ITEMID: 001-85815
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: KLINAR & KLINAR v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Rajko Pirnat
TEXT: 1. The applicants, Mr Aleksander and Mrs Andreja Klinar, are Slovenian nationals who were born in 1943 and live in Jesenice.
2. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney General.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The case concerns four sets of administrative proceedings resulting from the applicants’ dissatisfaction with their neighbour’s allegedly illegal construction of extensions to his house and various facilities. This construction is situated on their neighbour’s plot of land which is separated from the applicants’ land by a public road.
5. On 27 June 1995 the applicants reported their neighbour’s building of an extension to his house, a garage and certain facilities to the Inspectorate of the Republic of Slovenia for the Environment and Spatial Planning (Inšpektorat Republike Slovenije za okolje in prostor – “the Inspectorate”). The applicants disputed the legality of the construction and requested that proceedings be instituted against their neighbour.
6. In June 1996 the applicants learned that the Inspectorate had not found any irregularities concerning the allegedly illegal construction. Subsequently, the applicants unsuccessfully appealed to the Chief Inspector’s Office (Urad glavnega republiškega inšpektorja).
7. On 6 December 1996 the applicants requested that the proceedings be reopened.
8. On 12 February 1997 the applicants lodged a claim with the Supreme Court (Vrhovno sodišče) on account of the Inspectorate’s failure to decide (molk organa).
9. On 15 November 1997 the applicants lodged a claim before the Supreme Court arguing that the Ministry of the Environment, Spatial Planning and Energy (Ministrstvo za okolje in prostor – “the Ministry”) had also failed to decide.
10. On 9 December 1997 the applicants requested the proceedings to be joined.
11. Meanwhile, on 3 November 1997, the Inspectorate ruled that under the law in force, the applicants did not have locus standi in the proceedings concerning the neighbour’s construction work in spite of the fact that they had requested the Inspectorate to act. These proceedings had been instituted by the Inspectorate itself and only the initiator of the allegedly illegal construction had standing in the proceedings brought by the Inspectorate against him.
12. On 10 November 1997 the applicants lodged an appeal which was rejected by the Ministry on 4 June 1998.
13. On 20 July 1998 the applicants challenged the Ministry’s decision before the Administrative Court. At the same time, the applicants withdrew their previous claim lodged on 12 February 1997 (see paragraphs 8, 9, 10 above).
14. On 14 June 2000 the Administrative Court delivered a judgment rejecting the applicants’ claim. This decision was served on the applicants on 27 June 2000.
15. On 3 July 2000 the applicants appealed to the Supreme Court.
16. On 4 March 2004 the Supreme Court upheld the applicants’ appeal. It quashed the Ministry’s decision of 4 June 1998 (see paragraph 12 above) and ordered the Ministry to re-examine the case. The judgment was based on the Constitutional Court’s decision of 2 October 2003 issued in the second set of proceedings (see paragraph 32 below) requiring the authorities to take into account the actual effect the Inspectorate proceedings had on the particular complainant.
17. On 19 April 2004, as a result of the Supreme Court decision of 4 March 2004, the Ministry quashed the Inspectorate’s decision of 3 November 1997 (see paragraph 11 above) and ordered the Inspectorate to re-examine the case.
18. On 30 June 2004 the Inspectorate, applying the criteria from the Constitutional Court’s decision, again rejected the applicants’ request for recognition that they had locus standi in the proceedings. The Inspectorate found that there was a public road between the applicants’ and their neighbour’s plot of land. Hence, neither the applicants’ rights and obligations nor their legal interest could have been affected by the Inspectorate proceedings conducted against their neighbour. In addition, the Inspectorate found that the applicants’ neighbour had acquired the urban planning permit (urbanistično potrdilo za gradnjo) for the works concerned.
19. The applicants appealed. The Ministry rejected their appeal on 28 December 2004.
20. On 17 February 2005 the applicants challenged the Ministry’s decision by bringing a claim before the Administrative Court.
21. On 15 December 2005 the Administrative Court rejected the applicants’ claim finding that the applicants had failed to demonstrate their legal interest, namely, in what way the Inspectorate’s measures might affect their rights, as required by the Constitutional Court’s decision, and that they accordingly did not have standing.
22. On an unspecified date the Inspectorate instituted proceedings concerning the applicants’ neighbour’s construction of a wall. On 26 August 1997 the applicants proposed that proceedings be instituted also with respect to the landslip.
23. On 15 May 1998 the applicants requested an access to the case file and asked the Inspectorate to secure certain evidence in connection to the landslip.
24. On 28 May 1998 the Inspectorate issued a decision finding that they did not have locus standi in the proceedings and they could not be granted access to the file or make a request for evidence to be secured.
25. On 16 June 1998 the applicants appealed to the Ministry.
26. On 5 January 1999 the Ministry rejected their appeal.
27. On 19 January 1999 the applicants challenged the Ministry’s decision in the Administrative Court and requested that the present proceedings be joined with the first set of proceedings.
28. On 14 June 2000 the Administrative Court rejected the applicants’ claim and request.
29. On 3 July 2000 the applicants appealed to the Supreme Court.
30. On 3 April 2003 the Supreme Court rejected the appeal.
31. On 24 April 2003 the applicants lodged a constitutional appeal with the Constitutional Court.
32. On 2 October 2003 the Constitutional Court issued a decision (Up-257/03-9) finding that when deciding on the applicants’ standing in proceedings instituted ex officio by the Inspectorate, the authorities should have taken into account their legal interest, in particular, whether their rights were affected in these proceedings. It quashed the disputed decisions and remitted the case for re-examination by the Inspectorate. This decision was served on the applicants on 11 October 2003.
33. On 11 December 2003 the applicants urged the Inspectorate to decide in accordance with the Constitutional Court’s ruling.
34. It appears from the letter of the Ministry of Internal Affairs, Directorate of Public Administration (Ministrstvo za notranje zadeve, Direktorat za javno upravo), sent to the applicants on 16 April 2004 further to their prior complaint, that the Inspectorate allowed them to examine the case file.
35. However, on 30 June 2004 the Inspectorate, relying on the Constitutional Court’s decision, ruled that the applicants did not have locus standi in the Inspectorate proceedings, finding that they were not the immediate neighbours since there was a public road between the two plots of land. In addition, the Inspectorate found that a potential landslip did not present any risk to the property of the applicants. As neither the applicants’ rights and obligations nor their legal interest could be affected by the Inspectorate proceedings conducted against their neighbour, they could not be said to have standing.
36. The applicants appealed to the Ministry.
37. On 29 December 2004 the Ministry rejected their appeal.
38. On 17 February 2005 the applicants challenged this decision and instituted proceedings before the Administrative Court.
39. On 15 December 2005 the Administrative Court rejected the applicants’ claim, finding that they had failed to demonstrate their legal interest, namely that the Inspectorate’s measures might affect their rights. As a result, the Administrative Court ruled that the applicants did not have standing.
40. On 28 August 1997 the applicants requested permission to examine the case file from 1980 concerning their neighbour’s urban planning permit (urbanistično potrdilo za gradnjo) issued in respect of certain buildings on their neighbour’s plot of land.
41. On 12 September 1997 the officer of the Jesenice Administrative Unit (Upravna enota Jesenice) orally informed the applicants that their request would be refused. No written decision was issued within the prescribed time-limit.
42. On 15 September 1997 the applicants lodged an appeal to the Ministry against the oral decision refusing them access to the file.
43. On 24 December 1997 they lodged a claim with the Supreme Court on account of the Ministry’s failure to decide. In accordance with a change in the relevant legislation, the Administrative Court obtained jurisdiction in the case.
44. However, on 13 January 1999, the Ministry issued a decision rejecting the applicants’ appeal.
45. On 5 February 1999 the applicants extended the claim lodged on 24 December 1997 to include also the Ministry’s decision.
46. On 8 September 1999 the Administrative Court quashed the Ministry’s decision for procedural reasons and remitted the case for re-examination.
47. On 12 November 1999, since no decision had been issued by the Ministry within the prescribed time-limit, the applicants requested the Administrative Court to give a ruling. The Administrative Court rejected their request as premature.
48. On 2 February 2000 the applicants were asked to demonstrate their legal interest in the case. As a result, the applicants submitted the Administrative Court’s decision of 8 September 1999.
