ITEMID: 001-86533
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF RODIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicants were born in 1946, 1953, 1966 and 1972 respectively. They are currently detained in Mostar Prison in Bosnia and Herzegovina.
7. On different dates the applicants were convicted of war crimes perpetrated against Bosniac (at the time, Bosnian Muslim) civilians during the 1992-95 war in Bosnia and Herzegovina. They were committed to Zenica Prison on 16 August 2004 (Mr Rodić), on 4 February 2005 (Mr Pušara), on 10 May 2005 (Mr Knežević) and on 12 October 2004 (Mr Baković). Zenica Prison is the only maximum-security prison in the Federation of Bosnia and Herzegovina (a constituent Entity of Bosnia and Herzegovina). Its population is mostly made up of Bosniacs (approximately 90 per cent).
8. On 7 March 2005 Mr Pušara asked to be transferred to Foča Prison, in the Republika Srpska (the other constituent Entity of Bosnia and Herzegovina), in order to be closer to his family. On 28 March 2005 the Ministry of Justice of the Federation of Bosnia and Herzegovina (“the Federation Ministry”) informed him that a prison transfer between the two Entities was not allowed.
9. On 2 May 2005 at 6 p.m. offensive graffiti referring to Mr Rodić and Mr Baković were discovered in the prison canteen. Those responsible for the graffiti were never identified.
10. On 19 May 2005 the Federation Ministry informed Mr Knežević also that a prison transfer between the two Entities was not allowed.
11. On 4 June 2005 at 9 p.m., following the screening of a video which showed a 1995 killing of Bosniacs from Srebrenica, another prisoner, N.F., lured Mr Pušara into his cell and punched him in the eye with a clenched fist. On 7 June 2005 Mr Pušara was treated in a civil hospital in Zenica. According to an official report, the attack was ethnically motivated, the attacker had a piece of glass in his hand and the consequences could have been more serious had it not been for the intervention of another prisoner.
12. On 5 June 2005 at 4 p.m. another prisoner, J.H., attacked Mr Baković in the prison canteen. The prison guards intervened after Mr Baković had received several blows to the head. He was treated in a civil hospital in Zenica on the same day.
13. On 8 June 2005 the applicants declared a hunger strike in order to attract public attention to their situation. They were immediately placed in the Zenica Prison hospital unit.
14. On the same day, the Disciplinary Board of Zenica Prison sentenced N.F. and J.H. to twenty days’ solitary confinement in connection with the incidents of 4 and 5 June 2005.
15. On 10 June 2005 the Federation Ministry set up an ad hoc commission of independent experts (“the ad hoc commission”) with a view to investigating the incidents of 4 and 5 June 2005.
16. On 15 June 2005 the Ministry of Justice of Bosnia and Herzegovina (“the State Ministry”) ordered the applicants’ transfer to Istočno Sarajevo Prison, in the Republika Srpska, for security reasons.
17. On 19 June 2005 the ad hoc commission issued its final report. It referred to prison records showing that the prison management had been aware of the need to protect the applicants from the time of their arrival in Zenica Prison. The prison management confirmed to the ad hoc commission that special measures had indeed been considered, but that it had been unable to introduce any such measures because of the lack of prison staff, the lack of space (80 prisoners more than the prison’s official capacity), the lack of another maximum-security prison in the Federation of Bosnia and Herzegovina and the fact that prison transfers between the Entities were not envisaged. Seven other prisoners detained in Zenica Prison (six Bosniacs and one Serb), who had also been convicted of war crimes, testified before the ad hoc commission, claiming that the applicants had good reasons to fear for their lives. The witness of Serb origin, D.S., maintained that he had also been and still was subjected to persecution by his fellow prisoners because of the nature of his offence. The report criticised the prison authorities for their failure to duly protect the applicants.
18. On 21 June 2005 the Federation Ministry ordered that the applicants remain in Zenica Prison, in its hospital unit, until further notice.
19. On 23 June 2005 Zenica Prison entrusted a four-member team (which included three medical doctors) with the monitoring of the applicants’ state of health (because of their hunger strike).
20. On 1 July 2005 the applicants discontinued their hunger strike in compliance with the interim measures indicated by the Court (see paragraph 4 above).
21. On 18 July 2005 a delegation of the Parliamentary Assembly of Bosnia and Herzegovina visited Zenica Prison and interviewed the prison management and the applicants. The prison management maintained that the separation of prisoners according to the nature of their offences was not feasible. The applicants, for their part, accused the prison staff of being uncaring. Two reports based on the above interviews were submitted to the Parliamentary Assembly of Bosnia and Herzegovina: on 27 July 2005 and on 16 September 2005. The first report required, without going into any details, that the applicants’ human rights be secured. The second report required, among other things, that equality of conditions between the applicants and other prisoners be secured or, if this was impossible, that the applicants be transferred to another prison.
22. On 18 July 2005 the Disciplinary Board of Zenica Prison found M.H. guilty of an offence against prison discipline (incitement to the attacks on the applicants of 4 and 5 June 2005) and sentenced him to fifteen days’ solitary confinement. Furthermore, the prison management filed criminal charges against M.H.
23. On 12 August 2005 the applicants complained to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) about the failure to enforce the decision of 15 June 2005 ordering their transfer to another prison (under Article 6 of the Convention) and about the conditions of their detention in Zenica Prison (under Article 3 of the Convention). They also applied for interim measures (pursuant to Rule 77 of the Constitutional Court’s Rules).
24. On 24 November 2005 Mr Baković was transferred to another prison in the Federation of Bosnia and Herzegovina, namely Mostar Prison.
25. On 28 November 2005 the three applicants who had remained in Zenica Prison declared a new hunger strike protesting against the conditions of their detention in the hospital unit. On 30 November 2005 a team appointed by the prison management met with them. It would appear that the applicants acknowledged that some outstanding problems had meanwhile been resolved. However, they did not discontinue their hunger strike until 9 December 2005.
26. On 14 December 2005 Mr Rodić was transferred to Mostar Prison.
27. On 20 December 2005 the Constitutional Court decided not to apply interim measures in the present case.
28. On 20 September 2006 the Constitutional Court decided that it lacked subject-matter jurisdiction to examine the complaint about nonenforcement of the decision of the State Ministry of 15 June 2005, as the impugned decision concerned neither the applicants’ “civil rights” nor a “criminal charge” against them. As to the complaint about the conditions of the applicants’ detention, the Constitutional Court deemed that the applicants should have petitioned prison inspectors before addressing the Constitutional Court, and dismissed the complaint on nonexhaustion grounds.
29. On 19 October 2006 the remaining two applicants were also transferred to Mostar Prison.
30. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides non-judicial preventive machinery to protect persons deprived of their liberty. It is based on a system of visits by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”).
31. During its years of activity in the field, the CPT has developed standards relating to the treatment of persons deprived of their liberty. The following are its standards concerning inter-prisoner violence (see the CPT standards, document no. CPT/Inf/E (2002) 1 - Rev. 2006, p. 23):
“The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks.
Tackling the phenomenon of inter-prisoner violence requires that prison staff be placed in a position, including in terms of staffing levels, to exercise their authority and their supervisory tasks in an appropriate manner. Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary. The existence of positive relations between staff and prisoners, based on the notions of secure custody and care, is a decisive factor in this context; this will depend in large measure on staff possessing appropriate interpersonal communication skills. Further, management must be prepared fully to support staff in the exercise of their authority. Specific security measures adapted to the particular characteristics of the situation encountered (including effective search procedures) may well be required; however, such measures can never be more than an adjunct to the above-mentioned basic imperatives. In addition, the prison system needs to address the issue of the appropriate classification and distribution of prisoners.
Prisoners suspected or convicted of sexual offences are at a particularly high risk of being assaulted by other prisoners. Preventing such acts will always pose a difficult challenge. The solution that is often adopted is to separate such prisoners from the rest of the prison population. However, the prisoners concerned may pay a heavy price for their – relative – security, in terms of much more limited activities programmes than those available under the normal prison regime. Another approach is to disperse prisoners suspected or convicted of sexual offences throughout the prison concerned. If such an approach is to succeed, the necessary environment for the proper integration of such prisoners into ordinary cell blocks must be guaranteed; in particular, the prison staff must be sincerely committed to dealing firmly with any signs of hostility or persecution. A third approach can consist of transferring prisoners to another establishment, accompanied by measures aimed at concealing the nature of their offence. Each of these policies has its advantages and disadvantages, and the CPT does not seek to promote a given approach as opposed to another. Indeed, the decision on which policy to apply will mainly depend on the particular circumstances of each case.”
