ITEMID: 001-57840
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF SCHULER-ZGRAGGEN v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);Lack of jurisdiction (new complaint);Violation of Art. 14+6-1;No violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - reserved;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. Mrs Margrit Schuler-Zgraggen, a Swiss national born in 1948, was married in 1972. She lives at Schattdorf in the Canton of Uri.
8. In 1973 she began to work for the industrial firm of D. at Altdorf (Canton of Uri). Her employer regularly deducted contributions to the federal invalidity-insurance scheme from her wages (see paragraph 33 below).
9. In the spring of 1975 she contracted open pulmonary tuberculosis.
On 29 April 1976 she applied for a pension on the grounds of incapacity for work due to her illness.
The Compensation Office (Ausgleichskasse) of the Swiss Machine and Metal Industry (Schweizerische Maschinen- und Metallindustrie) decided on 24 September 1976 to grant her half an invalidity pension for the period from 1 April to 31 October 1976.
10. On 28 September 1978 the D. company dismissed the applicant with effect from 1 January 1979 on account of her illness.
11. After Mrs Schuler-Zgraggen had made a further application for a pension, the Compensation Office determined on 25 March 1980 that she was physically and mentally unfit for work and decided to pay her a full pension with effect from 1 May 1978.
In 1981 and 1982 the invalidity-insurance authorities reviewed her case and confirmed the award of a pension.
12. On 4 May 1984 the applicant gave birth to a son.
13. In 1985 the Invalidity Insurance Board (IV-Kommission) of the Canton of Uri asked Mrs Schuler-Zgraggen to undergo an examination at the invalidity-insurance authorities’ medical centre (Medizinische Abklärungsstelle der Invalidenversicherung) in Lucerne.
14. The medical centre asked Drs F. and B. for two reports (Konsilien) on the applicant’s health - one on the state of her lungs and the other a psychiatric report - and these were sent in on 10 and 24 December 1985 respectively. The centre prepared a summary on 14 January 1986, to which it attached Dr B.’s report; it concluded that the applicant was wholly unfit for clerical work and assessed her fitness for household work at 60-70%.
15. On 21 March 1986 the Invalidity Insurance Board cancelled, with effect from 1 May 1986, Mrs Schuler-Zgraggen’s pension, then amounting to 2,016 Swiss francs (CHF) a month, as her family circumstances had radically changed with the birth of her child, her health had improved, and she was 60-70% able to look after her home and her child.
16. On 21 April 1986 Mrs Schuler-Zgraggen lodged an appeal (Beschwerde) with the Canton of Uri Appeals Board for Old Age, Survivors’ and Invalidity Insurance (Rekurskommission für die Alters-, Hinterlassenen- und Invalidenversicherung - "the Appeals Board"). She claimed a full invalidity pension or, failing that, a half-pension, arguing, in particular, that the Federal Invalidity Insurance Act conferred on her the right to a pension so long as she was at least 66.66% incapacitated. So as to continue receiving her pension, she also asked the Board to order that her appeal should have suspensive effect.
17. The Board dismissed the latter application on 7 May.
18. On 22 May Mrs Schuler-Zgraggen dispensed with the services of her counsel.
19. On 26 May she went to the Invalidity Insurance Board’s headquarters to inspect her medical file, which had been sent there by the Appeals Board, but she was not allowed to see it.
On the same day she wrote to the Invalidity Insurance Board to complain about this and to demand to be able to see the file or at least a photocopy of certain important documents.
In a letter of 28 July 1986 to the same board she again sought permission to inspect the file, in particular "all the medical reports, records of examinations and results of laboratory tests from 1975 to 1986", and the handing over of vital documents.
20. The Appeals Board dismissed the appeal on 8 May 1987.
In the first place, the right to inspect the file did not imply a right to take documents away or to have photocopies made of them. It sufficed that the appellant had had an opportunity to study her file at the Appeals Board registry; she had not availed herself of that opportunity, despite numerous invitations to do so.
In the second place, it could not be discounted that even if the appellant had been fit, she would have been content with looking after her home once her child had been born. At all events, having regard in particular to the examinations carried out by the medical centre, the invalidity in question was not enough, in the case of a mother and housewife, to make her eligible for a pension. Mrs Schuler-Zgraggen was in a position to be more active if she really wished to work despite her new family circumstances. The refusal to pay a pension could help her recover from her neurotic obsession with being unable to work.
21. On 11 August 1987 Mrs Schuler-Zgraggen wrote to the Appeals Board. She said she needed all the documents and expert reports in order to assess the prospects of succeeding in her legal action. She referred to a perfusion scintigram, a lung-function test, blood-gas analyses and a plethysmogram.
22. In a letter of 13 August the Appeals Board replied as follows:
"... [T]hese documents provided the basis for the various medical reports. They are in our file only because of the right of inspection granted to you. We are therefore unable to make further documents available to you."
23. On 20 August 1987 Mrs Schuler-Zgraggen lodged an administrative-law appeal with the Federal Insurance Court against the decision of the Appeals Board. She applied for a full pension or, in the alternative, an order remitting the case to the authority of first instance. She also sought leave to inspect the whole of her file (vollumfängliches Akteneinsichtsrecht).
24. The Federal Insurance Court received observations from the Compensation Office’s invalidity-insurance department on 20 October 1987 and from the Federal Social Insurance Office on 9 November. The Compensation Office submitted that the invalidity pension should cease; the Federal Social Insurance Office argued that the appeal should be dismissed, relying on a report by its own medical service, which referred in particular to the examination carried out by the medical centre.
25. In a letter of 23 November 1987 the Federal Court informed the applicant that her complete file had been sent to the Appeals Board, which "within the next fourteen days [would] make all the documents available [to her] for inspection". She would then have a further ten days in which to supplement her administrative-law appeal submissions.
