Violation of Art. 8 with regard to taking into care;No separate issue under Art. 6-1;Inadmissible under Art. 8 with regard to denial of access;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants were born in 1968 and 1967 respectively and live in Altenberge (Germany).

Mrs Haase is the mother of twelve children. While she was married to M. she gave birth to seven children, Matthias, born in 1985, Sascha, born in 1986, Ramona, born in 1987, Alexander, born in 1988, Timo, born in 1990, and the twins Lisa-Marie and Nico, born in 1992. With her second husband, Mr Haase, she had five children. Anna-Karina was born in 1995, Sandra-Kristin in 1998, Maurice-Pascal in 2000 and Laura-Michelle on 11 December 2001. In December 2003 Mrs Haase gave birth to her last child.

In 1993 the relations between Mrs Haase and M. deteriorated. In April 1993 M. instituted divorce proceedings and requested to be afforded parental rights over the children. By a decision of 29 October 1993 the Münster District Court (Amtsgericht) granted parental rights over the three younger children, Timo, Lisa-Marie and Nico, to Mrs Haase and over the four older children to her first husband. The Münster Youth Office appealed against the decision, but withdrew the appeal in September 1994. In December 1993 Mrs Haase moved with the three children to live withher present husband. On 18 November 1994 the Münster District Court pronounced Mrs Haase's divorce from her first husband. The applicants have been married since December 1994.

In February 2001 Mrs Haase applied to the Münster Youth Office (Amt für Kinder, Jugendliche und Familien - KSD) for family aid. In order to be granted the aid, the applicants agreed to have their family situation assessed by a psychological expert. In May 2001 the Municipal Social Service instructed G. to draw up an expert report. The expert met Mrs Haase and three of her children on 26 September and 11, 15 17 and 22 October 2001 at the applicants' home.

Being of the opinion that the questions put to the children by the expert were irrelevant for the purposes of family aid and having regard to the expert's objection to Mrs Haase attending the meetings with the children's teachers, the applicants refused to co–operate with the expert any longer.

On 17 December 2001 the expert submitted his report to the Münster Youth Office. According to this report, the deficiencies in the children's care and home conditions risked jeopardising their development seriously. There was a damaging cycle of events in which the applicants were unreasonably harsh with their children on repeated occasions and had beaten them. The children needed to be in a secure long-term placement and any further contact between them and the applicants would have to be avoided.

On the same day the Youth Office applied to the Münster District Court for an interim injunction (einstweilige Anordnung) withdrawing the applicants' parental rights over the seven children, namely their four children, Anna-Karina, Sandra-Christine, Maurice-Pascal and Laura-Michelle, and three of the children born during Mrs Haase's first marriage, namely Timo, Nico and Lisa-Marie.

On that very day, i. e. on 17 December 2001, the Münster District Court, without hearing the parents or their children, issued the requested interim injunction. The applicants were ordered to hand over the children forthwith to the Münster Youth Office. The officer in charge of enforcing the decision was authorised to use force if necessary to collect the children. Relying notably on the findings of the expert report, the District Court found that the parents' inability to give the children satisfactory care and education and an abusive exercise of parental authority jeopardised the physical, mental and psychological well-being of all of the children to the extent that their separation from the applicants appeared to be the only possible solution to protect them. The District Court referred to the relevant provisions of the Civil Code (Articles 1666 and 1666a - see paragraphs 53 and 54 below).

By a decision of 18 December 2001 the Münster District Court supplemented its decision of 17 December 2001, prohibiting all access between the applicants and their children and the three children of the first marriage, Timo, Nico and Lisa-Marie. The whereabouts of the children were not to be communicated to the applicants. The District Court further prohibited all access between the four other children of the first marriage and Mrs Haase. She was also forbidden to come nearer than 500 metres to the four other children's residence or their schools. The District Court considered that the expert opinion was sufficient evidence to show that the separation of the parents from their children was necessary for the protection of the children. It had further been shown that the parents would object and try by all means to exert pressure upon the children. In order to avoid stress to the children, these measures were necessary in their best interests. The parents were urged to recognise their own deficiencies in respect of the care and the physical and psychological well-being of the children and take into account the clearly expressed need of the children for a change in their situation. The parents were invited to accept - at least for the time being - the measures taken and to contribute as far as possible to a calming of the general situation. This was only possible if the parents accepted the existing circumstances. The approach of the Youth Office met in part the expressly stated wishes of the children. The District Court concluded that the momentarily inevitable measures were proportionate to the urgent needs and the objective interests of all of the children.

The children were taken on the same day about noon from three different schools, a nursery and from home and were placed in three foster homes. The seven-day-old youngest daughter, Laura-Michelle, was taken from the hospital and since that time has lived with a foster family.

In a letter of 18 December 2001 Dr W., a gynaecologist and head physician at the Johannesstift hospital in Münster, complained to the Münster District Court about the conduct of the authorities. He stated that, according to a telephone call of 17 December 2001, the six children of Mrs Haase as well as the newborn child in the hospital were to be removed from their mother without her knowledge. His patient was to be informed of the measure after her child had been taken from the nursery. Staff members were asked to take the child downstairs to the hospital's entrance and place it in a taxi.

He, as the head physician, and the medical hospital staff were surprised and shocked by the lack of warning and considered this conduct an affront to both Mrs Haase and the medical staff. Since 1992 Mrs Haase had been taken care of by the medical staff of the hospital. She had always given the impression of a being highly responsible person. She had come regularly to the preventive medical check-ups during her pregnancy. When she was accompanied by her children, the children behaved well, were friendly and well brought-up. There were no signs that they were in any way neglected or ill-treated.

On 19 December 2001 the Youth Office informed the applicants that the children had been granted financial assistance in the sum of EUR 4,000 per month and that the parents had to contribute to these fees according to their financial means.

On 19 December 2001 the applicants appealed against the District Court's decision of 17 December 2001. They submitted that it was difficult to understand that in the context of family aid an expert opinion on the parents' ability to bring up their children had been drawn up and that they had not been informed about this opinion. The contested decision was unexpected and had been given at a moment when Mrs Haase was in a critical state of health, having given birth to her daughter a week before. They proposed witnesses who would confirm that the children had not been ill-treated, but were being brought up with love and understanding.

On 7 January 2002 the District Court held a hearing in the presence of the applicants assisted by a lawyer, Mrs Haase's first husband, representatives of the Münster Youth Office, a representative of a nursery and the expert G. The four witnesses of the applicants' own choosing were not heard and had to leave the courtroom.

The District Court instructed G. to proceed with the assessment of the remaining children and to finalise his report. It further appointed a new expert, H., to assess the applicants' capacity to bring up their children.

In the following interviews to prepare the assessment, the applicants asked the expert make a tape-recording of the interviews. Upon the expert's refusal to do so, the applicants were unwilling to continue to co-operate with him.

On 1 March 2002 the Hamm Court of Appeal (Oberlandesgericht) dismissed the applicants' appeal against the decision of 17 December 2001. It noted that the District Court had had regard to the report submitted by the Youth Office in connection with its request of 17 December 2001 to revoke the applicants' parental rights and to the expert opinion submitted by G. and that the District Court had considered that the impugned measure was justified. The expert had concluded that the basic needs of the children were not satisfied and that patterns of violence and permanent shortcomings of all kinds determined the children's day-to-day life. It was thus necessary to put an end to the risk to which the well-being of the children appeared to be exposed. A new expert opinion was to be expected by the middle of April 2002. The Court of Appeal found that the applicants' appeal could therefore be dismissed without holding a hearing. It was against the best interests of the children to take them out of the new environment in which they were building up new contacts, and to restore them to their former family, there being the risk that they would be taken to a new environment again shortly afterwards.

