ITEMID: 001-70956
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2005
DOCNAME: CASE OF LEYLA ŞAHİN v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief);Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);No violation of Article 14+9 - Prohibition of discrimination (Article 9 - Freedom of thought, conscience and religion;Article 9-1 - Manifest religion or belief)
JUDGES: Luzius Wildhaber;Nicolas Bratza
TEXT: 14. The applicant was born in 1973 and has lived in Vienna since 1999, when she left Istanbul to pursue her medical studies at the Faculty of Medicine at Vienna University. She comes from a traditional family of practising Muslims and considers it her religious duty to wear the Islamic headscarf.
15. On 26 August 1997 the applicant, then in her fifth year at the Faculty of Medicine at Bursa University, enrolled at the Cerrahpaşa Faculty of Medicine at Istanbul University. She says she wore the Islamic headscarf during the four years she spent studying medicine at the University of Bursa and continued to do so until February 1998.
16. On 23 February 1998 the Vice-Chancellor of Istanbul University issued a circular, the relevant part of which provides:
“By virtue of the Constitution, the law and regulations, and in accordance with the case-law of the Supreme Administrative Court and the European Commission of Human Rights and the resolutions adopted by the university administrative boards, students whose ‘heads are covered’ (who wear the Islamic headscarf) and students (including overseas students) with beards must not be admitted to lectures, courses or tutorials. Consequently, the name and number of any student with a beard or wearing the Islamic headscarf must not be added to the lists of registered students. However, students who insist on attending tutorials and entering lecture theatres although their names and numbers are not on the lists must be advised of the position and, should they refuse to leave, their names and numbers must be taken and they must be informed that they are not entitled to attend lectures. If they refuse to leave the lecture theatre, the teacher shall record the incident in a report explaining why it was not possible to give the lecture and shall bring the incident to the attention of the university authorities as a matter of urgency so that disciplinary measures can be taken.”
17. On 12 March 1998, in accordance with the aforementioned circular, the applicant was denied access by invigilators to a written examination on oncology because she was wearing the Islamic headscarf. On 20 March 1998 the secretariat of the chair of orthopaedic traumatology refused to allow her to enrol because she was wearing a headscarf. On 16 April 1998 she was refused admission to a neurology lecture and on 10 June 1998 to a written examination on public health, again for the same reason.
18. On 29 July 1998 the applicant lodged an application for an order setting aside the circular of 23 February 1998. In her written pleadings, she submitted that the circular and its implementation had infringed her rights guaranteed by Articles 8, 9 and 14 of the Convention and Article 2 of Protocol No. 1, in that there was no statutory basis for the circular and the Vice-Chancellor’s Office had no regulatory power in that sphere.
19. In a judgment of 19 March 1999, the Istanbul Administrative Court dismissed the application, holding that by virtue of section 13(b) of the Higher Education Act (Law no. 2547 – see paragraph 52 below) a university vice-chancellor, as the executive organ of the university, had power to regulate students’ dress for the purposes of maintaining order. That regulatory power had to be exercised in accordance with the relevant legislation and the judgments of the Constitutional Court and the Supreme Administrative Court. Referring to the settled case-law of those courts, the Administrative Court held that neither the regulations in issue, nor the measures taken against the applicant, could be considered illegal.
20. On 19 April 2001 the Supreme Administrative Court dismissed an appeal on points of law by the applicant.
21. In May 1998 disciplinary proceedings were brought against the applicant under paragraph 6 (a) of the Students Disciplinary Procedure Rules (see paragraph 50 below) as a result of her failure to comply with the rules on dress.
22. On 26 May 1998, in view of the fact that the applicant had shown by her actions that she intended to continue wearing the headscarf to lectures and/or tutorials, the dean of the faculty declared that her attitude and failure to comply with the rules on dress were not befitting of a student. He therefore decided to issue her with a warning.
23. On 15 February 1999 an unauthorised assembly gathered outside the deanery of the Cerrahpaşa Faculty of Medicine to protest against the rules on dress.
24. On 26 February 1999 the dean of the faculty began disciplinary proceedings against various students, including the applicant, for joining the assembly. On 13 April 1999, after hearing her representations, he suspended her from the university for a semester pursuant to Article 9 (j) of the Students Disciplinary Procedure Rules (see paragraph 50 below).
25. On 10 June 1999 the applicant lodged an application with the Istanbul Administrative Court for an order quashing the decision to suspend her. The application was dismissed on 30 November 1999 by the Istanbul Administrative Court on the ground that, in the light of the material in the case file and the settled case-law on the subject, the impugned measure could not be regarded as illegal.
26. Following the entry into force of Law no. 4584 on 28 June 2000 (which provided for students to be given an amnesty in respect of penalties imposed for disciplinary offences and for any resulting disability to be annulled), the applicant was granted an amnesty releasing her from all the penalties that had been imposed on her and the resultant disabilities.
27. On 28 September 2000 the Supreme Administrative Court held that Law no. 4584 made it unnecessary to examine the merits of the applicant’s appeal on points of law against the judgment of 30 November 1999.
28. In the meantime, on 16 September 1999, the applicant abandoned her studies in Turkey and enrolled at Vienna University, where she pursued her university education.
29. The relevant provisions of the Constitution provide:
“The Republic of Turkey is a democratic, secular [laik] and social State based on the rule of law that is respectful of human rights in a spirit of social peace, national solidarity and justice, adheres to the nationalism of Atatürk and is underpinned by the fundamental principles set out in the Preamble.”
“No amendment may be made or proposed to the provisions of Article 1 of the Constitution laying down that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.”
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.
Men and women shall have equal rights. The State shall take action to achieve such equality in practice.
No privileges shall be granted to any individual, family, group or class.
State bodies and administrative authorities shall act in compliance with the principle of equality before the law in all circumstances.”
“Fundamental rights and freedoms may be restricted only by law and on the grounds set out in special provisions of the Constitution, provided always that the essence of such rights and freedoms must remain intact. Any such restriction shall not conflict with the letter or spirit of the Constitution or the requirements of a democratic, secular social order and shall comply with the principle of proportionality.”
“The rights and freedoms set out in the Constitution may not be exercised with a view to undermining the territorial integrity of the State, the unity of the nation or the democratic and secular Republic founded on human rights.
No provision of this Constitution shall be interpreted in a manner that would grant the State or individuals the right to engage in activities intended to destroy the fundamental rights and freedoms embodied in the Constitution or to restrict them beyond what is permitted by the Constitution.
The penalties to which persons who engage in activities that contravene these provisions are liable shall be determined by law.”
“Everyone shall have the right to freedom of conscience, belief and religious conviction.
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 or her religious beliefs and convictions; no one shall be censured or prosecuted for his religious beliefs or convictions.
Education and instruction in religion and ethics shall be provided under the supervision and control of the State. Instruction in religious culture and in morals shall be a compulsory part of the curricula of primary and secondary schools. Other religious education and instruction shall be a matter for individual choice, with the decision in the case of minors being taken by their legal guardians.
No one shall 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 interest or influence thereby.”
“No one may be deprived of the right to instruction and education.
The scope of the right to education shall be defined and regulated by law.
Instruction and teaching shall be provided under the supervision and control of the State in accordance with the principles and reforms of Atatürk and contemporary scientific and educational methods. No educational or teaching institution may be set up that does not follow these rules.
Citizens are not absolved from the duty to remain loyal to the Constitution by freedom of instruction and teaching.
Primary education shall be compulsory for all citizens of both sexes and provided free of charge in State schools.
The rules governing the functioning of private primary and secondary schools shall be regulated by law in keeping with the standards set for State schools.
The State shall provide able pupils of limited financial means with the necessary aid in the form of scholarships or other assistance to enable them to pursue their studies. It shall take suitable measures to rehabilitate those in need of special training so as to render them useful to society.
Education, teaching, research, and study are the only activities that may be pursued in educational and teaching institutions. These activities shall not be impeded in any way...”
“The decisions of the Constitutional Court shall be final. A decision to invalidate a provision shall not be made public without a written statement of reasons.
When striking down a law or legislative decree or a provision thereof, the Constitutional Court may not act as a quasi-legislature by drafting provisions that would be enforceable.
...
Judgments of the Constitutional Court shall be published immediately in the Official Gazette and shall be binding on the legislative, executive, and judicial organs, the administrative authorities, and natural and juristic persons.”
30. The Turkish Republic was founded on the principle that the State should be secular (laik). Before and after the proclamation of the Republic on 29 October 1923, the public and religious spheres were separated through a series of revolutionary reforms: the abolition of the caliphate on 3 March 1923; the repeal of the constitutional provision declaring Islam the religion of the State on 10 April 1928; and, lastly, on 5 February 1937, a constitutional amendment according constitutional status to the principle of secularism (see Article 2 of the Constitution of 1924 and Article 2 of the Constitutions of 1961 and 1982, as set out in paragraph 29 above).
