ITEMID: 001-86298
LANGUAGEISOCODE: ENG
RESPONDENT: NOR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ORR v. NORWAY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 5. On 7 August 2001, the applicant co-piloted a British Airways flight from Newcastle to Gardermoen Airport outside Oslo. There were three other crew members on board, including Ms C. (1st Cabin Crew). All four crew members were to stay overnight at an airport hotel before flying back to the United Kingdom the next day.
6. On 1 November 2002 the Eidsvoll District Court (tingrett) convicted the applicant of having raped C and sentenced him to 2 years’ and 6 months’ imprisonment and ordered him to pay her NOK 75,000 for non-pecuniary damage and NOK 160,000 for pecuniary damage.
7. On an appeal by the applicant, the Eidsivating High Court (lagmannsrett), sitting with a jury, held a fresh hearing in the case. The jury answered the questions relating to the charges in the negative (no reasons are given by a jury).The professional judges decided to pass judgment on the basis of the jury’s verdict and acquitted the applicant by a judgment of 20 March 2003.
8. Ms C. maintained the claim that the applicant was civilly liable to pay compensation under the Damage Compensation Act 1969. The High Court, consisting of the professional judges, considered the claim the next day. By two votes to one the High Court concluded, in the same judgment, that the applicant was liable and ordered him to pay NOK 74,000 in compensation for pecuniary damage and NOK 25,000 for non-pecuniary damage.
9. The High Court’s judgment included the following account and reasoning:
“The High Court jury was asked one main question, which concerned forcible coitus. The jury answered the question in the negative. Thereafter the jury was asked one main question as to whether the accused was guilty of obtaining, by gross negligence, sexual relation by violence or threatening behaviour. There was additionally put a supplementary question as to whether the sexual relation mentioned in the main question constituted coitus. The jury answered the main question in the negative. The court bases the judgment on the jury’s verdict.
[The applicant] is therefore acquitted of the indictment raised against him.
The victim’s assistant counsel stated, after the jury’s verdict had been made known, that the compensation claim for pecuniary and non-pecuniary damage would be maintained. The victim has claimed an amount up to NOK 74,000 in compensation for pecuniary damage and up to 75,000 NOK for non-pecuniary damage. The accused has pleaded that he should be released from the claim.
Despite the fact that [the applicant] has been acquitted of having, with intent or gross negligence, raped [Ms C.], under Norwegian law, she has not thereby lost her possibility to claim compensation under the civil law on tort for the harmful act that she claims has taken place. Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal.
The compensation issue shall be determined under the Damage Compensation Act 1969.
If the victim has been exposed to an infringement or misconduct as described inter alia in Article 192 of the Penal Code, compensation for pecuniary damage resulting from the infringement or misconduct may be awarded under sections 3-1 and 3-3 of the Damage Compensation Act. In section 3-5 it is further stipulated that a person who with intent or gross negligence has “... committed infringement or an act of misconduct as mentioned in section 3-3” may be ordered to pay to the victim such a lump sum as the court deems would constitute reasonable compensation for the pain and suffering and other non-pecuniary caused thereby.
Because [Ms C.] alleges that the applicant has been guilty of an aggravated act against her in respect of which he has been acquitted of criminal liability, it is required in the assessment of the evidence that on the balance of probabilities it is clearly probable [klar sannsynlighetsovervekt] that the act has taken place. This means that considerably more than ordinary probability is required, albeit not the same strength of evidence being required as for establishing that the perpetrator is guilty in a criminal case.
[The applicant] and [Ms C.] spent the night from 7 to 8 August 2001 at SAS Radisson Hotel at Gardermoen. [...]
On the basis of [Ms C.]’s evidence and the requirement of clear of probability on the balance of probabilities in order to fulfil the requirement of proof, the High Court finds it established for its decision on compensation that the applicant called her at her hotel room during the night with the pretext that he needed to borrow or to get some drinks as he himself had ‘gone dry’. [Ms C] was lying asleep when the telephone rang and was irritated about the disturbance, but she replied that he could come and get something from her mini-bar. Immediately thereafter he knocked on the door. [Ms C.] who was not wearing night clothes did not have the time to get dressed, but covered herself with her quilt, opened the door and let the applicant into the room. She could see that he was intoxicated. He went to the mini-bar and fetched something to drink, but instead of leaving he sat down on her bed and started talking. After a short time he began pulling her quilt in order to remove it. She asked him to leave, but he did not follow her suggestion. At a certain point in time he managed to get the quilt off her, but she managed to get up and put it around her again.
[The applicant] continued to pull the quilt and drew her towards himself and also got himself undressed. In the end they were both in the bed.
The High Court unanimously finds that on the balance of probabilities it is clearly probable that [the applicant] during this night had sexual intercourse with [Ms C.] and that this intercourse was not consensual on her part.
As to the question whether the remaining conditions for making an award of compensation have been fulfilled, the High Court is divided in a majority and a minority.
The majority [...] finds on the evidence that on the balance of probabilities it was clearly probable that [the applicant] understood that [Ms C.] did not want sexual relations with him, but nonetheless forced coitus upon her by exercising such a level of violence [vold] that the act could be accomplished. There was no question of serious use of violence [alvorlig voldsbruk], only of overpowering by holding [Ms C.]’s arms. Even though the victim had different alternatives for escaping the situation, which she for different reasons did not find that she could use, this does not alter the basic character of the act which was wilful violation by the use of violence [vold].
Against the background of the majority’s finding that it has been established that on the balance of probabilities it was clearly probable that [the applicant], by the use of violence [vold] has gained [tiltvunget seg] sexual intercourse with [Ms C.], the conditions for making an award of compensation have been fulfilled. [...]
The minority, ..., has found that the conditions for ordering the accused to pay compensation have not been fulfilled.
The minority does not find it has been made sufficiently probable that [the applicant] understood that the sexual intercourse was not consensual on [Ms C.]’s part or displayed gross negligence in this respect.”
10. On 12 May 2004, on the basis of the High Court’s judgment, the applicant’s appeal within the company against his dismissal from his job as a pilot for British Airways was refused.
11. The applicant appealed to the Supreme Court against the High Court’s procedure, assessment of evidence and application of the law. The appeal on the latter point was on the ground that, contrary to Article 6 § 2 of the Convention, the High Court had failed in its judgment to make it sufficiently clear that the order to pay compensation did not affect his acquittal of the charges. By a decision of 9 October 2003 the Appeals Selection Committee of the Supreme Court granted leave to appeal with respect to this ground of appeal, while refusing such leave for the remainder.
12. In support of his appeal against the High Court’s application of the law, the applicant argued, inter alia the following. For a judgment awarding compensation to be rendered after an acquittal, there was a requirement under the European Court’s case law relating to Article 6 § 2 of the Convention that the reasoning stated in the judgement be worded in such a way as not to cast doubt on the correctness of the acquittal. This entailed firstly that the judgment must make a clear distinction between the acquittal on the criminal charge and the decision on compensation. It ought to be made clear that the subject-matter for the two issues, respectively criminal and civil liability, are different and that the award of compensation did not weaken the acquittal. In this case, the High Court had failed to create the necessary distance between the two issues, since the reasoning in the judgment went on immediately thereafter to deal with the subject of compensation. Moreover, no express reservation had been stated with regard to the acquittal.
Furthermore, the applicant argued, it was necessary to avoid the use of formulations that might serve to raise doubts about the acquittal. In several places, the High Court had used such formulations, including the expressions “guilty”, “the use of force” and “sexual intercourse by force”. This came so close to establishing that the conditions for criminal sexual assault had been fulfilled that the presumption of innocence must be deemed to have been violated. Extra care ought to be exercised when formulating the reasoning in a judgment where the questions of criminal liability and civil liability to pay compensation are decided in the same case. In this connection the applicant relied on the Court’s judgment of 11 February 2003 in Y. v. Norway (no. 56568/00, ECHR 2003II).
The applicant, again referring to the aforementioned Y v. Norway judgment and also to Article 13 of the Convention, submitted that, if the Supreme Court were to find a breach of the Convention in the present case, it would have to quash the lower court’s judgment. Where a decision suffered from such defects, due process required that there be an entirely fresh assessment of the evidence. If there was no basis for setting the impugned judgment aside, then at the very least a declaratory judgment ought to be rendered, stating a violation of the Convention.
13. On 24 February 2004 the Supreme Court unanimously rejected the applicant’s appeal against the High Court’s judgment on compensation, finding no breach of Article 6 § 2 of the Convention.
