ITEMID: 001-105758
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF SHAW v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Non-pecuniary damage - award
JUDGES: András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
TEXT: 6. The applicant was born in 1953 and lives in Paris.
7. On 21 June 2005 the French first-instance court of Paris pronounced the divorce of the applicant and his wife, Ms K.O., a Hungarian national. It granted the parents joint custody of their daughter, born in October 2000, and placed her with the mother, regulating the applicant’s access rights. At that time, the mother and the child lived in Paris. This decision was upheld by the second-instance French court on 29 November 2006.
8. Meanwhile, on 19 September 2005, Ms K.O. filed a criminal complaint against the applicant with the French authorities, alleging that he had sexually abused their child. She further requested the suspension of the applicant’s custody and access rights. However, in the absence of any evidence supporting her allegations, the complaint was dismissed on 2 November 2005.
9. On 29 December 2007, the mother took the child to Hungary for the holidays. The applicant was aware of this. However, in a letter dated 5 January 2008 she informed the applicant that she had enrolled their daughter in a Hungarian school without his consent, with no intention to return her to France.
10. On 12 March 2008 the applicant brought an action against the mother before the Hungarian Pest Central District Court. He requested the court to establish the abduction of their child by the mother and to order her to return the child to him, relying on Council Regulation (EC) no. 2201 of 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility (“EC Regulation on Recognition of Judgments”) and the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). The District Court established that the habitual residence of the child was in France, because she had the centre of her life there. Moreover, it observed that having had joint custody over their daughter, neither parent could have decided on the habitual residence of the child without the approval of the other parent. The District Court ordered a forensic expert examination of the parties and their daughter. The expert report concluded that abuse or indecency against the child had not been probable and therefore there were no reasons to disregard the obligation to order her return based on Article 13 (b) of the Hague Convention. Thus, on 30 May 2008 this court established the abduction of the child and ordered the mother to take her back to France by 6 June 2008, or to hand her over to the applicant in Hungary on 10 June 2008.
11. On 2 September 2008 the Budapest Regional Court upheld the District Court’s decision, but established that the time-limit to return the child back to France was 27 September 2008, or 1 October 2008 for handing her over in Hungary. (For the execution of this judgment, see heading 3 below.)
12. The mother lodged a petition for review of the final decision with the Supreme Court, which shared the Regional Court’s view that the legal conditions for the child’s continued stay in Hungary were absent. It assessed forensic psychology reports and concluded that the child was still emotionally attached to her father as well, thus her return to France would not cause her serious trauma. On 18 November 2008 the Supreme Court therefore upheld the Regional Court’s decision.
13. Following the final judgment delivered by the Regional Court (see paragraph 11 above), the Pest Central District Court ordered the enforcement of the judgment for the return of the child on 15 October 2008.
14. On 29 October and 26 November 2008 the bailiff unsuccessfully called on Ms K.O. to comply voluntarily with the court order.
15. On 5 December 2008 the bailiff referred the case file to the Heves District Court in order for it to establish the method of enforcement.
16. On 17 December 2008 the mother requested the suspension of the enforcement proceedings. The request was dismissed by the Hungarian Heves District Court on 19 December 2008. It further ordered her to pay a fine of 50,000 Hungarian forints (HUF) (approximately 180 euros (EUR)) and warned her to comply with her obligations. It pointed out that the court could not review an enforceable decision. This decision was upheld by the Heves County Regional Court on 12 February 2009.
17. Upon the bailiff’s request, the mother’s living conditions were examined by the Guardianship Authority. The attempts to promote the mother’s voluntary compliance with her obligations were without success.
18. Moreover, Ms K.O. initiated an action before the Pest Central District Court to have the enforcement proceedings terminated. The District Court dismissed her action on 14 January 2009.
19. On 27 April 2009 the Heves County Regional Court ordered the enforcement of the child’s return with police assistance. The decision became final on 18 June 2009.
20. On 20 July 2009 the bailiff invited the mother to ensure the child’s return during the on-site proceedings to be effected on 29 July 2009.
21. In the meantime, on 31 March 2009 the first-instance court of Paris had issued a European arrest warrant against Ms K.O. for the offence of change of custody of a minor. On 27 July 2009 she was arrested in Hungary.
22. On 28 July 2009 the mother was released by the Budapest Regional Court, which refused to enforce the European arrest warrant. It observed that criminal proceedings were pending against Ms K.O. before the Hungarian authorities for the same act (see paragraphs 40–41 below), which rendered the European arrest warrant obsolete.
23. On 29 July 2009 the bailiff attempted to hold on-site proceedings, which were unsuccessful as Ms K.O. and her daughter had absconded. The Heves Police Department declared them missing and issued a warrant.
