ITEMID: 001-23109
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: USKI v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant, Mr Jorma Uski, is a Finnish national, who was born in 1949 and lives in Jyväskylä.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1988 the applicant and another man, A., intended to found a real estate company K. They bought two pieces of property and signed the purchase deeds on behalf of K. The applicant owned 8/30 parts of the shares of K. and A. owned 22/30 parts of them.
In December 1988 the applicant sold his shares to his female friend T. Later the foundation of K. elapsed as the applicant and A. had failed to apply for its registration within the relevant time-limit. Their application concerning the registration to the Land Registry of the real estates on behalf of K. was refused as K. had never been registered as a company within the meaning of the Companies’ Act.
Some years later the applicant failed to pay a loan he had guaranteed on behalf of K. The Bailiff ordered that the above-mentioned real estates be sold in a forced auction in September 1995. The applicant objected to this and informed the Bailiff that he did not own any of the real estates as he had sold his shares of K. to T. already in 1988.
The applicant’s appeal against the Bailiff’s decision was not examined by the County Administrative Board as the applicant was not found to be a party to the proceedings as he had not owned the real estates. It was found that it was only the actual owner who had the sole competence to make such an allegation (T. had not appealed against the Bailiff’s decision). Insofar as A.’s part of the shares was concerned, the Board found that A. had not been informed of the Bailiff’s decision. The relevant time-limit for appeal was returned to A.
On 15 August 1997 the County Administrative Board ordered the forced auction to be adjourned until it had examined A.’s appeal. In the meantime, it ordered that A. should institute proceedings before the local District Court in order to establish the real owners of the real estates. He was also requested to inform the Board of the outcome of such proceedings if he wished to continue the examination of his appeal before the Board.
On 12 May 1998 A. and K. instituted civil proceedings against the applicant, a bank, and various other parties, requesting the District Court to confirm that the real estates were owned by K., that A. owned 22/30 parts of K., and that T. owned 8/30 parts of it. They argued that the Bailiff’s decision to seizure the real estates and to order them to be auctioned in order to pay the applicant’s debts was illegal as the applicant was not an owner any more. They, thus, requested that the seizure be quashed by the District Court.
On 18 June 1998 the District Court dismissed the case insofar as it concerned the claims instituted by K., finding that the case was based on the County Administrative Court’s decision of 15 August 1997 in which A.’s appeal had not been examined insofar as it concerned T.’s possible ownership of the shares as T. (nor K.) had not appealed against the Bailiff’s decision herself. It considered that the Board’s decision only concerned the question whether A.’s ownership was to be confirmed and that it, thus, lacked competence to examine the case any further in that respect. It adjourned the case insofar as A.’s ownership was at issue.
K. appealed against the District Court’s decision to the Court of Appeal which upheld the District Court’s decision on 31 May 1999. Both T. and the applicant sought leave to appeal from the Supreme Court even though it was only K. who had appealed against the District Court’s decision to the Court of Appeal. On 2 May 2000 the Supreme Court refused the applicant and T. leave to appeal.
On 4 November 1998 the District Court issued a judgment by default in respect of the rest of the case, i.e. in respect of A.’s ownership of the real estates. It confirmed that A. owned 22/30 parts of each of the two real estates as he had owned 22/30 parts of K.’s shares and as the foundation of K. had elapsed, in which occasion the assets of K. were returned to the owners of its shares.
The District Court having confirmed that A. owned 22/30 parts of the real estates at issue, the Bailiff rectified, on 18 December 1998, his own earlier seizure decision and ordered that only 8/30 parts of the real estates were to be seized and auctioned (i.e. he annulled the decision only insofar as A.’s property was concerned). As T. had failed to institute any proceedings within the relevant time-limit to have her ownership to the rest of the real estates confirmed, and as no-one else had instituted such proceedings either, the seizure decision concerning the 8/30 parts of the real estates stayed unchanged.
The applicant, A. and T. all appealed to the District Court against the Bailiff’s decision concerning the seizure of the 8/30 parts of the real estates. The applicant’s and A.’s appeals were dismissed as they were not found to be affected by the decision which concerned seizure of T.’s property.
T.’s appeal was dismissed by the District Court on 9 April 1999 because the Bailiff’s decision of 18 December 1998 had concerned only the rectification of his earlier decision in respect of the part of the real estate owned by A. and as there is no appeal against a decision not to rectify a decision (i.e. no new decision had been issued in this respect and the decision of September 1995, against which T. had failed to appeal within the relevant time-limit, was still valid).
The applicant, A. and T. appealed against the District Court’s decision to the Court of Appeal which, on 2 July 1999, upheld the District Court’s decision. On 11 February 2000 the Supreme Court refused all the parties leave to appeal.
In the meantime, on 18 April 1999, the applicant, A. and T. all requested from the Court of Appeal that the forced auction, which was planned to be held on 14 May 1999, be cancelled until the Court of Appeal had examined their appeal against the District Court’s decision of 9 April 1999. The applicant, among others, argued that the auction would be illegal and claimed that the County Administrative Board had adjourned the enforcement of the seizure decision until the question of the ownership had been legally decided and until the parties had informed the Board, within three months’ time-limit, of that decision.
This request was refused by the Court of Appeal on 26 April 1999. It found that an auction which had already been announced publicly could only be cancelled if there were exceptional reasons for such a cancellation and if the person seeking for such a cancellation had paid a full guarantee of the auction expenses. As the applicant and his counterparts had not submitted any such exceptional reasons to their request nor paid the guarantee, the Court of Appeal could not accept their appeal.
On 5 May 1999 the Supreme Court refused the parties leave to appeal. Their later request to re-open the proceedings was rejected by the Supreme Court on 24 May 1999.
The 8/30 parts of the real estates were sold in an forced auction on 14 May 1999.
The applicant, A. and T. all complained about the enforcement of the forced auction to the District Court. They argued, inter alia, that the County Administrative Board had ordered on 15 August 1997 that the forced auction shall be adjourned until the Board had examined A.’s appeal after the final decision had been issued in the proceedings concerning the ownership of the real estates. As those proceedings had not yet ended at the time of the forced auction, the auction was to be considered illegal and should, thus, be annulled. The applicant also claimed that the District Court judge was biased as he had participated also in the proceedings concerning the applicant’s earlier appeals in respect of the same seizure of the same real estates.
On 16 July 1999 the District Court rejected the applicant’s and the other parties’ complaints. It found that the final decision concerning the ownership proceedings had been issued on 4 November 1998 when the District Court had issued a judgment by default. The Bailiff had informed the County Administrative Court orally about the decision. As the County Administrative Board had found no reason to a further adjournment of the auction after having received that information, the District Court found the complaint manifestly ill-founded.
The applicant, A. and T. appealed against the District Court’s decision to the Court of Appeal which, on 23 December 1999, upheld the District Court’s decision. It found that, even though the County Administrative Board’s decision would have been needed in order to continue the seizure which had been adjourned by the County Administrative Board, it was important to note that the real estates had in fact been auctioned also in order to pay the debts of A. That payment was, however, based only on the Bailiff’s later seizure decision of 12 November 1998 which had not been appealed against. Thus, there was no need for the protection of A.’s legal rights in respect of the earlier seizure as the question was to be regarded only of theoretical interest. Insofar as the other part of the real estates was auctioned, the Court of Appeal noted that T.’s ownership had never been confirmed by a court and that, thus, that part could be auctioned in order to pay the applicant’s debts.
On 21 December 2000 the Supreme Court refused the applicant leave to appeal.
In 1999 the applicant, A. and T. requested the police to investigate whether the Bailiff, the County Administrative Board and various other authorities had committed an offence when allowing the auction to take place even though the Board’s decision of adjourning the enforcement proceedings had still been valid. Having received the relevant police report the local public prosecutor decided, on 6 July 1999, not to institute criminal proceedings against anyone as he found that the Board’s decision had not been valid any more (as the Bailiff had informed the Board within the relevant time-limit of the final court decision concerning the ownership proceedings) and that no offence had been committed by any of the relevant authorities involved.
The applicant has since submitted numerous complaints to various authorities, including, inter alia, the Parliamentary Ombudsman, the Chancellor of Justice, the Finnish President and the Minister of Justice. None of these complaints has been successful, no more than the applicant’s efforts to institute criminal proceedings against persons involved in the decision-making in some of these complaint proceedings.


ITEMID: 001-4514
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: J.E.D. v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a national of the Ivory Coast, born in 1968 in Agboville. He is represented before the Court by Jonathan & Chuks Solicitors, London.
