ITEMID: 001-111364
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF K v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty);Non-pecuniary damage - award
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1957 and is currently detained in Schwalmstadt Prison.
6. On 26 January 1979 the Frankfurt am Main Regional Court convicted the applicant, inter alia, of repeated rape and of two counts of attempted rape, together with dangerous assault respectively, committed against three young women he did not previously know and whom he had seriously beaten or injured with weapons, and sentenced him to three years’ imprisonment. The court found that owing to a sadistic sexual deviation, the applicant had acted with diminished criminal responsibility.
7. On 20 May 1983 the Frankfurt am Main Regional Court convicted the applicant of dangerous assault and sentenced him to two years and six months’ imprisonment. It found that the applicant had caused a knife injury to a prostitute who had resisted sexual intercourse with him. It considered that the sadistic sexual deviation the applicant suffered from had not diminished his criminal responsibility.
8. On 28 August 1987 the Frankfurt am Main Regional Court convicted the applicant, in particular, of four counts of rape, sexual assault and assault and of one count of attempted rape, attempted sexual assault and assault, committed against five drug-addicted prostitutes in 1985 and 1986. It found that the applicant had raped or attempted to rape the five women, had beaten and mistreated them in a torture-like manner and had partly urinated on them or forced them to have obscene photographs taken of them. It sentenced him to eight years and six months’ imprisonment and ordered his placement in a psychiatric hospital (Article 63 of the Criminal Code, see paragraph 51 below). It considered that the applicant suffered from a serious personality disorder and from a sadistic sexual deviation and had committed his offences with diminished criminal responsibility.
9. The Regional Court further found that the applicant was liable to reoffend and was therefore dangerous to the public as long as he was not undergoing therapy. The therapy in question was only possible in a psychiatric hospital. The court considered that the conditions for the applicant’s preventive detention under Article 66 § 1 of the Criminal Code (see paragraphs 41-42 below) were also met. However, owing to the fact that preventive detention only entailed a person’s safe custody, without offering any specific medical and psychological treatment, this measure was clearly less suitable in the applicant’s case than his placement in a psychiatric hospital. Therefore, the court did not order the applicant’s preventive detention in addition to his placement in a psychiatric hospital.
10. The judgment became final in March 1988 and from August 1988 onwards the applicant was initially detained in a psychiatric hospital in Giessen.
11. On 19 February 1992 the Marburg Regional Court ordered that the applicant serve his prison sentence prior to his continued placement in a psychiatric hospital. It argued that the applicant denied the offences he had been found guilty of and refused to undergo therapy. Furthermore, doubts had arisen as to whether he had actually acted with diminished criminal responsibility.
12. The applicant was retransferred to prison on 8 April 1993 and then served his full sentence mainly in Schwalmstadt Prison.
13. In 1994 an expert, C., confirmed that the applicant, who suffered from a borderline personality disorder, had originally been wrongly placed in a psychiatric hospital from a present-day perspective.
14. From 20 October 1995 onwards the applicant, having served his full sentence, was again detained in a psychiatric hospital, initially in Giessen and subsequently in Hanau, on an order of the Frankfurt am Main Regional Court, based on the Regional Court’s judgment of 28 August 1987. In these proceedings, expert L., who had already examined the applicant prior to the Regional Court’s judgment in 1987, confirmed that the applicant, an autistic psychopath, had acted with diminished criminal responsibility and that his placement in a psychiatric hospital had therefore been justified.
15. On 24 July 2007 the Marburg Regional Court terminated the applicant’s detention in a psychiatric hospital (Article 67d § 6 of the Criminal Code, see paragraph 48 below). Having heard evidence from another expert, F., it found that the applicant did not suffer from a serious personality disorder or from a sadistic sexual deviation which diminished his criminal responsibility. It further ordered the applicant’s provisional detention pending the competent court’s decision whether or not he was to be placed in preventive detention retrospectively as the applicant still had a propensity to commit serious offences. The applicant was accordingly detained in Weiterstadt Prison since August 2007.
16. On 8 January 2008 the Frankfurt am Main Court of Appeal quashed the Regional Court’s order for the applicant’s detention. The applicant was released on that day. Shortly afterwards, he harassed a young woman and threatened her presumed partner.
17. Following the applicant’s failure to appear at the hearing before the Frankfurt am Main Regional Court on 22 January 2008 in the proceedings at issue, that court ordered the applicant’s arrest in order to secure the conduct of the proceedings. The applicant has been in detention since that date, first in Weiterstadt Prison and subsequently, since December 2008, in Schwalmstadt Prison.
18. On 9 April 2008 the Frankfurt am Main Regional Court, relying on Article 66b § 3 of the Criminal Code (see paragraph 47 below), ordered the applicant’s preventive detention retrospectively (nachträgliche Sicherungsverwahrung).
19. The Frankfurt am Main Regional Court found that, in accordance with Article 66b § 3 of the Criminal Code, the Marburg Regional Court had terminated the applicant’s placement in a psychiatric hospital on 24 July 2007 pursuant to Article 67d § 6 of the Criminal Code as the requirements for placing him in such a hospital had not been met at the time of that court’s decision. The court further noted that the requirements of Article 66b § 3 (1) of the Criminal Code were met. The order for the applicant’s placement in a psychiatric hospital had been made in the judgment of the Frankfurt am Main Regional Court of 28 August 1987 convicting him, inter alia, of four counts of rape and one count of attempted rape and sentencing him to eight years and six months’ imprisonment. Moreover, the applicant had already been convicted of rape and sentenced to three years’ imprisonment by a judgment of the Frankfurt am Main Regional Court of 26 January 1979.
20. The Regional Court further found that a comprehensive assessment of the applicant, his offences and his development during his placement in a psychiatric hospital revealed that it was very likely that, if released, he would again commit serious sexual offences resulting in considerable psychological or physical harm to the victims (Article 66b § 3 (2) of the Criminal Code). It based its findings on the reports submitted by a psychological expert, D.-S., and a psychiatric external expert, S. Both experts had considered that the applicant was a psychopath suffering from a serious dissocial personality disorder and from a sexual deviation, sadism. There was a high risk that the applicant would commit further violent sexual offences if released. The experts and all the witnesses confirmed that the applicant had not changed throughout his detention and placement in a psychiatric hospital and had not made any serious effort to reflect on his offences.
21. On 21 November 2008 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. It found that Article 66b § 3 of the Criminal Code was compatible with the Basic Law and applied also to cases in which a person’s placement in a psychiatric hospital was terminated because the person concerned had not been suffering from a disorder warranting his or her placement from the outset.
22. On 30 December 2008 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained, in particular, that the retrospective order for his preventive detention had violated the prohibition of retrospective punishment under the Basic Law (Article 103 § 2). He argued that Article 66b of the Criminal Code had been applied with retrospective effect to him as, at the time of his conviction, ordering preventive detention retrospectively had not been authorised. In view of the manner in which preventive detention orders were executed in practice, there was no material difference compared to the execution of a prison sentence. Preventive detention therefore had to be treated as a penalty to which the prohibition of retrospective punishment applied.
23. The applicant further submitted that the retrospective order for his preventive detention amounted to the correction of a final judgment of a criminal court without any new facts having emerged. Even though the Frankfurt am Main Regional Court had considered, in its judgment of 1987, that the requirements of Article 66 § 1 of the Criminal Code had been met, it had not ordered his preventive detention.
24. On 5 August 2009 a chamber of three judges of the Federal Constitutional Court declined to consider the applicant’s constitutional complaint – as well as that of another applicant, G., who lodged application no. 65210/09 before this Court – on the grounds that it was ill-founded (file no. 2 BvR 2633/08).
25. The Federal Constitutional Court noted that Article 67d § 6 and Article 66b § 3 had been inserted into the Criminal Code because, under the Federal Court of Justice’s well-established case-law, a person could no longer be detained in a psychiatric hospital under Article 63 of the Criminal Code and had to be released if that person no longer suffered from a condition excluding or diminishing his criminal responsibility. This was considered problematic in cases in which the person concerned, without suffering from the said condition, was still dangerous to the public.
26. The Federal Constitutional Court found that Article 66b § 3 of the Criminal Code and the courts’ decision to order the applicant’s placement in preventive detention retrospectively were compatible with the Basic Law. Article 66b § 3 of the Criminal Code did not breach the ban on the retrospective application of criminal laws imposed by Article 103 § 2 of the Basic Law. That Article applied only to State measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a sanction to compensate for guilt. Unlike such a penalty, preventive detention was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender. For the same reason, Article 66b § 3 of the Criminal Code did not breach the right not to be punished twice for the same offence under the Basic Law.