On 8 March 2002 the applicants challenged the judge at the Münster District Court for bias.

On 4 April 2002 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, dismissed the applicants' request for an interim injunction.

The Federal Constitutional Court found that the applicants' constitutional complaint was neither inadmissible nor manifestly ill-founded. There were doubts in particular whether the courts had breached the applicants' right to a fair hearing and their right to respect for their family life. However, if the requested interim injunction was issued and if later the constitutional complaint had to be dismissed, the children would have to be taken from the applicants again and placed somewhere else. Having regard to the fact that the expert opinion was to be drawn up by mid-April 2002, the applicants should await the outcome of the main proceedings rather than have the children run the risk of being separated from their parents again later. It had to be assumed that the competent courts would conduct the main proceedings speedily having regard to the time element in these matters.

On 10 April 2002 the Münster District Court dismissed the challenge to the judge and on 11 April 2002 another to the expert G.

On 19 April 2002 the Münster District Court appointed a lawyer of the Münster Bar as curator ad litem (Verfahrenspfleger) to represent the children in the proceedings. It instructed the already appointed experts to submit the results of their investigations obtained so far and discharged them from any further expert activity. It appointed a new expert, Professor K., with a view to determining whether separating the children from the family was the only way of eliminating all danger for them.

On 11 June 2002 Professor K. interviewed the applicants at their home. The interview lasted for six hours.

On 21 June 2002 the Federal Constitutional Court, sitting as a bench of three judges, set aside the decisions of the Hamm Court of Appeal of 1 March 2002 and the Münster District Court of 17 December 2001 and referred the case back to the Münster District Court.

In so far as the applicants complained about the decisions of the Münster District Court of 18 December 2001 and 7 January 2002, the Federal Constitutional Court declared the constitutional complaint inadmissible, since the applicants had failed to appeal against these decisions in accordance with section 19 of the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit - FGG).

In so far as the constitutional complaint was admissible, the Federal Constitutional Court considered that, in accordance with the principles established in its case-law, the decisions of the Münster District Court and the Court of Appeal violated the applicants' family rights as guaranteed by Article 6 § 2, first sentence, of the basic Law, taken together with Article 6 § 3 (see “Relevant Domestic Law” below).

There were serious doubts whether the courts had respected the importance of parental rights when giving their decisions and whether they had sufficiently taken into account the principle of proportionality. The question whether the evidence established that there was a risk of harm to the children had not been adequately considered. The District Court and the Court of Appeal had merely referred to the report of the Youth Office and the expert opinion. It did not appear from their decisions whether the expert's conclusions were based on reliable facts. An assessment of the applicants' submissions and considerations as to the possibility of ordering alternative measures, that would not have required the total revocation of parental rights, had not been made. Both the Court of Appeal and the District Court had failed to question the children or give the persons taking part in the proceedings the opportunity to be heard.

The measures which had been ordered had led to a drastic change in the lives of all the persons concerned and constituted a particularly serious interference with parental rights. However, no inquiries had been made, even by telephone, before the decision was taken. No reasons were given justifying the urgency of the matter.

The Family Court had no information on the possible effects of its decision, since the Youth Office and the expert had not commented on this issue. When examining the advantages and disadvantages of a family measure it was, however, relevant to consider that a separation of the children from their parents could jeopardise the development of the children, in particular in their first years of life.

The courts had also failed to clarify the contradiction between the findings in the expert opinion according to which the applicants were not ready to co-operate and the fact that Mrs Haase herself had asked to be granted child-rearing guidance. Furthermore there was no indication whether and to what extent the applicants had refused any contact or help offered by the Youth Office and it was not clear which “specific measures granting assistance” (einzelne Jugendhilfemaßnahmen) had been carried out in the past and why they were not successful.

The District Court should have first clarified the questions which arose and in the meantime could have taken alternative provisional measures if there was serious reason to believe that the welfare of the children was at risk.

According to the Federal Constitutional Court, it could not be excluded that, prior to the termination of the proceedings on the merits, which had to be dealt with as a priority, the District Court would issue another emergency decision. If so, the District Court was directed to examine carefully whether, in the light of the evidence obtained in the meantime, the continued separation of the children from the applicants was still justified and whether a repeated change of the children's place of residence would be in their best interests. If the District Court found that the present situation were to be maintained, it would have to consider whether the applicants should be granted a right of access, restricted or subject to conditions if necessary, and whether, in strict accordance with the principle of proportionality, the effects of such a decision should be limited in time.

On 13 and 14 June 2002 four of the children, Timo, Nico, Anna-Karina and Lisa, were interviewed by the judge at the Münster District Court at the respective institutions where they were placed.

According to the minutes of the District Court of 14 June 2002, Timo declared that he wished to return to his parents. He knew that there were certain reasons for placing him and his siblings in a different environment and confirmed that he had had too much work and strain at home. He sent his greetings to his brothers and sisters.

Nico, Anna-Karina and Lisa were interviewed in another foster home. Nico stated that he wished to know whether his parents and his “favourite” father (Lieblingsvater) were all right. He asked why he could not join his “favourite” father and whether somebody, his parents, his father or Maurice, could not come to see him. Lisa and Anna were with him and, according to them, were all right. Lisa had let him know that she too wished to return home. He stated that he was fine. Asked about his dreams, he said that he wished to go to his “favourite” father who was very nice, better than his stepfather. In reply to the question whether the judge should leave a message, he dictated the following letter on a dictaphone: “Dear Sascha (his favourite brother), (his favourite sisters Lisa and Ramona), dear Alex, what a pity that we don't see each other ... Sascha, Matthias, Ramona, Alex, his favourite father and his parents should come and visit him.” (Lieber Sascha (sein Lieblingsbruder), (Lieblingsschwestern Lisa und Ramona) lieber Alex, schade, dass wir uns nicht sehen ... Sascha, Matthias, Ramona, Alex, sein Lieblingsvater und seine Eltern sollten ihn besuchen kommen.)

The following letter to his mother was recorded on a dictaphone: “Dear Mama, it is a pity that you do not come and best regards from Maurice and Sandra and Timo and Lisa. Lisa and Anna are all right. Yes and perhaps could you come to see us? Or is that not possible? “ (Liebe Mama! Schade, dass Du nicht kommst und liebe Grüsse von Maurice und Sandra und von Timo und von Anna und dass es Lisa und Anna gut geht. Ja und, vielleicht: könntet Ihr ja mal herkommen. Oder geht das nicht?)

Anna-Karina stated that she felt fine. She was in the company of Lisa and Nico. Everybody said that she should tell her parents that everything was all right. She then added that she did not like it there.

Lisa-Marie regretted that “poor Sandra” was all on her own without any member of the family. She would never bear this. She had to protect Nico and Anna. That was her duty as the elder sister. Nico was beaten very often in that place. She did not know the reason. In reply to a question, she stated that she was doing her homework thoroughly and that she was doing well in school. At home she had almost fallen asleep when doing her homework. When asked what message the judge could pass on, she said that she did not like the place and that she wished to return home. However, the staff did not believe her. She did not really like them. She did not want to go to another institution. She wished to go home. If she were not allowed to go home, she should at least be authorised to see everybody, her brothers and sisters, parents and stepfather. She missed taking Maurice to bed sometimes. Having been told that Nico wished to return to his “favourite” father, Lisa-Maria replied that, unlike Nico, she loved both her father and her stepfather.