24. On 19 October 2009 the bailiff effected on-site proceedings at the primary school of the child and established that the child had not attended the classes during the school year.
25. On 28 October 2009 the bailiff attempted to locate the mother and the child in Eger. However, it was recognised that the address given was non-existent. With police assistance, he searched all potential buildings in the neighbourhood, without success.
26. Moreover, the police authority carried out regular inspections at the mother’s registered address (on 10, 13, 14, 23 September 2009, 14 January and 18 February 2010) in order to detect potential contact between the mother and her parents.
27. On 17 February 2010 the bailiff ordered the stay of the enforcement proceedings as the mother and the child were staying at an unknown location.
28. In the spring of 2010, following a request for mutual legal assistance made by the investigating judge of the French appellate court, the authorities gathered information on the mother from telecommunication providers, contacted Ms K.O.’s former employer, the Mayor’s Office of the registered place of her residence, and heard several witnesses.
29. The Police Headquarters also monitored the database of the National Health Insurance Fund in order to obtain data as to any potential medical service provided for the mother or the child.
30. The child’s school was also being monitored. Exemption from class attendance was granted by the school principal on 23 November 2009. It was established that the child failed to appear at exams scheduled for 4 June and 18 August 2010.
31. The Eger Police Headquarters regularly (on 1, 4, 13 September, 15 October 2009, 20 January, 19 February, 19 March, 24 April, 27 May, 22 June and 25 July 2010) checked the public areas and places as well as the mother’s former address in Eger as, according to certain information, the mother is allegedly residing in Eger.
32. To date, these measures have not led to locating Ms K.O. or her daughter.
33. On 15 April 2008 the Paris Court of Appeal issued a certificate concerning the applicant’s access rights established by the French decision of 29 November 2006 (see paragraph 7 above) based on Article 41(2) of the EC Regulation on Recognition of Judgments.
34. The applicant thereafter requested the Hungarian Eger District Court to enforce his access rights. The case was transferred to the competent guardianship authority on 29 April 2008. The Gyöngyös District Guardianship Authority dismissed his request on 23 May 2008. It established its lack of jurisdiction, relying on Article 10 of the EC Regulation on Recognition of Judgments, as proceedings concerning the child’s abduction were pending before the Pest Central District Court (see paragraph 10 above).
35. On 12 January 2009 the Heves County Prosecutor’s Office raised an objection against this decision, finding it unlawful. It relied on Article 41 of the EC Regulation on Recognition of Judgments, arguing that the Guardianship Authority not only had jurisdiction, but also a legal obligation to enforce the applicant’s access rights. It therefore proposed that the Guardianship Authority’s decision be quashed.
36. The Gyöngyös District Guardianship Authority did not accept this proposal and submitted it for review to the North-Hungarian Regional Administrative Office, which shared the Guardianship Authority’s opinion establishing lack of jurisdiction. The applicant sought judicial review of this decision before the Heves County Regional Court. On 27 May 2009 the court dismissed the applicant’s action, finding that it would legalise the child’s unlawful retention in Hungary by enforcing his access rights and would be contrary to Article 16 of the Hague Convention.
37. The applicant’s access rights have not been respected ever since.
38. At the applicant’s request, but in Ms K.O.’s absence, the French first-instance court of Créteil issued a preliminary injunction placing the child with the applicant and granting him exclusive custody rights on 14 April 2008.
39. In 2009 the applicant initiated proceedings before the Eger District Court for the recognition of this judgment in Hungary. Following a remittal, the case is currently pending before the Heves Country Regional Court.
40. On 1 June 2009 the applicant filed a criminal complaint with the Eger District Public Prosecutor’s Office against the mother. Relying on section 195(4) of the Criminal Code, he considered that Ms K.O. was guilty of endangering a minor due to not having complied with a final judgment obliging her to hand over their daughter to him.
41. The Heves County Public Prosecutor’s Office dismissed the complaint on 24 June 2009. It considered that the constitutive elements of the crime had not been fully present as the mother should have been fined for not respecting access rights. However, the fine imposed on her (see paragraph 16) served to enforce her obligation to hand over the child to the applicant.
42. In the meantime, in the autumn of 2008 the applicant had filed a criminal complaint with the Hungarian authorities for change of custody of a minor, based on section 194 of the Criminal Code. On 29 September 2009 the Heves District Public Prosecutor’s Office ordered investigations. However, finding that no enforceable decision existed concerning exclusive custody of the child, it terminated the investigations on 8 January 2010. The applicant’s appeal was dismissed.
43. On 14 January 2009 the applicant submitted a complaint to the European Commission, claiming a violation of the Regulation (EC) no. 1393/2007 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“EC Regulation on Service of Documents”), the EC Regulation on Recognition of Judgments and the Charter of Fundamental Rights of the European Union. On 3 November 2009 the Commission issued a letter of formal notice to the Hungarian authorities concerning the possible violation of the EC Regulation on Recognition of Judgments. Reply to the letter of formal notice was submitted by the Minister of Foreign Affairs in December 2009. The proceedings are still pending.