27. The Federal Constitutional Court further took the view that Article 66b § 3 of the Criminal Code was in conformity with the protection of legitimate expectations guaranteed in a State governed by the rule of law, even if applied to a case such as that of the applicant, who had committed his offences and had been convicted and sentenced prior to the entry into force of the said provision. It considered as compatible with the Basic Law the legislator’s decision whereby the effective protection of the public from very dangerous offenders who were liable to commit serious offences resulting in considerable psychological or physical harm to the victims – which was a paramount public interest – outweighed the offender’s interest in protection of his legitimate expectations.
28. The Federal Constitutional Court noted that the impugned provisions allowed the courts in a case like that of the applicant to amend retrospectively a sanction fixed in a previous final judgment in the light of new evidence (in particular new expert reports), without new facts having come up. It emphasised that the sentencing criminal courts’ decision not to order preventive detention became final even if it later emerged that the courts had erred in considering the offender not to be dangerous. Nevertheless, the retrospective preventive detention order under Article 66b § 3 of the Criminal Code, read in conjunction with Article 67d § 6 of the Criminal Code, entailed only very limited disadvantages of constitutional relevance. In substance, the ordering of a measure of indefinite duration depriving the person concerned of his or her liberty – namely, placement in a psychiatric hospital – was merely replaced, under certain qualified conditions, by the ordering of a different such measure of indefinite duration, namely preventive detention. Any remaining disadvantages for the offender in the protection of his legitimate expectations were outweighed by the paramount interest of the public pursued by the provisions in question.
29. The Federal Constitutional Court further found that Article 66b § 3 of the Criminal Code was compatible with the applicant’s right to liberty under the Basic Law (Article 2 § 2). In order to protect the right to life, physical integrity and liberty of citizens the legislator was authorised, within the limits set by the principle of proportionality, to deprive of his liberty a person who could be expected to violate the citizens’ said rights.
30. In Schwalmstadt Prison, persons in preventive detention are placed in a separate building from prisoners serving their sentence. They have certain minor privileges compared with convicted offenders serving their sentence (see, for instance, M. v. Germany, no. 19359/04, § 41, ECHR 2009). As regards therapeutic measures, persons held in preventive detention in Schwalmstadt Prison are offered a weekly discussion group proposing ideas for recreational activities and for structuring daily life. They are further offered discussions with an external psychiatrist once per month as well as psychological or psychotherapeutic measures and social training considered suitable for them.
31. When placed in preventive detention, the applicant was not motivated to undergo therapy. He denied the offences he had been convicted of and considered himself to be detained unlawfully. Therefore, he had not been transferred to a social therapeutic department of another prison. He worked in prison in 2009 and has been out of work since then. In 2010 he participated in a social training course.
32. On 15 April 2010 the Marburg Regional Court dismissed the applicant’s request to suspend the execution of his preventive detention and to grant probation.
33. On 1 July 2010 the Frankfurt am Main Court of Appeal dismissed the applicant’s appeal against that decision. It found that there was a risk that the applicant would commit further violent sexual offences if released (Article 67d § 2 of the Criminal Code; see paragraph 50 below). Having regard to this Court’s judgment in the case of M. v. Germany (cited above), the Court of Appeal took the view that the question of whether the applicant’s preventive detention breached the prohibition of retrospective punishment could not be examined in the present proceedings concerning the execution of the applicant’s preventive detention. That issue could only be dealt with following a reopening of the proceedings in which that detention had been ordered.
34. Following the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraphs 52-55 below), the applicant again requested the Marburg Regional Court to order his release. On 30 August 2011 the Marburg Regional Court refused to suspend the applicant’s preventive detention, ordered retrospectively on 9 April 2008, and to grant probation. Having regard to the expert reports obtained in those proceedings, it found that it could not be expected that the applicant would not commit any further unlawful acts on his release (Article 67d § 2 of the Criminal Code). There was, on the contrary, a risk that the applicant, owing to specific circumstances relating to his person and his conduct in prison, would commit the most serious crimes of violence or sexual offences soon after his release from prison. The stricter standards for a prolongation of his preventive detention set up by the Federal Constitutional Court in its judgment of 4 May 2011 were therefore met.
35. The Regional Court considered, in particular, that according to the pertinent findings of the Federal Constitutional Court in the said judgment, a retrospective order of preventive detention following the termination of a person’s placement in a psychiatric hospital did not breach the protection of legitimate expectations guaranteed in a State governed by the rule of law or the prohibition of retrospective punishment. As the judgments of the European Court of Human Rights only had the force of Federal legislation in Germany, the fact that that Court had considered, in its judgment of 17 December 2009, that retrospective preventive detention was in breach of human rights, did not alter that conclusion.
36. On 15 November 2011 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal.
37. On 8 October 2010 the Darmstadt Regional Court dismissed the applicant’s request of 6 July 2010 for a reopening of the proceedings in which his preventive detention had been ordered as inadmissible as there was currently no ground for reopening. In particular, a reopening on the ground that the European Court of Human Rights had found a domestic court’s judgment to be in breach of the Convention applied only to applicants who had themselves obtained a judgment of that Court in their favour.
38. On 26 November 2010 the Frankfurt am Main Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant’s appeal.
39. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court’s judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, ECHR 2009). A summary of the provisions of the Basic Law governing the right to liberty (Article 2 § 2) and the ban on retrospective application of criminal laws (Article 103 § 2) can also be found in that judgment (ibid., §§ 57 and 61). The provisions referred to in the present case provide as follows:
40. Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) cover, in particular, placement in a psychiatric hospital (Article 63 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code).
41. Article 66 of the Criminal Code governs orders for a person’s preventive detention made by the sentencing court when finding the person guilty of an offence. That court may, at the time of the offender’s conviction, order his preventive detention (a so-called measure of correction and prevention) under certain circumstances in addition to his prison sentence (a penalty), if the offender has been shown to be a danger to the public.
42. In particular, under Article 66 § 1 of the Criminal Code, in its version in force at the relevant time, the sentencing court had to order preventive detention in addition to the penalty if someone was sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions were satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence (Article 66 § 1 (1)). Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years (Article 66 § 1 (2)). Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (Article 66 § 1 (3)).
43. Under Article 66 § 3, first sentence, of the Criminal Code, preventive detention may further be ordered in addition to a prison sentence if the perpetrator is sentenced for certain serious offences, including murder, rape and dangerous assault, to at least two years’ imprisonment, if he has previously been convicted (only) once of one or more such offences to at least three years’ imprisonment and if the remaining requirements laid down in Article 66 § 1 (2) and (3) are met.
44. Article 72 of the Criminal Code governs the combination of different measures of correction and prevention. If the conditions for several such measures are met, yet the desired objective may be attained by one or a part of these measures, then only those latter measures shall be ordered (see Article 72 § 1). Otherwise, such measures shall be ordered cumulatively unless the law provides otherwise (Article 72 § 2).
45. The Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung) of 23 July 2004, which entered into force on 29 July 2004, inserted Articles 66b and 67d § 6 into the Criminal Code; the latter provision was amended by an Act of 13 April 2007. The provisions in question were aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under Article 63 of the Criminal Code were no longer met, but who were still dangerous to the public (see German Federal Parliament documents (BTDrucks), no. 15/2887, pp. 10, 13/14).
46. In fact, under the case-law previously established by the courts dealing with the execution of sentences, a person’s placement in a psychiatric hospital had to be terminated and the person concerned had to be released if he no longer suffered from a condition excluding or diminishing his criminal responsibility, even if that person was still dangerous to the public (see Hamm Court of Appeal, no. 4 Ws 389/81, decision of 22 January 1982, Neue Zeitschrift für Strafrecht (NStZ) 1982, p. 300; Karlsruhe Court of Appeal, no. 1 Ws 143/82, decision of 30 June 1982, Monatsschrift für Deutsches Recht (MDR) 1983, p. 151; Federal Court of Justice, no. 3 StR 317/96, judgment of 27 November 1996, Collection of decisions of the Federal Court of Justice in Criminal Matters (BGHSt) no. 42, p. 310; see also Federal Constitutional Court, nos. 2 BvR 1914/92 and 2105/93, decision of 28 December 1994, Neue Juristische Wochenschrift (NJW) 1995, p. 2406; and Federal Court of Justice, no. 4 StR 577/09, decision of 12 May 2010, § 13 with further references).
