ITEMID: 001-82378
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: HANULIAK AND OTHERS  v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: Each of the first four applicants was, and the fifth applicant is, a Slovakian national. Their particulars appear below.
The respondent Government were represented by Ms A. Poláčková, their Agent, who was succeeded in that function by Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant, Mr Štefan Hanuliak, was born in 1913 and died in 2006. He was the father of the fifth applicant. The second applicant, Mrs Kamila Hanuliaková, was born in 1915 and died on 14 January 2001. She was the wife of the first applicant and the mother of the fifth applicant. The third applicant, Mr Jozef Hanuliak, was born in 1919 and died on 4 March 2000. He was the husband of the fourth applicant, Mrs Ľudmila Hanuliaková, who was born in 1918 and died in 2005. The third applicant was the uncle of the fifth applicant and the fourth applicant was his aunt.
The fifth applicant, Mr Augustín Hanuliak, was born in 1941 and resides in Topoľníky. He originally represented the first four applicants and then expressed the wish to continue the application in their stead.
In 1924 family F. bought real property located in Okoč. In 1939 they exchanged that property with another family for different real property.
In 1946 the real property in Okoč was confiscated. The area was subsequently divided into plots, some of which were allocated to the first four applicants as “assigned owners” (prídeloví vlastníci) under a deed of 1948.
In 1952 the allocated plots were effectively taken over by an agricultural cooperative and in 1958 the allocation was formally quashed and the ownership of the plots passed to the State.
The fifth applicant submits that in 1997 the first four applicants donated their claims to the title to the relevant plots to him and that he became their legal successor in respect of these plots.
In 1991 the first applicant and the third applicant lodged, unsuccessfully, demands with the above agricultural cooperative for restitution of the assigned plots and for compensation. The claims were based on a special law of 1991, the Land Ownership Act (Law no. 229/1991 Coll. - “the Act”). However, they were not lodged with the competent Land Office, as required under section 9(1) of that Act.
In 2004 the applicants lodged a claim for restitution of the land in question under a newly adopted special law, the Restitution of Title to Real Property Act of 2003 (Law no. 503/2003 Coll.). It is still pending.
In 1992 several members of family F. lodged a claim under the Act with the Dunajská Streda Land Office for restitution of the land in Okoč. They submitted that it had belonged to their legal predecessors at the time of the confiscation in 1946.
On 7 July 1992 the claimants and the agricultural co-operative which was using the land entered into an agreement on restitution (dohoda o vydaní) of the property in question to the claimants. The agreement was submitted for approval to the Land Office as envisaged under the Act.
Considering that it was questionable whether the claimants had any title to the land, the Land Office invited them to seek a determination of their rights before a court and stayed the restitution proceedings pending the outcome of such judicial proceedings.
On 17 February 1993 the Dunajská Streda District Court (Okresný súd) found that the land had been in the co-ownership of the claimants’ legal predecessors at the time of their death in 1961 and 1986, respectively.
On 15 July 1993 the Land Office approved the restitution agreement of 7 July 1992. The decision became final on 9 August 1993.
In 1996 the first four applicants unsuccessfully challenged the decision of 15 July 1993 before the Ministry of Agriculture in a special procedure outside the framework of ordinary appellate proceedings (mimo odovlacieho konania). Nevertheless, the decision of 15 July 1993 was finally quashed on a protest lodged by the prosecution service.
The restitution agreement of 7 July 1992 was then examined anew, by the Dunajská Streda District Office (legal successor to the Land Office), which decided – twice - not to approve it. Both decisions were judicially reviewed and quashed by Trnava Regional Court (Krajský súd).
The proceedings are still pending
On 14 December 1993 the first two applicants brought an action against the Slovak Land Fund in the District Court for a determination of ownership in respect of the relevant plots.
In 1994 the proceedings were discontinued on the ground that the matter fell outside the jurisdiction of the courts.
On 21 November 1994 the first two applicants brought an action against family F. They sought a ruling declaring them to be the owners of the land in question and an interim measure suspending the above-mentioned court rulings concerning the title of family F. to the land.
All judges of the District Court declared that they were unable to sit in the case further to a previous incident when the fifth applicant and his son had insulted the president and one of the judges of that court.
On 17 January 1995 the Regional Court ruled that there were no grounds for disqualifying the entire bench of the District Court from dealing with the case.
In March and April 1995 the District Court requested the defendants’ observations in reply and other information from the Land Office and the Šaľa District Archive.
On 13 April 1995 the District Court dismissed the request for an interim measure, discontinued the proceedings and decided to transmit the matter to the administrative authorities within the jurisdiction of which it fell. The plaintiffs appealed and challenged all judges of the District Court for bias.
Between May and July 1995 the District Court sought the defendants’ observations in reply to the appeal, an explanation of the plaintiffs’ challenge of bias, information from the District Archive and the Nitra Register Office and an amendment to the action in view of the fact that one of the defendants had died.
On 29 September 1995 the Regional Court quashed both the decision concerning the interim measure as well as that concerning the discontinuation of the proceedings. The former ruling was found to be premature and the latter ruling to be erroneous given that the defendants were natural persons.
In November and December 1995 and January 1996 the District Court requested three times that the plaintiffs substantiate the challenge of bias, pay the court fees and complete the request for an interim measure. In the meantime they had withdrawn the power of attorney from their lawyer.
In February 1996, in response to the District Court’s request, the plaintiffs’ new representative submitted the missing information.
A hearing was scheduled for 14 March 1996. Two days before that hearing the plaintiffs’ representative apologised for not being able to attend due to health reasons. The plaintiffs did not appear. The hearing was adjourned until 2 May 1996.
The defendants’ lawyer then requested a postponement of the hearing which was planned for 2 May 1996 due to health reasons and the plaintiffs withdrew the power of attorney from their representative. The hearing was adjourned until 27 May 1996. Following the latter hearing, on the same day, the District Court decided to join the present action to the action of the third and fourth applicants (see below).
On 21 November 1994 the third and fourth applicants brought separate proceedings against family F. for a determination of ownership in respect of the land in question. They also sought an interim measure, similar to that sought by the first two applicants.
On 31 May 1995 the Regional Court ruled, in the context of the incident mentioned above, that there were no grounds to disqualify the District Court’s judges from dealing with the case.
In July 1995 the District Court requested information concerning the case from the Land Office and the District Archive. In November 1995 it demanded that the plaintiffs bring their request for an interim measure in line with the applicable formal requirements and specify who the actual defendants were, given that one of the original defendants had died. In response, their legal representative informed the District Court that the plaintiffs had withdrawn his power of attorney. The request was reiterated.
In January 1996 the plaintiffs submitted that they had new legal representation but they submitted no power of attorney. The District Court again requested that they specify the action and the request for an interim measure and sought further information from the District Archive.
A hearing scheduled for 14 March 1996 had to be adjourned until 2 May 1996 owing to the absence of the plaintiffs and their legal representative who had informed the court that he had been unable to appear for health reasons two days before the hearing. The plaintiffs then again cancelled their legal representation.
On 27 May 1996 the District Court held a hearing and the proceedings in the present action were joined with the proceedings in the action of the first two applicants. Following the hearing, on the same day, the District Court dismissed both actions. A copy of the judgment was served on the first two applicants in June 1996. The third and fourth applicants refused to accept the service. All the plaintiffs appealed.
On 8 July 1996 the District Court corrected clerical errors in its judgment and requested the defendants’ observations in reply to the appeal.
On 12 November 1996 the Regional Court held a hearing following which, on the same day, it quashed the first-instance judgment and remitted the case to the District Court for re-examination. It pointed out, inter alia, that it was the plaintiffs’ responsibility to substantiate the scope, the legal nature and the factual basis of their claims.
In December 1996 and January 1997 the District Court invited the plaintiffs’ representative to submit valid powers of attorney from all the plaintiffs and to substantiate the action.
In March and April 1997 the plaintiffs’ legal representative demanded that the court proceedings be stayed pending the outcome of the administrative proceedings on the restitution claim of family F. in view of the fact that the administrative decisions on that claim had been quashed (see above). In April and May 1997 the plaintiffs appointed a lawyer to represent them in the proceedings. The lawyer submitted the missing information on 24 July 1997.
On 25 July 1997 the District Court appointed a geodesy and cartography expert to draw up a report on the land in question and ordered the parties to pay an advance on his fees.
On 14 July 1997 the plaintiffs appealed against the ruling concerning the expert’s fees and requested an exemption from the obligation to pay the court fees. On 22 July 1997 they submitted further information.
On 5 September 1997 the District Court sought information from the Sereď and Ťerchová municipal authorities concerning the plaintiffs’ material standing. It was supplied in October 1997.
