ITEMID: 001-97597
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KOZAK v. POLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection joined to merits (victim);Remainder inadmissible;Preliminary objection dismissed (victim);Violation of Art. 14+8;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of violation sufficient
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza
TEXT: 5. The applicant was born in 1951 and lives in Szczecin.
6. In 1989 the applicant moved in to a council flat at K. street, rented by T.B., the applicant's partner, with whom he had lived in a homosexual relationship. Earlier, in 1986 or 1987, they had lived together in a flat rented by T.B. at N. street. The applicant and T.B. shared the expenses for the flat. On 28 May 1989 the applicant was registered as a permanent resident of the flat in the residents' register kept by the Szczecin Municipality (Gmina).
7. On 1 April 1998 T.B. died.
8. On an unspecified later date the applicant applied to the Mayor of Szczecin (Prezydent Miasta), asking him to conclude a lease agreement with him, replacing thereby the agreement with the late T.B. He was informed orally by one of the municipality's clerks that he should first pay arrears in rent since otherwise a fresh agreement would not be effected. The applicant paid the arrears, which amounted to 4,671.28 Polish zlotys (PLN) and also renovated the flat, paying PLN 5,662 for the work.
9. On 19 June 1998 the Szczecin Town Office's Department for Municipal Buildings and Dwellings (Wydział Budynków i Lokali Komunalnych Urzędu Miejskiego) sent a letter to the applicant, informing him that his application could not be granted because he did not meet the relevant criteria. One such criterion was to live in a council flat at least from 11 November 1992. The authorities held that the applicant had not lived in the flat but had moved in after 1 April 1998, the date of T.B.'s death. Moreover, meanwhile – on 3 April 1998 – the applicant's name had been struck out of the register of the flat's residents due to the fact that he had not lived there for more than five years (see also paragraphs 14-23 below). Accordingly, the authorities ordered the applicant to vacate the flat and surrender it to the municipality, on pain of being evicted from it at his expense and risk, the eviction being effected regardless of his presence.
10. Subsequently, the applicant tried to negotiate an agreement with the municipality but to no avail.
11. The Government maintained that at some unspecified time the applicant and T.B. had come into conflict. T.B. asked the authorities to strike the applicant's name out of the residents' register and intended to start eviction proceedings against him. They stopped running the common household some one and a half years before T.B.'s death and, at the same time, the applicant stopped paying the rent for the flat. Three months before his death T.B. stayed in his brother's home but returned to the flat in mid-February 1998. The applicant did not live in the flat at the time of T.B.'s death.
The Government further stated that the applicant had not assumed responsibility for T.B.'s funeral.
In support of their submissions, the Government relied on the findings made by the administrative authorities and courts and in proceedings concerning permanent residence (see paragraphs 14-23 below) and eviction (see paragraphs 24-28 below). They produced copies of the relevant decisions.
12. The applicant acknowledged that he and T.B. had started to argue some one and a half years before the latter's death and that he had stopped paying the rent and moved out for some time. However, nine months before T.B.'s death they had reconciled and they had resumed their relationship.
13. The applicant submitted that until and upon T.B.'s death they both had lived in the flat. He had looked after T.B. during his illness up until his death. As regards T.B.'s funeral, the applicant stated that, officially, it had been T.B.'s former wife who had organised the funeral and had received a partial refund of expenses from the Social Security but he had helped her to organise it and had participated in the ceremony.
14. On 5 August 1997 T.B made an application to the Szczecin Municipality, asking it to strike the applicant's name as a permanent resident of the flat at K. street out of the residents' register on the ground that the latter no longer lived at that address.
15. On 3 April 1998 the application was granted and a new entry was made in the register. The relevant administrative decision became final on an unspecified date.
16. On 26 June 1998 the applicant asked the authorities to re-open the case, submitting that he had not been notified of the institution of the proceedings. He maintained that, in contrast to what had been established in those proceedings, he had continually lived in the flat since 18 May 1989.
17. The case was reopened and the authorities heard evidence from the applicant and several witnesses.
18. The applicant stated that in the years 1994-1998 he had on several occasions left for Germany to seek odd jobs for periods lasting usually some three months. In 1997 he had been absent only from March to May and, for one and a half months starting at the end of August or the beginning of September.
19. The authorities inspected visas and stamps in the applicant's passport and found that his stays in Germany and their length were confirmed.
20. They further heard evidence from two witnesses – K.P. and Z.M. – proposed by the applicant and also from residents of the building at K. street. While the applicant's neighbours did not clearly confirm that he had resided permanently in the flat, they said that they had often seen him around, that he had answered the door to the flat, helped one of them with moving furniture and that he had renovated the flat in April 1998. They also stated that T.B. had led a very lively social life and many men had visited him.
K.P and Z.M. who were colleagues of the late T.B. and the applicant confirmed that he had lived in the flat until T.B.'s death.
21. On 31 March 1999 the Mayor of Szczecin (Prezydent Miasta) quashed the decision of 3 April 1998 and refused to strike the applicant's name out of the residents' register.
In the decision, the Mayor referred to the fact that, in the years 19941995, the applicant had unsuccessfully attempted to succeed to a tenancy of a council flat at J. street, after the death of a certain E.B., the statutory tenant in 1994 (see also paragraph 26 below). It was noted that in those proceedings the applicant had stated that he had lived in the flat at J. street since March 1991, had had the keys, had kept his furniture and belongings there and, after his stay in Germany in 1994, had returned to the flat and renovated it.
22. It was further noted that the applicant, when asked to explain the inconsistency with the version recently presented, had said that his statements regarding the alleged residence at J. street had not been true and that he had done so solely for the sake of acquiring the right to lease the flat at J. street, whereas he had in fact lived permanently at K. street. He added that, in any event, he could not stay every day in the flat on account of T.B.'s and his colleagues' frequent drunkenness.
23. Assessing the facts as a whole, the Mayor considered that the testimonies given by the witnesses proposed by the applicant were not credible because they were his colleagues and, in addition, they did not reside in the building. The residents had not clearly confirmed that he had lived there from August 1997 to March 1998. However, given the fact that T.B. had died on 1 April 1998, that the impugned decision had been issued on 3 April 1998 and that, as confirmed by the neighbours, the applicant had lived in the flat after T.B.'s death and had renovated it, it was evident that on the date of the issuance of the decision he had been a resident of the flat. Accordingly, the original decision had not been given on the basis of the circumstances obtaining on the date of issuance and, as such, had to be quashed.
24. On 16 April 1999 the Szczecin Municipality sued the applicant before the Szczecin District Court (Sąd Rejonowy), seeking his eviction from the flat rented by the late T.B.
On 27 May 1999 the court gave judgment in default, granting the claim.
On 18 June 1999 the applicant applied for the judgment to be set aside and the claim to be dismissed. The court proceeded to hear evidence.
25. On 24 May 2000 the court heard evidence from the applicant. The applicant stated that he had lived with T.B. in the flat and that he was registered as a permanent resident of the flat, sub-letting it from T.B. At the material time he still lived in the flat, paying twice the rent due because he was using the flat without any legal title. He had informed T.B.'s brother of the latter's death but had not organised the funeral since he had felt that the family should take care of it. The family had refused to take part in the funeral. Probably, T.B.'s former wife had organised it.
26. On 2 June 2000 the District Court upheld the judgment in default of 27 May 1999.
The court made the following findings of fact.
The applicant was registered as a permanent resident of the flat since 28 May 1989. He sub-let one room from T.B. On 3 April 1998 his name as a permanent resident of the flat was struck out of the register upon T.B.'s motion. It was later restored, following the re-opening of the case (see also paragraphs 14-23 above).
The applicant did not organise T.B.'s funeral. T.B. and the applicant had had arguments. The applicant moved to the flat at K. street after T.B.'s death.
By virtue of a judgment given by the Szczecin Regional Court on 18 February 1997 the applicant had been evicted from the flat at J. street. The applicant had made attempts to succeed to a tenancy of the council flat at J. street after the death of E.B., a statutory tenant. In the relevant proceedings, he had stated that he had lived at J. street since 1991. Following the enforcement of the eviction order, he left the flat in June 1998.
The court further held that even though the applicant was registered as a permanent resident of the flat, this fact could not be decisive since this had legal consequences only for the residents' register and not for the application of section 8 of the 1994 Act setting out the statutory conditions for the succession to lease (see also paragraph 40 below).
In these circumstances, the court concluded that the applicant had no legal title to the flat in dispute and that the eviction order should be granted.
27. The applicant appealed, arguing that the first-instance court had made errors of fact, in particular that it had wrongly found that he had moved to the flat at K. street only after T.B.'s death. He also alleged several procedural shortcomings and arbitrary assessment of evidence.
