ITEMID: 001-91413
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2009
DOCNAME: CASE OF KOZACIOĞLU v. TURKEY
IMPORTANCE: 2
CONCLUSION: Preliminary objections dismissed (non-exhaustion of domestic remedies, six-month period);Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - finding of a violation sufficient
JUDGES: Antonella Mularoni;Christos Rozakis;Dean Spielmann;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mihai Poalelungi;Mindia Ugrekhelidze;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky
TEXT: 9. The applicant, a Turkish national who was born in 1903 and died in 2005, was resident in Adana at the relevant time.
10. During the 1930s he acquired for value a two-floor freestone building, constructed in 1906, in the sub-prefecture of Tarsus, İçel province. The building, which had a total floor space of 516.34 m², was of architectural interest in its own right.
11. On 1 November 1990 the Committee for the Protection of Adana's Cultural and Natural Heritage decided to classify the property as a “cultural asset” within the meaning of the Cultural and Natural Heritage (Protection) Act (Law no. 2863 of 21 July 1983). On 23 November 1998 it was included in the project for protection of the urban environment. It was also included on the Council of Europe's inventory for the protection of the cultural and natural heritage.
12. On 4 April 2000 the executive council of İçel province issued an expropriation order in respect of the property in the context of the “Project for the environmental rehabilitation and regeneration of the streets around St Paul's Well”. On the basis of a valuation report submitted on 21 March 2000 by a panel of experts (hereafter “panel no. 1”) made up of three representatives of the authorities and two representatives of property owners, and in line with the “high-grade building” category in the construction price index published by the Ministry of Urban Planning, the council determined the building's value at 36,856,865,000 Turkish liras (TRL) (about 65,326 euros (EUR)). This amount was paid to the applicant on the date of transfer of ownership.
13. On 12 October 2000 the applicant lodged an application for increased compensation for the expropriated building with the Tarsus District Court. He requested that a new panel of experts, to include a qualified art historian, re-assess the property, taking into account its historical and architectural value. He claimed TRL 1,000,000,000,000 (about EUR 1,728,750) in additional compensation.
14. On 26 February 2001 the court held a hearing and dismissed the applicant's request for re-valuation of the building on the ground of its historical value. The court held, inter alia, that under section 11 (1) of the Expropriation Act (Law no. 2942) (see paragraph 29 below), the panel of experts responsible for the building's valuation could only determine its value on the basis of clearly defined objective data. At the same time, it agreed to the appointment of a new panel of experts, to be made up of a civil engineer, an architect and a representative of property owners.
15. On 10 May 2001, after visiting the site, the court-appointed panel of experts (hereafter panel no. 2) submitted its report. With regard to those features and factors which had a bearing on the property's value, it reached the following conclusions:
“The property in question is located in the Camicedit neighbourhood, within the territory of Tarsus, in the Mersin District. It is recorded in the land register as a solid structure house with a courtyard. Situated in an urban area, it is classed as a listed building in the project for protection of the urban heritage. The decision to classify the building was adopted by the Committee for the Protection of Adana's Cultural and Natural Heritage on 1 November 1990...
The property under dispute... is located ... in the town centre, at the corner of two streets, and its south- and east-facing façades give onto the road.. It is situated in a high-density business and retail area... It borders the north side of the plot of land on which St Paul's well is located. The latter, a site of considerable importance in terms of history and tourism, has long been considered sacred, and visited, by Christians. Thus, before its expropriation, the property was at the centre of “religious tourism”.
Archaeological research indicates that the district of Tarsus is an area that was settled in the period 10,000–4,000 B.C. It is therefore of historical and cultural value. In addition to the historical monuments which are visible above ground, the ruins of an ancient town have been discovered in the course of excavation works alongside the law courts..., and the area has been placed under protection.”
16. In determining the value of the building, panel no. 2 based its findings primarily on the construction price index published by the Ministry of Urban Planning, specifically the category “buildings requiring restoration”. It stated its findings as follows:
“The building which is located on the disputed land is composed of two floors, each with a living floor space of 258.17 m², its total living floor space being therefore 516.34 m². It has been constructed from dressed stone and the architecture of the linking pieces is in the Baghdad style. It was designed as a residential building. The ground floor is in a simple [architectural] style, and the first floor has the features of dressed stone buildings. There is a balcony ... on the first floor. The dressed stone of the window arches and balcony is highly embellished. Thus, the disputed property has the features of buildings... constructed in line with the Mediterranean tradition, known as 'Tarsus houses' (Tarsus evleri). It has also been included in the Council of Europe's inventory for the protection of the cultural and natural heritage. It was in this building that Ataturk stayed during his visit to Tarsus in the 1930s. In spite of its age, and having regard to the above-mentioned features, the building has been protected and maintained in good condition by its owners. In those circumstances, a depreciation rate of 50 % has been decided on. As the building comes within class V, group D (buildings requiring restoration) under the Ministry of Urban Planning's circular of 2000..., the approximate cost of construction per square metre ... has been set at TRL 351,413,000.”
17. Panel no. 2 concluded that panel no. 1 (see paragraph 12 above) had valued the disputed building as an ordinary dressed-stone building, without taking account of its architectural features. It decided not to adopt those valuation criteria and assessed the building's value at an initial TRL 181,448,588,000. It then reduced this amount to TRL 90,724,294,000, noting that the building's depreciation justified a reduction of 50%. However, it then increased this sum to TRL 181,448,588,000, holding that, in view of the building's architectural, historical and cultural features, its value should be increased by 100 %. After deduction of the expropriation compensation already paid to the applicant, the panel decided that the additional compensation should be TRL 144,591,723,000.
18. A third panel of experts (hereafter “panel no. 3”) submitted a report on 12 June 2001, confirming all of the conclusions in the second expert report.
19. On 14 June 2001 the applicant requested a further expert report, on the ground that the two previous reports had failed to take sufficient account of the building's architectural and historical features in assessing its value.
20. On 15 June 2001 the court, after dismissing the request for an additional expert report, allowed part of the applicant's claim and instructed the authorities to pay him TRL 144,591,723,000 (about EUR 139,728) in additional compensation, with interest at the statutory rate, to be calculated from 3 October 2000.
21. On 19 November 2001 the Court of Cassation set aside that judgment. It held that under section 15 (d) of the Cultural and Natural Heritage (Protection) Act (Law no. 2863), neither a building's architectural or historical features nor those resulting from its rarity could enter into play in the assessment of its value. Consequently, a 100 % increase in the amount of additional compensation could not be considered justified.
22. On 4 December 2001 the applicant petitioned for rectification of the Court of Cassation's judgment. He contested the amount of expropriation compensation and emphasised, inter alia, the absence of a legal criterion that would enable the value of buildings making up the country's cultural and historical heritage to be calculated. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1.
23. On 21 January 2002 the Court of Cassation dismissed the applicant's request for rectification.
24. On 15 February 2002 the District Court complied with the Court of Cassation's judgment and fixed the amount of additional compensation at TRL 53,867,429,000 (about EUR 45,980), with interest, to be calculated from 3 October 2000.
25. On 27 May 2002 the Court of Cassation upheld the judgment of the first-instance court.
26. On 23 December 2002 the Ministry of Finance issued a payment order for TRL 124,807,810,000 (about EUR 91,905), broken down as TRL 53,867,429,000 in respect of additional compensation and TRL 70,940,390,000 in respect of interest.
27. The case file shows that, following judicial proceedings which ended in 2005, the applicant received separate compensation for the land on which the building was constructed. According to information submitted by the Government and uncontested by the applicant's representatives, the compensation received following the expropriation of the land was 145,460 new Turkish liras (TRY) (about EUR 87,101).
28. Section 15 of the Cultural and Natural Heritage (Protection) Act provides:
“Real property which forms part of the cultural heritage may be expropriated in accordance with the principles set out below:
...
(d) in calculating the compensation to be awarded for expropriation, the value resulting from a property's age, rarity and artistic features shall not be taken into consideration.”
29. Section 11 of the Expropriation Act provides:
“The criteria for determining expropriation compensation
After having visited, with the judges, the site on which the property to be expropriated is situated... and having obtained the opinion of the interested parties, the panel of experts formed in accordance with section 15 shall draw up a report, taking into account:
(a) the type and nature of the property under consideration;
(b) its area;
(c) the features and factors likely to influence its value, and the valuation of each factor;
(d) the tax declaration in respect of the property, where one exists;
(e) the values determined by the authorities at the date of expropriation;
(f) for farmland, the potential profit on the date of expropriation if account is taken of the existing land-use and the site;
(g) for construction land, the market value as determined by comparison with that of other equivalent plots of land sold under normal conditions prior to the date of expropriation;
(h) for buildings, the official unit amount, the construction costs and the depreciation rate;
(i) all other objective criteria likely to influence the value ... of the property to be expropriated.
The panel shall determine the value of the property by mentioning in its report its finding in respect of each of the above-mentioned criteria, taking account of the statements of the interested parties and basing its findings on a reasoned valuation report.