47. Article 66b § 3 of the Criminal Code, in its version in force at the relevant time, provided:
“(3) If an order for placement in a psychiatric hospital has been declared terminated pursuant to Article 67d § 6 because the conditions excluding or diminishing criminal responsibility on which the order was based no longer persisted at the time of the decision terminating the placement, the court may order preventive detention retrospectively if
1. the placement of the person concerned under Article 63 was ordered on the basis of several of the offences listed in Article 66 § 3, first sentence, or if the person concerned had either already been sentenced to at least three years’ imprisonment or had been placed in a psychiatric hospital because of one or more such offences, committed prior to the offence having led to that person’s placement under Article 63, and
2. a comprehensive assessment of the person concerned, his offences and, in addition, his development during the execution of the measure revealed that it was very likely that he would again commit serious offences resulting in considerable psychological or physical harm to the victims.”
48. Article 67d § 6 of the Criminal Code provides:
“(6) If, after enforcement of an order for placement in a psychiatric hospital has started, the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate, it shall declare the measure terminated. The release of the person concerned from the psychiatric hospital shall entail supervision of his or her conduct. ...”
49. The said two provisions remained valid also under the Reform of Preventive Detention Act (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung) of 22 December 2010, which entered into force on 1 January 2011, for offences committed after the entry into force of that Act. As a result of the abolition of paragraphs 1 and 2 of Article 66b of the Criminal Code, the former paragraph 3, slightly amended, became the only provision of that Article.
50. Article 67d of the Criminal Code governs the duration of preventive detention. Paragraph 2, first sentence, of that Article provides that if there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation the further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his release.
51. Article 63 of the Criminal Code governs the detention of mentally ill persons as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. It provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court shall order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.
52. On 4 May 2011 the Federal Constitutional Court delivered a leading judgment concerning the retrospective prolongation of the complainants’ preventive detention beyond the former ten-year maximum period and also concerning the retrospective order for a complainant’s preventive detention under Article 66b § 2 of the Criminal Code (file nos. 2 BvR 2365/09, 2 BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10). Reversing its previous position, the Federal Constitutional Court held that all provisions concerned, both on the retrospective prolongation of preventive detention and on the retrospective ordering of such detention, were incompatible with the Basic Law as they failed to comply with the constitutional protection of legitimate expectations guaranteed in a State governed by the rule of law, read in conjunction with the constitutional right to liberty.
53. The Federal Constitutional Court further held that all the relevant provisions of the Criminal Code on the imposition and duration of preventive detention were incompatible with the fundamental right to liberty of persons in preventive detention. It found that those provisions did not satisfy the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment (Abstandsgebot). These provisions included, in particular, Article 66 of the Criminal Code in its version in force since 27 December 2003 and Article 66b § 3 of the Criminal Code in its version of 23 July 2004.
54. The Federal Constitutional Court ordered that all provisions declared incompatible with the Basic Law remained applicable until the entry into force of new legislation and until 31 May 2013 at the latest. In relation to detainees whose preventive detention had been prolonged or ordered retrospectively under Article 66b § 2 of the Criminal Code (but not preventive detention ordered under Article 66b § 3 of the Criminal Code), the courts dealing with the execution of sentences had to examine without delay whether the persons concerned, owing to specific circumstances relating to their person or their conduct, were highly likely to commit the most serious crimes of violence or sexual offences and if, additionally, they suffered from a mental disorder within the meaning of section 1 § 1 of the newly enacted Therapy Detention Act. As regards the notion of mental disorder, the Federal Constitutional Court explicitly referred to the interpretation of the notion of “persons of unsound mind” in Article 5 § 1 sub-paragraph (e) of the Convention made in this Court’s case-law (see §§ 138 and 143-156 of the Federal Constitutional Court’s judgment). If the above pre-conditions were not met, those detainees had to be released no later than 31 December 2011. The other provisions on the imposition and duration of preventive detention could only be further applied in the transitional period subject to a strict review of proportionality; as a general rule, proportionality was only respected where there was a danger of the person concerned committing serious crimes of violence or sexual offences if released.
55. In its reasoning, the Federal Constitutional Court relied on the interpretation of Article 5 and Article 7 of the Convention made by this Court in its judgment in the case of M. v. Germany (cited above; see §§ 137 ss. of the Federal Constitutional Court’s judgment). It stressed, in particular, that the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment and the principles laid down in Article 7 of the Convention required an individualised and intensified offer of therapy and care to the persons concerned. In line with the Court’s findings in the case of M. v. Germany (cited above, § 129), it was necessary to provide a high level of care by a team of multi-disciplinary staff and to offer the detainees an individualised therapy if the standard therapies available in the institution did not have prospects of success (see § 113 of the Federal Constitutional Court’s judgment).
VIOLATED_ARTICLES: 7
VIOLATED_PARAGRAPHS: 7-1


ITEMID: 001-81612
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VEDERNIKOVA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6;Violation of P1-1
TEXT: 4. The applicant was born in 1940 and lives in Novosibirsk. She receives an old-age pension.
5. On 1 February 1998 the Law on Calculation and Adjustment of State Pensions (hereafter “the Pensions Act”) introduced a new method of calculation of retirement benefits based on what is known as the “individual pensioner coefficient” (“the IPC”). The IPC was the ratio between an individual's wages at the time of retirement and the national average wage. The IPC was meant to maintain a link between pensions and previous earnings.
6. The applicant considered that the Zayeltsovskiy District Division of the Pension Fund (hereafter “the Fund”) had incorrectly calculated her pension and in March 1999 she sued the Fund for an increase of her pension in accordance with the Pensions Act.
7. On 22 November 1999 the Zayeltsovskiy District Court of Novosibirsk found in the applicant's favour. The District Court held that the Fund had misconstrued the law and that the applicant's pensions should be recalculated and increased in line with an IPC of 0.7 starting from 1 February 1998. The District Court also awarded the applicant 3,004.08 Russian roubles (RUR) in pension arrears. On 25 January 2000 the Novosibirsk Regional Court upheld the judgment.
8. On 21 August 2000 the Fund requested the Zayeltsovskiy District Court to reopen the case owing to a newly-discovered circumstance. The Fund claimed that on 29 December 1999 the Ministry of Labour and Social Development had issued an Instruction on the Application of Limitations established by the Pensions Act. The Instruction clarified how the Pensions Act should be applied. The Fund further indicated that on 24 April 2000 the Supreme Court of the Russian Federation had dismissed the complaint by a group of individuals challenging the Instruction. The Supreme Court found that the Ministry of Labour had acted within its competence when it had issued the Instruction, and that the Ministry's interpretation of the Pensions Act had been correct. The Fund contended that since it had been unaware of the Supreme Court's decision of 24 April 2000 at the time of the judgment of 22 November 1999, the judgment would have to be reconsidered.
9. On 31 January 2001 the Zayeltsovskiy District Court granted the Fund's request, quashed the judgment of 22 November 1999 and reopened the proceedings. The District Court applied Article 333 of the RSFSR Code of Civil Procedure according to which judgments could be reconsidered in the event of discovery of significant circumstances which were not, and could not have been, known to the party concerned. The District Court found that the Instruction could serve as such a circumstance. The decision of 31 January 2001 was final and not amenable to appeal.
10. On 12 February 2001 the Zayeltsovskiy District Court, after the fresh examination of the case, dismissed the applicant's action in full. On 5 April 2001 the Novosibirsk Regional Court upheld the judgment.
11. Article 333 of the RSFSR Code of Civil Procedure of 1964 (in force at the material time) provided for grounds for reconsideration of final judgments on the basis of “newly-discovered circumstances”. Such grounds included, inter alia, significant circumstances which were not and could not have been known to the party which applied for reconsideration, and invalidation of a court ruling or another authority's decision which had served as a legal basis for the judgment in question.
Article 334 required that an application for reconsideration of a judgment owing to the discovery of new circumstances should be lodged within three months after the discovery of the circumstances.
Pursuant to Article 337 a court, after having examined an application for reconsideration of a final judgment on the basis of newly-discovered circumstances, should either grant such an application and quash the final judgment or dismiss the application. Such a decision was not amenable to appeal.
12. On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure (CCrP). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for reconsideration of a [criminal] case on the basis of newly discovered circumstances”, which was in many respects similar to Article 333 of the Code of Civil Procedure) was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice.
VIOLATED_ARTICLES: 6


ITEMID: 001-69426
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF MILATOVÁ AND OTHERS v. THE CZECH REPUBLIC
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
TEXT: 7. The applicants were born in 1929, 1952, 1950 and 1949 respectively and live in the Nový Jičín region.
8. On 18 December 1991 the first applicant and her husband claimed restitution of their real property – a house with land – under the Land Ownership Act, alleging that in May 1985 they had been forced to sell it to the State, represented by the former Federal Ministry of National Defence (federální ministerstvo národní obrany), on terms that had been imposed on them. At the date of the entry into force of the Land Ownership Act, the property was managed by the Military Repair Enterprise (“the defendant”), the authority that was obliged to return the property to them, pursuant to section 5(1) and (2) of the Act.
