ITEMID: 001-100711
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF J.M. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+P1-1;Non-pecuniary damage - award
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant is the divorced mother of two children, born in 1991 and 1993. Her children live mostly with their father (the “parent with care”) spending two and a half days per week with her (the “non-resident” parent). Since 1998, the applicant has lived with a woman in what was described during the domestic proceedings as a “close, loving and monogamous relationship characterised by long-term sexual intimacy”. She and her partner own the house they live in as joint tenants. They purchased the property with a joint mortgage, and have held a joint bank account since 2000.
6. The applicant is required to contribute to the cost of her children's upbringing in accordance with the applicable regulations on child maintenance (see paragraph 21 below). On 12 September 2001, the Secretary of State decided that the applicant's maintenance payment should be GBP 46.97 per week, with effect from the previous 13 August. The applicant disputed that decision on a number of grounds, including that it did not make full allowance for her housing costs. On 11 November 2001, the Secretary of State declined to revise his decision. On 18 February 2002, the maintenance assessment was reduced to GBP 12.67 per week, due to changed circumstances unrelated to the applicant's complaint of discrimination. Her complaint thus relates to the period that began on 13 August 2001 and ended on 18 February 2002.
7. The applicant appealed against the initial maintenance assessment. The Appeals Tribunal allowed the appeal on 8 November 2002. The Tribunal considered it appropriate to compare the applicant's situation to that of an individual who was part of a heterosexual couple (married or unmarried), and that there clearly was a difference in treatment in the determination of the child maintenance obligation. It held that the situation came within the ambit of Article 1 of Protocol No. 1, which was not confined to situations in which property was transferred to the State. The direct involvement of the Child Support Agency in the process and its powers of enforcement meant that the responsibility of the State was engaged. The Tribunal found that the Government had not advanced any specific explanation or justification for the difference in treatment, which it therefore held to be discriminatory. It further found that it was possible to provide a remedy to the applicant by re-interpreting the definition of an “unmarried couple” in the applicable regulations so that it included samesex couples.
8. The Secretary of State appealed against this decision to the Child Support Commissioner, who rejected the appeal on 1 October 2003. The Commissioner held that “a gay relationship can be a family for the purpose of [A]rticle 8”. He saw no reason, in the context of child support legislation, to distinguish between families according to the sexual orientation of the partners. The purpose of the regulations was to determine the financial obligation of the absent parent, a matter on which his or her sexual orientation should have no bearing. Accordingly, the applicant's situation was within the ambit of the right to respect for family life. He rejected, however, the applicant's argument that the situation also came within the ambit of Article 1 of Protocol No. 1. Turning to Article 14, the Commissioner found that, in the context of child support payments, the applicant's situation was analogous to that of an absent parent living with a heterosexual partner, who, all other things being equal, would have been required to pay around GBP 14 per week instead of almost GBP 47. He considered that the Government had not advanced any justification for treating the applicant differently and therefore ruled that the child support scheme violated the applicant's Convention right under Article 14 read in conjunction with Article 8. Concerning the remedy, he disagreed with the approach of the Appeals Tribunal. Instead, since the regulations defined the various terms used by the regulations “unless the context otherwise requires”, he considered that, with the entry into force of the Human Rights Act on 2 October 2000, the “context” now included the absent parent's Convention rights. Therefore, the definition of an unmarried couple (“a man and a woman who are not married to each other but are living together as husband and wife”) did not apply in this situation.
9. The Secretary of State appealed against this decision to the Court of Appeal. By a judgment given on 15 October 2005, that court upheld the Commissioner's decision. Lord Justice Sedley considered that the applicant's previous family life (i.e. the relationship between herself, her former husband and her children) was not within the ambit of Article 8. As for her relationship with her partner, he read the decision of the European Court in Mata Estevez v. Spain (dec.), no. 56501/00, ECHR 2001VI as establishing that the question whether same-sex relationships fall within Article 8 is a matter of domestic law. Citing a number of domestic precedents which treated same-sex couples as no different from heterosexual couples in certain contexts, he considered that the applicant's relationship constituted family life for the purposes of the case. Any discrimination against the applicant on the grounds of her sexual orientation called for compelling and proportionate justification. He found that the child support scheme impinged in some significant degree on the family life of the applicant and her partner, bringing their situation within the ambit of Article 8. As the scheme discriminated against the applicant on grounds of her sexual orientation, Article 14 was engaged. He rejected the argument that the scheme came within the ambit of the applicant's private life, since the scheme did not set out to recognise the applicant's sexual orientation. Regarding Article 1 of Protocol No. 1, he considered it unnecessary to decide if it too was engaged, although he doubted that it was. He found that the Government had not provided any acceptable justification for the discrimination against the applicant. He rejected the arguments advanced on behalf of the Secretary of State about the difficulty of correcting a problem that was but one instance of a distinction applied throughout the wider social security system, observing that there was no doctrine of justification by the logistics of reform. As for a remedy, he considered that the appropriate course was to disapply (in effect delete) the definition in the regulations of an unmarried couple so as to eliminate the requirement of heterosexuality.
10. Lord Justice Neuberger held that the child support regulations did, in principle, come within the ambit of Article 8, since they were based on the relationship between the absent parent and his/her children. However, the applicant's complaint concerned a wholly different family unit, i.e. her relationship with her partner. He too rejected the argument that the situation came within the ambit of the applicant's private life, finding that this had not been interfered with. Regarding Article 1 of Protocol No. 1, he accepted that the situation came within the scope of that provision since a possession of the applicant's (money) was being taken away from her under rules that left her worse off than a person in a position identical to hers in all respects save for their sexual orientation. As for the applicant's argument that her relationship came within the concept of family life, he took the view that, the European Court having considered this issue to be within States' margin of appreciation, it was open to the domestic courts to decide the point for the United Kingdom. His conclusion was that, having regard to the relevant House of Lords case-law, same-sex relationships should be treated in the same way as heterosexual relationships for the purpose of Article 8. He further concluded that the relevant provision of the MASC regulations had been enacted out of respect for family life – in this case the relationship between the absent parent and his/her new partner. Accordingly, the applicant's situation came within the ambit of Article 8. He concurred with Lord Justice Sedley that the Government had not provided an adequate justification, and agreed with the proposed remedy.