32. Besides its yearly general reports which are always public, the CPT periodically draws up reports on individual States, which are strictly confidential. Nevertheless, if a country fails to cooperate or refuses to improve the situation in the light of the CPT’s recommendations, the CPT may decide to make a public statement. Of course, the State itself may at any time request publication of the CPT’s report, together with its comments.
33. On 21 December 2004 the Report on the visit to Bosnia and Herzegovina carried out by the CPT from 27 April to 9 May 2003 was published, further to the request of Bosnia and Herzegovina. The following are its relevant parts:
“...
57. Inadequate staffing levels constitute a major problem throughout the prison system of Bosnia and Herzegovina... Deficiencies were also observed at Zenica Prison, where only 24 prison officers were present from 3 p.m. to 7 a.m. for a population of 613 prisoners. Consequently, a number of prison officers in different establishments indicated that they frequently felt that their own security was compromised.
58. The CPT recommends that the relevant authorities conduct a review, without delay, of current staffing arrangements in all prison establishments throughout Bosnia and Herzegovina. The objective should be to ensure that the number of prison officers employed is sufficient to guarantee both staff safety and the physical and mental integrity of inmates.
...
63. Material conditions varied in different parts of Zenica Prison...
Newly-arrived sentenced male prisoners spent the initial period (anywhere from four days to a month) in a distinct reception section containing three dormitories, which were furnished only with bunk beds and imparted a rather austere appearance. Though their occupancy levels were acceptable at the time of the visit, the dormitories would be overcrowded if all of the bunk beds were full.
After the reception period, prisoners were allocated to Pavilions I or III.
64. Pavilion I was the largest within the prison complex (official capacity: 320; 312 occupants at the time of the visit). It was divided into seven large multi-occupancy units (“kolektive”), each containing from three to fifteen dormitories, which could accommodate anywhere from two to twenty persons; in contrast, the dormitories in a renovated unit (I-7) were designed for two to four occupants, a far preferable configuration. In addition to dormitories, the units comprised living areas and sanitary facilities. Furnishings were on the whole suitable and included lockers, as well as bunk beds, tables and chairs. However, the unrenovated areas were quite dilapidated, and the damage from the February 2003 riot was evident on the roofs and in the broken windowpanes. Further, Unit I-1, which was used to accommodate older prisoners (over the age of 45), was overcrowded, there being 58 occupants (allocated between three dormitories) for an official capacity of 46. Its living area/television room, equipped solely with a few rows of benches, imparted a rough, worn impression.
65. Pavilion III (official capacity: 63; 42 occupants at the time of the visit) comprised thirteen dormitories. Its refurbishment had just commenced and the material conditions were similar to those observed in the unrenovated parts of Pavilion I.
66. The recently-renovated Pavilion V (official capacity: 118; 94 occupants at the time of the visit) was separated from the other parts of the prison by a gate; it comprised three units and was in a good state of maintenance and repair. The Pavilion accommodated prisoners who had demonstrated good behaviour, and one of its units (capacity: 35) was used for placement of minors and young adults as well as older inmates; though they slept in separate dormitories, those categories of prisoners were invariably associating with each other (cf. in this regard paragraphs 53, 55, and 105).
67. The two-storey Pavilion II offered cell-type accommodation with integral sanitation; with an official capacity of 88, it had 72 occupants at the time of the visit. The ground floor was used to accommodate remand prisoners and administrative detainees; the first floor held the prisoners undergoing segregation (“usamljenje”) or increased supervision (“pojačan tretman”), or solitary confinement (“samica”) as a disciplinary sanction. Most of the cells on each floor measured 10 m² and were used for single or double occupancy (even if its occupants were formally undergoing “solitary” confinement). The exception was a multi-occupancy cell located on the first floor, used for “increased supervision” placements. It measured 21 m² and was accommodating up to 4 prisoners at the time of the visit, which is an acceptable occupancy level. However, the cell was equipped with 8 beds; it is not sufficiently large for such a number of prisoners.
The delegation observed two serious shortcomings in the segregation and disciplinary cells: certain of them had only one bed for two occupants and the toilets were not partitioned (in contrast with the cells on the ground floor). This meant in practice that inmates were sleeping on mattresses placed on the floor, and were obliged to comply with the needs of nature in full view of their cellmates. Such a situation is totally unacceptable.
68. Pavilion II also contained five cells (three on the ground floor and two on the first floor) used for placement of inmates in a state of agitation; one of them was a padded cell (No 10, on the ground floor). Sheets of paper bearing the inscription “Cell under video surveillance” were attached with tape to the doors of three of the cells (No 10, on the ground floor, and Nos. 31 and 32, on the first floor); however, given that no monitors had been supplied, there was no operational video surveillance system. Except for an unpartitioned lavatory, the cells were devoid of furnishings or fixtures; staff indicated that mattresses were provided if persons were placed in the cells. As already indicated, metal panels covering the windows in four of the cells had apparently been removed a few days prior to the visit; however, one of the cells (No 29) still had such a panel, blocking access to natural light. Having regard to the other information gathered during the visit concerning these cells (cf. paragraph 46), the CPT recommends that immediate steps be taken to ensure that prisoners are never placed in a dark cell for any length of time whatsoever (cf. in this regard Rule 37 of the European Prison Rules); further, the metal panel covering the window in cell No 29 should be removed forthwith.
69. In the course of a brief visit to the semi-open sections (Pavilions VI and VII), the delegation observed that the material conditions offered to inmates were of a good standard.
70. To sum up, serious shortcomings in terms of material conditions of detention – due to an inadequate infrastructure or to a deterioration of the premises (often exacerbated by overcrowding) – were present in varying degrees in the establishments visited.
As a priority, the CPT recommends that serious efforts be made to reduce occupancy levels in prisons; the aim should be to provide a minimum of 4 m² of space per person. Further, any cells measuring less then 6 m² should be taken out of service as prisoner accommodation. Where necessary, the partitioning of toilet facilities in multi-occupancy cells should also be improved...
...
73. At the time of the visit, some 60 % of the sentenced prisoners (370 out of 586) at Zenica Prison worked in industrial (different types of metalwork, employing up to 200 inmates) or agricultural settings and in general services (kitchen, bakery, laundry, canteen, audio/video broadcasting within the prison, maintenance and gardening, car repairs). The establishment’s industrial workshops were dusty relics of another era, equipped with crumbling, outdated machinery, and providing a hazardous work environment. In contrast, working conditions in the other facilities were satisfactory.
A large area with a hard surface was available for sports such as football and basketball; however, at least at the time of the visit, no such games were organised. Instead, inmates were found to be standing or wandering around the sports area in large groups. Prison management indicated that other sports and recreational activities were also offered to sentenced inmates (including bowling, boxing, table tennis, karate, chess, painting, woodcarving, and other crafts), and that occasional film projections and live musical/variety performances (staged by prisoners) were organised in a theatre located in Pavilion I.
A limited number of inmates took part in educational activities...
74. The fact that Zenica Prison is the only closed prison in the Federation undoubtedly creates obstacles to the delivery of differentiated regimes and treatment programmes tailored to individual inmates and corresponding to variables such as the type of offending behaviour, length of sentence, etc. In this context, the delegation found that there was a lack of differentiation of regimes/treatment programmes for different categories of sentenced prisoners at the establishment or, indeed, a proper system for classification/allocation. As far as the delegation was able to ascertain, a coherent policy for the execution of sentences – including a policy for early release and the provision of social support to prisoners – was absent. Further, the role envisaged for the educators was less than proactive.
The CPT invites the relevant authorities to develop programmes tailored to the profile of different types of prisoners, in light of the foregoing remarks.
75. To sum up, although sentenced prisoners at Zenica Prison did have an appropriate amount of daily time outside their units, there remained a gap between the aspirations professed by management and staff and the programmes of activities which were actually being delivered to many of them; about a third did not benefit from a positive regime which might encourage them to address their offending behaviour. The CPT recommends that the relevant authorities take the necessary steps to ensure that all prisoners at Zenica Prison have access to an appropriate range of work, educational, sports and recreational activities.
...
78. The standard of health care facilities varied widely; they were excellent in Mostar and generally very good in Banja Luka, but were poor in Zenica and [Istočno] Sarajevo Prisons...
