ITEMID: 001-57825
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF HOFFMANN v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 14+8;Not necessary to examine Art. 8;Not necessary to examine Art. 9;Not necessary to examine P1-2;Costs and expenses award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 6. Mrs Ingrid Hoffmann is an Austrian citizen residing in Gaissau. She is a housewife.
7. In 1980 Mrs Hoffmann - then Miss Berger - married Mr S., a telephone technician. At that time, they were both Roman Catholics.
Two children were born to them, a son, Martin, in 1980 and a daughter, Sandra, in 1982. They were baptised as Roman Catholics.
8. The applicant left the Roman Catholic Church to become a Jehovah’s Witness.
9. On 17 October 1983 the applicant instituted divorce proceedings against Mr S. She left him in August or September 1984 while the proceedings were still pending, taking the children with her.
The divorce was pronounced on 12 June 1986.
10. Following their separation, both the applicant and Mr S. applied to the Innsbruck District Court (Bezirksgericht) to be granted parental rights (Elternrechte) over the children.
Mr S. submitted that if the children were left in the applicant’s care, there was a risk that they would be brought up in a way that would do them harm. He claimed that the educational principles of the religious denomination to which the applicant belonged were hostile to society, in that they discouraged all intercourse with non-members, all expressions of patriotism (such as singing the national anthem) and religious tolerance. All this would lead to the children’s social isolation. In addition, the Jehovah’s Witnesses’ ban on blood transfusions might give rise to situations in which their life or their health was endangered.
With regard to the son, Martin, Mr S. noted that he would eventually have to refuse to perform military service or even the civilian service exacted in its stead.
The applicant claimed that she was better placed to take care of the children, being in a position to devote herself to them completely, and as a mother better able to provide them with the necessary family environment. She alleged that Mr S. did not even provide for their maintenance, as he was both legally and morally bound to do. She acknowledged, however, that she intended to bring the children up in her own faith.
The youth office of the Innsbruck District Authority (Bezirkshauptmannschaft, Abteilung Jugendfürsorge) expressed a preference for granting parental rights to the applicant; it referred to, inter alia, the expert opinion of a child psychologist.
11. By decision of 8 January 1986, the District Court granted parental rights to the applicant and denied them to Mr S.
According to its reasoning, only the children’s well-being fell to be considered. The material living conditions of both parents were such that either of them would be able to take proper care of the children; however, the father would need his mother’s help. The children had stronger emotional ties with the applicant, having lived with her for a year and a half already, and separating them from her might cause them psychological harm. It followed that it was preferable to leave the children with the mother.
The District Court further observed:
"As against this, it has been stated by the children’s father, essentially as his only argument, that Ingrid S.’s membership of the religious community of the Jehovah’s Witnesses has serious detrimental effects on the children. As to this, it ought to be made clear right away that in no case are parents’ religious convictions as such a relevant criterion in deciding on parental rights and duties pursuant to Article 177 para. 2 of the Civil Code. These rights cannot be refused to a parent or withheld from him for the sole reason that he or she belongs to a religious minority.
However, in the concrete case it needs to be examined whether the mother’s religious convictions have a negative influence on her upbringing of the children which should be taken into account and whether their well-being is impaired as a result. It appears in particular that Ingrid S. would not allow blood transfusions to be given to her children; that for herself she rejects communal celebration of such customary holidays as Christmas or Easter; that the children experience a certain tension in relation to an environment which does not correspond to their faith; and that their integration in societal institutions such as kindergarten and school is made more difficult. However, the father’s apprehension of complete social isolation as a result of the mother’s religion does not appear well-founded in the light of the established facts. In addition, no possible dangers to either child’s development have appeared in the course of the establishment of the facts.
It is true that the facts adduced (blood transfusions, holidays, impaired social integration) are in principle capable of having detrimental effects on the children. This point must now be examined in the context of the particular case. It appears first of all that the father’s argument that Martin and Sandra would be exposed in an emergency to serious danger to their life and health by the refusal of a blood transfusion is not of decisive importance. In the absence of parental permission for a medically necessary blood transfusion to either child, such permission can be replaced by a judicial decision in accordance with Article 176 of the Civil Code (compare the decision of the Innsbruck Regional Court (Landesgericht) of 3 July 1979, 4R 128/79). In any case, according to this legal provision, anyone can apply to the court for an order that is necessary to ensure the welfare of the child when the parent endangers it by his conduct. In view of this possibility of applying to the court, which is available at all times, no danger to the children need be inferred from the mother’s attitude to blood transfusions.
As for Ingrid S.’s rejection of holidays, notice must be taken of her express agreement to allow the father to take the children on such occasions and celebrate them with the children as he sees fit. The mother’s religious convictions thus do not deprive Martin and Sandra of the possibility of celebrating these holidays in the usual way, so that no detriment to the children can be found in this regard either.
Of the reservations with regard to the mother’s upbringing of the children resulting from her religion the only remaining one of any significance is the circumstance that Martin and Sandra will in later life experience somewhat more difficulty in finding their way in social groups as a result of the religious precepts of the Jehovah’s Witnesses and will find themselves to some extent in a special position. However, the court cannot consider this so detrimental to the children’s welfare that they should for that reason not be entrusted to their mother, with whom they have such a close psychological relationship and to whose care they are accustomed. Careful consideration must lead to the conclusion that in spite of more difficult social integration, as discussed above, it appears to be more in the interest of the children’s welfare to grant parental rights to the mother than to transfer them to the father."
12. Mr S. appealed against the above decision to the Innsbruck Regional Court (Landesgericht).
13. The Regional Court rejected the appeal by decision of 14 March 1986. Its grounds for so doing were the following:
"The main thrust of the appeal is to argue that the decision of the first-instance court is incompatible with the children’s welfare in view of the mother’s membership of the religious community of the Jehovah’s Witnesses. In this connection, the appellant discusses the criteria and objectives peculiar to that religious community and the resulting social attitudes, which are in his opinion wrong; it follows, in his view, that both children are bound to suffer harm if the parental rights and duties are assigned to the mother, and in particular that they may be forced into social isolation removed from reality.
The appellant’s line of argument in this regard is unsound. The Jehovah’s Witnesses, formerly known as Serious Bible Students, a community based upon their own interpretation of the Bible, are not outlawed in Austria; it may therefore be assumed that their objectives neither infringe the law nor offend morality (see Article 16 of the Basic Law in conjunction with Article 9 (art. 9) of the European Convention on Human Rights). Therefore, the mother’s membership of that religious community cannot of itself constitute a danger to the children’s welfare ...
Admittedly, the mother’s religion will in all probability affect the children’s care and upbringing, and they may come to experience a certain tension in relation to an environment which does not correspond to their faith. The first-instance court has already dealt at length with part of the appellant’s arguments that relate thereto and has given detailed and conclusive reasons why the father’s objections against assigning the parental rights and duties to the mother cannot in the final instance be decisive. The new points raised on appeal - relating to a lack of understanding of democracy and a lack of subordination to the State - cannot cast doubt on the first-instance decision as regards the children’s welfare; it suffices in this respect to recall the legal recognition of the religious community of the Jehovah’s Witnesses, which meant, contrary to the appellant’s allegation, that the first-instance court did not in fact need to seek ex officio an expert opinion on the objectives or the ‘nature’ of the Jehovah’s Witnesses. Nor were the first-instance proceedings incomplete because no expert medical opinion was sought regarding the question, which was raised anew on appeal, of blood transfusions, which are rejected by the Jehovah’s Witnesses; in the event that a judicial remedy (a decision pursuant to Article 176 of the Civil Code) arrives too late, it will in the final instance be up to the physician treating the patient, when confronted with the problem, to reach a decision, with a view in the first place to life-saving medical action and only in the second place taking into account the rejection of blood transfusions which is peculiar to the Jehovah’s Witnesses.
The appellant’s further line of argument - to the effect that a properly arranged transfer of the children to himself and properly arranged visiting rights for the mother could not cause the same shock as had the mother’s forcible removal of the children, and that the decision under appeal had legalised her unilateral action - also fails to convince. The appellant overlooks the fact that, in view of the paramount importance of the children’s welfare, the way in which they reached the place where they are currently being taken care of is not necessarily decisive. Even illegal conduct would be of relevance only to the extent that it might, in an individual case, be possible to infer therefrom a lack of suitability for care or upbringing; it is not otherwise decisive for determining the attribution of parental rights and duties whether or not the parent concerned has taken charge of the children without authorisation. It remains true, however, that both children have for a long time developed harmoniously in the mother’s care, that there is a closer relationship with her than with the father, and that, whatever the religious or philosophical views of the mother, neither child has suffered any harm in his or her physical or - particularly - psychological development; in fact the appellant could not seriously claim that they had actually suffered in the latter respect."
