den Helder as a security risk area on Friday and Saturday nights. Identifying the designation order as delegated legislation (besluit van algemene strekking), it held that persons wishing to contest such an order had to demonstrate an individual interest which sufficiently distinguished them from others. It noted that the appellant did not reside, or work, or carry on a business in that area; was not compelled for any other reason to remain there for any length of time; and had no rights to immovable property there either. In view of, in particular, the times at which the designation order was in force, the stated fact that the appellant had been a resident of Den Helder for many years; went out in the area concerned; and was wont to visit friends and family there was insufficient to distinguish her individual interest from that of others.
43. Moreover, no violation of Article 8 of the Convention or Article 2 of Protocol No. 4 to the Convention could be found since there was no certainty that the appellant would ever actually be searched, and since in any case there was no particular need for the appellant to be within the area concerned with any regularity; any interference with her rights was therefore so uncertain that it could not be considered a reasonably foreseeable consequence of the designation order. That being so, there was no “arguable claim” for the purposes of Article 13 of the Convention either.
44. In its above-mentioned decision of 9 November 2005 (Administrative Law Reports 2006, no. 90), the Administrative Jurisdiction Division allowed an appeal brought by the Burgomaster of Utrecht against the suspension of a designation order by the provisional measures judge (voorzieningenrechter) pending reconsideration of the order on its merits. It found that the Burgomaster had a wide margin of appreciation in assessing the need for any such order after consultation with the public prosecutor. It was for him or her to balance the interests involved, including public order against individual private life, against each other. The designation order should be limited in time and in area to what was necessary to maintain public order. The Burgomaster’s choices had to be properly reasoned and proportionate to the interference with the private life of anyone present in the area concerned.
45. In the particular case, these requirements had been met, given the frequency of incidents involving the use of firearms in the area and the number of weapons found during earlier searches. Although searches constituted an interference with the right to respect for “private life” within the meaning of Article 8 of the Convention, given the margin of appreciation of the domestic authorities the Burgomaster could reasonably consider such measures in pursuit of the interests of public safety and the prevention of disorder or crime to answer a “pressing social need” and to meet the requirement of proportionality.


ITEMID: 001-57804
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF COSTELLO-ROBERTS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 3;No violation of Art. 8;No violation of Art. 13
JUDGES: John Freeland
TEXT: 7. In September 1985 Mrs Costello-Roberts sent the applicant, who was then aged seven, to an independent boarding preparatory school in Barnstaple, Devon. The school had approximately 180 pupils, none of whose fees were paid out of public funds, and received no direct financial support from the Government.
8. In the school’s prospectus it was stated that a high standard of discipline was maintained, but no mention was made of the use of corporal punishment. Mrs Costello-Roberts had made no enquiry about the school’s disciplinary regime and did not at the outset make known her opposition to corporal punishment. The school in question operated a system whereby such punishment was administered upon acquisition of five demerit marks. On 3 October 1985 the applicant received his fifth demerit mark for talking in the corridor. The other demerit marks were for similar conduct and for being a little late for bed on one occasion. Having discussed the matter with his colleagues, the headmaster decided that the only answer to the applicant’s lack of discipline, about which he had received three warnings from the headmaster, was to give him three "whacks" on the bottom through his shorts with a rubber-soled gym shoe. He so informed the applicant on 8 October.
9. The punishment was administered by the headmaster three days later, eight days after Jeremy had received his fifth demerit mark. No other persons were present. Before the Strasbourg institutions it was alleged by the applicant’s counsel that he was told not to inform his parents about his punishment, but this was denied by the school. In any event, in a letter to his mother post-marked 21 October 1985, he wrote "come and picke me up I have had the wacke". He continued to write to her in some distress about the "slippering".
On 4 November 1985 the school confirmed to her that her son had been slippered; according to her - though this too was contested by the Government - the school had initially denied the fact.
On 5 November, Mrs Costello-Roberts wrote to the Governors of the school to express her "disquiet" and "grave concern" about the use of such a "barbaric practice". She acknowledged that the "growing problems" began after the first week of term and said that "we made it very clear to the staff ... that we considered his behaviour to be reflecting signs of an upset ...". The headmaster in his turn wrote to the Chairman of the Board of Governors on 7 November, stating that the applicant’s problems were due to a lack of discipline; he refused to accept authority and his behaviour was disrupting the life of the school community. Mrs Costello-Roberts also wrote to the headmaster to inform him that she did not want her son to be corporally punished. On 16 November 1985 he replied as follows:
"in view of your obvious dissatisfaction with the education being offered ... to your son ... and your desire for him to be exempt from the framework of discipline and punishment that is acceptable to all other parents at the school, it seems best if [he] is removed from [the school] at the end of the present term."
