ITEMID: 001-93656
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SELIWIAK v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Legal assistance of his own choosing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 5. The applicant was born in 1962. He is currently serving a prison sentence in Łęczyca prison.
6. On 25 July 2000 the applicant was arrested and his apartment was searched by the police. He was subsequently remanded in custody from 27 July 2000 until 31 May 2001. In a judgment of 8 January 2002 the Kutno District Court found the applicant guilty of burglary and sentenced him to three and a half years’ imprisonment. The applicant, who was at that time in detention for the purposes of another criminal case against him, was represented before the court by a legalaid lawyer, M.M.
7. On an unknown later date the lawyer submitted his appeal to the court. By a letter of 4 July 2002 the court, apparently unaware of the fact that the applicant remained in detention in connection with another criminal case, informed the applicant that the appeal submitted by the lawyer had been declared admissible. This letter was sent by registered letter to the applicant’s home address and served on his wife. The court considered it to have been properly served on the party as required by the applicable laws. The appeal itself was neither sent to the applicant nor served on him.
8. On 15 May 2003 the court sent another letter to the applicant’s home address, informing him that his legalaid lawyer had been replaced by another one, A.L. This letter was not collected from the post office within the statutory period and was returned to the registry of the court. The court considered, in compliance with the applicable provisions of criminal procedure, that it had been properly served on the applicant.
9. Subsequently, the court sent a summons to the hearing before the appellate court to the applicant’s home address. It was not served on him as he remained in detention.
10. The new legalaid lawyer did not get in touch with the applicant. The applicant learned from one of the inmates in Łowicz prison that an appeal had been lodged in his case and that a hearing was soon to be held. On 15 July 2003 he wrote a letter to the court requesting it to postpone the hearing and to be brought before the court. He also submitted his own arguments in support of the appeal.
11. On 17 July 2003 a hearing was held, in the applicant’s absence, before the Łódź Regional Court. The court dismissed the lawyer’s appeal.
12. On 28 July 2003 the applicant was informed by the registry of the court that his request of 15 July and his appeal had been submitted to the court after the hearing of 17 July 2003. On the same day the applicant complained to the court that he had been unable to participate in the hearing.
13. On 8 August 2003 a copy of the judgment given by the appellate court was sent to the prison where the applicant was detained at that time.
14. On 14 August 2003 the applicant requested legal aid for the purpose of preparing a cassation appeal against the judgment of 17 July 2003. On the same day he submitted a detailed complaint to the Łódź Court of Appeal about the fact that he had not been properly notified of the hearing, that the legalaid lawyer had been replaced without his knowing it, that he had neither been served with a copy of the appeal nor informed that it had been accepted for examination, and that he could not participate in the hearing. He was of the view that his defence rights had thereby been breached and that the conviction was in any event not safe, given the errors committed by the first-instance court in the assessment of the evidence.
15. On 8 September 2003 A.L., the same lawyer who had represented the applicant before the appellate court, was assigned to the case. On the same day the court, referring to Article 448 § 1 of the Code of Criminal Procedure, informed the applicant that he had not been entitled in law to have a copy of the lawyer’s appeal served on him, and that the summons had been served at his home address.
16. On 11 September 2003 the applicant submitted his own cassation appeal to the Supreme Court. He reiterated the procedural complaints which he had made in respect of the appellate proceedings. He also argued that the court had failed to take into consideration circumstances pointing to his innocence.
17. On 12 September 2003 the applicant was informed that he had been granted legal aid for the purposes of the cassation proceedings. On 22 September 2003 A.L. notified the court and the applicant that he had found no grounds on which to prepare a cassation appeal. The applicant was served with this letter on 25 September 2003.
18. On 26 September 2003 the applicant lodged a complaint against A.L. with the Łódź Bar Association. He submitted, essentially, that he should not have been assigned to represent him in the cassation proceedings, given what had happened in the proceedings before the appellate court. On the same day he requested the court to accept his own cassation appeal for examination.
19. The Bar Association answered on 17 October 2003, stating that A.L. had been right to refuse to prepare a cassation appeal in the applicant’s case.
20. On 26 September 2003 the applicant lodged further pleadings in support of his cassation appeal dated 11 September 2003 (see paragraph 16 above).
21. On 3 October 2003 the Łódź Regional Court refused to accept the applicant’s cassation appeal as it had not been prepared and signed by a lawyer as required by law. The applicant appealed. On 4 November 2003 the court summoned him to have that appeal submitted by a lawyer.
22. By a letter of 17 October 2003 the Łódź Regional Bar Association informed the applicant that a legalaid lawyer was, under the applicable laws, entitled to refuse to prepare a cassation appeal.
23. On 18 December 2003 the Łódź Regional Court refused to accept for examination the applicant’s appeal against the decision of 3 October 2003, finding that it should have been submitted by a lawyer. On 17 March 2004 an appeal by the applicant against that decision was dismissed by the Supreme Court.
24. On 11 February 2002 the Gostynin District Court found the applicant guilty of attempted car theft and sentenced him to two years’ imprisonment. The applicant appealed. On 19 June 2002 the Płock Regional Court dismissed the appeal.
25. On 23 June 2003 the applicant issued a request to have both judgments quashed and his case re-examined by the first-instance court. He argued that new evidence had emerged, namely the statement of K.S., who had confessed to the crime of which the applicant had been found guilty.
26. On 21 November 2003 the Warsaw Court of Appeal dismissed the request. The court found K.S.’s statement “implausible”.
27. In 1997 a new Code of Criminal Procedure was enacted. Article 451 of the Code provided that an appellate court could order that a defendant be remanded in custody (under Polish law remand in custody is terminated only by a secondinstance judgment) and be brought to the courtroom to attend a hearing before that court.
Article 452 of the Code of Criminal Procedure reads:
“§ 1. A court of appeal shall not be allowed to conduct evidentiary proceedings pertaining to the merits of the case.
§ 2. In exceptional cases the appellate court may, if it finds the completion of a judicial examination necessary, nevertheless accept new evidence directly at the hearing, if this will expedite the judicial proceedings and there is no necessity to conduct the whole of the proceedings, or a major part thereof, anew. Before the hearing the court may issue an order on the admission of evidence.”
28. In 1999 the Supreme Court adopted a resolution stating that during a hearing before an appellate court a defendant should at least have an opportunity to defend him- or herself, or to be represented by a defence lawyer (5 October 1999, IV KKN 334/99).
29. In a judgment of 29 March 2000 the Supreme Court stated that it was mandatory to bring the defendant to a hearing before the appellate court, regardless of whether he or she had made a relevant request (V KKN 111/98).
30. In a judgment of 4 October 2000 the Supreme Court stated that in cases in which the arguments made in the statement of appeal were limited to challenging exclusively the legal aspects of a case or where only the sentence was challenged, a decision not to bring a defendant represented by a lawyer before the appellate court was correct (III KKN 164/2000).
31. In July 2000 Article 451 of the Code was amended, in response to the Court’s judgment in the case of Belziuk v. Poland (Reports of Judgments and Decisions 1998II). The amended provision read:
“The appellate court shall order an accused, who is detained, to be brought to the appellate hearing, unless it finds that the presence of his lawyer is sufficient. If the court decides not to bring an accused who has no defence counsel to the hearing it shall appoint for him ex officio a legal-aid lawyer.”
32. In 2001 the Supreme Court examined the Ombudsman’s request for clarification of issues relating to the presence of the accused at the appeal hearing. In its resolution of 18 October 2001 the court expressed the view that the right to a fair hearing demanded that the person convicted by the first-instance court should be informed of his right to request to be brought before the appellate court, and should be brought to such a hearing. The Supreme Court stated:
“...Finally, it should be underlined that even if the accused requests to be brought to an appeal hearing, the court may establish that the presence of the lawyer at the appeal hearing would be sufficient. If the accused does not have counsel, it is necessary to appoint a legalaid lawyer for him, whose presence at the hearing would be obligatory. It should however be noted that if an accused deprived of liberty requests to be brought to an appeal hearing, granting such a request should be a rule... Finding that the presence of the lawyer would be sufficient could occur in particular if the appeal hearing concerned only questions of law.”
33. On 1 July 2003 extensive amendments to the Code of Criminal Procedure, adopted in February 2003, entered into force. Under Article Article 451 as amended it became obligatory for an appellate court to inform the accused of his or her right to request leave to attend the hearing before that court. However, proceedings in which hearings before the trial court started before 1 July 2003 were to be governed by the provisions of the Code as they stood before that date.
34. The Supreme Court has examined, in numerous judgments, cassation appeals based on the allegation that the absence of an accused at the appeal hearing was a flagrant breach of law that could significantly affect the substance of the ruling in question, within the meaning of Article 523 of the Code of Criminal Procedure.
