ITEMID: 001-75657
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: JANKOVIC v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Dušan Janković, is a citizen of Bosnia and Herzegovina who was born in 1946 and lives in Banja Luka. He is represented before the Court by Mr Z. Malešević, a lawyer practising in Banja Luka. The respondent Government are represented by Ms Z. Ibrahimović, Agent, and Ms M. Mijić, Deputy Agent.
1. Relevant background to the applicant’s case
Following the declaration of independence in March 1992 by the then Republic of Bosnia and Herzegovina (the legal predecessor of present-day Bosnia and Herzegovina), war broke out. It was characterised by ethnic conflict and discrimination, large scale displacement of people and the destruction or occupation of their homes. On 14 December 1995 the three principal parties to that war (the then Republic of Bosnia and Herzegovina, the Republic of Croatia and the then Federal Republic of Yugoslavia) signed a peace settlement – the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (hereinafter “the Dayton Agreement”). The Dayton Agreement set out provisions for the return of refugees and displaced persons to their homes of origin and the restitution of their property.
2. Relevant facts of the applicant’s case
The facts of the applicant’s case, as submitted by the parties, may be summarised as follows.
Prior to the 1992-95 war in Bosnia and Herzegovina the applicant and his wife lived in his wife’s house in the vicinity of Visoko in what is now the Federation of Bosnia and Herzegovina (an Entity of Bosnia and Herzegovina). E.M. and M.M. lived in Banja Luka in what is now the Republika Srpska (the other Entity of Bosnia and Herzegovina).
On 2 October 1993 the applicant and his wife concluded a contract with E.M. and M.M. exchanging his wife’s house and other property in the vicinity of Visoko for a house and other property in Banja Luka belonging to E.M. and M.M (hereinafter “the exchange contract”). As a result, the applicant and his wife became the registered joint owners of the house and property in Banja Luka. However, it would appear that E.M. and M.M. did not register their ownership of the house and property in the vicinity of Visoko (the applicant’s wife remained the registered owner).
On 5 March 1999 E.M. and M.M. initiated proceedings before the Banja Luka Court of First Instance seeking that the exchange contract be declared void.
It would appear that in or around that date E.M. also filed an application with the Commission for Real Property Claims of Displaced Persons and Refugees (hereinafter “the CRPC”) which was set up by the Agreement on Refugees and Displaced Persons (Annex 7 to the 1995 Dayton Agreement).
On 9 December 1999 the CRPC established that E.M. was the pre-war owner of the house in Banja Luka and annulled any involuntary transfer of ownership after 1 April 1992.
On 22 August 2002 E.M. obtained an order enforcing the CRPC’s decision from the Ministry of Refugees and Displaced Persons of the Republika Srpska. The applicant and his wife were ordered to vacate the house within 90 days and were entitled to alternative accommodation. They were instructed that an appeal against the order would not suspend the enforcement proceedings but that they could apply for suspension to the Banja Luka Court of First Instance (pursuant to section 12a of the Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees Act 1999 – hereinafter “the 1999 Act”).
On 31 October 2002 the Ministry of Refugees and Displaced Persons of the Republika Srpska issued another order which replaced that of 22 August 2002. Pursuant to the new order, the applicant and his wife were to vacate the house within 15 days and were not entitled to alternative accommodation as the house in the vicinity of Visoko (of which the applicant’s wife remained the registered owner regardless of the impugned exchange contract) was available to them. They were again instructed that an appeal against the order would not suspend the enforcement proceedings but that they could apply for suspension to the Banja Luka Court of First Instance within 30 days (pursuant to section 12a of the 1999 Act).
The applicant and his wife appealed against the order of 31 October 2002 and applied for the suspension of the enforcement proceedings to the Banja Luka Court of First Instance. It would appear that they have not received any response.
On 19 November 2002 the CRPC rejected a request for the reconsideration of its decision of 9 December 1999 which had been submitted by the applicant and his wife because they had not shown that E.M. was not the former owner of the house in Banja Luka. As to their submissions regarding the exchange contract, the CRPC referred them to the competent court.
On 5 December 2002 the applicant and his wife were evicted from the house in Banja Luka.
On 9 December 2002 the applicant complained about his eviction to the Human Rights Chamber which was set up by the Agreement on Human Rights (Annex 6 to the 1995 Dayton Agreement).
On 11 December 2002 the applicant’s wife moved to her house in the vicinity of Visoko. It would appear that the applicant has not followed her.
On 4 March 2003 the Banja Luka Court of First Instance declared the exchange contract void ab initio as having been concluded under duress (in the context of large scale displacement and discrimination).
On 4 April 2003 the applicant appealed to the Banja Luka District Court against that judgment claiming that E.M. and M.M. had not been forced to conclude the contract. He noted that his mother-in-law had remained in his wife’s house in the vicinity of Visoko after the conclusion of the contract where she had allegedly been killed. It would appear that the appeal is still pending.
On 13 November 2003 the applicant submitted an application for interim measures to the Banja Luka District Court asking to be reinstated in the house in Banja Luka pending his appeal against the judgment of 4 March 2003. It would appear that he has not received any response.
On 1 December 2003 the applicant withdrew his application before the Human Rights Chamber. Therefore, the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina (the legal successor of the Human Rights Chamber) decided on 4 May 2004 to strike out the application.
On 28 and 29 May 2001 the relevant administrative authorities expropriated a plot of land in front of the house in Banja Luka indicated above for the purpose of building a public road.
On 22 January 2002 the Banja Luka District Court quashed the decision of 28 and 29 May 2001, in an administrative dispute, as the proceedings before the Banja Luka Court of First Instance concerning the validity of the exchange contract were still pending. The court also found that the contested decision did not establish certain relevant facts.
On 25 August 2004 the Banja Luka Office of the Administration for Real Property Issues of the Republika Srpska decided to suspend the expropriation proceedings pending the proceedings concerning the validity of the exchange contract.
On 13 September 2004 the Administration for Real Property Issues of the Republika Srpska upheld its Banja Luka Office’s decision of 25 August 2004.
On 29 September 2004 the applicant instituted administrative proceedings before the Supreme Court of the Republika Srpska challenging the legality of the decision of 13 September 2004. He complained because the land at issue had not been immediately expropriated (i.e. regardless of the proceedings concerning the validity of the exchange contract). It would appear that those proceedings are still pending.
Three principal parties to the 1992-95 war in Bosnia and Herzegovina (the then Republic of Bosnia and Herzegovina, the Republic of Croatia and the then Federal Republic of Yugoslavia) signed the Dayton Agreement on 14 December 1995. It entered into force on the same day. There are twelve Annexes to the Agreement, including the Agreement on Human Rights (Annex 6) and the Agreement on Refugees and Displaced Persons (Annex 7).
The Agreement on Human Rights was signed by Bosnia and Herzegovina (at the time, the Republic of Bosnia and Herzegovina), the Federation of Bosnia and Herzegovina and the Republika Srpska on 14 December 1995, when it entered into force. For its relevant provisions see Jeličić v. Bosnia and Herzegovina ((dec.), no. 41183/02, ECHR 2005-...).
The former Human Rights Chamber was set up pursuant to this Agreement. On 31 December 2003 it was replaced by the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina with a mandate to decide on cases received by the Human Rights Chamber up to that moment.
In 2003 the former Human Rights Chamber delivered a decision in a case of an individual who had concluded a contract of exchange of houses with another individual during the 1992-95 war in Bosnia and Herzegovina and who had been threatened with eviction from her home pending court proceedings relating to the validity of the contract of exchange (see Samardžić, decision no. CH/02/9130 of 6 January 2003). Pending the proceedings before it, the former Human Rights Chamber applied interim measures suspending the eviction. Its final decision further suspended the eviction until a final decision of the competent court on the validity of the contract of exchange. The following is its relevant part concerning Articles 8 and 13 of the European Convention on Human Rights:
“55. This Law on Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees in Article 12a contains a mechanism that allows the court seized with the dispute about the validity of the exchange contract to decide whether, in the specific case before it, the general aim of expeditious repossession of pre-war homes should prevail over the rights asserted on the basis of the exchange contract or not...