26. On 30 November 1987 Mrs Schuler-Zgraggen inspected her file and photocopied a number of documents. On 1 December the file was returned to the Federal Insurance Court.
27. Mr Schleifer, a lawyer, wrote to the Federal Court on 7 December to inform it that he would henceforth be representing the applicant and to ask for the case file to be forwarded to him; this was done on 11 December.
28. On 11 January 1988 Mrs Schuler-Zgraggen filed supplementary pleadings in support of her appeal. They included a complaint that the medical centre took it for granted in its expert opinion that her lungs functioned normally, relying on the report of Dr F., which was not in the file however. She also criticised the arbitrariness of the Appeals Board’s opinion that even if she had been fit, she would have devoted herself to household tasks because of the birth of her child.
29. The Federal Insurance Court gave judgment on 21 June 1988, holding that since 1 May Mrs Schuler-Zgraggen had been 33.33% incapacitated and was therefore eligible for a half-pension if she was in financial difficulties, and that as there was no evidence before it on this point, the case should be remitted to the Compensation Office.
In such a case the court’s function was not limited to reviewing compliance with federal law and ascertaining that judicial discretion had not been exceeded or misused; it could also review the appropriateness of the impugned decision, and was bound neither by the facts found by the court below nor by the parties’ claims.
The applicant had succeeded in her complaint that the Appeals Board had failed to produce all the documents for inspection; she had been able to argue her case in the Federal Court, whose file she had had an opportunity to examine and which had considered the facts and the law with complete freedom.
As to the pension claim, the court said:
"Regard must ... be had to the fact that many married women go out to work until their first child is born, but give up their jobs for as long as the children need full-time care and upbringing. This assumption based on experience of everyday life - experience which must be duly taken into account in determining the method to be applied for assessing incapacity ... - must be the starting-point in the present case. At the time the contested decision was taken, on 21 March 1986 ..., the child, who was born on 4 May 1984, was just under two years old, and accordingly, on the balance of probabilities (nach dem Beweisgrad der überwiegenden Wahrscheinlichkeit)..., it must be assumed that the applicant, even if her health had not been impaired, would have been occupied only as a housewife and mother."
In the court’s view, this made it unnecessary to examine whether Mrs Schuler-Zgraggen was fit to work in her previous employment; the question was rather one of determining to what extent, if at all, she had been restricted in her activities as a mother and housewife. Here it was sufficient to rely on the expert opinion produced by the medical centre. The fact that the lung specialist’s report was missing from the file was a defect (ein gewisser Mangel), but the examination carried out by the specialist in internal medicine made it possible to answer the question whether after 1980 there had been any change in the state of the applicant’s lungs. After that date the applicant had no longer been treated for tuberculosis and in that respect was perfectly fit to work. As to her neurosis, it had much diminished in the meantime; and a handicap resulting from her back problems could in theory be assessed at 25% at most.
30. On 17 July 1989 the Compensation Office decided that Mrs Schuler-Zgraggen could not claim a half-pension since her income in 1986, 1987 and 1988 had greatly exceeded the maxima applicable in those years to "cases of hardship" (see paragraph 35 below).
The applicant did not appeal.
31. Invalidity insurance is governed by two federal statutes - the Old Age and Survivors’ Insurance Act of 20 December 1949 ("OASIA") and the Invalidity Insurance Act of 19 June 1959 ("IIA").
32. Invalidity insurance is compulsory for all persons resident in Switzerland (section 1 OASIA). Certain other people may contribute on a voluntary basis, notably Swiss nationals living abroad (section 2 OASIA).
33. Invalidity insurance is managed by cantonal and occupational associations under the supervision of the Confederation (sections 49-73 OASIA and sections 53-67 IIA).
34. At the present time invalidity insurance is financed partly from employers’ and insured persons’ contributions and partly from contributions by the State, in roughly equal proportions.
There is no ceiling on contributions. Those paid by the insured are automatically deducted from earnings. Children, wives and widows of insured persons are exempted if not working, whereas others not gainfully employed pay from 43 to 1,200 Swiss francs a year (section 3 IIA and section 3 OASIA).
35. Section 28 IIA deals with the assessment of incapacity.
Provision is made in subsection 1 for pensions to be graduated in proportion to the degree of incapacity: a full pension is granted where incapacity is at least 66.66% and a half-pension where it is less than 50%. At the material time, 33.33% incapacity entitled a person to a half-pension only "in cases of hardship"; today incapacity must be at least 40% for a person to be eligible for a quarter-pension.
"For the assessment of incapacity, the income which the insured person could earn after becoming incapacitated and after taking any appropriate rehabilitation measures from work that could reasonably be expected of him in a stable labour market is compared with the income he could have earned if he had not been incapacitated."
The amount of the pension is based on the insured’s annual average income, which is calculated by dividing the total income taken as a basis for assessing contributions by the number of contribution years (sections 36 et seq. IIA, taken together with sections 29 et seq. OASIA). For full ordinary pensions the maximum amount is double the minimum amount.
Contributions are enforceable and the right to claim them is subject to a limitation period of five years (sections 15 and 16 OASIA).
36. The Federal Court has derived from Article 4 of the Federal Constitution, which enshrines the principle of equality, an individual’s right to inspect his case file lodged with a judicial body.
The right in question means being given an opportunity to have access to the official documents and to take notes but not to take the file away or to demand that copies should be made and handed over (judgment of 31 March 1982, Judgments of the Swiss Federal Court (ATF), vol. 108, part Ia, pp. 5-9).