In determining the value of the property, no account shall be taken of the added value created by the initiative of the urban-planning or other department which lay behind the expropriation, nor of future profits arising from the various uses envisaged for it.
...”
30. In numerous cases the 18th Civil Division of the Court of Cassation has quashed judgments delivered by lower courts which did not take account of the depreciation that the properties in question might have incurred as a result of their status as listed buildings (see, for example, the judgments of 30 November 2004 -2004/8082 E., 2004/8946 K.-, 20 December 2004 -2004/9692 E., 2004/9893 K.-, 5 May 2006 -2005/3263 E., 2005/4696 K.- and 16 June 2006 -2005/3064 E., 2005/6355 K.-).
“Each Party undertakes:
1. to take statutory measures to protect the architectural heritage;
2. within the framework of such measures and by means specific to each State or region, to make provision for the protection of monuments, groups of buildings and sites.”
“Each Party undertakes:
...
2. to prevent the disfigurement, dilapidation or demolition of protected properties. To this end, each Party undertakes to introduce, if it has not already done so, legislation which:
...
(d) allows compulsory purchase of a protected property.”
32. To date, thirteen countries have signed this convention, and only three countries have ratified it. Turkey has not signed it. The text includes the following provisions:
“The Parties to this Convention agree to:
(a) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life, as defined in the Universal Declaration of Human Rights;
...
(c) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal; ...”
“The Parties recognise that:
...
(c) exercise of the right to cultural heritage may be subject only to those restrictions which are necessary in a democratic society for the protection of the public interest and the rights and freedoms of others.”
“No provision of this Convention shall be interpreted so as to:
(a) limit or undermine the human rights and fundamental freedoms which may be safeguarded by international instruments, in particular, the Universal Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms;
(b) affect more favourable provisions concerning cultural heritage and environment contained in other national or international legal instruments;
(c) create enforceable rights.”
“Article 4 deals with the rights and responsibilities of individuals in respect of cultural heritage.
...
(c) The clause approving a restriction on the exercise of rights and corresponding freedoms relies for its interpretation clearly upon the spirit and arrangements of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Public interest considerations (see Article 5 (a)), for example to protect important elements of the cultural heritage, must always be balanced against the need to protect individual property rights.”
34. In the Council of Europe's member States, it is accepted in principle that, in order to satisfy the requirements of the principle of proportionality, an amount of compensation that is “fair and just” (Cyprus), “fair and payable in advance” (France), “fair and payable immediately” (Estonia), “adequate” (Slovakia) or “appropriate” (Germany and Austria), or that is based on the “value” (Lithuania), “full value” (Albania), “current value” (Finland), “market value” (Sweden) or the “fair price” (Italy) of the expropriated property must be determined. In the United Kingdom, a property's historical value is held to be one of the criteria used in assessing its “intrinsic qualities” (see Tadcaster Tower Brewery Co v. Wilson [1897] 1 Ch 705, and Belton v. LCC (1893) 68 LT 411). In Greece, the State must take account of the building's possible historical status in assessing the level of compensation. In Latvia, the expropriation legislation provides that the public authorities must take account of any particular feature of the building in determining the level of compensation. In Spain, the expropriation of buildings that are of artistic, archaeological or historical value is subject to a special procedure, and the amount of compensation cannot be fixed at an amount lower than that which would result from application of the general procedure set out in the legislation on expropriation. None of the above States, nor Belgium or the Netherlands, specifically rules out taking an expropriated property's architectural and historical features into account when determining the compensation to be awarded.


ITEMID: 001-127407
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF PERICA OREB v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)
JUDGES: Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 4. The applicant was born in 1982 and lives in Split.
5. On 1 August 2008 an investigating judge of the Split County Court (Županijski sud u Splitu) opened a criminal investigation in respect of the applicant and seventeen other persons for conspiracy to supply heroin and cocaine in Croatia and Bosnia and Herzegovina in the period between 10 January and 30 July 2008.
6. At a hearing held on 7 August 2008 before the investigating judge, the applicant stated that he had decided to remain silent. The investigating judge heard evidence from another suspect.
7. On 11 August 2008 the investigating judge heard evidence from two other suspects. On the same day he asked for the applicant’s criminal record, which was submitted on 12 August 2008 with a note that he had not been previously convicted of any criminal offence.
8. On 20 August 2008 the investigating judge commissioned a psychiatric report on eleven defendants, including the applicant, in order to assess their mental state at the time the criminal offence was committed and whether they were drug addicts.
9. On 8 September 2008 a psychiatric report commissioned for the purposes of the investigation was submitted by a psychiatrist of the Split Medical Faculty. As regards the applicant, the report stated that he was a long-term drug addict who had received treatment on two occasions but with no lasting results. He had resumed taking drugs a few months before. Since being detained he had been on Heptanon therapy which helped him to overcome his withdrawal symptoms. It was recommended that he continued with that therapy.
10. On 16 September 2008 the investigating judge heard evidence from six witnesses, police officers who conducted the police inquiry prior to the institution of the criminal proceedings.
11. On 24 October 2008 the investigating judge heard evidence from another suspect and on 29 and 31 October 2008 from four further police officers. On 7 November 2008 he heard evidence from another two suspects.
12. On 21 January 2009 the State Attorney’s Office for the Prevention of Corruption and Organised Crime preferred charges of conspiracy to supply heroin and cocaine in Croatia and Bosnia and Herzegovina in the period between 10 January and 30 July 2008 against the applicant and seventeen other defendants in the Split County Court.
13. On 29 January 2009 the applicant lodged an appeal against the bill of indictment (prigovor protiv optužnice). By 4 February 2011 all the other defendants had also lodged their objections.
14. On 4 March 2009 the Supreme Court returned the bill of indictment to the State Attorney’s Office asking it to submit, within three days, a request to take further investigative steps.
15. On 10 March 2009 the State Attorney’s Office asked the investigating judge to take further steps.
16. On 13 March 2009 the investigating judge ordered a transcript of all telephone conversations between the defendants, previously tapped by the police.
17. On 12 June 2009 an expert in telecommunications submitted his report with a transcript of those telephone conversations. The transcript comprises 568 pages.
18. On 16 June 2009 the State Attorney’s Office submitted the same indictment to the Split County Court.
19. On 1 July 2009 the applicant reiterated his objection to the indictment. He also requested that the evidence obtained by the police tapping of his telephone be excluded from the case file. The other defendants also lodged their objections.
20. On 8 September 2009 the Supreme Court dismissed the objections to the indictment and refused the applicant’s request to exclude from the case file all evidence obtained by the police tapping of his telephone.
21. The first hearing scheduled for 26 April 2010 in the Split County Court was adjourned because two defendants did not appear. One of them had been sent to Zagreb Prison Hospital for treatment and the other was in another medical institution. On the same day the presiding judge ordered psychiatric report in respect of two defendants. The report was submitted on 4 May 2010.
22. A hearing before the Split County Court was held on 8 June 2010 and all the defendants stated that they would give their defence at end of the trial.
23. At hearings held on 9, 10 and 11 June 2010 eight witnesses and the expert in psychiatry gave their evidence.
24. At hearings held on 19 and 20 July 2010 four witnesses gave their evidence.
25. At a hearing held on 21 July 2010 the County Court refused the request by the defence to exclude from the case file recordings of the defendants’ conversations.
26. At a hearing held on 14 September 2010 the majority of the defendants, including the applicant, pleaded guilty and two further witnesses gave their evidence.
27. Further hearings were held on 16 and 20 September 2010 and at the latter hearing a judgment was adopted, finding the applicant guilty and sentencing him to three years’ imprisonment. His detention was lifted.
28. Some of the defendants lodged appeals against the first-instance judgment and the proceedings are currently pending before the Supreme Court.
29. On 1 August 2008 an investigating judge of the Split County Court ordered all the suspects to be detained on the grounds under Article 102 § 1 (1), (3) and (4) of the Code of Criminal Procedure, namely the danger of the suspects absconding, the danger of the suspects reoffending and the gravity of the charges. The relevant part of the decision, referring to the grounds for detention, reads:
“In view of the manner in which the criminal offence was committed, the type and quantity of the illegal substances in which the suspects were trafficking, the large number of illegal transactions and the persistence and determination involved in committing the criminal offences, as well as the fact that the suspects are mostly unemployed with no means of support and that the suspects ... and Perica Oreb have previously been convicted of the same criminal offence or of similar criminal offences, there exists a justified fear that if released they might repeat a criminal offence of the same kind ...”
30. A report drawn up on 4 August 2008 by the Split Police Department expressly notes that the applicant had voluntarily come to that Department that day and that he had then been taken to Split Prison.
31. In his appeal of 7 August 2008 the applicant argued that the written charges against him alleged that he had had contact with only one of the other suspects, which showed that he could not have been a participant in any organised criminal activity since he did not know about the involvement of the other suspects and they were not even known to him. He supported these assertions with the argument that no illegal substances, money or equipment necessary for trafficking in the said substances on a large scale, such as packaging or scales, had been found on him, and that this showed that he personally had not been involved in such trafficking.
