Violation of Art. 3 (procedural aspect);Violation of Art. 8;No violation of Art. 8;No violation of Art. 14+6;Non-pecuniary damage - award

Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicants are mother and son. They were born in 1965 and 1994 respectively and live in Saint-Priest, France.

In a letter bearing the Bucharest Post Office’s stamp of 5 November 2004 and received by the Court on 17 November 2004, Ms M. complained, inter alia, of violations of her and her son’s rights under Articles 3 and 8 of the Convention in respect of criminal proceedings which ended by a final judgment of 18 March 2004.

By letter of 19 December 2005 the Court asked Ms M. to state clearly whether the complaint under Article 3 of the Convention was also raised on her behalf.

By letter of 1 March 2006 Ms M. confirmed the receipt of the Court’s letter of 19 December 2005 and, without referring to any particular articles of the Convention, stated that she complained only on her son’s behalf.

Ms M. and D.C. were married on 27 November 1991. A.C., the couple’s only child, was born on 7 August 1994.

On 16 December 1994, Ms M. filed for divorce from D.C., citing her husband’s volatile and violent nature as the chief ground for divorce. She also asked to be granted full custody of their son. By a judgment of 10 February 1995, the Bucharest District Court allowed the claims and granted Ms M. full custody of the second applicant. D.C. was obliged to pay monthly maintenance until the second applicant became an adult.

Following an application by D.C. for custody of the second applicant to be reconsidered and granted to him, on 21 January 1998 the Bucharest District Court dismissed the claim. The judgment was upheld on appeal, the Bucharest County Court holding on 18 September 1998 that the father had proved:

“to have had and to still have a violent nature and an uncivilised attitude, provoking situations when visiting his child which are likely to negatively influence the child’s physical and psychological development.”

D.C. also applied to the courts for contact rights with the second applicant on the first and third weekends of each month from 10 a.m. on Saturday until 7 p.m. on Sunday, as well as for thirty days during his annual leave. The request was granted on 8 June 1998 by the Bucharest District Court, having in mind the best interests of the child and the fact that his mother “did not oppose the request”. Ms M. lodged an appeal, claiming that she had not been lawfully summoned and therefore that she had not had knowledge of the hearing. On an unspecified date, her appeal was dismissed for a procedural error; the judgment thus became final.

Ms M. contested the enforcement of this judgment, essentially relying on the existence of criminal complaints lodged by her against D.C., accusing him of having molested the child (see section B below). The Bucharest District Court dismissed her application on 29 September 2000. She appealed against this judgment, and on 7 May 2001 the proceedings were stayed until a final decision was given in the proceedings concerning the limitation of D.C.’s visiting rights (described below in section C).

On 25 March 2004, D.C. asked for the stay to be lifted. The appeal was dismissed on 26 April 2004, as the main objections to the enforcement formulated by Ms M. had been clarified within the concluded criminal and civil proceedings respectively (described below in sections B and C).

Ms M. appealed on points of law. The appeal was dismissed by the Bucharest Court of Appeal on 1 June 2005. The court held that her argument that the enforcement of the disputed judgment would affect the child’s fundamental rights was unfounded, relying mainly on the judgment of 18 March 2004 which had confirmed the prosecutor’s decision not to indict D.C..

On 11 August 1998, at Ms M.’s request, the Child Protection Commission for the Third District, Bucharest decided that the second applicant should be temporarily placed in a state institution,

“as it had been proved that the child’s development, security and moral integrity were being endangered by his biological father.”

The child was placed in Placement Centre no. 7, Third District, Bucharest.

The above-mentioned decision was amended on 8 June 1999, following a reassessment of the case file that the Commission made of its own motion. The Commission considered that the protection measures already undertaken ought to be maintained as, according to information provided by the police, the child had been sexually molested by his father, and consequently a criminal investigation was under way. Both parents were allowed to visit the child once a week, but neither of them had the right to take the child to their home from Placement Centre no. 1, to which he had been transferred.

On 27 October 1998, Ms M. lodged a complaint, requesting that the Bucharest Third District Child Protection Commission institute civil proceedings to have D.C. stripped of his parental rights. The request was rejected by the Commission on 25 November 1998, as “the necessary legal conditions for such proceedings to be instituted [had] not been fulfilled”.

On 21 September 1999 Ms M. asked the Commission to revoke the placement measure and to order the second applicant’s reintegration into his family. By a decision of 5 October 1999, the Commission allowed the request and ordered that the second applicant should henceforth reside with his mother.

On an unspecified date in 1999 Ms M. lodged a civil action, seeking to obtain an increase in the monthly maintenance paid by D.C., as both the second applicant’s needs and D.C.’s income had increased. Ms M. also requested that D.C.’s contact rights should be limited so that the second applicant would only spend time with his father in her presence. In support of her latter request, the first applicant alleged that “[his] father was a real danger to the health and physical integrity of the child”, that D.C.’s verbal and non-verbal behaviour was highly aggressive, and that she had already lodged a criminal complaint against D.C., accusing him of sexually molesting the second applicant. She asserted that due to D.C.’s general behaviour she had been forced to temporarily ask for the second applicant to be placed in a state institution, where he would be protected from any possible aggression from his father.

An opinion on the relationship between the second applicant and his father given by E.M., Head of the Social Services Department of the Third District’s municipal administration, was added to the case file. E.M. stated that she had known the child from the time when he had been temporarily placed in Placement Centre no. 1, as she had been the manager of the centre at the time. Her remarks are essentially focused on the positive and natural link between D.C. and his child, who:

“has an explosion of joy when seeing his father [...]; after the mother’s visits to the centre, the child became irritable, disobedient, using reprehensible words in connection to his father [...] the audio tape attesting to the so-called sexual abuse is proof of answers being induced from the child, the mother having made a significant contribution regarding the child’s attitude towards his father. Only when [his] father appeared did the child forget whatever his mother had induced him to feel (due to the joy he felt when meeting his father), which is clear proof that D.C. had not attacked the child, not only sexually, but not even verbally or in any other way.”

On 1 June 2000 the Bucharest District Court allowed the request with respect to the child maintenance increase; the request for limitation of contact rights was dismissed, the court taking into account the fact that the prosecutor had decided on 3 March 2000 not to institute criminal proceedings against D.C. and to close the investigation (see paragraph 39, below). An appeal by Ms M. was dismissed on 11 December 2000 as timebarred. A further appeal on points of law was also dismissed on 27 April 2001 by the Bucharest Court of Appeal.