28. On 14 September 2001 the Szczecin Regional Court (Sąd Okręgowy) heard and dismissed the appeal, upholding the grounds given for the firstinstance judgment.
29. On 14 July 2000 the applicant sued the Szczecin Municipality before the Szczecin District Court, seeking a judgment declaring that he had succeeded to the tenancy after T.B.'s death.
30. At a hearing held on 30 October 2000 the applicant's lawyer stated that the claim was based on section 8(1) of the Lease of Dwellings and Housing Allowances Act of 2 July 1994 (ustawa o najmie lokali mieszkalnych i dodatkach mieszkaniowych) (“the 1994 Act”) (see also paragraph 40 below) and that on this basis the applicant had a right to succeed to the tenancy as T.B.'s life-partner (konkubent), with whom he had cohabited for many years and had run a common household.
31. On 9 November 2000 the applicant asked the court to hear evidence from 3 witnesses, K.P., R.M. and S.B. in order to establish that he and T.B. had remained at all times in a particularly close relationship.
32. At a hearing held on 22 February 2001 the court rejected the motion and heard evidence from the applicant alone. It considered that the fact that the applicant had cohabited with his late partner had already been sufficiently proved on the basis of his own statements. Before the court, the applicant stated, among other things, that he had borne expenses involved in the running of their household, including the rent for the flat. He lived in a room and T.B. occupied the kitchen.
On the same day it gave judgment and dismissed the claim.
33. The District Court made the following findings of fact.
T.B. rented the flat in question from the municipality. He was a divorced single person. The applicant and T.B. had lived together from 1986 or 1987, initially in another flat and, subsequently in 1989, they moved to the flat in dispute. They had a homosexual relationship. The applicant bore the costs of running the household and paid the rent for the flat. They stopped running the common household some one and a half years before T.B.'s death and at the same time the applicant stopped payment of the rent to the municipality.
In 1996 the defendant municipality lodged an action for eviction against T.B., on the ground that rent arrears had not been paid.
After T.B.'s death the applicant paid the rent arrears and asked the defendant to conclude a lease agreement with him. He renovated the flat.
In 1994 the applicant made a similar application to the defendant municipality, asking it to conclude a lease agreement with him in respect of another flat, rented by a certain E.B., after the latter's death. He alleged that he had permanently lived in E.B.'s flat at J. street, whereas in T.B.'s flat he had only been registered as a permanent resident.
34. The findings of law read, in so far as relevant:
“Under section 8(1) of the 1994 Act a person can take over a tenancy if he or she has fulfilled jointly the four following conditions: (1) was in a close relationship with the late tenant by blood relations, adoption or de facto marital cohabitation; (2) resided permanently with the tenant until his or her death; (3) had not relinquished this right to the landlord and (4) upon the death of the tenant had no title to another flat.
The applicant stated that he had lived in de facto marital cohabitation with T.B. This should be assessed in the light of the situation as it obtained upon the latter's death.
The major features of a de facto marital relationship (konkubinat) are its dissolvability and lack of legal consequences following its dissolution – as it is a purely de facto union. For a relationship to be considered a de facto marital relationship there must be emotional, physical and also economic bonds between the partners.
Yet it emerges from the applicant's testimony that the economic bond between the partners broke some one year and a half before T.B.'s death, when they stopped running a common household. In consequence, their relationship no longer fulfilled the conditions for a de facto marital relationship.
However, even assuming that all the above-mentioned requirements for a de facto marital relationship existed, the applicant's and T.B.'s cohabitation could not be regarded as such. Indeed, a de facto marital relationship is a not legalised substitute for a marriage. Pursuant to Polish law, Article 1 §1 of the Family and Custody Code, a marriage can be contracted only between a woman and a man. Consequently, [the law] recognises only de facto relationships of different-sex persons.
That being said, the applicant does not belong to the group of entitled persons referred to in section 8(1) of the 1994 Act. All of the above-mentioned four requirements of section 8(1) must be fulfilled jointly; non-fulfilment of even one of them makes it redundant to examine compliance with the remaining ones. It should be added in passing that, given the applicant's attempts to succeed to the tenancy of [another] flat, his permanent residence in the flat [in question] upon the death of the statutory tenant is open to doubt.
...”
35. The applicant appealed to the Szczecin Regional Court (Sąd Okręgowy), seeking to have the impugned judgment quashed and the case remitted or, alternatively, to have the judgment altered and his claim granted in its entirety. He asked the Regional Court to hear supplementary evidence from him, in order to establish the actual duration of his relationship with T.B. Furthermore, relying on Article 390 § 1 of the Code of Civil Procedure (Kodeks postępowania cywilnego), he asked the court to refer to the Supreme Court (Sąd Najwyższy) the following legal question:
“Does the term “a person who has lived with a tenant in de facto marital cohabitation” used in section 8(1) of the 1994 Act also concern a person who has lived in a homosexual cohabitation with a tenant, or only a person living in a heterosexual cohabitation?”
36. Alternatively, the applicant asked the court to refer, under section 3 of the law of 1 August 1997 on the Constitutional Court (ustawa o Trybunale Konstytucyjnym) (“the Constitutional Court Act”), to the Constitutional Court the following legal question:
“Is the term “a person who has lived with a tenant in de facto marital cohabitation” referred to in section 8(1) of the 1994 Act – if interpreted as including only de facto marital cohabitation of a woman and a man – compatible with Articles 32 § 2 and 75 of the Constitution and Article 14 of the European Convention of Human Rights?”
37. As regards the principal grounds for the appeal, the applicant argued that the District Court had failed to establish the facts of the case properly, in particular because it had concluded that he and T.B. had stopped running their common household one and a half years before the latter's death solely on the basis of his incomplete testimony and had refused to admit evidence from the witnesses proposed by him in order to clarify the circumstances of the case. He also alleged a breach of the substantive civil law consisting in an erroneous interpretation of the term “a person who ha[d] lived with a tenant in de facto marital cohabitation” as relating solely to cohabitation of a man and a woman.
38. On 1 June 2001 the Szczecin Regional Court heard, and dismissed the appeal. It considered that the lower court had correctly held that the applicant had failed to meet the requirements laid down in section 8(1) of the 1994 Law. The reasoning, in so far as relevant, read as follows:
“In the case under consideration the applicant derived his entitlement to succession of the tenancy from his stable homosexual relationship with the tenant.
For this reason, the determination of the scope of the term “a person who has lived with a tenant in de facto marital cohabitation” was of crucial importance for the determination of the claim.
In contrast to what has been argued in the appeal, the District Court correctly interpreted the above-mentioned term. This court shares the opinion stated in the reasoning of the impugned judgment that the legal regulation in section 8(1) of the 1994 Act concerns persons remaining in a de facto marital relationship, i.e. an actual relationship of different sex persons with stable physical, emotional and economic ties, imitating a marriage.
The appellant is not right in saying that the scope of the above-mentioned provision encompasses also homosexual relationships. According to an opinion commonly accepted in our legal writing and case-law ..., de facto marital cohabitation takes place only if a woman and a man cohabit together.
It must be stressed that a de facto marital relationship differs from a marriage only by lack of its legitimisation. For this reason, the subjects actually remaining in marital cohabitation can only be persons who, under Polish law, are eligible for marriage. Pursuant to Article 1 § 1 of the Family and Custody Code, the fundamental principle of the family in Poland is the difference in sex of a prospective nuptial couple (nupturienci), which means that contracting a marriage between persons of the same sex is inadmissible. Having regard to the fact that de facto cohabitation constitutes a substitute for a marriage, one must consider that its subjects can exclusively be a woman and a man.
While the appellant is right in saying that in the European legal writing the concept of de facto marital cohabitation also encompasses homosexual relationships ..., according to the general construction rules, legal concepts should be given the meaning that they have in our legal system. Polish law does not recognise relationships of same-sex persons. For this reason, where a legal provision (in this case section 8(1) of the 1994 Act) entails legal consequences on account of remaining in a de facto marital relationship, it does not concern partners having homosexual relations, even if they have stable emotional, physical and economic ties.
Contrary to what is being argued in the appeal, the above legal solution does not infringe the constitutional principle of equality before the law, which does not have an absolute character and exceptions to which may be justified by the need to protect other rights. Indeed, Article 18 of the Constitution ... clearly states that “marriage, being a union of a man and a woman, as well as the family ... shall be placed under the protection and care of the Republic of Poland”.
The above-mentioned provision creates the constitutional principle of the protection for the family founded on a union of a woman and a man. Provisions of the international treaties ratified by Poland, i.e. Article 12 of the European Convention of Human Rights and Article 23 of the International Covenant of Civil and Political Rights ..., which ensure legal protection only in respect of heterosexual relations, correspond to the regulations in the Polish legal system.