32. He also claimed that he had never been convicted by a final judgment of trafficking in illegal substances, but only of the criminal offence of using illegal substances and that he was not a drug addict. Lastly, he argued that the possibility of ordering an alternative measure to detention had not been considered.
33. On 8 August 2008 the investigating judge asked for a copy of the applicant’s criminal record. The report of 12 August 2008 submitted by the Ministry of Justice indicated that the applicant had not been convicted of any criminal offence.
34. On 22 August 2008 a three-judge panel of the Split County Court examined the appeals lodged by the defendants. It accepted that the ground under Article 102 § 1(1) of the Code of Criminal Procedure no longer persisted. In other respects it dismissed the applicant’s appeal on the grounds that: the documents in the case file showed that the applicant had previously been convicted of similar criminal offences (without any further explanations in that respect), and that the persistent criminal activity over a long period with which the suspects were charged taken together with their economic situation justified the fear that they might repeat the same offences. The relevant part of the decision reads:
“In view of the level of criminal activity with which the defendants are charged, namely, that they have been engaged in trafficking in illegal drugs over a long period of time, and in view of the resolve and persistence shown in committing the offence, the fact that the defendants ... Perica Oreb ... have already been convicted of criminal offences, and almost all defendants have no means of subsistence, all these things indicate that there is a danger of the defendants reoffending ...
The manner in which the criminal offences were committed, with the defendants organising themselves into a group, and the quantity of the illegal substances whose sale might put at risk the health of a large number of persons, amount to grave circumstances ...”
35. On 3 September 2008 the investigating judge extended the applicant’s detention for a further month on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (the danger of reoffending and the gravity of the charges). The relevant part of the decision reads:
“In view of the level of criminal activity with which the defendants have been charged, namely, that they have been engaged in trafficking in illegal drugs over a long period of time, and in view of the resolve to commit criminal offences and the fact that the defendants have previously been convicted of similar criminal offences, there is a danger of the defendants reoffending ...
The offence was committed under grave circumstances as shown by the manner in which it was committed, the fact that the defendants organised a group and the quantity of the illegal substances in circulation, which, through the sale on the illegal market, could put at risk the health of a number of persons.”
36. In his appeal of 8 September 2008 the applicant argued that he had not previously been convicted of the same offence and that the ordering of his detention under Article 102 § 1 (3) of the Code of Criminal Procedure (danger of reoffending) violated the principle of the presumption of innocence. He also reiterated that the written charges against him alleged that he had had contact with only one of the other suspects, which showed that he could not have been a participant in any organised criminal activity since he did not know about the involvement of the other suspects and did not even know who they were. He argued, in support of those assertions, that no illegal substances, money or materials necessary for trafficking in the said substances on a large scale, such as packaging or scales, had been found on him and that this showed that he had not personally been involved in such trafficking.
37. On 11 September 2008 a three-judge panel of the Split County Court dismissed the applicant’s appeal. The relevant part of the decision reads:
“... the defendants have been charged with the criminal offence of trafficking in illegal drugs between 10 January and 30 July 2008 ... The documents in the case file show that the defendant ... Perica Oreb has already been convicted of similar criminal offences; the defendant Perica Oreb ... is unemployed, and all three defendants have no assets.
In view of the high level of criminal activity with which they have been charged, namely that they engaged in trafficking in illegal drugs during the above-mentioned period and showed resolve and persistence in committing the offence, as well as their economic situation – all these circumstances taken together indicate a danger of the defendants reoffending ...
Furthermore, the offence was committed under grave circumstances as shown by the manner in which it was committed, the fact that the defendants organised a group and the quantity of the illegal substances, which through their sale on the illegal market could put at risk the health of a number of persons ...”
38. On 3 October 2008 the investigating judge lifted the applicant’s detention on the ground that the psychiatric report indicated that he had been a drug user and that he had been buying drugs for his own use and not in order to sell it to others. His immediate release was ordered as well. The State Attorney lodged an appeal on 7 October 2008.
39. On 10 October 2008 a three-judge panel of the Split County Court allowed the appeal and extended the applicant’s detention again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning was the same as that in the decision of 11 September 2008. It was stated, inter alia, that the documents in the case file showed that the applicant had previously been convicted of similar criminal offences (without any further explanations in that respect). The applicant was re-detained on 28 October 2008.
40. On 21 November 2008 the investigating judge extended the detention in respect of all the defendants for a further month again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. This decision was quashed by a three-judge panel of the Split County Court on 11 December 2008 on the ground that the period of further detention had to be specified for each defendant.
41. On 10 December 2008, in another set of criminal proceedings, the Dubrovnik County Court convicted the applicant of trafficking in heroin and sentenced him to two years’ imprisonment.
42. On 15 December 2008 the investigating judge extended the applicant’s detention until 28 December 2008, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity. On 16 December 2008 the applicant lodged an appeal. He argued that no drugs, money or tools typical for the sale of drugs had been found on him and that he had never been convicted of any drug-related crimes. He again argued that the possibility of ordering an alternative measure to detention had not been considered.
43. On 23 December 2008 the investigating judge issued a fresh decision extending the applicant’s detention until 28 December, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. He relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity, on the gravity of the charges and the fact that the defendants had no means of support, without giving further details in this respect.
44. On 24 December 2008 a three-judge panel of the Split County Court declared the applicant’s appeal of 16 December 2008 inadmissible because a fresh decision on detention had been adopted in the meantime.
45. On 30 December 2008 the applicant lodged an appeal against the investigating judge’s decision of 23 December 2008. He reiterated the arguments from his previous appeal of 16 December 2008 and added that before his arrest he had been employed at a hotel in Cavtat.
46. On 14 January 2009 a three-judge panel of the Split County Court dismissed the appeal and reiterated the reasoning from its decision of 11 September 2008. It also stressed that the applicant had been convicted before and that he had no assets.
47. On 21 January 2009 the applicant lodged a constitutional complaint against the above decision, arguing that the following rights had been violated: his right to personal liberty; right to a fair trial; his right to equality before the law because the grounds for detention had been interpreted in an unusual fashion; and his right to an effective remedy because the examination of his appeal had been inadequate.
48. On 23 January 2009 the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. In addition to the reasoning in the previous decisions, it added that the applicant was a drug addict and stated, inter alia, that he had already been convicted of similar criminal offences, without any further explanations in that respect.
49. On 27 January 2009 the applicant lodged an appeal. In addition to the arguments put forward in his appeal of 16 and 30 December 2008 he added that his parents had a regular income and that therefore it could not be said that he had no means of subsistence.
50. On 16 February 2009 the Supreme Court dismissed the appeal of 27 January 2009, holding that the alleged manner in which the criminal offence had been committed amounted to particularly grave circumstances which justified detention on the ground under Article 102 § 1 (4) of the Code of Criminal Procedure. As regards the ground under Article 102 § 1 (3) – danger of reoffending – it was deemed justified since the applicant was a drug addict and two other sets of criminal proceedings concerning drug-related offences were pending against him, one before the Čakovec County Court and the other before the Dubrovnik County Court.
51. On 19 February 2009 the Constitutional Court declared the applicant’s constitutional complaint of 22 January 2009 against the decision of 14 January 2009 inadmissible on the ground that a fresh decision on detention had been adopted in the meantime.
52. On 16 April 2009 the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure and with the same reasoning as before, stating, inter alia, that the applicant had already been convicted of similar offences, without any further explanations in that respect.
53. On 8 May 2009 the Supreme Court quashed the decision of 16 April 2009 on the ground that the three-judge panel which adopted it had no such power and that it was the investigating judge who should have decided whether to extend the detention.
54. On 15 May 2009 the investigating judge extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on the allegations that the accused had been charged with trafficking in substantial quantities of heroin as their primary activity and had no other income. In his appeal lodged the same day the applicant reiterated the arguments from his appeal of 30 December 2008. As regards his previous conviction, he argued that the Dubrovnik County Court’s judgment of 10 December 2008 had not yet become final.
55. On 28 May 2009 the Supreme Court dismissed the appeal, endorsing the reasons put forward by the investigating judge.
56. On 10 June 2009 the investigating judge again extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure and with the same reasoning as in the decision of 15 May 2009.
57. On 16 June 2009 the applicant lodged an appeal. He reiterated his previous arguments.
58. On 18 June 2009 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the previous decisions concerning the applicant’s detention. It stated, inter alia, that the documents in the case file showed that the applicant had already been convicted of similar offences, without any further explanations in that respect.
59. On 24 June 2009 the applicant lodged an appeal reiterating his previous arguments.
60. On 30 June 2009 a three-judge panel of the Split County Court declared the applicant’s appeal of 16 June 2009 inadmissible because a fresh decision on his detention had been adopted in the meantime.
