ITEMID: 001-67106
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: LOEWENGUTH v. FRANCE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant [Mr Yves Loewenguth] is a French national and was born in 1943. He is currently in prison. He was represented before the Court by Mr L. Hintermann, a lawyer practising in Thonon-les-Bains (France).
In a judgment of 31 March 1998, the Haute-Savoie Assize Court found the applicant guilty of aggravated rape. It sentenced him to fifteen years' imprisonment and suspended his civic, civil and family rights for ten years.
On 18 November 1998 the Criminal Division of the Court of Cassation dismissed an appeal by the applicant in a judgment in which it held:
“No ground of appeal has been made out in support of the appeal, the procedure was correctly followed and the sentence lawfully imposed for what both the court and the jury had found were repeated acts.”
The applicant maintained that it was the negligence of the lawyer representing him that was to blame for the failure to lodge grounds of appeal with the Court of Cassation.
Relying on Article 6 of the Convention, the applicant complained that the criminal proceedings instituted against him had been unfair. He complained in particular of the investigating judge's refusal to order a second expert-witness report and to hear certain defence witnesses and of being hindered in the preparation of his defence by the fact that during the investigation the authorities claimed 3 French francs (FRF) per page from him for a copy of his case file.
Relying on Article 2 of Protocol No. 7, he complained also that he did not have a right of appeal on the facts since the only remedy against judgments of the Assize Court was by way of an appeal on points of law.
1. The applicant complained that the criminal proceedings instituted against him had been unfair. He complained in particular of the investigating judge's refusal to order a second expert-witness report and to hear certain defence witnesses and of being hindered in the preparation of his defence by the fact that during the investigation the authorities claimed FRF 3 per page from him for a copy of his case file. He relied on Article 6 of the Convention, which provides:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence;
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
The Court notes that neither the case file nor the applicant's submissions indicate that he appealed to the Court of Cassation against the committal order on the ground that the investigation was unfair. The Court further notes the ground on which the Court of Cassation dismissed the applicant's appeal against the judgment of the Assize Court and reiterates that it is all the more difficult for the applicant to pray in aid the negligence of the lawyer who represented him before the domestic courts as he does not allege and there is nothing in the file to suggest that his counsel was appointed under the legal-aid scheme (see M.R. v. Portugal, application no. 14718/89, Commission decision of 14 February 1992, unreported). The Court therefore finds that the applicant has not exhausted domestic remedies as he is required to do by Article 35 § 1 of the Convention.
In addition, the Court notes that the applicant does not assert that ultimately he did not receive satisfactory communication of the evidence in the file before the trial at the Assize Court; nor does the transcript of the trial indicate that the Assize Court dismissed any application by the applicant to call witnesses.
Consequently, this part of the application must be dismissed pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
2. The applicant also complained that he did not have a right of appeal on the facts since the only remedy against judgments of the Assize Court was by way of an appeal on points of law. He relied on Article 2 of Protocol no. 7, which reads as follows:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
The Court notes that the applicant was found guilty of offences of aggravated rape and sentenced to fifteen years' imprisonment by the Haute-Savoie Assize Court in a judgment of 31 March 1998. It notes that he was unable to appeal against the “merits” of that judgment, since the only remedy available under French law against judgments of the Assize Court is an appeal to the Court of Cassation, which may only re-examine the case on issues of law.
The Court reiterates, however, that under the wording of Article 2 of Protocol No. 7 the Contracting States retain the power to decide how the right to re-examine shall be exercised and may limit its extent. In a number of States, re-examination is thus restricted to questions of law (see Pesti and Frodl v. Austria (dec.), nos. 27618/95 and 27619/95, ECHR 2000-I). That was also the position taken by the Commission (see Nielsen v. Denmark, application no. 19028/91, Commission decision of 9 September 1992, Decisions and Reports 73, p. 239; N.W. v. Luxembourg, application no. 19715/92, Commission decision of 8 December 1992, unreported; Altieri v. France, Cyprus and Switzerland, application no. 28140/95, Commission decision of 15 May 1996, unreported; and Saussier v. France, application no. 35884/97, Commission decision of 20 May 1998, unreported).
The Court accordingly holds that the fact that the applicant was able to appeal on points of law against the judgment of 31 March 1998 satisfied the requirements of Article 2 of Protocol No. 7 to the Convention.
Consequently, this part of the application is manifestly ill-founded and must be dismissed pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.


ITEMID: 001-87352
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF MATVEYEV v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (ratione materiae)
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 6. The applicant, Mr. Sergey Matveyev, is a Russian national who was born in 1949 and lives in Arkhangelsk.
7. In the 1980s the applicant and his spouse, Mrs Matveyeva, organised short-wave radio broadcasts from their home.
8. On 1 May 1981 their broadcasting was terminated by the authorities. A number of searches were conducted in their flat.
9. On 12 May 1981 criminal proceedings were instituted against Mr Matveyev.
10. On 11 August 1981 the Lomonosovskiy District Court of the Arkhangelsk Region convicted Mr Matveyev of forgery of a postal stamp and of having used it to send personal correspondence free of charge, and sentenced him to two years’ imprisonment. The District Court held, in particular:
“The court finds untenable the argument of the accused [Mr] Matveyev that the postal stamp he took from the radio-technical school ... could not be used for sending correspondence free of charge [since it] was invalid according to Price List no. 125 “Postal Rates and Services”, adopted by the USSR Ministry of Communication and to Decree of the State Committee on Pricing no. 517 of 25 June 1980 [in force from] 1 October 1980 [Прейскурант № 125 «Тарифы и услуги связи», утвержденный Министерством связи СССР введенный в действие с 1 октября 1980 г. и Постановление Госкомцен СССР от 25 июля 1980 г. № 517].
At the time of theft of [the] postal stamp and the subsequent sending of letters with [the use of] the stamp [Mr] Matveyev did not know about the above-mentioned documents and his intent was directed at sending his [personal] correspondence free of charge, [which he did] repeatedly as corroborated by the ... evidence.”
11. On 25 September 1981 the Arkhangelsk Regional Court upheld the judgment. The applicant served the sentence and was dismissed from his job with a State enterprise.
12. On 6 October 1999, in supervisory review proceedings, the Presidium of the Arkhangelsk Regional Court reversed Mr Matveyev’s conviction for forgery of a stamp, finding that it had been wrongful as there was no indication that a crime had been committed. The Presidium held:
“The letter of the Head [of the Arkhangelsk postal service] of 10 July 1981 contained in the case file makes clear that the stamp “To be sent free of charge” was used by the postal enterprises for correspondence between radio associations until 1980. [After] the entry into force on 1 October 1980 of Price List no. 125 “Postal Rates and Services”, correspondence free of charge between short-wave radio broadcasters was permitted only on the basis of postal receipt cards... [T]herefore, the stamp was no longer valid.
Having regard to the fact that ... the stamp [could not be used to obtain profit unlawfully], the criminal case should be closed.”
13. In 2001 Mr Matveyev brought proceedings seeking compensation for non-pecuniary damage sustained as a result of his wrongful conviction.
14. On 20 December 2001 the Lomonosovskiy District Court of Arkhangelsk dismissed the claim on the ground that at the time of the conviction there had been no provision in domestic law for claiming such damages.
15. On 21 January 2002 the Arkhangelsk Regional Court upheld the judgment on appeal.
16. On an unspecified date the applicant applied for the proceedings to be reopened on account of newly discovered evidence.
17. On 24 December 2002 the Lomonosovskiy District Court of Arkhangelsk dismissed the application.
18. On an unspecified date the applicant applied for supervisory review of the judgment of 20 December 2001 and the ruling of 24 December 2002.
19. On 4 and 17 February 2004 respectively the Arkhangelsk Regional Court dismissed the applications.
20. Following the delivery of the ruling of 6 October 1999 Mr Matveyev brought proceedings seeking compensation for pecuniary damage sustained as a result of his wrongful conviction within the framework of criminal proceedings.
21. On 27 September 2000 the Lomonosovskiy District Court of Arkhangelsk granted the claim and awarded damages in the amount of 531,269.73 Russian roubles (RUB) and costs in the amount of RUB 1,214.98. On an unspecified date the Chairman of the Arkhangelsk Regional Court lodged an application for supervisory review of the judgment.
22. On 7 February 2001 the Presidium of the Arkhangelsk Regional Court quashed the judgment of 27 September 2000 and remitted the case for a fresh examination by a different bench.
23. On 7 March 2001 the Lomonosovskiy District Court of Arkhangelsk reclassified the proceedings as civil proceedings. On 13 April 2001 the Arkhangelsk Regional Court quashed the ruling of 7 March 2001 and remitted the case for a fresh examination.
24. On 11 October 2001 the Lomonosovskiy District Court of Arkhangelsk awarded the applicant damages in the amount of RUB 124,583.57.
25. On 23 November 2001 the Arkhangelsk Regional Court quashed the judgment of 11 October 2001 and remitted the case for a fresh examination.
26. On 21 January 2002 the Lomonosovskiy District Court of Arkhangelsk awarded the applicant damages in the amount of RUB 2,225. Damages in the amount of RUB 393,574.87 were awarded on 7 February 2002. Costs in the amount of RUB 1,481.18 were awarded on 28 February 2002.