11. Lord Justice Kennedy reviewed both domestic and Convention caselaw and concluded that the applicant could not rely on the words “family life” in Article 8 in order to say that the facts of her case fell within the ambit of that Article. Nor did the situation come within the ambit of the applicant's right to respect for her private life. Though her relationship with her partner was an aspect of her private life, the applicant had not been penalised on account of it. Her real complaint was that she was unable to take advantage of a benefit that was available to a category of absent parents since she did not come within that category. As regards Article 1 of Protocol No. 1, he found that this provision was not engaged. The child support scheme was concerned with the allocation of assets to discharge an existing obligation. To hold that any situation in which there was a net adverse financial impact on an individual constituted a prima facie deprivation of possessions would be an unacceptably broad interpretation. There would be almost no limit to the circumstances in which that provision would be sufficiently engaged for the purposes of Article 14.
12. The decision of the Court of Appeal was appealed by the Secretary of State to the House of Lords which, in a judgment of 8 March 2006, allowed the appeal, by a majority of four to one.
13. Addressing the question whether the application of the relevant regulations to the applicant came within the ambit of Article 8 of the Convention or Article 1 of Protocol No. 1, Lord Walker (with whom Lord Bingham agreed) observed that:
“[t]he Strasbourg case-law does not, and could not, spell out any simple bright-line test for determining how close must be the link between the alleged discrimination and the rights granted by the substantive article.”
He rejected the contention that since the concept of respect for private and family life was so wide and multifaceted, any alleged act of discrimination would be within the ambit of Article 8. He considered that, in relation to Article 8, the Strasbourg case-law revealed a more nuanced approach, reflecting the unique feature of Article 8 – the duty of the State to accord respect. Some measures were so intrusive that they plainly failed to respect an individual's private life, whereas less serious interferences would not merely not breach Article 8, they would not fall within its ambit at all. He further noted that the case-law concerning alleged discrimination in relation to the family life limb of Article 8 had concerned measures very closely connected to family life. He was prepared to assume that the applicant, her new partner and their children from their previous marriages should be regarded as a family for the purposes of Article 8. He also accepted that the regulations, inasmuch as they sought to strike a fair balance between the demands arising out of the raising of children and the running of the new household, were intended in a general sort of way to be a positive measure promoting family life. However, the link between them and respect for the applicant's family life was too tenuous to bring the situation within the ambit of the family life limb of Article 8. The link to respect for the applicant's private life was even more remote, in his view. As regards Article 1 of Protocol No. 1, he considered that the obligation to pay maintenance was very different to expropriation and therefore did not come within the ambit of this provision.
14. Lord Walker then considered whether the difference in treatment in same-sex couples in such circumstances was discriminatory. He held that Parliament had acted with reasonable promptness and within its margin of appreciation in the complex and time-consuming process of drafting, adopting and giving effect to the Civil Partnership Act 2004. The United Kingdom may have only followed the lead given by other Member States of the Council of Europe, but it had not been so far behind as to go outside its margin of appreciation. While it could not be argued today that discrimination against homosexuals had ever been justifiable, he thought this a “deeply unrealistic” approach to the issue. For centuries, homosexual couples living together were regarded as quite different to married or unmarried heterosexual couples. Profound cultural changes took time.
15. Lord Bingham described the applicant's complaint about discrimination as “anachronistic”:
“By that I mean that she is applying the standards of today to criticise a regime which when it was established represented the accepted values of our society, which has now been brought to an end because it no longer does so but which could not, with the support of the public, have been brought to an end very much earlier. ... If such a regime were to be established today, Ms M. could with good reason stigmatise the regime as unjustifiably discriminatory. But it is unrealistic to stigmatise as unjustifiably discriminatory a regime which, given the size of the overall task and the need to recruit the support of the public, could scarcely have been reformed sooner.”
16. Lord Nicholls took the view that, while this was not its primary purpose, the statutory scheme did demonstrate the respect of the United Kingdom for the non-resident parent's new family life by means of the statutory scheme. It could therefore be said that this feature of the scheme was one of the modalities of the exercise of the right to respect for family life. This would be sufficient to bring the situation within the ambit of Article 8. He then considered the position of same-sex couples. In certain contexts, domestic case-law had established that a same-sex couple was as much capable of constituting a family as a heterosexual couple. In the context of Article 8 of the Convention, however, the concept of “family life” could only have one proper interpretation for all of the Contracting States. The Strasbourg case-law did not yet recognise that the guarantee of respect for family life applied to same-sex relationships and there was no good reason for the courts of the United Kingdom to depart from that position. He rejected the argument that the situation came within the ambit of respect for private life. The statutory formulae set out to respect the new family life of an absent parent who had entered into a heterosexual relationship, and not the private life of each party to that relationship. The statutory scheme was therefore not one of the modalities of the exercise of the guarantee of the right to respect for private life. The nature of the discrimination alleged was not sufficient to engage that provision; otherwise, every case of discrimination on the ground of sexual orientation would be within the ambit of Article 8. He further observed that the applicant had not pointed to any significant impact on her lifestyle. As regards Article 1 of Protocol No.1, he found that the statutory scheme was far outside this provision's scope. The duty to pay child maintenance was very distant from the type of interference the provision was aimed at. While it was accordingly not necessary to consider the issue of justification, he indicated his agreement with the position of Lords Bingham and Walker.
17. For Lord Mance there were two critical issues: whether the applicant's same-sex relationship was to be regarded as family life for the purpose of Article 8; and whether the child support regime impinged sufficiently on that family life for it to be said to fall within its ambit. Regarding the latter issue, his view was that the regime did, “though only just”. The MASC regulations sought to avoid any unduly adverse impact on the absent parent's new relationship and to achieve a fair balance between it and the children's needs.
As for the first issue, the European Court of Human Rights had made it clear in May 2001 that same-sex relationships did not fall within the scope of the right to respect for family life. As the applicant's appeal related to a period shortly after that decision (13 August 2001-18 February 2002), her relationship with her partner could not be regarded as a type of family life within the meaning of Article 8. He added that he had little doubt that the Strasbourg Court would see the position in 2006 as having changed very considerably, and that if the issue were to arise before it again, the applicant's relationship could very well be regarded as involving family life for the purpose of Article 8. Great change had taken place across Europe in the intervening time, of which any court would take most careful account. There was no basis for criticising the United Kingdom for delay either in reviewing the relevant laws or in moving to amend them in light of such review. Although from a moral viewpoint discrimination against same-sex couples had never been justified, it was the legal position that was at issue. Until quite recently neither the Strasbourg Court nor the domestic courts would have viewed such relationships as involving family life. It followed that discrimination between these and heterosexual couples did not contravene Article 14 taken with Article 8. In relation to the applicant's private life, he observed that the regulations were not directed at her private life. Any link between them would be as tenuous in the extreme. Regarding Article 1 of Protocol No. 1, he considered it artificial to view child support payments as a deprivation of the absent parent's possessions. The mere fact that there was a net adverse financial impact for the applicant was insufficient. While the scheme was undoubtedly introduced in pursuit of a legitimate social policy, there was no element of expropriation about it. The complaint did not fall within the ambit of Article 1, therefore Article 14 was not engaged.