49. On 17 February 2000 the Jesenice Administrative Unit, after re-examination, again rejected the applicants’ request to have access to the file since they had failed to demonstrate their legal interest in the case.
50. On 23 February 2000 the applicants appealed to the Ministry.
51. On 4 May 2004 the Ministry rejected the appeal. The applicants did not lodge any claim against this decision to the Administrative Court. However, on 11 May 2004, they requested the Ministry to reopen the proceedings.
52. On 8 June 2004 that request was rejected by the Ministry.
53. On 22 March 1996 the applicants’ neighbour lodged an application for a site development permit (lokacijsko dovoljenje) concerning the legalisation of extensions to his house and certain facilities built on his property. By virtue of the applicable domestic law, the applicants were a party to this set of proceedings.
54. Hearings were held on 5 June 1996 and 2 April 1997; the applicants participated in these hearings.
55. On 16 April and 15 May 1997 the applicants requested that the relevant evidence in the proceedings be secured by the Administrative Unit’s decision.
56. On 26 June 1997 the applicants appealed to the Ministry on account of the Administrative Unit’s failure to decide.
57. On 16 July 1997 the Administrative Unit issued a decision rejecting the applicants’ request to secure evidence.
58. On 23 July 1997 the applicant appealed against that decision to the Ministry.
59. On 23 October 1997 they urged the Ministry to rule on their appeal.
60. On 11 December 1998 the Ministry quashed the first-instance decision of 16 July 1997 and remitted the case for re-examination.
61. On 18 January 1999 the applicants appealed to the Ministry on account of the Administrative Unit’s failure to decide.
62. In response to a letter of 27 January 1999 in which the Ministry requested an explanation, the Administrative Unit informed the Ministry that the decision quashing the first-instance decision (see paragraph 60 above) had never been served on them. Subsequently, the Ministry informed the Administrative Unit that the decision had been served on them on 15 December 1998.
63. On 27 October 1999 the applicants requested the Ministry to urge the Administrative Unit to decide on the case.
64. On 27 December 1999 the Administrative Unit informed the Ministry that the delays were due to the backlog of administrative cases. On 18 January 2000, finding the said reasons for delays unjustified, the Ministry ordered the Administrative Unit to issue a decision within fifteen days.
65. On 2 November 2000 the Administrative Unit issued a site development permit which had the effect of legalising the relevant buildings and facilities.
66. On 21 November 2000 the applicants appealed to the Ministry against this decision.
67. On 14 June 2004 the Ministry quashed the first-instance decision and remitted the case for re-examination.
68. On 5 October 2004 and on 16 May 2006 two hearings were held. Subsequently, the Administrative Unit issued a new site development permit legalising the relevant buildings and facilities.
69. The applicants appealed against this decision.
70. On 14 December 2006 the Ministry quashed the first-instance decision and remitted the case for re-examination.
71. On 30 July 2007 the Administrative Unit rejected the application for a site development permit lodged on 22 March 1996 by the applicants’ neighbour. It appears that the neighbour did not appeal against this decision.
72. Pursuant to section 49 of the 1986 General Administrative Procedure Act (Zakon o splošnem upravnem postopku, Official Journal no. 47/86), as in force at the material time, only a person having requested the institution of proceedings, a person against whom the proceedings were conducted or a person allowed to participate in the proceedings to protect his or her rights, was to be considered a party to proceedings.
73. Section 124 provided that administrative proceedings might be instituted by the administrative authorities ex officio on the basis of law or when so required by the public interest. When instituting proceedings ex officio, the authorities were required to consider any request made by an individual or an organisation as well as any instructions of other authorities.
74. Section 218 (1) provided that in simple matters, where there was no need to undertake a separate examination or there was no other reason which would prevent the authorities from deciding immediately, an administrative body was obliged to give a decision within one month of the submission of the request for the institution of proceedings or the date on which the proceedings were instituted ex officio. In all other cases the administrative body was obliged to give a decision within two months.
75. Section 218 (2) entitled a party whose application had not been decided within the time allowed in sub-section 1 to lodge an appeal as if the application had been denied.
76. Section 26 of the 1997 Administrative Disputes Act (Zakon o upravnem sporu, Official Journal no. 50 /97, entry into force 1 January 1998) entitles a party having lodged an application with an administrative body to institute administrative proceedings before the Administrative Court (administrative dispute) in the following cases:
“ (...)
2. If the appellate body does not rule on the applicant’s appeal against the first-instance decision within 2 months, or within a shorter period, if any, prescribed by law, and fails to make an award upon a subsequent request within a further period of seven days, the applicant may then bring an administrative action, as if his request had been dismissed.
3. The applicant may also act in accordance with the preceding paragraph when an administrative body of the first-instance fails to give a decision from which no appeal lies.
4. If in matters where a right to an appeal exists a body of the first instance fails to give a decision upon the individual’s application within 2 months, or within a shorter period, if any, prescribed by law, the individual may then submit his application to the appellate administrative body. Should the latter find against him, the individual may then bring an administrative action. The individual may also bring an administrative action under the conditions set out in paragraph 2.”


ITEMID: 001-77685
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: WILDGRUBER v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Erwin Wildgruber, is a German national who was born in 1935 and lives in Harmstorf. He is represented before the Court by Mr G. Rixe, a lawyer practising in Bielefeld. He lodged the application also on behalf of his two children Jan-Moritz (J.-M.) and Peer Alexander (P.).
The applicant and Mrs W.-L. (born in 1965) married in May 1994. Their son P. was born on 30 November 1994. The applicant further adopted Mrs W.-L.’s son J.-M. who was born on 19 April 1991. Since the spouses’ separation in May 1997, both children live with Mrs W.-L.
On 29 October 1997 the Winsen (Luhe) District Court held a hearing in which the applicant and his wife reached an agreement on the applicant’s access to his children. According to that agreement, the applicant was entitled to personal contacts with his children, then aged six and two respectively, every Wednesday after school until 6 p.m., every second week-end from Friday 6 p.m. until Sunday 6 p.m., during all school holidays up to half of their duration and on Christmas, Easter and Pentecost on the second public holiday.
On 13 November 1998 the Winsen (Luhe) District Court, after having heard the parties and J.-M., restricted the applicant’s right of access to every second week-end from Friday 6 p.m. to Sunday 6 p.m. and to the first half of all school holidays, with the exception of the Christmas holidays, in which he was granted access in their second half.
In June 1999, following the exercise of his right of access, the applicant refused to bring the children back to their mother and travelled around with them in Germany without informing her of their whereabouts.
On 20 July 1999 the Winsen (Luhe) District Court granted Mrs W.-L. sole custody of J.-M. and P. and ordered the applicant to render the children to Mrs W.-L.
In November 1999 the applicant returned the children to their mother.
On 11 September 2000 the applicant lodged a motion with the Winsen (Luhe) District Court to amend its decision dated 13 November 1998 and to broaden his right of access to his children. In particular, he applied to be granted access not only every second week-end and during half of all school holidays, but also every Wednesday after (nursery) school, during part of the public holidays, further public holidays possibly fixed by law in the future and his children’s birthdays once in two years.
On 6 November 2000 the Harburg Youth Office submitted its report after having heard the applicant and Mrs W.-L. on the question of access. Its representative, a social pedagogue, summarized the spouses’ diverging views on an extension of the applicant’s right of access. She took the view that it was up to the District Court to decide on this issue, as mediation by the Youth Office between the spouses had no prospects of success. The representative further stated that she did not hear the spouses’ children (then aged nine and five) as they were to be questioned in court soon and she wished to spare them another hearing within a short period of time.
On 14 November 2000 the Winsen (Luhe) District Court held a hearing in which it questioned the spouses and their children in person. Both J.-M. and P. stated that they wished to visit their father also during the week from time to time. P. said that he also wanted to celebrate his birthday at his father’s place, but that his mother had told him not to express this wish at the hearing.
On 28 November 2000 the Winsen (Luhe) District Court supplemented its decision dated 13 November 1998. Relying on section 1684 of the Civil Code it ordered that the applicant’s right of access during the first half of the school holidays began at 10 a.m. on the first day and ended at 6 p.m. on the last day of access. Apart from that completion, it dismissed the applicant’s motion to amend its decision dated 13 November 1998.