27. After the writs of execution were issued, the applicant transmitted them directly to the defendant, namely the Federal Treasury of the Ministry of Finance.
28. The judgments of 7 and 28 February 2002 were executed on 26 November 2003. The judgment of 21 January 2002 was executed on 31 May 2004.
“If a person has sustained non-pecuniary damage (physical or mental suffering) as a result of actions violating his personal non-pecuniary rights or other non-material benefits enjoyed by citizens, and also in other instances provided for by law, the court may require the perpetrator to afford monetary compensation for the said damage.”
“Damage caused to an individual or a legal entity as a result of an unlawful act (failure to act) of State and local self-government bodies or of their officials, including as a result of the issuance of an act of a State or self-government body which is contrary to the law or any other legal act, shall be subject to compensation. The damage shall be compensated at the expense, respectively, of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation or the treasury of the municipal authority.”
“1. Damage caused to an individual as a result of his or her unlawful conviction, unlawful criminal prosecution, unlawful application, as a measure of restraint, of remand in custody or of a written undertaking not to leave a specified place and unlawful imposition of an administrative penalty in the form of arrest or corrective labour, shall be compensated in full at the expense of the treasury of the Russian Federation and in certain cases, stipulated by law, at the expense of the treasury of the subject of the Russian Federation or of the municipal authority, regardless of the fault of the officials of agencies of inquiry or preliminary investigation, prosecutor’s offices or courts in the procedure established by law. ...”
“In instances where, in accordance with the present Code or other laws, the damage caused is subject to compensation at the expense of the treasury of the Russian Federation, the treasury of the subject of the Russian Federation or the treasury of the municipal authority, the respective financial agencies shall act on behalf of the treasury...”
“1. The grounds and amount of compensation payable to an individual for non-pecuniary damage shall be determined by the rules laid down in the present Chapter and in Article 151 of the present Code.
2. ...
3. Compensation for non-pecuniary damage shall be awarded irrespective of any award for pecuniary damage.”
“Compensation for non-pecuniary damage shall be awarded irrespective of the fault of the perpetrator, when:
...the damage is caused to a person as a result of his or her unlawful conviction, unlawful criminal prosecution, unlawful application, as a measure of restraint, of remand in custody or of a written undertaking not to leave a specified place, or unlawful imposition of an administrative penalty in the form of arrest or corrective labour.”
“22. This article provides that compensation shall be paid to a victim of a miscarriage of justice, on certain conditions.
First, the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction. According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final “if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them”. It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again. Likewise, this article does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or, on appeal, by a higher tribunal. If, however, in one of the States in which such a possibility is provided for, the person has been granted leave to appeal after the normal time of appealing has expired, and his conviction is then reversed on appeal, then subject to the other conditions of the article, in particular the conditions described in paragraph 24 below, the article may apply.
23. Secondly, the article applies only where the person’s conviction has been reversed or he has been pardoned, in either case on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice - that is, some serious failure in the judicial process involving grave prejudice to the convicted person. Therefore, there is no requirement under the article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground. Nor does the article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice. This is a matter for the domestic law or practice of the State concerned. The words “or he has been pardoned” have been included because under some systems of law pardon, rather than legal proceedings leading to the reversal of a conviction, may in certain cases be the appropriate remedy after there has been a final decision.
24. Finally, there is no right to compensation under this provision if it can be shown that the non-disclosure of the unknown fact in time was wholly or partly attributable to the person convicted.
25. In all cases in which these preconditions are satisfied, compensation is payable “according to the law or the practice of the State concerned”. This does not mean that no compensation is payable if the law or practice makes no provision for such compensation. It means that the law or practice of the State should provide for the payment of compensation in all cases to which the article applies. The intention is that States would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.”


ITEMID: 001-94084
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BORODKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1949 and lives in Deputatskiy, the Republic of Sakha (Yakutiya).
5. In the 1990s the applicant subscribed to a State savings scheme which would entitle him to receive a VAZ car in 1993. He paid the car’s full value but never received the car.
6. On 13 February 2003 he received a partial compensation in the amount of 18,538.20 Russian roubles (RUB) equal to 13.35% of the car value.
7. The applicant brought the court action against the authorities, seeking to recover the monetary value of the State promissory notes for purchasing of a car.
8. On 30 June 2003 the Ust-Yanskiy District Court of the Sakha Republic (Yakutiya) allowed the applicant’s action against the Government and awarded him RUB 120,428.80 as the full car value less the amount already paid in February 2003. The award was to be paid at the expense of the Federal Treasury.
9. On 28 July 2003 the Supreme Court of the Sakha (Yakutiya) Republic upheld the judgment and it became final. The award remained unenforced.
10. On 19 September 2003 the Ministry lodged a request for supervisory review of the case with the Presidium of the Supreme Court of the Sakha (Yakutiya) Republic.
11. On 15 July 2004 the Presidium quashed the judgment of 30 June 2003 and the appeal decision of 28 July 2003 on the ground of a violation of the substantive law and delivered a new judgment in which it dismissed the applicant’s claim in full.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-84968
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF PARIZOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
TEXT: 4. The applicant was born in 1936 and lives in Štip.
5. On 17 November 1986 the applicant and three other persons instituted civil proceedings before the then Štip Municipal Court (Општински Суд Штип) for annulment of a care agreement (“the agreement”) (договор за доживотна издршка) concluded on 7 December 1979 between the applicant’s late father and his step-mother (“the defendant”). They maintained that the applicant’s late father had been in a fit condition and that he had sufficient financial means to take care of himself and that, accordingly, there had been no need for the agreement under which, the defendant had been granted four hundred golden liras, a priceless ancient icon and a land.
6. On 25 June 1987 the Štip Municipal Court partially upheld the applicant’s claim and annulled the agreement. It declared, inter alia, that the icon would be included in the applicant’s late father’s inheritance, but it dismissed the claim concerning the golden liras. That decision was served on the applicant on 3 March 1988.
7. On 14 March 1988 both parties appealed.
8. On 29 September 1989 the then Štip District Court (Окружен суд) dismissed the appeals and upheld the lower court’s decision.
9. On 25 September 1990 the Supreme Court upheld the applicant’s appeal on points of law (ревизија) submitted on 19 December 1989. It remitted the case for a renewed consideration since the first-instance court had not given sufficient reasons for its decision.
10. The proceedings resumed on 19 June 1991. Of four hearings fixed before the first-instance court, none was postponed upon the applicant’s request.
11. On 14 October 1992 the Štip Municipal Court gave the same decision as on 25 June 1987 in which it established that the applicant’s father had been amongst the richest people in his village; that he had been in a fit condition and that, by entering into the agreement, the defendant had acquired considerable interest (значителна имотна корист) which had not been in compliance with the then State order (општествено уредување). It dismissed the applicant’s claim concerning the golden liras since there had been no evidence that the applicant’s father had been in possession of any.
12. On 25 December 1992 the applicant appealed. On 6 February 1993 he submitted observations in reply to the defendant’s appeal, together with an addendum to his appeal.
13. On 8 October 1993 the Štip District Court set aside the first-instance court’s decision since it had not complied with the Supreme Court’s instructions.
14. The proceedings resumed on 25 January 1994. Eight hearings were held before the first-instance court, of which none was adjourned upon the applicant’s request.
15. On 8 December 1994 the Štip Municipal Court partially upheld the applicant’s claim. It declared that only the icon be included in his late father’s inheritance and dismissed the claim for annulment of the agreement. It further reiterated its earlier findings as to the golden liras. The decision was served on the applicant on 13 October 1995.
16. On 16 October 1995 the applicant appealed.
17. On 20 March 1996 the Štip District Court overturned the decision and decided the case itself. It declared the agreement null and void, but considered it as having been concluded as a gift contract (договор за подарок). It upheld the remainder of the first-instance court’s decision.
18. On 2 July 1996 the defendant filed an appeal on points of law before the Supreme Court.
19. On 9 December 1998 the Supreme Court upheld the defendant’s appeal and quashed the District Court’s decision. It further instructed that court to establish whether the agreement had been concluded in a statutory form.
20. On 14 April 2000 the Štip Court of Appeal remitted the case for re-examination before the first-instance court. The decision was served on the applicant on 8 April 2002.
21. Between 11 February 2003 and 20 April 2004 the first-instance court scheduled five hearings, of which one was adjourned because of the applicant’s fault. During that time, the applicant lodged four submissions before the court.
22. On 20 April 2004 the Štip Court of First Instance partially upheld the applicant’s claim - it declared that the agreement be invalid and considered it as having been concluded as a gift contract.
23. On 24 February 2005 the Štip Court of Appeal upheld the defendant’s appeal of 10 May 2004 and remitted the case for re-consideration.
24. On 24 June 2005 the Štip Court of First Instance declared the applicant’s claim as withdrawn, as he had not appeared in court despite being duly summoned. It so ruled as the case concerned a dispute of minor value.
25. On 24 January 2006 the Štip Court of Appeal set aside that decision arguing that the case could not be regarded as a dispute of minor value.
26. On 15 June 2006 the Štip Court of First Instance dismissed the applicant’s claim for annulment of the agreement finding that the latter had met the statutory requirements. That decision was given after a hearing fixed for 23 May 2006 had been adjourned due to the applicant’s absence.