56. The law appears to envision that the competent court, once it has been requested to issue an order provisionally halting the enforcement of the administrative repossession proceedings, will make a decision on the basis of the case file before it. The court will examine the prima facie strength of the arguments made and evidence presented by the two parties, the one asserting the validity of the exchange contract and the one claiming that it was concluded under duress. In this respect the court will require the side asserting the validity of the exchange to, as a minimum, “show evidence of a written contract” on the exchange. The court will then take into account whether the party seeking suspension of the eviction can make credible that the deprivation of the possession of the home until the dispute about the contract is solved will cause irreparable harm to it. The Chamber is of the opinion that the mechanism envisaged by the law may be seen to strike a fair balance between the two parties to the dispute.
57. However, in the case before the Chamber, the First Instance Court in Banja Luka has failed until today to decide on the, manifestly urgent, request for provisional measures by the applicant. As a result, the balance crafted by the legislator is overthrown and the applicant de facto deprived of all procedural safeguards. Under these circumstances, the interference with the applicant’s right to respect for her home does not comply with the requirement that it be “necessary in a democratic society for the protection of the rights of others”, in this case of the pre-war owner M.J.
...
69. In the present case, although the applicant has requested that the First Instance Court in Banja Luka issue an order for provisional measures to prevent her eviction pending court proceedings on the validity of the exchange contract as provided for in Article 12a, due to the silence of the first instance court, the applicant is left without any other remedy to seek suspension of her eviction. The Banja Luka Court of First Instance has the power under Article 12a to order suspension, but it has failed to reply to the applicant’s request for an interim measure. As of today the Court has not given any decision on the request for provisional measures. The respondent Party has confirmed the applicant’s allegation that her case is just an instance of a general practice not to decide requests for provisional measures in cases like hers. The Chamber is of the opinion that under such circumstances, the applicant was deprived of her right under Article 13 to an effective remedy against the violation of her right to respect for her home.”
Following this decision, the Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees Act 1999 has been amended. The relevant authorities will now suspend ex officio execution of the decisions of the Commission for Real Property Claims of Displaced Persons and Refugees in cases of exchanged houses pending court proceedings about the validity of the exchange (see “Implementation of the Decisions of the Commission for Real Property Claims of Displaced Persons and Refugees Act 1999” below).
The Agreement on Refugees and Displaced Persons was signed by Bosnia and Herzegovina (at the time, the Republic of Bosnia and Herzegovina), the Federation of Bosnia and Herzegovina and the Republika Srpska on 14 December 1995, when it entered into force. The following are its relevant provisions:
“All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina. The Parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries.”
“The Parties hereby establish an independent Commission for Displaced Persons and Refugees (the “Commission”) ...”
“The Commission shall be composed of nine members. Within 90 days after this Agreement enters into force, the Federation of Bosnia and Herzegovina shall appoint four members, two for a term of three years and the others for a term of four years, and the Republika Srpska shall appoint two members, one for a term of three years and the other for a term of four years. The President of the European Court of Human Rights shall appoint the remaining members, each for a term of five years, and shall designate one such member as the Chairman. The members of the Commission may be reappointed.”
“The Commission shall receive and decide any claims for real property in Bosnia and Herzegovina, where the property has not voluntarily been sold or otherwise transferred since 1 April 1992, and where the claimant does not now enjoy possession of that property. Claims may be for return of the property or for just compensation in lieu of return.”
“In determining the lawful owner of any property, the Commission shall not recognize as valid any illegal property transaction, including any transfer that was made under duress, in exchange for exit permission or documents, or that was otherwise in connection with ethnic cleansing...”
“Commission’s decisions shall be final...”
Like the Human Rights Chamber, on 31 December 2003 the original Commission for Real Property Claims of Displaced Persons and Refugees ceased to exist. It has been subsequently replaced by a homonymous Commission which is composed of entirely Bosnia and Herzegovina citizens and financed by Bosnia and Herzegovina.
This Act was enacted by the High Representative (an institution set up by the Agreement on Civilian Implementation – Annex 10 to the 1995 Dayton Agreement – to oversee the implementation of the civilian aspects of the Dayton Agreement on behalf of the international community). The Steering Board of the Peace Implementation Council (a group of 55 states and international organisations that sponsor and direct the peace implementation process) nominates the High Representative. The United Nations Security Council, which approved the Dayton Agreement and the deployment of international troops in Bosnia and Herzegovina, then endorses the nomination, acting thereby under Chapter VII of the Charter of the United Nations. The Steering Board also provides the High Representative with political guidance. The Office of the High Representative is funded by the Peace Implementation Council. The current High Representative, Mr Schwarz-Schilling, is also the European Union’s Special Representative in Bosnia and Herzegovina (as was the previous one, Lord Ashdown).
The Act has been in force since 28 October 1999. The following are the relevant provisions:
“This Act regulates the implementation of the decisions of the Commission for Real Property Claims of Displaced Persons and Refugees (hereinafter “the Commission”), created under Annex 7 to the [Dayton] Agreement, by way of restitution of properties located in the Republika Srpska.”
“The Commission’s decisions shall be final and binding from the day of their adoption.
The Commission’s decisions shall confirm the real property rights of the persons indicated therein and shall require the competent enforcement authorities to take measures as set out in this Act.
The Commission’s decisions shall be admissible as evidence in administrative, court or other legal proceedings.”
“The administrative authorities shall execute a Commission’s decision upon a request of a person referred to in section 4(1) [of this Act] ...
The office of the Ministry of Refugees and Displaced Persons in the municipality in which the property is situated shall execute a Commission’s decision ...”
“The following persons shall be entitled to request the enforcement of the Commission’s decision dealing with private property:
a. the property right holder indicated in the Commission’s decision,
b. the heirs of the property right holder indicated in the Commission’s decision.”
“The right to request the enforcement of the Commission’s decision dealing with private property shall not be subject to the statute of limitations.”
“A competent administrative organ shall issue an order enforcing the Commission’s decision within 30 days from the filing of a request for its enforcement.”
“Should a person claim a legal interest in the property or apartment at issue which was acquired after [1 April 1992] and he or she can show a valid contract of exchange or transfer of rights, the competent administrative organ shall suspend proceedings and shall refer the parties to a competent court, according to the provisions of the General Administrative Procedure Act 2002 (Official Gazette of the Republika Srpska no. 13/02) regulating preliminary issues, in order to rule on the allegation.”
“Where, exceptionally, a person claims a legal interest in the property or apartment at issue which was acquired after [1 April 1992], in respect of which the competent administrative organ issued an order enforcing a Commission’s decision prior to [11 June 2003] as yet unexecuted, the competent administrative organ shall ex officio suspend enforcement proceedings pending a final judicial decision on the matter, under the condition that an interested party provides evidence that he or she has initiated proceedings before the competent court and can show a valid contract of exchange or transfer of rights.”
“The competent administrative organ shall instruct the appellant to initiate proceedings before the competent court within 30 days to prove that the property right holder indicated in the Commission’s decision has voluntarily and lawfully transferred his or her rights to the appellant since [1 April 1992].
The competent court may suspend the enforcement proceedings before the competent administrative organ pending the court’s decision where the appellant is able to produce a written contract which is in accordance with the law and to show that he or she would suffer irreparable harm if the enforcement proceedings continued.”
“The competent court shall determine whether the transfer of rights to the appellant has been conducted voluntarily and in accordance with the law.