Having regard to the Youth Office’s written report dated 6 November 2000, the District Court found that granting the applicant access to his children more often than fixed in its decision of 13 November 1998 was not in the children’s best interests.
As to the applicant’s motion to be granted access also on Wednesdays and on public holidays the District Court observed that Mrs W.-L. had sole custody of the children who resided with her. They needed to be stabilized in the central place of their life and residence and should not be torn between their parents. For the same reasons, it was not in the children’s best interests to broaden the applicant’s right to personal contacts during the school holidays. In view of the serious tensions between the spouses it had, however, been necessary to fix exact times for the beginning and end of the applicant’s right of access.
As to the applicant’s motion to be granted access to his children also on their birthdays, the District Court took the view that it was in the children’s best interests to pass their birthdays with the parent having custody, where they could celebrate with friends and possibly relatives in adequate surroundings. Moreover, as it was more likely that the legislator suppressed public holidays instead of creating new ones, it was unnecessary to grant a right of access for public holidays possibly fixed in the future.
The District Court took the view that the applicant’s request for further contacts was directed at circumventing Mrs W.-L.’s sole custody of their children. Given that in 1999 the applicant had failed to return the children to their mother following the exercise of his right of access and had been travelling around with them for several months without informing her of their whereabouts, this was unacceptable.
On 15 December 2000 the applicant lodged an appeal against the District Court’s decision. In his reasoning dated 30 January 2001 he complained in particular that the District Court had failed to take into account the specific circumstances of his case, in particular the fact that his sons wanted to see him more often, had refused to obtain an expert report and had failed to appoint a curator ad litem. Referring to the standards established in the Court’s judgment of 13 July 2000 in the case of Elsholz v. Germany, he further took the view that his children and a psychological expert should be heard in the appeal proceedings.
On 1 March 2001 the Harburg Youth Office filed a written report. Without having heard the spouses again and without having heard their children, its representative took the view that the wishes expressed by children of the age of J.-M. and P. were not decisive for the extent of access which was in their best interests. Otherwise, parents conscientiously or unconscientiously would tend to influence their children according to their own wishes. There was no danger of alienation between the appellant and his children if the present regulation on access was complied with. It was essential for the children to know where their main place of life and residence was after the appellant had travelled around with them in Germany for four months in 1999, without informing their mother of their whereabouts.
On 27 March 2001 the Celle Court of Appeal, without holding a hearing, dismissed the applicant’s appeal as ill-founded. In the court’s view, the extent of personal contacts as ordered by the District Court in its decision dated 13 November 1998 were sufficient to cultivate and develop the relationship between the appellant and his children. According to the court’s own experience, it was in the best interests of children aged nine and six like J.-M. and P. to have one main place of residence where they passed their everyday life and met friends. The children lived with their mother. Even though his children enjoyed visiting him, broadening the appellant’s access to them would de facto make them reside at two places. In view of the very serious tensions between the parties, this would unsettle them and make them feel not to know where they belong.
For the same reasons, the Court of Appeal confirmed that the appellant’s contacts with his children during the holidays and on further public holidays should not be broadened.
The Court of Appeal further agreed with the District Court that the appellant should not be granted access to his children on their birthdays. It was in the children’s best interests to pass their birthdays at their home in order to be able to celebrate with children living in their neighbourhood. It endorsed the reasons given by the District Court in respect of the appellant’s further motions.
In the Court of Appeal’s view, it had not been necessary to appoint the children a curator ad litem in the present proceedings in order to represent them and to protect their interests. In particular, given the children’s age, it was not yet their subjective wish to broaden their contacts with their father, but their objective best interests not to disturb their prosperous development which was decisive.
On 4 May 2001 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the family courts had dismissed his motion to be granted more personal contacts with his children without consulting an expert, without appointing a curator ad litem and without hearing the parents and the children in the appeal proceedings. He argued that thereby, his parental rights and his rights to equality and to be heard as guaranteed by the Basic Law and by Articles 6 and 8 of the Convention had been violated.
On 1 July 2002 a panel of three judges of the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It referred to sections 93 a and b of the Federal Constitutional Court Act allowing the panel not to accept complaints for adjudication which are not of fundamental constitutional significance and the acceptance of which is not necessary to enforce a complainant’s rights under the Basic Law. In accordance with section 93 d § 1, third sentence, of the said Act, the court did not give reasons for its decision.


ITEMID: 001-101970
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF HESZ v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: 4. The applicant was born in 1951 and lives in Budapest.
5. On 10 September 1992 the applicant brought an action against several respondents before the Budapest XX/XXI/XXIII District Court, requesting it to establish the invalidity of a contract and to order the respondents to vacate the house in which they lived.
6. Subsequently, several hearings took place and the opinion of an expert was obtained. Between 4 February 1997 and 20 May 1999 the case was suspended pending a related procedure before the land registry.
7. After several further hearings, on 30 June 2004 the District Court dismissed the action. On appeal, the Budapest Regional Court upheld the essence of the first-instance decision on 13 April 2005. On 4 April 2006 the Supreme Court dismissed the applicant’s petition for review.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76997
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF ELO v. FINLAND
IMPORTANCE: 4
CONCLUSION: No violation of Art. 6-1
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1974 and lives in Rauma, Finland.
8. The applicant worked as a sheet-iron worker. He had graduated from secondary school and had received training in technical design. He had also taken a course in management with the intention of carrying on his father's sheet-iron business. On 17 October 1996 he was involved in an accident at his place of work. He sustained injuries to his legs and heels. After the accident he commenced business studies at a university in 1999.
9. An insurance company granted the applicant an allowance for 100% reduction of his working capacity for the period from 18 October 1996 to 16 October 1997. The same insurance company also granted the applicant an industrial injury pension for the period from 17 October 1997 to 31 August 1999.
10. On 27 June 2000 the insurance company gave two decisions regarding the applicant's further insurance claims. It granted the applicant an allowance for one year for studies which would upgrade his skills in technical design. He was also granted funding for a half year's support training for finding a job.
11. The insurance company also granted the applicant inconvenience compensation (haittaraha, menersättning; ”compensation”) and found that the injuries sustained to the applicant's right leg and heel corresponded to the category 3 disability (haittaluokka, invaliditetsklass; ”category”; see paragraph 24 below).
12. The applicant appealed to the Accident Board (tapaturmalautakunta, olycksfallsnämnden) about the said decisions. He requested, inter alia, that his compensation be graded at category 7 (instead of 3). For this purpose, he submitted two medical opinions written by his doctors, H. and A., in which the applicant's injuries were assessed as being comparable to category 6 or 7 injuries.
13. The applicant requested an oral hearing in order to present evidence in support of his view on how his injuries should be graded. In particular, the applicant wanted Drs H. and A. to be heard concerning the facts on which they based their estimation of the injuries. The applicant also wanted to give an oral statement about the handicaps in his everyday life due to his injuries.
14. The Accident Board requested further written arguments from the insurance company, which objected to an oral hearing. The Accident Board then requested the applicant to present his written observations on the insurance company's arguments. The applicant submitted further arguments in support of his view on the grading of his injuries.
15. On 5 April 2001 the Accident Board rejected the applicant's claim and his request for an oral hearing, reasoning that the proceedings before it were usually written. It noted that Drs H. and A. had already submitted their written statements to the Accident Board and, thus, there was no need for an oral hearing.
16. The applicant appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen), again claiming a higher (category 7) grading of his injuries. He also requested an oral hearing, repeating his wish to have Drs H. and A. heard as witnesses concerning his disability in movement and standing in order to assess the disability category to which he was entitled. He requested that the latter question be examined from the wider perspective of the condition of the “lower extremities as a whole” and not from the more restricted perspective of the injuries to his heels and ankles.
17. The Insurance Court received further observations from the parties regarding their demands and a new medical opinion. On 19 June 2002 the Insurance Court upheld the decision of the Accident Board and rejected the applicant's request for an oral hearing, reasoning that the procedure in the Insurance Court was as a general rule written and that an oral hearing in the present case was unnecessary. It found that given the medical opinions submitted, the applicant's entitlement to compensation had to be based on the evaluation of the injuries sustained to his heels and ankles, in which assessment it was satisfied with the written medical evidence. The Insurance Court maintained that the various medical reports at its disposal were sufficient evidence without the need to have them confirmed under oath. It further noted that the hearing of the applicant in person was not necessary as the decisive factor in the decision-making was the medical reports.