On this last point the Federal Court has, however, accepted that individuals may ask for copies, provided that this does not entail an excessive amount of work or substantial expense for the authority concerned (judgment of 4 September 1986, ATF, vol. 112, part Ia, pp. 377-381).
37. Section 85(2)(e) OASIA, first sentence, provides: "If the circumstances so warrant, the parties shall be summoned to a hearing."
38. Under Rule 14 para. 2 of the Federal Insurance Court’s Rules of Procedure,
"The parties shall not have a right to demand a hearing in appeal proceedings. By agreement with the division, the presiding judge may order a hearing to be held, on an application by one of the parties or of his own motion. The parties may inspect the file before the hearing ..."
VIOLATED_ARTICLES: 14
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61421
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF ALFATLI AND OTHERS v. TURKEY (as regards the applicant Mahmut Memduh Uyan)
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to the length of the proceedings;Violation of Art. 6-1 concerning independence and impartiality of the court;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Georg Ress;Mark Villiger
TEXT: 15. On 2 February 1985 the applicant was arrested and placed in police custody. He was accused of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). On 18 March 1985 the Ankara Martial Law Court (Sıkıyönetim Mahkemesi) ordered the applicant's detention on remand.
16. On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court setting out charges against seven hundred and twenty-three defendants, including the applicant. The military prosecutor accused the applicant of membership of an organisation whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime, contrary to Articles 146 § 1 and 168 § 2 of the Criminal Code.
17. After martial law was lifted, the Ankara Martial Law Court took the name of the Martial Law Court attached to the 4th Army Corps.
18. On 19 July 1989 the Martial Law Court convicted the applicant and sentenced him to death penalty. The applicant appealed against the conviction and the case was referred to the Military Court of Cassation (Askeri Yargıtay).
19. Following promulgation of the Law of 26 December 1994, which abolished the jurisdiction of the martial law courts, the Court of Cassation (Yargıtay) acquired jurisdiction over the cases and the files were sent to it.
20. On 6 February 1995 the applicant was released pending trial.
21. On 27 December 1995 the Court of Cassation upheld the applicant's conviction.
22. A description of the relevant domestic law and practice can be found in Şahiner v. Turkey, judgment of 4 September 2001, Reports of Judgments and Decisions 2000-IX.
23. Article 327 of the Code of Criminal Procedure lists the circumstances in which “a person convicted in a judgment that has become final may be granted a retrial”.
It was amended by section 3 of Law no. 4793, which added a sixth set of circumstances in which the proceedings could be reopened:
“where it has been held in a final judgment of the European Court of Human Rights that a decision in criminal proceedings was given in breach of the Convention for the Protection of Human Rights and Fundamental Freedoms or its Protocols. In such cases, an application to reopen the proceedings may be lodged within one year of the date on which the judgment of the European Court of Human Rights became final.”
Law no. 4793 came into force on 3 February 2003. By provisional section 1 of the Law, section 3 is applicable in only two sets of circumstances: where the Court has delivered a judgment that became final before the Law came into force, and where the Court delivers a final judgment on an application lodged after the Law came into force.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81675
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ANDRIA OY AND KARI KARANKO v. FINLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6
JUDGES: Nicolas Bratza
TEXT: 6. The applicant, an owner of the applicant company, was born in 1958 and lives in Velkua.
7. Since August 1993 S. had ordered children’s clothing from the then Andria Oy (apparently not the same company as the applicant company, and since 8 June 1994 called “Saariston Matkailuautot Oy”). In May 1994 the then Andria Oy’s debt collecting operation was transferred to a company E.
8. On 26 July 1994, E., which is not an applicant before this Court, filed a writ of summons (case no. 94/6599) against S. with the Vantaa District Court (käräjäoikeus, tingsrätten). The plaintiff E. was represented by the second applicant. The plaintiff requested outstanding payment of FIM 5,327 (EUR 896) with interest for an order of children’s clothing made by S.
9. On 20 October 1994, the summons was served on the defendant, who contested the claims, alleging that he had cancelled the order in time.
10. The court held a preparatory hearing on 19 May 1995, in which the plaintiff E. was represented by the second applicant. According to the Government, the plaintiff had stated that it would file a supplementary writ of summons and a claim for damages. On 5 July 1995 E.’s representative R. and the court agreed by telephone that the supplementary claims were to be submitted by 15 August 1995.
11. Around February–March 1997 the District Court informed the plaintiff E. that a preparatory hearing would be held in May 1997 and reminded that it had not lodged a supplementary summons.
12. On 25 April 1997, the applicant company filed a new writ of summons against S. with the District Court (case no. 97/2645). This claim also concerned the recovery of an outstanding payment of FIM 5,327 (EUR 896) for the purchase of goods. The applicant company also claimed damages in the amount of FIM 18,850 (EUR 4,179). The summons was served on the defendant on 27 June 1997, who submitted his response on 25 July 1997.
13. Meanwhile, the preparatory hearing concerning the first writ of summons, filed by E., scheduled for 29 May 1997, was cancelled.
14. The District Court considered it appropriate to examine all the claims together. According to the Government, on 10 June 1998 it joined the actions and served the defendant’s responses on the plaintiffs.
15. On 15 April 1999 and 31 May 1999, the court held preparatory hearings. The main hearing was held on 23 August 1999, at which one witness was heard. The court also examined seven items of written evidence. At the hearing, the applicant company submitted a further claim for damages of FIM 6,000 (EUR 1,009).