27. On 21 August 2006 the applicant appealed.
28. On 15 March 2007 the Skopje Court of Appeal dismissed the appeal and confirmed the first-instance court’s decision.
29. On 23 April 2007 the applicant lodged an appeal on points of law with the Supreme Court. Proceedings before that court are still pending.
30. Section 35 § 1 (6) of the Courts Act (Закон за судовите) of 2006 (“the 2006 Act”) provides that “the Supreme Court is competent to decide applications about a violation of the right to a hearing within a reasonable time, in proceedings specified by law.”
31. Section 36 of the 2006 Act provides that “a party concerned can lodge with the immediate higher court (непосредно повисокиот суд) an application for the protection of the right to a hearing within a reasonable time if he or she considers that it has been violated by a court of competent jurisdiction. The immediate higher court considers the application (постапува по барањето) within six months after it has been lodged and decides whether the court below violated the right to a hearing within a reasonable time. The higher court shall award just satisfaction to the claimant if it finds a violation of the right to a hearing within a reasonable time. The just satisfaction shall be paid from the State’s budget.”
32. Section 128 of the 2006 Act provides that it would become operational on 1 January 2007.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-80478
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF RUNKEE AND WHITE v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: No violation of Art. 14+P1-1 in connection with non-entitlement to a Widow's Pension;Violation of Art. 14+P1-1 concerning non-entitlement to a Widow's Payment;Not necessary to examine Art. 14+8;Pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 6. The facts of each case, as submitted by the parties, may be summarised as follows.
7. Mr Runkee was born in 1938 and lives in Hull.
8. He married in 1964. He and his wife had three children, born in 1965, 1966 and 1974. On 15 March 1998 his wife died. She had worked full time for eight years until becoming pregnant and had made full social security contributions.
9. The applicant notified the Benefits Agency of his wife's death and of his intention to claim “widowers' benefits” on 31 March 1998. By a letter dated 16 April 1998, the Benefits Agency informed the applicant that because he was not a woman he was not entitled to widow's benefits. The applicant lodged a statutory appeal against this decision on 1 May 1998, but abandoned it when advised that the appeal was bound to fail.
10. At the time of his application to the Court, Mr Runkee was in receipt of means-tested statutory benefits, including Income Support and Housing and Council Tax Benefits. Were he a woman, his entitlement to Widow's Pension would have been offset against these benefits, to the extent that, in his present circumstances, he would have received no additional money in respect of Widow's Pension.
11. Mr White is a United Kingdom national, born in 1942 and living in Warrington.
12. He married in 1960. He and his wife had two children, one of whom was adopted and born in 1955, the other of whom was born in 1968.
13. On 8 March 1999 his wife died. She had worked until the birth of her son in 1968 and had made reduced social security contributions.
14. The applicant notified the Benefits Agency of his wife's death and of his intention to claim “widowers' benefits” on 10 March 1999. On 21 June and 8 September 1999, Angela Eagle, a Minister from the Department of Social Security, wrote to the applicant's Member of Parliament confirming that as a man he was not entitled to claim widows' benefits.
15. The following history of the Widow's Pension (“WP”) is taken from Lord Hoffmann's speech in R. v. Secretary of State for Work and Pensions ex parte Hooper and Others [2005] UKHL 29, paragraphs 18-30:
“[WP was] first introduced by the Widows', Orphans' and Old Age Contributory Pension Act 1925. The Act provided a pension of 10 shillings a week to any widow whose husband had paid sufficient contributions. There was no age qualification or time limit on payment. Widows were as such entitled to support. But during the Second World War, large numbers of women worked in the armed forces or civilian employment, replacing men on active service. Public attitudes to widowhood changed. Sir William Beveridge said in his 1942 Report on Social Insurance and Allied Services (Cmd 6404, paragraph 153) that there was no reason why a childless widow should get a pension for life. If she was able to work she should do so. He recommended that all widows should be paid a 13 week transitional allowance to help them adjust to their new circumstances but that longer term pensions should be confined to widows with dependent children. The Government did not accept this advice in full. It considered that an older widow, who had in accordance with convention stayed at home during a long marriage to look after husband and children, would often be severely disadvantaged if she was required to earn her own living. The National Insurance Act 1946 therefore not only gave effect to Beveridge's recommendations by introducing [Widowed Mother's Allowance: 'WMA'] and a widow's allowance for 13 weeks after bereavement but also provided WP for widows who were over 50 at the date of the husband's death or who ceased to qualify for WMA when they were over 40.
The secular trend in the position of women in employment over the next half century reinforced Beveridge's view that being a widow should not, as such, entitle one to a pension. More and more women entered the labour market. But the trend was a slow one and crude comparisons of the numbers of economically active men and women are misleading. Far more women than men worked part-time and the great majority of women were (and remain) unable to escape from the traditional low-paid activities of cooking, caring and cleaning. So the trend to equality was counteracted by political pressure from groups representing widows who claimed that, as the United Kingdom became more prosperous, benefits for widows should be increased rather than reduced. The policies pursued by successive governments were therefore not entirely consistent. The Family Allowances and National Insurance Act 1956 raised to 50 the age at which a woman could claim WP after ceasing to be entitled to WMA. On the other hand, the National Insurance (Old persons' and widows' pensions and attendance allowance) Act 1970 reduced to 40 the age at which WP would be payable (at a reduced rate), whether as a result of bereavement or the cessation of WMA.
In 1985 the government published a Green Paper on Social Security Reform which pointed out (in paragraph 10.9) that the current system of benefits dated from days when far fewer married women worked:
'Today two thirds of all married women with children over school age, and over a half of widows between 40 and 60, go to work. The present pattern of benefits nonetheless provides support without regard to widows' other income, in many cases long after they have ceased to be responsible for bringing up children. The Government's view is that it is right to give greater emphasis to providing for widows of working age who have children to support, and for older widows less able to establish themselves in work.'
Despite this acknowledgement of changes in social conditions, the Social Security Act 1986 made relatively modest adjustments to the system. The 26 week transitional widow's allowance was abolished and the lump sum [Widow's Payment: 'WPt'] of £1,000 substituted. The age at which WP became payable, whether on bereavement or cessation of WMA, was raised to 45 and entitlement to the full rate postponed until 55. These provisions were subsequently consolidated in the 1992 Act.
The 1986 changes were opposed by a strong lobby on behalf of widows. But no one suggested in the course of the Parliamentary debates that WP should be extended to men. It is true that Cruse, a non-governmental organisation for 'the widowed and their children', which had taken widowers on board in 1980, said in their 1986-87 annual report:
'We ... continued to press for a widower's pension, based on his wife's national insurance contributions, and for an allowance to be paid to widowed fathers.'
But this pressure does not appear to have persuaded anyone to raise the question of WP for widowers in Parliament. The first serious suggestion that widowers should in principle be paid the same benefits as widows came from the European Commission. There had been a Council Directive 79/7/EEC in 1978 on 'the progressive implementation of the principle of equal treatment for men and women in matters of social security' which expressly excluded survivors' benefits. In 1987 the Commission produced a proposal for a new Directive (Com (87) 494 Final). It drew attention in an explanatory memorandum to a statement of the Court of Justice in Razzouk and Beydoun v Commission of the European Communities (Cases 75/82 and 117/82), [1984] ECR 1509, 1530, para 16 (a case concerning survivors' pensions under the Community's own Staff Regulations) that the principle of equal treatment of men and women 'forms part of the fundamental rights the observance of which the court has a duty to ensure.' Article 4 of the draft Directive provided that there should be no discrimination on grounds of sex in the payment of survivorship benefits:
'and to this end:
(a) either the recognition on the same terms for widowers of entitlement to the pensions and other benefits provided for widows;
(b) or the replacement of widows' benefits by the creation or extension of a system of individual rights open to all surviving spouses regardless of sex.'
The House of Lords Select Committee on the European Communities (Sub-Committee C) held an inquiry into the proposal in 1989. Miss Joan C. Brown, a writer on social security matters, said in evidence to the Committee that there was no case for paying older widowers the same pensions as older widows. The only way to produce equality was to level down. But hasty action would cause real hardship to large numbers of older widows who had chosen many years earlier to follow the conventional path of staying home to look after husband and children:
'the effect of earlier social patterns on women still have to be worked through. This suggests the need to phase out the older widow's pension over a long period—in the order of 10-15 years. Without this, there would be a serious risk of poverty among older widows who had followed the social norms of their day and now find themselves at a severe disadvantage in a changed world as a result.'
The Select Committee accepted Miss Brown's evidence and reported (Session 1988-89, 10th Report, HL Paper 51):
'In the United Kingdom...there might be reluctance to reproduce for widowers the pension a childless widow can receive under the national insurance scheme, irrespective of her earnings, if she is aged 45 or more when her husband dies. This is in recognition of the difficulty the widow may find in re-establishing herself in the labour market—whereas a widower's earning ability would not ordinarily be prejudiced in this way.
The Committee consider that, despite these difficulties, the concept of equal treatment must require that, eventually, men and women should be provided with survivors' benefits on the same terms. Employment patterns are changing and, if it becomes the norm for married couples to be dependent on the earnings of both partners for most of their working lives, it will make sense for equal survivors' benefits to be available. There is also a need to avoid putting families at a disadvantage if the mother, rather than the father, becomes the principal breadwinner. It would, however, be perverse to deprive widows of benefits they still need in the interests of sex equality. To reduce this danger, a substantial period should be allowed—at least 15 years—before Member States are obliged to equalise survivors' benefits. Community law recognises a principle of 'legitimate expectation' which would support this approach.'