On 24 June 2002, as a consequence of the decision of the Federal Constitutional Court, the Münster District Court set down for hearing on 1 July 2002 the request of the Münster Youth Office of 17 December 2001 to provisionally revoke the parental rights of the applicants over the children. It transferred to the Youth Office the right to decide where the children should live (Aufenthaltsbestimmungsrecht). The District Court found that the best interests of the children did not require a modification of the present situation before a decision on the merits was given. The District Court considered that its decision of 18 December 2001 prohibiting the applicants all access to the children was still relevant, since it had not been set aside by the Federal Constitutional Court.

On 1 July 2002 the Münster District Court held a hearing attended inter alia by the applicants assisted by a lawyer, Mrs Haase's first husband, the curator ad litem, a lawyer and representatives of the Münster Youth Office, the experts G. and Professor K. and the children's paediatrician Dr J. Professor K. gave details of her visit to the applicants' home on 11 January 2002 and resumed the content of the interview. Having studied the extensive files concerning the applicants and G.'s report, Professor K. could not confirm that the findings in the report were erroneous. She expressed the view that the children should not be returned to the applicants.

The children's paediatrician, Dr J., stated that all the children had been his patients since their birth except the daughter born in December 2001. Although he knew about the children's problems, in particular the difficulties with Nico, the applicants made a quite positive impression on him. It was a big family with many children. However, the applicants were loving parents who took great care of their children. There was no indication that the children had been beaten or otherwise abused.

The curator ad litem was opposed to contacts between the applicants and the children.

By an interim injunction of the same day, namely 1 July 2002, the Münster District Court provisionally transferred the custody (Personensorge) over the children to the Münster Youth Office and confirmed its decision of 18 December 2001. The expert was instructed to add to her report. She was requested to comment in particular on whether, in the best interest of the children, it was necessary to maintain the access prohibition, whether the children should be granted access to the older children of the first marriage, Matthias, Sascha, Ramona and Alexander, and if appropriate, in what way such contact could be arranged while keeping the children's place of residence secret.

The District Court relied in particular on the findings of the expert G. that the separation of the applicants from their children had to be maintained. The applicants were incapable of bringing up their children because of their own basic and irreparable educational deficiencies and their abuse of parental authority. The children were emotionally disturbed and presented unusual patterns of behaviour. They had been beaten and locked up. Furthermore the four older children of the first marriage had approved the separation of the younger children from their mother and had refused any contact with her. The sole reason why Mrs Haase was intent on giving a positive impression of herself was to obtain support from others. However, any such support was foredoomed.

The District Court noted that Professor K. had not yet submitted her report. However, she had confirmed the findings of the expert G. and had stated at the hearing of 1 July 2002 that there was no alternative to separating the children from the applicants. According to her, Mrs Haase had never been willing to call her own behaviour into question. She satisfied her own needs only and refused to accept child-rearing guidance with a view to reducing her own deficiencies. In fact, she had admitted not having undergone therapy in 1994. Professor K. had found that G.'s expert opinion could not be objected to.

The District Court considered that the numerous written statements of witnesses submitted by the applicants confirming that the children had not been beaten or ill-treated did not constitute sufficient evidence in their favour. Harm, such as verbal cruelty, could be of a psychological nature. The statement made by Lisa-Marie that she wished to return to the applicants did not reflect her real intention, but resulted from a conflict of loyalty.

The District Court further compared the situation described in an expert report drawn up in 1993 with the present situation: Mrs Haase was always well-dressed while her husband looked tired and worn out. It concluded that Mrs Haase was not aware of her problems. She aggravated with each new pregnancy the emotional deficiencies of the children. This had been confirmed by Professor K. after a discussion with the applicants on 11 June 2002.

The District Court affirmed that its decision of 17 December 2001 was based on its experience in cases where coercive measures had to be taken. Had the parents been warned of the requested measure, they would have offered resistance, as was shown by their own reaction and the excessive reaction of the media in the case. An enforcement of the court decisions with the intervention of the authorities and the police would have been contrary to the best interests of the children.

On 16 July 2002 the applicants appealed against this decision to the Hamm Court of Appeal.

On 20 August 2002 the applicants challenged Professor K. for bias. They complained that she had intentionally delayed the preparation of her expert report in order to separate the children from their parents for a longer period. She could not be relied upon to act in the best interests of the children. Without having seen them, she had recommended at the hearing before the District Court of 1 July 2002 that they be separated from the applicants. Her unfriendly conduct vis-à-vis the applicants, when interviewing them at their home on 11 June 2002, and the reference to files dating from Mrs Haase's divorce problems in 1993 confirmed the view that she was not impartial.

On 18 September 2002 the applicants challenged the judge at the Münster District Court for bias. They referred to previous decisions given by that judge in favour of the Youth Office, allegedly in contrast to expert recommendations.

On 23 September 2002 the judge declined to stand down.

On 30 September 2002 the applicants' lawyer again challenged the judge at the District Court and Professor K. for bias.

On 7 October 2002 the Münster District Court dismissed the challenge to the judge on the ground that the applicants' allegations were unsubstantiated.

On 10 December 2002 the Hamm Court of Appeal dismissed the applicants' appeal against the Münster District Court's decision of 7 October 2002.

On 19 December 2002 the Münster District Court rejected the challenge for bias in respect of Professor K.

On 13 January 2003 Professor K. submitted her report. She confirmed her previous findings.

On 19 February 2003 the Federal Constitutional Court, sitting as a bench of three judges, refused to entertain the applicants' constitutional appeal against the decisions of 10 December 2002 and 7 October 2002.

On 18 February 2003 the Münster District Court held a hearing. The applicants, the Youth Office, the curator ad litem and the experts G. and K. were present. The curator ad litem declared that the children had adapted to the changed living conditions and appeared to be comfortable with the new situation.

On 4 March 2003 three of the children living with their father, Matthias, Sascha and Alexander, were heard separately by the Münster District Court. They were opposed to seeing their mother.

By a decision on the merits of 6 March 2003, the Münster District Court withdrew the applicants' parental rights over their four children and the three children of the first marriage previously living with them and prohibited access to them until June 2004. It relied on Articles 1666, 1666a and 1684 § 4 of the Civil Code (see paragraphs 53-55 below). The authorities were compelled to take the contested measures, which were justified under Article 6 § 3 of the Basic Law, and necessary in a democratic society for the protection of the health and the rights of the children within the meaning of Article 8 § 2 of the Convention. It found that the domestic situation was difficult and that the children were in danger. The applicants, in particular Mrs Haase, were inflexible and incapable of understanding the children's needs and with her it would be impossible to implement any educative measures. The conditions in which the children had been brought up were highly unsatisfactory. The children had made positive progress in the foster homes in which they had been placed, had gained in confidence and were less affected by behavioural disorders.

By a separate decision of the same day the Münster District Court prohibited contact between Mrs Haase and her four eldest children, Matthias, Sascha, Ramona and Alexander before the end of 2004, or in the case of Mrs Haase's eldest son Matthias, before he attained his majority.

The applicants appealed against the above decisions.

Article 6 of the Basic Law (Grundgesetz) reads as follows:

(2) Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them. The state watches over the performance of this duty.

(3) Separation of children from the family against the will of the persons entitled to bring them up may take place only pursuant to a law, if those so entitled fail in their duty or if the children are otherwise threatened with neglect.

Article 1666 of the Civil Code (Bürgerliches Gesetzbuch) provides that the family courts are under an obligation to order necessary measures if a child's welfare is jeopardised (Gefährdung des Kindeswohls).

The first sub-paragraph of Article 1666a provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child's welfare.

The second sub-paragraph of Article 1666a provides:

“Full [parental] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger [Die gesamte Personensorge darf nur entzogen werden, wenn andere Maßnahmen erfolglos geblieben sind oder wenn anzunehmen ist, dass sie zur Abwendung der Gefahr nicht ausreichen].”