On 21 June 2001, D.C. reapplied for full custody of the second applicant. He stated that he had not been allowed to visit his son, and that even though the first applicant had lodged a criminal complaint against him, the prosecutor had issued a decision not to indict him for sexually abusing the child. At the same time, D.C. asserted that the first applicant was a member of the Jehovah’s Witnesses, and that therefore her influence on the child endangered his normal development. Ms M. replied that the prosecutor’s decision not to press charges against D.C. had been confirmed and a criminal investigation was still pending. The action was dismissed on 20 December 2001 by the Bucharest District Court. The court held that the reasons relied upon by D.C. with respect to the first applicant’s religion were not to be taken into consideration. It also considered that the reasons which substantiated the court’s previous decision to grant full custody to the first applicant had not changed in any way. The decision became final.

On 26 July 2002, D.C. lodged a request with the Bucharest Third District Child Protection Commission, asking it to order the urgent placement of the second applicant in a state institution. He alleged that he did not have any information regarding the current home of the applicants, as they had continually and frequently changed their place of residence, and consequently no information on the second applicant’s well-being was available to him. The request was denied on 17 September 2002, as it had not been proved that the second applicant was in any danger.

On 30 July 2002, by means of interlocutory proceedings, D.C. sought full custody of the second applicant, giving as a reason that “it is dangerous for the child to stay close to his mother, as even though she is a caring mother, she still has a bad influence on the minor’s later development”. He also cited the fact that in 1998 the first applicant had lodged a criminal complaint, accusing him of having molested the second applicant. D.C. alleged that ever since that time he had constantly been prevented from visiting his son, who in any case had radically changed his whole attitude towards him, refusing contact.

The request was dismissed as inadmissible on 30 October 2002, the Bucharest District Court holding that the parties’ obvious and serious conflicts could not be settled within such expeditious proceedings. The judgment became final on 13 December 2002, the Bucharest District Court ruling an appeal on points of law brought by D.C. inadmissible.

On 14 July 1998, Ms M. lodged a criminal complaint against D.C., alleging that “the child had related to her that on 4 July 1998, when visiting his father, the latter had attempted to commit acts of sexual perversion with him”. The second applicant was three years and eleven months old at the time.

A medical certificate issued on 6 July 1998 by the Institute of Forensic Medicine attested to the following:

“... the anal mucous membrane reveals a bleeding longitudinal fissure of 1.5 by 0.1 cm. [...] The child, A.C., has a traumatic lesion in the anal area, which could have been produced in the circumstances of a sexual assault. Healing requires two to three days of medical care.”

No civil claims were lodged.

According to Ms M., a second criminal complaint was lodged on 10 August 1998 regarding similar sexual acts perpetrated between 2 and 9 August 1998, when the second applicant was visiting his father. However, a copy of this complaint was not submitted to the Court.

The first applicant, D.C. and other witnesses were heard. Two witnesses, B.G. and S.F., informed the authorities, inter alia, that they had been told by the second applicant that he had been sexually assaulted by his father. Moreover, they had witnessed D.C.’s violent behaviour towards Ms M. and had seen the minor undressing and touching other children in an inappropriate manner. However, another witness, C.A., stated that she had never heard the second applicant complaining of sexual assault. On 26 August 1998 a medical report was produced by the Institute of Forensic Medicine, attesting as follows:

“A.C. has recent and old lesions in the anal area, which could be the result of the intromission of a solid object or a consequence of anal sexual contact. It is possible that the lesions occurred on 5-7 August 1998. Two to three days of medical care are required for healing.”

On 20 July 1998 the minor was subjected to a psychological examination, which concluded as follows:

“... the results of the projective tests emphasise the possibility that A.C., aged three years and eleven months, could have been sexually abused.”

A forensic report concerning simulated behaviour was produced on 23 November 1998, both Ms M. and D.C. being subjected to a test and asked various questions. According to the conclusions of the report, indicators of dissimulation were detected when Ms M. answered the following relevant questions (three out of the total of ten asked): whether she had set up the sexual assault on the child; whether she had been taught by somebody else to frame someone for the sexual assault perpetrated on the child; whether she had obliged or urged somebody to introduce an object into her child’s anus.

At the same time, the conclusions of the report showed that D.C.’s attitude seemed to be sincere when he answered ten questions, the relevant ones being: whether he had had anal sexual intercourse with his child; whether he had molested the minor between 2 and 8 August 1998 or on 4 July 1998; and whether he had ever thought about having unusual sexual relations.

Upon a request from the police, a new medical report was produced on 22 March 1999 by the same Institute of Forensic Medicine, concluding as follows:

“We reassert our opinion that the child, A.C., displayed a traumatic lesion in the anal region, which could have occurred in the circumstances of a sexual assault, for which he needed two to three days of medical care for healing. The lesion could have been one to two days old at the time of examination, which means that it could have been produced on 4 July 1998.”

On 8 June 1999, Bucharest Police Station no. 15, investigating the case, sent an official note to the Child Protection Department for the Third District, Bucharest, asking them to ensure the permanent safety of the child until the investigation was terminated, in so far as neither of the parents nor any other person was to be allowed to take the child from the Placement Centre, because:

“... the evidence already adduced in the case shows that the child had been sexually abused.”

On 15 June 1999 the second applicant was heard by the police in the presence of his mother, a psychologist and a lawyer who had been automatically appointed. From the second applicant’s answers to the questions asked by the police, it emerged that:

“He likes to live with his mother and with his father [...] and that his father had put a hose into his bottom.”

On 3 March 2000, the prosecutor decided not to indict D.C. for the crime proscribed by Article 200 §§ 2 and 3 of the Romanian Criminal Code (sexual intercourse with a person of the same sex). As there were indications of criminal acts of a sexual nature having been committed, the case was split in so far as a further investigation was to be undertaken with a view to identifying the perpetrator.

This decision, challenged by Ms M., was confirmed by the hierarchically superior Prosecutor’s Office on 22 May 2000.

The prosecutor held that some of the witness statements were hearsay, as most of the witnesses had stated what they had heard and found out from the second applicant himself, who was around four at the time, being therefore unable to accurately depict reality.

Considering that the forensic report had proved that Ms M.’s answers indicated distortions typical of dissimulation, whereas no such indicators had been revealed from the answers given by D.C., the recommended conclusion was to consider that the first applicant was dissimulating:

“... due to the existing conflicts as regards the child’s custody and due to the applicant’s selfish affection for the child.”

Ms M. again contested this decision. A psychological report completed on 26 June 2000 and issued by M.M., a neuropsychiatrist, was submitted to the file by Ms M. It showed that the child:

“... had a permanent state of anxiety in connection with his own body [...] phobia and feelings of culpability in connection with the human body were revealed [...] we conclude that the child had been subjected to long and intense stress, stress connected with physical handling of a sexual nature – possible repeated paternal sexual abuse [...] diagnosis: reactive state (sexually abused by the father).”

