ITEMID: 001-58012
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: GRANDCHAMBER
DATE: 1995
DOCNAME: CASE OF VOGT v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Violation of Art. 11;Not necessary to examine Art. 14+10;Just satisfaction  reserved
TEXT: 8. Mrs Dorothea Vogt, a German national born in 1949, lives in Jever in the Land of Lower Saxony.
9. After studying literature and languages at the University of Marburg/Lahn for six years, during which time she became a member of the German Communist Party (Deutsche Kommunistische Partei - "DKP"), in November 1975 she sat the examination to become a secondary-school teacher (wissenschaftliche Prüfung für das Lehramt an Gymnasien). She did her teaching practice (Vorbereitungsdienst für das Lehramt) from February 1976 to June 1977 at Fulda in the Land of Hesse. In June 1977 she sat the second State examination to become a secondary-school teacher (zweite Staatsprüfung für das Lehramt an Gymnasien) and obtained a post from 1 August 1977 as a teacher (Studienrätin), with the status of probationary civil servant (Beamtenverhältnis auf Probe), in a State secondary school in Jever. On 1 February 1979, before the end of her probationary period, she was appointed a permanent civil servant (Beamtin auf Lebenszeit).
10. Mrs Vogt taught German and French. In an assessment report drawn up in March 1981 her capabilities and work were described as entirely satisfactory and it was stated that she was held in high regard by her pupils and their parents and by her colleagues.
11. After a preliminary investigation, the Weser-Ems regional council (Bezirksregierung Weser-Ems) issued an order (Verfügung) on 13 July 1982 instituting disciplinary proceedings against the applicant on the ground that she had failed to comply with the duty of loyalty to the Constitution ("duty of political loyalty" - politische Treuepflicht) that she owed as a civil servant under section 61 (2) of the Lower Saxony Civil Service Act (Niedersächsisches Beamtengesetz - see paragraph 28 below). She had, it was said, engaged in various political activities on behalf of the DKP since the autumn of 1980 and in particular had stood as the DKP candidate in the 1982 elections to the Parliament (Landtag) of the Land of Lower Saxony.
12. The "indictment" (Anschuldigungsschrift) of 22 November 1983, drawn up in connection with the disciplinary proceedings, specified eleven public, political activities that the applicant had engaged in for the DKP, such as distributing pamphlets, representing the DKP at political meetings, being a party official in a constituency and standing in the federal elections of 6 March 1983.
13. On 15 July 1985 the proceedings were stayed in order to widen the investigations to include further instances of the applicant's political activity that had come to light in the meantime.
14. In a supplementary "indictment" of 5 February 1986 Mrs Vogt was accused of also failing to comply with her duties as a civil servant in that:
(a) she had been a member of the "Executive Committee" (Vorstand) of the Bremen/North Lower Saxony regional branch (Bezirksorganisation) of the DKP since the end of 1983; and
(b) she had taken part in and addressed the DKP's 7th party congress, held from 6 to 8 January 1984 in Nuremberg, as Chairperson (Kreisvorsitzende) of the Wilhelmshaven/Friesland local branch of the party.
15. After a further stay of proceedings on 23 June 1986, a second supplementary "indictment" was drawn up on 2 December 1986, which specified four other political activities considered incompatible with the applicant's civil-servant status, namely:
(a) her candidature for the DKP in the elections to the Parliament of the Land of Lower Saxony on 15 June 1986;
(b) the fact that she was still a member of the "Executive Committee" of the Bremen/North Lower Saxony regional branch of the DKP;
(c) the fact that she was still Chairperson of the Wilhemshaven/Friesland local branch of the DKP; and
(d) her participation in the DKP's 8th party congress from 2 to 4 May 1986 in Hamburg as a party delegate.
16. By an order of 12 August 1986 the Weser-Ems regional council notified the applicant that she had been temporarily suspended from her post, stating in particular as follows:
"Although you knew the views of your superiors and the case-law of the disciplinary courts you have nevertheless, over a considerable period of time, deliberately violated your duty of oyalty. For a permanent civil servant that is anextraordinarily serious breach of duty. Civil servants, whosestatus is founded on a special relationship of trust with theState and who, by taking the oath, have vowed to uphold the lawand freedom, destroy this basis of trust, which is essential forthe continuation of their relationship with their employer[Dienstverhältnis], if they deliberately support a party whoseaims are incompatible with the free democratic constitutionalsystem. This is the position in the present case."
17. From October 1986 Mrs Vogt was paid only 60 per cent of her salary (Dienstbezüge).
18. Before the Disciplinary Division of the Oldenburg Administrative Court (Disziplinarkammer des Verwaltungsgerichts) the applicant, who by her own account has been a member of the DKP since 1972, argued that her conduct could not amount to a failure to fulfil her duties as a civil servant. By being a member of the party and carrying out activities on its behalf she had availed herself of the right of all citizens to engage in political activity. She had always carried out such activity within the law and within the limits laid down in the Constitution. Her action to promote peace within the Federal Republic of Germany and in its external relations and her combat against neo-fascism were in no way indicative of an anti-constitutional stance. The DKP, whose aims had always been wrongly alleged (but never proven) to be anti-constitutional, took part lawfully in the process of forming political opinion in the Federal Republic of Germany. Lastly, according to a report issued by a Commission of Inquiry of the International Labour Office on 20 February 1987, the institution of disciplinary proceedings against civil servants on account of their political activities on behalf of a party that had not been banned breached International Labour Organisation (ILO) Convention No. 111 concerning discrimination in respect of employment and occupation. It also violated Article 10 (art. 10) of the European Convention on Human Rights.
19. In its judgment of 15 October 1987 the Disciplinary Division dismissed applications by Mrs Vogt to have the proceedings stayed and witnesses examined. The division ordered that all the "charges" against Mrs Vogt be dropped except those concerning her membership, as such, of the DKP and of the "Executive Committee" of the Bremen/North Lower Saxony regional branch, her chairing of the Wilhelmshaven branch of the DKP and her candidature in the elections to the Lower Saxony Land Parliament on 15 June 1986.
20. On the merits, the Disciplinary Division held that the applicant had failed to comply with her duty of political loyalty and ordered her dismissal as a disciplinary measure. It granted her a sum equivalent to 75 per cent of her pension entitlement at that date, to be paid for a six-month period.
The division found in the first place that neither ILO Convention No. 111 nor the recommendations made in the Commission of Inquiry's report of 20 February 1987 constituted a bar to the opening of disciplinary proceedings.
It considered that active membership of a political party that pursued anti-constitutional aims was incompatible with a civil servant's duty of political loyalty. The DKP's aims, as described in the Mannheim programme of 21 October 1978 (see paragraph 22 below), were clearly opposed to the free democratic constitutional system of the Federal Republic of Germany. A party could be held to be anti-constitutional even if it had not been banned by the Federal Constitutional Court (Bundesverfassungsgericht) under Article 21 para. 2 of the Basic Law (Grundgesetz - see paragraph 25 below). Through the active role which she played within the DKP the applicant had therefore clearly supported aims that were contrary to the Constitution.
