ITEMID: 001-105281
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF DIALLO v. THE CZECH REPUBLIC
IMPORTANCE: 3
CONCLUSION: Violation of Art. 13+3;Remainder inadmissible;Non-pecuniary damage - award;Just satisfaction reserved (2nd applicant)
JUDGES: Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 4. On 8 November 2006 the first applicant arrived at Prague airport by plane from Dakar (Senegal), having transferred in Lisbon. Immediately after his arrival, he applied for asylum. For the whole period of his stay in the Czech Republic, he was held at the reception centre for asylum seekers at Prague airport.
5. In his application for asylum he submitted that in Guinea he had participated in a teacher’s strike and that subsequently police had come looking for him at home so he had had to flee. He feared that if returned to Guinea, he would be detained or even murdered. In a subsequent interview he specified that he had fled Guinea with the help of an employee of UNICEF, who also secured the assistance of a policeman.
6. On 15 November 2006 the Department for Asylum and Migration Policy of the Ministry of the Interior (odbor azylové a migrační politiky ministerstva vnitra) dismissed his asylum application as manifestly unjustified (zjevně nedůvodná) under section 16(1)(e) of the Asylum Act without examining its merits, stating that the first applicant had arrived from Portugal, which was considered a safe third country.
7. The first applicant applied for judicial review which, however, in cases rejected under section 16(1)(e) of the Asylum Act, did not have a suspensive effect. On 19 April 2007 he requested that those proceedings be terminated, which the Prague Municipal Court (městský soud) did on 31 May 2007.
8. On 23 November 2006 the Prague-Ruzyně Aliens and Customs Police Service (referát cizinecké a pohraniční policie) ordered the first applicant to leave the country by 2 December 2006. As the applicant did not comply with the order, the Police Service instituted administrative expulsion proceedings against him.
9. In the context of those proceedings the Police Service interviewed the first applicant on 3 December 2006. He reiterated that he could not return to his home country because he could be killed or injured there and would most likely be imprisoned. He submitted that he had been one of the initiators of a student demonstration in which several participants were killed. The Police Service also requested, as required by law, an opinion of the Ministry of the Interior as to whether there were any obstacles to the applicant’s removal. On 4 December 2006 the Ministry replied in the negative, stating that the first applicant was facing expulsion to Portugal, which was a safe country.
10. On 4 December 2006 the Aliens and Customs Police Service issued an administrative expulsion order (správní vyhoštění) ordering the first applicant to leave the country within twenty days and prohibiting him from entering the Czech Republic for six months. It held that the first applicant had stayed in the Czech Republic without a valid visa after his asylum request had been rejected.
11. On 28 February 2007 the Prague Aliens and Customs Police Directorate (ředitelství služby cizinecké a pohraniční policie) rejected the first applicant’s appeal, upholding the reasoning of the Aliens and Customs Police Service. The first applicant received this decision on 13 March 2007.
12. On 15 May 2007 at about 4 a.m. and without prior notice, the first applicant was removed from the Czech Republic to Guinea by plane via Brussels. Later on, while the first applicant was in police custody in Guinea, his lawyer managed to contact him by telephone, but he refused to provide any information about his treatment in detention.
13. The first applicant is currently living in Saudi Arabia.
14. On 11 October 2006 the second applicant arrived at Prague airport by plane from Dakar (Senegal) with a transfer in Lisbon. He was denied permission to board a plane to Dubai and, subsequently, applied for asylum. During his stay in the Czech Republic, the applicant was held at both the reception centre for asylum seekers at Prague airport and the detention centre in Velké Přílepy.
15. In his application for asylum he submitted that his father had been an active member of an opposition political party, Union for the New Republic, and had been detained and killed in 2000. After the death of his father, the applicant had created the Union for the Employment of Youth and became its president. He had continued to have contact with members of the opposition and his association had supported the trade unions. In 2006 a conflict began between the Government and trade unions and the Guinean Police had started looking for him.
16. On 15 October 2006 the Department for Asylum and Migration Policy of the Ministry of the Interior dismissed the second applicant’s asylum request under section 16(1)(e) of the Asylum Act without examining its merits, holding that the second applicant had arrived from Portugal, a safe third country.
17. The second applicant applied for judicial review and requested a suspension of the legal force of the administrative decision. He argued that according to the European Union Dublin Regulation, it was the Czech Republic that should process his request for asylum and not Portugal. Consequently, the Ministry should have considered the merits of his application.
18. On 15 March 2007 the Prague Regional Court (krajský soud) upheld the administrative decision not to grant the second applicant asylum. It agreed with the reasoning that the second applicant had arrived from Portugal, which is a safe third country, and that he should have asked for asylum there. The court did not deal with the second applicant’s request for suspension of the legal force of the decision. The judgment was served on the second applicant on 10 May 2007. Having been removed from the Czech Republic before the expiration of the statutory time-limit, he did not appeal on points of law.
19. On 22 November 2006 the Prague-Ruzyně Aliens and Customs Police Service ordered the second applicant to leave the country by 1 December 2006. As the second applicant did not comply with the order, the Police instituted administrative expulsion proceedings against him.
20. In the context of those proceedings the Police Service held an interview with the second applicant on 3 December 2006 in which he reiterated his fears of returning to Guinea. It also requested, as required by law, an opinion of the Ministry of the Interior whether there were any obstacles to the second applicant’s expulsion. On 4 December 2006 the Ministry replied in the negative, stating that the second applicant was facing expulsion to Portugal, which was a safe country.
21. On 4 December 2006 the Aliens and Customs Police Service issued an expulsion order against the second applicant prohibiting him from entering the Czech Republic for six months and ordering him to leave the country within twenty days. It held that the applicant had stayed in the country without a valid visa.
22. On 2 March 2007 the Prague Aliens and Customs Police Directorate rejected the second applicant’s appeal, sharing the opinion of the Aliens and Customs Police Service. The second applicant was notified on 13 March 2007.
23. On 15 May 2007 at about 4 a.m. and without prior notice, he was removed from the Czech Republic to Guinea by plane via Brussels. His lawyer was not informed about the removal beforehand and has not managed to reach the second applicant since then.
24. On 30 November 2006 the second applicant had signed a power of attorney for Mr J. Větrovský, who is representing him in the proceedings before the Court, authorising him to take any legal action relating to his expulsion, including preventing the expulsion, and to make any claims arising from the situation, including, if necessary, representing him before the courts.
25. Under section 16(1)(e) an application for asylum had to be rejected as manifestly unjustified if the applicant arrived from a country which the Czech Republic considered to be a safe third country or a safe country of origin, unless it was proven that in a particular case this country could not be deemed to be safe.
26. Section 32 stipulated:
“1. an action against the decision of the Ministry concerning asylum shall be filed within 15 days of the serving of the decision.
2. Within seven days of the serving of the decision, an action may be filed against the decision on asylum
a) which rejects the application as manifestly unjustified, ...
3. The filing of an action under subsections 1 and 2 has a suspensive effect, except in the case of an action against termination of the proceedings pursuant to section 25 or an action against a decision under section 16(1)(e) and (f).
(4) The proceedings on an action fall within the jurisdiction of the regional court ...
(5) The lodging of an appeal on points of law against the decision of the regional court on the action against the decision made by the Ministry in the matter of asylum pursuant to subsections (1) and (2) shall have a suspensive effect.”
27. Under section 120a(1) the police, within the framework of making a decision on administrative expulsion pursuant to section 119 or section 120, are obliged to request from the Ministry of the Interior a binding opinion as to whether the alien’s departure is possible (section 179). Under subsection (3) the Ministry will issue its binding opinion without delay.
28. Section 171(c) ruled out judicial review of a decision on administrative expulsion if prior to the proceedings on expulsion the alien had been staying in the territory unlawfully. This provision was repealed by the Constitutional Court as unconstitutional in its judgment of 9 December 2008 (Pl. ÚS 26/07).
29. Section 179 regulates obstacles to an alien departing from the territory of the Czech Republic:
(1) An alien’s departure shall not be permitted if there is reason to believe that, if returned to the state of which he is a citizen, or, in the case of a stateless individual, to the state in which he last held permanent residence, he would be in real danger of serious harm as defined in subsection (2) below and that, due to this danger, he is either unable or unwilling to accept protection from the state of which he is a citizen or in which he last held permanent residence.
(2) For the purposes of this Act, serious harm is understood to be:
a) the imposition or execution of a death penalty;
b) torture, or inhuman or degrading treatment or punishment;
c) serious threat to life or human dignity due to unwarranted violence in situations of international or internal armed conflict; or
d) if the alien’s departure would be in conflict with the Czech Republic’s international obligations.
30. The Court has described the situation in Guinea in M.A.D. v. France (dec.), no. 50284/07, 12 October 2010. The following documents pertain to the situation there at the time relevant for the present application.
“19. On 13 June 2006, the Secretary-General stated that he was deeply concerned by the killings of approximately 10 students during the demonstrations on 12 June 2006. He underlined the need for the non-violent resolution of disputes and called on the authorities to exercise restraint.
20. On 22 January 2007, the Secretary-General stated that he was gravely concerned at the excessive use of force resulting in the loss of life in clashes in Guinea. He strongly urged the Government to carry out investigations into the killings with a view to bringing those responsible to justice, and to take the necessary measures to ensure the safety of all citizens throughout the country. He urged the parties to engage in dialogue in order to find a peaceful resolution to the dispute.