14. Mr S. lodged an appeal on points of law (außerordentlicher Revisionsrekurs) with the Supreme Court (Oberster Gerichtshof).
15. By decision of 3 September 1986, the Supreme Court overturned the judgment of the Innsbruck Regional Court, granting parental rights to Mr S. instead of the applicant. It gave the following reasons:
"The appellant has not hitherto claimed that the children belonged to the Roman Catholic faith; however, he has stated, and it has in fact been established, that the mother is bringing them up according to the principles of the Jehovah’s Witnesses’ teaching. It is also uncontested that the children do not belong to this confession. The lower courts had therefore to examine whether or not the mother’s bringing up the children in this way contravened the provisions of the Federal Law of 1985 on the Religious Education of Children (Bundesgesetz über die religiöse Kindererziehung), BGBl (Bundesgesetzblatt, Federal official Gazette) 1985/155 (re-enactment of the Law of 15 July 1921 on the Religious Education of Children, dRGB (deutsches Reichsgesetzblatt, German Reich Gazette) I. 939). According to Article 1 of the 1921 Act the religious education of a child shall be decided upon by an agreement freely entered into by the parents, in so far as the responsibility for his or her care and upbringing is vested in them. Such an agreement may be revoked at any time and is terminated by the death of either spouse. Article 2, paragraph 1, of the 1921 Act lays down that if such an agreement does not or ceases to exist, the provisions of the Civil Code on the care and upbringing of children shall extend to their religious education. However, according to Article 2, paragraph 2 of the 1921 Act, during the existence of the marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of the marriage or from that in which he or she has hitherto been brought up.
Since in any case the children do not belong to the faith of the Jehovah’s Witnesses, their education according to the principles of this sect (which is not, as the appellant rightly points out, a recognised religious community: see Adamovich-Funk, Österreichisches Verfassungsrecht, [Austrian Constitutional Law], Vol. 3, p. 415) contravenes Article 2, paragraph 2, of the 1921 Act. The Regional Court’s failure to apply this provision is obviously in breach of the law.
Moreover, the lower courts also failed in their decisions to give due consideration to the children’s welfare ... . That the mother, as has been established, would refuse to consent to the children’s receiving a necessary blood transfusion constitutes a danger to their well-being, since requesting a court to substitute its consent for that of the mother ... may in urgent cases involve a life-threatening delay and medical intervention without seeking the approval of the person entitled to take care of the child is considered contrary to the law ... . It has also been established that if the children are educated according to the religious teaching of the Jehovah’s Witnesses, they will become social outcasts. In the initial decision as to which of the spouses is to have the right to provide care and upbringing, these circumstances cannot be ignored. Although it is preferable for young children to be taken care of by their mother ..., this applies only provided that all other things are equal ... . There is no maternal privilege as regards the attribution of parental right ... . The stress caused to the children by being transferred to the care of the other parent, which in any case is usually transitory, has to be accepted in their own best interests ... . The file contains no documentary basis for the assumption that a change to another carer ‘would with a high degree of probability cause the children serious psychological harm’ ... . Even according to the opinion of the lower courts, the father is able to see to the children’s upbringing, since they have a good relationship with him and with their grandmother, who would take charge of their care and upbringing during the father’s absence at work; the availability of accommodation for the children in the house of the father’s parents is assured. Therefore, only transfer of parental rights and duties to the father is in the children’s interest."
16. Numbering about four million worldwide not counting uninitiated sympathisers, the Jehovah’s Witnesses form a particular religious movement. It originated in America in the 1870s. Formerly known by names such as International Bible Students, the Jehovah’s Witnesses took their present name in 1931.
17. A central feature of Jehovah’s Witness doctrine is the belief that the Holy Scriptures in the original Hebrew and Greek are the revealed word of Jehovah God and must therefore be taken as literal truth.
The refusal to accept blood transfusions is based on several scriptural references, most notably Acts 15: 28-29, which reads (New World translation):
"For the holy spirit and we ourselves have favored adding no further burden to you, except these necessary things, to keep abstaining from things sacrificed to idols and from blood and from things strangled and from fornication. If you carefully keep yourselves from these things, you will prosper ..."
18. Article 177 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) deals with the custody of children in an event such as the dissolution of their parents’ marriage by divorce. It reads:
"(1) Where the marriage between the parents of a legitimate minor has been dissolved, annulled or declared void, or where the parents are separated other than merely for a temporary period, they may submit to the court an agreement concerning which of them shall in the future have custody of the child. The court shall approve the agreement if it is in the interests of the child’s welfare.
(2) Where no agreement is reached within a reasonable time, or if the agreement reached is not in the interest of the child’s welfare, the court shall decide which parent is to have sole custody of the child in the future; in the case of a separation of the parents which is not merely temporary, such a decision shall be taken only on application by one of them."
19. Both during and after the parents’ marriage, the court may be called upon to substitute its approval or consent for that of the parents (or parent). The relevant provision is Article 176, which reads:
"Where the conduct of the parents threatens the welfare of a minor, the court shall be required, irrespective of who has applied to it, to make the orders necessary for the protection of the child’s welfare. Such an order may also be made on application by one of the parents when the parents have failed to reach an agreement concerning a matter of importance to the child. In particular the court may withdraw custody of a child, either wholly or in part, including rights of approval and consent provided by law. In individual cases the court is also required to substitute its approval or consent for parental approval or consent required by law, when there is no justified reason for refusal."
20. In taking decisions under Articles 176 and 177, the courts follow the criteria set out in Article 178a, which reads:
"In assessing the interests of the minor, his or her personality and needs must be duly taken into consideration, particularly his or her talents, abilities, inclinations and developmental opportunities, as well as the material circumstances of the parents."
21. Religious freedom is guaranteed by Article 14 of the Basic Law (Staatsgrundgesetz), which reads:
"(1) Complete freedom of beliefs and conscience is guaranteed to everyone.
(2) Enjoyment of civil and political rights shall be independent of religious confessions; however, a religious confession may not stand in the way of civic duties.
(3) No one shall be compelled to take any church-related action or to participate in any church-related celebration, except in pursuance of a power conferred by law on another person to whose authority he is subject."
22. Austria has a system of recognition of religious communities. It is governed by the Act of 20 May 1874 concerning the Legal Recognition of Religious Communities (Gesetz betreffend die gesetzliche Anerkennung von Religionsgesellschaften), RGBl (Reichsgesetzblatt, Official Gazette of the Austrian Empire) 1874/68. Only five religious communities are so recognised, among them the Roman Catholic Church but not the Jehovah’s Witnesses. Religious groupings without legal recognition have legal personality as "societies" (Vereine) under the general law.
23. The religious education of children is governed by the Federal Act on the Religious Education of Children, which re-enacted a German law dating from 1921 that was incorporated into Austrian law in 1939 (see paragraph 15 above).
"The religious education of a child shall be decided upon by an agreement freely entered into by the parents, in so far as the responsibility for the child’s care and upbringing is vested in them. Such an agreement may be revoked at any time and is terminated by the death of either spouse."
"(1) If such an agreement does not or ceases to exist,the provisions of the Civil Code on the care and upbringing of children shall extend to their religious education.
(2) During the existence of their marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of their marriage or from that in which he or she has hitherto been brought up, or that a child is to cease to attend religious education classes.
(3) In the absence of such consent, application may be made for the mediation of, or a decision by, the guardianship court. In any such decision the interests of education shall be paramount even in cases not covered by Article 176 of the Civil Code. Before the decision is taken the child’s parents, and if necessary relatives, relatives by marriage and teachers, must be heard if this is possible without significant delays or disproportionate costs. The child itself must be heard if it has reached the age of ten."
24. The need for parental permission for administering blood transfusions to minors follows from the law governing medical action in general.
Thus, the Hospitals Act (Krankenanstaltengesetz), BGBl 1/1957, lays down in Article 8:
"(1)...
(2) Hospital patients may be medically treated only in accordance with the principles and recognised methods of medical science.
(3) Special curative treatments including surgical operations may be carried out on a patient only with his consent, but if the patient has not yet reached the age of eighteen or if because he lacks mental maturity or health he cannot assess the necessity or usefulness of the treatment, only with the consent of his legal representative. Consent is not required if the treatment is so urgently necessary that the delay involved in obtaining the consent of the patient or his legal representative or in appointing a legal representative would endanger his life or would entail the danger of serious harm to his health. The medical director of the hospital or the doctor responsible for the management of the hospital department concerned shall decide on the necessity and urgency of treatment."
25. It is a criminal offence to administer medical treatment without the requisite consent; this follows from Article 110 of the Criminal Code (Strafgesetzbuch), which reads:
"(1) Whoever treats another person, even according to the rules of medical science, without having obtained that person’s consent, shall be liable to imprisonment for up to six months or to a fine of up to 360 daily rates.