According to Article 1684 § 4 of the Civil Code, the family court can restrict or suspend the right of access if such a measure is necessary for the child's welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child's well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association.


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The applicant, Mr Nikolay Panteleyevich Sergeyev, is a Ukrainian national who was born in 1927 and lives in Gorlovka, Donetsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 21 August 1999 the Tsentralno-Gorodskoy District Court of Gorlovka awarded the applicant 1,438 Ukrainian hryvnias in compensation for damage caused to his property by a privately owned company, “Z.”.

That judgment became final and the State Bailiffs’ Service instituted proceedings to enforce it.

On 10 June 2003 the Donetsk Commercial Court instituted liquidation proceedings against the debtor company.

In this regard on 4 November 2003 the State Bailiffs’ Service terminated the enforcement proceedings against the debtor company and transferred the applicant’s writ of enforcement to the liquidation commission for further processing.

The applicant complained to various State authorities about lengthy non-enforcement of the judgment in his favour, but to no avail. However, he did not sue the State Bailiffs’ Service for its alleged inactivity or omissions.

The judgment of 21 August 1999 remains unenforced.

The relevant provisions of the State Bailiffs’ Service Act of 24 March 1998 and the Enforcement Proceedings Act of 21 April 1999 are summarised in the case of Dzizin v. Ukraine ((dec.), no. 1086/02, 24 June 2003).


CASE OF TOMISLAV JOVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" (No.1)

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in 1951 and lives in Bitola.

On 9 November 1987 the applicant entered into an agreement with Mr V.G. (“the defendant”) under which the latter had agreed to produce and install some furniture in the applicant's house. The applicant made an advance payment.

On 12 April 1993 the applicant claimed annulment of the agreement since the defendant had not complied with it.

On 1 February 1994 the applicant specified his claim and sought compensation.

On 16 June 1995 the applicant lodged another compensation claim on a different ground. On the same date, the then Bitola Municipal Court (“the first-instance court”) ruled partly in favour of the applicant ordering a cross-cancellation of debts (пребивање). It made no decision in respect of the applicant's compensation claim since it had not been specified. On 26 March 1996 the Bitola Court of Appeal confirmed the decision on the merits and quashed it in respect of the trial costs.

After the defendant died, the first-instance court invited defendant's heirs (“the heirs”) to submit a court decision recognising them as his successors.

On 10 March 1997 the applicant successfully requested removal of the judge.

On 8 December 1998 the applicant further specified his claim.

After one hearing being adjourned due to the applicant's absence, the first-instance court dismissed the applicant's compensation claim on 19 January 2000. This decision was confirmed on the merits by the Bitola Court of Appeal's decision of 26 October 2000. On 10 April 2003 the Supreme Court dismissed the applicant's appeal on points of law of 31 March 2001. This latter decision was served on the applicant on 25 August 2003.

The applicant's dismissal was annulled by a decision of the Bitola Court of Appeal of 16 October 1997. He was reinstated on 7 November 1997.

On an unspecified date in 1998, the applicant brought an action against his employer claiming compensation for the unlawful dismissal.

On 8 December 2000 the first-instance court ruled partly in his favour. This decision was upheld by the Bitola Court of Appeal and the Supreme Court with decisions of 22 May 2001 and 13 March 2003, respectively. This latter decision was served on the applicant on 13 June 2003.


As a secondary-school teacher of classics who has passed the agrégation (the highest competitive examination for teachers), Mr Huber has been a civil servant in the State education service since 1978.

While working at the Paul Eluard Lower Secondary School at Evry (département of Essonne), he was sent on compulsory leave for a month from 7 November 1988 by a decision of the schools inspector for Essonne on 4 November 1988. The decision was based on Article 4 of the decree of 29 July 1921, which provides: “Where the schools inspector … considers, in the light of a medical certificate or a report by a civil servant’s superiors, that on account of the civil servant’s physical or mental state, the children are exposed to immediate danger, he may send the civil servant concerned on compulsory leave for one month on full salary.”

On 6 December 1988 the same inspector decided to suspend payment of the applicant’s salary from 7 December 1988.

On 6 February 1989 Mr Huber applied to the Versailles Administrative Court to quash the decisions of 4 November 1988 and 6 December 1988 and sought a stay of execution of the latter decision.

By three decisions of 5 October 1989 the applicant was sent on extended sick-leave from 7 November 1988 to 6 May 1989 and then from 7 May 1989 to 6 November 1989 and on extended leave of absence from 7 November 1989 to 6 May 1990. On 8 December 1989 Mr Huber applied to the same court to quash those three decisions.

The hearing took place on 18 December 1990. In a judgment of the same date the Versailles Administrative Court joined the three applications, quashed the decision of 4 November 1988 and the one of 6 December 1988 suspending payment of the applicant’s salary, decided that there was no longer any need to rule on the application for a stay and dismissed the application to have the decisions of 5 October 1989 quashed. The judgment read as follows:

As to the compulsory leave

Mr Huber maintained that the headmaster’s report on which the decision complained of was based had been drawn up on 30 September 1988, whereas the decision whereby he was sent on compulsory leave had not been issued until 4 November 1988. Serious incidents occurred on account of the teacher’s lack of authority. While the headmaster said that Mr Huber’s behaviour had jeopardised pupils’ safety, he did not, however, establish that he had taken the measures, including disciplinary measures, that were within his powers and which would have prevented the situation from becoming critical. Nor does it appear from the report produced that the facts were such as to justify applying Article 4 of the decree [of 29 July 1921], which only applies in very specific circumstances that justify describing the danger to which the children are exposed as immediate…

As to the suspension of payment of salary

Although Article 39 of the decree [no. 86-442] of 14 March 1986 authorises the administrative authorities to stop paying the salary of a civil servant on extended sick-leave or extended leave of absence who refuses to undergo the treatment and examinations his state dictates, it could not be applied to Mr Huber, who at the time when the impugned decision suspending payment of his salary was taken was not on extended sick-leave or extended leave of absence…”

The applicant appealed to the Conseil d’Etat on 31 January 1991. He sought to have the judgment of 18 December 1990 quashed in so far as the Administrative Court had held that it was unnecessary to rule on the application for a stay of execution and had dismissed the application to quash the decisions of 5 October 1989.

According to the Government, the Ministry of Education filed observations on 10 April 1992, to which Mr Huber replied on 23 April 1992. The applicant had produced new documents on 15 and 25 January, 18 February, 4 March and 14 June 1993 and on 17 January 1994. On 1 February 1994 the case had been assigned to the Eighth Section of the Judicial Division of the Conseil d’Etat, on 14 October 1994 a reporting judge had been appointed and on 14 November 1994 a preparatory sitting had been held.

On 30 November 1994 the Conseil d’Etat held a hearing, and on 21 December 1994 it delivered a judgment in which it dismissed the appeal.

By a decision of 12 July 1990 the applicant was transferred to the Marcel Pagnol Upper Secondary School at Athis-Mons (Essonne) but he could not take up his duties until the appropriate medical board had ruled on his case. In a letter of 9 August 1991 to the Minister of Education he asked the Minister to “rule on his administrative position” in respect of the period after 6 May 1990 and sought payment of an advance on his salary.

On 19 August 1991 the applicant lodged two applications with the Paris Administrative Court. In one of these he sought to have quashed the implicit refusal of his request for a review of his administrative position and for an advance on his salary, submitting that it was not normal for him to be on unpaid leave and that the medical board had not ruled on his case, thereby preventing him from taking up his duties at the Marcel Pagnol Upper Secondary School at Athis-Mons. In the other application he sought a stay of execution of that implicit refusal, relying on his financial difficulties.