The Disciplinary Division added that the rule, laid down in the first sentence of Article 48 para. 2 of the Basic Law (see paragraph 25 below), according to which no one may be prevented from taking office as a member of parliament, could not justify the applicant's standing as the DKP candidate in regional elections. This rule did not apply to measures, such as disciplinary proceedings, which initially had a different purpose and restricted the freedom to stand for election to, and to sit as a member of, parliament only as an indirect and unavoidable consequence of their implementation.
The duty of political loyalty, which admittedly restricted civil servants' fundamental rights, was one of the traditional principles of the civil service and had constitutional status by virtue of Article 33 para. 5 of the Basic Law (see paragraph 25 below). It followed that this duty took precedence over the provisions of international instruments such as the European Convention.
The applicant had moreover carried out her political activities despite being familiar with the case-law establishing that active membership of the DKP was incompatible with the duty of political loyalty. She must have been aware, at the latest once the Lower Saxony Disciplinary Court (Niedersächsischer Disziplinarhof) had delivered its judgment of 24 June 1985, which was published in an official education-authority circular and was brought to the attention of the applicant in person, that her conduct was in breach of her duties (pflichtwidriges Verhalten). Mrs Vogt had accordingly to be dismissed for having betrayed the relationship of trust between herself and her employer. Throughout the disciplinary proceedings she had moreover repeatedly indicated that she intended to continue her political activities for the DKP despite the warnings she had received. The fact that she had done her work satisfactorily for many years and that she had been held in high regard by her pupils and their parents alike was immaterial.
The Disciplinary Division finally ordered that Mrs Vogt should be paid 75 per cent of her pension allowance for a period of six months. It did so in recognition of the fact that apart from her breach of the duty of loyalty Mrs Vogt had always performed her duties unexceptionably and enthusiastically and needed some income to be protected from immediate hardship.
21. On 18 March 1988 the applicant lodged an appeal against the above judgment with the Lower Saxony Disciplinary Court, reiterating her previous arguments (see paragraph 18 above).
22. In a judgment of 31 October 1989 the Disciplinary Court dismissed Mrs Vogt's appeal and upheld the Administrative Court's judgment in all respects.
It pointed out that, by carrying out activities on behalf of the DKP, the applicant had breached the duty of political loyalty that she owed in accordance with Article 33 para. 5 of the Basic Law, taken together with section 61 (2) of the Lower Saxony Civil Service Act. Under those provisions, civil servants must at all times bear witness to the free democratic constitutional system within the meaning of the Basic Law and uphold that system. They must unequivocally dissociate themselves from groups who criticise, campaign against and cast aspersions on the State, its institutions and the existing constitutional system. As a result of her activities as a member of the DKP the applicant had failed to satisfy these requirements. The DKP's political aims were incompatible with that system.
The fact that the Constitutional Court had not banned the DKP did not prevent other courts from finding that the party was anti-constitutional, as the Federal Administrative Court and the Disciplinary Court itself had done convincingly in judgments of 1 February 1989 and 20 July 1989. An analysis of the still current Mannheim programme made by Mies and Gerns in their book on the DKP's methods and objectives (Weg und Ziel der DKP, 2nd edition, 1981) showed that the party, which aimed to establish a regime similar to that existing in the communist countries around 1980, continued to be guided by the principles of Marx, Engels and Lenin. Article 48 para. 2 of the Basic Law and the corresponding legislation of the Land of Lower Saxony securing the right to take office as a member of parliament did not set limits on the duty of political loyalty, since those provisions were not applicable to impediments resulting from disciplinary proceedings. The court held that the applicant's reference to Article 5 para. 1 of the Basic Law, which secured the right to freedom of expression, was not relevant as the provisions governing the civil service mentioned in Article 33 para. 5 of the Basic Law had to be regarded as general laws within the meaning of Article 5 para. 2 of the Basic Law (see paragraph 25 below). Similarly, the European Court of Human Rights had ruled that a decision by a competent authority relating to admission to the civil service did not amount to an interference with freedom of expression. The same approach applied in cases where a person had already been appointed to a permanent civil service post.
Mrs Vogt's conduct had been unlawful. By holding such a senior political post within the DKP, she necessarily espoused anti-constitutional aims and had therefore to be considered to be opposed to the Constitution herself, although she proclaimed her attachment to the Basic Law. It was not possible to support both systems at the same time.
Even though Mrs Vogt sought above all to achieve some of the DKP's short-term objectives such as reducing unemployment, promoting peace and eliminating so-called Berufsverbote (prohibitions on pursuing various occupations), this did not mean that her conduct was not culpable. The DKP's aims were admittedly not all anti-constitutional; some of them were compatible with the Basic Law. However, civil servants could not, as a means of furthering their own political objectives, make use of a party with anti-constitutional aims and help it to come to power. In this connection the Disciplinary Court referred to the following observations made by the Federal Administrative Court (Bundesverwaltungsgericht) in a judgment of 20 January 1987, adding that it adopted them as it was convinced that exactly the same reasoning applied to the case before it:
"It is admittedly possible to accept the view of the Federal Disciplinary Court [Bundesdisziplinargericht] that the official in question does not seek to change the system of government of the Federal Republic of Germany by the use of force and that this declaration cannot be dismissed as mere 'lip-service'. It is also possible to accept his claim that he is mainly concerned with correcting what he perceives to be a discrepancy between the principles laid down in the Constitution and their application in practice in the Federal Republic of Germany and that he is profoundly sincere in his wish to establish a society that is more just, particularly in the economic sphere. However, contrary to the view taken by the Federal Disciplinary Court, this does not mean that he is entitled to see in the DKP the political grouping through which he believes he can achieve his ideal political order. It appears doubtful whether the view of the Constitution espoused by the official and described above reflects accurately the principles enshrined in the Basic Law. It is not necessary to resolve that question here. In its judgment banning the former Communist Party (KPD) (BVerfGE 5, p. 85), the Federal Constitutional Court held that not only the 'tactics of conflict' employed by the former KPD but also the different phases of the process leading to attainment of its final objective of 'socialist rule' [sozialistische Herrschaft], namely proletarian revolution by peaceful or violent means and the triumph of the working class ..., were incompatible with the free democratic constitutional system. [It] also stated that intensive propaganda and persistent unrest aimed at establishing - even if this was not to be achieved in the near future - a political regime that was clearly contrary to the free democratic constitutional system inevitably caused direct and immediate harm to that system ... The Federal Constitutional Court thus also unquestionably held that the transitional stages of this process, which were of indefinite duration [and which the party sought to impose] through intensive propaganda and persistent unrest were incompatible with the free democratic constitutional system (BVerwGE 47, pp. 365 and 374). Hence, contrary to the view taken by the Federal Disciplinary Court, the civil servant's assertion that he did not intend to change the Federal Republic of Germany's political system by violent means, which is moreover consistent with many statements made by his party, is of no legal significance (BVerwGE 76, p. 157)."
