ITEMID: 001-127227
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF DAMJANAC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction dismissed (out of time)
JUDGES: Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 6. The applicant was born in 1926 and lives in Belgrade.
7. The general pension system of the former Socialist Federal Republic of Yugoslavia (hereinafter “the SFRY”) was set up on the principle of territoriality. This meant that each federal entity, namely the six republics (Croatia, Slovenia, Bosnia and Herzegovina, Serbia, Macedonia and Montenegro) and two autonomous provinces (Vojvodina and Kosovo), had their own pension funds, which were independent of federal government and were responsible for the collection of contributions and the payment of pensions to all individuals who had been working on the territory of the respective republic or province. The pension system was based on the “pay-as-you-go” model and the principle of inter-generational solidarity, which was essentially based on the payment of mandatory contributions during the years of employment and then receiving the pension by instalments once retired.
8. The military pension system differed, in that it was centralised at the federal level. On 1 January 1973 under, at the relevant time, the Military Personnel Pension and Invalidity Insurance Act (Zakon o mirovinskom i invalidskom osiguranju vojnih obveznika) a federal pension fund was established for employees of the Yugoslav People’s Army (hereinafter “the YPA”) with its registered headquarters in Belgrade. Contributions to this fund were paid from the federal budget, and the fund then paid pensions to military pensioners, irrespective of the location of their military service or where they lived once retired.
9. On 25 June 1991 the Croatian Parliament (Sabor Republike Hrvatske) declared Croatia independent of Yugoslavia, and on 8 October 1991 all relations between Croatia and the SFRY federal Government were dissolved. The SFRY Military Personnel Pension and Invalidity Insurance Act was incorporated into the Croatian legal system by the Military Personnel Federal Pension, Invalidity Insurance and Child Support Legislation (Acceptance in the Republic of Croatia as Republic Law) Act (Zakon o preuzimanju saveznih zakona iz oblasti mirovinskog i invalidskog osiguranja i doplatka za djecu vojnih osiguranika koji se u Republici Hrvatskoj primjenjuju kao republički zakoni), enacted by the Parliament on 26 June 1991.
10. On 23 July 1992 the Government of Croatia enacted a decree on “Pension and Invalidity Rights of Persons Whose Active Military Service in the YPA Terminated Prior to 31 December 1991” (Uredba o ostvarivanju prava iz mirovinskog i invalidskog osiguranja osoba kojima je prestalo svojstvo aktivne vojne osobe u bivšoj JNA do 31. prosinca 1991.; hereinafter: “the Military Pensions Decree”). The Military Pensions Decree laid down conditions for recognition of the right to advance payments of pensions (akontacija) to former YPA military personnel, provided that they had terminated their military service prior to 31 December 1991, but had not obtained pension rights prior to that date, and that they met all the necessary conditions to be granted a pension under the Military Personnel Pension and Invalidity Insurance Act (see paragraph 8 above). The Military Pensions Decree set out three additional complementary conditions: (1) residence in Croatia, (2) Croatian nationality, and (3) that the person concerned had made himself available for service in the Croatian army prior to 31 December 1991 and was not suspected of an offence against Croatia. The Croatian Republic Workers’ Pension and Invalidity Insurance Fund (Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske; hereinafter “the Republic Workers’ Fund”) was assigned to make the necessary arrangements under this Decree.
11. On the same day the Government of Croatia also enacted a decree on “Payment of Pensions to Former SFRY Republic Pension Beneficiaries” (Uredba o isplati mirovina korisnicima koji su mirovinu ostvarili u republikama bivše Socijalističke Federativne Republike Jugoslavije). Under that decree all residents of Croatia who had been granted pensions in other republics of the former SFRY, except Slovenia, which had at the time also dissolved its relations with the SFRY federal government, were entitled to payment of their pensions by Croatia. The Republic Workers’ Fund was ordered to pay pensions from the collected contributions which Croatia was not paying to pensioners residing in other republics of the former SFRY due to the ending of financial transfers.
12. On 6 October 1993 the Croatian Parliament enacted the Yugoslav People’s Army Personnel Pensions Act (Zakon o ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika bivše JNA), which set aside the 1992 Decree (see paragraph 10 above) and part of the 1991 transitional legislation (see paragraph 9 above). Under this Act Croatia assumed responsibility for payment of YPA military pensions obtained prior to 8 October 1991, and for the granting of pensions to YPA military personnel whose service in Croatia had terminated prior to 31 December 1991.
13. Former YPA military personnel who had obtained pension rights under the former SFRY pension regime prior to 8 October 1991 had the right to have their pension paid by Croatia if their pension from the former federal fund was no longer being paid. Two further conditions were laid down: residence in Croatia and that the person concerned was not being prosecuted for certain criminal offences against Croatia, listed in section 2 of the Act. The Republic Workers’ Fund was tasked with enforcement of the Act.
14. The Act was set aside by the Pension Insurance Act (Zakon o mirovinskom osiguranju), which was enacted on 10 July 1998 and came into force on 1 January 1999. In the period relevant to this case it was amended several times (see paragraphs 50-53 below). The Pension Insurance Act regulated the compulsory pension insurance scheme on the basis of the principle of inter-generational solidarity (section 2 § 1). It established the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje), which was tasked with the management of pension affairs (section 6) thus replacing the previous Republic Workers’ Fund (section 187 §§ 1 and 3). Accordingly, the Croatian Pension Fund was tasked with the collection of pension contributions and payment of pensions and with the observance of obligations under international agreements on pensions (section 130). Under the Pension Insurance Act payment of pensions abroad was possible only under either an international agreement or a reciprocal agreement (section 88).
15. The Pension Insurance Act also provided that funds for payment of pensions to YPA military pensioners should be secured in the State’s budget, and that the necessary contributions should be paid to the Croatian Pension Fund on a monthly basis (section 152 § 1). For all Croatian nationals the Pension Insurance Act recognised pensionable years of employment in the period prior to 8 October 1991 under the Military Personnel Pension and Invalidity Insurance Act (see paragraphs 8 and 9 above) as pensionable years of employment (section 186).
16. By an amendment of 29 November 2001 the pensions of, inter alia, YPA military pensioners were reduced and the Croatian Pension Fund was ordered to set the amended levels of their pensions.
17. On 15 September 1997 Croatia and the then Federal Republic of Yugoslavia (later Serbia and Montenegro) signed a Social Insurance Treaty (Ugovor o socijalnom osiguranju), hereinafter “the Social Insurance Treaty”), which came into force on 1 May 2003. The Social Insurance Treaty listed the relevant domestic legislation to which it was applicable, namely health insurance and health protection legislation; pension and invalidity insurance legislation; legislation on work-related accidents and work-related illnesses; and unemployment benefits. It was applicable to all persons in the two countries who had rights and duties under the relevant domestic legislation. The right to payment of a pension abroad existed irrespective of the place of residence of the pension beneficiaries within one of the contracting States. The Republic Workers’ Fund was designated the competent liaison authority in Croatia concerning all pension issues (see paragraph 54 below).
18. According to the Government, after the dissolution of the former SFRY, Serbia maintained a dual pension system for civilian and military pensioners, and stopped paying YPA military pensions to pensioners residing in Croatia. Only in January 2012 was a pension reform carried out in Serbia which had the effect of integrating the military pension fund into the civilian pension and invalidity insurance fund. On an unspecified date the Serbian authorities informed the Croatian pension authorities of this change. They also indicated that they would pay what formerly were military pensions to pensioners residing abroad under the relevant treaties on social insurance or reciprocal agreements.
19. On 29 June 2001 the republics of the former SFRY signed the Agreement on Succession Issues (Ugovor o pitanjima sukcesije, hereinafter “the Succession Agreement”), which came into force on 2 June 2004 (see paragraph 55 below).
20. Annexe E to the Succession Agreement dealt with pensions. It was based on the principle of acquired rights, in that rights acquired under one system must be acknowledged and respected in another. Article 1 established the said principle in respect of the pension rights acquired under the former republics’ pension regime (see paragraph 7 above), while Article 2 dealt with military pensions under the former federal regime (see paragraph 8 above). The latter provision stipulated that the State which had recognised the right to payment of the pensions to former SFRY military personnel should continue to pay pensions to all its nationals, irrespective of their place of residence. In cases where a person was a national of more than one republic of the former SFRY, the pension should be paid by the State where that person resided. This pension payment regime differed from the regime established for civilian pensions under Article 1 of Annexe E to the Succession Agreement, which provided that the State which had recognised the pension rights and which paid the pensions should continue with the payments entirely irrespective of the nationality or place of residence of the pension beneficiaries.
21. The applicant served as a military officer in the YPA between 1941 and 1979, when he retired. On 16 May 1979 the SFRY federal pension fund for retired YPA employees authorised the applicant’s entitlement to a military pension. At that time the applicant was residing in Dubrovnik, Croatia.
22. On 19 June 1992 the applicant requested the Dubrovnik office of the Republic Workers’ Fund (Republički fond mirovinskog i invalidskog osiguranja radnika Hrvatske, Područna služba u Dubrovniku) to recognise his entitlement to a military pension under the new Croatian legislation. The applicant substantiated his request by submitting evidence of his place of residence in Croatia at an address in Dubrovnik, evidence of Croatian citizenship, and a document from the Dubrovnik Municipal Court (Općinski sud u Dubrovniku), confirming that no criminal proceedings against him had been instituted.
23. On 7 July 1992 the Dubrovnik Office of the Republic Workers’ Fund recognised the applicant’s entitlement to a military pension, as established under the former SFRY Military Personnel Pension and Invalidity Insurance Act (see paragraph 47 below). It found that the applicant had Croatian citizenship and a place of residence in Croatia, and that the competent domestic authorities had not instituted criminal proceedings against the applicant for any offence against Croatia.