16. On 6 September 1999 the court issued a joint judgment in the two cases. Without giving reasons, E. was no longer considered as a plaintiff and the applicant company was indicated as the only plaintiff. The court rejected all the claims and ordered the applicant company, together with the second applicant, to pay the defendant’s legal expenses. It found that the second applicant, being the plaintiff’s legal representative, had negligently caused S. to incur legal costs. In its judgment it also noted the following:
“It was not possible for the District Court to eliminate entirely the lack of clarity in the claims of the parties, especially those of the plaintiff, and the grounds of and evidence for these claims. ... It has examined the case to the extent that the parties have presented their claims and the grounds for them, and what had been the matter in question in the District Court’s view.”
17. E. and the applicants appealed to the Court of Appeal, stressing, inter alia, that E. had issued the first writ of summons. The appellate court upheld the judgment on 27 December 2000, without holding an oral hearing. It considered, as the District Court, that the applicant company was the only plaintiff in the proceedings and consequently dismissed E.’s appeal.
18. According to the applicants, E. transferred the allegedly outstanding account from S. to the applicant company on 26 February 2001.
19. E. and the applicants sought leave to appeal and appealed to the Supreme Court (korkein oikeus, högsta domstolen), complaining, inter alia, about the length of the proceedings. They also alleged that both E. and the applicant company had lodged summonses and, consequently, the two companies’ claims should not have been examined together. They further stated:
“[The applicant company] has been a party to the proceedings only as of 24 April 1997 when it filed a writ of summons with the Vantaa District Court (summons no. 97/2645), by which it requested damages from [S.]...”
20. The Supreme Court refused leave to appeal on 10 October 2001.
NON_VIOLATED_ARTICLES: 6


ITEMID: 001-23652
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: VAN DEN BOUWHUIJSEN and SCHURING v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, Yolanda A.M. van den Bouwhuijsen and Jolien Schuring, are mother and daughter. They are Netherlands nationals, born in 1953 and 1991 respectively, and live in Velp, the Netherlands. They are represented before the Court by Mr A.M.W. Willems, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant cohabited with her partner, Mr Schuring, from 1975 until the latter’s death in 1994. They were not married. On 22 April 1991 a daughter, Jolien – the second applicant – was born to the couple. Mr Schuring legally recognised his daughter and, following a decision by the Arnhem District Court (kantonrechter) of 17 May 1991, both parents were invested with parental authority over Jolien.
On 16 January 1995, following the death of Mr Schuring, the first applicant requested a survivor’s benefit on behalf of Jolien from the Social Insurance Bank (Sociale Verzekeringsbank) pursuant to the General Widows’ and Orphans’ Benefits Act (Algemene Weduwen- en Wezenwet; “AWW”). In her request she acknowledged that under the provisions of the AWW she herself was not entitled to a widow’s pension as she had not been married to Mr Schuring. However, as her daughter had been financially dependent on her father, she laid claim, on behalf of her daughter, to benefits to the amount of 30% of the statutory minimum wage. In the subsequent proceedings she argued that since a widow without children was entitled to a partial widow’s pension amounting to 70% of the statutory minimum wage and a widow with a child under the age of 18 received a full widow’s pension amounting to 100% of the statutory minimum wage, a child born of married parents was in effect awarded a survivor’s benefit amounting to 30% of the statutory minimum wage in the form of an extra allowance on top of his/her surviving parent’s benefit. Not awarding this component of the widow’s pension to Jolien because her parents had not been married – a circumstance over which Jolien had had no control – amounted to unjustified discrimination on the grounds of birth.
To substantiate her argument that the difference between a full and a partial widow’s pension had always been intended to benefit the child who had lost one of his/her parents, the first applicant referred to the drafting history of the General Act on Surviving Dependants (Algemene Nabestaandenwet) which replaced the AWW on 1 July 1996. She also pointed to ILO Conventions no. 121 (the Employment Injury Benefits Convention, 1964) and no. 128 (the Invalidity, Old-Age and Survivors’ Benefits Convention, 1967) which oblige member states to provide cash benefits to the dependent children of a breadwinner. According to the first applicant, the Netherlands legislator had complied with this obligation by awarding higher benefits to widows with minor children. However, by requiring that the surviving parent be married to the deceased, a dependent child born out of wedlock was excluded.
The first applicant’s request was rejected by the Social Insurance Bank on 16 March 1996. It held that as the first applicant had not been married to Mr Schuring, she was not eligible for either a partial or a full widow’s pension. Moreover, although the AWW did provide for benefits for orphans, Jolien could not be awarded such benefits as she was not an orphan, one of her parents still being alive.
The first applicant’s objection (bezwaar) was rejected by the Social Insurance Bank on 9 February 1996. Her appeal (beroep) to the Regional Court (arrondissementsrechtbank) of Arnhem was rejected on 10 April 1997. Finally, the Central Appeals Tribunal (Centrale Raad van Beroep) rejected the first applicant’s appeal (hoger beroep) on 11 March 1998.
The Central Appeals Tribunal found that no unjustified discrimination had taken place. Referring to its own case-law, it reiterated that the fact that the pension for a widow with a child under the age of 18 was higher than that for a widow without children did not entail that that difference should be considered as a cash benefit for the child who had lost one of his/her parents. The AWW provided for benefits for two kinds of survivors: widows and orphans. It was only in respect of a widow’s pension that a difference in treatment was made, in that a marriage between the deceased and the survivor was required in order to create a right to such a pension. The first applicant had not disputed that this difference in treatment was justified. The right to orphan’s benefits was not dependent on a child having been born in wedlock but only on a child being the offspring of the deceased whose death caused the child to be without parents – which was not the case here. As a result, the survivors’ benefit claimed by the first applicant could only be placed in the framework of the provisions concerning widows, and the refusal to award her either a full widow’s pension or any other widow’s benefit could only be seen in relation to her not having been married to the deceased. There was no other discriminatory factor which could be considered as underlying the subsidiary effect that the majority of cases where an entitlement to a full widow’s pension existed concerned children born from the marriage of the deceased to the surviving widow.