35. The Supreme Court on many occasions found that a refusal to bring the accused to the appeal hearing was a flagrant breach of law that could significantly affect the substance of the second-instance judgment. In such cases, the Supreme Court quashed the appeal judgment and remitted the case (judgment of 10 August 2000, III KKN 192/00, judgment of 5 June 2001, III KKN 28/01). In a decision of 8 March 2006 the Supreme Court held that when the defendant remanded in custody was unable to have effective contact with his legalaid lawyer and was not summoned to the hearing before the appellate court because the summons had been sent to his home address, the defendant’s defence rights had been breached. This breach was of such a serious character that the judgment of the appellate court given in the applicant’s absence, even when he was represented by the lawyer, had to be quashed.
36. Under Article 83 of the Code, an accused may appoint a lawyer to represent him or her in criminal proceedings. If he or she cannot afford lawyers’ fees, a request for legal aid may be made under Article 78 of the Code. Legal representation for the purposes of cassation proceedings is mandatory. In its decisions of 13 March and 17 September 2002 the Supreme Court expressed the view that when a legalaid lawyer refused to represent a convicted person before the Supreme Court, the appellate court was not obliged to assign a new lawyer to the case (II KZ 11/02, II KZ 36/02).
37. Under Article 83 of the Code, an accused may appoint a lawyer to represent him or her in criminal proceedings. If he or she cannot afford lawyers’ fees, a request for legal aid may be made under Article 78 of the Code.
38. A grant of legal aid expires upon a judgment of an appellate court. A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with the Supreme Court. The relevant part of Article 84 § 3 of the Code provides:
“A defence counsel appointed under the legalaid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court, in writing, that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged, the defence counsel is entitled to represent the defendant in the subsequent proceedings.”
39. In its decision of 17 June 1997 (V KX 57/97, OSNKW 1997/9010/82) the Supreme Court stated that cassation proceedings had a special character in that the judgment essentially became final after it had been upheld by the appellate court. Bearing in mind the special character of these proceedings, the court was of the view that at this stage the mere fact that the convicted person was granted legal aid was sufficient to ensure an effective exercise of his or her defence rights. It was the lawyer’s task to analyse the case and establish whether there were grounds on which to lodge a cassation appeal against the judgment of the appellate court. If the lawyer was of the opinion that there were no grounds on which to do so, there was no legal basis in the Code of Criminal Procedure that would either oblige the lawyer to prepare such an appeal against his or her better judgment, or to oblige the court to assign another lawyer to prepare such an appeal in the case.
40. In its decision of 25 March 1998 the Supreme Court stated that the refusal of a legalaid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time (V KZ 12/98). It confirmed this ruling in a further decision of 1 December 1999. The Supreme Court observed that the court could only assign a new legalaid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success. If this were not the case, a court was not obliged to assign a new legalaid lawyer to represent the convicted person and its refusal was not subject to appeal (III KZ 139/99). The Supreme Court reiterated its position in a number of other decisions (e.g. II KZ 11/02, II KZ 36/02).
41. The Code of Criminal Procedure provides as follows:
Article 131 § 1
“Summonses, notices and other court correspondence whose date of service activates the running of procedural time-limits shall be served on the addressee by mail or by personal delivery by an official of the agency effecting the service, or if necessary by the police. (...)”
Article 132
“§ 1. Documents shall be served personally on the addressee.”
§ 2. If the addressee is temporarily absent from his or her address, a document shall be served upon an adult member of the household of the addressee (...)”
Article 133 § 1
“If service cannot be effected as prescribed in Article 132, the document dispatched by mail shall be left with the nearest post office (...)
§ 2. The person serving the court document shall notify the addressee that it has been left [at the post office] by affixing a relevant notice to the door of the addressee’s apartment, specifying where and when the document has been left and stating that it should be collected within seven days.”
Article 134 § 2
“Addressees deprived of their liberty shall have the document served through the administration of the penal institution.”
Article 136 § 1
“If an addressee declines to accept the document, or refuses or is unable to sign the receipt, the person effecting the service shall make an appropriate note on the receipt and service shall then be considered to have been effected.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-85628
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: SANDERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr David Sanders, is a British national who was born in 1948 and lives in Cambridge. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 31 December 1995. On 25 April 2001 the applicant applied for widows’ benefits. On 9 May 2001 the applicant was informed that his claim had been disallowed as he was not a woman. On 11 June 2001 the applicant appealed. On 15 June 2001 he was advised that the decision would not be reviewed. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The applicant was not in receipt of child benefit at the time of his claim.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-82417
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: LONGBOTTOM AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicants, Mr David P. Longbottom, Mr Ian Campbell and Mr Peter Davey are British nationals who were born in 1961, 1960 and 1952 and live respectively in West Yorkshire, North Yorkshire and Dorset. They were represented before the Court by Ms J. Starling, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley, of the Foreign and Commonwealth Office
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 20 August 1995, leaving two children born in 1987 and 1990. His claim for widows’ benefits was made in or about January 1999 and was rejected on 21 January 1999 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant applied again on 15 February 1999 and his claim was rejected on 23 March 1999 for the same reason. The applicant lodged an appeal on 12 April 1999. The Benefits Agency’s reconsideration decision of 20 June 2000 upheld the earlier decision and his appeal was further heard and adjourned by a tribunal on 30 August 2000. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant’s wife died on 21 November 1994, leaving a child born in 1990. Following a telephone call and a letter to the Benefits Agency, his claim for widows’ benefits was made on 31 January 2001 and was rejected on 1 February 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant lodged an appeal on 14 February 2001. The Benefits Agency’s reconsideration decision of 15 February 2001 upheld the earlier decision and his appeal was further heard and adjourned by a tribunal on 22 August 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The applicant’s wife died on 11 August 2000, leaving two children born in 1988 and 1991. Following a telephone call and a letter to the Benefits Agency, his claim for widows’ benefits was made on 11 October 2000 and was rejected on 15 November 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant lodged an appeal. The Benefits Agency reconsideration decision of 5 February 2001 upheld the earlier decision and his appeal was further heard and rejected by a tribunal on 11 June 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.


ITEMID: 001-82102
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GRIGORIAN AND OTHERS v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: The first applicant, Mr Albert Grigorian, is an Armenian national born in 1979. The second applicant, Ms Irade Babajeva, is an Azerbaijani national born in 1979. The third applicant, Ms Viktoria Grigorian, their daughter, was born in 2004. They were represented before the Court by Ms Noémi Lindgren, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr C.H. Ehrenkrona, Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The second applicant arrived in Sweden and applied for asylum on 28 May 2002. The first applicant arrived in Sweden and applied for asylum on 23 August 2002. The couple met there and moved in with each other on 18 March 2003. On 3 December 2004 their daughter was born.
On 21 December 2004 the Migration Board (Migrationsverket) rejected their applications and ordered that they be deported to their respective native countries. The Board noted that the first applicant had not submitted any proof of identity. With respect to the first and second applicants’ reasons for seeking asylum, the Board found that, under the provisions of the Aliens Act (Utlänningslagen, 1989:529), they were neither to be regarded as refugees or otherwise in need of protection nor entitled to residence permits on humanitarian grounds. As regards the second applicant, who had claimed to risk persecution not only in her native country but also in Armenia, the Board considered that her submissions with regard to the latter country were unfounded. In this connection, it noted that her mother is of Armenian origin.
The Board further held that, as the first and second applicants were not married, their daughter should be considered as having the same nationality as her mother and follow her to Azerbaijan. In view of the daughter’s young age and the limited time she had spent in Sweden, the move to Azerbaijan could not be against her best interests. Moreover, the deportation would not be contrary to the principle of family unity under the UN Convention on the Rights of the Child, as the first and second applicants could reunite in the country of their choice after deportation.
By a decision of 5 December 2005, the Aliens Appeals Board (Utlänningsnämnden) rejected the applicants’ appeal, agreeing with the reasoning given by the Migration Board. It added that the applicants’ deportation would not violate their right to respect for their family life under Article 8 of the Convention, as they would be able to unite in either of their native countries. Issues of a formal or practical nature that might arise were to be handled by the responsible authority, in the first place the Migration Board. The Appeals Board concluded that the second and third applicants could be deported to both Azerbaijan and Armenia.
On 5 April 2006 the Migration Board reviewed the applicants’ situation under chapter 2, section 5 b of the Aliens Act, a new temporary provision aimed at extending the right to residence permits for certain groups, including families with children, who had, inter alia, resided in Sweden for long periods of time. The applicants submitted that the second applicant was pregnant with a second child and was expected to give birth in October 2006. The Board found, however, that they were not entitled to residence permits under the temporary legislation.
According to the applicants, they were later informed that the Migration Board planned to enforce the deportation orders by sending them to different countries, the first applicant to Armenia and the second and third applicants to Azerbaijan.
On 10 May 2006, following the Court’s indication under Rule 39 of the Rules of Court, the Migration Board decided to stay the enforcement of the applicants’ deportation until further notice.
On 31 August 2006 the applicants lodged a new application with the Migration Board, claiming that there were permanent impediments to their deportation and that they should be given residence permits. In substance, they argued that their deportation to different countries involved a violation of Article 8 of the Convention. Subsequently, the applicants submitted a medical opinion on the daughter’s mental health, given by a certified psychologist and a child psychiatrist on 12 January 2007. They noted that the second applicant suffered from depressions and that the overall situation was dominated by stress caused by the family’s insecure future. The daughter showed a serious resignation syndrome, which required qualified, immediate and long-term treatment.