10. The applicant’s mother complained to the police some time between 4 and 16 November 1985, but was told that there was no action they could take without any visible bruising on the child’s buttocks. A complaint by her to the National Society for the Prevention of Cruelty to Children received a similar response.
11. The staff were said to have noticed an almost immediate improvement in the boy’s behaviour after the corporal punishment, but considered that the subsequent contact that he had had with his parents during the half-term holiday had caused him to revert. The headmaster was of the opinion that the applicant "strung his parents along", taking home stories about bullying and the like "which he has clearly made up but which equally clearly his parents believe".
It was argued in Strasbourg, on behalf of the applicant, that he had been extremely disturbed by the slippering, which turned him from a confident, outgoing seven-year-old into a nervous and unsociable child.
The Government contended that, according to their information, any change in the child’s character during his time at the school was more likely to have been caused by his inability to adjust to the constraints of boarding-school life than the "slippering". In their view, the above-mentioned correspondence between the mother, the school Governors and the headmaster reflected the boy’s adaptation difficulties.
12. The applicant left the Barnstaple school in November 1985 and entered a new school in January 1986. It reported in July 1986 that he had "calmed down considerably" since his arrival, when he had been unsociable, nervous and quite aggressive.
13. In English law, at the relevant time, there were various criminal offences of assault, the penalties for which differed according to the gravity of the offence and the court in which it was tried. The law has since been amended by the Criminal Justice Act 1988.
Prosecution for common assault, the least serious form of assault, was normally brought by or on behalf of the aggrieved party in accordance with section 42 of the Offences against the Person Act 1861, as amended ("the 1861 Act"). Section 45 of the 1861 Act barred any further or other proceedings, civil or criminal, for the same cause. Consequently, the Crown did not normally undertake a prosecution for common assault, thus ensuring that the choice between criminal and civil proceedings remained with the victim of the alleged assault.
In the Magistrates’ Court the maximum penalty for common assault was a fine of £400 or two months’ imprisonment. In cases of "aggravated" common assault, namely where committed upon a male child no more than fourteen years old or any female, the maximum penalty was a higher fine or six months’ imprisonment. In the Crown Court the maximum penalty on conviction increased to one year’s imprisonment.
Assault occasioning actual bodily harm, a more serious form of assault, was and still is governed, in particular, by section 47 of the 1861 Act. Prosecutions are normally undertaken by the Crown and the penalty on conviction is a maximum term of five years’ imprisonment.
In addition, it is an offence under section 1(1) of the Children and Young Persons Act 1933 to assault or ill-treat a child in a manner likely to cause him unnecessary suffering or injury to health. The maximum penalty on conviction is a fine or ten years’ imprisonment.
14. Under the civil law, if no criminal prosecution has been brought for common assault, physical assault is actionable as a form of trespass to the person, giving the aggrieved party the right to recovery of damages. Civil proceedings arising out of the use of immoderate or unreasonable corporal punishment by a teacher will lie either against him or his employer - i.e. the school or school authorities. Such proceedings for assault may be heard by County Courts as well as by the High Court, from both of which an appeal lies to the Court of Appeal.
15. Subject to the exceptions brought about as a result of a change in domestic law (see paragraph 16 below), it is a defence to both criminal charges and civil claims that the person against whom the charge or claim is made was a teacher administering reasonable and moderate physical punishment with a proper instrument in a decent manner. The teacher is said to have this right by virtue of being in loco parentis, exercising by deemed delegation a parental right to inflict such treatment upon children.
The law governing the administration of corporal punishment by schoolteachers is, therefore, based upon the right of parents to use physical punishment on their children. Both parents and teachers are protected by the law only when the punishment in a particular case is "reasonable" in the circumstances. The concept of "reasonableness" permits the courts to apply standards prevailing in contemporary society with regard to the physical punishment of children.