On 7 October 1991 the President of the Paris Administrative Court, taking the view that, according to Article R. 56 of the Administrative Courts and Administrative Courts of Appeal Code, the Paris Administrative Court had no jurisdiction to hear the foregoing applications, ordered under Article R. 82 of the same code that the files should be sent to the President of the Judicial Division of the Conseil d’Etat.

In an order of 4 December 1991 the President of the Judicial Division of the Conseil d’Etat designated the Versailles Administrative Court as the court that would hear the applications in question. The latter were registered in that court’s registry on 27 January 1992.

On 20 January 1993 the Director of Education for Versailles filed a pleading to which were appended two decisions of 6 January 1993 designed to resolve Mr Huber’s position. In the first decision the applicant’s extended leave of absence was prolonged from 7 May 1990 to 6 November 1992, and in the second he was reinstated in his post at Paul Eluard Lower Secondary School at Evry.

In his pleading in reply registered on 27 January 1993 the applicant said that he had lodged a preliminary administrative appeal against the second of those decisions (he was seeking reinstatement in the post at Marcel Pagnol Upper Secondary School at Athis-Mons, where he had last been posted).

In a further pleading registered on 22 February 1993 the applicant “confirm[ed]” that he was seeking to have both the aforementioned decisions quashed.

In a judgment of 14 December 1993 the Versailles Administrative Court joined all the applications, dismissed that seeking to have the decisions of 6 January 1993 quashed and decided that it was unnecessary to rule on those seeking to have quashed the implicit refusal of Mr Huber’s request for a review of his position and a stay of execution of that refusal.

On 6 January 1994 the applicant appealed to the Conseil d’Etat against the judgment of 14 December 1993.

On 21 December 1994 the Conseil d’Etat decided to transfer the appeal to the Paris Administrative Court of Appeal. The decision read as follows:

“By Article 2 of the decree [no. 92-245] of 17 March 1992, ‘From 1 January 1994 the Administrative Courts of Appeal shall have jurisdiction to rule on appeals against judgments of the Administrative Courts on applications for judicial review of individual decisions taken in respect of civil and public servants.’ Mr Huber’s … application, registered on 6 January 1994, whereby he is appealing against a judgment on an application for judicial review of decisions concerning his career as an agrégation-qualified secondary-school teacher, therefore falls within the jurisdiction of the Paris Administrative Court of Appeal.

Admittedly, Mr Huber maintained that the Conseil d’Etat had jurisdiction to hear his application in view of the link between it and [the] application … made by him on 31 January 1991 [see paragraph 11 above] and Article R. 73 of the Administrative Courts and Administrative Courts of Appeal Code provides: ‘Where the Conseil d’Etat has before it a submission which it has jurisdiction to hear as the appellate court, it shall also have jurisdiction to entertain related submissions which would normally fall within the jurisdiction of an Administrative Court of Appeal.’ There is, however, no link between the present application and the submissions in the application [made on 31 January 1991].

The Conseil d’Etat’s decision of 21 December 1994 was registered in the Paris Administrative Court of Appeal’s registry on 8 June 1995.

The hearing took place on 5 November 1996, and in a judgment of 19 November 1996 the Administrative Court of Appeal dismissed the applicant’s appeal on the following grounds:

“… by means of two decisions of 6 January 1993 the Director of Education for Versailles prolonged the applicant’s extended leave of absence on full salary from 7 May 1990 to 6 November 1992 and reinstated him in his duties at the Paul Eluard Lower Secondary School at Evry with effect from 7 November 1992. Mr Huber’s applications seeking to have quashed and stayed the authorities’ implicit refusal to give a ruling on his position thus became devoid of purpose on 14 December 1993, the date of the judgment appealed against. The fact that he had not been assigned to any duties at the beginning of the new school year in 1994 and had not received any salary since May 1994 has no bearing in this connection…”

On 25 November 1996 Mr Huber appealed on points of law to the Conseil d’Etat against the Administrative Court of Appeal’s judgment of 19 November 1996. The case is still pending.

A civil servant in post is entitled, inter alia, to extended sick-leave for a maximum period of three years where it is established that he is suffering from an illness that makes it impossible for him to carry out his duties, requires prolonged treatment and care, is disabling and has been confirmed as serious. The civil servant remains on full salary for one year and on half salary for the next two years. He also retains his entitlement to the full supplementary family allowance and the full residence allowance (section 34(3) of Law no. 84-16 of 11 January 1984 making provisions governing the civil service).

He is also entitled to extended leave of absence for three years on full salary and thereafter for two years on half salary if he is suffering from tuberculosis, mental illness, cancer or poliomyelitis. He retains his entitlement to the full supplementary family allowance and the full residence allowance. If the illness has been contracted in the course of his duties, the aforementioned periods are increased to five years and three years respectively. Extended leave of absence is normally granted only at the end of the full-salary period of extended sick-leave (section 34(4) of the Law).

Extended sick-leave and extended leave of absence are granted after a medical examination and authorisation from the appropriate medical board (Article 35 of Decree no. 86-442 of 14 March 1986 on the appointment of civilian and military medical boards, physical-fitness requirements for admission to posts in the public service and rules on sick-leave for civil servants).

Where a departmental head considers, in the light of a medical certificate or a report by a superior, that a civil servant’s state of health might justify his being sent on extended sick-leave or extended leave of absence, he may take steps in order to have the person concerned undergo a medical examination (Article 34 of the decree).

A person on extended sick-leave or extended leave of absence may not resume his duties at the end of or during that leave unless he is declared fit after a medical examination by an approved specialist and with the agreement of the appropriate medical board (Article 41 of the decree).

Articles R. 56 and R. 82 of the Administrative Courts and Administrative Courts of Appeal Code provide:

Article R. 56

“Jurisdiction to hear all individual disputes, including those over pecuniary matters, which affect civil servants or employees of the State and of other public entities or authorities … shall be vested in the Administrative Court within whose territorial jurisdiction the place of work of the civil servant or employee affected by the impugned decision is situated.

If the decision in question concerns an appointment or entails a change of posting, jurisdiction shall be determined by the location of the new posting.

If the decision in question concerns a dismissal, a retirement or any other measure entailing termination of service, or if it concerns a former civil servant or employee, or a civil servant or employee without a posting on the date when the impugned decision was taken, jurisdiction shall be determined by the location of the civil servant’s last posting.

Article R. 82

“Where an Administrative Court of Appeal or Administrative Court is seised of a case which it considers to be within the jurisdiction of an administrative court other than the Conseil d’Etat, its president shall without delay forward the file to the President of the Judicial Division of the Conseil d’Etat, who shall settle the issue of jurisdiction and assign the case to be tried in whole or in part by the court that he shall declare to have jurisdiction.”


DES FOURS WALDERODE v. THE CZECH REPUBLIC

The applicant, Mr Karel Des Fours Walderode, was a Czech and Austrian national. He was born in 1904 and died on 6 February 2000. On 25 February 2000 the applicant's widow, Mrs Johanna Kammerlander, took her late husband's place in the proceedings before the Court.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant's stepmother and his two stepbrothers, all German nationals, owned real estate in former Czechoslovakia. In 1945 the property was confiscated under Presidential Decrees nos. 12/1945 and 108/1945, which entered into force on 21 June and 25 October 1945 respectively.

The applicant's stepmother died in 1955 leaving her real estate to the applicant, and conferring the succession rights of her deceased sons on the applicant. She had never acquired Czechoslovak citizenship.

The applicant left Czechoslovakia in 1949, thereby forfeiting his Czechoslovak citizenship, and returned in 1991. He was granted Czech citizenship in August 1992.

On 14 July 1992 the applicant lodged a claim for restitution of the property confiscated from his stepmother and stepbrothers under Presidential Decree no. 12/1945 and which had been sold by his father before the Second World War. He referred to the Land Ownership Act of 1991, claiming that he had inherited the property.