The CPT recommends that the health care facilities at Zenica and [Istočno] Sarajevo Prisons be upgraded.
...”
34. On 16 July 2007 the CPT published its Preliminary observations made by the delegation of the CPT which visited Bosnia and Herzegovina from 19 to 30 March 2007, further to the request of Bosnia and Herzegovina. Its relevant part reads as follows:
“... [L]et me stress that co-operation also entails making concerted efforts to comply with the recommendations made by the CPT following its previous visits. In this respect, the delegation was concerned to find that no fundamental measures had been taken to improve the situation in the prisons visited or as regards forensic psychiatric patients. This clear lack of co-operation means that, if there is no prompt reaction by the authorities, the Committee may have no other choice than to consider initiating the procedure for making a public statement under Article 10, paragraph 2, of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment...
The delegation is also seriously concerned about the inter-prisoner violence that appears to be prevalent in the prisons visited. In Zenica Prison, it heard about a number of incidents of inter-prisoner violence, which in at least one instance included one inmate being ordered to kill another prisoner. Not surprisingly, certain prisoners appeared to be fearful for their safety...
In all prisons visited, there was a lack of appropriate accommodation both for vulnerable prisoners and for those requiring increased levels of security. In Zenica Prison, a unit was under construction for the separate accommodation of vulnerable prisoners and plans to transform the forensic psychiatric annexe into a high security unit were being mooted. In Foča Prison, work was already underway to create a high security unit. Such units are sorely needed; there are currently no safe and secure facilities in which to hold dangerous prisoners at either State or Entity level, as the findings from this visit illustrate all too clearly...
Other issues such as activities for prisoners, health care services, staffing, complaints and inspections will be elaborated upon in the visit report...”
35. The Constitution entered into force on 14 December 1995, as part of the General Framework Agreement for Peace in Bosnia and Herzegovina. It provides for the direct application of the European Convention on Human Rights in Bosnia and Herzegovina and for the Convention to take precedence over all other law (Article II § 2 of the Constitution). Furthermore, the entire State apparatus (“Bosnia and Herzegovina, and all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities”) is under a duty to “apply and conform to” that Convention (Article II § 6 of the Constitution).
36. The Constitutional Court of Bosnia and Herzegovina was set up pursuant to the Constitution. It has jurisdiction to deal with practically any allegation of a breach of the European Convention on Human Rights. It may award compensation for non-pecuniary damage and adopt any interim measure it deems necessary (Rules 76 § 2 and 77 of the Constitutional Court’s Rules – Pravila Ustavnog suda Bosne i Hercegovine; published in the Official Gazette of Bosnia and Herzegovina (“OG BH”) no. 60/05 of 30 August 2005; amendments published in OG BH 76/05 of 31 October 2005).
37. This Act has been in force since 1 December 1998. The relevant parts read as follows:
“Every inmate is entitled to lodge a complaint with the Ministry [of Justice of the Federation of Bosnia and Herzegovina] ... against members of prison staff alleging a violation of his or her rights.”
“In order to ensure a uniform system of execution of prison sentences ... the Ministry [of Justice of the Federation of Bosnia and Herzegovina] shall supervise prisons.
Supervision of the execution of prison sentences shall include the following in particular: the lawful and proper treatment of inmates, supervision of the work and structure of prisons, the manner of corrective training of inmates, conditions regarding security and self-protection, the work of the security unit, business operations, the manner of implementation of health protection and hygiene measures, inmates’ food and clothing and requirements concerning [material conditions].
The supervision referred to in paragraph 2 above shall be performed by [inspectors].
While conducting inspections, the inspectors referred to in paragraph 3 above shall be accorded the same rights, duties and responsibilities as those accorded to the inspectors of the administrative bodies of the Federation of Bosnia and Herzegovina, unless otherwise determined in this Act.”
“A written report shall be made every time an inspection is carried out. It shall set specific time-limits for rectification of any irregularities and for general improvements if necessary.
The report shall be delivered to the prison governor.
The prison shall comply with any measures ordered.
The prison shall be entitled to lodge objections against any measures ordered, within eight days of receipt of the report.”
38. It would appear that there are two prison inspector posts in the Federation of Bosnia and Herzegovina and four in the Republika Srpska (see the Functional Review of the Bosnia and Herzegovina Justice Sector carried out under the auspices of the European Commission in March 2005, pp. 122-23).
39. This Act has been in force since 28 June 2005. It sets out further provisions concerning the rights, duties and responsibilities of inspectors. In accordance with section 121 of this Act, every person (natural or legal) is entitled to petition an inspector, who must act upon the petition within fifteen days. The authorities (including the police) and every inspected establishment are obliged to fully cooperate with inspectors (section 122 of the Act). When an irregularity has been found, inspectors will order that it be rectified and set a deadline; they may also impose a fine and/or initiate administrative or criminal proceedings where appropriate (section 125 of the Act). Interim measures may also be ordered (section 130 of the Act).
40. This Act regulates, inter alia, the law of tort. The main remedy for a tort is an action for damages, but in some cases a permanent injunction can be obtained to prevent repetition of the injury. The following are the relevant provisions of this Act:
“1. All persons shall be entitled to request the court or other competent body to order the cessation of an action which violates their personal integrity, private and family life or other personal rights.
2. In the event of a breach of the order for cessation, the court or other competent body may order that a sum of money (either a lump sum or a sum varying according to the duration of the breach) be paid to the injured person.”
“A legal person shall be liable for the torts committed vis-à-vis a third party by its organs in the course of, or in connection with, the exercise of their functions.”
“In the event of a violation of personal rights the court may order ... any form of redress which may be capable of achieving the aim of non-pecuniary damages.”
“The court shall award non-pecuniary damages for physical pain, mental anguish caused by reduced vital activities, disfigurement, loss of reputation, violations of freedom or personal rights or the death of a close person and/or for fear, if such award y award of pecuniary damages.”
41. This Act has been in force since 5 November 2003. It provides for the possibility of seeking a temporary injunction pending court proceedings, or even regardless of the existence of court proceedings, under certain conditions (sections 268-90 of the Act). Section 273(1), in its relevant part, reads as follows:
“For the protection of rights or the status quo, the following measures may be ordered:
1. an order addressed to the other party that either prohibits that party from performing a certain action or orders it to carry out a certain action in order to protect the status quo or to prevent any damage;
...5. any other necessary measures.”
42. The Helsinki Committee for Human Rights in Bosnia and Herzegovina is a member of the International Helsinki Federation (an international non-governmental organisation which has participatory status with the Council of Europe).
43. The following is the relevant part of its 2002 report on the state of human rights in Bosnia and Herzegovina:
“Following a monitoring of the Helsinki Committee for Human Rights in Bosnia and Herzegovina on the situation in [prisons], the interest of media and public institutions in this issue has been increased. After contradictory information in the press, the Council of Ministers of Bosnia and Herzegovina, on the basis of the findings of a working group, concluded that convicts [of Bosniac origin] maltreat psychically and physically convicts [of Croat and Serb origin] in Zenica [Prison]. The working group established, inter alia, that Darko Radinović, after being systematically maltreated, attempted suicide and finally got mentally ill. The UN Mission confirmed that a convict Milomir Tepeš, when asleep, was beaten up with chains and lock. On the occasion of torture in Zenica [Prison], the Council of Ministers initiated an agreement between the Entities on eventual transfer of convicts to other [prisons]. Thus we are on the way of having ethnically cleansed prisons as well.
A [parliamentary] commission of the House of Representatives of the Parliament of Bosnia and Herzegovina asked from the Ministry of Justice of the Federation of Bosnia and Herzegovina to establish the circumstances under which convicts of [Croat origin], Catholics, converted to Islam in Zenica [Prison], following an allegation that they did it under duress. However, the prison management claims that there was only one voluntary conversion to Islam.”
44. The relevant parts of the Committee’s 2005 report on the state of human rights in Bosnia and Herzegovina read as follows:
“Inter-ethnic relations remain encumbered by attempts of ruling nationalistic parties, primarily the SDA, HDZ and SDS, to maintain ethnic homogeneity. By nourishing fears from the others, insisting on the thesis that other two ethnic groups endanger status of their own nation, these parties manage to keep themselves in power.
Even though the Constitutional Court of Bosnia and Herzegovina passed the decision on the equality of the Serbs, Croats and Bosniacs as constituent peoples across Bosnia and Herzegovina, there is still a strongly expressed wish to establish domination of one ethnic group over the others in areas where it has demographic and political supremacy. Conservation of aggressive nationalism is helped by the fact that criminal laws do not foresee any sanctions against these deeds. Prosecutor’s offices do not react on these occurrences or on those of anti-Semitism, racism and xenophobia, which encourage extreme nationalism.