44. This Regulation entered into force on 1 March 2005 (with the exception of Denmark) and has direct effect in the Member States of the European Union, including Hungary.
“1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to:
...
(b) the attribution, exercise, delegation, restriction or termination of parental responsibility.
2. The matters referred to in paragraph 1(b) may, in particular, deal with:
(a) rights of custody and rights of access”
“For the purposes of this Regulation:
11. the term "wrongful removal or retention" shall mean a child’s removal or retention where:
(a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention; and
(b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.”
“In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;
or
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.”
“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Hague Convention"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. ...
3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.
Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. ...
8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.”
“1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”
“A judgment relating to parental responsibility shall not be recognised:
...
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally; ...”
“1. This Section shall apply to:
(a) rights of access;
and
(b) the return of a child entailed by a judgment given pursuant to Article 11(8).”
“1. The rights of access referred to in Article 40(1)(a) granted in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.
Even if national law does not provide for enforceability by operation of law of a judgment granting access rights, the court of origin may declare that the judgment shall be enforceable, notwithstanding any appeal.”
“1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.
Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.”
“1. The enforcement procedure is governed by the law of the Member State of enforcement.
2. Any judgment delivered by a court of another Member State and declared to be enforceable in accordance with Section 2 or certified in accordance with Article 41(1) or Article 42(1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State.”
“In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation:
(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.”
45. Hungary acceded to this Convention on 7 April 1986, promulgating it in Law-Decree no. 14 of 1986.
“Where a child has been wrongfully removed or retained ... and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. ...”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
...
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.”
46. According to section 172(1) of the Act, the obligor is first called to voluntarily fulfil his or her obligation within a given deadline. In case of non-compliance, the bailiff immediately submits the case file to the competent court in order to determine the method of enforcement.
The possible methods of enforcement are governed by section 174 of the Act and include the possibility to impose a fine up to HUF 500,000 which may be renewed. Moreover, the court may order the enforcement with police assistance. In such cases, the bailiff sets a date for the on-site proceedings and informs the competent guardianship authority, the obligor, the applicant and the police. If the child to be returned cannot be found at his or her place of residence, the bailiff orders a search warrant.
VIOLATED_ARTICLES: 8


ITEMID: 001-106877
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: SPASESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: The present application invokes a total of 24 applicants. Their personal details are set out in the annex to this decision. All applicants are Macedonian nationals. All applicants were represented before the Court by Mr B. Šokoski, with the exception of Mrs M. Mirceska and Mrs L. Koneska, who were represented by Mrs M. Kokaroska, both lawyers practising in Prilep. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first, second, third, fourth, eighth and ninth applicants are former employees of the private company P.O., and the remaining applicants of the private company Z.P. (“the former employers”). They all brought civil actions against the former employers claiming payment of employment-related benefits, namely annual-leave allowance (регрес за годишен одмор), food (хранарина) and travelling allowances that they had not received during their employment (“the reference period”). The only exception was that the first, second and third applicants did not claim payment of the travelling allowance. All claims were submitted to the Prilep Court of First Instance. The applicants’ cases were finally decided by the Bitola Court of Appeal with decisions rendered between 20 December 2006 and 11 June 2007. The relevant facts concerning the applicants’ claims, the reference period and the outcome of the domestic proceedings are contained in Tables 1, 2 and 3 below:
Article 32 § 5 of the Constitution provides that employees’ rights are regulated by law and collective agreements.
Under Article 101 of the Constitution, the Supreme Court is the highest court, providing for the uniform application of laws by courts.
Under section 2 of the 1993 Employment Act, employment-related issues were regulated by this Act or other laws and collective agreements.
Section 5 of this Act provided that an employer could not take any action or decision restricting employment-related rights regulated by the Constitution, law and collective agreements.
Under section 113 § 1 (1) and (2) of the 2005 Employment Act, employees were entitled to food and travelling allowances.
Under section 267, proceedings that were pending when this Act entered into force would be completed in accordance with the law valid at the relevant time, unless the present Act was more favourable for the employee.
This Act entered into force eight days after it was published in the “Official Gazette of the Republic of Macedonia” on 28 July 2005 (section 273).
Under section 35 of the 1995 Courts Act, the plenary session of the Supreme Court could adopt general legal opinions in order to ensure the uniform application of laws by the courts. The opinions were binding for all panels of the Supreme Court. The same provision appears in section 37 §§ 1 (1) and 2 of the 2006 Courts Act.