18. Baroness Hale, dissenting, considered that the appeal should be rejected. She found that the child support scheme, which was one aspect of the State's support for family life, clearly fell within the ambit of the applicant's right to respect for her family life with her children. The scheme was the State's way of enforcing a parent's duty to support their children, which was an obligation in both private and public law. There were many ways that the operation of the scheme could impact upon that family life. It did not have to have so severe an impact as to breach Article 8, but she considered it clear that the scheme fell within the reach of the applicant's right to respect for family life with her children. She observed that if, for example, the scheme treated absent mothers differently to absent fathers, this would be sufficient to engage Article 14. The lack of respect manifested by the scheme for the applicant's relationship did not have to reach such a level of severity as to constitute a breach of Article 8 for Article 14 to come into play. Although the Convention case-law had not yet recognised the relationship between two adult homosexuals as a form of family life within the meaning of Article 8, in this case the applicant and her partner enjoyed family life when their children were with them, and this did not cease when they were apart from them. She further considered that the situation also came within the ambit of the applicant's right to respect for her private life. It was therefore unnecessary to inquire whether Article 1 of Protocol No. 1 was engaged.
19. The only justification offered for the difference in treatment was the historical discrimination between the two types of relationship by social security and child maintenance rules. It was now recognised that there was no objective justification. While it had been taken for granted that the protection of the institution of marriage could justify less favourable treatment of the unmarried, it still had to be shown that in order to achieve that aim it was necessary to exclude same-sex couples. This had not been shown. With the Civil Partnership Act, the United Kingdom had moved ahead of many other European States, but this was not an objective justification for not doing so sooner. Racial and sex discrimination had always been wrong, long before this was recognised in law. In the area of gender, the historical and systematic character of discrimination against women could justify some continuing small adjustments in their favour in the benefits system. But this could not apply to sexual orientation – it would mean relying on historical disadvantage and exclusion to justify continued disadvantage and exclusion of the excluded group. It was to be welcomed that Parliament had legislated in this area, but that did not make right what had been done before. She concluded that the applicant had suffered discrimination in the enjoyment of the Convention right to respect for private and family life, and approved the remedy suggested by the Appeals Tribunal.
20. The Child Support Act 1991 (“the 1991 Act”) introduced a system intended to improve the assessment, collection and enforcement of payments for the maintenance of children whose parents are living apart. Until 1 November 2008, the system was administered by the Child Support Agency (“the CSA”), which was part of the Department for Work and Pensions. All the relevant duties, powers and discretions were thus conferred on the Secretary of State responsible for this government department. The calculation of a parent's child maintenance obligation is determined by Section 11 of and Schedule 1 to the 1991 Act, and by the Child Support (Maintenance Assessments and Special Cases) Regulations 1992 SI 1992/1815 (the “MASC regulations”), which have been subject to frequent and extensive amendment. In the domestic proceedings, the courts considered the regulations as they stood before 3 March 2003.
21. In the House of Lords, Lord Walker explained and cited the relevant provisions as follows:
“The 1991 Act and the Regulations contain a multiplicity of special definitions: 'assessable income', 'net income', 'exempt income', 'disposable income' and 'protected income'. The non-resident parent's liability depends primarily on his or her assessable income, which is net income less exempt income (para 5 of Schedule 1 to the 1991 Act). There are complex provisions for determining net income (Regulation 7 of and Schedules 1 and 2 to the Regulations) and exempt income, which includes an amount in respect of housing costs (Regulations 9, 14, 15, 16 and 18 of and Schedule 3 to the Regulations). The higher the exempt income the smaller the maintenance assessment will be in respect of any particular level of assessable income. There is also a further mechanism (described by the Child Support Commissioner as a kind of long stop) securing that the non-resident parent's disposable income does not fall below the level of his or her protected income (para 6 of Schedule 1 to the Act and Regulations 11 and 12 of the Regulations).
I now come to some definitions in regulation 1(2) of the Regulations which are of central importance to the appeal (all applicable unless the context otherwise requires):
''family' means—
...
(a) a married or unmarried couple ... and any child or children living with them for whom at least one member of that couple has day to day care ...
'married couple' means a man and a woman who are married to each other and are members of the same household.
'partner' means—
(a) in relation to a member of a married or unmarried couple who are living together, the other member of that couple . . .
'unmarried couple' means a man and a woman who are not married to each other but are living together as husband and wife.'
These definitions are closely similar to, but not identical with, definitions of the same expressions in the Social Security Contributions and Benefits Act 1992, section 137(1).
Paragraph 6 of Schedule 1 to the 1991 Act provides as follows:
'(4) The amount which is to be taken for the purposes of this paragraph as an absent parent's disposable income shall be calculated, or estimated, in accordance with regulations made by the Secretary of State.
(5) Regulations made under sub-paragraph (4) may, in particular, provide that, in such circumstances and to such extent as may be prescribed—
(a) income of any child who is living in the same household with the absent parent;
and
(b) where the absent parent is living together in the same household with another adult of the opposite sex (regardless of whether or not they are married)income of that other adult,
is to be treated as the absent parent's income for the purposes of calculating his disposable income.'
Regulation 11 (made, the Child Support Commissioner observed, under regulation 6(5)) deals with protected income. Under Regulation 11(1)(a) it is material whether or not the non-resident parent has a partner. Under regulation 11(1)(b) housing costs come into the calculation of protected income. Under regulation 11(1)(g) it is material whether there is a child who is a member of the family of the non-resident parent.
Regulation 15 is one of the regulations dealing with housing costs. Regulation 15(3), so far as now relevant, provides as follows:
'Where a parent has eligible housing costs and another person who is not a member of his family is also liable to make payments in respect of the home, the amount of the parent's housing costs shall be his share of those costs ...'
Schedule 3 of the Regulations also relates to housing costs. Paragraph 4, so far as now relevant, provides as follows:
'(1) Subject to the following provisions of this paragraph the housing costs referred to in this Schedule shall be included as housing costs only where—
...
(b) the parent or, if he is one of a family, he or a member of his family, is responsible for those costs ...'
22. The Government in their observations have also referred to the Child Support Departure Direction and Consequential Amendments Regulations 1996 (the “Departure Direction Regulations”), the relevant provision of which reads as follows:
Partner's contribution to housing costs
27. A case shall constitute a case for the purposes of paragraph 5(1) of Schedule 4B to the Act where a partner of the non-applicant occupies the home with him and the Secretary of State considers that it is reasonable for that partner to contribute to the payment of the housing costs of the non-applicant.