The facts of the case as they have been submitted by the applicant and as deduced from the case file may be summarised as follows:
On 8 September 1994 the applicant arrived in London on a flight from Abidjan via Lisbon and claimed political asylum on the same day. When interviewed the applicant stated that he had been forced to flee the Ivory Coast on account of his involvement in the Federation Estudiante et Scolaire de Cote d’Ivoire (hereinafter “FESCI”), a student movement. He alleged that he had taken part in a demonstration on 11 May 1994. Following the demonstration, he and his friends were taken to a police station where they were beaten and forced to sign a statement that they would abandon their involvement in FESCI. On 14 May 1994 he was sent a summons by the police. According to the applicant he feared that he would be imprisoned and decided to flee the country because he believed his life was in danger. He managed to obtain a passport through the help of a friend in the police force.
By letter dated 14 February 1996 the Secretary of State notified the applicant that his asylum request had been refused on the grounds that he had not furnished any independent corroboration of either his involvement in FESCI or of his claim that he was wanted by the authorities. On 10 July 1997 the Special Adjudicator dismissed his appeal against the decision of the Secretary of State. Although satisfied that the applicant had been a student member of FESCI, the Special Adjudicator did not consider the evidence he adduced in support of his fear of persecution to be reliable and doubted the credibility of his asylum claim. On 26 August 1997 the Immigration Appeal Tribunal refused the applicant’s application for leave to appeal against the Secretary of State’s decision.
By letter dated 13 October 1997 the applicant renewed his application to the Secretary of State for political asylum. He relied on a number of letters and statements of third parties which in his view confirmed that he had a well-founded risk of persecution if removed to the Ivory Coast. By letter dated 16 November 1997 the Secretary of State informed the applicant that he was not prepared to treat the new representations as a fresh application for asylum. He drew the applicant’s attention to the fact that the Government ban on FESCI had been lifted on 9 October 1997 and for that reason the materials which he had submitted in support of his renewed application no longer reflected the current situation in the Ivory Coast. No appeal lay against this decision of the Secretary of State. The Secretary of State confirmed this view on 21 January 1998 in a reply to a further request by the applicant for asylum.
The applicant sought leave to apply for judicial review of the Secretary of State’s decision. He maintained that the Secretary of State had wrongly disregarded evidence which, he claimed, confirmed the dangers to which FESCI members were still exposed despite the Government’s apparent conciliatory stance vis-à-vis the organisation. He further contended that he should have been permitted to appeal to an independent body against the decision of the Secretary of State and have his request examined as a fresh application for asylum.
On 19 February 1998 the High Court, following a hearing at which the applicant was represented by a lawyer, refused the applicant’s application for leave to apply for judicial review.
The applicant’s wife, also a national of the Ivory Coast, joined him in the United Kingdom on 13 September 1995 and a daughter was born to them on 27 July 1996. The applicant’s wife and daughter are also subject to removal directions.


ITEMID: 001-75293
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: CICEK v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr H. Kaplan, a lawyer practising in Istanbul.
The facts of the cases, as submitted by the parties, may be summarised as follows.
Until 1994 the applicants lived in Hamzabey, a hamlet of Baharlar village, in the district of Lice, in Diyarbakır province, where they own property. It is to be noted that Selam Çiçek and Ramazan Atalay did not submit their authority forms.
In May 1994, following the incidents that took place in the district of Lice, security forces arrived in Hamzabey and forcibly evicted the applicants from their hamlet.
On 25 March 1996 the mayor of Baharlar village, Mr Sait Polat, filed petitions, on behalf of the applicants, with the offices of the Prime Minister, the Ministry of the Interior, the Lice District Governor and the State of Emergency Governor requesting permission to return to their hamlet.
On 10 February 2000 the mayor of Baharlar village filed petitions, on behalf of the applicants, with the offices of the Prime Minister, the Ministry of the Interior, the Lice District Governor, the State of Emergency Governor and the Ministry of Public Works and Settlement (Bayındırlık ve İskan Bakanlığı) requesting permission to return to their hamlet. He further requested the Ministry to provide aid for the infrastructure of the hamlet. He also noted that the inhabitants of Hamzabey were willing to return to their hamlet.
On 3 October 2001 the mayor of Baharlar village filed a petition, on behalf of the applicants, with the office of the Diyarbakır Governor requesting permission to return to their hamlet.
On 23 July 2002 three inhabitants of Hamzabey hamlet filed a petition, on behalf of the other inhabitants, with the office of the Diyarbakır Governor requesting permission to return to their hamlet and a solution to the problems of infrastructure of the hamlet.
It is to be noted that they did not receive any response to their petitions.
On an unspecified date three Members of Parliament, Mr Nurettin Dilek, Mr Sebgetullah Seydaoğlu and Mr Haşim Haşimi, filed petitions, on behalf of the applicants, with the offices of the Prime Minister, the Deputy Prime Minister, the Minister of the Interior, the Minister of Public Works and Settlement, the State of Emergency Regional Governor and the Diyarbakır Governor.
The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village.
The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.
Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages.
On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.
In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.
The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.
A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


ITEMID: 001-72556
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF STERE AND OTHERS v. ROMANIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Inadmissible under Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
TEXT: 4. The applicants were born in 1960, 1956 and 1948 respectively and live in Alba Iulia.
5. In connection with the restructuring of the armed forces, which had begun in 1995, a number of legislative measures were passed with a view to encouraging professional soldiers to apply for reassignment to the reserve force and thereby to take early retirement.
6. In addition to their retirement pension, section 7 of Government Ordinance no. 7 of 26 January 1998 (“Ordinance no. 7/1998”) granted those concerned a tax-free “income replacement allowance” calculated in relation to their gross monthly pay. Under section 31 (1) of Law no. 138 of 20 July 1999 (“Law no. 138/1999”), they were additionally entitled to a tax-free “maintenance allowance”, also calculated in relation to their gross monthly pay. The method of calculating those allowances was amended by Government Emergency Ordinance no. 136 of 14 September 2000 (“Ordinance no. 136/2000”), which provided that the net monthly pay would be used as the basis of calculation.
7. At their request, the applicants were assigned to the reserve force and thereby took early retirement, on 31 March 2000 for the first and third, and on 31 May 2000 for the second, with entitlements to the above-mentioned pension and allowances. However, when those sums were paid out, the Ministry of Defence deducted income tax, calculated in accordance with Ordinance no. 73 of 27 August 1999 concerning income tax (“Ordinance no. 73/1999”), thereby depriving the first applicant of 85,804,572 Romanian lei (ROL), the second of ROL 77,945,656 and the third of ROL 59,605,499.
8. In an action against the Ministry of Defence, the applicants claimed the reimbursement of those sums, which they alleged had been wrongfully deducted, on the ground that their allowances were exempt from tax under Ordinance no. 7/1998 and Law no. 138/1999. The Ministry disputed their claim, contending that the taxation in question was consistent with Ordinance no. 73/1999.
9. In a judgment of 11 January 2001 the Alba Iulia Court of First Instance allowed the applicants’ action and ordered the Ministry to reimburse the amounts deducted for tax. The court considered that on the date of their retirement, that is to say some time before the entry into force of Ordinance no. 136/2000, the applicants had acquired an entitlement to tax-free allowances calculated in relation to their gross monthly pay. Moreover, the court observed that section 5 of Ordinance no. 73/1999 provided that maintenance allowances were likewise tax exempt.
10. The Ministry of Defence appealed, arguing that the tax exemption provision in respect of the income replacement allowance, under section 7 of Ordinance no. 7/1998, had been expressly repealed by section 86 of Ordinance no. 73/1999, which had also implicitly abolished the exemption in respect of maintenance allowances under section 31 (1) of Law no. 138/1999.
11. In a final decision of 27 March 2001 the Alba County Court upheld the merits of the judgment at first instance on the following grounds:
“Even assuming, purely for the sake of argument, that the provisions of section 7 of Ordinance no. 7/1998 had been repealed, those of section 31 (1) of Law no. 138/1999 – which also provide for tax exemption and for the calculation [of the allowance] in relation to gross monthly pay – would remain as a legal basis. The Ministry contends that the provision in question was implicitly repealed, but that view has not been substantiated, because Ordinance no. 73/1999 post-dates Law no. 138/1999 and if the legislature had wished to repeal the section in question, nothing would have prevented it from making express provision to that effect, as was the case for other legislative instruments referred to in section 86 of Ordinance no. 73/1999. ... In any event, a Government Ordinance, being of secondary legislative importance in relation to statute law, cannot repeal a statute.