24. On 12 December 1992, acting ex officio, the Dubrovnik Office of the Republic Workers’ Fund established the amount of the applicant’s pension under the Military Pensions Decree. The pension was to be paid to the applicant as long as the necessary requirements existed.
25. On 6 May 1994 the Military Social Insurance Fund of the then Federal Yugoslav Republic Army in Belgrade, Serbia, ordered that payment of the applicant’s military pension should be stopped, on the grounds that they had been informed by the Croatian authorities that the applicant had been granted a pension in Croatia.
26. According to the applicant, in October 1998 he visited his son in Belgrade, Serbia, and decided to stay with his son for a longer period. He continued to receive payments of his pension through a representative in Dubrovnik.
27. On 9 June 2003 the applicant informed the Dubrovnik office of the Croatian Pension Fund (Područna služba u Dubrovniku Hrvatskog zavoda za mirovinsko osiguranje) that he had changed his place of residence to Belgrade, Serbia, and requested that his pension be paid to his new address. He submitted evidence of residence in Belgrade and details of his bank account in Serbia.
28. On 30 September 2003 the Croatian Pension Fund stopped payment of the applicant’s pension. It found that the Social Insurance Treaty with Serbia did not cover YPA military pensions, and that there was no reciprocal agreement with Serbia in that respect, as required under the relevant domestic law, for the payment of pensions abroad. Pension payments were stopped with effect from 1 October 2003.
29. On 16 December 2003 the applicant lodged an appeal with the Appeal Council of the Executive Council of the Croatian Pension Fund (Žalbeno vijeće Upravnog vijeća Hrvatskog zavoda za mirovinsko osiguranje) arguing that there was no legal ground for his pension to be stopped. He contended that when his pension rights had been recognised under the Military Pensions Decree he had obtained the right to receive the pension from the Republic Workers’ Fund, and that his status was therefore equal to that of other old-age pensioners. He also complained that he had not been able to obtain his pension in Serbia, since payment of his pension there had been stopped on the grounds that his entitlement to a pension had been recognised in Croatia. Finally, the applicant explained that the pension which had been stopped was his only income.
30. On 17 March 2004 the applicant lodged an administrative action in the Administrative Court (Upravni sud Republike Hrvatske) complaining that the Croatian Pension Fund had failed to decide on his appeal against the first-instance decision of the Dubrovnik office of the Croatian Pension Fund.
31. In his administrative action the applicant reiterated that by recognising his entitlement to a pension under the Military Pensions Decree he had the same status as all other pensioners in Croatia who had been receiving pensions from the Croatian Pension Fund. He explained that he had submitted his request for payment of the pension to Serbia under the Social Insurance Treaty and that the stopping of his pension had been unlawful. The applicant also complained that he and his wife had no other financial means now that his pension had been discontinued.
32. The Administrative Court invited the applicant to substantiate his action further on 18 March 2004. The applicant complied with this request, and submitted a supplemented administrative action on 3 September 2004, reiterating his previous arguments.
33. On 5 October 2004 the applicant changed his place of residence to his old address in Dubrovnik and the following day he informed the Dubrovnik Office of the Croatian Pension Fund, asking for payment of his pension to be resumed. The applicant also pointed out that the Croatian Pension Fund had never decided on his appeal against the decision to stop the payment of his pension.
34. The Appeal Council of the Executive Council of the Croatian Pension Fund dismissed the applicant’s appeal against the first-instance decision of the Dubrovnik Office of the Croatian Pension Fund as ill-founded on 24 November 2004, endorsing the reasoning of the first-instance decision.
35. On 10 January 2005 the Dubrovnik office of the Croatian Pension Fund resumed payment of the applicant’s pension. It found that the applicant had changed his place of residence to Croatia, and that all other requirements under the relevant domestic law had been met. The payment of the applicant’s pension was to be resumed with effect from 1 November 2004.
36. On 12 April 2006 the Administrative Court invited the applicant to explain whether he wanted to pursue his administrative action of 17 March 2004, since the Appeal Council of the Executive Council of the Croatian Pension Fund had decided on his appeal in the meantime.
37. On 13 November 2006 the applicant informed the Administrative Court that he wanted to pursue his administrative action. Moreover, he indicated that he wanted to extend it to the second-instance decision of the Appeal Council of the Executive Council of the Croatian Pension Fund of 24 November 2004. The applicant again argued that the change of his place of residence had not warranted in any respect, legal or factual, stopping the payment of his pension, and that therefore depriving him of his pension for the period between 1 October 2003 and 31 October 2004 had been unlawful.
38. On 8 March 2007 the Administrative Court dismissed the applicant’s administrative action as ill-founded. The relevant part of the decision reads:
“The reasoning of the impugned decision, and of the first-instance decision, is based on the fact that the plaintiff’s request for payment of the recognised military pension which he had obtained as a YPA employee prior to 8 October 1991 had been refused, because he had a place of residence in Serbia ... and the Social Insurance Treaty between the Republic of Croatia and the Federal Republic of Yugoslavia did not cover military pensions of former YPA military personnel obtained through the military [pension] fund prior to 8 October 1991. Between the Republic of Croatia and Serbia and Montenegro there is no reciprocal agreement in payment of military pensions, so the [plaintiff’s] pension cannot be paid in Serbia ...
In view of what is discernible from the case file this court finds that there has been no breach of law to the detriment of the plaintiff.
In this specific case the reasons adduced by the respondent body and the first-instance body are valid. This court finds that it was correctly held by the respondent body that it was not possible for military pensions to be paid abroad ... since it was impossible under either the Treaty or Croatian pension legislation. Payment of a pension abroad is possible under an international treaty or on the basis of a reciprocal agreement, which is not the situation in the present case.”
39. On 11 May 2007 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He contended that there had been no legal ground for stopping payment of thirteen of his pension instalments, and that his change of place of residence should not have had any adverse effects on his pension rights. In his view this had created an inequality before the law.
40. The applicant supplemented his constitutional complaint on 5 June 2007, reiterating his previous arguments.
41. On 11 March 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The decision of the Constitutional Court was served on the applicant on 21 May 2010.
42. On 24 February 2012 the applicant informed the Dubrovnik office of the Croatian Pension Fund that he had changed his place of residence to Belgrade, and asked for the pension to be paid to him in Serbia.
43. On 27 February 2012 the information submitted by the applicant was registered in the information system of the Croatian Pension Fund. Since March 2012 the applicant’s pension has been paid to him in Belgrade, Serbia.
44. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010) read as follows:
“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.
All shall be equal before the law.
Rights and freedoms may be restricted only according to law in order to protect the freedoms and rights of others, legal system, public morals and health.
Any restriction of the freedoms and rights must be proportionate with the interest involved in a particular case.
The right of ownership shall be guaranteed.
International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence in terms of their legal effects over the [domestic] statutes ...”
45. The relevant part of section 62 of the Constitutional Court Act (Official Gazette no. 49/2002, of 3 May 2002, Ustavni zakon o Ustavnom sudu Republike Hrvatske) reads as follows:
“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, concerning his or her rights and obligations, or a suspicion or an accusation of a criminal act, has violated his or her human rights or fundamental freedoms or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: a constitutional right) ...
46. The relevant provisions of the Military Personnel Federal Pension and Invalidity Insurance Legislation (Acceptance) Act (to be applicable in the Republic of Croatia as Republic Law) (Zakon o preuzimanju saveznog zakona iz oblasti mirovinskog i invalidskog osiguranja vojnih osiguranika koji se u Republici Hrvatskoj primjenjuje kao republički zakon, Official Gazette nos. 53/1991, 73/1991, 18/1992, 71/1992), enacted on 26 June 1991, read as follows:
“The Military Personnel Pension and Invalidity Insurance Act (SFRY Official Gazette nos. 7/1985, 74/1987, 20/1989) shall be accepted and applied in the Republic of Croatia as the law of the republic.
The federal financial rights and obligations under the legislation referred to in section 1 of this Act shall become rights and obligations of the budget of the Republic of Croatia.”
47. The relevant provisions of the Decree on Pension and Invalidity Rights of Persons Whose Active Military Service in the former YPA Terminated Prior to 31 December 1991 (Uredba o ostvarivanju prava iz mirovinskog i invalidskog osiguranja osoba kojima je prestalo svojstvo aktivne vojne osobe u bivšoj JNA do 31. prosinca 1991, Official Gazette nos. 46/1992, 71/1992), enacted on 23 July 1992, provided:
“A person who ceases to be an active officer in the YPA in the territory of the Republic of Croatia prior to 31 December 1991, and who has not prior to that date obtained entitlement to a pension and invalidity insurance, may obtain that entitlement if he fulfils the conditions to obtain it concerning pension and invalidity insurance in accordance with the Military Personnel Pension and Invalidity Insurance Act (Official Gazette nos. 53/91, 73/91, 18/92) and if:
- he has residence on the territory of the Republic of Croatia;
- he has Croatian nationality;
- he made himself available for service in the Croatian army prior to 31 December 1991, and criminal proceedings have not been instituted against him by the competent authorities in connection with preparation or commission of offences under Head XX of the Criminal Code of the Republic of Croatia.
The tasks under this Decree shall be carried out by the Republic Workers’ Fund according to law.”