Fragile inter-ethnic relations are additionally encumbered by the occurrences of ethnically motivated violence and even terrorism.
...
The said as well as many other similar events help to sustain inter-national tensions and fear and prevent the normalisation of the situation in the country. It is concerning that the police very rarely reveal perpetrators of these crimes. Even if the perpetrators become known courts either set them free or punish symbolically which encourages perpetrators.”
45. Amnesty International is an international non-governmental organisation which has participatory status with the Council of Europe. On 6 February 2008 it published a report on Bosnia and Herzegovina (“Better keep quiet: ill-treatment by the police and in prisons” – document no. EUR/63/001/2008). The relevant part reads as follows (p. 43):
“In addition to an independent human rights institution, a functioning system of prison inspections can provide another level of accountability for prison staff and a way for the competent authorities to monitor the situation in prisons. It is a matter of serious concern, therefore, that in the Federation of Bosnia and Herzegovina no such system is functioning. The prison management of all establishments in the Federation of Bosnia and Herzegovina visited by Amnesty International informed the organization that no inspection of their prisons had been carried out for a number of years, because the two posts of prison inspectors at the Ministry of Justice of the Federation of Bosnia and Herzegovina have been vacant. In these prisons, inspections by the [State] Ministry of Justice take place only with regard to the situation of a small number of prisoners sentenced by the [State] Court and serving their sentence in prisons [situated in the Federation of Bosnia and Herzegovina]. The Ministry of Justice of the Federation of Bosnia and Herzegovina confirmed that, since mid-2004, no prison inspectors have been employed at [that] Ministry. Moreover, Amnesty International was informed that [that] Ministry currently employs only one person, at the Assistant Minister level, in its Office for the Execution of Criminal Sanctions, responsible for supervising eight prisons. In contrast, a system of prison inspections appeared to be in place and functioning in the Republika Srpska.”
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-113617
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: TSARKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 1. The applicant, Ms Lidiya Aleksandrovna Tsarkova, is a Russian national, who was born in 1940 in Ukraine and now lives in Ulyanovsk, the Russian Federation.
3. On 8 November 2003 the applicant relocated from Chernovtsy, Ukraine to Ulyanovsk. On 17 February 2004 she registered her temporary residence in Ulyanovsk and renewed it on 17 May, 21 August, and 7 December 2004.
4. In 2005 she acquired Russian citizenship. On 22 July 2005 she registered her permanent residence in Ulyanovsk.
5. On 25 July 2005 she lodged an application for payment of a State earnings-related pension (a “labour pension”) with the Pension Fund of the Russian Federation.
6. The pension was awarded to her from the date of application. In addition, she was paid the pension for the six months prior to the date of application, because Ukraine (her country of origin) was a party to the Agreement on securing the pension rights of citizens of the Member States of the Commonwealth of Independent States of 13 March 2003 (“the CIS Agreement of 2003”).
7. The applicant lodged a lawsuit against the Pension Fund of the Russian Federation, seeking recovery of unpaid pension payments for the period between June and December 2004 (six months prior to registration of temporary residence on 7 December 2004). On 5 October 2005 the Justice of the Peace for the 3rd Circuit of the Leninskiy District of Ulyanovsk ruled in her favour.
8. On 30 November 2005 the Leninskiy District Court of Ulyanovsk reversed the judgment on appeal. The appellate court reasoned that, according to the provisions of the CIS Agreement of 2003, the applicant, as a foreign citizen, could only have requested payment of a labour pension from the Russian Pension Fund if she had registered her permanent residence in Russia and received a residence permit. Until 22 July 2005 she did not have a residence permit or a registered permanent residence in Russia and thus had not satisfied the criteria prescribed by the international agreement and national legislation.
9. The Labour Pensions Act 2001 (Федеральный закон № 173-ФЗ «О трудовых пенсиях в Российской Федерации» от 17 декабря 2001 г.) stipulates in Section 3 that foreign citizens and persons without citizenship permanently residing in the Russian Federation have pension rights equal to those of Russian citizens.
10. The Legal Status of Foreign Citizens Act 2002 (Федеральный закон № 115-ФЗ «О правовом положении иностранных граждан в Российской Федерации» от 25 июля 2002 г.) provides in Section 2 that a foreign citizen may only be considered permanently residing in the Russian Federation if he has acquired a residence permit.
11. The Agreement on securing the pension rights of citizens of the Member States of the Commonwealth of Independent States of 13 March 2003 (Соглашение о гарантиях прав граждан государств-участников Содружества независимых государств в области пенсионного обеспечения от 13 марта 2003 г. – “the CIS Agreement of 2003”) regulates the mutual recognition of the pension rights of the citizens of the Contracting States.
12. According to the CIS Agreement of 2003 the award and payment of a pension are regulated by the law of the country where a pensioner has permanent residence (Article 1 and Article 6, Section 1).
13. In the event of relocation of a pensioner to another Member State, the payment of a pension is terminated in the country of origin if the same kind of pension is payable to him in the destination country (Article 7).


ITEMID: 001-92570
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BOGDANSKA DUMA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1959 and lives in Skopje.
5. On 1 February 1993 Mr. F.D., the applicant’s former husband, bought a state-owned apartment and a garage (“the property”). By a deed of gift of 29 December 1994 (“the 1994 gift”), Mr F.D. transferred one notional half of the property into the applicant’s possession. The spouses divorced in 1996. By court decisions of 18 April and 5 September 2001 respectively, the 1994 gift was rescinded.
6. The present case concerns two sets of proceedings concerning the property at issue.
7. On 13 July 1995 Mr H.D. and Mrs V.D., Mr F.D.’s parents (“the plaintiffs”), brought a civil action against the applicant and Mr F.D. to establish their title to the property and to rescind the 1994 gift. The plaintiffs alleged that they had transferred to their son the right to buy the property and that they had paid the price.
8. Of six hearings scheduled between 3 November 1995 and 19 May 1997, none was rescheduled on the applicant’s request.
9. Sixteen hearings fixed between 19 May 1997 and 20 November 2000 were adjourned because of incorrect service of the court summons, late exchange of applications by the parties, belated submissions or the failure of the national authorities and the parties to respond to court orders in time. A hearing fixed for 25 May 1998 was postponed due to the applicant’s absence for work-related reasons.
10. On 20 November 2000 the Skopje Court of First Instance upheld the plaintiffs’ claim and recognised their title to the property. It rescinded the 1994 gift and declared that Mrs V.D. had the title to one notional half of the property. The court established that Mr H.D. had tenancy of the property since 1972 and that the plaintiffs had authorised the defendants to buy the property under the condition of caring for them and living under the same roof. As the applicant had divorced her husband and ceased to live with the plaintiffs, the court held that the right to buy the apartment remained groundless and considered it as if it had not been established.
11. On 28 June 2001 the Skopje Court of Appeal accepted an appeal by the applicant and remitted the case for a fresh consideration. It established that the lower court had not given sufficient reasons for its decision. It further ordered a stay of the proceedings pending assessment of the validity of the sale agreement of 1 February 1993, the subject of other proceedings.
12. Between 19 November 2001 and 15 September 2005 the first-instance court listed twenty-three hearings which were re-scheduled for similar reasons as those described in paragraph 9 above. The applicant did not attend four hearings. During this time, the applicant claimed title to four fifths of the property, as a joint property acquired through marriage. She further proposed an out-of-court settlement on two occasions and requested the court to expedite the proceedings.
13. The proceedings resumed on 4 December 2006 when a new judge was assigned to sit in the case. The court listed six hearings until 18 May 2007. The proceedings are still pending before the Skopje Court of First Instance.
14. On 4 April 2002 Mr F.D. requested annulment of a deed of gift of 18 July 2001 (“the 2001 gift”) under which the applicant had transferred into the possession of their two daughters her notional half of the property. Referring to the annulment of the 1994 contract, Mr F.D. claimed that the applicant had not been entitled to dispose of the property. On 5 April 2001 Mr F.D. extended his claim against their daughters. On 17 November 2002, one of the daughters, Ms I.D., came of age.