9. The restitution claim was dealt with by the Nový Jičín Land Office (pozemkový úřad).
10. On 18 September 1992 the Nový Jičín Geodesy Centre (středisko geodézie) issued a survey plan in respect of the land. The plan was, however, found to be incomplete by the Land Office.
11. On 26 September 1993 the first applicant's husband died, and their three children joined the proceedings as his legal successors. In a medical report of 29 March 1994 it was stated that the premature death of the first applicant's husband was directly linked to an illness which had started after he had been forced to leave the house and to abandon his property.
12. On 22 February 1994 the Nový Jičín Land Registry (katastrální úřad) issued a new comparative plan of the land. Four other documents issued on 15 May, 3 June and 8 June 1994 were also included in the file. Two survey plans, issued at the request of the defendant and the Land Office, were produced on 11 November 1994 and 26 January 1995 respectively.
13. On 12 September 1995 the Land Office, having assessed the material in the file and having heard evidence from five witnesses who had been involved in the negotiations for the sale of the applicants' property, including Mr R., who was the defendant's lawyer, declared that the applicants were the owners of a major part of the property. It found that the contract of sale had been concluded under duress on strikingly unfavourable terms, within the meaning of section 6(1)(k) of the Land Ownership Act.
14. The Land Office established, among other things, that, contrary to the law then in force, the first applicant and her husband had not been considered parties to administrative proceedings which had resulted in the adoption of a decision on 20 March 1984 on the location of a construction
site. It also established that the purchase price had been determined by an expert, in accordance with Decree no. 128/1984.
15. On 26 October 1995 the defendant, represented by Mr R., appealed against the administrative decision to the Ostrava Regional Court (krajský soud), which on 9 July 1996 carried out an inspection of the site.
16. In their observations on the defendant's appeal, the applicants challenged, inter alia, the statement by Mr R., who had legally represented the defendant in the past and was acting again as its lawyer in the restitution proceedings.
17. On 9 July 1996 a meeting took place at the site.
18. On 20 August 1996 the Regional Court quashed the decision and remitted the case to the Land Office for further consideration. It stated that the existence of grounds for restitution of the property under section 6(1)(k) of the Land Ownership Act had not been sufficiently established.
19. On 13 May 1997 the Land Office again decided, having taken into account further documentary evidence submitted by the first applicant and having re-examined two witnesses, that the applicants were the owners of the property. It examined in detail the circumstances of the sale of the property. It noted, inter alia, that the first applicant's husband had headed the defendant's personnel department and that the defendant had needed his property for the construction of a heating plant and, subsequently, a production unit. It further noted that the first applicant's husband had not been threatened with dismissal or the loss of his job in the event of his refusal to conclude the contract of sale.
20. Nevertheless, the Land Office held that the lengthy negotiations for the sale of the applicants' property or its expropriation, which had started in 1977, had seriously interfered with the lives of the first applicant and her husband, and that the circumstances in which these negotiations had been carried out had undoubtedly affected the health and mental state of the first applicant's husband.
21. The Land Office noted lastly that, according to the record of the negotiations dated 2 February 1977, the first applicant and her husband had agreed to the sale on condition that, inter alia, they would be provided with two three-room flats with garages, and that a one-room apartment in a day- care home would be placed at the disposal of the first applicant's mother. However, in addition to the price to be paid for the applicants' property – which could have been, but had not been, increased by 20% as allowed by Decree no. 128/1984 – the first applicant and her husband had been granted a two-room flat in 1983. Furthermore, a three-room apartment had been made available to their son. In addition, it was noted that the first applicant and her late husband had lived in the house for thirty-four years and that the benefit they had derived from the adjacent land, which they had used for agricultural purposes, had considerably improved the family's economic and social situation.
22. On 16 June 1997 the defendant appealed against that decision. On 1 August and 1 September 1997 respectively the applicants and their legal representative submitted their observations on the defendant's appeal.
23. On 10 April 1998 a bench of the Regional Court, after holding a hearing on 6 April 1998 and receiving the applicants' further comments concerning the case on 8 April 1998, quashed the administrative decision, finding that the Land Office had not proved to its satisfaction that the sale had been carried out under duress. The court considered that it was not necessary to examine whether the contract of sale had been concluded on terms unfavourable to the applicants. It held that, although the Land Office had reached its decision on the basis of the fully established and accurate facts of the case, it did not share its legal opinion.
24. The court noted that from the witnesses' statements and from the documentary evidence which it had supplemented by means of the report of 12 December 1985 on the professional activities of the first applicant's husband, the first proposal for the purchase of the applicants' property had been made in 1977 at a time when the defendant had needed part of the land for the construction of a heating plant. The court observed that on 2 February 1977 the owners had provisionally agreed to the sale and had imposed certain conditions which had to be satisfied before the construction work could be started. Moreover, they had stipulated that the sale had to be completed before the end of 1978. At that time, both the former owners were employed; the first applicant's husband was employed by the defendant in a senior post and was politically active. Their economic and social situation was such that it did not create a basis for a state of duress.
Moreover, the negotiations carried out with a view to concluding the contract of sale had lasted eight years as a result of the owners' continuous disagreement as to the fulfilment of the conditions they had imposed and the purchase price, which had finally been increased by 86,000 Czech korunas (CZK) (2,867 euros (EUR)).
25. The court also noted that the purchaser had proved that it had made efforts to meet the owners' requirements when, for instance, it had urged that a telephone line be speedily installed in one of the new flats, had paid the telephone connection fees and had assigned the flats to them even before the contract of sale had been signed. The purchaser had only come up with the suggestion of expropriating the applicants' property after several years of unsuccessful negotiations.
26. Finally, the court did not find any causal link between the contract concluded in 1985 and the health problems of the first applicant's husband, which had begun in 1986 (a year after the contract had been signed), and his subsequent death in 1993.
27. The case was remitted to the Land Office, which issued a fresh decision on 15 June 1998. In accordance with the opinion of the Regional Court, by which it was bound by virtue of Article 250 (r) of the Code of Civil Procedure, the Land Office ruled that the applicants were not the owners of the property because the contract of sale had not been concluded under duress, within the meaning of section 6(1)(k) of the Land Ownership Act. The Land Office considered that it was therefore unnecessary to examine whether the contract of sale had been concluded on strikingly unfavourable terms within the meaning of the same provision.
28. On 10 December 1998 that decision was upheld by the Regional Court.
29. On 15 February 1999 the applicants lodged a constitutional appeal (ústavní stížnost) against the Regional Court's judgments of 10 April and 10 December 1998 and the Land Office's decision of 15 June 1998. The applicants alleged a violation of Articles 11 (protection of property rights) and 36 § 1 (right to judicial protection) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). They challenged the assessment of the evidence and the Regional Court's incorrect interpretation of the notion of “duress”. They also criticised the failure of the Regional Court to assess properly the notion of “strikingly unfavourable terms” in section 6(1)(k) of the Land Ownership Act.
30. On 3 March 1999 a judge rapporteur (soudce zpravodaj) invited the Regional Court and the parties joined to the proceedings – the Land Office, the Military Repair Enterprise and the Land Fund (Pozemkový fond) – to submit written observations on the applicants' constitutional appeal.
31. In letters of 11 and 25 March 1999 respectively, the Land Fund and the Land Office waived their status as joined parties.
32. On 7 April 1999 the Military Repair Enterprise submitted its written observations, expressing the view that the applicants' constitutional appeal should be dismissed.
33. In its written observations of 9 April 1999, the Regional Court recapitulated the case-law to the effect that the Constitutional Court was not superior to the general courts and that it was not entitled to interfere with their decisions unless and in so far as they might have infringed rights and freedoms protected by the Constitution. It further referred to the reasoning in its judgment of 10 December 1998, and noted that the constitutional appeal had been lodged outside the sixty-day time-limit in so far as it was directed against the Regional Court's judgment of 10 April 1998.
34. On 16 April 1999 the judge rapporteur asked the Regional Court and the Land Office to forward their case files, which they did.
35. On 10 May 2000 the Constitutional Court (Ústavní soud), without holding a public hearing, declared that the constitutional appeal had been lodged outside the sixty-day time-limit in so far as it was directed against the Regional Court's judgment of 10 April 1998 and was unsubstantiated in so far as it concerned the same court's judgment of 10 December 1998. The Constitutional Court included the written observations of the defendant and the Regional Court on the applicants' constitutional appeal in its summary of the facts. It stated, inter alianection that it could not examine issues falling within the jurisdiction of the ordinary courts. The court, recapitulating briefly the reasoning of the national authorities involved in the case, did not find unconstitutional the Regional Court's conclusion that the hypothesis that the applicants had been under duress during the contractual negotiations was excluded by the fact that they had imposed certain conditions on which they were willing to conclude the contract with the State, and that someone acting under duress would have concluded the contract on any terms.