On 21 September 2000, the hierarchically superior prosecutor quashed the decision and proposed that further investigation of the case should be carried out with respect to acts under Article 200 §§ 2 and 3 of the Romanian Criminal Code, consequently remitting the file to the Bucharest Prosecutor’s Office.

The decision was taken having the following in mind:

“... the medical report’s conclusions are corroborated by those of the psychological examinations of the child, who was shown to have exhibited behaviour typical of those who have been subjected to sexual abuse”;

and that

“... there is no indication of the existence of any other person than the father, D.C., who could have committed the impugned acts.”

After the remittal of the case, no other new evidence was produced or adduced to the file. On 16 July 2003, the prosecutor again decided not to press charges against D.C. in respect of the acts punishable by the Romanian Criminal Code under Article 200 §§ 2 and 3 and Article 201 (acts of sexual perversion). The decision was founded on the evidence already existing in the file (the medical certificate of 6 July 1998, the medical report of 26 August 1998, statements gathered in the case, the parties’ arguments and the forensic report on simulated behaviour).

On 9 September 2003 Ms M. contested this decision, mainly arguing that in spite of the indications given by the hierarchically superior prosecutor on 21 September 2000 that the investigation should continue, no new evidence had been produced in the two years that had since passed and therefore that the decision was unsubstantiated.

Her objection was sent from the hierarchically superior prosecutor to the Bucharest District Court. The Prosecutor’s Office raised a plea of inadmissibility of such an objection, as the Romanian Code of Criminal Procedure did not expressly provide for the possibility of parties contesting a prosecutor’s decision not to press charges before the courts.

The first applicant replied by submitting jurisprudential arguments, including a decision of the Romanian Constitutional Court issued on 2 December 1997 stating that not providing the parties with such an opportunity was unconstitutional. The first applicant also relied upon the adoption of a new Law (no. 281/2003) amending old regulations and providing the parties with the possibility of appealing against such decisions to the courts within one year of its entering into force (on 1 July 2003).

On 13 October 2003, the court dismissed Ms M.’s appeal. In its judgment, the court made reference to the decision of 16 April 2002 (see C below) and to the reasoning therein. At the same time, it held as follows:

“Because no matter how many witnesses had been heard in the case it could not have been established for certain whether the truth lay with the applicant or with D.C., it was necessary to test the two with a polygraph. Following the test, it was established that the applicant was dissimulating, whereas D.C. proved to have been sincere when answering the questions asked.”

When referring to the second applicant’s statements given on 15 June 1999, the court considered that these were:

“... a faithful reflection of the mother’s opinions on the matter, the child’s assertions being very structured, similar to those made by an adult, although the child was five years old at the time. The child tried to expose his mother’s thoughts as accurately as possible but, at the same time, he attempted to express his own feelings when he pointed out that he liked to live with his father as well.”

Consequently, the court held that the existing evidence could not be regarded as reliable enough to indict D.C. for the alleged crimes, in view of the conclusions of the lie-detector test (considered to be 98% accurate), of all of the reports and of the witnesses’ statements.

The court further emphasised the fact that the second applicant had asserted that his father “had only inserted a hose in his bottom and asked him not to tell his mother anything about it”, which would:

“... constitute at the most a criminal act under Article 180 § 1 of the Criminal Code (hitting or other forms of violence), stating that a criminal case shall be initiated upon the complaint of the person injured.”

The court made no reference to the initiation on its own motion of a criminal investigation for criminal acts under Article 180 § 1 of the Criminal Code.

Ms M. appealed against this judgment. The Bucharest County Court dismissed the appeal and reiterated the reasoning of the lower court quoted above. It held on 18 March 2004 that no evidence in the file had proved that the second applicant had actually been a victim of sexual assault perpetrated by his father and therefore that there was no indication in the file to justify a prosecution being instituted against D.C. for criminal acts punishable under Article 200 §§ 2 and 3 and Article 201 of the Criminal Code.

On 2 May 2001 Ms M. lodged a civil action, seeking to confine D.C. to a contact programme of two visits a month and only in her presence. In support of her claims, she alleged that D.C. had abused his contact rights when, in July and August 1998, upon taking the child to his home, he had molested the child. She revealed that she had lodged a criminal complaint against D.C. in this regard, but that on 3 March 2000 the prosecutor had decided not to indict him. Also, a similar civil action had previously been lodged by her, but her claims had been dismissed on 1 June 2000, the courts’ reasoning relying exclusively on the prosecutor’s decision not to institute criminal proceedings against D.C.

D.C. asserted that ever since his former wife had left him he had had to struggle in the courts in order to be able to see his son, as she had done everything possible to keep him from having any contact with his son. In that respect, he had even had to lodge a criminal complaint against her, as she was not complying with the court order allowing him to see his son. Even though she had never been indicted, she had allegedly received an administrative sanction. After the incidents that had allegedly occurred in the summer of 1998, he had not been allowed to see his son, as the first applicant had continually moved home without informing him.

Mindful of the serious allegations submitted by the parties and what was at stake for the child, the court – at a preliminary stage – considered it necessary for both of the parents to be subjected to a polygraph test and also to undergo psychiatric examination. At the same time, the court found it appropriate to hear the second applicant, even though he was less than eight years old. All discussions with the child were audio taped, and, as is stated in the judgment of the Bucharest District Court given on 16 April 2002, “the transcriptions were to be included in the case file”.

Ms M.’s application was dismissed, the reasoning of the court being essentially the following.

Firstly, the court observed, on the basis of the parties’ past, which had been hostile and which had been partially played out in court, that Ms M.’s intention to limit D.C.’s contact rights had been constant over the years and had started long before the alleged incidents of July and August 1998. As had emerged from all the documents included in the case file, the first applicant had actually intended to completely prevent D.C. from having any contact with his son. The court found that this background showed that her present application had not come as a consequence of the alleged sexual assault, but rather as a predictable consequence of her consistent and strong determination to put an end to any kind of relationship between the second applicant and his father. The following had emerged:

“... the applicant was constantly preoccupied with estranging the child from his father and the real reason for that was not the reason presented by Ms M. in the file, but, without doubt, one that had a religious subtext, as will be subsequently demonstrated.”

Relying on the testimonial evidence and the parties’ statements in the file (including the second applicant’s), the court held that the real reason for the parties’ divorce was in fact the exclusion of D.C. from the Jehovah’s Witnesses Congregation on 13 January 1995:

“... the withdrawal of the defendant from the Jehovah’s Witnesses prompted the applicant to firstly leave him, and then, after having waited for a while for the “lost sheep to rejoin the flock”, to finally divorce.”