15. On 22 November 2002 the Skopje Court of First Instance granted Mr F.D.’s action and annulled the 2001 gift. It further ordered their daughters to restore the property into Mr F.D.’s possession. Lastly, it ordered the applicant not to dispose of the property. The court established that the applicant had made the 2001 gift while the proceedings regarding the 1994 gift had been pending on appeal. It ruled that the applicant accordingly had known or ought to have known that she could not make the 2001 gift while the proceedings in respect of the 1994 gift were pending. It dismissed the applicant’s objection that her lawyer had not been provided with explicit authority to represent Ms I.D. In this respect, it held that the applicant had been her daughters’ statutory guardian and they all acted as a single party to the proceedings. The court concluded that they had not had conflicting interests, but that the applicant had acted on behalf of her daughters.
16. On 27 March 2003 the Skopje Court of Appeal upheld the lower court’s decision concerning the annulment order and injunction. It found no reasons to depart from the established facts and legal reasoning given by the lower court in respect of the deed of gift. It ruled, however, that the lower court had wrongly ordered the applicant’s daughters to restore the property into Mr F.D.’s possession. The applicant unsuccessfully requested the public prosecutor to lodge with the Supreme Court a request for the protection of legality.
17. On 23 May 2003 the Skopje Court of First Instance dismissed the remainder of Mr F.D.’s claim.
18. These proceedings ended on 14 October 2004 when the first-instance court’s decision concerning trial costs became final.
VIOLATED_ARTICLES: 6


ITEMID: 001-92823
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BOSKOVA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1963 and lives in Bratislava.
5. On 3 April 2002 the applicant lodged an action against her husband with the Bratislava IV District Court, seeking a judicial determination of their parental rights and obligations in respect of their child.
6. On 30 January 2003 the District Court delivered an interim measure in the applicant’s favour.
7. On 20 March 2003 the District Court gave the applicant custody of the child. It did not order the defendant to pay any maintenance. On 13 November 2003 the Bratislava Regional Court quashed the judgment in its part concerning maintenance and remitted the case to the District Court. The view was expressed that the court of first instance had not sufficiently established the relevant facts. The Regional Court ordered the District Court to proceed along the lines specified.
8. In a judgment of 21 September 2004 the District Court determined the issue. On 23 September 2005 the Regional Court again quashed the relevant part of the judgment and remitted the case to the District Court. It found that the District Court had not sufficiently established the relevant facts and explained to the latter how the case should be dealt with.
9. On 29 November 2005 the applicant withdrew the action as she had reached an out-of-court settlement with the defendant.
10. The District Court thus discontinued the proceedings on 17 January 2006. The decision became final on 17 February 2006.
11. Meanwhile, on 10 January 2006, the Constitutional Court found that the District Court had violated the applicant’s right under Article 48 § 2 of the Constitution to a hearing without unjustified delay. The Constitutional Court established that the case was not complex and that no delays could be imputed to the applicant. It noted that the District Court had acted ineffectively. In view of the subject-matter of the proceedings, their overall duration had been excessive. The Constitutional Court concluded that the finding of a violation represented in itself sufficient just did not order the District Court to proceed with the case on the ground that the applicant had withdrawn the action. It ordered the District Court to reimburse the applicant’s legal costs.
VIOLATED_ARTICLES: 6


ITEMID: 001-5527
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BEIJE v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch national, born in 1963, and currently serving a prison sentence in the Netherlands. He is represented before the Court by Mr R.J. Baumgardt, a lawyer practising in Spijkenisse.
On 11 December 1996, the applicant and R.K. were present in the home of Werner M. On the same day, Werner M. was killed by one stab wound in his chest. In the night of 11-12 December 1996, the applicant went the police and stated that he had killed Werner M. It appeared that, when making this statement, the applicant had an alcohol level of 2.07 mg/litre in his blood.
On 12 December 1996, the police arrested the co-suspect R.K., whose statement of 12 December 1996 to the police confirmed the applicant's account. The police further took samples of and secured material found under the two suspects' finger nails. The police further seized and secured the suspects' coats and outer layer of their clothes. In the course of his pre-trial detention, the applicant withdrew his earlier statement that he had killed Mr M. By summons of 4 March 1997, the applicant was summoned to appear before the Rotterdam Regional Court (Arrondissementsrechtbank) on charges of murder.
By letter of 23 April 1997, the applicant's lawyer, referring to previous telephone messages, requested the investigating judge (rechter-commissaris) dealing with the case to provide him with further information in relation to the samples taken by the technical criminal investigation department (technische recherche) as well as the secured clothes of the applicant and R.K.
In the course of a hearing held on 18 March 1997 before the Regional Court, the defence stated that there were three persons in the victim's home, namely R.K., Willem M. and the applicant and that their statements were not consistent. The defence requested that the case be referred back to the investigating judge in order to hear R.K., Willem M. and three police officers involved in the investigation. The Regional Court further took evidence from the applicant.
After having deliberated, the Regional Court decided to refer the case back to the investigating judge in order to take evidence from the five witnesses proposed by the defence. On 7, 10 and 28 April 1997, statements were taken from the witnesses and the applicant by the investigating judge.
On 26 May 1997, the applicant's lawyer was told by the public prosecutor that it was unclear what had happened with the material taken from the suspects' finger nails and of their clothes and that, therefore, no forensic reports on these materials would be submitted to the court.
On 27 May 1997, a further hearing took place before the Regional Court. As the court's composition had changed, it fully recommenced its examination. It took evidence from the applicant, considered the other evidence before it and heard the parties' final pleadings.
By judgment of 10 June 1997, the Regional Court convicted the applicant of murder and sentenced him to seven years' imprisonment. The applicant filed an appeal with the Hague Court of Appeal (Gerechtshof).
In the course of a hearing held on 5 December 1997, the Court of Appeal heard the applicant as well as the witnesses Willem J.M. and R.K. The latter witness stated, inter alia, that he had been convicted of being an accessory to the murder of M and that he had not filed an appeal against this conviction. The Court of Appeal further heard the parties' final pleadings.
In its judgment of 19 December 1997, the Court of Appeal convicted the applicant of murder and sentenced him to seven years' imprisonment. On the basis of the findings of a psychiatric report on the applicant, the Court of Appeal accepted that the applicant had to a certain extent a diminished responsibility and took this into account in the determination of its sentence.
As to the argument submitted by the defence that the prosecution should be declared inadmissible as the clothes and the samples taken from material under the fingernails of the suspects had gone lost thereby rendering a - for the applicant possibly exculpating - forensic examination thereof impossible, the Court of Appeal held that:
<Translation>
“The formal police records mention that, pending a possible further investigation, the secured items at issue have been entrusted to the technical criminal investigation [department] of the Rotterdam-Rijnmond Regional Police. It appears from appendices to counsel's written pleadings that the suspect's former defence counsel has requested the investigating judge to have these materials examined. A reply to that request is not included in the documents. The written pleadings of the defence counsel in the first instance proceedings only mention that this counsel has been told by the public prosecutor “that no clarity can be obtained what [has] happened with this”.
Assuming that the materials referred to have in fact gone missing, the Court considers this indeed regrettable, but, noting the other investigation results contained in the case-file, not an omission of such importance that this should result in the sanction of inadmissibility of the prosecution. The objection is therefore rejected.”
The Court of Appeal based the applicant's conviction on his statement of 12 December 1996 to the police and his statement of 28 April 1997 to the investigating judge, the statement of 12 December 1996 by R.K. to the police, the formal police records of the finding of the victim's body, and the report on the autopsy of the victim's body.
The applicant's subsequent appeal in cassation was rejected by the Supreme Court (Hoge Raad) on 20 October 1998. As to the applicant's complaint of the rejection by the Court of Appeal of his argument that the prosecution should be declared inadmissible, the Supreme Court held at the outset that unlawful activities of criminal investigation officials could under circumstances result in such a serious violation of the principle of a fair trial that this should lead - also in cases where there is sufficient other lawfully obtained evidence - to the inadmissibility of the prosecution. However, such a far reaching sanction could only follow where it would concern serious violations of those principles by, deliberately or with gross negligence, disrespecting the suspect's interest in his right to a fair hearing of his case. Due to the impossibility of giving a general rule, this question needed to be examined on a case by case basis.