16. With effect from 15 August 1987 when sections 47-48 of the Education (No. 2) Act 1986 came into force - i.e. after the events giving rise to the present case - the above-mentioned defence ceased to be available to a teacher in civil proceedings for trespass in respect of certain pupils, namely those at schools maintained by local education authorities and certain other schools for which the State provides financial assistance, and those at independent schools (see paragraph 21 below) whose fees are paid out of public funds.
17. Under the Education Act 1944 parents have a duty, on pain of criminal sanctions, to educate their children. They have the choice between providing suitable education at home or using independent or State schools. The Secretary of State has a duty under the same Act to ensure certain educational standards.
18. An independent school (often referred to as a "private school") is one at which full-time education is provided for five or more pupils of compulsory school age not being a special school defined under section 114(1) of the Education Act 1944 as one specially organised to provide education for pupils with learning difficulties, or a school maintained by a local education authority.
Independent schools must apply for registration to the Registrar of Independent Schools, an officer of the Department of Education and Science. Registration is subject to the provision of suitable safety, health and educational standards.
The Government contended before the Convention institutions that it was clear from the provisions of sections 70-75 of the Education Act 1944 that the Secretary of State has no power to refuse to register an independent school on the ground that corporal punishment is administered there and that any refusal to register a school on this ground would be open to legal challenge by the school concerned.
19. Once registered, independent schools remain subject to periodic inspections and visits by Her Majesty’s Inspectors, but they are not subject to the same standards as State subsidised schools. Section 71(1) of the Education Act 1944 empowers the Secretary of State to initiate a complaints procedure which may result in an independent school being struck off the register.
Subject to the exceptions mentioned at paragraph 16 above, independent schools remain free to use corporal punishment as a disciplinary measure. According to the Government:
(a) whilst the use within the school of excessive corporal punishment (involving successful criminal prosecutions) might lead the Secretary of State to use his powers under section 71(1), the use of moderate and reasonable corporal punishment would not be a ground for serving a notice of complaint on the school or for withdrawing its registration;
(b) complaints of too frequent use of corporal punishment would be referred to Her Majesty’s Inspectors who could be expected to discuss with the school its disciplinary policy, but ultimately this would be a matter for the school to decide on, within the legal constraints, leaving individual parents who objected to the policy to select a different school for their children;
(c) none of the eleven notices of complaint issued in the past five years concerned the use of corporal punishment.
The applicant contended, on the other hand, that the procedure leading to striking off the register was initiated in respect of a school making substantial use of corporal punishment. Her Majesty’s Inspectors expressed concern, inter alia, with the corporal punishment system and recommended that the school review its practice.
20. Under the Children Act 1989 - not in force at the relevant time - independent schools which provide boarding accommodation for not more than fifty children (other than those approved under the Education Act 1981 as suitable for children with special educational needs) are required to register as children’s homes. Under the Children’s Homes Regulations 1991 the use of corporal punishment has been prohibited in such schools.
21. In England and Wales, the State funds directly three out of a total of 2,341 independent schools. Certain pupils in 295 independent schools receive financial support from public funds under the Assisted Places Scheme pursuant to section 17 of the Education Act 1980. In the year 1991-92, 28,303 pupils out of a total of some 550,000 took up assisted places. Local education authorities may pay for the education of pupils in their area at independent schools or assist with the fees of pupils in cases of hardship.
Independent schools have charitable status, which entitles them to the tax reliefs accorded to charities generally.
NON_VIOLATED_ARTICLES: 13
3
8


ITEMID: 001-88943
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: GLUKHIKH v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mr Valeriy Petrovich Glukhikh, is a Russian national who was born in 1953 and lives in Stepnoye, a village in the Kurgan region. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is a farmer. On an unspecified date the Ministry of Finance sued him in order to recover a debt under a loan agreement.
On 18 March 2003 the Commercial Court of the Kurgan Region (“the Commercial Court”) ruled against the plaintiff and in the applicant's favour. The judgment could be appealed against within one month from the date of its delivery. However, no appeal was lodged within this time-limit by the Ministry of Finance.
On 6 June 2003 the Commercial Court, however, granted the plaintiff's request for the extension of the time-limit for lodging an appeal and scheduled the appeal hearing for 1 July 2003.