Section 45 of the then valid General Business Collective Agreement provided for annual-leave, food and travelling allowances.
Sections 131, 133 and 134 of the Bakery Collective Agreement provided for and specified the amount for annual-leave, food and travelling allowances.
Section 51 of the Collective Agreement on the graphic and paper production industry provided for and specified the amount for annualleave, subsistence and travel allowances.
(a) On 7 November 2002 the Supreme Court, in proceedings following a legality review request submitted by the public prosecutor, found that the employer in the case was not allowed to restrict the payment of the food allowance. That the allowance had not been paid to the claimant’s colleagues did not mean that he was not entitled to obtain that allowance (Gzz.no.30/2002).
(b) On 7 October 2005 the civil department of the Bitola Court of Appeal adopted a “conclusion” according to which, inter alia, if a trade union disagreed with an employer’s decision restricting the payment of the food and annual-leave allowances, courts were required to establish the facts regarding the employer’s financial situation for each business year.
(c) On an unspecified date in 2006, a joint opinion of the civil departments of all the Appeal Courts in the respondent State at the time (Skopje, Bitola and Štip) was published in the Judicial Journal (Судиски Информатор). According to this opinion, in case of reduced working hours due to employer’s business losses an employee was entitled to obtain the full amount of the annual-leave allowance.
(d) On 17 January 2007 the Supreme Court, in proceedings following a legality review request submitted by the public prosecutor, dismissed a claim for the payment of annual-leave allowance on account of the employer’s business losses in the reference period (Gzz.no.37/2006). The Supreme Court decided likewise in another case where a legality review request had been submitted by the public prosecutor (Gzz.no.152/2006 of 6 June 2007).
(e) On 2 March 2007 the civil departments of all three Courts of Appeal adopted a “conclusion” according to which courts were required, in cases concerning the payment of food and annual-leave allowances, to establish facts concerning the employers’ financial situation.
(f) In “conclusion” dated 14 March and 4 May 2007, the civil department of the Bitola Court of Appeal stated that after the entry into force of the 2005 Employment Act, courts should accept claims for the payment of the employment-related allowances specified in section 113 of that Act (see above) irrespective of the employer’s financial situation. The only exception was the annual-leave allowance.
The applicants submitted copies of several final decisions rendered before June 2005 in which the same first- and second-instance courts had accepted similar claims by the applicants’ colleagues (P.no.394/04; P.no.1244/04; P.no.1373/04; P.no.564/04; P.no.1108/04; P.no.302/04; and P.no.85/03). They further submitted copies of other final decisions adopted after September 2006, the relevant details of which are contained in the table below:
Table 4
The Government also submitted copies of other decisions of the domestic courts, including the first- and second-instance courts, adopted after January 2008. All these cases concerned claims for the payment of the same employmentrelated allowances against the former and other employers. In these cases, the courts accepted claims for the payment of food and travelling allowances for reference periods that post-dated the entry into force of the 2005 Employment Act irrespective of the employer’s financial situation at the relevant time. The acceptance of identical claims for reference period that pre-dated the entry into force of that Act was dependent on the employer’s financial situation. This was also the case with claims concerning the payment of the annual-leave allowance, irrespective of the reference period. According to the Government, such practice was in compliance with both the Supreme Court’s decision of 17 January 2007 and the “conclusions” of the Bitola Court of Appeal of March and May 2007 (see above).


ITEMID: 001-70278
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ACKERMANN AND FUHRMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson
TEXT: The applicants, Norbert Ackermann and Ingo Fuhrmann, are German nationals who were born in 1963 and 1942 respectively and live in Mannheim and Düsseldorf in Germany.
The first applicant works as a commercial clerk (kaufmännischer Angestellter) in a private enterprise. He is unmarried and his yearly contributions to the statutory old-age insurance for employees amounted in 2002 to EUR 10,314 and in 2003 to EUR 11,934.
On 24 April 1995 the first applicant filed a request to be exempted from his obligation to contribute to the statutory old-age insurance for employees (gesetzliche Rentenversicherung). He argued that the compulsory insurance violated his right to equal treatment as guaranteed by Article 3 of the German Basic Law.
On 5 September 1996 the National Health Insurance for Employees (Deutsche Angestellten Krankenkasse, DAK) rejected the applicant’s request, finding that the applicant, as an employee, was subject to the obligatory old-age insurance under section 1 of the sixth book of the Social Law Code (SGB VI, see relevant domestic law below), and that he did not meet the requirements to be exempted under sections 5 or 6 of that same law.
On 11 February 1997 the National Health Insurance rejected the applicant’s objection.
On 28 February 1997 the applicant lodged a motion with the Mannheim Social Court (Sozialgericht) with a view to being exempted from the obligatory insurance and to being reimbursed his contributions since 1995, alternatively to reduce his monthly contributions to an acceptable degree and to reimburse the exceeding part.