Turning subsequently to the instant case, the Supreme Court held that:
<Translation>
“... the Court of Appeal has at the outset - correctly - expressed that the circumstance that the secured traces have gone lost violates the principles of fair proceedings. The Court of Appeal further held that the present case does not concern a case of a serious violation of the principles of fair proceedings as a result of which, deliberately or with gross negligence, the suspect' interest in his right to a fair trial of his case has been disrespected This finding does not disclose an incorrect conception of the law and is also not incomprehensible taking into consideration:
a) that it has not been argued and that the case-file contains nothing from which it could be concluded that the fact the investigation material has gone lost is the result of a deliberate action and
b) that the Court of Appeal has apparently assessed this violation [of the principles of fair proceedings] in the light of the harm that this, also taking into account of what the defence has submitted on this point, could reasonably have caused the interests of the defence, in which [assessment] the Court of Appeal with [the phrase] “the investigation results contained in the case-file” apparently referred to the facts and circumstances on which it based the conviction (“voor het bewijs redengevend geachte feiten en omstandigheden”) as set out in the evidence described under 4.2. and the possibly exculpating material contained in the case-file.
The complaint therefore fails.”


ITEMID: 001-58265
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF PODBIELSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
TEXT: 7. The applicant, a businessman, was born in 1949 and lives in Świdnica, Poland.
8. On 25 May 1992 he sued the municipality of Świdnica before the Wałbrzych Regional Court (Sąd Wojewódzki). The applicant sought payment for construction works which his company had carried out for the municipality on the basis of a contract dated 18 February 1991 and pecuniary penalties resulting from the defendant’s breach of the terms of the contract. On 7 September 1992 the Wałbrzych Regional Court delivered a judgment in which it declared certain clauses of the contract null and void since they violated civil law.
9. The applicant appealed and on 6 November 1992 the Wrocław Court of Appeal (Sąd Apelacyjny) quashed the judgment of 7 September 1992 and ordered the case to be reconsidered. Subsequently, on 1 February 1993 the Wałbrzych Regional Court allowed the applicant’s claim for payment but declared null and void a clause of the contract imposing penalties for delay in compliance with its provisions. On 27 April 1993 the Wrocław Court of Appeal dismissed both the applicant’s and the defendant’s appeals against the judgment of the Regional Court.
10. On 25 June 1993 the Ombudsman filed with the Supreme Court (Sąd Najwyższy) an extraordinary appeal on behalf of the applicant, submitting that the Court of Appeal’s judgment of 27 April 1993 had been in flagrant violation of substantive civil law and had unduly restricted the parties’ freedom of contract.
11. On 7 October 1993 the Supreme Court dismissed the extraordinary appeal. It agreed that, contrary to the previous jurisprudence developed against the background of a planned economy, the Civil Code allowed the parties to agree to clauses providing for the payment of pecuniary penalties for delay in compliance with contractual obligations. However, the Supreme Court found that in the present case the lower courts were justified in declaring the relevant contract clauses null and void as the penalties at issue were excessive and disproportionate to the value of the contract.
12. On 28 January 1994 the Supreme Court agreed to the applicant’s request to reopen the proceedings relating to the extraordinary appeal. It amended its judgment of 7 October 1993 and quashed in part both impugned judgments of 1 February 1993 and 27 April 1993. The Supreme Court ordered that all the applicant’s claims, save for the payment awarded to the applicant by the judgment of the Wałbrzych Regional Court of 1 February 1993, be reconsidered by the latter court. The Supreme Court was of the opinion that the previous judgments amounted to a violation of substantive civil law. It assessed from a legal point of view the issues of the pecuniary penalties resulting from the defendant’s breach of the contract and the possible compensation for damage sustained in consequence by the applicant’s company. Furthermore, the Supreme Court explained why and how the relevant provisions of substantive civil law should be applied in the case. It also gave guidelines as to the further course of the proceedings, holding that the court of first instance should establish the value of the claims.
13. Between 6 June and 20 July 1994, the Wałbrzych Regional Court and the Wrocław Court of Appeal examined the applicant’s requests for an exemption from the court fees.
14. In a judgment of 20 February 1995 the Wałbrzych Regional Court held that the defendant was obliged to pay pecuniary penalties to the applicant, but reduced their amount to 1,844,300,000 old zlotys as it considered that the penalties fixed in the contract were excessive. Furthermore, it dismissed the applicant’s claim for compensation for damage caused by the defendant’s delay in payment because the applicant did not show that his company had suffered damage exceeding the amount awarded to him.
15. On 30 March 1995 the applicant appealed against the judgment of 20 February 1995, claiming that the court had failed to make certain findings of fact which were relevant to the outcome of the case and had made procedural errors.
16. Between 12 April and 25 May 1996 the courts of first and second instance examined the applicant’s request for an exemption from the court fees for lodging the appeal.
17. On 31 August 1995 the Wrocław Court of Appeal quashed the judgment of 20 February 1995 in so far as it had dismissed the applicant’s claim for compensation for damage resulting from the defendant’s delay in payment. It ordered that this claim be reconsidered since the trial court had failed to comply with the Supreme Court’s legal opinion and guidelines on that matter and also criticised the manner in which the trial court had taken expert evidence.
18. On 23 October 1996 the Wałbrzych Regional Court dismissed the applicant’s claim for compensation. On 29 November 1996 the applicant filed with the Wałbrzych Regional Court an appeal to the Wrocław Court of Appeal and requested an exemption from court fees.
19. On 3 January 1997 the Wałbrzych Regional Court exempted the applicant’s company from all court fees save for the first 20,000 zlotys (PLN) and dismissed the remainder of the applicant’s request. The applicant appealed against this decision. On 13 February 1997 the Wrocław Court of Appeal dismissed his appeal, considering that his company had sufficient financial resources to pay the court fees.
20. On 9 March 1997 the applicant again requested the Wałbrzych Regional Court to grant him a further exemption from the court fees, arguing that in the course of the prolonged litigation the financial situation of his company had worsened. On 14 April 1997 the court exempted him from court fees exceeding PLN 10,000. On 9 June 1997 the Wrocław Court of Appeal dismissed the applicant’s appeal against the decision of 14 April 1997.
21. On 1 September 1997 the Wałbrzych Regional Court rejected the applicant’s renewed request to be exempted from payment of the court fees. The applicant appealed against that decision, but on 16 October 1997 the Wrocław Court of Appeal rejected his appeal.
22. On 17 December 1997 the Wałbrzych Regional Court rejected the applicant’s appeal against the judgment of 23 October 1996 since he had failed to pay the required court fees. Between 29 January 1998 and 30 March 1998 both the Regional Court and the Court of Appeal considered the applicant’s requests for exemption from the court fees. On 29 May 1998 the Wrocław Court of Appeal rejected the applicant’s complaint against the decision of 17 December 1997.
23. On 30 June 1998 the applicant lodged with the Supreme Court an appeal on points of law. These proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60963
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF NIEDERBOSTER v. GERMANY [Extracts]
IMPORTANCE: 1
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - finding of violation sufficient
JUDGES: Ireneu Cabral Barreto
TEXT: 9. The applicant is a German national who was born in 1915. He has an illegitimate daughter, Isa, who was born in 1985. Both before and after her birth, relations between the parents were strained. Until the summer of 1989 the applicant saw his daughter regularly, looking after her during the daytime on occasion, even though he lived some 300 km from her home. After a year without any contact, he saw her again at the end of 1990. Thereafter, the mother refused to allow any further contact.
10. In 1991 the applicant applied to the Bonn District Court (Amtsgericht) for an order granting him access to his daughter. On 12 March 1992 the District Court dismissed his application, holding that in view of the strained relations between the parents, the applicant’s obsessional attitude (zwanghaft) towards his daughter and her unwillingness to see him, it would not at that juncture be in the child’s interest, within the meaning of Article 1711 of the Civil Code (Bürgerliches Gesetzbuch – see “Relevant domestic law and practice” below) to grant the applicant access. The District Court also found that the applicant could not claim to be the victim of discrimination, as its decision would not have been any different had his daughter been legitimate. The applicant’s appeals to the Regional Court (Landgericht) and to the Cologne Court of Appeal (Oberlandesgericht) were dismissed. On 9 February 1993 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, decided not to entertain the applicant’s constitutional complaint. On 24 March 1993 the Bonn District Court dismissed a further application by the applicant on the grounds that the relations between the parents remained strained and that a two-year “cooling-off period” (Zeit der Ruhe) was required before the case could be re-examined.
11. On 23 June 1993 the applicant made a further application to the Bonn District Court for access to his daughter.
12. In a letter of 6 July 1993, the applicant informed the District Court that he considered that the judge hearing the case was biased.