The Government published its response on 4 April 1990 (Cm 1038). It said at para 15:
'Within the state social security system the Government do not think there is any merit in introducing a universal state insurance benefit for widowers on a par with those currently provided for widows. To extend the current provisions for widows to widowers would cost about £350 million a year. The available evidence indicates that widowers are more likely to be in full time work than widows, are more likely to have higher earnings than widows and are less likely to have dependent children. As a consequence the Government have made it clear to the Commission that the equalisation of survivors' benefits should be removed from this draft directive entirely.'
In 1991 the Commission withdrew the draft directive pending further consultation with Member States and there has been no further European Union initiative on the question.
...[O]ver the next few years the question of paying WMA to widowed fathers was raised on more than one occasion (see, for example, a Private Member's Bill introduced by Mr Hartley Booth MP on 13 April 1994 (Hansard HC Debates (6th Series) vol 241, cols 212-213) and a Written Answer by the Secretary of State for Social Security (Hansard HC Deb (6th Series) vol 255, 1 March 1995, col 621)). No one suggested paying WP to widowers or, unsurprisingly, abolishing WP for widows. Cruse said in evidence in these proceedings that Mr Hartley Booth's decision to confine his Private Member's Bill to WMA was 'tactical' but the need for such tactics suggests that there would have been little support for anything more.
The abolition of WP came as part of a wider reform of survivorship and other social security benefits in the 1999 Act. It was preceded in 1998 by a Consultation Paper which drew attention to the fact that, in 1995, 7 out of 10 married women worked compared with 1 in 8 in 1946. Half of widows under 60 worked and 47% of widows now had income from occupational pension schemes. The Government took the view that widows without dependent children no longer needed long term support. The extension of WP to men was 'not acceptable': it would cost another £250 million a year and would mean giving help to people who were, as a class, unlikely to need it.
But the abolition of WP was strongly opposed by some members of Parliament, partly on the ground that elderly widows were still disadvantaged compared with men or younger widows and partly on the ground that WP was a contributory benefit and that it would be a breach of faith to deny it to the widows of men who had made contributions and arranged their affairs on the assumption that it would be available. An opposition amendment deferring the abolition of WP until 2020 was defeated but the Government agreed that the changes should not come into force until 9 April 2001 and that the rights of women bereaved before that date should be preserved.”
16. Under Section 38 of the 1992 Act, a woman who had been widowed was entitled to a WP if her husband satisfied the contribution conditions set out in a Schedule to the Act; and
(i) at the date of her husband's death she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65; or
(ii) she ceased to be entitled to a WMA at a time when she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65.
17. This benefit was not payable for any period after the widow remarried or in which she and a man to whom she was not married were living together as husband and wife, or for any period in which she was entitled to a WMA.
18. The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) came into force on 9 April 2001. Section 54 introduced the Bereavement Payment which replaced the Widow's Payment. The same conditions applied, except that the new payment was available to both widows and widowers whose spouse died on or after 9 April 2001. Section 55 introduced the Widowed Parent's Allowance. Identical conditions applied as for Widowed Mother's Allowance, except that the new allowance was available to (i) widows and widowers whose spouse died on or after 9 April 2001 and who were under pensionable age (60 for women and 65 for men) at the time of the spouse's death, and (ii) widowers whose wife died before 9 April 2001, who had not remarried and were still under pensionable age on the that day.
19. Section 55 replaced WP with a Bereavement Allowance for widows and widowers over the age of 45 but under pensionable age at the spouse's death, where no dependent children existed. The deceased spouse had to have satisfied the relevant contribution conditions and died on or after 9 April 2001. The Bereavement Allowance is payable for 52 weeks from the date of bereavement, but is not payable for any period after the survivor reaches pensionable age or remarries or lives with another person as husband and wife, or for any period for which the survivor was entitled to Widowed Parent's Allowance.
20. Widows (but not widowers) whose husbands died before 9 April 2001, and who fulfilled the other conditions of entitlement, continued to be eligible for WP.
21. For details of the relevant legislative provisions, see Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 63475/00, 63484/00 and 63468/00, judgment of 14 November 2006, §§ 29-35 and 38-40.
22. On 5 May 2005 the House of Lords delivered a unanimous judgment (cited in paragraph 15 above), in which it found, inter alia, that the difference in treatment between men and women as regards WP from 2 October 2000 (when the Human Rights Act 1998 came into force) onwards was objectively justified and involved no breach of Convention rights.
23. Lord Hoffmann, with whom the other Law Lords agreed, observed that WP had, for reasons of administrative economy, never been means-tested, but had been paid to older widows because it was thought that, as a class, they were likely to be disadvantaged because it had been the custom for women to give up work when they got married. The same did not apply to widowers. The question was not, therefore, whether there was justification for not paying WP to men, but rather whether there was justification for not having moved faster in abolishing its payment to women. The history of WP (set out in paragraph 15 above) demonstrated that the decision to achieve equality between men and women by levelling down survivors' benefits, subject to vested rights, was by no means easy or obvious. It was true that by 2000 the proportion of older women (50-59) who were “economically active” was 65.9% against 72.5% for men. But those figures had to be adjusted to reflect greater part-time working by women (44% as against 9%) and the concentration of women in low-paid occupations. The comparative disadvantage of women in the labour market had by no means disappeared.
24. It was permissible under Article 14 of the Convention for States to treat groups unequally in order to correct “factual inequalities” between them, and the State enjoyed a wide margin of appreciation in determining social and economic policy. Once it was accepted that older widows were historically an economically disadvantaged class which merited special treatment but were gradually becoming less disadvantaged, the question of the precise moment at which such special treatment was no longer justified was a matter of legislative judgment.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-77940
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF NEGRICH v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1930 and lives in the city of Kherson, Ukraine.
5. On 20 September 1999 the Komsomolskiy District Court of Kherson allowed the applicant's claim against the State-owned enterprise “Khersonskyy Sudnobudivelnyy Zavod” (the “KSZ”), and ordered the latter to pay the applicant UAH 1,070 in salary arrears. On 6 October 1999 the Komsomolsky District Bailiffs' Service (the “Bailiffs”) instituted enforcement proceedings.
6. By decisions of 16 November 1999, 30 January 2002 and 15 May 2002, the Labour Disputes Commission allowed the applicant's claims and ordered the KSZ to pay the applicant a total of UAH 3283.09. The Bailiffs instituted enforcement proceedings on 30 November 1999, 1 March 2002 and 13 June 2002 respectively.
7. On 27 December 1999 the Kherson Regional Court of Arbitration instituted bankruptcy proceedings against the debtor and, consequently, all enforcement proceedings were suspended. On 10 January 2001 the bankruptcy case was terminated and the enforcement proceedings were resumed.
8. In 2001 a substantial part of the debtor's assets was attached by the Bailiffs; however its sale was barred by the Law on the Introduction of a Moratorium on the Forced Sale of Property, which banned the forced sale of assets belonging to undertakings in which the State held at least 25% of the share capital.
9. On 6 May 2001, 6 December 2001, 17 May 2002 and 1 March 2004 the Bailiffs informed the applicant that the decisions in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor and the debtor's lack of funds.
10. On 23 June 2005 the applicant was paid the amounts due to him in full.
11. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18 and 39-41, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-96406
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: RINKUNIENE v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicant, Ms Regina Rinkūnienė, is a Lithuanian national who was born in 1944 and lives in Panevėžys.
On 14 September 2004 the applicant’s husband P.R. fell ill. On 15 September a doctor, V.D.S., who worked at the Aukštaičių Family Clinics, visited him at his home and prescribed him certain medication. The next days P.R.’s medical condition had not improved and he had a fever of up to 40 degrees. The applicant succeeded in contacting V.D.S. only on 20 September. In the evening of the same day P.R.’s condition substantially worsened and the medical emergency service took him to the Panevėžys hospital. On 22 September, at the applicant’s request, blood samples were taken from her husband. On 24 September P.R. was found to have septicaemia and was transferred to the intensive care unit.
On 26 September 2004 the applicant’s husband died in the Panevėžys hospital. The clinical diagnosis of his death, recorded in the hospital’s documents, was sepsis. That diagnosis was not confirmed by an autopsy, since the applicant refused one.
The applicant requested the State Medical Audit Inspection to appraise the quality of the medical services which V.D.S. and the Aukštaičių Family Clinics had provided to her husband. On 15 December 2004 the State Medical Audit Inspection produced an expert report (no. 1A-201-533K) which stipulated that, while treating the applicant’s husband, V.D.S. had made certain mistakes. In particular, given that P.R.’s condition was not improving, the doctor had not used all available means to establish factors which would have been important for determining the proper treatment. “That is to say, having suspected pneumonia [the doctor] did not immediately send the patient for an X-ray examination, did not assess the effectiveness of the prescribed medication, and did not send the patient to hospital, as [the applicable medical instructions] required”. Lastly, the experts noted that the head of the Aukštaičių Family Clinics had not been carrying out the Health Minister’s instructions on medical care effectively.
The State Medical Audit Inspection ordered the head of the Aukštaičių Family Clinics to assure adherence to the ministerial requirements and to evaluate the doctor’s actions. On 25 January 2005 the State Medical Audit Inspection was informed that V.D.S. had received a disciplinary sanction by way of a warning.