In addition, the Ministry wrongly contends that Ordinance no. 73/1999 constitutes a lex specialis in relation to Ordinance no. 7/1998 and to Law no. 138/1999. In actual fact, Ordinance no. 73/1999 is the framework instrument concerning taxation, and, in relation to the other two instruments mentioned above, which grant tax relief to a specific category of employees, it lays down the ordinary rules from which the special provisions of those instruments derogate.
Moreover, section 6 of Ordinance no. 73/1999 states that income replacement allowances and maintenance allowances, such as those concerned in the present case, are exempt from income tax, thus indicating the legislature’s intention that they should not be taxable.
The provisions of Ordinance no. 136/2000 to the effect that the allowance is calculated in relation to net pay do not apply in the case of the applicants, who retired before the entry into force of the Ordinance, which does not have retrospective effect ... The possibility of discrimination [between servicemen who retired after the entry into force of Ordinance no. 136/2000, whose allowances were calculated in relation to net pay, and those who retired before that date, who were entitled to allowances based on gross pay] is not left to the discretion of the employer or of the courts, but is a matter for the legislature, which should have taken this into account and found an appropriate solution in the course of the legislative process, by means of precise and specific regulatory provisions. Accordingly, neither an employer nor a court can substitute itself for the legislature in harmonising the various provisions which have come into force at different times but which concern situations that are similar, although they arose, changed or ceased to exist under different statutes.”
12. The court also considered that the two allowances in issue could not be characterised as a “salary” or “income treated as a salary” for the purposes of sections 22 and 23 of Ordinance no. 73/1999, especially as they were not included among the forms of taxable income referred to in section 4 of that Ordinance.
Lastly, the court looked at the practice of other courts in similar disputes and found that it supported the claims of the former servicemen.
13. As the judgment of 11 January 2001 had become res judicata and had been endorsed with a writ of execution, the applicants received, on an unspecified date, the amounts they had claimed.
14. On 11 September 2001 the Procurator-General of Romania applied to the Supreme Court of Justice to have the 11 January 2001 judgment of the Alba Iulia Court of First Instance and the 27 March 2001 decision of the Alba County Court quashed.
15. He considered that in construing domestic law the two courts had committed serious errors of law which had vitiated the settlement of the dispute. He argued that section 86 of Ordinance no. 73/1999 had superseded the provisions of section 7 of Ordinance no. 7/1998 and section 31 of Law no. 138/1999, and added that under sections 4 and 23 of Ordinance no. 73/1999 the allowances and other entitlements of military personnel were treated as salaries and were therefore liable to the taxation provided for in that Ordinance.
16. The applicants sought the dismissal of the Procurator-General’s application to have the judgments quashed, disputing his arguments that the above-mentioned provisions had been superseded and that the allowances were treated as salaries. They argued that, in any event, even assuming that the allowances could have been treated as salaries, they should not have been liable to tax, since section 6 (f) of Ordinance no. 73/1999 exempted from tax any allowances that were calculated in relation to net monthly pay. Moreover, under section 24 (2) of that Ordinance, net earnings were not defined as gross earnings minus tax but as gross earnings minus social-insurance contributions. Accordingly, they considered that the Ministry of Defence had wrongly deducted tax from their allowances.
17. In a judgment of 30 January 2002 the Supreme Court of Justice allowed the Procurator-General’s application, quashed the impugned judgments and ordered the reimbursement of the sums that the Ministry of Defence had paid to the applicants on the basis of those judgments. The relevant passage of the decision provided:
“Whilst section 31 of Law no. 138/1999 provides that, upon their reassignment to the reserve force, servicemen benefit from a tax-free maintenance allowance, calculated in relation to their gross monthly pay, that provision must be read in the light of the provisions of section 5 of Government Ordinance no. 73/1999 and of the Government Order [no. 1066 of 29 December 1999 – “Order no. 1066/1999”], which, whilst providing that income from maintenance allowances is exempt from tax, specify which forms of income are included in that category and exclude any salaries or income treated as such.
Considering that Law no. 138/1999 pertains precisely to salaries and entitlements relating to the status of Ministry of Defence employee, it is clear that the grant of a maintenance allowance under section 31 of the above-mentioned Law stems from employee status, and that such allowances are accordingly liable to tax, in accordance with Ordinance no. 73/1999.
That conclusion is confirmed by Government Order no. 1066/1999 which, referring to section 5 of Ordinance no. 73/1999, specifies what forms of income are exempt from tax, among them maintenance allowances. It can be seen from the enumeration in that provision that the maintenance allowances contemplated in Ordinance no. 73/1999 are confined to those granted for special purposes, such as maintenance allowances for soldiers’ spouses, welfare benefits, emergency relief granted by the State or local councils in cases of hardship, funeral grants, etc.
The above-mentioned provision makes no reference to maintenance allowances paid to servicemen upon their reassignment to the reserve force and calculated in relation to their gross monthly pay.
Consequently, since such allowances are comparable to a salary and are calculated on the basis of gross monthly pay, they are taxable like any gross income.
In addition, section 86 of Ordinance no. 73/1999 expressly provides that any provision contrary to that Ordinance is superseded, thereby confirming once again that the legislature’s intention was to render such income taxable.
As regards the income replacement allowances granted to the applicants under section 7 of Ordinance no. 7/1998, being tax-exempt and likewise calculated in relation to gross monthly pay, it should be noted that section 86 of Ordinance no. 73/1999 expressly superseded that provision as regards the tax exemption of such income. Accordingly, the applicants are also liable for tax on such income.
Furthermore, it is to be observed that section 6 (f) of Ordinance no. 73/1999 exempts from income tax only those income replacement allowances and maintenance allowances that are calculated in relation to net monthly pay, whereas the allowances granted to the applicants were calculated in relation to their gross monthly pay. It follows that this income was also taxable.”
18. As the authorities failed to bring any action for the enforcement of the judgment of the Supreme Court of Justice, the applicants have not, to date, reimbursed the disputed amounts.
19. Article 330 of the Code of Civil Procedure provided:
“The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final judicial decision to be quashed on any of the following grounds:
1. that the court in question has exceeded its jurisdiction;
2. that the decision concerned by the application has seriously breached the law, leading to erroneous findings on the merits of the case, or that the decision is ill-founded.”
This Article was repealed by Government Emergency Ordinance no. 58 of 25 June 2003.
20. The relevant provisions read as follows:
“During the restructuring of the armed forces, officers, non-commissioned officers and instructors [having completed at least 20 years of service] may request to be reassigned to the reserve force, before reaching the statutory age-limit, with a military pension entitlement ...”
“Military personnel reassigned to the reserve force who are entitled to a military pension ... shall receive, in return for their service in the armed forces, the compensation provided for in the statutory provisions on remuneration of military personnel. Moreover, for each remaining year of service until the age of fifty-five, they shall be entitled to a tax-free income replacement allowance of which the amount shall be double that of their last gross monthly pay.”
“Military personnel having completed less than twenty years of service may request to be reassigned to the reserve force or may be assigned thereto automatically ... and shall receive a tax-free income replacement allowance, calculated on the basis of their length of service and their last gross monthly pay.”
21. Section 31 of Law no. 138 provides:
“Military personnel reassigned to the reserve force who are entitled to a military pension, ... shall receive a tax-free maintenance allowance calculated according to their length of service ... and their last gross monthly pay ...
Military personnel reassigned to the reserve force, with a military pension entitlement, before reaching the statutory age-limit, shall also receive, for each remaining year of service until that age, a tax-free maintenance allowance of which the amount shall be double that of their last gross monthly pay.
The provisions of the second paragraph shall not apply to military personnel receiving the income replacement allowance provided for by Ordinance no. 7/1998.”
22. The relevant provisions read as follows:
“The category of taxable income shall consist of income from self-employment, rent from property, salaries, interest, dividends and other income.”
“The following shall not be considered taxable income and shall not be liable to taxation:
(a) maintenance allowances, grants and other forms of benefit for special purposes, being paid from the State budget, the social insurance fund, special funds, local councils, other public funds or third-party sources ...”
“The following shall be considered tax-free income: ... sums constituting income replacement allowances calculated on the basis of net monthly pay and granted to military personnel assigned to the reserve force in connection with the restructuring of the armed forces, and maintenance allowances calculated on the basis of net monthly pay and granted to military personnel assigned to the reserve force with or without a pension entitlement”.
“A salary shall be defined as any income in money or in kind received by an individual who pursues an activity under a contract of employment, regardless of the term of the contract, the designation given to the income or the means of payment ...”
“The following shall be treated as salaries for tax purposes: monthly pay, allowances, bonuses, subsidies and other statutory entitlements of armed-forces personnel.”
“The net amount of taxable salaries shall be calculated by subtracting the following from the gross amount ...:
(a) statutory contributions to supplementary pension, unemployment benefit and medical insurance funds;
(b) a 15% deduction in respect of professional expenses ....”