The court also considered that the applicant's commitment to changing the DKP's policies could not exculpate her. The political loyalty owed by civil servants entailed a duty for them to dissociate themselves unequivocally from groups which criticised or cast aspersions on the State and the existing constitutional system. The attitude of civil servants who, even if they campaigned within the DKP for the renunciation of aims that were contrary to the Constitution, showed outside the party, through the political offices they held, that they unreservedly supported its programme and policy, was incompatible with such a duty. For as long as the DKP had not abandoned its anti-constitutional aims, civil servants' duty of political loyalty prevented them from actively working for it. This remained valid even where it was their intention to bring the party closer to democratic values. Moreover, during the disciplinary proceedings the applicant had declared her unconditional support for the DKP's aims, as set out in the Mannheim programme.
Like the Administrative Court, the Disciplinary Court found that Mrs Vogt had knowingly breached her professional obligations. Although she was aware of the case-law and her superiors' views on the subject, she had continued and even stepped up her activities on behalf of the DKP. Her dismissal had therefore been justified, since a civil servant who thus persisted in breaching her duties and refusing to see reason (unbelehrbar) was no longer capable of serving the State, which must be able to rely on its servants' loyalty to the Constitution. The court added that such a breach of duty was especially serious in the case of a teacher, who was supposed to teach the children entrusted to her care the fundamental values of the Constitution. Parents, who because of compulsory education had to send their children to State schools, were entitled to expect the State to employ only those teachers who unreservedly supported the free democratic constitutional system. The State was under a duty to dismiss teachers who played an active role in an anti-constitutional organisation.
The court added that a radical change in a civil servant's attitude could affect its assessment of the seriousness of professional misconduct. However, throughout the disciplinary proceedings, far from cutting down on her activities on behalf of the DKP, the applicant had in fact increased them. It followed that a more lenient disciplinary measure, aimed at persuading her to abandon her political activities within the DKP, was bound to fail. Accordingly, it was impossible to continue to employ her as a civil servant and her dismissal was inevitable. Her otherwise blameless conduct in carrying out her teaching tasks did not change the situation in any way, since the basis of trust that was essential for her to continue as a civil servant was lacking.
23. On 22 December 1989 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court.
Sitting as a panel of three judges, the court decided on 7 August 1990 not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success.
In the Constitutional Court's view, the competent courts' analysis was based on the conviction that, by her membership of the DKP and her active role within that party, the applicant had breached her duties as a civil servant. This conclusion was well-founded and in no way arbitrary. After the commencement of the disciplinary proceedings, Mrs Vogt had herself stated that there was no point, section or part of the DKP's programme of which she disapproved, thus endorsing unconditionally the party's aims set out in the Mannheim programme. The disciplinary tribunals had been entitled to find that the DKP's aims were anti-constitutional, notwithstanding the provisions of Article 21 para. 2 of the Basic Law. Regard being had to the applicant's intractability in respect of her political loyalty, the disciplinary courts had rightly considered that the basis of trust necessary for Mrs Vogt to continue to work as a civil servant was lacking, despite the fact that she had declared herself to be in favour of a change in the party's policy and had otherwise carried out her teaching tasks in a way that was irreproachable. The applicant's dismissal had therefore not amounted to a breach of the principle of proportionality as regards her constitutional rights. Accordingly, there had been no violation of Article 33 paras. 2, 3 and 5 of the Basic Law.
24. From 1987 to 1991 the applicant worked as a playwright and drama teacher at the North Lower Saxony regional theatre (Landesbühne) in Wilhelmshaven.
From 1 February 1991 she was reinstated in her post as a teacher for the Lower Saxony education authority. The Land government had beforehand repealed the decree on the employment of extremists in the Lower Saxony civil service (Ministerpräsidentenbeschluß - also known as the Radikalenerlaß - see paragraph 32 below) and had published regulations for dealing with "earlier cases" (see paragraph 33 below).
25. The following provisions of the Basic Law (Grundgesetz) are relevant to the instant case:
"(1) Everyone shall have the right freely to express and disseminate his or her opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship.
(2) These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour.
(3) There shall be freedom of art, science, research and teaching. Freedom of teaching shall not release citizens from their duty of loyalty to the Constitution."
"(1) Political parties shall take part in forming the political opinion of the people. They may be freely set up. Their internal organisation must comply with democratic principles. They must render public account of the origin of their income and their assets and of their expenditure.
(2) Parties which, through their aims or the conduct of their members, seek to damage or overthrow the free democratic constitutional system or to endanger the existence of the Federal Republic of Germany shall be held to be anti-constitutional. The Federal Constitutional Court shall determine the question of anti-constitutionality.
(3) Detailed rules shall be laid down by federal laws."
"...
(2) All Germans shall have an equal right of admission to the civil service according to their suitability, capabilities and professional qualifications.
(3) Enjoyment of civil and political rights, admission to the civil service and the rights acquired within the civil service shall not be contingent on religious belief. No one shall be placed at a disadvantage on account of his or her 'adherence or non-adherence' to a religious persuasion [Bekenntnis] or to an 'ideology' [Weltanschauung].
...
(5) The provisions governing the civil service must take into account its traditional principles."
"No one shall be prevented from taking office as a member of parliament or from performing the duties attaching thereto. No employment contract may be terminated and no one may be dismissed from employment on this ground."
26. By virtue of section 7 (1) (2) of the Federal Civil Service Act (Bundesbeamtengesetz) and section 4 (1) (2) of the Civil Service (General Principles) Act (Beamtenrechtsrahmengesetz) for the Länder, appointments to the civil service are subject to the requirement that the persons concerned "satisfy the authorities that they will at all times uphold the free democratic constitutional system within the meaning of the Basic Law".
27. According to section 52 (2) of the Federal Civil Service Act and section 35 (1), third sentence, of the Civil Service (General Principles) Act for the Länder, "civil servants must by their entire conduct bear witness to the free democratic constitutional system within the meaning of the Basic Law and act to uphold it".
28. These provisions have been reproduced in the civil service legislation of the Länder, and in particular in section 61 (2) of the Lower Saxony Civil Service Act (Niedersächsisches Beamtengesetz), which likewise provides that "civil servants must by their entire conduct bear witness to the free democratic constitutional system within the meaning of the Basic Law and act to uphold it".
29. The Lower Saxony Disciplinary Code (Niedersächsische Disziplinarordnung) contains the following relevant provisions:
"Under this law, measures may be taken against:
(1) officials who have breached their professional duty while having the status of a civil servant ..."