(2) If the offender has failed to obtain the consent of the patient because he assumed that a delay in the treatment would entail a serious risk for the life or health of the patient, he shall be punished according to paragraph 1 only if the assumed risk did not exist and if by taking due care ... he could have been aware of this.
(3) The offender shall be punished only at the request of the person who underwent unauthorised treatment."
VIOLATED_ARTICLES: 14
8


ITEMID: 001-95203
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF BALLIKTAŞ v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 6 - Right to a fair trial
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
TEXT: 5. The applicant was born in 1978 and lives in Ankara.
6. On 6 March 2000 the applicant was arrested by the gendarmerie in the border city of Edirne on her return from Bulgaria. She was detained in a gendarmerie station. According to an arrest report prepared by the gendarmerie the same day, the applicant was informed of her right to be represented by a lawyer and to inform her family about her arrest. Nevertheless, it was also stated in the same document that, if the offence in respect of which she was arrested fell within the jurisdiction of State Security Courts, she could consult a lawyer only if her detention period was extended by a judge or if a judge ordered her detention in a prison. The applicant signed the report and wrote on it that she had “no requests”.
7. The applicant was interrogated during her detention at the gendarmerie station, and an eight-page statement was taken from her between 7 and 9 March 2000. In her statement the applicant admitted to having engaged in activities on behalf of the PKK.
8. On 9 March 2000 the applicant was examined by a doctor at the Edirne branch of the Forensic Medicine Directorate. According to the medical report drawn up the same day, there were “no injuries or signs of ill-treatment on her body”.
9. The same day she was brought before the prosecutor and then before the Edirne Magistrates' Court, which ordered her pre-trial detention in prison. In two statements made during meetings with the prosecutor and the judge the applicant admitted to being a member of the PKK.
10. According to the three statements referred to above, the applicant did not want to be represented by a lawyer during the questioning.
11. On 3 April 2000 the prosecutor at the Istanbul State Security Court filed an indictment against the applicant with that court for the offence of membership of an illegal organisation, namely the PKK. The prosecutor, referring to the above-mentioned statements made by the applicant, alleged that the applicant had left Turkey in 1996 and had been taken to the PKK's training camp in Lavrion, Greece, where she had received training. Following her training she had obtained a false German passport in order to enter the Netherlands. During her time in Europe she had engaged in activities on behalf of the PKK in Germany and the Netherlands.
12. Criminal proceedings against the applicant commenced before the Istanbul State Security Court (hereafter “the trial court”). During the proceedings the applicant was represented by a lawyer.
13. During the first hearing, which was held on 22 June 2000, the applicant rejected the allegations against her and alleged that, before she was brought before the prosecutor and the judge on 9 March 2000, she had been told by the gendarmes that if she did not accept the accusations before the judge and the prosecutor she would be taken back to the gendarmerie station and tortured again. That had been the reason she had accepted the accusations before the prosecutor and the judge. When asked by the trial court what she had to say about the medical report of 9 March 2000 in which it was stated that her body bore no signs of ill-treatment, the applicant replied that the medical report had been prepared before she was beaten up by gendarme officers and threatened with rape. She also alleged that she had been stripped naked by the gendarmes during her detention. The applicant further informed the trial court that the gendarmes had not asked her whether she wanted to be represented by a lawyer during the questioning.
14. During the second hearing, which was held on 29 August 2000, the applicant submitted a handwritten letter to the trial court. In the letter she alleged, in particular, that while she was being detained in the gendarmerie station she had been insulted by gendarme officers, blindfolded, beaten up and drenched with water. Before being questioned she had been undressed and “they” had touched various parts of her body. Threats of rape and death, directed at her and her mother, had also been made.
15. The lawyer representing the applicant told the trial court that his client's questioning had been in breach of the applicable procedure and legislation and, as such, the statements taken from her constituted unlawfully obtained evidence which was not admissible in a court of law. Other than the statements taken from his client by the gendarmerie and then by the prosecutor and the judge on 9 March 2000, there was no evidence against her. The lawyer drew the trial court's attention to a Court of Cassation decision according to which confessions not supported by further evidence were not admissible as evidence.
16. The lawyer further asked the trial court to hear a “cassette of the questioning” of the applicant which had apparently been mentioned in a document drawn up by the gendarmerie. This request was rejected by the trial court which noted that the cassette was not in its possession.
17. The lawyer also pointed out that there was no mention of his client's name in the statements taken from E.Ş. who, according to the indictment, had helped his client to go to Greece.
18. On 9 October 2001 the applicant was found guilty as charged and sentenced to twelve years and six months' imprisonment. In convicting the applicant the trial court had regard to the statements taken from her at the gendarmerie station and then by the prosecutor and the judge on 9 March 2000, as well as to the statements made by E.Ş. in the course of his trial in 1998.
19. The applicant appealed against her conviction and argued, in particular, that the decision of the trial court had not been adequately reasoned. In the grounds of appeal the applicant's lawyer also repeated his earlier defence submissions concerning the allegedly unlawful nature of the evidence used in convicting his client, and referred to various Articles of the Convention.
20. On 8 July 2002 the Court of Cassation upheld the applicant's conviction.
21. At the time notice of the application was given to the respondent Government, the Government were requested to submit to the Court a copy of the “cassette of questioning” referred to above (see paragraph 16 above). It appears from the documents submitted to the Court by the applicant that the Ministry of Foreign Affairs requested the Ministry of Justice to obtain the cassette so that it could be submitted to the Court. The gendarmerie, who were requested by the domestic judicial authorities to produce the cassette, stated in their letter of 21 May 2008 that they had “no records of the cassette being handed over to the Edirne prosecutor”.
VIOLATED_ARTICLES: 3
6


ITEMID: 001-72638
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF NIKOLAYEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 4. The applicant was born in 1943 and lives in the town of Tambov.
5. In the 1980s he took part in a rescue operation on the site of the Chernobyl nuclear disaster. As of an unspecified date the applicant has been in receipt of social benefits in this connection.
6. On an unspecified date the applicant sued the Tambov Pension Authority (Управление социальной защиты населения мэрии города Тамбова, “the authority”) seeking to recover the amount of allegedly unpaid social benefits.
7. By judgment of 19 March 2001 the Oktyabrskiy District Court of Tambov (“the District Court”) examined and granted the applicant’s action and ordered the authority to pay him the arrears of RUR 20,603.67.
8. The judgment was upheld on appeal by the Tambov Regional Court (“the Regional Court”) on 16 May 2001. It came into force on the same date. Immediately thereafter the applicant obtained an execution writ and instituted enforcement proceedings.
9. The amount due to the applicant pursuant to the judgment of 19 March 2001 and decision of 16 May 2001 was paid to him by two money transfers dated 7 March 2003 (20,603.67 RUR) and 19 February 2004 (5,130.31 RUR) respectively.
10. On 28 May 2002 the District Court examined and granted the applicant’s claim for penalty in connection with alleged non-enforcement of the judgment of 19 March 2001. The court ordered the authority to pay the applicant RUR 38,940.93.
11. The judgment of 28 May 2002 was not appealed against by the parties and came into force on 13 June 2002.
12. Immediately thereafter the applicant obtained an execution writ and instituted enforcement proceedings.
13. By letter of 18 February 2003 the bailiffs returned the writ and supporting documents to the applicant and invited him to apply to a local branch of the Federal Treasury.
14. It appears that the applicant followed these instructions and submitted the writ and supporting documents to the Federal Treasury. On 4 March 2003 the Federal Treasury refused to pay the money due by reference to the fact that the respondent authority had not been registered.
15. On an unspecified date the respondent authority brought an application seeking supervisory review of the judgment of 28 May 2002. A judge of the Regional Court on 17 June 2003 examined the application and decided to forward it for examination on the merits to the Presidium of the Regional Court.
16. It appears that by letter of 17 June 2003 the Regional Court notified the applicant and other parties in the case of the supervisory review hearing of 26 June 2003.
17. On 26 June 2003 the Regional Court quashed the judgment of 28 May 2002 by way of supervisory review and remitted the case for a fresh examination at the first instance. It appears that the applicant was absent from the hearing.
18. According to the Government, on 16 July 2003 the first instance court discontinued the proceedings in the case for the applicant’s failure to appear.
19. It appears that on 16 June and 10 October 2003 the District Court examined and fully granted the applicant’s two fresh claims for unpaid social benefits. It ordered the authority to pay RUR 18,721.85 and RUR 5,130.31 respectively. Both decisions were enforced with a six months delay, in December 2003 and February 2004 respectively.
20. A special law adopted in 1995 entitles the participants of the liquidation of the consequences of the Chernobyl nuclear accident to additional social benefits, including monthly payments.
21. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff’s order on the institution of enforcement proceedings must fix a time-limit for the defendant’s voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that a coercive action will follow, should the defendant fail to comply with the time-limit.