In conclusion, the District Court rightly held that the applicant did not belong to the group of persons entitled to succeed to a tenancy referred to in section 8 of the 1994 Act. In the circumstances, it was unnecessary to take evidence in order to establish whether the applicant had indeed remained in cohabitation with the tenant and whether other conditions for succession to the tenancy had been satisfied. For this reason, the arguments [concerning the refusal to take evidence from witnesses and the alleged errors of fact] are unfounded.
...
In view of the foregoing, the appeal should be dismissed.
...”
39. A cassation appeal to the Supreme Court was not available in this case.
40. Section 8(1) of the 1994 Act read:
“1. In the event of a tenant's death, his or her descendants, ascendants, adult siblings, adoptive parents or adopted children or a person who has lived with a tenant in de facto marital cohabitation, shall, on condition that they lived in the tenant's household until his or her death, succeed to the tenancy agreement and acquire the tenant's rights and obligations connected with [the lease of] the flat, unless they relinquish that right to the landlord. This provision shall not apply to persons who, when the [original] tenant died, had title to another residential dwelling.
2. In cases where there is no successor to the tenancy agreement, or where the successors have relinquished their right, the lease shall expire.”
41. The 1994 Act was repealed on 10 July 2001. Since then, the rules governing succession to lease have been included in the Civil Code (Kodeks cywilny).
Pursuant to section 26(12) of the 2001 Act, a new Article 691 was introduced into the Civil Code.
Article 691, as applicable from 10 July 2001, reads, in so far as relevant, as follows:
“1. In the event of a tenant's death, his or her spouse (if he or she is not a cotenant), his or her and his or her spouse's children, other persons in respect of whom the tenant had maintenance obligations and a person who has lived in de facto cohabitation with the tenant shall succeed to the tenancy agreement.”
42. Article 1 § 1 of the Family and Custody Code (Kodeks rodzinny i opiekuńczy) states:
“A marriage shall be contracted when a man and a woman simultaneously present have declared before the Registrar of the Civil Status Office that they marry each other.”
43. In 2003 a group of 36 senators submitted a bill on same-sex registered partnerships to the Polish Senate (Senat). According to the bill, entering into a registered partnership was to create rights similar to those flowing from a marriage in respect of succession, health and social insurance and taxation. Following a long debate and having aroused considerable controversy over most of its provisions, the bill was eventually referred to Sejm at the end of 2004. It did not have any follow-up in Sejm, which had not started its reading before the dissolution of Parliament in connection with general elections held in 2005. Since then, there have been no further similar legislative initiatives in Parliament.
44. Article 18 of the Constitution, which refers to marriage, states:
“Marriage being a union of a man and a woman, as well as the family, motherhood and parenthood shall be placed under the protection and care of the Republic of Poland.”
45. Article 32 of the Constitution, which lays down the principles of equality before the law and non-discrimination, reads as follows:
“1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.
2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.”
46. Article 75 of the Constitution, which refers to the State's housing policy, states the following:
47. Article 79 of the Constitution, which refers to a constitutional complaint reads, in so far as relevant, as follows:
“1. In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Tribunal for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on his freedoms or rights or on his obligations specified in the Constitution.”
48. In that judgment the Constitutional Court dealt with a legal question submitted by the Środa Śląska District Court (Sąd Rejonowy) in connection with pending proceedings for succession to a tenancy. The question concerned the possible unconstitutionality of the 2001 Act in that, in consequence of the repeal of the 1994 Act and its section 8(1) (see paragraphs 40-41 above), it had introduced a new list of persons entitled to succession to the right to lease after the death of a tenant as laid down in Article 691 § 1 of the Civil Code (see paragraph 41 above). In contrast to the previous regulation, the list no longer included the tenant's grandchildren. The Constitutional Court ruled that the modification under the 2001 Act was compatible with Article 2 (rule of law) and Article 32 (principle of equality before the law and non-discrimination) of the Constitution.
49. The judgment was given following a constitutional complaint lodged by a certain J.B. and D.Cz., alleging that section 8(1) of the 1994 Act had been incompatible with a number of the constitutional provisions, including the principle of social market economy, protection of property rights, equality before the law, prohibition of discrimination, protection of succession rights and the protection of the rights of tenants. The applicants maintained, among other things, that the impugned section was in breach of the aforementioned provisions because it excluded from succession to a tenancy descendants of the late tenant's siblings as well as all other heirs who had title to another residential dwelling which, as a result, restricted their succession rights in a discriminatory manner.
50. The Constitutional Court held that section 8(1) of the 1994 Act, in so far as it operated in the manner contested by the applicants, was compatible with the constitutional provisions invoked by them in support of their complaint.
51. The Supreme Court, in its judgment of 6 December 2007 (no. IV CSK 301/07), dealt with a cassation appeal concerning the division of common property acquired by a same-sex couple. The gist of the ruling concerns the rules that apply to such property division, which, as the court held, were those provisions of the Civil Code that were relevant in the context of the particular relationship. They might differ depending on each specific situation, the nature of mutual relations and the organisation of personal and economic matters between the partners. While the court clearly rejected the idea that same-sex relationships could be considered “de facto marital relationships”, it did not exclude that the rules applicable to de facto marital relationships might apply by analogy to a same-sex couple's claims for the division of common property.
In that context, the Supreme Court analysed in depth the legal concept of de facto marital relationship and made conclusions that, in so far as relevant, read as follows:
“The [principle of the] protection of marriage set forth in Article 18 of the Constitution means that a legally formalised union of a woman and a man remains under the protection and care of the Republic of Poland. The protection of marriage is shown by, among other things, the fact that legal consequences ensuing from marriage shall not apply to other relationships and that any interpretation or application of the law that would lead to equating other forms of cohabitation with marriage is inadmissible. Having regard to the constitutional principle of protection of marriage and to the fact that the lack of legal regulations for extra-marital relationships cannot be considered a lacuna, it is inadmissible to apply provisions of matrimonial law (including matrimonial property and its division) – even by analogy – to other than marriage relationships based on existing personal and economic bonds. ...
Polish law does not include any, either comprehensive or even fragmentary, regulations of extra-marital relationships of a personal and economic nature and, for that reason, they are regarded as legally indifferent factual relationships. ...
Given the lack of legal regulations for extra-marital personal and economic relationships, certain rules for defining and treating such relationships – named de facto marital relationships – have been developed in the jurisprudence and legal writing. The criteria for a de facto marital relationship include, as a rule, no formal basis for cohabitation, no limitations on ending the relationship, the stability of the relationship, the existence of community in personal and economic life and different sex of the partners. The concept of de facto marital relationship as developed by the jurisprudence and legal writing considers the difference of sex between the partners as one of its material elements.
The established tradition, including the semantic tradition, militates against including in the notion of de facto marital relationship unions of same-sex persons modelled on heterosexual unions.”
VIOLATED_ARTICLES: 14
8


ITEMID: 001-95050
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: CAYTAS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicants are all Turkish nationals. Their names, dates of birth, the names of their representatives and the dates on which they lodged their applications appear in the appendix.
The facts of the cases, as submitted by the applicants, may be summarised as follows.
On different dates the applicants registered with the Social Security Institution (Sosyal Sigortalar Kurumu, “the SSK”) or the Social Security Institution for the Self-Employed (Bağ-Kur).
Subsequent to their registration, they all lodged actions seeking the correction of their dates of birth, which had initially been registered erroneously in their birth records. As a result, the applicants’ ages were increased by two to nine years by court decisions to reflect their biological ages.
When they reached the minimum age limit for retirement on the basis of their rectified dates of birth, the applicants applied to the SSK or to Bağ-Kur for retirement pensions. Their requests were, however, rejected as they were not considered to have fulfilled the conditions set out in the relevant laws to receive such benefits (Section 120 of Law no. 506 and Section 66 of Law no. 1479). The applicants were informed that, for the purpose of determining eligibility for pension benefits, a person’s age was calculated on the basis of the date of birth declared at the time of registration with the social security institutions; subsequent amendments to the date of birth would thus not be taken into account.
The applicants subsequently brought actions before labour courts seeking declaratory judgments (tespit davası) regarding their eligibility for retirement pensions in the light of their amended dates of birth. In all cases the labour courts dismissed the applicants’ requests on the same legal grounds as the decisions of the social security institutions. The Court of Cassation upheld these judgments.
The details regarding these proceedings appear in the table below.
Section 60 A of Law no. 506 provides:
“In order for insured [persons] to benefit from the old-age insurance,
a) Women must have reached the age of fifty-eight and men sixty and [they must have made contributions for] a minimum of 7,000 days, or
b) Women must have reached the age of fifty-eight and men sixty and [they must have been] insured for twenty-five years and [have paid] a minimum of 4,500 days of premiums in respect of disability, old-age and death insurance.”