21. On 13 February 2007, the High Commissioner for Human Rights condemned the reported killing of civilians in Guinea days before, and recalled that fundamental human rights cannot be curtailed even in a state of emergency. The same day, the Secretary-General reiterated his grave concern over the worsening political and security situation in Guinea, and stated that he deplored the continued loss of lives and the wanton destruction of property. He urged the Government and the security forces to exercise maximum restraint and to scrupulously uphold the rule of law and respect for human rights, and he urged the labour leaders to refrain from inciting violence and the destruction of property.
...
40. In January 2007, the Special Rapporteurs on the right to freedom of opinion and expression and on the question of torture drew the Government’s attention to the general strike, which began on 10 January 2007 in Conakry, in protest against the Government and its management of the country. During the strike four persons were killed, many were injured and at least 60 were arrested.”
31. During the discussion in the Human Rights Council, the Guinean Government admitted that “a lack of political will has affected the implementation of national and international legislation on human rights. That deficiency has led to serious and massive human rights violations by successive Governments. Denunciations and complaints, linked to political instability and lack of security, have resulted in massive uprisings and general disputes. ... Human rights violations, which commenced in June 2006, have continued up to September 2009.”
32. In 2006 and 2007 the US State Department Country Reports on Human Rights Practices reported serious human rights abuses in Guinea including killings and ill-treatment of student demonstrators by security forces, arbitrary arrests and intimidation of citizens during general strikes and inhuman and life-threatening prison conditions. The reports also noted instances when persons suspected of inciting violence during the general strike were detained for a few days and after release without any charges were repeatedly harassed by security officers and threatened in anonymous phone calls.
33. At the same time the reports noted that political detentions rarely exceeded a few days and those persons were generally extended more protection than other detainees due to the NGO and media attention their cases attracted.
34. According to Amnesty International’s 2008 annual report Guinean security forces used excessive force against demonstrators, arbitrary detention and killings by security forces were reported and torture and other ill-treatment of protesters and detainees were widespread in 2007:
“Against the background of a serious economic crisis, Guinea’s two principal trade unions, supported by the main opposition parties, called a general strike in January 2007. ... President Lansana Conté ... attempted to suppress the movement by force. Throughout January, at the beginning of the movement, members of the security forces shot at peaceful demonstrators, killing dozens of people and injuring others. Despite this use of force and the arrest of some civil society leaders and trade unionists, the general strike continued and in late January the trade unions demanded the appointment of a consensus government.
In February ..., clashes between the demonstrators and the security forces increased and a state of emergency was declared on 12 February. ...
In May, members of the armed forces took to the streets in the capital, Conakry, and other towns, demonstrating and firing into the air. At least 13 people were killed and others were injured by stray bullets.
...
An Independent Commission of Inquiry was established in May ‘charged with conducting investigations into grave human rights violations and offences committed during the strikes of June 2006 and January and February 2007’. Dozens of people, including demonstrators and employees of a private radio station, were arrested for short periods of time by the security forces during the general strike. Some were tortured in custody.”
35. Amnesty International also reported on a particular case of a member of the Union of the Guinean Youth who was arrested twice in February 2007: “He was beaten with rifle butts and police officers walked on him and kicked him in the chest while he was handcuffed with both arms behind his back. Officers tied both his elbows behind his back and inserted a baton between his arms, pulling on it at regular intervals to increase the pain.”
36. In its August 2006 report “The Perverse Side of Things” Human Rights Watch documented cases of serious torture in detention facilities and reported that “Security forces and other government officials in Guinea routinely violate some of the most basic civil and political rights, including the inherent right to life, freedom from torture, freedom of expression, freedom of assembly, and the right to a trial within a reasonable period. These violations are committed against individuals accused of common crimes as well as those persons security forces perceive to be government opponents.”
37. In a note released on 15 February 2007 “Security Forces Abuse Population Under Martial Law” it reported that Guinean security forces were using martial law declared on 12 February 2007 as an excuse to terrorize ordinary Guineans and, under the guise of re-establishing law and order, were acting like common criminals, beating, robbing and brutalizing the population they were supposed to protect.
VIOLATED_ARTICLES: 13
3


ITEMID: 001-99384
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF GRZELAK v. POLAND
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 14+9;Non-pecuniary damage - finding of violation sufficient
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 6. The first two applicants, Urszula and Czesław Grzelak, were born in 1969 and 1965 respectively. They are married and live in Sobótka. They are the parents of Mateusz Grzelak (“the third applicant”), who was born in 1991. The first two applicants are declared agnostics.
7. The third applicant began his schooling in primary school no. 3 in Ostrów Wielkopolski in 1998 (at the age of seven). In conformity with the wishes of his parents he did not attend religious instruction. It appears that he was the only pupil in his class who opted out of that subject. Religious instruction was scheduled in the middle of the school day, between various compulsory courses. The school, despite the wish expressed by the first two applicants, did not offer their son an alternative class in ethics. It appears that when other pupils in his class were following religious instruction the applicants' son was either left without any supervision in the corridor or spent his time in the school library or in the school club.
8. The Government, for their part, maintained that appropriate supervision had been provided for Mateusz Grzelak while religious instruction classes were in progress. The school had a general obligation of care and supervision towards all pupils who were on its premises at any time.
9. According to the first two applicants, their son was subjected to discrimination and physical and psychological harassment by other pupils on account of the fact that he did not follow religious instruction. For that reason, in the course of the third year of primary school the applicants moved their son to primary school no. 9 and subsequently to primary school no. 11 in the same town.
10. On 11 April 2001, when their son was in the third year of primary school, the applicants sent a letter to the headmistress of primary school no. 9 in Ostrów Wielkopolski. They drew her attention to the fact that their son had been ridiculed and harassed by other pupils in the class. They stated that their son was being discriminated against by the majority of his classmates because he did not attend religious education classes. The applicants requested the assistance of the school in resolving the issue.
11. According to the Government, the applicants did not wait for a reply to their letter of 11 April 2001 and moved their son to primary school no. 11. In a letter of 26 June 2001 the headmistress of primary school no. 9 explained that Mateusz Grzelak had attended that school from 23 October 2000 to 19 April 2001. She noted that he had frequently provoked his colleagues by mocking religious symbols and children who attended religious instruction. The class tutor had informed Mr and Mrs Grzelak about their son's behaviour but they had not responded. The headmistress explained further that the school did not ask for a written declaration as to children's attendance at religious instruction. It sufficed for a parent who did not wish for his or her child to attend religious instruction to report that fact to the class tutor.
12. The Government further maintained that Mr and Mrs Grzelak had requested primary school no. 11 to provide their son with a course in ethics. According to the Government, the headmistress of that school had contacted the Poznań Education Authority (kuratorium oświaty) to establish whether it was possible to provide such a course for an inter-school group. Since that was not possible owing to the lack of sufficient numbers of interested pupils and parents, the school proposed to the third applicant that he participate in alternative classes in the school club or school library. It appears that the applicants did not report any problems to the school concerning their son's education.
13. On 1 May 2001 the applicants sent a letter to the Minister of Education, stating that since the beginning of their son's education they had encountered religious intolerance and that the school authorities had failed to react. They put a number of questions to the Minister concerning the Ordinance on the organisation of religious instruction in State schools (see relevant domestic law and practice below). In particular, the applicants raised the following matters in their letter:
1. Why did some schools require declarations from parents as to whether their children would be following religious instruction?
2. Was the school obliged to organise a class in ethics just for one pupil?
3. Why should children like the applicants' son pass their time unproductively in the school club while other children were attending religious instruction or when the schools were closed for Lent retreat?
4. Did the fact that a child had a straight line instead of a mark for “religion/ethics” on a school report indicate that the Ordinance of 14 April 1992 of the Minister of Education on the organisation of religious instruction in State schools (“the Ordinance”) infringed the Education Act and human rights instruments?
5. What could parents do when their child was discriminated against and harassed for not having attended religious instruction?
14. On 29 May 2001 the Ministry of Education replied to the applicants. In respect of the issues raised by the applicants it informed them as follows:
Re question 1: Religious instruction and courses in ethics were organised at the parents' request, and where a declaration to that effect was asked for, it was for organisational reasons only.
Re question 2: If only one pupil was interested in following a course in ethics, then the school authorities should enquire whether it would be possible to follow that course in an inter-school group. If in a given municipality there was no such group, then the school had to arrange for supervision of the pupil during the religious education class.
Re question 3: In the case referred to above the school should organise other activities for pupils not following religious instruction or supervise them adequately by allowing them to do their homework or to use the library, etc.
Re question 4: Paragraph 9 of the Ordinance regulated the manner in which marks for “religion/ethics” were entered in school reports. That provision had been interpreted by the Constitutional Court in its judgment of 20 April 1993 (see relevant domestic law and practice below). The Constitutional Court had noted that the inclusion of marks for “religion/ethics” in a school report was a consequence of providing courses in those subjects in State schools. Furthermore, the Constitutional Court observed that this rule did not breach the right to freedom of conscience and religion.
Re question 5: Discrimination against pupils on the ground of their not having attended religious instruction amounted to a breach of the Ordinance and should be reported to the relevant education authorities.