18. There was no appeal against the decision of the Insurance Court.
19. The procedure in the Accident Board and the Insurance Court is governed by the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslag; Act no. 586/1996), which entered into force on 1 December 1996. Section 9 of the Insurance Court Act (laki vakuutusoikeudesta, lag on försäkringsdomstolen; Act no. 14/1958, as amended by the Act no. 278/1999), as in force at the relevant time, provided that the Administrative Judicial Procedure Act was to be applied when examining a matter in the Insurance Court unless otherwise stipulated.
20. On 1 May 2003 the new Insurance Court Act (vakuutusoikeuslaki, lag om försäkringsdomstolen; Act no. 132/2003) entered into force. Under section 16 of the Act the Insurance Court shall hold an oral hearing as provided in section 38 of the Administrative Judicial Procedure Act.
21. Under section 37 of the Administrative Judicial Procedure Act an oral hearing, in which witnesses and experts may be heard and other evidence obtained, shall be held when necessary for establishing the facts of the case. Under section 38 an oral hearing must be held if requested by a private party. An oral hearing may however be dispensed with if the application is dismissed without considering its merits or if an oral hearing would be manifestly unnecessary in view of the nature of the matter or for another reason.
22. Section 5 of the Insurance Court Act, as in force at the relevant time, provided that a medical doctor participated in the decision-making in the Insurance Court in cases where a medical assessment was deemed necessary.
23. Section 18a, paragraph 1 of the Accident Insurance Act (tapaturmavakuutuslaki, lag om olycksfallsförsäkring; Act no. 608/1948 as amended by Act no. 1642/1992) provides that inconvenience compensation shall be paid to an employee who, inter alia, has suffered permanent injuries as a result of an accident.
24. The grading of injuries is based on the decision of the Ministry of Social Affairs and Health (sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet; decision No. 23.12.1986/1012; “Ministry's decision”), according to which injuries and disabilities are divided into 20 disability categories. The applicable category is determined by choosing an equivalent or comparable injury on the scale of injuries. For example, an amputation of instep bones corresponds to category 3 and an amputation of an ankle or an entire foot corresponds to category 4-5. In cases where the above scale of specific injuries cannot be applied, a more general title, for example “the lower extremities as a whole”, may be used. In such a case, minor insufficiency in movement corresponds to category 0-5 and medium insufficiency category 6-10.
The quality and extent of the injuries are taken into consideration in the assessment. On the other hand, personal circumstances, such as a profession, are not material. The injured person's abilities are compared with the abilities of a healthy person of the same age.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-61194
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 2003
DOCNAME: CASE OF SAHIN v. GERMANY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed;No violation of Art. 8;Violation of Art. 14+8;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 11. The applicant, born in 1950, was a Turkish national at the time of the events complained of. He subsequently obtained German nationality.
12. The applicant is the father of G., born out of wedlock on 29 June 1988. In a document dated 15 June 1988, he acknowledged paternity of the unborn child, and in a further document, dated 15 August 1988, he acknowledged paternity and undertook to pay maintenance.
13. The applicant met the child's mother, Ms D., in 1985 and in December 1987 he moved into her flat, where they lived together until at least July 1989 or, as stated by the applicant, until February 1990. In any event, the applicant continued to visit the child and her mother until February 1990, and between the end of July and October 1990 he regularly fetched G. for visits. From November 1990 onwards, Ms D. prohibited any contact between the applicant and the child.
14. On 5 December 1990 the applicant applied to the Wiesbaden District Court for a decision granting him a right of access to his daughter on every Sunday from 10 a.m. until 6 p.m. as well as on Boxing Day and Easter Monday.
15. On 5 September 1991 the District Court, having regard to the statements made by the parties and the Wiesbaden Youth Office and having considered evidence obtained from several witnesses, dismissed the applicant's request.
16. The court, referring to Article 1711 of the Civil Code, observed that the mother, as the person having custody, determined the father's right of access to the child and that the guardianship court could only grant the father a right of access if this was in the child's best interests. The court found as follows:
“The Court is convinced that the petitioner's wish for [G.] to visit him is motivated by attachment to his child and genuine affection for her. It nonetheless takes the view that personal contact with her father is not in the child's best interests, since her mother dislikes her father so deeply and opposes all contact so fiercely that any visits ordered by the court would take place in a tense, emotionally charged atmosphere which would probably be extremely harmful to the child.
The Court can discern no special circumstances which, given the strong differences between the parents, might make personal contact with her father appear beneficial for [G.] ... The relationship which developed between [G.] and her father in the period from her birth to her father's moving out – that is, approximately one year and nine months – is probably not of such fundamental importance that the risk of seriously upsetting the child by resuming contact opposed by her mother is worth taking. The staff who looked after [G.] at the day nursery, and who were questioned as witnesses, stated that she displayed no – or at least no serious and lasting – behavioural abnormalities when she was parted from her father and contact between them ceased, and that she is a balanced, cheerful and outgoing child. The evidence does not therefore confirm her father's claim that she missed him and frequently asked about him after their contact at the day nursery ceased.
It has not therefore been shown that the conditions laid down in Article 1711 § 2 have been met, and the Court is accordingly obliged to dismiss the father's request.”
17. On 12 March 1992 the applicant appealed to the Wiesbaden Regional Court.
18. On 12 May 1992 the Regional Court ordered a psychological expert opinion on the question whether contact with the applicant was in G.'s interests. On 8 July 1992, following a first conversation with the expert, the applicant challenged her for bias. He also requested that another expert be appointed on the ground that the scientific approach adopted did not reflect the latest state of research. On 9 September 1992 the Regional Court refused the applicant's request, finding that, taking into account the expert's explanations of 8 August 1992, there were no reasons to doubt her impartiality or her capabilities.
19. On 17 December 1992 the applicant requested the Regional Court to progress with the proceedings. He also applied for a provisional order granting him a right of access to G. during one afternoon every week and prohibiting her mother from obstructing such contact.
20. On 23 December 1992 the Regional Court dismissed the applicant's request for a provisional order granting access. The Regional Court found that there was no urgency and that the applicant could be expected to await the outcome of the main proceedings. Furthermore, such an order would anticipate the possible terms of a final decision. Should a provisional order be issued and the request be eventually dismissed in the main proceedings, the disadvantages for the child would be more serious than those for the applicant in continuing with the prevailing situation.
21. In her opinion dated 25 February 1993, the expert noted that she had visited the applicant's family in June 1992 and again heard the applicant, the child's mother and the child on several occasions between November 1992 and February 1993. As regards her meetings with G., the expert explained that in the course of various games she had explored her feelings concerning persons and situations and concerning the applicant. They had also looked at a family photo album and G. had avoided looking at the more recent photographs. This reaction showed that G. had repressed the memories of her father. The expert reached the conclusion that a right of access without prior conversations to overcome the conflicts between the parents was not in the child's interests.
22. By a letter of 8 March 1993, the Regional Court, noting that the District Court had omitted to hear the child, enquired of the expert whether hearing the child in court on the issue of her relationship with her father would place a psychological strain on her.
23. In her reply of 13 March 1993, the expert indicated that she had not directly asked the child about her father. She had expected that G. would react spontaneously in the course of the meetings and express her feelings towards him. In the expert's view, the fact that G. had not mentioned her father was certainly relevant. The expert further referred to the last meeting, when they had glanced through a family photo album and she had asked G. about whether she still knew her father. On both occasions, she had appeared to repress her memories concerning him. The risk inherent in questioning her about whether she wished to see her father was that, in this conflict between the parents, the child might have the impression that her statements were decisive. Such a situation could provoke serious feelings of guilt.
24. At a court hearing on 30 April 1993, the applicant and the child's mother entered into an agreement. Under the terms of this agreement, the applicant declared that he would refrain from instituting any court proceedings, making any enquiries about the mother's personal circumstances and exercising his right of custody obtained under Turkish law on condition that they underwent parental therapy. The proceedings were suspended until the termination of this therapy.
25. On 1 June 1993 the applicant requested that the proceedings be resumed as the child's mother had not approved the two institutions for family therapy proposed by the applicant and had failed to react to his suggestion that she should make a proposal.