On 1 July 2003 the Appeals Division of the Commercial Court adjourned the examination of the case. It noted that the applicant did not appear and that he had been duly informed of the hearing by a letter of 17 June 2003.
On 14 August 2003 the Appeals Division of the Commercial Court, after having noted that the applicant had been duly informed of the hearing and had failed to appear, granted the appeal by the Ministry of Finance and recovered from the applicant the amount of the loan and legal costs. That decision acquired legal force on the same date. It also stated that an appeal could be lodged against it to the Federal Commercial Court of the Uralskiy Circuit within two months.
On 19 August 2003 the Commercial Court issued a writ of execution.
On 1 December 2003 a bailiff instituted enforcement proceedings.
According to the applicant, he learnt that the appeal had been lodged and that an appeal hearing had taken place in August 2003 from the bailiff's decision of 1 December 2003 to institute the enforcement proceedings. He did not indicate the exact date when he had received that decision.
On 16 December 2003 the bailiff summoned him to his office.
The applicant alleged that he had been notified neither of the appeal having been lodged, nor of the date of the appeal hearing. He had not been provided with a copy of the appeal decision either. The applicant did not apply for leave to lodge a cassation appeal out of time.
The applicant submitted that he had informed the Commercial Court of the Kurgan Region that he intended to apply to the Court and needed to make copies of certain documents from the case file for this purpose. He alleged, that when he had arrived at the Commercial Court of the Kurgan Region he had not been allowed to enter.
The Code of Commercial Procedure of the Russian Federation of 24 July 2002 provides, in its relevant parts as follows:
Parties to the proceedings may appeal against the decisions of the Appeals Division of the Commercial Court to the Cassation Division of the Commercial Court (Article 273).
A cassation appeal may be lodged within two months from the date of the entry into force of the contested decision. At a request by a party to the proceedings, the Cassation Division of the Commercial Court may extend the time-limit for lodging a cassation appeal if such a request is lodged within six months from the date of entry into force of the contested decision and if the court finds that the time-limit has not been met for valid reasons (Article 276).
The Cassation Division of the Commercial Court verifies the lawfulness of decisions and judgments adopted by the Appeals Division, by establishing whether substantive and procedural law has been applied properly during the examination of the case and by having regard to the arguments of cassation appeal (Article 286).
After having examined the cassation appeal, the Cassation Division of the Commercial Court may quash the contested decision and remit the case to the court which adopted that decision for a new examination in the case of that court having violated procedural laws (Article 287).
The examination of the case in the absence of a party to the proceedings who was not duly informed of the hearing is a ground for the Cassation Division of the Commercial Court to quash the contested decision (Article 288).


ITEMID: 001-79055
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: AKYUZ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Kemal Akyüz, is a Turkish national who was born in 1974 and lives in Bursa. He was represented before the Court by Mr K.T. Sürek, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 February 1994 the applicant was arrested by police officers from the anti-terror branch of the Samsun Security Directorate. On the same day he was detained on remand.
On 25 March 1994 the public prosecutor at the Ankara State Security Court filed a bill of indictment charging the applicant with membership of an illegal organisation, the DHKP-C, contrary to Article 168 § 2 of the Criminal Code.
On 7 December 1997 the Ankara State Security Court convicted the applicant, who was represented by four lawyers during the proceedings, as charged and sentenced him to fifteen years’ imprisonment.
On 2 December 1998 one of the applicant’s lawyers filed an appeal with the Court of Cassation against the judgment of 7 December 1997.
On 27 April 1999 the Court of Cassation upheld the first-instance court’s judgment.
On 20 May 1999 the Court of Cassation’s decision was deposited with the registry of the Ankara State Security Court.
On 1 September 1999 the committal order (müddetname) concerning the execution of his sentence was served on the applicant.


ITEMID: 001-104145
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF POTOMSKA AND POTOMSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Just satisfaction reserved
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicants were born in 1937 and 1939 and live in Darłowo. They are a married couple.
6. On 25 November 1970 the Board of the Sławno District National Council (Prezydium Powiatowej Rady Narodowej) informed the Board of the Darłowo Municipal National Council (Prezydium Gromadzkiej Rady Narodowej) that pursuant to the decision of the Minister of Municipal Economy (Minister Gospodarki Komunalnej) of 25 September 1970 a cemetery located in Rusko was to be closed. The closure was to be carried out on the basis of the 1959 Cemeteries Act.