31. The principle of secularism was inspired by developments in Ottoman society in the period between the nineteenth century and the proclamation of the Republic. The idea of creating a modern public society in which equality was guaranteed to all citizens without distinction on grounds of religion, denomination or sex had already been mooted in the Ottoman debates of the nineteenth century. Significant advances in women’s rights were made during this period (equality of treatment in education, the introduction of a ban on polygamy in 1914, the transfer of jurisdiction in matrimonial cases to the secular courts that had been established in the nineteenth century).
32. The defining feature of the Republican ideal was the presence of women in public life and their active participation in society. Consequently, the ideas that women should be freed from religious constraints and that society should be modernised had a common origin. Thus, on 17 February 1926 the Civil Code was adopted, which provided for equality of the sexes in the enjoyment of civic rights, in particular with regard to divorce and succession. Subsequently, through a constitutional amendment of 5 December 1934 (Article 10 of the 1924 Constitution), women obtained equal political rights to men.
33. The first legislation to regulate dress was the Headgear Act of 28 November 1925 (Law no. 671), which treated dress as a modernity issue. Similarly, a ban was imposed on wearing religious attire other than in places of worship or at religious ceremonies, irrespective of the religion or belief concerned, by the Dress (Regulations) Act of 3 December 1934 (Law no. 2596).
34. Under the Education Services (Merger) Act of 3 March 1924 (Law no. 430), religious schools were closed and all schools came under the control of the Ministry of Education. The Act is one of the laws with constitutional status that are protected by Article 174 of the Turkish Constitution.
35. In Turkey, wearing the Islamic headscarf to school and university is a recent phenomenon which only really began to emerge in the 1980s. There has been extensive discussion on the issue and it continues to be the subject of lively debate in Turkish society. Those in favour of the headscarf see wearing it as a duty and/or a form of expression linked to religious identity. However, the supporters of secularism, who draw a distinction between the başörtüsü (traditional Anatolian headscarf, worn loosely) and the türban (tight, knotted headscarf hiding the hair and the throat), see the Islamic headscarf as a symbol of a political Islam. As a result of the accession to power on 28 June 1996 of a coalition government comprising the Islamist Refah Partisi, and the centre-right Doğru Yol Partisi, the debate has taken on strong political overtones. The ambivalence displayed by the leaders of the Refah Partisi, including the then Prime Minister, over their attachment to democratic values, and their advocacy of a plurality of legal systems functioning according to different religious rules for each religious community was perceived in Turkish society as a genuine threat to republican values and civil peace (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II).
36. The first piece of legislation on dress in institutions of higher education was a set of regulations issued by the Cabinet on 22 July 1981 requiring staff working for public organisations and institutions and personnel and female students at State institutions to wear ordinary, sober, modern dress. The regulations also provided that female members of staff and students should not wear veils in educational institutions.
37. On 20 December 1982 the Higher Education Authority issued a circular on the wearing of headscarves in institutions of higher education. The Islamic headscarf was banned in lecture theatres. In a judgment of 13 December 1984, the Supreme Administrative Court held that the regulations were lawful, noting:
“Beyond being a mere innocent practice, wearing the headscarf is in the process of becoming the symbol of a vision that is contrary to the freedoms of women and the fundamental principles of the Republic.”
38. On 10 December 1988 transitional section 16 of the Higher Education Act (Law no. 2547) came into force. It provided:
“Modern dress or appearance shall be compulsory in the rooms and corridors of institutions of higher education, preparatory schools, laboratories, clinics and multidisciplinary clinics. A veil or headscarf covering the neck and hair may be worn out of religious conviction.”
39. In a judgment of 7 March 1989 published in the Official Gazette of 5 July 1989, the Constitutional Court held that the aforementioned provision was contrary to Articles 2 (secularism), 10 (equality before the law) and 24 (freedom of religion) of the Constitution. It also found that it could not be reconciled with the principle of sexual equality implicit, inter alia, in republican and revolutionary values (see Preamble and Article 174 of the Constitution).
In their judgment, the Constitutional Court judges explained, firstly, that secularism had acquired constitutional status by reason of the historical experience of the country and the particularities of Islam compared to other religions; secularism was an essential condition for democracy and acted as a guarantor of freedom of religion and of equality before the law. It also prevented the State from showing a preference for a particular religion or belief; consequently, a secular State could not invoke religious conviction when performing its legislative function. They stated, inter alia:
“Secularism is the civil organiser of political, social and cultural life, based on national sovereignty, democracy, freedom and science. Secularism is the principle which offers the individual the possibility to affirm his or her own personality through freedom of thought and which, by the distinction it makes between politics and religious beliefs, renders freedom of conscience and religion effective. In societies based on religion, which function with religious thought and religious rules, political organisation is religious in character. In a secular regime, religion is shielded from a political role. It is not a tool of the authorities and remains in its respectable place, to be determined by the conscience of each and everyone ...”
Stressing its inviolable nature, the Constitutional Court observed that freedom of religion, conscience and worship, which could not be equated with a right to wear any particular religious attire, guaranteed first and foremost the liberty to decide whether or not to follow a religion. It explained that, once outside the private sphere of individual conscience, freedom to manifest one’s religion could be restricted on public-order grounds to defend the principle of secularism.
Everyone was free to choose how to dress, as the social and religious values and traditions of society also had to be respected. However, when a particular dress code was imposed on individuals by reference to a religion, the religion concerned was perceived and presented as a set of values that were incompatible with those of contemporary society. In addition, in Turkey, where the majority of the population were Muslims, presenting the wearing of the Islamic headscarf as a mandatory religious duty would result in discrimination between practising Muslims, non-practising Muslims and non-believers on grounds of dress with anyone who refused to wear the headscarf undoubtedly being regarded as opposed to religion or as non-religious.
The Constitutional Court also said that students had to be permitted to work and pursue their education together in a calm, tolerant and mutually supportive atmosphere without being deflected from that goal by signs of religious affiliation. It found that, irrespective of whether the Islamic headscarf was a precept of Islam, granting legal recognition to a religious symbol of that type in institutions of higher education was not compatible with the principle that State education must be neutral, as it would be liable to generate conflicts between students with differing religious convictions or beliefs.
40. On 25 October 1990 transitional section 17 of Law no. 2547 came into force. It provides:
“Choice of dress shall be free in institutions of higher education, provided that it does not contravene the laws in force.”
41. In a judgment of 9 April 1991, which was published in the Official Gazette of 31 July 1991, the Constitutional Court noted that, in the light of the principles it had established in its judgment of 7 March 1989, the aforementioned provision did not allow headscarves to be worn in institutions of higher education on religious grounds and so was consistent with the Constitution. It stated, inter alia:
“... the expression ‘laws in force’ refers first and foremost to the Constitution ... In institutions of higher education, it is contrary to the principles of secularism and equality for the neck and hair to be covered with a veil or headscarf on grounds of religious conviction. In these circumstances, the freedom of dress which the impugned provision permits in institutions of higher education ‘does not concern dress of a religious nature or the act of covering one’s neck and hair with a veil and headscarf’ ... The freedom afforded by this provision [transitional section 17] is conditional on its not being contrary to ‘the laws in force’. The judgment [of 7 March 1989] of the Constitutional Court establishes that covering one’s neck and hair with the headscarf is first and foremost contrary to the Constitution. Consequently, the condition set out in the aforementioned section requiring [choice of] dress not to contravene the laws in force removes from the scope of freedom of dress the act of ‘covering one’s neck and hair with the headscarf’ ...”
42. Istanbul University was founded in the fifteenth century and is one of the main centres of State higher education in Turkey. It has seventeen faculties (including two faculties of medicine – Cerrahpaşa and Çapa) and twelve schools of higher education. It is attended by approximately 50,000 students.
43. In 1994, following a petitioning campaign launched by female students enrolled on the midwifery course at the University School of Medicine, the Vice-Chancellor circulated a memorandum in which he explained the background to the Islamic headscarf issue and the legal basis for the relevant regulations, noting in particular:
“The ban prohibiting students enrolled on the midwifery course from wearing the headscarf during tutorials is not intended to infringe their freedom of conscience and religion, but to comply with the laws and regulations in force. When doing their work, midwives and nurses wear a uniform. That uniform is described in and identified by regulations issued by the Ministry of Health ... Students who wish to join the profession are aware of this. Imagine a student of midwifery trying to put a baby in or remove it from an incubator, or assisting a doctor in an operating theatre or maternity unit while wearing a long-sleeved coat.”
44. The Vice-Chancellor was concerned that the campaign for permission to wear the Islamic headscarf on all university premises had reached the point where there was a risk of its undermining order and causing unrest at the university, the faculty, the Cerrahpaşa Hospital and the School of Medicine. He called on the students to comply with the rules on dress, reminding them, in particular, of the rights of the patients.
45. A resolution regarding the rules on dress for students and university staff was adopted on 1 June 1994 by the university executive and provides:
“The rules governing dress in universities are set out in the laws and regulations. The Constitutional Court has delivered a judgment which prevents religious attire being worn in universities.