15. The applicants also applied to the Ombudsman on 14 June 2001, alleging that in their son's case Articles 53 § 7 and 31 § 2 of the Constitution, Articles 9 and 14 of the Convention and various other provisions had been breached. The Ombudsman replied that he could not challenge the Ordinance again following the judgment of the Constitutional Court of 20 April 1993. The problems raised in their letter had more to do with the inappropriate behaviour of some teachers and pupils than the law itself.
16. On 17 October 2001 the applicants sent a letter to the President of the Republic. They requested him to amend the Ordinance with a view to providing guarantees for non-religious children. On 6 November 2001 the President's Office requested the Ministry of Education to reply to the applicants' letter.
17. On 10 December 2001 the Ministry of Education confirmed its position as set out in the letter of 29 May 2001. In addition to the issues already addressed, the Ministry replied to the applicants' complaint concerning the obligation to make a declaration as to whether the child would follow religious instruction. The Ministry informed the applicants that the school authorities could not require parents to make a “negative declaration”, that is, a declaration that their child would not follow religious instruction. Such a practice would contravene the provisions of the Ordinance and should be reported to the education authorities. The Ministry further informed the applicants that the parents' declaration could not be understood as a declaration concerning their beliefs.
18. The applicants submitted that they had made repeated requests to the school authorities, asking for their son to be allowed to follow a course in ethics instead of religious instruction. However, none of the primary schools attended by their son had provided a course in ethics. The refusals had been based on the lack of suitable teachers, financial reasons and insufficient numbers of pupils interested in following a course in ethics.
19. In September 2004 the third applicant began his secondary education.
20. On 16 July 2009 Mr and Mrs Grzelak complained to the Poznań Education Authority (kuratorium oświaty) that their son had not been offered a course in ethics at Ostrów Wielkopolski secondary school no. 2. Their petition (skarga) was referred to the Ostrów District (powiat) which, as the authority responsible for the school, was competent in the matter. On 27 August 2009 the Council of the Ostrów District dismissed the petition as unfounded. It found that Mateusz Grzelak was the only student in all the schools run by the Ostrów District whose parents wished him to follow a class in ethics. Accordingly, the conditions for the provision of such a class, as set out in the Ordinance, had not been met.
21. The school report of the third applicant for the first three years of primary school contained three subjects: behaviour (zachowanie), religion/ethics and general education. In the place reserved for a mark for “religion/ethics” the school report had a straight line.
22. The school report for the fourth year contained a list of courses that the third applicant had followed, including “religion/ethics”. Once again, there was a straight line against the subject “religion/ethics”.
23. In the school report for the fifth year in respect of the subject “religion/ethics” there was a straight line and the word ethics was crossed out. A similar situation applied to the primary school leaving certificate which the third applicant obtained in June 2004.
24. In September 2004 the third applicant began his secondary education in lower secondary school (gimnazjum) no. 4 in Ostrów Wielkopolski. His school reports for the first two years at that school and the leaving certificate of June 2007 had a straight line in the space for “religion/ethics”.
25. In September 2007 the third applicant began studying at Ostrów Wielkopolski secondary school no. 2 (liceum). On 4 September 2007 his parents requested the school to allow him to take a class in ethics, but it appears that no such class was organised. The school reports for the first and second year in that school had a straight line in the space for the subject “religion/ethics”. The third applicant failed German language in the second year of the liceum and from the school year 2009/2010 he moved to the Ostrów Wielkopolski vocational secondary school.
26. Article 82 of the Constitution of 1952 retained in force by the Constitutional Act of 17 October 1992 provided as follows:
“1. The Republic of Poland shall ensure to its citizens freedom of conscience and religion. The church and other religious organisations may freely exercise their religious functions. Citizens shall not be compelled not to participate in religious practices or rites. No one shall be compelled to participate in religious practices or rites.
2. The church shall be separated from the State. The principles of relations between the State and church and legal and financial position of religious organisations shall be determined by statutes.”
27. Section 1 of the Freedom of Conscience and Religion Act provides in so far as relevant:
“1. Poland ... shall secure to its citizens freedom of conscience and religion.
2. Freedom of conscience and religion shall include freedom to choose one's religion or beliefs and freedom to manifest one's religion or beliefs, either alone or in community with others, in private and in public. ...”
Section 2 of the Act states, in so far as relevant:
“In the exercise of their freedom of conscience and religion, citizens may in particular: ...
(2)(a) belong, or not belong, to churches or other religious communities;
(3) express their religious opinions;
(4) raise their children in conformity with their religious convictions;
(5) remain silent as to their religion or convictions ... .”
28. The majority of schoolchildren attend State schools. On 3 and 24 August 1990 the Minister of Education issued two circulars (instrukcje), introducing instruction in Roman Catholicism and other religions into State schools on a voluntary basis. According to these circulars, parents of primary school pupils and parents and/or pupils in secondary schools were to make a declaration as to whether they wished to attend religious instruction.
29. The Ombudsman challenged the conformity of certain provisions of these circulars with the constitutional provisions in force at the time and the statutory law. She stressed that the problem of religious instruction should be regulated by statute and not by subordinate legislation. The Ombudsman submitted that declarations by parents or students concerning attendance of religious instruction classes constituted a form of public manifestation of their religious convictions. Such a practice ran contrary, in the Ombudsman's view, to the Freedom of Conscience and Religion Act, which stipulated that citizens had the right not to disclose their religion or beliefs. In its judgment of 30 January 1991 (case no. K 11/90), the Constitutional Court held that the provisions challenged by the Ombudsman were in conformity with the Constitution and the statutes.
30. On 7 September 1991 Parliament enacted the Law on education (“the 1991 Education Act”). Section 12 of the Act expressly provided that religious instruction could be provided in State schools at the request of parents or of pupils who had reached the age of majority.
31. On 14 April 1992 the Minister of Education issued the Ordinance on the organisation of religious instruction in State schools (Rozporządzenie w sprawie warunków i sposobu organizowania nauki religii w szkołach publicznych – “the Ordinance”). The Ordinance replaced the two ministerial circulars issued in 1990.
32. The Ordinance provided that religious education and ethics were optional subjects. Parents of pupils who wished their children to follow either of those subjects were to make a declaration to the school authorities to that effect. If the number of pupils in a given class interested in following any of these subjects was less than seven, then the school was to organise the relevant course for pupils of different classes from the same school (an inter-class group). If the inter-class group was smaller than seven pupils, the authorities were to organise the relevant course in cooperation with other schools in the municipality (inter-school group), provided that there was a minimum of three pupils interested in following it.
33. Paragraph 9 of the Ordinance provided, in so far as relevant:
“1. The mark for religion or ethics is placed on the school certificate directly after the mark for behaviour. In order to eliminate any possible manifestations of intolerance the school certificate shall not contain any data that would indicate which religion (or ethics) course was followed by a pupil.”
2. The mark for religion (ethics) has no influence on whether a pupil moves up to the next grade.”
34. In August 1992 the Ombudsman challenged the conformity of numerous provisions of the Ordinance with the constitutional provisions in force at the material time and the Freedom of Conscience and Religion Act.
35. The Ombudsman objected to, among other provisions, paragraph 9 of the Ordinance, arguing that the insertion of a mark for “religion/ethics” on school reports was unacceptable since reports were official documents issued by State schools and the teaching of religion was the prerogative of the Church. In addition, this provision created the risk of intolerance. He further alleged that the provision in question was in breach of the constitutional principle of separation of Church and State and the principle of the State's neutrality, as provided for in the Freedom of Conscience and Religion Act.
36. The Ombudsman also contested the obligation imposed on parents (pupils) to make a “negative declaration” to the effect that they did not wish their children to follow religious instruction in a State school (paragraph 3(3) of the Ordinance). He argued that no public authority in the State, which had a duty to remain neutral in the sphere of religious beliefs and philosophical convictions, could require citizens to make such declarations.
37. The Ombudsman further alleged that paragraph 12 of the Ordinance allowed for excessive display of crucifixes in other places in schools than classrooms designated for religious instruction.
38. The Constitutional Court upheld for the most part the constitutionality and legality of the Ordinance. It noted that the inclusion of religious instruction in the State school curriculum did not infringe the constitutional principle of separation of Church and State and the principle of the State's secular character and neutrality. According to the Constitutional Court, the principles in question required that both State and Church remain autonomous in their respective spheres of activity. However, their autonomy should not lead to isolation or even competition between them, but on the contrary should allow them to cooperate in those areas, such as the ethical education of children, which served the common good and the development of the individual. The Constitutional Court further observed that the secular character of the State and its neutrality could not amount to a prohibition on providing religious instruction in State schools. Moreover, according to the Education Act, the provision of religious instruction was always subject to parents' wishes. Referring, among other provisions, to Article 2 of Protocol No. 1 to the Convention, the Constitutional Court noted that the State could not escape its obligation to provide religious education which conformed to parents' wishes.
39. The Constitutional Court held that the Ordinance should be construed as granting each pupil the right to follow classes in both religion and ethics as opposed to the alternative of choosing only one of them. Adopting such an interpretation of the Ordinance would deal with the Ombudsman's concerns about the division of pupils into believers and nonbelievers.