61. On 13 July 2009 the Supreme Court dismissed the applicant’s appeal of 24 June 2009. As to the applicant’s previous convictions, it stated:
“All appellants, save for ... Perica Oreb ... had already been convicted of similar criminal offences ...
... criminal proceedings are currently pending against the accused Perica Oreb before the Dubrovnik County Court in which he has been convicted, by a judgment that has not yet become final, of a criminal offence under Article 173 § 2 of the Criminal Code and sentenced to two years’ imprisonment. Therefore, the fact that the accused had not been finally convicted could not alter conclusion that there is a danger of him reoffending since other criminal proceedings are pending against the accused, which is also relevant in assessing the conformity of their lifestyles with the laws.
...”
62. On 14 September 2009 a three-judge panel of the Split County Court again extended the applicant’s detention on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the previous decisions concerning the applicant’s detention and stating, inter alia, that the documents in the case file showed that the applicant had already been convicted of similar offences, without any further explanations in that respect.
63. On 17 September 2009 the applicant lodged an appeal reiterating his previous arguments.
64. On 28 September 2009 the Supreme Court dismissed the appeal. As to the applicant’s previous convictions, it stated:
“All appellants, save for ... Perica Oreb ... had already been convicted of similar criminal offences ...
... criminal proceedings are currently pending against the accused Perica Oreb before the Dubrovnik County Court in which he has been convicted, by a judgment that has not yet become final, of a criminal offence under Article 173 § 2 of the Criminal Code and sentenced to two years’ imprisonment.
The above circumstances taken together justify the fear that they would continue committing the same or similar offences and that therefore [the decision to extend] their detention on the ground under Article 102 § 1 (3) of the Code of Criminal Procedure is correct.
...”
65. The applicant lodged a constitutional complaint, challenging the grounds for and the duration of his detention.
66. On 26 November 2009 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the previous decisions concerning the applicant’s detention and stating that the applicant’s criminal record showed that he had already been convicted of similar offences.
67. On 1 December 2009 the applicant lodged an appeal reiterating his previous arguments.
68. On 15 December 2009 the Constitutional Court declared the applicant’s constitutional complaint against the decision of 28 September 2009 inadmissible on the ground that it was no longer in effect since a fresh decision on the applicant’s detention had meanwhile been adopted.
69. On 16 December 2009 the Supreme Court dismissed the appeal. As to the applicant’s previous convictions, it stated:
“All appellants, save for ... Perica Oreb ... had already been convicted of similar criminal offences ...
Even though there is no previous conviction in the criminal record of Perica Oreb, the documents in the case file show that ... criminal proceedings are currently pending against him before the Dubrovnik County Court in which he has been convicted, by a judgment that has not yet become final, of a criminal offence under Article 173 § 2 of the Criminal Code and sentenced to two years’ imprisonment. These circumstances, contrary to the submissions of all the appellants, are relevant in assessing the conformity of their lifestyles with the laws.
The above circumstances together with the fact that all of the appellants, save for D.R., are heroin addicts and the accused ... Perica Oreb is unemployed ... justify the fear that, if at large, they would continue to commit the same or similar criminal offences and therefore [the decision to extend] their detention on the ground under Article 102 § 1 (3) of the Code of Criminal Procedure is correct.
...”
70. The applicant lodged a constitutional complaint, again challenging the grounds for and the duration of his detention.
71. On 12 February 2010 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure. The reasoning relied on the indictment, which charged the accused with conspiracy to supply a large quantity of heroin for a longer period of time, the danger of such criminal activity, the fact that they were heroin addicts and had no other income.
72. On 18 February 2010 the applicant lodged an appeal reiterating his previous arguments.
73. On 25 February 2010 the Constitutional Court declared the applicant’s constitutional complaint against the decision of 16 December 2009 inadmissible on the ground that it was no longer in effect since a fresh decision on the applicant’s detention had meanwhile been adopted.
74. On 12 March 2010 the Supreme Court dismissed the appeal, endorsing the reasoning of the impugned decision. As regards the applicant, it specifically stated that:
“The accused Perica Oreb is, according to his own statement, unemployed, with no assets and the psychiatric report shows that he is a heroin addict. Furthermore, he has been convicted of the offence under Article 173 § 2 of the Criminal Code by a judgment of the Dubrovnik County Court which has not yet become final”
75. On 12 May 2010 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in its decision of 12 February 2010.
76. On 14 May 2010 the applicant lodged an appeal reiterating his previous arguments.
77. On 23 June 2010 the Supreme Court dismissed the appeal, endorsing the reasoning of the impugned decision. As regards the applicant, it specifically gave the same reasons as in its decision of 12 March 2010.
78. On 24 August 2010 a three-judge panel of the Split County Court extended the applicant’s detention, again on the grounds under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure, reiterating the same reasoning as in the decision of 12 May 2010.
79. On 30 August 2010 the applicant lodged an appeal reiterating his previous arguments. As indicated above (paragraph 27) the applicant was convicted by the County Court and released on 20 September 2010.
80. The relevant provisions of the Code of Criminal Procedure (Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide:
“(1) Where the conditions for ordering detention under Article 102 of this Code have been fulfilled, and where the same purpose may be achieved by other preventive measures under this Article, the court shall order that one or more preventive measures are to be applied ...
(2) Preventive measures are:
1) prohibition on leaving one’s place of residence;
2) prohibition on being in a certain place or area;
3) obligation on the defendant to report periodically to a certain person or a State body;
4) prohibition on access to a certain person or on establishing or maintaining contact with a certain person;
5) prohibition on undertaking a certain business activity;
6) temporary seizure of a passport or other document necessary for crossing the State border;
7) temporary seizure of a driving licence.
...”
(1) Detention may be imposed only if the same purpose cannot be achieved by another [preventive] measure.
(2) Detention shall be lifted and the detainee released as soon as the grounds for detention cease to exist.
(3) When deciding on detention, in particular its duration, the court shall take into consideration the proportionality between the gravity of the offence, the sentence which ... may be expected to be imposed, and the need to order and determine the duration of detention.
(4) The judicial authorities conducting the criminal proceedings shall proceed with particular urgency when the defendant is in detention and shall review of their own motion whether the grounds and legal conditions for detention have ceased to exist, in which case the detention measure shall immediately be lifted.
(1) Where a reasonable suspicion exists that a person has committed an offence, that person may be placed in detention:
...
3. special circumstances justify the suspicion that the person concerned might reoffend ...
4. if the charges involved relate to murder, robbery, rape, terrorism, kidnapping, drug abuse, extortion or any other offence carrying a sentence of at least twelve years’ imprisonment, when detention is justified by the modus operandi or other especially grave circumstances of the offence.
81. The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999 and 190/2003) read as follows:
“(1) This Act regulates the execution of prison sentences.
...”
“The terms used in this Act have the following meaning:
1. A detainee is any person held in detention pursuant to a pre-trial detention order.
...
3. An inmate is any person sentenced to a prison sentence for a criminal offence, serving the prison sentence in a prison or in a jail.
...”
“(1) An inmate may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.
(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”
“ ...
(4) If a convict’s pre-trial detention has been ordered or extended in another set of criminal proceedings, the judge responsible for the execution of the prison sentence shall send him to serve the prison sentence which will start after the pre-trial detention has been lifted.
...”
82. In its decision of 17 March 2009, nos. U-III/4182/2008 and U-III/678/2009, in the case of Robert Peša, concerning, inter alia, the conditions of his pre-trial detention in Zagreb Prison, the Constitutional Court found a violation of Mr Peša’s right to human treatment and to respect for his dignity and also ordered the Government to adjust the facilities at Zagreb Prison to the needs of detainees within a reasonable time, not exceeding five years. It further held that a complaint about prison conditions to a judge responsible for the execution of sentences under the Enforcement of Prison Sentences Act was also to be used by persons in pre-trial detention. The relevant part of this decision reads:
“20. ... the Constitutional Court established the following obligatory legal opinion:
- the courts are obliged to apply the same procedures concerning requests for protection of the rights of convicted prisoners to the judges responsible for the execution of sentences with respect to such requests lodged by persons placed in pre-trial detention ...
...
22. For the reasons set out in points ... 17 [of this decision] the Constitutional Court finds that the general conditions of the applicant’s detention amount to degrading treatment and thus infringe his constitutional rights guaranteed under Articles 23 and 25 § 1 of the Constitution as well as his rights under Article 3 of the Convention.
The Constitutional Court has not addressed the possibility of granting the applicant just satisfaction for the above infringements of his constitutional and Convention rights because in the Croatian legal system there exists another, effective legal remedy in that respect (see the Constitutional Court’s decision no. U-III-1437/07 of 23 April 2008.”