On 17 November 2006 the second applicant gave birth to a second daughter. An application for a residence permit for her was submitted to the Migration Board.
On 16 March 2007 the Migration Board rejected the applicants’ new application, stating that the possible deportation to different countries was not a new circumstance and could not therefore be considered. In regard to the mental health of the third applicant, the eldest daughter, as well as the second applicant’s depression, the Board concluded that they did not constitute medical impediments to the deportation. No appeal lay against this decision.
The application concerning the youngest daughter has not yet been determined.


ITEMID: 001-110449
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF YORDANOVA AND OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life) (Conditional);Non-pecuniary damage - finding of violation sufficient;Respondent State to take individual measures (Article 46-2 - Individual measures)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 6. The applicants are residents of Batalova Vodenitsa, a neighbourhood of Sofia. They describe themselves as being of Roma origin.
7. Unlike some other European countries, where the Roma often have an itinerant way of life, in Bulgaria, at least since the 1960s, the great majority of the Roma live a settled life. Typically, Bulgarian towns feature one or more predominantly Roma neighbourhoods in non-central areas.
8. Some of the applicants or their parents and in some cases their grandparents moved to Batalova Vodenitsa at the end of the 1960s and in the 1970s. Others are more recent arrivals who settled there in the 1990s.
9. In the 1960s land in the neighbourhood in question was expropriated by the State and cleared in the context of the authorities’ housing construction policy. A number of blocks of flats were constructed there, but the plots currently inhabited by the applicants remained vacant, having been earmarked for a green area, which was never landscaped.
10. The applicants’ families built their homes on State land without any authorisation. The area thus gradually developed into a small Roma settlement. It appears that between 200 and 300 persons live there.
11. Most of the buildings are single-storey houses. There is no sewage or plumbing. The inhabitants use water from two public fountains.
12. Most applicants’ registered addresses are at their homes in Batalova Vodenitsa. Many of them are registered at one and the same address although they live in separate buildings which do not figure on any official area plan. Most of the applicants live in their houses with their families, including young children or grandchildren.
13. The applicants never sought to regularise the buildings they had constructed. This was in principle possible through applications for building permits and planning approval. According to the applicants, making such applications was difficult for them as they are poor and live their lives in the Roma community, isolated from the rest of society.
14. It is undisputed by the parties that the applicants’ homes do not meet the basic requirements of the relevant construction and safety regulations and cannot be legalised without substantial reconstruction.
15. In 1987 the local building plan was amended and the construction of dwellings was envisaged on the plots in question. The plan was never implemented.
16. Following a legislative reform, in 1996 the land occupied by the applicants became the property of the Sofia municipality.
17. Until 2005, the State and municipal authorities never took steps to remove the applicants and their families.
18. Under the relevant law the applicants cannot obtain ownership of the land they occupy. Until 1996 the provisions on acquisitive prescription did not apply in respect of State and municipal land. Since 1996, these provisions, under which a ten-year period of possession may suffice for the acquisition of real property, apply to most categories of municipal land. However, in 2006, shortly before the expiry of ten years after the 1996 amendment, Parliament suspended the running of prescription periods in respect of State and municipal land. The suspension has been extended several times and is currently in force until 31 December 2014 (sections 79 and 86 of the Property Act and the transitional provisions thereto).
19. According to a statement by a Mr B. T., a Roma resident of Batalova Vodenitsa, his parents are the lawful owners of their house there and possess a notarial deed. A copy of the notarial deed has not been submitted by the applicants. Neither Mr B.T. nor his parents were among the addressees of the removal order of 17 September 2005 (see paragraph 31 below).
20. From the beginning of the 1990s tension grew in several regions of Sofia between the inhabitants of Roma settlements and their non-Roma neighbours. The issue of Roma settlements, often referred to as “ghettos”, was widely debated in the media. Many commentators urged the emptying of all “Roma ghettos” in Sofia. This line was supported by a number of leading politicians. Occasionally, the views of Roma organisations were also published.
21. Between 2003 and 2006 several demonstrations were held by non-Roma residents of different areas in Sofia seeking the eviction of their Roma neighbours. Other demonstrations were held by non-Roma persons protesting at news of plans by the authorities to resettle in their neighbourhoods Roma families to be removed from other parts of the city.
22. It appears that on an unspecified date non-Roma residents of Batalova Vodenitsa formed an association with the aim to bring pressure to bear on the authorities in relation to the applicants’ unlawful settlement.
23. Most complaints against the Roma inhabitants of Batalova Vodenitsa concerned sanitary risks and repulsive odours caused by the absence of sewage and the fact that the inhabitants kept animals (allegedly including sheep, pigs, hens and horses). Also, many non-Roma residents of the area believed that the Roma inhabitants were responsible for numerous offences, including physical assault, theft and damage to public and private property. The protesters also resented on aesthetic grounds the presence of unsightly shanty houses in the area.
24. The municipal authorities in Sofia perceived as a serious problem the fact that since 1990 many Roma had moved to Sofia and settled in illegal Roma settlements, thus increasing their overpopulation and generating more illegal construction and sanitary problems.
25. In March 2000 an unspecified number of individuals, apparently persons who had obtained decisions restoring their property rights over expropriated land in the Batalova Vodenitsa area, complained to the Sofia municipal council that “persons of Roma origin” were unlawfully occupying land in the area. Having examined the matter, on 11 December 2000 the municipal council decided to offer the restored owners other municipal land in exchange for their land. It also invited the mayor of Sofia to develop a plan for the resolution of the “problem as a whole”. No such plan appears to have been adopted.
26. In 2003 the local building plan in Batalova Vodenitsa was modified by the municipal authorities, who planned to develop the area.
27. On 2 March 2005 the Sofia municipal council approved in principle the transfer of title to plots of land in Batalova Vodenitsa to Mr K., a private investor. The transfer was effected on 16 May 2006. The plots of land in question were adjacent to the land occupied by the applicants. It is unclear whether Mr K. ever realised any development project.
28. On 29 August 2005 municipal officials visited the Batalova Vodenitsa neighbourhood and issued a document certifying that the applicants and other persons occupied the land.
29. On 8 September 2005, Ms S., the district mayor, invited all or almost all residents – approximately 180 Roma, including the applicants – to leave their homes within seven days as they were occupying municipal land unlawfully. The text referred to section 65 of the Municipal Property Act and contained a list of the names of its addressees and also a warning that failure to comply would result in removal by the police.
30. The applicants filed an appeal. On 15 September 2005 municipal officials issued a document certifying that the residents concerned had not left the area.
31. As a result, on 17 September 2005 the mayor ordered their forcible removal on 27 September 2005. The order listed individually the names of all those concerned. The mayor also stated her intention to secure a decision for the demolition of the applicants’ houses in accordance with the Building Planning Act (Закон за устройство на територията).
32. The applicants asked the Sofia City Court to stay their removal pending the examination of their appeal against the removal order. The court granted their request.
33. On 28 September 2005 a committee representing the Roma residents of the area signed an agreement with the municipal authorities in Sofia according to which the municipality would offer alternative housing to the persons registered as Batalova Vodenitsa residents, whereupon they would be removed. No action was taken by the municipality in execution of this agreement.
34. The agreement also provided that the committee of representatives would take measures to improve hygiene in the Roma settlement. They also undertook to organise the removal of unauthorised domestic animals kept by residents and keep better order. According to the Government, the situation did not improve.
35. In the judicial proceedings against the mayor’s order, on 12 January 2006 the Sofia City Court ruled that the removal order was lawful. The applicants appealed. On 12 June 2006, the Supreme Administrative Court upheld the City Court’s judgment.
36. The courts found that the fact that the applicants had not shown a valid legal ground for occupying the land was sufficient to establish that the removal order was lawful. If the applicants considered that they had property rights, it was for them to seek notarial deeds or bring civil proceedings to establish those alleged rights. They had not done so. In these circumstances and having regard to section 92 of the Property Act, their houses were owned by the municipality.
37. The courts also stated that the applicants’ allegations about violations of the Convention and discrimination were groundless.
38. The courts ignored as irrelevant under domestic law the applicants’ argument that they should not be removed because they had lived in the area for decades with the authorities’ acquiescence, and their arguments based on the principle of proportionality.
39. On 21 June 2006, the municipal authorities announced their intention to evict the unlawful residents of Batalova Vodenitsa, including the applicants, by 28 June and to demolish their homes. On 22 June 2006 the district mayor was reported in the press as having stated that the removal order had been issued as a result of numerous complaints by neighbours in relation to the unlawful settlement.
40. As a result of political pressure, mainly from members of the European Parliament, the authorities did not proceed with the eviction.