13. On 2 November 1993 the District Court rejected the application and adjourned its decision until 12 March 1992.
14. On 20 January 1994 the applicant lodged further particulars of his grounds for challenging the judge hearing the case. On 28 January 1994 the Bonn Regional Court ruled that the challenge was unfounded. On 18 February 1994 the applicant appealed against that decision.
15. On 28 February 1994 he lodged his grounds of appeal and also appealed against the District Court’s decision of 2 November 1993. On 18 March 1994 the Cologne Court of Appeal dismissed the appeal against the Regional Court’s decision of 28 January 1994.
16. On 25 April 1994 the applicant lodged his grounds of appeal against the District Court’s decision of 2 November 1993. On 30 May and 25 July 1994 the Regional Court heard the child and her mother, followed by the applicant.
17. On 22 September 1994 the Regional Court dismissed the applicant’s appeal. It found that it would not be in the interests of the child’s welfare, within the meaning of Article 1711 § 2 of the Civil Code, to grant the applicant access. In particular, it noted that the situation observed on 25 September 1992 remained unchanged.
18. On 7 November 1994 the applicant lodged a constitutional appeal with the Federal Constitutional Court in which he argued that Article 1711 of the Civil Code was unconstitutional.
19. On 22 March 1995 the applicant requested the Federal Constitutional Court to expedite his appeal in view of his age (he was 80 years old) and the fact that he was suffering from a heart condition.
20. Between 1995 and 1998 there was an exchange of correspondence in which the Federal Constitutional Court informed the applicant that his appeal had been put back in order to await the outcome of other appeals that were pending on the issue of the constitutionality of Article 1711 of the Civil Code. It is apparent from two editions of a German legal periodical (Neue Juristische Wochenschrift) of 1994 (p. 1335) and 1997 (p. 1057) that at least one of the sets of proceedings dated back to 1988 (no. 1 BvR 1216/88). In a letter of 15 February 1996, the judge rapporteur in the case advised the applicant that the Federal Constitutional Court was aiming to issue (angestrebt) its decision by the end of the year.
21. On 20 November 1997 the applicant made a further application to the Bonn District Court for access.
22. On 20 January 1998 the Federal Constitutional Court suggested to the applicant that he should declare that his appeal had been disposed of (erledigt), in view of the fact that new legislation on family matters (Kindschaftsrecht – see “Relevant domestic law and practice” below), regulating, inter alia, the relationship between fathers and their illegitimate children, was about to come into force. It pointed out that the outcome of his appeal would be the same if it declared Article 1711 of the Civil Code unconstitutional, as such a finding would merely require the legislature to amend the offending provision within a set period.
23. On 30 April 1998 the Bonn District Court rejected the applicant’s application for access, holding that there had been no change of circumstances that would warrant any other decision. The applicant appealed against that decision to the Bonn Regional Court. Following a hearing on 7 September 1998 the parties agreed that the applicant and his daughter would resume contact. With the support of the Bonn Regional Court, they arranged various meetings, which were subsequently cancelled for reasons attributable to each of the parties in turn.
24. In a letter of 10 August 1998, the applicant stated that he did not accept the proposal made by the judge rapporteur of the Federal Constitutional Court.
25. On 19 August 1998 the judge rapporteur wrote a further letter to the applicant in which he informed him that, as the new legislation had come into force, his constitutional appeal no longer raised a question of general importance (grundsätzliche Bedeutung) and, accordingly, had no prospect of success. He added that the legal costs the applicant had incurred in his constitutional appeal could only be reimbursed if he declared that his appeal had been disposed of.
26. In a letter of 19 October 1998, the applicant declared that his appeal had been disposed of, saying that he had done so solely in order to obtain reimbursement of his legal costs.
27. On 1 December 1998 the Federal Constitutional Court, sitting as a panel of three judges, made an order requiring the Land of North Rhine-Westphalia to reimburse the applicant’s legal costs relating to his constitutional appeal.
28. At the beginning of October 1999 the applicant was allowed to see his daughter again. Shortly afterwards, in a letter of 26 October 1999 and at the request of the Bonn Regional Court, he withdrew his appeal against the Bonn District Court’s decision of 30 April 1998.
29. A further meeting between the applicant and his daughter took place in April 2000 on the applicant’s eighty-fifth birthday. There has been no contact since and the applicant has not asked the Regional Court for a final ruling on his appeal.
30. The statutory provisions on custody and access are set out in the Civil Code (Bürgerliches Gesetzbuch). The provisions in this area of the law were substantially amended by a reform of 16 December 1997 (Reform zum Kindschaftsrecht, Federal Gazette (Bundesgesetzblatt) 1997, p. 2942), which came into force on 1 July 1998.
Article 1626 § 1 provides:
“The father and the mother have the right and the duty to exercise parental authority [elterliche Sorge] over a minor child. The parental authority includes the custody [Personensorge] and the care of property [Vermögenssorge] of the child.”
Pursuant to Article 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry.
Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows:
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare.
...”
The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows:
“Custody over a minor child born out of wedlock is exercised by the child’s mother ...”
Article 1711
“1. The person having custody of the child shall determine the father’s right of access to the child. Article 1634 § 1, second sentence, applies by analogy.
2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Article 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.
...”
By virtue of section 32 of the Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht) of 11 August 1993, the Federal Constitutional Court has power to order interim measures if special reasons make it necessary to do so in the general interest.
Under its settled case-law, the Federal Constitutional Court may make such orders on its own initiative, that is to say without an application by an interested party (see, among other authorities, its judgment of 7 April 1976, no. 2 BvH 1/75, published in the Official Reports of Judgments and Decisions (Entscheidungen des Bundesverfassungsgerichts), volume 42, p. 103; and its decision of 3 December 1998, no. 2 BvR 2033/98).
In a decision of 30 May 1990 (nos. 1 BvL 2/83, 9-10/84, 3/85, 1113/89, 4/90 and 1 BvR 764/86, Reports 82, p. 126), the Federal Constitutional Court stated: “[This Court] must, in principle, confine itself to declaring the impugned provision unconstitutional, whereupon the State authorities may no longer apply it. The courts are required to stay any proceedings whose outcome depends on the provision in issue until new legislation comes into force.” The same reasoning is to be found in, among other authorities, a decision of 7 March 1995 (nos. 1 BvR 790/91, 540/92 and 866/92, Reports 92, p. 186).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-78450
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: R. AND F. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The first and second applicants, R. and F., are British nationals who were born in 1977 and 1974 respectively and live in Scotland. They are represented before the Court by Miss M Dyker, a lawyer practising in Edinburgh.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants met in October 1997 and started a relationship. They were married in October 1998 and have been living as a married couple since, jointly owning their home and having a joint mortgage.
The second applicant, F., was born male, but underwent gender reassignment surgery (funded by the National Health Service) in November 2003, after a consultation process which began in 1998. The first applicant, R., was involved in this process throughout, attending appointments with the relevant medical professionals, and providing both practical and emotional support. The applicants contend that F.’s treatment and surgery have not affected either the emotional or physical aspects of their relationship, and they have left open the possibility of having children in the future.
F wishes to have her new gender recognised. In particular, she wishes to have a birth certificate upon which her gender is recognised as female. By the provisions of the Gender Recognition Act 2004 (‘GRA 2004’), provision is made for those who have acquired a new gender to apply for a full Gender Recognition Certificate (‘GRC’). This in turn entitles the holder to obtain what is, to all outward intents and purposes, a new birth certificate recognising their new gender.
However, it is a condition of the issue of a full GRC that the recipient not be married. As she is married, F. is entitled to apply for an interim gender recognition certificate (‘GRC’) to allow her female status to be officially recognised, but she would only be able to obtain a full GRC if she and R. divorce, something to which they are deeply opposed.
Divorce would necessarily incur costs of GBP 120 together with solicitors’ costs of approximately GBP 500. Their representative before this Court also notes that, in the event that R. and F. were required to divorce, she would have to advise them to take independent legal advice with a view to coming to an agreement as to how they should divide their matrimonial property to protect their financial positions. The applicants contend that a failure to take such advice and divide the property accordingly would lead to R., in particular, losing rights. Taking independent legal advice and drawing up a minute of agreement (even if it were not contentious) would cost in the region of GBP 3,525 for each party. There would also be costs associated with any resulting transfers of property for purposes of division: a sale of their property would incur legal costs of approximately GBP 1,500.