83. In decision no. U-III-1437/2007 of 23 April 2008 the Constitutional Court found that the conditions of detention of a prisoner, P.M., in Lepoglava State Prison amounted to inhuman treatment. It also addressed the question of P.M.’s claim for just satisfaction. The relevant parts of the decision read:
“In particular, the Constitutional Court finds unacceptable the [lower] courts’ opinion that in this case a claim for non-pecuniary damage cannot be awarded under section 200 of the Civil Obligations Act on the ground that such a compensation claim is unfounded in law.
...
Section 1046 of the Civil Obligations Act defines non-pecuniary damage as infringement of the right to respect for one’s personal integrity. In other words, every infringement of one’s right to personal integrity amounts to non-pecuniary damage.
Section 19(2) of the Civil Obligations Act defines the right to personal integrity for the purposes of that Act as: the right to life, physical and mental health, reputation, honour, respect for one’s dignity and name, privacy of personal and family life, freedom and other aspects.
... it is to be concluded that in this case there has been a violation of human, constitutional and personal values because the applicant was in prison conditions which were incompatible with the standards prescribed by the Enforcement of Prison Sentences Act and also with the legal standards under Article 25 § 1 of the Constitution. For that reason the courts are obliged to award compensation for the infringement of the applicant’s dignity.
...”
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-2


ITEMID: 001-88632
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: REMMERSWAAL v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: The applicants, Ms Esterella Remmerswaal, Ms Esther Anna Remmerswaal-Berg, Mr Andreas Johannes Remmerswaal, Mr Johannes Petrus Maria Remmerswaal, Mr Bernardus Johannes Remmerswaal, Ms Johanna Margaretha Maria Remmerswaal, Mr Cornelis Petrus Maria Remmerswaal and Ms Margaretha Johanna Cornelia Remmerswaal, are Netherlands nationals who live in Den Haag, Pijnacker, Pijnacker, Maassluis, Bleiswijk, Berkel en Rodenrijs, Pijnacker and Nootdorp respectively. They were represented before the Court by Mr J.H. van Gelderen, a lawyer practising in Den Haag.
, may be summarised as follows.
The applicants are all close relatives of Mr Remmerswaal. Until 1998 he was married to Mrs A, and a daughter – the first applicant – was born out of this marriage in 1986.
Since 1991, Remmerswaal had an extramarital relationship with Ms Z. who fell pregnant in 1995. She decided to keep the child and informed Remmerswaal accordingly. On 11 October 1995, she gave birth to a boy, Y.
In May 1997, Remmerswaal informed A. of the existence of Y. and told her that he was the father. Remmerswaal and A. divorced shortly after. Their daughter stayed with A.
On 6 April 2000, Remmerswaal died.
On 9 October 2000, Z. filed a request on behalf of Y. with the Zutphen Regional Court (rechtbank) for a declaration of paternity in application of section 1:207 of the Netherlands Civil Code (Burgerlijk Wetboek, “BW”). She claimed that, every Mother’s Day since Y.’s birth, Remmerswaal had sent her flowers and that he had sent them postcards occasionally. He had visited them several times and had supported Z. financially up to an amount of about 8,000 Netherlands guilders (“NLG”) per year. In support of her claims, Z. submitted, inter alia, bank statements, correspondence from Remmerswaal mentioning payments to Z. and twenty photographs showing Remmerswaal with Y. (as well as Z.).
The applicants opposed the request, arguing that granting the requested declaration of paternity would constitute an unjustified interference with their rights under Article 8 of the Convention. In their opinion, such interference would be justified only if there had been family life within the meaning of Article 8 of the Convention between Remmerswaal and Y., which was not the case.
After a DNA test had indicated that Remmerswaal was indeed the father of Y., the Regional Court issued on 3 October 2002 the requested declaration of paternity. It considered that section 1:207 BW did not require the existence of family life within the meaning of Article 8 of the Convention between the begetter and his child. Furthermore, the applicants had not substantiated their claim that the declaration sought interfered with their rights under Article 8, let alone that it would constitute an unjustified interference.
The applicants lodged an appeal with the Arnhem Court of Appeal (gerechtshof). In these proceedings on appeal, Z. submitted further photographs, letters and postcards from Remmerswaal addressed to Y. and/or herself, as well as written statements from herself and her mother explaining the nature of the relationship between Remmerswaal, Y. and Z.
On 26 August 2003 the Court of Appeal confirmed the impugned decision. With regard to the applicants’ claim that the declaration violated their rights under Article 8, the Court of Appeal held that Y.’s interest in obtaining the declaration of paternity outweighed the applicants’ interests.
The applicants’ subsequent appeal in cassation was dismissed by the Supreme Court (Hoge Raad) on 25 March 2005. The Supreme Court found that, contrary to the applicants’ assertions, section 1:207 BW was in conformity with Article 8 of the Convention. It further held that, even if this domestic statutory provision offered more protection to the child than required by Article 8, the legislator was free to do so. According to the Supreme Court, the unwelcome “imposition” of a new family member born out of wedlock could not be regarded as an unjustified interference prohibited by Article 8. As in any event the interest of the child should always prevail over those of the begetter where it concerns establishment of paternity, this applied a fortiori to the begetter’s relatives.
No further appeal lay against this ruling.
Section 1:207 § 1 BW reads as follows:
“The paternity of a man – including when he has died – can be established by the court when the man is the begetter of the child or when the man as partner of the mother has consented to an activity which may have resulted in the child’s conception. A request to establish paternity can be filed by:
a. the mother, unless the child has reached the age of sixteen;
b. the child.”
The Explanatory Memorandum (Memorie van Toelichting) to this provision states that a declaration of paternity can be seen as the last resort to obtain the establishment of a legal family tie between a child and its father; not only in a situation where the begetter does not want to recognise the child, but also in a situation where the begetter has died and is thus no longer capable of recognising paternity. A failure to provide in such cases for the possibility of obtaining a judicial declaration of paternity (which exists in neighbouring legal systems) in domestic law would be contrary to Article 8 (in conjunction with Article 14) of the Convention in that it would allow the paternity of a child to remain undetermined (Kamerstukken (Parliamentary Documents) II, 1995-1996 session, 24, 649 no. 3, p. 8).


ITEMID: 001-103508
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: LIPKOWSKY AND MC CORMACK v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: The first applicant, Ms Daniela Lipkowsky, is a German national who was born in 1972. The second applicant is the first applicant’s daughter, Miss India Dawn McCormack, a German and Australian national who was born out of wedlock on 16 April 2005 in Germany. They both live in Konstanz and are represented before the Court by Mr R. Romeyko, a lawyer practising in Donaueschingen.
s, may be summarised as follows.
In 2003, in Thailand, the first applicant met the father of the second applicant, their daughter. From 2004 until June 2008 the first applicant lived some of the time in Germany and some of the time with the father in Australia. After the birth of the second applicant in April 2005 in Germany, she returned with the child to Australia in February 2006. From June to September 2006 and from January to June 2007 she lived with the child in Germany again. After the parents’ separation in September 2007, the applicants lived in a women’s refuge in Australia. The father deposited the applicants’ passports with an Australian court and introduced custody proceedings with the Federal Magistrates Court of Australia. On 8 May 2008 the Federal Magistrates Court of Australia provisionally ordered joint legal custody and allowed the first applicant to leave Australia with her daughter for a journey to Germany on or about 25 June 2008 but ordered them to return not later than 15 October 2008. On 15 June 2008 the applicants left to Germany and did not return to Australia. At first, the first applicant submitted sickness certificates, the last of which was valid until 24 November 2008. The custody proceedings in Australia are still pending.
On 5 August 2009 the father made an application to Karlsruhe District Court for the return of the second applicant under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”).
The father argued in particular that according to Australian law and the provisional order of 8 May 2008 of the Federal Magistrates Court of Australia they had joint legal custody rights and that he had agreed to the applicants’ leaving Australia only until 15 October 2008. The second applicant had been habitually resident in Australia since February 2006, when the applicants had come to Australia to live there and there had always been merely temporary reasons for the first applicant to return to Germany with their daughter. After their separation and according to the decision of 8 May 2008 the second applicant had lived three days a week with him and the rest of the week with her mother. He claimed that the first applicant’s allegations that he had violence and drug problems were wrong. They had only had frequent relationship problems and had therefore started couple therapy. His relationship with the second applicant was good and no psychological harm for the child was to be expected in the event of a relocation to Australia.
The first applicant opposed the father’s application and claimed that she had sole custody of the second applicant and that German law was applicable. She argued in particular that she and her daughter had never been habitually resident in Australia in the sense of the Hague Convention. From the child’s birth until 9 October 2008 the child had lived 654 days in Germany and only 612 days in Australia. She had in fact only returned three times to Australia, to give them another chance as a family and due to empty promises by the father. In the end this had not worked out, inter alia due to his serious drug problems. He had also massively threatened her in front of their daughter. After their separation she had only remained in Australia because she was forced to, as the father had taken away their passports. The father had also never exercised any custody rights, nor had he bonded with the child. The child refused to return and was afraid of her father. An obligation to return would thus be detrimental to the child’s wellbeing and would destroy her emotionally. Finally, she put forward that the child’s therapist was also opposed to contact between the father and the child as long as the child refused such contact.