On 6 February 1995 the Jablonec nad Nisou Land Office, referring to the documentary evidence, dismissed his claim on the ground that his stepmother and stepbrothers had not been loyal to the Czechoslovak State during the German occupation and had not acquired Czechoslovak citizenship after the Second World War. It found, with reference to section 2(1) of the Restitution Act 1992, that the applicant was not the owner of the property, as his stepmother and stepbrothers had not satisfied the requirements for restitution, and that the applicant's claim in respect of his father's former property fell outside the scope of the restitution legislation.

On 16 April 1996 the Municipal Court, having assessed a substantial amount of documentary evidence and having heard the parties to the dispute, upheld the Land Office's decision. It stated, inter alia, that under Article 819 of the General Civil Code of 1811 an heir acquired an estate only upon its distribution; thus the dates of the acquisition of the estate and the death of a testator were different. In fact, from the death of a testator until the time of distribution of the estate, the property was to be regarded as hereditas iacens. According to the court, real estate could be lawfully confiscated in the period between the death of the testator and the time of acceptance of the estate by an heir. The court held that the property at issue had been confiscated ex lege by Presidential Decree no. 12/1945 from the applicant's stepbrothers, German nationals, after they had died but whilst they had still been the notional owners of the estate. As the original owners, including the applicant's stepmother, had not reacquired Czech citizenship as provided for in section 2(1) of the Restitution Act 1992, the applicant could not be considered to be entitled to restitution.

On 5 June 1997 the Constitutional Court dismissed a constitutional appeal by the applicant as unsubstantiated, stating in particular that, under the Civil Code of 1811, which had been applicable at the relevant time, an heir acquired the estate upon its distribution. In the present case the time of acquisition of the estate and the death of the testator did not fall within the same period. In order to transfer the estate to an heir, special proceedings before the national courts had to be instituted of the court's own motion. If such proceedings were not instituted, the estate was hereditas iacens until delivery of a court judgment. Heirs who wished to acquire the estate had to submit an application within the framework of those proceedings. The estate was considered to remain in the possession of the testator until acquired by an heir. The court observed that, in the present case, the confiscation had taken place when the applicant's stepbrothers died. However, the estate had not yet been administered by the national authorities and, therefore, the applicant had not acquired the property at issue. Moreover, as the stepbrothers had not been entitled to claim restitution of the property under the Land Ownership Act, and since the applicant's stepmother had been of German origin and had never acquired Czechoslovak citizenship, the applicant himself was not entitled to claim restitution pursuant to this Act.

(a) In 1995 the applicant instituted inheritance proceedings in Germany in respect of the property claimed in the above restitution proceedings. On 7 June 1995 two certificates of succession were issued to the effect that the applicant was the universal heir of his stepbrothers.

(b) On 3 March 1995 the relevant German authority issued a document certifying that the applicant's stepbrothers had not served in the SS.

(c) The applicant was the owner of real estate in Hrubý Rohožec. This was confiscated from him under Presidential Decree no. 12/1945. In August 1945 the former local authority acknowledged the confiscation and granted him leave to appeal to the Prague National Land Committee.

(d) On 2 November 2001 the United Nations Human Rights Committee, considering the applicant's communication (no. 747/1997) concerning the Hrubý Rohožec real estate, held that Article 26 of the International Covenant on Civil and Political Rights, read in conjunction with Article 2 of the Covenant, had been violated by the Czech Republic.


Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award

On 19 October 1992 the applicant lent to MJB, a company in Zagreb, 10,000 German marks (DEM) for a period of three months at a rate of interest of 27%. On 23 November 1992 she lent to ZIP, a company in Zagreb, DEM 20,390 for a period of one month at a rate of interest of 20%.

As the said companies failed to repay the loans, the applicant instituted proceedings against ZIP and MJB in the Zagreb Municipal Court (Općinski sud u Zagrebu).

The proceedings against ZIP and its alleged owner Ž.M. commenced on 29 March 1995 when the applicant, together with thirty-nine other plaintiffs, filed an action for repayment of their loans.

On 17 May 1995 the court asked the applicant’s counsel to provide the address of the second defendant. On 23 May 1995 the applicant’s counsel submitted the address concerned.

A hearing was scheduled for 4 October 1995 but it was adjourned since the defendants failed to appear. It turned out that the defendants had not received notice of the date of the hearing as the address indicated was incorrect. The court asked the applicant’s counsel to submit the defendants’ correct address within thirty days.

The next hearing was scheduled for 24 January 1996. However, it appears that in the meantime ZIP had ceased to exist and, as Ž.M.’s address remained unknown, the court ordered the applicant’s counsel to request the Social Welfare Centre (Centar za socijalnu skrb) to appoint a legal representative for Ž.M.

On 20 June 1996 the applicant’s counsel informed the court that the Zagreb Social Welfare Centre had, by its decision of 11 March 1996, appointed a legal representative for Ž.M.

On 13 September 1996 the court asked the applicant’s counsel to submit within thirty days a certificate from the registry of the Zagreb Commercial Court (Trgovački sud u Zagrebu) concerning the legal status of ZIP.

The next hearing, scheduled for 2 December 1999, was also adjourned due to the absence of the defendants. It turned out again that ZIP and Ž.M. had not received notice of the hearing date as the address indicated was incorrect. The court invited the applicant’s counsel to inform it within thirty days whether ZIP had in fact ceased to exist.

According to the Government, during the next hearing on 7 June 2000, the court decided upon the parties’ application to return the proceedings to the status quo ante (zahtjev za povrat u prijašnje stanje). Due to the absence of ZIP the hearing was adjourned to 17 October 2000. It appears that the proceedings are still pending before the Zagreb Municipal Court.

The proceedings against MJB and its alleged owner B.J. commenced on 30 March 1995 when the applicant, together with thirty other plaintiffs, filed an action for repayment of their loans with the Zagreb Municipal Court.

The court asked the applicant’s counsel to provide the address of B.J. On 25 August 1995 the applicant’s counsel informed the court of B.J.’s address.

The hearing scheduled for 2 October 1995 was adjourned due to the absence of the defendants. It turned out that MJB was no longer at its previous address and that B.J. was in detention on remand. The applicant’s counsel informed the court that B.J. had been released from detention and requested that the notices for the next hearing be sent to the defendants at the same addresses as before.

The hearing on 27 November 1995 was again adjourned due to the defendants’ absence. It appears that MJB had in the meantime ceased to exist and that B.J. had changed her address. The court invited the applicant’s counsel to inform it within thirty days whether MJB had in fact ceased to exist and of the correct address of B.J.

On 7 December 1995 the applicant’s counsel informed the court of the defendants’ addresses.

The next hearing, on 14 February 1996, was also adjourned due to the defendants’ absence for the same reasons as before, that is that MJB had ceased to exist and that B.J. had changed address. The court decided to look into the criminal case file no. KO-1574/93 in the same court, where criminal proceedings had been instituted against B.J., in order to obtain her proper address. Through that the court found her address.

By order of 11 September 1996 the applicant’s counsel was requested to furnish the court with a certificate from the registry of the Zagreb Commercial Court regarding the legal status of MJB.

On 20 September 1996 the applicant’s counsel submitted the requested document.

The next hearing, scheduled for 7 November 1997, was adjourned due to the defendants’ absence. The documents indicate that they had not received the notice of the hearing date.

The next hearing, scheduled for 26 January 1998, was adjourned for the same reason. The court invited the applicant’s counsel to submit B.J.’s correct address within sixty days.

On 6 February 1998 the applicant’s counsel informed the court that in the police registry B.J.’s address was the same as before. He proposed that a legal representative be appointed for B.J.