On 7 November 1997 the District Court decided not to exempt the plaintiffs from the obligation to pay the court fees. They appealed and stated that they would supply the reasons for their appeal later.
On 12 January 1998 the District Court invited the plaintiffs’ lawyer to submit the reasons for their appeal of 7 November 1997, which they finally did on 10 February 1998.
On 23 April 1998 the Regional Court upheld the decision of 25 July 1997.
On 2 June 1998 the District Court admitted the Land Fund to the proceedings as the eighth defendant.
On 5 March 1999 the expert submitted two reports. The parties were then requested to submit observations in reply to the reports.
On 31 March and 17 May 1999, respectively, the defendants’ lawyer informed the District Court that one of the defendants had died in 1998 and submitted the death certificate.
On 13 May 1999 the District Court ordered the plaintiffs to pay the fees of the expert. They all appealed.
On 19 May, 9 June and 19 July 1999 the District Court repeatedly requested the plaintiffs’ lawyer to bring the action in line with the applicable requirements. On 23 July 1999 the lawyer informed the court that the third and fourth applicants had withdrawn the power of attorney from her.
On 27 July 1999 a new lawyer informed the District Court that the third and fourth applicants had appointed him to represent them in the proceedings. On 24 September 1999 he responded to the court’s request for further and better particulars.
On 14 October 1999 the District Court informed the plaintiffs’ lawyer that the particulars of their claim did not reflect the specification of the land as in the expert’s reports and warned him that he would be fined if he failed to correct the claim within 7 days. The lawyer responded on 19 October 1999 but did not change the identification of the land as instructed.
On 9 March 2000 the Regional Court quashed the decision of 13 May 1999 concerning the expert’s fees and remitted the question to the District Court for re-examination.
In May 2000 the plaintiffs’ representative submitted that they had cancelled his power of attorney. The District Court ruled again on the expert’s fees and warned the plaintiffs that the proceedings would be discontinued if they failed to correct their claim.
Between May and July 2000 the District Court made inquiries following a finding that the third applicant had died.
On 14 December 2000 the District Court discontinued the proceedings under Article 43 § 1 of the Code of Civil Procedure on the ground that the plaintiffs had failed to pursue the case. They refused to accept the service of the decision. It became final on 20 January 2001.
On 17 May 2001 the fifth applicant made a written submission by which he sought to appeal against the decision of 14 December 2000. He made similar submissions later.
On 21 May 2001 the District Court informed the fifth applicant that there were doubts as to his power of attorney to act in the name of the first four applicants and invited him to show that he was authorised to do so. In a letter of 24 June 2002 the District Court warned the fifth applicant that it would be unable to continue communication with him unless he produced evidence that he was empowered to act on behalf of the first four applicants. There is no indication that any formal proceedings ensued from the fifth applicant’s submissions.
On 26 January 2000 the first four applicants, who were represented by the fifth applicant, filed a petition (podnet) with the Constitutional Court. They complained about the length of the proceedings concerning the restitution claim of family F. and their ownership actions of 1994.
On 22 June 2000 the Constitutional Court rejected their motion as falling short of the statutory requirements.
On 7 November 1995 the fifth applicant was charged with the offence of unauthorised use of someone else’s property under Article 249 of the Criminal Code. The charge was based on the suspicion that he had been using illegally a plot which belonged to the real estate in dispute.
On 30 January and 29 April 1996, respectively, the applicant was committed for trial and found guilty as charged by the Komárno District Court in summary proceedings by way of a penal order (trestný rozkaz).
The applicant successfully appealed (protest). The order was ex lege vacated and the matter fell to be determined in ordinary proceedings.
In 1997 the proceedings were stayed under Article 173 § 1 (c) of the Code of Criminal Procedure on the ground that the fifth applicant had become unable to understand them owing to the state of his mental health.
In 1999 the proceedings were stayed under Article 173 § 1 (a) of the Code of Criminal Procedure on the ground that it was not possible to secure the fifth applicant’s presence.
On 19 December 2003 the proceedings were resumed and joined with the proceedings concerning the charge of 2002 (see below).
On 30 August 2002 the fifth applicant was charged with the offences of violence and grave disturbance under Articles 197a and 2002 § 1 of the Criminal Code.
In October 2002 the Dunajská Streda District Court ordered examination of the fifth applicant’s mental health by two experts.
On 19 December 2003 the proceedings on the charges of 1995 and 2002 were joined. The proceedings are still pending.


ITEMID: 001-57798
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF VIDAL v. BELGIUM (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 1. The case was referred to the Court by the European Commission of Human Rights ("the Commission") on 8 March 1991, and by the Government of the Kingdom of Belgium ("the Government") on 6 May 1991. It originated in an application (no. 12351/86) against Belgium lodged with the Commission by a Belgian national, Mr Frans Vidal, on 7 July 1986.
2. For the facts of the case reference should be made to the principal judgment of 22 April 1992 (Series A no. 235-B, pp. 21-30, paras. 7-27). In that judgment the Court held there had been a breach of Article 6 (art. 6) of the Convention, as the Brussels Court of Appeal, ruling on 11 December 1985 after the case had been remitted to it by the Court of Cassation, had without giving reasons and merely implicitly refused an application by Mr Vidal’s defence counsel that four witnesses should be called; basing its decision solely on the case-file and the defendant’s oral statements, it had increased the sentence passed by the Liège Court of Appeal on 26 October 1984, after the applicant’s acquittal for want of evidence by the Namur Criminal Court on 9 August 1984; and the Court of Cassation had on 12 February 1986 dismissed Mr Vidal’s second appeal (ibid., pp. 31-34, paras. 30-35 of the judgment and point 1 of the operative provisions).
3. Mr Vidal claimed, as "just satisfaction", compensation for damage and reimbursement of costs and expenses, but requested the Court to hold that the question of the application of Article 50 (art. 50) was not ready for decision, in view of the possibilities which Belgian internal law might offer for remedying the consequences of the violation and of the prospect of a friendly settlement.
The Court accordingly reserved the said question. It invited the Government and the applicant to submit to it in writing within three months their observations on the point and in particular to communicate to it any agreement which they might reach (ibid., pp. 33-34, paras. 36-37 of the judgment and point 2 of the operative provisions).
4. The registry received the applicant’s written observations on 17 July 1992, the Government’s on 27 July, and those of the Delegate of the Commission on 11 September. These showed among other things that the applicant and the Government had been unable to agree on a figure and that recourse had not been had to Article 441 of the Code of Criminal Procedure (cf. the Piersack v. Belgium judgment of 26 October 1984, Series A no. 85, pp. 13-15, paras. 5-6, and the De Cubber v. Belgium judgment of 14 September 1987, Series A no. 124-B, pp. 14-15, paras. 5-7).
5. The Court decided not to hold a hearing.


ITEMID: 001-99164
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF DOLHAMRE v. SWEDEN
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 8
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 5. The applicants are Swedish nationals and live in Götene. The first applicant (born in 1952) is of Swedish origin while the second applicant (born in 1954) originates from the Lebanon. She arrived in Sweden in 1979 and later obtained Swedish nationality. In 1986 the first and the second applicant married. Their three children, A. (born in 1988), B. (born in 1991) and C. (born in 1994), have been raised bilingually, speaking Swedish and Assyrian.
6. In February 1998 A. told personnel at her school that she, her mother and her siblings were being beaten at home by her father and that he looked at her in a strange way. She was afraid to go home with her father. The school contacted the social services but, after a meeting with the first and second applicants, the matter was dismissed as fabrications by A. However, the first and second applicants agreed to A. seeing the school psychologist. It would seem that her contact with the psychologist lasted only for a short time.
7. In July 2001 the first applicant's sister, I., contacted the Social Council (socialnämnden) of Götene and informed them that A. had called her to ask for help to leave home. According to I., A. had told her that her father used to beat her and her siblings.
8. On 13 August 2001 A. ran away from her mother while in town, with the intent of travelling to see I. However, the second applicant stopped her at the train station and a violent argument erupted between mother and daughter. The police were called and they were taken to the police station where the social services intervened. A. told the authorities that her father beat her and treated her in a degrading manner. She insisted that she wanted to go to stay with I. After the social services had discussed the matter with the first and second applicants, they agreed to a voluntary placement of A. in a family home, as long as she was not going to stay with I. since the first applicant had a very poor relationship with his sister.
9. On the following day, the first and second applicants met with the social services and were informed that an investigation had been opened into the family's situation and that it concerned all three children. They stated that they were a normal family and that they had no idea why A. was behaving in such a way. The social services proposed that the second applicant live with her children away from their home during the investigation since the suspicions about ill-treatment were not directed against her. This offer was declined and the first and second applicants refused to consent to the younger children being placed in a family home.