26. On 25 August 1993 the Wiesbaden Regional Court dismissed the applicant's appeal, finding as follows:
“Personal contact with a child born out of wedlock is intended to allow a father to satisfy himself as to the child's welfare and development and preserve the natural ties existing between them. It is not therefore the purpose of granting access, but the legal conditions for doing so, which differ: while a parent who does not have custody of a child born in wedlock is entitled to access under Article 1634 [of the Civil Code], Article 1711 [of the Code] does not grant a right of access to the father of a child born out of wedlock. Rather, the law leaves it up to the person having custody, as a rule the mother, to determine whether, and to what extent, the father should be able to spend time with his child. However, the guardianship court may decide that the father is entitled to access if this is in the child's best interests. The main reason for the weaker legal position of the father of a child born out of wedlock is his different social position. After the Federal Constitutional Court's decisions of 1971 and 1981, the constitutionality of Article 1711 can no longer be seriously doubted. For considerations of legal policy, a reform of the law on children born out of wedlock is even more urgently necessary. In the meantime, the courts are bound by Article 1711.
Under that provision, the guardianship court decides to grant a father access to a child born out of wedlock if this is beneficial for the child's welfare. It is not enough for such contact to be consistent with, or not contrary to, the child's interests, it must serve those interests and promote them. This interpretation justifies the assumption that fathers should generally be granted access to their children because this enables the latter to develop as normally as possible and helps them to form a clear image of themselves and their origin. It is in fact important for children not simply to have a fantasy picture of their fathers, but to be able to form a personal, realistic picture.
Whether contact with the father is conducive to the child's well-being depends initially on the father's motives for seeking it. The Regional Court is convinced that the father in this case is motivated by attachment to [G.] and genuine affection for her. Even when a father acts from responsible motives, however, the court is not necessarily obliged to grant him access if there are serious tensions between the parents, these are communicated to the child, and there is reason to fear that every meeting with the father will interfere with the child's further undisturbed development in the residual family provided by the mother ...
In view of the findings in the [psychological expert] report referred to above, it must be assumed that this would happen in the instant case. If the father were granted access to [G.] in present circumstances, she would have to shuttle between hostile camps, which should not be asked of her.
If – as in this case – there is a danger that differences between parents may affect a child, then special circumstances are needed to justify the assumption that contact with the father will nevertheless have permanently beneficial effects on the child's development or well-being ... However, no such circumstances can be discerned here. It is true that, for the first two years of her life, [G.] grew up with both father and mother, but this period was not conflict-free. The disagreements and sometimes open aggression between her parents – in other words, the family violence she witnessed – have certainly left their mark on her, even if she can no longer recall them spontaneously. As the psychological report indicates, she has also repressed her old ties with her father – a fact reflected in the care she takes to avoid talking about him. In view of all this, the report finds that she does not suffer as a result of the present situation.
The Court can rely fully on the report, which has no apparent defects and is not invalidated by the fact that the father sees the situation differently.
In finding that therapy had not enabled the parents to put their former conflicts behind them, thus making it possible for [G.] to have access to both of them, the Court did not have to decide who was to blame for this ... The decisive factor is always the child's point of view. As already pointed out, however, the situation in this case is such that the parents must first initiate dialogue with each other.”
27. The Regional Court finally considered that exceptionally it had not been required to hear the child, since questioning her about her relationship with her father would have placed a psychological strain on her. In this connection, the court referred to the expert's supplementary report of 13 March 1993 (see paragraph 23 above).
28. On 21 September 1993 the applicant filed a constitutional complaint with the Federal Constitutional Court, complaining that the refusal of access to his daughter infringed his parental rights and amounted to discrimination, and alleging that the taking of expert evidence had been unfair. The Federal Constitutional Court acknowledged receipt on 29 September 1993.
By a letter of 26 April 1994, the applicant asked the Constitutional Court about the state of the proceedings and urged a speedy decision. On 16 May 1994 the Constitutional Court informed him that in a similar case which had been registered at an earlier date a decision was envisaged for the first half of 1995.
On 26 November 1995 the applicant sent a letter to the President of the Federal Constitutional Court complaining that the examination of his constitutional complaint had been postponed until the first half of 1996. In her reply of 15 February 1996 the judge dealing with the applicant's case informed him that, owing to the heavy workload of the Federal Constitutional Court in 1995, it had not been possible to take a decision. A decision was envisaged in 1996. Having regard to the importance of the subject matter, such a decision required careful preparation.
29. On 1 December 1998 the Federal Constitutional Court, sitting as a panel of three judges, refused to entertain the applicant's constitutional complaint.
30. The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed following the adoption of new family legislation (Reform zum Kindschaftsrecht) on 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998.
31. Article 1626 § 1 reads as follows:
“The father and the mother have the right and the duty to exercise parental authority [elterliche Sorge] over a minor child. The parental authority includes the custody [Personensorge] and the care of property [Vermögenssorge] of the child.”
32. Pursuant to Article 1626 a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to Article 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child's relationship with the other parent or seriously interfere with the child's upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; they may also order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child's well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association.
33. Before the entry into force of the new family legislation, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows:
“1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child's relationship with others or seriously interfere with the child's upbringing.
2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under Article 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child's welfare.
3. A parent not having custody who has a legitimate interest in obtaining information about the child's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child's interests. The guardianship court shall rule on any dispute over the right to information.
4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”
Article 1632 § 2 concerned the right to determine third persons' rights of access to the child.
34. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows:
“Custody over a minor child born out of wedlock is exercised by the child's mother ...”
“1. The person having custody of the child shall determine the father's right of access to the child. Article 1634 § 1, second sentence, applies by analogy.
2. If it is in the child's interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Article 1634 § 2 applies by analogy. The guardianship court can change its decision at any time.
3. The right to request information about the child's personal circumstances is set out in Article 1634 § 3.
4. Where appropriate, the Youth Office shall mediate between the father and the person who exercises the right of custody.”
35. Like proceedings in other family matters, proceedings under former Article 1711 § 2 of the Civil Code were governed by the Non-Contentious Proceedings Act (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit).
36. According to section 12 of that Act, the court shall, of its own motion, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate.
37. In proceedings regarding access, the competent Youth Office has to be heard prior to the decision (section 49(1)(k)).
38. As regards the hearing of parents in custody proceedings, section 50a(1) stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child's assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to section 50a(2), a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter.
39. The human rights of children and the standards to which all States must aspire in realising these rights for all children are set out in the United Nations Convention on the Rights of the Child. The convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany.
40. The convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children's rights by setting standards in health care, education and legal, civil and social services.
41. States parties to the convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child, and respect the right of a child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests (Article 9).
VIOLATED_ARTICLES: 14
8
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-59112
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF KAWKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - financial award
JUDGES: Elisabeth Palm
TEXT: 7. On 6 January 1994 the Zgierz District Prosecutor issued a warrant of arrest against the applicant and on the same day he was remanded in custody on suspicion of attempted manslaughter by assaulting the victims in their apartment with a knife and axe.
8. On 25 March 1994 the Łódź Regional Court granted the prosecutor’s request for prolongation of the detention until 4 July 1994 in view of the need to take further expert opinions. On 5 April 1994 the Łódź Regional Court dismissed the applicant's request for release.
9. On 11 April 1994 the case was transferred to the Zgierz District Prosecutor.
10. On 26 April 1994 the Łódź Court of Appeal granted the applicant's request to have the decision of 25 March 1994 amended, and fixed the period for which the applicant's detention was authorised to 30 June 1994.
11. On 25 May 1994 the applicant requested his release. The Łódź Regional Court and, upon appeal, the Łódź Court of Appeal, dismissed his request.
12. On 15 June 1994 the applicant requested his release. On 17 June 1994 he underwent a psychiatric examination.
13. On 28 June 1994 the Łódź Regional Court, acting upon the motion of the Zgierz District Prosecutor, prolonged the applicant's detention from 30 June until 30 September 1994. The court considered that the reasons for which the detention had been ordered had not ceased to exist. There was sufficient suspicion based on the evidence that the applicant had committed the offence with which he had been charged. The applicant had to undergo a further time-consuming psychiatric examination and further investigatory measures and evidence had to be taken.