Section 120 of Law no. 506 provides:
“... In the implementation of the age-related provisions [of this Law] within the context of disability, old-age and death insurance, ... the date of birth recorded in the State register at the time of taking up of the job within the terms of this Law ... shall be taken into account.
In the calculation of the income and monthly allowances ... [deriving] from ... oldage insurance, corrections of age made after the date on which [the person] commenced working subject to ... Law no. 506 or other social security institutions, shall not be taken into consideration.”
Section 35 of Law no. 1479 provides:
“In order for insured [persons] to benefit from old-age insurance,
...
b) Women must have reached the age of fifty-eight and men sixty and they must have paid insurance premiums for twenty-five full years.”
Section 66 of Law no. 1479 provides:
“... In the implementation of the age-related provisions [of this Law] within the context of disability, old-age and death insurance, ... the date of birth recorded in the State register at the time of taking up of the job within the terms of this Law ... shall be taken into account.”


ITEMID: 001-58983
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ANNONI DI GUSSOLA AND OTHERS v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 8. On 15 October 1990 a bank, Diffusion industrielle nouvelle (“DIN”), granted the applicant a consumer loan in the sum of 172,000 French francs (FRF) with interest at the rate of 14.5% for the purchase of a vehicle. The loan was repayable in fifty-seven monthly instalments of FRF 4,419.44 (making a total of FRF 251,908.08).
9. In March 1991 the bank notified the applicant of its intention to seize the vehicle as he had failed to pay the January and February 1991 instalments. The applicant settled the arrears.
10. From July 1991 to October 1991 the applicant stopped payment of the instalments owing to defects in the vehicle.
11. In November 1991 he made a payment.
12. On 14 December 1991 DIN terminated the loan agreement and had the car sold for FRF 74,243.56. It issued proceedings against the applicant for payment of the balance of the loan.
13. On 24 April 1992 the President of Nantua District Court ordered the applicant to pay the sum of FRF 98,032. The applicant, who contested the amount claimed and the price at which the car had been sold, applied to have that order set aside.
14. In a judgment of 24 June 1993 Nantua District Court ordered the applicant to pay FRF 95,156.26 plus interest at the contractual rate of 14.5% and a further sum of FRF 3,000. The applicant appealed against that judgment, arguing that the bank had been at fault for selling the car at a derisory price. He sought an order against the bank for the payment of damages to be set-off against the amount of his indebtedness. In the alternative, he asked to be allowed to pay off the debt over two years.
15. The applicant, who worked as a consultant in Switzerland, was made redundant in 1994. From 1 January 1995 onwards he received minimum welfare benefit (revenu minimum d'insertion – RMI) of FRF 3,569 monthly.
16. On 31 May 1995 the Lyons Court of Appeal partly allowed the applicant's appeal, ordering him to pay DIN the sum of FRF 90,371.26 with interest at the contractual rate from 19 February 1992 plus FRF 3,000 by way of statutory compensation. It held that the applicant had not established any fault on the part of the bank such as would warrant an order for damages.
17. The applicant appealed to the Court of Cassation on 18 September 1995. He lodged written submissions containing three grounds of appeal on 18 January 1996. In particular, he argued that DIN had acted unfairly since, although he had paid off FRF 10,000 in November 1991 and had undertaken to pay the balance of the loan by the end of the year, DIN had nonetheless seized the vehicle he had purchased with the aid of the loan and had it sold at a derisory price. The applicant consequently asked the Court of Cassation to rule that the Court of Appeal had given insufficient reasons for its decision, in that it had failed to explain why it had rejected his ground of appeal based on the financial institution's liability for making his situation worse by not selling the car at its true value when the proceeds of sale would have been more than ample to cover the balance of the loan.
18. On 16 February 1996 DIN applied for the appeal to the Court of Cassation to be struck out of the list pursuant to Article 1009-1 of the New Code of Civil Procedure, as the applicant had failed to comply with the Court of Appeal's judgment.
19. The applicant lodged submissions in which he explained that he was not in a position to pay any of the amount claimed as he was unemployed, his only income since 1 January 1995 being minimum welfare benefit of FRF 3,569 monthly. Furthermore, he was two years in arrears with his rent. He lodged additional submissions informing the court that he had made an application for legal aid on 14 March 1996.
20. By an order of 16 April 1996 following a hearing on 27 February 1996 the delegate of the President of the Court of Cassation made an order for the case to be removed from the list, holding:
“An order for 'removal from the list', which under this provision [Article 1009-1] may be made against a judgment debtor who appeals to the Court of Cassation, does not constitute a penalty for failure to exercise diligence or as a result of any inadmissibility.
It is an administrative and regulatory measure intended to remind parties that an appeal to the Court of Cassation is an extraordinary remedy and to enable beneficiaries of enforceable judicial decisions to enjoy the prerogatives afforded them by the judges of the courts below in full, all in accordance with the fundamental rules of the administration of justice.
An application may be made for such an order, which is provisional only and preserves all rights, remedies and grounds of appeal, as soon as the notice of appeal bringing the case before the Court of Cassation has been lodged with the registry of that court, without the applicant's having to wait until the time allowed to the appellant and the respondent for lodging their written submissions has expired.
In the instant case, Guido Annoni di Gussola has failed to show that he has taken any steps apt to demonstrate his intention to comply with the decision of the court below and has not pleaded any personal circumstances that give rise to a danger or presumption that compliance will entail manifestly unreasonable consequences.
In those circumstances, the appeal must be removed from the Court of Cassation's list...”
21. With contractual interest, the sum owed by the applicant at that time came to more than FRF 150,000.
22. On 15 March 1998 the applicant and his family were evicted from their home after failing to pay their rent for two years.
23. On 1 April 1998 the applicant began to receive a monthly retirement pension of FRF 2,480.65.
24. By an order of 25 November 1998 the delegate of the President of the Court of Cassation noted that the appeal had lapsed, no steps having been taken to prosecute it in the two years since the order removing it from the list had been made.
25. After a loan offer was accepted on 13 October 1990, a finance company, SOVAC, granted Ms Desbordes a credit facility in the sum of FRF 85,000, with interest at 20.90%, for the purchase of a vehicle. Mr Omer, her husband, acted as guarantor.
26. The first nineteen monthly instalments – a total of FRF 45,760.36 – were repaid. The applicants were unable to pay the subsequent monthly instalments, as Mr Omer lost his job.
27. SOVAC seized the vehicle, and obtained FRF 41,658.43 on a forced sale. Alleging an event of default under the agreement, it brought an action against the applicants for immediate payment of the sum of FRF 38,669.97, that being the outstanding capital, together with interest at the contractual rate of 20.90% since 1 November 1992.
28. On 16 April 1993 the Abbeville District Court dismissed SOVAC's claim. It held that since the authorised overdraft of FRF 85,000 had been used in a single transaction, it did not constitute a credit facility usable in tranches, but an ordinary loan. Section 5 of the Law of 10 January 1978 on consumer information and protection in financing transactions laid down that a statement of the total cost of the credit, broken down item by item, had to be provided for loans of that type. Noting that the agreement did not contain a statement of the total cost of the credit, the District Court held that the loan offer was not in the required form and that by virtue of section 23 of the Law SOVAC, accordingly, forfeited its rights to interest. SOVAC appealed.
29. On 11 October 1994 the Amiens Court of Appeal overturned that judgment. In so doing, it accepted SOVAC's submissions that the statement required by section 5 of the aforementioned Law of 10 January 1978 was too inflexible to be applicable to an offer with a variable rate of interest, and that a single rate had been applied solely because the applicants had been paid the amount in full, and not in tranches, as they had been at liberty to request. The Court of Appeal ordered the applicants to pay the sum claimed together with compound interest from 20 September 1993.
30. The applicants applied on 17 January 1995 for legal aid to appeal to the Court of Cassation. The legal aid office granted their application on 15 June 1995 on the ground that they had insufficient means (their disposable income being put at minus FRF 862).
31. The applicants accordingly appealed to the Court of Cassation on 14 August 1995 through the lawyer assigned to represent them and he lodged written submissions on 11 January 1996. The applicants alleged that the finance company had contravened the statutory consumer-protection provisions. They relied in their appeal on judgments in which the Civil Division of the Court of Cassation had overturned awards of interest made in cases in which the evidence had showed that the lender had failed to state the overall effective rate of interest or the total cost of the credit, broken down item by item, in the loan agreement.
32. On 27 March 1996 SOVAC requested the President of the Court of Cassation to order the removal of the case from the list pursuant to Article 1009-1 of the New Code of Civil Procedure.
33. In submissions dated 14 May 1996 the applicants opposed that application on the ground that they had insufficient means, as attested by the fact that they had been granted legal aid in 1995.