“The present Ordinance, upon its entry into force, shall supersede ... the provisions on tax exemption in respect of the income replacement allowances provided for in section 7 and section 8 (1) of Ordinance no. 7/1998 ..., together with any other provisions that may be incompatible.”
23. The Order in question provides:
“Tax-free income [for the purposes of section 5 (a) of Ordinance no. 73/1999] shall include: ... maintenance allowances for soldiers’ spouses, welfare benefits, emergency relief granted by the State or local councils in cases of hardship, unemployment benefit, professional reintegration allowances, funeral grants, humanitarian, medical or social relief ...”
24. The relevant provisions read as follows:
“The amount of the income replacement allowance provided for in sections 7, 8 and 11 of Ordinance no. 7/1998 ... and that of the maintenance allowance provided for in section 31 and section 32 (1) of Law no. 138/1999 shall be calculated on the basis of net monthly pay.”
“The amount of the net monthly pay shall be calculated by subtracting the statutory monthly tax from the amount of the gross monthly pay in respect of the last month of service.
The amount of the monthly tax shall be calculated as provided in Ordinance no. 73/1999 on income tax”.


ITEMID: 001-61680
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF HIRST v. THE UNITED KINGDOM (No. 2)
IMPORTANCE: 2
CONCLUSION: Violation of P1-3;No separate issue under Art. 14;No separate issue under Art. 10;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: Matti Pellonpää;Nicolas Bratza;Simon Brown
TEXT: 8. The applicant was born in 1950 and is currently serving a sentence of imprisonment in HM Prison Rye Hill, Warwickshire.
9. On 11 February 1980, the applicant pleaded guilty to manslaughter on ground of diminished responsibility. His plea of guilty was accepted on the basis of medical evidence that the applicant was a man with a gross personality disorder to such a degree that he was amoral. He was sentenced to a term of discretionary life imprisonment.
10. The applicant’s tariff (that part of the sentence relating to retribution and deterrence) expired on 25 June 1994. His continued detention is based on considerations relating to risk and dangerousness, the Parole Board considering that he continues to present a risk of serious harm to the public.
11. The applicant, who is barred by section 3 of the Representation of the People Act 1983 from voting in parliamentary or local elections, issued proceedings in the High Court under section 4 of the Human Rights Act 1998, seeking a declaration that this provision was incompatible with the European Convention on Human Rights.
12. The applicant’s application was heard before the Divisional Court on 21 and 22 March 2001, together with the application for judicial review of two other prisoners, Mr Pearson and Mr Feal-Martinez, who had applied for registration as electors and been refused by the Registration Officer and who also sought a declaration of incompatibility.
13. In its judgment dated 4 April 2001, the Divisional Court noted that in Europe only eight countries, including the United Kingdom, did not give convicted prisoners a vote, while 20 did not disenfranchise prisoners and eight imposed a more restricted disenfranchisement. Reference was made to the United States Supreme Court which had rejected a challenge to the Californian Constitution’s disenfranchisement of convicted prisoners (Richardson v. Ramirez [1974] 418 US 24); and to Canadian precedents, in particular the Canadian Supreme Court which in the case of Sauvé v. Canada (No. 1) ([1992] 2 SCR 438) struck down the disenfranchisement of prisoners as too widely drawn and infringing against the minimum impairment rule and the Federal Court of Appeal which upheld in Sauvé (No. 2) ([2000] 2 CF) the subsequent legislative provision which restricted the ban to prisoners serving a sentence of two years or more in a correctional institution. The cases before the European Commission of Human Rights and this Court were also reviewed.
Lord Justice Kennedy concluded:
“... I return to what was said by the European Court in paragraph 52 of its judgment in Mathieu-Mohin. Of course as far as an individual prisoner is concerned disenfranchisement does impair the very essence of his right to vote, but that is too simplistic an approach, because what Article 3 of the First Protocol is really concerned with is the wider question of universal franchise, and ‘the free expression of the opinion of the people in the choice of the legislature’. If an individual is to be disenfranchised that must be in the pursuit of a legitimate aim. In the case of a convicted prisoner serving his sentence the aim may not be easy to articulate. Clearly there is an element of punishment, and also an element of electoral law. As the Home Secretary said, Parliament has taken the view that for the period during which they are in custody convicted prisoners have forfeited their right to have a say in the way the country is governed. The Working Group said that such prisoners had lost the moral authority to vote. Perhaps the best course is that suggested by Linden JA, namely to leave to philosophers the true nature of this disenfranchisement whilst recognising that the legislation does different things.
The European Court also requires that the means employed to restrict the implied Convention rights to vote are not disproportionate, and that is the point at which, as it seems to me, it is appropriate for this court to defer to the legislature. It is easy to be critical of a law which operates against a wide spectrum (e.g. in relation to its effect on post-tariff discretionary life prisoners, and those detained under some provision of the Mental Health Act 1983), but, as is clear from the authorities, those states which disenfranchise following conviction do not all limit the period of disenfranchisement to the period in custody. Parliament in this country could have provided differently in order to meet the objectives which it discerned, and like McLachlin J in Canada, I would accept that the tailoring process seldom admits of perfection, so the courts must afford some leeway to the legislator. As [counsel for the Secretary of State] submits, there is a broad spectrum of approaches among democratic societies, and the United Kingdom falls into the middle of the spectrum. In course of time this position may move, either by way of further fine tuning, as was recently done in relation to remand prisoners and others, or more radically, but its position in the spectrum is plainly a matter for Parliament not for the courts. That applies even to the ‘hard cases’ of post-tariff discretionary life sentence prisoners... They have all been convicted and if, for example, Parliament were to have said that all those sentenced to life imprisonment lose the franchise for life the apparent anomaly of their position would disappear. ...
If section 3 (1) of the 1983 Act can meet the challenge of Article 3 [of the First Protocol] then Article 14 had nothing to offer, any more than Article 10.”
14. The applicant’s claims were accordingly rejected as were those of the other prisoners.
15. On 2 May 2001, an application for permission to appeal was filed on behalf of Pearson and Feal-Martinez, together with a 43-page skeleton argument. On 15 May 2001, Lord Justice Buxton considered the application on the papers and refused permission on the grounds that the appeal had no real prospect of success.
16. On 19 May 2001, the applicant filed an application for permission to appeal. On 7 June 2001, his application was considered on the papers by Lord Justice Simon Brown who refused permission for the same reasons as Lord Justice Buxton in relation to the earlier applications. The applicant’s renewed application, together with the renewed applications of Pearson and Feal-Martinez, were refused on 18 June 2001, after oral argument, by Lord Justice Simon Brown.
17. Section 3 of the Representation of the People Act 1983 provides:
“(1) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ...is legally incapable of voting at any parliamentary or local election.”
This section re-enacted without debate the provisions of section 4 of the Representation of the People Act 1969, the substance of which back dated to the Forfeiture Act 1870 of the previous century, which in turn reflected earlier rules of law relating to the forfeiture of certain rights by a convicted “felon” (the so-called “civic death” of the times of King Edward III).
18. The disqualification does not apply to persons imprisoned for contempt of court (section 3(2)a) or to those imprisoned only for default in, for example, paying a fine (section 3(2)c).
19. During the passage through Parliament of the Representation of the People Act 2000, which permitted remand prisoners and unconvicted mental patients to vote, Mr Howarth MP, speaking for the Government, maintained the view that “it should be part of a convicted prisoner’s punishment that he loses rights and one of them is the right to vote”. The Act was accompanied by a statement of compatibility under the section 19 of the Human Rights Act 1998, namely, a statement that in introducing the measure in Parliament the Secretary of State considered its provisions to be compatible with the Convention.
20. On 22 February 2001, the Secretary of State gave his reasons for maintaining the policy of disenfranchising convicted prisoners:
“By committing offences which by themselves or taken with any aggravating circumstances including the offender’s character and previous criminal record require a custodial sentence, such prisoners have forfeited the right to have a say in the way the country is governed for that period. There is more than one element to punishment than forcible detention. Removal from society means removal from the privileges of society, amongst which is the right to vote for one’s representative.”
21. Section 4 of the Human Rights Act 1998 provides:
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”
22. Relevant provisions of the ICCPR provide:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions:
(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) to vote...”
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
...
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”
23. In the General Comment (No. 25(57)) adopted by the Human Rights Committee under Article 40(4) of the ICCPR dated 27 August 1996, the Committtee stated, inter alia, concerning the right guaranteed under Article 25:
“14. In their reports, State parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.”
“64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.”