He submitted a statement on political, economic and legal aspects of the compulsory insurance scheme. He argued that the obligatory old-age insurance deprived him of the possibility to provide for old age under a private pension scheme, which would yield considerably higher returns on his investments. The pension which he was likely to receive under the statutory old-age insurance was totally disproportionate when compared to his own contributions. This was partly due to the fact that the contributions under the compulsory insurance were not exclusively used to finance contribution-based pensions, but also to finance so called “extrinsic benefits” (versicherungsfremde Leistungen, see relevant domestic law below), including costs incurred by the German reunification.
He further alleged that he was discriminated against when compared to the older generation who currently profited from higher pensions than those which he himself would receive on reaching pension age. Moreover, he complained about discrimination when compared to the group of earners who were not subject to the obligatory insurance system such as self-employed persons and civil servants.
On 10 July 1998 the Mannheim Social Court rejected the applicant’s motion. It noted, first, that the legal provisions for exemption did not apply to the applicant. Secondly, the Social Court found that the compulsory insurance did not violate the applicant’s rights under the Basic Law. It noted that the legislator had been granted a wide margin of appreciation when taking measures in the social-political area. The Welfare State was obliged to provide for every citizen’s basic needs. Accordingly, the legislator was entitled to limit the risk of social neediness by introducing a compulsory insurance scheme. It followed that the compulsory insurance as such did not violate the applicant’s rights under the Basic Law. The Social Court finally found that the selection of the group of people who were subject to the compulsory insurance scheme was not arbitrary and thus did not violate the applicant’s right to equal treatment.
On 12 May 2000 the Baden-Württemberg Social Court of Appeal (Landessozialgericht) rejected the applicant’s appeal. Confirming the Social Court’s reasoning, that court emphasised that the applicant’s arguments did not sufficiently take into account the concept of solidarity. Furthermore, the Court of Appeal referred to the decisions of the Federal Social Court (Bundessozialgericht) of 29 January 1998 and of the Federal Constitutional Court (Bundesverfassungsgericht) of 29 December 1999, according to which the financing of so-called extrinsic benefits did not violate the applicant’s rights. The old-age insurance scheme was based on the idea of solidarity and of social compensation (sozialer Ausgleich) which traditionally included an element of social welfare. Even though pension claims had a personal character, they also had to be seen in a distinctly social context. It followed that the legislator was allowed to limit pension claims and to modify benefits as long as these measures served the public welfare and respected the principle of proportionality.
The Social Court of Appeal further found that the applicant advocated a position which was focused on the interests of an insured person who did not become unfit for work, who did not need rehabilitation measures and whose contributions did not benefit a surviving spouse. This line of argument neglected the principles of insurance and of solidarity in an unacceptable way. It finally noted that, during proceedings, the legislator had raised the tax-based financing of the extrinsic benefits and had stabilised the rates of contribution.
With his appeal on points of law before the Federal Social Court, the applicant argued that the insurance system amounted to an expropriation for the following reasons: for the applicant, as a single male, the returns would be lower than his contributions. This was due to four factors: the fact that the contributions also covered so-called “extrinsic benefits”, including the costs incurred by the German reunification, the principle of social compensation, the fact that the impact of the negative growth of population was not compensated by a capital reserve, and the additional costs incurred by women’s higher life expectancy. He alleged that the legislator had overstepped his competencies under the Basic Law, and that his obligation to contribute to the insurance scheme violated his right to freedom of action and to equal treatment under the Basic Law.
On 11 October 2001 the Federal Social Court rejected the applicant’s appeal on points of law. It found, inter alia, that it was acceptable to subject all employees to an obligatory insurance with a view to their typically higher social vulnerability. Accordingly, the obligation did not depend on the individual persons’ ability to provide for themselves. The insurance system was justified by the principle of the Social Welfare State, which obliged the State to provide for the risks of life. Obligatory adherence and contributions were necessary to reach this aim, in particular in order to protect the weaker groups of society. The Federal Social Court did not examine if the assessment of the applicant’s future benefits could violate his property rights, as this could only be examined at the time the applicant actually touched his benefits.
With respect to the applicant’s complaint about unequal treatment, the Federal Social Court found that it was justified to limit the obligatory adherence to the group of employees, because these were typically more in need of security. This followed from the fact that employees were typically dependant on exploiting their own capacity to work in order to earn their living. The Federal Social Court noted that the legislator had applied similar principles to define the group of self-employed persons who were subject to the obligatory insurance (section 2 of the sixth book of the Social Code, see relevant domestic law below). It further found that the rate of the obligatory contributions did not put an excessive burden on the applicant, which might amount to a violation of his property right.