The first voting judge, Ms Justice Stabel, gave the following reasons:
(23) I have concluded that the reasons given by the High Court do not contravene the presumption of innocence in Article 6 § 2 of the Convention [...] and accordingly that the appeal will not succeed.
[...]
(25) With regard to the details of the provision applied in our case, it is in my view appropriate to base our assessment on the judgment rendered by the Supreme Court on 27 November 2003 in Case No. 2003/227. This judgment was rendered after the guiding judgments by the European Court of 11 February 2003 in Y. v. Norway [cited above] and Ringvold v. Norway [no. 34964/97, ECHR 2003II]. Reference is made to the thorough discussion of the decisions – and past case-law of the European Court – contained therein. Therein it is stated that Article 6 § 2 protects any person suspected of a criminal offence against any affirmations being made in court decisions on other statements by public authorities that he is guilty of a criminal offence, without his having been convicted in a criminal case.
(26) It is accordingly clear – and undisputed – that it is not contrary to the presumption of innocence for a person who has been acquitted of a criminal charge to be ordered to pay compensation in a civil case, even if in terms of content the material facts upon which the claim for compensation is based correspond to the conditions for criminal liability. However, where a person who has been acquitted of a criminal charge is ordered to pay compensation, it is a requirement that the grounds on which the compensation order is based must not be formulated in such a way as to cast doubts over the correctness of the acquittal. Moreover, provided that the compensation order is not formulated in this way, Article 6 § 2 of the Convention [...] does not constitute an obstacle to the person acquitted of the criminal charge being ordered to pay compensation in the same case for the act to which the indictment related.
(27) According to Article 3 of the Code of Criminal Procedure, ... a legal claim that the victim or other injured parties have against the accused may be adjudicated in the criminal case, provided that the claim derives from the same act as the criminal case. The possibility to review the claim for compensation in the criminal case has clear advantages from the point of view of procedural economy and saves the victim from the financial and emotional burden of undergoing two trials. The evidentiary requirements in civil actions are less stringent than those that apply in criminal cases. An unavoidable consequence of this is that a person who has been acquitted of a criminal charge may be ordered to pay compensation in the same case, based on the finding that he committed the act in respect of which s/he had been acquitted. In order to enable this without creating doubts about the acquittal, strict requirements should apply to the reasoning contained in the judgment awarding compensation.
(28) The ground for the appeal is that the reasons given in the High Court’s judgment on this point violated the presumption of innocence. In its judgment of 27 November 2003, the Supreme Court found that an appeal lodged on this basis must be regarded as an appeal on the ground of procedural error. This too is my finding.
(29) Under Article 144(4) of the Code of Civil Procedure, the reasoning in a judgment in a civil case must ‘state precisely and exhaustively the facts on which the Court bases its decision ...’. In our case the basis for compensation for pecuniary and non-pecuniary damage is sections 3-3 and 3-5(1)(b)of the Damage Compensation Act 1969. It is a condition in both of these provisions that the tortfeasor has inflicted on the victim a violation of the type provided for in Article 192 of the Criminal Code. The court must therefore make it clear that it has found proven a fact which from an objective point of view constitutes a breach of this provision. The subjective conditions for liability also coincide to some extent, namely that compensation for pecuniary and non-pecuniary damage requires intent or gross negligence and that Article 192 (4) of the Criminal Code also makes sexual assault by gross negligence a criminal offence.
(30) Given the manner the conditions for compensation have been formulated, it is not possible to avoid coming close to a criminal- law assessment. In order to do this, without casting doubt on the acquittal, the court must in my view take as a starting point what inter alia distinguishes the legal consequences, i.e. the requirement of proof that the conditions have been fulfilled. The finding that, in objective terms, a breach of Article 192 has occurred cannot be avoided. The same applies to the subjective conditions for compensation. What must be avoided is casting doubt over the correctness of the acquittal, in view of the strict evidentiary requirements that apply in criminal cases.
(31) The High Court opens the section of the judgment in which the compensation issue is decided by stating that notwithstanding the acquittal of [the applicant], under Norwegian law [Ms C.] has not forfeited her right to claim compensation for pecuniary and non-pecuniary damage under the rules on civil compensation for the tortuous act which she says has taken place. The Court continues:
‘Because other and weaker requirements of proof apply for establishing that an act has occurred under the civil law on tort than when there is question of imposing criminal liability for the same act, an award of compensation for pecuniary/non-pecuniary damage would not in itself amount to setting aside the acquittal.’
(32) The defence has argued that the interjection ‘in itself’ constitutes a reservation that opens the way for the conclusion that doubt is cast on the judgment. I do not agree with this, nor that the High Court, when providing in a subsequent paragraph a further description of the evidentiary requirements, refers to [Ms C.]’s claim that [the applicant] was ‘guilty’ of an aggravated act towards her for which he has been acquitted in terms of criminal law. The expression ‘guilty’, which in fact was a quote from [Ms C.]’s submissions, must be viewed with reference to the evidentiary requirements applicable in compensation cases of this nature and to the other conditions.
(33) After having outlined the chain of events that it has found established, the High Court concluded that ‘it is clear on the balance of probabilities that on this night [the applicant] had sexual intercourse with [Ms C.] and that this intercourse was not voluntary on her part’. This cannot in my view be regarded as an attack on the acquittal. Nor does it go any further than what is necessary in order to establish that the conditions for compensation are present. The same applies when the majority of the High Court states that on the balance of probabilities it was clearly probable that [the applicant] realised that [Ms C.] did not want sexual intercourse with him and that ‘[the applicant] by the use of violence has gained sexual intercourse with [Ms C.].’
(34) To sum up, I note that the High Court provided a clear account of the differences between the evidentiary requirements for punishment and those applicable to compensation. Moreover, the assessment of the conditions for compensation took place on an independent basis without any reference to the indictment or the written list of questions put to the jury. Furthermore, as I have already noted, I do not find that expressions of a typically criminal- law character were used. Factors of this nature were found to be decisive when the Supreme Court ruled on 27 November 2003 that the presumption of innocence had been violated in that case, see paragraphs 36 and 38 of the decision. In our case, I am accordingly of the view that the High Court marked the necessary distance to the criminal case and that it did not cast doubt on the acquittal in other ways.
(35) I have concluded on this basis that the appeal must be rejected.”
The four other judges agreed with the first voting judge “in the main and the conclusion”.
14. The applicant has submitted a letter of 20 October 2004 from the Compensation Office for Victims of Violent Crime (Kontoret for voldsoffererstatning). It states that by a decision of 24 May 2004 the Office had granted Ms C. NOK 182,313 in compensation, “having found it shown on the balance of probabilities it was clearly probable that she had been inflicted personal injury as a result of a criminal act.” It further notified the applicant that the Office might seek restitution of NOK 124,000 from him.
15. In so far as relevant, Article 192(1) and (2) of the Penal Code read:
“Any person who
a) engages in sexual activity by means of violence or threats, [...]
shall be guilty of rape and liable to imprisonment for a term not exceeding 10 years. In deciding whether the offender made use of violence or threats or whether the aggrieved person was incapable of resisting the act, importance shall be attached to whether the aggrieved person was under 14 years of age.
A penalty of imprisonment for not less than two years shall be imposed if
a) the said activity was sexual intercourse, or [...]
A person who, due to gross negligence, is guilty of rape according to the first paragraph above shall be punished with minimum five years’ imprisonment. ... ”
16. Under Norwegian criminal law there are four basic conditions that must be met in order to establish criminal liability:
(1) the accused has committed the proscribed act or omission (actus reus) which is contrary to a provision of the Penal Code or to a special statutory penal provision in force at the time when the act was committed;
(2) there are no exonerating circumstances (e.g. self-defence);
(3) the accused has acted with intent (mens rea), unless otherwise expressly stated in the relevant penal provision; and
(4) the accused was of sound mind at the time of the commission of the offence.
As a general rule, the prosecution has to prove these four elements beyond reasonable doubt. Any reasonable doubt shall benefit the accused (in dubio pro reo).
17. In so far as is relevant, Article 376A of the Code of Criminal Procedure reads:
“If the jury’s verdict is that the person is not guilty, but the court finds that he is undoubtedly guilty, the court may unanimously decide that the case shall be retried before other judges. At the new trial the High Court shall be constituted as a composite court (meddomsrett)...”
18. Article 376 of the same Code provides:
“If the jury’s verdict is that the accused is not guilty and if the court does not take a decision pursuant to Article 376A, it shall render a judgement of acquittal.”
No reasons are given for an acquittal.