The District Court heard the parents, the Youth Office and the child’s curator ad litem (Verfahrenspfleger). The Youth Office and the curator ad litem both reported that the child had fears in connection with the father and a possible relocation to Australia. The curator ad litem held that a relocation of the second applicant to Australia without the mother would endanger the child’s well-being.
On 21 September 2009 the District Court ordered the first applicant to immediately return her daughter to Australia. In the event of noncompliance by 10 November 2009, the first applicant or any other person with responsibility for the child would be obliged to hand over the child to the father or to a person named by him for the return of the child. Moreover, it allowed direct enforcement (unmittelbarer Zwang), access to and search of the house in which the child would remain and the support of the police for the enforcement of the decision. It also threatened the first applicant with the payment of a coercive fine of up to 20,000 euros (EUR) or with coercive detention of up to six months.
In application of Articles 3 and 12 of the Hague Convention, the District Court found that a) even if the applicants had spent a bit more time in Germany up to the summer 2008, the child had been “habitually resident” in Australia at that time, that b) under Australian law the parents had joint custody, which followed from the Family Law Act 1975 and from the decision of the Cairns Federal Magistrate Court of Australia of 8 May 2008, and that c) the first applicant had breached the father’s custody rights in October 2008 by retaining their daughter in Germany and that therefore the first applicant was to be ordered to return the child to Australia. It also held that the first applicant had not established that there was a grave risk that her daughter’s return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” in the sense of Article 13 of the Hague Convention. Firstly, the first applicant’s allegation that the father had been violent and aggressive and that the daughter was afraid of him would not collide with the obligation to return the child as she could be expected to accompany her daughter, take care of her in Australia and await the outcome of the pending custody proceedings there. Secondly, the fact that in the meantime the child had settled very well in Germany could not be decisive, as taking such factors into account would render the Hague Convention futile. Thirdly, the fact that the first applicant could not make a living in Australia and would be dependent on social welfare would not conflict with the obligation to return either, as she was on social welfare in Germany as well.
The first applicant appealed against the decision of the District Court. She argued in particular that the Hague Convention was not applicable, as she and her daughter had never been habitually resident in Australia in the sense of that Convention, and submitted further details regarding the conditions and the reasons for their stays in Australia and Germany during the relevant time. Moreover, she argued that as she had left Australia in June 2008 with the intention of never coming back, more than one year had elapsed before the father made his application for the return of the child pursuant to the Hague Convention. Therefore, Article 12 § 2 and not § 1 of the Hague Convention was applicable. She also requested the Court of Appeal to obtain an expert opinion on the question whether it would harm the child’s well-being if the child was forced to relocate to Australia. Furthermore, the applicant stressed that the father was still addicted to drugs and that he had already spent two and a half years in jail for drug trafficking. After she had pressed charges against him in October 2007 for taking away her passports, drugs were found in his house again and he received a further conviction. Finally, the first applicant argued that in the meantime she had been diagnosed with multiple sclerosis (MS) and that it was therefore impossible for her to live in tropical countries.
The father argued, inter alia, that the time-limit of one year according to Article 12 § 1 of the Hague Convention only started to run on 15 October 2008, the date the first applicant did not return to Australia as stipulated. He claimed that the first applicant’s allegations that he had drug problems were false. It was true that he had been convicted for using drugs in 1991, but he had been rehabilitated in 2003. Voluntary drug use screenings in December 2007 and April 2008 had been negative.
The second applicant’s curator ad litem pointed out that the child was well integrated in Konstanz. The curator ad litem also referred to an expert opinion that had been obtained by the Australian court in 2008, which reported social isolation, the lack of a stable framework and lack of support from the father as regards integration. In this expert opinion it had been found that as early as April 2008 the development of the second applicant was at risk. In addition to these aspects it was the clear wish of the second applicant to remain in Germany. The father and the possible relocation to Australia caused anxiety to the second applicant. However, the curator ad litem was not sure if these aspects were sufficient to speak of a grave risk of harm in the sense of Article 13 of the Hague Convention. Having regard to the warm relationship between the second applicant and the father, as described in the expert opinion, it would be in the interests of the child to re-establish contact.
On 18 March 2010 the Karlsruhe Court of Appeal, after hearing the parents, the curator ad litem and the second applicant on 26 November 2009 and having obtained an expert opinion on the applicant’s ability to return to Australia with regard to her illness, rejected the applicant’s appeal and confirmed the District Court’s decision.
The Court of Appeal firstly held that the second applicant had had “habitual residence” in Australia when the applicants left for Germany in June 2008. It pointed out that it was decisive where a person actually lived the central part of their life, and that habitual residence was in general established after a stay of six months. It found that it could not be said that the second applicant had been habitually resident in Australia before the applicants came back to Australia in June 2007. However, after the separation in September 2007, when the first applicant realised that she was unable to leave Australia because the father was in possession of the passports, she abandoned her apartment and domicile in Germany on 30 September 2007 and registered in Australia. Thereafter, regular contact took place between the father and the second applicant and the child was socially integrated through the father. Although the applicants had initially planned to stay in Australia only temporarily, they established a habitual residence there after a period of six months in April 2008. The fact that the applicant only remained in Australia because she was forced to do so was not decisive, because after abandoning her residence in Germany she no longer had any other home and she was also free to move and choose her residence within Australia.
The Court of Appeal secondly found that the first applicant had breached the father’s custody rights by not returning to Australia with their daughter on 15 October 2008. It referred to Article 21 of the Introductory Act to the German Civil Code (see relevant domestic law) and to the Federal Magistrates Court decision of 8 May 2008 provisionally ordering joint custody upon approval by both parties.
The Court of Appeal thirdly held that Article 12 § 2 of the Hague Convention was not applicable as the applicants’ leaving Australia on 15 June 2008 was still covered by the Federal Magistrates Court’s permission to leave “on or about 25 June 2008”. The wrongful retention thus only began in October 2008 when the applicants did not return to Australia as stipulated.
The Court of Appeal fourthly found that the requirements for an exception according to Article 13 of the Hague Convention had not been met in the instant case. Contrary to the first applicant’s allegations, the father had not tacitly agreed to the second applicant’s staying in Germany. The mere fact that he initially kept up contact with the second applicant until he requested them to return to Australia for the first time explicitly in August 2009 could not be interpreted as approval. As regards Article 13 § 1 b) of the Hague Convention and the alleged existence of 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”, the Court of Appeal held that with regard to the purpose of that Convention this provision required a narrow interpretation. Referring to the expert opinion the Court of Appeal held that even if a rapid deterioration of the first applicant’s state of health did happen, there were no grounds which made a return impossible. There was also no indication that it was not possible to adequately treat her condition in Australia. Hence, she was able to accompany her daughter and could thus not claim that the return of the second applicant to Australia would be harmful to the child’s well-being.
Finally, with regard to the fact that one of the judges who had taken part in the oral hearing of 26 November 2009 had been replaced by a new judge, the Court of Appeal referred to Article 309 of the German Code of Civil Procedure (Zivilprozessordnung) and in particular to the relevant case-law. It underlined that its decision had to be taken by those judges who were competent to do so at the time of the decision and not at the time of the oral hearing.
On 8 April 2010 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint for adjudication, in which they had complained about their obligation to relocate to Australia, the first applicant’s possible coercive detention and the Court of Appeal judge’s non-attendance at the oral hearing. It also rejected their request for an interim injunction. It held that there was no appearance of a violation of the applicants’ fundamental rights. These courts’ decisions were based on an arguable interpretation of Article 12 § 1 of the Hague Convention, in so far as they found that the provision allowed the person who has wrongfully removed or retained the child to be obliged to return the child personally. The hardships of such an interpretation for the parent being ordered to return the child had to be accepted as the consequence of the illegal abduction or retention.
On 19 July 2010 the Karlsruhe Court of Appeal after hearing the parents, the child’s curator ad litem and the Youth Office, again pointed out to the first applicant the possible consequences of non-compliance, namely the imposition of a coercive fine or coercive detention or the direct enforcement of the obligation. Referring to Article 90 of the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (see Relevant domestic law), the Court of Appeal underlined that direct enforcement could be ordered in an explicit court decision, but that direct enforcement in respect of a child would be admissible only where this was justifiable with a view to the child’s well-being and where no less restrictive measures were available to enforce the obligation.
According to Article 21 of the Introductory Act to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuche) “the legal relationship between a child and its parents is governed by the law of the country in which the child has his or her habitual residence”.
According to Article 309 of the German Code of Civil Procedure (Zivilprozessordnung) “a judgment may be delivered only by those judges who were present at the proceedings upon which the judgment is based”.