34. By an order of 21 May 1996 the delegate of the President of the Court of Cassation found, inter alia, that the applicants had failed to show that they had taken “any steps apt to demonstrate their intention to comply with the decision of the court below and [had] not [pleaded] any personal circumstances that [gave] rise to a danger or presumption that compliance [would] entail manifestly unreasonable consequences”. The delegate of the President of the Court of Cassation ordered the case's removal from the list.
35. New Code of Civil Procedure
Article 386 is worded as follows:
“Proceedings shall lapse if none of the parties take any steps for two years.”
Article 1009-1 of the New Code of Civil Procedure, as initially worded when Decree no. 89-511 of 20 July 1989 was issued, provided:
“Except in cases in which an appeal on points of law acts as a bar to execution of the impugned decision, the President may, on application by the respondent and after obtaining the opinion of Principal State Counsel and the parties, order the removal of the case from the list if the appellant fails to show that he or she has complied with the impugned decision, or unless it appears to the President that compliance may entail manifestly unreasonable consequences.
The President shall grant permission for the case to be restored to the list on proof that the impugned decision has been complied with.”
Article 1009-1 was amended by Decree no. 99-131 of 26 February 1999, which came into force on 1 March. It was reworded and supplemented by two Articles and now reads as follows:
“Except in cases in which an appeal on points of law acts as a bar to execution of the impugned decision, the President or his or her delegate shall, on application by the respondent and after obtaining the opinion of Principal State Counsel and the observations of the parties, order the removal of the case from the list if the appellant fails to show that he or she has complied with the impugned decision, or unless it appears to the President that compliance may entail manifestly unreasonable consequences. The respondent's application must be made before the expiration of the periods laid down in Articles 982 and 991, failing which the court shall of its own motion declare it inadmissible. An order for the case's removal from the list shall not prevent time running for the purposes of the time-limits to which the appellant is subject by virtue of Articles 978 and 989.”
“Time shall start to run from the date the order for removal of the appeal from the list is served. It shall be interrupted by an act that unequivocally manifests an intention to comply.”
“Unless he or she finds that the appeal has lapsed, the President or his or her delegate shall grant permission for the case to be restored to the list on proof of compliance with the impugned decision.”
For the purposes of the time-limits to which the respondent is subject by Articles 982 and 991, time shall start to run from the date the order for the restoration of the appeal to the list is served.”
36. Case-law
(i) “Appellants to the Court of Cassation may not rely on Article 6 of the European Convention on Human Rights to oppose an application for an order for removal of an appeal from the list, since they have been able to exercise their right to appeal to the Court of Cassation and are not entitled to avoid their own obligations to comply with the orders made in the judgment against them, as they would otherwise deprive their opponent of a prerogative which the latter enjoys by virtue of the judicature rules.” (Cass. ord. 1er prés., 22 February 1995, Bull. civ. ord., no. 6)
(ii) “... Mr and Mrs ... appealed on points of law against the judgment ... of the ... Court of Appeal ordering them to pay ... 206,050.31 francs... Mr and Mrs ... contest that measure on the ground that they have been granted full legal aid.
It appears that the grant was made on the basis that the spouses' disposable monthly income was 3,834 francs. In those circumstances and regard being had to the amount of the order, it appears that compliance with the judgment would entail manifestly unreasonable consequences for them.” (Cass. ord. 1er prés., no. 91205 of 2 February 2000)
(iii) “By a judgment ... the ... Court of Appeal ordered Mr L. and the SCI A. to pay various sums to Mr D.B...
Mr L. says he is impecunious ... The documents produced by Mr L., who is in receipt of minimum welfare benefit, show that his financial circumstances are indeed extremely precarious ... that compliance with the judgment would entail manifestly unreasonable consequences for him ...” (Cass. ord. 1er prés., no. 90971 of 12 January 2000)
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4583
LANGUAGEISOCODE: ENG
RESPONDENT: DNK
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: NINN-HANSEN v. DENMARK
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is a Danish citizen, born in 1922. He resides in Charlottenlund, Denmark. The applicant was a member of Parliament for many years and served, inter alia, as Minister of Justice from 1982 until January 1989. Before the Court the applicant is represented by Mr Kristian Mogensen and Mr Axel Kierkegaard, lawyers practising in Copenhagen.
The facts of the case, as submitted by the parties, may be summarised as follows.
a.
In the autumn of 1988 the Parliamentary Ombudsman started an investigation of the Ministry of Justice's administration in 1986-1988 of cases concerning Tamil refugees' applications for family reunification. In his report of 1 March 1989 the Ombudsman criticised the way the Ministry of Justice and the Directorate for Aliens (Direktoratet for Udlændinge) had handled the applications for family reunification of Tamil refugees.
The Ombudsman's report received considerable public attention and resulted in public criticism of the Government's refugee policy. The political unrest about refugee questions continued, especially about refugees' possibilities of family reunification and the public criticism was increasingly directed against the applicant personally.
On several occasions members of Parliament attempted to induce the Government to invite a specially commissioned court of inquiry with public court sessions to investigate the applicant's conduct in connection with the Tamil refugees' applications for family reunification. Whereas the applicant had no objections thereto the Government resisted and such a proposal was not adopted.
On 23 April 1990 the Danish State Television transmitted a programme in which the applicant's conduct and the discharge of his official duties were severely criticised. In the following two weeks the television programme resulted in an extensive public debate in all Danish media. This caused the Prime Minister to issue a press release on 8 May 1990 in which it appeared that the Government and the political parties, which together with the Government comprised a parliamentary majority, now agreed that the question of the administration of the Tamil refugees' family reunification should be investigated. From the press release it also appeared that the Government would propose a change in the Administration of Justice Act (Retsplejeloven) aiming especially at such an investigation.
The Bill was proposed by the Minister of Justice on 15 May 1990 and adopted on 13 June 1990.
Following the adoption of the Bill the Prime Minister addressed a letter of 29 June 1990 to the President of the Supreme Court which read as follows:
(Translation)
"According to Section 21a of the Administration of Justice Act the Office of the Prime Minister has decided, on behalf of the Ministry of Justice, to request a Supreme Court judge to conduct an investigation of the decision-making process and the administration connected with the handling of cases concerning the family reunification of refugees from Sri Lanka. The investigation shall comprise the period from the conclusion of peace in Sri Lanka in the summer of 1987 until it was decided to normalise the handling of these cases in January 1989.
In the investigation it shall be examined whether anybody in public service or duty in connection with the proceedings has committed such faults or negligence which may result in an attempt to place legal responsibility.
It has been decided that the investigation according to the Administration of Justice Act Section 21a, subsection 3, shall be conducted in camera.
The Office of the Prime Minister will consider nominating a person to represent the State during the case.
With reference to the above the President of the Supreme Court is hereby requested to propose a Supreme Court judge to conduct the investigation."
On 3 July 1990 the President of the Supreme Court proposed Supreme Court Judge H. On 10 July 1990 the Office of the Prime Minister requested H to investigate the matter as mentioned in the letter of 29 June 1990. Furthermore, on 10 July 1990 the lawyer, N, was appointed to represent the public, i.e. acting as interrogator in the proceedings. Thus, on 10 July 1990 a court of inquiry was set up on the terms of reference as described in the letter of 29 June 1990. On 25 January 1991 the investigation was extended to comprise also the period after January 1989.
During the summer and autumn of 1990 the Court of Inquiry (Undersøgelsesretten) requested documentary evidence from, inter alia, various Ministries, the Directorate for Aliens and the Parliamentary Ombudsman. This material comprised a total of approximately 18,000 pages.
The Court of Inquiry subsequently held 104 sessions and heard 61 witnesses. The hearing of witnesses commenced on 20 November 1990 and ended on 29 May 1992. The first seven sessions were held in camera. On 19 December 1990, however, the Prime Minister and the Minister of Justice agreed, as requested by the applicant, that the investigation should be conducted in public. The transcripts of the above seven sessions were accordingly made accessible to the public and the applicant was accordingly allowed to go through these transcripts.
Already on 26 October 1990 the Court of Inquiry had informed the applicant of its task and that he would be called as a witness in the case. Like all other witnesses testifying before the Court of Inquiry, he was asked whether he wished a legal assistant (bisidder) during the proceedings, but he declined. Before the hearing of the applicant he was given an opportunity to acquaint himself with the written material which formed the basis of the interview. The applicant testified on 2, 3, 4, 15, 16, 22 and 29 April and 21, 22 and 24 October 1991 as well as on 4, 11 and 17 March 1992. Before his testimonies he was informed that he had the right to remain silent and that, in case he chose to give testimony, this would not be under oath.