19. Under the Code of Criminal Procedure 1981, a civil claim may be pursued in connection with a criminal trial, provided that the claim arises from the same set of facts. The claim is decided by the three professional judges who have taken part in the criminal case, without the participation of the jury.
Article 3 reads:
“Any legal claim that the aggrieved person or any other injured person has against the person charged may, in accordance with the provisions of Chapter 29, be pursued in connection with such cases as are mentioned in Article 1 or Article 2, provided that the said claim arises from the same act that the case is concerned with...
The claims specified in the first and second paragraphs are deemed to be civil claims and shall be dealt with in accordance with the provisions of Chapter 29...”.
20. The court will determine the claim on the basis of the evidence adduced during the trial. However, it may receive further evidence. Article 144 of the Code of Civil Procedure, then in force, (tvistemålsloven- Law of 13 August 1915 no. 6; replaced with effect from 1 January 2008 by a new Code) required that the professional judges, precisely and exhaustively, state the facts on which they base their decision on the alleged victim’s civil claim.
21. Other provisions concerning civil compensation claims may be found in Chapter 29 of the Code of Criminal Procedure, notably the following:
Article 427
“In a public prosecution, the prosecuting authority may on application pursue such civil legal claims as are specified in Article 3. ...
When civil claims are pursued against a person other than the person charged, the person concerned assumes the position of a party to the case in so far as this issue is concerned. ...”
Article 428
“Any person who has any such civil claim as is specified in Article 3 may himself pursue it in connection with a public prosecution if a main hearing is held. ...”
Article 435
“A separate appeal against a decision of civil claims shall be brought in accordance with the provisions of the Code of Civil Procedure. The same shall apply to a reopening of the case.”
22. Under the Damage Compensation Act 1969, the alleged victim may, regardless of the outcome of the criminal proceedings, claim compensation for pecuniary and non-pecuniary damage.
Section 3-5, as in force at the relevant time, read as follows:
“Anyone who, with intent or gross negligence has
a. Caused personal injury or
b. Committed an infringement or an act of misconduct as mentioned in section 33, may ... be obliged to pay the victim such a lump sum as the court deems would constitute reasonable compensation (oppreisning) for the pain and suffering and other non-pecuniary damage caused thereby. ...
A person who with intent or gross negligence has caused the death of another person, may be ordered to pay such compensation to the deceased’s ... parents.”
23. Section 3-3, referred to in the above provision, expressly applies to misconduct mentioned in, amongst others, Article 192 of the Penal Code.
24. A claim for compensation for nonpecuniary damage submitted by a victim under section 3-5 of the Act is subject to his or her showing that the alleged perpetrator, with intent or gross negligence, committed the wrongful act. The test is normally the balance of probabilities and the burden of proof lies with the claimant. However, in a landmark ruling of 1996 concerning civil liability for forced sexual intercourse (Norsk Retstidende 1996, p. 864, at p. 876; Ringvold v. Norway, no. 34964/97, §§ 16-19, ECHR 2003II) the Norwegian Supreme Court held that the requirement as to the strength of the evidence had to be stricter than that which applied to the test of the balance of probabilities, bearing in mind the burden which an allegation of reprehensible conduct might have for the defendant and the serious consequences it might have for his or her reputation. In a case of the kind under consideration, the test had to be whether on the balance of probabilities it was clearly probable that the alleged abuse had been committed (“klar sannsynlighetsovervekt”). This burden was heavier where liability may have serious consequences for the respondent’s reputation, though it was less than for criminal liability.
25. The objective constitutive elements of acts which may give rise to both criminal liability and civil liability to pay compensation are not always the same. The subjective constitutive elements in principle differ: normally criminal liability requires intent whereas liability to pay compensation requires gross or simple negligence. There may be exonerating circumstances – such as self-defence, necessity, provocation or ignorance – which exclude criminal liability but which do not exclude liability to pay compensation (see Norges Offentlige Utredninger (Official Norwegian Report) 2000:33 “Erstatning til ofrene hvor tiltalte frifinnes for straff” (Compensation to Victims in Cases where the Accused has been Acquitted of the Criminal Charge), study by Mr J. T. Johnsen, Professor of Law, Chapter 1, sub-chapter 1.3.2).
26. The purposes of the criminal law and the law on compensation are not identical. While deterrence and restoration are important considerations in both areas of law, the former places emphasis on retribution and the latter on the spreading of financial loss. The two systems also supplement one another in important respects. While criminal law sanctions are particularly designed to deter the actual and potential offenders from committing offences, those of the law of compensation are particularly designed to meet the aggrieved person’s need for economic redress (ibid., Chapter 1, subchapter 1.2.1).
27. The above-mentioned study identified several justifications for maintaining the possibility to award compensation in connection with criminal proceedings even after an acquittal. It may serve the interests of economy of procedure and also psychological stress may be saved by treating criminal charges and compensation claims in joint proceedings. In comparison with civil proceedings, such joint proceedings were cheap both for the accused and for the victim who would be able to benefit from free legal aid for the handling of the civil claims. If the compensation proceedings had to await a final outcome in the criminal case (at three levels of jurisdiction), it could take years before they could start. For the victim, and also for the acquitted, this could involve a considerable extra psychological burden. Moreover, in joint proceedings, the demands for thoroughness that were inherent in the criminal process would contribute to increasing the quality of the examination of the civil claim. Furthermore, the exonerating effect of an acquittal was not likely to be greater in split proceedings than in joint ones. On the contrary, in view of the problems related to examining the criminal evidence twice, the effect would tend to be more consistent under the latter. Finally, in criminal cases giving rise to more than one civil claim, deciding them all at the same time in connection with the criminal process would ensure a greater degree of “procedural equality” and coherence (ibidem, Chapter 6, sub-chapter 6.3.1 and 6.3.2).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-77327
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF PAULIK v. SLOVAKIA
IMPORTANCE: 1
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Nicolas Bratza
TEXT: 5. The applicant was born in 1931 and lives in Bratislava.
6. In 1966 the applicant had a sexual relationship with a woman who gave birth to a daughter, I., on 17 December 1966.
7. As the applicant denied that he was the father, the mother brought proceedings in the Bratislava Regional Court (then Mestský súd, now Krajský súd) for a declaration of paternity.
8. On 31 January 1967 the mother married another man.
9. On 2 February 1970 the Regional Court found that the applicant was the father of I. and ordered him to contribute to her maintenance.
10. The Regional Court reached its finding after hearing evidence from several witnesses. It also had regard to comprehensive documentary evidence and took into consideration the results of a blood test, a test known as a “bio-hereditary test” (dedičsko-biologická skúška) and a report prepared by a sexologist.
It was established that the applicant had had intercourse with the mother sometime between 180 and 300 days before I.'s birth. In such cases, a presumption of paternity arose under Article 54 of the Family Code as worded at the material time (see “Relevant domestic law and practice” below), unless there were important grounds to rebut the presumption. No such important grounds were, however, established.
11. The judgment of 2 February 1970 became final and binding and the applicant complied with it, in particular by making maintenance payments. He did not, however, have any contact with I. as the mother was opposed to such contact.
12. I. learned of the applicant's existence when she obtained her first identity card. She and the applicant met for the first time shortly before she left secondary school. Subsequently, the applicant started seeing I. and, over time, their meetings became more frequent. The applicant provided I. and, after she married, her family with financial support and developed emotional ties with her and her family.
13. In 2004 the applicant and I. had a quarrel over a financial contribution, following which I. proposed that the issue of the applicant's paternity be retested.
14. Subsequently, I., the mother and the applicant voluntarily submitted to a DNA blood test with a view to determining whether the applicant was indeed I.'s father. On 18 March 2004, on the basis of that test, an expert drew up a report in which he found that the applicant was not I.'s father. I. and her family subsequently broke off all contact with the applicant.
15. The applicant then requested the prosecution service to challenge his paternity under Article 62 of the Family Code. He maintained that he was not I.'s biological father and that the declaration of his paternity had been made in a final court judgment on the basis of expert evidence that corresponded to the state of scientific knowledge at that time. Although methods for establishing paternity had evolved and he had fresh proof that he was not I.'s father, he had no means, ordinary or extraordinary, available to him under the Family Code or the Code of Civil Procedure for bringing the legal position into line with the biological reality.
16. On 2 December 2004 the Bratislava V. District Prosecutor interviewed I. in connection with the applicant's motion. She stated, inter alia, that if the applicant did not want her to be his daughter, she had no objection to his denial of paternity.
17. The Bratislava Regional Prosecutor and the Prosecutor General informed the applicant in letters of 30 December 2004 and 31 March 2005 respectively that the determination of his paternity was res judicata and that the prosecution service lacked the competence to have the matter reviewed by a court.