40. As to the insertion of marks for religious instruction in school reports, the Constitutional Court found it to be in conformity with the Education Act. Furthermore, it observed that this was a consequence of the provision of religious instruction, on a voluntary basis, by State schools. In accordance with the Education Act, school reports should contain marks for all subjects (compulsory and optional) taken by a pupil in a given school year. This rule applied equally to marks for religion if that subject was taught in a State school.
41. Replying to the Ombudsman's concerns, the Constitutional Court held as follows:
“In order to dispel possible doubts in this respect, the Constitutional Court indicated in the seventh point of the operative part of its judgment that a mark on a school report may refer not just to religious instruction alone or to ethics alone; in cases where a pupil follows both those courses he or she may be given a joint mark [for the two subjects]. The impugned provision therefore contains a dual safeguard. First, a mark shown on the school report does not indicate any specific religion, and secondly it is not known whether such a mark relates to religious instruction, ethics or both subjects jointly.”
42. As to the obligation to make a “negative declaration”, the Constitutional Court struck down paragraph 3(3) of the Ordinance on the grounds of its incompatibility with the Education Act. Paragraph 3(3) of the Ordinance as amended made no reference to a “negative declaration”. It entered into force on 9 September 1993.
43. As regards the display of the crucifix in State schools, the Constitutional Court found that the paragraph 12 of the Ordinance provided for such a possibility but did not mandate the presence of the crucifix in schools. Accordingly, this provision was compatible with Article 82 of the Constitution.
44. Article 25 § 2 of the 1997 Constitution provides:
“Public authorities in the Republic of Poland shall be impartial in matters of religious and philosophical convictions, and shall ensure freedom to express them in public life.”
Article 48 § 1 of the Constitution provides:
“Parents shall have the right to raise their children in accordance with their own convictions. The child's upbringing shall respect his degree of maturity as well as his freedom of conscience and belief and also his convictions.”
Article 53 of the Constitution provides as follows:
“1. Freedom of conscience and religion shall be secured to everyone.
2. Freedom of religion shall include the freedom to profess or to accept a religion by personal choice as well as to manifest such religion, either individually or collectively, publicly or privately, by worshipping, praying, participating in ceremonies, performing rites or teaching. Freedom of religion shall also include the availability of sanctuaries and other places of worship designed to meet the needs of believers as well as the right of individuals, wherever they may be, to benefit from religious services.
3. Parents shall have the right to provide their children with a moral and religious upbringing and teaching in accordance with their convictions. The provisions of Article 48 § 1 shall apply as appropriate.
4. The religion of a church or other legally recognised religious organisation may be taught in schools, but other peoples' freedom of religion and conscience shall not be infringed thereby.
5. The freedom to publicly express religion may be limited only by means of statute and only where this is necessary for the defence of State security, public order, health, morals or the freedoms and rights of others.
6. No one shall be compelled to participate or not participate in religious practices.
7. No one may be compelled by organs of public authority to disclose his philosophy of life, religious convictions or beliefs.
45. The Constitutional Court was asked to review the constitutionality of amendments to the Freedom of Conscience and Religion Act. The amendments repealed the provisions of a number of laws regulating relations between certain Churches and the State, which granted the former the right to have marks for their religious instruction entered in school reports. The Constitutional Court upheld the constitutionality of the impugned provisions and held that the Churches concerned were not, in fact, divested of the above-mentioned right. Following the entry into force of the amendments, the Churches simply had to fulfil the conditions set out in the Ordinance of the Minister of Education on the organisation of religious instruction in State schools, which were equally applicable to all Churches and religious organisations.
46. The Constitutional Court was asked to examine the constitutionality of the amended Ordinance of the Minister of Education of 13 July 2007 on the marking of pupils' work (Rozporządzenie Ministra Edukacji Narodowej z dnia 13 lipca 2007 r. zmieniające rozporządzenie w sprawie warunków i sposobu oceniania, klasyfikowania i promowania uczniów i słuchaczy oraz przeprowadzania sprawdzianów i egzaminów w szkołach publicznych). The amended Ordinance introduced for the first time the rule that marks obtained for religious instruction or ethics, as well as other optional courses, would be counted towards the “average mark” obtained by a pupil in a given school year and at the end of a given level of schooling. The amended Ordinance entered into force on 1 September 2007.
47. The Constitutional Court in its judgment of 2 December 2009 held that the impugned amendments to the Ordinance on the marking of pupils' work were compatible with Articles 25, 32, 48 § 1 and 53 § 3 of the Constitution. The Constitutional Court found, inter alia, as follows:
“The counting of the mark for religion towards the average annual mark and the final mark is – as the [Constitutional] Court emphasises again – a consequence of the introduction of religious education into the school curriculum and of the recording of marks for religion on school reports in State schools. It is a consequence of the constitutional guarantees of religious freedom rather than of support for theistic beliefs. On the basis of the existing regulations, pupils (or their parents or legal guardians) have the possibility to choose between classes in a specific religion or classes in ethics as an alternative subject for those who do not hold religious beliefs. The Constitution does not provide specific guarantees for instruction in the beliefs enumerated by the claimant (atheistic, pantheistic or deistic). It would be difficult even from an organisational viewpoint to offer such a range of subjects to choose from. The knowledge necessary at this level of teaching can be gained by interested [pupils], for instance, in the framework of the subject 'ethics' or other subjects coming into the category of 'additional educational courses' which are mentioned in the impugned ordinance.”
48. In the reasoning, the Constitutional Court relied on and confirmed the findings made in its judgment of 20 April 1993. It held, inter alia, as follows:
“The Constitutional Court points out that the issue of conformity of the inclusion of marks for religion in official school reports with section 10(1) of the Freedom of Conscience and Religion Act, which stipulates that 'the Republic of Poland is a secular State, neutral in the sphere of religion and beliefs', was already reviewed by the Constitutional Court in its judgment of 20 April 1993, case no U. 12/92. The subject of the review (also under Article 82 § 2 of the then Constitution) was paragraph 9 of the Ordinance of 14 April 1992. ... Ruling in the above case, inter alia, that paragraph 9 of the Ordinance of 14 April 1992 was compatible with section 10(1) (and with Article 82 of the then Constitution), the Court held that:
'The recording of marks for religion in school reports is a consequence of the organisation of religious instruction by State schools. ... A school report covers all school courses – compulsory and optional – and thus there are no grounds for excluding religious instruction. Clearly, the Minister of Education could decide otherwise and do away with the obligation to include marks on a school report. ...'
Endorsing the above findings, the Constitutional Court wishes to underline in connection with the case in issue that the counting of marks for religion towards the average annual mark and the final average mark is in turn a consequence of the recording of marks for religion on school reports in State schools. ....”
The Constitutional Court further noted:
“The Constitutional Court is aware of the fact that in specific cases, given the dominant position of the Roman Catholic faith in the religious make-up of Polish society, the choice of an additional subject (religion or ethics) by parents or pupils may not be entirely free, but may be taken under pressure from “local” public opinion. The free choice of the additional subject depends to a large extent on the respect for the principles of pluralism and tolerance for different convictions and beliefs in local communities. In specific cases in which external pressure – impinging on the free choice – was exerted it would have been the result of a low level of democratic culture. This important issue, while it is noted by the Constitutional Court, lies outside its jurisdiction. ...”
VIOLATED_ARTICLES: 14
9


ITEMID: 001-82198
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF JOHANSSON v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 14+8;Non-pecuniary damage - financial award;Costs and expenses award - domestic and Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 6. The applicants were born in 1970 and 1967 respectively and live in Rajamäki. They have a son, born on 2 May 1999.
7. The parents chose the name “Axl Mick” for their son. On 8 July 1999 the Hyvinkää Population Registration Authority (maistraatti, magistraten) refused the applicants' application to register this forename under section 32b, subsections 2(1) and 3(2), of the Names Act (nimilaki, namnlagen – see paragraph 16 below) as this form of spelling did not comply with Finnish naming practice.
8. The applicants appealed to the then Uusimaa County Administrative Court (lääninoikeus, länsrätten, later replaced by the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen)). They argued that the name “Axl” was common in Denmark and Norway, and it was also used in Australia and the United States. It was pronounceable in the Finnish language and was not incompatible with Finnish naming practice. There were at least three persons with that name registered in the Population Information System (väestötietojärjestelmä, befolkningsdatasystemet) of Finland. Furthermore, they might move abroad later.
9. The State representative appointed by the State Provincial Office (lääninhallituksen määräämä asiamies, ombudsman förordnad av länssyrelsen) was invited to submit an opinion to the County Administrative Court. In his opinion, the name should have been accepted for registration since owing to increasing international contacts and cooperation, registration of a name could not be refused on the sole basis that it was contrary to domestic naming practice.
10. In its submissions to the court the Advisory Committee on Names (nimilautakunta, nämnden för namnärenden) considered that the proposed name was incompatible with Finnish naming practice and that the applicants had not adduced adequate reasons for choosing it.
11. In response to these observations, the applicants maintained that they should be allowed to name their son “Axl” as the Population Registration Authority had registered various other forenames, such as “Minja”, “Tertta”, “Jonina” and “Dersim”, which, in the applicants' view, were modified forenames and contrary to Finnish naming practice in these forms.