On 27 July 2005 the applicant initiated civil proceedings against the Aukštaičių Family Clinics, the Panevėžys hospital and V.D.S., alleging that the medical personnel had failed to carry out their duties properly and that this had caused her husband’s death.
On 30 December 2005 the Panevėžys Regional Court ordered the Mykolas Romeris University Forensic Medical Institute (the “FMI”) to conduct a deontological examination as regards the circumstances and cause of P.R.’s death. Four experts took part in the examination.
On 27 February 2006 the FMI presented its results in report no. EDM 36/06 (01). The report stipulated that P.R. had died from sepsis, noting however that the cause of death had only been established on the basis of a clinical diagnosis. Given that there was no autopsy report, the actual cause of death remained uncertain.
The report also stated that, when treating the applicant’s husband, V.D.S. had acted properly and without undue delay. The experts concluded that V.D.S.’s actions had no direct causal link with the death, since the treatment she prescribed was in accordance with the patient’s condition. They also stated that applicable legislation did not empower a family doctor to compel her patient to go to hospital [against his will]. Lastly, the experts found the treatment at the Aukštaičių Family Clinics to have been appropriate to the patient’s medical condition.
As regards the treatment which P.R. received at the Panevėžys hospital, the experts again found it to have been adequate, with the exception of the treatment which P.R. had received in the hospital’s intensive care unit. Yet the experts noted that it was not possible to ascertain what influence the latter had had on P.R.’s death, since no autopsy had ever been performed.
In sum, there was no direct causal link between either the actions of V.D.S. or the Panevėžys hospital’s personnel and the death of the applicant’s husband.
On 15 June 2007 the applicant requested the Panevėžys Regional Court to order a supplementary expert report. She noted that the two expert reports, no. 1A-201-533K and no. EDM 36/06 (01), had been contradictory. In the applicant’s view, the FMI’s experts were partial and it was necessary to create a new expert commission which would evaluate the quality, objectivity and plausibility of the two previous reports, as well as establish the actual cause of her husband’s death and whether the treatment he had received had been appropriate and effective. That commission was also to establish whether the medical personnel who had treated her late husband had breached any applicable medical instructions.
By a decision of 5 July 2007, the Panevėžys Regional Court dismissed the applicant’s lawsuit as unfounded. The court’s arguments and reasoning were set out in six pages. The applicant’s lawyer took part in that hearing.
Whilst noting the State Medical Audit Inspection’s report about certain defects in V.D.S.’s and Aukštaičių Family Clinics’ actions, the court nevertheless emphasised that those flaws were of an organisational character (organizacinio pobudžio) and had no causal link to the quality of medical services which were provided to P.R. The court furthermore noted that there were no grave doctors’ mistakes, which the Commission for the Assessment of Doctors’ Professional Competence would have established.
Referring to the Supreme Court’s guidelines in medical negligence cases and having examined the FMI’s deontological report no. EDM 36/06 in the light of other evidence, the Panevėžys Regional Court found that report credible. It stressed that the cause of death of the applicant’s husband had only been established from clinical characteristics (pagal klinikinius požymius). Yet, as both experts had noted in their written reports and in person at the hearing, in the absence of an autopsy it had not been possible to ascertain the exact cause of death.
From all the above, the court concluded that the applicant had failed to prove that the doctors had acted in breach of applicable medical norms. Neither had the applicant proved a causal link between the doctors’ actions and her husband’s death. The Panevėžys Regional Court also observed that the evidence in the case ruled out the doctors’ negligence. The court did not address the applicant’s request for a supplementary expert examination. Lastly, the Panevėžys Regional Court ordered the applicant to cover the other parties’ litigation costs in the sum of 8,089 Lithuanian litai (approximately 2,343 euros).
The applicant appealed, arguing that the two expert reports were contradictory, and requested the Court of Appeal to order a new expert examination into the circumstances of her husband’s death. She also claimed that the first-instance court had ordered her to cover the other parties’ litigation costs for too high a sum.
On 13 November 2007, at the hearing of the Court of Appeal, the applicant’s lawyer requested that the experts of the State Medical Audit Inspection and the FMI be summoned for questioning in open court. The Court of Appeal granted that request. The lawyer further requested that a new expert examination be carried out, arguing that the two reports were contradictory. The court decided to resolve that question after the lawyer submitted the request in writing and formulated his questions to the experts.
It transpires from the record of the hearing of the Court of Appeal that on 19 May 2008 the applicant’s lawyer again requested the court to order a new expert examination. Given that other parties to the proceedings objected to that request, the Court of Appeal decided to adjourn the hearing until 22 May 2008.
On 22 May 2008 the applicant’s lawyer reiterated his request for a supplementary expert report. Having considered the lawyer’s request on the spot, the chamber decided to adjourn the determination of this issue until the parties had made their final submissions. Having heard the parties’ summings-up, the Court of Appeal adjourned its decision until 5 June 2008.
On 5 June 2008 the Court of Appeal dismissed the applicant’s appeal. The court acknowledged that V.D.S. had made certain errors of judgment by not exhausting all means available to diagnose P.R.’s illness, and by not consulting other doctors when his condition did not improve. Yet the appellate court found no proof that those errors had been the direct cause of P.R.’s death. The court also had regard to the FMI’s deontological report to the effect that the measures which V.D.S and the Aukštaičių Family Clinics had undertaken were adequate for the physical condition of P.R. The court noted that the FMI’s conclusions were confirmed and elaborated by four experts, who testified before both the first-instance and the appellate courts. For the latter, the applicant’s allegation that the FMI’s experts had been partial and not objective was unfounded, even though their conclusion contradicted that of the State Medical Audit Inspection. On the contrary, the court noted that those experts were well qualified, with scientific and pedagogical degrees in their respective fields of medicine.
As to the treatment which P.R. had received in the Panevėžys Hospital’s intensive care unit, the Court of Appeal acknowledged that it had been inadequate. However, given that the applicant herself refused to allow an autopsy, it was not possible to establish what influence that inadequate treatment could have had on P.R.’s death. Consequently, the first-instance court was correct in not finding a causal link between the actions of the Panevėžys Hospital doctors and the death of the applicant’s husband.
Lastly, the Court of Appeal found that the award of litigation costs which the applicant was ordered to pay was in accordance with the recommendations prescribed by the Ministry of Justice.
The applicant lodged a cassation appeal, complaining that the lower courts had not allowed her claim for pecuniary and non-pecuniary damages. She further alleged that the first-instance and appellate courts had evaluated the evidence wrongly, that the expert examination had not been thorough and that important factual circumstances had not been established.
By a ruling of 5 September 2008, the Supreme Court refused to examine the cassation appeal, noting that the applicant’s claim in respect of pecuniary and non-pecuniary damages was intrinsically related to her allegation of an erroneous examination of the factual circumstances, but the latter did not fall within the Supreme Court’s jurisdiction. The applicant submitted new cassation appeals. However, on 6 and 21 October and 27 November 2008 the Supreme Court dismissed them as lodged out of time.
The Law on the Medical Practice of Physicians (Medicinos praktikos įstatymas) stipulates that a doctor who has made a grave error when practising the profession can be deprived of his or her licence. The State Medical Audit Inspection is one of the bodies which can propose that a licence be withdrawn (Article 6 §§ 1 (3) and 3). Moreover, the doctor who has breached the requirements of this law is answerable under the domestic law and regulations (Article 11). Furthermore, a special body – the Commission for the Assessment of Doctors’ Professional Competence – exists to assess the professional qualifications of doctors (Article 12).
Article 3 § 2 of the Law on the Rights of Patients and Compensation for Damage to their Health (Pacientų teisių ir žalos sveikatai atlyginimo įstatymas) stipulates that patients must be accorded qualified health care. Pursuant to Article 14 § 3, the damage suffered by patients as a result of the culpable actions of a physician is to be compensated in accordance with the procedure established by the Civil Code.
Article 6.263 § 2 of the Civil Code provides that any pecuniary damage caused to another person must be fully compensated by the responsible person. Article 6.250 § 2 allows compensation for non-pecuniary damage incurred due to health impairment or a deprivation of life. As regards medical negligence specifically, in the ruling of 25 April 2005 no. 3K-3-222/2005 the Supreme Court confirmed this right, specifying that, in case of a person’s death, the spouse, parents and children have the right to request compensation for non-pecuniary damage for their loss. Lastly, Article 6.264 of the Civil Code provides that an employer is liable to compensation for damage caused by the fault of employees in the performance of their service (official) duties.
Article 178 of the Code of Civil Procedure stipulates that the parties must prove their claims. Pursuant to Article 185, the court evaluates the probative value of evidence according its own inner belief, basing its conclusions on a comprehensive and objective examination of the facts of the case. Unless the Code provides otherwise, no evidence has predetermined value.
In its ruling No. 15 of 13 June 1997, the Supreme Court noted


ITEMID: 001-98048
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF S.H. AND OTHERS v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The applicants were born in 1966, 1962, 1971 and 1971 respectively and live in L. and R.
8. The first applicant is married to the second applicant and the third applicant to the fourth applicant.
9. The first applicant suffers from fallopian-tube-related infertility (eileiterbedingter Sterilität). The second applicant, her husband, is also infertile.