10. After a week at a family home, A. was transferred to Västrumsgården, an evaluation home (utredningshem), to receive professional help and have her situation examined. She told personnel at the home that the first applicant had sexually abused her since the age of three and that he regularly beat her, treated her in an abusive manner and insulted her. This information was reported to the police and an investigation into the matter was opened. When questioned by the police, A. maintained her allegations. However, the first applicant denied all accusations against him.
11. On 9 October 2001 the Social Council decided, under section 6 of the Act with Special Provisions on the Care of Young Persons (Lagen med särskilda bestämmelser om vård av unga, 1990:52 - hereinafter “the 1990 Act”), immediately to take all three children into public care on a provisional basis. It considered that, on the basis of the information given by A., she and her younger siblings had to be protected from their father and receive professional care and support. A. had expressed a strong fear of her father and of her own reactions to possible demands from her parents. She had also alleged that her father physically abused her and her younger siblings and that he controlled and verified everything in the family, from telephone calls to the women's menstrual cycles. The council further noted that the parents had refused to let the social services meet and talk to B. and C. A meeting between the parents and the authorities had also been rendered impossible as the parents had insisted that their lawyer be present and he had been too busy. In the Social Council's view, it was absolutely necessary to talk to the parents as well as to the children to assess the family's situation.
12. The first and second applicants stated that they had invited the social services to visit their home but that this invitation had been declined.
13. B. and C. were kept at school by the social services on 9 October 2001 while their parents were informed about the immediate public care decision. The first applicant contacted his friend, who was also the family's legal representative, for advice and the parents were then allowed to talk briefly to B. and C. on the telephone. The children were apparently very agitated. They were initially placed in a home for care and residence but, on 12 October 2001, they were moved to an evaluation home called Ekbacken.
14. The first and second applicants opposed the measure, as they claimed that the accusations were groundless and that B. and C. were fine and happy at home. As concerned A., they agreed to her staying at the evaluation home in order to clarify her behaviour and for her to receive appropriate help. Moreover, they requested that the children undergo a medical examination to establish their state of health and to verify whether they had been abused.
15. The legal representative, assigned to defend the children's best interest, supported the provisional care order and, on 30 October 2001, after having held an oral hearing, the County Administrative Court (länsrätten) of Mariestad confirmed the decision of the Social Council. The first and second applicants did not appeal against this judgment.
16. Prior to the County Administrative Court's judgment, all three children had undergone medical examinations focusing on their general health only.
17. On 5 November 2001 the Social Council applied to the County Administrative Court for a permanent care order in respect of the three children, in accordance with section 2 of the 1990 Act. The Social Council had carried out an investigation into the family's situation, based on conversations with A. and people in her circle such as teachers and relatives and the first and second applicants had also been heard. From the investigation, the council made the assessment that A.'s account of sexual and other abuse was very credible, noting that she had given specific examples of the abuse, and that she had been raised in an environment entirely controlled by her father. She was in a poor mental state and she did not want to have any contact with her parents. In light of the investigation's result, the council maintained that the children had been ill-treated at home and that there was a clear risk of impairment to their health and development if they were not protected.
18. The first and second applicants opposed the measure, insisting that there was no need for the two younger children to be in care and that, since they had agreed to voluntary care for A., there was no need for compulsory measures.
19. The children's legal representative agreed that it would be in the best interest of the children to be placed in public care on a permanent basis.
20. On 20 November 2001 the County Administrative Court held an oral hearing during which it found that the investigation into the situation of the two younger children was insufficient and further examination was needed. Hence, it adjourned the case in relation to them but proceeded with the case in regard to A., since the evaluation home had carried out an in-depth social, psychological and psychiatric examination of her. According to this examination, she showed different personalities and had not developed a will of her own or a sense of “self” because of the insecure and unpredictable living conditions which she had endured for many years. She had difficulties relating emotionally, socially and physically to other persons, had a very strong fear of being abandoned and was in constant need of another person to confirm her actions, decisions and thoughts. She also wavered between feeling that she had done the right thing to tell of the abuse and regretting it and just wanting to return home. She had difficulties trusting adults but there was nothing to indicate that she was making up stories. She was in need of all-embracing professional help in a secure environment for a long time.
21. The first and the second applicants maintained that A. was fabricating stories and that no abuse had occurred in their home. However, they agreed that she was in need of help but contended that it could be provided on a voluntary basis.
22. On 22 November 2001 the County Administrative Court granted a permanent care order for A. It found that she was in a very difficult situation and had serious problems which had been caused by bad conditions at home. Moreover, it considered that, in order to ensure that her treatment was not interrupted or jeopardised, it was necessary to take her into public care permanently as care on a voluntary basis could, at any time, be interrupted by her parents. The judgment was not appealed against and, consequently, gained legal force.
23. In January 2002 A. was transferred to another evaluation home, Lännahemmet, which was to provide care and treatment for her as well as establishing co-operation with her parents on matters such as contact with relatives and others.
24. On 14 February 2002 the County Administrative Court held an oral hearing in the case concerning B. and C. A social and psychological examination of the children had been carried out at the evaluation home and the Social Council had finalised its investigation. From these evaluations, it appeared that C. was very attached to her older brother and gave the impression of being very insecure and younger than her actual age. It was not possible to give a clear answer as to whether or not she had been exposed to a specific kind of abuse but, on the basis of her emotional development and her behaviour at the evaluation home, it was found that the parents had exposed her to some form of abuse or ill-treatment. With regard to B., the evaluation showed that he was ambitious and responsible but that he was under a lot of pressure as he identified with his parents and was unwilling to talk about his situation. Moreover, on several occasions, he had hidden in a closet when someone was angry with him because he had been afraid to be yelled at or beaten by the personnel. Both children had mentioned that they had been beaten by their father and that they had seen him beat A. and they gave specific examples of such incidents. Although the abuse committed against the children had not caused physical damage, it was found that it could potentially have caused permanent psychological damage and even more so since their mother had not intervened to protect them. However, apparently, both children had promised their parents not to talk about their home situation and were keen to keep this promise, which had prolonged their evaluation. It was concluded that both children were in need of long-term qualified care outside their home to deal with their negative experiences and be protected from their father.
25. The first and the second applicants disputed the findings and questioned whether the evaluation had been carried out in an objective manner. In any event, they claimed that the psychological assessments had been inadequate and they insisted that they had never ill-treated their children and that any indications to that effect from the children were fabrications.
26. On 21 February 2002 the County Administrative Court granted permanent care orders for B. and C. It had regard to the fact that it had found the conditions in the home to have caused A.'s serious health-related disturbances and noted that this, naturally, also had a bearing on the assessment in relation to the younger children. It further found no reason to question the methodology used by the specialists at the evaluation home and considered that their conclusions showed that the conditions in the applicants' home had not been good and that B.'s and C.'s health and development had been hampered and risked being even further impaired if they did not get adequate and appropriate help and support. In this respect, the court observed that the children had shown unusual behaviour for their age, sometimes sexualised, and had made astonishing remarks about violence. They had also, in various ways, expressed that they were not allowed by their parents to talk about their home situation.
27. The first and the second applicants appealed against the judgment to the Administrative Court of Appeal (kammarrätten) in Jönköping, requesting that the care order be repealed and that B. and C. be returned home immediately, since there were no reasons to keep them in public care.
28. On 24 April 2002 the prosecutor decided to discontinue the preliminary investigation relating to A.'s accusations of sexual abuse by her father. This decision was in part due to the fact that she had retracted substantial parts of her accusations.
29. The Social Council contested the appeal and submitted, inter alia, that A.'s withdrawal of her accusations against her father did not necessarily mean that they were untrue. According to the council, it was very common for children who had told about poor home conditions later to alter or retract their statements when they realised what consequences these statements might entail for their family. In any event, the younger children had not withdrawn what they had said during police interviews and their behaviour and statements supported that various forms of abuse had occurred in their home. The children needed to be placed in family homes, receive psychiatric help and to re-establish contact with their parents.
30. The children's legal representative also contested the appeal, noting that since contact had been re-established between the parents and B. and C., the children had changed in a negative way. B.'s need to control had returned, he gave daily reports to his parents and he took on adult responsibilities. Still, it was important that the contact had been restored.
31. On 3 June 2002 the Administrative Court of Appeal held an oral hearing in the case where witnesses for both parties were heard and a video recording of a police interview with A. held on 22 April 2002 was shown to the court at the request of the first and second applicants. Written evidence was also invoked, including copies of police interviews held with B. and C.