41. In their public declarations the municipal authorities apparently took the stand that the removal of the Batalova Vodenitsa residents was overdue but could not be done immediately because of pressure “from Europe”. Divergent opinions were expressed as to whether the municipality should try to find alternative housing for the residents of Batalova Vodenitsa. In public declarations the mayor of the district stated that this was not possible because the residents concerned had not been registered as persons in need of housing and the municipality could not give them priority over other people who had been on the waiting list for many years.
42. On an unspecified date shortly after 12 June 2006, Ms S., the mayor of the relevant district, participated in a televised debate concerning the fate of the Roma settlement in Batalova Vodenitsa. She stated, inter alia, that the Roma inhabitants there did not have the right to be registered as persons in need of housing because they were occupying municipal land unlawfully. For that reason, she would not offer them the tenancy of municipal dwellings, there being many other families on the waiting list. The district mayor further stated that the agreement of 28 September 2005 between the mayor of Sofia and a committee of representatives of the Roma families “had been concluded in a pre-electoral period” and that she did not consider herself bound by it. She also stated that the removal order had been upheld by the courts and must be enforced; the fact that the persons concerned had nowhere to go was irrelevant. The mayor further stated that she had received complaints by non-Roma inhabitants of the area and was under a duty to act.
43. Most of the applicants have not tried to make arrangements to find new homes for their families. Between 2004 and 2007 three of the applicants registered at addresses in other areas of Sofia. In 2005 one of the applicants declared an address in the town of Sandanski as her official address. According to these four applicants, although for short periods they lived outside Batalova Vodenitsa, in dwellings occupied by relatives, their only real home had remained Batalova Vodenitsa.
44. It appears that after June 2006 negotiations continued between the Roma inhabitants and the municipal authorities regarding possible relocation in temporary municipal housing of those persons in the applicants’ position who had been registered as resident in Batalova Vodenitsa before 1996. Non-governmental organisations defending the rights of the Roma and Government representatives also took part.
45. Information about intentions to resettle the Batalova Vodenitsa unlawful residents have met with strong opposition from inhabitants of neighbourhoods where such relocation was envisaged. It appears that no viable resettlement plan has ever been elaborated.
46. In interviews and statements, local officials supported the non-Roma population. In a radio interview in November 2006, the mayor of Ovcha Kupel district in Sofia stated that “the nuisance that a Roma settlement would create [if Roma families were to move into his district] would surpass by far the inconvenience that a refuse tip would create”. He also stated that “Roma families could not expect to live among the citizens as they did not have the necessary culture”.
47. On 27 June 2008 the municipal authorities served a notice on the inhabitants of the area, including the applicants, requiring them to leave their houses by 10 July 2008, failing which they would be evicted forcibly on 11 July 2008.
48. The notice was issued in execution of the removal order of September 2005, which was final and enforceable.
49. On 8 July 2008 the Court indicated to the Government of Bulgaria, under Rule 39 of the Rules of Court, that the applicants should not be evicted from their houses until 23 July 2008, pending receipt by the Court of detailed information about any arrangements made by the authorities to secure housing for the children, elderly, disabled or otherwise vulnerable individuals to be evicted.
50. The Government submitted a copy of a statement by Ms S., the district mayor, who indicated that two local social homes could provide five rooms each and that several elderly persons could be housed in a third home. There was no information about any possibility to house families together.
51. Also, it appears that none of the applicants was willing to be separated from the community and housed in such conditions, not least because it was impossible, according to them, to earn a living outside the community.
52. On 22 July 2008 Ms S., the district mayor, stated that she had suspended the enforcement of the removal order “pending the resolution of the housing problems of the Batalova Vodenitsa residents”. The order was not quashed.
53. In the light of this information, the President of the Court’s Fifth Section decided on 23 July 2008 to lift the interim measure of 8 July 2008, specifying that the decision was taken on the assumption that the Court and the applicants would be given sufficient notice of any change in the authorities’ position for consideration to be given to a further measure under Rule 39 of the Rules of Court.
54. On 23 July 2008 the National Council for Cooperation on Ethnic and Demographic Issues, which includes representatives of non-governmental organisations and is presided over by the Director of the Ethnic and Demographic Matters Directorate at the Council of Ministers, discussed the issue. Representatives of the Sofia municipality were advised to refrain from measures seeking to resolve the problem in Batalova Vodenitsa at the expense of creating tension in other areas. The majority view was that the Roma families living in Batalova Vodenitsa should not be evicted and their homes should not be demolished before a lasting solution was found.
55. According to a letter from the Director of Ethnic and Demographic Matters, sent in January 2009 in connection with the present application, the Sofia municipality was working on a programme for the revitalisation of Roma neighbourhoods. It was envisaged to construct temporary housing on several municipal plots of land. Partial initial financing of the construction work could be provided by the Government but other sources were needed as well. It was envisaged to encourage the Roma applying for housing to take jobs in the construction work under the relevant social employment schemes. The project’s elaboration, including architectural plans, was allegedly under way. The project concerned Roma families who moved to Batalova Vodenitsa before 1996. Those who settled there more recently had “to return to their previous homes”.
56. On 12 January 2010, in reply to a letter from residents protesting against the authorities’ failure to evict their Roma neighbours from Batalova Vodenitsa, Ms S., the district mayor, stated that the enforcement of the 2005 eviction order had been postponed under pressure from members of the European Parliament and that the applicants had started proceedings in the European Court of Human Rights. The letter did not mention plans to secure alternative housing for the persons to be evicted.
57. According to media reports, in May 2010 plans to resettle the inhabitants of Batalova vodenitsa on other State or municipal property were discussed by the municipal authorities.
58. In their latest submissions of December 2010 the parties have not reported any progress in the realisation of such projects.
59. According to the applicants, the resettlement plans mentioned by the authorities are nothing more than empty promises.
60. In March 2006 a ten-year National Programme (2005-2015) for the Improvement of the Housing Conditions of Roma in Bulgaria was adopted by the Council of Ministers in the context of the international initiative entitled Decade of Roma Inclusion 2005–2015.
61. In September 2007, the Sofia municipal council adopted a plan for the implementation of the ten-year national programme in Sofia for the period 2007-2013. The document includes an analysis of the existing situation in respect of housing.
62. According to this analysis, overpopulated Roma settlements had formed over the years in Sofia and nothing had been done by the authorities in the past to address the ensuing problems. Having always been a marginalised group with minimal resources, the Roma cannot in practice acquire real property. Traditionally they occupy vacant land and construct makeshift huts. Although most of them, being persons in need of housing, meet the relevant criteria for tenancy of municipal housing, this option does not work in practice owing to several factors, including the limited number of available municipal dwellings and unwillingness on the part of many Roma families to resettle in municipal flats. Their unwillingness could be explained partly by the lack of the necessary resources to cover the related expenses, such as utility bills, and partly by the animosities which often erupt between non-Roma residents of blocks of flats and Roma families moving in.
63. The ten-year National Programme and the 2007-2013 Sofia plan provide for the following actions, among others: elaborating municipal housing programmes, legalising buildings if they meet the relevant construction standards, constructing sewage and water-supply facilities in Roma neighbourhoods and providing information and assistance to those who apply for municipal housing.
64. The 2010 Monitoring report on the implementation of the Decade of Roma Inclusion 2005–2015 programme does not mention any progress having been made in respect of Roma housing. The concluding text of the report contains a recommendation to the relevant institutions and stakeholders to make timely use of the possibilities under Article 7(2) of Regulation (EC) No. 1080/2006 on the European Regional Development Fund.
65. According to media reports, in several regions in Bulgaria construction works are under way for the building of dwellings intended to house Roma who have been removed or are to be removed from land which they occupy unlawfully.
66. Section 65 of the Municipal Property Act empowers the mayor to order the repossession of real property belonging to the municipality and occupied by others if they have no legal right to occupy it. The mayor’s order is amenable to judicial appeal. Its enforcement is effected by the police.
67. The new paragraph 5 of section 65, added in May 2008, provides that persons occupying municipal real property without a legal basis cannot avail themselves of sections 72-74 of the Property Act, which bestow certain rights on holders of property belonging to another (under certain conditions, the right to reimbursement for improvements, and to withhold the property pending such reimbursement).
68. According to section 92 of the Property Act, read in conjunction with its other provisions, buildings belong to the owner of the land except where the right to construct a building has been lawfully conveyed by the owner to another person. Prior to 1996 it was not possible under Bulgarian law to acquire State or municipal property through adverse possession. Since 1996, state and municipal property, if it is of the category of “private state property”, may in principle be acquired by private persons through adverse possession, under a number of conditions. Through a transitory provision introduced in 2006, the running of the ten-year prescription period was suspended and the suspension is still in force.
69. The categorisation of persons in need of housing and the possibility of applying for municipal housing are governed by municipal regulations issued by each municipality in accordance with section 45a of the Municipal Property Act. These regulations, which differ from city to city, usually require candidates to have had their registered address in the town for more than five years, to have no real property of their own, and to have resources that do not exceed a certain maximum. Typically the application must be made in writing on a form and be accompanied by a number of documents. The decision whether to recognise the need is taken by a municipal commission and is amenable to judicial appeal. Among the candidates recognised as being in need of housing, homeless persons and those living in dangerous and unhealthy conditions have priority.