The AWW, which entered into force on 1 October 1959, insured against the risk of the death of the family breadwinner. Under the AWW scheme, all persons residing in the Netherlands and non-residents gainfully employed in the Netherlands were compulsory insured. Contributions to this scheme were paid by all persons gainfully employed in the Netherlands.
Entitlement to AWW benefits was not dependent on the level of contributions paid as, contrary to a social security scheme based on employment (werknemersverzekering), it was a general social security scheme (volksverzekering). The level of benefits was linked to the statutory minimum wage.
The AWW conferred entitlement to a widow’s pension for the widow, who was not yet aged 65, of an insured person provided she was caring for an unmarried child born before or on the date of the death of her spouse. A widow without children was also entitled to claim benefit, for example if she was incapacitated for work or was aged 40 or over at the time of her husband’s death. “Widow” meant the woman to whom the insured person was married on the date of his death. Since 1988, widowers enjoyed the same entitlement to benefit after the death of their wives on the basis of case-law.
As it was felt that a widow with children had greater financial needs than a widow without children (see Bijlagen Handelingen Tweede Kamer – Appendices to the Records of the Lower Chamber of Parliament – 1958-1959, 5390, 27), a widow with unmarried children under the age of 18 – regardless of their number – received an amount equal to the minimum wage whereas a widow without children received 70% of that amount.
Under the AWW the unmarried child, up to the age of 16, of the deceased person was entitled to an orphan’s benefit provided the child had lost both parents or if the surviving parent had been divested of parental authority.
The AWW was repealed on 1 July 1996 and replaced by the Surviving Dependants Act (Algemene Nabestaandenwet). The new Act replaced the term ‘widow’ by ‘surviving partner’, this being the person who was married to the deceased person or who was in a relationship of equivalent status with him or her.


ITEMID: 001-22940
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: PIETRZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Jerzy Wacław Pietrzak, is a Polish national, who was born in 1934 and lives in Koszalin, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1978 a plot of land, originally owned by the applicant’s parents, was expropriated. The compensation for the property was deposited with a court, because the administrative organ responsible for the expropriation had not established the address of the owners (in fact they had died before the expropriation). The applicant was not satisfied with the amount of the compensation.
On 20 February 1991 the applicant obtained a court decision declaring him the only heir to his late parents’ estate.
On 16 June 1992 the applicant lodged with the Warszawa Praga-Północ District Office (Urząd Dzielnicy Gminy Warszawa Praga-Północ) a request to reopen the proceedings concerning the compensation, claiming that he had not taken part in the 1978 proceedings, because he had not been informed about them, and that the final decision had been based on false documents.
On 9 September 1993 the Head of the Warsaw District Office (Kierownik Urzędu Rejonowego) refused the applicant’s request. The applicant appealed against that decision. On 22 November 1993 his appeal was dismissed by the Warsaw Governor (Wojewoda) as lodged out of a prescribed time limit. The applicant lodged with the Supreme Administrative Court (Naczelny Sąd Administracyjny) an appeal against the Governor’s decision.
On 20 April 1995 the Supreme Administrative Court quashed the decisions of 9 September and 22 November 1993, considering that the applicant had lodged his request to reopen the proceedings one day after receiving the text of the 1978 expropriation decision, therefore within the time limit.
On 15 November 1996 the Head of the Warsaw District Office reopened the proceedings concerning the compensation for the 1978 expropriation. On 25 March 1997, in the course of the proceedings, the Head of the Warsaw District Office declared that the 1978 decision had been issued in breach of the Code of Administrative Procedure. However, the decision could not be quashed as more than five years had passed since the date of its issuance. The applicant lodged with the Warsaw Governor an appeal against the decision of the Head of the Warsaw District Office.
On 3 July 1997 the Warsaw Governor quashed the decision of 15 November 1996 and remitted the case for re-examination. The Governor ordered the Head of the Warsaw District Office to establish whether it had been the applicant’s fault that he had not taken part in the 1978 proceedings.
On 1 January 1998 there came into force a new law, according to which the governors became the first-instance organs in cases concerning expropriation and compensation therefor. As the Head of the Warsaw District Office had not completed the relevant procedure before that date, the Warsaw Governor took over the case.
On 2 December 1998 the Warsaw Governor dismissed the applicant’s appeal and refused to quash the 1978 decision. The Governor stated that there was no indication that the documents were false. He also found that the fact that the applicant had not taken part in the 1978 proceedings had resulted from his own fault, because according to law he should have informed promptly the relevant authorities about his parents’ death and the fact that he had inherited the property. The applicant appealed against that decision to the President of the Office for the Housing and Urban Development (Prezes Urzędu Mieszkalnictwa i Rozwoju Miast).
On 12 August 1999 the President of the Office for the Housing and Urban Development dismissed the applicant’s appeal. It appears that the applicant did not lodge with the Supreme Administrative Court an appeal against that decision.
On 10 July 1992 the applicant filed with the Head of the Warsaw District Office a request for reassessment of the compensation granted in the course of the 1978 expropriation proceedings.
On 29 September 1992 the applicant lodged with the Supreme Administrative Court a complaint about the inactivity on the part of the administrative organs, which despite his requests had not issued any decision. On 2 June 1993 the court delivered a judgment in which it obliged the Head of the Warsaw District Office to issue a decision with respect to the reassessment.
On 7 September 1995 the Head of the Warsaw District Office decided to reassess the compensation. Subsequently, on 27 September 1995 the applicant lodged an appeal against that decision, as he was not satisfied with the amount of compensation and contested the legal grounds for the reassessment.