On 29 May 1992 the Court of Inquiry ended its examination of witnesses and the presiding judge stated, with regard to the submission of written statements, as follows:
(Translation)
“...The Court of Inquiry is not going to pronounce a judgment - which would presuppose legal arguments from counsel - but issue a report - i.e. a recommendation to others - with regard to the issues which have been examined during the investigation. If anybody wishes to make written submissions to the court it cannot at the outset be expected that the court will take the initiative to arrange an adversarial procedure, requesting replies, rebuttal and counter-rebuttal from everybody who has made statements. As can be ascertained from the court’s work, everybody who has given testimony without being under oath has had an opportunity - with legal assistance - to obtain knowledge of the evidence which the Court of Inquiry has obtained in order to prepare the report. Some - many - have made use of this opportunity, others have not. Everybody has had an opportunity to raise questions and to suggest that further evidence be produced and this opportunity has also been used by witnesses who have not wished legal assistance. The Court of Inquiry has complied with these wishes without exception, and nobody has been prevented from stating - also in a more general way - his views on the issues of the case during the hearings. If anybody despite this intends to make submissions to the court they are not prevented from doing so, but the preparation of the report has - as I said - commenced and ought obviously to be finished as swiftly as possible.”
The final date for the submission of written statements was fixed by the Court of Inquiry as 1 August 1992, but on appeal to the Supreme Court the time-limit was extended to 21 September 1992. The Supreme Court - sitting with five judges, four of whom participated in the subsequent proceedings in the Court of Impeachment - stated in its decision of 17 August 1992 that the Court of Inquiry would not be obliged to take into consideration observations submitted later than that date. Furthermore, it stated that having regard, inter alia, to the purpose of the Court of Inquiry it would not be obliged to initiate an adversarial procedure and forward received written statements to other witnesses.
On 10 June and 30 July 1992 the Court of Inquiry granted the witnesses the right to read through the court transcripts of the testimonies given by other witnesses at the offices of the legal assistants to the extent which the legal assistants considered it necessary in order to assist their clients properly. It was thus presupposed that witnesses were not given access to testimonies of other witnesses which the assistants considered irrelevant in relation to their clients. On 10 September 1992 the decision was upheld by the Supreme Court, which also this time was composed of five judges four of whom subsequently participated in the proceedings in the Court of Impeachment.
On 9 January 1991 and 17 September 1992 the Court of Inquiry notified, inter alia, the applicant that it did not find sufficient reason to give him permission to go through the court transcripts of testimonies which were given by other witnesses during the public sessions of the Court as he was not assisted by a legal assistant.
On 15 December 1992 the Court of Inquiry's report was finished and it was published on 14 January 1993. The report itself comprised a total of 2218 pages and the transcripts from the hearings comprised a total of 2782 pages. The report contained, inter alia, serious criticism of the applicant's discharge of his official duties in his capacity as Minister of Justice in respect of the handling of the Tamil refugees' family reunification cases. It also contained criticism of the actions of other persons, including the Prime Minister at the time. On 14 January 1993 the Government resigned.
On the basis of the report Parliament decided on 11 June 1993 to institute proceedings against the applicant before the Court of Impeachment (Rigsretten) pursuant to the provisions of the Court of Impeachment Act (Rigsretsloven). By indictment of 14 June 1993 the prosecutors, appointed by Parliament, charged the applicant with a violation of Section 5, subsection 1, of Act no. 117 of 15 April 1964 concerning Ministers’ responsibilities whilst in office (lov nr. 117 af 15. april 1964 om ministres ansvarlighed - the 1964 Act). According to this provision a minister is liable to punishment if he wilfully or by gross negligence disregards the duties which fall on him under the Constitution, or under other laws, or due to the nature of his office.
The applicant was charged with having disregarded his duties under the Aliens Act (Udlændingeloven) to the extent that a number of aliens could not obtain a family reunification although they had, under the Act, a right thereto.
The case commenced in the Court of Impeachment on 7 December 1993. Whereas no one challenged the impartiality and independence of the individual judges the applicant challenged the impartiality and independence of the court as such, referred, inter alia, to Article 6 of the Convention and requested the court to dismiss (afvise) the case. In order to substantiate the allegations the applicant furthermore requested the hearing of the Supreme Court judge who had presided over the Court of Inquiry, as well as a lawyer who had participated in that inquiry.
As regards the hearing of the two witnesses the court rejected the request by 21 votes to 3 on 7 December 1993 stating the following:
(Translation)
"It appears from the public report which has been made by the Court of Inquiry in the Tamil case how that court's work was planned and carried out. To hear evidence in this respect must accordingly be regarded as superfluous.
The defence has not challenged the impartiality of any of the participating Supreme Court judges but has in the preliminary submissions regarding the dismissal of the case in particular referred to the fact that the Court of Inquiry was chaired by a Supreme Court judge and that its meetings were held in the Supreme Court's offices to the extent that the public at large was left with the impression that the Supreme Court as such has in advance been involved in the case. When considering this objection the question of what communications Supreme Court judge H might have had with colleagues in the Supreme Court about the Tamil case or related questions cannot be considered to be of any importance.
Since the evidence concerning the connection advocate N might have had with the media during the period of time the Court of Inquiry was sitting cannot be considered of importance for the question of dismissing the case either, these judges vote in favour of rejecting the request of calling Supreme Court judge H and advocate N to submit evidence."
The minority of three judges did not find sufficient reason to reject the request.
Following further oral arguments the Court of Impeachment decided on the question of dismissing the case on 5 January 1994. In rejecting the request for dismissal the unanimous court stated as follows:
(Translation)
"The composition of the Court of Impeachment is set out in Section 59 of the Constitution. The provision that the court shall consist of an equal number of Supreme Court judges and judges elected by Parliament must be based on the assumption that the special cases which fall under the court's competence ought to be delivered by a group of judges which comprises not only persons trained in law but also persons with special knowledge of political matters. Having regard to the fact that charges are brought by Parliament it has been decided that members of Parliament cannot be elected to or act as members of the Court of Impeachment. The provision according to which members and the substitutes are elected for six years in a proportionate way secures that members are not elected in order to participate in a particular case and that the elections reflect the (political parties') number of seats in Parliament. It must be considered natural and legitimate that the persons, who are elected as members of the court, are associated with the political parties, but this does not mean, of course, that when deciding a case before the court they should be considered as ‘party men’ who will rely more or less on what their political basis might think about the case. Against this background there is no substantiation in counsel's submissions that the election by Parliament of half of the judges makes the Court of Impeachment ‘a delicate legal construction’ and ‘which in advance makes it difficult for the court to appear independent and impartial in this case.’
As regards the participating Supreme Court judges counsel for the defence has submitted, among other things, that the Court of Inquiry in the Tamil case was chaired by a Supreme Court judge who sat in the offices of the Supreme Court and that, therefore, the view was formed by the public at large that the Supreme Court as such was involved in the work of the Court of Inquiry. This view has no basis in fact, something [the applicant] must be aware of. Even assuming that this view might appear among the public this cannot constitute a reason for finding that there can be any legitimate doubts as to the impartiality of the participating Supreme Court judges. Nor does the fact that the Supreme Court, pursuant to Section 21, subsection 4, of the Administration of Justice Act, examined certain appeals against decisions of a procedural character taken by the Court of Inquiry, or the fact that the Court of Inquiry was chaired by a colleague to the participating Supreme Court judges, give any reasonable grounds for such doubts.
The facts of the cases decided by the European Court of Human Rights, which have been referred to by counsel for the defence, are in the court's view quite different from those of the present case. Therefore, these decisions cannot support counsel's view either. It is noted in this respect that the requirement that a court shall appear to be impartial implies, according to the case-law of the Court of Human Rights, that there ought not to be any legitimate doubt as to the impartiality of the judges.
The objections of a general character which counsel for the defence has raised against both the judges elected by Parliament and the participating Supreme Court judges cannot in the circumstances, either as such or as a whole, constitute the basis for any legitimate doubts as to whether the Court of Impeachment fulfils the requirements of impartiality which a court is obliged to comply with according to Article 6 § 1 of the Convention.
The Court of Impeachment shall in its evaluation of whether [the applicant] is guilty of the charges brought against him only consider the evidence which is brought to the attention of the court. As a starting point it is accordingly of no importance for this case on what grounds Parliament decided to press charges. The submissions of counsel for the defence, however, give the court reason to make the following remarks about the Court of Inquiry and its competence.
According to its assignment the Court of Inquiry, inter alia, had to consider whether ‘anybody in public service or duty in connection with the proceedings has committed such faults or negligence which may result in an attempt to place legal responsibility.’ Thus, the Court of Inquiry made an evaluation of evidence as well as legal evaluations, but the Court of Inquiry had no mandate to decide - and did not decide - whether [the applicant] committed a punishable offence. Accordingly, it did not have, and did not exercise, a judicial function in the sense provided for in Section 61 of the Constitution. The assignment of the Court of Inquiry was accordingly not contrary to the prohibition in this provision against creating special courts with the power to exercise judicial functions. The reasons which have been decisive for Parliament's decision to press charges are of no importance for the Court of Impeachment's decisions in this case. What has been submitted by counsel for the defence about the correlation between the legislative, the executive and the judicial powers in connection with the setting-up of the Court of Inquiry, or the criticism of a general character which has been directed against special courts or courts of inquiry ... are not of any importance in respect of the question of dismissing the present impeachment case either.