48. The relevant provisions of the Decree on the Payment of Pensions to Republic Pension Beneficiaries in the former SFRY (Uredba o isplati mirovina korisnicima koji su mirovinu ostvarili u republikama bivše Socijalističke Federativne Republike Jugoslavije, Official Gazette no. 46/1992), enacted on 23 July 1992, provided:
“The beneficiaries of pensions ... with residence on the territory of the Republic of Croatia who have obtained pension entitlement in the republics of the former SFRY, apart from Slovenia, and who have been receiving payments in the Republic of Croatia, shall receive payments starting from the first day of the month after that in which the payment was halted due to the termination of financial transfers. The payment shall be made by the Republic Workers’ Fund ...
The funds for payment of the pensions referred to in section 1 of this Decree shall be secured from the resources of the Republic Workers’ Fund which the Republic Workers’ Fund is unable to pay to pension beneficiaries in the republics of the former SFRY because of the discontinuance of financial transfers.
The pension payments referred to in section 1 of this Decree shall be made until financial transfers between the Republic of Croatia and the republics of the former SFRY are resumed or the payment of the pensions otherwise settled.”
49. The relevant provisions of the Yugoslav People’s Army Personnel Pensions Act (Zakon o ostvarivanju prava iz mirovnskog i invalidskog osigurnja pripadnika bivše JNA, Official Gazette no. 96/1993), enacted on 6 October 1993, read as follows:
“This Act concerns the methods and conditions for recognition of the pension rights, ..., of former YPA personnel, acquired prior to 8 October 1991, ...
A beneficiary who has acquired the right to a pension ... in the Military Personnel Social Insurance Federal Fund prior to 8 October 1991, and if the payment of his pension and other payments from the federal fund has been halted, shall have that right recognised ... if he meets the following conditions:
- he has residence on the territory of the Republic of Croatia;
- he acquired the right to a pension in the Military Personnel Social Insurance Federal Fund prior to 8 October 1991;
- criminal proceedings have not been instituted against him by the competent authorities in connection with offences under Head XIV, XV and XVIII of the Basic Criminal Code of the Republic of Croatia ... Head XIX of the Criminal Code of the Republic of Croatia ... and the Offences of Incitement and Terrorism Against the Sovereignty and Territorial Integrity of the Republic of Croatia Act ... “
The Republic Workers’ Fund shall carry out the enforcement of this Act.
This Act shall substitute:
1. The Act on Acceptance of the Military Personnel Federal Pension and Invalidity Insurance Legislation Acceptance Act (to be applicable in the Republic of Croatia as Republic Law) (Official Gazette nos. 53/1991, 73/1991, 18/1992, and 71/1992) – sections 3b, 3c and 3e,
2. The Decree on Realisation of the Pension and Invalidity Rights of Persons Whose Active Military Service in the former YPA Terminated prior to 31 December 1991 (Official Gazette nos. 46/1992, 71/1992) ... “
50. The relevant provisions of the Pension Insurance Act (Zakon o mirovinskom osiguranju, Official Gazette no. 102/1998), enacted on 10 July 1998 (came into force on 1 January 1999), provided:
“(1) This Act regulates the compulsory pension insurance on the basis of the principle of inter-generational solidarity .. “
To assure the rights of employees, ... and other insured persons under this Act, the Croatian Pension Fund (hereinafter “the Fund”) shall be established.
Payment of pensions abroad shall be made under international agreements or on the basis of a reciprocal agreement.
“The Fund shall:
1) carry out all tasks concerning the exercise of pension insurance rights,
2) collect pension contributions,
3) secure enforcement of international treaties on pension insurance ...
(1) The Republic of Croatia shall secure resources in its budget for part of the pension insurance obligations arising out of the recognition of privileged pensions, namely for ...
8) pensions for former YPA personnel and for their families after their death ...
(1) Pensionable years of employment prior to 8 October 1991 under the Military Personnel Pension and Invalidity Insurance Act shall be recognised for Croatian nationals as pensionable years of employment when obtaining pension rights under this Act ...
(1) On the day this Act comes into force the Croatian Republic Workers’ Pension and Invalidity Insurance Fund ... shall cease its activities ...
(3) On the day this Act comes into force the Croatian Pension Fund, which shall inherit the resources, rights and obligations of the above Funds .... shall begin its activities.
This Act replaces: ...
5) The Yugoslav People’s Army Personnel Pensions Act (Official Gazette no. 96/1993) ...”
51. The Pension Insurance (Amendments) Act (Zakon o dopunama Zakona o mirovinskom osiguranju, Official Gazette no. 109/2001), enacted on 29 November 2001, provided:
“In the Pension Insurance Act (Official Gazette nos. 102/1998, 127/2000, 59/2001) after section 172 there shall be section 172a, which provides
Section 172a
(1) The pension beneficiaries of the former YPA ... shall have their pension payments reduced proportionally to their incomes ...
The Croatian Pension Fund shall ex officio issue a decision concerning pension reduction under section 1 of this Act.”
52. The relevant provision of the Pension Insurance (Amendments) Act (Zakon o izmjenama i dopunama Zakona o mirovinskom osiguranju, Official Gazette no. 92/2005), enacted on 15 July 2005, provided:
“In section 88 [of the Pension Insurance Act] after the words “agreement” words “on social insurance” shall be added.”
53. The Pension Insurance (Amendments) Act (Zakon o izmjenama i dopunama Zakona o mirovinskom osiguranju, Official Gazette no. 121/2010), enacted on 22 October 2010, provided:
“Section 88 shall be amended as follows: ...
(2) Payment of pensions and other benefits abroad shall be made under international agreements on social insurance or on a reciprocal basis, or under a decision of the [Croatian Pension] Fund granting the right to receive payments abroad in a State with which there is no international agreement or reciprocity.”
54. The relevant provisions of the Social Insurance Treaty between the Republic of Croatia and the Federal Republic of Yugoslavia (Zakon o potvrđivanju Ugovora između Republike Hrvatske i Savezne Republike Jugoslavije o socijalnom osiguranju, Official Gazette – International treaties no. 14/2001), signed on 15 September 1997 (came into force on 1 May 2003), provide:
“(1) This Treaty concerns:
the Croatian legislation on:
1) health insurance and health protection,
2) pension and invalidity insurance,
3) insurance against work-related accidents and work-related illnesses,
4) unemployment insurance ...
(2) This Treaty is applicable to legislation integrating, amending or supplementing the legislation referred to in § 1 of this Article.
(1) This Treaty applies to:
a) all persons to whom the relevant legislation of one or both of the contracting States applies or has applied ...
(1) Pensions, and other monetary benefits, apart from unemployment benefits, under the relevant legislation in one of the contracting States, cannot be reduced, stopped, seized or confiscated on the ground of the beneficiary’s place of residence on the territory of one of the contracting States, unless this Treaty provides otherwise ...
“To improve the enforcement of this Treaty, particularly with a view to easier and faster communication between authorities in the contracting States, the liaison body shall be:
in Croatia ... the Croatian Republic Workers’ Pension and Invalidity Insurance Fund in respect of the relevant legislation referred to in Article 2 § 1 (2) and (3) ...
(5) The responsible bodies of the contracting States may, in the enforcement of this treaty, make direct contact among themselves, as well as [contact] with interested individuals and their representatives ...”
“All disputes relating to the application or interpretation of this Treaty shall be dealt with by the competent bodies in the contracting States.”
55. Annexe E to the Succession Issues Agreement (Ugovor o pitanjima sukcesije; Official Gazette – International treaties no. 2/2004), signed on 29 June 2001 (came into force on 2 June 2004), reads:
“Each State shall assume responsibility for and regularly pay legally authorised pensions funded by that State in its former capacity as a constituent Republic of the SFRY, irrespective of the nationality, citizenship, residence or domicile of the beneficiary.
Each State shall assume responsibility for, and regularly pay, pensions which are due to its citizens who were civil or military servants of the SFRY, irrespective of where they are resident or domiciled, if those pensions were funded from the federal budget or other federal resources of the SFRY; provided that, in the case of a person who is a citizen of more than one State
(i) if that person is domiciled in one of those States, payment of the pension shall be made by that State, and
(ii) if that person is not domiciled in any State of which that person is a citizen, payment of the pension shall be made by the State in the territory of which that person was resident on 1 June 1991.
The States shall, if necessary, conclude bilateral arrangements for ensuring the payment of pensions pursuant to Articles 1 and 2 above to persons located in a State other than that which is paying the pensions of those persons, for transferring the necessary funds to ensure payment of those pensions, and for the payment of pensions at a level proportionate to the contributions made. Where appropriate, the conclusion of such definitive bilateral arrangements may be preceded by the conclusion of interim arrangements for ensuring the payment of pensions pursuant to Article 2. Any bilateral agreements concluded between any two of the States shall prevail over the provisions of this Annexe and shall resolve the issue of mutual claims between the pension funds of the States relating to payments of pensions made before such agreements entered into force.”
56. The relevant provisions of International Labour Organisation Convention 102 concerning Minimum Standards of Social Security (Konvencija 102 Međunarodne organizacije rada o najnižim standardima socijalne sigurnosti, Official Gazette – International treaties no. 1/2002), in force in Croatia as of 8 October 1991, read:
“1. Non-national residents shall have the same rights as national residents: Provided that special rules concerning non-nationals and nationals born outside the territory of the Member may be prescribed in respect of benefits or portions of benefits which are payable wholly or mainly out of public funds and in respect of transitional schemes.
2. Under contributory social security schemes which protect employees, the persons protected who are nationals of another Member which has accepted the obligations of the relevant Part of the Convention shall have, under that Part, the same rights as nationals of the Member concerned: Provided that the application of this paragraph may be made subject to the existence of a bilateral or multilateral agreement providing for reciprocity.