23. Schedule 24 of the Civil Partnership Act 2004 amended paragraph 6(5)(b) of Schedule 1 of the 1991 Act as follows:
"(b) where the absent parent—
(i) is living together in the same household with another adult of the opposite sex (regardless of whether or not they are married),
(ii) is living together in the same household with another adult of the same sex who is his civil partner, or
(iii) is living together in the same household with another adult of the same sex as if they were civil partners,
income of that other adult,".
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-78403
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ZAGAR v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;John Hedigan
TEXT: The applicant, Mrs Franjica Žagar, is a Croatian national who was born in 1955 and lives in Prezid.
The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 20 June 1991 the Rijeka Municipal Court (Općinski sud u Rijeci), Croatia established that J.J., a Slovenian national living in Slovenia, was the father of the applicant’s son, Žan Žagar, born in 1980. The court ordered J.J. to pay child support.
At an undetermined time Franjica Žagar sought an enforcement of the Rijeka Municipal Court’s judgment with the Ljubljana Basic Court (Temeljno sodišče v Ljubljani) on behalf of her minor son.
On 19 April 1993 the Ljubljana Basic Court upheld the request and allowed the enforcement in order to collect the unpaid child support. The enforcement officer (izvršitelj) tried, on two occasions, to enforce the judgment by attachment (zaplemba) of the debtor’s personal property, but the latter evaded the enforcement.
On 15 November 1993 J.J. objected to the enforcement order. The objection was allowed on 24 May 1994.
On 22 June 1994 Franjica Žagar appealed against the decision of 24 May 1994 to the Ljubljana Higher Court (Višje sodišče v Ljubljani).
On 28 June 1994 the Convention took effect with respect to Slovenia.
On 8 November 1994 the Ljubljana Higher Court upheld the appeal and remitted the case for fresh examination.
On 1 January 1995 the Ljubljana Local Court (Okrajno sodišče v Ljubljani) gained jurisdiction in the present case due to the reform of the Slovenian judicial system.
On 26 September 1995 the court denied the debtor’s objection of 15 November 1993 and upheld the enforcement order.
On 17 October 1995 J.J. lodged an appeal with the Ljubljana Higher Court.
On 6 December 1995 the court dismissed the appeal. The enforcement order thus became final.
On 12 April 1996 the enforcement officer attempted to carry out the enforcement order, but J.J. was not to be found.
On 18 September 1996 the Ljubljana Local Court informed Franjica Žagar that the enforcement was unsuccessful and requested her to furnish the debtor’s new address. She informed the court of the debtor’s new address on 1 October 1996.
On 25 March 1997 Franjica Žagar requested the court to continue with the enforcement.
The attempt of attachment made in April 1997 was also fruitless.
On 21 August 1997, after the court had learned that the debtor had moved, the case was transferred to the Cerknica Local Cour (Okrajno sodišče v Cerknici).
On 16 September 1997, after another attempt of attachment was made, the enforcement officer informed the court that no objects suitable for attachment were found at the debtor’s new address.
On 20 November 1998 Franjica Žagar again urged the court to find a solution to the issue.
On 7 January 1999 the court made inquiries with the debtor’s bank, employer and at his address to determine how to proceed with the enforcement. As a result, the court requested Franjica Žagar to again propose the attachment of the debtor’s property.
Upon reaching the age of maturity, Mr Žan Žagar, represented by a lawyer, requested the continuation of the enforcement proceedings by attachment of debtor’s personal property or funds.
Following the changes in the legislation, the court appointed a new enforcement officer and requested Žan Žagar, on 6 February 2001, to pay an advance on the enforcement officer’s expenses within eight days. The time-limit was subsequently extended and Žan Žagar paid the advance on 19 April 2001.
On 9 May 2001 the court ordered the enforcement officer to proceed with the enforcement.
A new attempt of attachment was unsuccessful, because the debtor had moved again.
On 19 February 2003 the court requested Žan Žagar to provide the debtor’s new address. He complied the following day.
On 24 March 2003 the court appointed a new enforcement officer, since the previous one ceased to exercise his functions.
On 17 February 2004 Žan Žagar made a proposal for enforcement by new means for attachment. He also sought the re-evaluation of the payments due.
On 24 February 2004 the court dismissed the proposal for re-evaluation. However, on 11 March 2004, the court upheld the proposal for enforcement by new means for attachment.
On 8 April 2004, Žan Žagar appealed against the decision of 24 February 2004 to the Ljubljana Higher Court.
On the same day, the creditor objected to the order of 11 March 2004.
The court refused the objection on 19 April 2004.
On 20 May 2004 the debtor appealed to the Ljubljana Higher Court.
On 23 September 2004 the Ljubljana Higher Court dismissed the appeals of 8 April and 20 May 2004.
On 28 December 2004 the enforcement officer was informed of the Ljubljana Higher Court’s decision.
On 10 October 2005 the court ordered the enforcement officer to report on the progress made.
On 12 October 2005 the enforcement officer learned that the debtor had been imprisoned on 7 April 2005 for a period of one year.
The proceedings are still pending.


ITEMID: 001-61272
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF DEMADES v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objections dismissed (ratione temporis, ratione loci, victim, non-exhaustion of domestic remedies);Violation of Art. 8;Violation of P1-1;Not necessary to examine Art. 13;Just satisfaction reserved;Costs and expenses award - Convention proceedings
JUDGES: Georg Ress
TEXT: 10. The applicant is a Cypriot national of Greek-Cypriot origin, born in 1929 and living in Nicosia.
11. The applicant states that he is the registered owner of a plot of land (Registration number: 1071, Sheet / Plan: XII/20 E, Plot 122) situated on the sea front in the district of Kyrenia in northern Cyprus. He also maintains that he is the owner of a two-storey house, which he built on the above-mentioned plot of land. He submits that the house was fully furnished and equipped and that it was used by him and his family on a regular basis not only for weekend and holiday purposes but also as a home.
12. The applicant states that since 1974 he has been prevented by the Turkish armed forces from having access to his property, using and enjoying possession of it as well as developing it. In addition, he claims that according to evidence his home is currently occupied by officers and/or other members of the Turkish armed forces.
13. On 30 June 2003 the “Parliament of the Turkish Republic of Northern Cyprus” enacted the “Law on Compensation for Immovable Properties Located within the Boundaries of the Turkish Republic of Northern Cyprus”, which entered into force on the same day.
VIOLATED_ARTICLES: 8


ITEMID: 001-70463
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF TANRIKULU AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: No violation of Art. 5-1-c;Violation of Art. 5-3;Pecuniary damage - financial awards to two applicants, one claim dismissed;Non-pecuniary damage - financial awards to all applicants;Costs and expenses partial award - Convention proceedings
JUDGES: David Thór Björgvinsson;Feyyaz Gölcüklü
TEXT: 10. The applicants were born in 1966, 1973 and 1971 respectively and live in Diyarbakır.