12. The Helsinki Administrative Court dismissed their appeal on 3 October 2000. The court referred to the Names Act, by which a name could be accepted, even if incompatible with domestic naming practice, where a person had a connection with a foreign State on the basis of nationality, family relations or some other special circumstance and the proposed forename accorded with the naming practice of that State. The name could also be accepted for other valid reasons (see paragraph 16 below). The court concluded that the arguments submitted by the applicants were insufficient to allow the forename to be registered.
13. In their application to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) the applicants claimed that it was open to interpretation whether the name “Axl” was contrary to the Names Act. They contended that some priests and population registration authorities would have accepted the name. Furthermore, at least three Finnish persons already had that name. In their view the name “Axl” should have been accepted for their son because it had been accepted for other persons. The name fulfilled the criteria of the Names Act in that it was clearly a male name and could not cause any harm to their son. Further, they had used the name in family circles.
14. On 20 September 2001 the Supreme Administrative Court upheld the decision.
15. The Names Act (Act No. 694/1985, as amended by Act No. 253/1991), contains provisions on names. Under section 32a, a child has to be given one to three forenames upon his or her birth. The chosen name must be declared to the Population Registration Authority or the church for registration.
16. Finnish legislation does not contain any provisions as to how a forename has to be chosen. There exist, however, almanacs on Finnish, Finnish-Swedish, Sami and Orthodox names, outlining domestic naming practice. A forename which is not mentioned in an almanac may also be accepted for registration if there are no general obstacles to permitting it under section 32b of the Names Act, subsections 2 and 3 of which read as follows:
“2. In the absence of a reason mentioned in subsection 3 the following categories of names cannot be accepted for a forename:
(1) a name which by virtue of its form or spelling is incompatible with domestic naming practice;
(2) a female name for a boy and a male name for a girl;
(3) a surname...;
(4) a name if it has already been given to a person's sibling.
3. A forename which does not comply with the requirements in subsection 2 may, however, be permitted:
(1) on the grounds of a religious tradition;
(2) if a person, on the basis of nationality, family relations or some other special circumstance, has a connection with a foreign State and the proposed forename accords with the practice of the said State; or
(3) if some other valid reason is considered to exist.”
17. The Advisory Committee on Names, subordinate to the Ministry of Justice, gives advisory opinions to the authorities and courts on the application of the Names Act. It also monitors domestic naming practice and proposes legislative amendments.
VIOLATED_ARTICLES: 8


ITEMID: 001-96421
LANGUAGEISOCODE: ENG
RESPONDENT: ALB
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: JAKUPI v. ALBANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Qerim Jakupi, is an Albanian national who was born in 1937 and lives in Lushnjë. He is represented before the Court by Mr A. Shehu, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agents, Mr S. Puto and Ms B. Bulica.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 April 1992 the Lushnjë City Council granted the applicant a building permit to erect a temporary construction. The applicant used it to establish a café-bar. The permit, however, did not stipulate the duration of its validity.
In 1993 the Urban Planning Act (“the 1993 Act”) was enacted. It provided that building permits for temporary constructions had a validity of one year. The 1993 Act was repealed by the Urban Planning Act 1998 (“the 1998 Act”), which made the same provision for the validity of building permits in relation to temporary constructions.
On 23 December 1999 the Fier District Construction Police (Policia Ndërtimore – “the DCP”) decided to institute administrative proceedings against the applicant for alleged breaches of the 1998 Act’s provisions. Consequently, on 2 February 2000 the DCP found that the one-year validity period of the applicant’s building permit had been considerably exceeded, in violation of the 1998 Act. It also found that it was located on a green public area in breach of the 1998 Act. Finally, the DCP ordered the demolition of the applicant’s construction.
On an unspecified date in February 2000 the applicant filed a motion against the DCP’s decision with the National Construction Police (“the NCP”) – the highest competent administrative body. He argued that the building permit issued in 1992 was for an unlimited duration. Furthermore, he contended that the construction was lawful and that the uninterrupted running of the business should be regarded as an implicit renewal of the permit by the authorities.
On 23 February 2000 the DCP requested the applicant to demolish the building voluntarily within 5 days from the date of its decision in accordance with the 1998 Act.
On 1 March 2000 the NCP rejected the applicant’s motion and upheld the DCP’s demolition order. The applicant was ordered to demolish the café-bar within five days. The respondent Government maintained that the order had been served on the applicant on an unspecified date by surface mail.
In the applicant’s submission, he stayed from 1 to 14 March 2000 in the former Yugoslav Republic of Macedonia for family reasons and was not served with, or notified of, either the decision or the order of the NCP.
On 10 March 2000, while the applicant was in the former Yugoslav Republic of Macedonia, the DCP demolished his café-bar. The police record (proces-verbal), in so far as relevant, stated:
“the DCP (...) closely followed [and inspected] the applicant’s employees’ voluntary execution [of the demolition order].”
The police record was not signed by the applicant’s employees. Neither did the document make reference to any stocktaking of the equipment present inside the café-bar before, during or after its demolition.
On an unspecified date in 2000 the applicant lodged a claim with the Lushnjë District Court (“the District Court”). He challenged the lawfulness of the NCP’s demolition order and complained of arbitrariness on the part of the police force as he had not been informed of the demolition. Moreover, the applicant requested compensation for pecuniary loss in respect of the café-bar’s equipment, which amounted to 3 million Albanian leks (approximately 24,032 euros).
On 30 March 2001 the District Court held that the demolition order was lawful in so far as the applicant had failed to apply to the competent authority for renewal of the building permit to erect a temporary construction. The court found that no automatic renewal had been recognised by the 1998 Act and that the demolition of the building was also in accordance with the Construction Police Act. Moreover, the District Court dismissed as unsubstantiated his claims relating to the arbitrariness of the police force and their responsibility for the alleged damage caused by the demolition of the café-bar. With regard to the loss of the café-bar’s equipment, it found the applicant partly responsible. By failing to comply with the police order, he had contributed to the damage caused to his property. Lastly, the court found that responsibility for the damage caused by the loss of the café-bar’s equipment lay with the employees who had carried out the demolition.
On an unspecified date in 2001 the applicant appealed to the Fier Court of Appeal (“the Court of Appeal”).
On 8 June 2001 the Court of Appeal upheld the District Court’s judgment. It found that the applicant had been responsible for causing the damage in so far as he had decided to go abroad on 1 March 2000 at the time when he had had notification of the impending demolition of the bar. Moreover, the court held that the applicant had not demonstrated any direct liability on the part of the police force for pecuniary loss.
The applicant appealed to the Supreme Court. He claimed that his premises had been erected on the strength of a temporary building permit which did not stipulate the period of validity. Consequently, he had been a bona fide owner and user of the café-bar throughout this time. The applicant alleged that the Construction Police had overstepped its powers in that they had acted in the place of the Council for Territorial Planning as regards the issuance of a demolition order for the premises. The applicant also submitted that the lower courts had not examined whether the demolition order had been duly served on him. Finally, the applicant questioned the Construction Police’s actions resulting in his dispossession of the café-bar’s equipment and the total lack of compensation.
On 20 May 2002 the Supreme Court decided to dismiss his appeal, stating that the grounds of the appeal fell outside the scope of Article 472 of the Code of Civil Procedure (“the CCP”).
On 23 July 2002 the applicant appealed to the Constitutional Court. He relied on the same grounds of appeal as before the Supreme Court.
On 27 September 2002 the complaint was declared inadmissible by a bench of three judges of the Constitutional Court, for failure to comply with Article 131 (f) of the Constitution.
The relevant domestic legal provisions read as follows:
“1. The right of private property is guaranteed.
...”
“1. The freedom, property and rights recognised in the Constitution and by law may not be withdrawn without due process.
2. In the protection of his constitutional and legal rights, freedoms and interests, or in defending against a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
“The Constitutional Court decides on:
(f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
“1. The Constitutional Court may initiate proceedings only at the request of:
...
(f) political parties and other organisations;
(g) individuals.
2. The entities designated in the first paragraph, letters ... (f) and (g), may lodge applications only on issues connected with their interests.”
An individual may lodge a complaint with the Constitutional Court on the basis of Article 131 (f) of the Constitution alleging a breach of his right to a fair hearing. The Constitutional Court has interpreted the right to a fair hearing as encompassing the right of access to a court (see, for example, decisions nos. 4/05, 10/07, 7/08); the right to enjoy equality of arms and the right to notification of acts of a court (see, for example, decisions nos. 11/05, 12/05, 8/06, 5/07, 6/07, 80/07, 1/08); the right to an independent and impartial tribunal (see, for example, decisions nos. 16/05, 36/05, 12/07); and, the right to reasoned judgments (see, for example, decision no. 33/05).
In the event the Constitutional Court finds a violation of the right to a fair hearing, it quashes the lower courts’ judgments and remits the case for re-consideration.
Articles 324-333 govern the adjudication of administrative disputes, following exhaustion of all administrative remedies. Article 324 provides that a party may bring an action before a court with a view to revoking or amending an administrative decision. Under Article 325 a party must argue that the decision is unlawful and that his or her own interests and rights have been violated directly or indirectly, individually or collectively.
With regard to the appeal procedure before the Supreme Court, the Code of Civil Procedure, in so far as relevant, reads as follows:
“Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...”