A benefit to which a person protected would otherwise be entitled in compliance with any of Parts II to X of this Convention may be suspended to such extent as may be prescribed:
(a) as long as the person concerned is absent from the territory of the Member ... “
57. The relevant provision of International Labour Organisation Convention 48 concerning the Establishment of an International Scheme for the Maintenance of Rights under Invalidity, Old-Age and Widows’ and Orphans’ Insurance (Konvencija 48 Međunarodne organizacije rada o utemeljenju međunarodnog sustava očuvanja prava iz osiguranja za slučaj invalidnosti, starosti i smrti, Official Gazette – International treaties no. 11/2003, hereinafter “ILO Convention 48”), in force in Croatia as of 8 October 1991, reads:
“(1) Persons who have been affiliated to an insurance institution of a Member and their dependants shall be entitled to the entirety of the benefits the right to which has been acquired in virtue of their insurance:
(a) if they are resident in the territory of a Member, irrespective of their nationality;
(b) if they are nationals of a Member, irrespective of their place of residence ... “
58. The Vienna Convention on the Law of Treaties of 23 May 1969 (Bečka konvencija o pravu međunarodnih ugovora, Official Gazette – International treaties no. 12/1993) provides:
“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ... “
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-108837
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: GUL v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicant, Mr Dincer Gül, is a Turkish national who was born in 1968. His last known place of residence in Germany was in Garbsen. He was represented before the Court by Mr M.-O. Nordhorn, a lawyer practising in Steyerberg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date, the Hannover prosecution authorities started an investigation against the applicant and several co-suspects on suspicion of drug trafficking.
On 28 January 2005 the Hannover District Court ordered that the applicant’s parents’ apartment be searched. The Court found that on the basis of information obtained by means of surveillance as well as telephone tapping in the course of preliminary proceedings (Ermittlungsverfahren) instituted against the applicant, there were grounds for suspecting that drugs, implements used for drug trafficking and consumption, as well as cash proceeds from drug deals were being stored in the applicant’s parents’ flat. The search warrant stated that in the course of the investigations a suspicion had arisen that co-suspect (Mitbeschuldigter) K. was storing and trafficking drugs for the applicant’s benefit. According to the information provided in the search warrant, on 25 January 2005, K. had received a telephone call from the Dutch town of Venlo by an unidentified male person who had informed him in Turkish that on 27 January 2005 at eight o’clock in the morning a “friend” would arrive at K.’s domicile. On the occasion of a telephone conversation on 26 January 2005 at around noon, K. informed the applicant that nobody had yet come by. Later that day the applicant informed K. over the phone that the said friend would arrive that evening. At around 6 p.m. K. received a further telephone call by an unidentified person informing him that due to an accident the latter was unable to drop by. Later the same evening the applicant phoned K. to inquire about his “uncle’s” arrival and the “entrusted items” and said he would return the next day. During a further telephone conversation on 27 January 2005, the applicant informed K. that a search had been carried out at the “friends’” place and that their arrival was not to be expected until the following day. The search warrant indicated that on the basis of the aforementioned telephone conversations’ content the court found that there were grounds for suspecting that the delivery of drugs and the applicant’s return were imminent. Furthermore, through surveillance of the applicant it had been established that he had frequently stayed for extended periods in his parents’ apartment and that on 8 January 2005 he had travelled with his father by car to the Dutch town of Venlo, presumably with a view to initiating a drug deal.
On 1 February 2005 the Neustadt District Court issued an arrest warrant ordering the applicant’s detention on remand on suspicion of having imported drugs, an offence punishable under the Narcotics Act (Betäubungsmittelgesetz). In the detention order, running to some one and a half pages, the District Court found that there was a strong suspicion that the applicant - acting jointly with co-suspects B., D., and K. - had coordinated the importation and delivery of 4,322 grams of marijuana by B. and D. to K.’s home address by means of several telephone conversations with K. The strong suspicion of the applicant having committed the offence resulted from the seizure of the drugs on the occasion of the search of his parents’ apartment, the witness statements of three police officers who had been involved in the search as well as from the information obtained in the course of police surveillance and the preliminary proceedings. The court further found that there was a risk of the applicant’s absconding in view of an expected prison sentence of at least two years. Since considerable amounts of money had been seized from the co-suspects, it had to be assumed that the criminal gang disposed of sufficient financial means to enable the applicant to abscond. Furthermore, the latter maintained good connections abroad, in particular in Turkey, where he was presumably staying at present.
By written submissions dated 17 February 2005 the applicant’s counsel informed the Hannover Public Prosecutor’s office that he had been mandated by the applicant and requested to be granted access to the file in the preliminary proceedings instituted against the applicant. He reiterated his request by letter of 17 March 2005.
On 24 March 2005 the Hannover Public Prosecutor’s Office informed counsel that for the time being his request to inspect the files had to be refused pursuant to Article 147 § 2 of the Code of Criminal Procedure (Strafprozessordnung - see “Relevant domestic law” below) on the ground that the preliminary investigations were ongoing and disclosure of the files might jeopardise the purpose of the investigations.
By written submissions dated 12 April 2005 the applicant’s counsel applied for a court decision pursuant to section 23 of the Introductory Act to the Courts Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG) as to whether access to the files should be granted. He claimed that for the time being he had only obtained knowledge of the search warrant’s content but that his inquiry with the Public Prosecutor’s Office as to whether a detention order had been issued against the applicant had been to no avail. He contended that where an arrest warrant was issued, the suspect would at least have to be granted the right to examine the part of the file providing information as to the reasons for his detention in order to be able to mount an effective defence.
The application was dismissed by the Celle Court of Appeal as inadmissible by a decision of 4 May 2005. The Court of Appeal held that according to Article 147 § 5 of the Code of Criminal Procedure, pending the termination of the preliminary investigation, it was for the Public Prosecutor’s Office to decide whether to grant access to the files or not and that therefore a disciplinary complaint (Dienstaufsichtsbeschwerde) against the Public Prosecutor’s Office would be the only appropriate remedy in the case at hand. Relying in particular on a statement obtained from the Chief Public Prosecutor (Generalstaatsanwalt) on 29 April 2005, the Court of Appeal further found that the charges brought against the applicant were clearly set out in the search warrant dated 28 January 2005 and the applicant himself had confirmed that he was aware of the search warrant’s content. There existed thus no particular circumstances that would require an exceptional quashing of the Prosecutor’s decision to refuse access to the file.
By a letter dated 1 February 2006 the Hannover Public Prosecutor’s Office informed the applicant that access to the file was still restricted in accordance with Article 147 § 2 of the Code of Criminal Procedure and that such restriction would remain valid as long as the applicant was on the run.
A further request by counsel to inspect the files dated 24 July 2007 was rejected by the Hannover Public Prosecutor on 27 July 2007 with similar reasoning.
On 22 January 2008 the applicant lodged a disciplinary complaint with the Hannover Public Prosecutor’s Office stating that the only information he had received so far with respect to the investigations was a copy of the search warrant of 28 January 2005 as well as the detention order of 1 February 2005. While reiterating the grounds for his request set out in his written submissions to the Celle Court of Appeal of 12 April 2005, he argued in addition that there was no longer an indication that the purpose of the investigations would be jeopardised. This was in particular true in view of the fact that since the Court of Appeal’s decision of 4 May 2005 more than two years had passed, the proceedings against the applicant’s cosuspects had meanwhile been terminated and that the applicant had been abroad for a considerable time, which excluded any danger of collusion (Verdunklungsgefahr) on his part.
The complaint was dismissed by the Celle Chief Public Prosecutor’s Office (Generalstaatsanwaltschaft) by a decision of 4 February 2008 holding in particular that according to counsel’s own submissions he had at his disposal a copy of the Neustadt District Court’s detention order of 1 February 2005 and that the files revealed that he had discussed with the competent Public Prosecutor on several occasions what impact a possible pleading to the charge (EinlassungTurkey. There were thus still grounds to believe that giving him access to the file might put the preliminary investigations, which had not yet been terminated, at risk.
On 17 April 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint of 7 March 2008 against the aforementioned decisions of the Hannover Public Prosecutor, the Celle Chief Prosecutor and the Celle Court of Appeal on the ground that it was inadmissible and lacked any prospect of success. The Constitutional Court held in particular that due to the period of eight months that had elapsed since the last decision of the Hannover Public Prosecutor on 27 July 2007 rejecting the applicant’s request, as confirmed by the Chief Public Prosecutor’s decision of 4 February 2008, the conditions underlying the impugned decisions might meanwhile have significantly changed in the course of the preliminary proceedings, which had now lasted for almost three years. Under these circumstances the applicant was advised to pursue his objective by having recourse to the most effective and rapid remedy available, which in the case at hand would be a renewed request with the competent Public Prosecutor to inspect the file. For this reason he lacked a legitimate interest (Rechtsschutzbedürfnis) in having his constitutional complaint examined. In the event of a further refusal by the Public Prosecutor and following an unsuccessful disciplinary complaint, a renewed constitutional complaint could be considered.
On 28 April 2008 defence counsel lodged a further application with the Hannover Public Prosecutor for permission to inspect the file in the preliminary proceedings. By a letter dated 30 April 2008 his request was again refused pursuant to Article 147 § 2 of the Code of Criminal Procedure on the grounds that the investigations were ongoing and that the reasoning provided by the Celle Chief Public Prosecutor in his decision of 4 February 2008 was still valid. By a decision of 29 May 2008 the Celle Chief Prosecutor, referring to the reasoning in the decision of 4 February 2008 and confirming that the preliminary proceedings had not yet been terminated, rejected the applicant’s related disciplinary complaint as unfounded. The decision was served on the applicant on 6 June 2008.
