ITEMID: 001-57993
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF GUSTAFSSON v. SWEDEN
IMPORTANCE: 2
CONCLUSION: No violation of Art. 11;No violation of Art. 6-1;No violation of Art. 13;No violation of P1-1
JUDGES: R. Pekkanen
TEXT: 9. From the summer of 1987 until the end of the summer of 1990 the applicant owned the summer restaurant Ihrebaden at Ihreviken, Tingstäde, on the island of Gotland. The applicant further owned - and continues to own - the youth hostel Lummelunda at Nyhamn, Visby, also on Gotland. The restaurant’s employees numbered less than ten. They were engaged on a seasonal basis, but had the option of being re-employed the following year. The applicant’s ownership of the restaurant and youth hostel was direct and entailed his personal financial liability (enskild firma).
10. As the applicant was not a member of either of the two associations of restaurant employers, namely the Swedish Hotel and Restaurant Entrepreneurs’ Union (Hotell- och Restaurangar - betsgivareföreningen - "HRAF", which is affiliated to the Swedish Employers’ Confederation (Svenska Arbetsgivareföreningen - "SAF")) and the Employers’ Association of the Swedish Union of Restaurant Owners (Svenska Restauratörsförbundets Arbetsgivareförening - "SRA"), he was not bound by any collective labour agreement (kollektivavtal) between the two associations and the Hotel and Restaurant Workers’ Union (Hotell- och Restauranganställdas Förbund - "HRF"). Nor was he obliged to subscribe to the various labour-market insurance schemes (Arbetsmarknadsförsäkring) developed through agreements between SAF and the Swedish Trade Union Confederation (Landsorganisationen).
It was, however, open to the applicant to accede to a collective agreement by accepting a substitute agreement (hängavtal). He could also subscribe to insurance schemes with Labour-Market Insurances or any of the other ten or so insurance companies in the field.
11. In late June or early July 1987 he refused to sign a separate substitute agreement with HRF. He referred to his objections of principle regarding the system of collective bargaining. He also emphasised that his employees were paid more than they would have been under a collective agreement and that they themselves objected to his signing a substitute agreement on their behalf.
The substitute agreement proposed to the applicant included these terms:
"Parties: [The applicant] and [HRF]
Term of validity: From 1 July 1987 up to and including31 December 1988, thereafter for one year at a time, unlessnotice is given two months prior to the expiry of the[agreement]
...
As from the [above] date, the most recent agreement between[the employers’ association] and [HRF] shall be applied between[the applicant and HRF]. Should [the employers’ association]and [HRF] subsequently reach a new agreement or agree to amendor supplement the [present] agreement, [the new agreement,amendments or supplements] shall automatically apply as fromthe day on which [it or they] [has or have] been [agreed upon].
...
1. [The employer shall] [on his employees’ behalf] subscribeto and maintain [five different] insurance-policy schemes withLabour-Market Insurances, ... as well as other possibleinsurance-policy schemes which [the employers’ association andHRF] might later agree upon.
2. [The employer shall] issue employment certificates on aspecial form ... A copy shall be sent to [HRF].
3. [The employer shall] only employ [workers who are members]of or [have] requested membership of [HRF]. In the event ofre-employment the provisions of section 25 of the EmploymentProtection Act (lag (1982:80) om anställnings-skydd) shallapply.
4. [The employer shall] deduct on a monthly basis a part ofthe salary of employed members of [HRF] corresponding to theirmembership fees, and pay [the deducted part] to [HRF].
..."
12. On 16 July 1987, during further negotiations with the applicant, HRF proposed another substitute agreement, which he also rejected:
"Subject: The signing of a collective agreement regarding [therestaurant] Ihrebaden ... and the Lummelunda youth hostel.
1. Having regard to the forthcoming end of the [season of1987] the parties agree on the following procedure replacing the signing of a collective agreement.
The enterprise agrees to comply, during this season ..., with the collective labour agreement (`the green nationalagreement’) between [HRAF] and [HRF], this including the obligation to subscribe to [certain] insurance schemes(avtalsförsäkringar) with Labour-Market Insurances.
2. The enterprise also agrees to [comply with] [the]collective labour agreement ... during the next season ...,either by way of membership of the employers’ union or bysigning a ... substitute agreement ..."
13. Had the applicant accepted a substitute agreement, it would have applied not only to those of his employees who were unionised but also to those who were not.
In the summer of 1986, one member of HRF was employed by the applicant. In 1987 he employed another member of that union and also two persons who were respectively members of the Commercial Employees’ Union (Handelsanställdas Förbund) and the Union of Municipal Workers (Kommunalarbetareförbundet). In 1989, one member of the latter union was employed by the applicant.
14. Following the applicant’s refusal to sign a substitute agreement, HRF, in July 1987, placed his restaurant under a "blockade" and declared a boycott against it. Sympathy industrial action was taken the same month by the Commercial Employees’ Union and the Swedish Food Workers’ Union (Svenska Livsmedelsarbetareförbundet).
In the summer of 1988 sympathy action was also taken by the Swedish Transport Workers’ Union (Svenska transportarbetareförbundet) and the Union of Municipal Employees (Kommunaltjenestemannaförbundet). As a result deliveries to the restaurant were stopped.
15. One of the persons employed by the applicant at Ihre baden who was member of HRF had publicly expressed the opinion that the industrial action was unnecessary, as the salary and working conditions in the restaurant were not open to criticism.
According to the Government, the union action had its background in a request for assistance in 1986 by an HRF member employed by the applicant. In the view of the union, the applicant paid his employees approximately 900 Swedish kronor (SEK) a month less than what they would have received under a collective agreement. He did not pay his staff holiday compensation as provided for in the 1977 Annual Leave Act (semesterlagen 1977:480), nor salary during lay-offs due to poor weather conditions as required by the 1982 Employment Protection Act and he did not sign a labour-market insurance until 1988.
16. In August 1988 the applicant, invoking the Convention, requested the Government to prohibit HRF from continuing the blockade and the other trade unions from continuing their sympathy action and to order the unions to pay compensation for damages. In the alternative, he requested that compensation be paid by the State.
17. By a decision of 12 January 1989 the Government (Ministry of Justice) dismissed the applicant’s request. The Government stated:
"The requests for a prohibition of the blockade and thesympathy action as well as compensation for damage from thetrade unions concern a legal dispute between private subjects.According to Chapter 11, Article 3, of the Instrument of Government [Regeringsformen which forms part of theConstitution], such disputes may not be determined by anypublic authority other than a court of law, except by virtueof law. There is no provision in the law which authorises theGovernment to examine such disputes. The Government will not,therefore, examine these requests on the merits.
The claim for damages is dismissed."
18. The applicant applied to the Supreme Administrative Court (Regeringsrätten) for review under the 1988 Act on Judicial Review of Certain Administrative Decisions (lag (1988:205) om rättsprövning av vissa förvaltningsbeslut - "the 1988 Act"). On 29 June 1989 the Supreme Administrative Court dismissed the application on the ground that the Government’s decision did not concern an administrative matter involving the exercise of public power, which was a condition for review under section 1 of the Act.
19. On 15 September 1989 the Swedish Touring Club (Svenska turistföreningen - "STF"), a non-profit-making association promoting tourism in Sweden, terminated the membership of the applicant’s youth hostel, referring to a lack of cooperation and the applicant’s negative attitude towards STF. As a result, the hostel was no longer mentioned in STF’s catalogue of youth hostels in Sweden. In 1989 about half of the youth hostels in Sweden were enrolled in STF.
20. The applicant brought proceedings in the District Court (tingsrätten) of Stockholm. He contested what he considered to be his personal exclusion from STF, alleging that it had been caused by HRF threats that it would take industrial action against other youth hostels enrolled in STF if his hostel was not excluded. He also challenged STF’s termination of the membership of his youth hostel.
STF accepted, inter alia, that although the termination of the membership contract concerning the applicant’s youth hostel had not been prompted by the conflict between the applicant and the trade unions, this conflict might have affected the timing of the decision. STF also referred to an opinion of the Competition Ombudsman (ombudsmannen för näringsfrihet) of 14 November 1989 to the effect that the termination of the contract in question would have only a very limited impact on his business.
21. By a judgment of 8 May 1991 the District Court rejected the applicant’s action on both points. It found, inter alia, that the applicant had not shown that he had been personally excluded from STF by virtue of the termination of STF’s contract concerning his youth hostel. It also found that he had not shown that the contract had been financially significant to his business. Reference was made to the Competition Ombudsman’s finding.
22. The applicant appealed to the Svea Court of Appeal (Svea hovrätt) which, on 6 March 1992, upheld the District Court’s judgment. The Court of Appeal found, inter alia, that STF’s termination of the contract concerning the youth hostel had entailed the expiry of the applicant’s personal membership of STF. This, however, had not been tantamount to his exclusion, given that he could have continued or renewed his membership. Moreover, although the contract had been of appreciable significance to the applicant’s business, STF’s termination of the contract could not be considered unreasonable.