This judgment applies to all students of our University and the academic staff, both administrative and otherwise, at all levels. In particular, nurses, midwives, doctors and vets are required to comply with the regulations on dress, as dictated by scientific considerations and the legislation, during health and applied science tutorials (on nursing, laboratory work, surgery and microbiology). Anyone not complying with the rules on dress will be refused access to tutorials.”
46. On 23 February 1998 a circular signed by the Vice-Chancellor of Istanbul University was distributed containing instructions on the admission of students with beards or wearing the Islamic headscarf (for the text of this circular, see paragraph 16 above).
47. Istanbul University adopted a resolution (no. 11 of 9 July 1998 ), worded as follows:
“1. Students at Istanbul University shall comply with the legal principles and rules on dress set out in the decisions of the Constitutional Court and higher judicial bodies.
2. Students shall not wear clothes that symbolise or manifest any religion, faith, race, or political or ideological persuasion in any institution or department of the university, or on any of its premises.
3. Students shall comply with the rules requiring specific clothes to be worn for occupational reasons in the institutions and departments at which they are enrolled.
4. Photographs supplied by students to their institution or department [must be taken] from the ‘front’ ‘with head and neck uncovered’. They must be no more than six months old and make the student readily identifiable.
5. Anyone displaying an attitude that is contrary to the aforementioned points or who, through his words, writings or deeds, encourages such an attitude shall be liable to action under the provisions of the Students Disciplinary Procedure Rules.”
48. The Students Disciplinary Procedure Rules, which were published in the Official Gazette of 13 January 1985, prescribe five forms of disciplinary penalty: a warning, a reprimand, temporary suspension of between a week and a month, temporary suspension of one or two semesters, and expulsion.
49. Merely wearing the Islamic headscarf on university premises does not constitute a disciplinary offence.
50. By virtue of paragraph 6 (a) of the Rules, a student whose “behaviour and attitude are not befitting of students” will be liable to a warning. A reprimand will be issued, inter alia, to students whose conduct is such as to lose them the respect and trust which students are required to command, or who disrupt lectures, seminars, tutorials in laboratories or workshops (paragraph 7 (a) and (e)). Students who directly or indirectly restrict the freedom of others to learn and teach or whose conduct is liable to disturb the calm, tranquillity and industriousness required in institutions of higher education or who engage in political activities in such institutions are liable to temporary suspension of between a week and a month (paragraph 8 (a) and (c)). Paragraph 9 (j) lays down that students who organise or take part in unauthorised meetings on university premises are liable to one or two semesters’ suspension.
51. The procedure for investigating disciplinary complaints is governed by paragraphs 13 to 34 of the Rules. Paragraphs 16 and 33 provide that the rights of defence of students must be respected and the disciplinary board must take into account the reasons that caused the student to transgress the rules. All disciplinary measures are subject to judicial review in the administrative courts.
52. Since universities are public-law bodies by virtue of Article 130 of the Constitution, they enjoy a degree of autonomy, subject to State control, that is reflected in the fact that they are run by management organs, such as the vice-chancellor, with delegated statutory powers.
The relevant parts of section 13 of Law no. 2547 provide:
“...
(b) Vice-chancellors shall have the following powers, competence and responsibilities:
1. To chair meetings of university boards, implement their resolutions, examine proposals by the university boards and take such decisions as shall be necessary, and ensure that institutions forming part of the university function in a coordinated manner;
...
5. To supervise and monitor the university departments and university staff at all levels.
It is the vice-chancellor who shall have primary responsibility for taking safety measures and for supervising and monitoring the administrative and scientific aspects of the functioning of the university ...”
53. The monitoring and supervisory power conferred on the vice-chancellor by section 13 of Law no. 2547 is subject to the requirement of lawfulness and to scrutiny by the administrative courts.
54. In its judgment of 27 May 1999 (E. 1998/58, K. 1999/19), which was published in the Official Gazette of 4 March 2000, the Constitutional Court stated, inter alia:
“The legislature and executive are bound by both the operative provisions of judgments and the reasoning taken as a whole. Judgments and the reasons stated in them lay down the standards by which legislative activity will be measured and establish guidelines for such activity.”
55. For more than twenty years the place of the Islamic headscarf in State education has been the subject of debate across Europe. In most European countries, the debate has focused mainly on primary and secondary schools. However, in Turkey, Azerbaijan and Albania it has concerned not just the question of individual liberty, but also the political meaning of the Islamic headscarf. These are the only member States to have introduced regulations on wearing the Islamic headscarf in universities.
56. In France, where secularism is regarded as one of the cornerstones of republican values, legislation was passed on 15 March 2004 regulating, in accordance with the principle of secularism, the wearing of signs or dress manifesting a religious affiliation in State primary and secondary schools. The legislation inserted a new Article L. 141-5-1 in the Education Code which provides: “In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited. The school rules shall state that the institution of disciplinary proceedings shall be preceded by dialogue with the pupil.”
The Act applies to all State schools and educational institutions, including post-baccalaureate courses (preparatory classes for entrance to the grandes écoles and vocational training courses). It does not apply to State universities. In addition, as a circular of 18 May 2004 makes clear, it only concerns “... signs, such as the Islamic headscarf, however named, the kippa or a cross that is manifestly oversized, which make the wearer’s religious affiliation immediately identifiable”.
57. In Belgium there is no general ban on wearing religious signs at school. In the French Community a decree of 13 March 1994 stipulates that education shall be neutral within the Community. Pupils are in principle allowed to wear religious signs. However, they may do so only if human rights, the reputation of others, national security, public order, and public health and morals are protected and internal rules complied with. Further, teachers must not permit religious or philosophical proselytism under their authority or the organisation of political militancy by or on behalf of pupils. The decree stipulates that restrictions may be imposed by school rules. On 19 May 2004 the French Community issued a decree intended to institute equality of treatment. In the Flemish Community, there is no uniform policy among schools on whether to allow religious or philosophical signs to be worn. Some do, others do not. When pupils are permitted to wear such signs, restrictions may be imposed on grounds of hygiene or safety.
58. In other countries (Austria, Germany, the Netherlands, Spain, Sweden, Switzerland and the United Kingdom), in some cases following a protracted legal debate, the State education authorities permit Muslim pupils and students to wear the Islamic headscarf.
59. In Germany, where the debate focused on whether teachers should be allowed to wear the Islamic headscarf, the Constitutional Court stated on 24 September 2003 in a case between a teacher and the Land of Baden-Württemberg that the lack of any express statutory prohibition meant that teachers were entitled to wear the headscarf. Consequently, it imposed a duty on the Länder to lay down rules on dress if they wished to prohibit the wearing of the Islamic headscarf in State schools.
60. In Austria there is no special legislation governing the wearing of the headscarf, turban or kippa. In general, it is considered that a ban on wearing the headscarf will only be justified if it poses a health or safety hazard for pupils.
61. In the United Kingdom a tolerant attitude is shown to pupils who wear religious signs. Difficulties with respect to the Islamic headscarf are rare. The issue has also been debated in the context of the elimination of racial discrimination in schools in order to preserve their multicultural character (see, in particular, Mandla v. Dowell, The Law Reports 1983, pp. 548-70). The Commission for Racial Equality, whose opinions have recommendation status only, also considered the issue of the Islamic headscarf in 1988 in the Altrincham Grammar School case, which ended in a compromise between a private school and members of the family of two sisters who wished to be allowed to wear the Islamic headscarf at the school. The school agreed to allow them to wear the headscarf provided it was navy blue (the colour of the school uniform), kept fastened at the neck and not decorated.
In R. (On the application of Begum) v. Headteacher and Governors of Denbigh High School ([2004] EWHC 1389 (Admin)), the High Court had to decide a dispute between the school and a Muslim pupil wishing to wear the jilbab (a full-length gown). The school required pupils to wear a uniform, one of the possible options being the headscarf and the shalwar kameeze (long traditional garments from the Indian subcontinent). In June 2004 the High Court dismissed the pupil’s application, holding that there had been no violation of her freedom of religion. However, that judgment was reversed in March 2005 by the Court of Appeal, which accepted that there had been interference with the pupil’s freedom of religion, as a minority of Muslims in the United Kingdom considered that a religious duty to wear the jilbab from the age of puberty existed and the pupil was genuinely of that opinion. No justification for the interference had been provided by the school authorities, as the decision-making process was not compatible with freedom of religion.
62. In Spain there is no express statutory prohibition on pupils’ wearing religious head coverings in State schools. By virtue of two royal decrees of 26 January 1996, which are applicable in primary and secondary schools unless the competent authority – the autonomous community – has introduced specific measures, the school governors have power to issue school rules which may include provisions on dress. Generally speaking, State schools allow the headscarf to be worn.