22. Under Section 13 of the Law, the enforcement proceedings should be completed within two months upon receipt of the writ of enforcement by the bailiff.
23. Under special rules governing enforcement of execution writs against the recipients of allocations from the federal budget, adopted by the Federal Government on 22 February 2001 (Decree No. 143, as in force at the relevant time), a creditor is to apply to a relevant branch of the Federal Treasury holding debtor’s accounts (Sections 1 to 4).
24. Within the next five days the branch examines the application and notifies the debtor of the writ, compelling the latter to abide by the respective court decisions (Sections 7 to 12). In case of the debtor’s failure to comply within two months, the branch may temporarily freeze the debtor’s accounts (see Section 13).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-120968
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF JEZNIK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
JUDGES: Angelika Nußberger;Helena Jäderblom
TEXT: 4. The applicant was born in 1940 and lives in Vuzenica.
5. In 1994 the applicant began investing in commercial papers of the company Kompas Consulting d.d. via the company Kompas Maribor D.O.O. At the end of 1994 such trading was prohibited by the Securities Market Act however the applicant continued with the activity until 1996.
6. In 1996 the applicant instituted enforcement proceedings against the company Kompas Maribor D.O.O. before the Maribor District Court seeking the payment of lost investments from Kompas Maribor for not informing her of the legislative amendments and continuing with the trading of commercial papers. She further complained before the domestic courts that as the company Kompas Consulting d.d. was bankrupt, she could only receive back a small proportion of her investments in bankruptcy proceedings.
7. On 14 October 1996 the Maribor District Court issued a writ of execution.
8. On 12 November 1996 following an objection the case was referred to contentious proceedings.
9. On 4 February 1998 the Maribor District Court rendered a judgment rejecting the applicant’s request. She appealed.
10. On 24 November 1998 the Maribor Higher Court upheld the appeal and remitted the case for re-examination. The second-instance court found that as the applicant had clarified that she was seeking compensation for damages only in the appeal phase, this constituted a new fact that the first-instance court would have to deliberate upon.
11. On 24 October 2001 the Maribor District Court rendered a judgment. The court found that given the contractual arrangements the company Kompas Maribor D.O.O. could not be held responsible for the damages sustained. The applicant appealed.
12. On 15 September 2004 the Maribor Higher Court upheld the firstinstance judgment and rejected the appeal. The applicant lodged an appeal on points of law.
13. On 25 January 2007 the Supreme Court rejected her appeal. She lodged a constitutional appeal.
14. On 10 December 2007 the Constitutional Court rejected her appeal.
15. For relevant domestic law see Tomažič v. Slovenia (no. 38350/02, 13 December 2007).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-83787
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: KOVALYOVA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Ms Olga Ivanovna Kovalyova, is a Ukrainian national who was born in 1940 and lives in the city of Zaporizhzhya. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Yuriy Zaytsev.
The applicant is a former employee (merchandise expert) of the Mariupol Military Trade Centre (Маріупольський торговий відділ Воєнторгу).
On 27 October 1998 the Khortytsky District Court of Zaporizhzhya (“the District Court”) ordered the Military Trade Department of the Southern Combat Operations Centre situated in Odessa (“the Military Trade Department”; Управління воєнної торгівлі Південного оперативного командування м. Одеса) to pay the applicant UAH 3,584 in salary arrears. The decision became final and binding on 6 November 1998.
On 27 October 1998 the Bailiffs’ Office of the Prymorsky District of Odessa instituted the enforcement proceedings.
The judgment at issue was not enforced in due time because of the lack of debtor’s funds.
During June 1999 – July 2001 the major part of the debt was transferred to the applicant’s bank account.
The judgment of 27 October 1998 was enforced in full on 1 November 2001.
In February 2002 the applicant instituted proceedings against the Military Trade Department seeking to receive compensation for delay in the enforcement of the judgment given in her favour and for loss of value of the initial award.
On 4 June 2002 the District Court found no fault by the respondent and rejected the applicant’s claim.
On 5 September 2002 and 20 March 2003 the Zaporizhzhya Regional Court of Appeal and the Supreme Court, respectively, upheld this decision.


ITEMID: 001-81240
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VASILYEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1937 and currently lives in Leipzig, Germany.
5. On 16 August 1996 the applicant's apartment in the city of Odessa, Ukraine, was sold by Mr O. (the applicant's nephew), who allegedly acted under a written authority issued by the applicant, to Mrs S. (a private person). The applicant continued to live in the flat until an unknown date in 1999, when he left Ukraine and took up residence in Germany.
6. On an unspecified date the applicant filed a criminal complaint against Mr O., stating that he had stolen his passport and forged his signature on the written authority to sell the apartment.
7. On 1 October 1996 an investigator of the Malinovsky District Police Station of Odessa (Малинівський районний відділ внутрішніх справ, hereafter “the Police Station”) instituted criminal proceedings against Mr O. for forgery and fraud.
8. On the same date Mrs S. sued the applicant before the Malinovsky District Court of Odessa (hereafter “the Malinovsky Court”) seeking his eviction from the apartment at issue.
9. On 4 October 1996 the applicant filed with the Malinovsky Court a counterclaim against Mrs S. seeking to have the sales contract for the flat declared null and void for fraud.
10. On 18 November 1996 an expert with the Criminalistic Expert Unit of the Odessa Police Department (Експертно-Криміналістичне Управління УМВС України в Одеській області, hereafter “the Expert Unit”), in the course of the criminal investigation against Mr O., issued an opinion in which he stated that the signature on the written authority had been executed by a person other than the applicant.
11. On 22 November 1996 the Malinovsky Court requested from the Police Station a copy of the expert's report of 18 November 1996.
12. On 17 January 1997 the Malinovsky Court held the first hearing, which was adjourned because of the failure of Mr O. (a witness in this case) failure to appear.
13. On 6 February 1997 the Malinovsky Court requested the Odessa Institute of Forensic Expert Examinations (Одеський Науково-Дослідний Інститут Судових Експертиз, hereafter “the Institute”) to carry out an expert examination of the applicant's signature on the authority.
14. On 23 April 1997 the applicant amended his statement of claim, adding a claim for compensation for non-pecuniary damage.
15. On 8 May 1997 an expert with the Institute submitted her report, stating that there was a possibility that the authority had been signed by the applicant with a disguised handwriting.
16. The hearing scheduled for 19 May 1997 was adjourned on account of Mrs S.'s lawyer failure to appear.
17. On 21 May 1997 the applicant challenged the presiding judge before the President of the Malinovsky Court. On 25 May 1997 this challenge was accepted and another judge was appointed to hear the case.
18. Of the eighteen hearings listed between 2 July 1997 and 29 December 1998 six were adjourned due to Mrs S. and her lawyer's failure to appear, and one due to the applicant's absence. On an unspecified date during this period the applicant's case was transmitted from the Malinovsky Court to the Illichevsky District Court of Odessa (hereafter “the Illichevsky Court).
19. On 29 December 1998 the Illichevsky Court decided to suspend the proceedings pending the outcome of the criminal proceedings against Mr O. The applicant appealed against this decision.
20. On 23 February 1999 the Odessa Regional Court (hereafter “the Regional Court”) found that the appeal had been lodged out of time and invited the Illichevsky Court to determine the admissibility of the applicant's appeal.
21. On 3 March 1999 the Illichevsky Court granted the applicant leave to appeal out of time.
22. On 23 March 1999 the Regional Court allowed the applicant's appeal, quashed the decision of 29 December 1998 and ordered a different judge of the Illichevsky Court to examine the merits of the case.
23. On 6 April 1999 an expert of the Expert Unit, following an additional examination carried out as a part of the criminal investigation, found that the signature on the authority form had not been made by the applicant.
24. The proceedings before the Illichevsky Court resumed on 4 June 1999.
25. On 22 June 1999 the Illichevsky Court, following a request of Mrs S., ordered a further expert examination of the signature.
26. On 12 August 1999 the Institute informed the Illichevsky Court that the examination could not be carried out as Mrs S. had failed to pay the expert's fee.
27. The proceedings resumed on 21 December 1999, but were adjourned due to the applicant's and his lawyer's absence. As the applicant failed to appear for the hearings scheduled for 4 and 10 January 2000, on the latter date the Illichevsky Court dismissed his claims and, noting that Mrs S. had withdrawn her eviction action as by that time the applicant had moved out of the disputed flat (see paragraph 5 above), discontinued the proceedings. The applicant filed an appeal against this decision and asked for leave to appeal out of time.
28. On 10 January 2000 the Illichevsky Court granted the applicant leave to appeal out of time.
29. On 29 February 2000 the Regional Court allowed the applicant's appeal and ordered that the proceedings before the first instance court be continued.
30. The proceedings resumed on 22 June 2000. The applicant asked the Illichevsky Court to hear his case in his absence. The court decided that the applicant's presence was indispensable for the determination of the case and adjourned the proceedings until 14 September 2000.