If the transfer of rights was conducted between 1 April 1992 and 14 December 1995 and its validity is disputed by the defendant/respondent, the burden of proof shall lie upon the party claiming that the transfer was valid to demonstrate that the transfer was conducted voluntarily and in accordance with the law. Where one of the transferred properties is situated in the territory of another republic of the former Socialist Federal Republic of Yugoslavia, the burden of proof shall lie upon the party, claiming that the transfer was not conducted voluntarily or in accordance with the law, to demonstrate that the status of the parties prior to the transfer should be restored.
...
The court may make whatever orders are necessary to give effect to its decision, such as an order setting aside legal transactions, making or erasing entries in the appropriate public books/registers and lifting any order for the suspension of enforcement proceedings.
The relevant parties shall notify the competent administrative organ of the court’s decision.
The competent administrative organ shall continue or discontinue the enforcement proceedings in accordance with the court’s decision.”


ITEMID: 001-69674
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF SOLODYUK v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicants, who are husband and wife, were born in 1936 and 1937 respectively and live in Donetsk in the Rostov Region of Russia.
9. The applicants receive old-age pensions. Under section 120 of the State Pensions Act of 1990, old-age pensions were payable in the month for which they were due. From June to December 1998 and from January to April 1999 the applicants received their pensions, totalling approximately 439 and 355 Russian roubles (RUR) per month, several months in arrears. In particular, the pensions due for June 1998 were paid on 14 August 1998; for July 1998 on 6 November 1998; for August 1998 on 14 December 1998; for September 1998 on 15 January 1999; for October 1998 on 9 February 1999; for November 1998 on 1 March 1999; for December 1998 on 25 March 1999; for January 1999 on 16 April 1999; for February 1999 on 18 June 1999; for March 1999 on 26 July 1999 and for April 1999 on 27 August 1999.
10. According to the applicants, inflation and devaluation of the Russian rouble during this period meant that pensions paid several months in arrears had lost a significant part of their value by the time they were paid.
11. According to information obtained by the applicants from the Donetsk Town Department of State Statistics, the month-on-month inflation rate ran at 2.7% in August 1998, 37.3% in September 1998, 4.4% in October 1998, 4.8% in November 1998, 10.2% in December 1998, 8.8% in January 1999, 5.9% in February 1999, 3.4% in March 1999 and 3.8% in April 1999.
12. According to information from the Central Bank of the Russian Federation, the official exchange rate was approximately 6.2 Russian roubles to the US dollar in the period June - August 1998, 9.3 in September 1998, 15.8 in October and November 1998, 17.9 in December 1998, 20.7 in January 1998, 22.8 in February 1999, 22.9 in March 1999 and 24.2 in April 1999.
13. In December 1999 the applicants lodged an action with the Donetsk Town Court for damages in respect of the delays in payment of their pensions. In particular, they claimed index-linking of their pensions in line with inflation. The action was lodged against the Pension Fund which was responsible for the financing of pension payments.
14. On 26 January 2000 the Town Court refused to entertain the action on the ground that it had been lodged against the wrong respondent.
15. In February 2000 the applicants lodged an equivalent action against the Donetsk Social Security Authority, which was responsible for the calculation of pensions. During those proceedings, the Social Security Authority argued that the proper respondent in the case was the Pension Fund and not the Authority. The Town Court rejected that objection.
16. On 18 July 2000 the Town Court dismissed the applicants’ action. It confirmed that there had been delays in payment of the pensions but established no fault on the part of the Social Security Authority, which had calculated the pensions and filed requests for their payment in due time. The court found that the pensions had been paid late because the Pension Fund had failed to finance the payments in time. The court also considered that the applicants had failed to substantiate the pecuniary and non-pecuniary damage allegedly sustained as a result of the delays.
17. On 13 September 2000 the applicants’ appeal was dismissed by the Rostov Regional Court. The appeal court stated that the delays were not the fault of the Social Security Authority because it merely made payments on receipt of funds from the Pension Fund, which had been delayed.
18. Subsequently, the applicants unsuccessfully tried to have their case re-examined by way of the supervisory review procedure. On 13 April 2001 the Rostov Regional Court refused to re-open the proceedings.
19. Old-age pensions were paid at the material time on the basis of the State Pensions Act of 1990 (Закон РФ от 20 ноября 1990 г. N 340-I «О государственных пенсиях в Российской Федерации»).
Under section 7 of the Act, pensions were increased four times a year in line with the increase in the average salary, which was determined by the Government on the basis of State statistical data.
Under section 8 of the Law, the State Pension Fund was responsible for financing the payment of pensions. It derived its resources from contributions of employers and citizens and from State budgetary allocations.
Under Part IX of the Act, pensions were set by the Social Security Authority.
Under section 120 of the Act, pensions were payable in the month for which they were due.
According to section 123 of the Act, where pension debts resulted from the State’s failure to pay pensions in due time, they remained due irrespective of the time that had elapsed.


ITEMID: 001-89420
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LEELA FORDERKREIS E.V. AND OTHERS v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 9;Non-pecuniary damage - claim dismissed
JUDGES: Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Otto Mallmann;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: 6. The applicant associations are religious associations or meditation associations belonging to the Osho movement, formerly known as the Shree Rajneesh or Bhagwan movement. The movement was founded by the Indian mystic Rajneesh Chandra Mohan, who was first called Bhagwan by his followers, and then later Osho. According to their statutes, the applicant associations promote the teachings of Osho, who maintained that the aim of spiritual development was enlightenment. One precondition was to become free of all socialisation, through a comprehensive programme of traditional and new meditation techniques and a range of therapies. The applicant associations run Osho meditation centres, organise seminars, celebrate religious events and carry out joint work projects. They also protect the religious rights of their members against discrimination.
7. The applicant associations belong to a group of previously unknown religious communities which first surfaced in Germany in the 1960s. They were described as “sects”, “youth sects”, “youth religions”, “psycho-sects”, and “psycho-groups” or given similar labels. The groups quickly became the subject of critical public debate due to the fact that their actions are seen to be predominantly influenced by their religious and philosophical views and due to the way they treat their members and followers. The focus of concern was the potential danger that these groups could pose to adolescents’ personal development and social relations, which could lead not only to their dropping out of school and vocational training, radical changes in personality, various forms of dependence, lack of initiative and difficulties in communication, often aggravated by the group structure characteristic of certain communities, but also to material loss and psychological harm.
8. Since 1970 the Federal Government and the governments of the Länder have been confronted with these issues. To draw attention to the potential dangers of such groups, both to the individual and to society, the Federal Government launched a large-scale information and education campaign designed to increase public awareness and stimulate a critical discussion on the aims and activities of sects and sectarian groups. Since 1979 the German Government has given several official warnings concerning so-called sects with a view to informing the public about the practice of these groups. The Rajneesh, or Bhagwan, movement was mentioned as one of these new religious and spiritual movements. As part of their public relations work, State agencies have characterised the applicant associations as a “sect”, “youth sect”, “youth religion” and “psycho-sect”. The adjectives “destructive” and “pseudo-religious” have also been used to describe them, and the accusation has been raised that their members are manipulated.
9. These expressions were contained in Government statements, namely, in replies to members of the German Parliament of 27 April 1979, 23 August 1982 and 10 October 1984, in a report by the German Government to the Petition Board of the Federal Diet on youth sects in the Federal Republic of Germany dated February 1980 and published by the Federal Minister of Youth, Family and Health, and in a speech by the Federal Minister of Youth, Family and Health delivered on 8 December 1984.
10. In the reply of 27 April 1979 on the subject “Recent religious and philosophical communities (so-called youth sects)” the “Shree Rajneesh Movement” was counted among the so-called religious and philosophical communities. The Federal Government stated that these were labelled with general terms such as “youth sects”, “destructive religious groups” or “destructive cults”. The Federal Government itself referred to them as “youth sects” “pseudo-religious and psycho-groups” as well as generally referring to them as “sects”.