"The disciplinary measures shall be: ... dismissal ..."
"Dismissal shall also entail loss of the right to a salary and of pension rights ..."
30. On 28 January 1972 the Federal Chancellor and the Prime Ministers of the Länder adopted the decree on employment of extremists in the civil service (Ministerpräsidentenbeschluß) (Bulletin of the Government of the Federal Republic of Germany no. 15 of 3 February 1972, p. 142), which reiterated civil servants' duty of loyalty to the free democratic constitutional system and provided as follows:
"... civil servants' membership of parties or organisations that oppose the constitutional system - and any support given to such parties or organisations - shall ... as a general rule lead to a conflict of loyalty. If this results in a breach of duty [Pflichtverstoß], it shall be for the employer to decide in each case what measures are to be taken."
31. In order to implement the decree, the Government of the Land of Lower Saxony adopted, in particular on 10 July 1972, provisions on "political activity by applicants for civil-service posts and by civil servants directed against the free democratic constitutional system".
32. Similar legislation was initially adopted in all the Länder. However, from 1979 it was no longer or only partially applied; in some Länder the relevant legislation was even repealed.
In 1990, as part of their coalition agreement on the formation of a new Government for the Land of Lower Saxony, the Social Democrat and "Green" parties decided to repeal the decree on employment of extremists in the civil service; the decree was repealed by a ministerial decision of 26 June 1990.
33. On 28 August 1990 the Land government took a number of measures relating to the treatment of "earlier cases", that is to say cases of persons who had been excluded from the civil service or refused admission to it on account of their political activities. The decision made it possible - and this happened in the present case (see paragraph 24 above) - for civil servants who had been dismissed following disciplinary proceedings to be reinstated in their posts, provided that they satisfied the recruitment and qualification requirements, without, however, entitling them to compensation or to arrears of salary.
34. In a leading case of 22 May 1975 the Federal Constitutional Court clarified the special duty of loyalty owed by German civil servants to the State and its Constitution:
"...
The tasks of a modern State administration are as varied as they are complex and they must be accomplished in an adequate, effective and prompt manner if the political and social system is to function and groups, minorities and individuals are to be able to lead a decent life. That administration must be able to count on a body of civil servants which is united and loyal, which faithfully performs its duties and is thoroughly dedicated to the State and the Constitution. If civil servants cannot be relied upon, society and State have no chance in situations of crisis.
...
It is sufficient to observe that the duty of political loyalty owed by civil servants is the core of civil servants' duty of loyalty. It does not mean a duty to identify with the aims or a particular policy of the Government in power. It means being prepared to identify with the idea of the State which the official has to serve and with the free democratic constitutional order of that State based on the rule of law and social justice.
...
It cannot be in the interests of the State and society to have civil servants who are entirely uncritical. It is, however, essential that a civil servant approves the State - notwithstanding its defects - and the existing constitutional order as it is in force and that he or she recognises that they merit protection, bears witness to them accordingly and is active on their behalf.
...
The duty of political loyalty - loyalty to the State and to the Constitution - requires more than an attitude which while formally correct is in fact uninterested, indifferent and, at heart, distant in relation to the State and the Constitution.
It entails, inter alia, the duty for civil servants to dissociate themselves unequivocally from groups and movements that criticise, campaign against and cast aspersions on that State, its institutions and the existing constitutional system.
...
[The duty of loyalty owed by a civil servant] applies to every type of appointment in the civil service, an appointment of fixed duration, an appointment on probation and an appointment subject to revocation as well as an appointment to a permanent post. Nor can there be any difference of treatment in this respect according to the nature of the civil servant's duties.
...
The fact that the Federal Constitutional Court has not exercised its power to declare a party anti-constitutional does not mean that it is impossible to have the conviction - and to express that conviction - that the party in question pursues anti-constitutional aims and must therefore be challenged in the political arena. A party which for instance advocates in its manifesto the dictatorship of the proletariat or approves recourse to force in order to overthrow the constitutional system if the conditions are right, pursues anti-constitutional aims ...
..."
35. In judgments of 29 October 1981 and 10 May 1984 the Federal Administrative Court held that civil servants who played an active role in the DKP, for example by holding a post in the party or by standing as its candidate in elections, would be in breach of their duty of political loyalty, because they would necessarily be identifying with the anti-constitutional aims of that party. It followed the same line of reasoning in a judgment of 20 January 1987 (see paragraph 22 above).
36. In its report of 20 February 1987 the majority of the Commission of Inquiry of the International Labour Office concluded that "the measures taken in application of the duty of faithfulness to the free democratic basic order have in various respects not remained within the limits of the restrictions authorised by Article 1, paragraph 2, of [the Discrimination (Employment and Occupation)] Convention No. 111". It also formulated a number of recommendations.
In reply to this report, the German Government maintained that the measures taken to ensure that civil servants remained loyal to the Constitution were not contrary to the relevant provisions of Convention No. 111 and that in any case the recommendations made by the Commission of Inquiry were not binding on the German State for the purposes of domestic law.
VIOLATED_ARTICLES: 10
11


ITEMID: 001-73342
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF KOSTESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 3
CONCLUSION: No violation of Art. 9;No violation of Art. 14+9
JUDGES: David Thór Björgvinsson
TEXT: 8. On 29 January 1998 the applicant did not appear at work at the Electricity Company of Macedonia, a public utility company, despite the instruction of his superior according to which no employee was allowed to take any days off for a week due to the heavy workload. The applicant justified his absence with the fact that he had celebrated a Muslim religious holiday which was a public holiday for the citizens of Muslim faith under the Constitution and the respective law.
9. On 3 February 1998 the disciplinary committee of the company found that the applicant had breached the disciplinary rules and been absent from work without authorisation. The committee decided not to dismiss the applicant but fined him with a 15% cut in his salary for three months.
10. On 12 February 1998 the applicant complained to the second instance committee, arguing that there had been a decision of the Ministry of Labour and Social Politics to the effect that 29 January 1998 had been a public holiday for citizens of Muslim faith. As a member of this religious community, he had informed his superior about his absence the day before.
11. On 27 February 1998 the second instance committee upheld the decision of 3 February 1998, on the ground that the applicant had breached the instruction of 26 January 1998 by which no employee was allowed to take days off because of the heavy workload.
12. On 1 April 1998 the applicant appealed to the Bitola Municipal Court, claiming that his rights set out in Articles 9 and 19 of the Constitution had been breached. In particular, he had been fined only because he had celebrated the Muslim religious holiday and had not come to work on that day, in accordance with the decision of the Ministry of Labour and Social Politics according to which 29 January 1998 was a public holiday for the citizens of Muslim faith.
13. At the hearing before the Bitola Municipal Court the applicant stated that he expressed his religious beliefs individually without going to mosques.
