ITEMID: 001-22415
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SPATH HOLME LTD v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a corporate body registered in England and Wales. It is represented by before the Court by Willan Bootland White solicitors of Manchester.
The applicant is the freehold owner of a purpose-built block of flats, which it constructed in 1963 in Manchester. Twelve of the flats are regulated by the Rent Act 1977 (see below).
The current system of rent control in the United Kingdom dates back to 1915. Early provisions intended to protect tenants from high rents had the effect of reducing the amount of accommodation available for private letting, with the result that a series of Rent Acts, culminating in the Rent Act 1977 (“the 1977 Act”) were passed in an attempt to revitalise the market by way of a system of “fair rents” calculated in accordance with statutory criteria. In default of agreement of a “fair rent” by the parties to a regulated tenancy agreement, a rent assessment is carried out, in the first instance, by rent officers, who do not need to give reasons for their decisions. An appeal lies first to rent assessment committees, who give written reasons upon request, and thereafter on a point of law to the High Court. Once a “fair rent” has been assessed by a rent officer or rent assessment committee, it will be registered and constitutes the maximum recoverable rent for the regulated tenancy concerned. No application for registration of a different rent may be made for a further two years.
However, the absence of an open market in private letting following the 1977 A ct, combined with a period of high inflation, had the effect that “fair rents” as set by rent officers and rent assessment committees lost pace with inflation, to the disadvantage of landlords. The Housing Act 1988 (“the 1988 Act”) sought to stimulate the market by creating assured and assured-shorthold tenancies, at rents to be negotiated between individual landlords and their tenants. Regulated tenancies under the 1977 Act continued to exist, but no new regulated tenancies were to come into existence. The number of such tenancies steady fell from around fifty-nine per cent of private tenancies in the United Kingdom in 1988 to approximately ten per cent in 1998/9.
The creation of an open market provided rent officers and rent assessment committees with a new comparator on which to rely when calculating “fair rents” under the 1977 Act. However, regional variations arose in the weight given to open market rents when calculating “fair rents”, with the result that in some areas, including Manchester, the gap between registered “fair rents” and open market rents increased to the point where the former were at a level of about half the latter. This led landlords in those areas to challenge the “fair rent” assessments concerned and, in 1995 (in the case of Spath Holme Ltd v. The Greater Manchester & Lancashire Rent Assessment Committee [1995] 28 HLR 107) and again in 1997 (in the case of Curtis v. London Rent Assessment Committee [1999] QB 92), the Court of Appeal held that market rents should be awarded greater weight when calculating “fair rent” in those areas. A consequence of these decisions was that tenants whose rents had previously been registered at levels well below the open market level suffered very sharp and unexpected rent increases.
The Government issued a consultation paper entitled “Limiting Fair Rent Increases” in May 1998 setting out various options as to how to address this new problem. Following public consultation in which a number of landlords’ organisations, as well as individual landlords, made representations, the Government adopted the option most favourable to tenants, namely the making of an order (the Rent Acts (Maximum Fair Rent) Order 1999 (“the Order”)) applying a maximum index-linked limit to most increases in “fair rents” registered under the 1977 Act (the exception applying in cases where rental value had increased significantly due to works carried out by the landlord). The effect of the Order was to cap increases in “fair rents” at a level between 5 and 7.5 per cent above inflation.
The Order was made under section 31 of the Landlord and Tenant Act 1985 (“the 1985 Act”), sub-section (1) of which states:
“The Secretary of State may by order provide for-
(a) restricting or preventing increases of rent for dwellings which would otherwise take place, or
(b) restricting the amount of rent which would otherwise be payable on new lettings of dwellings;
and may so provide either generally or in relation to any specified description of dwelling.”
The applicant sought judicial review of the Order on grounds, inter alia, that it was ultra vires as (i) being beyond the purposes for which the enabling power under the 1985 Act had been intended; (ii) having failed to take account of all relevant considerations; and (iii) being unreasonable and disproportionate. The Court of Appeal granted judicial review on the first ground only and thus declared the Order ultra vires (R v. Secretary of State for the Environment, Transport and the Regions ex parte Spath Holme Ltd [2000] 3 WLR 141). The Secretary of State’s appeal was allowed by the House of Lords, which found the Order to have been made in proper exercise of the powers conferred by the 1985 Act ([2001] 2 WLR 15).
Lord Bingham of Cornhill, delivering the leading judgment in the House of Lords, stated:
“I do not find, studying the language of section 31, that it is in any way ambiguous or obscure, or such as to lead to absurdity if given its full apparent effect. But Mr Bonney [counsel for the applicant] is correct in his submission that the language is, on its face, very broad. It applies to lettings of dwellings of every kind, no matter who is the landlord or what the nature of the tenancy ... ; it places no limit on the restrictions which the minister may impose on rental payments; it provides only for annulment on negative resolution; and it gives no indication of the circumstances in which Parliament contemplated that the order-making power should be exercisable. One learns only, from the sidenote and the reference in section 32(3), that this is a reserve power, which indicates that it is not a power to be exercised very readily or routinely. ...
I have no doubt that clear and unambiguous words should be used if the citizen is to be deprived of his property without compensation and any reasonable doubt should be resolved in his favour. But a power to restrict or prevent increases of rent which would otherwise take place or restrict the amount of rent which would otherwise be payable on a new letting must of necessity deprive the landlord of rent which he would, but for the minister’s order, receive. The words used are capable of no other construction. ...
Any measure restricting rents, or prices or charges of any kind, must have the effect of depriving the recipient of what he would otherwise receive, but the European Court of Human Rights has respected the need for national authorities to strike a balance between the rights of individuals and the general interest of the community. This would appear to be such an instance. ...
Landlords did indeed have strongly arguable grounds for resisting the government’s proposal, but it cannot be said that their interests were ignored. In the annex to the consultation paper the object of the proposed measure was said to be “to slow down the rate at which fair rents are increasing for tenants but nevertheless to ensure that there is no disproportionate impact on landlords”. Under the heading “Issues for equity or fairness”, the question was posed “is it fair to landlords to change the fair rent system which was left intact when the Housing Act 1988 was introduced and which they would not have expected to be changed subsequently”. Having posed the question it cannot be thought that ministers ignored the landlords’ answer, disappointed though landlords may be that it was not given greater weight.
Some of the ministerial statements on this subject could have been more felicitously expressed. But the problem of sharp and unexpected rent increases had indeed arisen despite the fair rent regime, since that regime had been in force throughout and the increases would not have occurred had it been faithfully implemented in all areas from the beginning. Ministers did not suggest that the Court of Appeal decisions which had brought the reluctant rent officers and rent assessment committees into line had not given true effect to the fair rent legislation, nor that the general law should be changed. But it was the case that what ministers considered a serious social problem had arisen, even if it should not have arisen, and their observations are readily understandable in that context. I see nothing to suggest that the ministers had misconceived the source of the problem. ...