10. The third applicant suffers from agonadism (Gonadendysgenesie), which means that she does not produce ova at all. Thus she is completely infertile but has a fully developed uterus. The fourth applicant, her husband, in contrast to the second applicant, can produce sperm fit for procreation.
11. On 4 May 1998 the first and third applicants lodged an application (Individualantrag) with the Constitutional Court (Verfassungsgerichtshof) for a review of the constitutionality of section 3(1) and section 3(2) of the Artificial Procreation Act (Fortpflanzungsmedizingesetz - see Relevant domestic law below).
12. The applicants argued before the Constitutional Court that they were directly affected by the above provisions. The first applicant submitted that she could not conceive a child by natural means; thus the only way open to her and her husband would be in vitro fertilisation using sperm from a donor. That medical technique was, however, ruled out by section 3(1) and section 3(2) of the Artificial Procreation Act. The third applicant submitted that she was also infertile. Suffering from agonadism, she did not produce ova at all. Thus, the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryotransfer, which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant. However, that method was not allowed under the Artificial Procreation Act.
13. The first and third applicants argued before the Constitutional Court that the impossibility of using the above-mentioned medical techniques for medically assisted conception was a breach of their rights under Article 8 of the Convention. They also relied on Article 12 of the Convention and on Article 7 of the Federal Constitution, which guarantees equal treatment.
14. On 4 October 1999 the Constitutional Court held a public hearing in which the first applicant, assisted by counsel, participated.
15. On 14 October 1999 the Constitutional Court decided on the first and third applicants’ request. The Constitutional Court found that their request was partly admissible in so far as the wording concerned their specific case. In this respect, it found that the provisions of section 3 of the Artificial Procreation Act, which prohibited the use of certain procreation techniques, was directly applicable to the applicants’ case without it being necessary for a decision by a court or administrative authority to be taken.
16. As regards the merits of their complaints the Constitutional Court considered that Article 8 was applicable in the applicants’ case. Although no case-law of the European Court of Human Rights existed on the matter, it was evident, in the Constitutional Court’s view, that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under Article 8.
17. The impugned provisions of the Artificial Procreation Act interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation. As for the justification of such an interference, the Constitutional Court observed that the legislature, when enacting the Artificial Procreation Act, had tried to find a solution by balancing the conflicting interests of human dignity, the right to procreation and the well-being of children. Thus, it had enacted as leading features of the legislation that, in principle, only homologous methods – such as using ova and sperm from the spouses or the cohabiting couple itself – would be allowed and only methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception. The aim was to avoid the forming of unusual personal relations such as a child having more than one biological mother (a genetic mother and one carrying the child) and to avoid the risk of exploitation of women.
18. The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well-being of children thus conceived, their health and their rights, and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction (Zuchtauswahl).
19. Applying the principle of proportionality under Article 8 § 2, however, such concerns could not lead to a total ban on all possible medically assisted procreation techniques, as the extent to which public interests were concerned depended to a large extent on whether a heterologous or homologous technique was used.
20. In the Constitutional Court’s view, the legislator had not overstepped the margin of appreciation afforded to member States when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception. This compromise reflected the current state of medical science and the consensus in society. It did not mean, however, that these criteria were not subject to developments which the legislator would have to take into account in the future.
21. The legislator had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques. Besides strictly homologous techniques it had accepted insemination using sperm from donors. Such a technique had been known and used for a long time and would not bring about unusual family relationships. Further, the use of these techniques was not restricted to married couples but also included cohabiting couples. In so far, however, as homologous techniques were not sufficient for the conception of a child the interests of the individuals concerned ran counter to the above-mentioned public interest.
22. The Constitutional Court also found that for the legislator to prohibit heterologous techniques, while accepting as lawful only homologous techniques, was in accordance with the prohibition of discrimination as contained in the principle of equality. The difference in treatment between the two techniques was justified because, as pointed out above, the same objections could not be raised against the homologous method as against the heterologous one. As a consequence the legislator was not bound to apply strictly identical regulations to both. Also, the fact that insemination with donor sperm was allowed while ova donation was not did not raise a discrimination issue because again, as pointed out above, there was no risk of creating unusual relationships which might adversely affect the well-being of a future child as there was with heterologous insemination.
23. Since the impugned provisions of the Artificial Procreation Act were in line with Article 8 of the Convention and the principle of equality under the Federal Constitution, there had also been no breach of Article 12 of the Convention.
24. This decision was served on the first and third applicants’ lawyer on 8 November 1999.
25. The Artificial Procreation Act (Fortpflanzungsmedizingesetz, Federal Law Gazette 275/1992) regulates the use of medical techniques for inducing conception of a child by means other than copulation (section 1(1)).
26. These methods comprise: (i) introduction of sperm into the reproductive organs of a woman, (ii) unification of ovum and sperm outside the body of a woman, (iii) introduction of viable cells into the uterus or fallopian tube of a woman and (iv) introduction of ovum cells or ovum cells with sperm into the uterus or fallopian tube of a woman (section 1(2)).
27. Medically assisted procreation is allowed only within a marriage or a relationship similar to marriage, and may only be carried out if every other possible and reasonable treatment aimed at inducing pregnancy through intercourse has failed or has no reasonable chance of success (section 2).
28. Under section 3(1), only ova and sperm from spouses or from persons living in a relationship similar to marriage (Lebensgefährten) may be used for the purpose of medically assisted procreation. In exceptional circumstances, sperm from a third person may be used for artificial insemination when introducing sperm into the reproductive organs of a woman (section 3(2)). In all other circumstances, and in particular for the purpose of in vitro fertilisation, the use of sperm by donors is prohibited.
29. Under section 3(3), ova or viable cells may only be used for the woman from whom they originate. Thus ova donation is always prohibited.
30. The further provisions of the Artificial Procreation Act stipulate, inter alia, that medically assisted procreation may only be carried out by specialised physicians and in specially equipped hospitals or surgeries (section 4) and with the express and written consent of the spouses or cohabiting persons (section 8).
31. In 1999 the Artificial Procreation Act was supplemented by a Federal Act Establishing a Fund for Financing In-vitro Fertilisation Treatment (Bundesgesetz mit dem ein Fonds zur Finanzierung der In-vitro-Fertilisiation eingerichtet wird – Federal Law Gazette Part I No. 180/1999) in order to subsidise in–vitro fertilisation treatment allowed under the Artificial Procreation Act.
32. On the basis of the material available to the Court, including the document “Medically-assisted Procreation and the Protection of the Human Embryo Study on the Solution in 39 States” (Council of Europe, 1998) and the replies by the member States of the Council of Europe to the Steering Committee on Bioethics’ “Questionnaire on Access to Medically-assisted Procreation” (Council of Europe, 2005), it would appear that IVF treatment is regulated by primary or secondary legislation in Austria, Azerbaijan, Bulgaria, Croatia, Denmark, Estonia, France, Georgia, Germany, Greece, Hungary, Iceland, Italy, Latvia, the Netherlands, Norway, the Russian Federation, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom. In Belgium, the Czech Republic, Finland, Ireland, Malta, Lithuania, Poland, Serbia and Slovakia such treatment is governed by clinical practice, professional guidelines, royal or administrative decree or general constitutional principles.
33. The study in particular sets out the position of domestic law as regards seven different artificial procreation techniques: artificial insemination within a couple, in vitro fertilisation within a couple, artificial insemination by sperm donor, ova donation, ova and sperm donation, embryo donation and intracytoplasmic sperm injection (an in vitro fertilization procedure in which a single sperm is injected directly into an egg).
34. As far as can be seen, sperm donation is currently prohibited only in three countries: Italy, Lithuania and Turkey, which all ban heterologous assisted fertilisation as a whole. Countries allowing sperm donation do not generally distinguish in their regulations between the use of sperm for artificial insemination and for in vitro fertilisation. As regards the donation of ova, it is prohibited in Croatia, Germany, Norway and Switzerland, in addition to the three countries mentioned above. Since Germany in practice allows donation of sperm only for non-in vitro fertilisation, the legal situation is quite similar to the situation in Austria.
35. In a number of countries, such as Cyprus, Luxembourg, Malta, Finland, Poland, Portugal and Romania, where the matter is not regulated, the donation of both sperm and ova is used in practice.
36. A comparison between the Council of Europe study of 1998 and a survey conducted by the International Federation of Fertility Societies of 2007 shows that in the field of medically assisted procreation legal provisions are developing quickly. In Denmark, France and Sweden sperm and ova donation, which was previously prohibited, is now allowed since the entry into force of new legal provisions in 2006, 2004 and 2006 respectively. In Norway sperm donation for in vitro fertilisation has been allowed since 2003, but not ova donation.
37. Principle 11 of the principles adopted by the ad hoc committee of experts on progress in the biomedical sciences, the expert body within the Council of Europe which preceded the present Steering Committee on Bioethics (CAHBI, 1989), states:
“1. In principle, in vitro fertilisation shall be effected using gametes of the members of the couple. The same rule shall apply to any other procedure that involves ova or in vitro or embryos in vitro. However, in exceptional cases defined by the member states, the use of gametes of donors may be permitted. ”
38. The Convention on Human Rights and Biomedicine of 1997 does not deal with the question of donation of gametes, but forbids to use a medically assisted reproduction technique to choose the sex of a child. Its Article 14 reads as follows:
“The use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child’s sex, except where serious hereditary sex-related disease is to be avoided.”