In their reply dated 23 August 1982 the Government mentioned the “Bhagwan-Shree-Rajneesh movement” in connection with questions concerning the membership structure of “so-called new youth sects”. Furthermore, in the preliminary remarks the term “so-called psycho-sects” was used, while throughout the main text the Government referred to “youth religions”.
In their reply of 10 October 1984 concerning the “economic activities of destructive youth religions and psycho-sects” the Government mainly used the terms “youth religion” and “psycho-sect”. The Government further stated that it appeared to be difficult to apply labour law regulations to associations the conduct of whose members was manipulated.
In its report to the Petititions Board of the Federal Diet of February 1980 the Federal Government pointed out in the introduction that the terms “youth religion” or “youth sect” encompassed a number of highly varied groups. The “group based around “Bhagwan (i.e. God) Shree Rajneesh” was presented as one of these groups, and was included as one of the “psycho-movements”.
In the speech he gave on 8 December 1984 at a conference on the topic “New youth religions – Protecting the freedom of the individual” the Federal Minister of Youth, Family and Health used the terms “youth religion”, “youth sect”, “sect”, “destructive religious cults”, “pseudo salvation teachings” and “pseudo-religion” with reference to the groups dealt with.
11. On 1 October 1984 the applicant associations instituted legal proceedings before the Cologne Administrative Court (Verwaltungsgericht). They requested that the Government desist from issuing the above-mentioned statements about the religious movement and the associations belonging to it, maintaining that such statements were incriminating. They essentially alleged that their freedom to profess a religious or philosophical creed under Article 4 §§ 1 and 2 of the Basic Law (Grundgesetz) had been infringed.
12. According to the applicant associations, the teachings of the community were based on the idea of achieving transcendence in all essential areas of life. These teachings were continuously shared by them and their community. The various statements of the Government had breached the obligation of neutrality required by Article 4 of the Basic Law by discrediting the teachings of the movement. The expressions used were either actually defamatory or were meant to be, and there was no factual or legal basis which would justify using those terms. The applicant associations did not pursue any activities contrary to the basic rights of other persons, groups or organisations. The Government had misinterpreted the concepts of Osho’s teachings and thus interfered with the essential religious beliefs of their movement.
13. By a judgment of 21 January 1986 the Cologne Administrative Court prohibited the Government from calling the Rajneesh movement in official statements a “youth religion”, “youth sect” or “psycho-sect”, from using the adjectives “destructive” and “pseudo-religious” and from alleging that members of the Rajneesh movement had been manipulated.
14. The Administrative Court found that those terms evoked a negative connotation of the basic contents of the applicant associations’ religious beliefs and that the use of those terms infringed their religious freedom guaranteed by Article 4 § 1 of the Basic Law. It considered, however, that the use of the term “sect” as such had no negative impact on the applicant associations’ religious belief.
15. The Administrative Court pointed out that there was no indication that the applicant associations pursued exclusively commercial aims or that the teachings of Osho or the methods employed by the applicant associations were contrary to human dignity. The right protected by Article 4 of the Basic Law obliged the State to maintain strict neutrality regarding religious activities and prohibited negative judgments on a determined religious belief. Furthermore the use of such general terms was not appropriate for the prevention of danger.
16. On 28 April 1986 the Government appealed against that judgment. A hearing was held before the Administrative Court of Appeal of the Land North Rhine-Westphalia (Oberverwaltungsgericht für das Land Nordrhein-Westfalen) on 22 May 1990. By a judgment of the same day the Administrative Court of Appeal quashed the impugned judgment and dismissed the applicant associations’ claim as a whole, as well as the appeals of two applicant associations who had contested the findings of the first-instance court as regards the use of the term “sect”. It did not allow an appeal on points of law.
17. The Administrative Court of Appeal found that the contested statements interfered with the applicant associations’ basic rights guaranteed by Article 4 §§ 1 and 2 of the Basic Law. However, the right to religious freedom was not absolute. It was subject to limitations by other provisions of the Basic Law. Limitations and interferences by the State had to be accepted where important reasons of public interest required the protection of basic rights which were in conflict with the right to freedom of religion. Where a mere suspicion of a possible violation of these rights existed, relevant information and warnings were appropriate and necessary for their protection. Under Article 65 of the Basic Law, which vested governmental functions in the Government, taken together with the positive obligations under Article 2 § 2, first sentence, which guarantees the right to life and to inviolability of the person, and Article 6 of the Basic Law, which protects the rights of the family, the Government had the right to impart information. The views expressed by the Government were acceptable and respected the principle of proportionality.
18. On 13 March 1991 the Federal Administrative Court (Bundesverwaltungsgericht) dismissed the applicant associations’ appeal against the decision of the Administrative Court of Appeal refusing leave to appeal. The court considered that the case had no fundamental importance. It noted that the legal questions raised in connection with public declarations of the Government in respect of new religious movements had already been dealt with in its previous case-law and that of the Federal Constitutional Court (Bundesverfassungsgericht). The applicant associations’ submissions did not raise any new issue. The Government’s constitutional right to inform the public and to protect the human dignity and health of citizens justified the interference with the freedom of religion or belief. The right to inform the public included the right to warn the public and to consider the conduct of others as dangerous.
19. On 3 May 1991 the applicant associations filed a constitutional complaint against the above-mentioned court decisions. On 23 April 1992 the Federal Constitutional Court informed the applicant associations in reply to their letter of 10 April 1992 that it was not able to indicate when a decision would be given. On 13 January 1993 it wrote to the applicant associations that the case had been communicated to the Federal Government and the Land of North-Rhine-Westphalia. On 2 November 1993 the Federal Government submitted their observations, which were served on the applicant associations on 4 November 1993. On 21 September 1994 the applicant associations submitted their observations in reply. By letters of 8 March 1993, 6 August 1995, 8 July 1998 and 3 February 2000 the applicant associations enquired about the state of the proceedings.
20. On 26 June 2002 the Federal Constitutional Court ruled that the judgment of the Administrative Court of Appeal of the Land North Rhine-Westphalia of 22 May 1990 violated the applicant associations’ basic rights guaranteed by Article 4 §§ 1 and 2 of the Basic Law. It quashed the judgment insofar as the applicant associations’ claim had been dismissed in respect of the use of the expressions “destructive”, and “pseudo-religious”, and the allegation that they “manipulated their members” and referred that part of the complaint back to the Administrative Court of Appeal for a new decision. However, it found that the Government was authorised to characterise the applicant associations’ movement as a “sect”, “youth religion”, “youth sect” and “psycho-sect” and was allowed to provide the public with adequate information about it.
21. According to the Federal Constitutional Court, the right to freedom of religion or belief guaranteed by Article 4 §§ 1 and 2 of the Basic Law did not prevent the State from entering into a public and even critical discussion about the aims and activities of religious groups. The limitations on the freedom of religion were to be found in other basic rights and freedoms guaranteed by the Basic Law, such as the protection of human dignity, the right to life and physical integrity and the protection of marriage and the family.
22. The power to manage State affairs derived directly from the Basic Law and authorised the Federal Government to provide information in all matters coming within the sphere of their overall State responsibility. Providing direct public information helped them to resolve conflicts within the State and society, to face challenges even if they occurred at short notice, to react quickly and adequately to the problems and concerns of citizens and assist them in finding guidance. This activity did not require an express legal provision, since it did not constitute a direct interference with the applicant associations’ rights. It merely influenced the conduct of others vis-à-vis the applicant associations. Moreover, it was not possible to establish rules for the Government’s information-imparting role, given the wide variety of the subject matter dealt with and methods used. When acting in the exercise of their power to direct State affairs, the Federal Government were entitled to provide information to the public, even if basic rights were indirectly affected as a result.
23. However, the State had to restrict itself to neutral terms and act with moderation in matters of religion or belief. Defamatory, discriminating or deceptive statements were prohibited. The Government also had to respect the separation of powers between the Federal State and the Länder. The Government were authorised to impart information relating to supra-regional matters and where nationwide information helped to resolve problems efficiently. Providing information in these circumstances did not exclude or impair the powers of the Länder governments to impart information themselves, nor did it prevent the administrative authorities from carrying out their administrative tasks.