It is an enduring and intractable problem of social policy that those who need relief cannot always be helped without giving relief to those that do not need it. Housing benefit is means-tested, and the allocation of public resources is a matter for ministers, not courts. The hardship which the order imposed on landlords was a very relevant consideration, but it was for ministers to judge where the balance between the competing interests of landlords and tenants should be struck. It was not unreasonable to provide that the maximum recoverable rents should be the rents registered. The timing and scope of the Order were matters on which the ministers had to form a judgment, and their judgment cannot be stigmatised as perverse. There was no breach of the European Convention: the European Court of Human Rights has recognised the need for a wide measure of discretion in the implementation of policy in this field, as shown by Mellacher v. Austria (1989) ... . Any actions the ministers took, or any failure by the ministers to take action, were bound to be bitterly resented by those who were disadvantaged as a result. That does not mean that the action which the ministers did take in making the Order was unreasonable, unfair or disproportionate, disadvantageous to landlords though it certainly was.”


ITEMID: 001-90062
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF POPESCU AND DIMECA v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicants are brothers, who were born in 1931 and 1925 respectively and live in Bucharest and Aachen (Germany) respectively.
5. In 1932 the applicants’ parents bought a 596 sq. m plot of land with a one-storey building on it. In 1936 they built a three-storey building, linked to the existing one. The property is situated in Constanţa, at the crossroad of two streets, Dacia no. 1 and Răscoala din 1907 no. 38.
6. In 1967 the property of the applicants’ parents was seized by the State under Decrees nos. 218/1960 and 712/1966.
7. In 1974 two of the then tenants bought two of the flats.
8. On 30 September and 18 October 1976 respectively, the Constanţa Court of First Instance declared the two sales null and void on the ground that they had ignored the legal provisions. However, on 9 February 1978 and 24 November 1992 respectively the two sales were deemed valid by court decisions.
9. On 10 April 1996 the first applicant brought an action for the recovery of possession of immovable property, requesting the court to declare the nationalisation of her property unlawful and to order its return to her. The second applicant and the former tenants intervened in the proceedings. The former tenants claimed to be the owners of the two flats bought in 1974 and sought a declaration that they had acquired a right of property through acquisitive prescription, being in good faith.
10. On 23 July 2001 the applicants lodged an application with the administrative authorities for restitution in kind of the property under Law no. 10/2001 governing immovable property wrongfully seized by the State. So far they have not received any answer.
11. On 15 October 2002 the Supreme Court of Justice, in the operative part of a final decision, allowed in part the applicants’ action for recovery of possession, excepting the two flats bought by the former tenants, who were considered as being their owners. In the reasoning of the judgment the court stated that the seizure had been unlawful, that the State had no title to property since the two decrees had been contrary to the Constitutions of 1952 and 1965 respectively, and that the entire property belonged to the applicants’ parents, the applicants being their sole heirs. However, it considered that the former tenants, although buying from a non-owner, the State, had been in good faith and had acquired a right of property through acquisitive prescription. It would have been exaggerated and manifestly unfair to have requested the former tenants to question the validity of the State’s title at that moment.
12. The relevant legal provisions and jurisprudence are described in the judgments Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, ECHR 2005-XII (extracts)); and Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008).
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-70236
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: O`LOUGHLIN AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicants are, save for certain relatives of Antonio Magliocco who are Italian citizens, Irish nationals and represented by Mr G. O’Neill, a solicitor practising in Dublin. They are relatives of persons who were killed, or victims themselves of injuries caused, by bomb explosions in Dublin and Monaghan. The names and details of the applicants are contained in the case-file.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 17 May 1974, four car bombs exploded without warning in the Republic of Ireland, killing thirty four people and injuring over two hundred. At about 5.30 p.m., three car bombs exploded within minutes of each other at three locations in Dublin, namely Parnell Street, Talbot Street and South Leinster Street. The fourth car bomb exploded 90 minutes later in Monaghan.
The Irish authorities conducted extensive investigations. It was discovered that the cars used for the bombing were stolen in Belfast the same day. The Royal Ulster Constabulary (RUC) conducted an investigation into the theft of the cars and related offences which did not produce any result. No murder inquiry was begun in Northern Ireland. Authorities on both sides of the border held suspicions that the events were carried out by loyalist paramilitaries.
In July 1993, Yorkshire Television broadcast a documentary “Hidden Hand – the Forgotten Masssacre" which raised concerns as to whether elements of the United Kingdom security forces were involved in the bombings. It alleged that the bombers included not only eight suspects (members of the UVF including David Mulholland and Samuel Whitten) but named in addition four planners, Billy Hanna, Robert Mc Donnell Harris Boyle and a loyalist killer known as the Jackal, not named for legal reasons, all of whom were former or serving members of the UDR. It was suggested that despite much early information in the investigation, the trail ran cold at RUC headquarters in Belfast. Enquiries into suspects had to be made through the RUC who did not report back. There was no evidence that the RUC had ever bothered to question or arrest the suspects. The programme included interviews inter alia with Fred Holroyd, an army officer who had in 1974 been working undercover for Army Intelligence and MI6, Colin Wallace, a senior army information officer in 1973-1975 and various explosives experts and suggested that the organising of the Dublin bombings had been beyond the limited loyalist expertise at the time and that they must have had assistance. It was further suggested that military intelligence had infiltrated the loyalist structures, that certain loyalists were working closely with intelligence in operations including acts of cross-border terrorism and that some of the explosive used in the Dublin bombings had been provided from security force sources
Following the programme, relatives of the victims obtained from the Irish Minister of Justice a commitment that the Garda investigation into the bombings would be reviewed and any new evidence referred to in the documentary would be examined. In the Garda investigation which followed, police obtained the co-operation of the RUC and attended interviews of suspects in Northern Ireland, including Robin Jackson, Mulholland and Whitten. Interviews were also conducted with Fred Holroyd and Colin Wallace but they declined to make a statement and did not offer any evidence to support the allegations made during the programme.
On 17 May 1995, the Irish Department of Justice issued a press release setting out conclusions reached in the review. It cast doubt on the credibility of the documentary.
In January 1996, the relatives obtained the services of a solicitor and counsel, who reviewed the material and advised that there was insufficient evidence of any allegation of State wrongdoing to be advanced in respect of the bombings themselves. They advised that further evidence would have to be obtained and that such evidence could only be obtained by some form of public inquiry. They also advised that there was sufficient basis to lodge a complaint with the European Commission of Human Rights that the RUC had failed to conduct a murder inquiry into matters connected with the bombings in Dublin and Monaghan. An application, no. 36157/97, Patrick Doyle v. the United Kingdom brought by one of the relatives of the victims was rejected by the Court on 6 July 1999 for failure to comply with the six months time-limit (that is, the complaint had not been introduced within six months of the programme which had made the applicant aware of the alleged failure of the United Kingdom authorities to co-operate with the Irish authorities’ inquiry).