18. On 4 March 2005 the applicant wrote to the Chairman of the National Council of the Slovak Republic (Národná rada Slovenskej republiky) and to the Chairman of the Constitutional Affairs Committee of the National Council requesting them to take legislative measures with a view to securing the effective protection of his rights. In response, the secretary to the Chairman of the National Council referred the applicant to the Prosecutor General and advised him to request the Prosecutor General to challenge the 1970 judgment by way of an extraordinary appeal on points of law (mimoriadne dovolanie).
19. On 7 March 2005 the applicant, who was represented by a lawyer, lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). The complaint was directed against all levels of the public prosecution service and the National Council.
The applicant maintained that there was a discrepancy between the legal position created by the judgment of 1970 and the real situation reflected in the DNA report of 2004 and that there were no legal means of removing that incongruity under the Code of Civil Procedure or the Family Code.
According to the applicant, neither the general public nor I. had any legitimate interest in maintaining the situation as it stood. Conversely, he had an interest in ensuring that the legal position and the biological reality corresponded. The applicant also stated that the authorities had failed to take adequate positive measures to protect his rights.
As a result, he had wrongly been identified as I.'s father in various public documents and records, such as the registers of births and marriages. The information about his paternity had also been included in his medical records and employment files. His identity had thus been affected and he had no way of clarifying the matter. Moreover, in law he was related to I.'s family. Thus, in the event of need, she and her children would be able to oblige him to contribute to their maintenance. As I. was legally his daughter, she was also his heir, which limited his freedom of testamentary disposition.
20. The Constitutional Court examined the complaint as a matter of priority and on 17 March 2005 declared it inadmissible. It observed that the prosecution service had not been guilty of any lack of diligence in dealing with the applicant's claims. Although the outcome had not been to the applicant's satisfaction, they had dealt with his claims in accordance with the existing law. Thus, in so far as the complaint was directed against the prosecution service, the Constitutional Court ruled that it was manifestly illfounded. As for the remainder of the complaint, it observed that issues of paternity fell within the jurisdiction of the ordinary courts, which were not only bound by national law but also by international instruments. It could not therefore be assumed that they would have refused to protect the applicant's interests if he were to have recourse to them. As he had not done so, the remainder of his complaint was inadmissible for nonexhaustion of the available remedies.
21. Pursuant to Article 51 § 1, a husband whose wife gave birth during the marriage or no later than 300 days after the marriage was dissolved or annulled was considered to be the child's father.
22. Otherwise the father was considered to be the man whom both parents had declared to be the father (Article 52 § 1).
23. Under Article 54, if paternity was not established by a joint declaration by the parents, the child or the mother could institute proceedings for its determination by a court. In such cases, unless there were important grounds for excluding his paternity, a presumption arose that a man who had had intercourse with the mother no less than 180 and no more than 300 days before the birth was the father.
24. A husband could deny paternity in court within 6 months of learning that his wife had given birth to a child (Article 57 § 1). Similarly, the wife could contest her husband's paternity within 6 months of the birth (Article 59 § 1).
25. If paternity had been established following a joint declaration by the parents, it could be contested by either the man or the mother within six months of the birth or the declaration, whichever was the later. The man was entitled to contest paternity in such a situation only if there was evidence to exclude the possibility of his being the father (Article 61).
26. After the expiry of the relevant six-month timelimit, paternity could still be challenged by the Prosecutor General if the interests of society so required (Article 62).
27. Even after the timelimit for the parents to deny paternity has expired, paternity can still be challenged by the child. However, such a challenge will only be admissible if it is in the child's interest and at least one of the parents is still alive (Article 96).
28. Article 159 §§ 1 and 3 provide that a judgment which has been duly served and can no longer be appealed is final and binding (právoplatný). Once a case has been decided and the decision has become final and binding, it may not be re-examined.
29. Under Article 228 § 1 a party to civil proceedings may challenge final and binding judgments by lodging a request to re-open the proceedings where (a) facts, decisions or evidence have come to light which the requesting party could not use in the original proceedings for reasons beyond his or her control and which may result in a more favourable decision for the requesting party; (b) evidence can be examined which could not be examined in the original proceedings and may result in a more favourable decision for the requesting party; (c) the decision against the requesting party was the consequence of a criminal offence by the judge; and (d) the European Court of Human Rights has found that the requesting party's human rights or fundamental freedoms have been violated in a decision or the procedure that preceded it and the consequences of the violation were serious and have not been adequately redressed by the award of just satisfaction.
30. Article 230 § 1 provides that a request to reopen proceedings must be lodged within three months of the date on which the party concerned learned of or was able to rely on the grounds for reopening the case.
31. Pursuant to Article 230 § 2, once a judgment has been final and binding for three years, a request to reopen the proceedings can only be lodged in cases referred to under Article 228 § 1 (a) (provided the contested judgment was based on a criminal judgment that has since been quashed), (c) or (d). The time allowed for lodging a request to reopen the proceedings cannot be extended.
32. An ascendant may disinherit a descendant for any of the reasons set out in paragraph 1 of Article 469a. These include situations in which the descendant (a) contrary to bonos mores has failed to provide the ascendant with necessary assistance in illness, old age or other serious circumstances; (b) has consistently shown no interest in the ascendant; (c) has been convicted and sentenced for an intentional offence to no less than one year's imprisonment; and (d) has led a constantly disorganised life.
VIOLATED_ARTICLES: 14
8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-105438
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: KAFKARIS v. CYPRUS
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Costas Clerides;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Panayiotis Agapiou Panayi, alias Kafkaris, is a Cypriot national who was born in 1946. He is currently serving a mandatory sentence of life imprisonment for premeditated murder in the Nicosia Central Prisons. He is represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia. The respondent Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus.
2. The background facts of the case are set out in the Grand Chamber’s judgment of 12 February 2008 concerning the applicant’s first application before the Court (Kafkaris v. Cyprus [GC], no. 21906/04, §§ 12-30, ECHR 2008...).
3. On 3 June 2004 the applicant lodged an application with the Court (application no. 21906/04) against the Republic of Cyprus under Article 34 of the Convention. The applicant alleged that Articles 3, 5, 7 and 14 of the Convention had been violated as a result of his life sentence and continuing detention.
4. In a judgment of 12 February 2008 the Grand Chamber held that there had been a violation of Article 7 of the Convention with regard to the quality of the law applicable at the time the applicant had committed the offence (see Kafkaris, cited above, §§ 143-152). At the same time, however, it concluded that there had been no violation of Article 7 in so far as the applicant complained about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law exempting life prisoners from the possibility of remission of their sentence (ibid.).
5. With regard to the applicant’s other complaints under Article 3, Article 5 § 1 and Article 14 of the Convention, the Grand Chamber found that there had been no violation.
6. With regard to Article 3, the Grand Chamber held, inter alia, that although the prospect of release for prisoners serving life sentences in Cyprus was limited, any adjustment of a life sentence being only within the President’s discretion subject to the agreement of the Attorney-General, it could not be said that life sentences in Cyprus were irreducible with no possibility of release; on the contrary, it was clear that in Cyprus such sentences were both de jure and de facto reducible. This was so in spite of the shortcomings in the procedure. The Grand Chamber considered therefore that the applicant could not claim that he had been deprived of any prospect of release or that his continued detention as such, even though long, constituted inhuman or degrading treatment (ibid., §§ 102-105).
7. As to Article 5 § 1 of the Convention, the Grand Chamber held that the continuing detention of the applicant after 2 November 2002 was justified under Article 5 § 1 (a) of the Convention and that therefore there had been no violation of Article 5 § 1. In this connection it held that the applicant had been sentenced to life imprisonment for the remainder of his life as provided by the Criminal Code and not for a period of twenty years and that the fact that he had subsequently been given a notice by the prison authorities, on the basis of the Prison Regulations in force at the time, setting a conditional release date could not, and did not, affect the sentence of life imprisonment passed by the Limassol Assize Court or render his detention beyond the above date unlawful (ibid., §§ 118-121).
8. Finally, the Grand Chamber held that the applicant’s complaint under Article 5 § 4 of the Convention fell outside the scope of its examination as it had been raised for the first time in his memorial to the Grand Chamber and was not covered by the Chamber’s decision on admissibility of 11 April 2006) (ibid., § 124).
9. As to the application of Article 41, the Grand Chamber considered that a finding of a violation of Article 7 of the Convention constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant (ibid., § 170). However, it ordered Cyprus to pay the sum of 13,465 euros in respect of costs and expenses (ibid., §§ 175-179).