36. According to the Government, it appears from the Constitutional Court's case file that on 27 June 2000 the first applicant inspected the documents included in the file and was provided with copies of the written observations submitted by the Regional Court and the Military Repair Enterprise.
37. Section 4 of the Land Ownership Act provides for the restitution of real property to individuals from whom it was transferred to State ownership between 25 February 1948 and 1 January 1990 by means specified in section 6. Where such persons are no longer alive, their successors are entitled to restitution under the conditions specified in subsection (2) of section 4.
38. Section 6(1)(k) provides for the restitution of immovable property which was transferred to the State or another legal person on the basis of a contract concluded under duress, on strikingly unfavourable terms.
39. Under section 28(1) and (2) of the Constitutional Court Act, the parties to proceedings are the appellant and those specified by the Act. Persons to whom the Act grants the status of joined parties may waive that status. They have the same rights and duties as other parties to the proceedings.
40. Section 32 provides that parties and joined parties are entitled to give their views on the constitutional appeal, make submissions to the Constitutional Court, examine the case file (with the exception of voting records), take excerpts from and copies of it, take part in any oral hearing in the matter, put forward evidence, and be present during any taking of evidence.
41. Under section 40(2), if the request concerns a matter within the jurisdiction of a division, it is assigned to a judge rapporteur who is a permanent member of that division.
42. Under section 42(4), the judge rapporteur must, without delay, send the constitutional appeal to the other parties and, where appropriate, to the joined parties as well, with a request to submit their written observations on the appeal within time-limits fixed by him or her, or as provided by the Act.
43. Section 43(2)(a) provides that, without holding an oral hearing and without the parties being present, the division may dismiss the appeal if it is manifestly ill-founded.
44. Section 49(1) provides that any means which may serve to establish the facts of the case may be used in evidence, in particular the testimony of witnesses, expert opinions, reports and statements of State authorities and legal persons, documents, results of inquiries and the testimony of parties.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-81242
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF REDKA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1967 and lives in Kyiv.
5. In August 2000 the applicant was dismissed from his position as a senior tax inspector (старший державний податковий інспектор) of the Moskovsky District Tax Inspectorate of Kyiv (the “Moskovsky Inspectorate,” Державна податкова інспекція у Московському районі м. Києва). On 6 September 2000 he instituted civil proceedings in the Moskovsky District Court of Kyiv (Московський районний суд м. Києва) seeking his reinstatement, compensation for lost income and moral damage. Subsequently the proceedings were transferred to the Vatutinsky District Court of Kyiv (the “District Court,” Ватутінський районний суд м. Києва).
6. On 2 August 2001 the District Court ordered the applicant's reinstatement and awarded him 4,040.41 Ukrainian hryvnyas (“UAH”) in compensation for lost income and UAH 600 in compensation for moral damage. Pursuant this judgment, the applicant was reinstated and paid the compensation equivalent to his one-month income.
7. On 26 September 2001 the applicant resigned from the civil service.
8. On 5 November 2001 the Kyiv City Court of Appeal (“the Court of Appeal,” Апеляційний суд м. Києва) upheld the judgment of 2 August 2001 in part ordering the applicant's reinstatement and recalculated the amount of compensation due to him. In particular, the Court of Appeal awarded the applicant UAH 6,031.65 in compensation for lost income and UAH 200 in compensation for moral damage.
9. On 30 November 2001, due to the mergers of the city administrative districts, the Moskovsky Inspectorate was liquidated and replaced by the Golosiyivsky District Inspectorate (the “Golosiyivsky Inspectorate”; Державна податкова інспекція у Голосіївському районі м. Києва).
10. On 7 March 2002 the Supreme Court rejected the requests for leave to appeal in cassation submitted by the Moskovsky (Golosiyivsky) Inspectorate and the applicant's representative.
11. On 20 December 2001 the District Court issued an enforcement writ for the judgment of 5 November 2001 indicating the Moskovsky Inspectorate as the debtor.
12. On 21 December 2001 the applicant submitted the writ to the Golosiyivsky District Bailiffs' Service (the “Bailiffs”; Відділ Державної виконавчої служби Голосіївського районного управління юстиції м. Києва).
13. On 8 January 2002 the Bailiffs initiated the enforcement proceedings and on 31 January 2002 submitted an invoice to the National Bank (Національний Банк України).
14. Having received no response from the National Bank, on 12 April and 9 July 2002 the Bailiffs requested the District Court to issue a duplicate enforcement writ. Having received a duplicate writ without a seal on 12 August 2002, the Bailiffs returned it to the District Court for validation. On 26 March 2003 the District Court informed the applicant that it had never received the returned duplicate writ.
15. On 13 May 2003 the Bailiffs requested the District Court to issue another duplicate writ. On 4 June 2003 the District Court fulfilled this request, indicating the Moskovsky Inspectorate as the debtor.
16. On 6 August 2003 the Golosiyivsky Inspectorate paid the applicant UAH 6,031.65 in compensation for lost income due to him by the judgment at issue (97% of the judgment debt).
17. On 14 August 2003 the State Treasury (Відділення Державного Казначейства у Голосіївському районі м. Києва) rejected the Bailiffs' request to pay the remainder award of UAH 200 (3% of the debt) in compensation for moral damage, having noted that the Moskovsky Inspectorate had been liquidated in 2001.
18. On 18 August 2003 the Bailiffs terminated the enforcement proceedings on account of the debtor's liquidation and returned the writ to the applicant informing him of his right to re-introduce it at a later date.
19. According to the Government's submissions, in June 2006 the remainder judgment debt of UAH 200 was transferred to the Bailiffs' account. On 30 June and 25 September 2006 the Bailiffs requested the applicant to provide his banking details to effect the money transfer, but he never responded.
20. The relevant domestic law is summarised in the judgment of Vasylyev v. Ukraine, (no. 10232/02, §§ 19-22, 13 July 2006).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-89367
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DROSSER-BRAND v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva
TEXT: The applicant, Ms Martina Drößer-Brand, is a German national who was born in 1963. Her domicile is unknown.
The applicant and her husband (K.B.) have a common son (T.), born in 1999. After the separation of his parents in 2004, T. lived with the applicant, who denied K.B. the possibility to visit his son.
On 3 December 2004 K.B. requested the Munich District Court to transfer the right to decide where his child should live (Aufenthaltbestimmungsrecht) to him.
On 25 February 2005 the District Court heard T. in the framework of proceedings which K.B. had initiated to gain access to his child.
On 23 May 2005 the Munich District Court transferred the right to decide where T. should live to the Youth Office as it could not rule out the possibility that the applicant would be dangerous to the child's well-being and that she would leave Germany with her son. The court also decided to commission an expert report.
On 24 June 2005, after having heard the parties, the Munich District Court granted K.B. the right to decide where the child should live. The applicant appealed that decision.
On 28 June 2005 the District Court ordered her by way of an interim injunction to hand the child over to his father and authorised the court's bailiff to enforce that decision, if necessary by force. Relying on the submissions of the Youth Office, the guardian ad litem and the family's nonmedical practitioner, who contended that the mother had indoctrinated the child and kindled fears which had aggravated the situation, the court found that the child's well-being would be best served if the right in question was transferred to the father. Moreover, the hearing of the child held on 25 February 2005, as well as the applicant's prior conduct, proved that she had attempted to influence the child against his father in every possible way and that it was very likely that the applicant would go into hiding with T.
On 8 July 2005 an arrest warrant was issued against the applicant on suspicion of child abduction.
On 19 August 2005 the District Court upheld its interim injunction after having heard the father, the applicant's representative, the guardian ad litem and a representative of the Youth Office, inter alia because in the meantime the applicant had gone into hiding with T. It was therefore impossible for the court to find out her address and to suggest to her in person that it should annul the interim injunction if she agreed to undergo a psychological examination and granted her husband access to T. The applicant's counsel, however, rejected that offer on behalf of the applicant.
On 29 September 2005, after having heard T's father, the guardian ad litem and the Youth Office, the Munich Court of Appeal confirmed the District Court's decision of 24 June 2005, relying on section 1671 of the Civil Code (see “Relevant domestic law” below). The fact that the applicant forced her then 5-year-old son to live in hiding would make him totally dependant on his mother, uproot him from the environment and persons he had been attached to and have deleterious effects on his physical and psychological development and on his material well-being. Moreover, it was impossible for the court to hear the applicant and her son as she was not ready to appear at the hearing, her whereabouts were unknown to the court and all attempts to contact the applicant had failed. Even if an arrest warrant had been issued against the applicant, the well-being of her child required her to leave it to the courts to settle the dispute instead of taking the matter into her own hands.