14. On 15 July 1994 an additional psychiatric opinion was submitted to the prosecutor’s office.
15. On 19 July 1994 the Łódź Court of Appeal upheld the decision of 28 June 1994 considering that the detention had to be prolonged as the applicant's psychiatric examination had not been completed.
16. On 11 and 28 August 1994 the applicant requested to be released. His requests were on unspecified later dates dismissed by the Łódź Regional Court.
17. On 1 September 1994 the applicant requested the Regional Court to order his release.
18. On 5 September 1994 he was informed that the charges against him had been in part modified and he was given access to the case-file.
19. On 20 September 1994 the applicant was served with a bill of indictment. On the same day the prosecutor lodged the indictment to the Łódź Regional Court.
20. On 4 October 1994 the Łódź Regional Court dismissed the applicant's request for release of 1 September 1994, having examined it in the prosecutor’s presence. The court considered that there was a reasonable suspicion that the applicant had committed a dangerous offence, supported by the evidence given, inter alia, by the two victims of the assault. The reasons for which the detention had been ordered still existed. The applicant had failed to indicate in his request any new circumstances capable of justifying this.
21. On 6 October 1994 the applicant's father appealed against this decision. He submitted that the period of detention had expired on 30 September 1994, whereas the applicant had not received any decision further prolonging his detention.
22. On 10 October 1994 the applicant's lawyer also lodged an appeal against the decision of 4 October 1994 with the Court of Appeal. He submitted that the court's conclusions as to the reasonableness of the suspicions against him were based on insufficient evidence as only the evidence given by the victims supported the charges laid against the applicant. The applicant's detention since 30 September 1994 lacked any legal basis, as the detention period had expired on this date, and no further decision relating to the prolongation of the detention had been issued by any authority.
23. On 25 October 1994 the Łódź Court of Appeal upheld the decision of 4 October 1994. The court first considered ill-founded the applicant's arguments that the suspicion against him lacked any legal or factual basis. The court further considered that the applicant's suggestion that his detention since 30 September 1994 was unlawful, was entirely erroneous. The applicant's lawyer must apparently have overlooked the fact that the bill of indictment had been lodged with the court on 21 September 1994. Therefore the time-limits provided for by Article 222 of the Code of Criminal Procedure of 1969 had ceased to apply, given that this provision applied only to the pre-trial stage of criminal proceedings. One might have thought, the court continued, that such manifestly obvious conclusion, which required only a cursory perusal of relevant provisions, should not have caused any interpretation difficulties.
24. The court fixed the date for the first hearing for 27 January 1995, but it was later adjourned. Subsequently, on 14, 16, 27 and 31 March 1995 and on 6 April 1995 the applicant requested to be released, but to no avail, as the Łódź Regional Court dismissed all his requests.
25. On 5 June 1995 the court convicted the applicant of attempted manslaughter and sentenced him to five years' imprisonment.
26. At the material time, the domestic provisions governing detention on remand were contained in the Code of Criminal Procedure of 1969, which was later repealed and replaced by the new Code of Criminal Procedure of 6 June 1997 (hereafter referred to as the “new Code of Criminal Procedure), which entered into force on 1 September 1998.
27. Under the 1969 Code, the grounds for imposing detention on remand and competent authorities were governed by the following provisions:
"1. Preventive measures [i.e. detention on remand, bail and police supervision] shall be imposed by the court; before a bill of indictment is lodged with the court, those measures shall be ordered by the prosecutor (...)."
"1. A decision concerning preventive measures may be appealed [to a higher court] ....
2. A prosecutor's order on detention on remand may be appealed to the court competent to deal with the merits of the case...."
“A preventive measure (including detention on remand) shall be immediately quashed or altered if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one.”
“1. Detention on remand may be imposed if:
...
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the due course of proceedings by any other unlawful means;
...
(4) an accused has been charged with an offence which creates a serious danger to society.”
28
29. Since 4 August 1996, and under the present criminal legislation, i.e. the new Code of Criminal Procedure, referred to above (see § 26), the courts have been, and are bound by the maximum statutory time-limits for which pre-trial detention can be imposed, during the entire course of the proceedings.
30. Under the provisions applicable at the material time, the courts, when ruling on a prosecutor’s request submitted to it pursuant to Article 222 the Code, were obliged to determine the precise period for which detention could be prolonged. If they refused to prolong detention or if the prosecutor failed to submit a request for a further prolongation before or on the expiry of the last detention order (regardless of whether it had been made by him or by a court), the detainee had to be released immediately.
31. Presence of the parties at court sessions other than hearings on the merits was regulated at the relevant time in Articles 87 and 88 of the Code of Criminal Procedure of 1969 which provided, insofar as relevant:
"The Court pronounces its decisions at a hearing if the law provides for it; and otherwise, at a court session held in camera. ..."
"A court session in camera may be attended by a prosecutor (...); other parties may attend if the law provides for it."
However, no rule provided for the attendance of the accused or his or her lawyer before the court in any type of the proceedings concerning detention on remand.
32. At the relevant time there were no specific provision governing detention on remand after the bill of indictment was lodged with the competent court. In particular, there was no provision to the effect that lodging a bill of indictment automatically prolonged or replaced previous detention order, or that this event itself resulted in detention, which had originally been prolonged by a court for a fixed period at the investigation stage, being continued either for an unlimited period, or until a judgment at first instance was given. Nor was there any case-law to that effect. Nevertheless, according to the domestic practice, once a bill of indictment had been lodged with the court competent to deal with the merits of the case, detention was assumed to be prolonged pending trial, without any further judicial decision being given.
33. Articles 295 and 296 of the Code of Criminal Procedure of 1969, referring to the formal requirements that a bill of indictment had to satisfy, stated, inter alia, that it should contain the first name and surname of the accused and information as to whether a preventive measure had been imposed on him or her. It also had to comprise a statement of the offence with which he or she had been charged, a detailed description of the facts of the case along with a statement of reasons for the accusation, an indication of the court competent to entertain the case, and the evidence upon which the accusation was founded.
34. On 6 February 1997 the Supreme Court, in an interpretative ruling of certain provisions of the Code of Criminal Procedure of 1969 as amended by the Law of 29 June 1995, addressed the problems posed by the practice of keeping an accused in detention under the bill of indictment. In its resolution (no. I KZP 35/96) the Supreme Court replied – in the affirmative – to the question whether, after lodging a bill of indictment with the court competent to deal with the merits of the case, that court was obliged to give a decision prolonging detention on remand, which had meanwhile exceeded the period fixed (or further prolonged) at the investigation stage. The relevant parts of the resolution read as follows:
“Under the provisions of the Code of Criminal Procedure which applied before [4 August 1996, when] the amendment of 29 June 1995 took effect, an obligation to determine the period of detention imposed by a prosecutor at the investigation stage was laid down in Article 211 § 2. However, it did not emerge explicitly from Article 222 §§ 1 and 2 (1) of the code that, at the investigation stage, a prosecutor or the court competent to deal with the case had each time to determine the point until which detention should last. It was deemed to be obvious that, when prolonging detention at the investigation stage, both the prosecutor and the court competent to deal with the case had to determine the time until which detention was to last under a given decision. It was therefore assumed that the obligation to determine the period of detention arose if a decision on that matter was given before the expiry of the maximum statutory terms applicable at a given stage of the proceedings.
Comparing the old legislation with the present one leads [this Court] to the conclusion that the legislator, when amending the code in June 1995, simply extended [the scope of] the rules applicable to continuing and prolonging detention on remand – which had previously applied only at the investigation stage – to the phase of court proceedings.
Before the amendment, the legislation was based on the precept that a suspect should not be detained indefinitely as long as his case was not being dealt with by an independent court. Now, the starting-point is that a suspect (and an accused) should not be detained indefinitely as long as a first-instance judgment is not rendered.
Under the previous legislation there was no need to determine the period of detention after a bill of indictment had been lodged with the court because at this point proceedings reached the phase in which there was no statutory time-limit [on this measure]. For this reason, the court concerned had no interest in [knowing] until when detention had been prolonged under the last decision[;] detention could continue because ‘detention of limited duration’ had become ‘detention of unlimited duration’. There was therefore only a need to ascertain whether there were grounds for continuing detention under Article 213 of the code.”