On 16 June 1998, the Irish Government appointed a Victims’ Commission whose terms of reference included considerations of the needs and concerns of victims of major outrages including those of the Dublin and Monaghan bombings. In August 1999, the Victim Commissioner’s Report recommended a private judicial inquiry.
In early 1999, allegations by John Weir, a former RUC Sergeant who had served twelve years in prison for the murder of William Strathearn, were made public. He named persons allegedly involved in bombings and shootings, including the Dublin and Monaghan bombings and suggested that collusion between loyalist paramilitaries and certain elements in the security forces was taking place in the mid-1970s. Irish police officers interviewed him in April 1999 and he made a statement.
In December 1999, the Irish Government agreed to establish a non-statutory Commission of Inquiry. Mr Justice Henry Barron was eventually appointed to head the inquiry and issue a report to the Government, after which a committee of the Irish Parliament would decide whether any further steps should be taken. The inquiry was informal, did not sit in public and had no legal powers.
In December 2003, the inquiry report ("the Barron Report") was made public. The inquiry had heard evidence, inter alia, from John Weir, Fred Holroyd, Colin Wallace and Irish police officers involved in the investigations. Weir named Hanna as the main organiser of the bombings and had claimed that explosives for all four bombs had been supplied by a named UDR officer. Weir had also named Laurence McClure, a RUC officer, as assembling the Dublin bombs. He did not claim that Army or intelligence contacts assisted Hanna and Jackson in planning the bombings. Written evidence before the inquiry included materials from the RUC who had carried out a number of interviews at the request of the Irish police, including James Mitchell, a constable in the RUC Reserve who owned the farm allegedly central to the activities of the group named by Weir, McClure and the UDR officer named by Weir as supplying explosives. They had all rejected the allegations.
In his statement to the Joint Committee of the Irish Parliament, Mr Justice Barron stated that the inquiry was satisfied that it had received all relevant documentation from sources within the State. As regarded elsewhere, he noted that from the early stages the inquiry had received assurances of co-operation from the British Government and the Police Service of Northern Ireland (PSNI). From its dealings with the RUC/PSNI, the Inquiry had received a considerable amount of information, including records of the questioning in December 1978 of RUC officers suspected of participating in attacks on Catholic civilians as well as ballistics evidence. There had been considerable delay in obtaining information from the Secretary of State for Northern Ireland. The inquiry was told that this was because there were some 68,000 files of possible relevance in the Northern Ireland Office alone, while files in the Ministry of Defence could be counted in the millions. The teams examining these files were stated to have finished at the end of 2001. On 26 February 2002, a ten page letter was sent by the Secretary of State containing the promised information. An appendix of six pages gave details of the structure and control of intelligence gathering at the relevant time. No copies of original documents had been provided. Further requests for specific information did produce some additional information in a similar form.
"Correspondence with the Northern Ireland Office undoubtedly produced some useful information; but its value was reduced by reluctance to make original documents available and the refusal to make other information available on security grounds. While the Inquiry fully understands the position taken by the British Government on these matters, it must be said that the scope of this report is limited as a result."
The inquiry summarised its conclusions as follows:
"The facts, circumstances, causes and perpetrators of the bombs:
The Dublin and Monaghan bombings were carried out by two groups of loyalist paramilitaries, one based in Belfast and the other in the area around Portadown/Lurgan. Most, though not all of those involved were members of the UVF (Ulster Volunteer Force). It is likely that the bombings were conceived and planned in Belfast, with the mid-Ulster element providing operational assistance.
The bombings were primarily a reaction to the Sunningdale Agreement – in particular to the prospect of a greater role for the Irish Government in the administration of Northern Ireland – though there were other specific events in April and May 1974 which might have influenced the attacks.
The loyalist groups who carried out the bombings in Dublin were capable of doing so without help from any section of the security forces in Northern Ireland, though this does not rule out the involvement of individual RUC, UDR or British army members. The Monaghan bombing in particular bears all the hallmarks of a standard loyalist operation and required no assistance.
It is likely that James Mitchell at Glenanne played a significant part in the preparation for the attacks. It is also likely that members of the UDR and RUC either participated in, or were aware of those preparations.
The nature, extent and adequacy of the Garda investigation, including the co-operation with and from the relevant authorities in Northern Ireland and the handling of evidence, including the scientific analyses of forensic evidence:
The Garda investigation failed to make full use of the information which it obtained. Certain lines of inquiry that could have been pursued in this jurisdiction were not pursued. There were other matters, including the questioning of suspects, in which the assistance of the RUC should have been requested, but was not.
The State was not equipped to conduct an adequate forensic analysis of the explosions. This was because the importance of the preservation, prompt collection and analysis was not appreciated. The effect of this was that potentially vital clues were lost.
Although the investigation teams had in their opinion no evidence upon which to found a prosecution, there is no evidence that they sought the advice of the Attorney General, in whose name criminal prosecutions were at that time still being brought. Had the Attorney General reviewed the file, it is likely that advice would have been given as to what further direction the investigation might take.
The reasons why no prosecution took place, including whether and if so, by whom and to what extent the investigations were impeded:
A number of those suspected for the bombings were reliably said to have had relationships with British Intelligence and/or RUC Special Branch officers. It is reasonable to assume that exchanges of information took place. It is therefore possible that the assistance provided to the Garda investigation team by the security forces in Northern Ireland was affected by a reluctance to compromise those relationships, in the interests of securing further information in the future. But any such conclusion would require very cogent evidence. No such evidence is in the possession of the Inquiry. There remains a deep suspicion that the investigation into the bombings was hampered by such factors, but it cannot be put further than that.
There is evidence which shows that the informal exchange of information between the Garda on the border and their RUC counterparts was extensive. There is some evidence to suggest that some Garda officers, unwittingly or otherwise, may have been giving information to the members of the British Army or Intelligence Services. The Inquiry has found no evidence to support the proposition that such exchanges in some way facilitated the passage of the Dublin and Monaghan bombers across the border. Similarly, no basis has been found for concluding that the Garda investigation was in any way inhibited because of a fear of exposing such links.
The Inquiry has examined allegations that the Garda investigation was wound down as a result of political interference. No evidence was found to support that proposition. However, it can be said that the Government of the day showed little interest in the bombings. When information was given to them suggesting that the British authorities had intelligence naming the bombers, this was not followed up. Any follow-up was limited to complaints by the Minister for Foreign Affairs that those involved had been released from internment.
The issues raised by the ‘Hidden Hand’ TV. documentary broadcast in 1993:
There is no evidence that any branch of the security forces knew in advance that the bombings were about to take place. This has been reiterated by the current Secretary of State for Northern Ireland and is accepted by the Inquiry. If they did know, it is unlikely that there would be any official records. Such knowledge would not have been written down; or if it was, would not have been in any files made available to the Secretary of State. There is evidence that the Secretary of State of the day was not fully informed on matters of which he should have been made aware. On that basis, it is equally probable that similarly sensitive information might be withheld from the present holder of that office.