According to Article 90 § 1 of the German Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) the court may order direct enforcement in an explicit court decision, if 1) compulsory measures remained unsuccessful; 2) compulsory measures have no prospects of success; 3) the immediate enforcement of a decision is imperatively necessary. Under Article 90 § 2 direct enforcement in respect of a child shall not be allowed, where the order is aimed at delivery of the child for the purpose of contact. Moreover, direct enforcement in respect of a child shall be admissible only where this is justifiable in due consideration of the child’s well-being and where less restrictive measures are not available to enforce the obligation.
The relevant parts of Article 33 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit) are set out in the case of Paradis v. Germany (dec.) (no. 4065/04, 4 September 2007).
As regards the Hague Convention the relevant provisions are described in the Court’s judgment in the case of Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 57, 6 July 2010.


ITEMID: 001-101535
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GEORGIEV AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georgieva;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicants, Mr Miroslav Hristov Georgiev, Ms Rositsa Krumova Georgieva, Ms Miglena Miroslavova Hristova and Mr Hristo Miroslavov Hristov, are Bulgarian nationals who were born in 1968, 1964, 1985 and 1987 respectively and live in Svishtov. They are the members of one family.
The applicants were represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 August 1993 Mr H.Ts. bought a car in Austria on behalf of Ms J.A., who financed the purchase. After obtaining Austrian export license plates for the vehicle and an export transportation permit on 18 August 1993 Mr H.Ts. drove the car to Bulgaria. Both of the aforesaid documents indicated Ms J.A. as the owner of the vehicle.
It is unclear when Mr H.Ts. and the car entered Bulgaria.
On 3 September 1993 the car was stolen from a parking lot in Sofia.
On 6 September 1993 Mr H.Ts. reported the car as stolen and a preliminary investigation was opened on the 24th of the month against an unknown perpetrator. It was suspended on 30 November 1993 as the identity of the perpetrator could not be established.
In the meantime, on 16 October 1993 the police in the town of Lukovit found the car abandoned in a local parking lot. It had Bulgarian license plates which were found to have been stolen from another vehicle. The authorities did not check the car's engine and chassis numbers in the database of stolen vehicles and thus did not make the connection that it was the same car that had been stolen in Sofia on 3 September 1993.
The vehicle remained with the Lukovit police for over a year. On 7 February 1995 the Lukovit police asked the Svishtov District Customs Office what to do with it. As a result, the car was delivered to the Svishtov District Customs Office on 15 February 1995 in accordance with section 3a of the Customs Act (see “Relevant domestic law” below).
On an unspecified date the Svishtov District Customs Office declared the vehicle State property as a result of it having been abandoned. Also on an unspecified date it entered the vehicle in a public auction run by the Union of Bulgarian Automobilists.
Mr Georgiev (“the first applicant”) participated in the public auction of 20 October 1995 and purchased the car. On the same day he entered into a sale and purchase agreement for the vehicle with the Svishtov District Customs Office. He paid 141,000 old Bulgarian levs (approximately 2,858 German marks) to the Customs Office on 24 October 1995 and obtained the car registration documents from the Svishtov district public prosecutor's office on 4 December 1995.
On an unspecified date Mr H.Ts. informed the public prosecutor's office that the first applicant was driving his car and sought its assistance to retrieve it. As proof of ownership he presented the authorities with the transportation permit and the Austrian car purchase agreement.
In response, on 28 March 1997 the Sofia district public prosecutor's office reopened the preliminary investigation into the theft of the car, ordered that it be seized from its current registered owner, the first applicant, and be held as material evidence at the police station.
On 10 June 1997 the Svishtov traffic police seized the car from the first applicant, who filed a complaint on the same day with the Sofia district public prosecutor's office.
In spite of the aforesaid complaint of the first applicant, on 13 June 1997 the Sofia district public prosecutor's office concluded that there was no dispute in respect of the ownership of the vehicle and ordered that it be returned to Mr H.Ts, whom it considered to be the owner of the vehicle on the basis of the Austrian car purchase agreement and the transportation permit. On an unspecified date the first applicant appealed against this decision to the higher standing public prosecutor's office.
The car was handed over to Mr H.Ts. on an unspecified date.
In a decision of 14 July 1997 the Sofia regional public prosecutor's office quashed as unlawful the decision of 13 June 1997 of the Sofia district public prosecutor's office. It found that in view of the first applicant's complaint of 10 June 1997 a dispute in respect of the ownership of the vehicle had clearly arisen which precluded the possibility to hand over the vehicle to Mr H.Ts. The Sofia regional public prosecutor's office therefore ordered that the car be seized from Mr H.Ts. and that it be held for safekeeping by the police. It also invited the first applicant to initiate civil proceedings in respect of his ownership claim to the vehicle. Both the first applicant and Mr H.Ts. appealed against this decision.
Separately, the first applicant complained on 10 September 1997 to the Central Customs Office about the seizure of the car and the actions of the public prosecutor's office. In its reply of 8 October 1997 the Central Customs Office informed the first applicant that they could not act on his complaint and stated that it considered the actions of the Svishtov District Customs Office to have been lawful.
In a decision of 11 September 1997 the Chief Public Prosecutor's Office quashed the decision of 14 July 1997 of the Sofia regional public prosecutor's office. It considered that Mr H.Ts. was the “unquestionable initial owner” of the vehicle and that the police had erroneously handed the car over to the customs authorities. Thus, it found that the “owner of the car”, Mr H.Ts., had been wrongly denied possession of it and that it should be returned to him while the other claimant – the first applicant – should prove his ownership rights in court. Accordingly, the Chief Public Prosecutor's Office ordered that the car be handed over, once again, to Mr H.Ts., who was to undertake not to sell it until the preliminary investigation had been concluded.
On an unspecified date the car was entrusted to Mr H.Ts. for safekeeping.
In response to a separate request from the first applicant that the evidence in the preliminary investigation – the vehicle – be handed over to him, on 2 October 1997 the Chief Public Prosecutor's Office ruled a second time on the decision of the Sofia regional public prosecutor's office of 14 July 1997. It dismissed the first applicant's request, but found that there was a clear dispute over the ownership of the vehicle and ordered that in accordance with Article 110 of the Code of Criminal Procedure (see “Relevant domestic law” below) the car remain with the authorities until the property dispute had been resolved in the civil courts, where the two parties needed to make their respective claims. The Chief Public Prosecutor's Office also criticized the actions of the Lukovit police and the customs office for having sold the vehicle to the first applicant instead of promptly returning it to its “owner” – Mr H.Ts.
In a further decision of 6 November 1997 the Chief Public Prosecutor's Office ruled on an appeal filed by the first applicant in the context of the preliminary investigation into the theft of the car. It dismissed it and upheld the decision to hand over the vehicle to Mr H.Ts. as it considered him to be the “initial owner” of the vehicle because he had purchased and imported it from Austria. It further noted that as the first applicant also laid claim to the car, he should prove his case in court, which was the only competent body that could adjudicate on the matter.
On an unspecified date the first applicant complained to the Chief Public Prosecutor about the contradictory decisions of his Office of 11 September and 2 October 1997.
In a decision of 25 November 1997 the Chief Public Prosecutor upheld the decision of 11 September 1997 and quashed the one from 2 October 1997 because the latter had been issued in response to an appeal on which the Chief Public Prosecutor's Office had already ruled. Nevertheless, he also reasoned that Mr H.Ts. had been the right person to return the car to as it had been stolen from him. The Chief Public Prosecutor further noted that the first applicant should initiate proceedings in the civil courts in respect of the ownership of the car.
On an unspecified date the first applicant complained once again to the Central Customs Office about the seizure of the car. In its reply dated 21 January 1999 the Central Customs Office informed him that it could not act on his complaint because the customs authorities had acted within their competences by taking charge of the vehicle under section 3a of the Customs Act and then selling it at a public auction to him.
In response to a further appeal by the first applicant in the context of the preliminary investigation into the theft of the car, on 4 August 1998 the supreme cassation public prosecutor's office instructed the Sofia city public prosecutor's office to take immediate action to continue the investigation, which had stalled in 1997. It also ordered the latter to investigate the first applicant's allegations that Mr H.Ts. had presented forged ownership documents in respect of the vehicle.
In a decision of 18 February 2000 the supreme cassation public prosecutor's office ruled on a further appeal by the first applicant. This time it found in his favour and revoked the decision of the Chief Public Prosecutor of 25 November 1997, which had found the seizure of the car and its handing over to Mr H.Ts to have been lawful. The supreme cassation public prosecutor's office also found that it had been unlawful to hand over the vehicle to the latter because he was clearly not, and never had been, the owner, because both the Austrian car purchase agreement and the transportation permit identified him as being only the transporter, while Ms J.A. was indicated as being the vehicle's owner in both of those documents. However, as Ms J.A. had never filed a complaint that her car had been stolen it was considered necessary that she be questioned. Therefore, the supreme cassation public prosecutor's office ordered that the car be seized and noted that when a dispute of ownership arises the individuals involved should refer the matter for resolution by the civil courts.