The fact that the contributions also covered the so-called “extrinsic benefits” did not lead to a violation of the principle of equality, taking into account that these other responsibilities were related to those of the old-age insurance.
In April 2002 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint.
The second applicant works as an executive employee in a private insurance company.
On 11 April 1993 the second applicant filed a request to be exempted from his obligation to contribute to the statutory old-age insurance for employees and requested to be reimbursed his contributions.
On 29 April 1993 the National Insurance for Employees (Bundesversicherungsanstalt für Angestellte, BfA) rejected the applicant’s request.
On 25 June 1993 that same authority rejected the applicant’s objection.
On 26 July 1993 the applicant lodged a motion with the Düsseldorf Social Court. He alleged that the obligatory adherence to the insurance scheme amounted to an expropriation and complained about unequal treatment when compared to self-employed persons.
On 3 December 1993 the Social Court rejected the applicant’s motion, finding that the differentiation between employees and self-employed persons was not arbitrary, but was justified by the different social vulnerability of these groups. The Social Court further noted that also self-employed persons were increasingly subject to obligatory insurance schemes, for example to the lawyer’s insurance. The current rate of contribution was not excessive and thus did not violate the applicant’s property rights. The applicant had not established a violation of his future pension claims. The mere apprehension that his pension claims might be reduced in the future did not lead to a violation of the applicant’s present property rights.
On 7 December 1994 the North Rhine-Westphalia Social Court of Appeal rejected the applicant’s appeal, referring mainly to the Social Court’s decision.
On 25 October 1995 the Federal Social Court rejected the applicant’s complaint against the denial of leave to appeal (Nichtzulassungsbeschwerde) as inadmissible. It found that the applicant had failed to establish that the subject matter of his motion was of fundamental importance or that the lower court had committed a procedural error.
On 17 December 1998 the Federal Constitutional Court refused to entertain the applicant’s complaint.
The German Social Code is divided into ten books, namely Book One and then Books Three to Eleven.
The Sixth Book of the Social Code (SGB VI) deals with the public old-age insurance scheme (Gesetzliche Rentenversicherung).
Section 1 (1) provides that all employees are subject to the obligatory insurance.
Section 2 stipulates that certain groups of self-employed persons are also subject to the obligatory insurance, such as teachers, nursing staff and midwifes, artisans who do not have their own business and persons who mainly work for one single customer.
According to section 5 the following groups of persons are not subject to the obligatory insurance: (1) civil servants and judges; (2) employees of public or clerical entities insofar as they have pension claims under the civil servant’s pension scheme or under comparable church regulations; (3) members of religious orders insofar as their maintenance according to the rules of that order is assured.
Section 6 defines certain groups of persons who are exempt from the obligatory insurance, in particular those who are subject to another obligatory insurance scheme or who have claims which are comparable to those of civil servants.
The amount of the pension paid under the insurance scheme mainly depends on the amount of the insured person’s income and the time of contribution.
Besides the pensions and survivor’s pensions which are based on the insured person’s contributions, the insurance also grants benefits which are not based on contributions. These payments, which are also referred to as “extrinsic benefits” (versicherungsfremde Leistungen), include pension claims based on times devoted to the raising of children (Kindererziehungszeiten), pensions compensating the effects of war and injustice (Kriegsfolge- und Wiedergutmachungslasten) and payments relating to the conversion of pensions following the German reunification.
The general retirement age is 65 (section 35 SGB V). From 1957 until 1992, women were entitled to a pension by the age of 60. In 1992 the legislator gradually adapted women’s retirement age to 65 years.
The financing of the benefits under the statutory insurance is organised in a revolving system under which payments made over a certain year are financed from contributions received in that year (Umlageverfahren, see section 153 (1) SGB VI).
The financing is based on the contributions of the insured persons (a), which are complemented by a tax-financed federal state subsidy (b).
(a) The contributions are calculated according to the insured person’s gross wages, which are taken into account up to a certain limit (Beitragsbemessungsgrenze). This limit is calculated on a yearly basis. In 2005, the limit was set at a yearly income of EUR 62,400.
The contribution rates are also fixed on a yearly basis and developed as follows: 1993: 17.5 %, 1994: 19.2 %; 1995: 18.6 %; 1996: 19.2 %; 1997: 20.3 %; 1999 19.5 %, 2000: 19.3 %, 2001: 19.1 %; 2003 – 2005: 19.5 % of the gross income.
The contributions have to be paid in equal shares by the employed person and by the employer (section 168 (1) no. 1 SGB VI).
(b) The Federal State contributes to the expenses by tax-financed subsidies (section 213 SGB VI). On 1 April 1998 the legislator introduced an additional state subsidy which was aimed at financing those expenses under the insurance scheme, which were not covered by contributions (see no. 2 above). These additional payments amounted in 1998 to DEM 9.6 billion. In 2001, the overall subsidies covered 23.2 % and in 2003 25.6 % of the overall spending.