39. The Additional Protocol to the above Convention, on Transplantation of Organs and Tissues of Human Origin, of 2002, which promotes donation of organs, expressly excludes from its scope reproductive organs and tissues.
VIOLATED_ARTICLES: 14
8


ITEMID: 001-120941
LANGUAGEISOCODE: ENG
RESPONDENT: LVA
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF BANNIKOV v. LATVIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1966 and, having been sentenced by the Latvian courts and subsequently transferred to Russia, is currently serving a prison sentence in the Russian Federation.
5. On 27 May 2002 the applicant was arrested on suspicion of murder.
6. On 29 May 2002 a judge authorised the applicant’s remand in custody, citing the following reasons: the applicant might abscond and impede the investigation; and in view of the severity of the offence, his prior convictions and his absence of a registered place of residence.
7. On 19 July 2002 another judge authorised the applicant’s detention for two months and eight days, citing the following reasons: the gravity of the offence, the circumstances surrounding it and the applicant’s character. The judge saw no reason to change the preventive measure imposed on the applicant.
8. On 13 September 2002 the same judge authorised the applicant’s detention for a further two months (until 27 November 2002), citing the following reasons: the applicant’s character and the need to carry out a forensic psychiatric examination. The judge saw no reason to change the preventive measure imposed on the applicant. The applicant complained about this decision to a prosecutor and pointed out that he had a wife and minor children who were dependent on him.
9. On 3 October 2002 the prosecutor examined his complaint and rejected it on the grounds that the applicant was charged with a serious crime. His character (the applicant’s two prior convictions were noted) and his family responsibilities had not dissuaded him from committing a serious crime. The applicant lodged another complaint challenging his preventive measure; the same prosecutor rejected it on 24 October 2002.
10. On 25 November 2002 another judge authorised the applicant’s detention for a further month, citing the following reasons: the applicant’s character
11. On 17 December 2002 the final indictment was issued against the applicant.
12. On 24 December 2002 the case file was sent for trial to the Rīga Regional Court.
13. On 6 January 2003 the applicant was committed for trial and the first hearing was scheduled for 10 May 2004. The preventive measure imposed on the applicant (remand in custody) remained unchanged; no reasons were given.
14. No more detention orders were issued in respect of the applicant.
15. Between 10 and 14 May 2004 the trial hearings before the Rīga Regional Court took place, and the trial was concluded on the latter date.
16. On 14 May 2004 the Rīga Regional Court pronounced the judgment. It convicted the applicant of aggravated murder and hooliganism; he was sentenced to sixteen years’ imprisonment. As an additional penalty the court ordered his expulsion from Latvia.
17. On 2 March 2005 the appellate court upheld the ruling of the firstinstance court.
18. On 18 May 2005 the applicant’s appeal on points of law was dismissed.
19. On an unspecified date the applicant was transferred to a prison in Daugavpils to serve his sentence, where he was detained until 16 June 2011.
20. On several occasions the prison authorities refused long-term visits in prison by the applicant’s partner, M.B., and her daughter, R.B., born in 2000, who he considered to be his only family in Latvia. The applicant lodged complaints against these refusals.
21. On 16 June 2006 the administration of Daugavpils Prison referred to section 45 of the Sentence Enforcement Code and observed that the applicant had a right to receive a long-term visit by R.B. if he was noted as her father on her birth certificate. The applicant could not receive a longterm visit from M.B. because she was not considered to be a close family member. It appears that the applicant further complained to the Prisons Administration (Ieslodzījumu vietu pārvalde) and the Daugavpils prison administration informed that authority that the applicant had not received any short-term visits from M.B. during his imprisonment.
22. According to the Government, on 4 July 2006 the applicant requested a long-term visit by his partner and her daughter. They did not have more information concerning this request.
23. On 12 October 2006 the applicant requested a long-term visit by his partner and her daughter. In reply, he received the following statement written on his request: “You have received an answer in writing in this respect”.
24. According to the applicant, he received a short-term visit from M.B. and R.B. in Daugavpils prison in June 2007.
25. The applicant was refused a short-term visit during his admission to the Prison Hospital in Rīga. He complained about the refusal and on 13 June 2007 he received a reply that only tuberculosis patients were allowed to receive short-term visits with the permission of a doctor, or seriously ill patients with the permission of the head of the hospital.
26. According to the Government, on 9 August 2007 the applicant requested another long-term visit by his partner and her daughter. On 17 August 2007 this request was refused, given that M.B. was not a “close family member” of his within the meaning of section 45 of the Sentence Enforcement Code. The applicant was informed that he could be visited by R.B. if he was recorded as her father on her birth certificate.
27. Subsequently, a complaint by the applicant concerning long-term visits was accepted for review by the Ombudsman’s office.
28. On 18 April 2008 the Ombudsman delivered his opinion, which was not binding on the domestic authorities. He noted that the application of section 45 of the Sentence Enforcement Code was not uniform among the domestic authorities, but that in Daugavpils Prison, in particular, long-term visits were often refused in the form of a simple reply using vague phrases such as “to be refused in accordance with the law” or “impossible to determine the visit’s usefulness”. The refusal in the applicant’s case had been given in one sentence, informing him that M.B. was not considered to be a close family member of his. No other options had been considered, such as, for example, whether the applicant could receive a long-term visit by M.B. in another capacity (and not only on the basis of their relationship centred on R.B.). No individual assessment had been made in his case, which had breached the rules of administrative procedure.
29. On the one hand, the Ombudsman observed that even if the applicant had complained to the Prisons Administration and the administrative courts about the refusal of long-term visits, it was most likely that he would not have been granted such visits; rather, he could only have received compensation. On the other hand, the Ombudsman informed the applicant that he could lodge a complaint with the Constitutional Court (Satversmes tiesa) about the compliance of the legal provision concerning such longterm visits with the Constitution (Satversme).
30. On 12 May 2008 the applicant lodged a complaint with the Constitutional Court. By a decision of 4 June 2008 it was dismissed on formal grounds for non-compliance with the applicable admissibility criteria.
31. On 23 September 2008 the applicant forwarded a complaint to the Prisons Administration, which it received on 6 October 2008, about the refusals by the administration of Daugavpils Prison to allow long-term visits by his partner and her daughter. He claimed that had been told orally that visits by them would not be allowed, and he considered this blanket refusal to be in violation of Article 8 of the Convention. He pointed out that he had not received any long-term visits since his conviction.
32. On 3 November 2008 the Prisons Administration examined and dismissed the applicant’s complaint.
33. On 22 November 2008 the applicant applied to the administrative courts with his complaint concerning long-term visits.
34. On 22 January 2009 the Administrative District Court exempted the applicant from the payment of court fees and admitted the complaint for examination in part, in so far as it concerned an action of a public authority (faktiskā rīcība) (namely the refusal to allow long-term visits by M.B. and R.B.). The applicant’s compensation claim for 20,000 Latvian lati (LVL) was not admitted, as he had not lodged such a claim with the Prisons Administration (in contrast to his complaint concerning an action of a public authority). The applicant lodged an ancillary complaint against this decision with the Administrative Regional Court, which was rejected on 8 April 2009.
35. On 5 August 2010 the Administrative District Court examined and dismissed the applicant’s complaint. The applicant was present during the hearing and submitted that his relationship with M.B. and R.B. had broken down owing to the refusal by the prison authorities to allow long-term visits. The district court found that the applicant had on numerous occasions asked for permission to receive long-term visits by M.B. and R.B. It considered that the authorities’ refusals to allow such visits had constituted an interference with the applicant’s rights under Article 8 of the Convention and Article 96 of the Constitution and as also established by section 45 of the Sentence Enforcement Code. Notwithstanding that, the district court held as follows:
“The court notes that the applicant could prove his father-daughter relationship by showing the birth certificate of R.B., where he is recorded as her father. The defendant [the Prisons Administration] confirmed during the hearing that the applicant could receive a long-term visit by his daughter, if he produced her birth certificate. The applicant, for his part, considered that he did not need to prove anything.
The court finds that the prison administration has not set an insurmountable obstacle by asking the applicant to provide documents attesting to his family relationships. The case file shows that the applicant has received several short-term visits by his partner, M.B., and her daughter, R.B., during which they could [in principle] have complied with the formal requirement to show R.B.’s birth certificate in order to receive a longterm visit [by her].
In view of the above, the court concludes that the applicant and the people from whom he has asked to receive a long-term visit have not taken minimal steps to prove the applicant’s relationship with R.B. This created doubts that the applicant had a family relationship with R.B. Thus the defendant’s refusal to allow long-term visits by M.B. and R.B was justified.”
36. The applicant lodged an appeal against this ruling, which was refused on several occasions on formal grounds (failure to pay court fees and failure to provide a translation of the statement of appeal in Latvian). After several unsuccessful ancillary complaints about these procedural decisions, on 9 June 2011 the Administrative Regional Court examined his appeal against the first-instance court’s refusal to exempt him from the payment of court fees. The case was sent back to the first-instance court to decide on the exemption.