63. In Finland and Sweden the veil can be worn at school. However, a distinction is made between the burka (the term used to describe the full veil covering the whole of the body and the face) and the niqab (a veil covering all the upper body with the exception of the eyes). In Sweden mandatory directives were issued in 2003 by the National Education Agency. These allow schools to prohibit the burka and niqab, provided they do so in a spirit of dialogue on the common values of equality of the sexes and respect for the democratic principle on which the education system is based.
64. In the Netherlands, where the question of the Islamic headscarf is considered from the standpoint of discrimination rather than of freedom of religion, it is generally tolerated. In 2003 a non-binding directive was issued. Schools may require pupils to wear a uniform provided that the rules are not discriminatory and are included in the school prospectus and that the punishment for transgressions is not disproportionate. A ban on the burka is regarded as justified by the need to be able to identify and communicate with pupils. In addition, the Equal Treatment Commission ruled in 1997 that a ban on wearing the veil during physical education classes for safety reasons was not discriminatory.
65. In a number of other countries (Russia, Romania, Hungary, Greece, the Czech Republic, Slovakia and Poland), the issue of the Islamic headscarf does not yet appear to have given rise to any detailed legal debate.
66. Among the various texts adopted by the Council of Europe on higher education, should be cited, first of all, Parliamentary Assembly Recommendation 1353 (1998) on the access of minorities to higher education, which was adopted on 27 January 1998, and Committee of Ministers Recommendation No. R (98) 3 on access to higher education, which was adopted on 17 March 1998.
Another relevant instrument in this sphere is the joint Council of Europe/UNESCO Convention on the Recognition of Qualifications concerning Higher Education in the European Region, which was signed in Lisbon on 11 April 1997 and came into force on 1 February 1999.
67. The preamble to the Convention on the Recognition of Qualifications concerning Higher Education in the European Region states:
“Conscious of the fact that the right to education is a human right, and that higher education, which is instrumental in the pursuit and advancement of knowledge, constitutes an exceptionally rich cultural and scientific asset for both individuals and society ...”
68. On 17 March 1998 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (98) 3 on access to higher education. In the preamble to the recommendation it is stated:
“... higher education has a key role to play in the promotion of human rights and fundamental freedoms and the strengthening of pluralistic democracy and tolerance [and] ... widening opportunities for members of all groups in society to participate in higher education can contribute to securing democracy and building confidence in situations of social tension ...”
69. Likewise, Article 2 of Recommendation 1353 (1998) on the access of minorities to higher education, which was adopted by the Parliamentary Assembly of the Council of Europe on 27 January 1998, provides:
“Education is a fundamental human right and therefore access to all levels, including higher education, should be equally available to all permanent residents of the States signatories to the European Cultural Convention.”
VIOLATED_ARTICLES: 9
P1
VIOLATED_PARAGRAPHS: 9-1
P1-2
NON_VIOLATED_ARTICLES: 10
14
8
9
NON_VIOLATED_PARAGRAPHS: 10-1
8-1
9-1


ITEMID: 001-127404
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF GROSSMAN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
JUDGES: Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 5. The applicant was born in 1977 and is serving a prison sentence in the Kemerovo Region.
6. On an unspecified date the prosecution authorities opened an investigation into the activities of an organised criminal gang that had committed a series of murders and other crimes. The applicant was one of the suspects.
7. On 1 August 2006 the Naberezhnyye Chelny Town Court, Republic of Tatarstan, authorised a search of the applicant’s flat. According to the applicant, he unsuccessfully complained about the court’s search order to the town prosecutor on 20 March 2009.
8. On 19 August 2006 the applicant was arrested and informed of the court order of 1 August 2006. His flat was searched on the same day.
9. On 20 August 2006 the prosecutor’s office appointed counsel N. to represent the applicant. On the same date the Town Court authorised the applicant’s detention pending investigation. In particular, the court noted as follows:
“[The applicant] is suspected of involvement in serious crimes which present a heightened danger to public order and entail a custodial sentence exceeding two years ...
The court considers that, if released, [the applicant], who does not have a permanent place of residence in Naberezhnyye Chelny and who knows where the witnesses reside, might abscond or otherwise interfere with the establishment of the truth.”
10. On 12 October 2006 the Town Court extended the applicant’s detention until 18 February 2007. The court refused to release the applicant pending investigation, noting as follows:
“The investigator requests that the [applicant’s] detention be extended. ... If released, [the applicant] might abscond, continue criminal activities, put pressure on witnesses or otherwise interfere with the administration of justice.
Having heard the defendant and his lawyer, who asked the court to dismiss the request, and the prosecutor who considered that it should be granted, and having studied the materials of the case, the court finds that the investigator’s request is substantiated and should be granted.”
11. On 14 November 2006 the Supreme Court of the Republic of Tatarstan upheld the decision of 12 October 2006 on appeal.
12. On 12 January 2007 counsel K. replaced counsel N., who had asked to be withdrawn.
13. On 13 February 2007 the Town Court extended the applicant’s detention until 27 April 2007. The court held as follows:
“... [the applicant] is charged with very serious offences which present a heightened danger to public order and entail a custodial sentence exceeding two years. This criminal case is of extreme complexity. The reasons justifying the [applicant’s] remand in custody have not ceased to exist. The time-limit for the preliminary investigation has been extended until 27 April 2007. A number of investigative activities involving [the applicant] are pending. [The applicant] might abscond or commit new crimes [if released].”
14. On 20 March 2007 the Supreme Court of the Republic of Tatarstan upheld the court order of 13 February 2007 on appeal.
15. On 24 April 2007 the Town Court further extended the applicant’s detention until 27 July 2007. The court reiterated verbatim the reasoning of 13 February 2007.
16. On 17 July 2007 the Town Court extended the applicant’s detention until 18 August 2007, noting as follows:
“[The applicant] is charged with a number of serious offences. His involvement in the crimes he has been charged with is supported by the materials submitted. The circumstances underlying the [applicant’s] remand in custody have not ceased to exist.”
17. On 26 July 2007 the Supreme Court of the Republic of Tatarstan extended the applicant’s detention until 27 October 2007, referring to the gravity of the charges against the applicant and the risk that he might abscond or re-offend. On 4 October 2007 the Supreme Court of Russia upheld the decision of 26 July 2007 on appeal.
18. On 21 May 2007 the applicant started reading the case file, which comprised twenty-five volumes and concerned twelve defendants. On 15 October 2007 the Supreme Court of the Republic of Tatarstan held that the applicant could not be released pending study of the case file, noting that he might abscond, put pressure on the parties to the criminal proceedings against him or re-offend, and extended the applicant’s detention until 27 January 2008. On 10 January 2008 the Supreme Court of Russia upheld the decision of 15 October 2007 on appeal.
19. The applicant’s detention pending study of the case file was further extended on 16 January 2008 until 19 February 2008. Referring to the reasons indicated earlier to justify the applicant’s detention, the court held that he could not be released. It appears that on an unspecified date the decision of 16 January 2008 was quashed by the Supreme Court of Russia on appeal. The matter was remitted for fresh consideration and on 24 January 2008 the Supreme Court of the Republic of Tatarstan extended the applicant’s detention pending study of the case file until 27 April 2008. The applicant communicated with the court via video link.
20. On 9 February 2008 the applicant started studying three additional volumes of the case. He was provided with a photocopying machine and a digital camera. On 19 February 2008 the prosecutor’s office asked the Town Court to set a time-limit for the applicant to study the case file. The applicant asserted that he would need five additional days to complete the study. The court granted him three additional days.
21. On 24 April 2008 the Supreme Court of Russia quashed the decision of 24 January 2008 on appeal. The court noted that the applicant should have been granted time to study the request lodged by the investigator asking for an extension of the applicant’s detention. The court further indicated that the applicant should remain in custody pending consideration of the matter by the lower court. It appears that on 21 May 2008 the Supreme Court of the Republic of Tatarstan authorised the applicant’s detention pending study of the case file until 19 February 2008. On 23 July 2008 the Supreme Court of Russia upheld the decision of 21 May 2008 on appeal.
22. On an unspecified date the prosecutor’s office completed the investigation and forwarded the case file to the Supreme Court of the Republic of Tatarstan. Counsel A. was appointed to represent the applicant. On 24 April 2008 the Supreme Court fixed the preliminary hearing of the matter and ordered that the applicant remain in custody pending trial. On 25 June 2008 the Supreme Court of Russia upheld the decision of 24 April 2008 on appeal, after having heard the applicant, his counsel and the judge rapporteur.
23. On 2 June 2008 the Supreme Court of the Republic of Tatarstan opened a jury trial against the applicant and eleven other defendants.
24. On 25 September 2008 the jury delivered a guilty verdict in respect of the applicant on charges of membership of a criminal gang, illegal possessions of firearms, infliction of bodily injuries, kidnapping and murder.
25. On 3 October 2008 the Supreme Court of the Republic of Tatarstan authorised an extension of the applicant’s detention until 10 January 2009 pending sentencing. On 25 November 2008 the Supreme Court of Russia upheld the decision of 3 October 2008 on appeal.
26. On 15 October 2008 the Supreme Court of the Republic of Tatarstan sentenced the applicant to sixteen years’ imprisonment.