On 13 February 1998 the court ordered the applicant’s counsel to request the Social Welfare Centre to appoint a legal representative for B.J.

On 2 April 1998 the applicant’s counsel informed the court that the Zagreb Social Welfare Centre had, by its decision of 26 March 1998, appointed a legal representative for B.J.

According to the Government, during the next hearing, on 2 July 1998, the court issued a default judgment (presuda zbog izostanka) against B.J. The available documents show that MJB had ceased to exist.

On 22 July 1998 the court sent a letter to the Zagreb Commercial Court asking for a certificate regarding the legal status of MJB. On 24 September 1998 the court received a letter from the Zagreb Commercial Court with a certificate that wrongly contained information about another firm, instead of MJB.

On 13 April 2000 the court again sent a letter to the Zagreb Commercial Court asking whether MJB still existed. On the same day the court also requested the applicant’s counsel to submit the same information. It appears that the case is still pending before the Zagreb Municipal Court.

The relevant part of the Constitutional Act on the Constitutional Court (“the Constitutional Court Act” – Ustavni zakon o Ustavnom sudu), which came into force on 24 September 1999, reads as follows:

“The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party’s constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.”


Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicants, Ms Marie-Jeanne Boicescu, Mr Vlad Boicescu and Mr Şerban Ion Boicescu are Romanian nationals who were born in 1937, 1945 and 1953, respectively, in Craiova and live in Bucharest. They were represented before the Court by Mr Dan Mihai, a lawyer practising in Bucharest.

On unspecified dates the applicants filed two administrative applications with the Dolj County Commission for the Implementation of Law No. 112 of 1995 (the Commission) seeking the restitution in natura of the immovable property located at no. 82 Unirii St. in Craiova and nationalised by the State on the basis of the provisions of Law-Decree No. 92 of 1950.

By two decisions of 20 March and 8 May 1997 the Commission rejected the applicants' claim seeking the restitution in natura of the immovable property, on the ground that it was occupied by tenants, and acknowledged their right to compensation under the procedure provided for by Law No. 112 of 1995.

On 29 July 1997 the applicants brought an action against the Commission seeking the recovery of possession of the claimed immovable property.

On 8 January 1998 the Commission valued the immovable property to be worth 412,041,096 lei (ROL), capped the amount in accordance with Article 13 § 2 of Law No. 112 of 1995 and awarded the applicants the total sum of ROL 170,458,080 in compensation.

By a decision of 28 October 1998 the Craiova District Court rejected the applicants' action seeking the recovery of possession of the claimed immovable property. It held that by pursuing the procedure provided for by Law No. 112 of 1995 the applicants had acknowledged that the immovable property had been nationalised legally by the State. Therefore, they could no longer bring court proceedings seeking the recovery of possession of their property, as the legal bases of the two sets of proceedings were different and irreconcilable. The applicants appealed the decision.

By a decision of 20 April 2000 the Dolj County Court allowed the applicants' appeal and quashed the decision of 28 October 1998 on the ground that the claimed immovable property had been nationalised illegally by the State. The court also ordered the restitution in natura of the immovable property to the applicants. The Commission appealed the decision.

By a final decision of 10 November 2000 the Craiova Court of Appeal allowed the Commission's appeal (recurs) and upheld the decision of 28 October 1998 on the ground that the administrative decisions acknowledging the lawfulness of the nationalisation had not been contested by the applicants, the said administrative decisions remained final and therefore the applicants could no longer institute proceedings seeking the recovery of possession of the claimed immovable property.

In a letter of 12 September 2001 the applicants informed the Court that they refused to collect the compensation awarded to them on the basis of Law No. 112 of 1995 on the ground that the compensation awarded did not reflect the market value of the property.

There is no evidence in the file that the applicants filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws (Laws Nos. 10 of 2001, 247 of 2005 and 1 of 2009) seeking restitution in natura or compensation equivalent to the market value of the claimed immovable property.

In a letter of 10 February 2010, delivered to the applicants on 15 February 2010, they were asked to inform the Court if they had filed administrative applications or instituted court proceedings under the procedure provided for by the restitution laws. The letter remains unanswered to date.

a) The relevant domestic legal provisions concerning excerpts from Law Decree No. 92/1950 regulating the nationalisation of immovable property and excerpts from Law No. 112/1995 regulating the legal status of immovable property nationalised for apartment building use are summarised in Constantinescu v. Romania ((dec.), no. 61767/00, 14 September 2004).

b) The relevant provisions of Law No. 10/2001 of 14 February 2001 regulating the legal status of immovable property unlawfully nationalised by the State between 6 March 1945 and 22 December 1989, as it was amended by Law No. 247/2005, are summarised in Halmagiu and Belu v. Romania (no. 10012/03, §§ 18-20, 3 June 2008).

c) The relevant provisions of Law No. 1/2009 of 30 January 2009 amending Law No. 10/2001 regulating the legal status of immovable property unlawfully nationalised by the State between 6 March 1945 and 22 December 1989, which entered force on 6 February 2009, read as follows:

“(1). Individuals who were compensated under the procedure provided for by the provisions of Law No. 112 of 1995, (...), could claim the restitution in natura of the claimed immovable property insofar as the property had not been sold by the time of the entry into force of the law and insofar as they had returned the amount received as compensation, (...).

(2). Where the immovable property was sold in compliance with the provisions of Law No. 112 of 1995, (...), the entitled individuals have a right to equivalent compensatory measures which reflect the market value of the immovable property (...). Where the entitled individuals were awarded compensation on the basis of the procedure provided for by Law No. 112 of 1995, (...), they have a right to be awarded the difference in value between the sums they had cashed in and the market value of the immovable property (...).”


The applicant, Aminat Madarovna Elsanova, is a Russian national, who was born in 1955. She currently lives in Samashki, Achkhoy-Martan District, Chechnya. Before March 2000 she used to live in Grozny. She is represented before the Court by William Bowring and Kirill Koroteyev, lawyers of the Human Rights Centre Memorial (Moscow) and the European Human Rights Advocacy Centre - EHRAC (London). The respondent Government are represented by Mr P.A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case are partially disputed by the parties. They may be summarised as follows.

In summer 1999 the applicant, who used to live in Grozny, set up a farm in the village of Nizhaloy, Shatoy District. In April 1997 – July 1999 she, together with her sister Marem, bought 100 cows at a collective farm in Dagestan, which she brought to Nizhaloy. The applicant submits that in Nizhaloy she owned a house of two rooms and a summer and a winter cow-shed. She also owned a Belarus tractor, a caterpillar tractor and a Niva car.

The applicant’s brother Mayrbek Elsanov and neighbour G. permanently lived in Nizhaloy with their families and took care of the applicant’s cattle, for which she paid them a monthly salary.

In September 1999 hostilities started in Chechnya between the Russian military and the armed groups of the Chechen rebel fighters. Grozny and other towns and villages came under attack from the Russian military forces, which were trying to regain control over the Republic.

In March 2000 the applicant left Grozny because of the hostilities and went to Nizhaloy.

The applicant submits that on 16 March 2000 the village unexpectedly came under attack from the air. As a result of a blast the applicant’s brother Mayrbek Elsanov received a splinter wound in the back and bled heavily. The applicant’s niece Laura Shakhgiriyeva, aged four, was also wounded by a blast. They both died within a few hours without receiving medical help. Their neighbour G. was also killed by a blast on the same day.

The strikes continued all day long and the applicant and her family members had to hide in a cave. During the night the applicant and her relatives brought the bodies of her brother and niece to the family cemetery and hastily buried them.