On 12 December 1995 the Warsaw Governor dismissed his appeal, quashed the decision of the Head of the District Office and refused to reassess the compensation. The Governor considered that the compensation could not be reassessed, as it had been actually paid in the form of so-called “substitute payment”, i. e. it was deposited with a court.
The applicant did not lodge an appeal against that decision.
Article 35 of the Code of Administrative Procedure of 1960 lays down time-limits ranging from 1 month to 2 months for dealing with a case pending before an administrative authority. If those time-limits have not been complied with, the authority must, under Article 36 of the Code, inform the parties of that fact, explain the reasons for the delay and fix a new time-limit. Pursuant to Article 37 § 1, if the case has not been handled within the time-limits referred to in Articles 35 and 36, a party to administrative proceedings can lodge an appeal to the higher authority, alleging inactivity. In cases where the allegations of inactivity are well-founded, the higher authority fixes a new term for handling the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay. If need be, the authority may order that measures preventing in future such delays be applied.
On 1 October 1995 a new Law of 11 May 1995 on the Supreme Administrative Court (“the 1995 Act”) came into force.
According to the provisions of Article 17 of the 1995 Act, a party to administrative proceedings may, at any time, lodge with the Supreme Administrative Court a complaint about inactivity on the part of an authority obliged to issue an administrative decision.
Article 26 of the Law provides:
“When a complaint alleging inactivity on the part of an administrative authority is well-founded, the Supreme Administrative Court shall oblige that authority to issue a decision, or to perform a specific act, or to confirm, declare, or recognise a right or obligation provided for by law.”
Pursuant to Article 30 of the Law, the decision of the Supreme Administrative Court ordering an authority to put an end to its inactivity is legally binding on the authority concerned. If the authority has not complied with the decision, the court may, under section 31 of the 1995 Act, impose a fine on it and may itself give a ruling on the right or obligation in question.


ITEMID: 001-113294
LANGUAGEISOCODE: ENG
RESPONDENT: SRB
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF JOVANOVIĆ v. SERBIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
JUDGES: Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque
TEXT: 5. The applicant was born in 1944 and lives in Kruševac.
6. The facts of the case, as submitted by the parties, may be summarised as follows.
7. On 14 January 2003 the applicant’s brother (“the plaintiff”) filed a claim against the applicant with the Municipal Court in Kruševac (P. no. 63/2003). The claim concerned the validity of a “life-long maintenance contract” (ugovor o doživotnom izdržavanju) concluded between the applicant and their late mother in so far as it involved a house in which she had lived and the applicant’s acquisition of the title thereto following her death. The value of the dispute (vrednost spora) indicated by the plaintiff was 1,000 dinars (RSD/equivalent to approximately 15 euros (EUR)).
8. On 19 February 2003 the applicant informed the court in one sentence that he contested the plaintiff’s allegations and claim. He further stated that, in view of the main hearing scheduled for 27 February, he intended to lodge a comprehensive written pleading soon.
9. On 27 February 2003 the court formally stayed the proceedings (doneo rešenje o mirovanju) until 27 June 2003 as no one attended the hearing.
10. On 23 June 2003 the plaintiff requested the continuation of the proceedings.
11. The three following hearings, scheduled between September and November 2003, were adjourned due to problems with having the parties properly summoned or their own requests for adjournment.
12. On 8 January 2004 the court held a brief hearing. The plaintiff reaffirmed his claim, stating that he would provide further evidence after the applicant had submitted his response to the claim (odgovor na tužbu). The applicant requested the court to discontinue the proceedings pending the outcome of another case. The court ordered the applicant to submit his response to the claim and adjourned the hearing indefinitely.
13. In his written response of 14 January 2004, the applicant from the outset requested the court to determine a realistic value of the dispute.
14. On 12 February 2004 the court formally discontinued the proceedings (doneo rešenje o prekidu postupka) and requested the plaintiff to pay the court stamp duty (sudska taksa) calculated on the basis of the value of the dispute as initially specified by the plaintiff.
15. On 4 July 2006, at the outset of the first hearing held in the resumed proceedings, the Municipal Court formally established that the actual value of the dispute was RSD 600,000 (equivalent to approximately EUR 6,700). It further ordered the plaintiff to pay additional stamp duty, corresponding to the difference between the initially specified value of the dispute and that decided on by the court.
16. On 5 December 2006 the Municipal Court ruled in favour of the plaintiff, declaring the impugned contract partially void. In so doing, it reaffirmed that the value of the dispute was RSD 600,000.
17. On 27 March 2007 the District Court in Kruševac upheld this judgment on appeal, noting that the value of the dispute was RSD 600,000.
18. On 22 May 2007 the applicant filed an appeal on points of law (izjavio reviziju).
19. On 5 September 2007 the Supreme Court rejected this appeal. It found that the applicant was not entitled to lodge an appeal on points of law given that the value of the dispute in question, as specified in the claim of 14 January 2003, was RSD 1,000 and, as such, well below the applicable statutory threshold of RSD 300,000. The Supreme Court also noted, without any further explanation, that the determination of the value of the dispute on 4 July 2006 by the Municipal Court had been carried out in breach of Article 40 of the Civil Procedure Act.
20. The applicant was served with the Supreme Court’s decision on 27 December 2007.
21. In the meantime, on 23 November 2007, the Municipal Court ordered the applicant to pay court fees calculated on the basis of the value of the dispute set at RSD 600,000.