27. On 18 June 2009 the Supreme Court of Russia upheld the applicant’s conviction on appeal.
28. On 7 November 2012 the Presidium of the Supreme Court of Russia quashed the appeal judgment of 18 June 2009 by way of a supervisory review for the appeal court’s failure to ensure the presence of the applicant’s lawyer at the appeal hearing and remitted the matter for a new appeal hearing. The parties did not inform the Court of the outcome of the proceedings.
29. Following his arrest on 19 August 2007, the applicant was placed in detention in a remand prison. On numerous occasions between 2006 and 2009 the applicant was transferred to and detained in the Naberezhnyye Chelny temporary detention unit in connection with the investigation and trial.
30. According to the Government, the applicant was detained at the temporary detention centre during the following periods:
- from 20 August to 6 September 2006;
- from 11 to 13 and from 18 to 27 October 2006;
- from 8 to 18 December 2006;
- from 10 to 19 January 2007;
- from 5 to 14 February 2007;
- from 28 February to 9 March 2007;
- from 14 to 19 March 2007;
- from 4 to 9 and from 20 to 25 April 2007;
- from 16 to 23 May 2007;
- from 30 May to 9 June 2007;
- from 29 June to 9 July 2007;
- from 11 to 18 and from 25 to 30 July 2007;
- from 1 to 10 August 2007;
- from 31 August to 10 September 2007;
- from 3 to 17 October 2007;
- from 2 to 12 and from 16 to 21 November 2007;
- from 12 December 2007 to 8 January 2008;
- from 11 to 18 January 2008;
- from 24 January to 1 February 2008;
- from 4 to 8 and from 11 to 27 February 2008;
- from 3 to 5 March 2008;
- from 4 to 9 and from 16 to 18 April 2008;
- from 15 to 24 June 2009;
- from 6 to 22 July 2009;
- from 22 to 29 December 2009.
31. The Government were unable to indicate the exact numbers of the cells in which the applicant had been detained. Nor could they submit information on the population of the temporary detention centre at the time of the applicant’s detention. They provided the following overview of all the cells in the temporary detention centre:
32. There were no individual beds in the cells. The inmates had to share sleeping platforms. All the cells were equipped with a functioning ventilation system. All the cells had two windows, except for cells nos. 4 and 19, which had one window. Each window was covered with two metal grilles which did not prevent access to daylight. The cells were lit with 100-watt electric bulbs. The toilet in each cell was located at least 1.5 metres away from the dining table and the nearest sleeping place. It was separated from the living area of the cell by a 1.2-metre high brick wall.
33. The cells were disinfected once every three months. Inmates received three meals a day. The applicant did not have the opportunity to take daily outdoor exercise. He spent a certain amount of time outside the cell participating in investigative activities, taking showers, visiting doctors and meeting with his lawyer. He consulted a medical practitioner thirty-three times.
34. In June 2008 the temporary detention centre was completely refurbished. The electrical wiring and other equipment, toilets, water supply, ventilation and sewerage systems were replaced. The sleeping platforms were replaced with individual beds. The brick walls separating the toilets from the living areas of the cells were removed and new metal cabins were installed. New window frames were also installed.
35. According to the applicant, he was always detained in overcrowded cells. In particular, at least twelve inmates were detained in cells nos. 1, 12, 16 and 22, and at least nine were detained in cells nos. 2, 3 and 13.
36. There was no ventilation or access to daylight. The electric lighting was constantly on. Each cell was lit with a 60-watt electric bulb.
37. The distance between the toilet and the nearest sleeping places was between 0.2 and 0.5 metres. The wall separating the toilet from the living area of the cell was 0.5-metres high and offered no privacy to the person using the toilet.
38. The applicant was never taken out of the cell to participate in investigative activities. Meals were provided once a day. The food rations were insufficient; no meat, fish, fruit or vegetables were served. The applicant was not given bed sheets.
39. On 21 February 2007 the deputy town prosecutor dismissed the applicant’s complaint about the conditions of his detention in the temporary detention centre, noting as follows:
“In the course of the inquiry [the head of the temporary detention centre] submitted that, in order to bring the premises of the temporary detention centre into compliance with the federal legislation, it should be subjected to reconstruction and refurbishment. The maximum capacity is 110 persons. However, following the amendments to the Code of Criminal Procedure of the Russian Federation requiring that suspects and defendants be present at court hearings, the average daily population has drastically increased to 140 persons. ... Every day the police book in 4-5 new inmates. Accordingly it is impossible to provide every detainee with an individual sleeping place. Furthermore, on 13 February 2007 ... 42 newly arrived inmates were booked in. As a result, the population of the temporary detention centre rose to 171 persons. There were eight inmates detained in cell no. 3 ... . This number does not exceed the capacity of the cell.”
40. On 27 March 2007 the Ministry of the Interior of the Republic of Tatarstan replied to a complaint lodged by the applicant about the conditions of his detention in the temporary detention centre. In particular, the letter read as follows:
“... the complaints about the conditions of detention communicated by [the applicant] at the hearing of the [Town Court] on 7 February 2007 should be considered substantiated in part. However, the allegation that there was an intent on the part of [the head of the temporary detention centre] to deliberately create such conditions of detention has not been substantiated.
I would also inform you that in 2008 it is planned to allocate monetary funds for capital refurbishment and reconstruction of the temporary detention centre that would bring the conditions of detention in the temporary detention centre into compliance with the applicable legislation of the Russian Federation.”
41. On 10 July 2007 the applicant and six other inmates detained in cell no. 2 of the temporary detention centre complained to the town prosecutor about overcrowding in the cell where they were detained. The applicant did not inform the Court of the prosecutor’s response to the complaint, if any.
42. The Federal Law on Detention of Suspects and Defendants charged with Criminal Offences (“the Detention of Suspects Act”) (as amended), in force since 21 June 1995, provides that suspects and defendants detained pending investigation and trial are held in remand prisons (section 8). They may be transferred to temporary detention facilities if so required for the purposes of investigation or trial and if transportation between a remand prison and a police station or court-house is not feasible because of the distance between them. Such detention in a temporary detention facility may not exceed ten days a month (section 13). Temporary detention facilities in police stations are designated for the detention of persons arrested on suspicion of a criminal offence (section 9).
43. Under paragraph 3.3 of the Internal Regulations for Temporary Detention Facilities, approved by Order No. 41 of the Ministry of the Interior of the Russian Federation on 26 January 1996, as amended (in force at the time of the applicant’s detention), the living space per detainee should be 4 square metres. Paragraph 3.2 made provision for cells in temporary detention facilities to be equipped with a table, a toilet, running water, a shelf for toiletries, a drinking water tank, a radio and a rubbish bin. Furthermore, paragraphs 6.1, 6.40, and 6.43 of the regulations made provision for detainees to have outdoor exercise for at least one hour a day in a designated exercise area.
44. The relevant extract from the 2nd General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) (CPT/Inf (92) 3) reads as follows:
“42. Custody by the police is in principle of relatively short duration ... However, certain elementary material requirements should be met.
All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets.
Persons in custody should be allowed to comply with the needs of nature when necessary, in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day.
43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.”
The CPT reiterated the above conclusions in its 12th General Report (CPT/Inf (2002) 15, § 47).
VIOLATED_ARTICLES: 13
3
5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-58179
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF E.L., R.L. AND J.O.-L. v. SWITZERLAND
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-2;Costs and expenses award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. The applicants are all Swiss nationals who live in the Canton of Obwalden. They are the widow, the son and the daughter of the late Mr L.
8. Mr L. was the owner of a mail-order company. In 1984 he declared certain moneys to the tax authorities; he maintained that these were profits lawfully made in Germany from capital speculation and investments, and were not taxable in Switzerland.
9. Mr L. died on 7 October 1985.
10. The three-month period within which the applicants could have rejected the inheritance (Articles 566 § 1 and 567 § 1 of the Swiss Civil Code) expired on 7 January 1986.
11. On 18 August 1989 the Obwalden Cantonal Tax Office, having come to the conclusion – in the absence of vouchers supporting Mr L.'s allegations – that the moneys declared were in reality income generated by Mr L.'s mail-order firm which he had unlawfully failed to declare in Switzerland, initiated proceedings against the applicants for recovery of unpaid cantonal and federal taxes, and at the same time imposed fines for tax evasion.
12. It appears that the applicants cooperated with the tax authorities, enabling them to make a correct assessment of the taxes due.
13. The Commission's file contains no information about any proceedings to contest the recovery of cantonal tax arrears or the related fine.
14. On 15 September 1989 the applicants appealed to the Obwalden Cantonal Tax Appeals Board against the decision of 18 August 1989 in so far as it related to direct federal taxes.