32. On 14 June 2002 the Administrative Court of Appeal upheld the lower court's judgment in full. It first noted that the 1990 Act was protective legislation, intended to prevent children from being seriously harmed either through their own lifestyle or through detrimental circumstances in their home environment. In the latter case, a balance had to be struck between the parents' right to raise their children and the child's right to be protected from harm. The court then observed that, in the present case, the parents and the social services had given completely contradictory information about the children and their situation. However, it noted that all three children had, at some point, told both police officers and personnel at the evaluation homes that their father had exposed them to physical, psychological and verbal violence. In the court's view, there was no reasonable explanation why all three children would tell lies about their parents. Moreover, professionals at the evaluation homes had observed and assessed the children's behaviour and had found them to be afraid of being beaten or otherwise badly treated. Thus, the court concluded that, even though A. had retracted substantial parts of her accusations, the material in the case still supported the view that B. and C. had been the victims of such ill-treatment in their home that there was a substantial risk to their health and development unless they got proper care outside their home.
33. The parents appealed against the judgment to Supreme Administrative Court (Regeringsrätten) but later withdrew their appeal. Consequently, on 13 February 2003, the court struck the case out of its list of cases and the Administrative Court of Appeal's judgment gained legal force.
34. In the meantime, on 17 April 2002, the Social Council, in accordance with the 1990 Act, re-examined the need for public care of the three children and found that it should be continued. In relation to A., it was found that she had a very deep split in her personality which could often be seen in children who had been in a position of strong negative dependence on a parent. Her behaviour reflected a traumatic up-bringing. Moreover, she had been in need of very close contact with aunt I. who, in turn, had set down limits to their contact. A. had reacted strongly to this and had felt let down. In March 2002 she had called her father once but had reacted very strongly to their conversation. After this she did not want to say more about the abuse and she no longer knew if she wanted to maintain what she had previously said, although she did not deny that it was true. Turning to B., it was observed that he had been involved in adult conflicts and family secrets by his parents which was a heavy burden for him and that he was afraid of his father's and others' anger. He had developed positively at Ekbacken and needed continued care and protection from his father. C. had lived in a strictly controlled environment with secrets and both physical and mental abuse and, although she had improved at the evaluation home, she was in need of continuous care and protection. Moreover, although the parents had been encouraged to suggest relatives from the mother's side with whom the children could have contact, they had not done so.
35. Following the discontinuation of the preliminary investigation on 24 April 2002, the first and second applicants requested the Social Council to reconsider its decision and end the public care of all three children.
36. By decision of 29 April 2002, the Social Council maintained the permanent care order of the children as it considered that they needed care and treatment outside their home. It observed that A. had called her father and her parents' previous legal representative, who was also a long standing personal friend of her parents, on several occasions during the weeks leading up to the police interview on 22 April 2002, when she retracted substantial parts of her accusations against her father. During the conversations with her father, she had cried and been very upset but once the police interview was over she had become much calmer, almost cheerful.
37. The first applicant and his and the second applicant's legal counsel were present at both of the Social Council's meetings. However, they did not appeal against any of the decisions.
38. On 2 October 2002 the Social Council again re-examined the need for public care of the three children to continue and found that it was necessary as they were in great need of professional help and support from secure adults. It also decided to move A. to another evaluation home upon her own request and to move B. and C. to a family home. It was observed that the first and second applicants had refused to meet staff at Lännahemmet to be informed about the care provided to A. and how she was doing. They had also refused to meet A. at a “neutral” place in Stockholm, apparently because they wanted the legal proceedings to end first. However, the first applicant had spoken very frequently with her on the telephone and A. had become very involved in the proceedings concerning both her and her younger siblings which hindered the progress of her treatment and care. She had also stated that her father had never abused her and that she did not need any care.
39. The first and the second applicants appealed against this decision to the County Administrative Court and requested that the care orders be terminated in respect of all three children. In any event, they demanded that all access restrictions between them and their children be lifted and that they be told where their children were being kept (see below under “Access restrictions”). They maintained that the children had always been well treated at home. Moreover, they claimed that the younger children had been ill-treated at the evaluation home and had suffered from being there. In this respect, they considered it discriminatory that B. and C. had not been allowed to speak Assyrian with their mother on the telephone and that relatives from their mother's side had not been allowed any contact with them. They invoked witness statements supporting their claims and an assessment made by a specialist in this field, Dr B. Edvardsson, which strongly criticised the social services' handling of the case. In particular, he considered that the social services' investigation lacked basic objectivity, was influenced by the investigators' own views and beliefs that abuse had taken place in the applicants' home and that there was a complete absence of willingness or efforts to consider or find alternative explanations to the children's behaviour.
40. A new legal representative had been nominated for the children and he supported the parents' appeal. He stated that during the conversations that he had had with B. and C. there was no doubt that they wished to return home to their parents. He was very critical of the first police interview with A. and noted that no one in the family's home town had ever seen the children being hurt.
41. The Social Council contested the applicants' claims and submitted that all persons involved in assessing the children had found that they had psychological problems and had showed deficient behaviour at the evaluation homes. Moreover, the investigation into the children's situation had started with information from the children themselves and should therefore be taken seriously.
42. On 11 November 2002 the County Administrative Court held an oral hearing in the case, where several witness were heard, including Dr B. Edvardsson. A. was given the opportunity to express her views on the matter, before the court but in a separate room. She stated that she had been under the influence of her aunt, I., and that it was I. who had incited her falsely to accuse her father.
43. In a judgment of 21 November 2002, the County Administrative Court repealed the Social Council's decision and ordered that the public care of all three children be terminated. The judgment was enforceable immediately even if it was appealed against. The court found that, since the children no longer maintained their earlier statements concerning violence and bad conditions at home, higher demands had to be required of the investigations and evaluations of the children than earlier. It then considered that part of the criticism expressed by Dr B. Edvardsson against the social services' investigations and assessments of the children was justified and raised doubts as to their conclusions. Moreover, it noted that, although the social services had attached much weight to the information provided by I., she had not been heard before the courts. On the contrary, the witnesses who had been heard had all stated that they found the family to be normal and to have good home conditions. Thus, having regard to all circumstances, the court concluded that there was no longer sufficient support to believe that the deficient home conditions which had formed the basis of the care orders had ever existed. Therefore it was not justified to keep the children in public care.
44. In the morning of 22 November 2002, the first and second applicants, together with their legal representative, fetched B. and C. from their family home and then the second applicant travelled with them to relatives in another country.
45. However, already on 21 November 2002, the Social Council had appealed against the County Administrative Court's judgment and requested that it be suspended until the Administrative Court of Appeal had considered the case. The request was granted by the court on the following day and A. was therefore not allowed to leave the evaluation home.
46. The Social Council alleged before the Administrative Court of Appeal that the children were in continued need of care and professional treatment. This was particularly so since the parents had refused to co-operate with the social services throughout the process and did not ensure the best interests of their children.
47. The first and second applicants disputed the claims and referred to the lower court's judgment, which they considered to reflect correctly the situation. They further maintained that the social services' accusations against them were untrue and that their home had been open. However, the authorities had not listened to them and had confronted them with ready-made decisions. Moreover, they stated that the only reason why they had not seen A. since the hearing before the County Administrative Court was that the social services had not permitted it.
48. The children's legal representative supported the parents' stance and considered that there existed no grounds whatsoever on which to continue the public care of the children. He further requested that A. be heard by the court.
49. In a decision of 10 February 2003, the Administrative Court of Appeal rejected the representative's request on the ground that A. had already been heard before the lower court, that it had the recording of this hearing and that no new circumstances had been invoked which justified hearing the child anew.
50. After having held an oral hearing where, among others, I. testified, the Administrative Court of Appeal, on 23 March 2003, decided to repeal the lower court's judgment and uphold the Social Council's decision to continue the public care of the three children. The court found that the children were in need of continued, professional care outside their home; A. in order to work through the traumas that she had experienced in her home environment and B. and C. in order to learn to control their aggression and deal with their negative experiences. It further considered that all three children were in need of protection from the negative influence of their parents who had their own, and not their children's, best interest at heart. This was manifested in their lack of co-operation with the social services to facilitate the children's return home and the very limited amount of time which they had spent with their children since they had been in public care. In this respect, it was noted that the parents had not taken the opportunity to visit A. when they had been offered to do so after she had been taken into public care. Thus, the court concluded that the children's care orders should be maintained.
51. The parents appealed to the Supreme Administrative Court (Regeringsrätten) which, on 30 June 2003, refused leave to appeal.
52. On 10 September 2003 the Social Council reviewed the public care of the children in accordance with the 1990 Act and decided that it should continue. It noted that it had little information on the younger children's whereabouts following 22 November 2002 but the fact that they were kept in hiding by their parents could mean an additional risk to their health and development. As concerned A., it was observed that she had become very involved in the proceedings and that her parents allowed and encouraged her to participate instead of relieving her of that burden. The council was firm in its view that A. was in need of long-term professional treatment and care outside her home.