7. On 12 September 1973 the Sławno District National Council issued a preliminary decision in which the applicants were informed of the conditions subject to which they could build a house on plot no. 59 located in Darłowo Municipality, Rusko settlement.
8. On 15 March 1974 the Head of Darłowo Municipality (Naczelnik Gminy) issued a decision in which he named Mr Potomski as the buyer of plot no. 59, owned by the State Land Fund (Państwowy Zasób Ziemi).
9. On 14 November 1974 the applicants bought from the State a plot of land with a surface area of 12 acres. The plot, no. 59, was classified as farming land. The applicants intended to build a house and a workshop on it.
10. On 4 May 1987 the Koszalin Regional Inspector of Historic Monuments (Wojewódzki Konserwator Zabytków) issued a decision adding the applicants’ property to the register of historic monuments (rejestr zabytków) on the grounds that a Jewish cemetery had been established on it at the beginning of the nineteenth century. It was one of the few remnants of the former Jewish culture in the region. The Inspector found that the layout of the cemetery was discernible and that certain parts of the cemetery were intact (the foundations of a house of prayer, a stone wall and some gravestones). The applicants were advised as to the scope of their obligations deriving from the 1962 Protection of the Cultural Heritage and Museums Act (ustawa o ochronie dóbr kultury i o muzeach). They were prohibited from developing their property unless they obtained a permit from the Regional Inspector of Historic Monuments. The applicants did not appeal against the decision.
11. On 30 May 1988 the applicants requested the Governor of Koszalin to offer them an alternative plot of land on which they could construct a house. On 15 June 1988 the Koszalin Regional Inspector of Historic Monuments requested the Mayor of Darłowo to grant the applicants’ request. On 5 July 1988 the Mayor of Darłowo informed the applicants that the exchange of plots requested by them would be possible only in the event of the Mayor receiving a subsidy from the Governor of Koszalin.
12. On 30 September 1988 Darłowo Municipality adopted a local development plan. The plan provided that the applicants could build a house on their property (zabudowa zagrodowa).
13. On 28 January 1991 the Mayor of Darłowo (Burmistrz) requested the Koszalin Governor’s Office to expropriate the applicants’ plot. On 12 March 1991 the Koszalin Governor’s Office transmitted that request to the Koszalin District Office (Urząd Rejonowy) as the competent authority in the matter.
14. On 4 May 1992 the Governor of Koszalin requested the Koszalin Regional Inspector of Historic Monuments to apply to the Head of the Koszalin District Office (Kierownik Urzędu Rejonowego) to institute expropriation proceedings pursuant to section 46(2)(2) of the 1985 Land Administration and Expropriation Act. The Governor considered that expropriation and payment of compensation would enable the applicants to buy another plot for the construction of their house.
15. On 14 May 1992 the Regional Inspector requested the Head of the Koszalin District Office to institute expropriation proceedings in respect of the applicants’ property. On 14 August 1992 the Head of the District Office decided to discontinue the proceedings, finding that no entity was interested in purchasing the cemetery. The Head of the District Office further found that the applicants, who had been aware in 1974 that they were purchasing a Jewish cemetery, were obliged to protect the site until they could find an entity interested in its purchase. The applicants appealed and requested that the issue be resolved. They stated that they were not interested in the maintenance and protection of the site.
16. On 2 October 1992 the Governor of Koszalin quashed the decision and remitted the case. He held that the lower authority had to examine a number of issues, in particular whether the property could be expropriated following negotiations with the applicants. No information was provided to the Court about the follow-up to that decision.
17. On 13 February 1995 the applicants requested the Head of the Koszalin District Office to provide Darłowo Municipality with an alternative plot of land which could then be offered to the applicants. On 7 March 1995 the Koszalin District Office replied that it did not have any such plots. On 25 April 1995 the Head of the District Office informed the applicants that it did not have any plot which could be the subject of an exchange. He further advised them to lodge a request with the Mayor of Darłowo.
18. On an unspecified date in 2000 the applicants wrote to the Minister of Culture and National Heritage about the problem with their property. Their letter was dealt with by the National Inspector of Historic Monuments.