10. The Committee of Ministers of the Council of Europe concluded its supervision of the execution of the Grand Chamber’s judgment at its 1051st meeting (DH) held from 17 to 19 March 2009, at which it adopted a decision instructing the Secretariat to prepare a draft final resolution. The text of the Committee’s public notes reads as follows:
“This case concerns the infringement of the principle ‘no punishment without a law’ on account of the quality of the law applicable at the material time (1987), which did not enable the applicant to discern precisely the scope of the penalty of life imprisonment and the manner of its execution (violation Art. 7). The European Court observed that the legal basis for the applicant’s conviction and sentence was the criminal law applicable at the material time and his sentence, that was mandatory life imprisonment, corresponded to that prescribed under section 203(2) of the Criminal Code for the offence of premeditated murder. However, according to the Court, at the time the applicant committed the offence, it was equally clear that both the executive and the administrative authorities, including the prison service, understood the Prison Regulations as imposing a maximum period of 20 years to be served by any person who had been sentenced to life imprisonment. In 1988, in the Yiouroukkis case, the Nicosia Assize Court interpreted life imprisonment as meaning ‘imprisonment for life’, and, in 1989, the Limassol Assize Court, when passing sentence on the applicant, relied on the findings of the Nicosia Assize Court. The Court therefore concluded that, at the time the applicant committed the offence, Cypriot law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern, even with appropriate advice, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution. On the contrary, the Court did not accept the applicant’s argument that a heavier penalty was retroactively imposed on him since it could not be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years’ imprisonment.
Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damages sustained by the applicant. It also found a non-violation of Article 7 as regards the applicant’s complaint that the amendment of the prison regulations subsequent to his being sentenced made it impossible for him to expect a remission of sentence. The violation found in this case consists only in the fact that the law applicable at the time the applicant committed the offence did not enable him to discern precisely the scope of the penalty of life imprisonment and the manner of its execution. When the Limassol Assize Court sentenced the applicant, it was already clear that life imprisonment had become imprisonment for the rest of one’s biological life.
General measures: Following the Supreme Court’s judgment in the case of Hadjisavvas against Cyprus (judgment of 8/10/1992, (1992)1 A.A.D. 1134), which declared the Prison (General) Regulations of 1981, as amended in 1987, unconstitutional, these Regulations were repealed in 1996. According to the new regulations the imposition of mandatory imprisonment has become imprisonment for the rest of one’s biological life, thereby excluding any possibility of remission for life prisoners.
• Legislative change: Following the judgment, the Bill establishing a parole board was finalised (details of the bill are mentioned at paragraph 92 of the European Court’s judgment). The Bill has received governmental approval and is currently being examined in detailed by the Parliamentary Committee for Legal Affairs. As the violation relates to historical provisions, the bill is not a key aspect of the general measures. However, its goal is to improve the rights of life prisoners. The bill will fix a minimum period to be served before life prisoners can become eligible for parole and establish an independent parole board.
• Publication and dissemination: Under cover of a letter from the Human Rights Sector of the Government Agent’s Office summarising the judgment and its reasoning, copies of the judgment were sent to the Ministry of Justice and Public Order, the Presidents of the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees. It has also been published on the Government Legal Service website ... and widely publicised and discussed in the media.”
11. The adoption of a final resolution by the Committee of Ministers is still pending.
12. The facts of the present case, as submitted by the parties, may be summarised as follows.
13. By letter dated 14 April 2008 the applicant applied, via the Director of Prisons, to the President of the Republic for pardon or conditional release.
14. By letter dated 14 July 2008 the Attorney-General refused his request. In particular, he informed the applicant that following an examination of his application, a recommendation to the President to suspend his sentence under Article 53 (4) of the Constitution was not justified.
15. On 7 March 2008 the applicant lodged a new habeas corpus application (no. 19/2008) before the Supreme Court (first-instance jurisdiction).
16. He complained under Article 3, Article 5 § 4 and Articles 7 and 14 of the Convention. The applicant claimed, inter alia, the following:
26. The applicant lodged an appeal on 6 May 2008 (no. 123/2008) with the Supreme Court (appeal jurisdiction). The applicant challenged the findings of the first-instance court.
27. His appeal was dismissed on 12 January 2009. The Supreme Court in its judgment relied on the findings of the Grand Chamber.
28. With regard to the applicant’s complaint under Article 3 of the Convention, the Supreme Court observed that the Grand Chamber in its judgment, when examining Article 3, had not doubted the general adequacy of the Cypriot system, even if the prospect of release was limited. The Supreme Court relied on paragraph 104 of the Grand Chamber’s judgment:
“In his submissions, the applicant has placed great emphasis on the lack of a parole board system in Cyprus. However, the Court reiterates that matters relating to early release policies including the manner of their implementation fall within the power member States have in the sphere of criminal justice and penal policy (see, mutatis mutandis, Achour, cited above, § 44). In this connection, the Court observes that at the present time there is not yet a clear and commonly accepted standard amongst the member States of the Council of Europe concerning life sentences and, in particular, their review and method of adjustment. Moreover, no clear tendency can be ascertained with regard to the system and procedures implemented in respect of early release.”
29. The Supreme Court observed (apparently in the context of its examination of Article 3 of the Convention) that the Grand Chamber’s judgment did not impose an immediate obligation on the Republic to establish a parole board. In any event, however, the Supreme Court considered that the Government should not delay in establishing such a board.
33. The relevant domestic law and practice concerning life sentences and the release of prisoners is set out in the Grand Chamber’s judgment of 12 February 2008 (Kafkaris, cited above, §§ 31-62).
34. In 2009, however, the Prison Law of 1996 (Law 62(I)/96 as amended – ibid., §§ 56-59) was amended by Amending Law 37(I)/2009, which entered into force on 24 April 2009. This Law introduced significant amendments to the Prison Law, in particular to section 14, by providing for the establishment of a Release Board, an independent board for the release of prisoners on licence (section 2). Section 14 includes detailed provisions concerning the Release Board, the procedures to be followed, and the release of prisoners on licence.
35. Section 14 (1) provides for the establishment of a Release Board, whose competence is to examine and determine, in accordance with the procedures set out in the Law, prisoners’ applications for conditional release on licence so that they can continue to serve the remaining part of their sentence outside prison. On 24 June 2009 the five-member board was appointed by the Council of Ministers. On 2 February 2010 the Board’s members gave the oath required before the President of the Republic that they would faithfully exercise their duties (section 14 (4)). The Board started operating at the beginning of March 2010.
36. By section 14 A (1), a prisoner who has been sentenced to life imprisonment and has served at least twelve years of the sentence can apply to the Release Board for conditional release. Section 14 A (1) provides as follows:
“A prisoner who has served one-half of a sentence of imprisonment which exceeds two years, or who was sentenced to life imprisonment and has served at least twelve years of the sentence, is entitled to submit directly to the Release Board a written request for conditional release on parole in order to continue to serve the remaining part of the sentence outside prison.”
37. Section 14 B (1) provides that a request for release on parole as provided in section 14 A can also be submitted by the following:
“(a) a prisoner who has served at least twenty-five years of sentences of life imprisonment which run consecutively;
(b) a prisoner who has served half of the total duration of sentences which run consecutively, other than those mentioned in point (a) above, or who, where the longest of his sentences which run consecutively is a sentence of life imprisonment, has served at least fifteen years of imprisonment;
(c) a prisoner who has served half of his sentences of imprisonment which run concurrently or who has served half of the longest in duration of his sentences which run only partially concurrently so that the sentence longest in duration exceeds the other sentence or sentences, or who, where the longest sentence is one of life imprisonment, has served at least fifteen years of it.”
38. Section 14 A (4) provides that the Release Board decides on the conditions and restrictions which, in the circumstances, it considers appropriate to set for the release on licence of the prisoner in question in order to reduce the risk of recidivism. The conditions or restrictions can subsequently be modified, annulled or supplemented with additional ones (section 14 E (1)). The applicant has the right to be heard before additional or stricter conditions are set (section 14 E (1)).
39. When deciding on a prisoner’s application for release on licence and on the conditions and limitations to be set for such release, the Release Board will examine and weigh up a number of factors. These are set out in section 14 H (1) as being “(a) the degree of dangerousness of the prisoner and the possibility of recidivism; (b) the protection of society by preventing possible offences such as those for which the prisoner is serving his or her sentence; and (c) any personal, family or other circumstances which may justify the prisoner’s conditional release on licence, without, however, jeopardising the safety of society”. This section provides that the second factor is particularly significant concerning applications by prisoners who are serving a sentence of life imprisonment or long-term sentences for violent offences. Further, the Release Board, in reaching its decision in a particular case, will take into account a number of factors, including the type of offence or offences of which the prisoner was convicted, written comments made by the court in imposing the sentence, the prisoner’s criminal record, the prisoner’s intentions and plans for his or her successful and law-abiding integration into society, the prisoner’s conduct in prison, the report of the prison forensic psychiatrist and the prisoner’s degree of dangerousness (see section 14 H (2)).