By a decision of 22 April 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint lodged on 1 July 2008 without providing reasons. The decision was served on the applicant on 30 April 2009.
It appears that the applicant is still at large.
Article 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the files and to inspect the exhibits which have been presented to the trial court or which would have to be presented to the trial court in the event of indictment. Paragraph 2 of this provision provides that access to part or all of the file or to the exhibits may be refused until the preliminary investigation has ended if it might otherwise be put at risk. However, in the event that the accused is remanded in custody or, in the case of provisional arrest, pre-trial custody has been requested, information of relevance for the assessment of the lawfulness of that deprivation of liberty shall be made available to defence counsel in suitable form and, as a rule, access to the files shall be granted.
Pending the termination of the preliminary investigations, it is for the Public Prosecutor’s Office to decide whether to grant access to the files or not; thereafter the decision rests with the president of the trial court (Article 147 § 5). The Public Prosecutor shall revoke an order refusing to allow inspection of the files upon conclusion of the investigation at the latest. Defence counsel shall be notified as soon as he once again has the unrestricted right to inspect the files.
Pursuant to section 23 of the Introductory Act to the Courts Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG) the ordinary courts shall decide, upon request, on the lawfulness of directives, orders or other measures taken by the judicial authorities with a view to regulating individual issues in the sphere of, inter alia, criminal law. The same applies to directives, orders or other measures taken by the law enforcement authorities regarding the imposition of detention on remand.
Articles 112 et seq. of the Code of Criminal Procedure (Strafprozessordnung) concern detention on remand. Pursuant to Article 112 § 1 of the Code, a defendant may be detained on remand if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Grounds for arrest will exist where certain facts warrant the conclusion that there is a risk of his absconding (Article 112 § 2 no. 2) or of collusion (Article 112 § 2 no. 3).
Article 114 §§ 1 and 2 of the Code of Criminal Procedure provides that detention on remand must be ordered by a judge in a written detention order. The detention order must identify the accused, and specify the offence of which he is strongly suspected, including the time and place of its commission, and the grounds for the arrest (nos. 1-3 of Article 114 § 2). Moreover, the facts establishing the grounds for the strong suspicion that an offence has been committed and for the arrest must be set out in the detention order unless national security would thereby be endangered (Article 114 § 2 no. 4).
Pursuant to Article 304 of the Code of Criminal Procedure an appeal may be lodged with the competent court by the defendant or defence counsel against a detention order that has not yet been executed with a view to having it quashed (Haftbeschwerde).
Pursuant to section 230 of the Code of Criminal Procedure, German law, in principle, does not allow for an in-absentia trial. A limited number of exceptions to this rule are notably laid down in sections 231 et seq. A hearing may, in particular, be held in the defendant’s absence in cases in which he has been summoned correctly and only a fine of up to 180 “daily rates” (Tagessätze, a unit based on the average one-day net income of the offender) is to be expected (section 232 of the Code of Criminal Procedure).


ITEMID: 001-75927
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF OBLUK v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (length of one set of proceedings);Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1953 and lives in Martin.
5. The applicant concluded contracts concerning the lease of business premises inter alia with the following tenants: an entrepreneur B., an entrepreneur K., a company M., and an entrepreneur M.
6. As these tenants failed to pay the rent, the applicant initiated the following proceedings against them.
7. On 18 June 1997 the applicant lodged the action with the Bratislava III District Court (Okresný súd). He sought an order for payment of unpaid rent, a contractual penalty for the late payment, and compensation in respect of the costs of the defendant’s eviction.
8. On 18 August 1997 the District Court invited the applicant to pay the court fee, which he did on 5 September 1997.
9. On 26 September 1997, in summary proceedings, the District Court issued a payment order (platobný rozkaz) in the applicant’s favour. A copy of the order was mailed to the defendant but was returned by the postal service to the District Court on 3 October 1997 with the mention “addressee unknown”.
10. On 27 November 1997 the District Court requested information about the defendant’s whereabouts from the Central Registry of Citizens in Banská Bystrica and the Municipal Registry of Citizens in Bratislava, which responded on 8 and 9 December 1997, respectively.
11. The District Court subsequently re-mailed a copy of the payment order of 26 September 1997 to the defendant’s address obtained from the above Registries. On 15 December 1997 it was returned with the mention “addressee unknown”.
12. On 14 January 1998 the District Court requested that the payment order of 26 September 1997 be served on the defendant by the police. The latter informed the District Court on 23 January 1998 that the defendant was not staying at the address officially registered as her permanent residence and that her current whereabouts were unknown.
13. On 30 January 1998 the District Court wrote to the Central Registry of Prisoners asking whether the defendant was currently detained on remand or serving a prison sentence. The Central Registry responded in the negative on 11 February 1998.
14. On 12 February 1998 the District Court quashed the payment order of 26 September 1997 under Article 173 §§ 1 and 2 of the Code of Civil Procedure holding that it had proven impossible to serve a copy of the order on the defendant in person.
15. On 26 January 2001 the District Court appointed an ex officio guardian to the defendant as the latter’s whereabouts were unknown and it was not possible to secure her participation in the proceedings.
16. On 14 February 2001, following a hearing held on the same day, the District Court granted the action. The judgment became final and enforceable in March 2001.
17. The applicant filed the action on 16 May 1996 with the Martin District Court. He sought an order for payment of a contractual penalty for the late payment of rent.
18. On 1 December 1998 the defendant lodged a counterclaim.
19. On 15 November 2000 the District Court granted the action.
20. In a letter of 24 October 2002 the Registry of the Court informed the applicant of the amendment to the Constitution of the Slovak Republic which had entered into force on 1 January 2002 and which provided for a new remedy under the amended Article 127 of the Constitution in respect of delays in court proceedings. The applicant was requested to inform the Court whether he used or intended to use this remedy in view of the requirement to exhaust domestic remedies pursuant to Article 35 § 1 of the Convention.
21. In a letter of 4 March 2003 the Registry informed the applicant about the Court’s decision of 22 October 2002 to declare inadmissible the application in the case of Andrášik and Others v. Slovakia (app. nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, ECHR 2002-IX) about the length of court proceedings on the ground that the applicants had failed to raise this complaint before the Constitutional Court under Article 127 of the Constitution, as amended from 1 January 2002.
22. On 15 April 2003 the District Court gave a supplementary judgment (doplňujúci rozsudok) in which it dismissed the defendant’s counterclaim, a ruling which the District Court had omitted to make in the original judgment of 15 November 2000.
23. The defendant challenged the judgments of 15 November 2000 and 15 April 2003 by appeals. On 20 May 2003 the District Court transmitted the casefile to the Žilina Regional Court (Krajský súd) for a determination of these appeals.
24. On 5 November 2003 the Regional Court overturned the judgment of 15 November 2000, dismissed the applicant’s action, and upheld the judgment of 15 April 2003.
25. In the meantime, on 9 June 2003, the applicant, who was represented by a lawyer, submitted a complaint under the amended Article 127 of the Constitution to the Constitutional Court (Ústavný súd). He formally directed the complaint against the District Court and alleged that it had violated his right under Article 48 § 2 of the Constitution to a hearing without unjustified delay.
26. On 19 November 2003 the Constitutional Court declared the complaint inadmissible. It observed that the part of the proceedings before the District Court, against which the complaint was formally directed, had ended with its judgments of 15 November 2000 and 15 April 2003 and with its carrying out of the related administrative tasks prior to submitting the case to the Regional Court for a decision on the defendant’s appeals. At the time when the constitutional complaint was lodged, the District Court was no longer dealing with the case which was already with the Regional Court. In these circumstances, an examination of the part of the proceedings before the District Court could no longer serve to expedite the proceedings. Thus, in line with its established practice, the Constitutional Court found that it was not called upon to examine the complaint.
27. On 2 June 1997 the applicant lodged the action with the Martin District Court. He claimed an amount of money by way of compensation for unpaid rent and a contractual penalty for the late payment of the rent.
28. On 10 December 2002 the District Court granted the action. The judgment became final and enforceable in February 2003.
29. In April 2003 the applicant, who was represented by a lawyer, lodged a complaint under Article 127 of the Constitution with the Constitutional Court. He asserted that the District Court had violated his constitutional right to a hearing without unjustified delay.
30. On 25 June 2003 the Constitutional Court declared the complaint inadmissible. It observed that it had been its established practice to examine constitutional complaints only if the alleged violation occurred, or was still continuing, at the time when the complaint was lodged. Since at the time of the introduction of the applicant’s complaint in April 2003 the proceedings at issue were already completed, the complaint could not be entertained.
31. The President of the Chamber, however, did not share the majority view and gave a dissenting opinion. He observed that the practice of not examining constitutional complaints of length of proceedings where the proceedings were no longer pending at the time of the introduction of the complaint had developed within the legal framework of the Constitution, as applicable prior to 1 January 2002. However, as from that date the Constitution was amended and the relevant rules were different. According to him, the continuous application of this practice under the new constitutional provisions had no basis in the applicable statutory rules, was contrary to the approach of the European Court of Human Rights and unacceptably impaired the complainant’s right of access to Constitutional Court.
32. On 20 December 1996 the applicant brought an action against M. in the District Court. He claimed an amount of money which was due under a contract of lease of 21 August 1995.
33. On 13 March 1997 the District Court issued a payment order in the applicant’s favour.
34. On 30 May 1997 the defendant filed a protest (odpor) against the payment order by virtue of which the order was ex lege vacated.