The Inquiry believes that within a short time of the bombings taking place, the security forces in Northern Ireland had good intelligence to suggest who was responsible. An example of this could be the unknown intelligence that led British Intelligence sources to tell their Irish Army counterparts that at least two of the bombers had been arrested on 26 May and detained. Unfortunately, the Inquiry has been unable to discover the nature of this and other intelligence available to the security forces in Northern Ireland at that time.
As is made clear in the Report, there are grounds for suspecting that the bombers may have had assistance from members of the security forces. The involvement of individual members in such an activity does not of itself mean the bombings were either officially or unofficially state-sanctioned. If one accepts that some people were involved, they may well have been acting on their own initiative. Ultimately, a finding that there was collusion between the perpetrators and the authorities in Northern Ireland is a matter of inference. On some occasions an inference is irresistible or can be drawn as a matter of probability. Here, it is the view of the Inquiry that this inference is not sufficiently strong. It does not follow even as a matter of probability. Unless further information comes to hand, such involvement must remain a suspicion. It is not proven."
In January-March 2004, hearings on the report took place before the Sub-Committee of the Joint Committee on Justice, Equality, Defence and Women’s Rights. The Joint Committee issued its final report on 31 March 2004, making a number of recommendations, inter alia, that a Commission of Investigation be set up in respect of identified concerns about the Garda investigation (the reason it was wound down in 1974 and did not pursue certain leads) and missing documentation from police, intelligence and Department of Justice files. As regarded external issues of collusion, the Committee noted that Mr Justice Barron had requested assistance from the Great Britain and Northern Ireland authorities and that he was furnished with a sixteen page summary of any relevant information on the Dublin and Monaghan bombings which had resulted from a trawl of their files. The Committee had invited former and current ministers and officers from Great Britain and Northern Ireland to make oral or written submissions to elaborate on this document and any other relevant matters but these invitations were declined. It stated:
"The Sub-Committee wishes to express its grave disappointment at the response received to these invitations. An examination of the Northern Ireland and Great Britain records from the time in question would be necessary for any examination of this area. However, neither the Sub-Committee nor Mr Justice Barron were afforded the co-operation which the gravity of the atrocity required.”
It took the view that the information received by it had reinforced suspicion of collusion between security forces and loyalist groups in Northern Ireland and that further extensive investigation was required. It noted the self-evident problems that arose since potentially relevant information and witnesses were outside the jurisdiction and access to these sources in United Kingdom and Northern Ireland were vital. It concluded that a Public Tribunal of Inquiry in Northern Ireland or Great Britain was required, presided over by a judge of international standing and with powers to summon witnesses and compel disclosure of documents, and that in the event of a lack of co-operation from the United Kingdom in that respect the Irish Government should consider instituting proceedings before the Court in Strasbourg.
Meanwhile, the lawyers acting for the relatives in "Justice for the Forgotten" discovered that the inquests into the death of those who had died in the bombings in 1974 had been adjourned. In 1999 the Dublin City Coroner agreed that the inquests should proceed once the inquiry report had issued. The inquests took place in April and May 2004 and issued findings of unlawful killing.


ITEMID: 001-79914
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ÖZTUNÇ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1936 and lives in Van.
5. In 1985 the applicant obtained a contract from the Provincial Administration of Van to carry out repair work in twelve public schools in Başkale in order to render them operational.
6. At a later date, however, he noticed that some of the schools had not yet been fully constructed. He applied to the Governor's Office in Van and requested the contract to be annulled. He submitted that the payment agreed on for the repairs was too low, given the amount of work needed to complete the construction of those schools.
7. The Governor's Office requested the applicant to start the construction and the repairs, reassuring him that he would be reimbursed for his additional work.
8. After having completed the construction, the applicant applied to the Provincial Administration of Van and requested additional compensation of 47,000,000 Turkish liras (TRL). However, his repeated efforts proved fruitless as no payment was made.
9. On 17 July 1989 he filed an action with the Van Civil Court and claimed the outstanding amount of TRL 47,273,000 plus interest.
10. On an unspecified date, the court appointed an expert to determine the amount of additional payment that the applicant was entitled to recover. However, the expert failed to submit his report.
11. In the absence of the expert report, the court ordered on-site visits to the schools in order to establish the additional work carried out by the applicant.
12. On 30 September 1999 the members of the court, accompanied by new experts, conducted an on-site examination at the schools.
13. On an unspecified date, the experts submitted their calculation of the sums incurred by the applicant for the additional work.
14. On 26 April 2000 the Van Civil Court awarded the applicant TRL 47,273,000 plus interest calculated at three different rates depending on the relevant period of time, i.e., 30% per annum running from 17 July 1989 to 1 January 1998; 50% per annum from 1 January 1998 to 1 January 2000; and at the rediscount rate running from 1 January 2000 until the date of payment.
15. The applicant appealed. In his petition to the Court of Cassation he complained about the loss that he had suffered as a result of the high rate of inflation during the proceedings before the civil court.
16. On 30 November 2000 the Court of Cassation upheld the decision of the civil court. On 9 April 2001 the same court dismissed the applicant's request for rectification.
17. On 23 July 2001 the applicant was paid the total amount of TRL 282,795,000, consisting of the capital plus interest incurred until the payment date.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-113338
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF MIHALACHE v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
JUDGES: Alvina Gyulumyan;Ineta Ziemele;Kristina Pardalos
TEXT: 5. The applicant was born in 1969 and lives in Brasov.
6. At an unspecified date the former owners of the flat that the applicant had bought lodged restitution proceedings concerning nationalised immovable property.
By the final decision of 13 February 2003 the Brasov Court of Appeal rejected the restitution proceedings lodged by the former owners on the ground of lack of active standing and established thus that the applicant was the lawful owner of the flat.
7. At an unknown date the Prosecutor General of Romania lodged a request for supervisory review against the final decision of 13 February 2003 of the Brasov Court of Appeal.
By the final decision of 16 November 2005 the High Court of Cassation and Justice admitted the application for supervisory review lodged by the Prosecutor General, quashed the final decision of 13 February 2003 of the Brasov Court of Appeal and sent the case for re-trial.
Upon re-trial, by a final decision of 21 September 2006 the Brasov Court of Appeal admitted the restitution proceedings of the former owners accepting that they had active standing and establishing that they were the owners of the flat.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-23654
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SOFIANOPOULOS, SPAÏDIOTIS, METALLINOS and KONTOGIANNIS v. GREECE
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Vassilios Sofianopoulos, Mr Konstantinos Spaïdiotis, Mr Georgios Metallinos and Mr Spyridon Kontogiannis, are Greek nationals who were born in 1942, 1964, 1940 and 1938 respectively and live in Athens and in Thebes. They were represented before the Court by Mr G. Mavros, a lawyer practising in Athens.