In this context,

“... it is irrelevant that the defendant had behaved violently towards the applicant – as the main and essential reason for the parties’ divorce was a religious one, namely the defendant’s withdrawal from the sect of the Jehovah’s Witnesses [...] the violent behaviour of the applicant playing a subsidiary role.”

The court further held that “it is notorious that the members of the Jehovah’s Witnesses sect marry only within the Congregation”, and if, after getting married, one of the members grows distant from the religion, and attempts to bring him back into the fold are unsuccessful, a divorce becomes even more necessary. Consequently, the court considered that Ms M. had sought to take the following into consideration:

“... she has a duty to the child, but also to God, to protect the child from any influence that would jeopardise his soul and his spiritual growth, including influences from his father, if not from his father in the first place [...]

[I]t emerges that it was imperative that the defendant should be prevented from having any contact with the child. Although simple and clear, [the achievement of] this desired goal seemed to be undermined by an insurmountable obstacle – the law, which allows the parent without custody to continue to have personal contact with the child [...]

[T]he applicant, pragmatic, set herself a more modest goal, appreciated as legally possible – the limitation of the father’s visiting rights by a court judgment [issued] in the preliminary stage [of proceedings], followed by a second step, which was to attempt in any way or by any possible stratagem to completely forbid the defendant to enforce the judgment in respect of contact with the child.”

The court further held as follows:

“... based on the evidence produced in the file, it cannot be established with certainty whether the applicant has herself caused the injuries to the child attested in the medical reports, but such a possibility cannot be completely excluded.”

In supporting such a hypothesis, the court considered as follows:

“... it could be presumed that around 1 July 1998, when D.C. went to the applicant, [armed] with an enforceable judgment (of 8 June 1998), intending to see his child, the applicant, taken by surprise, desperate, decided to resort to this extreme solution, telling herself, in order to comfort her own conscience, that a good purpose (saving the soul of the child from “Satan’s claws”) justified the means (the committal of - at least - one criminal act – defamatory denunciation against the defendant).”

A second hypothesis explaining the minor’s injuries was advanced by the court:

“... it is quite possible that the attested injury could have been the consequence of acute constipation on the part of the minor, and that the applicant simply took advantage of the circumstances and lodged a request to deprive the defendant of his parental rights.”

In any case, the court seemed to favour the first hypothesis, relying on the chronology of the events which had allegedly occurred in the summer of 1998, as the first applicant had herself taken the initiative at that time to allow D.C. to take the second applicant to his home for a longer period of time than that established in the judgment regulating his contact rights (a few days). The first applicant’s explanation that she had acted in that way because she had previously been threatened with death by D.C. and because she had been advised by the police to comply with the court order allowing D.C. contact rights was considered insincere.

The court concluded that the first applicant’s initiative of giving the second applicant to his father was part of a bigger plan, arranging the set-up prepared for D.C.

The polygraph test and the psychiatric report regarding the parties, as well as the psychological evaluation of the second applicant’s answers to the court’s questions, were never pursued:

“... after consultation, both the president of the court and the forensic expert reached the conclusion that the applicant could have been one of the few persons who could “defeat” even the polygraph.”

The president of the court consequently decided to try to make the applicant aware of her wrongdoing – in the event that the accusations against D.C. were, indeed, unfounded – and he therefore invited the first applicant and the second applicant to a meeting at the court.

Following the meeting held at an unspecified date in 2002, the applicant, through her lawyer, imposed “some unacceptable and unspeakable conditions” to be fulfilled when performing the polygraph test. As this means of evidence was not, as such, provided for in Romanian procedural legislation, the court “was forced” to conclude that the test could not be administered:

“The court assesses these conditions as being a disguised and diplomatic refusal by the applicant to take the test, and such a refusal leads to the conclusion that it is highly possible that the applicant wrongly accused the defendant, D.C.”

As similar “unreasonable and impossible conditions” were formulated by the first applicant’s lawyer for the evaluation of the second applicant’s previous answers (for instance, the child was to be recorded throughout so that the first applicant could, if necessary, express a point of view), the court felt obliged to acknowledge that the first applicant was resistant to such a means of acquiring evidence, and the evaluation was never pursued.

However, the court had several separate discussions with the second applicant, who, when questioned, stated, inter alia, as follows:

“... his father left the religious organisation before he was even born, because “Satan had grabbed him”,

and that

“... he did not play much with the neighbour’s children, as they were not “witnesses”, and therefore they were bad”.

The court also held that:

“The child asserted that he had been molested by his father, who had threatened to kill him if he revealed anything of the incident to his mother (recorded statement).

The child had indeed stated to the President of the court that he did not wish to see his father.”

The second applicant’s statements were not, however, taken into consideration by the court, as the court was convinced that all of them had in fact been induced by his mother, and did not reveal the child’s real thoughts and wishes:

“... to any minor between the age of four and seven years, a parent or a teacher who is close to the child could easily inculcate any ideas...”

Consequently, the court found:

“... a child will immediately and without reserve accept that a situation has actually occurred as inculcated, even if he himself has no recollection of such a situation.”

Relying on all the evidence and the presumptions drawn from the first applicant’s refusal to allow new evidence (reports) to be collected, the court held as follows:

“... the court knows that the applicant never actually wanted the defendant to be able to see the child, and to this end she went as far as to disobey a previous court order (the judgment of 8 June 1998).

It only remains for the prosecutor to remove any doubt as to this matter (the criminal complaint lodged by the applicant), so that the applicant can then be brought before a court for resisting the enforcement of the judgment of 8 June 1998...

If a psychiatric report had ever been produced, the court would have found out whether the applicant was or was not suffering from a “split personality syndrome” [...] because the applicant leaves the impression of having a double personality, between the two parts of which there is no communication whatsoever...”

Therefore, it is the defendant who seems more entitled to ask that the mother should be deprived of her parental rights.”

Ms M. challenged the above-mentioned decision, essentially alleging that: the court had used and interpreted the second applicant’s allegations, although they had had never been transcribed or attached to the case file; and the court had reasoned with a logic that had nothing to do with the case itself, but rather had been based on the judge’s own apparent obsessions, and which, in any case, did not rely on the documentary evidence adduced (medical reports, psychological evaluations of the child), which was all in support of the truth – that the second applicant had been sexually abused by his father. Documents attesting to the first applicant’s sane state of mind had also been ignored, the court preferring to believe that the first applicant had been suffering from “psychological deviations of a mystical nature”. In summary, the court had obviously disapproved of the applicant and had “treated her like a criminal because she was a member of the Christian sect of Jehovah’s Witnesses”, which organisation was in fact formally recognised in Romanian law.