19. On 1 August 2000 the National Inspector informed the applicants that the Sławno District Office (starostwo powiatowe) was the competent authority to deal with the matter. Furthermore, the Regional Inspector of Historic Monuments could request the Sławno District Office to commence expropriation proceedings under sections 33 and 34(1) of the Protection of the Cultural Heritage Act. They were informed that section 33 of that Act provided that a monument of particular historic, scientific or artistic value could be acquired by the State if the public interest so required. The National Inspector informed the applicants that the former Jewish cemetery in Rusko belonged to that category of monuments, being one of the few remnants of Jewish culture in the Middle Pomerania Region. The applicants were advised to contact the Sławno District Office as the representative of the State Treasury, whose duty it was to resolve their problem.
20. On 17 October 2000 Darłowo Municipality informed the applicants that there was no legal basis for the municipality to acquire their plot or to offer them another plot in exchange. They were further informed that they could request the Mayor of Sławno District (Starosta powiatu) to expropriate their land pursuant to the Protection of the Cultural Heritage Act. A request could also have been submitted by the Regional Inspector.
21. On 26 January 2001 the Koszalin Regional Inspector of Historic Monuments requested the Mayor of Sławno District to initiate expropriation proceedings. The Regional Inspector stated that in 1974 the applicants had bought the property as a construction plot. Subsequently, following the 1987 listing decision, the applicants had been prevented from developing their land in any manner. The Regional Inspector expressed the opinion that the expropriation of the plot and its ensuing transfer to the Jewish community would be consistent with the provisions of the 1997 Act on Relations between the State and the Jewish Community (ustawa o stosunku Państwa do gmin wyznaniowych żydowskich) and the policy concerning the Jewish monuments agreed between Poland and Israel.
22. On 23 September 2002 the applicants informed the Mayor of Darłowo that they would be prepared to exchange their plot for a plot situated in Bobolin or Dąbki.
23. On 24 March 2003 Darłowo Municipality requested the Sławno District Office to provide it with a plot of land which would in turn enable the municipality to arrange for an exchange of plots with the applicants.
24. On 19 May 2003 the Sławno District Office informed the Mayor of Darłowo that the State Treasury’s Property Resources did not have plots situated in Bobolin suitable for such an exchange. However, there was one plot in Dąbki that could be exchanged. By a letter of 14 July 2003 the Mayor of Darłowo informed the Sławno District Office that Mr Potomski had refused to exchange his plot for the plot situated in Dąbki. He further requested the District Office to initiate expropriation proceedings with a view to resolving the issue of the applicants’ plot.
25. On 7 August 2003 the Mayor of Darłowo again requested the Sławno District Office to commence expropriation proceedings with a view to resolving the applicants’ case. It reminded the District Office that in accordance with section 6 of the 1997 Land Administration Act the protection of properties classified as part of the cultural heritage was in the public interest. The Mayor also noted that the 1987 decision unambiguously excluded any development of the applicants’ plot.
26. On 14 August 2003 the Sławno District Office informed the applicants of the possibility of exchanging their plot of land for a plot situated in Rusko, the village where they lived. The proposed plot was designated in the local development plan for housing and services. They were further informed that in the event of a refusal on their part the only solution would be the institution of expropriation proceedings at the request of the Regional Inspector of Historic Monuments. However, that procedure could be set in motion only if the Inspector had secured a subsidy from the Governor for the purpose. Accordingly, the applicants were informed that it was not possible to specify when their case might be finally resolved.
27. By a letter of 22 August 2003 the applicants refused the exchange, stating that the proposed plot did not satisfy their expectations. They expressed their preference for expropriation.
28. On 30 September 2003 the Mayor of Sławno District informed the Regional Inspector that the negotiations concerning the exchange of plots had failed. In his view, the only solution to the problem consisted in expropriation of the applicants’ property in accordance with the Land Administration Act 1997, and having regard to its section 6(5). Under the 1962 Protection of the Cultural Heritage Act the expropriation could be requested by the regional inspector or the district Mayor. However, the district Mayor did not have the necessary funds to pay compensation in the event of expropriation. Consequently, he informed the Regional Inspector that he could institute the expropriation proceedings only once the Inspector had secured an amount corresponding to the appropriate level of compensation.