“An appeal [to the Supreme Court] shall be declared inadmissible if it contains grounds other than those provided for under the law. The inadmissibility of appeals shall be decided upon in deliberations in camera.”
Articles 78 and 79 of the CAP govern the adoption of interim measures.
Article 78 of the CAP provides that the administrative body responsible for taking the final decision may impose interim measures when it considers that the failure to take certain actions would cause serious and irreparable damage to public interests. Interim measures may be adopted on the initiative of the administrative body or at the request of the complainant. The decision should be reasoned and contain a fixed timeframe.
Article 79 of the CAP provides for the grounds on which an interim measure is lifted.
The 1998 Act, which repealed the 1993 Act, entered into force on 25 October 1998. It lays down the general rules governing the location and architecture of constructions in Albania. It provides for the establishment of the district Councils for Territorial Planning (“CTPs”) and the National CTP.
Section 58 provides that permits to erect temporary buildings have a one-year validity. Such permits are issued only in the event of natural disasters or similar occurrences. Section 62 stipulates that district CTAs are not empowered to authorise temporary constructions in green public areas. Under section 75 the Construction Police is empowered to impose fines and order the demolition of unlawful buildings. Moreover, the Act provides for the immediate destruction of illegal buildings in public areas.
Section 82, as in force at the material time, stated that the DCP’s decision could be appealed against within five days to the NCP, which was obliged to decide within ten days. The NCP’s decision could be appealed against to the District Court within five days from its notification. Section 83 provided that an appeal to the court did not have suspensive effect for the execution of administrative decisions.
The 1998 Act does not contain a provision to the effect that it is applicable to events prior to its entry into force.
In its decision no. 2 of 25 January 1999 about the unconstitutionality of certain articles of the 1998 Urban Planning Act, the Constitutional Court found, inter alia, that Articles 58 and 75 were not unconstitutional and did not breach constitutional principles.
By decision no. 32 of 24 November 2003, referring to the suspension of the execution of administrative acts of, inter alia, the Construction Police, as provided for in the 1998 Act, the Constitutional Court held that the suspension of the execution of administrative acts was amenable to judicial review. The domestic courts may decide on the suspension of the execution of administrative acts, provided that the petitioner brings an action against the administrative act and simultaneously requests the suspension of execution thereof, in compliance with the relevant provisions (Articles 324-326 and 329) of the CCP.
The Construction Police Act 1998 established the Construction Police who were responsible for supervising compliance with and the lawfulness of the urban planning legislation. The Construction Police was empowered to impose fines, decide on the suspension of construction work and order the demolition of unlawful constructions (section 3 and 5).
The Construction Police Act 1998 was repealed in 2007.


ITEMID: 001-104490
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF JENDROWIAK v. GERMANY
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 7-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 5. The applicant was born in 1953. When lodging his application, he was detained in Bruchsal Prison. He has been released on 28 August 2009.
6. Since 1972 the applicant has been convicted of five counts of rape and two counts of attempted rape of women aged between sixteen and nineteen and has been sentenced three times to terms of imprisonment. Between May 1976 and his arrest in 1989 he spent only some eight and a half months outside prison.
7. On 23 May 1990 the Heilbronn Regional Court convicted the applicant of attempted sexual coercion. It sentenced him to three years' imprisonment and ordered his placement in preventive detention pursuant to Article 66 § 1 of the Criminal Code (see paragraphs 22-23 below). The Regional Court found that in October 1989 the applicant, returning to methods similar to those he had used to commit some of his previous offences, had simulated a breakdown of his car and had asked a twentythree-year-old woman to help him restart it. He had then attempted to force his victim to submit herself to sexual acts, but she had managed to escape. The preventive detention of the applicant, who had acted with full criminal responsibility, was necessary as he had a tendency to commit serious sexual offences in order to humiliate and abuse women and was thus likely to reoffend.
8. The applicant served his full prison sentence. He was then placed in preventive detention, for the first time, on 24 October 1992; he had thus served ten years in preventive detention by 23 October 2002.
9. The continuation of the applicant's preventive detention was ordered by the Karlsruhe Regional Court at regular intervals.
10. On 15 October 2002 the Karlsruhe Regional Court, sitting as a chamber responsible for the execution of sentences, having heard the applicant, his counsel and a psychiatric expert, W., in person, ordered the applicant's preventive detention to continue pursuant to Article 67d § 3 of the Criminal Code (see paragraph 25 below). It found that there was still a risk that the applicant, owing to his criminal tendencies, might commit serious sexual offences if released resulting in considerable psychological or physical harm to the victims.
11. The Regional Court subscribed to the opinion given by expert W. in his report of 3 October 2002. The expert, who had to give his view on the basis of the case file as the applicant had refused to make any submissions to him, had concluded that there was nothing to indicate that the applicant, who had committed numerous sexual offences and suffered from a personality disorder, had changed. He was therefore likely to reoffend if released.
12. The Regional Court further found that neither the applicant's personal situation nor his attitude had changed since its last decision. As had also been confirmed by expert W., without submitting himself to a therapeutic treatment, notably to a social therapy, which the applicant kept refusing to do, the conditions for suspending the applicant's preventive detention on probation could not be met.
13. Contrary to the applicant's view, the Regional Court further considered that Article 67d of the Criminal Code, as amended in 1998 (see paragraph 25 below), was constitutional.
14. On 21 November 2002 the Karlsruhe Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant's appeal.
15. On 13 December 2002 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court. He complained about the decision to prolong his preventive detention on completion of ten years of placement on the basis of the amended Article 67d § 3 of the Criminal Code, which had entered into force after he had committed his offence. He argued that the decision violated the prohibition of retrospective punishment under the Basic Law, the prohibition of retrospective legislation enshrined in the rule of law and his right to liberty. That decision further breached the principle of proportionality in that the courts responsible for the execution of sentences had made his release dependent on the completion of a social therapy lasting five to seven years, which would unduly prolong his preventive detention.
16. On 22 March 2004 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 2027/02). It found that the applicant's complaint was ill-founded. Referring to its leading judgment of 5 February 2004 in the case of M. (file no. 2 BvR 2029/01; application no. 19359/04 to this Court), it stated that the provisions on which the applicant's continued preventive detention was based, Article 67d § 3 of the Criminal Code, read in conjunction with section 1a § 3 of the Introductory Act to the Criminal Code, as amended in January 1998 (see paragraph 25 below), were constitutional.
17. Moreover, in the Federal Constitutional Court's view, the criminal courts had not applied these provisions to the applicant in a disproportionate manner. There were notably no objections under constitutional law to considering the total absence of a necessary therapy to be a negative factor in the assessment of whether the applicant was likely to reoffend.
18. In 2004 the applicant was diagnosed with cancer of the lymph nodes and subsequently with cancer of the eyes.
19. On 11 July 2005 and on 1 October 2007 the Karlsruhe Regional Court ordered the continuation of the applicant's preventive detention.
20. On 29 April 2009 the Karlsruhe Regional Court, sitting as a chamber responsible for the execution of sentences, decided to suspend the further execution of the applicant's preventive detention on probation as from 31 August 2009 and ordered the supervision of his conduct. Having consulted a medical expert, it considered that there were justifiable reasons for testing whether the applicant could be released without committing further unlawful acts. It noted that the applicant had persistently refused to make a social (group) therapy, considered most suitable by all medical experts consulted, but had at least made an individual therapy with an external psychotherapist. The applicant was released from preventive detention on 28 August 2009.
21. A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court's judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions referred to in the present case provide as follows:
22. The sentencing court may, at the time of the offender's conviction, order his preventive detention, a so-called measure of correction and prevention, under certain circumstances in addition to his prison sentence, a penalty, if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code).
23. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years' imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year's imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1 of the Criminal Code, in its version in force at the relevant time).
24. Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3).
25. Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provided that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a § 3 of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis.
VIOLATED_ARTICLES: 5
7
VIOLATED_PARAGRAPHS: 5-1
7-1


ITEMID: 001-77988
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF MELNIC v. MOLDOVA
IMPORTANCE: 3
CONCLUSION: Government's request to strike the application out of the list;Violation of Art. 6-1 in respect of the quashing of the judgment;Not necessary to examine the other complaints under Art. 6-1 and P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1948 and lives in Rezina.
8. The applicant is the widow of the former President of the Rezina District Court. On 7 June 1998, after the death of her husband, the applicant lodged several requests with the Ministry of Finances (“the Ministry”) and Ministry of Justice, seeking the lump sum to which she was entitled in accordance with the “Law on the Status of Judges”. When she was refused on the ground of lack of resources, the applicant brought an action against the Ministry.
9. On 2 March 1999 the Buiucani District Court awarded the applicant 345,491 Moldovan lei (MDL, the equivalent of 35,987 euros (EUR) at the time), to which it found she was entitled following the death of her husband. The Ministry appealed. By judgments of 11 May 1999 and 17 August 1999 the Chişinău Regional Court and the Court of Appeal, respectively, dismissed the Ministry’s appeals.
10. The applicant lodged numerous complaints about the failure of the Ministry to comply with the judgment and pay her compensation. On 13 January 2000 the Ministry paid the compensation.
11. Since the applicant considered that the late enforcement of the judgment had significantly reduced the value of her compensation due to inflation, she requested the Ministry to make good the diminished value. The Ministry refused to comply with the applicant’s request and she brought an action against it, seeking compensation for the late enforcement.