In its judgment given on 20 December 2002 the court made a fresh assessment of all the evidence and tried to strike a balance between the importance of respecting the presumption of innocence favouring D.C., and the necessity of protecting the child’s best interests.

In doing so, the court held that until the defendant was found guilty by a final decision, he had to be considered innocent, and therefore he could not be denied his right to have a personal relationship with his son.

However, it also determined the following:

“... the principle of the child’s best interests must be kept in mind, especially as long as the possibility still exists that the child was molested by his father, an experience which would undoubtedly mark him psychologically for the rest of his life.”

The court therefore considered that until the criminal proceedings were over, the second applicant would be better protected if his father was only allowed to see him every first and third Sunday of the month, between 10 a.m. and 4 p.m., at the office of the first applicant’s legal representative. The first applicant was not to be present during these visits.

Both the first applicant and D.C. appealed against the decision of 20 December 2002 on points of law. Ms M. criticised the assessment of evidence made by the court, as all documents and testimonial evidence had attested that it was necessary that the first applicant should be present when D.C. spent time with the second applicant.

D.C. contested the judgment, alleging that the solution envisaged by the court had placed him in a position in which it was impossible to establish a personal relationship with his son; that the court had also disregarded the presumption of innocence operating in his favour, particularly given that the prosecutor had decided on 29 July 2003 not to indict him; and that the court had misinterpreted the notion of “best interests of the child”, which implied, per se, the existence of a relationship between a child and his father.

On 4 December 2003 Ms M.’s legal representative adduced documentary evidence to the effect that the prosecutor’s decision not to charge D.C. had been contested before the courts and that a criminal trial was pending.

On 5 February 2004 the Court of Appeal dismissed the appeal on points of law formulated by the first applicant against the Bucharest District Court’s judgment. It allowed D.C.’s appeal, quashed the judgment given on appeal by the Bucharest District Court and dismissed Ms M.’s appeal against the first-instance court’s decision. In doing so, the court held as follows:

“... it did not emerge from any evidence in the file that the father had an aggressive attitude towards the child. It has been shown with certainty that the conflict had ignited between the two parents and in the end it lead to their divorce.

The mother’s bad faith was evident, having in mind the conclusions of the forensic report attesting to dissimulation on her part.

According to the testimonial and expert evidence available in the file, the rare meetings between father and son had been normal and the child was happy every time he met his father.

Moreover, the fact that the father was unable to see his son anymore following the child’s reunification with his mother as a result of the mother’s refusal to accept the enforcement of a final judgment allowing contact rights for the father cannot be ignored either. The applicable legal provisions provide for the right of the divorced parent who has not been entrusted custody of the child to preserve personal ties with the child.”

“... when dismissing the appeal on points of law, the court also had in mind the prosecutor’s decision of 29 July 2003 not to institute criminal proceedings against D.C. and the best interests of the child in respect of preserving personal ties with his father.”

On 5 July 1995, Ms M. lodged a criminal complaint against D.C., accusing him of having hit her, threatened to kill her and slandered her when coming out of a court hearing regarding his contact rights. The evidence produced in the file included two documents attesting that D.C. had already been fined for disturbing the public order at the child’s kindergarten and at their home. The Bucharest District Court held that D.C. had committed the unlawful acts alleged and sentenced him to six months’ imprisonment and fined him, penalties imposed by law. Under the civil head of the first applicant’s claim, D.C. was ordered to pay the appropriate pecuniary and non-pecuniary compensation to the first applicant. The decision was appealed against by D.C. The appeal was dismissed on 4 December 1998 by the Bucharest District Court. The court held that the sanctions imposed had been appropriate, as the victim had been shown to have been living in fear, the defendant’s aggressive behaviour forcing her to repeatedly change her and the second applicant’s domicile.

On 18 December 1996, Ms M.’s sister, R.C., lodged a criminal complaint against D.C., alleging that she had been hit and insulted by him. She submitted a medical certificate attesting to wounds and injuries requiring fourteen to fifteen days to heal. The court found D.C. guilty as charged, as he had “proved to be highly destructive and aggressive, behaving very violently”. D.C. was sentenced to one year of imprisonment and a criminal fine, both penalties being imposed by law. The victim was awarded pecuniary and non-pecuniary damage. An appeal by D.C. was allowed by the Bucharest District Court on 27 January 1999, which sentenced him to three months’ imprisonment and a criminal fine, penalties imposed by law.

Following a criminal complaint lodged by the Jehovah’s Witnesses Congregation on 12 March 1997, D.C. was convicted of criminal damage by the Bucharest District Court and ordered to pay both a criminal fine (amenda penală) and the civil damages claimed by the Congregation. The judgment became final after an appeal lodged by D.C. was dismissed on 18 July 1997.

The relevant provisions with respect to custody rights and family issues are to be found in R.R. v. Romania (I) (dec.), no. 1188/05, 12 February 2008.

Section 97 of the Romanian Family Code provides for the fundamental equality of spouses as regards parental rights and responsibilities and makes it clear that the interests of children are paramount.

The relevant provisions of the Romanian Criminal Code are worded as follows:

“(1) Injuries or any other violent actions which cause physical pain are subject to imprisonment of between one and three months or a fine.

(3) A criminal case shall be initiated upon a complaint by the injured party. In the event that the unlawful act has been committed by a family member, the criminal case may be initiated upon the authorities’ own motion.

(4) Reconciliation by the parties removes criminal responsibility.”

“(1) Sexual intercourse between persons of the same sex, carried out in public or having as its consequence public scandal, is punishable by imprisonment of between one and five years.

(2) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of between two and seven years and prohibition of certain rights.

(3) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing a wish, or which is performed through coercion, is punishable by imprisonment of between three and ten years and prohibition of certain rights.”

“(1) Acts of sexual perversion committed in public shall be punishable by imprisonment under stringent conditions of from one to five years.

(2) Acts of sexual perversion involving a person under the age of fifteen shall be punished by imprisonment under stringent conditions of from three to ten years and the prohibition of certain rights.

(3) The same penalty shall also sanction acts of sexual perversion involving a person aged fifteen to eighteen if the act is committed by a guardian or curator or by a person charged with his or her supervision or care, by a physician, teacher or professor or educator in that role, or if the perpetrator has abused the victim’s confidence or authority or influence over him or her.”