70. In accordance with sections 43 and 45 of the Municipal Property Act, an emergency stock of municipal flats may be used to house for up to two years persons whose dwellings are unsafe as being in danger of collapsing and persons with severe social or health problems.
71. Under sections 4 and 5 of the Protection against Discrimination Act, in force since 1 January 2004, racially offensive statements may be considered discriminatory. The victim may file a complaint with the Commission for Protection against Discrimination (see, for example, Decision no. 178 of 25 July 2008, where that commission established that the anti-Roma language used in a television broadcast of 24 February 2007 amounted to prohibited discrimination) or bring an action in court. Racially offensive statements may be criminally punishable under Articles 146 and 148 of the Criminal Code. The proceedings must be initiated by the victim. Separately, incitement to racial hatred is an offence punishable under Article 162 of the Criminal Code.
72. At the time when the removal order of 17 September 2005 was issued and reviewed by the domestic courts, Bulgarian administrative procedure law did not enshrine the principle of proportionality. Since July 2006, when the Code of Administrative Procedure entered into force, this principle is set out in Article 6 of the Code.
73. On 18 October 2006 the Council of Europe’s European Committee of Social Rights delivered a decision on the merits of a complaint against Bulgaria brought by the European Roma Rights centre, a non-governmental organisation. The Committee found, inter alia, that “the lack of legal security of tenure and the non-respect of the conditions accompanying eviction of Roma families from dwellings unlawfully occupied by them constitute[d] a violation of Article 16 of the Revised European Social Charter, taken together with Article E”. Article 16 concerns the right of families to “appropriate social, legal and economic protection” and Article E prohibits discrimination in the enjoyment of the rights set forth in the Charter.
74. To reach its conclusion, the Committee found that the Bulgarian legislation allowing the legalisation of illegal constructions set conditions “too stringent to be useful in redressing the particularly urgent situation of the housing of Roma families”, a situation recognised by the Bulgarian Government. The Committee also considered that the authorities had tolerated the unlawful Roma settlements for long periods and were accordingly obliged to carefully balance town planning measures against “the right to housing and its corollary of not making individual[s] homeless”. The Committee further found that by failing to take into consideration the specificity of the living conditions of Roma and strictly applying the rules on legalisation of buildings to them, Bulgaria had discriminated against Roma families, whose situation differed not least as a consequence of State non-intervention over a certain period. Similarly, there was discrimination on account of the authorities’ failure to take into account that Roma families ran a higher risk of eviction, and the authorities’ failure systematically to find alternative accommodation for the evicted families.
75. On 5 September 2007 the Committee of Ministers of the Council of Europe adopted a resolution in the case in which it noted, inter alia, the Bulgarian delegation’s statement before it that Bulgaria intended to amend the Territorial Planning Act to allow for easier legalising of existing buildings and construction of social housing.
76. In its 2005 Recommendation on improving the housing conditions of Roma the Committee of Ministers of the Council of Europe called upon member States, inter alia, to use proportionate response to illegal Roma settlements and seek, where possible, solutions acceptable for all parties. Also, eviction measures should include consultation with the community or individual concerned, reasonable notice, provision of information, a guarantee that the eviction will be carried out in a reasonable manner and alternative housing measures. As to daily life in existing settlements, the authorities should provide the same level of services as to other groups of the population and should, beyond that, promote better management including adequate management of neighbourhood conflicts. Housing policies should be tailored to the specific situations of the Roma communities.
77. In its 2008 Recommendation on policies for Roma and/or Travellers in Europe, the Committee of Ministers of the Council of Europe called upon Member States, inter alia, to ensure that decisions adopted by local authorities in the relevant area would not have a discriminatory effect on Roma.
78. In its Resolution 1740(2010) on the situation of Roma in Europe and relevant activities of the Council of Europe, the Parliamentary Assembly of the Council of Europe noted with concern that the process of Roma integration in Europe had not reached its objectives over the last twenty years, that Roma people were still regularly victims of intolerance, discrimination and rejection based on deep-seated prejudices and that the situation of Roma with regard to education, employment, housing, health care and political participation was far from satisfactory. The Assembly stated that adopting national strategies was insufficient in the absence of implementation measures at local and regional levels. It urged member States, inter alia, to promote a positive image of diversity, address stereotypes and prejudices, react strongly to racist discourse by public officials and tackle hate speech vis-à-vis Roma, be it in the media, politics or in civil society. As regards housing, the Assembly urged member States to take urgent measures to prevent forced evictions of Roma camps and settlements and – in cases of unavoidable evictions – ensure that such evictions were carried out only when all procedural protections required under international human rights law were in place, including the provision of adequate alternative housing and compensation for expropriation and losses of moveable possessions damaged in the process of eviction and, in the absence of such procedural protections in the existing domestic law, introduce legislation on evictions providing safeguards and remedies in accordance with international standards.
79. The Council of Europe’s Commissioner for Human Rights, in his 2009 Recommendation on the implementation of the right to housing stated, inter alia, that States should specify in legislation that positive measures are justified in order to promote full and effective equality provided that there was an objective and reasonable justification for such measures.
80. In October 2009 the EU Agency for Fundamental Rights issued a comparative report on the housing conditions of Roma and travellers in the EU.
81. According to the report, significant numbers of Roma in Europe live in unauthorised settlements. For example, in 2002 an estimated 70% of houses in urban Romani developments in Bulgaria were illegally built, in 1999 in Greece approximately 63,000 Roma lived in unregulated encampments and in 2008 in France most Roma groups lived in squalid shantytowns.
82. The report also mentioned cases of forced evictions of such encampments, in particular in Italy and Greece.
83. The United Nations Committee on Economic, Social and Cultural Rights, in its General Comment no. 7 concerning forced evictions and the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights, stated, inter alia, that evictions should not render persons homeless or more vulnerable to human rights violations. Also, evictions must meet a number of conditions, such as prior consultation with the persons to be evicted, the giving of adequate and reasonable notice as to when the eviction will take place and the availability of judicial remedies. If those evicted cannot provide for themselves, States should take all reasonable measures, utilising all available resources, to ensure the provision of adequate alternative housing.
VIOLATED_ARTICLES: 8
VIOLATED_PARAGRAPHS: 8-1


ITEMID: 001-120505
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: KUPENOVA AND OTHERS v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicants, Ms Komnya Peycheva Kupenova, Mr Nikola Peychev Karabadzhakov, Mr Stefan Angelov Karabadzhakov and Mr Kiril Angelov Karabadzhakov, are Bulgarian nationals who were born in 1939, 1949, 1963 and 1967 respectively. Ms Komnya Peycheva Kupenova and Mr Nikola Peychev Karabadzhakov live in Burgas and Mr Stefan Angelov Karabadzhakov and Mr Kiril Angelov Karabadzhakov live in Sozopol. The applicants are represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
2. The Bulgarian Government (“the Government”) are represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.
3. The facts of the case may be summarised as follows.
4. An ancestor of the applicants owned agricultural land in the area of Sozopol, situated close to the seashore. In the 1980s the land was included in the territory on which a new sea resort called Duni was constructed.
5. The resort was initially managed by a State-owned enterprise, which was, in 1990, transformed into a State-owned company. This entailed, under the relevant domestic legislation, its becoming an owner of the assets it had until then used and managed. In 1991 it was registered as a joint-stock company. Between 1997 and 2001 the majority of its shares were privatised. After the privatisation the company was named Duni AD.
6. In the meantime, after the Agricultural Land Act (“the ALA”) entered into force in 1991 (see paragraph 14 below), on 16 November 1991 the applicants requested the restitution of their ancestor’s land.
7. In a decision of 16 January 1995 the competent body, the Sozopol agricultural land commission, adopted a decision in favour of their request for the restoration of their property rights to a plot of 9,000 square metres in the area of Duni. The decision did not contain reasoning mentioning possible property claims of the company managing the resort, nor whether the plot was subject to restitution in accordance with the criteria set in the law in force at the time.
8. On 6 February 1995 the applicants obtained a notary deed for the plot of land. On the same day the land commission issued an act for the formal transfer to them of possession of the plot. However, the applicants never obtained actual possession and did not start using the land, which remained within the fenced territory of the resort. The applicants did not bring proceedings to challenge this situation.
9. In December 2000 Duni AD brought rei vindicatio actions against all persons who had had their property rights to land in the territory of the resort restored after 1991. In the applicants’ case, the company argued that the land commission’s decision of 16 January 1995 had been null and void because the commission had not been competent to restore rights to land which had ceased to be agricultural before the adoption of the ALA in 1991.
10. The proceedings ended by final judgment of the Supreme Court of Cassation of 3 December 2004. The domestic courts found that the land at issue had been included in the resort’s territory since 1985, had been used and managed by the State-owned enterprise existing before 1990 and had become its property after its transformation into a State-owned company. Under the relevant legislation this land had not been subject to restitution. The land commission, in not taking the above circumstances into account, had given a decision which was null and void. Lastly, although they acknowledged that the land had remained within the fenced territory of the resort, the courts ordered the applicants to surrender possession.