40. Section 14 I (1) provides, inter alia, for an interview of the prisoner by the Release Board. At the interview, the prisoner has the right to be legally represented and to call witnesses and experts (section 14 I (1) (b) (i)). The Release Board has the obligation to hear the prisoner as well as his or her witnesses, experts and lawyers, to accept and examine any written information material and evidence which the prisoner submits, to allow the prisoner or his or her representative to examine or inspect, prior to the oral interview, any written information material which the Release Board has obtained in relation to the application for release on licence, and to put such material at the prisoner’s disposal during the interview. A record is kept of the interview (section 14 (I) (2)).
41. The Board’s decisions are given in writing and must be reasoned (section 14 J (1)).
42. A prisoner whose application is dismissed by the Release Board can file another application after the lapse of a one-year period or, if he or she is serving a life sentence or a sentence exceeding fifteen years, after the lapse of a two-year period (section 14 C (2)).
43. In the event that a prisoner fails to comply with a condition or restriction relating to his or her release, the Release Board can decide to revoke its decision to release the prisoner on licence after having given him or her the opportunity to be heard (section 14 F (1)).
44. Decisions of the Release Board can be challenged before the Supreme Court by way of administrative recourse under Article 146 § 1 of the Constitution (section 14 J (4)).


ITEMID: 001-70118
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ACAR v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant, Mr İbrahim Acar was born in 1933 and lives in Siirt.
5. On 9 October 1990 the General Directorate of National Roads and Highways expropriated three plots of land belonging to the applicant. A committee of experts assessed the value of the plots and the relevant amount was paid to him on 12 and 13 August 1996.
6. On 15 October 1996 the applicant initiated proceedings for additional compensation. Following the applicant’s request for increased compensation, on 1 September 1997 the Baykan Civil Court of FirstInstance awarded him additional compensation of 163,847,000 Turkish liras (TRL) plus interest at the statutory rate applicable at the date of the court’s decision, running from 8 November 1996.
7. On 28 September 1998 the Court of Cassation upheld the judgment of the first-instance court.
8. According to the order of the General Directorate of National Roads and Highways, the amount due was paid to the applicant on 22 December 1998. The applicant claimed that he was paid on 4 January 1999. He received a total of TRL 368,837,000.
9. The relevant domestic law and practice are set out in the Aka v. Turkey judgment of 23 September 1998 (Reports of Judgments and Decisions 1998-VI, pp. 2674-76, §§ 17-25).


ITEMID: 001-78528
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF YEREMENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1941 and resides in the town of Zhovti Vody, Dnipropetrovsk region, Ukraine.
5. On an unspecified date the applicant's late wife instituted proceedings in the Zhovtovodskyy Town Court of Dnipropetrovsk Region against her employer, a State-owned company, the Zhovti Vody Construction Department (Жовтоводське управління будівництва), in order to receive salary arrears and other payments.
6. On 19 March 2001 the court found for the applicant's wife and awarded her 4,346.81 Ukrainian hryvnas (“UAH”) (Рішення Жовтоводського міського суду).
7. On 28 March 2001 the Zhovti Vody Town Bailiffs' Service (Відділ Державної виконавчої служби Жовтоводського міського управління юстиції) initiated the enforcement proceedings. On 28 September 2001 the applicant's wife received UAH 300. On 12 April 2002 she received a further UAH 350. The rest of the awarded amount remains unpaid.
8. On 1 May 2002 the applicant's wife died.
9. On 22 December 2002 the applicant instituted proceedings in the Shevchenkivskyy District Court of Kyiv against the Ministry of Fuel and Energy of Ukraine, claiming the salary arrears due to his late wife and compensation for moral damage.
10. On 1 February 2003 the applicant was recognised as an heir of his late wife.
11. On 11 August 2003 the court found against the applicant on the ground that the company was an independent legal entity for which debts the Ministry was not responsible.
12. By letter of 31 December 2003, the Bailiffs' Service informed the applicant that the enforcement proceedings had been stayed because of the bankruptcy proceedings initiated against the debtor by a decision of 27 December 2001 of the Commercial Court of the Dnipropetrovsk Region. The Bailiffs' Service also stated that, according to the Law on the Introduction of a Moratorium on the Forced Sale of Property, on 26 December 2001 a ban on the forced sale of assets belonging to undertakings in which the State holds at least 25% of the share capital had been introduced.
13. By the decree of 5 October 2004 the Ministry of Fuel and Energy of Ukraine liquidated the debtor company.
14. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-121167
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: FEHÉR AND DOLNÍK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicants belong to the Hungarian minority living in Slovakia and they are currently Hungarian nationals. The applicant in application no. 14927/12, Mr István Fehér (“the first applicant”), was born in 1960 and lives in Komárno. The applicant in application no. 30415/12, Ms Erzsébet Dolník (“the second applicant”), was born in 1940 and lives in Levice. They were represented before the Court by Mr Z. Lomnici, a lawyer practising in Budapest.
3. On 14 November 2011 the first applicant informed the Nitra District Office that he had acquired Hungarian citizenship on 15 September 2011. Referring to Article 5 § 2 of the Constitution, he indicated that he did not wish to give up his Slovak citizenship and wanted to continue living and working in Slovakia as a Slovak citizen respecting the Constitution and the laws of the Slovak Republic.
4. On 22 November 2011 the District Office asked the first applicant to complete and return a notice confirming his loss of Slovak citizenship.
5. On 14 December 2011 he informed the District Office that he was not willing to comply with the above request, as the relevant provisions of the Citizenship Act 1993 were contrary to Article 5 § 2 of the Constitution.
6. On 13 February 2012, in the absence of any reply, the first applicant reiterated his arguments. He also referred to the fact that he had not been formally notified of his loss of Slovak citizenship.
7. On 24 February 2012 the District Office informed the first applicant that the relevant authorities had been notified that he had lost Slovak citizenship on the basis of his letter indicating that he had acquired Hungarian citizenship. He was reminded that his Slovak passport and identity card had become invalid and had to be returned to the authorities. In cases where persons had voluntarily opted for the citizenship of a different State, they lost their Slovak citizenship ex lege. The Slovak authorities were therefore not required to issue a formal certificate to that effect.
8. In a letter the first applicant asked his local authority, the Komárno Municipal Office, why he had not been notified along with the other electors of an upcoming parliamentary election scheduled for 10 March 2012.
9. In its response of 23 February 2012 the Municipal Office informed him that the law obliged it to delete from the electoral register all persons who had lost Slovak citizenship.
10. In a different letter of 23 February 2012 the Municipal Office informed the first applicant that it had been notified by the District Office on 27 December 2011 that he had lost Slovak citizenship. He was advised to address his request for a certificate of his permanent address to the relevant department of the police, who kept a register of foreigners permanently residing in Slovakia.
11. The first applicant’s employer made his continued employment conditional upon his compliance with the statutory obligations imposed on foreigners residing in Slovakia and his adherence to the social security insurance scheme.
12. The first applicant experienced health problems owing to stress resulting from the above.
13. On 25 August 2011 the second applicant informed the Nitra District Office that she had sworn an oath of allegiance and obtained Hungarian citizenship on 18 August 2011. She further declared that she was not renouncing her Slovak citizenship and that she wished to continue living in Slovakia and respecting its laws.
14. On 4 January 2012 the second applicant asked the District Office to issue her with a Slovak citizenship certificate. She reiterated her intention to remain a Slovak national and argued that under the Constitution, no one could be deprived of Slovak citizenship against his or her will.
15. On 16 January 2012 the District Office advised the second applicant that under section 9(1)(b) of the Citizenship Act 1993, persons who had voluntarily acquired a different State’s citizenship automatically lost Slovak citizenship. The District Office therefore issued no certificates in that respect.
16. On 17 February 2012 the second applicant asked her local authority, the Levice Town Office, why she had not been notified along with the other electors of the upcoming parliamentary election.
17. On 20 February 2012 the Town Office informed the second applicant that it had been notified by the District Office that she had lost Slovak citizenship. On that basis, and in accordance with the relevant law, the Town Office had deleted her from the electoral register. She was therefore disallowed from voting in the parliamentary election on 10 March 2012. Her complaint was dismissed as being totally devoid of merit, with reference to the fact that she had lost Slovak citizenship.