23. At the beginning of 1991 the applicant sold his restaurant due to his difficulties in running his business which had allegedly been caused by the industrial action. The restaurant was bought by a person who signed a collective agreement with HRF. He continued, together with his family, to run the youth hostel in Lummelunda.
Following the above, the union action was terminated.
24. On 9 November 1991 the applicant requested the Government to support his application to the Commission. On 12 December 1991 the Government decided not to take any action in respect of the request.
25. Chapter 2, Article 1, of the Instrument of Government provides:
"All citizens shall be guaranteed the following in theirrelations with the public authorities:
1. freedom of expression: the freedom to communicateinformation and to express ideas, opinions and emotions whether orally, in writing, in pictorial representations, or in anyother way;
...
5. freedom of association: the freedom to unite with othersfor public or private purposes; ..."
26. According to Chapter 2, Article 2:
"All citizens shall be protected in their relations with the public authorities against all coercion designed to compel themto divulge an opinion in any political, religious, cultural orother similar connection. They shall furthermore be protectedin their relations with the public authorities against allcoercion designed to compel them to participate in any meetingfor the formation of opinion or in any demonstration or otherexpression of opinion or to belong to any politicalassociation, religious congregation or other association foropinions of the nature referred to in the first sentence."
27. Chapter 2, Article 12 paras. 1 and 2, reads:
"The freedoms and rights referred to in Article 1 paras. 1 to5 ... may be restricted by law to the extent provided for inArticles 13-16 ...
The restrictions referred to in the preceding subsection mayonly be imposed to achieve a purpose which is acceptable in ademocratic society. The restriction may never exceed what isnecessary having regard to the purpose which occasioned it, normay it be carried so far as to constitute a threat to the freeformation of opinion as one of the foundations of democracy.No restriction may be imposed solely on grounds of political,religious, cultural or other such opinions."
28. Chapter 2, Article 14 para. 2 provides:
"Freedom of association may only be restricted in respect of organisations whose activities are of a military nature or the like or which involve the persecution of a population group of a particular race, skin colour or ethnic origin."
29. Pursuant to Chapter 2, Article 17:
"Any trade union or employer or association of employers has a right to take industrial action unless otherwise provided by law or by agreement."
30. Section 7 of the 1976 Act on Co-Determination at Work reads:
"Right of association means the right of employers andemployees to belong to an organisation of employers oremployees, to benefit from their membership as well as to workfor an organisation or for the founding of one."
31. Section 8 provides:
"The right of association shall not be violated. A violation... will occur, if anyone from the employer’s side or the employee’s side takes any action to the detriment of anybodyon the other side by reason of that person having exercised hisright of association, or if anybody on either side takes anyaction against anybody on the other side with a view toinducing that person not to exercise his right of association.A violation will occur even if the action so taken is designedto fulfil an obligation towards another party.
An employers’ or employees’ organisation shall not have to tolerate a violation of its right of association encroaching upon its activities. Where there is both a local and a central organisation, these provisions shall apply to the central organisation.
If the right of association is violated by termination of anagreement or another legal measure or by a provision in acollective agreement or other contract, that measure orprovision shall be void."
32. According to section 10:
"An employees’ organisation shall have the right to negotiatewith an employer regarding any matter relating to therelationship between the employer and any member of theorganisation who is or has been employed by that employer. Anemployer shall have a corresponding right to negotiate with anemployees’ organisation.
A right of negotiation ... shall also be enjoyed by the employees’ organisation in relation to any organisation towhich an employer belongs, and by the employers’ organisationin relation to the employees’ organisation."
33. Chapter 11, Article 3, of the Instrument of Government provides:
"Legal disputes between private subjects shall only be settledby a court of law, unless otherwise provided by law ..."
34. In principle, it is possible for an employer against whom industrial action has been instituted to request a court injunction requiring that the action cease, and to claim damages. Such orders may be made by the relevant court if the industrial action is unlawful or in breach of an existing collective agreement.
If the industrial action amounts to a criminal offence, a claim for compensation may be made under Chapter 2, section 4, of the 1972 Compensation Act (skadeståndslag 1972:207).
35. Pursuant to section 1 of the 1988 Act, a person who has been a party to administrative proceedings before the Government or another public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only judicial instance, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kind of administrative decision covered by the Act is further defined in Chapter 8, Articles 2 and 3, of the Instrument of Government, to which section 1 of the 1988 Act refers. According to these provisions the Act encompasses measures concerning, inter alia, personal and economic matters arising in relations between private persons and between such persons and the State. Section 2 of the Act specifies several types of decision which fall outside its scope, none of which are relevant in the instant case.
In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision "conflicts with any legal rule" (section 1 of the 1988 Act). If the court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority (section 5 of the 1988 Act).
NON_VIOLATED_ARTICLES: 11
13
6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-107113
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: IWUC-BETCHER v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicant, Ms Grażyna Iwuć-Betcher, is a Polish national who was born in 1961 and lives in Częstochowa.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In 1993 the applicant married R.B. The couple had a son O., born on 10 April 1994. The family lived together until November 2002 when the applicant took O. and moved back to her old house. On the same day, after a scuffle with the applicant, R.B. took O. from her and from that time onwards maintained the actual custody over the child.
4. On 12 December 2002 the applicant filed a petition for divorce. At the Częstochowa Regional Court’s (Sąd Okręgowy) request, on 30 April 2003 three experts of the Family Diagnostics Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny, hereinafter: the Family Centre) gave an expert opinion, in which they pointed to O.’s clear entanglement in the strong marital conflict between the applicant and R.B. The experts observed that O. was being strongly influenced by his father and that many of his statements were “induced” statements deprecating the applicant whom the child perceived very negatively. They found the existing family situation to be detrimental to the child and proposed to separate him temporarily from both parents and place him in a health resort (sanatorium). They moreover advised the court to consider the supervision of the family situation by an appointed court guardian (kurator sądowy).
5. On 22 May 2003 the Częstochowa Regional Court specified the access arrangements, allowing the applicant to visit O. once a week for four hours at R.B.’s house and under the supervision of a court guardian. On 20 November 2003 the Katowice Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal, holding that the access arrangements specified by the Regional Court were reasonable.
6. At the court hearing held on 24 May 2004, an expert of the Family Centre recommended that the applicant’s contacts with O. take place in a neutral place instead of the father’s house. Consequently, on 23 August 2004 the Częstochowa Regional Court provisionally changed the access arrangements, allowing the applicant to meet O. on three consecutive Sundays in a fast-food restaurant under the supervision of a court guardian. Due to unspecified organisational problems, only one of the three planned meetings took place.
7. On 18 October 2004 the Regional Court permanently changed the access arrangements, allowing the applicant to see O. once a week for two hours in a fast-food restaurant under the supervision of a court guardian. On 9 December 2004 the Katowice Court of Appeal dismissed the applicant’s appeal, finding that the right of access was primarily the right of the child and not that of the applicant. The Court noted that the child apparently did not wish to see the applicant and pointed to the applicant’s lack of patience and her unwillingness to cooperate with the supervising court guardian.
8. At the hearing held on 18 April 2005, the court guardian informed the court that during the meetings in the restaurant O. had not wanted to see the applicant without his father’s presence.
9. At the Częstochowa Regional Court’s request, on 12 December 2005 the Family Centre prepared another opinion. The opinion stated that the reason for O.’s aversion to the applicant had been his father’s behaviour. The experts noted that the child was under the strong influence of his father and reacted hysterically to the applicant’s presence. They urged the court to suspend O.’s meetings with the applicant and to undertake steps aimed at improving their mutual relations. The opinion moreover recommended placing the child under psychological assistance and stated that the child’s father should be persuaded to participate in the meetings with a psychologist in order to correct his attitude.
10. On 6 January 2006 the applicant requested the court to change the access arrangements and allow her to meet O. at her own home. On 13 January 2006 the Regional Court dismissed her request, holding it to be premature, on account of the Family Centre’s recommendation that the applicant’s contacts with O. be temporarily suspended. The Regional Court noted that O. clearly did not wish to see his mother and that it would be contrary to the child’s best interests if the meetings were to take place at the applicant’s home.
11. On 14 March 2006 the Katowice Court of Appeal dismissed the applicant’s appeal. The Court of Appeal observed that the Regional Court should issue appropriate decisions in view of the expert findings indicating the child’s father’s incorrect parental behaviour. The Court of Appeal urged the Regional Court to consider changing the access arrangements and, in particular, to consider the possibility of allowing the applicant to meet her son without the father’s presence, under the supervision of the court guardian, in order to improve the relations between the applicant and the child. It further noted that it would be detrimental to the child’s emotional health if the existing situation were to persist.
12. On 13 June 2006 the Częstochowa Regional Court dissolved the applicant’s marriage without attributing the fault to either party. The court awarded custody rights to R.B., finding that O. demonstrated strong affection for his father who, in the court’s view, offered better prospects for the proper exercise of custody. The court restricted the applicant’s custody rights over O., holding her to have been an inept mother who in the past had largely neglected O.’s education. The Regional Court further decided that the access arrangements would be specified by the Public Psychological and Pedagogical Counselling Service (Publiczna Poradnia PsychologicznoPedagogiczna, hereafter: the Counselling Service) in Częstochowa. The divorce court also held that placing O. in a health resort (sanatorium) would only constitute a temporary remedy while putting him in a foster family would be contrary to his best interests, given his affection for, and dependence on, his father.