11. In particular, in its judgment the first-instance District Court noted that:
“There is no proof and it has not been alleged that at the time of restitution [the land commission] took into account the fact that the plot has been subject to urban planning.”
It found in addition that:
“By section 10b of the [ALA], in a case such as the present the owners have to be offered compensation, because the land is not subject to restitution, as is accepted in the constant judicial practice.”
12. In its judgment the Supreme Court of Cassation noted the following:
“The present case concerns the construction of a resort, which is a complex of buildings, installations, promenades, alleys, car parks, roads and other communicating areas. Its territory is fenced and the totality of the land is being used for the resort’s needs. The plot at issue is situated at the centre of the resort, as seen from the plan presented by the [court-appointed expert]. Its restitution to the previous owners and its physical separation from the resort would infringe upon [the latter’s] entirety and unity. In adopting the provision of section 10b of the [ALA] the legislator aimed at preserving and guaranteeing what already existed as a complex of buildings and installations, and that is why it has been provided that such land would not be subject to restitution, but that the owners would be compensated through other means. What is decisive is the plot’s situation at the time of the law’s adoption in 1991. ... The plot’s separation through restitution does not correspond to this aim of the law and would have gone contrary to its spirit.”
13. The applicants have not claimed compensation in lieu of restitution through comparable land or compensation bonds under the ALA or through shares in Duni AD under the legislation regulating the privatisation of former State-owned enterprises.
14. The Agricultural Land Act (Закон за собствеността и ползването на земеделските земи, “the ALA”), adopted in 1991, provides, inter alia, that persons, or their heirs, whose land has been collectivised, may request restoration of their ownership rights under certain conditions. Restitution can be in kind, if the relevant conditions have been met, or through compensation with other comparable land or compensation bonds.
15. Section 10b of the ALA, introduced in 1992, provides that former owners would receive compensation where the land formerly owned by them “has been constructed upon or a complex of construction works (мероприятия) which do not permit restoration of property have been carried out”.
16. The remaining relevant domestic law and practice concerning restitution of agricultural land and compensation in lieu thereof, and the transformation and privatisation of public enterprises, have been summarised in the Court’s judgments in the cases of Sivova and Koleva v. Bulgaria (no. 30383/03, §§ 29-54, 15 November 2011) and Lyubomir Popov v. Bulgaria (no. 69855/01, §§ 83-95, 7 January 2010).
17. Rei vindicatio is provided for under section 108 of the Property Act. This provision and the relevant case-law require that the plaintiff in rei vindicatio proceedings must prove two elements: 1) the validity of his title and 2) the fact that there are no legal grounds for the defendant to hold the property.


ITEMID: 001-118583
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF ASWAT v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (United States of America)
JUDGES: David Thór Björgvinsson;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 12. The applicant was born in 1974 and is currently detained in Broadmoor High Security Psychiatric Hospital.
13. The applicant has been indicted in the United States of America as a co-conspirator in respect of a conspiracy to establish a jihad training camp in Bly, Oregon.
14. On 7 August 2005 the applicant was arrested in the United Kingdom on the basis of an arrest warrant issued under section 73 of the Extradition Act 2003 following a request for his provisional arrest by the United States.
15. The Senior District Judge gave his decision in the applicant’s case on 5 January 2006. He concluded that none of the bars to extradition applied and sent the case to the Secretary of State for his decision as to whether the applicant should be extradited.
16. On 1 March 2006 the Secretary of State ordered his extradition. The applicant appealed to the High Court on the ground that his extradition would not be compatible with Article 3 of the Convention because he could be detained in a maximum security facility such as ADX Florence and subject to special administrative measures, including solitary confinement.
17. The applicant’s appeal was heard together with that of Mr Babar Ahmad. In its judgment of 30 November 2006 the High Court rejected the appeals. The High Court found that, according to the case-law of this Court, solitary confinement did not in itself constitute inhuman or degrading treatment. Applying that approach, the evidence before it – which included an affidavit from a United States’ Department of Justice official outlining the operation of special administrative measures – did not “begin to establish a concrete case under Article 3”.
18. The applicant and Mr Babar Ahmad applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 6 June 2007.
19. On 27 March 2008 the applicant was transferred to Broadmoor Hospital from HMP Long Lartin because he met the criteria for detention under the United Kingdom’s mental health legislation.
20. On 11 November 2011 the First-Tier Tribunal (Health, Education and Social Care Chamber) Mental Health considered the applicant’s case and concluded, having considered the evidence from the applicant’s clinical care team, that he was suffering from paranoid schizophrenia which made it appropriate for him to continue to be liable to detention in a medical hospital for his own health and safety.
21. In his statement to the Tribunal, Dr A. Payne, a Consultant Forensic Psychiatrist, indicated that:
“[The applicant’s] insight into his illness is limited and if returned to prison he would be exposed to significant stress given the conditions of his detention, the uncertainty of his case and his potential extradition and lengthy incarceration in conditions of solitary confinement. His compliance with medication would be uncertain, particularly in the medium to long term. These factors would be likely to lead to a relapse with deterioration in his mental health and the risk of a consequent deterioration in his physical health due to poor fluid and food intake. I am therefore of the opinion that his mental disorder is of a nature that requires his detention in hospital for medical treatment and that such treatment is necessary for his own health and safety. I do not believe that there is sufficient evidence available to justify his detention on the grounds of his risk to others.”
22. Dr Claire Dillon, a Consultant Forensic Psychiatrist, indicated in a report dated 12 April 2012, that:
“Mr Aswat suffers from an enduring mental disorder, namely paranoid schizophrenia, which has been characterised by auditory hallucinations, thought disorder, delusions of reference, grandeur and guarded and suspicious behaviour. Mr Aswat’s condition is currently well controlled on amilsulpride (anti-psychotic medication). However, he has only partial insight into his illness and he would be likely to relapse if he ceased taking his medication.
Mr Aswat has undertaken psychological work to enhance his understanding of his mental illness and he is able to recognise the need for professional support to manage this. In view of the lack of convictions for violent offences, Mr Aswat has not undertaken any offence-related work whilst at Broadmoor, as the decision of the European Court of Human Rights was awaited. Mr Aswat engages in occupational and vocational activities within the hospital and these, along with his attendance at the Mosque, have helped to prevent any significant deterioration in his mood.”
23. On 8 May 2012 the United States’ Department of Justice indicated that upon his arrival in the United States, the applicant would have a full opportunity to argue that he lacked mental capacity to stand trial there. If he did so, the trial judge would have to assess his competency before the trial could proceed. In doing so, he would rely on the reports of medical professionals and on the applicant’s full medical records, including – presumably – those relating to his transfer to Broadmoor.
24. A competency evaluation could be appealed to the United States’ Court of Appeals for the Second Circuit. The Second Circuit would need to affirm the district court’s competency determination before the trial could proceed.
25. Prior to and pending trial the applicant would not be housed in ADX Florence as this institution did not house inmates who were unsentenced and pending trial.
26. If the applicant were to stand trial and be convicted of an offence, then following sentencing the Federal Bureau of Prisons would be responsible for deciding which institution he should be housed in. Medical, psychological and psychiatric concerns would be considered by the designation team before a determination of housing could be made. If a hearing was warranted, it would be open to the applicant to present evidence and make oral statements as to why he should not be designated to ADX Florence in light of his mental health.
27. With regard to the system and standard of mental health care available within the institutions, the Department of Justice indicated that:
“Mental health services range from inpatient psychiatric treatment, to residential treatment programs, to outpatient psychological and psychiatric services. As in the community, the vast majority of mental health care in the Bureau is provided on an outpatient basis at the local institution level by the Psychology Services Department working in collaboration with either a full-time or consultant psychiatrist.
Mental health services in the Bureau are delivered by psychiatrists and doctorallevel psychologists. This hiring standard ensures mental health providers in the Bureau have a minimum of four years of graduate level, supervised training in the treatment of mental illnesses.
... ... ...
All Bureau facilities are equipped to manage mentally ill inmates, including those with schizophrenia, as each institution employs doctoral-level psychologists and has access to psychiatric services. Many inmates with mental illnesses, including schizophrenia, are managed successfully in mainline institutions through the treatments of choice which include medication, clinical case management, and cognitive-behavioural interventions. While a diagnosis of schizophrenia would not preclude a designation to a maximum security facility, most inmates with this diagnosis are managed and treated in other facilities. Conditions of confinement are largely determined by security needs and would be modified based on mental illness only if the inmate’s mental status warranted such a change (e.g., if his mental status deteriorated).
The Bureau provides a structured living environment for inmates with significant staff oversight. This environment allows for prompt identification of mental health concerns, provides immediate access to mental health professionals, and facilitates compliance with mental health treatment. All inmates confined in the Bureau are evaluated by Health Services’ staff within 24 hours of arrival. At that time, their medication regimens are reviewed and continued, as appropriate. Thus, any mental health medications the inmate may be taking would be noted and continued as appropriate, upon admission. Additionally, an inmate’s mental health status is evaluated to determine whether there is any imminent risk of self-harm or suicide and whether he or she is stable and appropriate for placement in the designated setting. If Health Services’ staff has any concerns at the time of admission, a doctoral level psychologist will be called to consult.