35. In its further resolution no. I KZP 23/97 of 2 September 1997, the Supreme Court confirmed that:
“If the case, in which detention on remand had been ordered, has been referred to a court with a bill of indictment and the period of detention which had previously been fixed expires, the court has a duty to consider whether detention needs to be continued and to give an appropriate decision on this matter.”
Referring to the resolution of 6 February 1997, it also stressed that:
“ … the ratio legis of the amendments to criminal legislation is based on the precept that a suspect (accused) should in no case be detained indefinitely until the first-instance judgment is rendered in his case …
It should be noted that, from the point of view of procedural safeguards for an accused, what is material is not how long his detention at the investigation stage has lasted and how long it has lasted at the stage of the court proceedings, but the total period of his detention and whether his detention and its length are subject to review. If there is such a review at the investigation stage (section 222 §§ 1 and 2), there is no reason why there should not be one at the stage of the court proceedings …”
36. A new Code of Criminal Procedure was enacted by the Sejm (Parliament) on 6 June 1997. Its Article 250, in its relevant part, reads:
“1. Detention on remand shall be imposed by a court order.
2. In the investigative stage of proceedings, detention on remand shall be imposed, on a prosecutor's request, by a district court in the jurisdiction of which investigations are being conducted. After a bill of indictment is lodged with a court, a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case.
3. The prosecutor, when submitting to a court a request referred to in § 2, shall at the same time order that the suspect be brought before a court."
37. Pursuant to Article 249 of the new Code of Criminal Procedure, before deciding whether the preventive measures should be imposed, the court shall hear the person charged with offence. The lawyer of the detainee should be allowed to attend in the court session concerning review of the lawfulness of pre-trial detention, if he or she is present at the court. However, it is not mandatory to inform the lawyer of the date and time of this session, unless the suspect so requests, and if it will not hinder the proceedings.
38. The court shall inform the lawyer of a detainee of the date and time of court sessions at which a decision, concerning prolongation of detention on remand or an appeal against a decision to impose or to prolong detention on remand, is to be taken. A failure on the part of the duly informed lawyer to attend the session does not prevent the court from pursuing examination of the issue.
39. The applicant lodged his application with the Commission on 22 August 1994, alleging, inter alia, that the courts were arbitrary in their decisions relating to his detention. He complained in particular that for a certain unspecified period as from 30 September 1994 his detention on remand had lacked legal basis, as no decision of a competent authority had been given in order to prolong it beyond that date. The applicant complained that he had never been brought before a court in the proceedings concerning the review the lawfulness of his detention on remand. He finally complained that under domestic law applicable at the material time, neither he nor his lawyer had been entitled to attend any hearing in the proceedings concerning review of the lawfulness of his detention.
40. The application was declared partly admissible by the Commission on 17 May 1995. On 7 July 1997 the Commission declared admissible the applicant’s complaints under Article 5 §§ 1 and 4 of the Convention. In its report of 8 September 1998 (former Article 31 of the Convention) it expressed the unanimous opinion that there had been a violation of Article 5 § 1 of the Convention in that the applicant’s detention under the bill of indictment had been unlawful, and that there had been a violation of Article 5 § 4 of the Convention in that the proceedings concerning review of his detention on remand had not been truly adversarial.
41. The applicant submitted that his detention on remand, insofar as it had been effected under the bill of indictment of 21 September 1994 and after the detention order of 28 June 1994 had expired, had not been in compliance with Article 5 § 1 of the Convention, which states, insofar as relevant:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
…
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
…”
42. The applicant submitted that his detention from 30 September to 4 October 1994 lacked any legal basis, and requested the Court to accept the opinion expressed by the Commission in its report that there had been a violation of Article 5 § 1 (c) of the Convention.
43. The Government acknowledged that the situation complained of had arisen out of a common practice of the Polish courts, referred to as “placing a detainee at the disposal of a court”, followed at the material time. This practice originated from the absence of any precisely formulated provision which would oblige the court to give, on its own motion, any further decision on the prolongation of detention after the bill of indictment had been submitted to the court.
44. The Government emphasised that this practice had been abandoned since 4 August 1996, when the amendments to the Code of Criminal Procedure of 1969, enacted on 29 June 1995, had entered into force. Under these provisions, statutory time-limits of pre-trial detention had been introduced. Subsequently, the relevant provisions of the new Code of Criminal Procedure, which entered into force on 1 September 1998, had put an end to this practice. Under the provisions of the new Code, as currently interpreted in accordance with the case-law of the Supreme Court, following an expiry of a detention order given in the investigative stage of the proceedings and after the bill of indictment had been lodged with a court, a case must be referred to a court for a decision on further detention. Following interpretation of the relevant provisions by the Supreme Court, the new practice has been implemented by the courts.
45. The Government did not contest that the applicant’s detention had been maintained after 30 September 1994 without a judicial decision being given as to its prolongation after this date, fixed by the detention order of 28 June 1994. This detention, however, was in compliance with the substantive and procedural provisions of the Polish law applicable at the material time. Pursuant to Article 213 of the Code of Criminal Procedure, the lawfulness of the applicant’s continued detention had been subject to a permanent supervision by the Łódź Regional Court. Moreover, the applicant’s request for release of 1 September 1994 had been examined by that court as early as 4 October 1994, i.e. merely four days after the preceding detention order had expired. The subsequent appeals, submitted by the applicant’s father and by his counsel, had been dismissed by the Court of Appeal on 25 October 1994.
46. Finally, the Government stated that they would abstain from making their own assessment of the compatibility of the applicant’s detention during the period under consideration with the requirements of Article 5 § 1 of the Convention. They emphasised that the applicant’s detention had been prescribed by law and effected in accordance with common practice. This practice had developed on the basis of regulations, which had been accessible, sufficiently precise and foreseeable. On the other hand, these provisions were not admittedly specific enough, and this had led to the practice complained of.
47. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. While, in the first place, it is normal for the national authorities, notably the courts, to interpret and apply domestic law, it is otherwise in relation to cases where, as under Article 5 § 1, failure to comply with that law entails a breach of the Convention. In such cases the Court may, and should exercise a certain power to review whether national law has been observed (see, among other authorities, Douiyeb v. the Netherlands [G. C.], no. 31464/96, §§ 44-45).
48. However, the “lawfulness” of detention under domestic law is the primary, but not always a decisive element. The Court must, in addition, be satisfied that detention during the period under consideration, was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary manner. Moreover, the Court must ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein (see, among many other authorities, the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, pp. 19-20, § 45; and the Erkalo v. the Netherlands judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2477, § 52).
49. The Court stresses in this connection that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty is satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law should be clearly defined, and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law should be sufficiently precise to allow the person – if needed, to obtain the appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see the S.W. v. the United Kingdom judgment of 22 November 1995, Series A no. 335-B, pp. 41–42, §§ 35–36, and, mutatis mutandis, the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979, Series A no. 30, p. 31, § 49; the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1017, § 49, and the Steel and Others v. the United Kingdom judgment of 23 September 1998, Reports 1998-VII, p. 2735, § 54).
50. Turning to the circumstances of the present case, the Court notes that the applicant’s detention was prolonged, by an order of 28 June 1994, until 30 September 1994. On 1 September 1994 the applicant requested to be released. The bill of indictment was lodged with the Łódź Regional Court on 20 September 1994. On 30 September 1994 the detention order expired, but the applicant remained in detention in view of the fact that, following lodging of the bill of indictment with the Regional Court, he had been regarded as having been placed at the disposal of the latter. Subsequently, on 4 October 1994 the Regional Court dismissed the applicant’s request for release of 1 September 1994. It is not in dispute that from 1 to 4 October 1994 the applicant’s detention was maintained solely on the basis of the fact that a bill of indictment had in the meantime been submitted to the court competent to examine the merits of the case.
51. The Court recalls that it found a violation of Article 5 § 1 of the Convention in its recent judgment in the case Baranowski v. Poland (no. 28358/95, § 57), where, considering detention under the same legal framework, the Court stated as follows in §§ 54-57:
“The Court observes that the domestic practice of keeping a person in detention under a bill of indictment was not based on any specific legislative provision or case-law but, as the Commission had found and the parties acknowledged before the Court, stemmed from the fact that Polish criminal legislation at the material time lacked clear rules governing the situation of a detainee in court proceedings, after the expiry of the term of his detention fixed in the last detention order made at the investigation stage.