13. The applicant did not appeal against the divorce decision and it subsequently became final.
14. In March 2007 the Director of the Counselling Service informed the applicant that her weekly meetings with O. would be one hour long and take place on the premises of the Counselling Service. It appears that no psychologist has ever assisted in the meetings.
15. In June 2007 the Director of the Counselling Service requested the court to discharge the Counselling Service from the duty to organise the applicant’s meetings with O., due to the child’s and his father’s visible unwillingness to comply with the access arrangements. The Director explained that from the very outset the meetings had met with difficulties and that from 13 April 2007 onwards O. had no longer been coming to the meetings.
16. On 3 July 2007 the Częstochowa District Court (Sąd Rejonowy) ordered R.B. to comply with the access arrangements, on pain of a fine in the amount of PLN 500 (approx. EUR 125) being imposed on him. R.B.’s appeal was dismissed by the Częstochowa Regional Court on 6 September 2007. It appears that R.B. has since then complied with the access arrangements and brought O. to the meetings with the applicant.
17. On 28 August 2007 the applicant requested the court to fine R.B. once more for his non-compliance with the access arrangements. The applicant argued that O. would only briefly appear at the meetings and not talk to her, after which he would leave the Counselling Service and be driven home by his father or grandfather.
18. On 16 April 2008 the Częstochowa District Court dismissed her request, finding that R.B. had complied with the access arrangements by bringing O. to the meetings and that he could not be blamed for O.’s own reluctance to see the applicant. On 26 June 2008 the Częstochowa Regional Court dismissed the applicant’s appeal. In passing, the Regional Court expressed a view that the child was clearly being harmed, a circumstance which both parents – R.B. and the applicant alike – refused to admit.
19. On 18 March 2008 the Częstochowa District Court ex officio issued a temporary order on access arrangements, allowing the applicant to meet O. at her home every first Sunday of each month for three hours and for another three hours on Easter Sunday. The applicant’s appeal was dismissed by the Częstochowa Regional Court on 19 June 2008.
20. At the Częstochowa District Court’s request, on 27 November 2008 the Family Centre in Zawiercie issued another expert opinion. Without giving any excuse, the applicant did not appear at either of the two interviews with the Family Centre’s experts. The experts found that in the past several years the applicant had been absent from O.’s life and that O.’s attitude towards her was hostile. They noted that O. did not wish to see the applicant and they recommended a temporary suspension of their contacts. The experts moreover recommended that psychological assistance be given to O. with a view to analysing and rectifying his relations with the applicant. At the same time, they criticised the applicant for her inability to deal with her role as a mother and observed that her motivation for having access to her son appeared to be superficial.
21. On 9 December 2008 the Częstochowa District Court dismissed the applicant’s renewed request for changing the access arrangements. It noted that O. had come to the applicant’s home on several occasions and invited her out for a walk or for coffee but that the applicant, to O.’s disappointment, had shown no flexibility and insisted that the meetings only take place at her home. The District Court concluded that the applicant’s inflexible stance did not warrant changing the access arrangements. The applicant’s appeal was dismissed by the Częstochowa Regional Court on 12 March 2009.
22. At the applicant’s request filed on 8 August 2008, on 8 April 2009 the Częstochowa District Court ordered R.B. to comply with the access arrangements, on pain of a fine in the amount of PLN 500 (approx. EUR 125) being imposed on him, as the applicant had had no effective access to O. since 23 November 2008.
23. On 20 May 2009 the Częstochowa District Court ex officio changed the access arrangements, deciding that the venue of the applicant’s contacts with O. was to be a local café instead of the applicant’s house. The Court recognised that O. was disappointed with the applicant’s lack of flexibility as to the venue of the meetings and it acknowledged the findings of an expert psychologist, according to which O.’s attitude towards the applicant was now genuinely his own and no longer influenced by his father. The applicant’s appeal was rejected by the Częstochowa Regional Court on formal grounds on 22 October 2009.
24. On 4 August 2009 the Częstochowa District Court refused the applicant’s request to fine R.B. for non-compliance with the access arrangements, finding the applicant to be at fault for the unsuccessful meetings with O. on account of her bringing other members of her family to the meetings without seeking O.’s prior consent. The applicant’s appeal was dismissed by the Częstochowa Regional Court on 29 October 2009.
25. According to the applicant, O., who is now seventeen years old, currently does not come to the meetings with her or appears at the meetings in the café but stays for no longer than half an hour, instead of the two hours specified by the access arrangements. On several occasions, the applicant unsuccessfully requested the court to change the venue of the meetings with O. back to her house.
26. If the court obliges a parent exercising custody rights to ensure access by the other parent to the child, Article 1050 of the Code of Civil Proceedings (Kodeks postępowania cywilnego) is applicable to the enforcement of this obligation.
27. Article 1050 provides, in so far as relevant:
“1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on a motion of the creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine being imposed on him.
2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by the court.”


ITEMID: 001-76923
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ANDORKA v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicants, Mr Károly Andorka and Mr Ferenc Vavra, are Hungarian nationals who were born in 1967 and 1941 and live in Szeremle and Baja, Hungary, respectively. The respondent Government are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 September 1996 the Baja District Public Prosecutor’s Office preferred a bill of indictment against the applicants, charging them with bribery and other offences.
On 14 October 1996 the case was assigned to the Baja District Court. This court suspended the proceedings on 22 September 1998 with a view to obtaining the Constitutional Court’s ruling on a procedural question.
After the constitutionality proceedings had been terminated on 29 May 2001, the bill of indictment was served on the applicants on 25 June 2001. In the ensuing proceedings, the applicants were assisted by defence counsel of their choice.
On 4 September, 6 and 7 November and 13 December 2001, the District Court held hearings and, on the latter date, found the applicants guilty of bribery. They were sentenced to fines.
On appeal, on 19 December 2002 the Bács-Kiskun County Regional Court held a public hearing, which the applicants did not attend, despite having been properly summoned. Their lawyer was present. The court upheld the applicants’ conviction. In application of section 267 § 2 of the (Old) Code of Criminal Procedure, the judgment was served on the applicants’ lawyer on 23 January and on the applicants on 28 and 30 January 2003, respectively.


ITEMID: 001-87936
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MORELLI v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Carmine Morelli, is an Irish national who was born in 1941 and lives in Stockport. He was represented before the Court by Ms A. Faulkner, a senior welfare rights officer in Stockport. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 19 November 1987. On 11 October 2000, the applicant made a claim for widows’ benefits. On 17 October 2000 the applicant was informed that his claim had been disallowed as he was not a woman. The applicant appealed and on 20 January 2002 his appeal was rejected. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-58172
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1998
DOCNAME: CASE OF SOCIALIST PARTY AND OTHERS v. TURKEY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 11;Not necessary to examine Art. 6-1;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Not necessary to examine Art. 18;Not necessary to examine P1-1;Not necessary to examine P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: C. Russo;John Freeland;N. Valticos;R. Pekkanen
TEXT: 7. The Socialist Party (“the SP”), the first applicant, was a political party that was dissolved by the Constitutional Court (see paragraph 15 below).
Mr İlhan Kırıt and Mr Doğu Perinçek, the second and third applicants, were respectively Chairman and former Chairman of the SP. They live in Istanbul.
8. The SP was formed on 1 February 1988. On the same day, its constitution and programme were submitted to the office of Principal State Counsel at the Court of Cassation for assessment of their compatibility with the Constitution and Law no. 2820 on the regulation of political parties (“Law no. 2820” – see paragraphs 16 and 17 below).
9. On 15 February 1988, when the SP was preparing to take part in a general election, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Constitutional Court for an order dissolving the SP. Relying in particular on passages from its programme, he accused the party of having sought to establish the domination of the working class with a view to establishing a dictatorship of the proletariat (Articles 6, 10 and 14 and former Article 68 of the Constitution and sections 78 and 101(a) of Law no. 2820).
10. In a judgment of 8 December 1988, published in the Official Gazette of 16 May 1989, the Constitutional Court dismissed the application as unfounded, as it considered that the political objectives stated in the SP's programme did not infringe the Constitution.
11. Criminal proceedings were then brought in the National Security Courts against some of the leaders of the SP, including Mr Perinçek. They were accused of spreading harmful propaganda in favour of the domination of one social class over the others, contrary to Article 142 of the Turkish Criminal Code, as then worded (see paragraph 18 below). The allegation against Mr Perinçek was based in particular on speeches he had made at two public meetings on 10 February 1990 at Diyabakır and 21 March 1990 at Van and on an article that had appeared in a political journal on 4 March 1990, that is to say before his election as Chairman of the SP on 6 July 1991. Following the repeal of Article 142 of the Criminal Code by Law no. 3713 of 12 April 1991 (the Prevention of Terrorism Act), the accused were all acquitted. The SP later published the speeches in question under the titles: “Serhildan çağrıları-1, Kawa ateşi yaktı” and “Serhildan çağrıları-2, Karpuz değil cesaret ekin” (see paragraph 13 below).