On 17 October 2005 the Munich Court of Appeal declared the applicant's complaint against the decisions of 28 June 2005 and 19 August 2005 disposed of, given that it had already taken a decision in the main proceedings on 29 September 2005.
By interim injunction of 16 November 2005 the Federal Constitutional Court suspended the enforcement of the Court of Appeal's decisions of 29 September 2005 and 17 October 2005 until it had decided on the applicant's constitutional complaint.
On 22 December 2005 the Federal Constitutional Court refused to admit the applicant's constitutional complaint, arguing that it could be deduced from the court files of the entire proceedings that the applicant had done her utmost to thwart the proper conduct of the proceedings. As she had gone into hiding and all attempts to contact her had failed, it was impossible for the courts to clarify the facts of the case, to hear the applicant and T. and to commission an expert report. Moreover, the applicant could not plausibly argue that the arrest warrant had prevented her from attending the hearing as she had never tried to challenge the warrant, even though the courts had repeatedly informed her of that possibility through her representative. Finally, the courts understandably argued that the applicant's going into hiding with her son would result in the boy's social isolation and thus considerably impair his welfare. Considering that the courts tried to reach a compromise with the applicant, and given the latter's conduct, it was unobjectionable that the courts found that T.'s welfare would be best served if the right to decide where the boy should live was transferred to his father.
Section 1671 of the Civil Code provides that if parents sharing joint parental authority separate permanently, either parent may request to be awarded full or partial parental authority. The family courts will grant such a request inter alia if it appears that the lifting of joint parental authority and its transfer to the parent requesting it is best for the child's welfare.
Pursuant to Section 1631 § 1 of the Civil Code, parental authority includes the right to determine where the child should live.


ITEMID: 001-69133
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF ŘÍMSKOKATOLICKÁ FARNOST OBŘÍSTVÍ v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award
TEXT: 4. The applicant is an organisational unit of the Roman Catholic Church with its head office in Prague.
5. On 27 April 2000 (according to the applicant) or 2 May 2000 (according to the Government), the applicant lodged an action with the Mělník District Court (okresní soud) against Mr H., seeking to establish its ownership of plots of land with a church and belfry in Obříství.
6. On 11 October 2000 the District Court dismissed the applicant’s request of 23 August 2000 for an interim measure to secure the applicant’s access to and use of the property in question. This decision was delivered to the applicant’s lawyer and the defendant on 16 and 26 October 2000 respectively. On the same date, the defendant received a copy of the applicant’s action.
7. On 6 November 2000 the applicant’s appeal of 23 October 2000 against the decision on interim measures was delivered to the defendant, who sent his observations on 22 November 2000.
8. On 5 December 2000 the case-file was submitted to the Prague Regional Court (krajský soud), which on 12 December 2000 quashed the lower court’s decision and remitted the case to it for further consideration. It ordered the District Court to hear the parties to the proceedings before deciding on the request.
9. In January 2001 the Regional Court’s decision was received by the parties to the proceedings.
10. On 8 March 2001 the District Court fixed a hearing for 23 April 2001, at which it granted the requested interim measure.
11. Upon the defendant’s appeal of 15 May 2001, received by the applicant’s lawyer on 21 May 2001 and after the submission of the case-file to the Regional Court on 5 June 2001, the latter upheld the District Court’s decision on 14 June 2001. This decision entered into force on 31 July 2001.
12. On 12 March 2003 the District Court held a hearing, at which it dismissed the applicant’s action.
13. On 27 June 2003 the Regional Court, upon the applicant’s appeal of 2 April 2003, supplemented on 10 April 2003, quashed the District Court’s judgment and remitted the case to it for further consideration.
14. On 21 January 2005 the applicant’s received the District Court’s decision of 6 January 2005 appointing an expert in the field of church law.
15. It appears that the proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23770
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: VEIZER v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mrs Györgyné Veizer, is a Hungarian national who was born in 1944 and lives in Budapest.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant produced machine components for an agricultural co-operative. Because of late payment, the applicant issued a prompt collection order, which was paid by the co-operative. However, in the meantime payment of the same amount was also transferred by a bank to the applicant's account. In 1990 the agricultural co-operative brought an action for unjust enrichment against the applicant before the Pest Central District Court. The first hearing was held on 16 February 1990.
On 26 February 1990 the applicant brought a counter-claim against the plaintiff for damages allegedly resulting from the late payment.
On 14 March 1990 the District Court heard the parties. On 22 March 1990 it heard the applicant.
At the hearing of 17 August 1990 the District Court appointed an expert. He submitted his opinion on 30 April 1991. On 12 July 1991 the court heard the expert.
On 18 September 1991 the District Court accepted the plaintiff's action and ordered the applicant to pay 238,015 Hungarian forints and interest to the co-operative. It also dismissed the applicant's counter-claim.
On appeal, on 16 December 1992 the Budapest Regional Court quashed the first-instance decision and transferred the case to its competent bench, holding that it had jurisdiction in the matter.
On 30 April 1993 the court held a hearing.
At the hearing of 2 February 1994 the plaintiff informed the court that proceedings had been instituted against him by the applicant.
On 13 May, 16 September 1994, 22 February and 31 May 1995 the court heard witnesses as well as the parties.
A hearing scheduled for 8 December 1995 was postponed by the court to 5 January 1996. On the latter date, the plaintiff requested the court to suspend the proceedings pending the final decision in another case.
On 20 April 1999 the applicant modified her counter-claim.
In the meantime, the applicant requested that a hearing be held. At the hearing of 21 April 1999 neither the plaintiff nor the applicant appeared despite having properly been summoned. Consequently, the proceedings were stayed (szünetelés) by force of law, pursuant to section 137 § 1 b) of the Code on Civil Procedure. None of the parties requested the continuation of the case for the next six months. Therefore, on 21 October 1999 the proceedings were discontinued (megszűnés szünetelés folytán) in application of § 3 of the same section.
In the case underlying the plaintiff's request for suspension, the final judgment was adopted on 14 November 2001 and served on the applicant on 4 February 2002. On 27 March 2002 the applicant requested that a hearing be held in the present case. She attached the Supreme Court's judgment.
In reply to the applicant's request, on 1 October 2002 the Budapest Regional Court informed her that the case had been discontinued on 21 October 1999 according to section 137 § 1 of the Code on Civil Procedure.
Section 137 of the Code on Civil Procedure reads as relevant:
“(1) The proceedings shall be stayed (szünetelés) [by force of law], if
a) ...
b) none of the parties appears at any of the hearings, ... and the plaintiff has not requested that the hearing be held despite his absence, ...
(2) ... The proceedings shall be continued at the request of either of the parties.
(3) If the proceedings were stayed for six months, the proceedings shall be discontinued (megszűnés) [by force of law] on the final date of that period. No request for reinstatement can be submitted in this respect.”


ITEMID: 001-5985
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: BROMILEY v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British citizen and the mother of Suzanne Bromiley who was murdered on 29 October 1991. The applicant is represented before the Court by Mr A. McCooey, a solicitor practising in Sittingbourne, Kent.
The facts of the case as they have been submitted by the parties may be summarised as follows.


ITEMID: 001-57962
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF PFARRMEIER v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: John Freeland
TEXT: 6. On 5 April 1986 Mr Harald Pfarrmeier was stopped by the police after he had parked his car at the side of the road with its headlights on and the engine running. He refused to submit to a breath test. In a "sentence order" (Straferkenntnis) of the same day the Bregenz district authority (Bezirkshauptmannschaft) imposed on him a fine of 9,000 Austrian schillings (ATS) with 360 hours' imprisonment in default of payment, for an offence under section 99(1)(b) taken together with section 5(2) of the Road Traffic Act (Straßenverkehrsordnung - see paragraphs 13 and 14 below).
7. The applicant appealed against that decision to the Vorarlberg regional government (Amt der Landesregierung), which dismissed the appeal on 11 November 1987.
8. On 7 January 1988 Mr Pfarrmeier applied to the Administrative Court (Verwaltungsgerichtshof). He complained, in particular, that the impugned decision was unlawful and that there had been a procedural irregularity.
On 23 March 1988 the Administrative Court quashed the decision of the regional government (section 42(2), sub-paragraphs 1 and 3, of the Administrative Court Act (Verwaltungsgerichtshofsgesetz) - see paragraph 21 below) and referred the case back to it.