35. On 6 October 2000 the District Court stayed the proceedings pending the outcome of proceedings in another action which the applicant had brought on 19 April 1996 against entrepreneur M. on the basis of the above contract of 21 August 1995. It was observed that in the latter proceedings the questions of the defendant’s legal capacity to act and of the validity of the contract of 21 August 1995 were being determined. The determination of these questions was directly relevant for the present proceedings. Although this decision could have been appealed against within 15 days from its service on the appellant, no appeal has been lodged.
36. On 26 August 2002 the District Court commenced ex officio a separate set of proceedings aimed at determining the defendant’s legal capacity to act. These proceedings resulted in a ruling of the District Court of 20 October 2003 that the defendant lacked such capacity.
37. In the meantime, in May 2003, the applicant, who was represented by a lawyer, had filed a complaint about the length of the proceedings in his action of 20 December 1996 to the Constitutional Court.
38. On 1 October 2003 the Constitutional Court declared the complaint inadmissible on the ground that the applicant had failed to exhaust ordinary remedies by challenging the decision of 6 October 2000 by an appeal.
39. The proceedings in the action of 19 April 1996 ended with dismissal of the action by a judgment of the District Court of 28 April 2004. It was observed that the defendant had no legal capacity to act and that, therefore, the contract of 21 August 1995 was not valid and no claims could be based on it.
40. On 4 May 2004 the District Court held a hearing in the action of 20 December 1996. The hearing was adjourned until 6 May 2004 when the District Court pronounced its judgment dismissing the action.
41. The issue of the costs of the proceedings was finally resolved by a decision of the Regional Court of 8 February 2005.
42. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
43. Pursuant to Article 130 § 3 of the Constitution the Constitutional Court could commence proceedings upon the petition (podnet) presented by any individual or a corporation claiming that their rights had been violated.
44. On 23 February 2001 the National Council of the Slovak Republic enacted a constitutional law amending the Constitution. It was published in the Collection of Laws on 17 March 2001 under no. 90/2001.
45. Amendment no. 90/2001 repealed Article 130 § 3 of the Constitution with the effect as from 1 July 2001 and introduced a new Article 127 to the Constitution with effect as from 1 January 2002.
46. Pursuant to Article 127, as in force from 1 January 2002, natural and legal persons can complain (sťažnosť) about a violation of their fundamental rights and freedoms. Under this provision, the Constitutional Court has the power, in the event that it finds a violation of Article 48 § 2 of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings (for further details see, for example Andrášik and Others, cited above).
47. The implementation of the above constitutional provisions enacted with effect from 1 January 2002 is set out in more detail in sections 49 to 56 of the Constitutional Court Act (Law no. 38/1993 Coll.), as amended. The relevant amending Act (Law no. 124/2002 Coll.) was published in the Collection of Laws and entered into force on 20 March 2002.
48. Pursuant to section 20 (3), as a general rule, the scope of the Constitutional Court’s examination of a case is limited by the summary of the motion for commencement of the proceedings, as formulated in a standardised and prescribed form by the plaintiff.
49. Section 53 (3) provides that a constitutional complaint can be filed within a period of two months from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given. As regards the measures and other interferences, the above period commences when the complainant could have become aware of them.
50. According to its case-law under the former Article 130 § 3 of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48 § 2 of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view it was for the authority concerned to provide redress to the person whose rights had been violated (for further details see, for example, Bánošová v. Slovakia (dec.), no. 38798/97, 27 April 2000).
51. It has been the Constitutional Court’s long standing practice to entertain constitutional petitions or, as the case may be, complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such petitions or complaints are lodged (see, for example, decisions file nos. I. ÚS 34/99, II. ÚS 55/02, IV. ÚS 96/02, I. ÚS 161/02, IV. ÚS 176/03 and many others).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-22055
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: ADNANE v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Gaukur Jörundsson
TEXT: The first applicant has both Moroccan and Dutch citizenship. He was born in 1960 and is living in Veenendaal. The second applicant is his daughter. She is a Moroccan national, born in 1989, and currently living with her father. They are represented before the Court by Mr J.A. van Ham, a lawyer practising in Veenendaal.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant was born and raised in Morocco, where in 1985 he married M.B., whom he divorced by repudiation on 5 February 1990. The second applicant was born out of this marriage and, after her parents’ divorce, remained in the care and custody of her mother.
On 22 March 1990, the first applicant married with Ms N.B. and, on 4 July 1990, moved to the Netherlands. Out of this marriage, three children were born in the Netherlands in 1992, 1995 and 1999 respectively. Like the first applicant, Ms N.B. has both Moroccan and Dutch citizenship.
After having learned in 1993 that, on 19 June 1991, M.B. had entrusted the second applicant’s care and custody to her sister A.B., the first applicant took proceedings before the Court of First Instance in Meknès (Morocco) seeking to obtain the custody of the second applicant.
In its judgment of 30 January 1996, the Meknès Court of First Instance noted that M.B. had remarried in the meantime and held that, consequently, she had lost the entitlement to the custody of her daughter to the benefit of the father. It therefore awarded the second applicant’s custody to the first applicant. A.B. was ordered to hand the second applicant over to the first applicant, who in turn was to pay A.B. a maintenance allowance for the second applicant’s care as well as an allowance for having looked after the second applicant. This judgment was notified to the parties on 13 March 1996. On the same day, the second applicant took up residence with her parental grandparents in Morocco.
On 26 August 1997, on behalf of the second applicant, the first applicant filed a request for a provisional residence visa (machtiging tot voorlopig verblijf) on grounds of family reunification. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights.
On 9 January 1998, the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) rejected the request. Insofar as the applicants relied on Article 8 of the Convention, the Minister held that there had been no interference with these rights in that the second applicant had not been deprived of a residence entitlement enabling her to enjoy family life with her father in the Netherlands. The Minister further held that there was no positive obligation under Article 8 of the Convention to allow the second applicant to take up residence in the Netherlands since the refusal to grant her a residence permit did not prevent a continuation of the applicants’ family life as it existed then whereas it had not been established that there was an obstacle to the exercise of their family life outside the Netherlands.
On 15 January 1998, the second applicant filed an objection (bezwaar) with the Minister of Foreign Affairs against the decision of 9 January 1998. In the course of a hearing held on 17 June 1998, the first applicant stated, inter alia, that – apart from his parents – he also had two married sisters and two brothers living in Morocco. In his decision of 14 July 1998, the Minister rejected the objection. On 24 July 1998, the second applicant filed an appeal with the Hague Regional Court (Arrondissementsrechtbank) sitting in Haarlem.
At some unspecified date in the summer of 1998, the second applicant travelled to the Netherlands, where she moved in with the first applicant’s family.
Following a hearing held on 16 March 1999, the Hague Regional Court rejected the appeal on 15 April 1999. The Regional Court held, inter alia, that there was no indication that the first applicant had always had the intention of being reunited with the second applicant. It noted in this respect that, when the first applicant left Morocco for the Netherlands in 1990, he had left the second applicant behind with her mother in Morocco and found it established that this situation had been intended as being a permanent arrangement. It was only after having learned that the second applicant was in fact being cared for by her maternal aunt that the first applicant took proceedings seeking to obtain the custody of the second applicant. Furthermore, the Regional Court did not find it established that there had been any regular contacts between the applicants during the period when the second applicant had been cared for by her mother and her maternal aunt. On this point, it noted that the first applicant learned only after two years that the second applicant had been entrusted to the care of her maternal aunt. This was not altered by the fact that the first applicant had paid for the costs of the second applicant’s care and upbringing since he had only started to do so after a judicial order to this effect.
As regards Article 8 of the Convention, the Regional Court held that this provision does not contain a general obligation to enable the exercise of family life by way of immigration, but that the existence of such an obligation is dependent on the particular circumstances of each case. In this connection, the Regional Court held that the applicants had not submitted any facts or circumstances on the basis of which it should be held that their personal interest outweighed the interests of the Netherlands authorities in maintaining a restrictive immigration policy, and concluded that the Minister had not acted unlawfully in refusing to grant the second applicant a provisional residence visa.
In view of the situation in the Netherlands as regards population size and employment, Government immigration policy – defined in the Aliens Circular (Vreemdelingencirculaire) of 1994 – is aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so; (b) this serves the “essential interests of the Netherlands”, e.g. economic or cultural interests; and (c) there are “cogent reasons of a humanitarian nature” (Chapter A4/5.3 of the Aliens Circular).
The policy for admission for family reunification purposes is laid down in Chapter B1/5 of the Aliens Circular. This provides, insofar as relevant, that a residence permit for the purposes of family reunification may be granted to a parent of Dutch nationality with minor children, when the children factually belong to his/her family and family ties with one of the parents already existed abroad. Family ties are considered to have definitely ceased to exist in case of long-term integration of the child into another family while the parent(s) no longer exercise parental authority and no longer provide for the costs of the upbringing and care of the child.


ITEMID: 001-91399
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF MALENKO v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award
JUDGES: Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1961. Before his detention he lived in Mariupol. In May 1997 the applicant was recognised as falling into the second category of invalidity (the medium level) because of a spine disease. In November 1998 his invalidity was reclassified as being of the third category (mildest level).
6. On 16 April 1999 the applicant was detained on suspicion of murder. He was placed in the Mariupol Pre-trial Detention Centre (hereinafter “the Mariupol SIZO”).
7. In the period between 16 May and 5 June 1999 the applicant was kept in the Donetsk Pre-trial Detention Centre. On 5 June 1999 the applicant was returned to the Mariupol SIZO.