14. On 24 March 1999 the Bitola Municipal Court dismissed the applicant’s appeal on the ground that he did not adduce any evidence to prove that he was really of Muslim faith.
15. On 14 June 1999 the Bitola Appellate Court dismissed the applicant’s further appeal. It stated that it was true that religious beliefs were an inner matter for the individual person. However, in the instant case it was to be established whether the applicant’s absence from work was justified. Therefore, it was important to establish the applicant’s religious confession. The lower court was correct in dismissing the applicant’s complaint as the applicant had not proven that he had been a Muslim since he had also celebrated the Christian religious holidays.
16. On 14 April 1998 the applicant was again fined for not having appeared at work on 7 April 1998 at the time of the celebration of another Muslim religious holiday, Bayram. The fine corresponded to 15% of his monthly salary over a six month period.
17. On 8 May 1998 the applicant’s complaint was dismissed by the second instance committee.
18. The applicant complained to the Bitola Municipal Court that the Electricity Company had deprived him of his right to an additional paid public holiday for Muslim citizens although he had stated before the second instance committee that he was Muslim. However, he had not considered it necessary to change his name and surname accordingly and wished to worship on his own.
19. On 27 May 1999 the Bitola Municipal Court dismissed the applicant’s appeal. The court stated that under the relevant law persons of Muslim faith enjoyed the right to paid religious holidays. However, the applicant had not given any evidence to corroborate his statement that he was a Muslim. He had never been absent from work at the time of the Muslim religious holidays before 29 January 1998. On the contrary, he had celebrated the Christian religious holidays, his parents were Christians and his way of life and diet showed that he was of Christian faith. From his employment contract and insurance it transpired that he had been registered as Macedonian without any mention of being a Muslim. The court held that the applicant was a self-proclaimed Muslim in order to justify his unjustified absence from work.
20. On 27 September 1999 the Bitola Appellate Court dismissed the applicant’s appeal on the ground that while it was true that the religious beliefs were an inner matter, he had breached the disciplinary rules and had not come to work. He therefore had to justify his absence and it had been necessary to establish through evidence whether the applicant was truly of Muslim faith. There was however no evidence to this effect, as the applicant, an ethnic Macedonian, had been absent from work during the Christian religious holidays and had celebrated them. Therefore, his absence from work was unjustified.
21. On 18 November 1999 the applicant complained to the Constitutional Court that through disciplinary sanctions and judicial decisions he had been discriminated against because of his religious beliefs. In particular, for unknown reasons the courts had not considered his statement that he was of Muslim faith to be credible and had asked him for further proof. He claimed that he should not be required to produce evidence of his religious beliefs.
22. On 12 July 2000 the Constitutional Court refused to examine the applicant’s allegations in respect of the decisions of 3 February, 27 February, 14 April and 8 May 1998 of the public utility company, the decisions of 24 March and 27 May 1999 of the Bitola Municipal Court and the decision of 14 June 1999 of the Bitola Appellate Court for being lodged out of the two-month time limit provided for in the Rules of the Constitutional Court.
23. The Constitutional Court however examined the applicant’s complaint in regard of the Bitola Appellate Court’s decision of 27 September 1999. It noted that the applicant requested the exercise of rights relating to freedom of religion but that he did not produce any evidence concerning his beliefs and refused to do so. As concerned the initial question as to whether when exercising a right to a paid public holiday based on religion it was enough for a citizen subjectively to assert his faith, it held:
“Taking into consideration that the rule of law is fundamental to the constitutional order of the Republic of Macedonia under Article 8, paragraph 1(3) of the Constitution, under which it should be implied that objective legal norms take precedence over subjective will when requesting the exercise of legal rights, and given the viewpoint of the representatives of the Christian and Islamic religions ... (the dean at the Theological Faculty in Skopje and the head of the Islamic community in Macedonia) that there are objective criteria to determine whether a citizen holds Christian and Islamic religious beliefs ... the court held that it was necessary to establish objective facts related to the exercise of a right and to obtain evidence of them in a situation where a right is requested.
In line with this, with a view to establishing objective facts to assess whether there was discrimination on religious grounds in this case, the court held a public hearing (on 27 April 2000) and three consultative discussions (on 16 and 25 May and 8 June 2000) and on the basis of their contents, in particular, on the basis of the applicant’s statements, it was established that the contents of his religious belief (even their form) objectively did not correspond to those of the Muslim faith (and its form) on several grounds (for example: a lack of knowledge of the basic most important tenets of the religion through which its essence is expressed ... or of the way in which one ‘joins’ the Muslim faith, etc.)”
24. The court concluded that the applicant had not been discriminated against on the basis of his religious beliefs by the requirement to establish the objective facts and dismissed the complaint.
25. Article 9, as far as relevant, provides as follows:
“(1) Citizens of the Republic of Macedonia are equal in their freedoms and rights, regardless of sex, race, the colour of skin, national and social origin, political and religious beliefs, property and social status. (2) All citizens are equal before the Constitution and law.”
26. Article 19, as far as relevant, provides as follows:
“(1) The freedom of religious confession is guaranteed. (2) The right to express one’s faith freely and publicly, individually or with others is guaranteed.
...”
27. Article 110, as far as relevant, provides as follows:
“The Constitutional Court of Macedonia:
...
(3) safeguards the freedoms and rights of individuals and citizens concerning the freedom of communication, conscience, thought and action, and the prohibition of discrimination among citizens on the grounds of sex, race, religion or national, social or political affiliation;
...”
28. Section 51 provides that a person who considers that he or she is a victim of a violation of one of the rights set out in Article 110 § 3 of the Constitution shall have the right to file an application with the Constitutional Court within two months from the day he was served with a binding decision or a judgment.
29. It provides, inter alia, that Christmas and Easter shall be public holidays for all the citizens of the former Yugoslav Republic of Macedonia regardless of their confession and that Ramazan Bayram and Kurban Bayram shall be public holidays for citizens of the Muslim faith.
NON_VIOLATED_ARTICLES: 14
9


ITEMID: 001-5300
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: YAVUZ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicants are all Turkish citizens, born respectively in 1942, 1947, 1971 and 1972. They are resident in Diyarbakır. The first applicant is the father of Genco Yavuz, who was killed in 1991. The second, third and fourth applicants are respectively the deceased’s mother, sister and brother. The applicants are represented before the Court by Mrs Hülya Sarsam and Mr Nusret Senem, lawyers practising in Ankara.
A.
The facts of the case, as submitted by the parties, may be summarised as follows:
On 12 February 1991, Genco Yavuz was shot dead by a soldier in the canteen used by his military unit following a dispute about drugs.
The soldier responsible for his death was prosecuted before the Kırklareli Military Court. The applicants joined the proceedings as intervenors.