9. The Vorarlberg regional government, giving a second ruling on 23 December 1988, upheld the Bregenz district authority's decision on the issue of guilt, but reduced the fine to ATS 5,000 and the penalty in default to 200 hours' imprisonment.
10. On 10 February 1989 the applicant applied to the Constitutional Court (Verfassungsgerichtshof). He complained of an infringement of the right of property, of the principle that all citizens are equal before the law and of the right to a "fair procedure" in criminal proceedings under Article 6 (art. 6) of the Convention.
On 10 March 1989, at the conclusion of a consideration of the case in private, the Constitutional Court declined to accept the appeal for adjudication (Article 144 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) - see paragraph 17 below), since, in view of Austria's reservation in respect of Article 5 (art. 5) of the Convention, it did not have sufficient prospects of success; moreover, the case did not lie outside the jurisdiction of the Administrative Court.
11. At Mr Pfarrmeier's request, it referred the application to the Administrative Court on 24 April 1989.
12. Reiterating in substance the arguments he had set out before the Constitutional Court, the applicant complained, in particular, of a faulty assessment of the evidence by the administrative authority concerned.
The Administrative Court ruled for the second time and dismissed the appeal, after proceedings that were wholly in writing; the applicant had not asked it to hold a hearing. It gave the following reasons:
"However, having regard to the Administrative Court's limited supervisory power in proceedings relating to an application for review of an administrative decision, it is not for the court to ascertain whether the assessment made of the evidence in a given case is correct in the sense, for example, that a statement which incriminates the applicant corresponds to the facts and not the reply (decision of 3 October 1985 delivered by a full court, Zl. 85/02/0053).
Accordingly, the applicant's complaint that he did not speak to the reporting police officer about a night's drinking session cannot be entertained.
...
The respondent authority was entitled, without disregarding the requirement that the assessment of the evidence has to be conclusive, to draw from the established facts mentioned above the conclusion that objective circumstances - and not merely the subjective belief of the reporting police officer - supported the suspicion that the applicant was under the influence of drink.
...
As regards the applicant's complaint that his lawyer was not allowed to examine the witness Widlroither in the proceedings before the authority, reference is made to the Administrative Court's settled case-law, according to which neither the holding of a hearing nor the possibility of examining witnesses is an essential part of lawful administrative criminal proceedings (see the decision of 13 June 1986, Zl. 86/18/0065, and the one of 19 February 1987, Zl. 86/02/0159).
As to the alleged unconstitutionality of Austria's reservation in respect of Article 5 (art. 5) of the European Convention on Human Rights, reference is made to the decision delivered by a full court on 8 May 1987, Slg NF no. 12.466/A.
Since the alleged unlawfulness of the impugned decision has not been made out in the application, it falls to be dismissed as unfounded, under section 42(1) of the Administrative Court Act.
..."
13. Under section 5 of the Road Traffic Act 1960 it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or higher than 0.8 grams per litre or 0.4 milligrams per litre respectively. The same section also lays down the conditions for the use of breathalysers and blood tests.
14. In its 1971 version, section 99(1) of the Act provided:
"It shall be an administrative offence (Verwaltungsübertretung), punishable with a fine of not less than 5,000 and not more than 30,000 schillings or, in default of payment, with one to six weeks' imprisonment, for any person
...
(b) to refuse to submit to a breath test where the conditions laid down in section 5 are satisfied;
..."
15. In 1958, at the time when the Austrian Government ratified the Convention (see paragraph 25 below), section 7 of the Traffic Police Act 1947 (Straßenpolizeigesetz) provided: "Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order, safety and a proper flow of traffic."
16. Article 90 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) provides:
"Hearings by trial courts in civil and criminal cases shall be oral and public. Exceptions may be prescribed by law."
17. By Article 144 para. 1 of the Federal Constitution, the Constitutional Court, when an application (Beschwerde) is made to it, has to determine whether an administrative decision (Bescheid) has infringed a right guaranteed by the Constitution or has applied regulations (Verordnung) contrary to the law, a law contrary to the Constitution or an international treaty incompatible with Austrian law.
Article 144 para. 2 provides:
"Up to the time of the hearing the Constitutional Court may by means of a decision (Beschluß) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
18. By Article 130 para. 1 of the Federal Constitution, the Administrative Court has jurisdiction to hear, inter alia, applications alleging that an administrative decision is unlawful.
19. Section 39(1) of the Administrative Court Act provides, in particular, that at the end of the preliminary proceedings (Vorverfahren) the Administrative Court must hold a hearing where the applicant makes a request to that effect.
Section 39(2) reads as follows:
"Notwithstanding a party's application under subsection (1), the Administrative Court may decide not to hold a hearing where
1. the proceedings must be stayed (section 33) or the application dismissed (section 34);
2. the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction (section 42(2)(2));
3. the impugned decision must be quashed as unlawful on account of a breach of procedural rules (section 42(2)(3));
4. the impugned decision must be quashed because its content is unlawful according to the established case-law of the Administrative Court;
5. neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed;
6. it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further."
Sub-paragraphs 1 to 3 of section 39(2) were in force in 1958; sub-paragraphs 4 and 5 were inserted in 1964 and sub-paragraph 6 in 1982.
20. Section 41(1) of the Administrative Court Act provides:
"In so far as the Administrative Court does not find any unlawfulness deriving from the respondent authority's lack of jurisdiction or from breaches of procedural rules (section 42(2)(2) and (3)) ..., it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ...
If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [one of these complaints] ..., it must hear the parties on this point and adjourn the proceedings if necessary."
21. Section 42(1) of the same Act states that, save as otherwise provided, the Administrative Court must either dismiss an application as ill-founded or quash the impugned decision.
By section 42(2),
"The Administrative Court shall quash the impugned decision if it is unlawful
1. by reason of its content, [or]
2. because the respondent authority lacked jurisdiction, [or]
3. on account of a breach of procedural rules, in that
(a) the respondent authority has made findings of fact which are, in an important respect, contradicted by the case file, or
(b) the facts require further investigation on an important point, or
(c) procedural rules have been disregarded, compliance with which could have led to a different decision by the respondent authority."
22. If the Administrative Court quashes the impugned decision, "the administrative authorities [are] under a duty ... to take immediate steps, using the legal means available to them, to bring about in the specific case the legal situation which corresponds to the Administrative Court's view of the law (Rechtsanschauung)" (section 63(1)).
23. In a judgment of 14 October 1987 (G 181/86) the Constitutional Court held:
"From the fact that it has been necessary to extend the reservation in respect of Article 5 (art. 5) of the Convention to cover the procedural safeguards of Article 6 (art. 6) of the Convention, because of the connection between those two provisions (art. 5, art. 6), it follows that, conversely, the limited review (die (bloß) nachprüfende Kontrolle) carried out by the Administrative Court or the Constitutional Court is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation."
24. Pursuant to Article 129 of the Federal Constitution, administrative courts called "independent administrative tribunals" (Unabhängige Verwaltungssenate) were set up in the Länder with effect from 1 January 1991. The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences (Verwaltungsübertretungen).
25. The instrument of ratification of the Convention deposited by the Austrian Government on 3 September 1958 contains, inter alia, a reservation worded as follows:
"The provisions of Article 5 (art. 5) of the Convention shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure, BGBl [Federal Official Gazette] No. 172/1950, subject to review by the Administrative Court or the Constitutional Court as provided for in the Austrian Federal Constitution."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-72285
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: PETERSEN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Werner Petersen, is a German national who was born in 1947 and lives in Neustadt. He is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld.
The applicant is the father of the child S., born out of wedlock on 3 May 1985. He had been living with Ms B.-K., the child’s mother, from May 1980 to November 1985. After their separation S. lived with his mother. The applicant had contacts with S. until autumn 1994, when Ms B.K. prohibited further visits. He subsequently instituted numerous court proceedings concerning access to and custody of his son.
The applicant’s repeated motions to be granted access to S. by a court order were to no avail. From April 1998 until S. attained the age of majority on 3 May 2003 proceedings concerning the applicant’s renewed request to be granted access to S. were pending in the Bremen Regional Court.
Likewise, the applicant’s motion lodged in 1995 to withdraw or restrict Ms B.-K.’s right of custody in order to prevent her from moving abroad for three years with S. and her family was dismissed. The national courts found that there were no indications that there were risks for the child’s well-being which could justify an interference with Ms B.-K.’s right of custody. The applicant’s motion lodged in 1999 to be granted joint custody of S. was equally rejected.
Two joint applications (nos. 38282/97 and 68891/01) concerning the said access and custody matters are pending with this Court.
On 6 December 2001 the Court declared inadmissible Mr Petersen’s application no. 31178/96 concerning the change of S.’s surname after Ms B.K.’s marriage and compensation for financial losses because of an undue refusal of access.