12. On 26 August 1991 the High Electoral Committee – which had responsibility under the Constitution for ensuring the fairness of elections – decided that the SP satisfied all the conditions necessary to take part in the general election of 20 October 1991. The party consequently ran an election campaign.
13. On 14 November 1991 Principal State Counsel applied to the Constitutional Court for a second time for an order dissolving the SP. He accused the party of having carried on activities likely to undermine the territorial integrity of the State and the unity of the nation contrary to Articles 3, 4, 14 and 66 and former Article 68 of the Constitution, and sections 78, 81 and 101(b) of Law no. 2820.
In support of his application, Principal State Counsel relied in particular on the following extracts from the SP's election publications and from oral statements made by its Chairman, Mr Perinçek, at public meetings and on television.
“... Dear friends, ... the second dynamic is the Kurdish dynamic. It is the call for equality and freedom, [it is] the Kurds' claim to rights as a nation. It is a request that the rights which the Turks enjoy ... be granted to the Kurds also.
At the beginning of the century, a war of independence was waged ... in circumstances in which imperialists occupied the country and Turks and Kurds depended on one another and had to unite and fight, side by side. The Amasya Protocol provided: 'The homeland is composed of the lands where the Turks and the Kurds live.' At the Erzurum and Sivas Congresses, oral and written declarations were made recognising the ethnic social and geographical rights of Kurds ... once the war was over and the men had hung up their weapons, an official ideology developed ... as though there was no longer any need for people from Urfa, Diyarbakır or Malatya to fight... Under that official ideology, there was no longer any room for Kurds. There were no more Kurds. Henceforth, only Turks existed...” (pages 7–8)
“... they can make this country ... a homeland of cultures, brotherhood, workers, [a homeland] where there is voluntary unity, where nations freely decide on their future and freely unite if they so wish... Long live brotherhood between Turks and Kurds! Long live the Turkish and Kurdish peoples!” (page 31)
“... The collapse started where the regime was most tyrannical and most vulnerable. The [political] parties of the status quo failed to the east of the Euphrates... [They] are no longer to be seen in the lands where the Kurdish people live... (page 3)
Why have the parties of the status quo disappeared from the Kurdish provinces? Because they are nationalists... Turkish nationalism has become bankrupt in the lands where the Kurdish problem will be resolved. Turkish nationalism has drawn its borders. It has divided Anatolia into two parts, situated to the east and west of the Euphrates. Turkish nationalism and its regime are in the process of drowning in the Euphrates. That is what is known as a bankrupt regime. (page 4)
... After the mountains, the State also lost the villages and towns. That is why it counts directly on deterring the masses. State terror seeks to establish a new regime in Turkey, starting from the east... (page 10)
The State pays village guards and special forces ... which it feeds to kill Kurds through the taxes it collects from the people. The cost of the bullets fired at Kurds, of petrol used in cross-border operations ..., in short, the cost of [this] special war is borne by the people... To bring inflation and ... poverty to an end, a peaceful solution must be found to the Kurdish problem. The Kurdish problem is at the same time a Turkish problem... Living freely, in brotherhood, heart to heart, in peace and harmony with the Kurdish people is a need ... for the Turkish people... Turks and Kurds are but one people. No Turk will be entitled to enter paradise if a single Kurd [still] remains in hell. The Socialist Party is determined to fight until the last Kurd is saved from hell. (pages 11–13)
The Socialist Party is present on both sides of the Euphrates. It is the party of brotherhood between Kurds and Turks. The Socialist Party's determination in the face of the Kurdish problem has been demonstrated by its fight to combat State pressure on the Kurdish nation ..., its shared destiny in the poor Kurdish peasants' fight for survival ..., the fact that it has overcome the barrier of fear by holding meetings with thousands of people in the Kurdish villages and towns and has explained the Kurdish problem to working people throughout Turkey... Our party imparts this awareness. It sees a solution in the common destiny of peoples and their combat. To remedy the Kurdish problem, the Socialist Party has courage, ... a cause and a programme. (pages 15–16)
The Kurdish nation has a full and unconditional right to self-determination. It may, if it wishes, create a separate State. The interest of the proletariat lies in the establishment, through democratic popular revolution, of a voluntary union founded on absolute equality of rights and freedoms. The right to secede is, at all times, an essential condition of that voluntary union.
Whether or not people live together depends on the free will of nations. So that that will can be expressed, a referendum must be organised in the Kurdish provinces. During the referendum, those who are in favour of secession must also be allowed freely to express their views.
Under current historical conditions, a solution favourable to the workers of both nations lies in a democratic federal republic, to which the two federated States adhere on an equal footing. In the federation, power will be exercised through popular assemblies elected democratically by districts, towns, federated States and the federal State, beginning with the neighbourhoods and villages.
The prefectures and sub-prefectures, State governments and the federal government will be the executive bodies of those assemblies and accountable to them.
The popular federal assembly will be composed of two assemblies: the assembly of the members of parliament and the assembly of the nations.
The assembly of the members of parliament will be elected in a general election with one member of parliament elected by a given number of citizens.
The assembly of nations will be constituted by an equal number of members elected from each of the two federated States.
Legislation will be enacted on a majority vote in the two assemblies.
Legislation which is rejected by one of the assemblies will not come into force.
The Employment Code, and the Criminal, Civil and Procedural Codes will apply throughout the country and be adopted by the federal bodies.
In those districts and provinces of each State where minority groups are in the majority, regional self-determination will be permitted if the people so desire.
The federal Constitution will be the common Constitution of the two nations. It will come into force as soon it has been accepted, by referendum, by a majority in each of the two nations. Each State will also have its own Constitution. The federal Constitution will cover an increasing number of matters, to the extent that the federated republics consent thereto.
The flag and national anthem of the federal republic will be the same for Turks and Kurds. Each federated State will have its own flag and anthem. The federation shall not have a name that refers to only one of the nations.
Defence of the country, issues of war and peace, and entry into representative treaties in international relations will be the responsibility of the federal bodies.
Each federated State will [however] be entitled to establish direct commercial and cultural relations with foreign countries and to open consulates.
At each level of government, power will lie solely with the popular assemblies and the local authorities accountable to them. The prefecture, sub-prefectures, security forces and gendarmerie established under the current [central] government outside the scope of the proposed administrative system will be abolished. This democratic administrative system will also guarantee national equality and freedom.
Local security forces will receive their orders from local government authorities and be accountable to local assemblies. In the villages, security forces will be composed of local young people, who will receive instructions from village committees.
Seigniory, dependence on the head of a clan or any form of medieval relation that is incompatible with brotherhood or social development shall be abolished by an agrarian reform to be undertaken by the mobilisation of farmers under the direction of the village committees.
In order that regional inequalities that have been aggravated by the market economy may be removed, the federal republic will increase its share of investment in regions that are economically underdeveloped. It will therefore guarantee and develop the economic basis of the union.
With respect to the economy, a federal system of uniform statistics will be used.
The freedom and right of each nation and each national or religious minority to develop its language and culture and to pursue political and associative activities will be guaranteed.
The official languages will be Turkish and Kurdish. Each federated republic will have its own language as its official language. Decisions of the federal bodies will be drafted in both languages. From primary school to university and in all cultural institutions, means of education, research and communication, such as journalism, publishing, radio and television, etc., will be provided in both languages.
The democratic culture of the Kurdish nation will be able to develop through the removal of the pressures that have been exerted on it up till now. Those in power will strive for free democratic cultural exchange with Turks and Kurds in other countries and an international culture common to all nations of the world to flourish in a pluralist and active environment.
All bodies in power will endeavour [on the one hand] to eradicate, with all its foundations, the former culture idolising violence and advocating the use of force to solve problems between nations and in society and [on the other hand] to spread among the people an internationalist proletarian culture that respects mankind and despises violence.
Against the fundamentalist nationalist culture according to which the history of the lands in which we live began with the war of Malazgirt and against all other forms of nationalism will be developed an internationalist, universal, humanitarian and democratic culture that will seek new cultural sources, enriched by the contribution of different peoples stemming from the historic depths of our country, and will draw on those resources. Original names will no longer be changed as they reflect the wealth of our country's universal culture; every place will be called by its known, established name.” (pages 16–20)
“The Socialist Party is the last bridge between the Kurdish and Turkish people... The current status quo has failed with respect to the Kurdish problem and its deafening collapse can be heard from here... What is the only possible solution? ... This issue can only be resolved by respecting the wish of the Kurdish people ... the real remedy lies with the Kurdish people. We will ask the Kurds: 'What do you want?' ... if, conversely, they seek secession, we will respect their wish. We will organise a referendum. We will ask the Kurdish people ..., everyone, from Hakkari to Antep: 'Do you want to create a separate State in our land or not?' The Socialist Party prefers unification... Who is inciting secession? Oppression [is]. The oppression of the Kurdish people by the Turkish State. We will defend unification by putting an end to that oppression and that will be proof of [our] acceptance of the Kurdish people's will... The Socialist Party will defend the union of the two peoples within the federation and the joint [exercise] of power... The Socialist Party is the last bridge between the Kurdish and Turkish people... No party other than the Socialist Party has shared the Kurds' destiny, taken up a position against the Turkish State or is able to maintain that position.”