8. On 17 June 2000, after the applicant’s conviction, he was transferred to the Donetsk prison no. 124.
9. On 22 July 2000 he was transferred to the Gdanovsk prison no. 3.
10. On 15 December 2000 the applicant was returned to the Mariupol SIZO.
11. On 21 February 2003, after the retrial of the applicant’s case, upon which he was sentenced to imprisonment for a longer period, he was transferred to the Sokiryanska prison no. 67.
12. On 6 January 2005 the applicant was transferred to the Dykanivska prison no. 12 where he is still serving his sentence.
13. According to the applicant, when he was held in the Mariupol SIZO the cell was constantly overcrowded, so that three persons occupied one bunk and had to take turns to sleep. The cell was not properly ventilated with fresh air and he did not have access to daylight. The nutrition was insufficient. The medical care was inadequate in particular in view of the fact that in April 2000, in addition to his poor health, he contracted tuberculosis. He had not been provided with any medical treatment as regards his spine disease.
14. The applicant alleged that during his detention in the Sokiryanska prison no. 67 he suffered from the poor medical care and food supply which was inappropriate in view of his health problems. The cell was always damp which had an additional negative impact on his health.
15. As regards the Dykanivska prison no. 12, where the applicant is currently held, he states that the cell is lit by a wan electric lamp and dim daylight, restricted by glass blocks. This has led to the deterioration of his sight. However, despite his request to this effect, the applicant has not been examined by an ophthalmologist or provided with the necessary medical treatment. Moreover, despite the tuberculosis which he contracted in the Mariupol SIZO, for a year and a half he has not been provided with any medical care for this disease. In addition, his requests to receive the necessary medical treatment in respect of his spine disease have been ignored.
16. The mandatory ventilation in his cell is not available and the window does not open because of metal bars attached to it. The lack of adequate ventilation is further aggravated by a general tolerance of smoking in the cells and outside during walks.
17. The applicant is employed at the factory at the Dykanivska prison no. 12. He alleges that on his way to his working place and back he is strip searched in the presence of other inmates and in any season. He states that these searches are conducted in premises that are unequipped for this purpose.
18. The applicant complained about the conditions of his detention to various State authorities. In particular the applicant complained to the State Department for Execution of Sentences claiming that the material conditions of his detention had been inappropriate and that due to his tuberculosis and spine diseases he required medical treatment and support. In his letter to the Commissioner for Human Rights of the Parliament of Ukraine the applicant complained, inter alia, that his requests to provide him with medical treatment had been constantly ignored by the relevant authorities. He further specified that due to his spine problem his right leg became less and less functional.
19. The Government submitted that during the applicant’s stay in the Mariupol SIZO he was kept in various cells with an average surface area of 19 m2 and usually equipped with 10 bunks. The Government did not specify the number of detainees kept there at the relevant time.
20. According to the Government the cells of the pre-trial detention centres and the prisons, where the applicant stayed, were equipped with a sufficient number of bunks, tables and chairs. The windows of the cells were large enough to provide access to fresh air and daylight. The applicant has always been able to take a one-hour walk per day.
21. The Government further maintained that when held in the prisons, the applicant was provided with at least 3 m2 of living space in the cell, an individual bunk and bedclothes. The nutrition was sufficient and complied with the domestic regulations.
22. The Government submitted that during the applicant’s time in the Mariupol SIZO and the prisons he was always offered adequate medical treatment in respect of his tuberculosis disease.
23. In particular, on 9 December 1999 the applicant had been x-rayed for preventive purposes. In June 2000 the applicant was placed in the hospital of the Donetsk prison no. 124 where he was provided with a non-specific antibacterial pathogenesis therapy. However, in July 2000 the applicant was diagnosed with tuberculosis and transferred to the special tuberculosis hospital in the Gdanovsk prison no. 3.
24. In December 2000 the applicant was released from the prison hospital with a diagnosis of tuberculosis and transferred to the Mariupol SIZO where he was provided with further anti-tuberculosis treatment. Since then the applicant has been regularly x-rayed and provided with adequate anti-tuberculosis treatment.
25. In June 2007 the applicant was examined by the ophthalmologist and proper treatment was prescribed for him.
26. The Government did not submit any factual details in respect of the applicant’s allegations about the strip search practice at the prison factory where he works.
27. The relevant provisions of the Constitution of Ukraine and the PreTrial Detention Act can be found in the judgment of 12 October 2006 in the case of Dvoynykh v. Ukraine (no. 72277/01, §§ 28-31, 33-35 and 37).
28. Section 17 of the Act provides that persons suffering from tuberculosis detained in pre-trial detention centres (SIZOs) must receive appropriate treatment in the medical units of these detention centres. Persons detained in prisons should be treated in specialist prison hospitals.
29. The relevant extracts from Chapters 4.4-4.5 of the first annual report provide as follows:
“... The situation in investigation wards is perhaps the worst, [owing to] their overcrowding and abnormal conditions of custody. The number of suspects in the cells of investigation wards far exceeds normal sanitary standards. By late December 1999 Ukraine’s investigation wards had available space for 32,800 detainees, but in reality held 44,700.
The gravest situation was registered in the Autonomous Republic of Crimea where 1,439 detainees were in custody without sufficient space; in Donetsk and Kharkiv the same circumstances affected 1,300 detainees (in each city), 1,135 in Kryviy Rig, 1,000 in Luhansk, and 714 in Kyiv and Odessa (each). Thousands of detainees do not have personal bunks and are forced to take it in turns to sleep. This has been causing conflicts that are accompanied by injuries, physical reprisals, violence and other illegal actions. ...
The unsanitary conditions in pre-trial detention facilities contribute to the spread of epidemic and parasitic diseases, such as tuberculosis, pediculosis and dysentery. In 1999 they caused the death of 326 detainees, or twice as many as in 1998. Inadequate nutrition is the cause of chronic gastro-intestinal disturbances and dystrophy.
In the pre-trial detention facilities the regime of detention for suspects whose guilt has yet to be established is much more severe than in prisons. In most cases the suspects are denied the opportunity to meet with relatives, to work and provide assistance to families; they are actually isolated from the outside world and have no access to the daily press and other mass media...”
30. The second annual report of 2002 confirmed the first as regards the gross violations of the human rights of the detainees because of their conditions of detention, severe overcrowding, lack of adequate medical treatment and assistance, inadequate nourishment, and the inadequate financing of the needs of the pre-trial detention facilities. The poor hygienic and sanitary conditions of detention led to the spread of infectious diseases and in particular skin diseases. It mentioned for instance that in 1999 only 19.7% of the necessary food supplies were financed from the State budget (12.7% in 2000), and 6.7% of the medical supplies (12.7% in 2000). The average medical expenditure per person was UAH 18.7 in 2000 (compared to the required amount of UAH 220) and UAH 20.7 in 2001 (compared to the required amount of UAH 245.2).
31. The relevant extracts of the reports of the Committee for the Prevention of Torture can be found in the judgment in the case of Melnik v. Ukraine, (no. 72286/01, §§ 47-49).
32. The relevant international reports and other materials concerning the treatment of tuberculosis in Ukraine are summarised in paragraphs 50-53 of the Melnik judgment, cited above.
VIOLATED_ARTICLES: 3


ITEMID: 001-98012
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GEORGIY NIKOLAYEVICH MIKHAYLOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 6-1
JUDGES: Anatoly Kovler;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 4. The applicant was born in 1944 and lives in St. Petersburg.
5. In 1979 the applicant was convicted of engaging in an illegal business activity and sentenced to four years' imprisonment. The court also ordered the confiscation of his property, namely an art collection. As part of this collection allegedly disappeared, in 1985 the applicant was convicted of fraudulent theft of State property.
6. In 1989 both judgments were quashed and the proceedings against the applicant were terminated on the ground that no criminal offence had been committed.
7. Between 1989 and 1998 the applicant unsuccessfully tried to recover his art collection.
8. In July 1998 the applicant lodged a claim with the Oktyabrskiy District Court of St. Petersburg (“the district court”) against the local departments of the Ministries of Justice, the Interior and Finance and the St. Petersburg Prosecutor's Office, seeking compensation for the pecuniary and non-pecuniary damage caused by the confiscation of his property.
9. On 22 July 1998 the district court scheduled a hearing on 1 December 1998.
10. On 1 December 1998 the district court held a hearing, acceded to the defendant's requests and postponed the proceedings until 18 May 1999.
11. On 19 February 1999 criminal proceedings were instituted against third persons for misappropriation of the applicant's art collection; on an unspecified date the applicant was granted victim status in the criminal case.
12. Between 18 May and 31 August 1999 the district court postponed hearings on four occasions at the defendants' request.
13. On 31 August 1999 the district court granted the applicant's request to hear three witnesses and postponed the hearing until 16 September 1999.
14. On 16 September 1999 the district court heard two witnesses, granted the applicant's request to summon two other witnesses and postponed the hearing until 17 December 1999.
15. On 17 December 1999 the hearing was postponed because the judge was ill.
16. On 12 January 2000 the hearing was postponed because of the applicant's absence.
17. On 20 January 2000 the district court heard two witnesses and postponed the hearing until 22 February 2000 at the applicant's request.
18. On 22 February 2000 the hearing was postponed because the judge was ill; a new hearing was scheduled on 9 June 2000.
19. Between 9 June and 17 October 2000 hearings were postponed on three occasions at the applicant's request.
20. On 17 October 2000 the hearing was postponed until 21 November 2000 pending receipt of information from other courts confirming the applicant's claims.
21. On 21 November 2000 the district court granted the applicant's application to request materials from the criminal case in which the applicant had been granted victim status in substantiation of his pecuniary damage claims; the hearing was postponed until 13 February 2001.