CASE OF URBARSKA OBEC TRENCIANSKE BISKUPICE  v. SLOVAKIA

Preliminary objections dismissed (non-exhaustion of domestic remedies, six-month period);Violation of P1-1 (transfer of ownership of the land and compulsory letting of the land);Just satisfaction reserved

The applicant is a registered association of landowners (pozemkové spoločenstvo). It is a legal person with its registered office in Trenčín. It was entered in the official register with effect from 30 December 1996. Mr K. Rehák, its president, lodged the application on the applicant's behalf.

Under the communist regime in Czechoslovakia owners of land were in most cases obliged to put their land at the disposal of State-owned or cooperative farms. They formally remained owners of the land but in practice had no possibility of availing themselves of the property.

Some of the land in question was, for various reasons, not cultivated by the farms. It was the State policy to promote the use of such land for gardening. For that purpose allotment gardens (záhradkové osady) were established, mainly in the vicinity of urban agglomerations. Individual plots of land were put at the disposal of persons belonging to the Slovakian Union of Allotment and Leisure Gardeners (Slovenský zväz záhradkárov), who were allowed to cultivate the land as a pastime activity for their individual needs.

In the context of Czechoslovakia's transition to a market-oriented economy following the fall of the communist regime, Parliament adopted the Land Ownership Act 1991 (for further details concerning the relevant law and practice see point II below), the purpose of which was to mitigate certain wrongs and to improve the care of agricultural and forest land.

Under the Land Ownership Act 1991 the plots of land on which allotment gardens had been established were not to be restored in natura to the original owner where ownership of the land had passed from the original owners to the State or a legal person. In such cases the original owners were entitled to compensation in kind or in pecuniary form. In this category of cases the legislator gave precedence to legal certainty for the existing users of the property, as the use of land for gardening was considered to be of greater public interest than restoring the land in natura to its original owners.

In the second category of cases, where the original owners maintained their ownership rights, albeit in name only (nuda proprietas), the Land Ownership Act 1991 established conditions enabling the owners to enjoy their property rights to a greater extent. In particular, it provided for the land to be let to the existing users, with a notice period expiring on the date when the temporary right to use the land came to an end. The tenants were, however, entitled to have the lease extended by ten years unless an agreement to the contrary was reached between the parties. The landowners were also entitled to request, within three years of the coming into effect of the 1991 Act, the exchange of their property for a different plot of land owned by the State.

The above approach, permitting the owners to recover full possession of their land after the expiry of the ten years for which the tenants had the right to have the lease extended, was modified with the adoption of Act 64/1997. As a result, owners have only a limited possibility of terminating the lease, mainly on the grounds of the tenants' failure to comply with their obligations. The position of the tenants has been strengthened in that they are entitled to acquire ownership of the land they use for gardening. As to the owners, Act 64/1997 gives them the right to obtain either a different plot of land or pecuniary compensation.

In introducing Act 64/1997 the legislator abandoned the philosophy of giving general priority to the rights of the owners of plots of land on allotment sites and took the position that it was in the general interest that the rights of persons who had been using the land for gardening should prevail.

The land owned by the predecessors of the members of the applicant association was put at the disposal of the agricultural cooperative in Trenčín-Soblahov. The owners' formal title to the land remained unaffected, but they had no possibility of using it in practice.

On 24 November 1980 the cooperative farm let the land, free of charge, to the Trenčín branch of the Slovakian Fruit and Gardening Association (Slovenský ovocinársky a záhradkársky zväz), as the Union of Gardeners was known at the time. The contract was to expire on 31 December 2000 unless the parties reached an agreement on its extension. The tenant was to return the land to the lessor in its original state on termination of the lease.

On 31 March 1982 the authorities approved the establishment of the “Váh” allotment gardens on the land in question, located in an industrial area on the outskirts of the town of Trenčín. The project envisaged the apportionment of 74 individual plots with a surface area of approximately 300 square metres on which garden huts with a surface area of 12 square metres would be built. Re-cultivation of the land and communal facilities such as a road and a parking area, water supply and a fence at the allotment site's boundaries were also planned.

The local branch of the gardening association subsequently concluded separate contracts with its members. Individual plots of land were thereby put at the latter's disposal until 31 December 1999. The gardeners obtained a permit to build huts. Unless the lease contract was extended before 30 June 1999, the huts were to be entirely removed by the gardeners.

In 1995 the present members of the applicant association inherited the title to the land where the Váh allotment gardens had been established.

On 12 May 1997 the applicant association submitted a draft rent contract to a representative of the gardening association. On 21 May 1997 the president of the Váh allotments rejected the proposal as being unacceptable. Reference was made to negotiations about a one-year contract under Act 64/1997 pending a decision on the ownership of the land.

Between 1998 and 2002 the Trenčín municipality charged the applicant 11,260.92 Slovakian korunas (SKK) a year in real property tax in respect of the land used by the gardeners. The tax was based on municipal regulations fixing the tax on gardens at SKK 0.44 per square metre.

The applicant submitted copies of bank statements indicating that the Slovakian Union of Allotment and Leisure Gardeners had paid to it, following the entry into force of Act 64/1997, SKK 8,762.40 as a yearly rent for the use of 29,208 square metres of land. That amount corresponds to SKK 0.3 per square metre.

The applicant association unsuccessfully attempted to recover possession of the land. For that purpose it offered to compensate the gardeners for their existing property attached to the land.

On 22 July 1998 the allotment gardeners initiated proceedings under Act 64/1997 with a view to having the ownership of the land transferred to them.

On 24 September 1999 the Trenčín District Office granted the request to start proceedings under Act 64/1997. The Trenčín Regional Office upheld this decision on 24 November 1999.

On 6 September 2000 the Trenčín Regional Court dismissed an action which the vice-president of the applicant association and several other persons had lodged against the above decision of the Regional Office. The Regional Court found that the statutory requirements for bringing proceedings under sections 7 et seq. of Act 64/1997 had been met.

On 30 November 2001 the District Office in Trenčín made public the consolidation project pursuant to section 13 of Act 64/1997. The president of the applicant association as well as all the other landowners whose address was known were notified of the project and informed that the data contained therein could be challenged within fifteen days.

The letter stated, in particular, that one part of the applicant's land (1.5665 hectares) had been valued at SKK 6.1 per square metre and the other part (1.0046 hectares) at SKK 6.9 per square metre. The major part of the land to be provided to the applicant in compensation was valued at SKK 9 per square metre. The valuation had been carried out in accordance with the relevant administrative regulation. It was based on the classification of the land and its quality at the time when the tenants had acquired the right to use the land.

Some of the allotment gardeners submitted their comments on the project. The authorities approved the project on 11 February 2002.