24. This document adopted by the European Commission for Democracy through Law (the Venice Commission) at its 51st Plenary Session (5-6 July 2002) and submitted to the Parliamentary Assembly of the Council of Europe on 6 November 2002 includes the Commission’s guidelines as to the circumstances in which there may be deprivation of the right to vote or to be elected:
“d. ...
i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions;
ii. it must be provided for by law;
iii. the proportionality principle must be observed; conditions for disenfranchising individuals of the right to stand for election may be less strict than for disenfranchising them;
iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence.
v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law.”
25. Following the decision of the Administrative Court in the present case, the Supreme Court of Canada on 31 October 2002 held by five votes to four that section 51(e) of the Canada Elections Act 1985, which denied the right to vote to every person imprisoned in a correctional institution serving a sentence of two years or more, was unconstitutional, i.e., infringing Articles 1 and 3 of the Canadian Charter of Rights and Freedoms:
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
“3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
26. The majority opinion given by McLachlin C.J. is summarised as follows in the headnote:
“To justify the infringement of a Charter right under s. 1, the government must show that the infringement achieves a constitutionally valid purpose or objective, and that the chosen means are reasonable and demonstrably justified. The government’s argument that denying the right to vote to penitentiary inmates requires deference because it is a matter of social and political philosophy is rejected. While deference may be appropriate on a decision involving competing social and political policies, it is not appropriate on a decision to limit fundamental rights. The right to vote is fundamental to our democracy and the rule of law and cannot be lightly set aside. Limits on it require not deference, but careful examination. The framers of the Charter signalled the special importance of this right not only by its broad, untrammelled language, but by exempting it from legislative override under s. 33’s notwithstanding clause. The argument that the philosophically-based or symbolic nature of the objectives in itself commands deference is also rejected. Parliament cannot use lofty objectives to shield legislation from Charter scrutiny. Here, s. 51 (e) is not justified under s. 1 of the Charter.
The government has failed to identify particular problems that require denying the right to vote, making it hard to conclude that the denial is directed at a pressing and substantial purpose. In the absence of a specific problem, the government asserts two broad objectives for s. 51(e): (1) to enhance civic responsibility and respect for the rule of law; and (2) to provide additional punishment or ‘enhance the general purposes of the criminal sanction’. Vague and symbolic objectives, however, make the justification analysis difficult. The first objective could be asserted of virtually every criminal law and many non-criminal measures. Concerning the second objective, nothing in the record discloses precisely why Parliament felt that more punishment was required for this particular class of prisoner, or what additional objectives Parliament hoped to achieve by this punishment that were not accomplished by the sentences already imposed. Nevertheless, rather than dismissing the government’s objectives outright, prudence suggests that we proceed to the proportionality inquiry.
Section 51(e) does not meet the proportionality test. In particular, the government fails to establish a rational connection between s. 51(e)’s denial of the right to vote and its stated objectives. With respect to the first objective of promoting civic responsibility and respect for the law, denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values. The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote. To deny prisoners the right to vote is to lose an important means of teaching them democratic values and social responsibility. The government’s novel political theory that would permit elected representatives to disenfranchise a segment of the population finds no place in a democracy built upon principles of inclusiveness, equality, and citizen participation. That not all self-proclaimed democracies adhere to this conclusion says little about what the Canadian vision of democracy embodied in the Charter permits. Moreover, the argument that only those who respect the law should participate in the political process cannot be accepted. Denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter. It also runs counter to the plain words of s. 3 of the Charter, its exclusion from the s. 33 override, and the idea that laws command obedience because they are made by those whose conduct they govern.
With respect to the second objective of imposing appropriate punishment, the government offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of state punishment. Denying the right to vote does not comply with the requirements for legitimate punishment - namely, that punishment must not be arbitrary and must serve a valid criminal law purpose. Absence of arbitrariness requires that punishment be tailored to the acts and circumstances of the individual offender. Section 51(e) qua punishment bears little relation to the offender’s particular crime. As to a legitimate penal purpose, neither the record nor common sense supports the claim that disenfranchisement deters crime or rehabilitates criminals. By imposing a blanket punishment on all penitentiary inmates regardless of the particular crimes they committed, the harm they caused, or the normative character of their conduct, s. 51(e) does not meet the requirements of denunciatory, retributive punishment, and is not rationally connected to the government’s stated goal.
The impugned provision does not minimally impair the right to vote. Section 51(e) is too broad, catching many people who, on the government’s own theory, should not be caught. Section 51(e) cannot be saved by the mere fact that it is less restrictive than a blanket exclusion of all inmates from the franchise.
Lastly, the negative effects of denying citizens the right to vote would greatly outweigh the tenuous benefits that might ensue. Denying prisoners the right to vote imposes negative costs on prisoners and on the penal system. It removes a route to social development and undermines correctional law and policy directed towards rehabilitation and integration. In light of the disproportionate number of Aboriginal people in penitentiaries, the negative effects of s. 51(e) upon prisoners have a disproportionate impact on Canada’s already disadvantaged Aboriginal population. ...”
27. The minority opinion given by Gonthier J. is summarised, in extract, as follows:
“...In this case, while it has been conceded that s. 51(e) of the Canada Elections Act infringes s. 3 of the Charter, the infringement is a reasonable limit that is demonstrably justified in a free and democratic society. The objectives of s. 51(e) are pressing and substantial. Both objectives are based upon a reasonable and rational social or political philosophy. The first objective, that of enhancing civic responsibility and respect for the rule of law, relates to the promotion of good citizenship. The social rejection of serious crime reflects a moral line which safeguards the social contract and the rule of law and bolsters the importance of the nexus between individuals and the community. The ‘promotion of civic responsibility’ may be abstract or symbolic, but symbolic or abstract purposes can be valid of their own accord and must not be downplayed simply for the reason of their being symbolic. The second objective is the enhancement of the general purposes of the criminal sanction. Section 51(e) clearly has a punitive aspect with a retributive function. It is a valid objective for Parliament to develop appropriate sanctions and punishments for serious crime. The disenfranchisement is a civil disability arising from the criminal conviction.
Section 51(e) meets the proportionality tests. First, the impugned legislation is rationally connected to the objectives. While a causal relationship between disenfranchising prisoners and the objectives is not empirically demonstrable, reason, logic and common sense, as well as extensive expert evidence, support a conclusion that there is a rational connection between disenfranchising offenders incarcerated for serious crimes and the objectives of promoting civic responsibility and the rule of law and the enhancement of the general objectives of the penal sanction. ... Further, the disenfranchisement of serious criminal offenders serves to deliver a message to both the community and the offenders themselves that serious criminal activity will not be tolerated by the community. Society may choose to curtail temporarily the availability of the vote to serious criminals to insist that civic responsibility and respect for the rule of law, as goals worthy of pursuit, are prerequisites to democratic participation. With respect to the second objective, the disenfranchisement is carefully tailored to apply to perpetrators of serious crimes, and there is evidence in the record indicating that the denial of the right to vote is perceived as meaningful by the prisoners themselves and can therefore contribute to the rehabilitation of prisoners. Lastly, many other democracies have, by virtue of choosing some form of prisoner disenfranchisement, also identified a connection between objectives similar to those advanced in the case at bar and the means of prisoner disenfranchisement.
Second, the impairment of the Charter right is minimal. ... Only ‘serious offenders’, as determined by Parliament, are subject to disenfranchisement. Since Parliament has drawn a two-year cut off line which identifies which incarcerated offenders have committed serious enough crimes to warrant being deprived of the vote, any alternative line will not be of equal effectiveness. ... The provision is reasonably tailored insofar as disenfranchisement reflects the length of the sentence and actual incarceration, which, in turn, reflect the seriousness of the crime perpetrated and the intended progress towards the ultimate goals of rehabilitation and reintegration. Section 51(e) is not arbitrary: it is related directly to particular categories of conduct. The two-year cut off line also reflects several practical considerations. Further, since this Court gave the impression that it was up to a Parliament to do exactly this after the first Sauvé case..., there is a need for deference to Parliament in its drawing of a line. The analysis of social and political philosophies and the accommodation of values in the context of the Charter must be sensitive to the fact that there may be many possible reasonable and rational balances. Line drawing, amongst a range of acceptable alternatives, is for Parliament, ...