24. Furthermore, the Federal Government had to respect the principle of proportionality when imparting information. Statements affecting the very essence of the right guaranteed by Article 4 §§ 1 and 2 of the Basic Law had to be appropriate in relation to the cause for concern.
25. As to the term “sect”, the Federal Constitutional Court found that the Government were not prohibited from using the term, which at the material time corresponded to the general understanding of new religious movements. Similarly, the use of the terms “youth religion” and “youth sect” described the prevailing situation at the material time and the term “psycho-sect” reflected the Osho movement’s meditation practices. These terms were employed without discriminatory differences of treatment in respect of these groups on grounds of their religion or belief. They complied with the obligation of the State to neutrality in matters of religious and philosophical beliefs and did not affect the very essence of the right guaranteed by Article 4 §§ 1 and 2 of the Basic Law.
26. In contrast, the use of the terms “destructive” and “pseudo- religious”, and the allegation that members of the movement were manipulated, did not satisfy the requirements of constitutional law.
27. Even if the employment of such terms could not be criticised on the ground that it exceeded the powers of the Federal Government, the terms used nonetheless infringed the neutrality requirement and were thus not justifiable according to the proportionality principle. In particular, no substantiated reasons had been advanced which could have justified the statements regarded as defamatory by the complainants, nor were any such reasons otherwise apparent. That decision was served on the applicant associations on 30 July 2002.
28. On 8 November 2002 the Federal Government withdrew their appeal against the judgment of the Cologne Administrative Court of 31 January 1986 as the appeal was again pending before the Administrative Court of Appeal following the decision of the Federal Constitutional Court of 26 June 2002.
29. On 27 December 2005 the applicant associations’ representative informed the Court that the fourth and fifth applicant associations, Dharmadeep Verein für ganzheitliches Leben e.V. and Osho Meditations Center Berlin e.V, wished to withdraw their application.
30. The relevant provisions of the Basic Law read as follows:
Article 2 § 2, first sentence
“Everyone has the right to life and to inviolability of his person”
Article 4 §§ 1 and 2
“The freedom of belief and conscience and the freedom to profess religious and philosophical beliefs are inviolable.
The undisturbed practice of worship is guaranteed.”
Article 6 § 1
“Marriage and family enjoy the special protection of the State.”
Article 65
“The Federal Chancellor shall determine and be responsible for the general guidelines of policy. Within these limits each Federal Minister shall conduct the affairs of his department independently and of his own motion. The Federal Government shall resolve differences of opinion between Federal Ministers. The Federal Chancellor shall conduct the proceedings of the Federal Government in accordance with rules of procedure adopted by the Government and approved by the Federal President.”
31. By a judgment of 23 May 1989 the Federal Administrative Court ruled that the German Federal Government was entitled to provide information and publish warnings by virtue of their constitutional responsibility to inform the public about new religious and ideological communities and “psycho-groups” (BVerwGE 7 C 2/87, see Judgments and Decisions of the Federal Administrative Court, vol. 96, pp 82 et seq.). On 15 August 1989 the Federal Constitutional Court, sitting as a bench of three judges, did not accept the constitutional complaint of the Maharishi Organisation (Transcendental Meditation) for adjudication, confirming that the Federal Government was entitled to provide information on new religious and ideological communities and “psycho-groups” in compliance with its constitutional obligations, namely to express opinions and submit recommendations and warnings to the public within the limits of the proper execution of the powers granted by the Basic Law (1 BvR 881/89).
32. In 1996 the Federal Diet (Deutscher Bundestag) charged an expert commission to prepare a report on “so-called sects and psycho-cults”. In its final report issued in June 1998 the Commission of Enquiry stated that negative sentiments were typically evoked when the term “sect” was used. However, only a small number of the movements characterised as “sects” were problematic. The Commission recommended that in official statements, information leaflets or legal texts the word “sect” not be employed in future.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 9


ITEMID: 001-81010
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KERN v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Dieter Kern, is a German national who was born in Lübeck and lives in Kosel.
The applicant is an environmental engineer (Umweltschutztechniker) who had been employed with the Lübeck municipality since 1989. His contract had been subject to the collective bargaining contract for federal employees (Bundesangestelltentarifvertrag).
The applicant is a member and the local chairman of the right-wing extremist collaboration Bündnis Rechts. On 12 September 2001, the day after the terrorist attacks on the World Trade Centre in New York and the Pentagon in Washington (DC), he issued a press release on behalf of the Bündnis Rechts which he both published on the internet and distributed to the press in the State Schleswig-Holstein. Extracts from the press release read as follows:
“How long can one carry on to exercise terrorism against peoples worldwide, stir up terrorism, sponsor civil wars, apply sanctions against peoples etc., like America has done for decades with its ‘one world-idiocy’ in order to bring them to their knees for the interest of a Zionist oligarchy, so that the situation ended in an act of liberation against the USA which had been overdue for a long time and in which human beings unconditionally sacrificed themselves in their fight for liberty?
Now that America has noted that it is no longer invulnerable as a world power and war monger, the moaning and whining is wide and it condemns as usual before investigating, instead of admitting its mistakes, because the act of violence was certainly not in the first place directed against civilians, but against the political leadership which, viewed under closer scrutiny, has to take responsibility for it. One does not have enemies by coincidence, but one has to make enemies and America has already done a lot in this respect.
...
Regarding the events, rejoicing is as inappropriate as the voicing of solidarity with the state USA as the ‘guardian of the western community of values’. The strikes should rather serve as a warning to America perhaps not to act as the policeman of the world on all continents and finally to ensure that less control is being accorded to certain power constellations within America!
The Bündnis Rechts fiercely condemns all terrorist attacks no matter by whom and expresses its condolences to all innocent, civil victims of such attacks. Terrorist attacks, no matter against whom, are basically unacceptable and intolerable.
...
Therefore, a differentiated view is appropriate. Emotions are understandable, but they cannot play a role when assessing the situation objectively.”
After having consulted the staff council, the Lübeck municipality informed the applicant about the extraordinary, alternatively ordinary termination of his employment on 1 October 2001. After having obtained the staff council’s approval on 4 October 2001, the municipality repeated the extraordinary, alternatively ordinary, dismissal on 11 October 2001.
On 19 February 2002, the Lübeck Labour Court declared that the employment relationship between the applicant and the municipality had neither been terminated by the extraordinary nor by the ordinary dismissal of 1 and 11 October 2001. It found that the dismissal of 1 October 2001 had been unlawful because the staff council had not yet approved it, as required by the applicable law, whereas the extraordinary dismissal of 11 October 2001 had been unlawful because the municipality had exceeded the required time-limit of two weeks since it took note of the events. Moreover, the Lübeck Labour Court considered the ordinary dismissal of 11 October 2001 to be unlawful because it was not socially justified within the meaning of section 1 (2) of the Unfair Dismissal Act (see Relevant domestic law). The press release of 12 September 2001 did not constitute a sufficient reason for the applicant’s dismissal as he did not exceed his obligation to recognise the free democratic order within the meaning of section 8 § 1 of the Law on Contracts for Federal Employees (see Relevant domestic law). The Lübeck Labour Court considered that the applicant, when writing the first paragraph of the press release, was at the borderline of a permissible exercise of an employee’s freedom of expression. However, having regard to the remainder of the press release, it could not be said that the applicant had approved of the terrorist attacks. The applicant had considered the attacks as terrorist acts, he had basically condemned all terrorist attacks and expressed his sincere condolences to all innocent victims of the attacks. Therefore, it could not be said that the applicant had made a malicious statement with regard to the numerous victims or that he had approved of the attacks. He had merely expressed his anti-american feelings which could neither be qualified as a lack of loyalty towards the municipality nor as a refusal to recognise the free democratic order.