On 4 June 2002 a decision was issued to carry out the consolidation project. On 6 August 2002 the Regional Office in Trenčín dismissed the appeal lodged by the landowners.

The gardeners subsequently paid the purchase price for the 2.5711 hectares of the applicant's land to the Slovakian Land Fund. On 1 October 2002 the applicant association received 1.4097 hectares of different land in compensation. On 2 December 2002 the District Office in Trenčín approved the manner in which the consolidation project had been implemented. Its decision became final on 14 February 2003. On that day the ownership of the relevant plots of land passed formally to the persons involved.

The zoning plan in respect of the area in which the Váh allotments are situated was approved in 1999. It indicates that the whole area forms part of a “production and services zone”. The zoning plan does not foresee that the land on the allotment site will be used for its current purpose in the future. At present an industrial park is in the process of being established in the vicinity of the allotments. The land within the allotment site has not been included in the project at this stage.

According to information in the land register, at least eight gardeners from the Váh allotments sold their plots to other persons between 2004 and 2006.

On 17 May 2005 the District Land Office in Trenčín, at the Government's request, explained that the Váh allotment gardens in Zlatovce were situated on land which, at the time of their establishment, had been derelict and had served as a municipal dump. The surface area of the applicant's land which fell under Act 64/1997 was 2.5711 hectares. The surface area of the land which the applicant had received in compensation was smaller as it was arable land of higher quality and value. The document further indicated that the value of the applicant's land taken into account in the consolidation proceedings had been the value on the date when the allotments were established. The same regulation relating to the value of real property for administrative purposes had been applied in valuing the substitute land.

In 2005 one of the representatives of the applicant association sold to a company a plot of land in the vicinity of the Váh allotments for SKK 380 per square metre. Prior to the sale, an expert had valued the land at SKK 288. On 10 January 2007, the same company offered to buy different plots belonging to the applicant association in the area for SKK 380 per square metre.

In August 2005, at the Government's request, an expert established the value on 1 October 2002 of both the land on the allotment site and the land which the applicant association had received in compensation. The expert calculated the value for general purposes of the land on the allotment site at SKK 1,166.40 per square metre. The location of the land in an industrial zone increased its value considerably according to the opinion.

The same expert assessed the general value of the other plot of land at SKK 110.16 per square metre. The opinion stated that the substitute plot of land was situated between a motorway and a slip road and that a highvoltage line was erected above it. As a result, multiple restrictions applied to the use of the plot. No construction activity was envisaged in the area.

On 15 December 2006 a different expert, at the Government's request, established the value in 1982 of the applicant's land at SKK 257,100, or approximately SKK 10 per square metre. The expert calculated the value of the land on 14 February 2003 at SKK 7.71 million, that is, approximately SKK 300 per square metre. The gardeners' investments (huts, fence, wells, permanent vegetation, etc.) were tentatively valued at SKK 241 per square metre of land in 2003. The general value of the land including the gardeners' investments was thus SKK 541 per square metre. Finally, the expert assessed the general value in 2003 of the arable land which the applicant association had obtained in compensation at SKK 95 per square metre.

On 21 December 2006, at the applicant's request, a private company assessed the value on 23 May 2002 of the applicant's land on the allotment site at SKK 7.6 million. That sum corresponds to approximately SKK 295 per square metre. In a document dated 16 January 2007, at the applicant's request, the company in question submitted comments on the above opinion of 15 December 2006. The view was expressed that the expert's conclusion was probably not in line with local market prices. Plots of land similar to those used by the gardeners, including gardeners' investments, were most frequently sold for between SKK 250 and 300 per square metre, whereas free plots of land outside allotments were being sold at SKK 350-380 per square metre in that area. The use of the land by gardeners had rather a negative impact on its general value. Land in the area in question could be let out for at least SKK 20 per square metre yearly, its value for general purposes being between SKK 280 and 300 per square metre.

In a letter addressed to the Government's Agent on 14 March 2007, the Institute of Forensic Engineering in Žilina, having examined the comments submitted by the above private company, expressed the view that the expert who had submitted the opinion on 15 December 2006 had proceeded in accordance with the relevant law.

The Land Ownership Act 1991 (Zákon o úprave vlastníckych vzťahov k pôde a inému poľnohospodárskemu majetku) entered into force on 24 June 1991.

Section 19(1) provides that the purpose of land consolidation within specific areas is to establish integral economic units, in accordance with the needs of individual landowners and with their consent, in line with public needs as regards creation of the landscape, the environment and investment activities.

Paragraph 2 of section 22 provides that, as of the entry into force of the Act and unless a different agreement is reached with the owner, the user of the land shall acquire tenancy rights in respect of it.

Under section 22(3), as in force until 25 March 1997, in cases where the land was used by individual gardeners on an allotment site the tenancy could not be terminated before expiry of the period for which the land had been originally put at the disposal of the users. Unless the parties otherwise agreed, the tenants had the right to have the tenancy extended by another ten years. The rent and the purchase price in respect of such land were to be determined on the basis of the classification and quality of the land at the time when the gardeners' right to use it had been established. The tenants had the right of pre-emption should the owner decide to sell the land.

Section 22(4) entitled the owners of land used by allotment gardeners to request, within three years of the entry into force of the Act, exchange of the land for a different plot of land owned by the State. The land to be proposed in exchange had to correspond, as regards both size and quality, to the original land and it was to be situated, where possible, in the same area.

The Land Consolidation Act 1991 (Zákon o pozemkových úpravách, usporiadaní pozemkového vlastníctva, pozemkových úradoch, pozemkovom fonde a o pozemkových spoločenstvách) entered into force on 19 August 1991.

Section 1 provides that land consolidation consists of the rational arrangement of land ownership in a specific area in accordance with the requirements of the protection of the environment and the creation of ecologically stable territorial systems, the functions of agricultural land and economic and production criteria applicable to modern agriculture and forestry.

Under section 2(a), land consolidation pursues the aim, inter alia, of resolving issues and eliminating obstacles related to ownership and possession/occupancy of land which arose as a result of historical developments prior to the entry into force of the Act.

Section 29(1) provides for the possibility of transferring the ownership of land on allotment sites to the tenants, subject to compensation of the landowners.

Act 64/1997 on the use of plots of land in allotment gardens and arrangements as regards their ownership (Zákon o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k nim) governs the use of land within allotment gardens and the transfer of ownership rights in respect of such land. It entered into force on 11 March 1997 and took effect on 26 March 1997. It repealed section 22(3) of the Land Ownership Act 1991.