In its judgment of 24 November 1992 the Kırklareli Military Court found the accused soldier guilty of unlawful killing and sentenced him to twenty-years’ imprisonment. When fixing sentence the court had regard to mitigating circumstances, namely the fact that the accused had been severely provoked by the deceased at the time of the incident.
On 9 February 1994 the military Court of Cassation annulled the Kırklareli Military Court’s judgment on the ground that the military court had misdirected itself on the level of provocation to be attributed to the behaviour of the deceased at the material time. The case was remitted to the military court.
In its judgment of 27 December 1994, the military court had regard to the fact that the accused soldier had finished his military service and for that reason ruled that it had no jurisdiction to deal with the case. The case was transferred to the Kırklareli Assize Court. The applicants joined the proceedings as intervenors.
On 17 October 1995 the Kırklareli Assize Court sentenced the accused to death. The sentence was later commuted to thirty-years’ imprisonment.
On 29 June 1992 the applicants lodged an action for damages before the Supreme Military Administrative Court against the Ministry of Defence. The applicants maintained that Genco Yavuz was killed by a soldier who, prior to his military service, had been found guilty of wilful homicide. The applicants stated that the rules governing the carrying of firearms had not been respected and that the fault lay with the administration.
In its decision of 30 November 1994 the Supreme Military Administrative Court found that the applicants had made out their case in part. The court ruled that a causal link existed between Genco Yavuz’s death and the act of an agent of the State given that the latter had on him at the relevant time a firearm belonging to the State. The court also noted that the deceased had by his behaviour provoked the State agent. Basing itself on an expert’s report, the court awarded compensation for pecuniary and non-pecuniary damage to the father and mother of Genco Yavuz. The applicants’ request for rectification of the judgment was rejected by the same court on 5 April 1995.
B. Relevant domestic law
Article 157 of the Turkish Constitution provides:
“The Supreme Military Administrative Court shall be the first and last instance for the judicial supervision of disputes arising out of administrative actions involving military personnel or relating to military service, even if such acts and actions have been carried out by civilian authorities. However in disputes arising out of the obligation to perform military service, there shall be no condition that the person concerned be a member of the military body.
Members of the Supreme Military Administrative Court who are military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the President and members of the court, who are also military judges, by secret ballot and by an absolute majority of the total number of such members, from among military judges of the first category; members who are not military judges shall be appointed by the President of the Republic from a list of three candidates nominated for each vacant office by the Chief of the General Staff from among the officers holding the rank and qualifications prescribed by law.
The term of office of members who are not military judges shall not exceed four years.
The President, the Chief Public Prosecutor and Head of Division of the Court shall be appointed among military judges according to rank and seniority.
The organisation and functioning of the Supreme Military Administrative Court, its procedure, disciplinary affairs and other matters relating to the status of its members shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges and the requirements of military service.”
The Law governing the Supreme Military Administrative Court
(Law No. 1602, 4 July 1972)
(unofficial translation)
Article 4 (Security of tenure)
“The President, the Chief Public Prosecutor, the Members and the Presidents of the Chambers of the Supreme Military Administrative Court, being judges of this Court, are guaranteed security of tenure under the Constitution of the Turkish Republic.”
Article 8 (Selection of the Members)
“The President of the Republic shall select:
The members of the Supreme Military Administrative Court from among military judges on the basis of a list of three candidates nominated in respect of each vacant office by an absolute majority of the total number of current members and presidents who belong to the ranks of military judges.
The members of the Supreme Military Administrative Court who do not belong to the ranks of military judges shall be appointed from a list of three candidates nominated in respect of each vacant office by the Chief of the General Staff.”

Article 14 (Chambers)
“The Supreme Military Administrative Court shall be composed of two chambers. The Ministry of Defence can increase the numbers of the chambers by up to three upon the proposal of the General Council and with the approval of the Chief of the General Staff. The Ministry of Defence can decrease the numbers of the chambers down to two under the same procedure.
Each chamber shall be composed of a president and six members. Four of the members shall be military judges and two of them shall be staff officers.
The number of the members in deliberations shall be composed of five. The majority of the members in the deliberations shall consist of military judges. Decisions shall be taken by majority.”
The Law governing the Supreme Military Administrative Court
(Article 66 of the Law No. 1602)
(unofficial translation)
“Rectification of a judgment rendered by the Chamber or the Grand Chamber may be requested on one of the following grounds, only once within 15 days after it is served on the parties:
a) The judgment does not refer to the allegations and the objections which affect its merits;
b) The judgment contains provisions which contradict each other;
c) The judgment is contrary (“aykırı”) to procedural and substantive law (“usul ve kanuna aykırı”)”.


ITEMID: 001-66843
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF PRESIDENTIAL PARTY OF MORDOVIA v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 11;Non-pecuniary damage - financial award
TEXT: 7. The applicant party was based in the Republic of Mordovia, a constituency of the Russian Federation.
8. On 15 March 1994 the applicant party was registered with the Ministry of Justice of Mordovia as a “Mordovian All-Republican SocioPolitical Association - the Presidential Party of Mordovia” (Республиканская общественно-политическая организация республики Мордовия – Президентская Партия Мордовии).
9. On 14 April 1995 the State Duma adopted a new Federal Law on Public Associations (Федеральный Закон «Об общественных объединениях – “the Federal Law on Associations”) which came into force on 19 May 1995. Article 52 of the Federal Law on Associations required public associations registered before 19 May 1995 to ensure that their articles of association complied with the Federal Law on Associations and to renew their registration by 1 July 1999.
10. On 30 June 1999 the applicant party applied to the Ministry of Justice of Mordovia to renew its registration. It presented its Articles of Association which contained the following provisions:
“2. The party’s objectives
2.1. The party’s aims are:
- assisting in the formation of a free democratic society in the Republic of Mordovia and Russia;
- strengthening Russia’s unity;
- fighting against the separatism of the Republic of Mordovia;
- enhancing the separation of the executive, legislative and judicial powers;
- creating a strong executive power headed by the directly elected President of the Republic of Mordovia, integrated in the executive power of the Russian Federation;
- building a highly developed market economy;
- striving to achieve the individual’s social protection.
In order to meet these objectives the party:
2.1.1. participates in presidential, parliamentary and local elections in the Republic of Mordovia by selecting and nominating candidates and assisting in their electoral campaigns.
2.1.2. carries out programmes and initiatives directed at professional training, provides assistance to members of parliament and party members in the fields of economy, law, administration, mass media and the arts to support the preparation and running of electoral campaigns.
2.1.3. develops a scheme to select a list of candidates and to establish the liability to the party of its members of parliament.
2.1.4. holds the preliminary election of candidates for elections.
2.1.5. supports the party groups in parliament.
2.1.6. assists individuals, public and private organisations, research and educational bodies in their activities concurring with the party’s aims.”