Law no. 87/1945, on the compulsory production of identity cards, provided that in order to facilitate identity checks identity cards must record the bearer’s religion. Article 2 of Legislative Decree no. 127/1969, on the evidential value of identity cards, required identity cards to record the bearer’s religion, among other information. The situation was changed by Law no. 1599/1986, which concerned relations between the State and its citizens, the introduction of a new type of identity card and other measures; section 3 provided that it was not compulsory to record a person’s religion on his or her identity card, this being done only at the bearer’s request. However, Law no. 1599/1986 was never applied, as the Minister of the Interior extended the application of Legislative Decree no. 127/1969. Law no. 1988/1991 once again made it compulsory to record religion on identity cards.
By its decision no. 510 of 15 May 2000 the authority responsible for personal data protection (“the authority”) ruled that recording certain information, including the bearer’s religion, on identity cards constituted processing of personal data which was incompatible with Law no. 2472/1997 on the protection of individuals with regard to processing of personal data (epexergasia dedomenon prosopikou charactira). The authority then invited the Ministry of Public Order to take the necessary steps to ensure that a note indicating the bearer’s religion would be neither requested nor authorised by the services responsible for issuing new identity cards. It referred to the European Convention on Human Rights and the Council of Europe’s Convention for the protection of individuals with regard to automatic processing of personal data. It expressed the view that, regard being had to the purpose of data processing, namely, in the present instance, checking people’s identities, the following information was not necessary: fingerprints, the name and forename of the spouse, sex, occupation, nationality, home address and religion. With regard to religion, the authority pointed out that this information concerned a matter of individual conscience and was therefore not indispensable for establishing identity. It also took the view that the individual’s consent did not necessarily make the processing of all this information legitimate, since such consent could not have the effect of authorising processing which was illegitimate in itself or contrary to the aim pursued or the principle of necessity.
On 9 June 2000 an association, the Society of Judges for Democracy and Freedoms, stated in the press: “Recording religion on identity cards, even on a voluntary basis, is contrary to the fundamental provisions of the Constitution, which guarantee freedom of religion”.
By a joint decision of 17 July 2000 the Ministers of Economic Affairs and Public Order established the type of the new identity card and the information it should contain, which no longer included religion.
On 31 July, 22 August and 12 September 2000 the applicants asked the Supreme Administrative Court to set aside the joint decision of 17 July 2000 on the ground that it did not include religion in the information to be recorded in identity cards; they alleged an infringement of the freedom of religion, guaranteed by Article 13 of the Constitution.
The hearing in the case, and in a number of similar cases, took place on 1 December 2000 before the Supreme Administrative Court sitting as a full court. At the beginning of the hearing the applicants challenged for bias those judges who, as members of the Society of Judges for Democracy and Freedoms, had publicly spoken out against recording religion on identity cards.
Nine judges declared that they were members of the association and two others pointed out that Law no. 2472/1997 barred judges from revealing, even of their own accord, whether they belonged to it.
By its interlocutory decision no. 152/2000 the full court of the Supreme Administrative Court dismissed the challenge for bias. It noted that the judges in question had not taken any part in publication of the declaration by the association’s executive committee and had accordingly not adopted any position on the matter. Furthermore, the declaration had been published in the press during the judicial vacation and without the knowledge of the judges challenged. On the other hand, by its decision no. 151/2000, the full court ruled that the president of the association, who was a member of the Supreme Administrative Court, should be excluded from the hearing.
In its judgment no. 2285/2001 the Supreme Administrative Court held by a majority that, whether it was voluntary or compulsory, recording religion in identity cards would breach Article 13 of the Constitution. It ruled in the following terms:
“Freedom of religious conscience, which protects the individual’s religious beliefs against any state interference, includes, among other things, an individual’s right not to reveal his faith or his religious beliefs and not to be obliged to act or refrain from acting in such a way that it is possible to conclude that he has such beliefs. No state authority or organisation has the right to interfere in the field of an individual’s conscience, which is inviolable, according to the Constitution, or seek to discover his religious beliefs, or oblige him to reveal his religious beliefs through external signs. An individual’s voluntary disclosure of his beliefs to the authorities with a view to the exercise of certain specific rights conferred by law for the purposes of protecting freedom of religion (for example, the right to be exempted from military service as a conscientious objector, or from religious education lessons or other obligations imposed on schoolchildren, such as attending mass or prayers, or to establish a place of worship or religious association) is another matter. Consequently, the obligation to record religion on identity cards ... would breach Article 13 of the Constitution... The positive aspect of freedom of religion (manifestation of beliefs) consists in the right for everybody to manifest his religion or beliefs without hindrance either alone or in community with others and in public or private in so far as he does not offend against public order or morals and subject to the restrictions laid down in the fourth paragraph of Article 13 of the Constitution. However, that freedom does not include the right for individuals to manifest their religion or their religious beliefs by recording them, if they wish to do so, in public documents such as identity cards. Not only does Article 13 of the Constitution not confer such a right on persons entitled to freedom of religion ..., but it prohibits the recording, even on a voluntary basis, of religion or religious beliefs in identity cards as a means of manifesting or proving them. The effect of any other interpretation would be to infringe the freedom of religion ... of those Greeks who do not wish to manifest their religious beliefs in that manner and to do away with the State’s religious neutrality with regard to exercise of that individual right... When Greeks refuse to record their religion or religious beliefs in their identity cards their refusal is noted by a public authority in a public document which can be shown to any authority or service or to private individuals for the identification of the bearer, and they are obliged to reveal, indirectly and almost publicly, one aspect of their thoughts on religious matters. At the same time, they distinguish themselves, against their will and by interference of the public authorities, from those Greeks who disclose their religious beliefs by recording them in their identity cards. Moreover, the recording of religion in identity cards opens the way to positive or negative discrimination and thus creates the risk of interference with religious equality, guaranteed by Article 13 § 1 of the Constitution.”
As regards the complaint of a violation of Article 9 of the Convention, the Supreme Administrative Court held that, because recording religion was contrary to Article 13 of the Constitution, it should be rejected, since international conventions ratified by law prevailed over legislation but not the Constitution.
Article 3 of the Constitution provides:
“1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it (omodoxi), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928.
...”
Article 13 of the Constitution provides:
“1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs.
2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.
3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion.
4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions.
5. No oath may be required other than under a law which also determines the form of it.”
Articles 5 and 6 of the Council of Europe’s Convention for the protection of individuals with regard to automatic processing of personal data, adopted in Strasbourg on 28 January 1981 and ratified by Greece through Law no. 2062/1992, provide:
“Quality of data
Personal data undergoing automatic processing shall be:
a. obtained and processed fairly and lawfully;
b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;
c. adequate, relevant and not excessive in relation to the purposes for which they are stored;
d. accurate and, where necessary, kept up to date;
e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.”