Having found that the dismissal was unlawful, the Lübeck Labour Court however dismissed the applicant’s claim for continued employment until the labour proceedings had been completed. In this respect, the Lübeck Labour Court took note of a further extraordinary dismissal of 31 January 2002 in view of the applicant’s criminal conviction of the use of symbols of unconstitutional organisations (section 86a of the Criminal Code) and reasoned that that dismissal outweighed the applicant’s interest for continued employment. Even though the applicant had brought an objection against the dismissal of 31 January 2002 which was pending in a different set of proceedings before the labour courts, the Lübeck Labour Court found that the dismissal with regard to the above conviction was at least not manifestly void.
On 6 August 2002, on appeal by the municipality, the Schleswig-Holstein Labour Court of Appeal partly quashed the judgment of 19 February 2002 and declared that the employment relationship between the applicant and the municipality had neither been terminated by the extraordinary dismissals of 1 and 11 October 2001 nor by the ordinary dismissal of 1 October 2001. However, it considered that the ordinary dismissal of 11 October 2001 was lawful and that consequently the employment had ended on 31 March 2002. The Schleswig-Holstein Labour Court of Appeal noted that, according to section 8 § 1 of the Law on Contracts for Federal Employees, the applicant was required to recognise the free democratic order within the meaning of the Basic Law and act accordingly, even outside of his workplace. The above provision had to be interpreted in the light of freedom of expression which protected statements that were polemic or offending, but which were on its part subject to limitations such as section 8 § 1 of the Law on Contracts for Federal Employees which mirrors other provisions applicable to public servants. An employee was therefore required, when publicly commenting on current political affairs, to do so in a careful manner in order not to damage the public confidence in his impartial, just and welfare-oriented performance.
The Schleswig-Holstein Labour Court of Appeal found that the press release issued by the applicant exceeded the above limits. The core proposition in the first paragraph of the press release was that the USA exercised terrorism and pursued a “Zionist oligarchy”. The Schleswig-Holstein Labour Court of Appeal found the latter expression objectionable. While the notion “Zionism” as such did not have a negative meaning, the combination with “oligarchy” had a negative notion as it suggested world domination by the Jews living in the USA. Moreover, the applicant had approved of the terrorist attacks by stating that they were “an act of liberation against the USA which had been overdue for a long time”. While the second paragraph of the press release stated that “the act of violence was certainly not in the first place directed against civilians”, the applicant did not consider the fact that the majority of the victims had been civilians (but also soldiers working in the Pentagon). Consequently, he had tried to downplay the attacks. When stating in the sixth paragraph that “the strikes should rather serve as a warning to America perhaps not to act as the policeman of the world”, the applicant had again approved of the attacks in the sense of “you deserved it”.
The Schleswig-Holstein Labour Court of Appeal continued that the impression which the applicant had created with the above passages of the press release could not be removed by the last three paragraphs. Even assuming that readers would in fact read the press release until the end, it could not be established that the applicant condemned the attacks as he restricted his condolences to the civilian victims and disregarded the considerable number of military victims in the Pentagon. The last paragraphs therefore could not serve as a revocation of his former statements. While the applicant could not be accused of having been disloyal to his employer when expressing his anti-american attitude, his approval of the attacks was in contempt of human dignity of the victims and therefore in breach of the free democratic order. A balancing of the diverging interests in the present case suggested that the interest of the municipality to terminate the employment outweighed the applicant’s interests to keep his position as an environmental engineer. Even though the Schleswig-Holstein Labour Court of Appeal recognised the applicant’s difficulties in finding a new employment given his age of forty-seven years, it reasoned that it was unacceptable for the municipality to continue the employment as it could not expect the applicant to respect the free democratic order in the future.
On 7 November 2002, the Federal Labour Court dismissed the applicant’s motion to be granted leave to appeal on points of law. The Federal Constitutional Court refused to admit the applicant’s constitutional complaint on 8 January 2004.
Section 1 (1) of the Unfair Dismissal Act (Kündigungsschutzgesetz) provides that a termination of an employment relationship by the employer is unlawful if it is socially unjustified. According to Section 1 (2) of the Act, a termination shall be socially unjustified unless it is based on grounds relating to the employee himself or to his conduct.
Section 8 § 1 of the Law on Contracts for Federal Employees (Bundesangestelltentarifvertragsgesetz) provides that employees must act as it is expected from employees and that they must recognise the free democratic order within the meaning of the Basic Law and act accordingly. The Law on Contracts for Federal Employees applies to employees at the federal, state (Länder) and municipal level alike.


ITEMID: 001-83187
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: YORGANLI v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Zikri Yorganlı, is a Turkish national who was born in 1958 and lives in Istanbul. He was represented before the Court by Mr E. Cinmen, a lawyer practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 19 December 1995 the applicant and H.D. were arrested and taken to the Gayrettepe Security Directorate in İstanbul on suspicion of embezzlement. During his police custody, the applicant was allegedly subjected to illtreatment.
On 20 December 1995 the applicant was examined by a medical expert, Dr Bilgen, at the Beyoğlu branch of the Forensic Medical Institute. The medical expert noted that there was no sign of ill-treatment on the applicant's body.
The applicant was released on the same day. Without submitting any medical reports, the applicant states that, following his release, he went to the Şişli Etfal Hospital.
On 26 December 1995 the applicant filed a petition with the Beyoğlu public prosecutor's office, stating that he had been subjected to ill-treatment during his police custody at the Gayrettepe Security Directorate, and requested to be referred to the Forensic Medical Institute for an examination. In his petition, he maintained that he had been subjected to falaka (beating of the soles of the feet), that he had been hung from his arms, and that electric shocks had been administered to his body through his right toe, feet and his sexual organ. The applicant further maintained that he had also been forced to jump up and down and clean the floors in the Security Directorate Building.
On the same day, the Beyoğlu Public Prosecutor sent the applicant to the Beyoğlu branch of the Forensic Medical Institute. The applicant was examined once again by Dr Bilgen, who noted the following:
“... A 1 x 1 cm old scabbed wound on the proximal phalanx of the right toe, a 3 x 1 cm old scabbed wound on the inner side of the malleolus on the left foot, a few days old 2 x 1 cm hyperaemia on the right armpit and an old 1 x 1 cm hyperaemia on the left armpit were observed.”
The doctor concluded that the applicant was unfit for work for three days.
Again on the same day, the applicant applied to the İstanbul branch of the Human Rights Foundation of Turkey and he was examined by another doctor. The applicant maintained before the doctor that he had been beaten, subjected to falaka, hung from his arms and that electric shocks had been administered to his body through his right toe, feet and his sexual organs. He further stated that his testicles had been squeezed and a truncheon or an unknown object had been inserted into his anus. Subsequently, he alleged that he had been forced to jump up and down. According to the doctor's report, the applicant was anxious. In his report, the doctor noted the following: a scabbed skin lesion of 0.3 cm in diameter on the proximal phalanx of the right toe, a 4 x 2 cm hyperaemic skin lesion on the left shoulder, a purple coloured 4 x 0.5 cm ecchymosed skin lesion on the left armpit, two parallel ecchymosed skin lesions of 5 x 2 cm and 6 x 3 cm on the right armpit, a hyperaemic skin lesion of 2 cm in diameter on the left ankle, an oedema under the left foot, a dark coloured hyperaemia on the metatarsal bone and a 4 x 2 cm purple coloured ecchymosed skin lesion under the right foot.
Following further examinations, the medical expert concluded that the applicant suffered from plexopathy (nerve damage) in his left arm, anal fissure and anxiety.