Third, when the objective and the salutary effects are viewed in the totality of the context, they outweigh the temporary disenfranchisement of the serious criminal offender. The enactment of the measure is itself a salutary effect. The legislation intrinsically expresses societal values in relation to serious criminal behaviour and the right to vote in our society. Value emerges from the signal or message that those who commit serious crimes will temporarily lose one aspect of the political equality of citizens. Furthermore, the temporary disenfranchisement is perceived as meaningful by the offenders themselves and could have an ongoing positive rehabilitative effect. ... The statistical data mentioned by the Federal Court of Appeal indicate that the provision catches serious and repeat offenders and that most prisoners will only be deprived of participation in one election. Because the duration of the disenfranchisement is directly related to the duration of incarceration, a serious criminal offender may never actually be denied the opportunity to vote if there is no election during the time he is incarcerated. In light of the special context of this case - that the justification advanced by Parliament is rooted in a social or political philosophy that is not susceptible to proof in the traditional sense - deference is appropriate since the impugned provision raises questions of penal philosophy and policy. ...”


ITEMID: 001-60838
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF M.P. v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1925 and lives in Florence.
9. The applicant is the owner of an apartment in Florence, which she had let to S.G.
10. In a registered letter of 26 March 1983, the applicant informed the tenant that she intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date.
11. In a writ served on the tenant on 12 June 1985 the applicant reiterated her intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
12. On 27 December 1985, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 28 December 1986. That decision was made enforceable on 7 April 1987.
13. On 16 April 1987, the applicant served notice on the tenant requiring him to vacate the premises.
14. On 20 May 1987, she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 29 June 1987.
15. Between 29 June 1987 and 17 September 1992, the bailiff made fourteen attempts to recover possession.
16. Each attempt proved unsuccessful, as, under the statutory provisions providing for the suspension or the staggering of evictions, the applicant was not entitled to police assistance in enforcing the order for possession.
17. On 28 September 1992, the applicant made a statutory declaration that she urgently required the premises in order to sell them at a normal market price.
18. Between 20 January 1993 and 16 September 1998, the bailiff made thirteen attempts to recover possession.
19. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
20. Following the entry into force of Law No. 431/98, the enforcement proceedings were suspended until 28 June 1999.
21. On 29 March 2002, the Florence Magistrate ordered that the premises be vacated by 4 December 2003.
22. The relevant domestic law is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111008
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: KRAKOLINIG v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 1. The applicant, Mr Ignaz Krakolinig, is an Austrian national who was born in 1936 and lives in Graz. He is represented before the Court by Mr F. Unterasinger, a lawyer practising in Graz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 28 June 1985 the Eisenstadt Public Prosecutor’s Office filed an indictment against the applicant, accusing him of aiding and abetting embezzlement (Untreue). The Vienna Court of Appeal dismissed the applicant’s objections against the indictment on 12 November 1985.
4. The trial was scheduled by the Eistenstadt Regional Court (Landesgericht) from 5 May 1986 to 10 July 1986. As he had suffered a heart attack the previous day, the applicant was unable to attend the trial on 5 May 1986.
5. Following two expert opinions obtained on 5 July 1988 and 1 December 1988 attesting that he was temporarily unfit to stand trial, the Eisenstadt Regional Court decided to stay the proceedings against the applicant.
6. As further expert opinions of 10 July 1991 and 5 May 1992 showed that the applicant would be able to attend the trial under certain conditions, the Eisenstadt Regional Court scheduled hearings for 18 March 1992 and 17 July 1992. Referring to his state of health, the applicant refused to attend these hearings.
7. On 29 March 1993 the Eisenstadt Regional Court ordered that the trial be held at Graz, where the applicant resided, on 17 and 18 June 1993. On 9 June 1993 the applicant asked the Regional Court to postpone the hearing because of his poor state of health. The Regional Court granted the request for the further postponement, having examined the applicant’s state of health.
8. Two further expert opinions of 20 January 1994 and 30 January 1995 attested that the applicant had a limited ability to attend the trial, whereas a later opinions dated 6 February 1997 raised concerns regarding the applicant’s attendance at a lengthy trial.
9. On 18 February 1997 the Regional Court again decided to stay the proceedings.
10. Two expert reports obtained on 1 September 2000 and 19 March 2001 stated that the applicant’s state of health had worsened and that, as it was unlikely to improve in the near future, he should not be exposed to major stress.
11. On 19 November 2003 and on 31 January 2005 the applicant submitted to the Regional Court, upon its request, certificates by two specialist doctors treating him showing that he was still unfit to stand trial.
12. On 17 March 2007 the applicant requested that the criminal proceedings be terminated (Einstellung des Verfahrens) because he considered that it was against the Convention to continue the proceedings in circumstances like his.
13. The Regional Court dismissed the applicant’s request on 18 April 2007. It held that since the indictment was issued the grounds for suspicion had not changed or been dissipated and that the applicant’s state of health alone did not constitute a reason to terminate the criminal proceedings against him.
14. On 13 June 2007 the Vienna Court of Appeal dismissed the applicant’s subsequent appeal against that decision. It found that it was only possible to terminate the proceedings against the applicant upon a request by the Public Prosecutor.
15. Meanwhile, on 23 April 2007, the Eisenstadt Regional Court again decided to stay the proceedings. An appeal against this decision was dismissed by the Vienna Court of Appeal on 13 June 2007. The proceedings are still pending.
16. It appears further that, in separate proceedings, on 28 August 2000 the Klagenfurt Regional Court convicted the applicant of fraud (Betrug), on 31 July 2006 the Wolfsberg District Court convicted him of having caused negligent bodily harm (fahrlässige Körpeverletzung) and on 18 May 2009 the Graz District Court convicted him of theft (Diebstahl).


ITEMID: 001-103936
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF GAVRIS v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Ireneu Cabral Barreto
TEXT: 4. The applicants were born in 1935 and 1939 respectively and live in Szolnok.
5. In 1993 administrative proceedings started concerning the grant of a building permit to the applicants' neighbours. In pursuit of the applicants' administrative appeals and their ensuing request for judicial review dated 14 October 1993, on 14 November 1994 the Kaposvár District Court quashed the existing decisions and remitted the case to the second-instance administrative authority. It held that the building permit issued had approved some irregular plans. On 13 July 1995 the Somogy County Regional Court upheld this judgment.
6. In the resumed administrative proceedings, on 10 October 1995 the Somogy County Administrative Office remitted the case to the Balatonszárszó Notary. It appears that, by this time, the neighbours had already constructed the building in question. In March 1996 the Notary approved the continued existence of the building. On 13 June 1996 the County Administrative Office dismissed the applicants' appeal in which they had requested the removal of part of the building, constructed irregularly in their view.
7. On 2 April 1997 the Kaposvár District Court quashed these decisions and again remitted the case to the administrative instances. It held that the permit allowing the continued existence of the building had been adopted in defiance of the relevant administrative law because the interests of the other neighbours (including the applicants) had not been taken into account. On 28 August 1997 the Regional Court upheld the judgment. However, this decision was quashed in review proceedings by the Supreme Court on 20 March 2000. The Supreme Court remitted the case to the first-instance court.
8. Due to a change in the law, in the resumed judicial review proceedings the Regional Court heard the case as a first-instance court. On 27 February 2001 it ordered the administrative instances to resume the proceedings, because their previous decisions had approved some irregular plans. On 9 December 2002 the Supreme Court, sitting as a second-instance court, upheld this decision.
9. In the resumed administrative proceedings, on 17 December 2003 the Balatonföldvár Notary granted the neighbours a permit for the continued existence of the building in question. On 24 May 2004 the Fejér County Administrative Office dismissed the applicants' appeal in which they had alleged that the building had been constructed in defiance of the regulations and that its continued existence infringed their rights as neighbours.
10. In judicial review proceedings, on 30 November 2004 the Regional Court dismissed the applicants' action. The court pointed out that, under section 48 of Act no. 78 of 1997 on Construction, the authority in charge of construction may take measures in respect of an irregularly constructed building within one year from its taking cognisance of the irregularity but in any event not later than ten years from the certification of the building for use. In the court's view, the one-year time-limit had been triggered by the Regional Court's decision of 28 August 1997; therefore – the one-year time-limit having been elapsed – the neighbours could no longer be denied a permit for the continued existence of the building in question.
11. This decision was upheld by the Supreme Court's appeal bench on 23 November 2005. It stressed that – contrary to what was apparently argued by the applicants – the running of the one-year time-limit had not been interrupted by the review proceedings in which the decision of 28 August 1997 had been quashed, because its execution had not been suspended.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58851
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF SATIK AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 3;Not necessary to examine Art. 2;Preliminary objection rejected (non-exhaustion);Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm;Feyyaz Gölcüklü;Gaukur Jörundsson
TEXT: 8. The facts as submitted by the parties may be summarised as follows.
1. The facts as presented by the applicants
9. On 20 July 1995 the ten applicants, along with twelve other prisoners, were taken from their cells to an area of Buca Prison in order to be brought before the İzmir State Security Court for trial.