As of 5 December 2005, when the relevant sections of the Civil Partnership Act 2004 entered into force, the applicants are entitled to enter a civil partnership. However, they do not consider such a partnership a full substitute for marriage. They highlight both what they contend is the different social standing attached to such civil partnerships and also the fact that they do not provide identical legal protection to that enshrined in statutes governing marriage. Entry into a civil partnership would also necessarily incur costs of in the region of GBP 93.50.
The Gender Recognition Act 2004 (‘GRA 2004’) provides a mechanism whereby transsexuals may have their new genders recognised. Section 2 provides that a Gender Recognition Panel must grant an application if it is satisfied that the applicant: (1) has, or has had, gender dysphoria; (2) has lived in the acquired gender throughout the preceding two years; and (3) intends to continue to live in the acquired gender until death.
By section 3, an application must include a report from a registered medical practitioner, or a chartered psychologist, either of whom must be practising in the field of gender dysphoria. This report must include details of diagnosis. A second report must also be included, which need not be from a medical professional practising in the field of gender dysphoria, but could be from any registered medical practitioner. At least one of the reports must include details of any treatment that the applicant has undergone, is undergoing or that is prescribed or planned, for the purposes of modifying sexual characteristics.
Section 4 sets down the consequences of an application being successful. It reads in material part as follows:
“(1) If a Gender Recognition Panel grants an application under section 1(1) it must issue a gender recognition certificate to the applicant.
(2) Unless the applicant is married, the certificate is to be a full gender recognition certificate.
(3) If the applicant is married, the certificate is to be an interim gender recognition certificate.
(4) Schedule 2 (annulment or dissolution of marriage after issue of interim gender recognition certificate) has effect [this amends section 1(1) of the Divorce (Scotland) Act 1976 so that a party can apply to the courts for a divorce on the basis of the issue of an interim gender recognition certificate to either party to the marriage].
Section 5 governs the situation where an interim certificate has been granted. It reads in relevant part as follows:
“(1) A court which -
...
(b) (in Scotland) grants a decree of divorce on that ground,
must, on doing so, issue a full gender recognition certificate to that party and send a copy to the Secretary of State.
(2) If an interim gender recognition certificate has been issued to a person and either-
(a) the person’s marriage is dissolved or annulled (otherwise than on the ground mentioned in subsection (1)) in proceedings instituted during the period of six months beginning with the day on which it was issued, or
(b) the person’s spouse dies within that period,
the person may make an application for a full gender recognition certificate at any time within the period specified in subsection (3) (unless the person is again married).
(3) That period is the period of six months beginning with the day on which the marriage is dissolved or annulled or the death occurs.
(4) An application under subsection (2) must include evidence of the dissolution or annulment of the marriage and the date on which proceedings for it were instituted, or of the death of the spouse and the date on which it occurred.
(5) An application under subsection (2) is to be determined by a Gender Recognition Panel.
(6) The Panel –
(a) must grant the application if satisfied that the applicant is not married, and
(b) otherwise must reject it.
(7) If the Panel grants the application it must issue a full gender recognition certificate to the applicant.”
The only function of an interim gender recognition certificate is therefore to provide a document which can be used to obtain a divorce.
The other provisions of the GRA 2004 only apply where a full gender recognition certificate is concerned. These include, for instance, section 9, which provides that:
“(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”
By Paragraph 14 of Part 2 of Schedule 3 to the GRA 2004, the issue of a full gender recognition certificate obliges the Registrar General for Scotland to make an entry in the (new) Gender Recognition Register for Scotland and to mark the original entry in the register of births referring to the birth (or adoption) of the transsexual person to show that the original entry has been superseded. Paragraph 15 makes provision for an extract to be made of any entry in the GRR. An abbreviated certificate of birth compiled from the GRR must, by Paragraph 16, not disclose that it is compiled from the GRR. Both copies of and abbreviated certificates therefore look the same as any other birth certificates; they therefore act, to all outward intents and purposes, as new birth certificates.
Not all provisions of the GRA 2004 require status or situations existing prior to gender recognition to be changed or dissolved. For instance, provisions as to parenthood (section 12), succession (section 15) and peerages (section 16) explicitly provide that the person’s gender has become the acquired gender does not effect their status or rights flowing therefrom.
Section 5(4)(e) of the Marriage (Scotland) Act 1977 provides that there is a legal impediment to a marriage in Scots law where the parties “are of the same sex.” The Scots position is considered to be broadly similar to that in England, where the relevant provision is contained in section 11(c) of the Matrimonial Causes Act 1973, which provides that a marriage is void unless the parties are “respectively male and female.”
In the English case of Corbett v Corbett [1971] Probate Reports 83 it was held that marriage could only be between a woman and a man, determined on genital, gonadal and chromosomal factors, and should not take into account the party’s psychological beliefs, however genuine and profound.
Section 11(c) of the Matrimonial Causes Act 1973 and Corbett v Corbett have recently been reconsidered by the House of Lords in Bellinger v Bellinger [2003] UKHL 21. Their Lordships considered that the words “male” and “female” were to be given their ordinary meaning and referred to a person’s biological gender as determined at birth so that, for purposes of marriage, a person born with one sex could not later become a person of the opposite sex. They therefore held that it was not possible under English (and by analogy Scots) law for a person to marry another person who was of the same gender at birth, even if one of them had undergone gender reassignment surgery. They did, however, issue a declaration that Section 11(c) of the 1973 Act represented a continuing obstacle to the ability of the (male to female) transsexual petitioner to enter into a valid marriage with a man, and that it was therefore incompatible with her rights under Articles 8 and 12 of the Convention.
The Divorce (Scotland) Act 1976, as amended by the Gender Recognition Act 2004, reads in relevant part as follows:
“Section 1
(1) In an action for divorce the court may grant decree of divorce if, but only if, it is established in accordance with the following provisions of the Act that –
...
(b) an interim gender recognition certificate under the Gender Recognition Act 2004 has, after the date of the marriage, been issued to either party to the marriage.”
The Divorce (Scotland) Act 1976 does not provide for any defence to divorce where it is sought on the basis of the issue of an interim gender recognition certificate. The Act is to be amended by a Bill currently before the Scottish Parliament, but it does not appear that any amendments that may be made by the Bill are material to this section.
The financial consequences of divorce are set out in the Divorce (Scotland) Act 1976 and the Family Law (Scotland) Act 1985. The rights on divorce are broadly speaking that the parties are each entitled to half of the property referable to the period of the marriage, regardless of the name in which the property in question is formally held. Where no application is made for financial provision under the Family Law (Scotland) Act 1985, then the general law of property applies, such that parties may lose rights – for instance, property will continue to be held by the person in whose name it is held, even if that results in one person having more property than another.
Other consequences of divorce include the loss of spousal rights under the Succession (Scotland) Act 1964, the loss of rights in relation to the matrimonial home under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, tax consequences such as the loss of spousal exemptions, and the loss of entitlement to pension or other benefits contingent on parties being married (e.g. widow’s benefits under the Social Security Contributions and Benefits Act 1992). It may also lead to an inability to recover damages if the ex-spouse dies due to somebody else’s fault by operation of Schedule 1 to the Damages (Scotland) Act 1976 (although this provision has not been the subject of judicial scrutiny since the passage of the Human Rights Act 1998). Finally, certain rules of evidence, for instance that a spouse is not generally a compellable witness against another spouse (under sections 143 and 348 Criminal Procedure (Scotland) Act 1995), cease to have effect.
This Act (the CPA 2004) came into force on 5 December 2005. It has the effect of allowing same sex couples to acquire a legal status for their relationships, with legal rights and responsibilities. The Act is to be amended with respect to Scotland by the Family Law (Scotland) Bill, currently before the Scottish Parliament; this will have the effect of increasing the rights of same sex cohabitants in Scotland over and above those in force in England and Wales.
The provisions in the CPA 2004 (as amended as per the Family Law (Scotland) Act 2006) do not exactly mirror those applicable to marriages. For instance, the provisions for formation of civil partnerships do not entirely match those for civil (i.e. not religious marriages) contained in the Marriage (Scotland) Act 1977 and subordinate legislation: there is, for instance, no equivalent to section 23A of the 1977 Act, which preserves the validity of marriages which in their formation failed to comply with one of the formal requirements imposed by that Act.
On dissolution of a civil partnership, the Act does not contain any provision requiring property relating to periods of marriage prior to civil partnership to be taken into account (other than property bought for use as a family home or furniture or plenishings for the home, by an amendment to the Family Law (Scotland) Act 1985).