According to the applicant, the attack on the village continued until 26 March 2000. All her property and her father’s house, situated nearby, were destroyed. Her cattle were killed and the vehicles owned by her were destroyed.

When the attack was over the applicant and her relatives walked from their village to Mekhety. From there the applicant arrived at the village of Samashki, Achkhoy-Martan District, where she currently resides.

In October 2000 the Civil Registration office of the Shatoy District issued death certificates in respect of Laura Shakhgiriyeva - born on 12 January 1996, died on 16 May 2000 in Nizhaloy (the applicant submits that there was a mistake in the recorded date of death) - and in respect of Mayrbek Elsanov - born on 27 October 1963, died on 16 March 2000 in Nizhaloy.

On 11 April 2001 the military commissariat of the Achkhoy-Martan District confirmed that, for pension purposes, the applicant’s brother Mayrbek Elsanov had been taken off the military draft register as of April 2000 because of his death.

The applicant submits that she applied to the prosecutor’s office and to the court of the Shatoy district on unspecified dates in 2001 and 2002. The applicant is not aware of the results. She submits that an officer at the prosecutor’s service told her to stop complaining or she would “disappear”. At some date a group of soldiers on armoured personnel carriers (APC) came to her house, produced a copy of her application to the Shatoy District Court and tore it up. They threatened her with revenge if she continued to complain. The applicant did not pursue any domestic remedies afterwards, fearing for her life.

The Government submit in their Memorandum of 1 September 2004 that the information contained in the applicant’s complaint, namely the attack on Nizhaloy, the death and wounding of its residents, including the applicant’s relatives, and the destruction of her property was not brought to the attention of the competent authorities. There is no record of her alleged complaints to the prosecutor’s office or to the court. Following the communication of the complaint the local prosecutor’s office has been carrying out a verification of the complaints.

The Government further state that the courts in Chechnya started functioning in November 2000. There is no record of the applicant’s application to any district court in Chechnya. On 3 August 2004 the applicant was questioned by a judge of a district court and stated that she had never applied to a court with a complaint.

The applicant submits that as a result of the sustained shock she became ill and was operated on. In 2003 she was classified as disabled due to her illness.

The applicant submitted the following documents to support her claims.

First, she submitted two application forms: a brief one dated 27 April 2000, and a more detailed one dated 7 January 2004. In her application form of 27 April 2000 the applicant alleged a violation of Article 1 of Protocol No. 1 concerning the damage to her property and of Article 13 and did not mention the death of her relatives. Her complaints under Articles 2, 3 and 8 of the Convention are set out in the second application form.

The applicant submitted her own statements of facts, dated December 2003 and January 2004. She also submitted a statement by her sister Marem Elsanova, who was not herself a witness of the events in Nizhaloy. The applicant also submitted a statement by Raisa K., who was in Nizhaloy on 16 March 2000, which corroborated the applicant’s account. The statement does not indicate the witness’s address or identity document. It is dated December 2003.

The applicant submitted medical documents indicating that in 2001 she underwent an operation for cancer and that in 2003 she received post-operational treatment.

As a proof of her ownership of the property in Nizhaloy and its destruction the applicant submitted a letter issued in March 2001 by an enterprise in Dagestan which stated that in the period April 1997 – July 1999 the applicant had purchased there a hundred head of cattle for the sum of roubles (RUR) 97,000.

In March 2001 the administration of the village of Samashki issued a note to confirm that in the period 1997 – 2000 the applicant had regularly travelled to the Shatoy District to take care of the cattle and her farm there, which was destroyed in March 2000.

The Government submitted a letter from the Chechnya Supreme Court which stated that the applicant had never applied to a court in Chechnya with a claim for compensation by way of damages.

They also submitted a copy of the applicant’s written explanations addressed to the chairman of the Achkhoy-Martan District Court, dated August 2004 and collected by a judge of that court. The applicant stated that on 19-26 March 2000 she had been subjected to an air attack in Nizhaloy, Shatoy District. As a result of the attack the applicant’s house and farm, one hundred cows, two tractors and a “Niva” car were destroyed. Eight persons had been killed as a result of the attack. The applicant further stated that she had applied to the Shatoy District Prosecutor’s Office which had failed to react. The applicant had not applied to the law-enforcement bodies in the Achkhoy-Martan district, because they were not functionning in early 2000. In June 2000 the applicant talked to a representative of the NGO Memorial and decided to apply to the international court.


Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant, who was born in 1980, currently resides in Switzerland.

On 28 March 1998 the applicant was taken into police custody on suspicion of membership of an illegal organisation. On 2 April 1998 he was placed in detention on remand.

On 15 April 1998 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, charging him under Articles 168 (2), 497 (2), 522, 55 (3), 33 and 40 of the former Criminal Code with membership of an illegal organisation and armed robbery.

On 28 March 2001 the Istanbul State Security Court convicted the applicant under Articles 168 (2) and 497 (2) of the former Criminal Code, and sentenced him to eight years and four months' imprisonment for the former offence and to eleven years and eight months' imprisonment for the latter offence. The State Security Court further stated that the provisions of Law no. 4616, which governed conditional release, the suspension of proceedings and the execution of sentences in respect of certain offences committed before 23 April 1999, had to be taken into account in the execution of the sentence in relation to the offence under Article 497 (2).

On an unspecified date the applicant appealed against the judgment of the Istanbul State Security Court. The public prosecutor did not lodge an appeal.

On 29 April 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court, finding that the classification of the applicant's offence had been erroneous. The Court of Cassation further held that the applicant's acquired rights in his former conviction by the decision dated 28 March 2001 had to be safeguarded in the new judgment which would be rendered by the Istanbul State Security Court.

The applicant was consequently tried afresh before the Istanbul State Security Court. On 24 January 2003 the Istanbul State Security Court convicted the applicant under Article 146 (1) of the former Criminal Code for attempting to undermine the constitutional order and sentenced him to sixteen years and eight months' imprisonment. The State Security Court stated in its judgment that the applicant's acquired rights had been observed because in the first judgment the applicant had been sentenced to a total of twenty years' imprisonment, whereas in the new judgment the sentence was reduced.

On 22 October 2003 the applicant appealed against this judgment arguing, inter alia, that his acquired rights had not been protected. He maintained that, although the sentence imposed by the Istanbul State Security Court in its second judgment had been lower than that originally imposed, under the latter he would have been conditionally released pursuant to Law no. 4616 after ten years, thus actually serving a shorter sentence.

On 2 December 2003 the Court of Cassation upheld the reasoning in the judgment of the Istanbul State Security Court, and dismissed the appeal.

Following the entry into force of the new Criminal Code on 1 June 2005, the Istanbul Assize Court reopened the proceedings against the applicant in order to review his sentence, pursuant to the provisions of the new Criminal Code. As an interim measure, on 11 October 2005 the applicant was conditionally released pending the outcome of the proceedings. On 22 December 2006 the Istanbul Assize Court found that the provisions of the former criminal code were more favourable to the applicant and therefore decided not to apply the provisions of the new Criminal Code. On 13 November 2007 the Court of Cassation rejected the applicant's appeal. In the meantime, following his release, the applicant fled to Switzerland, where he currently resides.

Section 1 (2) of Law no. 4616, stipulates, inter alia, that persons who were serving their prison sentences following a conviction in respect of crimes committed before 23 April 1999 were entitled to a ten year reduction in their total sentence under the relevant execution regulations.

Section 1 (5) of this Law states that the provisions of Article 1 are not applicable to, inter alia, Articles 146 and 168 of the former Criminal Code.

Article 326 (4) of the former Code of Criminal Procedure stipulates that, upon an appeal lodged solely by the accused, or by the prosecutor for the benefit of the accused, the new judgment may not impose a sentence which is more severe than that which was imposed originally.