“... Let us now define [what they call] internal security. That is the Kurdish problem. If you put it in terms of internal security ..., you will have recourse to the gendarmes. If the problem is seen as a Kurdish one, you will resolve it by democracy and freedom. In fact, it is the present regime that has transformed the Euphrates into a border... It was an economic border... Then, they made the Euphrates a political border ... and, lastly, an ideological one... Turkish nationalism has drowned in the Euphrates; it cannot cross it ... because nationalism has no place in these lands... There is a Turkish problem but also a Kurdish problem ... a fraternal solution will come from the Socialist Party. The [other] five parties have become separatist ... because they were nationalist. We offer a fraternal solution, a federation. The Kurdish nation should be given the right to self-determination. That is how the right conditions for unification will come about... Union cannot be achieved through force. Your solutions have failed. You will see, the Socialist Party solution will prevail.”
“... we will put a stop to the special war being [waged] in the east ... we will end it by replacing it with a programme of brotherhood between Kurds and Turks ... and, lastly, on a structural level, a federation in which both nations are on an equal footing... They say that they are troubled by the fact that the Euphrates is a border. Who made the Euphrates a border? They did! ... Free, voluntary union on an equal footing of the Kurdish and Turkish nations within a federation, provided that the Kurdish nation consents and so decides as master of its destiny and accepts it: that is the solution proposed by the Socialist Party. The two peoples, two nations are obliged [to accept]...”
“... Because the Kurds of the village of Botan are standing up they are in the process of becoming their own masters... Is it you, the status quo, that has forbidden the use of the name 'Kurd'? The Kurdish people are standing up; they are becoming the centre of the debate; through their acts, they are imposing their identity and celebrating the Newroz... The oppressed Kurds are establishing their Constitution, making laws.”
“... The Socialist Party says that the Kurdish problem cannot be resolved by soldiers or bullets. The solution lies in independence ... in equality. The Kurdish and Turkish nations should have the same rights. The Kurdish and Turkish nations will form a popular republic ... and then one of them will survive and the other be oppressed; that is indefensible... It is the Socialist Party that is with the oppressed Kurdish people... By standing up, the Kurdish people have begun to demonstrate the combat they have been waging for years... The Kurdish people will bring about a new revolution... The oppressed Kurdish people ... are coming to join the Socialist Party... Long live the awakening! Long live our people!”
“... Turkish nationalism has drowned in the Euphrates... The State has oppressed the Kurdish people to the point of erasing their name, even of prohibiting its use; but bans come to nothing... The Kurdish reality is there and is asserting itself... Turks and Kurds remain brothers; there can be no brotherhood where there is slavery; there can be no brotherhood if one is master and the other slave; everyone should be equal and have the same rights... There can be no hope if Turks and Kurds do not unite... This equation should be noted down somewhere: the Turkish people plus the oppressed Kurdish people equals democracy, independence and freedom... Long live Kurdistan! ...”
Relying on an audiovisual recording of the latter meeting, Mr Perinçek nevertheless denied, at a hearing before the Constitutional Court on 12 May 1992, that he had uttered the last sentence.
14. On 28 November 1991 the Constitutional Court sent Principal State Counsel's application to the SP, whose counsel filed preliminary written observations on 29 January 1992 and full observations on 30 March 1992, in which they first requested a hearing or, at the very least, leave to make further submissions orally. The Constitutional Court acceded to the latter request only and heard the party Chairman, Mr Perinçek, on 12 May, who had ceased to be Chairman of the party a short time before.
Before the Constitutional Court the SP's representatives firstly contested the constitutionality of certain provisions of Law no. 2820 on which Principal State Counsel relied. They also argued that the court should not admit the SP's publications (see paragraph 13 above) in evidence against that party. They said that two of the publications were copies of a speech made by Mr Perinçek before his election as party Chairman on 6 July 1991; furthermore, they had been examined by the National Security Courts and found not to contravene the law (see paragraph 11 above).
The party representatives went on to point out that on 8 December 1988 the Constitutional Court had dismissed the first application to have the SP dissolved on the basis of its programme (see paragraph 10 above). They maintained that the court would be contradicting itself if it now decided to dissolve the SP purely because of Mr Perinçek's oral statements, which, in the case before the court, were merely reiterations of paragraph 31 of the programme, which had already been reviewed by the Constitutional Court. They noted, lastly, that since the enactment of Law no. 3713 (the Prevention of Terrorism Act) which had, in particular, repealed Article 142 of the Criminal Code (see paragraph 18 below), it was no longer illegal to carry on Marxist-Leninist activities; in their submission, if one political party was treated differently from the others, the aim pursued by the Turkish legislature would be defeated.
15. Pursuant to section 101 of Law no. 2820, the Constitutional Court made an order on 10 July 1992 dissolving the SP, which entailed ipso jure the liquidation of the party and the transfer of its assets to the Treasury, in accordance with section 107 of that Law. The order was published in the Official Gazette on 25 October 1992. As a consequence, the founders and managers of the party were banned from holding similar office in any other political body (former Article 69 of the Constitution – see paragraph 16 below).
In its judgment the Constitutional Court noted at the outset that the impugned publications of the SP bore the name and signature of its Chairman, Mr Perinçek, who was also the person who had made the oral statements on television. Those publications and statements accordingly also bound the SP and consequently were admissible as relevant evidence under section 101 of Law no. 2820.
The Constitutional Court did not consider that either its or the National Security Courts' earlier judgments (see paragraphs 10–11 above) in any way affected its examination of the case before it, which concerned the political activities of the party, not of its leaders. Moreover, it could not accept that the fact that a provision of the Criminal Code making it an offence to behave in a certain way had been repealed meant that similar conduct no longer constituted a valid ground for dissolution under Law no. 2820.
The Constitutional Court observed that unlike the issue that had been decided in its judgment of 8 December 1988, the one now before it was based on new facts and evidence and thus gave rise to a different question in law. It no longer had to be determined whether the programme and constitution of the SP were in conformity with the law, but solely whether its political activities were caught by the relevant prohibitions.
In reaching its decision on the merits, the Constitutional Court noted, inter alia, that the SP referred in its political message to two nations: the Kurdish nation and the Turkish nation. But it could not be accepted that there were two nations within the Republic of Turkey, whose citizens, whatever their ethnic origin, had Turkish nationality. In reality, the statements made by the SP concerning Kurdish national and cultural rights were intended to create minorities and, ultimately, the establishment of a Kurdish-Turkish federation, to the detriment of the unity of the Turkish nation and the territorial integrity of the Turkish State.
Like all nationals of foreign descent, nationals of Kurdish origin could freely express their identity, but the Constitution and the law precluded them from forming a separate nation and State. The SP was ideologically opposed to the nationalism of Atatürk, which was the most fundamental principle underpinning the Republic of Turkey.
The SP's political activity was also incompatible in aim with Articles 11 and 17 of the European Convention on Human Rights, since it was similar to that of terrorist organisations, notwithstanding a difference in the means employed.
In short, objectives which, like those of the SP, encouraged separatism and incited a socially integrated community to fight for the creation of an independent federated State were unacceptable and justified dissolution of the party concerned.
16. The relevant provisions of the Constitution read as follows:
“The Republic of Turkey is a democratic, secular and social State based on the rule of law, respectful of human rights in a spirit of social peace, national solidarity and justice, adhering to the nationalism of Atatürk and resting on the fundamental principles set out in the Preamble.”
“The State of Turkey shall constitute with its territory and nation, an indivisible whole. The official language shall be Turkish.”
“No amendment may be made or proposed to the provisions of Article 1 of the Constitution providing that the State shall be a Republic, the provisions of Article 2 concerning the characteristics of the Republic or the provisions of Article 3.”
“Sovereignty shall reside unconditionally and unreservedly in the nation.
...
Sovereign power shall not under any circumstances be transferred to an individual, a group or a social class...”
“All individuals shall be equal before the law without any distinction based on language, race, colour, sex, political opinion, philosophical belief, religion, membership of a religious sect or other similar grounds.”
“None of the rights and freedoms referred to in the Constitution shall be exercised with a view to undermining the territorial integrity of the State and the unity of the nation, jeopardising the existence of the Turkish State or Republic, abolishing fundamental rights and freedoms, placing the control of the State in the hands of a single individual or group, ensuring the domination of one social class over other social classes, introducing discrimination on the grounds of language, race, religion or membership of a religious sect, or establishing by any other means a political system based on any of the above concepts and opinions.”