“Special categories of data
Personal data revealing racial origin, political opinions or religious or other beliefs ... may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions.”


ITEMID: 001-22946
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: OMASTA v. THE SLOVAK REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Pavol Omasta, is a Slovakian national, who was born in 1942 and lives in Batizovce. The respondent Government were represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1980 the applicant’s relatives brought proceedings claiming the distribution of real property which they jointly owned with the applicant.
On 15 May 1987 the Poprad District Court granted the claim. On 9 October 1987 the Košice Regional Court upheld the first instance judgment. The decisions became final.
On 25 July 1990 the Supreme Court quashed, upon a complaint introduced by the General Prosecutor, the relevant parts of the above judgments. The Supreme Court established that the lower courts had failed to apply the law correctly and that their decisions were erroneous. The case was sent back to the Poprad District Court on 26 September 1990.
On 5 June 1991 the District Court stayed the proceedings, at the applicant’s request, pending the outcome of a different set of proceedings. The proceedings concerning the preliminary issue ended by the delivery of the Supreme Court’s decision of 15 March 1994.
On 18 May 1994 the Poprad District Court discontinued the proceedings in respect of the other defendants as the plaintiffs had withdrawn their action. It decided to continue proceeding with the case to the extent that the action was directed against the applicant as the latter had not agreed that the proceedings be discontinued. The applicant claimed that the house in question be assigned to the claimants and that the latter should be ordered to pay him compensation for his share. He further claimed that the land in question be distributed among the owners and that his share be assigned to him in natura.
In the course of 1995 the District Court took further evidence with a view to establishing whether the land in question could be split into several plots.
On 8 January 1996 the Poprad District Court dismissed the action. It found that the claimants had lost standing in the case as they had transferred the property in question to other persons in 1993. On 27 February 1997 the applicant appealed. He also challenged the District Court judges. On 22 September 1997 the Košice Regional Court excluded one of the District Court judges from dealing with the case.
On 23 October 1997 the Košice Regional Court quashed the first instance judgment. It expressed the view that the transfer of property to other persons in 1993 was void.
On 5 February 1998 the Regional Court refused to exclude the District Court judge to whom the case fell to be examined.
On 17 April 1998 the Poprad District Court asked the defendants to submit further evidence. A hearing was held on 26 October 1998.
The District Court heard the parties on 9 March 1999 as well as on 13 and 26 April 1999. On 8 June 1999 it appointed an expert who was to submit an opinion within 90 days. The expert failed to do so. On 10 January 2000 the District Court therefore appointed another expert. As the latter had fallen ill, the Poprad District Court appointed a third expert on 25 February 2000. On 18 January 2001 the District Court appointed another expert with a view to obtaining the opinion.
On 31 May 2001 the vice-president of the Prešov Regional Court dismissed the applicant’s complaint about delays in the proceedings. The letter stated that the District Court would be urged to ensure that the expert opinion be submitted as soon as possible.
On 29 June 2001 the District Court heard the applicant. On 4 October 2001 it stayed the proceedings. The decision stated that one of the plaintiffs had died on 10 July 2001 and that the proceedings would be resumed after the determination of his estate.
On 6 February 2002 the applicant complained about, inter alia, delays in the proceedings to the Constitutional Court. On 15 February 2002 the latter invited the applicant to eliminate formal shortcomings in his submissions within fifteen days. In particular, the applicant was requested to substantiate the alleged violation of his rights, to inform the Constitutional Court whether he had exhausted other remedies available and to appoint a lawyer representing him in the proceedings. On 14 March 2002 the Constitutional Court rejected the complaint as the applicant had failed to comply with the above request.
On 27 October 1992 the Liptovský Mikuláš District Court granted the applicant’s claim for 210,000 Slovakian korunas which he had lent to an individual. The judgment became final on 30 November 1992. The defendant failed to comply.
On 5 January 1993 the applicant requested the District Court to enforce the judgment by ordering the transfer of the relevant sum from the bank account of the debtor.
In April 1993 two banks informed the court that the debtor had no account with them. On 29 June 1993 the court discontinued the proceedings. The court noted that it was not in a position to establish in which bank the debtor had an account and that the applicant’s lawyer had failed to cooperate with the court in this respect.
On 15 January 1993 the applicant requested the Liptovský Mikuláš District Court to issue an interim measure ordering the debtor not to dispose of his car. On 3 August 1993 the District Court granted the request. It further ordered the applicant to lodge a claim for enforcement of the debt by selling the car before 15 September 1993.
The applicant made written submissions on 29 September 1993. As their contents was unclear, he was invited to bring them into conformity with the relevant provisions of the Code of Civil Procedure.
On 8 December 1993 the applicant filed a formal request for enforcement of the debt by means of selling the defendant’s car. On 29 December 1994 the Liptovský Mikuláš District Court ordered the enforcement of the debt. A list of the defendant’s property was to be established in that context. The file was transmitted to the enforcement officer on 17 March 1995. On 18 May 1995 the enforcement officer drew up a record stating that the debtor was serving a prison sentence and that he no longer owned the car. On 13 June 1995 the District Court informed the applicant that the debt could not be enforced by selling the debtor’s car. On 20 March 1996 the president of the District Court upheld this position and informed the applicant of the other possibilities of having the sum enforced.
On 26 March 1996 the applicant claimed the enforcement of the debt by the sale of the defendant’s real property. Subsequently the Liptovský Mikuláš District Court repeatedly asked the applicant to eliminate formal shortcomings in his claim. On 21 August 1996 the applicant complied with the court’s request.
On 5 March 1997 the president of the Liptovský Mikuláš District Court admitted that the court had not proceeded with the applicant’s claim for enforcement for six months. She explained that this was due to the heavy workload of the court.
On 27 March 1997 the District Court invited the applicant to pay the costs of the enforcement proceedings, and on 16 April 1997 it ordered the enforcement of the amount due by selling the debtor’s share in the real property. On 9 September 1997 the judge appointed an expert with a view to establishing the value of the property in question.
On 24 March 1998 the judge dismissed the opinion submitted by the expert as it had not been prepared in accordance with the court’s instructions. The expert was instructed to submit a new opinion.
On 9 July 1998 the District Court informed the applicant that the Banská Bystrica Regional Court had brought bankruptcy proceedings against the debtor on 5 March 1998. The enforcement proceedings brought by the applicant were thereby stayed ex lege pending the outcome of the bankruptcy proceedings. The applicant was informed that he could register his claim in respect of the debtor within 60 days.
On 2 February 1999 the Banská Bystrica Regional Court asked the applicant to substantiate his claim against the debtor in the context of the bankruptcy proceedings. The applicant complied on 5 February 1999. On 8 December 1999 the Banská Bystrica Regional Court informed the applicant that his claim had been registered.