18. On 1 March 2012 the second applicant complained to the District Office that she had received no official notification of her loss of Slovak citizenship. She was thereby prevented from seeking redress from the Slovak authorities.
19. On 18 April 2012 the District Office informed the second applicant that, following her letter of 25 August 2011, it had notified the relevant authorities, namely the local authority in which she lived, the police, the tax and customs offices, and the institutions in charge of social and public health insurance, that she had lost Slovak citizenship. The law did not oblige the District Office to issue a certificate confirming loss of citizenship, as it took effect ex lege.
20. The Levice District Police repeatedly informed the second applicant that, following her loss of Slovak citizenship, she was required by law to return her national identity card. She replied that she had received no official notification of her loss of Slovak citizenship and still considered herself to be a Slovak national. She pointed out that a group of members of parliament had initiated proceedings to determine whether the relevant statutory provisions conformed to the guarantees of the Constitution.
21. The police also asked the second applicant to return her Slovak passport, which had become invalid following her loss of Slovak citizenship. Her failure to do so was susceptible of constituting a minor offence, for which a fine up to 33 euros (EUR) might be imposed.
22. The second applicant replied that she considered herself to be a Slovak citizen and therefore saw no reason for returning her identity card and passport.
23. Pursuant to Article 5 § 1, the circumstances under which persons acquire and lose Slovak citizenship are to be stipulated by law.
24. Article 5 § 2 provides than no person may be deprived of Slovak citizenship against his or her will.
25. The Citizenship Act 1993 (Zákon o štátnom občianstve Slovenskej republiky), as amended with effect from 17 July 2010, contains the following relevant provisions.
26. Section 9(1) provides:
“Citizenship of the Slovak Republic may only be lost:
(a) by means of release upon one’s own request;
(b) upon acquiring a foreign State’s citizenship by way of an explicit expression of intent.”
27. Section 9(16) provides that a person loses Slovak citizenship on the same day he or she voluntarily acquires the citizenship of a foreign State by way of an explicit expression of intent such as a request, declaration or any other action directed at acquiring the citizenship of a foreign State.
28. Subsections (17) and (18) of section 9 provide exceptions to the above, namely where a person acquires foreign citizenship (i) by marriage to a foreign national, provided that the person acquires the foreign citizenship during the marriage, or (ii) by birth.
29. Pursuant to section 9(19), persons who lose their Slovak citizenship under section 9(16) are obliged to notify their local district office without delay.
30. Section 9(20) read in conjunction with section 9(14) obliges the relevant district office to notify the following authorities of the person’s loss of Slovak citizenship under section 9(16): the local authority in which the person resides, the police, the tax and customs offices, and the institutions in charge of social and public health insurance.
31. Section 9b(1)(d) provides that a minor offence has been committed if a person fails to comply with the obligation under section 9(19), namely to notify the district office about their loss of Slovak citizenship without delay.
32. Section 9b(2) renders such an offence punishable by a fine of up to EUR 3,319.
33. On 22 September 2011 thirty members of parliament claimed before the Constitutional Court that sections 9(1)b, 9(16), 9(19), 9b(1)(d) and 9b(2) of the Citizenship Act 1993 were contrary to Article 5 §§ 1 and 2 of the Constitution, Article 6 § 1 of the Convention, and Article 11 of the European Convention on Nationality.
34. On 4 July 2012 the Constitutional Court at its plenary session declared the motion admissible.
35. The proceedings on the merits are pending.
36. The European Convention on Nationality (CETS No. 166) entered into force in respect of Slovakia on 1 March 2000. Its relevant provisions read as follows:
1. Each State shall determine under its own law who are its nationals.
2. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality.
The rules on nationality of each State Party shall be based on the following principles:
(a) everyone has the right to a nationality;
(b) statelessness shall be avoided;
(c) no one shall be arbitrarily deprived of his or her nationality; ...
1. The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin. ...
1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases:
(a) voluntary acquisition of another nationality; ...
Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing.
Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law. ...
The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether:
(a) its nationals who acquire or possess the nationality of another State retain its nationality or lose it;...”
37. With effect from 26 May 2010 the Hungarian Citizenship Act (Law no. LV of 1993) was amended. Its section 4(3) provides for naturalisation, upon request and on preferential terms, of non-Hungarian nationals with an ascendant of Hungarian nationality or who can plausibly show their Hungarian origins and provide proof of their knowledge of the Hungarian language.


ITEMID: 001-79293
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF MAKARENKO v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicants were born in 1966 and 1968, respectively, and live in the village of Krasnovershka, Kirovograd region, Ukraine.
5. In January 1995 the applicants bought a house from the collective agricultural enterprise “Svitanok”. They lived in it with their two minor children until August 1996.
6. In August 1996 after returning from vacation the applicants found that their house was occupied by a police officer, Mr S. The latter informed them that the house purchase agreement had been invalidated by a notary. All of the applicants' possessions had been moved to the “Svitanok” enterprise storehouse.
7. In March 1997 the applicants instituted proceedings against the notary in the Kompaniyvskyy District Court. On 17 November 1997 the court cancelled the act by which the notary had invalidated the purchase agreement.
8. On 18 February 1998 the applicants instituted other proceedings in the same court against Mr S., the “Svitanok” enterprise and the notary asking that Mr S. be evicted from their house and claiming 10,000 Ukrainian hryvnias (“UAH”) in compensation for non-pecuniary damage. On an unidentified date the applicants introduced additional claims against the “Svitanok” enterprise for UAH 8,063 in pecuniary damage and UAH 40,000 in non-pecuniary damage.
9. In April 1998 the collective agricultural enterprise “Svitanok” initiated proceedings in the Kompaniyivskyy District Court challenging the validity of the house purchase agreement.
10. On 14 April 1998 the court stayed the proceedings in the applicants' case on eviction until the question of validity of the purchase agreement had been decided.
11. In June 1998 a wedding photo, a coat, a lamp, a wash-basin and some other small items which had been held at the “Svitanok” storehouse were returned to the applicants.
12. On 15 December 1998 the court found the purchase agreement invalid. The applicants appealed against this judgment and requested the transfer of their case to another court. On 1 April 1999 the Kirovograd Regional Court quashed the decision of 15 December 1998 and remitted the case for a fresh consideration to the Kirovogradskyy District Court.
13. On 13 December 1999 the applicants requested the Head of the Kirovograd Regional Court to transfer their case on eviction to another court. Their request was satisfied.
14. On 2 March 2000 the Kirovogradskyy District Court decided to consider together the case on eviction and the case on validity of the purchase agreement.
15. On 24 October 2001 the court disjoined the cases and declined to consider the case on the validity of the purchase agreement because the representative of the ”Svitanok” enterprise had failed twice to appear at a court hearing.
16. In June 2002 the house, which was partly derelict, was returned to the applicants.
17. In July 2002 and March 2004 the applicants introduced additional claims, requesting reimbursement of the costs of renovation of the house and payment of UAH 20,544.00 and UAH 60,000 in compensation for pecuniary and non-pecuniary damage respectively.
18. On 16 July 2002 the court ordered a technical expert's report on the applicants' house. The expert stated that the court decision was received by him on 7 October 2003.
19. On 17 December 2003 the expert carried out his survey. He concluded that it was not possible to live in the house and that it needed major renovation. The cost of such renovation was also determined.
20. On 8 June 2004 the Kirovogradskyy District Court found in part for the applicants and awarded each of the applicants UAH 7,500.50 in compensation for pecuniary damage, UAH 20,000 in compensation for non-pecuniary damage and UAH 670 in court expenses. The applicants did not appeal against this judgment.
21. The applicants received some money and goods in enforcement of the judgment in their favour, but for the major part the judgment remains unenforced.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-68178
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MILLER v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1918 and lives in Stockholm.
Until his retirement in March 1983 he worked as a teacher for 17 hours per week.