37. On 23 August 2011 the Administrative District Court partially exempted the applicant from the payment of court fees for an appeal and set a time-limit for payment of the reduced court fees in the amount of LVL 5. This decision was sent to the applicant’s address in prison in Latvia, as he had not informed the district court that he had been transferred to a prison in Russia (see below).
38. On 29 September 2011 the Administrative District Court found that the applicant had not paid the reduced court fees for lodging an appeal and had also not informed it of his transfer to another prison. As the applicant had failed to rectify the procedural shortcomings in his appeal (he had not paid the reduced court fees), his appeal against the 5 August 2010 ruling was therefore considered as not submitted. This decision took effect on 18 October 2011, as the applicant did not lodge an ancillary complaint against it on time.
39. On 23 November 2009 the applicant asked to be transferred to Russia to continue serving his sentence there.
40. On 5 January 2010 the applicant was informed that a request had been sent to the Russian authorities in accordance with applicable law.
41. On 27 April 2011 the applicant was informed that the Russian authorities had accepted the request and that he would be transferred to Russia to continue serving his sentence.
42. On 16 June 2011 the applicant was transferred to a prison in Rīga, in view of his scheduled transfer to Russia.
43. On 22 June 2011 the applicant was handed over to the Russian authorities at Rīga International Airport.
44. On 10 August 2012 the applicant informed the Court that he intended to pursue his application in Strasbourg.
45. A full description of the law and practice as concerns pre-trial detention at the relevant time may be found in Svipsta v. Latvia (no. 66820/01, §§ 53-66, ECHR 2006III (extracts)) and Vogins v. Latvia (no. 3992/02, §§ 22-23, 1 February 2007).
46. Section 45 of the Sentence Enforcement Code, concerning visits in prison, can be found in Aleksejeva v. Latvia (no. 21780/07, § 28, 3 July 2012).
47. With legislative amendments that took effect on 11 August 2011, that provision now reads:
“The administration of a prison may also authorise long-term visits by another individual, provided that prior to his or her imprisonment the convicted person had a common household or a child with that individual.”
48. The Law of Administrative Procedure (Administratīvā procesa likums) took effect on 1 February 2004. It provides for the right to challenge administrative acts (administratīvais akts) and actions of a public authority (faktiskā rīcība) before the administrative courts.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-4653
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: MAMOU AND OTHERS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants are Syrian passport-holders of Kurdish origin (see complete list in the Annex). They submit that they have been deprived of their Syrian citizenship and that their status in Syria is that of stateless “foreigners”. When introducing their application, they were held at the Communal Accommodation of the Budapest Border Guards Directorate, located on the premises of the Budapest Ferihegy Airport. Before the Court they are represented by Mr. J. Somogyi, a lawyer practising in Budapest and acting on behalf the Hungarian Helsinki Committee.
The facts of the case, as submitted by the parties, may be summarised as follows.
A.
On 25 December 1996 the applicants, coming from Damascus, Syria, arrived at the Budapest Ferihegy Airport. At the passport control, the Hungarian immigration authority established that their visas had been reported stolen. Subsequently they were informed that they would be returned to Syria. Assisted by an interpreter, they signed the decision of the Budapest Border Guards Directorate to that effect and waived their right to an administrative appeal. On the same day Dr. S., a lawyer acting on behalf of the Mahatma Gandhi International Human Rights Organisation, contacted them. On 26 December 1996 the applicants made a request for asylum. On the same day they were committed to the Communal Accommodation.
As to the circumstances at the Communal Accommodation, the applicants allege that they were all - men, women and children together - lodged in three rooms of a surface of approximately 30 square metres, packed with bunk beds. They were under constant control by armed guards and not allowed to leave the premises of the Communal Accommodation. The Government, for their part, allege that, on their committal to the Communal Accommodation, it was the applicants’ express desire to be allowed to stay together, as a result of which a room suitable to accommodate fourteen people was allocated to them. Admitting that the applicants’ stay at the Communal Accommodation was subject to severe security scrutiny, the Government nevertheless submit that on the occasion when one of the applicant children had had to be taken to hospital, the parents were escorted to the hospital to visit their child the very next day, on 19 January 1997.
Meanwhile, on 27 December 1996 the Border Guards Directorate, pending the asylum proceedings, suspended the enforcement of the applicants’ deportation to Syria. On 30 December 1996 the Hungarian authorities heard the applicants, represented by Dr. S., with a view to clarifying their situation, if returned to Syria.
After having interviewed the applicants, on 10 January 1997 the Hungarian Branch Office of the United Nations High Commissioner for Refugees dismissed the applicants’ request for asylum on the ground that their allegations lacked credibility. On 31 January 1997 the Office for Refugee and Migration Matters and the Ministry of Foreign Affairs approved the applicants’ deportation to Syria. On the same day the Border Guards Directorate ordered the applicants’ deportation. Upon the announcement of the deportation order, the applicants insisted that they would not leave Hungary for any Arab country. As a consequence, their deportation did not take place.
On 5 February 1997 Dr. S. brought an action on behalf of the applicants before the Pest Central District Court challenging the Directorate’s deportation order as well as their committal to the Communal Accommodation.
On 21 March 1997 the District Court discontinued the proceedings. The District Court recalled that the applicants had waived their right to an administrative appeal against the return order of 25 December 1996. The District Court pointed out that, since they had not exhausted the relevant administrative remedy in this respect, the applicants had no locus standi in judicial proceedings with a view to reviewing the impugned administrative proceedings.
Meanwhile the applicants were committed to the Refugees Reception Camp in Bicske. On 20 February 1997 the Ministry of the Interior was informed that the applicants had, without authorisation, left the camp by undoing the fence. In his submissions of 3 April 1997, the applicants’ representative submitted that the applicants had eventually left Hungary for Germany.
B. Relevant domestic law
1. The 1993 Aliens Act (Act no. 86 of 1993)
Section 4 § 1 provides that foreigners may cross the Hungarian state frontier and stay on the territory of the Republic of Hungary only if they have valid passports verifying their citizenship and particulars of identification, and have valid visas issued by the Hungarian authorities.
According to S. 25 §§ 1, 2 and 4, all conditions of entry and stay shall be inspected by the border guards at the time of entry to the country by the foreigner, prior to crossing the state frontier, while the availability of financial means shall be inspected by the customs authority. Foreigners who do not satisfy the conditions prescribed for entering the country, shall - subject to the provisions of S. 32 § 1 - be returned to the territory of the country they arrived from. Upon notification, an appeal may be lodged against the order of return.
Section 32 § 1 provides that foreigners shall not be returned or expelled to such countries, or to the frontier of such areas, where they would be exposed to the danger of persecution for reasons connected with their race, religion, national, social belonging or political views; furthermore, to the territory of such states, or to the frontier of such areas, where it is to be greatly feared that they would be exposed to torture, inhuman or degrading treatment. These reasons shall be established by the refugee authority.
Section 43 provides the possibility of ordering an alien’s residence at a designated place. According to paragraphs 1 and 3, the police headquarters and the directorate or branch of Border-Guards may order the residence of the foreigner at a designated place, restricting his personal liberty, if: (a) he is not able to certify his identity, until the establishment thereof; or (b) he is not able to certify the lawfulness of his stay in Hungary, until the verification thereof or until an official permit to stay is issued; or (c) this is necessary for the purposes of guaranteeing the execution of an expulsion, until the establishment of the conditions of expulsion; or (d) his return was ordered (see S. 25 above); or (e) his return or expulsion should take place, but he may not be returned or expelled in accordance with the prohibition under S. 32 § 1.
The compulsory place of residence may also be designated at a communal accommodation, if the foreigner is not able to support himself, and no appropriate accommodation, financial means, income and inviting party or relatives obliged to support him are at his disposal.
Paragraph 5 provides that, although no administrative appeal may be lodged against the order to reside at a designated place, the foreigner may request the court review of the decision. The procedure of the court shall be governed by the provisions applicable to the court review of the lawfulness of ‘custody for the purposes of supervision of aliens’. These provisions are as follows:
Section 39 §§ 1 and 2 provide that foreigners may request - during the period of custody - a review of the lawfulness of the decision from the local court competent at the place of custody. The submission of such a request has no suspensive effect in respect of the enforcement of the custody order. If the foreigner requests the court review of the lawfulness of the ‘custody for purposes of supervision of aliens’, he shall be brought before the court in order to be heard. According to S. 41 § 1, if the court finds that the foreigner’s taking into, or holding in, custody violates the law, it shall take immediate measures for his release. Section 42 §§ 1, 3 and 4 provide that the authority ordering the taking into custody as well as the foreigner may appeal against the decision of the court. The appeal may be submitted orally in the course of the hearing or in writing to the local court within three days following the announcement of the decision. Appeals submitted against the decision of the local court shall be decided by the regional court within five days. Section 50 requires that the court shall act promptly in matters of judicial review of decisions of the immigration authorities.
2. Act no. 4 of 1957 on the General Rules of Administrative Procedure
Section 62 provides that an [administrative] appeal lies against any first instance [administrative] decision taken on the merits of a case. Persons entitled to lodge an appeal may waive their right to appeal within the appeal deadline. According to S. 71, if an administrative decision is not in compliance with the law, the superior administrative body may amend or quash it.
Section 72 provides that an administrative decision taken on the merits of a case may be challenged in court within thirty days from its delivery. Such judicial review may, however, take place only if the administrative remedies - if any - available in the case have already been exhausted.