29. On an unspecified date the Union of Jewish Communities in Poland (Związek Gmin Wyznaniowych Żydowskich w RP) requested the Regulatory Commission (Komisja Regulacyjna ds. Gmin wyznaniowych żydowskich) to transfer ownership of the property owned by the applicants to it on the grounds that the land had formerly been used as a Jewish cemetery. On 30 March 2005 the Commission discontinued the proceedings concerning that application as the property in question had been owned by private individuals (the applicants).
30. In April 2005 the Governor of the Zachodniopomorski Region (Wojewoda Zachodniopomorski) informed the Mayor of Sławno District that it would not be possible to grant a subsidy with a view to purchasing the applicants’ property. On 14 October 2005 the Mayor of Sławno District apprised the applicants of that decision. He informed them that there was no possibility as matters stood of resolving the issue of their property.
31. Poland signed this Convention on 18 March 2010 but has not yet ratified it. The relevant parts of the Convention provide:
“Each Party undertakes:
1. to take statutory measures to protect the architectural heritage;
2. within the framework of such measures and by means specific to each State or region, to make provision for the protection of monuments, groups of buildings and sites.”
“Each Party undertakes:
...
2. to prevent the disfigurement, dilapidation or demolition of protected properties. To this end, each Party undertakes to introduce, if it has not already done so, legislation which:
...
(d) allows compulsory purchase of a protected property.”
32. At the material time issues relating to protection of the country’s heritage were regulated by the Protection of the Cultural Heritage Act of 15 February 1962 (Ustawa o ochronie dóbr kultury – “the Protection of the Cultural Heritage Act”). A decision on listing a real property in the register of historic monuments was taken, in principle, by the Regional Inspector of Historic Monuments (section 14(1)). Following such a decision no work could be carried out on the historic monument unless a permit was granted by the regional inspector (section 21). Section 25 of the Act imposed various obligations on the owners of listed monuments; in particular a duty to protect them against any damage.
Section 33 provides, in so far as relevant:
“...ownership of a monument of particular historic, scientific or artistic value may be acquired by the State with a view to making it accessible to the general public where the public interest so requires.”
Section 34 provided that the acquisition of ownership took place at the request of the district Mayor or the regional inspector, in accordance with the Land Administration Act 1997.
33. On 17 November 2003 the Protection of the Cultural Heritage Act was repealed and the Protection and Conservation of Monuments Act of 23 July 2003 (Ustawa o ochronie zabytków i opiece nad zabytkami) came into force. In contrast to the former Act, section 50(4) of the Protection and Conservation of Monuments Act provides that immovable monuments may be expropriated at the request of a regional inspector only where there is a risk of irreversible damage to the monument.
34. From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and the municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (“the Land Administration Act 1985”).
On 1 January 1998 the Land Administration Act 1985 was repealed and the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the Land Administration Act 1997”) came into force.
Section 6(5) of the Act, which was introduced by the Protection and Conservation of Monuments Act, stipulates that the protection of real properties classified as monuments within the meaning of the Protection of the Cultural Heritage Act is a public-interest aim.
Under section 112 of that Act, expropriation consists in taking away, by virtue of an administrative decision, ownership or other rights in rem. Expropriation can be carried out where public-interest aims cannot be achieved without restriction of those rights and where it is impossible to acquire those rights by way of a civil-law contract. Section 113(1) stipulates that expropriation can only be carried out for the benefit of the State Treasury or the local municipality.
Section 114(1) of the Act provides that the institution of expropriation proceedings is to be preceded by negotiations on acquisition of the property under a civil-law contract between the State, represented by the district Mayor, and the owner. In the framework of those negotiations the State may propose an alternative property to the owner.
Section 115(1) of the Act stipulates that expropriation proceedings for the benefit of the State Treasury are to be instituted of the latter’s own motion. The expropriation proceedings for the benefit of the local municipality are instituted at the request of the latter. Only where the request is submitted by the local municipality does refusal take the form of an administrative decision (decyzja; section 115(4)).


ITEMID: 001-79405
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: FEDOSOV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Loukis Loucaides
TEXT: The applicant, Mr Aleksandr Ivanovich Fedosov, is a Russian national who was born in 1958 and lives in Chelyabinsk. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1999 the police arrested Mr Mikhalevskiy and Mr Shcherbakov on suspicion of having robbed Mr Gichka. They testified that the applicant had been an accomplice to that robbery.