53. The first and second applicants appealed against the decision, stating that the Social Council's decision lacked reasoning, and maintaining that there had never existed any grounds on which to take the children into public care. They submitted a report, dated 5 June 2003, by a psychologist, Dr L. Hellblom Sjögren, who had met with the whole family during the summer of 2003 and had gone through all the material relevant to the case. In the report, it was noted that the children felt that they had not been listened to by the authorities or the personnel at the evaluation homes but that, instead, they had been pressured by them. Dr Hellblom Sjögren found no proof that the children had been traumatised in their home. On the contrary, she considered that the trauma for B. and C. had taken place when they had suddenly been separated from their parents without understanding why and then, for almost seven months, had not been allowed to talk to their parents. Moreover, they had not benefited from normal schooling and they had not been well cared for at the evaluation homes. In conclusion, she observed that the children denied that any abuse had taken place at home or that there had otherwise been any problems. They had expressed a strong wish to return home, which Dr Hellblom Sjögren agreed would be best for them.
54. The children's legal representative also appealed against the Social Council's decision, claiming that there were no grounds on which to continue the public care. He stated that, on A.'s own initiative, she had been examined by a gynaecologist, which had shown that she had never been sexually abused. A certificate to this effect was submitted to the court.
55. The Social Council contested the appeals and submitted that the assessments made at the evaluation homes had shown that the children were unwell. Thus, it was not so important to know if A. actually had been the victim of sexual abuse since, in any event, the council had not dwelt on the reason why the children were unwell, but had focused on providing them with qualified care.
56. On 29 October 2003, after having held an oral hearing, the County Administrative Court reversed the Social Council's decision and ordered the immediate termination of the care orders. It first observed that the criticism which it had noted already in its previous judgment concerning the investigations and evaluations of the children remained. It then had regard to the report made by Dr Hellblom Sjögren and observed that it corresponded to what A. had said during the oral hearing, notably that there had been a lack of interest from the personnel at the evaluation home and the social services once she had withdrawn substantial parts of her accusations against her father. The court considered that A. had given a mature and trustworthy impression and that there were no longer any concrete grounds for keeping her in public care. With regard to B. and C., the court took into account that they had now lived with their mother for almost one year and, since it had found that the investigation no longer showed that the situation in the home was deficient, it was not in the children's best interest to remain in public care. On the same day A. left the evaluation home.
57. The Social Council did not appeal against this judgment and so it gained legal force. The council considered that all three children were still in need of care and protection but that since none of them were de facto in public care anymore, it was found to be in their best interest not to appeal against the court's judgment.
58. On 12 October 2001, the same day that B. and C. were moved to Ekbacken, the Social Council decided to prohibit all contact, including by telephone, between the parents and B. and C. They were allowed to write letters to each other and the parents were to be given continuous information concerning the children from the personnel at Ekbacken. The council was of the opinion that the first and second applicants had a negative influence on the children and would try to hinder their speaking to or trusting the authorities. B. had expressed a worry about how to handle certain “family secrets” and what his father would approve of him telling. This decision was not appealed against.
59. On 9 January 2002 the Social Council decided to prolong the prohibition of all contact between the parents and the two younger children until the County Administrative Court had decided whether or not to grant the permanent care order. It considered that it was clear that, in relation to their parents, the children felt obliged to pretend to be on their father's side against the authorities and they had been told not to trust anyone outside the family. Moreover, there was a real risk that the parents would interfere in the investigation and try to influence the children negatively if they were allowed direct contact. Thus, it was in the best interest of B. and C. not to see or talk to their parents. However, they were free to write letters to each other whenever they wanted. This decision was not appealed against either.
60. According to the report from Ekbacken, of 28 January 2002, B. and C. had continuously received letters from their parents and had replied to them when they wanted to. The first applicant had called Ekbacken on a regular basis to hear how the children were doing but the second applicant had never called. Moreover, both children had spoken warmly about their relatives on their mother's side but, since they lived in Germany, it was considered that they could not contribute in providing structure and stability in the children's everyday life. B. and C. had had some telephone contact with their paternal grandfather but he had announced that he no longer wished to have contact with them. They had regular contact with aunt I.
61. In January 2002 the first applicant requested that the children be given language lessons in Assyrian at the evaluation homes in order to keep up their mother tongue and also that they be allowed to visit the Assyrian church. It would appear that these requests were never formally treated by the Social Council but that, in practice, they were rejected as the children were allowed neither to speak their mother tongue nor to have contact with the Assyrian church.
62. On 17 April 2002 the Social Council again prolonged the prohibition of all contact between the parents and the two younger children but, at the same time, decided that co-operation between the social services and the parents should be commenced concerning how contact between the parents and children could take place. It was noted that both children were developing well at Ekbacken, that they had contact with some relatives and that the possibility of establishing contact with more of their relatives was being explored. The children were also encouraged to write letters to their parents but often chose not to, since they were afraid that their parents would be angry if they said how they were doing at the evaluation home. The first and second applicants were dissatisfied with the situation but could envisage refraining from contact with their children for as long as the police investigation was on-going in order to avoid potential accusations that they influenced the children.
63. However, on 29 April 2002, the prohibition on the parents' contact with B. and C. was ended by the Social Council as a direct consequence of the cancellation of the preliminary investigation on 24 April 2002. It was decided that contact should be initiated immediately between the parents and the two children and the Ekbacken staff were given the task of finding an agreement on how these contacts should be pursued.
64. On the following day, 30 April 2002, the parents were informed that they were allowed to telephone B. and C. It would appear that the second applicant and the children were told not to speak Assyrian with each other since the personnel supervising the conversations did not understand. Moreover, in the middle of May 2002, it was decided that the children should have no further contact with aunt I. in order to avoid further pressure on them, since the first and the second applicants opposed the contact.
65. On 16 August 2002 the Social Council decided to move B. and C. from Ekbacken to Vårsol, a home for care and residence. At the same time, it decided that the location of the children should be kept secret from the first and second applicants and that all contact with the children, including by telephone, should again be prohibited. However, contact in writing would be allowed, but only via the social services. The reasons for the decision were, essentially, that the first and second applicants had not followed the guidelines concerning contact with the children given by the social services and that the contacts had had a very negative effect on, in particular, B., who had become very unstable, difficult to handle and controlling towards his little sister. C. had also reacted negatively and had been heard to tell her parents several times on the telephone that they should not beat her if she moved back home. To begin with, the parents had called every day and, after restrictions imposed by the evaluation home because of B.'s negative change in behaviour, they called three times per week. At the beginning of May 2002 the social services had proposed that the parents meet staff from Ekbacken and the responsible social worker to be informed about the children's development, schooling and health and to plan the meetings with the children. The goal was to ensure that the meetings would be positive for the children, who had expressed a strong wish to see their parents. The parents refused this preparatory meeting on the ground that the staff had already labelled the first applicant and therefore they did not wish to have any contact with staff or other adults in the children's vicinity. They wanted a priest, who was close to the family, to visit the children, which was arranged. In July 2002 the first applicant, together with two others, came unannounced to Ekbacken, accusing the staff of mistreating the children. On 15 August 2002 the children's cousin, on their mother's side, was to make a scheduled visit to the children but the first and second applicants arrived, unannounced, with him. Still, the staff decided to invite them all in to visit the children for two hours but wanted to talk to the parents alone first. B. wanted to join them, the staff refused, but the first applicant allegedly did not respect this and said that they had no secrets from B. The meeting then became agitated and it was decided that the parents and cousin should take the children out for a pizza and then return. Upon return, the situation became chaotic with the children screaming and refusing to re-enter the home. The cousin threatened a member of the staff and police were called. In these circumstances, it was considered that the children needed to be protected from the negative and destabilising influence of their parents to be able to get some peace and benefit from the care. Information on how to appeal against the decision was attached but no appeal was lodged.
66. On 2 October 2002 the Social Council decided to prolong the prohibition of all contact between the parents and the two younger children. It was also decided to move the children to a family home, which was done on 9 October 2002, and to keep their new whereabouts secret from their parents. The restrictions would end when certain conditions in the applicable work plan of the children were met.
67. The first and second applicants appealed against the decision in connection with their appeal against the continued public care of the children (see above § 39). Following the County Administrative Court's judgment on 11 November 2002, B. and C. left Sweden together with their mother.
68. With regard to A., no formal decision was made concerning access restrictions but it would appear that the contact was based on A.'s wishes and some sort of acceptance by, or agreement with, the first and second applicants, although they later denied this.