In all cases, regardless of the outcome of the initial evaluation performed by Health Services’ staff, all new designees are seen within 14 days for evaluation by a doctoral level psychologist. This evaluation focuses on collecting a mental health history, as well as identifying any current symptoms and determining treatment needs. All inmates are classified based on their mental health treatment needs to ensure appropriate placement, treatment, and follow-up services to be provided.
Psychologists are a visible presence in the institution – in the cafeteria, on the compound, and in the housing units. In addition, a psychologist is on-call 24 hours a day, 7 days a week, with a prompt response to the institution in the event of a mental health crisis. All inmates have direct access to psychological services from doctoral level psychologists. Ordinarily, these services include: crisis intervention, ongoing clinical case management of mental illnesses, brief counselling focused on a specific issue or problem, individual psychotherapy, and psycho-educational and/or therapeutic groups. Inmates may access these services through self-referral or may be referred by institution staff. In addition, all inmates who need psychotropic medication are seen regularly by a psychiatrist.
On occasion, despite best efforts to work with mentally ill inmates at the local institution level, more intensive mental health services are required. In these cases, an acutely mentally ill inmate is typically referred to one of the Bureau’s Psychiatric Referral Centres for acute psychiatric care. Under Bureau policy, acute psychiatric care is defined as care, including but not limited to, crisis intervention for inmates who are persistently suicidal, homicidal, or unable to function in the institution without creating a dangerous situation due to their mental illness. These inpatient services are generally brief, with the goal of returning the inmate to a level of functioning that would allow him or her to return to the designated institution.
Alternatively, seriously, but not acutely, mentally ill inmates may be placed in one of the Bureau’s residential mental health treatment programs, which provide longterm, intensive mental health care. The Bureau is committed to providing highquality, evidence-based residential treatment programs to all inmates in need of these services. The BOP’s Psychology Treatment Programs (PTPs) are designed using the most recent research- and evidence-based practices. These practices lead to a reduction in inmate misconduct, mental illness and behavioural disorders; substance abuse, relapse, and recidivism; and criminal activity. These practices also lead to an increase in the level of the inmate’s stake in societal norms and in standardized community transition treatment programs. Transition treatment increases the likelihood of treatment success and increases the public’s health and safety. Inmates are referred to these programs based on need and appropriateness of the program to the inmate’s security level.
Decisions concerning the appropriateness of transfer to a Psychiatric Referral Centre are based on the best judgment of the treating clinicians (i.e., psychologist, staff psychiatrist, or consulting psychiatrist) and are typically dependent upon such factors as the severity of the mental illness, the specific characteristics and resources of the institution, and relevant patient variables. Inmates who are disruptive to the orderly running of the institution, but who are not mentally ill, are not generally appropriate referrals to a Psychiatric Referral Centre.
In the case of schizophrenia, the treatment of choice is medication, clinical case management, and cognitive behavioural interventions, with inpatient admissions only as necessary to manage brief psychiatric emergencies, should they arise. The Bureau attempts to manage and treat the mental illnesses of all offenders in the least restrictive environment appropriate to their mental health and security needs. Therefore, an inmate’s security level would only be adjusted due to schizophrenia should behavioural issues or a psychiatric emergency warrant such an adjustment. The Bureau currently incarcerates many inmates diagnosed with schizophrenia, the majority of whom is managed and treated successfully in general population settings.”
28. The Department of Justice further indicated that if the applicant were to be detained in ADX Florence, his detention would be subject to three types of review: classification, program review, and a progress report. The Department described these reviews as follows:
“Classification and Program Review refer to the procedure whereby an inmate’s case is formally reviewed by the Unit Team. These meetings are generally referred to as "team" and the inmate is present. Team meetings are intended to give staff and inmates the opportunity to discuss issues in an open format. This is the inmate’s opportunity for individual attention and he or she should be encouraged to ask questions and discuss concerns.
Classification is the initial team meeting whereby a careful review of the case and inmate’s history are discussed and relevant programs are recommended. The purpose of the meeting is to define clearly for the inmate: (1) sentence information, including financial obligations; (2) educational programs; (3) security/custody levels; (4) release plans; and (5) work assignments. These programs reflect the needs of the inmate and are stated in measurable terms. Generally, initial classification occurs within four weeks of an inmate’s arrival at his designated institution.
Subsequent team meetings are referred to as Program Reviews. These meetings are held at least once every six months (every three months for inmates with less than one year remaining to serve) and are conducted to monitor and evaluate the inmate’s progress in all program areas. Program participation is discussed in relation to the schedule developed at initial classification. New and/or revised goals are developed as necessary. A progress report is the principal document used by the Unit Team to evaluate the behaviour and activities of inmates. The progress report is a detailed, comprehensive account of an inmate’s case history, prepared by the Case Manager at prescribed intervals during the inmate’s confinement. Generally, the Case Manager composes the progress report with input from other unit staff, work detail supervisors, and education instructors. The progress report reflects the inmate’s past status, assesses his current status, and offers an indication of anticipated accomplishments. This could include the inmate’s continued participation in a program; and what he plans to do at the completion of the program, or if he plans to use what he has learned upon his release. Information is also provided on the inmate’s relationship with others (both staff and inmates), particularly with respect to attitude, punctuality, etc. A progress report is required, at a minimum, once every three years. At the ADX, the inmates are provided with a copy of the most current progress report. Upon request, an inmate may read and receive a copy of any progress report retained in the inmate’s central file.
An ADX inmate’s status is also reviewed under Institution Supplement FLM 5321.07(1), General Population and Step-Down Unit Operations. In addition, Mr. Aswat would have access to the Bureau’s Administrative Remedy Program, which is set forth in Program Statement 1330.16, Administrative Remedy Program, and, as with any inmate of the ADX, he would be able to seek review of any issue relating to their confinement before the United States District Courts. All of these procedures have been described in detail before and are not repeated here.”
29. The Department further indicated that if designated to ADX Florence the applicant’s mental condition would be subject to regular review. Inmates designated to ADX Florence underwent a psychological intake evaluation upon arrival and could, at that time, be referred to the mental health chronic care clinic, which is an outpatient clinic with services provided by a psychiatrist. Such an inmate would be seen at least every six months by the psychiatrist, but could request to be seen more frequently. In addition, he or she could receive psychological services monthly, weekly or daily (inpatient) based upon their classification, and more frequently should a crisis situation arise.
30. In Babar Ahmad v. the United Kingdom the Court found that if convicted the applicant would face a maximum penalty of thirty-five years’ imprisonment. None of the counts imposed a mandatory minimum sentence.
31. For a general summary of the relevant domestic and international law and practice regarding extradition, detention at ADX Florence, solitary confinement and sentences, see the Court’s judgment in Babar Ahmad and Others v. the United Kingdom, nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, §§ 62 - 165, 10 April 2012.
32. In Babar Ahmad the Court began by re-affirming its statement in Chahal v. the United Kingdom, 15 November 1996, § 81, Reports of Judgments and Decisions 1996V that there was no room under Article 3 for any balancing of the risk of ill-treatment on return against the danger that an applicant posed in the Contracting State. Moreover, it found that this conclusion applied equally to extradition and to all other types of removal from the territory of a Contracting State and should apply without distinction between the various forms of ill-treatment prescribed by Article 3 (§§ 166 – 176). However, the Court underlined that the absolute nature of Article 3 did not mean that any form of ill-treatment would act as a bar to removal from a Contracting State; on the contrary, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity required for there to be a violation of Article 3 in an expulsion or extradition case (§ 177).
33. With regard to the facts of the case, the Government accepted that there was a real risk that the first, third, fifth and sixth applicants would be detained at ADX Florence if convicted and the Court proceeded on that basis. It found that the physical conditions there – that is, the size of the cells, the availability of lighting and appropriate sanitary facilities and so on – met the requirements of Article 3 (§ 219). Moreover, the Court did not accept that the applicants would be detained at ADX Florence simply on account of their conviction for terrorism offences. Instead, it was clear to the Court that the Federal Bureau of Prisons would apply accessible and rational criteria, and placement was accompanied by a high degree of involvement of senior officials within the Bureau who were external to the inmate’s current institution. Both this fact and the requirement that a hearing be held prior to transfer provided an appropriate measure of procedural protection. Even if the transfer process were unsatisfactory, there would be recourse to the Bureau’s administrative remedy programme and the federal courts to cure any defects in the process (§ 220).