11. The first and the third applicant are lawyers. The first and the second applicants were members of the Human Rights Association and the third applicant was the president of the HADEP Diyarbakır provincial headquarters at the time of the events.
12. Following information received by the gendarmes that there was a meeting related to the PKK in the provincial headquarters of the HADEP (Halkın Demokrasi Partisi-People’s Democracy Party) and the Diyarbakır branch of the Human Rights Association, the police officers at the Diyarbakır Security Directorate, after receiving authorisation from the Diyarbakır Governor’s Office and a search warrant from the judge at the State Security Court upon the request of the public prosecutor at that Court on 27 February 1995, conducted a search on the premises and arrested the applicants together with eleven other persons.
13. On 27 February 1995 the applicants were handed over to the gendarmes at the Diyarbakır Provincial Gendarmerie Command.
14. According to the report drafted by the gendarmerie on 28 February 1995, at the HADEP headquarters, the police seized eight ERNK (National Liberation Front of Kurdistan) and PKK flags, a PKK emblem, sixty-five books and nine VHS videotapes about the PKK, seven audio tapes and documents addressed to the Secretary General of the European Parliament. They also found a pistol on one of the suspects.
15. On 9 March 1995 the applicants were brought before the public prosecutor and the State Security Court. The latter ordered their remand in custody.
16. On 22 March 1995 the public prosecutor at the State Security Court filed an indictment with the latter accusing the applicants and the other suspects of having made propaganda on behalf of the PKK. He requested that the applicants and other detainees be convicted and sentenced for membership of an illegal organisation under Article 168 § 2 of the Criminal Code.
17. On 1 May 1995 the State Security Court, taking into account the charges and the evidence against the applicants, ordered their release pending trial.
18. On 8 April 1996 the State Security Court acquitted the applicants of all charges. It held that the materials found in the search could have been placed there by anyone and that apart from their statements in custody, which the applicants claimed to have given under duress, there was no evidence to convict them.
19. On 16 April 1997 the Court of Cassation upheld the aforementioned judgment.
20. On 26 November 1997 the first applicant filed a petition with the Diyarbakır Assize Court under Law no. 466 pertaining to the payment of compensation to persons unlawfully arrested or detained. On 30 December 1997 the Diyarbakır Assize Court awarded the applicant an amount of compensation in respect of non-pecuniary damage to compensate the periods he spent in detention. This decision was upheld by the Court of Cassation on 29 September 1998.
21. The relevant domestic law and practice in force at the material time can be found in Elçi and Others v. Turkey (nos. 23145/93 and 25091/94, §§ 582-586, 13 November 2003) and Nuray Şen v. Turkey (no. 41478/98, §§ 13-16, 17 June 2003).
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-106446
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF KARBOWNICZEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 3 (substantive aspect)
JUDGES: George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1979 and lives in Wałbrzych.
A. The applicant’s detention and criminal proceedings against him
6. On 27 July 2005 the applicant was arrested by the police on suspicion of having committed battery, uttered threats and intimidated a witness.
7. On 28 July 2005 the Wałbrzych District Court (Sąd Rejonowy) decided to remand the applicant in custody. The court relied on a reasonable suspicion that the applicant had committed the offences in question and the high probability that a heavy sentence would be imposed on him. The court further considered that there was a risk that the applicant might interfere with the course of the proceedings and bring pressure to bear on witnesses, particularly in the light of the fact that he had previous convictions.
8. On 27 October 2005 the applicant’s detention was extended. The court relied on the grounds given previously. The applicant’s appeal against this decision was dismissed on 3 November 2005.
9. On 23 December 2005 the District Court further extended the pre-trial detention in respect of the applicant and his two co-accused, considering it necessary in order to ensure the proper course of the proceedings. An appeal by the applicant was dismissed on 5 January 2006.
10. On 9 March 2006 the applicant and the two co-accused were indicted before the Wałbrzych District Court.
11. On 21 March 19 June, 12 September and 7 December 2006 the trial court further extended the applicant’s detention, finding that the original grounds for it remained valid. The court also considered that there was a risk that the accused would interfere with the proper course of the proceedings.
12. At a hearing held on 2 March 2007 the Wałbrzych District Court extended the applicant’s detention, reiterating the grounds invoked previously.
13. The applicant appealed against this decision.
14. On 21 March 2007 the Świdnica Regional Court (Sąd Okręgowy) dismissed the appeal. The court noted that the applicant had already “tried to influence the course of the proceedings”, had tried to abscond while being transported to the court and that he had already been convicted of offences similar to those with which he was charged in the present set of proceedings. The court also considered that the applicant might try to influence the testimony of his sister, who was accused in the same proceedings but who was not detained. The court concluded that detention on remand was the only preventive measure capable of ensuring the proper course of the proceedings.
15. Subsequently, on 30 May 2007, the applicant’s detention was extended on the grounds given previously.
16. Between 22 June 2006 and 3 July 2007 the applicant was serving a prison sentence imposed on him in a different set of proceedings.
17. On 3 July 2007 the Wałbrzych District Court convicted the applicant and sentenced him to eight years’ imprisonment. Together with two accomplices, the applicant was found guilty of, inter alia, forgery, battery, robbery and uttering threats. However he was not charged or convicted of membership of an organised criminal group.
18. The applicant lodged an appeal against the judgment.
19. On 21 December 2007 the Świdnica Regional Court quashed the first-instance judgment and remitted the case. On the same day the court extended the applicant’s detention, finding that the grounds previously given remained valid.
20. On 25 June 2008 the applicant’s detention was further extended. An appeal by the applicant against that decision was dismissed on 10 July 2008.
21. On 25 July 2008 the Wałbrzych District Court extended the applicant’s pre-trial detention; however, the court decided that the applicant could be released, under police supervision, on bail in the amount of 10,000 Polish zlotys (PLN) (approximately EUR 3,000 at that time). The court observed that the majority of the witnesses had been heard, so the risk that the applicant would try to bring pressure to bear on them was no longer justified.
22. The applicant submitted that he had no means to pay the bail.
23. On 14 August 2008 the applicant was released from detention although he had failed to pay the full sum specified in the bail decision.
24. On 18 October 2010 the Wałbrzych District Court convicted the applicant and sentenced him to six years’ imprisonment.
25. On 22 March 2011 the Świdnica Regional Court partly amended and partly quashed the judgment and remitted the case. The applicant was sentenced to seven years’ imprisonment.