“Everyone linked to the Turkish State by nationality shall be Turkish.”
“...
No political party shall be formed which aims to advocate or establish the domination of one social class or group, or any form of dictatorship...”
“Political parties shall not engage in activities other than those referred to in their constitutions and programmes, nor shall they disregard the restrictions laid down by Article 14 of the Constitution, on pain of permanent dissolution.
...
The decisions and internal running of political parties shall not be contrary to democratic principles.
...
Immediately a political party is formed, Principal State Counsel shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the Constitution and the laws of the land. He shall also monitor its activities.
Political parties may be dissolved by the Constitutional Court, on an application by Principal State Counsel.
Founding members and managers, at whatever level, of political parties which have been permanently dissolved may not become founding members, managers or financial controllers of any new political party...”
17. The relevant provisions of Law no. 2820 on the regulation of political parties read as follows:
“Political parties
(a) shall not aim, strive or incite third parties to
change the republican form of the Turkish State; the ... provisions concerning the absolute integrity of the Turkish State's territory, the absolute unity of its nation, its official language, its flag or its national anthem; ... the principle that sovereignty resides unconditionally and unreservedly in the Turkish nation; ... the provision that sovereign power cannot be transferred to an individual, a group or a social class...;
jeopardise the existence of the Turkish State and Republic, abolish fundamental rights and freedoms, introduce discrimination on grounds of language, race, colour, religion or membership of a religious sect, or establish, by any means, a system of government based on any such notion or concept.
...
(c) shall not aim to defend or establish the domination of one social class over the other social classes or the domination of a community or the setting up of any form of dictatorship; they shall not carry on activities in pursuit of such aims...”
“Political parties shall not aim to change the principle of the unitary State on which the Turkish Republic is founded, nor carry on activities in pursuit of such an aim.”
“Political parties shall not
(a) assert that there exist within the territory of the Turkish Republic any national minorities based on differences relating to national or religious culture, membership of a religious sect, race or language; or
(b) aim to destroy national unity by proposing, on the pretext of protecting, promoting or disseminating a non-Turkish language or culture, to create minorities on the territory of the Turkish Republic or to engage in similar activities...”
“The constitution, programme and activities of political parties may not contravene the Constitution or this Law.”
“The Constitutional Court shall dissolve a political party whose
(a) constitution or programme ... is contrary to the provisions of Chapter 4 of this Law;
(b) membership, central committee or executive committee ... take a decision, issue a circular or make a statement ... contrary to the provisions of Chapter 4 of this Law ..., or whose Chairman, Vice-Chairman or General Secretary makes any written or oral statement contrary to those provisions...
(c) representative appointed ... by the administrative committee ..., makes oral statements on radio or television that are contrary to the provisions ... of this Law...”
“All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the Treasury.”
Chapter 4 of the Law, which is referred to in section 101, includes in particular section 90(1), which is reproduced above.
18. At the material time Article 142 of the Criminal Code provided:
“Harmful propaganda
1. A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or destroying the entire political or judicial order of the State shall, on conviction, be liable to a term of imprisonment of between five and ten years.
2. A person who by any means whatsoever spreads propaganda in favour of the State's being governed by an individual or social group to the detriment of republicanism or democratic principles shall, on conviction, be liable to a term of imprisonment of between five and ten years.
3. Any person who by any means whatsoever spreads propaganda inspired by racist theories aimed at abolishing in whole or in part public-law rights as guaranteed by the Constitution or undermining or eliminating patriotic sentiment shall, on conviction, be liable to a term of imprisonment of between five and ten years.
...”
VIOLATED_ARTICLES: 11


ITEMID: 001-67631
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: GLOVER v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicant, Mr Matthew Glover, is a United Kingdom national, who was born in 1962 and lives in York. He is represented before the Court by Ms Fiona Stevens, solicitor, of Messrs. Goodwin and Stevens, Halifax.
The applicant was convicted at the Crown Court in Preston on 22 March 2002 of three counts of conspiracy to supply class A and class B drugs, namely ecstasy, amphetamine and cannabis resin. He was sentenced to 25 years' imprisonment for supplying class A drugs and, concurrent thereto, 14 years' imprisonment for the supply of class B drugs. In connection with the sentence, the Court of Appeal on 4 November 2003 granted leave to appeal and reduced the individual sentences to 18 years and 7 years respectively, to run consecutively. Leave to appeal against conviction was refused on the same day.
One of the issues in the case concerned the disclosure of materials held by the prosecution on which they did not intend to rely. The applicant and his co-defendants had been subject to intensive police observations at one or more stages of the conspiracy, between September 1999 and February 2001, and at various times some of them (but not the applicant) were found in possession of amounts of drugs worth, variously, £100,000, £150,000, £62,000, £70,000, £220,000 and £50,000 (two), £500,000 and £40,000. Much of the evidence was recordings of telephone calls made by defendants, and references by one of the defendants to another. The applicant, in his defence, accepted that he knew some of the people who had been arrested in possession of drugs in the case, but contended that he had not known what was going on, and had never been involved in any way with drugs. He said that he had had business dealings with some of the people that he would not have wanted the authorities to know about. Before and during the trial, the applicant applied for disclosure of the unused material in the form of the many covertly obtained tapes of conversations and observation material not already in evidence. He maintained that he needed the information to put in context the extracts from the recordings and details of all observations relied upon by the prosecution. Rulings were made by Judge Baker, before the trial on 7 February 2002, and by the trial judge, Judge Ensor during the trial. The rulings (summarised by the Court of Appeal) were to the effect that:
- the court had no power to order further primary disclosure – that was a matter for the prosecution's judgment under Section 3 of Criminal Proceedings and Investigations Act 1996 (“CPIA”);
- in the absence of any particular issue in the applicant's defence statement in respect of which the prosecution could be shown to have reasonable cause under Section 8 of the CPIA to believe that there was undisclosed prosecution material which might reasonably be expected to assist the defence case, such disclosure would not be ordered;
- in the circumstances it was not appropriate or necessary to order the further disclosure sought or for the trial judge to examine it or for himself to verify the prosecution's compliance with their secondary disclosure duty, and
- the CPIA scheme of prosecution disclosure was not contrary to Article 6 of the Convention.
The applicant was convicted on 22 March 2002 and sentenced to a total of 25 years' imprisonment.
Leave to appeal against conviction was refused by a single judge on 16 October 2003, and the Court of Appeal heard the renewed application on 4 November 2003. Before the Court of Appeal, the applicant challenged the way in which material had been withheld by the prosecution. In particular, he claimed that the prosecution was not entitled to withhold material that, when put in context with the material relied on by the prosecution, might have put the latter in a different light. The Court of Appeal noted that the applicant (unlike a co-defendant who raised similar issues) had served a defence statement under Section 5 of the CPIA which raised in general terms the nature of his defence, namely that he would contend that he know nothing of the drugs. The defence statement had also stated that he would contend that the balance of the audio recordings not already disclosed would put the conversations in their true context. Counsel for the prosecution, in reply, contended that the disclosure had complied with the scheme set up by Sections 3 and 8 of the CPIA and the relevant Guidelines on Disclosure of Information in Criminal Proceedings, and that the initial primary disclosure itemised many hundreds of documents or bundles of documents drawn from a mass of documentary material running to thousands of pages. The unused audio material alone amounted to over 900 hours of listening. He added that the defence had been served, by way of primary disclosure, with further schedules of discloseable material in the course of the trial as such material came into the police's hands. The prosecution further contended that without identifiable issues as to what the undisclosed material might relate to, it could not properly make secondary disclosure. The prosecution also pointed out that, in order to put the conversations which were relied on in context, some minutes of conversation before and after each of the incriminating passages had been included in the served audio tapes and transcripts. The Court of Appeal held as follows:
“There is no power in the court to direct primary disclosure, and, even if there were, it is difficult to see how the court could approach its task without knowledge of what, if any, issues were going to be taken with the prosecution case. The scheme of the [CPIA] is to rely on the prosecutor at that stage to disclose to the defence any unused material which in his or her opinion might undermine the prosecution case, but not to disclose everything available regardless of any conceivable relevance.
The machinery for testing the objectivity and adequacy of that disclosure, given the prosecution's incomplete knowledge at that stage of what issues lie ahead, is the scheme of secondary disclosure. Once those issues are identified by the defence in a defence statement, if they are so identified, the prosecutor can then revisit his duty of disclosure, better informed than he was at the primary stage, to form a view as to what further disclosure justice requires in the form of material that might reasonably be expected to assist the defence. If, in the light of his then knowledge, he still does not make adequate disclosure, that is when the court can step in, and stay in. It can then consider the material for itself and direct further disclosure if it considers justice requires it.
That is the machinery, and that machinery was invoked here over a number of applications in the course of the trial; and the judges, true to the scheme of the Act, ruled as they did. In our view, there is nothing in the machinery that violates the Convention or the jurisprudence of the European Court, that is, of tying prosecution disclosure to material that is relevant to the issues of guilt or innocence. There is nothing in the Convention or the Strasbourg Court's jurisdiction to equate the notion of a fair trial, including the requirement of the prosecution to prove its case, with the notion that the defence, while keeping its cards close to its chest, can demand sight of all the prosecution material, however irrelevant to any issue that could be guessed at.