On 19 August 2000 the applicant lodged a request with the Kirchhain District Court partly to withdraw Ms B.-K.’s custody of S. in order to secure the preparation of an expert report in the access proceedings pending in the Bremen Regional Court since April 1998. He also applied for interim measures to be taken.
On 1 March 2001 the Frankfurt (Main) Court of Appeal dismissed the applicant’s motion for bias against District Court judge S. It found that there were no indications whatsoever that the judge challenged was biased. On 15 August 2001 the Frankfurt (Main) Court of Appeal dismissed the applicant’s objections against its decision.
On 3 December 2001 the Kirchhain District Court conducted a hearing attended by the applicant and S.’s guardian ad litem. It imposed a coercive penalty of 200 Deutschmarks on Ms B.-K. for failure to attend the hearing. It suspended the proceedings in order to await the outcome of the access proceedings pending in the Bremen Regional Court.
On 21 January 2002 the Frankfurt (Main) Court of Appeal, following the applicant’s and Ms B.-K.’s appeals, quashed the District Court’s order against Ms B.-K. to pay a coercive penalty for failure to attend the hearing because of a formal mistake. The applicant’s objections against this decision were to no avail.
On 5 February 2002 the Frankfurt (Main) Court of Appeal quashed the decision of the Kirchhain District Court ordering the suspension of the proceedings.
On 2 May 2002 the Frankfurt (Main) Court of Appeal, on the applicant’s appeal, ordered the Kirchhain District Court to further the proceedings.
On 17 May 2002 the Kirchhain District Court fixed a date for S.’s hearing on 31 May 2002. The date for the hearing was then postponed until June 2002. On 3 June 2002 the Frankfurt (Main) Court of Appeal dismissed as inadmissible the applicant’s appeal against the fixing of the dates for a hearing, as no appeal lay against these orders.
On 9 July 2002 the Kirchhain District Court dismissed the applicant’s further motion for bias against District Court judge S. as ill-founded. It found that the judge’s conduct of the proceedings disclosed no indications of bias on her part. The applicant’s objections were to no avail.
On 30 August 2002 the Frankfurt (Main) Court of Appeal, endorsing the reasons given by the District Court, dismissed the applicant’s appeal against the District Court’s decision of 9 July 2002.
On 28 April 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint (1 BvR 1825/02) against the decisions of the Kirchhain District Court and the Frankfurt (Main) Court of Appeal concerning the applicant’s motions for bias against District Court judge S. and the length of the proceedings.
On 3 May 2003 S. attained the age of majority. At that time, the proceedings in the Kirchhain District Court had not yet been terminated.
In previous proceedings brought by the applicant (3 F 563/99), the Frankfurt (Main) Court of Appeal found on 5 July 2000 that the applicant was entitled to obtain certain information about his son’s development. Ms B.-K. was ordered to inform him about the type of school which S. attended, his class and his results, his interests in sports and music and any serious diseases, and to give him a recent photograph of his son. The applicant’s requests for further information were dismissed.
On 17 January 2003 the Kirchhain District Court dismissed the applicant’s renewed request dated 3 December 2002 (33 F 886/02 RE) for information on S.’s personal situation. It argued that the applicant had received conclusive information about his son’s personal situation following his previous requests.
On 11 November 1999 the applicant lodged a motion with the Kassel Administrative Court to be granted access to the files of the Schwalm-Eder-District Youth Office concerning his son S.
On 7 October 2003 the Kassel Administrative Court (5 E 3263/99) dismissed the applicant’s motion as inadmissible. It found that the applicant had inspected the entire case-files in November 2000 and therefore had no legitimate interest in being granted access again.
On 22 April 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaints (nos. 1 BvR 278/02 and 1 BvR 406/02) against decisions concerning the applicant’s request for access to his son and a request lodged in 2001 for information about his son’s development. It imposed a fine of 500 euros (EUR) respectively for abuse of petition on the applicant.
On 18 June 2002 the Registry of the Federal Constitutional Court informed the applicant that the court had decided not to modify its decision of 22 April 2002.


ITEMID: 001-23320
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: SEN and OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicants, Sedat Şen and Yalçın İnanç, are Turkish nationals, who were born in 1962 and 1974 respectively and live in Uşak and İçel. They are represented before the Court by Mr Muharrem Turan, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
Following an administrative ordinance issued by the General Staff (Genel Kurmay Başkanlığı) on 20 June 1995 the applicants and their families were denied access to the military premises on the ground that the photographs showing their wives carrying Islamic scarves were not acceptable for the military and social security identity cards. The applicants’ close relatives carrying Islamic scarves were also not allowed into the military buildings.
On 16 June 1998 the Supreme Military Council (Yüksek Askeri Şura) decided to discharge the applicants from the army on grounds of acts of “insubordination and immoral conduct” pursuant to Article 94 (b) of Law no. 926.
The Government submit the following in the light of the intelligence reports concerning the applicants:
– Non-commissioned officer Yalçın İnanç was a member of the Nurculuk branch of the Nakşibendi sect. He was involved in disseminating the ideology of the sect. He refused to attend social activities with his family and his wife refused to shake hands with men. He had an antisocial character and his wife wore an Islamic scarf. He was considered to be an insubordinate soldier by his superiors.
– Non-commissioned officer Sedat Şen supported the “Revolutionary Islamic” opinion. He had an antisocial character and his wife wore an Islamic scarf. He refused to attend social events with his wife. He established contacts with other soldiers supporting the “Revolutionary Islamic” opinion. His wife continued to carry the Islamic headscarf despite warnings. He was considered to be an insubordinate soldier by his superiors.
A committee of nine members of the armed forces concluded, in the light of the findings of the above intelligence reports concerning the applicants, that the applicants had breached military discipline and that they should be discharged from the army. Subsequently, the Supreme Military Council based its decision on that opinion.
The relevant provisions of the Constitution are as follows:
“None of the rights and freedoms set forth in the Constitution may be exercised with the aim of undermining the territorial integrity of the State or the indivisible unity of its people, imperilling the existence of the Turkish State and the Republic, abolishing fundamental rights and freedoms, handing over control of the State to a single individual or group or bringing about the dominance of one social class over the others, establishing discrimination on the grounds of language, race, religion or adherence to a religious sect or setting up by any other means a State order based on such beliefs and opinions.”
“Everyone shall have the right to freedom of conscience, faith and religious belief. Prayers, worship and religious services shall be conducted freely, provided that they do not violate the provisions of Article 14. No one shall be compelled to participate in prayers, worship or religious services or to reveal his religious beliefs and convictions; nor shall he be censured or prosecuted because of his religious beliefs or convictions. ...
No one may exploit or abuse religion, religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social, economic, political or legal order of the State to be based on religious precepts, even if only in part, or for the purpose of securing political or personal influence thereby.”
“All acts or decisions of the administration are subject to judicial review ...
Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of the Supreme Military Council shall not be subject to judicial review.
...”
Article 129 §§ 2, 3 and 4 of the Constitution provides that a disciplinary action cannot be imposed to the civil servants provided that that the right to defence is respected. Moreover, it lays out that the disciplinary actions, other that the warnings and the reprimands are subject to legal control. The provisions concerning the soldiers are reserved. Article 21 of Law on the Military Administrative High Court stipulates that the disciplinary actions imposed to the soldiers are not subject to legal control.
Section 22 (c) of the Military Legal Service Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held, shall be subject to the provisions of the Turkish Pensions Act.
...
Where their conduct and attitude reveal that they have adopted unlawful opinions.”
Section 50 (c) of the Military Personnel Act provides:
“Irrespective of length of service, servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of the Turkish Pensions Act. The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings, to examine, monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings. A decision of the Supreme Military Council is required to discharge an officer whose case has been submitted by the Chief of Staff to the Supreme Military Council.”
Section 94 (b) of the Military Personnel Act provides:
“(b) Discharge from the army for the acts of insubordination and immoral conduct:
Notwithstanding the seniority in the service, the non-commissioned officers whose maintenance is considered to be inappropriate for the acts of insubordination and immoral conduct are subject to Law on the Turkish Pension Fund. The investigation, examination and follow-up of the notation reports and the formalities and the competent authorities fulfilling these duties are subject to the provisions of The Regulations on assessment of officers and non-commissioned officers. The General Staff determines which non-commissioned officers’ cases concerning their discharge from the army should be examined by the Supreme Military Council.”
Article 99 of the Regulations on assessment of officers and non-commissioned officers provides:
“Irrespective of length of service, the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below, as established in one or more documents drawn up during their service in the last military rank they held:
...
(e) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful, subversive, separatist, fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions.”