26. On 19 April 2011 the applicant’s legal-aid counsel refused to lodge a cassation appeal against the judgment.
B. The events of 21 November 2006 as presented by the applicant
27. On 21 November 2006 the applicant was transferred from the Detention Centre to the Walbrzych District Court to attend a hearing. He was escorted by police officers, who left the door of the police van open thereby enabling him to escape. After several minutes he was stopped and brutally beaten up by the police officers. The applicant was brought back to the court building where he was handcuffed to a radiator, stripped naked, and again hit, kicked, strangled and hit with a gun by the police officers.
28. The applicant was then brought back to the courtroom, where he complained to the presiding judge about what had happened to him. An ambulance was called and the applicant was taken to a hospital where he was examined by a doctor. A medical certificate (which is hardly legible) issued by a doctor from the emergency room of the Wałbrzych Hospital, confirm abrasions to the applicant’s head.
29. Upon his return to the court building the applicant was again beaten up by police officers. Afterwards, he was transferred back to the Detention Centre, where he requested an examination by a doctor.
The following is an extract from a note in the “Health book of a detainee” (Książka Zdrowia Osadzonego”):
“21.11. 2006
[The applicant] submits that he was arrested by force by police officers. On his body can be seen: skin abrasion on the left side of his forehead measuring 5 cm by 3 cm, an abrasion on the lower part of his chin 3 cm long, two scratches on the right shoulder blade 10 cm long, a scratch on the right arm 6 cm long, an abrasion on the left side of his chest 15 cm long, abrasions on the knee, above the ankle, a blue mark under the right eye, a red mark on the neck and right knee.”
30. A note in the book dated 22 November 2006 confirmed that a forensic medical examination had been carried out confirming the injuries as previously described.
31. On 12 February 2007 the Wałbrzych District Prosecutor opened an investigation into the applicant’s allegations.
32. On 12 June 2007 an expert medical opinion was prepared.
33. On 15 June 2007 the Wałbrzych District Prosecutor decided to discontinue the investigation, finding that there was insufficient evidence that an offence had been committed. In the course of the investigation an expert was appointed. The testimony of T.G., who had been transported with the applicant to the court and was later present in the court building, was also heard. T.G. testified that he could not see what happened when the applicant had run out of the van, but he saw him later in the court, when waiting for his hearing. T.G. testified that he heard the applicant screaming in pain, as if he had been beaten.
The prosecutor gave the following reasons for her decision:
“In the course of the investigation the following course of events was established.
On 21 November 2006 [the police officers P.G., D.P. and R.G.] escorted [the applicant] from the Wałbrzych Police Station to the Wałbrzych District Court...
Next to the building of the Wałbrzych District Court [the applicant], having removed his hand from the handcuffs, pushed open the van door and ran off in the direction of [other] buildings. The action undertaken [by the police officers] led to the arrest of the applicant, who took fright at a warning shot fired by P.G. and lay down on the ground. He was handcuffed and led to the van and brought to the detainees’ room of the Walbrzych District Court. P.G. and R.G. took part in the pursuit of [the applicant]. [The third police officer] stayed in the van to watch over the other detainee. For their own safety, the police officers searched the applicant and confiscated money and other small items from him. The applicant was alone in the detainees’ room.
After having been searched, the applicant was handcuffed. At that moment he started hitting his head against the floor and walls and shouting that the police officers had beaten him up and that it was their fault. Since P.G. had left for Wałbrzych Police Station, in order to transmit the information about [the applicant’s] attempt to flee, the remaining [police officers], seeing [the applicant’s] behaviour, laid him on the floor and held his hands and legs to prevent him from injuring himself further. During that time the applicant tried to free himself, rubbed his head against the floor and shouted at the police officers that he would inform the prosecuting authorities of the fact that they had beaten him up. He also threatened to kill them. After about 30 minutes an ambulance came to give him something to calm him down, but the doctor decided to take [the applicant] to the hospital.
[Three police officers] went with [the applicant] to the hospital. In the hospital the applicant underwent the necessary examinations; then, since he was allowed to participate in the trial, the police officers took him to the Wałbrzych District Court. The applicant was then transported to the prison because the hearing had been adjourned.
The injuries sustained by [the applicant] on 21 November 2006 qualified as injuries that could happen in the circumstances described by both the victim and the police officers. However, the court expert established categorically that they could not have happened as a consequence of repeated kicking or beating with substantial force, as described by the victim.
On the basis of all the material collected in the case it can be unambiguously established that there is not enough evidence substantiating the allegations that the police officers escorting [the applicant] on 21 November 2006 committed an offence. It should be said that the possibility that the applicant was beaten up by the police officers cannot be totally ruled out. However, the evidence collected lends credence to the version of events given by the police, which differs completely from the one given by [the applicant] because there were no other witnesses to the event who could confirm [the applicant’s] version, and it is impossible to identify any such witnesses.
T.G., who was transported with the applicant, does not have any information concerning the incident, as from the moment the applicant escaped, he lost all contact with him.
As a side note it is to be pointed out that, judging from life experience, it is rather unlikely that the police officers, after having informed their superiors about the applicant’s running off, beat him up and subsequently, having brought the applicant from the hospital back to the court building and knowing that D.G., their supervisor, was already present in the court building, ill-treated the applicant yet again.
Since the version of the events given by the applicant was not confirmed by the evidence collected, his statements in this respect should be considered as untrue. It is therefore justified to discontinue the proceedings under Article 17 § 1 of the Code of Criminal Procedure on the grounds that there is no evidence sufficiently justifying the suspicion that an offence was committed.”
34. The applicant lodged an appeal against that decision.
35. On 15 June 2007 the prosecutor requested an expert to enlarge on [his] opinion by answering the question whether the injuries described below could have occurred in the circumstances as described by the police officers. The prosecutor stated as follows:
“On 12 June 2007 an expert opinion in forensic medicine was prepared which established that some of the injuries [sustained by the applicant], in particular an abrasion on the forehead, a bruise on the mandible, bruises on the shoulder blade, on the chest, and on the right thigh could be the result of hitting or kicking with minor force. When preparing the opinion, the expert was unaware of the testimonies given by the witnesses D.P. and R.G., the police officers...”
36. On 31 January 2008 the Wałbrzych District Court dismissed the appeal. The court entirely agreed with the prosecutor’s findings after having allowed the new evidence requested by the applicant in his appeal, namely the testimony of K.K., a witness who was present at the Wałbrzych District Court on 21 November 2006 and who allegedly saw the applicant being beaten by the police officers, and the additional testimony of T.G., who was transported with the applicant to a court hearing and was likewise present in the court building at the time the applicant was ill-treated.