22. The applicant has not yet paid this amount.
23. Articles 35-40 provide general rules as regards the means of establishing the value of a civil dispute. Article 40 § 2 provides that, in cases not relating to pecuniary requests, the relevant value of the dispute shall be the one indicated by the plaintiff in his claim. However, Article 40 § 3 provides that when the value of the dispute specified by the plaintiff appears to be “obviously too high or too low”, and thus might affect, inter alia, the availability of an appeal on points of law, the court of first instance shall itself assess the accuracy of the specified value. This must be done speedily and in an adequate manner, at the preliminary hearing (pripremno ročište) at the latest, or, if one is not held, at the main oral hearing (glavna rasprava) before the examination of the merits.
24. Articles 227-320 prescribe the rules on the preparation for and the holding of the main hearing. In particular, Article 284 § 2 provides that a preliminary hearing shall not be scheduled when the civil proceedings at first instance are to be conducted by a single judge. Article 297 § 5 states, inter alia, that when a party objects on a certain issue, submits a motion or undertakes other procedural action in the proceedings before the respondent has begun contesting the subject-matter of the dispute, the respondent as a party may undertake such procedural steps before he has concluded his response to the claim.
25. Article 382 § 3 provides that an appeal on points of law (revizija) is “not admissible” in cases not relating to pecuniary requests where the value of the dispute, as indicated by the plaintiff in his claim, does “not exceed 15,000 ... dinars”.
26. In accordance with Articles 383 and 394-397, inter alia, the Supreme Court shall, should it accept an appeal on points of law lodged by one of the parties concerned, have the power to overturn the impugned judgment or quash it and order a retrial before the lower courts. Lastly, Article 392 provides, inter alia, that the Supreme Court shall reject any and all appeals on points of law which it deems inadmissible.
27. Article 16 § 3, inter alia, increased the minimum requirement for an appeal on points of law from 15,000 new dinars to 300,000 new dinars.
28. The Civil Procedure Act 2004 entered into force on 23 February 2005, thereby repealing the Civil Procedure Act 1977. Article 491 § 4 of the former, however, provides that in all cases which were brought before that date the applicable legislation, as regards an appeal on points of law, shall be the legislation which was in force prior to 23 February 2005.
29. Article 422 § 10 further provides that a case may be reopened if the European Court of Human Rights has in the meantime rendered a judgment in respect of Serbia concerning the same or a similar legal issue.
30. If a claim does not contain a pecuniary request (Article 40 § 2), the value of the dispute concerning the contested part of the appellate decision relevant for the assessment of the right to appeal on points of law shall be the one indicated by the plaintiff in his or her civil claim, or the one established by the court, speedily and in an adequate manner, at the preliminary hearing at the latest, or, if one was not held, during the course of the main oral hearing before the examination of the merits (Article 40 § 3), hence, before the plaintiff had started arguing his claim (Article 297 § 1).
31. In this regard, if the court omitted to assess the value of the dispute, and if the respondent failed to submit an objection thereto at the preliminary hearing, or, if one was not held, at the first hearing of the main oral hearing before his response to the claim had been concluded (Article 297 § 5), both the courts and the parties are thereafter precluded from discussing the value of the dispute.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-108572
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GOROVENKY AND BUGARA v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy
TEXT: 5. The first applicant was born in 1938 and lives in the town of Novomoskovsk, Ukraine. The second applicant was born in 1941 and died in 2006. The third, fourth and fifth applicants were born in 1960, 1984 and 1992 respectively and live in the town of Pyatykhatky, Ukraine.
6
7. On 22 November 1999, shortly after midnight, D., the then deputy head of the criminal investigation department (заступник начальника відділення карного розшуку) at the Pyatykhatky District Police Office (П’ятихатський районний відділ УМВС України в Дніпропетровській області), was on his way back from a private trip in a car driven by an acquaintance of his, Mr V. Bugara. The third applicant was also in the car. Having quarrelled with Mr V. Bugara, D., who was drunk, deliberately fired on and instantly killed him, using the police gun which he carried on him at all times. D. then attempted to shoot the third applicant but missed. The third applicant managed to run away.
8. After that D. tried to stop passing cars. Mr A. Gorovenko, who happened to be driving by at that time, stopped and spoke to D., who pretended that his car had broken down and asked for help. However, Mr A. Gorovenko suspected that something was wrong and tried to get away. D. shot Mr A. Gorovenko and attempted to shoot R., who was a passenger in Mr A. Gorovenko’s car, and seriously wounded her.
9. Soon D. was apprehended by passers-by and taken to the police station.
10. Shortly after the incident the police launched an internal investigation. The report, signed on 23 November 1999, brought to light a number of “causes and pre-conditions” stemming from poor regulation by the Pyatykhatky District and Dnipropetrovsk Regional Police Offices which had led to the incident in question. It mentioned, among other things, that the superior officers had failed to adequately examine D.’s character when recruiting and promoting him. In particular, several incidents which demonstrated D’s unsuitability for service in the police department were mentioned. When studying at police college D. had been dismissed from the position of section commander for alcohol abuse. In 1994 he had inflicted light bodily injuries on Sh. and had been sanctioned on three occasions for disciplinary offences. It was further mentioned that his superior officers had failed to enforce and maintain discipline over their subordinates. In particular, several incidents involving police officers from the Pyatykhatky District Police Office were referred to. The superior officers had failed to exercise due control when permitting their subordinates to keep and carry police guns at all times. The report stated that the superior officers had not checked the conditions in which D. kept his police gun at home and had not supervised D.’s behaviour when he was off duty. Furthermore, although D. was known to abuse alcohol, his superiors had not withdrawn his police gun in due time. In particular, on 13 November 1999, while the elections of the President of Ukraine were taking place and the police were operating under a special “reinforced” regime, D. had returned home intoxicated.
11. It was decided that two officers (including the head of the Pyatykhatky District Police Office) were to be dismissed and six others subjected to disciplinary sanctions.