As regards the inquiry's importance as to the proceedings in this case, counsel for the defence has submitted that the possibility of a direct taking of evidence through the hearing of witnesses in the Court of Impeachment is lost or at least considerably reduced due to the fact that most of those persons who shall give evidence have done so previously in the Court of Inquiry. It is normal, however, and not contrary to the principle of direct evidence that a witness in a criminal case at an earlier stage has made statements to the police or in court. Like in other criminal cases, the Court of Impeachment must consider the weaknesses which may follow from this as an element in the evaluation of evidence.
Counsel for the defence has, furthermore, submitted that the case has for many years been mentioned and commented upon in the media to quite an extraordinary extent and in a way which was solely detrimental to [the applicant] so that he now appears to be convicted in advance. Even if the description of the media coverage is more or less correct there is no legitimate reason to believe that the Court of Impeachment cannot disregard this and decide solely on the basis of the evidence before it.
Accordingly, in respect of the objection related to other matters than the question of the impartiality of the court there is no legitimate reason either to doubt that [the applicant] will have a fair trial within the meaning of Article 6 of the Convention.
Finally, it is considered that counsel's submissions that the case has not advanced within a reasonable time, cf. Article 6 § 1 of the Convention, cannot constitute the basis for dismissing the case.
Consequently, the court finds no reason to accept the request for dismissal."
Following the above decision the court resumed its examination of the case. On 16 March 1994 a dispute arose between the prosecution and the defence as to the use of the transcripts from the Court of Inquiry when hearing witnesses in order to confront these witnesses, if necessary, with their previous statements.
On 22 March 1994 the court decided by 21 votes to 3 to allow the use of these transcripts. In its decision the majority stated as follows:
(Translation)
"The dispute concerns only whether the transcripts from the Court of Inquiry should be submitted and whether these transcripts may be used to confront (witnesses with their previous statements). The transcripts do not contain the Court of Inquiry's evaluations or conclusions but recall the statements [the applicant] and witnesses made before the Court of Inquiry as taken down by the judge and accepted by the witness. Permission to confront (witnesses with these statements) means only that [the applicant] and witnesses may be questioned about the differences should their statements during the trial deviate from their previous statements.
According to normal practice in criminal cases both court transcripts containing statements from the accused and witnesses as well as police reports containing statements to the police are submitted. The submission is made pursuant to Section 834 of the Administration of Justice Act which corresponds to Section 29 of the Impeachment Act, and the submission is made despite the fact that these documents cannot as a main rule be used as independent evidence during the trial cf. Section 877, subsection 2 nos. 2 and 3 and subsection 3, of the Administration of Justice Act. Thus, it is in accordance with normal practice in criminal cases that the transcripts from the Court of Inquiry are submitted during the trial in the Court of Impeachment and Sections 50 and 55, second sentence, of the Impeachment Act cannot lead to any other result. Furthermore, it is noted that the Court of Inquiry transcripts are public. We do not find reason in these circumstances to accept the protests made by counsel for the defence.
Sections 50 and 55, second sentence, of the Impeachment Act deal only with court transcripts concerning preliminary examinations arranged by the Court of Impeachment, but resemble otherwise mainly Section 877, subsection 2 nos. 2 and 3, of the Administration of Justice Act. The question how the Court of Inquiry transcripts may be used during the trial in the Court of Impeachment shall thus be decided according to the rules contained in Section 877 of the Administration of Justice Act and case-law related thereto, cf. the general reference to the Administration of Justice Act in Section 77 of the Impeachment Act.
In accordance with normal practice in criminal cases both court transcripts and police reports may be used, where necessary, by the prosecution and the defence to confront (witnesses with their previous statements). Such a use is not contrary to the principle that the case shall be determined only on the basis of the evidence which has been submitted during the trial. This is so since these confrontations do not replace the accused's or the witness' statements during the trial, but aim at giving the court a better basis upon which to evaluate the evidence in question. We consider, therefore, that the Court of Inquiry transcripts may be used in accordance with this practice.
There is no reason to believe that the submission of the transcripts or their use for confrontation purposes would be contrary to the principles contained in the Convention. ..."
Three judges were against the use of the transcripts, stating as follows:
(Translation)
"We find that it would be more in conformity with the principle of direct evidence that the Court of Inquiry transcripts are not submitted and that they are not in any way used during the trial in the Court of Impeachment. Thereby it will be secured that the statements will be made regardless of what happened in the Court of Inquiry, and that the Court of Impeachment thus appears - in accordance with the principles found in the European Convention on Human Rights - to be wholly unbound of the work performed by the Court of Inquiry. Thus, we vote in favour of accepting the protest of counsel for the defence."
The trial hereafter continued, written evidence was produced and the applicant and a total of 44 witnesses - several of whom appear to have been called by the defence - were heard. On 28 June 1994 the applicant suffered a stroke and the trial was adjourned. In order to evaluate the effect thereof several medical opinions as well as an opinion from the MedicoLegal Council (Retslægerådet) were obtained. On 8 November 1994 the trial was adjourned until further notice. Following further medical examinations the prosecution requested, on 3 April 1995, that the case be resumed whereas counsel for the defence requested a further adjournment due to the applicant's state of health.
On 6 April 1995 the Court of Impeachment decided to continue the case. A majority of 13 judges stated as follows:
(Translation)
"...
We find that [the applicant's] physical state of health does not prevent him from being present during continuing proceedings.
According to the explanations of the doctors there is no scientific basis for believing that his continuing presence increases the risk of a deterioration of his health.
Hereafter, it must be examined whether his mental state excludes that the case continue ...
As set out in the Medico-Legal Council's statement of 21 March 1995 [the applicant's] intellect is still to be considered as being reduced considerably although a certain improvement has occurred as regards acknowledging the illness and the function of speech. The Medico-Legal Council has not, however, been willing to decide whether he is incapable of participating at a qualified level in a trial since the answer would depend on a legal evaluation of the medical information.
According to practice in normal criminal cases a deterioration of mental functions does not exclude the conclusion of a criminal case and the imposition of a normal penalty on persons with an illness equivalent to that of [the applicant]. Being unaccountable for one's actions due to a mental illness which has occurred subsequent to the criminal act but before judgment is pronounced does not as such exclude that a case may be concluded and a penalty imposed, cf. Section 73 of the Penal Code.
From the Impeachment Act or its travaux préparatoires ... it does not appear that the legislature wished to deviate from this practice in cases concerning Ministers' responsibilities whilst in office to the extent that such cases could not proceed unless the accused could participate at a 'qualified level'.
Before [the applicant] was hospitalised on 28 June 1994 due to a stroke the major part of the taking of evidence had been concluded and he had been present during all court sessions. Thus, he had been heard during four court sessions and he had attended all hearings of witnesses and all documentation of written material. The remaining taking of evidence consists, following the request of the defence, of a re-examination of five witnesses and of [the applicant]. This part of the trial may be conducted in a way that the necessary considerations are taken to his state of health.
In these circumstances we find that in the existing medical information, compared with the other available information about [the applicant's] situation following the stroke on 28 June 1994, there is no reason to believe that it will be impossible for him to take a stand as to the charges, to make rational statements as well as to follow the rest of the proceedings, and he cannot be considered as being incapable of examining all relevant witness statements together with counsel prior to making statements. Furthermore, there is no reason to believe that a continuation of the trial would entail a breach of the guarantees the Impeachment Act and the Administration of Justice Act contain in order to secure an accused's defence.
...
Since what counsel for the defence has submitted concerning Article 6 of the Convention cannot lead to any other result we vote in favour of the prosecution's request to continue the case."
A minority of 7 judges voted in favour of rejecting the request stating as follows:

(Translation)
"According to Section 77 of the Impeachment Act, cf. Section 846 of the Administration of Justice Act, an accused has a right to be present personally during the entire trial. The provision expresses that the accused has a right to defend himself, including putting questions to witnesses, express himself on the result of the taking of evidence, on legal questions and to have the last word in the case. These considerations are of particular importance in an impeachment case - cf., inter alia, the travaux préparatoires to Section 52 of the Impeachment Act. [The applicant's] counsel has maintained that a continuation of the trial requires his personal presence and since none of the circumstances mentioned in Section 847, subsection 2, ... are at hand, this case may not be pursued if the accused has a valid excuse for being absent, cf. Section 847, subsection 1, of the Administration of Justice Act. Under this falls - in addition to physical illness - in certain circumstances also mental illness in the form of a mental deterioration.