31. Between 14 September and 17 November 2000 the Illichevsky Court fixed seven hearings, one of which was cancelled due to the applicant's lawyer's failure to appear. During this period the applicant's lawyer made four unsuccessful challenges to the impartiality of the presiding judge.
32. On 17 November 2000 the Illichevsky Court, basing its reasoning principally on the expert's report of 8 May 1997, rejected the applicant's claim as unsubstantiated. The applicant appealed.
33. On 13 March 2001 the Civil Division of the Regional Court (hereafter “the Civil Division”) granted the applicant's appeal and quashed the judgment of 17 November 2000, holding that the Illichevsky Court had failed to attach due weight to the evidence collected in the course of criminal investigation against Mr O. and had overestimated the importance of the expert's report of 8 May 1997.
34. On 20 June 2001 the President of the Regional Court lodged a protest (an extraordinary appeal) with the Presidium of the Regional Court (hereafter “the Presidium”) against the ruling of 13 March 2001. He considered that the judgment of 17 November 2000 had been quashed by the Division unreasonably and that the first instance court had correctly established the relevant facts, and had given cogent reasons for its decision.
35. The protest was examined on 27 June 2001 by the Presidium under the chairmanship of the President of the Regional Court. Having accepted the reasons set out in the protest, the Presidium quashed the ruling of 13 March 2001 and upheld the judgment of 17 November 2000, which became final and binding immediately. Neither the applicant nor his representative was invited to comment upon the protest or to participate in the hearing before the Presidium.
36. On 20 August 2001 the decision of the Presidium, together with the case-file, was sent to the Illichevsky Court.
37. On 13 August 2001 the applicant sent a letter to the Regional Court requesting it to account for the delay in the proceedings. On 28 August 2001 the Regional Court informed the applicant about its Presidium's decision and sent him a copy.
38. On 19 September 2001 the applicant lodged an appeal against the decision of 27 June 2001 under the new cassation procedure.
39. On 13 November 2001 the Supreme Court decided not to deal with the appeal because the applicant had failed to meet the relevant procedural requirements, namely clearly to specify which law he alleged to have been breached by the lower courts and in what way.
40. On 25 January 2002 the Illichevsky Court adjourned consideration of the applicant's cassation appeal and suggested that he remedy its shortcomings by 11 February 2002.
41. On 18 February 2002 the Illichevsky Court dismissed the applicant's cassation appeal because he had failed to comply with the relevant procedural requirements.
42. The outcome of the criminal proceedings against Mr O. is unknown.
43. The parts of the Code of Civil Procedure (as in force at the material time) relating to the supervisory review and of the Law on the Introduction of Changes to the Code of Civil Procedure of 21 June 2001 are set out in the judgment of 9 November 2004 in the case of Svetlana Naumenko v. Ukraine (no. 41984/98, §§ 65- 66).
44. Article 321 of the Code of Civil Procedure, as in force at the relevant time, provided that the rulings of the courts of appellate instance were not subject to appeal and became final and binding upon their issuance.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-69424
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KOLANIS v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: No violation of Art. 5-1-e;Violation of Art. 5-4;Violation of Art. 5-5;No separate issue under Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: 7. The applicant was born in 1972 and lives in London.
8. On 2 February 1998 the applicant was convicted of causing grievous bodily harm with intent. She was found to be suffering from a mental illness. She was detained in hospital pursuant to sections 37 and 41 of the Mental Health Act 1983 (“the 1983 Act”). She applied to a Mental Health Review Tribunal (“MHRT”) for her discharge from detention in hospital.
9. On 24 May 1999 the MHRT first considered her application. It adjourned in order, inter alia, to obtain a psychiatric report from a Dr Hamilton which was to address the eligibility of the applicant for a conditional discharge from hospital.
10. On 16 August 1999 the MHRT resumed its hearing of the applicant's application. It had before it the report of Dr Hamilton, which expressed the view that the applicant was not ready for discharge. Furthermore, the psychiatrist in charge of the applicant's care, Dr O'Grady, and a social worker gave evidence to the MHRT stating that they were opposed to the applicant's discharge. They proposed that the applicant should instead be transferred to hostel-type accommodation, under the care of a supervising consultant psychiatrist.
11. The MHRT nevertheless concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside at the home of her parents, that she should cooperate with supervision by a social worker and a forensic consultant psychiatrist, and that she should comply with such treatment as might be prescribed for her.
12. In coming to its decision, the MHRT answered the three questions below as follows:
The MHRT expressed the following as a part of its reasoning:
“The Tribunal is satisfied ... that the patient is now suffering from mental illness, namely schizophrenia, the symptoms of which are being fully controlled by medication and that she needs ongoing treatment and medication in order to control her illness.
The patient ... has been symptom-free for at least the last 8 to 12 months.
...
... in view of the possibility of a relapse, she should remain liable to be recalled to hospital for further treatment.”
13. The MHRT deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed.
14. On 30 September 1999 the psychiatrist responsible for supervising the applicant in the community, Dr Kennedy, saw her with two members of his team. He concluded that he was not prepared to supervise her if she were at home but only if she were in supported accommodation. He described his consultation with the applicant in a letter to Dr O'Grady, dated 6 October 1999, in which he wrote, inter alia:
“I made it clear that I would not consider it safe to supervise [the applicant] if she were to go straight home to the care of her parents, as there are important areas of her treatment in which she has not yet made sufficient progress for anyone to be confident that she would not relapse and reoffend while there.”
15. Dr Kennedy made clear that he was in no doubt that the next stage in the applicant's treatment, rehabilitation and risk management should take place near her family, but in a medium-security unit or at a registered mental nursing home. Alternatively, he suggested asking one of his colleagues, or one of the general psychiatrists at St Anne's Hospital, whether they would be willing to supervise the applicant on conditional discharge to her parents' home.
16. On 11 October 1999 Dr O'Grady wrote to the MHRT. He stated that the purpose of his letter was to give the MHRT advance notice that his team was unable to meet the conditions set by the tribunal for the conditional discharge of the applicant. He explained that both Dr Hamilton and Dr Kennedy were agreed that it would be difficult to manage her should she be discharged directly to her parents' home. He continued:
“In the circumstances, I believe it is highly unlikely that there will be another forensic psychiatrist willing to provide the supervision that is necessary to meet the conditions of the tribunal ... We continue to hold the view that it is not in her best interests to be discharged directly to her family but [that she] should go through a further period of rehabilitation in the community to prepare her fully for community living.”
17. On 19 October 1999 Dr O'Grady again wrote to the MHRT informing it that he would write to the other consultant forensic psychiatrists in the North London Forensic Service (“the NLFS”) to enquire whether they would be prepared to supervise the applicant under the conditions laid down by the tribunal. As it transpired, none of those psychiatrists was prepared to do so.
18. On 15 November 1999 the health authority responsible for the area in which the applicant lived (“the health authority”) requested the director of the NLFS to approach forensic colleagues working in the private sector to establish whether they might be willing to offer supervision.
19. On 2 December 1999 the NLFS informed the health authority that the applicant's new responsible medical officer, Dr Duffield, was not satisfied that the applicant should return home. However, he had agreed to approach all local catchment area forensic consultant psychiatrists to determine whether they would be willing to provide after-care supervision for the applicant were she to be discharged to her parents' home.
20. On 15 December 1999 the NLFS wrote to the health authority to confirm that no consultant forensic psychiatrist from the NLFS was willing to supervise the applicant in the community. Furthermore, it stated that it was not aware of any individual or organisation that would be suitably equipped to undertake such a task in the community. The letter noted that most private independent sector providers concentrated on acute and in-patient care only.
21. On 17 December 1999 Dr Duffield wrote to the MHRT to advise it that its conditions had not been complied with so far, and the reasons therefor.
22. In December 1999 and January 2000 the health authority wrote to the clinical directors of the forensic psychiatry services in London, Hertfordshire and Essex, identifying nine units in addition to the NLFS. They were asked to discuss the case urgently with their consultant colleagues to establish whether any of them was prepared to assess the applicant with a view to becoming her supervising consultant forensic psychiatrist under the terms laid down by the MHRT. None was willing or able to assist.
23. The health authority subsequently wrote to both national and private institutions in Cambridgeshire and Northamptonshire with the same request. Once again, no one was prepared to comply with the conditions set by the MHRT.
24. The health authority concluded that there were no further steps that it could take.
25. On 3 March 2000 Dr Kennedy wrote to the Home Office, advising it of his opinion that the conditions imposed by the MHRT were impossible to meet. He therefore requested the Home Secretary to consider exercising his powers under section 71(1) of the 1983 Act to refer the applicant to an MHRT. The Home Secretary complied with that request on 17 March 2000.