10. While the applicants together with the other prisoners were waiting to be collected, prison officials tried to search them including their shoes. They objected to the search, stating that it was an arbitrary act and that they would refuse to be taken to court if the prison administration insisted on carrying out the search.
11. In view of the applicants’ resistance, the prison administration enlisted the help of gendarmes who were waiting outside the prison to accompany the prisoners to court.
12. Approximately fifty gendarmes and thirty prison warders and prison administrators subsequently attacked the applicants and other prisoners with truncheons and wooden planks.
13. As a consequence, one of the ribs of the applicant, Terzan Adıbelli, was broken and the liver of the applicant, Yaşar Avcı, was damaged. The other applicants sustained injuries to their bodies.
2. The facts as presented by the Government
14. The Government dispute the applicants’ version of the incident. With reference to the investigation carried out by the public prosecutor (see paragraphs 19 et seq. below), they maintain that more that twenty prisoners refused to be searched before being taken to court. They linked themselves together and proceeded towards the prison exit. When they were descending the staircase, still linked, they fell on top of one and another. They hit the wall and the handrail. Four prison warders were also injured in the crush.
15. The same day the applicants, after having waited for some time, were taken to the State Security Court in İzmir in prison vehicles.
3. The applicants’ complaints to the authorities
16. At the hearing before the İzmir State Security Court, the applicants’ representatives made complaints against the persons responsible for the assault. The representatives stated that the applicants had been beaten before being taken to court and requested the court to examine and take note of their injuries and to investigate the incident.
17. The court noted the applicants’ condition and decided to postpone the proceedings on the grounds that it was impossible to hold a hearing in such circumstances. In its decision, the court ordered that the applicants be examined by a doctor with a view to determining whether they had been assaulted as alleged. The court also ordered that the medical findings together with the minutes of the hearing be sent to the Office of the İzmir Public Prosecutor with a view to the opening of an investigation. A letter to that effect was sent the same day to the public prosecutor.
18. Also on 20 July 1995 the father of one of the applicants, Abdulkadir Eraslan, lodged a complaint about the incident with the Office of the Public Prosecutor in İzmir. On the same day the public prosecutor wrote to the public prosecutor at Buca Prison requesting him to take a statement from Abdulkadir Eraslan and to have him medically examined if he complained about being tortured. The statement and any medical report drawn up were to be sent to him.
4. The investigation of the İzmir public prosecutor
19. The İzmir public prosecutor went to the prison on 20 July 1995 to take statements from several of the victims. On the same day the prison doctor examined all the detainees. Those whose injuries were found to be serious were taken to hospital. Since two of the applicants (Mehmet Ermiş and Terzan Adıbelli) had to be taken to hospital, their statements could only be taken by the public prosecutor on 14 August 1995.
(a) the applicants’ statements to the İzmir public prosecutor
20. On 20 July 1995 statements were taken from the victims, including eight of the ten applicants: Kadir Satık, Murat Satık, Ali Haydar Özdemir, Songül Diribaş, Saime Sefer, Yaşar Yağcı, Fesih Yılmaz and Abdülkadir Eraslan. The statements of the two other applicants, Mehmet Ermiş, and Terzan Adıbelli, were taken on 14 August 1995, after their discharge from hospital (see paragraph 19 above and paragraph 23 below).
21. The applicants were consistent in their statements that they had been taken from their cells and assembled in front of the prison door. They were ordered by the prison administrators and the warders to take off their shoes. According to the applicants, this was the first occasion on which such an order had ever been given. The applicants refused to comply and stated that a search could be carried out on them using metal detectors. The prison administrators then admitted the gendarmes who were outside the prison and they, together with the prison warders, began to hit them.
22. In their statements to the public prosecutor some of the applicants gave the names of the warders involved while others gave their ranks. Some applicants also stated that they could identify those responsible for the assault.
23. On 25 July 1995 a second statement was taken from Abdülkadir Eraslan. He told the public prosecutor that on the day of the incident he and other prisoners had protested about being subjected to inhuman treatment. He stated that a number of warders and gendarmes then hit the protestors with batons and wooden sticks. The beatings continued until they had reached the exit gate.
24. On 14 August 1995 four remaining victims including the applicants Mehmet Ermiş and Terzan Adıbelli gave statements to the public prosecutor. These statements were consistent with the statements given by the other applicants.
(b) the statements of the prison staff to the İzmir public prosecutor
25. On 20 July 1995 three prison officials were questioned by the İzmir public prosecutor. They were all consistent in stating that the prisoners had been repeatedly warned by their superiors that they had to submit to a search procedure. The prisoners objected and refused to be taken to court. The gendarmes then tried to lead them by the arms down the stairs of the prison. However, the prisoners formed a chain and this created a crush on the stairs. Some of the prisoners had to jump to safety while others fell. They injured themselves when they hit the walls, the stairs, and the iron railings. Several warders were also injured.
(c) the medical reports on the applicants
26. In the presence of the public prosecutor who arrived at Buca Prison at 6.00 p.m. on 20 July 1995, 18 of the prisoners (including 8 of the 10 applicants: Kadir Satık, Murat Satık, Ali Haydar Özdemir, Songül Diribaş, Fesih Yılmaz, Saime Sefer, Yaşar Yağcı, and Abdulkadir Eraslan) were medically examined by a forensic doctor (adli tabip) at 8.30 p.m. The reports indicated that they all had been hit on the head and/or other parts of the body. While the injuries were described in detail, no explanation was given for their cause. The applicants Terzan Adıbelli and Mehmet Ermiş were sent to hospital for medical examinations.
27. On 21 July 1995 the Buca prison administration sent four more applicants for a medical examination. Fesih Yılmaz was sent to the İzmir Dental Hospital, Kadir Satık, Murat Satık and Ali Haydar Özdemir were sent to the İzmir State Hospital. The hospital discharge report for Terzan Adıbelli (date illegible) indicated that he suffered “general body trauma as a result of battery” (darp).
28. On 9 October 1995 a forensic doctor from the İzmir State Hospital went to the Buca Prison to examine Terzan Adıbelli, Murat Satık and Yaşar Avcı. He reported that Terzan Adıbelli and Yaşar Avcı had been hospitalised between 20 and 25 July 1995 and Murat Satık between 20 and 28 July 1995. He noted that a final medical report would be drafted later.
29. On 18 August 1995 a doctor from the Forensic Medicine Institute examined, inter alia, Mehmet Ermiş and reported in detail to the Office of the Public Prosecutor that that applicant had wide-spread bruising to his body and face (şişlik, ekimoz). The report noted that the injuries were not life threatening and that he would recover within 20 days.
30. On 17 November 1995 a physicist from the Forensic Medicine Institution reported that Terzan Adıbelli and Yaşar Avcı who had been re-examined on 9 October 1995 had suffered from “general body trauma as a result of battery”. Terzan Adıbelli had not been able to do any prison work for 15 days and Yaşar Avcı for 10 days. The report stated that they would recover.
5. The criminal proceedings
31. The public prosecutor decided on 9 April 1996 not to prosecute the Director of Buca Prison and his staff for alleged ill-treatment of the prisoners. Two of the prisoners’ lawyers challenged this decision but their challenge was rejected on 25 June 1996 by the President of the Karşıyaka Assize Court.
32. An investigation was opened against the gendarmes at Buca Prison. However the Office of the İzmir Public Prosecutor took the view that it had no jurisdiction to pursue this investigation since the incident arose out of the exercise by the gendarmes of their administrative duties. The investigation file was accordingly transferred on 11 April 1996 to the Administrative Council of İzmir. The Government informed the Court that the case file subsequently went astray after it was sent to the Divisional Gendarme Command at Buca Prison. On 7 April 2000 the Ministry of the Interior appointed an inspector to clarify this matter. Permission has been given to take proceedings against three gendarme officers in connection with the missing case file, pursuant to the provisions of the Law no. 4483 governing the prosecution of civil servants (see paragraph 37 below). On 1 May 2000 the İzmir Administrative Council decided that no investigation should be opened against the gendarme officers responsible for transferring the applicants from Buca Prison to the İzmir State Security Court on 20 July 1995.
33. On 29 July 1997, following a request for information on the incident, the İzmir Public Prosecutor wrote to the Ministry of Justice. He informed the Ministry that the incident arose out of the refusal of prisoners at Buca Prison to submit to a search. The prisoners objected to being taken to court and they bunched together while descending the stairs leading to the main gate. Some of them fell injuring themselves. Some members of the prison staff were also hurt.
34. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts by conducting the necessary inquiries to identify the perpetrators (Article 153 of the Code of Criminal Procedure – “CCP”). The public prosecutor may institute criminal proceedings if he or she decides that the evidence justifies the indictment of a suspect (Article 163 CCP). If it appears that the evidence against a suspect is insufficient to justify the institution of criminal proceedings, the public prosecutor may close the investigation. However, the public prosecutor may decide not to prosecute if, and only if, the evidence is clearly insufficient.
35. Insofar as a criminal complaint has been lodged, a complainant may file an appeal against the decision of the public prosecutor not to institute criminal proceedings. This appeal must be lodged within fifteen days after notification of this decision to the complainant (Article 165 CCP).
36. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case was governed at the time of the events giving rise to the instant application by the Law of 1914 on the prosecution of civil servants, which restricted the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it was for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it was for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lay against a decision of the Council. If a decision not to prosecute was taken, the case was automatically referred to that court.
37. A new law was adopted on 2 December 1999 repealing the provisions of the Law of 1914. The new law - Law no. 4483 - determines the authorities which are empowered to give permission for a state employee or public servant to be prosecuted for an offence committed when exercising official duties and regulates the procedure to be followed. According to Article 3 of Law no. 4483, the power to grant permission to prosecute is now vested in the highest administrative authority in the area where the state employee is working. A decision granting or refusing permission to prosecute must be taken by the relevant authority within thirty days of being seized by the public prosecutor. Before referring the file to the authority the public prosecutor can only collect such evidence which, because of its nature, might be lost, altered or destroyed. The authority initiates an investigation or appoints senior civil servants to investigate on its behalf. According to Article 9 the local administrative courts and the Council of State have jurisdiction to hear appeals against the decisions reached by the authority. An appeal must be lodged within ten days of the authority’s decision.
38. Article 125 §§ 1 and 7 of the Turkish Constitution provides as follows:
“All acts of decisions of the administration are subject to judicial review…
…
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
39. This provision is not subject to any restriction even in a state of emergency or war. the second paragraph does not require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property.
40. Pursuant to Article 41 of the Civil Code, anyone who suffers damage as result of an illegal act or tortious act may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage. The civil courts are not bound by either the findings or the verdict of the criminal court of the issue of the defendant’s guilt (Article 53).
VIOLATED_ARTICLES: 3


ITEMID: 001-93955
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF E.S. AND OTHERS v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3;Violation of Art. 8;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 4.
5. The applicants are four Slovak nationals who live in Košice. The first applicant, Mrs E. S., was born in 1964. She is the mother of the second applicant, Ms Er. S., the third applicant, Ms Ja. S., and the fourth applicant, Mr Já. S., who were born in 1986, 1989 and 1988 respectively.
6. On 7 March 2001 the applicants left the apartment in which they lived with Mr S., who was the first applicant’s husband and the father of the second, third and fourth applicants. The first applicant moved the second, third and fourth applicants away from the apartment to protect them from physical and sexual abuse by Mr S.
7. On 11 April 2001 the first applicant filed for divorce against her husband in the Košice I District Court. On 25 June 2001 the District Court placed the second, third and fourth applicants in her care pending the outcome of the divorce proceedings. On 19 March 2002 the District Court granted the petition for divorce. The divorce was finalised on 6 May 2002. The first applicant was granted custody of the second, third and fourth applicants on 18 November 2003.
8. On 21 May 2001 the first applicant filed a criminal complaint against her husband on the ground that he had ill-treated both her and the children and had sexually abused one of their daughters.
9. On the same day the first applicant requested that the Košice I District Court issue an interim measure ordering her husband to move out of the municipal apartment that they held under a joint tenancy. In making the request, the first applicant referred to her husband’s behaviour in respect of the children and submitted the opinion of an expert, which indicated that the second, third and fourth applicants had suffered from physical and psychological ill-treatment on account of their father’s behaviour and expressed the view that it was absolutely necessary to separate the four applicants from him.
10. Articles 74 and 76 of the Code of Civil Procedure permitted the courts to issue an interim measure requiring the parties to perform something, forbear from something or bear something. On 20 June 2001 the District Court dismissed the first applicant’s request as her husband had a tenancy right in respect of the apartment and the court considered that it lacked the power to restrict his right to use it. As a consequence, the applicants had to move away from their home, their family and their friends and the second and third applicants had to move to a new school.
11. The first applicant appealed to the Regional Court in Košice. She informed the court that the children had been placed in her custody and that criminal proceedings had been brought against their father.
12. On 31 August 2001 the Regional Court in Košice upheld the first-instance decision not to issue an interim measure. It held, with reference to the relevant law and practice, that the first applicant would be entitled to bring proceedings with a view to terminating the joint tenancy of the apartment only after a final decision had been delivered in the divorce proceedings. Ordering an interim measure in the terms requested by the first applicant would impose a disproportionate burden on her husband. The Regional Court indicated, however, that an interim measure could have been issued if the first applicant had instead requested that her husband be ordered to abstain from inappropriate behaviour towards her and the children and to abstain from threatening them.
13. The applicants complained to the Constitutional Court. On 18 June 2003, shortly before the Constitutional Court issued its judgment, the first applicant’s former husband was convicted by the Regional Court in Košice of ill-treatment, violence and sexual abuse. He was sentenced to four years’ imprisonment. An expert opinion submitted in the context of the criminal proceedings indicated that contact with their father had an adverse effect on the second, third and fourth applicants’ health and development.
14. In a judgment dated 9 July 2003, the Constitutional Court found that the Košice I District Court and the Regional Court in Košice, by failing to take appropriate action with a view to protecting the second, third and fourth applicants from ill-treatment by their father, had violated their rights under Articles 16 § 2 (prohibition of torture, inhuman or degrading treatment or punishment) and 21 §§ 2 and 3 (inviolability of home) of the Constitution as well as their rights under Article 19 of the Convention on the Rights of the Child, which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence, including sexual abuse.
15. The documentary evidence in the case was sufficient to conclude that the applicants had been subjected to physical violence and abuse by the husband of the first applicant. The decision stated that the second, third and fourth applicants had not been parties to the proceedings concerning the interim measure. In view of the facts of the case, the ordinary courts should, nevertheless, have issued an interim measure of their own initiative with a view to protecting the children from abuse and ill-treatment by their father. Such an obligation resulted from the relevant provision of the Code of Civil Procedure as well as from the Convention on the Rights of the Child.
16. The Constitutional Court held that the finding of a violation provided in itself appropriate just satisfaction to the three applicants concerned. It therefore dismissed their request for compensation for non-pecuniary damage.
17. As regards the first applicant, the Regional Court’s decision stated that an interim measure could have been granted had she phrased her request in a different manner. In reaching that conclusion the Regional Court had not, in the Constitutional Court’s view, acted contrary to the first applicant’s constitutional rights.
18. In January 2003 the relevant legislation had been amended specifically to provide that the domestic courts could order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.” One week before the Constitutional Court issued its judgment, the first applicant lodged with the Košice I District Court a motion for an interim measure ordering, inter alia, her former husband not to enter the common apartment. On 7 July 2003 Košice I District Court issued an interim order in those terms, starting with the date of the delivery of the decision and expiring fifteen days after the order became enforceable. Moreover, the court ordered the first applicant to file an action for exclusion from the apartment within thirty days from the date of delivery of the decision. The decision became enforceable on 29 October 2003.
19. On 10 July 2003 the first applicant filed an action with the Košice I District Court to exclude her former husband from using the apartment. On 18 May 2004 she filed with the Košice I District Court an action for cancellation of the right to joint lease of the apartment. On 10 December 2004 the Košice I District Court cancelled the right to a joint lease of the apartment and the first applicant became the exclusive tenant thereof. Furthermore, the court ordered the applicant’s former husband to move from the apartment within fifteen days from the date of final judgment.
20. Article 74 (1) of the Code of Civil Procedure, provides as follows:
“Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened.
The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.”
21. Article 76 provides that through an interim measure the court may impose upon the party, within the time assigned by the court, to perform something, to forbear from something, or to bear something.
22. The amended Article 74 provided:
“Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties, or if there is a concern that the exercise of judgment would be threatened.
The competent authority to issue an interim measure is the court which is competent to deal with the case. The parties to the proceedings are those who would be the parties if it concerned the merits.”
23. The amended Article 76 specifically provides that the court may order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.”
24. Article 705a (8) of the Civil Code provides:
“If a further cohabitation is unsupportable due to the physical or mental violence or threats of such violence from a husband or former husband, who is the joint user of an apartment, or from a close person jointly using an apartment, based on a motion of one of a married couple or former married couple the court can limit a right of use of the other of a married couple or exclude him/her totally from the right of use of an apartment.
VIOLATED_ARTICLES: 3
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