15. On 19 December 1989 the Cantonal Tax Appeals Board gave its decision. It considered that the tax authorities had failed to prove that the moneys in question were undeclared taxable income, but found it established that Mr L. had deliberately failed to declare the interest received from it. Accordingly, it partly upheld the applicants' appeal, significantly reducing the amount of back tax to be paid. It also reduced the fine to one-quarter of the additional amount normally due in view of the fact that Mr L. had himself reported the moneys concerned to the authorities.
16. The Direct Federal Tax Administration lodged an administrative-law appeal to the Federal Court.
17. The applicants filed a written defence arguing, inter alia, that it was contrary to Article 6 § 2 of the Convention to impose a fine on the heirs of a taxpayer for tax evasion committed by the latter.
18. The Obwalden Cantonal Tax Appeals Board and Cantonal Tax Office were invited to submit written comments pursuant to section 110 of the Federal Judicature Act.
The Cantonal Tax Office declined to do so. The Cantonal Tax Appeals Board expressed the opinion that the appeal should be dismissed.
19. In a judgment delivered on 22 May 1992 the Federal Court upheld the appeal.
It held that the Cantonal Tax Appeals Board had erred in imposing the burden of proof on the tax authorities. Since their investigations had revealed prima facie evidence that Mr L. had been guilty of tax evasion, it had been for the applicants to demonstrate that the moneys in question had not in fact been undeclared taxable income. Since the applicants had not done so, the assessment of back taxation should be allowed to stand.
The Federal Court rejected the suggestion that the imposition of a tax fine on the heirs of the taxpayer for tax evasion committed by the latter was contrary to Article 6 § 2 of the Convention. After referring to its case-law, it went on to hold:
“[In earlier cases the Federal Court] has held that although the tax fine constituted a real penalty, it was directed at the deceased personally and not at the heirs; the heirs were required, under Article 130 § 1 of the Ordinance on Direct Federal Tax, only to ensure that the fine was paid and only up to the value of their share of the estate. That the fine was not directed at the heirs also appeared from the fact that the fine was determined in principle [grundsätzlich] according to the guilt of the deceased and the heirs could escape their liability by renouncing the inheritance. As the Federal Court has held, the effect of the arrangement laid down in Article 130 § 1 of the Ordinance on Direct Federal Tax – according to which in pending proceedings the heirs take the place of the deceased, and [new] proceedings were to be initiated and pursued against the heirs if the evasion was discovered only after the death of the deceased – is only that all cases are dealt with in the same way, irrespective of the time factor.”
However, as the fine had to be determined anew, the case was referred back to the Cantonal Tax Appeals Board.
20. The applicants applied to the Commission on 29 October 1992.
21. On 4 February 1993 the Cantonal Tax Appeals Board gave a decision setting the fine at 14,678.80 Swiss francs (CHF), or 25% of the amount that would normally have been due, in view of the applicants' basically cooperative attitude.
22. The applicants lodged an administrative-law appeal to the Federal Court on 12 May 1993. They produced, inter alia, medical evidence from which it appeared that in the final years of his life Mr L. had not been wholly responsible for his actions and they suggested that a fine of not more than CHF 1,000 would be more appropriate to reflect his guilt.
The Obwalden Cantonal Tax Office and Cantonal Tax Appeals Board and the Federal Tax Administration were invited to submit written comments, and they asked the Federal Court to dismiss the appeal.
23. In a judgment delivered on 6 January 1995 the Federal Court upheld the applicants' appeal in so far as it was argued that the question of Mr L.'s diminished responsibility should have been considered and referred the case back to the Obwalden Cantonal Tax Appeals Board for a second time.
24. On 8 June 1995 the Obwalden Cantonal Tax Appeals Board gave a decision in which it reduced the fine that would have been payable by Mr L. himself on the ground of his diminished responsibility, and in view of the applicants' attitude set the final amount at 25% of that figure, or CHF 5,513.80.
25. At the relevant time, tax evasion was punishable by a fine of up to four times the amount evaded, the fine being payable in addition to the amount due (Article 129 § 1 of the Ordinance on Direct Federal Tax).
26. Article 130 § 1 provided, inter alia:
“If the evasion is discovered only after the death of the taxpayer, proceedings shall be brought against his heirs. Irrespective of personal guilt, the heirs shall be jointly liable for the deceased person's evaded taxes and the fine incurred by him up to an amount not exceeding their share in the estate.”
27. According to Article 537 § 1 of the Swiss Civil Code, an inheritance passes upon the death of the deceased.
28. The relevant parts of Article 560 of the Swiss Civil Code provide:
“1. The heirs shall automatically acquire the entire estate as soon as it passes.
2. Subject to the statutory exceptions, all claims and actions, property rights and other rights in rem and possessions of the deceased shall automatically pass to them, and they shall become personally liable for the deceased's debts.”
29. Under Article 566 § 1 of the Swiss Civil Code, the heirs have the right to renounce the inheritance which has devolved to them. The time-limit for so doing is three months (Article 567 § 1).
30. It was open to the taxpayer to lodge an objection against an assessment of direct federal tax to the authority which had made it (Article 105 of the Ordinance on Direct Federal Tax).
31. An appeal against the decision given in the objection proceedings lay to the Cantonal Tax Appeals Board (Article 106 of the Ordinance on Direct Federal Tax). The Direct Federal Tax Department of the canton and the federal tax authorities could also bring such an appeal (Article 107).
32. An administrative-law appeal lies to the Federal Court against the decision of the Federal Tax Appeals Board (section 98 (e) of the Federal Judicature Act). Such an appeal may be lodged by both the tax debtor and the federal tax authorities (Article 112 of the Ordinance on Direct Federal Tax).
33. If the Federal Court orders an exchange of written pleadings, it asks the authority which gave the decision to forward the case file (section 110 (2) of the Federal Judicature Act), at the same time inviting it to submit its comments in writing (section 110 (1)).
The cantonal authority which gave the last decision at cantonal level is also invited to comment (section 110 (3)), as is the federal authority which would itself have been entitled to lodge an appeal (section 110 (1)).
34. At the material time, section 109 (1) of the Federal Judicature Act made it possible for a three-judge Chamber of the Federal Court to dismiss an administrative-law appeal as manifestly ill-founded without a hearing, provided that its decision was unanimous.
35. Under Article 333 § 1 of the Swiss Criminal Code, the general provisions of the Code apply to offences created by other federal laws unless the latter provide otherwise.
36. Article 48 § 3 of the Criminal Code provides that a fine lapses if the convicted person dies.
However, pursuant to Article 333 § 1 of the Criminal Code, Article 130 § 1 of the Ordinance on Direct Federal Tax (see paragraph 26 above) derogates from this principle as a lex specialis.
37. Section 179 (1) of the Federal Direct Taxation Act of 14 December 1990, in force since 1 January 1995, provides for the liability of heirs, inter alia, for any fines determined with legal force. According to section 179 (2), the heirs shall not be so liable if the tax evasion proceedings are concluded after the death of the taxpayer, provided that the heirs themselves are guiltless and do what they can to enable the tax authorities to make a correct assessment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-2


ITEMID: 001-79624
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: TRELA v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Zdzisław Trela, is a Polish national who was born in 1932 and lives in Sosnowiec. The respondent Government are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The applicant is represented by Ms A. Krasuska-Terrillon, a lawyer practising in Katowice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The application concerns civil proceedings for damages instituted by the applicant against an enterprise running a coal mine. The applicant claimed that as a result of the operation of the mine the technical condition of a building he owned had deteriorated badly.
On 22 March 2001 by a judgment of the Sosnowiec District Court the applicant’s action was dismissed. The applicant appealed.
On 26 June 2001 the Katowice Regional Court upheld the judgment. On 30 July 2001 the court’s judgment together with its written grounds were served on the applicant.
On 14 August 2001 the applicant lodged a request to have a legal-aid lawyer appointed for the purposes of lodging a cassation appeal.
On 29 August 2001 the Katowice Regional Court decided to appoint a legal-aid lawyer for the applicant.
By a decision of 27 September 2001 the Katowice Regional Bar appointed P.K. as the applicant’s legal-aid lawyer for the cassation proceedings.
On 26 October 2001 the lawyer lodged a request to have the judgment of 26 June 2001 together with its written grounds served on him.
On 29 October 2001 he lodged a cassation appeal with the Katowice Regional Court, which was competent to carry out a preliminary examination as to the compliance of the appeal with formal requirements provided for by law.
On 30 October 2001 the Katowice Regional Court rejected the applicant’s lawyer’s cassation appeal as having been lodged outside the prescribed one-month time-limit.
On 16 November 2001 the applicant’s lawyer appealed against the decision to reject the cassation appeal. At the same time he requested leave to appeal out of time against the judgment of the appellate court.
On 8 January 2002 his request for leave to appeal out of time was rejected by the Katowice Regional Court for noncompliance with a timelimit.
On 13 June 2002 the Supreme Court rejected his appeal against a refusal of leave to appeal out of time, considering that no appeal lay against the contested decision.
On 10 August 2006 the Supreme Court quashed the decision of the Katowice Regional Court by which the cassation appeal had been rejected, finding that that court had failed to examine sufficiently the circumstances of the lawyer’s failure to comply with the time-limit for the lodging of the appeal.