A police order was issued on 18 April 2000 to seize the car but the police were unable to find Mr H.Ts. or the vehicle. Therefore, on 8 May 2000 the car was declared stolen.
On 15 November 2000 the Sofia Investigation Service informed the Sofia city public prosecutor's office that it had been unable to find the car or Mr H.Ts.
The first applicant continued petitioning the authorities to find the car.
In letters of 2 November and 29 December 2001 the supreme cassation public prosecutor's office informed him that the authorities were continuing their search for the car.
On 8 March 2002 the Chief of the 9th Police Station in Sofia informed the first applicant that they were continuing their search.
On 18 October 2002 the first applicant filed a further petition with the supreme cassation public prosecutor's office. In a reply dated 30 October 2002 the latter informed him that it had been unlawful to hand over the car to Mr H.Ts. as he was not its owner. However, it considered that the owner was Ms J.A. It also considered that the public prosecutor's office carried no liability for the failure of the Lukovit police to check the vehicle's chassis and engine numbers and noted that it “had not sold [the first applicant] anything” and had not received any of the money he had paid for the vehicle. The supreme cassation public prosecutor's office also noted that it was not the body which could rule on who held title to the car and expressed reservations in respect of a possible property dispute with Ms J.A.
Thereafter, the authorities continued looking for the car and Mr H.Ts., but without any apparent success.
The Customs Act of 1960 (“the Customs Act”) required all persons to immediately inform the customs authorities if they found a vehicle belonging to a foreign national who had left the country. If the vehicle was not claimed within six months it was considered abandoned and became State property (section 3a).
Abandoned vehicles held by the customs authorities were to be sold within thirty days of becoming State property (section 100 of the Regulation for Implementing the Customs Act).
The Customs Act was replaced in 1999 by a new act of the same name.
Section 78 of the Property Act, as in force at the relevant time, provided that a buyer who acted in good faith in purchasing movable property against consideration from a non-owner obtained clear title to the said property. However, the former owner of stolen or lost movable property had the right to claim it from a buyer acting in good faith within three years of the date of the theft or loss. This possibility did not exist if the buyer had purchased the property from a State or municipal enterprise.
The relevant provisions of the Code of Criminal Procedure of 1974 (“the Code”) have been summarised in the case of Karamitrov and Others v. Bulgaria (no. 53321/99, §§ 29-33, 10 January 2008).
The relevant provisions of the State and Municipalities' Responsibility for Damage Act of 1988 (“the SMRDA”) and the Obligations and Contracts Act, as well as the pertinent practice of the domestic courts during the relevant period have been summarised in the case of Karamitrov and Others (cited above, §§ 34-45).
As part of their submissions, the applicants presented copies of the judgments in a case brought by an individual under section 2 of the SMRDA which was appealed all the way to the Supreme Court of Cassation (решение от 2006 г. на ВКС по гр. д. № 131/2006 г., ІV г.о.). In that case the public prosecutor's office had seized a car purchased by the claimant from a third party as it had previously been stolen from another individual. In reaching their decisions the domestic courts noted the restrictive interpretation of the SMRDA in respect of the liability of the State under section 2 of the Act. As the case related to decisions and actions of the investigation and prosecution authorities, it thus fell to be examined only under the said section, which, however, did not provide for liability in such instances. Therefore, the domestic courts rejected the action, but in doing so they also noted that the claimant had failed to appeal against the decisions of the investigation and prosecution authorities and had not initiated a property dispute.


ITEMID: 001-67639
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: SLAVIC UNIVERSITY IN BULGARIA and OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The first applicant is the “Slavic University in Bulgaria”, a Bulgarian legal person (the “University”). It is represented before the Court by Mr A. Krastev, a lawyer practising in Sofia. The other applicants are 617 students and teachers listed in the annex (the “other applicants”, the “students” or the “teachers”). They have joined the application of the University without filing separate submissions with the Court.
s, may be summarised as follows.
On 21 July 1995 the National Assembly, as a result of a private initiative, granted the University the status of higher education institution.
On 27 December 1995 a new Higher Education Act was adopted, which introduced a new statutory framework within which higher education institutions were required to function.
By decision of 15 February 1999 the Council of Ministers proposed to the National Assembly to revoke the status of a higher education institution of the University. As grounds for its proposal, the Council of Ministers indicated that, inter alia, (1) the University operated without internal rules and regulations, as well as without management bodies, elected in accordance with the law; (2) all its general assemblies had not been conducted in conformity with the statutory requirements; (3) it had been accepting students in violation of the State's university admission criteria, which were more than the maximum permissible number and for courses which had not been approved by the State; (4) the University had been appointing academic staff in violation of the applicable rules; (5) it had not had an approved budget prior to 1997 and after that had two budgets approved by two separate and competing administrative bodies; (6) it had been operating in violation of the Accountancy Act as it lacked a balance sheet for 1996 and did not have any accounting documents for 1995 and 1997. Allegedly the applicants were not officially informed of the procedure undertaken by the Council of Ministers.
On 22 February 1999 the University appealed against the decision of the Council of Ministers to the Supreme Administrative Court.
On 5 March 1999 the Supreme Administrative Court refused to examine the appeal. It found that the proposal by the Council of Ministers had no direct effect on the rights of the University as it was only a proposal to the National Assembly, was not therefore an individual administrative act and was not subject to judicial review. Upon further appeal, the extended panel of the Supreme Administrative Court, on an unspecified date, refused to examine the appeal on similar grounds.
By decision of 10 March 1999 the National Assembly revoked the status of the University as a higher education institution. It authorised the Council of Ministers to deal with all matters in connection with the revocation of the status of the University. It expressly addressed the option for the students to continue their studies at other universities, which subsequently led to the adoption by the Council of Ministers on 27 July 1999 of a special regulation which specified the procedures related thereto. No reasons for the decision of the National Assembly were given and the applicants were allegedly not informed of the procedure. The decision was promulgated on 16 March 1999.
On an unspecified date the University appealed against the decision of the National Assembly to the Supreme Administrative Court, arguing that it was an individual administrative act which was subject to judicial review. On 9 April 1999 the Supreme Administrative Court refused to examine the appeal on the basis that acts of the National Assembly were not subject to judicial review. Upon further appeal, on 28 May 1999 the extended panel of the Supreme Administrative Court also refused to examine the appeal on similar grounds.
The National Assembly's decision of 10 March 1999 was challenged before the Constitutional Court by fifty-four members of parliament. They argued that the decision was unconstitutional, that at the time it was adopted the University had corrected the alleged violations and that its operations had been in compliance with the statutory requirements. On 6 July 1999 six judges from the Constitutional Court voted in favour of declaring the decision of 10 March 1999 unconstitutional, whereas five judges voted against. Accordingly, as the Constitutional Court failed to obtain the seven votes required for a majority decision, the court rejected the challenge by judgment of the same day.
The Constitution provides, inter alia, that citizens and organizations shall have the right to set up higher education institutions in accordance with the conditions and procedures established by statute and demands that the education they provide must comply with the requirements set by the State (Article 53 § 3). It also provides that the State shall exercise control over all forms and levels of education, including higher education institutions (Article 53 § 4).
The Higher Education Act of 1958 (the “1958 Act”), which was in force at the time the University was established, regulated the establishment and functioning of higher education institutions. It did not differentiate between public and private institutions. The Act provided that higher education institutions were set up by the National Assembly. It also detailed the different grades of academic staff, determined their hierarchy and their relationship with the institutions. The status of students and their relationship with the higher education institutions was also regulated. The 1958 Act was repealed by the Higher Education Act of 1995.
The Higher Education Act of 1995 (the “1995 Act”) regulates the establishment, functions, management and financing of higher education institutions, which could be public or private.
The 1995 Act, as in force during the relevant period, envisaged special control, supervisory and decisionmaking functions for the legislature and the Government. For example, (1) the National Assembly created, transformed and closed higher education institutions; (2) the Council of Ministers developed and supervised implementation of Government policy in the sphere of higher education; approved academic qualification grades and the requirements towards all courses; determined the maximum number of undergraduates and postgraduates taught by each higher education institution and approved the rules for providing students with housing and other social benefits; (3) the Ministry of Education facilitated communication between the State and the higher education institutions and maintained the register of approved academic qualifications; (4) the National Accreditation Agency, a special administrative body created under the 1995 Act, was designated to monitor, assess and determine whether a particular higher education institution complied with the State's requirements. A lack of an accreditation or receipt of two negative assessments from this body was a basis for closing a higher education institution.
The 1995 Act, as in force during the relevant period, also regulated the management structure of State higher educational institutions, their hierarchy, procedures for appointment, term of office and powers. It also determined the conditions and requirements towards the teaching provided by higher educational institutions. The 1995 Act further provided that higher education institutions enjoy academic autonomy, which consisted of academic freedoms, academic self-government and sanctity of the territory of the institutions. Within this context, higher education institutions were required to adopt internal rules and regulations, which would include, inter alia, procedures for internal conflict resolution.