...
Since 7 March 1994 a considerable number of court sessions have been held during which a considerable number of witnesses have been heard. During the continuing trial it remains to hear, once more, five central witnesses and - not least - [the applicant], and it must be considered to be of decisive importance to his possibilities of defending himself, that he is capable, during the reexaminations and during the oral pleadings, to understand and express himself about the charges and the substantial amount of evidence. According to the existing medical information [the applicant's] intellect is permanently impaired to a considerable extent, caused by vascular related dementia with the result that, in our opinion, he would be unable to participate in the proceedings at a qualified level, having regard to the special character and dimension of the case and, thus, the requirements to his intellectual level which concluding the case in a responsible manner demands. A continuing adjournment of the trial would not entail that [the applicant] is better placed than other accused, including accused who are covered by the rules in Sections 68, 69 and 73 of the Penal Code covering sanctions against mentally deviating offenders. ... Also these accused are protected by the guarantee of a fair trial which Sections 846 and 847 express.
Therefore, we find that what the prosecution has submitted concerning the continuation of the case does not constitute a basis for setting aside the court's previous decision to adjourn the case until further notice, since [the applicant's] state of health still entails that he has a valid excuse for being absent. Thus, we vote in favour of rejecting the prosecution's request to continue the case."
Following this decision counsel for the defence informed the court on 10 April 1995 that the request for re-hearing the five witnesses and the applicant was withdrawn since it was considered irresponsible in view of his state of health to confront the applicant with the witnesses or to hear him again. Furthermore counsel for the defence announced that most likely the applicant would not be present during the remaining sessions. The prosecutors declared that they would not request that the applicant be fetched by force. Counsel was accordingly now ready to commence the oral pleadings.
The oral pleadings commenced on 15 May 1995 and ended on 7 June 1995 when the case was accepted for adjudication. The applicant did not attend these court sessions.
Judgment was pronounced on 22 June 1995. By 15 votes to 5 the applicant was found guilty of having violated Section 5, subsection 1, of Act no. 117 of 15 April 1964 concerning Ministers’ responsibilities whilst in office. He was sentenced to four months' imprisonment which was suspended provided no further criminal act would be committed within a period of one year. The judgment contained thorough reasoning with regard to the applicant’s guilt as well as his sentence. The costs of the proceedings were borne by the State.
The judgment of the Court of Impeachment is final.
b. Relevant domestic law and practice
Provisions relating to the Court of Inquiry
(Translation)
Section 61 of the Constitution
“... Special courts with powers to pass judgments can never be instituted.”
Section 21 of the Administration of Justice Act
“The Government retain their right to institute special courts save as regards special courts with powers to pass judgments...”
Section 21a of the Administration of Justice Act
“(1) The Minister of Justice may request one or several judges to conduct an investigation of specific matters. The Minister of Justice may decide that experts participate in the investigation.
(2) The Court of Inquiry has no powers to pass judgments.
(3) The investigation is conducted according to the rules of [the Administration of Justice Act]. However, the Minister of Justice may in special cases decide that the investigation shall be conducted in camera...
(4) The decisions of the Court of Inquiry may be appealed against directly to the Supreme Court.
(5) The investigation is concluded by a report. The report is published by the Minister of Justice, unless quite exceptional reasons speak against publication."
The competence and composition of the Court of Impeachment
(Translation)
Section 16 of the Constitution
“Ministers can be prosecuted for the discharge of their office by the King or by Parliament. The Court of Impeachment shall try the cases instituted against the ministers for the discharge of their office.”
Section 59 of the Constitution, which was given its present wording by the Constitution of 5 June 1953, reads as follows:
(Translation)
“(1) The Court of Impeachment shall consist of up to fifteen of the eldest - according to seniority of office - ordinary members of the highest court of justice of the Kingdom and an equal number of members appointed for six years by Parliament according to proportional representation. One or more substitutes shall be appointed for each appointed member. No member of Parliament shall be appointed or act as a member of the Court of Impeachment. Where in a particular instance some of the members of the highest court of justice of the Kingdom are prevented from taking part in the trial and adjudication of a case, an equal number of the members of the Court of Impeachment last appointed by Parliament shall retire from their seats.
(2) The Court of Impeachment shall elect a President from among its members.
(3) Where a case has been brought before the Court of Impeachment, the members appointed by Parliament shall retain their seats in the Court of Impeachment for the duration of such case, even if the term for which they were appointed has expired.
(4) Detailed rules for the Court of Impeachment shall be provided by statute.”
Detailed rules for the Court of Impeachment are laid down by Act No. 100 from 1954, cf. Consolidation Act No. 641 of 17 September 1986 - the Court of Impeachment Act. Relevant provisions of the Act read as follows:
(Translation)
Section 1, subsection 1
“The Court of Impeachment shall try the cases instituted by the King or Parliament against the ministers.”
Section 2
“(1) The Court of Impeachment shall consist of the ordinary members of the Supreme Court and an equal number of members appointed for six years by Parliament according to proportional representation. No member of Parliament shall be appointed or act as a member of the Court of Impeachment.
(2) For each person appointed, two substitutes shall immediately be appointed according to proportional representation.
(3) Where any of the judges appointed by Parliament retires from the Court of Impeachment before expiry of the term of the appointment, the substitute first appointed for him shall take his seat in the Court of Impeachment for the remaining part of term. Where the first appointed substitute is prevented from doing so or where he retires from the Court of Impeachment as well, the second substitute takes his place.
(4) No supplementary appointments of substitutes shall be held.
(5) Where a case has been brought before the Court of Impeachment, the members appointed by Parliament shall retain their seats in the court for the duration of such case, even if the term for which they were appointed has expired.”
Section 5
“(1) Where in a particular instance some of the judges of the Supreme Court are prevented from taking part in the trial and adjudication of the case, an equal number of the members last elected by Parliament according to proportional representation shall retire from their seats.
(2) Where one of the appointed judges is prevented from taking part in the trial of the individual case, his seat in the court shall be taken by the substitute first appointed for him; where he is also prevented from taking part in the case, the second substitute shall take his seat. Where he is also prevented from taking part in the case, the most junior Supreme Court judge in office shall retire from his seat.”
Section 6
“In no case can the bench of the Court of Impeachment comprise less than 18 judges.”
Section 8
“Each of the judges of the Court of Impeachment shall make a written solemn assurance on his honour and conscience that he will attentively follow the proceedings in the court and pass judgment as he finds it to be right and true according to the law and the evidence of the case.”
On 28 May 1990 Parliament appointed fifteen lay judges and thirty substitutes for the period from 18 May 1990 until 17 May 1996 (cf. Parliamentary Proceedings, Yearbook and Index, 1990 - 1991, p. 172). Seven of the lay judges had also been appointed as lay judges or substitutes in the preceding period from 18 May 1984 until 17 May 1990.
Provisions on the accused’s right and duty to be present
Relevant provisions of the Court of Impeachment Act (in translation):
Section 33
“Where the defendant fails to appear without lawful cause of absence from the hearing mentioned in Section 29 or any subsequent hearing, the Court of Impeachment may take whatever steps necessary to secure his presence, including, if necessary, to have him fetched by force.”
Section 42
“Where the defendant does not appear and cannot immediately be brought before the court, the court decides, after the prosecutor and counsel for the defence have spoken, whether the case is nevertheless to be advanced, or whether it should be adjourned.”
Section 77
“Unless otherwise stipulated by this Act, the Administration of justice Act applies to the procedure before the Court of Impeachment.”
Relevant provisions of the Administration of justice Act reads as follows (in translation):
Section 846
“Unless an exception is stipulated by law, the defendant must be present in person during the entire trial as long as he has access to making a statement; however, after the examination of the defendant is concluded, the presiding judge may permit him to excuse himself.”
Section 847
“(1) Where the defendant fails to appear at the beginning of or during the trial, and where he cannot immediately be brought before the court, the case will be adjourned. Where the defendant fails to appear despite lawful summons and without stating a lawful cause of absence, the court may decide, however, that witnesses and experts who have appeared must be examined, if this is found compatible with the interests of the defendant and provided an adjournment of the examination will be of substantial inconvenience to the persons who have appeared or involve considerable postponement of the case. However, examinations pursuant to the second sentence can only be carried through if the defendant’s counsel has appeared and consents to the examination.
(2) A trial can be expedited in the defendant’s absence if the court finds that his presence is not necessary:
(i) when he has escaped after service of the indictment on him,
(ii) when, after having appeared when the case was opened, he has left the court without leave of the court,
(iii) when it is deemed
(a) that the most severe punishment is a matter of imprisonment for six months, and that the defendant has consented to the expedition of the case, or
(b) that the trial will undoubtedly lead to his acquittal.”