34. Moreover, the Court further held that if the applicants were convicted the United States’ authorities would be justified in considering them to pose a significant security risk and strictly limiting their ability to communicate with the outside world. In any case, the Court found that while the regime in the General Population Unit and the Special Security Unit at ADX Florence were highly restrictive and aimed to prevent all physical contact between an inmate and others, that did not mean that inmates were kept in complete sensory isolation or total social isolation. Although confined to their cells for much of the time, a great deal of in-cell stimulation was provided through television and radio, newspapers, books, crafts and educational programming. Inmates were also permitted regular telephone calls and social visits and even those under special administrative measures were permitted to correspond with their families. Furthermore, the Court found that applicants could talk to each other through the ventilation system and during recreation periods they could communicate without impediment. In any case, the Court observed that the figures showed that there would be a real possibility for the applicants to gain entry to step down or special security unit programs. Consequently, the Court concluded that the isolation experienced by ADX inmates was partial and relative (§§ 221 – 223).
35. With regard to sentencing the Court held that an extradition would only violate Article 3 if the applicant faced a grossly disproportionate sentence in the receiving State. However, it would only be in very exceptional circumstances that the applicant would be able to demonstrate that a sentence faced in a non-Contracting State would be grossly disproportionate (§ 238). In this regard, the Court noted that an Article 3 issue would only arise in respect of a mandatory life sentence without parole and a discretionary life sentence when it could be shown that the applicant’s imprisonment could no longer be justified on any legitimate penological grounds and that the sentence was irreducible de facto and de jure (§ 242).
36. Finally, the Court considered the position of persons with mental health problems. It noted that insofar as the applicants’ complaints concerned the conditions of pre-trial detention, those complaints were manifestly ill-founded because it had not been suggested that prior to extradition the United Kingdom authorities would not inform their United States’ counterparts of the applicants’ mental health conditions or that, upon extradition, the United States’ authorities would fail to provide appropriate psychiatric care to them. The Court also noted that it had not been argued that psychiatric care in the United States’ federal prisons was substantially different to that available at HMP Long Lartin. Moreover, there was no reason to believe that the United States’ authorities would ignore any changes in the applicants’ conditions or refuse to alter the conditions of their detention to alleviate any risk to them. The Court further found that no separate issue arose with regard to post-trial detention (§ 249).
VIOLATED_ARTICLES: 3


ITEMID: 001-101258
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HASANI v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Vesna Hasani, is a Croatian national who was born in 1966 and lives in Rijeka. She is represented before the Court by Mr M. Linić, a lawyer practising in Rijeka.
On 21 September 2000 the applicant gave birth to her third child.
In a decision of the Croatian Health Insurance Fund, Rijeka Office (Hrvatski zavod za zdravstveno osiguranje, Područni ured Rijeka – “the Rijeka Health Insurance Office”) of 20 December 2000, the applicant's right to maternity leave and maternity allowance was established for the period from 21 September 2001 to 20 September 2003, as provided by section 21 of the Health Insurance Act.
On 24 September 2001 Parliament amended the Labour Act and the Health Insurance Act so as to establish the right to maternity leave and maternity allowance until the child's first birthday. The right to an additional period of maternity leave and allowance for a third child was withdrawn.
Accordingly, by its decision of 6 November 2001 the Rijeka Health Insurance Office withdrew the applicant's right to maternity leave and maternity allowance, as of 29 November 2001. This decision was upheld on 17 January 2002 by the Croatian Health Insurance Fund, Main Office in Zagreb (Hrvatski zavod za zdravstveno osiguranje – Direkcija, Zagreb) and by the Administrative Court (Upravni sud Repbulike Hrvatske) on 13 July 2006.
The applicant's subsequent constitutional complaint was dismissed on 17 September 2008 by the Constitutional Court (Ustavni sud Republike Hrvatske) as ill-founded.
The relevant part of the Labour Act (Zakon o radu, Official Gazette 38/1995), as in force until 26 September 2001, read:
“...
(4) for twins as well as for the third and every further child, a woman in employment has the right to maternity leave until the child's third year.
...”
The relevant part of the Act on Amendments of the Labour Act (Zakon o izmjenama i dopunama Zakona o radu, Official Gazette 82/2001 of 26 September 2001) reads:
“Section 58 paragraph 4 of the Labour Act ... is amended as follows:
'for twins, triplets, quadruplets or more children of the same age, a woman in employment has the right to maternity leave until the child's second year.'
...”
The relevant part of the Health Insurance Act (Zakon o zdravstvenom osiguranju, Official Gazette no. 1/1997), as in force until 2001, read:
“An insured person has the right to payment of salary in connection with health insurance
...
(7) when he or she is temporarily incapacitated for work on account of maternity leave until the child's first or third year ...
...”
The relevant part of the Act on Amendments of the Health Insurance Act (Zakon o izmjenama i dopunama Zakona o zdravstvenom osiguranju, Official Gazette no 82/2001) reads:
“Section 21 paragraph 1(7) of the Health Insurance Act ... is amended as follows:
'a person temporarily incapacitated for work on account of maternity leave until the child's first year ... '
...”


ITEMID: 001-22548
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SKALA v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Jozef Skála, is a Slovakian national, who was born in 1944 and lives in Žilina.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a member of the Corps of National Security (“the police”) from 1964. He was attached to the State Security Service, the then secret police. The National Security Corps Service Act of 1970 entitled members of the police, in case of their dismissal, to several allowances the amount of which depended on the duration of their service in the police. On 31 December 1990 the applicant was dismissed for redundancy pursuant to Section 100 (1) (a) of the National Security Corps Service Act of 1970, as amended. Prior to the applicant’s dismissal, on 10 May 1990, the aforesaid Act was amended in that, pursuant to Section 114a (3), members of the police who were dismissed for redundancy between 9 May 1990 and 31 December 1990 were not entitled to the above allowances.
On 30 May 1995 the applicant filed a petition to the Constitutional Court pursuant to Article 130 (3) of the Constitution. He alleged that his fundamental rights were violated in that, as a result of enactment of Section 114a of the National Security Corps Service Act of 1970, he was deprived of allowances to which he had been entitled, in case of dismissal, throughout his previous service in the police. The applicant explained that he had unsuccessfully requested persons who had standing to do so to bring proceedings before the Constitutional Court with a view to having the conformity of the relevant law with the Constitution determined.
On 12 July 1995 the Constitutional Court rejected the petition as being manifestly ill-founded. The decision stated that in the applicant’s case there was no appearance of a violation of rights which the Constitutional Court could examine in proceedings under Article 130 (3) of the Constitution.
In a letter of 26 February 1996 the president of the Constitutional Court informed the applicant, in reply to the latter’s complaint, that the Constitutional Court lacked jurisdiction to examine whether a law was in conformity with the Constitution in proceedings brought under Article 130 (3) of the Constitution.
On 4 September 1996 the applicant claimed, before the Žilina District Court, compensation for damage caused by the above amendment to the National Security Corps Service Act of 1970. The applicant requested that the District Court seize the Constitutional Court with the preliminary issue whether or not Section 114a of the National Security Corps Service Act of 1970 was in conformity with the Constitution.
On 5 May 1997 the Žilina District Court dismissed the applicant’s request that the proceedings concerning his claim for damages be stayed and that the preliminary question be submitted to the Constitutional Court. The decision stated that the District Court did not share the applicant’s view that Section 114a of the National Security Corps Service Act of 1970, as amended on 10 May 1990, was contrary to the Constitution, or to any law or to any international treaty to which the Slovak Republic was a party as required by Article 109 (1) (b) of the Code of Civil Procedure.
On 30 September 1997 the Žilina Regional Court upheld the District Court’s decision of 5 May 1997.
On 19 January 1998 the Žilina District Court delivered a judgment by which it dismissed the applicant’s claim for damages. The District Court noted that the applicant did not complain that his former employer had acted unlawfully when it had not paid the allowances in question to the applicant upon the termination of his service in the police. The decision stated that the aim of the applicant’s action was to invalidate Section 114a of the National Security Corps Service Act of 1970. As the applicant had failed to show that the defendant - the Slovak Republic represented by the Ministry of the Interior - had caused damage to him, his action could not be granted.
The applicant appealed and claimed that the question whether Section 114a of the of the National Security Corps Service Act of 1970 was in conformity with the Constitution should first be determined by the Constitutional Court.
On 28 July 1998 the Žilina Regional Court upheld the District Court’s judgment of 19 January 1998.
Article 130 (3) of the Constitution, as in force at the relevant time, provides that the Constitutional Court may start proceedings upon a petition (“podnet”) lodged by legal or natural persons alleging a violation of their rights.
In accordance with the Constitutional Court’s practice (decision I. ÚS 96/93 of 16 November 1993), the Constitutional Court cannot proceed with a petition under Article 130 (3) of the Constitution when the issue to be determined depends on the assessment whether or not a law is in conformity with the Constitution as such proceedings can be brought only by one fifth of the Members of Parliament, by the President of the Slovak Republic, by the Government, by a court (in the context of examination of a case pending before it) or by the General Prosecutor.
Pursuant to Article 109 (1) (b) of the Code of Civil Procedure, a court shall suspend proceedings when it comes to the conclusion that a generally binding legal rule concerning the subject-matter of the case before it is contrary to the Constitution, to a law or to an international treaty by which the Slovak Republic is bound. In such a case the issue concerning the possible conflict of laws shall be submitted for adjudication to the Constitutional Court.