As to [the] more modest proposition that more of the audio tapes should have been disclosed to enable [the applicant] to put seemingly incriminating conversations into a more innocent context, it seems to us there are three answers. First, additional context was provided as [counsel for the prosecution] has told us, in recorded passages before and after the incriminating words. Second, the words, in the context of what the police had seen as well as heard and the drug finds they made at or about the times of the conversations, were not seemingly incriminating, but plainly incriminating. Any innocent exchanges at other times – and no doubt there were many of them – could not have saved the passages on which the prosecution relied for the purpose of the defence. Third, it is to be remembered that these were lengthy conspiracies, punctuated by serious drug finds with which [the applicant and a co-defendant] visibly and audibly, in greater or less measure, were clearly involved. The patterns of their criminality were plainly established. There is, in our view, no arguable substance in this ... ground of appeal ...”
The Court of Appeal then dealt with a further ground of appeal. Three alleged co-conspirators had been tried separately from the applicant and his co-defendants, and in the course of their trial, they had applied for certain prosecution disclosure. The judge ordered disclosure, and the prosecution was unwilling to comply. As a result, the prosecution offered no evidence against all the defendants in that case. The applicant, unaware of the nature of the undisclosed material that caused the collapse of the prosecution in the co-conspirators' case, claimed that if he had been tried with the three other men (as might have happened), the result would have been an abandonment of the prosecution against him. He also claimed that evidence of events in October 2002 (concerning the supply of ecstasy tablets to one of the co-conspirators) should not have been included in the prosecution case against him. The applicant asked the Court of Appeal to investigate the nature of the disclosure that the prosecution had declined to make in that case, with a view to ordering its disclosure for the applicant's own appeal if the court considered it would have assisted his defence. The Court of Appeal replied:
“We have looked at transcripts of the relevant public interest immunity hearings in question in the [other] proceedings and, in the absence of the [applicant and his counsel], we have heard submissions about the matters referred to in them from [counsel] on behalf of the prosecution. [Counsel] was also the lawyer in charge of this prosecution and familiar with, and closely involved throughout in, the process of prosecution disclosure. Having explored the matter thoroughly with him, we are satisfied that none of the matters that led to the collapse of the prosecution in the [other] case in any way overflowed into or tainted the conduct of the police investigation in this case. The two investigations, though overlapping in relation to one or more overt acts of supply [of drugs], were conducted by two entirely separate police teams, separately directed and located, notwithstanding that institutionally they form part of the National Crime Squad. Accordingly, we are satisfied that there is no arguable case for the grant of leave on this proposed ground.”
Leave to appeal against conviction was refused on 4 November 2003.
A review of the domestic law on disclosure of evidence by the prosecution can be found in the Court's judgment in the case of Edwards and Lewis (Edwards and Lewis v. the United Kingdom, nos. 39647/98 and 40461/98, §§ 31 – 39, 22 July 2003; confirmed by the Grand Chamber on 27 October 2004). The duty of primary disclosure is contained in Section 3 of the Criminal Procedure and Investigations Act 1996 (“the CPIA”), and requires the prosecution “to disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused”, or give a statement that there is no such material. The provision as to a defence statement is at Section 5, and requires the defence, after primary disclosure under Section 3, to give a defence statement to the court and prosecutor “(a) setting out in general terms the nature of the accused's defence, (b) indicating the matters on which he takes issue with the prosecution, and (c) setting out, in the case of each such matter, the reason why he takes issue with the prosecution.” The prosecution's duty of secondary disclosure derives from Section 7, and requires the prosecution, after the accused has given a defence statement under Section 5, to “disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement given under Section 5...”, or to give a written statement that there is no such material.
The review by the trial court of the prosecution's disclosure (referred to at § 39 of the Chamber's judgment in Edwards and Lewis) is governed by Section 8 of the CPIA, which provides for the possibility of a defence application to the court for disclosure where the defence have reasonable cause to believe that there is prosecution material which might reasonably be expected to assist the defence as disclosed by the Section 5 statement.
The provisions of the CPIA replaced the earlier, common law rules on disclosure.
In November 2000, the Attorney General issued Guidelines on the Disclosure of Information in Criminal Proceedings which set out in more detail the way in which primary and secondary disclosure, and defence disclosure, should operate.
In R v. H and R v. C ([2004] UKHL 3) the House of Lords noted that “In some countries provision is made for judicial oversight of criminal investigations. That is, for better or worse, entirely contrary to British practice. Instead, the achievement of fairness in a trial on indictment rests above all on the correct and conscientious performance of their roles by judge, prosecuting counsel, defending counsel and jury”.


ITEMID: 001-83975
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF ŠRAMEL v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: 5. The applicant was born in 1967 and lives in Šmarje pri Jelšah.
6. On 8 January 1996 the applicant was injured in a car accident which occurred when the applicant was at work. The applicant's employer had taken out insurance with the insurance company ZT.
7. On 13 May 1997 the applicant instituted civil proceedings against ZT in the Celje District Court (Okrožno sodišče v Celju) seeking damages in the amount of 2,608,038 Slovenian tolars (approximately 10,870 euros – EUR) for the injuries sustained.
Between 1 September 1997 and 27 September 1999 the applicant made six requests that a date be set for a hearing.
On 5 January 2000 he lodged preliminary written submissions.
During the proceedings the court appointed a medical expert.
At the first hearing, held on 29 February 2000, the court decided to deliver a written judgment. The judgment, upholding the applicant's claim in part, was served on the applicant on 13 April 2000.
8. On 21 April 2000 the applicant appealed to the Celje Higher Court (Višje sodišče v Celju). ZT cross-appealed.
On 22 November 2001, the Celje District Court issued a supplement to the judgment (dopolnilna sodba). On 20 December 2001 the applicant also appealed against the supplement to the judgment.
On 8 August 2002 the Celje Higher Court allowed the applicant's and ZT's appeals in part. The court reduced the damages awarded in the first-instance proceedings and remitted the case to the first-instance court for re-examination as regards the costs of the proceedings. The judgment was served on the applicant on 1 October 2002.
9. On 7 October 2002 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče).
He also requested that a judge should withdraw from the proceedings. On 5 July 2004 the President of the Supreme Court rejected the request.
On 1 September 2005 the court dismissed the applicant's appeal on points of law. The judgment was served on the applicant on 17 October 2005.
10. Meanwhile, on 16 September 2002, the first-instance court had issued a decision concerning the costs of the proceedings. The applicant's appeal against that decision was dismissed by the Celje Higher Court on 7 January 2004.
11. The Act on the Protection of the Right to a Trial without undue Delay (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) has been implemented since 1 January 2007. Under its sections 1 and 2, the right to a trial within a reasonable time is guaranteed for a party to court proceedings, a participant under the Act governing non-contentious proceedings and an injured party in criminal proceedings.
12. Section 25 lays down the following transitional rules in relation to applications already pending before the Court:
“(1) In cases where a violation of the right to a trial without undue delay has already ceased and the party had filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney's Office shall offer the party a settlement on the amount of just satisfaction within four months after the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney's Office within two months of the date of receipt of the proposal of the State Attorney's Office. The State Attorney's Office shall decide on the proposal as soon as possible and within a period of four months at the latest. ...
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney's Office and the party fail to negotiate an agreement within four months after the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months after receiving the State Attorney's Office reply that the party's proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney's Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4888
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1998
DOCNAME: BROWN v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
TEXT: The applicant, a Canadian citizen born in 1931, is resident in London.
A. Particular facts of the case
In 1988, the applicant was practising as a solicitor in Stratford, East London. In June of that year, he met JDS at a Magistrates Court. JDS proposed that he and the applicant go into business together at an office in Poland Street, Soho, London. JDS was to provide the applicant with legal clerking services in return for receiving 50% of all monies received. This arrangement was started about a month later.
Unbeknown to the applicant, JDS recently had been released from prison following a 5 year sentence for conspiring to obtain property by deception and fraudulent trading.
In about September 1988, this fact was intimated to the applicant by a fellow solicitor. The applicant states that before he had an opportunity to confront JDS, another solicitor bought the practice from him for the sum of £10,000. The applicant did not inform the purchaser of JDS's background.
Whilst working with the applicant, JDS had forged the applicant's signature on cheques causing losses of about £57,000. In the subsequent arrangement, losses to members of the public amounted to almost £500,000.
After he had sold the practice, the police had occasion to question the applicant about his dealings with JDS, and took a statement from him. No criminal prosecution ever occurred.
Following this, there was a civil action in the High Court against JDS and the solicitor to whom the applicant sold the business. In the course of this trial, the applicant gave evidence on oath about his involvement with JDS.
Following this trial, in early 1990 the Solicitors Complaints Bureau (SCB) wrote to the applicant. Correspondence passed between them.