12. On 14 September 2001 the Buiucani District Court ruled in favour of the applicant and ordered the Ministry to pay her MDL 244,953 (EUR 21,007 at the time) in compensation. The Ministry appealed.
13. On 5 February 2002 the Chişinău Regional Court dismissed the Ministry’s appeal and upheld the judgment of 14 September 2001. The judgment of the Chişinău Regional Court stated specifically that the Ministry’s representative had been present and had addressed the court. Since the Ministry did not lodge an appeal in cassation within fifteen days, the judgment of 5 February 2002 became final.
14. On 8 April 2002, 47 days after the expiry of the legal time-limit for lodging the appeal in cassation, the Ministry lodged an appeal in cassation with the Court of Appeal and requested an extension of the legal time-limit for lodging it, without providing any reasons for the failure to observe it.
15. On 9 July 2002 the Court of Appeal examined the Ministry’s appeal in cassation. The Court of Appeal requested, ex-officio, a report from the Statistics Department on the level of inflation and relied on it in its judgment. The applicant alleged that she had not been given the possibility either to familiarise herself with the document or to challenge it before the court. The applicant also alleged that she had expressly requested the Court of Appeal to dismiss the Ministry’s appeal in cassation since it had been lodged out of time.
16. By a judgment of 9 July 2002 the Court of Appeal upheld the Ministry’s appeal in cassation, quashed the judgments in favour of the applicant and reduced the amount of compensation for inflation to MDL 118,848 (EUR 8,766 at the time). The Court of Appeal did not give any reason for accepting the appeal in cassation lodged out of time.
17. On 16 September 2002 the Prosecutor General lodged with the Supreme Court of Justice a request for annulment of the judgments in favour of the applicant and asked for the reduction of the amount of compensation awarded.
18. On 9 October 2002 the Supreme Court of Justice upheld the Prosecutor General’s request for annulment, quashed the judgments in favour of the applicant and dismissed her claims for compensation.
19. The relevant provisions of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003, read as follows:
“Where a person has failed to comply with a legal time-limit for reasons considered by a court to be plausible, that time-limit may be extended by the court.
A request for the extension of the time-limit shall be lodged with the court concerned and shall be examined at a court hearing....
A court judgment dismissing a request for extension of a time-limit may be challenged by way of an appeal.”
“The time-limit for lodging an appeal may be extended in accordance with the provisions of section 114 of the present Code. If a court does not have reasons to extend the time-limit, it shall dismiss the appeal as time-barred.”
“The legal time-limit for lodging an appeal in cassation is fifteen days, unless the law provides otherwise.”
“The issuance of the judgment as well as other procedural provisions before the appeal instance should be applicable to the proceedings before the cassation instance.”
“Irrevocable judgments are:
...
3) non-appealed judgments, issued by the appeal instances.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-93336
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: GRUŠOVNIK v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: The applicant, Ms Marija Grušovnik, is a Slovenian national who was born in 1943 and lives in Šempeter. She was represented before the Court by Mr D. Teržan, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mr L. Bembič, State Attorney-General.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. On 30 November 1993 the applicant was injured in a car accident caused by a third person. The perpetrator had taken out liability insurance with an insurance company Z.T. (“the insurance company”).
2. On 20 October 1995 the applicant, represented by a lawyer, instituted compensation proceedings against the insurance company at the Celje Local Court (Okrajno sodišče v Celju), claiming a total amount of 2,933,487 Slovenian tolars (SIT – approximately 28,600 euros (EUR)) for pecuniary and non-pecuniary damage, together with default interest. Out of the total amount, she sought SIT 2,900,000 (approximately EUR 28,300) for the non-pecuniary damage sustained, with default interest from the date on which the compensation proceedings had been instituted.
3. On 27 December 1995 the Celje Local Court decided that it did not have jurisdiction to hear the case and submitted the case file to the Celje District Court (Okrožno sodišče v Celju).
4. On 25 February 1997 the applicant requested the court to decide promptly on the case.
5. On 12 May 1997 the first-instance court held a hearing, at which it partly upheld the applicant’s claim for compensation in the amount of SIT 1,933,487 (approximately EUR 18,900) and dismissed the remainder of the claim. Out of the total, the court awarded the applicant SIT 1,900,000 (approximately EUR 18,500) for non-pecuniary damage, together with default interest with effect from the date of the court judgment. It dismissed, however, her claim for default interest with effect from the institution of the compensation proceedings on 20 October 1995 until the delivery of the judgment on 12 May 1997. Both parties appealed.
6. On 9 April 1998 the Celje Higher Court (Višje sodišče v Celju) dismissed the applicant’s appeal and partly upheld the defendant’s appeal, by lowering the amount of compensation awarded to SIT 1,633,487 (approximately EUR 15,943), together with default interest for non-pecuniary damage with effect from 12 May 1997.
7. On 24 June 1998 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovno sodišče), alleging that the amount of compensation for non-pecuniary damage had not been correctly established in view of all the non-pecuniary damage she had suffered. In addition, the applicant maintained that default interest on compensation for non-pecuniary damage should have been awarded with effect from the date on which the compensation proceedings had been instituted, as allegedly required by the Obligations Act, and not only with effect from the date on which the first-instance court judgment had been delivered.
8. On 3 March 1999 the Supreme Court dismissed the appeal as a whole, holding that the second-instance court had correctly assessed the amount of compensation for non-pecuniary damage and correctly awarded default interest from the day the first-instance court judgment had been issued. In particular, it held that the amount of compensation appeared to be just also with regard to the relatively short period of time the applicant had had to wait for the first-instance court judgment; the first-instance court judgment had been delivered one year and seven months after the applicant had instituted compensation proceedings.
In this connection, the Supreme Court referred to the well-established jurisprudence to the effect that persons claiming compensation for non-pecuniary damage were not to be indemnified by an award of default interest for the period from the day the damage occurred until the day the first-instance court delivered judgment. Instead, this factor should be taken into account when determining a just amount of compensation (the principal). The Supreme Court stated that this approach had been adopted since 1987 owing to the unstable economic situation in the country and the high rate of inflation and monetary depreciation in particular. In order to preserve the real value of a compensation claim for non-pecuniary damage, the amount due was therefore determined only on the date of delivery of the judgment. Default interest was thus awarded only from that day onwards, while “Relevant domestic law and practice” below). The applicant lodged a constitutional complaint with the Constitutional Court (Ustavno sodišče).
9. On 11 June 2001 the Constitutional Court declared the complaint inadmissible. It held that the Supreme Court had reached its decision in accordance with well-established jurisprudence, valid since 1987, according to which default interest on compensation for non-pecuniary damage was to be awarded only from the day the first-instance court rendered the judgment. Such approach had been adopted because of the high rate of inflation, in order to calculate the due amount of compensation in accordance with the prices valid on the day the decision was adopted, and not on the day the court proceedings had been instituted. In the Constitutional Court’’s opinion, was generally adopted and was applicable to all disputes concerning non-pecuniary damage. Since the Constitutional Court did not find any violation of human rights, it dismissed the complaint.
10. On 4 July 2001 the Constitutional Court’s decision was served on the applicant.
11. The relevant sections of the Constitution of the Republic of Slovenia (Ustava Republike Slovenije, Official Gazette of the Republic of Slovenia, No. 33/91 and 42/97) provided at the material time:
“In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance.
All are equal before the law.”
“Everyone shall be guaranteed equal protection of rights in any proceedings before a court and before any State or local authority and bearer of public authority which determines his or her rights, duties or legal interests.”
“Everyone shall have the right to have his or her rights, duties and any charges brought against him or her determined without undue delay by an independent and impartial tribunal established by law.
Only a judge duly appointed pursuant to rules previously established by law and by judicial regulations may try such an individual.”
“The right to private property and inheritance shall be guaranteed.”
12. The following section of the Constitutional Act implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia of 25 June 1991 (Ustavni zakon za izvedbo Temeljne ustavne listine o samostojnosti in neodvisnosti Republike Slovenije, Official Gazette of the Republic of Slovenia, Nos. 1/91 and 42/97) is relevant to the present case:
“Until the relevant legislation of the Republic of Slovenia is enacted, the federal legislation in force in the Republic of Slovenia at the time of entry into force of this law shall be applied as legislation of the Republic of Slovenia unless it is contrary to the legal order of the Republic of Slovenia, and except as otherwise provided by this law.
...”
13. This Act served as a legal basis for the incorporation, with the necessary amendments, of legislation previously enacted under the SFRY into the legal order of the independent Republic of Slovenia, for example the 1978 Obligations Act (see below).
14. The original text of the 1978 Obligations Act (Zakon o obligacijskih razmerjih, Official Gazette of the Socialist Federal Republic of Yugoslavia, Nos. 29/78, 38/85) provided in section 401 that default interest ceased to accrue once the amount of overdue interest reached the value of the principal debt (prohibition ultra alterum tantum). In 1989 this section was abrogated (Official Gazette of the Socialist Federal Republic of Yugoslavia No. 57/89).
15. Further relevant provisions of the Act as amended read as follows:
“An obligation arising from a tort shall be deemed to be payable at the moment when the damage occurs.”