Against this background, the Court considers, first, that the relevant Polish criminal legislation, by reason of the absence of any precise provisions laying down whether – and if so, under what conditions – detention ordered for a limited period at the investigation stage could properly be prolonged at the stage of the court proceedings, does not satisfy the test of “foreseeability” of a “law” for the purposes of Article 5 § 1 of the Convention.
Secondly, the Court considers that the practice which developed in response to the statutory lacuna, whereby a person is detained for an unlimited and unpredictable time and without his detention being based on a concrete legal provision or on any judicial decision is in itself contrary to the principle of legal certainty, a principle which is implied in the Convention and which constitutes one of the basic elements of the rule of law.
In that context the Court also stresses that, for the purposes of Article 5 § 1 of the Convention, detention which extends over a period of several months and which has not been ordered by a court or by a judge or any other person “authorised … to exercise judicial power” cannot be considered “lawful” in the sense of that provision. While this requirement is not explicitly stipulated in Article 5 § 1, it can be inferred from Article 5 read as a whole, in particular the wording in paragraph 1 (c) (“for the purpose of bringing him before the competent legal authority”) and paragraph 3 (“shall be brought promptly before a judge or other officer authorised by law to exercise judicial power”). In addition, the habeas corpus guarantee contained in Article 5 § 4 further supports the view that detention which is prolonged beyond the initial period foreseen in paragraph 3 necessitates “judicial” intervention as a safeguard against arbitrariness. In the Court’s opinion, the protection afforded by Article 5 § 1 against arbitrary deprivations of liberty would be seriously undermined if a person could be detained by executive order alone following a mere appearance before the judicial authorities referred to in paragraph 3 of Article 5.”
52. The Court observes that the facts, which had given rise to a violation of the Convention in the case quoted above, had occurred within the same legal framework as in the present case. The Court sees no grounds, which would justify a different conclusion in the instant case. The Court accordingly considers that the applicant’s detention was not lawful within the meaning of Article 5 § 1 of the Convention. Consequently, there was a breach of this provision.
53. The applicant also asserted that the respondent State had breached Article 5 § 4 of the Convention which reads:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
54. The applicant submitted that the proceedings concerning review of his detention were in breach of procedural requirements of this provision in that they were not adversarial.
55. The Government first referred to the Court’s case-law, according to which arrested or detained persons were entitled to a judicial review bearing upon the procedural and substantive conditions, essential for the lawfulness, in the Convention sense, of their deprivation of liberty. The competent court had to examine both compliance with the procedural requirements set out in domestic law, and the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention.
56. The Government abstained from making their own assessment of the compliance of the proceedings concerned, with the requirements of the Convention and asked the Court to give its ruling in this respect. However, the Government emphasised that the provisions under which the applicant had been detained in the present case, had been repealed. Pursuant to the new Code of the Criminal Procedure, effective guarantees of equality of parties to the proceedings concerning review of pre-trial detention had been enacted. Therefore the question examined in the present case was only of a historical character.
57. The Court recalls that by virtue of Article 5 § 4, an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions, which are essential for the “lawfulness”, in the sense of Article 5 § 1, of his or her deprivation of liberty (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 154-B, p. 34, § 65). Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation (see the Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22), it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required (see the Schiesser v. Switzerland judgment of 4 December 1979, Series A no. 34, p. 13, §§ 30–31, the Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, § 51, and the Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-B, p. 45, § 47). In particular, in the proceedings in which an appeal against detention order is being examined, “equality of arms” between the parties, the prosecutor and the detained person, must be ensured (Nikolova v. Bulgaria [G.C.], no. 31195/96, 25.03.1999, § 59).
58. The Court notes the information provided by the Government about the extensive legislative amendments which were effected with a view to bringing the Polish Code of Criminal Procedure in line with the Convention. However, the Court’s task is to assess the actual circumstances of the applicant’s case.
59. The Court observes that in the case under consideration, the applicant lodged requests for release, firstly on an unspecified date, and later on 25 May 1994, 11 and 28 August 1994, and on 1 September 1994. The Łódź Regional Court dismissed these requests on 5 April 1994, on later two unspecified dates, and on 4 October 1994. The decision given on 4 October 1994 was, upon the applicant’s appeal, examined by the higher court which gave its ruling on 25 October 1994.
60. The Court notes that it is not in dispute that the law, as it stood at that time, did not entitle either the applicant or his lawyer to attend the court session held in any of these proceedings in which the courts examined whether his detention was lawful and remained justified. Moreover, the applicable provisions of law on criminal procedure did not require that the prosecutor’s submissions in support of the applicant’s detention be communicated, either to the applicant or to his lawyer. Consequently, the applicant did not have any opportunity to comment on those arguments in order to contest the reasons invoked by the prosecuting authorities to justify his detention, either by disputing them directly before the court or by way of written submissions. At the same time the Court notes that under applicable provisions it was open for the prosecutor to be present at any of court sessions, in which the court examined the lawfulness of the applicant’s detention. It is also to be noted that the prosecutor in fact availed himself once of this opportunity by attending the session of the Łódź Regional Court on 4 October 1994, when it was examining the applicant’s request for release of 1 September 1994, whereas neither the applicant nor his counsel was present before the court.
61. In conclusion, in the light of the above considerations, the Court finds that there has been a violation of Article 5 § 4 of the Convention.
62. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
63. The applicant claimed a sum of USD 50,000 (fifty thousand) as compensation for non-pecuniary damage resulting from his detention, in particular such as significant loss of health caused by his detention.
64. The Government considered that the applicant’s claim is exorbitant and asked the Court to rule that a finding a violation constituted sufficient just satisfaction. In the alternative, they asked the Court to assess the amount of just satisfaction on the basis of its case-law in similar cases and having regard to national economic circumstances, such as purchasing power of national currency and to current minimum gross salary in Poland.
65. As regards the claim for the alleged damage suffered as a result of violation of Article 5 § 4 of the Convention, the Court recalls that in certain cases which concerned violations of Article 5 §§ 3 and 4 it has made modest awards in respect of non-pecuniary damage (see the Van Droogenbroeck v. Belgium judgment of 25 April 1983 (Article 50), Series A no. 63, p. 7, § 13, and the De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 29, § 65). However, in more recent cases, it has declined to make any such award (see the Pauwels v. Belgium judgment of 26 May 1988, Series A no. 135; p. 20, § 46; the Brogan and Others v. the United Kingdom (Article 50) judgment of 30 May 1989, Series A no. 152-B, pp. 44-45, § 9; the Huber v. Switzerland judgment of 23 October 1990, Series A no. 188, p. 19, § 46; the Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 24, § 91; the Kampanis v. Greece judgment cited above, p. 49, § 66; Hood v. the United Kingdom [G.C.], no 27267/95, 18.02.1999, §§ 84-87; and Nikolova v. Bulgaria cited above, § 76; Niedbała v. Poland, no. 27915/95, § 89). In certain of these judgments, for instance given in cases of Hood, Huber, Niedbała and Nikolova the Court stated that just satisfaction can be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the procedural guarantees of Article 5 of the Convention and concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered.
66. In the present case, the Court cannot speculate as to whether the applicant would have been detained if the procedural guarantees of Article 5 § 4 of the Convention had been respected in his case. Consequently, the Court considers that the non-pecuniary damage is adequately compensated by the finding of a violation of this provision.
67. The Court further considers that as a result of his detention in breach of the provisions of Article 5 § 1 of the Convention, the applicant suffered non-pecuniary damage, which would not be adequately compensated by the finding of a violation (Baranowski v. Poland cited above, § 82). Accordingly, making its assessment on an equitable basis, the Court awards the applicant PLN 4,000.
68. The applicant, who was granted legal aid by the Court, did not seek to be reimbursed for any costs or expenses in connection with the proceedings.
69. The Government requested the Court to decide on award of legal costs and expenses insofar as they had been actually and necessarily incurred and reasonable as to quantum. They relied in this respect on the Musiał v. Poland judgment (Musiał v. Poland [G.C.], no. 24557/94, § 61).
70. The Court, having regard to the fact that the applicant did not seek reimboursement of his legal costs, makes no award under this head.
71. According to the information available to the Court, the statutory rate of interest applicable in Poland at the date of adoption of the present judgment is 30 % per annum.
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VIOLATED_PARAGRAPHS: 5-1
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