On 27 November 1995, proceedings were issued against the applicant for professional misconduct. He eventually faced three allegations:
1. that he had been guilty of conduct unbefitting a solicitor in that he established and operated a solicitor's practice principally managed by an unqualified clerk in circumstances which were improper having regard to the extent of his knowledge of the said clerk and the supervision provided;

2. that he had been guilty of conduct unbefitting a solicitor in that, being in possession of information indicating that the said clerk was dishonest, having been convicted of serious offences of dishonesty and sentenced to a term of imprisonment, he failed to take any reasonable or sufficient steps to protect the profession or the public; and

3. that he had been guilty of conduct unbefitting a solicitor and/or failed to comply with Rule 7 of the Solicitors Practice Rules 1987 and 1988 (fee sharing) in that he established and operated a solicitor's practice on the basis that the said unqualified clerk would be entitled to receive one half of the gross fees thereof to cover, inter alia, office overheads for which the said clerk was to be responsible.
The hearing of the Solicitors Complaints Tribunal (SCT) took place on 12 March 1996. The applicant represented himself. At the conclusion of the hearing the charges were found to be proved against him and he was fined a total of £10,000. In their written findings of 17 May 1996 the SCT divided the sum between the three charges.
On 25 March 1996, the applicant appealed to the Queen's Bench Division of the High Court. Correspondence began between himself and the court with regard to the length of time required for the hearing. The applicant's estimation was for a two day hearing. The court allotted 1.5 to 2 hours.
The hearing was on 5 November 1996 and lasted for half an hour. The applicant had provided a skeleton argument and a lengthy list of authorities beforehand.
The issues raised on appeal were the same as those raised before the SCT. The applicant did not question the facts as found by the SCT, but claimed that all the evidence against him was technically inadmissible and therefore there was no case against him. The evidence consisted of the statement made to the police, the evidence given by the applicant in the civil trial and correspondence between the applicant and the SCB.
In the Divisional Court's judgment of 5 November, rejecting the applicant's appeal and holding him liable in costs, the Lord Chief Justice held that the SCT had a discretion not to apply the strict rules of evidence. He observed that the applicant had also consented to the police evidence going before the SCT. Insofar as the applicant argued that the evidence given on oath in the civil proceedings should not have been used against him as it infringed his right to self-incrimination, Lord Bingham held that:
"[the applicant] is not being sued or prosecuted for any statement that he made in the witness box. He is the subject of Disciplinary Tribunal proceedings not as a result of what he said in the witness box but of what he did [in relation to JDS]".
On 20 November 1996, the applicant applied for leave to appeal to the Court of Appeal. There was a brief hearing on 4 June 1997 after which that application was rejected. Costs were awarded against him.
B. Relevant domestic law
Proceedings against solicitors are governed by the Solicitors Act 1974, as amended, and give the SCT the power to fine solicitors, suspend them from practice or to strike them off the practitioners’ roll. The limits of the fines may be increased in line with inflation by secondary legislation. In 1974, the amount was limited to £750. In 1983, this was increased to £3,000. On 1 June 1990, the sum was increased to £5,000 in respect of each offence proved against the solicitor. For the purposes of the Act, the relevant date is that of the hearing.
Section 48(4) of the Solicitors Act 1974 states that the fine is to be considered as if it was made by a High Court Judge. As with any civil debt, if the amount remains unpaid, the defaulter is liable to imprisonment on default for a period of up to one year (section 4(4) Debtors Act 1869). In the case of solicitors, this is also a breach of their position as an officer of the court under which they can be committed to prison under the discretionary ground in section 1 of the Debtors Act.


ITEMID: 001-21952
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: AY AND AY-AKGUEL v. SWITZERLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants, Denho Ay and Besne Ay-Akguel, a married couple born in 1931 and 1939, respectively, are Turkish citizens residing in Uzwil in Switzerland. Before the Court they are represented by Mr Klaus Rüst, a legal advisor practising in St. Gallen.
The applicants entered Switzerland in 1988 together with their three children and applied for asylum.
The first applicant and two of the applicants’ children commenced work, whereupon, based on Section 21a of the Asylum Act (Asylgesetz) in force at the time, they were each obliged to pay, as a surety (Sicherheit) for welfare benefits obtained, 10% of their salary to a special closed account of the Federal Office for Refugees (Bundesamt für Flüchtlinge; henceforth Federal Office).
On 5 April 1993 the Federal Office refused the applicants’ request for asylum, though they were permitted provisionally to remain in Switzerland. Upon the applicants’ appeal, the Swiss Asylum Appeals Commission (Asylrekurskommission) ordered the Federal Office on 27 May 1994 to accept the applicants as refugees and to grant them asylum. This, the Federal Office did on 18 July 1994.
On 17 March 1994 the Federal Office prepared a final balance (Abrechnung) of the three closed accounts of the applicants and their two children. The Federal Office considered that the amounts of the three accounts totalled 6,986.90 Swiss francs (CHF), whereas the applicants had obtained welfare benefits in the amount of CHF 10,800. As a result, it informed the applicants that no money could be paid back from the account, though they would only be requested to compensate the outstanding amount of CHF 3,813.10 within the limits of the former Section 40 § 2 of the Asylum Act in force at the time.
On 4 May 1995 the applicants filed an appeal with the Federal Department of Justice and Police (Eidgenössisches Justiz- und Polizeidepartement, henceforth Federal Department). Therein, and in subsequent submissions, the applicants requested the Federal Office to pay them back the entire amount of the closed surety account. They claimed that their recognition as refugees was declaratory and hence had retroactive character. Thus, their status as refugees extended back to the moment when they entered Switzerland. The law only required a surety from asylum seekers, i.e. persons applying for the status of refugee, but not from refugees themselves. As the applicants had had refugee status from the outset, the amounts on the surety account should be paid out to them. The applicants also complained, inter alia, of procedural errors and that they had been discriminated against as foreigners.
On 22 August 1995 the Federal Office prepared a new, amended balance of the three closed accounts of the applicants. It considered that the applicants’ children had, at the relevant time, not yet been of age for which reason they were not obliged to pay back the welfare benefits obtained, and they would receive the amounts paid into their closed accounts. In respect of the first applicant, the Federal Office considered that his account contained CHF 5,023.40 and that, after deduction of welfare benefits amounting to CHF 7,200, there remained a negative balance of CHF 2,176.60. The applicants would not, however, be obliged to pay back this amount according to Section 40 § 2 of the Asylum Act.
On 20 September 1995 the Federal Office confirmed that the remaining debt (Restschuld) for the applicants arising from the welfare benefits amounted to CHF 2,176.60, though this amount would not be collected as long as the applicants had no means and the payment appeared unreasonable.
The applicants’ appeal of 4 May 1995 was dismissed by the Federal Department on 19 November 1998. The decision noted that the applicants were contesting, not a particular amount, but the obligation in principle to pay back the welfare benefits out of the closed account, alleging that their recognition as refugees had retroactive effect. However, the rights under the Asylum Act only applied upon recognition of a person as a refugee. The specific obligation for persons applying for asylum to provide for a surety was not affected by the subsequent decision to award refugee status to a person. The decision continued:
“(I)t must be emphasised that the lower authority was entitled, regardless of whether the status of asylum was granted, to deduct from the [first] applicant’s surety account a global sum in respect of the welfare benefits obtained both by him and his wife during the asylum proceedings. It will not depend on the applicants’ economic situation whether or not it is admissible to deduct this amount. For this reason, the lower authority did not have to undertake any investigations in this respect. The applicants have not proved lower welfare expenses and indeed do not contest the amounts to be deducted. As a result, the contested decision is lawful and the complaint must be dismissed ...”
The Asylum Act in force at the relevant time provided in Sections 20a § 1 and 37 that both refugees and persons applying for such a status, were entitled to welfare benefits if they could not afford to pay for their own subsistence. According to Section 40 § 2:
“if the recipient of welfare benefits subsequently obtains means which secure to him and his family an adequate subsistence, he will have to pay back the benefits to the extent that this is reasonable.”
Section 21a §1 specifically concerned persons applying for the status of refugee. These persons were obliged, in addition, to provide a surety for future welfare costs. The percentage of the person’s salary to be paid would be decided by the competent cantonal authority.
In practice, a surety bank account was opened, and the employer of the person concerned would directly transfer the contributions to this account.
In respect of the closing of the account, Section 41 of the Asylum Act Ordinance no. 2, Asylverordnung, in force at the time) provided as follows:
1. Once the asylum proceedings have been concluded and the applicant’s residence situation in Switzerland has been settled by means of a residence permit or a provisional stay, ... the Federal Office [for Refugees] shall order the transfer to the Confederation of the amounts to be paid back for social security and implementation.
2. The Office shall furthermore order the final balance (Schlussabrechnung) and the transfer of any credit to an account mentioned by the applicant. The final balance shall be transmitted to the applicant subject to § 3.
3. If the residence situation of an applicant, who is not a refugee, has been settled by means of a provisional stay, the surety account will remain open.”