12. On 22 November 1999 the local prosecutor’s office instituted criminal proceedings against D. In the course of these proceedings the applicants brought civil claims against both D. and the Dnipropetrovsk Regional Police Office (Управління МВС в Дніпропетровській області), seeking compensation for pecuniary and non-pecuniary damage.
13. By a judgment of 14 November 2000 the Dnipropetrovsk Regional Court (from June 2001 – “the Dnipropetrovsk Regional Court of Appeal”) found D. guilty of multiple murders, among other crimes, and sentenced him to life imprisonment. The court found that in March 1999 a decision had been taken allowing D. to carry a gun at all times. However, D. had systematically contravened the provisions of the Police Act both while on duty and at home and had abused alcohol on numerous occasions. The court awarded the two applicants’ families amounts totalling 57,786.12 and 62,532.26 Ukrainian hryvnias (UAH) respectively in compensation for pecuniary and non-pecuniary damage − the sums to be paid by D. The court further decided that the applicants’ claim against the Dnipropetrovsk Regional Police Office should be examined in separate civil proceedings.
14. On the same date the Dnipropetrovsk Regional Court issued a special ruling (окрема ухвала) informing the head of the Dnipropetrovsk Regional Police Office of “serious deficiencies in the activities of the Pyatykhatky District Police Office”. Referring to the above-mentioned findings, the court stated that D. had shot two persons with his police gun, which he had been using in the course of his duties. It went on to say:
“Such deliberate disregard for the [Police Act] by a police officer [...], the serious deficiencies in the maintenance of discipline over subordinate officers, and the lack of proper control over the issuing and keeping of police guns in [the Pyatykhatky District Police Office] were the cause of [the incident in question]”
15. The first and second applicants appealed against the judgment and on 16 January 2001 the Supreme Court of Ukraine dismissed their appeal. The judgment became final.
16. By a letter of 9 September 2005, the Dnipropetrovsk Regional Court of Appeal notified the applicants that in 2004 D. had paid them UAH 5 in total. According to the applicants, the judgment of 14 November 2000 remains unenforced in the part concerning the compensation award.
17. In February 2003 the applicants brought actions against the Dnipropetrovsk Regional Police Office and the local department of the State Treasury of Ukraine before the Babushkinskyy District Court of Dnipropetrovsk, seeking compensation for non-pecuniary damage. In support of their claims they relied on the findings in the judgment, the special ruling of 14 November 2000 and the internal investigation report of 23 November 1999.
18. On 5 March 2003 the court rejected the applicants’ claims. In so doing the court reasoned as follows:
“... According to the legislation in force, redress for non-pecuniary damage has to be made by the person who has caused it by his own malicious acts. A finding of guilt and a link of causality between the impugned acts and the damage are the necessary conditions for liability.”
“The claimants’ argument that negligent acts and omissions by the administration of the Dnipropetrovsk Regional Police Office brought about the detrimental consequences in issue and caused non-pecuniary damage to the claimants cannot be accepted as no causal link between the acts and omissions of the Dnipropetrovsk Regional Police Office and the consequences in question was established by the internal investigation.
According to section 441 of the Civil Code, an organisation has to pay compensation for damage caused by its employees in the course of their employment.
It was established in the course of the criminal proceedings that [D.], being the deputy head of the criminal investigation department at the Pyatykhatky District Police Office, had committed the crimes while off duty and for purely violent motives.
In the light of the foregoing, the court has reached the conclusion that the claims should be rejected.”
19. On 10 July 2003 and 4 April 2005 the Dnipropetrovsk Regional Court of Appeal and the Supreme Court of Ukraine respectively rejected appeals by the applicants.
20. The Instruction on the Regulations for the Permanent Keeping and Bearing of Police Firearms, Ammunition and Special Equipment by Police Officers was adopted on 25 January 1995 by order no. 60 of the Ministry of the Interior (Інструкція про порядок постійного збереження і носіння табельної зброї, боєприпасів і спеціальних засобів працівниками міліції, затверджена наказом МВС України № 60 від 25 січня 1995 р.). It sets forth the requirements for police officers to be permitted to keep and bear firearms, ammunition and special equipment at all times, the procedure for applying for such permits, and the conditions under which firearms, ammunition and special equipment must be kept and carried by police officers. In particular, according to part 2.3 of the Instruction, it is forbidden to issue guns to those persons who do not have appropriate equipment for its safe keeping at work and at home. The superior officers are ordered “to strengthen their supervisory role” in the implementation of this Instruction.
21. The provisions of the Constitution of Ukraine and the 1963 Civil Code of Ukraine regarding the responsibility of the State for acts or omissions by its agents are set out in Lovygina v. Ukraine (dec.), no. 16074/03, 22 September 2009.
22. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which provides, inter alia:
“11. Rules and regulations on the use of firearms by law enforcement officials should include guidelines that:
(a) Specify the circumstances under which law enforcement officials are authorised to carry firearms...
...
(d) Regulate the control, storage and issuing of firearms, including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them.
...
18. Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures, have appropriate moral, psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training. Their continued fitness to perform these functions should be subject to periodic review.
19. Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force. Those law enforcement officials who are required to carry firearms should be authorised to do so only upon completion of special training in their use.”
23. The commentary to Article 37 of the European Code on Police Ethics (Explanatory Memorandum of the Recommendation (2001) 10 of the Committee of Ministers of the Council of Europe to member States on the European Code on Police Ethics) reads inter alia as follows:
“...The importance of recruitment of suitable personnel to the police, as well as their training cannot be underestimated ...
VIOLATED_ARTICLES: 2
VIOLATED_PARAGRAPHS: 2-1