22. The 13 February 2001 hearing was postponed until 26 April 2001 because of the applicant's absence.
23. The 26 April 2001 hearing was postponed because of a defendant's absence.
24. On 12 July 2001 the applicant requested the district court to amend his statement of claims; the hearing was rescheduled on 20 November 2001.
25. On 20 November 2001 the hearing was postponed because of a defendant's absence and the applicant's failure to submit an additional list of his lost property.
26. On 12 March 2002 the applicant provided the district court with an additional list of his lost property; the hearing was postponed because of the defendants' absence.
27. On 10 September 2002 a hearing was postponed because of the applicant's and defendants' absence.
28. On 13 February 2003 a hearing was postponed because the defendants had not been notified of it and failed to appear.
29. On 26 February 2003 the district court held a hearing and dismissed the applicant's claim. The court orally delivered only the operative part of the judgment, without providing any reasons.
30. On 11 July 2003 the applicant appealed against the judgment of 26 February 2003. In his appeal he mentioned that the full text of the judgment had not yet been prepared and that therefore his appeal was preliminary and would be amended.
31. On the same day the applicant complained to the St. Petersburg City Court (“the city court”) that the full text of the judgment of 26 February 2003 had still not been prepared, whereas Article 199 of the Code of Civil Procedure (“CCP”) provided that a reasoned judgment was to be finalised within five days.
32. On 22 July 2003 the city court informed the applicant that Judge K. (the presiding judge in his case) was on holiday and that the full text of the judgment of 26 February 2003 would be drafted as soon as possible.
33. On 25 July 2003 the district court received the applicant's appeal.
34. On 1 September 2003 the district court dismissed the applicant's appeal on the ground of his failure to respect the ten-day time-limit prescribed by law. It mentioned that the applicant's appeal had been received on 25 July 2003, whereas the judgment had been given on 26 February 2003.
35. On 4 September 2003 the applicant was informed that the full text of the judgment had been finalised on 3 September 2003.
36. The applicant appealed against the decision of 1 September 2003. He claimed that, under Article 338 of the CCP, an appeal was to be lodged within ten days of the adoption of a final version of the judgment in issue. In his case, the final version of the judgment had been created on 3 September 2003, that is, two days after his appeal was rejected. He therefore applied for a renewal of the above time-limit.
37. On 29 October 2003 the city court rejected the applicant's appeal against the decision of 1 September 2003, having found no reason to quash it on account of a violation of Article 199 of the CCP by the district court.
38. The text of the judgment of 26 February 2003 bears a court's stamp confirming that it became final on 29 October 2003.
39. The applicant did not pursue supervisory review proceedings.
40. A court may restore a procedural term established by a federal law after its expiry if it finds that reasons for failure to comply with such a term were valid (Article 112 § 1). A request to restore the term after its expiry must be lodged with the court before which the procedural act in question should have been performed, and must be examined at a court hearing. Parties to the proceedings are to be notified of the time and place of the hearing, but their failure to attend it does not preclude the court from deciding upon the issue (Article 112 § 2). The necessary procedural act in respect of which the procedural term has expired, such as lodging a complaint, or submission of documents, must be performed simultaneously with the lodging of the request for restoration of the term (Article 112 § 3). The court's ruling on the restoration of (or refusal to restore) the procedural term may be appealed against (Article 112 § 4 as in force at the material time).
41. A judgment must be delivered immediately after the examination of a civil case. The preparation of a reasoned judgment may be postponed for not more than five days after the examination of a case; however, the firstinstance court must pronounce the operative part of the judgment at the same hearing in which the examination of the case is completed (Article 199 of the CCP).
42. An appeal in a civil case may be lodged within ten days of the delivery of a first-instance judgment in its final form (Article 338 of the CCP).
43. An appeal statement is to be returned to the appellant where (i) a judge's instructions concerning an appeal statement have not been complied with; or (ii) the term for lodging an appeal has expired, provided that restoration of the term concerned has not been requested (Article 342 § 1 of the CCP).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-114547
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: MISICK v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Mr Michael Misick, is a British Overseas Territories Citizen and Turks and Caicos Islands Belonger, who was born in 1966 and lives on Providenciales, an island in the Turks and Caicos Islands. He was represented before the Court by Mr E. Fitzgerald QC, a barrister practising in London.
3. The Turks and Caicos Islands (“the Territory”) are a British Overseas Territory in the West Indies. At the relevant time, the 2006 Constitution set out the rules regarding government of the Territory. The Constitution was made pursuant to powers conferred by the West Indies Act 1962 which allowed Her Majesty to make Orders in Council for, inter alia, the peace, order and good government of the Territory. The Constitution provided for a Governor, a Cabinet and an elected House of Assembly.
4. The applicant is the former Premier of the Turks and Caicos Islands and was, at the relevant time, the elected representative of the North Caicos East constituency and so an elected member of the House of Assembly. He is a citizen of the Territory and has been active in politics there for many years. He became the head of the Progressive National Party in 2002. He became Premier following elections in 2003 and was re-elected in February 2007.
5. In June 2008 a committee of the United Kingdom Parliament published a report on Overseas Territories. It expressed grave concerns about allegations of corruption in the Territory.
6. On 10 July 2008, the Governor appointed Sir Robin Auld as Commissioner to conduct an Inquiry into the allegations.
7. On 28 February 2009 the Commissioner delivered his Interim Report. He was satisfied that there was a high probability of systemic corruption and/or other serious dishonesty involving past and present elected members of the House of Assembly and others in recent years.
8. On 16 March 2009 the Governor issued a statement responding to the Interim Report. He indicated that the United Kingdom Government had formed the view that parts of the 2006 Constitution would need to be suspended and had decided to take steps to enable it to do so. On the same day he made public a draft Order in Council which would suspend parts of the 2006 Constitution initially for two years.
9. The applicant resigned as Premier on 23 March 2009. He remained an elected member of the House of Assembly.
10. The Order in Council was subsequently made by Her Majesty in Council in the form of the Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 (“the Order”) and laid before Parliament. The Order provided that parts of the 2006 Constitution were suspended and direct rule was assumed over the people of the Territory. In particular, the Order dissolved the House of Assembly and removed all elected officials for a period of two years.
11. The applicant sought leave to apply for judicial review to challenge the legality of the Order. Regarding the removal of direct rule, the applicant argued that the Order was inconsistent with the international law principle of self-determination; that it was inconsistent with the right to stand for election and, once elected, to sit as a member of parliament, guaranteed by Article 3 of Protocol No. 1 to the Convention; that it was contrary to the principle of legality and a disproportionate and irrational response to the alleged crimes of certain elected representatives; and that it was based on the recommendations of a flawed Inquiry and on recommendations which were themselves ultra vires the Inquiry’s terms of reference.
12. A hearing took place in the Divisional Court on 29 April 2009. Following the hearing, and at the request of the court, the Government confirmed by letter that before bringing the Order into effect they would withdraw the application of Article 3 of Protocol No. 1 from the Turks and Caicos Islands.
13. On 1 May 2009 the Divisional Court refused permission to seek judicial review. Regarding specifically the applicant’s argument under Article 3 of Protocol No. 1, Lord Justice Carnwath indicated:
“30. ... [T]his aspect of the argument has in my view been overtaken by events. Following the hearing we have been informed by the Treasury Solicitor that, if a decision is taken to bring the Order into force, the UK will in effect withdraw Article 3. This can be done without Parliamentary sanction. It requires a declaration to the Council of Europe under Article 4 of the First Protocol modifying the application of the Protocol to the territory by withdrawing the application of Article 3. It will be made clear that this is a temporary measure, pending steps to restore the principles of good governance in the Territory.”
14. As to potential limitations on the Crown’s power to make laws for the peace, order and good government of the Territory, Carnwath LJ examined, inter alia, the special status of human rights in judicial review. He referred to the House of Lords judgment in R (Bancoult) v Home Secretary (No 2) [2008] UKHL 61, where that court had examined the statutory language conferring the power, and continued:
“33. Even allowing for the differences between the various speeches [in Bancoult], those of the majority in my view provide a clear message that the Crown’s power to legislate for the good government of a territory ..., although in principle subject to judicial review, is in practice not open to question in the courts other than in the most exceptional circumstances, which did not include the abrogation of the basic right relied on in that case. I see no reason to think the rights claimed in this case, important as they are, should be accorded greater weight.”
15. The applicant appealed against the refusal of permission to the Court of Appeal arguing, inter alia, that the Divisional Court had erred in finding that the Crown’s power to legislate was not limited by any requirement to comply with fundamental rights. The appeal was refused on 13 August 2009.
16. On 14 August 2009, by letter to the Secretariat of the Council of Europe, the Government removed the application of Article 3 of Protocol No. 1 to the Turks and Caicos Islands.
17. The Order entered into force on 14 August 2009. Following its entry into force, the Governor was responsible for administering the Territory.
18. Section 5 of the West Indies Act 1962 empowers Her Majesty to provide by Order in Council for the government of the Territory. The relevant part of section 5(1) provides:
“Her Majesty may by Order in Council make such provision as appears to Her expedient for the government of any of the colonies to which this section applies, and for that purpose may provide for the establishment for the colony of such authorities as She thinks expedient and may empower such of them as may be specified in the Order to make laws either generally for the peace, order and good government of the colony or for such limited purposes as may be so specified subject, however, to the reservation to Herself of power to make laws for the colony for such (if any) purposes as may be so specified.”
19. Section 7 makes clear that the power to make an Order includes power to vary or revoke the Order.
20. The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009 entered into force on 14 August 2009. It dissolved the House of Assembly and removed all elected officials for a period of two years.