On 19 December 2006 the Supreme Court examined the applicant’s cassation appeal and dismissed it as being manifestly illfounded.


ITEMID: 001-87194
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: PEREVOZCHIKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Ms Elena Viktorovna Perevozchikova, is a Russian national who was born in 1965 and lives in Staryi Oskol. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant worked at an engineering plant. Under her contract, the plant was to provide her with a at. The plant defaulted on this obligation, and the applicant brought a civil action.
On 10 June 1999 the Staryi Oskol Town Court ordered the plant to “give the applicant a at that would offer at least 9 m² per family member”. This judgment became binding on 22 June 1999.
On 16 November 2000 the Presidium of the Belgorod Regional Court quashed the judgment on supervisory-review and ordered a rehearing.
On 6 February 2001 the regional court ordered the plant to “give the applicant a at for eight persons in accordance with applicable laws on housing”. This judgment became binding on the same day, was submitted to a bailiff for enforcement, but was not enforced immediately.
On 11 May 2001 the bailiff ﬁned the administration of the plant for its failure to comply with the judgment. On appeal, this ﬁne was quashed, because the plant did take steps to comply with the judgment, and because the applicant had rejected ats proposed by the plant.
On 5 November 2001 the bailiff closed the enforcement proceedings, because the applicant had refused the ats offered by the plant. On 11 June 2002 the town court ordered the bailiff to resume the proceedings, because the ats refused by the applicant had been of an improper quality.
On 2 December 2002 the bailiff ﬁned the administration of the plant for its failure to comply with the judgment. On appeal, this ﬁne was quashed, because, among other reasons, the plant had no available ats.
On 30 January and 4 August 2003 the bailiff ﬁned the administration of the plant for its failure to comply with the judgment.
On 10 July and 15 September 2003 the bailiff warned the administration of the plant about criminal responsibility for non-compliance with binding judgments. On 7 October 2003 the bailiff asked the police to prosecute the manager of the plant, but the police refused because the manager had no case to answer.
On 8 January 2004 the bailiff asked the court to clarify the judgment, because the applicant and the plant argued how many square metres per person the at was to offer. On 28 April 2004 the town court clariﬁed the judgment.
Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment in two months.


ITEMID: 001-22676
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SKOWIERZAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Andrzej Skowierzak, is a Polish national, who was born in 1940 and lives in Kielce, Poland. He is represented before the Court by Mr Adam Włoch, a lawyer practising in Kraków. The respondent Government are represented by Mr K. Drzewicki, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 October 1995 the Kielce Regional Prosecutor (prokurator wojewódzki) instituted an investigation in regard to suspected child trafficking. Between 2 and 15 October 1995 the prosecutor heard five witnesses and conducted several other procedural activities, including the appointment of interpreters for two Swedish nationals to be heard in the case. The applicant submits that those two foreigners were Mr U. K., who was one of the accused persons, and his wife.
On 12 October 1995 the prosecutor charged the applicant with child trafficking and incitement to false testimony.
On 13 October 1995 the applicant was heard. On the same date the prosecutor appointed two medical experts in order to assess whether the applicant’s state of health prevented him from being kept in detention. They found no medical obstacles to the applicant’s detention.
On 17 October 1995 the prosecutor remanded him in custody. Between 17 October and 16 November 1995 the prosecutor interrogated other suspects and witnesses in the case.
On 16 November 1995 the prosecutor decided to submit a letter rogatory to competent authorities in Sweden requesting the examination of two witnesses. The applicant submits that those letters concerned K. K., who had been previously heard in the case, and J. N., who was counsel for U. K.
The applicant appealed against the decision to remand him in custody, but on 23 November 1995 the Kielce Regional Court (sąd wojewódzki) dismissed his appeal.
On 30 November 1995 an expert in cardiology, having been so ordered by the prosecutor, prepared an opinion, according to which the applicant should not be kept in detention.
On 11 December 1995 the applicant was released on bail.
In December 1995 the prosecutor heard further witnesses.
On 10 January 1996 she decided to prolong the investigation, relying, among other reasons, on the Swedish authorities’ failure to carry out the letter rogatory.
On 26 January 1996 the prosecutor refused the applicant’s request to be released from the bail requirements. On 29 February 1996 his appeal against that decision was dismissed.
On 7 February 1996 the prosecutor brought charges against another individual.
On 29 February and 22 April 1996 the investigation was further prolonged in view of the Swedish authorities’ failure to execute the letter rogatory.
On 21 June 1996 the prosecutor refused the applicant’s further request to be released from the bail requirements.
Subsequently, on three occasions the prosecutor again prolonged the investigation, relying each time on the difficulties with the execution of the letter rogatory.
On 7 February 1997 the prosecutor refused the applicant’s further request for release from the bail requirements. His appeal against that decision was dismissed on 17 March 1997.
On 27 March 1997 the testimony given by the two Swedish witnesses was submitted to the Kielce Regional Prosecutor.
On 24 May 1997 the prosecutor decided that a part of the case would be examined in a separate set of proceedings.
On 26 May 1997 the applicant notified the Minister of Justice about criminal offences allegedly committed, inter alia, by the Kielce Regional Prosecutor in the course of the investigation.
On 23 June 1997 the prosecutor rejected an evidence motion submitted by the applicant.
On 30 June 1997 the prosecutor submitted to the Kielce Regional Court the bill of indictment. The indictment comprised allegations in respect of four individuals, including the applicant. One of them was a Swedish national. The prosecutor requested the court to summon 15 witnesses, including two Swedish nationals.
On 2 July 1997 the Regional Court requested the Supreme Court to transmit the case to another court.
On 7 August 1997 the Supreme Court transferred the case to the Kraków Regional Court, relying on the fact that the applicant was a lawyer practising in the region covered by the Kielce Regional Court’s jurisdiction.
On 8 January 1998 the Kraków Regional Court dismissed the applicant’s and another accused person’s requests for the discontinuance of the proceedings.
The hearing scheduled for 24 February 1998 was adjourned sine die because of the absence of U. K. In March U. K. submitted a sick certificate.
On 18 January 1999 the President of the Regional Court assigned a judge to replace one of the judges in the applicant’s case, who had retired.
The hearing scheduled for 10 August 1999 was adjourned because of U. K.’s continuing absence.
On 1 September 1999 the court requested the Regional Courts in Poznań and Warsaw to submit case files of criminal cases similar to the applicant’s case, examined by those courts.
On 8 October 1999 the court refused the applicant’s further request for the discontinuance of the proceedings.
U. K. failed to attend the hearing held on 8 October 1999 and the court decided to adjourn the examination of the charges against him to a separate set of proceedings.
At the hearing held on 9 November 1999 the court imposed a fine on witness E. N., who was a victim in the case, for her failure to attend the hearing despite having been duly summoned. Subsequently, her mother informed the court that E. N. resided abroad and she would not attend the hearing scheduled for 8 December 1999.
On 8 December 1999 the court held a hearing.
On 11 January 2000 it ordered the police of E. N.’s place of residence to submit information concerning her whereabouts.
The court held a hearing on 12 January 2000. It fined two witnesses who failed to appear before it although duly summoned.
The court held further hearings on 16 February and 21 March 2000.
Subsequently, the presiding judge fixed the dates of further hearings for 4 and 12 May 2000, anticipating a possibility to examine witness E. N. She could not be heard on the former date and the hearing scheduled for that date did not take place.
The court heard E. N. at the hearing on 12 May 2000.
It held another hearing on 9 June 2000.
On 16 June 2000 the court gave judgment. The applicant was convicted of inciting U. K. and K. K. to give false testimony and sentenced to one year and six months’ imprisonment, suspended for two years. He was acquitted of child trafficking. The judgment was accompanied by 125 pages of reasoning. The applicant, as well as one of the other accused persons and the prosecutor, appealed.
On 8 March 2001 the Kraków Court of Appeal (sąd apelacyjny) acquitted the applicant of inciting U. K. to give false testimony. It dismissed the remainder of his appeal.


ITEMID: 001-58196
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF TEKİN v. TURKEY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 2;Violation of Art. 3;Not necessary to examine Art. 5-1;Not necessary to examine Art. 6-1;No violation of Art. 10;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo
TEXT: 7. The applicant, Mr Salih Tekin, a Turkish citizen of Kurdish origin, was born in 1964 and lives in Diyarbakır. Prior to the events in question, he had been employed as a journalist for the newspaper Özgür Gündem.
The facts in the case are disputed.
8. It was not disputed that in February 1993, during a visit to his family in the hamlet of Yassıtepe, the applicant was arrested, on suspicion of threatening village guards, by gendarmes under the command of Officer Harun Altın and taken to Derinsu gendarmerie headquarters.
The applicant alleged that his arrest took place on the morning of 15 February 1993, whereas the Government claimed that it occurred on 17 February 1993.