ITEMID: 001-5800
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: JONES v. CYPRUS
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant is a British citizen and sole heir and administrator of the estate of the late David Edgar Jones. She is represented before the Court by Mr A. I. Dikigoropoulos, a lawyer practising in Nicosia.
The facts of the case, as submitted by the parties, may be summarised as follows.
According to the applicant, David Jones and his siblings, plaintiffs in action No. 4745/83 in the Nicosia District Court, became the registered owners of two properties situated at Atsas in the village of Evrychou, after a local enquiry of the Land Registry Office for the purpose of widening a street, and after the death of the plaintiffs’ mother, Paraskevou Mateidis, on 18 September1967.
Before that date the properties had been registered in the name of Yangos Mateidis who had inherited it from his sister, Eleni, to whom the properties had been donated by their parents.
In 1977 a certain Ellada Kyriakou filed action No. 4386/77 in the Nicosia District Court claiming that she and her husband, Eustathios, were the owners of the properties by purchase and/or by long uninterrupted adverse possession.
On 29 November 1977 the court made an order for a substituted service of the writ of summons on David Jones by publication of the writ in the newspaper the “Cyprus Mail”, by posting a copy of the writ at two coffee-shops in the village Evrychou (where the properties were situated), by serving it upon a certain Pantelis Soliatis of Evrychou and by posting a copy on the court’s notice board.
David Jones and his siblings failed to enter a notice of appearance and, when the action was fixed for hearing, the case was dealt with in their absence.
Having heard the evidence of the witnesses, the Nicosia District Court was satisfied that Eustathios Kyriakou had been in possession of the two properties for more than the prescribed period, adversely, peacefully and uninterruptedly. On 24 March 1980 the court ordered the cancellation of the registration of the properties in the name of David Jones and their registration in the name of Eustathios Kyriakou, who subsequently had the plots registered in the name of his daughters by donation. Thereafter, one of the daughters mortgaged the properties in favour of the Latsia Society Ltd. The writ of summons in action No. 4386/77 was never served on the plaintiffs who were at all times residents of the United Kingdom or Australia and whose address was unknown. They all had, however, a representative in Cyprus, Mr Dimitrios Apostolou.
In 1982 David Jones retired to Cyprus. When he discovered that the registration of the properties had been cancelled, he lodged action No. 4745/83 on 20 August 1983 with the Nicosia District Court in order to have the judgment in action No. 4386/77 set aside. He was joined in this action by his siblings. They maintained that the judgment had been obtained by fraud and that there had been a breach of the procedural rules concerning the summons to appear. They alleged that they should have been personally notified of the writ of summons.
On 29 October 1993 the Nicosia District Court dismissed the action, referring extensively to Cypriot and British case-law on the matter. It held that, in deciding action No. 4386/77, the District Court had issued an order according to which the notification of the writ of summons was to take place by its publication in the “Cyprus Mail” newspaper and a copy of it placed on the notice-boards of two coffee-shops in the village of Evrychou, as well as that of the District Court of Nicosia. In exercising its discretionary powers, the District Court considered that such a notification was effective as the plaintiffs, whose nationality and address were unknown to the court, were abroad and the relevant documents, which had been sent to them by one of their relatives, were returned undelivered. It concluded that, although this method of notification was not wholly efficient, it was important for citizens who had had their rights recognised by a court decision to be able to rely on such a decision.
In particular, as to the allegation that the default judgment was obtained by fraud, the court found that the plaintiffs had failed to prove the existence of any such fraud. As to the allegation that there had been a procedural irregularity in that a notice of a writ of summons instead of the writ of summons itself should have been served upon them, being non-Cypriots, the court held that such an irregularity would result in the annulment of the judgment ex debito justitiae. However, the court concluded that David Jones and his siblings had failed to produce evidence to establish that they were not Cypriot nationals.
The plaintiffs appealed to the Supreme Court which dismissed the appeal on 22 September 1998. The Supreme Court adopted the conclusions of the District Court. It further observed that any procedural irregularity, which would have led to the proceedings in action 4386/77 being annulled, had become a “mere irregularity” by reason of the new Order 64 of the Civil Procedure Rules which was published on 24 February 1995 and which (in accordance with the case-law that followed) had retrospective effect. This observation related only to the alleged irregularity that was brought about by the issue of the writ of summons instead of the issue of a notice of the writ. In any event, the Supreme Court dismissed the submission that there had been an irregularity with respect to the service of the writ, as David Jones and his siblings had failed to prove that they were non-Cypriots.