69. On 22 April 2004 the Ombudsman against Ethnic Discrimination (Ombudsmannen mot etnisk diskriminering) issued a statement in response to a complaint filed by the second applicant. The Ombudsman noted that the children's need of contact with the Assyrian culture had not been fully satisfied while they were in public care but that Götene municipality and the second applicant had different opinions as to the reason for this. According to the Ombudsman, it could not be concluded on the basis of the case-file that the social services' treatment of the children had been affected negatively because of their or their mother's ethnic origin. Moreover, the Ombudsman noted that whether or not the municipality or specific officials had acted wrongfully was being investigated by the County Administrative Board and the Parliamentary Ombudsman, for which reasons there were no grounds for it to forestall these investigations.
70. In October 2004 the applicants complained to the County Administrative Board (länsstyrelsen) of the County of Kronoberg about the poor, discriminatory conditions at Ekbacken while B. and C. had been there. In a decision of 12 April 2005, the Board found that the children's unit at Ekbacken, when the children first arrived there, had limited B.'s and C.'s contact with their parents despite lacking a formal decision from the Social Council authorising them to do so. The Board also criticised the evaluation home for not having handed over its journals concerning the children until several months after this had been requested by the first applicant.
71. Furthermore, in September 2005 the applicants complained to the National Agency for Education (Skolverket) that the children had been deprived of proper schooling whilst in public care. On 18 July 2006 the Agency criticised the Municipality of Götene for not having fulfilled its obligation to provide education for the two younger children from 20 September 2003 until 29 October 2003. Since the time before 20 September 2003 was time-barred, the Agency dismissed this part of the complaint.
72. According to section 1 § 2 and section 2 of the 1990 Act, compulsory public care is to be provided if there is a clear risk of impairment of the health and development of a person under 18 years of age due to ill-treatment, exploitation, lack of care or any other condition in the home and if the necessary care cannot be provided with the consent of the young person's guardian. The decision to place a young person in public care is made by the County Administrative Court following an application from the Social Council (section 4).
73. Under section 6 of the 1990 Act, the Social Council may order the immediate taking into care of a young person (“provisional care order”) if it is likely that he or she needs to be provided with care under this Act and a court decision in the matter cannot be awaited owing to the risks to the young person's health or development or because the continuing investigation could be seriously impeded or further measures prevented. Section 7 provides that a provisional care order shall be put before the County Administrative Court which shall rule on whether the order shall be upheld pending the court's judgment regarding the application for public care.
74. Section 1 § 5 of the 1990 Act states that the best interest of the young person shall be decisive when decisions are made under the Act.
75. According to section 11 of the 1990 Act, the Social Council decides on the details of the care, in particular, how the care is to be arranged and where the young person is to live. Moreover, under section 14, the council shall ensure that the young person's need for contact with his or her parents or other guardians is met to the utmost possible extent. If necessary, the council may decide how this contact is to be arranged. In the preparatory works to the 1990 Act (Government Bill 1979/80:1, p. 602), it is noted that the provisions on access restrictions are to be applied restrictively. The Social Council must have strong reasons to decide on access restrictions between a young person and his or her parents. However, it can happen that the parents intervene in the care in an inappropriate manner. Their personal situation, for instance serious abuse or a grave mental illness, may be such that they should not see their child for a limited period of time. Moreover, section 14 gives the Social Council the possibility to decide to keep a young person's place of residence secret from his or her parents. This should only be done in very exceptional cases (Government Bill 1989/90:28, p. 74).
76. The care order and any access restrictions shall be reviewed every six months by the Social Council pursuant to sections 13 and 14 of the 1990 Act. The council's decision in this respect can be appealed to the administrative courts (section 41).
77. Section 21 of the 1990 Act states that, when public care is no longer needed, the Social Council shall order its termination and make careful preparations for the young person's reunification with his or her custodians.
78. According to Chapter 6, section 1 of the Social Services Act (Socialtjänstlagen, 2001:453; hereafter the “2001 Act”), care outside a young person's home shall be provided either in a family home or in a home for care and residence. Moreover, the care should be designed to promote the affinity between the young person and his or her relatives and others closely connected to him or her, as well as contact with his or her home surroundings.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-91554
LANGUAGEISOCODE: ENG
RESPONDENT: BIH
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MILISAVLJEVIC v. BOSNIA AND HERZEGOVINA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicants were born in 1947, 1973 and 1977 respectively. While the first applicant lives in Sarajevo, her sons, the second and the third applicants, live in Belgrade, in Serbia.
6. On 24 June 1983 the local authorities expropriated an apartment in Sarajevo which was occupied (but not owned) by the applicants. The local planning authorities were ordered to allocate the first applicant a suitable replacement apartment. This decision entered into force on 21 October 1983.
7. On 6 April 1987 the first applicant initiated court proceedings seeking the allocation to her by the local planning authorities of a suitable replacement apartment.
8. On 29 April 1998 the Sarajevo First Municipal Court held that, while it was clear that the local planning authorities were required to allocate the first applicant a suitable replacement apartment, the courts of law had no power to designate such an apartment. The Sarajevo First Municipal Court, consequently, declined jurisdiction. This decision entered into force on 31 March 1999 when the Sarajevo Cantonal Court upheld it.
9. On 24 November 1999 the first applicant complained to the Human Rights Chamber about non-enforcement of the administrative decision of 24 June 1983.
10. On 7 May 2003 the Human Rights Chamber found breaches of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. It ordered the Federation of Bosnia and Herzegovina (a constituent Entity of Bosnia and Herzegovina) to allocate, or to cause the local planning authorities to allocate, to the first applicant a suitable replacement apartment at the latest within one month. The Human Rights Chamber awarded the first applicant, in pecuniary damage, 18,200 convertible marks (BAM) (approximately 9,300 euros (EUR)) plus BAM 200 (approximately EUR 100) per month from June 2003 until the end of the month in which she was to be allocated a suitable replacement apartment. She was further awarded BAM 3,000 (approximately EUR 1,550) in respect of non-pecuniary damage. Lastly, she was awarded default interest on the above amounts at an annual rate of 10%. This decision entered into force on 4 September 2003.
11. On 24 March 2005 the local planning authorities offered the first applicant a tenancy of an apartment in Sarajevo. On 31 March 2005 the applicant rejected the offer.
12. On 1 July 2005 the Federation of Bosnia and Herzegovina paid the following amounts to the first applicant: BAM 18,200 in respect of pecuniary damage, BAM 3,000 in respect of non-pecuniary damage and default interest on the above amounts at the rate indicated in the Human Rights Chamber’s decision.
13. On 15 September 2005 the Federation of Bosnia and Herzegovina requested the interpretation of the order to allocate, or to cause the local planning authorities to allocate, to the first applicant a suitable replacement apartment set out in the Human Rights Chamber’s decision.
14. On 15 December 2005 the legal successor of the Human Rights Chamber, the Human Rights Commission within the Constitutional Court of Bosnia and Herzegovina, explained that in accordance with the Human Rights Chamber’s decision the first applicant should be given ownership of a suitable apartment and not only a tenancy.
15. On 19 September 2006 the local planning authorities offered the first applicant a tenancy of the same apartment as on 24 March 2005. The applicant has not accepted the offer.
16. On 8 November 2006 the first applicant filed a criminal complaint against the Government of the Federation of Bosnia and Herzegovina with the Prosecutor’s Office of Bosnia and Herzegovina (non-enforcement of a final and enforceable decision of the Human Rights Chamber constitutes a criminal offence). It would appear that no decision has been taken in that regard.
17. On 13 March 2008 the Federation of Bosnia and Herzegovina paid an additional amount of BAM 10,069.76 to the first applicant in respect of pecuniary damage (that is, BAM 200 per month for the period from June 2003 until September 2006 plus default interest on those monthly amounts at the rate indicated in the Human Rights Chamber’s decision).
18. The relevant law and practice were outlined in Karanović v. Bosnia and Herzegovina (no. 39462/03, §§ 13-15, 20 November 2007) also concerning the non-enforcement of a Human Rights Chamber’s decision.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-71700
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: ZHOVTAN v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Anatoliy Vasiliyevich Zhovtan, is a Ukrainian national who was born in 1960 and lives in Lugansk.
The facts of the case, as submitted by the parties, may be summarised as follows.
Between 26 and 29 November 1998, the applicant was detained in a cell at the Lugansk City Police Station, where he was beaten by police officers, who forced him to confess to the murder of a certain Mr Z.
On 14 January 2000 the Leninsky District Court of Lugansk sentenced the police officers concerned to imprisonment for an aggravated abuse of power. The court also awarded the applicant a total of UAH 7,000 against the officers in moral damages.