K.K. submitted that he saw the applicant when he had been waiting for a hearing in the holding room at the court building. The holding room led to two cells. K.K. further submitted that there had been another woman in the room, who had also been transported to the court building for a hearing. According to K.K., the applicant had been placed in one of the cells; the door to the cell was left open. He could see the applicant, partly undressed (without a shirt and trousers) and handcuffed to a radiator. He saw the police officers entering the cell and insulting the applicant. He further submitted that, when leaning out, he had seen one of the police officers kicking the applicant. Subsequently, K.K. stated that he had seen some two to four police officers kicking the applicant.
In his additional testimony, T.G. submitted that at the court building, through a peep-hole in the door of his cell, he could see the applicant being pulled about by the police officers. He could not see whether the applicant had been beaten, but he heard him calling out in pain, which he associated with the applicant having been hit.
37. The court did not explain why K.K.’s testimony and the additional testimony of T.G. had been disregarded. The court did not refer either to the alleged stripping of the applicant. However, the court mentioned that the evidence obtained The court also took into account the supplementary expert opinion and concluded:
“[From the supplementary expert opinion upholding the conclusions of the original opinion, and after having examined other evidence requested by the applicant] it is clear that although the applicant sustained injuries, they do not indicate that he was repeatedly hit and kicked, and could have occurred when the applicant forcibly pushed the police van door open, fell, or lay down after fleeing, or when he struggled with the police officers while in a lying position and was held down by force; the abrasion on the forehead could have happened when he was rubbing his head against the ground, and [all these injuries] were slight and minor in nature.
In the light of the above and after all possible investigative actions have been carried out, it is impossible in the circumstances to establish the existence of evidence to prove that the offence was committed. Having analysed the material collected in the case, the court agreed with the prosecutor’s findings in full and decided as in the operative part.”
38. The regulations on the permissible use of direct coercive measures by the police are laid down in section 16 of the Police Act, which provides that in situations in which a police order is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of the particular situation and in so far as they are necessary to obtain compliance with that order.
39. Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provides that direct physical force can be used to overpower a person, to counter an attack and to ensure compliance with an order. When such force is being used, it is forbidden to strike the person against whom the action is being carried out, except in self-defence or to counter an attack against another person’s life, health or property.
40. The relevant domestic law and practice concerning the imposition of detention on remand (tymczasowe aresztowanie), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
41. For the latest amendments of the provisions concerning detention on remand, see the Court’s judgment in the case of Kauczor v. Poland, no. 45219/06, § 25-33, 3 February 2009.
VIOLATED_ARTICLES: 3


ITEMID: 001-67575
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MIEDZYZAKLADOWA SPOLDZIELNIA MIESZKANIOWA "WARSZAWSCY BUDOWLANI" v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Miedzyzakładowa Spółdzielnia Mieszkaniowa Warszawscy Budowlani, is a Polish housing co-operative, located in Warszawa.
On 3 April 1998 the Warsaw Regional Court ordered the applicant housing co-operative to pay PLN 37,484 to T.D. and T.J. The applicant co-operative appealed. On 9 March 1999 the Warsaw Court of Appeal dismissed the appeal. On 13 August 1999 the applicant co-operative brought an appeal on points of law before the Supreme Court.
By an order of 13 November 2001 the Supreme Court refused to entertain the appeal. When doing so, the court relied on provisions of the Code of Civil Procedure as amended in May 2000 allowing it not to examine manifestly ill-founded appeals or appeals in cases where no serious legal issue arose, even if these appeals had been brought before 1 July 2000, the date on which the amendments of May 2000 entered into force.
Subsequently, on 27 June 2003, the Constitutional Court examined a constitutional complaint in which the complainant (not the applicant cooperative) submitted that the May 2000 amendments to the Code of Civil Procedure providing for the possibility to leave an appeal on points of law unexamined had come into force after her appeal had been lodged with the Supreme Court. She argued that, as a result, the May 2000 amendments to the Code breached the Constitution insofar as it guaranteed the rule of law, which encompassed, inter alia, the principle that law should not apply retrospectively. It was also argued that these provisions breached the complainant's right to a fair hearing in that she was deprived of her right to have an appeal on points of law examined in full by the Supreme Court.
The Constitutional Court held, in its judgment of 9 June 2003 (SK 12/03) that the May 2000 amendments were in breach of Article 2 of the Constitution, referring to the rule of law as a fundamental constitutional principle. It further held that it was not necessary to determine whether they were compatible with Article 45 of the Constitution, guaranteeing a right to a fair hearing (see Relevant domestic law).
On 28 July 2003 the applicant co-operative lodged a request for the re-opening of the proceedings before the Supreme Court, relying on this judgment of the Constitutional Court. It was argued that the Supreme Court's interlocutory order given in its case on 13 November 2001 had been issued on the basis of the May 2000 amendments, subsequently declared unconstitutional by the Constitutional Court. Therefore the judgment of the Constitutional Court provided grounds on which, in conformity with Article 190 § 4 of the Constitution, the proceedings in which a decision based on these provisions had been given should be re-opened and the order quashed.
On 9 October 2003 the Supreme Court dismissed the request for the re-opening of the proceedings. The Court stated that it was aware of the judgment of the Constitutional Court of 9 June 2003. However, it observed that Article 4011 of the Code of Civil Procedure provided that proceedings could only be re-opened following a judgment of the Constitutional Court, if the unconstitutional provision had served as a basis for a decision on the merits. In the present case the unconstitutional provisions had served as a basis for an interlocutory order, i.e. for the Supreme Court's refusal to entertain the appeal on points of law. Therefore the proceedings could not be re-opened, Article 4011 of the Code of Civil Procedure not providing a legal basis for doing so.
A party to civil proceedings can lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the proceedings.
Article 3931 of the Code of Civil Procedure provides:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law by its erroneous interpretation or wrongful application,
2) a breach of procedural provisions, if that shortcoming could significantly affect the outcome of the case.”
Pursuant to Article 393 ¹³ the Supreme Court, having allowed a cassation appeal, may quash the challenged judgment in its entirety or in part and remit the case for re-examination.
On 24 May 2000 a law was enacted amending the Code of Civil Procedure. It introduced, inter alia, the following provision:
“1. The Supreme Court may refuse to entertain the cassation appeal, if:
i) there is no appearance of any significant legal issue in the case,
ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case-law,
iii) that appeal is manifestly ill-founded.
2. Paragraph 1 shall not apply if the challenged judicial decision manifestly breached law or when the proceedings are invalid at law (zachodzi niewaznosc postepowania).”
This provision entered into force on 1 July 2000. However, Article 5 of the Law of 24 May 2000 provided, in so far as relevant:
“2. The provisions being in force so far shall apply to the lodging and examination of appeals against judicial decisions given before the day of entry into force of [this] law.”