Finally, the Supreme Court held:
“However, the respondents could submit to the Court an application in action 4386/77 for setting aside [the judgment], explaining the default of appearance as well as why such a period of time has passed until they took such a step [filing the application] and giving grounds for a prima facie case, so as to enable the Court to exercise its discretionary power … The respondents did not follow such a course and no such issue was raised for determination.”
Order 2, Rule 2 of the Civil Procedure Rules reads as follows:
“No writ of summons for service out of Cyprus of which notice is to be given out of Cyprus, shall be sealed without the leave of the Court or a Judge.”
Order 26, Rule 14 of the Civil Procedure Rules provides as follows:
“Any judgment by default, whether under this Order or under any other of these rules, may in a proper case be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit.”
Domestic case-law has made it clear that the primary consideration for the court of review is whether the defendant’s case has merits to which heed should be paid (Ioannis Kotsapas v. Titan Construction, [1961] CLR 317).
More recent authorities have reiterated the principle as follows:
“The effect of the case-law is that the court must not hasten to deprive a party of his right to be heard in his case, so long as he discloses merits. But the court may, nevertheless, decline to re-open the case if his conduct is such as to strike at the root of the administration of justice. Where the conduct of the party applying to set aside a judgment is inexcusable, contumacious, to the extent of grossly disregarding the judicial process or the rights of his adversary, the court may, in its discretion, refuse to set aside the judgment.” (Phylactou v. Michael [1982] 1 CLR 204).
The Government stress that, in the context of an application to set aside a default judgment, the defendant does not have to show that he has not been personally notified of the proceedings in which the default judgment was delivered. He is only required to explain why he failed to appear in order to show that his non-appearance was not the result of any gross disregard for the judicial process.


ITEMID: 001-90539
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF NINA KAZMINA AND OTHERS v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: 5. The applicants live in Voronezh, the Voronezh Region. Their names and dates of birth are indicated in the appended table.
6. The applicants are pensioners. They sued the local social welfare authorities for underpaid cost-of-living adjustment of their pensions. On the dates set out in Appendix I the domestic courts granted their claims and ordered the welfare authorities of different districts of Voronezh to pay them the respective amounts. The judgments became final on the dates indicated in Appendix I.
7. In 2001 all the applicants except for Mrs Gurova submitted the writs of execution to the bailiffs. On various dates of the same year the bailiffs discontinued the enforcement proceedings and returned the writs to the respective courts, referring to the debtor’s lack of funds. In 2004 these applicants resubmitted the enforcement documents for execution. The bailiffs returned the writs unenforced, with reference to the lack of funds.
8. On 16 June 2006 the Levoberezhnyy District Court of Voronezh rejected Mrs Sadchikova’s complaint about the bailiffs’ negligence.
9. In their observations the Government submitted, without further detail, that at some point, apparently after 25 November 2005, the Main Department of Pension Fund of the Levoberezhnyy District of Voronezh had invited the applicant to receive the judgment debt, but she had refused. They informed the Court that on 3 July 2007 the unspecified documents regarding payment of the judgment debt had been sent to a local post office, for delivery to the applicant. They furnished no information or documents confirming that the applicant had received the amount.
10. According to the Government, the writ of execution issued in respect the award in favour of Mrs Gurova was on 14 June 2000 returned to the Zheleznodorozhnyy District Court of Voronezh, on account of full execution of the award. All the documents concerning the enforcement proceedings were subsequently archived and destroyed. The Government submitted that, apparently, the judgment had been enforced in 2000, but they were not in possession of any documents evidencing the enforcement.
11. In 2005 Mrs Gurova asked the district pension authority to execute the judgment, but the authority rejected her claim on the ground that the domestic courts’ findings in her favour had been incorrect.
12. On 11 July 2007 1,489.60 Russian Roubles (RUB) of the judgment debt were transferred to her bank account. According to the Government, this payment had been made due to humanitarian considerations and respect for human rights.
13. The judgments in favour of the other applicants had been enforced on the dates tabulated in Appendix I.
14. The above applicants submitted in their observations, without further detail, that at some point after communication of their cases by the Court they had been summoned for interviews by the local prosecutor’s office. It followed from the summonses they received that they were called in respect of their complaints to the Court. The summonses contained a reference to Article 6 of the Federal Law on Prosecutor’s Office of the Russian Federation stipulating that the prosecutor’s instructions were binding, and the failure to comply with them might result in administrative responsibility.
15. Mrs Gurova furnished a copy of a prosecutor’s explanatory note («объяснение») concerning her interview. It transpires from the note that the prosecutor asked the applicant questions about the judgment in her favour, the state of the enforcement proceedings and the authorities’ refusals to execute the award. The applicant confirmed that she was not willing to settle. Mrs Sadchikova and Mrs Sedykh did not furnish any details in respect of the interviews.
16. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1