On 17 January 1996 the applicant gave a statement before the İstanbul public prosecutor. He alleged that during his custody he had been stripped naked, blindfolded, and subjected to falaka. He also stated that he had been hung from his arms and electric shocks had been administrated on his body. The applicant further maintained that he had not been examined by a doctor on 20 December 1995 and that he had not filed a complaint on that day as the police officers had threatened him. He explained that he had gone to Şişli Etfal Hospital following his release from custody. He finally maintained that he would not be able to identify the officers who had tortured him as he had been blindfolded during the administration of ill-treatment.
On 12 June 1996 the Istanbul public prosecutor took statements from H.Y. and C.Ü., who had taken the applicant's statement on 19 December 1995. The police officers denied that they had ill-treated the applicant.
On 11 July 1996 the İstanbul public prosecutor filed an indictment with the İstanbul Assize Court against H.Y. and C.Ü. The charges were brought under Article 243 of the Criminal Code and the police officers were accused of having ill-treated the applicant.
On 24 October 1996 the İstanbul Assize Court held the first hearing. The applicant joined the proceedings as a civil party (müdahil) and reiterated his statements that he had made before the public prosecutor. The court also heard the accused police officers, who once again denied the charges against them.
On 4 December 1996 the Assize Court held the second hearing in the case and heard the applicant's father and H.D. as witnesses. The applicant's father maintained that after his son was released from custody he had marks on his body which indicated that he had been severely beaten. H.D. also contended that, when he had seen the applicant after his interrogation at the Security Directorate, he had injuries on his body which indicated that he had been beaten.
During the hearing, the public prosecutor requested that an expert report be obtained from the Forensic Medical Institute in order to eliminate the discrepancy between the reports of 20 and 26 December 1995. His request was dismissed by the first-instance court.
On the same day, the İstanbul Assize Court acquitted the accused police officers, finding that there was insufficient evidence to convict them.
On 3 December 1997 the Court of Cassation quashed the judgment of the first-instance court, holding that the latter should have heard the medical expert, Dr Bilgen, as a witness in order to eliminate the inconsistency between the two medical reports that he had drafted.
On 21 September 1998 the İstanbul Assize Court issued a summons requiring Dr Bilgen to give evidence on 16 November 1998.
On 10 November 1998 Dr Bilgen attended at the court and informed it that she would not be in İstanbul on 16 November 1998. The first-instance court proceeded to hear her in the absence of the applicant and his representative. Before the court, the doctor maintained, inter alia, that there was no inconsistency between the two reports and that the applicant's injuries were sustained after his release on 20 December 1995.
In the next hearing held on 16 November 1998, the statement of Dr Bilgen was read out to the applicant's representative and he was requested to submit his replies. The applicant's lawyer stated that he objected to the statement of the doctor and requested time to prepare his written submissions.
On an unspecified date, the applicant submitted to the first-instance court an expert report dated 10 December 1998, drawn up by three forensic medicine experts from the Cerrahpaşa Faculty of Medicine. The doctors opined that the report of 26 December 1995 was inadequate and concluded that the applicant might have sustained the injuries 3 to 15 days prior to 26 December 1995.
On 26 May 1999 the İstanbul Assize Court requested the Forensic Medicine Institute to submit its opinion as to the date on which the applicant had possibly sustained the injuries in question.
On 16 June 1999 five experts from the Forensic Medicine Institute submitted that it was not possible to identify the exact timing of the injuries on the applicant's right toe and on his left foot; however, it was stated that they might have occurred between 19 and 26 December 1995 or before 19 December 1995. As regards the hyperaemic skin lesions described in the report of 26 December 1995, the experts opined that as such lesions would disappear within a few hours; it was not medically possible that they had been sustained before 26 December 1995. Furthermore, referring to the injuries to the applicant's armpit, the doctors concluded that it was not possible to assess when they had occurred.
On 20 April 2000, having regard to the witness statements and the medical reports, the İstanbul Assize Court acquitted the accused police officers. It held, inter alia, that in view of the report of the Forensic Medicine Institute, it was not possible to determine when the applicant had sustained the injuries in question and that there was therefore insufficient evidence to conclude that H.Y. and C.Ü. had actually committed the offence that they were charged with.
On 19 September 2001 the Court of Cassation upheld the judgment of the first-instance court.


ITEMID: 001-85950
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: BARTECKOVA AND DZIERZENGA v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicants, Ms Irena Bartečková and Mr Josef Dzierženga, are Czech nationals who were born in 1930 and 1943 respectively and live in Bohumín. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 October 1993 the applicants brought an action in the Ostrava District Court (okresní soud) for reinstatement and recovery of real estates which were used by the State Fishing Enterprise without any legal title.
It appears that the proceedings are still pending.
On 2 October 2006 the applicants applied for compensation pursuant to Act no. 82/1998 as amended. They claimed CZK 820,000 (EUR 31,810) respect of pecuniary and non-pecuniary damage.
In a letter of 31 January 2007 the Ministry of Justice informed them that their application had been accepted, that it had been found that their right to a determination of their civil claim within a reasonable time had been violated and that they had been awarded a sum of CZK 144,000 (EUR 5,602) in respect of non-pecuniary damage they might have sustained. The Ministry refused, however, the applicants’ claim regarding compensation for pecuniary damage.
On 9 June 2007 the applicants informed the Registry that they would introduce a civil action under section 15(2) of Act no. 82/1998 as amended.
Moreover, in a letter of 6 November 2007, they notified the Registry that they had brought proceedings for compensation for pecuniary damage before the Ministry of Justice.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-78435
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF DOMBEK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-3;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1965 and lives in Gdańsk.
5. On 9 July 1996 the applicant was arrested and detained on remand. On 12 August 1996 the Kędzierzyn-Koźle District Court (Sąd Rejonowy) released the applicant.
6. On 20 October 1997 the applicant was again arrested by the police in connection with the same criminal investigation. On 21 October 1997 the Częstochowa District Court decided to detain him on remand in view of the reasonable suspicion that he had committed several offences acting in an organised group of criminals.
7. The applicant’s appeal against this decision was dismissed by the Częstochowa Regional Court (Sąd Wojewódzki) on 6 November 1997. The appeal lodged by his lawyer was dismissed on 20 November 1997.
8. On 8 December 1997 the Częstochowa Regional Court prolonged the applicant’s pretrial detention reiterating the grounds originally given for his detention and adding that the measure was necessary to secure the proper conduct of the investigation.
9. On 4 March 1998 the Katowice Court of Appeal (Sąd Apelacyjny) further prolonged his detention on remand. That decision was upheld by the Supreme Court (Sąd Najwyższy) on 24 April 1998.
10. Subsequently, the applicant’s detention was prolonged by the Katowice Court of Appeal on 8 July 1998. The court considered that the severity of the anticipated penalty and the risk of collusion justified keeping him in detention.
11. On 11 September 1998 the Supreme Court allowed an application made by the Prosecutor General under Article 263 of the 1997 Code of Criminal Procedure (“1997 Code”) and further prolonged the applicant’s detention on remand. The Supreme Court considered that the reasonable suspicion of his having committed the offences in question and the risk of collusion justified keeping the applicant in detention to secure the proper conduct of the proceedings. The court also considered that the investigation could not be terminated earlier due to circumstances for which the authorities could not be held responsible, such as the complexity of the case and the seriousness of the offences.
12. On 31 December 1998 the applicant and 14 coaccused were indicted before the Bydgoszcz Regional Court (Sąd Okręgowy).
13. On 11 January 1999 the Częstochowa Regional Court prolonged the applicant’s detention until 30 June 1999 reiterating the grounds previously given for the applicant’s detention.
14. On 23 June 1999 the Bygodszcz Regional Court decided to prolong until 30 September 1999 the applicant’s detention on remand. It considered, for the same reasons as previously given, that keeping the applicant in detention was the only means to secure the proper conduct of the proceedings. The applicant appealed.
15. The applicant’s trial started on 24 August 1999 and continued for three days. It appears that the hearing was subsequently adjourned.