In February 2001 the applicant instituted proceedings against the Lugansk Regional and City Police Departments claiming compensation for material and moral damage suffered as the result of the ill-treatment. On 24 May 2001 the Leninsky District Court partly allowed this claim, ordering the Lugansk City Police Department to pay the applicant a total of UAH 4,249 in compensation for material damage. The court, however, rejected the claim for moral suffering as it had already been redressed by the award against the convicted officers in the criminal proceedings. The applicant appealed against the latter finding. On 13 September 2001 the Lugansk Regional Court of Appeal upheld the judgment of 24 May 2001. On 18 December 2001 the Supreme Court rejected the applicant’s request for leave to appeal under the cassation procedure.
On 8 November 2001 the Leninsky District Bailiffs’ Service instituted enforcement proceedings in respect of the judgment of 24 May 2001.
According to a letter of the Lugansk City Bailiffs’ Service of 10 July 2002, the enforcement proceedings were impeded by the lack of budgetary funds earmarked for such purposes. Nevertheless, from March 2002 onwards the applicant received from the debtor monthly instalments of UAH 500. Thus, by 28 November 2002, when the enforcement proceedings were formally terminated, the applicant had been repaid the full amount of the award (the last payment of UAH 749 being made on 9 October 2002).
The relevant domestic law is set out in the judgments of 29 June 2004 in the case of Voytenko v. Ukraine (no. 18966/02, §§ 20-25) and of 5 April 2005 in the case of Afanasyev v. Ukraine (no. 38722/02, §§ 47-52).
According to Article 231 of the Code of Civil Procedure of 1963, the first instance judgment becomes final upon the expiry of the time limit for appeal or, if an appeal is lodged, after the examination of the case by the appellate court.


ITEMID: 001-104670
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF STAVEBNA SPOLOCNOST TATRY POPRAD, S.R.O. v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 4. The applicant is a company with limited liability, with its registered office in Poprad.
5. On 6 July 1997 the applicant company’s predecessor sued a private limited company for a sum due for construction works carried out by the former.
6. Courts at two levels granted the claim in part, but the Supreme Court, in proceedings on the defendant’s appeal on points of law, quashed the lower courts’ judgments on 27 September 2001.
7. In subsequent proceedings, in December 2001, the plaintiff argued that the relevant part of the contract was void, as it had been signed by Mr K., who did not have the authority to act on behalf of the defendant company, on 22 April 1996.
8. On 5 February 2002 the Prešov Regional Court dismissed the action. It established that the parties had concluded a contract for the reconstruction of a spa house on 22 April 1996. The contract included a provision under which the plaintiff was liable to pay a penalty in case of delay. That penalty amounted to 0.5% of the contractual price for each day of delay, the maximum amount being 20%. The court established that the work under the contract had been completed on 13 December 1996 instead of 21 October 1996 as agreed in the contract. The defendant had therefore rightly deducted the sum in issue from the payment of the price.
9. As to the above argument concerning the validity of the relevant part of the contract, the Regional Court held that Mr K. had been elected to the company’s board of directors at an extraordinary general meeting held on 12 April 1996. He had therefore been authorised to sign the contract on the defendant’s behalf. The fact that he had been entered in that capacity in the companies’ register on 28 May 1996 could not affect the position, as such an entry was of a declaratory nature only.
10. On 27 March 2002 the applicant company appealed. Its representative argued that the first-instance court had disregarded the relevant evidence when concluding that Mr K. had been authorised to sign the contract for the defendant company. In particular, the applicant company relied on the minutes of a meeting of that company’s supervisory board held on 26 April 1996. Point 4 on the agenda was entitled “Election of the Board of Directors” and the minutes indicate that “the supervisory board approved Mr K. as a new member of the company’s board of directors”. The applicant further argued that there was nothing to prove that K. had been effectively appointed to that post at the general meeting held on 12 April 1996, contrary to what was stated in the Regional Court’s judgment.
11. On 12 June 2003 the Supreme Court upheld the Regional Court judgment of 5 February 2002. As regards the standing of Mr K. to sign the contract in particular, it held that the Regional Court had correctly established that that person had been elected as a member of the company’s board of directors at the general meeting held on 12 April 1996. He had therefore been entitled to sign the contract on 22 April 1996. According to one of the documents from the court’s file, on 24 May 1996 the defendant company had requested that the responsible court register Mr K. as a member of the company’s board of directors with effect from 12 April 1996. The judgment became final on 2 September 2003.
12. On 23 September 2003 the applicant company appealed on points of law against the judgment of 12 June 2003. It maintained that the appeal court had not examined its arguments concerning the evidence in the case and the standing of Mr K. to sign the contract in issue on the defendant company’s behalf. The applicant company further complained that at the end of the hearing before the appeal court its representative had not been allowed to sum up the arguments or to submit final comments on the case. The applicant company had thus been prevented from acting before the court, which was a reason justifying the admissibility of an appeal on points of law within the meaning of Article 237(f) of the Code of Civil Procedure.
13. On 31 October 2003 the applicant company lodged a complaint under Article 127 of the Constitution. It argued that its right under Article 6 § 1 of the Convention to a fair hearing had been breached by the conduct of the Supreme Court and its decision of 12 June 2003. In particular, the Supreme Court had disregarded the applicant company’s arguments concerning the standing of Mr K. to act on the defendant company’s behalf.
14. The Constitutional Court (First Chamber) dismissed that complaint on 25 February 2004. It held, with reference to Article 238 § 3(b) of the Code of Civil Procedure, that an appeal on points of law was available against the appeal court decision and that the applicant company was required to use that remedy first. The relevant part of its complaint was therefore premature.
15. On 26 May 2005 the Supreme Court (chamber dealing with appeals on points of law) dismissed the applicant company’s appeal on points of law (see paragraph 12 above) as inadmissible. According to the decision, “the applicant company was aware of the fact that the admissibility criteria for an appeal on points of law under Articles 238 and 239 of the Code of Civil Procedure had not been met, as it alleged a breach of its right of access to court, which is a ground for an appeal on points of law listed in Article 237(f) of the Code of Civil Procedure”.
16. The Supreme Court further held that the arguments concerning the assessment of evidence and determination of the point in issue did not permit the conclusion that the applicant company had been prevented from acting before the appeal court within the meaning of Article 237(f) of the Code of Civil Procedure. Such arguments could be raised only in cases where an appeal on points of law was admissible on one of the grounds enumerated in Articles 238 or 239 of the Code of Civil Procedure.
17. As to the other argument, that the representative of the applicant company had been prevented from making final submissions at the hearing before the appeal court, the Supreme Court held that the plaintiff had had ample opportunity to present its arguments in the course of the hearing. No new evidence requiring comments from the parties had been taken. The applicant company’s procedural rights had therefore not been infringed in the proceedings leading to the appellate court’s judgment of 12 June 2003. An appeal on points of law under Article 237f of the Code of Civil Procedure was therefore not available in that context.
18. On 9 August 2005 the applicant company lodged a fresh constitutional complaint. It complained under Article 6 § 1 of the Convention that its right to a fair hearing had been breached by the judgment of the Prešov Regional Court of 5 February 2002, the Supreme Court’s (appellate chamber) judgment of 12 June 2003 and the decision of the Supreme Court (chamber dealing with appeals on points of law) of 26 May 2005. The applicant company relied on the arguments which it had submitted in the proceedings before the ordinary courts. In particular, it alleged that the courts at the first and second levels of jurisdiction had disregarded the position in the case and the plaintiff’s arguments that the contract was void. The applicant further complained that its representative had been unable to make final submissions to the appeal court and that it had obtained no redress in that respect in the proceedings on the appeal on points of law.
19. The Constitutional Court (Fourth Chamber) rejected the complaint on 27 September 2005. It held that the complaint about the Regional Court and Supreme Court judgments of 5 February 2002 and 12 June 2003 had been lodged after the expiry of the statutory time-limit of two months. It declared manifestly ill-founded the complaint about the Supreme Court decision of 26 May 2005. It held, in particular, that the Supreme Court had considered the applicant company’s arguments appropriately and had given sufficient and relevant reasons for its decision on the applicant company’s appeal on points of law.
20. Article 127 of the Constitution provides:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order [the authority] which violated the rights or freedoms in question to take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order the authority concerned to abstain from violating fundamental rights and freedoms ... or, where appropriate, order those who violated the rights or freedoms set out in paragraph 1 to restore the situation existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...
21. Under section 53(1) of the Constitutional Court Act 1993, a complaint to the Constitutional Court is admissible only where the applicant has used effective remedies provided for by the law to protect his or her fundamental rights. Paragraph 3 of the same section provides that a complaint to the Constitutional Court can be lodged within two months of a decision finally taking effect or from the date of a contested measure or notification of another interference with a person’s rights.