On 21 August 1999 the applicant was arrested. According to the applicant, the arresting officers did not explain what the reasons for his arrest were and did not inform him about the statutory rights of an accused. During the first few interviews the applicant refused to answer investigator’s questions relying on his right not to incriminate himself.
On 24 August 1999 the Chelyabinsk Regional prosecutor’s office authorised the applicant’s detention on remand. The detention order indicated that he was accused of having been an accomplice to a robbery.
The case was referred for trial to the Chelyabinsk Regional Court. The trial court, composed of Ms Kalenova, the presiding judge, Mr Tumkin and Ms Lopayeva, lay assessors, examined documentary evidence, statements by several witnesses and by the applicant’s co-defendants. On 17 July 2001 the Chelyabinsk Regional Court found the applicant guilty as charged and sentenced him to ten years’ imprisonment.
The local television company recorded the pronouncement of the judgment of 17 July 2001 and made a programme about the criminal proceedings against the applicant. On 18 July 2001 the programme was shown on television. A reporter allegedly made defamatory comments concerning the applicant.
On 5 September 2001 the applicant filed an appeal against the judgment of 17 July 2001. He challenged, inter alia, the composition of the bench that had given the said judgment. Whilst the Federal Law on the Lay Assessors of the Federal Courts of General Jurisdiction allowed lay assessors to be called once a year for a maximum period of fourteen days, or for as long as a specific case lasted, the assessors Ms Lopayeva and Mr Tumkin had been engaged earlier in the course of 2000 and 2001 in at least two other trials.
On 13 May 2002 the Supreme Court of the Russian Federation dismissed the appeal and upheld the applicant’s conviction. The Supreme Court noted that “the complaints of the co-defendants about unlawful composition of the bench were unfounded”.
On 9 July 2005 a deputy Prosecutor General of the Russian Federation lodged an application before the Presidium of the Supreme Court of the Russian Federation, seeking revision of the judgments of 17 July 2001 and 13 May 2002, by way of a supervisory review. The deputy Prosecutor argued that the trial court which had heard the applicant’s case had been composed in violation of the Federal Law on the Lay Assessors because the lay assessors, Ms Lopatyeva and Mr Tumkin, had participated in two criminal cases in 2001.
On 28 September 2005 the Presidium of the Supreme Court of the Russian Federation accepted the application for a supervisory review, quashed the judgments of 17 July 2001 and 13 May 2002 and remitted the case for a fresh examination. In particular, the Presidium held as follows:
“According to paragraphs 2 and 3 of Article 9 of the Federal Law on Lay Assessors... ‘lay assessors are called once a year to perform their duties in a regional court for as long as a particular case lasts’.
However, that requirement of the law had not been taken into account when the trial court which examined the criminal case against Mr Fedosov... had been set up.
As it appears from the case-file, the judgment of the Chelyabinsk Regional Court of 17 July 2001 against Mr Fedosov was taken by the trial court composed of the presiding judge and two lay assessors, Mr Tumkin and Ms Lopayeva.
According to a copy of the judgment of the Chelyabinsk Regional Court of 22 March 2001,... in 2001 the same lay assessors were engaged in the examination of another criminal case against Mr Petrukhin and Mr Sazhin, which was pending between 21 February and 22 March 2001.
Therefore the lay assessors, Mr Tumkin and Ms Lopayeva, were engaged in examination of the criminal case against Mr Fedosov... in violation of the abovementioned law, and under Article 381 of the Russian Code on Criminal Procedure that fact serves as a ground for quashing of the judgment because it was issued by the unlawfully composed court.”
The Presidium also held that the applicant should remain in custody pending the new examination of his case.
On 2 May 2006 the Troitsk Town Court of the Chelyabinsk Region, composed of one professional judge, re-examined the applicant’s case, found him guilty of aggravated extortion and robbery and sentenced him to six years, eight months and ten days’ imprisonment. The Town Court based its judgment on statements by the victims and witnesses, confessions by the applicant’s co-defendants given in open court and documentary evidence. The judgment of 2 May 2006 was not appealed against and became final on 13 May 2006.
The applicant was released on 2 May 2006 because he had served his sentence.
For the summary of relevant domestic law provisions concerning appointment of lay assessors see Posokhov v. Russia, no. 63486/00, ECHR 2003IV, § 28, and Fedotova v. Russia (dec.), no. 73225/01, 1 April 2004.