26. On 3 December 1999 the applicant issued proceedings for judicial review of the decision of the health authority not to provide her with psychiatric supervision in the community in implementation of the conditions imposed by the MHRT, which was preventing her discharge from hospital. She sought, inter alia, the quashing of that decision and/or an order to compel the health authority to provide her with the psychiatric treatment necessary to implement the conditions imposed by the MHRT.
27. On 18 January 2000 the High Court granted the applicant permission to apply for judicial review. The Secretary of State for Health declined to intervene in the proceedings, but made the following observations:
“The Mental Health Act provides an established legislative framework in this and similar cases designed to safeguard the interests of patients. As part of this scheme Responsible Medical Officers are accountable in a way which clearly does not permit them to effectively deny the determinations of properly constituted Mental Health Review Tribunals ... It is a matter for the Tribunal whether they decide to order a conditional discharge against the advice of the [Responsible Medical Officer].”
28. On 9 June 2000 the High Court judge (Mr Justice Burton) heard the applicant's substantive application for judicial review. The applicant argued that she was entitled to be discharged from hospital; that the health authority was in breach of its duty under section 117 of the 1983 Act for failing to provide her with the necessary services to comply with the conditions of the MHRT; and that the failure to comply with those conditions within a reasonable period of time was in breach of Article 5 of the Convention.
29. The judge rejected the applicant's application. He held that, under section 117 of the 1983 Act, the health authority was not under an absolute duty to implement the conditions of the MHRT, but only a duty to take all reasonable steps to attempt to satisfy those conditions. The judge further held that, on the facts, the health authority had complied with that duty. He further rejected the applicant's suggestion that any of the psychiatric consultants had “thwarted” the conclusions of the MHRT, holding that doctors were both entitled and obliged to exercise their own professional judgment.
30. On 24 August 2000, following the reference by the Home Secretary on 17 March 2000 (see paragraph 25 above), a differently constituted MHRT considered the applicant's case afresh. It concluded that the applicant should be conditionally discharged. The conditions were that the applicant should reside in accommodation approved by her responsible medical officer, that she accept to be supervised and take the medication prescribed by the latter, and that she accept to be supervised by her social supervisor.
31. The MHRT gave the same answers as the first MHRT to the questions set out in paragraph 12 above. It also deferred the discharge of the applicant until satisfactory arrangements had been made to meet the conditions it had imposed. It further expressed the following as part of its reasoning:
“... we consider that it is appropriate that [the applicant] should remain liable to recall to hospital. The critical issue, we feel, is that Miss Kolanis's current good mental health is dependent, in our view, upon her continuing to receive her medication.
Our hope and expectation is that the condition as to residence which we have imposed will be capable of being complied with within a relatively short period. We consider that, bearing in mind that Miss Kolanis had a legitimate expectation a year ago of being released into the community almost at once, her [Responsible Medical Officer] and the other responsible authorities should treat the finding of suitable accommodation for her as urgent. Having seen Miss Kolanis, it is clear to us that she is a very personable woman and we find it difficult to conceive of any responsible body having any legitimate objection to accommodating her.”
32. On 23 December 2000 the applicant was conditionally discharged from hospital to a resettlement project hostel in London.
33. Subsequently, the Court of Appeal granted the applicant permission to appeal against the judgment of the High Court of 9 June 2000 in her judicial review proceedings. It recognised that, in the light of the applicant's conditional discharge, which had occurred subsequent to the judgment of the High Court, the issues raised on appeal were, in one sense, academic. However, permission to appeal was granted as a result of the importance of the issues raised.
34. On 21 February 2001 the Court of Appeal dismissed the applicant's appeal. It agreed with the interpretation of section 117 of the 1983 Act that had been the basis of the decision of the High Court judge (see paragraph 29 above).
35. In paragraph 16 of his judgment, Lord Phillips set out the effect of an earlier judgment of the House of Lords in R. v. Oxford Regional Mental Health Review Tribunal, ex parte Secretary of State for the Home Department [1987] 3 All England Law Reports 8 (“Oxford”) as follows:
“Should, for any reason, it prove impossible to implement the conditions specified by a Tribunal, that Tribunal could not consider whether to impose alternative conditions or even to direct discharge of the patient without conditions. In such circumstances the patient would remain detained unless and until a fresh reference was made to a Tribunal. The patient was not entitled himself to initiate a reference for twelve months. The Secretary of State was under no similar restriction, but in practice a considerable length of time would be likely to elapse before the matter came back before the Tribunal pursuant to a reference by the Secretary of State. The implications of this state of affairs were considered by the European Court of Human Rights in Johnson v. the United Kingdom ...”
At the time at which the facts in the present case arose, no separate relief was available to the applicant under the Human Rights Act 1998 (which incorporated the Convention directly into domestic law). Nevertheless, Lord Phillips proceeded on the basis that, where there was no conflict with precedent, the correct approach had always been to interpret legislation in a manner that was consistent with the Convention. He therefore addressed the human rights issues in the case as follows:
“32. Does the legislative scheme, as interpreted in [Oxford], violate the right to liberty conferred by Article 5 of the [Convention]? In considering this question it is necessary to distinguish between two different situations. The first is a case, such as the present, where the Tribunal concludes that the patient is mentally ill and requires treatment, but that under appropriate conditions such treatment can be provided in the community. The second is where, as in the case of Johnson, the Tribunal finds that the patient is no longer suffering from mental illness, is not in need of treatment but needs to be discharged into a controlled environment in order to reduce the stress involved, to make sure that the patient is indeed free of the illness and to reduce the risk that the illness may recur.
33. Where (i) a patient is suffering from mental illness and (ii) treatment of that illness is necessary in the interests of the patient's own health or for the protection of others and (iii) it proves impossible or impractical to arrange for the patient to receive the necessary treatment in the community, it seems to me that the three criteria identified by the European Court in Winterwerp are made out. Whether or not it is necessary to detain a patient in hospital for treatment may well depend upon the level of facilities available for treatment within the community. Neither Article 5 nor Strasbourg jurisprudence lays down any criteria as to the extent to which member States must provide facilities for the care of those of unsound mind in the community, thereby avoiding the necessity for them to be detained for treatment in hospital.
34. If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a Tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by Article 5.
35. Very different considerations apply to a factual situation such as that considered by the Strasbourg Court in Johnson. Where a patient has been cured of mental illness, he is no longer of unsound mind and the exception to the right to liberty provided for by Article 5 § 1 (e) does not apply. In Johnson the Court has recognised that, in such circumstances, it may nonetheless be legitimate to make discharge of the patient conditional rather than absolute and to defer, to some extent, the discharge to which the patient is entitled. The deferral must, however, be proportionate to its object and cannot become indefinite. The decision in Johnson suggests that the statutory regime as interpreted in [Oxford], may not be consistent with Article 5. If the Tribunal imposes a condition which proves impossible of performance, too lengthy a period may elapse before the position is reconsidered as a result of a subsequent referral.
36. The solution to the problem is not to interpret section 117 in such a way as to impose on health authorities an absolute obligation to satisfy conditions imposed by Tribunals. I do not consider it appropriate in this case to attempt to provide a definitive answer to the problem. I would simply observe that the solution may well involve reconsidering the decision of the House of Lords in [Oxford]. ...”
36. During the course of his judgment, Lord Justice Buxton opined as follows:
“39. The effect of Article 5 § 4 of the [Convention] is to entitle a person in the situation of [the applicant] to have the lawfulness of her detention decided by a body, within the system of the State that is detaining her, that has appropriate court-like characteristics. In the case of the United Kingdom, that court-like function is performed by the Mental Health Review Tribunal (MHRT). One necessary characteristic of such a body, if it is to meet the requirements of Article 5 § 4, is that its orders should be effective in securing the release of persons whose detention it rules to be unlawful: see ... X v. the United Kingdom[judgment of 5 November 1981, Series A no. 46] ...
40. In the present case, the MHRT concluded that the detention of [the applicant] would be unlawful once the conditions upon which her release was contingent were put in place. Those conditions, in particular, included cooperation by [the applicant] with supervision by a forensic consultant psychiatrist; and therefore, by necessary implication, provision of such supervision by the appropriate organ of the State. If that order were to be effective, as Article 5 § 4 requires, such supervision had to be provided.
41. Johnson ..., paragraphs 66 and 67, seems to me to make clear, in accordance with that requirement of effectiveness, that a breach of Article 5 § 1 is committed by the State if, once the MHRT has determined that a patient should be released, it imposes conditions to facilitate that release that in the event are not fulfilled, at least if the non-fulfilment can be attributed to another organ of the State.