11. On 30 June 1999 the Minister of Justice of Mordovia refused to renew the applicant party’s registration with reference to the Federal Law on Associations and to the Law of the Republic of Mordovia on Becoming an All-Republican Public Association (Закон Республики Мордовия «О приобретении общественным объединением регионального (республиканского) статуса» - the Association Law of Mordovia). The decision stated that the applicant party had failed to create branches in more than half of the districts and cities of Mordovia to qualify for the title “All-Republican”. Furthermore, it stated that the applicant party’s Articles of Association did not comply with the requirement to include among its objectives participation in the political life of society and in elections.
12. On 8 July 1999 the applicant party filed its objections with the Ministry of Justice of Mordovia. It maintained that the requirement to establish branches contained in Article 21 of the Federal Law on Associations applied exclusively to international, all-Russian or inter-regional public associations. It also contended that its Articles of Association provided for the applicant party’s participation in the political life of society and in elections.
13. On the same day the applicant party filed a new application for the renewal of its registration with the Ministry of Justice of Mordovia. The newly submitted Articles of Association contained the following statements:
“2.1. The main objective of the party is participation in the political life of society through influencing and generating the citizens’ political will, participation in elections to the State authorities and local government by nominating candidates and organising their electoral campaign, and taking part in the setting-up and activities of the said bodies.”
14. On 19 July 1999 the Deputy Minister of Justice of Mordovia informed the applicant that it had missed the deadline for renewal of its registration.
15. In August 1999 the Ministry of Justice of Mordovia applied to the Leninsky District Court of Saransk for the dissolution of the applicant party on the ground that it had failed to reregister. The applicant party filed a counter-claim in which it challenged the refusal to renew its registration and sought an order requiring the Ministry of Justice to register it.
16. On 29 December 1999 the Leninsky District Court of Saransk dismissed the request for dissolution. It held that it was sufficiently clear from the applicant party’s Articles of Association that it intended to engage in activities amounting to “participation in the political life of society” in accordance with the Federal Law on Associations. The court also found that the requirement to establish branches applied only to all-Russian, inter-regional and international public associations. It declared the refusal to renew the registration of the applicant party unlawful and ordered the Ministry of Justice of Mordovia to renew the registration.
17. The Minister of Justice of Mordovia appealed.
18. On 14 March 2000 the Supreme Court of the Republic of Mordovia acting as an appeal instance quashed the judgment of 29 December 1999 and substituted its own decision. It found that the applicant party had failed to declare expressly its “participation in the political life of society” as a statutory objective. It rejected the finding made by the first-instance court that the activities listed in Article 2.1.1 of the applicant party’s Articles of Association could qualify as “participation in the political life of society” for the purposes of the Federal Law on Associations. The court found the refusal to renew the registration of the applicant party lawful and, in accordance with Article 52 of the Federal Law on Associations, ordered its dissolution. This decision became final on the same day.
19. On 20 August 2002, after communication of the case to the respondent Government by the Court, the acting President of the Supreme Court of the Republic of Mordovia brought on his own motion an application for supervisory review of the decision of 14 March 2000.
20. On 5 September 2002 the Presidium of the Supreme Court of the Republic of Mordovia granted the application by quashing the decision of 14 March 2000 and upholding the judgment of the Leninsky District Court of Saransk dated 29 December 1999. The latter judgment declaring the refusal to renew the registration unlawful and requiring the Ministry of Justice of Mordovia to register the Presidential Party of Mordovia entered into force.
21. On 29 October 2002 the Department of the Ministry of Justice of the Russian Federation in respect of the Republic of Mordovia sought a court order in respect of the enforcement of the judgment of 29 December 1999. It claimed that, following legislative changes, it could not register the Presidential Party of Mordovia pursuant to the judgment. Firstly, on 17 May 2002 the competence to register legal persons had been transferred to the tax authorities. Secondly, the Law on Political Parties of 11 July 2001 changed the requirements for establishing political parties, and the application for registration of the applicant party had not taken account of these requirements. In particular, under the new law no regional political parties could be created and existing regional parties were deprived of their current status.
22. On 30 October 2002 the Leninsky District Court of Saransk examined the request and terminated the execution of the judgment of 29 December 1999. The court accepted that both reasons prevented the party’s registration pursuant to the judgment. It also took into account that the applicant’s president, Mr V. Guslyannikov, had consented to the termination of the enforcement proceedings in view of the legislative changes.
23. The Federal Law on Public Associations, No. 82-FZ of 19 May 1995, provided in so far as relevant as follows:
“The articles of public associations registered before the entry into force of this Federal Law shall be amended in compliance with the said Federal Law [...].
State re-registration of public associations registered before the entry into force of this Federal Law shall be carried out before 1 July 1999.”
“A political public association is a public association whose articles of association must provide for participation in the political life of society through influencing and generating the citizens’ political will, participation in elections to the State bodies and local government by nominating candidates and organising their electoral campaign, and taking part in the setting-up and activities of the said bodies.”
24. The Federal Law on Political Parties, No. 95FZ of 11 July 2001 contains the following provision:
“... all interregional, regional and local political associations shall cease to enjoy the status of a political association and shall continue to function as interregional, regional and local public associations ...”
VIOLATED_ARTICLES: 11


ITEMID: 001-71685
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KARADŽIĆ v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1975 and lives in Kehl, Germany.
5. The applicant has a son, N.D.K., born out of wedlock in 1995. Under German law she has sole custody of her son.
6. The applicant had lived with her son and his father, Ž.P., until 1999, when Ž.P. fled Germany on account of several sets of criminal proceedings instituted against him. From then on Ž.P. lived in Croatia, whereas the applicant intended to continue living with her son in Germany. They visited Ž.P. on several occasions.
7. At some time in May 2000, during one of their visits to Croatia, Ž.P. did not allow the applicant to take N.D.K. back to Germany. In the following months the applicant visited her son several times in Croatia and requested Ž.P. to allow her to take him back, but in vain.
8. On 8 September 2001 the applicant managed to take N.D.K. back to Germany. However, on 18 September 2001 Ž.P. kidnapped N.D.K. in the open street in Kehl and took him back to Croatia.
9. Meanwhile, on an application by the applicant, on 25 April 2001 the Freudenstadt District Court (Amtsgericht Freudenstadt) issued a decision confirming that Ž.P.’s decision to keep the child in Croatia had been “wrongful” within the meaning of Article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). Following an appeal by Ž.P., on 28 January 2003 the Stuttgart Court of Appeal (Oberlandesgericht Stuttgart) upheld the first-instance decision.
10. Furthermore, on 25 April 2001, relying on the Hague Convention, the applicant requested the Chief Federal Prosecutor (Generalbundesanwalt) as the German central authority to return her son. The Chief Federal Prosecutor immediately contacted the Croatian Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi) as the Croatian central authority. In letters of 12 June and 19 December 2001 the Chief Federal Prosecutor informed the applicant that he had not received any reply to his request from the Croatian central authority.