The letter further stated that the Regional Court had lodged a criminal complaint against the debtor for non-compliance with his obligations in the context of the bankruptcy proceedings. The applicant was informed that the proceedings would be resumed after the examination of the complaint by the public prosecutor. On 20 September 2000 the Liptovský Mikuláš convicted the debtor. The latter appealed.
The Banská Bystrica Regional Court held a hearing in the bankruptcy proceedings on 26 January 2001. The creditors were invited to submit any comments on the registration and classification of their claims within thirty-one days.
On 6 February 2002 the applicant complained about delays in the enforcement proceedings and the bankruptcy proceedings to the Constitutional Court. On 15 February 2002 the latter invited the applicant to eliminate formal shortcomings in his submissions within fifteen days. In particular, the applicant was requested to substantiate the alleged violation of his rights, to inform the Constitutional Court whether he had exhausted other remedies available and to appoint a lawyer representing him in the proceedings. On 14 March 2002 the Constitutional Court rejected the complaint as the applicant had failed to comply with the request.
Article 48 § 2 of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
Article 20 § 1 of the Constitution guarantees to everyone the right to own property and to enjoy its protection on an equal footing with other owners.
As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...
The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002. In particular, Section 56(4) provides that the Constitutional Court may grant adequate financial compensation for non-pecuniary damage to a person whose rights or freedoms have been violated.
After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 § 2 of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation for non-pecuniary damage in respect of delays which had already occurred.
In its decision no. III ÚS 75/01-91 of 22 August 2002 the Constitutional Court found a violation of the complainant’s constitutional right to access to public functions and granted her 150,000 Slovakian korunas in compensation for non-pecuniary damage. In its decision the Constitutional Court recalled that it could not consider claims for pecuniary damages, such as compensation for lost income in the case at issue, when determining the amount of just satisfaction to be granted under Section 56(4) of the Constitutional Court Act.
Section 18(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation under this provision can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.
A claim for damages is to be lodged with the competent central government authority. The latter’s decision on it can be challenged before a court.
In accordance with the courts’ practice, the State Liability Act does not permit granting compensation for damage of non-pecuniary nature with the exception of compensation for damage caused to a person’s health which is governed by Regulation No. 32/1965.


ITEMID: 001-4619
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TORUNLAR v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson;Josep Casadevall
TEXT: The applicant is a Turkish national, born in 1961 and presently residing in Eskişehir, Turkey.
The applicant lived in Sweden between December 1991 and March 1998. On 17 June 1992 he was granted a residence permit based on the fact that he had married a Swedish woman, A.T. They have a daughter, born in 1992, and a son, born in 1993. On 15 June 1994 the applicant was granted a permanent residence permit.
On 5 December 1995 the applicant was sentenced to two months in prison for having threatened A.T. (olaga hot) and obstructed the course of justice (övergrepp i rättssak) in May 1995. On 29 January 1996 he was convicted of nine counts of threatening behaviour and three counts of obstruction of justice committed in June - August 1995. The threats were directed against A.T. and members of her family. The applicant received a ten months’ prison sentence. He was released on probation on 28 July 1996.
On an unspecified date the applicant and A.T. divorced. It appears that A.T. has custody of the children. After his release from prison the applicant had contacts with the children every Saturday or Sunday at A.T.’s home.
By a judgment of 23 July 1997 the District Court (tingsrätten) of Helsingborg sentenced the applicant to ten months’ imprisonment, ordered his expulsion from Sweden and prohibited him from returning before 23 July 2002. The court found that, on 20 June 1997, the applicant had turned up at A.T.’s home and had assaulted and threatened A.T. and guests she had invited to a party. As a result of the assault, A.T. had facial injuries and a broken nose. The applicant was found guilty also of criminal damage (skadegörelse).
As regards the applicant’s expulsion, the District Court made the following conclusions:
(Translation)
“The crimes in question are such that it is possible to expel the applicant under Chapter 4, Section 7, second sentence, first paragraph of the Aliens Act [Utlänningslagen]. However, Chapter 4, Section 10 of the Aliens Act requires that there be special reasons for the expulsion as, at the time of the indictment, he had been living in Sweden for more than five years. [The applicant] has not established himself in the Swedish labour market. For the third time in two years, he has committed crimes against the persons representing his only connection to Sweden. Further, his crimes seem to have become more serious. Also his children have been indirectly affected by his criminal acts. It appears that the contacts with the children will be very limited in the foreseeable future even if [the applicant] remains in Sweden. In weighing the circumstances in favour of and against expulsion, the District Court finds that there are special reasons for expelling [the applicant] from Sweden. ...”
On 17 September 1997 the Court of Appeal (hovrätten) of Skåne and Blekinge upheld the District Court’s judgment. On 20 October 1997 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.
Later the applicant requested the Government to exercise its power under Chapter 7, Section 16 of the Aliens Act to annul the expulsion order. By a decision of 12 February 1998 the Government rejected the request.
On 4 March 1998 the applicant was released on probation and expelled to Turkey.


ITEMID: 001-113768
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF KULIKOWSKI v. POLAND (No. 2)
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 5. The applicant was born in 1964.
6. In 1999 he was diagnosed as suffering from diabetes. He became insulin-dependent on an unspecified later date.
7. On 22 March 2000 the applicant was arrested. On 24 March 2000 he was remanded in custody by the Gliwice District Court on suspicion that he had killed his mother. On 24 March 2000 the applicant was placed in Bytom Remand Centre.
8. From 13 March 2001 until 11 October 2001 he was treated for his diabetes in the hospital of the Bytom Remand Centre. The applicant remained there until 23 October 2002.
9. On 14 August 2002 the applicant was convicted of murder and sentenced to twelve years’ imprisonment.
10. On 3 September 2002 an ophthalmologist examined the applicant as he had complained about deterioration of his eye-sight. He received a medical prescription for glasses.
11. From 7 November to 6 December 2002 the applicant was detained at the hospital of Krakow Remand Centre, where he received treatment. From 11 December 2002 until 24 April 2003 the applicant was detained in Bytom Remand Centre.
12. From 25 April 2003 the applicant was detained in Strzelce Opolskie Remand Centre. He remained there until 2 February 2005.
13. It transpires from the list of Polish prisons, available on the Internet site of the Polish prison service, that Strzelce Opolskie where he served most of his sentence is one of the prisons (i.e. Goleniów, Nysa, Dębica, Koszalin; Tarnów) which are listed as suitable for serving sentences by inmates suffering from insulin-dependent diabetes.
14. In 2004 the applicant met the director of the prison health service on 7 April, 12 May, 16 June, 4 August, 22 September, 6 October and 24 November 2004 to discuss his condition and the therapeutic options available to him. It appears that the applicant had been supplied with a glucometer and that he could test his sugar level himself several times a day.
15. He also took various medicines, including insulin. The applicant alleged, however, that because of the nature of his illness, he had frequently developed hypoglycaemia in the evening. Because he did not have the right to keep any glucose in the cell, he had to acquire sugar from his fellow inmates or the remand centre staff had to call an ambulance.