“...
(2) Compensation for damage shall be determined according to the prices applicable at the time of the delivery of the court judgment, unless otherwise provided by law.
...”
“(1) In respect of physical pain or mental anguish suffered on account of reduced
(2) When considering a claim for non-pecuniary damage and determining the compensation to be awarded, the court shall consider the value of the damaged personal property and the purpose of such compensation, and shall also ensure that it does not serve interests which would be inappropriate to its nature and social significance.”
“(1) A debtor who fails to perform a pecuniary obligation shall owe, in addition to the principal, default interest at a rate prescribed by federal law.
(2)...”
“(1) A debtor shall be in default of his pecuniary obligation if he fails to perform it within the period stipulated for its performance.
(2) If no period is stipulated for performance, the debtor shall be in default where the creditor, by means of an oral or written reminder or by instituting judicial proceedings intended to secure the fulfilment of the obligation, requests the debtor to perform his obligation.”
“If the object of an obligation is a sum of money, the debtor shall owe the sum of money specified at the time the obligation was entered into, unless otherwise provided by law.”
16. The Code of Obligations (Obligacijski zakonik, Official Gazette of the Republic of Slovenia, No. 83/2001) reintroduced in section 376 a provision to the effect that default interest ceased to accrue once the amount of overdue interest reached the value of the principal (prohibition ultra alterum tantum, see paragraph 14 above). It also repealed former section 277 and provided instead in section 378 that default interest was to be regulated as follows:
“If a debtor is in default as regards the performance of a pecuniary obligation, he shall owe default interest in addition to the principal.
The rate of default interest shall be 8% per annum, unless a special law provides otherwise.”
17. In its transitional and final provisions the new Code stated that the provisions were not to apply to obligations that arose prior to its entry into force. It also provided that the special law referred to in section 378(2) was the Statutory Default and Basic Interest Rate Act (see below).
18. Other provisions of the new Code of Obligations relevant to the present case follow the wording of the former Obligations Act.
19. The Default Interest Rate Act (Zakon o obrestni meri zamudnih obresti, Official Gazette of the Republic of Slovenia, Nos. 14/92 and 13/93) prescribed the interest rate as the retail price growth rate in the preceding month, recalculated on an annual level, and increased by a 30% real annual default interest rate. In the subsequent year the real annual default interest rate was reduced to 25%. The default interest was composed of the real index and the retail price index (adjustment index), the latter having the function of increasing the amount of the principal according to the monetary depreciation in the country. Default interest thus had a function of preserving the real value of a pecuniary obligation and hence ensuring that the purchasing power of the claim remained unchanged.
20. The Statutory Default and Basic Interest Rate Act (Zakon o predpisani obrestni meri zamudnih obresti in temeljni obrestni meri, Official Gazette of the Republic of Slovenia, No. 45/95) determined the statutory default interest rate as being equal to the basic interest rate increased by 1.8 times the general discount rate of the Bank of Slovenia (section 2), the basic interest rate being the annual interest rate for domestic-currency pecuniary obligations ensuring the preservation of their real value (adjustment) (section 3). Default interest thus formally assumed three distinctive functions: a function of adjustment of pecuniary obligations in accordance with inflation in the country, a function of payment for the use of another person’s capital, and a punitive function for a debtor in default as regards the performance of his obligation.
21. The Amendments and Supplements to the Statutory Default and Basic Interest Rate Act (Zakon o spremembah in dopolnitvah zakona o predpisani obrestni meri zamudnih obresti in temeljni obrestni meri, Official Gazette of the Republic of Slovenia, No. 109/2001) determined the statutory default interest rate as the basic interest rate increased by 13.5 percentage points (section 2), the basic interest rate being the annual interest rate for domestic-currency pecuniary obligations ensuring the preservation of their real value (adjustment) (section 3).
22. The Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette of the Republic of Slovenia, No. 26/99) provided in section 2 that in civil proceedings, the court should decide only within the boundaries of the claims filed (ne eat iudex ultra et extra petita partium). A case in which the court nevertheless decided extra petitum and made an award that was higher than or did not correspond to what was claimed would, pursuant to sections 350, 375 and 381, amount to a major violation of procedural law and constitute a ground for a higher-instance court to quash the judgment in question.
23. On 29 May 1987 the SFRY Federal Court, the Supreme Courts of the Republics and Regions of the SFRY and the Federal Military Court, sitting in Bugojno (present-day Bosnia and Herzegovina), adopted a new interpretation of the provisions of the 1978 Obligations Act, which dealt with default interest on compensation for non-pecuniary damage, by issuing the following opinion:
“Default interest on a pecuniary claim for non-pecuniary damage shall be payable with effect from the date of delivery of the first-instance court judgment in which the compensation was determined.
When determining the amount of just pecuniary compensation, the court shall also take into account the period from the date of the occurrence of the damage until the date of the judgment, if this is justified by the time that has elapsed since the damage occurred or by ”
24. With the incorporation of the 1978 Obligations Act, enacted under the former SFRY, into the legal system of the newly established Republic of Slovenia, the Supreme Court of the Republic of Slovenia also adopted the interpretation of the relevant provisions of that Act as developed by the former SFRY Federal Court, the Supreme Courts of the Republics and Regions of the SFRY and the Federal Military Court (see paragraph 23 above).
25. The Supreme Court observed that, under the legislation in force since 1978, default interest also included interest for adjustment of a pecuniary obligation in accordance with the level of inflation. On certain occasions in the past, the default interest for pecuniary obligations therefore amounted to over 1000% of the main claim. However, in the case of claims for compensation for non-pecuniary damage, the preservation of the real value of a debt was ensured by determining its amount only on the date of delivery of the first-instance court judgment. By that date, a claim in respect of a non-pecuniary obligation therefore remained unaffected by inflation. Thus, if default interest was awarded with effect from the date on which non-pecuniary damage had occurred, this would result in a double adjustment of the compensation claim from that date until the delivery of the judgment: once by determining its amount only on the day of delivery of the judgment, and then also with the award of default interest from the day the damage occurred. In the Supreme Court’s view, this was unacceptable.
26. Furthermore, the Supreme Court consistently held that a higher amount of compensation was not to be awarded solely on the basis of the fact that the case had been decided after a longer period of time. Thus, a claimant could only claim a higher amount of compensation under that head if the length of the court proceedings was excessive, for example on account of delays caused by one of the parties to the proceedings or perhaps even abuses of his or her procedural rights (see, for example, the reasoning of the Supreme Court in II Ips 221/2001, II Ips 282/2000, II Ips 351/2003 and II Ips 664/2003).
27. Finally, the Supreme Court emphasised on several occasions that despite the fact that in recent years inflation had no longer been so high and default interest had therefore no longer included such a high adjustment index, the jurisprudence could not be changed in an isolated case where a claimant had sought default interest from the day he had sustained the damage. Such a change in jurisprudence could only be carried out in a general manner, so that it took effect with respect to a non-identifiable circle of claimants and for all claimants at the same time (see in particular II Ips 351/2003).
28. After the new Code of Obligations had been enacted in 2001, replacing the 1978 Obligations Act, the Supreme Court adopted a new legal opinion on 26 June 2002 concerning the issue of default interest, which read:
“(1) From the date on which the Code of Obligations came into force (1 January 2002), the victim is entitled to default interest on a pecuniary claim for non-pecuniary damage (sections 179 to 183 of the Code of Obligations and sections 200 to 203 of the former Obligations Act), unless the default occurred at a later stage (section 299 of the Code of Obligations and section 324 of the former Obligations Act), after the entry into force of the Amendments and Supplements to the Statutory Default and Basic Interest Rate Act, as a result of which default interest is awarded:
– until the date of delivery of the first-instance court judgment at the prescribed interest rate, reduced by the basic interest rate (currently 13.5%);
– from the date of the first-instance court judgment onwards at the prescribed default-interest rate (section 2 of the Amendments and Supplements to the Statutory Default and Basic Interest Rate Act ).
...
(3) Payments of compensation are subject to adjustment at the basic interest rate (section 3 of the Statutory Default and Basic Interest Rate Act) or at the rate agreed between the parties (section 372 of the Code of Obligations).”
29. In its reasoning on its newly adopted legal opinion, the Supreme Court observed, inter alia, that the economic situation in the country had stabilised, and the new legislation, namely the new Code of Obligations and the Amendments and Supplements to the Statutory Default and Basic Interest Rate Act, now distinguished between default interest and the interest intended for adjustment of a pecuniary obligation. In the Supreme Court’s view, these developments allowed a change in the jurisprudence concerning the awards of default interest in the case of claims for non-pecuniary damage. Thus, default interest may now be payable with effect from the date on which the damage occurred, regardless of whether it was of a pecuniary or a non-pecuniary nature.
30. The above-mentioned Supreme Court’s jurisprudence was upheld also by the Constitutional Court (see, for example, the decision of the Constitutional Court in the present case, para. 9 above). Therefore, the following provisions of the Constitutional Court Act (Zakon o Ustavnem sodišču, Official Gazette of the Republic of Slovenia, Nos. 15/94, 51/07 and 64/07) concerning legal effects of the Constitutional Court’s decisions are of particular relevance in the present case:
(1.)...
(2.)...
(3.) “The decisions of the Constitutional Court are binding.”