42. In applying that part of the Court's jurisprudence, I would not make the distinction drawn by [Lord Phillips], in paragraph 32 of his judgment, and based on the approach of the Strasbourg Court in Winterwerp, between cases where the MHRT concludes that the patient is mentally ill, but can be treated in the community, and cases (such as Johnson itself) where the MHRT finds that the patient is no longer suffering from mental illness but nonetheless needs to be released into a controlled environment. In the latter case, the justification for the placing of continued restrictions on the subject relates, and can only relate, to the history of mental illness and, as in Johnson, to the prospect of recurrence. In both cases, there is continued detention; the role of the MHRT in both cases is to exercise the court-like functions required by Article 5 § 4, and under the jurisprudence of Article 5 § 4 the national authorities are equally bound to respect and act on the determination of the MHRT in either case.
43. There is also a practical difficulty in applying the Winterwerp criterion of whether the mental disorder is 'of a kind or degree warranting compulsory confinement' to decisions that were not taken with that formulation expressly in mind. In [the applicant's] case, the MHRT answered 'Yes' to the question: 'Is the Tribunal satisfied that the patient is not now suffering from mental illness ... of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment?', but in their extended reasoning made it clear that any discharge must be subject to the provision of continuing treatment. That is not a clear-cut decision of the type that Winterwerp seems to assume.
44. However that may be, under the [Convention] jurisprudence ... once the MHRT made a decision as to [the applicant's] release that was contingent on the provision of forensic psychiatric supervision, it became the responsibility of the State to provide that supervision. Otherwise, if nothing was done, the situation would arise that was identified in paragraph 67 of the judgment in Johnson, of indefinite deferral of the release that had been ordered by the MHRT. That deferral would arguably entail a breach of the [Convention]. The issue would depend on whether, once the MHRT had determined that her condition could and should be treated in the community, she was, in terms of the analysis in Winterwerp, suffering from a mental disorder of a kind or degree warranting compulsory confinement. I have already indicated the difficulty of this question. We received no submissions upon it, the argument being concentrated in another direction, and I certainly do not decide the issue here.
45. In raising the possibility that [the applicant's] detention became unlawful I have not overlooked [Lord Phillips's] view, set out in paragraph 33 of his judgment, that such a conclusion may be controlled or affected by the availability of treatment facilities in the particular community involved; but what matters in [Convention] terms is the ruling of the MHRT, the determining body created by Article 5 § 4. If the ruling of the MHRT is frustrated, in a case where under the [Convention] jurisprudence the subject should no longer be detained, then the subject is deprived of her Article 5 § 4 protection, as (I think it to be clear) the [Court] would have held in Johnson had the issue not been determined already under Article 5 § 1: see paragraphs 69-72 of the judgment.
46. I well accept that this conclusion entails a number of practical difficulties, not least that it might appear to lead to the release of a person who is or has been mentally ill without the support that the MHRT thought necessary for that release. That may appear surprising, not only in common-sense terms, but also in view of the emphasis placed in the jurisprudence of the [Convention] upon the judgment of the national authorities: see for instance the observations of the [Court] in Luberti v. Italy [judgment of 23 February 1984, Series A no. 75] at paragraph 27 as to the relevance in this context of the doctrine of the margin of appreciation; and the observations in paragraph 63 of the judgment in Johnson as to the respect to be paid to the discretionary judgment of those responsible for dealing with the mentally ill. The problem in this case arises, however, from the rigidity of the required procedure of the MHRT that is identified in paragraphs 16 and 36 of [Lord Phillips's] judgment. If the MHRT indeed had the power to review its decisions in the light of practical circumstances, as was envisaged by Woolf J in [Oxford], then difficulties of the present order would not arise; and provided that the national authorities made all reasonable efforts to comply with provisional decisions of the MHRT I very much doubt that any objection to such a procedure would arise under the [Convention]. That, however, is not the present state of domestic law: the decision of the MHRT being once and for all, that is the decision that Article 5 § 4 requires to be respected.
...
48. ... [the applicant] may have a complaint under Article 5 in relation to the whole circumstances that led to her continued detention: including, in particular, that the MHRT having ruled that her continued detention was not justified, the implementation by the State of that order in the event caused her to continue to be detained. The State is responsible for the whole of these circumstances. That, presumably, is why the State was found to be in breach in Johnson from the original date of the MHRT's decision: see the last sentence of paragraph 67 of the judgment. The circumstances of [the applicant's] case might, therefore, by the same token found a successful complaint in Strasbourg.”
37. Lord Justice Sedley, during the course of his judgment, expressed the following view (in paragraphs 55 and 56):
“... more than one legitimate judgment – that of the community psychiatrist as well as of the MHRT – may have to be accommodated for the purposes of Article 5 § 4, at least to the extent that the decision of the MHRT is explicitly dependent on the collaboration of the psychiatrist.
... I am rather less positive than Buxton LJ in looking to Strasbourg to afford [the applicant] a remedy that cannot be afforded here. It seems to me ... that the legislative scheme, while not always satisfactory in practice, is Convention-compliant in principle.”
38. On 3 July 2001 the House of Lords refused the applicant's petition of appeal against the judgment of the Court of Appeal.
39. Section 1(2) of the Mental Health Act 1983 (“the 1983 Act”) defines “mental disorder” as “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind”.
40. Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”).
41. The court can only make a hospital order if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder (see paragraph 39 above) and that
“the mental disorder ... is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37(2)(a)(i))
and
“the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37(2)(b).
42. Under section 37(7), a hospital order must specify the form or forms of mental disorder from which the offender is suffering, as confirmed by the evidence of two practitioners.
43. Under section 41(1) of the 1983 Act, where a hospital order is made by the Crown Court, and it appears to the court, having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large, that it is necessary for the protection of the public from serious harm to do so, the court may further order that the offender shall be subject to certain specified restrictions, detailed in section 41 of the Act. Such an order is called a “restriction order” and may be made either without limit of time or for the period specified in the order.
44. The purpose of an MHRT is to deal with applications and references by and in respect of patients under the provisions of the 1983 Act (section 65(1)).
45. Under section 70 of the 1983 Act, a person who is subject to a hospital order and a restriction order (“a restricted patient”) may apply to an MHRT for a review of his or her detention in hospital:
(i) initially after a period of between six and twelve months' detention;
(ii) thereafter, annually.
46. Under section 71(1) of the 1983 Act, the Secretary of State may at any time refer the case of a restricted patient to an MHRT. This power is discretionary. The Secretary of State therefore cannot be compelled by a patient to exercise it.
47. Under section 73(1) and (2), read in conjunction with section 72(1), of the 1983 Act (as they were at the time when the facts giving rise to the applicant's case occurred, the sections having subsequently been amended), where an application was made to an MHRT by a restricted patient or where his case was referred to it by the Secretary of State, the MHRT was required to direct the absolute discharge of the patient if it was satisfied:
(a) (i) that the patient was not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or
(ii) that it was not necessary for the health or safety of the patient or for the protection of other persons that the patient should receive such treatment (section 73(1) of the 1983 Act); and
(b) that it was not appropriate for the patient to remain liable to be recalled to hospital for further treatment (section 73(2) of the 1983 Act).
48. Pursuant to section 73(3), upon an absolute discharge, the patient ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect.
49. Under section 73(2) of the 1983 Act, where an MHRT is satisfied as to either of the matters referred to in (a), but not as to the matter referred to in (b) in paragraph 47 above, it is required to direct the conditional discharge of the patient.
50. Lady Justice Butler-Sloss, giving judgment in R. v. Merseyside Mental Health Review Tribunal, ex parte K. [1990] 1 All England Law Reports 699-700, explained the nature of this power as follows:
“Section 73 gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital. This would appear to be a provision designed both for the support of the patient in the community and the protection of the public, and it is an important discretionary power vested in an independent tribunal, one not lightly to be set aside in the absence of clear words.”
51. By virtue of section 73(4) of the 1983 Act, a patient who has been conditionally discharged may be recalled by the Secretary of State. In addition, that patient must comply with the conditions attached to the discharge. In contrast to a patient who has been absolutely discharged, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order.
52. Under section 73(7) of the 1983 Act, an MHRT can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to its satisfaction.
53. As set out above, in the applicant's domestic case in the Court of Appeal (R. (K.) v. Camden and Islington Health Authority [2001] England and Wales Court of Appeal (Civil Division) 240), Lord Phillips considered the effect of the House of Lords' decision in Oxford. He concluded that if it proved impossible to implement the conditions specified by an MHRT, the patient would remain detained unless and until a fresh reference were made to an MHRT. The original MHRT that imposed the conditions did not have any power to reconsider its decision.
54. A patient's case can therefore only be reconsidered by a differently constituted MHRT. In those circumstances the case must be considered afresh.
55. The Secretary of State may also order a patient's conditional or absolute discharge under section 42 of the 1983 Act.
56. Section 117(2) of the 1983 Act reads as follows:
“It shall be the duty of the health authority and of the local social services authority to provide, in cooperation with relevant voluntary agencies, after-care services for any person to whom this section applies ...”