16. On 2 February 2005 the applicant was placed in Bytom Remand Centre for the purposes of medical treatment. He remained there until 25 February 2005.
17. In 2005 the applicant had two meetings with a director and a deputy director of the prison health services, on 5 January and 5 November 2005.
18. In 2005 the applicant developed glaucoma. He alleged that it was not treated. The Government disagreed. They submitted that he received treatment for this condition from the diagnosis onwards.
From 2 to 25 February 2005 the applicant was placed in the Ophthalmological Ward of the Bytom Remand Centre Hospital.
19. On 14 August 2006 the applicant was examined by a courtappointed doctor, who ordered that he should be hospitalised in order to improve his health and stabilise his blood sugar levels.
20. In July 2006 the applicant developed conjunctivitis. He was treated for it from 7 September until 5 October 2006.
21. From October 2006 onwards the applicant’s diet was adapted because of his diabetes. He was to receive one additional meal per day so that he could have a fourth injection of insulin.
22. He also submitted to the Court his diabetic record (książeczka cukrzyka) covering the period from August 2005 to January 2007. It transpires therefrom that he was able to monitor his sugar levels on a regular basis, at least five times a day. He had five injections of insulin per day.
23. The applicant suffered from headaches. He was examined by a neurologist on 17 April 2000, 17 and 24 May 2000, 7 June, 30 August 2000, 18 December 2001, 2 January, 20 February, 29 May, 19 June and 5 October 2002. Subsequently, a neurologist examined him on 3 January and 5 March 2007. On an unspecified date an MRI scan of his head was carried out.
24. Eventually, on 6 September 2006 the applicant was transferred to a hospital at Łódź Prison, where he remained until 5 October 2006.
25. The applicant was examined by an ophthalmologist on 18 October 2006, 9 March, 25 and 29 May 2007.
26. From 6 October 2006 until 1 March 2007 the applicant was again detained in Strzelce Opolskie Remand Centre.
27. On 29 January 2007 and 29 March 2007 the applicant talked with the Deputy Director of the Penitentiary Ward about the treatment of diabetes.
28. On 2 March 2007 the applicant was transferred to Bytom Remand Centre, where he was detained in the hospital. The applicant submitted that the remand centre nurse was frequently late with his insulin injections. On 16 March 2007 the applicant was transferred again to Strzelce Opolskie Remand Centre, where he remained until 17 May 2007.
29. On many occasions the applicant complained to the penitentiary authorities of his allegedly inadequate medical treatment in Bytom and Strzelce Opolskie Remand Centres. By a letter of 27 April 2007 the Deputy Director of the Opole Regional Inspectorate of the Prison Service informed the applicant that his complaints had been considered ill-founded in the light of the finding that the applicant had repeatedly refused to cooperate with the medical staff.
30. From 18 May until 11 June 2007 the applicant was placed for treatment in the hospital of the Bytom Remand Centre. On the latter date the applicant was transferred back to Strzelce Opolskie Remand Centre.
31. On 13 June 2007 the applicant discussed the treatment of his diabetes with the penitentiary judge. On 5 September 2007 the applicant discussed with the Deputy Director of the Remand Centre the possibility of hospital treatment.
32. The applicant submitted a copy of his medical record (książeczka zdrowia) numbering several hundred pages and covering the period from 18 September 2000 to July 2007. It transpires therefrom that the applicant consulted doctors at least twice a month, even more often at times. He regularly received various medication, including antidepressants, vitamins and prescriptions for insulin. He also regularly received packs of glucometer strips for the purpose of measuring blood sugar levels.
33. From 2 April to 25 July 2008 the applicant received treatment in respect of his alcohol addiction.
34. On 22 September 2008 the Opole Regional Court – Penitentiary Division decided that the applicant should be released on parole. The court had regard to the applicant’s conduct in the months prior to this decision. The applicant was released immediately afterwards.
35. From 10 to 22 October 2008 and from 6 to 14 November 2008 the applicant was hospitalised in Gliwice Hospital. His medical records prepared for the purposes of discharge from the hospital show that his diabetes was very unstable and that the general indicator of stabilisation of diabetes (HbA1c) was very high (8,3). In a certificate dated 14 November 2008 the treating doctor observed that the applicant’s blood sugar levels did not fall within the acceptable range of 60 to 140 mg/dl as a result of his lack of knowledge as regards self-treatment of diabetes and adapting insulin doses to amounts of food and physical activity.
36. On 17 March 2009 the applicant died.
37. Article 115 of the Code of Enforcement of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides:
“1. A sentenced person shall receive medical care, medicines and sanitary articles free of charge.
...
4. Medical care is provided, above all, by health care establishments for persons serving a prison sentence.
5. Health care establishments outside the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular
1) to provide immediate medical care because of a danger to the life or health of a sentenced person;
2) to carry out specialist medical examinations, treatment or rehabilitation of a sentenced person;
3) to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of the sentence...”
38. On the basis of Article 115, paragraph 10, of the Code, the Minister of Justice issued the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “the October 2003 Ordinance”). It entered into force on 17 December 2003.
39. Under paragraph 1.1 of the October 2003 Ordinance, health care establishments for persons deprived of liberty provide, inter alia, medical examinations, treatment, preventive medical care, rehabilitation and nursing services.
Paragraph 1 of this Ordinance further provides:
“2. In a justified case, if the medical services as enumerated in subparagraph 1 cannot be provided to persons deprived of liberty by the health care establishments for persons deprived of liberty, in particular due to the lack of specialised medical equipment, such medical services may be provided by public health care establishments.
3. In a case as described in subparagraph 2, the head of a health care establishment for persons deprived of liberty shall decide whether or not such medical services [provided by the public health care establishments] are necessary...”
Paragraph 7 of the October 2003 Ordinance states:
“1. The decision to place a person deprived of liberty in a prison medical centre shall be taken by a prison doctor or, in his absence, by a nurse...
2. The decision whether or not it is necessary to place a person deprived of liberty in a ... prison hospital shall be taken by the prison hospital’s director or by a delegated prison doctor.
...
6. In case of emergency the decision whether or not it is necessary to transfer a person deprived of liberty to a hospital may be taken by a doctor other than a prison doctor...”
40. The rules of cooperation between prison health care establishments and public health care facilities are set out in the Ordinance of the Minister of Justice issued on 10 September 2003 on the detailed rules, scope and procedure for the cooperation of health care establishments with respect to persons deprived of liberty (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu współdziałania zakładów opieki zdrowotnej ze służbą zdrowia w zakładach karnych i aresztach śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym wolności – “the September 2003 Ordinance”). It entered into force on 17 October 2003.
41. The domestic provisions and regulations have been extensively summarised in, inter alia, the case of Kaprykowski v. Poland, no. 23052/05, § 36-47, 3 February 2009.
NON_VIOLATED_ARTICLES: 3