16. On 27 August 1999 the Bygdoszcz Regional Court examined the applicant’s appeal against its decision of 23 June 1999 and partly allowed it. The court considered that the pre-trial detention of the applicant should be prolonged only until 17 September 1999. It established that in assessing the length of the applicant’s detention with respect to the present case, and for the purpose of the time-limits provided for by Article 263 of the 1997 Code, the period between 9 July and 12 August 1996 should have been added. Accordingly, the Regional Court applied to the Supreme Court asking for the applicant’s detention to be prolonged beyond the term of two years provided for in Article 263 § 3 of the 1997 Code.
17. On 16 September 1999 the Bydgoszcz Detention Centre asked the Supreme Court whether any decision had been given in the applicant’s case. On the same date the President of Chamber III of the Supreme Court informed the Detention Centre by fax that a session on prolongation of the applicant’s detention had been scheduled for 1 October 1999. The President further noted that on the basis of the transitional provisions in the 1997 Code, the applicant’s detention should be ipso jure prolonged until the date of the Supreme Court’s session.
18. On 22 September 1999 the applicant’s lawyer submitted pleadings to the Supreme Court in which he argued that the applicant had been illegally detained as the detention order given on 27 August 1999 had expired on 17 September 1999 and therefore he should have been released. In particular, he maintained that the transitional provisions were not applicable in the applicant’s case and that the 1997 Code did not contain a provision which would allow detention on the basis of a fax sent by the Supreme Court.
19. On 1 October 1999 the Supreme Court held its session and prolonged the applicant’s detention until 27 February 2000 relying on the strong suspicion against the applicant, the complexity of the case and the need to continue the process of gathering the evidence.
20. On 10 February and 24 May 2000 the Supreme Court further prolonged the applicant’s detention reiterating the grounds previously given. In the first of those decisions the Supreme Court added:
“...There is no evidence that could prove [the applicant’s] assertion that his wife and children ‘would soon have nothing to eat’.
Moreover, it should be noted that there is a particular reason why the pre-trial detention of [the applicant] should not be lifted. From the information obtained by the Presiding Judge it appears that [the applicant] might obstruct the proceedings.”
21. Subsequently, the Bydgoszcz Regional Court made several applications to the Court of Appeal asking that the applicant’s detention be prolonged as, following an amendment to the 1997 Code, the Supreme Court was no longer competent to prolong the detention beyond the statutory time-limit of 2 years, as laid down in Article 263 § 3 of the Code.
22. On 27 September 2000 the Gdansk Court of Appeal granted the application and prolonged the applicant’s detention on remand until 30 December 2000. The court relied in particular on the complexity of the case and the conduct of the accused who had contributed to the prolongation of the proceedings. The court found as follows:
“Of course, the applicant’s detention for over three years in this case requires particular attention to be given to the process of gathering evidence, above all, to examine without further delay the defence motions concerning evidence. However, in the light of the proceedings as a whole, the conduct of the Regional Courts should be assessed positively”.
23. On 21 December 2000 as well as on 25 April and 20 June 2001 the Gdańsk Court of Appeal prolonged the applicant’s detention. In addition to the strong probability that he had committed the offences, the court found that the proceedings had been conducted diligently and concluded that only the applicant’s detention would guarantee the proper conduct of the final stage of the proceedings.
24. Between 15 February and 15 October 2001 the applicant served a prison sentence ordered by the Inowrocław District Court in another set of criminal proceedings brought against him.
25. During his pretrial detention the applicant lodged several hundred applications for release. However, these applications and his appeals against the decisions to prolong his detention on remand were to no avail.
26. On 27 September 2001 the Bydgoszcz Regional Court gave judgment. The trial court convicted the applicant and sentenced him to eight years’ imprisonment. The applicant and the prosecutor appealed.
27. Subsequently, the applicant’s detention with respect to this set of criminal proceedings was not prolonged. However, the applicant had not been released as he remained in pre-trial detention ordered in the second set of criminal proceedings (see below).
28. On 17 June 2003 the Gdansk Court of Appeal allowed the appeals and quashed the impugned judgment. The case was remitted to the Bydgoszcz Regional Court which, on 14 January 2004, stayed the proceedings because the other set of criminal proceedings before the Zielona Góra Regional Court were pending and the applicant could not be transported to the Bygdoszcz Detention Centre.
29. On 25 May 2005 the Bydgoszcz Regional Court resumed the proceedings. The proceedings are pending before that court.
30. On 11 September 1991 the applicant was arrested by the police in connection with criminal proceedings pending against him. On the same date the Zielona Góra Regional Prosecutor decided to detain him on remand.
31. On 12 July 1994 the Zielona Góra Regional Court acquitted the applicant.
32. On 14 December 1994 the applicant was released from detention.
33. On 24 January 1996 the Poznań Court of Appeal quashed the impugned judgment and remitted the case to the Regional Prosecutor.
34. Between December 1997 and November 1999 the prosecutor stayed the proceedings.
35. On 30 January 2001 the Poznań Court of Appeal decided to detain the applicant on remand in view of the reasonable suspicion that he had committed, with an accomplice, a robbery and three offences of homicide.
36. The applicant appealed, but on 13 January 2001 the Poznań Court of Appeal dismissed his appeal.
37. On 19 April, 24 July and 25 October 2001 and 24 April, 23 July and 24 October 2002 as well as on 22 January 2003 the Poznań Court of Appeal further prolonged his detention. The court held that the reasonable suspicion that the applicant had committed the offences with which he had been charged, the severity of the anticipated sentence and the need to secure the proper conduct of the investigation justified keeping the applicant in detention.
38. On 13 March 2003 the applicant was indicted before the Zielona Góra Regional Court.
39. On 26 March 2003 the Poznań Court of Appeal further prolonged the applicant’s detention. Subsequently, the applicant’s detention was prolonged on three occasions in 2003, and on 25 March, 24 June, 23 September and 21 December 2004. The court in all those decisions found that the grounds for keeping him in detention were still valid.
40. On 28 April 2005 the trial court gave judgment. The applicant was convicted as charged and sentenced to twenty-five years’ imprisonment.
41. The applicant requested that the written reasons for the judgment be prepared by the trial court so as to allow him to lodge an appeal.
42. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). Article 249 § 5 provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand.
A more detailed rendition of the relevant domestic law provisions is set out in the Court’s judgment in Celejewski v. Poland, no. 17584/04, §§ 22 and 23, 4 May 2006.
43. Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the 1997 Code”) which entered into force on 1 September 1998. The relevant part of Article 103 § 1 of the Code provides as follows:
“Convicts (...) have a right to lodge complaints with institutions established by international treaties ratified by the Republic of Poland concerning the protection of human rights. Correspondence in those cases (...) shall be sent to the addressee without delay and shall not be censored.”
For a more detailed rendition of the relevant domestic law provisions see the Court’s judgment in Michta v. Poland, no. 13425/02, § 33, 4 May 2006.
44. According to Article 10 (a) of the Law of 29 June 1995, as amended by the Law of 1 December 1995, different rules applied in respect of persons whose detention on remand started before 4 August 1996. This Article provided:
“1. In cases where the total period of detention on remand which started before 1 August 1996 exceeds the time-limits referred to in Article 222 §§ ... and 3 of the Code of Criminal Procedure, the accused shall be kept in detention until the Supreme Court gives a decision on a request for prolongation of such detention under Article 222 § 4 of the Code of Criminal Procedure.
2. In cases referred to in § 1, if no [such] request has been lodged, detention shall be quashed not later than 1 January 1997.”
Article 2 § 2 of the Law of 6 December 1996, which added certain new grounds for prolonging detention beyond the timelimits, provided:
“In cases where a request for prolongation of detention imposed before 4 August 1996 is lodged on the basis of Article 222 § 4, as amended by Article 1 of this law, the detention shall continue until that request has been examined by the Supreme Court.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
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