22. Section 56(3) of the Constitutional Court Act 1993 provides that, when a violation of fundamental rights or freedoms is found, the Constitutional Court may order the authority liable for that violation to proceed in accordance with the relevant rules. It may also return the case to the authority concerned for further proceedings, prohibit the continuation of the violation or, as the case may be, order the restoration of the situation existing prior to the violation.
23. Article 118 § 3 provides that parties can sum up their proposals and comment on the evidence and the merits of a case at the end of a court hearing.
24. The relevant provisions concerning appeals on points of law provide:
“Article 237
An appeal on points of law against any decision of the appeal court is admissible where ...
f) a party has been prevented, by the appeal court’s conduct, from acting before the court ...
Article 238
...3. An appeal on points of law is also admissible against an appeal court judgment confirming the first-instance judgment where the appeal court ...
b) upheld a judgment deciding on the matter in a different manner than an earlier delivered judgment because the first-instance court was bound by the legal view of the court which had quashed the earlier judgment...”
25. In its decision no. 1 Cdo 11/02 of 24 September 2002 the Supreme Court found that availability of an appeal on points of law under Article 238 § 3 (b) did not extend to situations where an appeal court upheld a fresh first-instance judgment deciding on the matter in a different manner than in a judgment delivered earlier as a result of the fact that the first-instance court was bound by the legal view expressed by the court which had quashed such an earlier judgment in the context of proceedings on appeal on points of law. Otherwise, the last-mentioned court would be called upon to review, contrary to the purpose of proceedings on an appeal on points of law, its own legal view expressed when it quashed the original first-instance judgment in the case. This decision was included in the collected Supreme Court judgments and decisions under number 3/2004 with effect from 24 September 2004.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22732
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: O.Ö. v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ireneu Cabral Barreto;Mark Villiger
TEXT: The applicant is a Turkish national, who was born in 1961 and lives in Manisa.
The facts of the case, as submitted by the parties, may be summarised as follows.
Before his discharge from the army the applicant was the president of the Histology and Embryology Department at the Gülhane Military Hospital.
On 19 December 1997 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicant from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 50 (c) of Law 926.
The Government submit the following in the light of the intelligence reports concerning the applicant:
The applicant was a member of the Nation’s Standpoint (Milli Görüş) movement. He established contacts with two other officers who were discharged from the army on account of their involvement in extreme religious movements. The applicant was involved in disseminating the ideology of the Nation’s Standpoint. He had an antisocial character and his wife carried an Islamic scarf. He refused to participate in a saving fund on the ground that his religious belief was against the notion of interest which such a fund involved.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports, that the applicant had breached military discipline and that he should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions.
...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”


ITEMID: 001-88325
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: KURTULMUS v. TURKEY
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Ms Sevgi Kurtulmuş, is a Turkish national who was born in 1958 and lives in Istanbul. She was represented before the Court by Ms F. Benli, a member of the Istanbul Bar.
At the material time, the applicant was an associate professor at the Faculty of Economics of the University of Istanbul. She began her career in 1982 and said that she had worn the Islamic headscarf when she obtained her doctorate in 1992 and professorship in 1996.
In 1998 she was the subject of a disciplinary investigation following an allegation that she had failed to comply with the rules on dress for public servants. On 5 January 1998 she was suspended from her duties pending the outcome of the investigation. On 12 February 1998, pursuant to paragraphs 5 (g) and 9 (m) of the Disciplinary Procedure Rules for Public Servants and Administrators in Higher-Education Institutions (Yüksek Öğretim Kurumları Yönetici, Öğretim Elemanı ve Memurları Disiplin Yönetmeliği – “the Disciplinary Procedure Rules”), she was given a warning and declared ineligible for promotion for two years on the ground that she had wilfully and persistently failed to comply with the applicable rules, despite receiving verbal and written reminders.
On 18 May 1998 the applicant was reprimanded for continuing to wear the Islamic headscarf while teaching. Finally, on 27 May 1998 she was deemed to have resigned from her post under paragraph 15 of the Disciplinary Procedure Rules, again on the ground that she had wilfully failed to comply with the Rules on Dress applicable to Staff in State Institutions (Kamu Kurum ve kuruluşlarında çalışan personelin kılık-kıyafet yönetmeliği – “the Rules on Dress”).
On 30 July 1998 she applied for an order setting aside the decision of 27 May. She submitted, inter alia, that there was no statutory basis for the measure and that the relevant rules of procedure had not been followed.
On 27 April 1999 a public hearing was held, which the applicant’s counsel attended. On the same day, after deliberations, the Istanbul Administrative Court rejected the applicant’s application on the ground that the evidence in the investigation file showed that she had wilfully and persistently refused to comply with the rules on dress for public servants, despite being sent numerous reminders. It further found that the decision had been taken in accordance with the relevant procedural rules.
On 17 June 1999 the applicant appealed on points of law against the judgment of 27 April 1999. She explained that, although paragraph 5 (a) of the Rules on Dress prohibited female members of staff from wearing the headscarf when performing their duties in educational institutions, the penalty prescribed by paragraph 5 (g) of the Disciplinary Procedure Rules for breaches of the Rules on Dress was a warning. Consequently, she argued that the only penalty to which she should have been liable was a warning or a reprimand and that the penalty imposed on her was unduly harsh and incompatible with the rights and freedoms protected by the European Convention on Human Rights.
On 3 September 1999 Law no. 4455 came into force. It provided for public servants to be given an amnesty in respect of penalties imposed for disciplinary offences and for any resulting disability to be annulled.
In a judgment of 9 December 1999, the Supreme Administrative Court ruled on the basis of Law no. 4455 that it was unnecessary to examine the merits of the applicant’s appeal on points of law since she had received an amnesty in respect of the penalties that had been imposed on her and the resulting disabilities had been annulled.
However, on 16 February 2000 the applicant exercised her right under Law no. 4455 to lodge an application for orders reviving the proceedings and setting aside the judgment of 27 April 1999. She also requested a hearing.
In a judgment of 27 June 2000, the Supreme Administrative Court upheld the judgment of 27 April 1999 without holding a hearing.
The Court does not have any precise information on developments since the disciplinary penalties imposed on the applicant were cancelled, thereby giving her an opportunity to request reinstatement. However, the material before it indicates that the applicant, who argues that she has not received any written notification from the University, has not, in fact, requested reinstatement.
Provisional section 19 of Law no. 657 on State employees (Devlet Memurları Kanunu) of 14 July 1965, which was published in the Official Gazette of 23 July 1965, requires public servants to comply with rules on dress laid down by statute, circulars or regulations. Section 125 of the Law provides that a failure by a public servant to comply with the rules will result in a warning and, in the event of a repeated breach, the “maximum penalty”.
The Rules on Dress applicable to Staff in State Institutions (Kamu Kurum ve kuruluşlarında çalışan personelin kılık-kıyafet yönetmeliği) were adopted on 17 July 1982 and published in the Official Gazette of 16 July 1982. At the material time, paragraph 5 provided:
“Female members of staff
Clothes shall be clean, proper, ironed and plain. Shoes shall be plain, low-heeled and polished. No head covering shall be worn on work premises; hair shall be properly brushed and gathered, and nails cut. Trousers, blouses, and sleeveless or open-necked suits are prohibited. Skirts shall not be split or less than knee-length. Open shoes (sandals) shall not be worn.
Male members of staff
Clothes shall be clean, proper, ironed and plain. Shoes shall be plain and polished ... No head covering shall be worn on work premises ... Male members of staff shall not wear a beard and must shave every day ... Ties shall be obligatory.”
Paragraph 4 of the Disciplinary Procedure Rules for Public Servants and Administrators in Higher-Education Institutions sets out a list of the disciplinary penalties, namely a warning, a reprimand, suspension from administrative duties, loss of salary, ineligibility for promotion, deemed resignation and dismissal from office. Paragraph 5 (g) lays down that the penalty for failing to comply with the Rules on Dress shall be a warning and, in the event of a repeated breach, the “maximum penalty”.
The Amnesty for Public Servants and State Employees (Disciplinary Penalties) Act (Law no. 4455) came into force on 3 September 1999. Section 1 provided, inter alia, that persons on whom disciplinary penalties had been imposed before 23 April 1999 would receive an amnesty and that the penalty would be expunged from their service record. Section 2 of the Act entitled those concerned to make an application within one month after the date the Act came into force for an order reviving the proceedings.
Transitional section 17 of Law no. 2547 of 25 October 1990 provides:
“Choice of dress shall be free in institutions of higher education, provided that it does not contravene the law.”