5. On 26 August 1996 the applicant applied for disability benefits (handikappersättning) under Chapter 9, section 2 of the Social Insurance Act 1962 (Lagen om allmän försäkring, 1962:381 - hereinafter “the 1962 Act”). He claimed that, even before his 65th birthday in 1983, he had incurred extra costs due to his illness, Charcot-Marie-Tooth, from which he had suffered since the 1970's and which had been diagnosed in September 1982. In support of his claim, he submitted:
A medical certificate dated 27 August 1996, produced by the applicant's general practitioner, Doctor P. Dekany, at the applicant's request, supporting his application for disability benefits. It stated that the doctor had known and treated the applicant since 1961, and that the Charcot-Marie-Tooth disease had started in the early 1970s involving difficulties in walking, problems of balance, dragging of the feet and the patient tripping over and falling continuously. The muscles in the legs and feet had considerably withered. The illness had attacked even the hands and arms, with withered muscles and reduced strength in the fingers. Because of multiple inconveniences, the patient's functional capacity had been strongly reduced; he needed help for heavier household tasks, the preparation of meals, the purchase of household goods, carrying heavier objects, and for personal hygiene. The patient had incurred extra costs for medical treatment, foot rails, soft shoes, home assistance, and to some extent his food budget because of a limited ability to prepare meals; he also had to pay for the transportation service for disabled persons, and extra travel by personal car, because of his considerably reduced ability to walk.
A statement of 21 April 1997 by Doctor P. Dekany, reproducing extracts from the applicant's medical records for the period between 1975 and 1983, with a diagnosis of the Charcot-Marie-Tooth disease in September 1982;
A statement dated 23 March 1983 by Mr P.K. Thomas, Professor and Doctor of the Royal Free Hospital School of Medicine, University of London, which concluded:
“I quite agree that the diagnosis here is Charcot-Marie-Tooth disease. The clinical findings and the nerve conduction studies indicate that it can be classified as type II hereditary motor and sensory neuropathy. He does show some minor pyramidal signs in the legs, which may be associated. I have explained to Mr Miller that although his symptoms may continue slowly to deteriorate, this is unlikely ever to become a very serious incapacity so that he becomes unable to walk.”
6. On 16 July 1997 the Social Insurance Office (försäkringskassan -hereinafter “the Office”) of the County of Stockholm rejected the application, finding that the applicant's disability had not reached the level required under Chapter 9, section 2 before he turned 65 years of age. One member reserved his position, considering that the applicant's need for assistance before turning 65 should be investigated.
7. The applicant, represented by a lawyer, appealed to the County Administrative Court (länsrätten) of the County of Stockholm and requested that an oral hearing be held in his case because he wished to call as witnesses his personal doctor, the doctor appointed by the Office and all the members of the Office who had participated in the decision of his case.
On 15 January 1998 the County Administrative Court refused the request with reference to section 9 of the Administrative Court Procedure Act (Förvaltningsprocesslagen 1971:291 - hereinafter “the 1971 Act”). Its decision contained the following reasoning:
“Written material, which includes inter alia medical certificates and extracts from [the applicant's] medical journal, a multitude of submissions and other documents sent by [the applicant] as well as the diary notes made during the processing of the case before [the Office] ..., are available in the case. There are no uncertainties as regards, at least, the basis for the medical assessment. The uncertainty regarding [the applicant's] extra costs due to his disability at the age of 65 can be clarified satisfactorily by [him] in writing. According to the documents, [the applicant's] requests and reasons therefore are clearly defined, as are the submissions by the respondent. Nor has [the applicant] pointed to circumstances which would benefit from being orally presented by him. Thus, there is no reason to assume that an oral hearing could add anything meaningful. The County Administrative Court therefore considers an oral hearing to be unnecessary and rejects the request to that effect. ...”
The County Administrative Court invited the applicant to mention any further circumstances he wished to invoke and to submit his final written observations in the case within two weeks. In response he reiterated his request for an oral hearing, relying on Article 6 of the Convention. He argued that the medical certificates needed to be clarified and that a witness account by his personal doctor would be important in order to establish the exact level of support that he had required at the age of 65. He also submitted that the members of the Office should have been asked to give evidence about their precise reasons for refusing his request.
8. By a judgment of 13 February 1998 the County Administrative Court rejected the applicant's appeal on the grounds that the medical and other evidence in the case showed that, even before he had reached the age of 65, he had for a considerable time been functionally impaired, but not to such a degree that, on an assessment of the overall need of assistance, he was entitled to disability benefit. The court noted that the applicant had “commented” (yttrat sig) on its rejection of his request for an oral hearing, but did not respond to his renewed request or his reasons invoked therein. In reaching this decision the County Administrative Court took note of a breakdown of additional costs allegedly caused by his disability, totalling SEK 18,100, which the applicant had initially submitted to the Social Insurance Office on 16 September 1996.
9. The applicant appealed against the lower court's judgment to the Stockholm Administrative Court of Appeal (kammarrätten) requesting it to quash the judgment and refer the case back for fresh examination. In the alternative, he requested the appellate court to find that he was entitled to disability benefits at a level corresponding to 36 % of the basic amount as of July 1994. He further requested that the court hold an oral hearing, on the same grounds as those he had presented to the lower court. He submitted that, by refusing to hold an oral hearing, the latter had breached Article 6 of the Convention.
10. By a decision of 3 July 1998 the Administrative Court of Appeal rejected his request for an oral hearing, finding this unnecessary for determining whether to grant him leave to appeal, and gave him two weeks to complete his submissions in writing. The applicant made further submissions and maintained his request for an oral hearing. On 29 September 1998 the Administrative Court of Appeal rejected his renewed request for an oral hearing and refused him leave to appeal.
11. On 13 October 1998 the Supreme Administrative Court (Regeringsrätten), observing that it did not normally hold oral hearings, rejected the applicant's request for a hearing and gave him three weeks within which to submit additional written observations. On 29 February 2000 it refused him leave to appeal.
In this connection the applicant was given a copy of an analysis presented to the Supreme Administrative Court by its legal secretary, which included an opinion to the effect that the County Administrative Court's refusal to hold a hearing was not deemed incompatible with the Convention.
12. According to Chapter 9, section 2 of the 1962 Act (as in force until 1 January 2001, when the 1998 Act on Disability Benefits and Care Allowance - lagen (1998:703) om handikappersättning och vårdbidrag – entered into force), a person who was ill or handicapped was entitled to disability benefits, provided that, before reaching the age of 65, he or she had been functionally impaired for a considerable time and to such a degree that he or she needed time-consuming assistance from another person in everyday life or continuing assistance in order to be gainfully employed or otherwise had considerable extra expenses. The total need for support and assistance determined the eligibility for disability benefits and the amount of compensation. It was thus necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses. According to the guidelines of the National Social Insurance Board (Riksförsäkringsverket; hereinafter “the Board”) the total cost of all extra needs due to the disability should attain at least 28.5% of a basic amount geared to the price index (basbelopp) in order to make the individual eligible for an allowance. In 1997 the basic amount was SEK 36,300. In 1983, when the applicant turned 65, it was SEK 19,400.
13. According to Chapter 9, section 3 of the 1962 Act (as in force at the material time), such benefits were granted on a yearly basis at a level of 69%, 53% or 36% of the basic amount, depending on the extent to which the insured person was in need of assistance and the amount of extra expenses caused by the disability.
14. A decision by the Social Insurance Office under the 1962 Act could form the subject of an appeal to the County Administrative Court, to the Administrative Court of Appeal and to the Supreme Administrative Court.
15. The procedure in the administrative courts was governed by the provisions of the 1971 Act. Section 9 provides:
“The proceedings shall be in writing.
An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would assist in the proceedings or be conductive to the speedy determination of the case.
In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings and if it is not unnecessary and there are no particular reasons against holding a hearing (I kammarrätt och länsrätt skall muntlig förhandling hållas, om enskild som för talan i målet begär det samt förhandlingen ej är obehövlig och ej heller särskilda skäl talar mot det)”.
Under those circumstances it was not possible for an individual party to obtain an oral hearing on request in the proceedings before the Supreme Administrative Court.
16. From the case-law of the national courts, it appears that the grounds stated in the third paragraph of section 9 for refusing an oral hearing have been interpreted as being alternative rather than cumulative (see Regeringsrättens Årsbok 1997 ref 62).
17. According to the preparatory work to the 1971 Act, an oral hearing could be a valuable complement to the written proceedings and could benefit the examination of a case, in particular in two situations: firstly, when it was necessary to hear a witness, an expert or a party or when it was difficult for a party to present the case in writing and, secondly, when different positions in the case needed to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a supplement to it (see Government Bill 1971:30, p. 535).
It was further stated, in respect of the third paragraph of section 9, that a party's request for an oral hearing should be given close consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing was necessary was to be determined primarily on the basis of the available information in the case. However, other circumstances could be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party's understanding of a future decision in the case. Nevertheless, if the case was of a trivial character or the costs of an oral hearing would be disproportionate to the value of what was at stake in the case, there could be reason not to hold an oral hearing (p. 537).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1