11. In Croatia, on an unspecified date in the summer of 2001, the Ministry of Health and Social Welfare instructed the Poreč Welfare Centre (centar za socijalnu skrb) to contact Ž.P. and order him to return N.D.K. to the applicant. Ž.P. refused to do so.
12. Thus, on 21 October 2001 the Poreč Welfare Centre instituted proceedings for the child’s return in the Poreč Municipal Court (Općinski sud u Poreču).
13. The court held three hearings and took testimonies from the applicant, Ž.P. and a representative of the Poreč Welfare Centre.
14. On 6 May 2002 the Poreč Municipal Court ordered that N.D.K. be returned to the applicant. On appeal, on 14 October 2002 the Pula County Court (Županijski sud u Puli) quashed that decision and remitted the case to the first-instance court, ordering it to determine the exact time of N.D.K.’s alleged abduction and whether the conditions set out in Articles 12 and 13 of the Hague Convention had been met.
15. In the resumed proceedings the Poreč Municipal Court held a hearing on 6 May 2003, when it heard evidence from an expert in clinical psychology. The expert stated that there was no threat that, by being returned to Germany, N.D.K. would be exposed to any harm.
16. On 12 May 2003 the Poreč Municipal Court again ordered that N.D.K. be returned to the applicant. On 18 August 2003 the Pula County Court dismissed an appeal by Ž.P. as being ill-founded.
17. On an application by the applicant, on 29 September 2003 the Poreč Municipal Court issued an enforcement order (rješenje o ovrsi), ordering immediate enforcement of the above decision by a court bailiff assisted by the police.
18. On 9 October 2003 a court bailiff attempted to enforce the above decision. He went to Ž.P.’s house, but N.D.K. was not there and Ž.P. refused to say where he was.
19. In letters of 15 October 2003 and 10 November 2003 the court requested the local police authorities to provide information on the whereabouts of the child. The police informed the court that N.D.K. was in Slavonski Brod. Subsequently, the Poreč Municipal Court forwarded the enforcement order to the Slavonski Brod Municipal Court (Općinski sud u Slavonskom Brodu). On 2 April 2004 the Slavonski Brod Municipal Court informed the Poreč Municipal Court that N.D.K. was not residing in that area.
20. On 9 April 2004 the Poreč Municipal Court again requested the local police to locate Ž.P. and N.D.K.
21. On 24 May 2004 the Poreč Municipal Court imposed a sanction of 30 days’ detention on Ž.P. for failing to comply with the court’s order of 12 May 2003. He was also ordered to disclose where N.D.K. was. On appeal, on 14 June 2004 the Pula County Court upheld the first-instance decision, but reduced the sanction to eight days’ detention.
22. On 8 July 2004 the Poreč Municipal Court again imposed a sanction of 30 days’ detention on Ž.P.
23. On 17 September 2004 the authorities made another attempt to enforce the Poreč Municipal Court’s order of 12 May 2003. Three police officers, a court bailiff and the applicant’s lawyer came to Ž.P.’s home and requested him to hand over N.D.K. Ž.P. refused to do so and used force in fleeing the premises along with his son.
24. The Poreč police subsequently filed a criminal complaint against Ž.P. alleging the criminal offence of making threats. On 12 October 2004 Ž.P. was found and taken into custody. Having complained about some health problems, he was transferred to a hospital, from which he managed to escape.
25. The Government submitted that on 26 January 2005 the applicant sought postponement of the enforcement for one month, considering that it might be possible to reach a settlement with Ž.P. concerning the return of N.D.K.
26. The Poreč Municipal Court held a hearing on 2 February 2005, at which the lawyer representing the applicant, a certain D.Š., stated that N.D.K. had been returned to the applicant. At the same time, Ž.P.’s lawyer stated that his client had covered the full cost of the proceedings. In accordance with the parties’ statements, on the same day the court delivered a decision declaring that the enforcement proceedings had been concluded. The applicant never appealed against that decision.
27. The applicant submitted that D.Š.’s statement given to the court on 2 February 2005 was false and did not reflect the facts. She claimed not to have known that the hearing of 2 February 2005 would take place at all and not to have given any instruction to D.Š. to declare that she had been reunited with N.D.K. While it was true that she had seen her son on several occasions in early 2005, she had never been alone with him, nor had he ever been returned to her custody.
28. The applicant submits that she has not yet been reunited with N.D.K., who is apparently still in Croatia with Ž.P.
29. The preamble of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which was ratified by Croatia on 20 June 1991 (Official Gazette, International Agreements no. 7/91), includes the following statement as to its purpose:
“ ...to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence ...”
The relevant provisions of the Hague Convention read as follows:
“The removal or the retention of a child is to be considered wrongful where
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and
(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ...”
“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay ...”
“Where a child has been wrongfully removed or retained in terms of Article 3 and at the date of commencement of the proceedings before the judicial ... authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”
“Notwithstanding the provisions of the preceding Article, the judicial ... authority of the requested State is not bound to order the return of the child if ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
30. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ...
(2) If the constitutional complaint ... under subsection 1 of this section is accepted, the Constitutional Court shall determine the time within which a competent court shall decide the case on the merits...
(3) In a decision under subsection 2 of this section, the Constitutional Court shall award appropriate compensation to the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment.”
31. Under the case-law of the Constitutional Court as applied until 2 February 2005, constitutional complaints lodged under section 63 in the context of enforcement proceedings were to be declared inadmissible in cases where an enforcement order had already been issued. In decision no. U-IIIA/1165/2003 of 12 September 2003 the Constitutional Court interpreted section 63 of the Constitutional Court Act as follows:
“The Constitutional Court shall institute proceedings pursuant to a constitutional complaint lodged under section 63 of the Constitutional Act [on the Constitutional Court] in respect of the length of proceedings only in cases where the court has not determined within a reasonable time the merits of the rights and obligations of the complainant, that is, where it has failed to deliver a decision on the merits within a reasonable time.
In the present case the constitutional complaint has been lodged on account of the failure to enforce a final decision by which the party’s rights and obligations had already been determined.
Taking into consideration the provisions of the Constitutional Act cited above ..., the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.”
In decision no. U-IIIA/781/2003 of 14 May 2004 the Constitutional Court provided further interpretation of section 63 of the Constitutional Court Act:
“Taking into consideration the provisions of the Constitutional Act cited above and the fact that the constitutional complaint was not lodged on account of a failure to deliver a decision within a reasonable time but rather because enforcement did not take place, the Constitutional Court is of the opinion that in this case the conditions for applicability of section 63 were not met.”
32. In decision no. U-IIIA/1128/2004 of 2 February 2005 the Constitutional Court changed its practice, accepting a complainant’s constitutional complaint and awarding him compensation as well as ordering the competent court to conclude the enforcement proceedings within six months from its decision.
VIOLATED_ARTICLES: 8