9. He was held at Derinsu until 19 February 1993.
He alleged that during his time in custody there he was detained in a cell without any lighting, bed or blankets, in sub-zero temperatures, and fed with only bread and water. He claimed to have been assaulted in his cell by gendarmes, including Officer Altın. He stated that he would have died of cold had his three brothers not been permitted to enter his cell on the night of 18 February and wrapped him in extra clothing.
The Government denied that Mr Tekin had been ill-treated. They stated that it would have been impossible for the temperature in the security room to have dropped below freezing-point, since it was situated in the centre of the building and surrounded by other units heated by coal-burning stoves. They also denied that his brothers had been allowed to join him there.
10. On the morning of 19 February 1993, the applicant was taken to Derik district gendarmerie headquarters. He was released on the same day.
He alleged to have been tortured at Derik, through the application of cold water, electric shocks and beatings, with the purpose of forcing him to sign a confession statement. He claimed that the district gendarmerie commander, Musa Çitil, threatened him with death if he returned to the area.
The Government contested that any ill-treatment had taken place.
11. Prior to being released, Mr Tekin was brought before the public prosecutor, Hasan Altun.
It was not disputed that he complained to Mr Altun of having been tortured and ill-treated at both Derinsu and Derik. The applicant claimed in addition that he had handed Mr Altun a wet piece of cloth with which he had been blindfolded while being hosed with water. Mr Altun recorded these allegations, but took no further action in relation to them.
12. The Supreme Council of Judges and Prosecutors consequently decided to commence an investigation into the reasons for Mr Altun’s inaction, which led to disciplinary proceedings being launched against him. During the hearing before the Court the Government confirmed that these proceedings had not yet been concluded.
13. Mr Tekin returned to Diyarbakır on 20 February 1993. He did not see a doctor after his release. The following week he lodged a complaint about his treatment with the Human Rights Association, which advised him to make an application to the Commission.
14. Since the offence with which the applicant was charged (see paragraph 8 above) fell within the competence of the National Security Courts (see paragraph 29 below), a Derik public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır National Security Court.
Following a hearing on 13 May 1993, the applicant was acquitted on 2 August 1993.
15. Following the Commission’s communication to the Government on 11 October 1993 of Mr Tekin’s application, the Ministry of Justice (International Law and External Relations General Directorate) contacted the public prosecutor’s office in Derik on 18 December 1993, informing it of the applicant’s complaints. A preliminary investigation was opened.
16. Officer Altın was questioned in connection with Mr Tekin’s allegations by a public prosecutor in Daday district on 20 April 1994, at the request of the Derik public prosecutor, Bekir Özenir.
17. Mr Özenir issued a decision of non-prosecution in relation to officers Altın and Çitil on 4 May 1994, on the grounds that there was no evidence that they had ill-treated or threatened Mr Tekin, other than the latter’s unsubstantiated allegations.
18. However, this decision was not made final following the intervention of the Ministry of Justice, which took the view that Mr Tekin should be given the opportunity to file an appeal against it. Furthermore, because of the identities of the defendants and the nature of the allegations against them, the Ministry of Justice considered that the alleged offences might fall within the scope of the Law on the Prosecution of Civil Servants, over which the public prosecutor had no jurisdiction (see paragraph 30 below).
19. A decision of non-jurisdiction was subsequently issued by the Derik public prosecutor’s office on 4 May 1995 and the case was referred to the Derik District Administrative Council.
20. In this connection, on 14 July 1995, a statement was taken from Commander Çitil by a gendarmerie lieutenant-colonel.
21. The Derik District Administrative Council submitted its summary investigation report to the office of the Mardin provincial governor on 5 September 1995. On 12 September 1995, this report was referred to the Mardin Provincial Administrative Council (see paragraph 30 below). The latter decided, on 13 September 1995, that, due to lack of evidence, officers Altın and Çitil were exempt from public prosecution.
22. This decision was subject to an automatic appeal to the Supreme Administrative Court (see paragraph 30 below). The latter confirmed the decision of non-prosecution.
23. The Commission conducted an investigation into the facts, with the assistance of the parties. It accepted written material, including witness statements, reports about Turkey, documents relating to the applicant’s detention at Derinsu and Derik gendarmerie headquarters and to the investigation on the domestic level into the applicant’s allegations, and a floor plan of Derinsu gendarmerie headquarters. In addition, three delegates of the Commission heard the oral evidence of seven witnesses in Diyarbakır on 8 November 1995 and a further hearing took place before the Commission in Strasbourg on 7 March 1996. The witnesses included the applicant, his father, Hacı Mehmet Tekin, officers Harun Altın and Musa Çitil, and three neighbours of the applicant’s father, Sinan Dinç, Mehmet Dinç and Halit Tutmaz, who alleged to have spoken to the applicant shortly after his release.
The Commission had requested the attendance of the public prosecutors Hasan Altun, Bekir Özenir and Osman Yetkin (the latter was the public prosecutor at the Diyarbakır National Security Court), but none of them appeared to give evidence.
24. The Commission was unable to determine the date of the applicant’s arrest or the precise details of his treatment in custody. However, cautiously evaluating the evidence, the Commission was satisfied that the applicant had been kept in a cold and dark cell and blindfolded and treated in a way which left wounds and bruises on his body in connection with his interrogation.
25. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has, according to the Government, claimed the lives of thousands of civilians and members of the security forces.
26. Two principal decrees relating to the south-eastern region have been made under the Law on the State of Emergency (Law no. 2935, 25 October 1983). The first, Decree no. 285 (10 July 1987), established a regional governorship of the state of emergency in ten of the eleven provinces of south-east Turkey. Under Article 4 (b) and (d) of the decree, all private and public security forces and the Gendarmerie Public Peace Command are at the disposal of the regional governor.
The second, Decree no. 430 (16 December 1990), reinforced the powers of the regional governor, for example to order transfers out of the region of public officials and employees, including judges and prosecutors, and provided in Article 8:
“No criminal, financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this Decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.”
27. The Turkish Criminal Code makes it a criminal offence:
(a) to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants),
(b) to issue threats (Article 191),
(c) to subject an individual to torture or ill-treatment (Articles 243 and 245).
28. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings.
29. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.
30. The public prosecutor is also deprived of jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region. Decree no. 285, Article 4 § 1, provides that all security forces under the command of the regional governor (see paragraph 26 above) shall be subject, in respect of acts performed in the course of their duties, to the Law on the Prosecution of Civil Servants. Thus, any public prosecutor who receives a complaint alleging a criminal act by a member of the security forces must make a decision of non-jurisdiction and transfer the file to the Administrative Council. A decision by the Council not to prosecute is subject to an automatic appeal to the Supreme Administrative Court.
VIOLATED_ARTICLES: 13
3
NON_VIOLATED_ARTICLES: 10
14
18
2


ITEMID: 001-85146
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HABERLANDOVA AND PUR v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova
TEXT: The applicants, Ms Drahomíra Haberlandová and Mr Radomír Pur, are Czech nationals who were born in 1948 and 1951 respectively, and live in Zábřeh na Moravě. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 1 March 1994 a certain P. (hereinafter “the plaintiff”) brought in the Šumperk District Court (okresní soud) a civil action against the first applicant and other persons seeking to termination and settlement of their joint ownership of immovable property and to creation of an easement.
On 8 February 2000 the District Court delivered a meritorious judgment against which the plaintiff appealed. On 17 January 2002 the Ostrava Regional Court (krajský soud) did not allow the latter’s partial withdrawal of his action. The District Court’s judgment thereby became partially final.
In a judgment of 8 July 2002 the Regional Court quashed the remaining part of the first instance judgment and remitted the relevant part of the case to the District Court which, on 4 November 2003, split for a separate hearing the plaintiff’s request to create an easement to the property and decided on the merits of his action.
On 1 February 2005 the Regional Court upheld the meritorious part of the first instance judgment and modified it in respect of fees and expenses.
On 14 June 2006 the Supreme Court (Nejvyšší soud) dismissed the plaintiff’s appeal on points of law (dovolání).
On 18 July 2006 the applicants applied for compensation pursuant to Act no. 82/1998 as amended. They claimed CZK 54,829 (EUR 2,086) in respect of pecuniary damage. The second applicant further claimed CZK 100,000 (EUR 3,805) in respect of non-pecuniary damage. The applicants finally claimed CZK 14,669 (EUR 558) in respect of fees incurred in the proceedings before the national courts.
In a letter of 15 January 2007 the Ministry of Justice informed them that their application had been accepted, that it had been found that their right to a determination of their civil claim within a reasonable time had been violated and that the second applicant had been awarded a sum of CZK 100,000 (EUR 3,805) in respect of non-pecuniary damage he might have sustained. The Ministry refused, however, the applicants’ claim regarding compensation for pecuniary damage and court fees.
On 24 July 2007 the applicants informed the Registry that they did not intend to turn to a court under section 15(2) of Act no. 82/1998 as amended.
The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).