A controversy arose over the latter provision, which led to the Supreme Court's resolution of 17 January 2001 (no. III CZP 49/00). The Supreme Court answered in the affirmative the question whether it may refuse to entertain a cassation appeal against a judicial decision given by the second instance court before 1 July 2000. The court relied on the principle of the “immediate application” of procedural provisions, which it considered operative under Polish law since at least 1939. Pursuant to that principle, procedural provisions enter into force immediately and are applicable to proceedings regardless of the moment of their initiation. It found that Article 5 of the Law of 24 May 2000 provided for two exceptions to the application of that principle. One such exception concerned the examination of appeals against judicial decisions given before 1 July 2000. However, that provision related to the “examination” of an appeal whereas, pursuant to the amended Code of Civil Procedure, the court could refuse the examination of certain cassation appeals. It further noted that mere assessment of whether an appeal is manifestly ill-founded or whether a serious legal issue arises cannot be regarded as an examination. Therefore, the Supreme Court considered that the exception to the principle of “immediate application”, in so far as it relates to the examination of appeals, does not cover cassation appeals.
The court further pointed out that the amendments to the Code of Civil Procedure made it possible for that court to carry out properly its tasks relating to the cassation procedure, which at that time were significantly hindered by the enormous backlog of trivial and manifestly ill-founded appeals. It stated:
“In addition, it must be noted that the backlog in the Supreme Court leads in concrete cases to a violation of Article 6 of the Convention (...), which, especially after the most recent judgments of the European Court of Human Rights in cases against Poland concerning the unreasonable length of proceedings, cannot be discounted.”
Finally, the court found the amendment at issue compatible with the Polish Constitution, in particular with the principle of a two instance judicial system, and Article 6 of the Convention, relying in this connection on the Brualla Gómez de la Torre v. Spain judgment of this Court.
Article 79 § 1 of the 1997 Constitution provides as follows:
“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
At the material time, the complaint had to be lodged within 2 months from the date on which the individual decision was served (Article 46 § 1 of the Constitutional Court's Act). This time-limit was extended to 3 months with effect from 8 October 2000.
Article 399 of the Code of Civil Proceedings provides that a civil case terminated by a final judgment on the merits can be reopened if applicable requirements set out in the Code are met.
Article 2 of the Polish Constitution of 1997 reads:
“The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.”
Article 45 of the Constitution reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. Exceptions to the public nature of hearings may be made for reasons of morality, State security, public order or protection of the private life of a party, or other important private interest. Judgments shall be announced publicly.”
Article 190 of the Constitution, insofar as relevant, provides as follows:
“1. Judgments of the Constitutional Court shall be universally binding and final.
2. Judgments of the Constitutional Court, ... shall be published without delay.
3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers.
4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, a final administrative decision or settlement of other matters was issued, shall be a basis for re-opening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings”.
Article 4011 of the Code of Civil Procedure provides that a party to civil proceedings which have terminated with a final judgment on the merits can request that these proceedings be re-opened, if the Constitutional Court has found that the legal provision on the basis of which this judgment was given was incompatible with the Constitution. Such a request can be lodged with the competent court within one month from the judgment of the Constitutional Court.
On 9 June 2003 the Constitutional Court ruled on the compatibility with the Constitution of the May 2000 amendments to the Code of Civil Procedure. The Court held that these provisions, taken together with their interpretation given by the resolution of the Supreme Court (referred to above at 2) were unconstitutional. This was so as the transitory provisions concerning the procedure to be followed in the examination of appeals on points of law lodged with the Supreme Court before 1 July 2000, the date on which these amendments entered into force, lacked clarity. As a result, their interpretation could legitimately lead to opposite conclusions as to whether appeals lodged before 1 July 2000 were to be examined under the procedural provisions in force before, or after that date. On the ordinary meaning of the text, a reasonable interpretation was that the appeals lodged before 1 July 2000 should be examined under the provisions in force at the time when they were lodged with the Supreme Court. This, in the opinion of the Constitutional Court, was indeed the intention of the legislator. However, the interpretation given to these provisions by the Supreme Court led to a contrary conclusion. The failure of the legislator to formulate these transitional provisions in a clear and precise manner so as to allow the appellants to know which procedure would be followed by the Supreme Court when examining their appeals was in breach of Article 2 of the Constitution which provides that the rule of law is a fundamental constitutional principle. The rule of law not only requires that legal provisions be clear and precise, but it also imposes on the state an obligation not to enact laws which arbitrarily change the procedure to be applied in the examination of a case after that case had been launched.
On 2 March 2004 the Constitutional Court gave a judgment in two joined cases, in which the complainants had essentially submitted that Article 4011 of the Code of Civil Procedure was unconstitutional. The complainants relied on the fact that their cases the courts had refused to re-open civil proceedings given on the basis of a provision which had subsequently been declared unconstitutional. The courts considered that they could not re-open the proceedings, as the cases had been terminated by interlocutory decisions, not by judgments on the merits.
The Constitutional Court held that Article 4011 of the Code of Civil Procedure was compatible with the Constitution. However, it criticised the legislator for the manner in which this provision had been inserted into the context of provisions concerning the re-opening of proceedings. While this provision was clearly designed to rescind decisions given on the basis of laws subsequently declared unconstitutional, it was so formulated as to allow the erroneous conclusion that such re-opening could only be effected in respect of proceedings terminated by a final decision on the merits. Such interpretation inevitably led to a conclusion that interlocutory decisions based on provisions subsequently declared unconstitutional could be left intact. This, in the Constitutional Court's conclusion, was manifestly unreasonable. However, there were no grounds on which to find this provision as such unconstitutional. It was not so much the provision itself which failed to meet the constitutional standards. It was rather the failure of the courts to interpret it correctly in such a way as to allow for the re-opening of all proceedings based on unconstitutional provisions, regardless of whether the final decision given in such proceedings was an interlocutory order or a judgment on the merits. The courts had at their disposal an array of such measures. It was not for the Constitutional Court to indicate which measures should be applied in this respect, and in what manner.
A case SK 1/04 is currently pending before the Constitutional Court in which that court was invited to review whether Article 4011 of the Code of Civil Procedure is compatible with Article 190 § 4 of the Constitution. The complainant submitted that the Supreme Court's interpretation of Article 4011 has not changed despite the suggestions contained in the Constitutional Court's judgment of March 2, 2004. Since it led to consistent refusals to re-open civil proceedings terminated by interlocutory decisions given on the basis of a provision subsequently found unconstitutional, the provisions of Article 190 § 4 of the Constitution have thereby been rendered ineffective.