57. As set out above, the Court of Appeal in the applicant's domestic case (cited above) held that the duty imposed by section 117(2) was not absolute. It was a duty to take all reasonable steps to attempt to satisfy the conditions imposed by the MHRT.
58. In R. (I.H.) v. Secretary of State for the Home Department and Another [2002] England and Wales Court of Appeal (Civil Division) 646, decided on 15 May 2002, the Court of Appeal considered the question of whether sections 73(2) and/or 73(7) of the 1983 Act were incompatible with Article 5 §§ 1 (e) and/or 4 of the Convention in that MHRTs lacked the power to guarantee that conditions they might attach to a deferred order for conditional discharge would be implemented within a reasonable period of time. The case, similarly to that of the applicant, involved a patient who was suffering from a mental illness, but one which was in remission. It was decided subsequently to the applicant's domestic case and was brought under the Human Rights Act 1998. It therefore took into account the judgments in the applicant's domestic proceedings, the Convention and Strasbourg jurisprudence.
59. In paragraph 53 of his judgment, Lord Phillips confirmed that the decision of the House of Lords in Oxford made clear that an MHRT was neither obliged nor entitled to reconsider its earlier decision in respect of a conditional discharge in order to accommodate any new facts that might cause it to alter that decision.
Lord Phillips continued, in paragraph 54:
“... the decision in [Oxford] is in potential conflict with the requirements of Article5 § 4. If, having made a decision that a patient is entitled to a conditional discharge, subject to specific conditions which necessitate deferral of the discharge, the Tribunal cannot revisit its decision, the patient is liable to find himself 'in limbo' should it prove impossible to put in place the arrangements necessary to enable him to comply with the proposed conditions. That period 'in limbo' may last too long to be compatible with Article 5 § 4 and may result in the patient being detained in violation of Article 5 § 1.”
Lord Phillips therefore determined that the decision in Oxford needed to be reviewed in the light of the requirements of Article 5 of the Convention. He concluded, in paragraph 71:
“Tribunals should no longer proceed on the basis that they cannot reconsider a decision to direct a conditional discharge on specified conditions where, after deferral and before directing discharge, there is a material change of circumstances. ... The original decision should be treated as a provisional decision, and the Tribunal should monitor progress towards implementing it so as to ensure that the patient is not left 'in limbo' for an unreasonable length of time.”
Lord Phillips then gave guidelines to MHRTs considering the discharge of a patient. The guidelines comprised specific steps that could be taken by an MHRT should problems arise with making arrangements to meet the conditions of a conditional discharge. Those steps included the possibility of deferring for a further period, varying the proposed conditions to seek to overcome the difficulties, ordering a conditional discharge without specific conditions or deciding that the patient had to remain detained in hospital for treatment. The Court of Appeal concluded (in paragraphs 96-98) that such a scheme, proposed in the light of its review of the decision of the House of Lords in Oxford, would be compatible with Article 5 § 1 of the Convention.
60. Following an appeal to the House of Lords, on 13 November 2003, Lord Bingham, in his judgment with which the other members of the House of Lords agreed, held:
“18. The key to a correct understanding of Johnson is to appreciate the nature of the case with which the Court was dealing. It was that of a patient who, from June 1989 onwards, was found not to be suffering from mental illness and whose condition did not warrant detention in hospital. The Court's reasoning is not applicable to any other case.
...
26. I do not accept that, because the tribunal lacked the power to secure compliance with its conditions, it lacked the coercive power which is one of the essential attributes of a court. What Article 5 §§ 1 (e) and 4 require is that a person of unsound mind compulsorily detained in hospital should have access to a court with power to decide whether the detention is lawful and, if not, to order his release. This power the tribunal had. Nothing in Article 5 suggests that discharge subject to conditions is impermissible in principle, and nothing in the Convention jurisprudence suggests that the power to discharge conditionally (whether there are specific conditions or a mere liability to recall), properly used, should be viewed with disfavour. Indeed, the conditional discharge regime, properly used, is of great benefit to patients and the public, and conducive to the Convention object of restricting the curtailment of personal liberty to the maximum, because it enables tribunals to ensure that restricted patients compulsorily detained in hospital represent the hard core of those who suffer from mental illness, are a risk to themselves or others and cannot be effectively treated and supervised other than in hospital. If there is any possibility of treating and supervising a patient in the community, the imposition of conditions permit that possibility to be explored and, it may be, tried.
27. When, following the tribunal's order of 3 February 2000, it proved impossible to secure compliance with the conditions within a matter of a few months, a violation of the appellant's Article 5 § 4 right did occur. It occurred because the tribunal, having made its order, was precluded by the authority of the Oxford case from reconsidering it. The result was to leave the appellant in limbo for a much longer period than was acceptable or compatible with the Convention. I would accordingly endorse the Court of Appeal's decision to set aside the Oxford ruling and I would adopt the ruling it gave in paragraph 71 of its judgment quoted above. Evidence before the House shows that that ruling is already yielding significant practical benefits. ...
28. There was no time between 3 February 2000 and 25 March 2002 when the appellant was, in my opinion, unlawfully detained, and there was thus no breach of Article 5 § 1 (e). There is a categorical difference, not a difference of degree, between this case and that of Johnson. Mr Johnson was a patient in whose case the Winterwerp criteria were found not to be satisfied from June 1989 onwards. While, therefore, it was reasonable to try and ease the patient's reintegration into the community by the imposition of conditions, the alternative, if those conditions proved impossible to meet, was not continued detention but discharge, either absolutely or subject only to a condition of liability to recall. His detention became unlawful shortly after June 1989 because there were, as all the doctors agreed, no grounds for continuing to detain him. The present case is quite different. There was never a medical consensus, nor did the tribunal find, that the Winterwerp criteria were not satisfied. The tribunal considered that the appellant could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention. ...
29. The duty of the health authority, whether under section 117 of the 1983 Act or in response to the tribunal's order of 3 February 2000, was to use its best endeavours to procure compliance with the conditions laid down by the tribunal. This it did. It was not subject to an absolute obligation to procure compliance and was not at fault in failing to do so. It had no power to require any psychiatrist to act in a way which conflicted with the conscientious professional judgment of that psychiatrist. Thus the appellant can base no claim on the fact that the tribunal's conditions were not met. ...
30. I do not consider that the violation of Article 5 § 4 which I have found calls for an award of compensation since (a) the violation has been publicly acknowledged and the appellant's right thereby vindicated, (b) the law has been amended in a way which should prevent similar violations in future, and (c) the appellant has not been the victim of unlawful detention, which Article 5 is intended to avoid.
For these reasons ... I would dismiss this appeal.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-4
5-5
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-23267
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: YILMAZOGLU v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Muammer Yılmazoğlu, is a Turkish national, who was born in 1931 and lives in Izmir. He is represented before the Court by Mr G. Dinç, a lawyer practising in Izmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 May 1980 the applicant retired from his post at the Izmir Labour Court as a judge of the highest grade. Until 25 May 1987 he worked as a lawyer.
On 25 May 1987, following a request made by the applicant, the Supreme Council of Judges and Prosecutors re-appointed him to the Manisa Labour Court as a judge.
On 21 January 1991 the applicant lodged an application with the Supreme Council of Judges and Prosecutors requesting that his salary be calculated on a different basis and be increased accordingly. He argued that the period during which he had practised as a lawyer (i.e. 7 years and 19 days) should be included into his civil service while calculating his salary.
On 26 February 1991 the Supreme Council of Judges and Prosecutors dismissed the applicant’s request.
The applicant lodged an application with the Ankara Administrative Court to annul the Council’s decision. On 21 May 1991 the Ankara Administrative Court declined jurisdiction ratione loci and referred the case to the Izmir Administrative Court.
On 17 September 1991 the Izmir Administrative Court rejected the applicant’s request. The court ruled that it was not competent to examine the applicant’s claim as the decisions of the Supreme Council of Judges and Prosecutors were final and not subject to any judicial review. The applicant learned of this judgement on 30 October 1991.
On 7 November 1991 the applicant appealed to the Supreme Administrative Court against the judgment of the Izmir Administrative Court.
On 13 June 1995 the Supreme Administrative Court dismissed the applicant’s appeal. The decision of the Supreme Administrative Court was served on the applicant on 30 October 1995.
On 11 November 1995 the applicant requested the rectification of the Supreme Administrative Court’s decision. On 22 January 1997 the Supreme Administrative Court dismissed the applicant’s request for rectification of the decision.
According to Article 11 of the Act no. 2461 on the High Council of Judges and Prosecutors, the Minister of Justice or interested parties can ask the Council for the rectification of a decision within 10 days from its notification.
Article 12 of the same Act provides that the interested parties can object to the Council’s decision on rectification within 10 days from the date on which the decision is served on them. A committee presided over by the Minister of Justice examines the objection. The decision of the committee is definite. No appeal against this final decision can be lodged before another judicial authority.