The government explanatory report of 10 December 1996 which was submitted to Parliament together with the draft Act indicates that some 5,700 hectares of land (approximately 0.22 per cent of all agricultural land in Slovakia) were used by 100,000 individual gardeners on 987 allotment sites at that time. Gardening served as relaxation and provided a partial supply of fruit and vegetables to at least 700,000 town dwellers in Slovakia.

According to the report, there was a public interest in land consolidation in Slovakia. In that context, it was in the general interest to transfer the ownership of land in allotment gardens to the existing tenants as it would provide greater legal certainty for both the gardeners and the owners.

The tenants would obtain ownership of the land which they used and would not risk losing the surplus value which they had added to the land through their work and investments. As to the owners, they were likely to continue to have their rights to avail themselves of the property restricted for a considerable period of time; the allocation of appropriate alternative plots of land to them would resolve that problem. According to the explanatory report, compensation based on the surface area and quality of the land at the time when the owner had lost the possibility of using the land was appropriate. Pecuniary compensation was to be paid in exceptional cases only where the owner either asked for it or refused compensation in natura.

Under section 1(1), the aims of the Act are (i) regulation of the use of allotment land and (ii) definition of the procedure to be followed with a view to land consolidation on allotment sites under a special law (reference is made to section 29(1) of the Land Consolidation Act 1991).

Section 3(1) of Act 64/1997 provides that, unless the owner of the land and the gardeners concluded a tenancy agreement earlier under a special regulation, a tenancy comes into being between them as of the moment when the Act takes effect.

Paragraph 2 of section 3 enumerates the conditions under which the owner of the land is entitled to terminate the tenancy. Such entitlement is limited to cases where the tenant (i) is not using the land with due care, (ii) has constructed a building on the plot without a permit, (iii) has sub-let the land to a third person without the owner's consent or (iv) has failed to pay the rent, despite a prior warning, by 30 August following the year for which the rent is due. An owner who puts an end to a lease is obliged to compensate the tenant for buildings and permanent vegetation as well as for the tenant's share in the equipment jointly used by the gardeners within the allotments (section 3(3)).

Pursuant to section 4(1), the yearly rent for the use of plots of land in allotment gardens is ten per cent of their value as established under section 15(5-7) of Regulation 465/91 of the Ministry of Finance, the minimum sum being SKK 0.3 per square metre. This provision does not affect the amount of rent which owners and tenants may have agreed under a special law at an earlier date.

The main purpose of Act 64/1997 is to permit the transfer of ownership of the land to tenants of allotments where the majority of tenants so request and where the owners have refused to sell the land at a price not below the level of compensation provided for under section 11. In such cases proceedings are brought, in the course of which a preliminary inventory of the land is prepared. The inventory can be challenged within thirty days of its publication. Once the proceedings have started, the competent district office invites the Slovakian Land Fund to select Stateowned plots of lands to be offered as compensation to the owners of the land situated on the allotment sites (sections 7 and 8).

Section 10(1) provides that, prior to approval of such a land consolidation project, the district office involved has to ask the owners to inform it, within 60 days, whether they wish to be allocated a different plot of land of corresponding surface and quality in the same area or to receive financial compensation for their land. Where the allotments are situated in a built-up area of a municipality, the owner can claim a different plot of land in a comparable area. Where the owners do not indicate their preference within 60 days, they are to receive financial compensation (section 10(3)).

Section 11 governs financial compensation for plots of land situated in allotments. It is to be determined on the basis of the quality and nature of the land at the time when the gardeners' right to use it was established. Section 11 further provides for an increase or decrease in compensation according to the location of the land and possible restrictions on its use.

A consolidation project comprises, inter alia, a recapitulation of the proceedings, a list of tenants with indication of the land they use and its value, a list of owners who have requested financial compensation and its amount and a proposal as regards the situation of the substitute land to be provided to the owners (section 12).

Under section 13, the district office must publish the consolidation project under the Act and notify the persons concerned thereof. If no objections are filed, the district office must approve the project. If the district office dismisses objections to the data included in the project, a regional administrative authority must re-examine them. Decisions on approval of land consolidation projects can be reviewed by an administrative court.

Sections 15-17 govern the implementation of land consolidation projects which have been approved. Under section 17(2), the entry in the land register must indicate that the new owner of the land on the allotment site is obliged to use it for the same purpose as previously until a different use has been approved.

Section 17(3) provided that, where the tenants did not pay the compensation due, the ownership of the land was transferred to the Slovakian Land Fund. The latter could not use the land but could let it to the person who used it. This provision ceased to have effect after the Constitutional Court declared it contrary to the Constitution.

Regulation 465/1991 of the Ministry of Finance of 25 October 1991, as amended, governed determination of the price of buildings and plots of land and compensation for the use of land. It concerned the value of property for administrative purposes. It was repealed on 1 January 2004 and replaced by regulations on the determination of the general value of real property.

Section 15(5-7) provides that the price of plots of land registered as arable land, orchards, vineyards, meadows or pastures is to be fixed in accordance with Annex 8 to the Regulation. In the case of meadows and pastures the price is 0.75 per cent of the price indicated in Annex 8. The annex provides for prices per square metre ranging from SKK 12.1 to SKK 0.5 according to the quality and classification of the land.

Pursuant to section 2(1), real property tax is payable by the owner as entered in the land register. Where the owner has let another person use the land, the tenant is obliged to pay the tax where the lease has lasted or is to last five years at least, and subject to the registration of the tenant in the land register.

Thirty-five members of Parliament and the Prosecutor General brought proceedings before the Constitutional Court claiming that several provisions of Act 64/1997 were contrary to the Constitution and Article 1 of Protocol No. 1. In particular, the members of Parliament relied on the Court's case-law (James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 54, and Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, §§ 69 and 73), arguing that there existed no genuine public interest in the interference with the landowners' rights and that the compensation which the landowners were to receive under the relevant provisions of Act 64/1997 was not appropriate.

Both petitions were examined jointly at a plenary meeting of the Constitutional Court.

On 30 May 2001 the Constitutional Court concluded that section 17(3) of Act 64/1997 was contrary to, inter alia, the constitutional protection of ownership rights. It dismissed the remainder of the submissions.

The Constitutional Court noted that the regulation of relations in respect of land used for gardening in allotments mainly concerned, as in the case of restitution laws, the undoing or mitigation of the wrongs which had occurred in the past when the principle of the rule of law had not been respected. The legislator had a certain margin of appreciation when deciding on the relevant issues, provided the constitutional guarantees were upheld.

With regard to the compulsory letting of the land to the gardeners under section 3 of Act 64/1997, it was merely a temporary measure pending the transfer of its ownership to the gardeners in accordance with the provision of that Act. It pursued the aim of providing the users with legal certainty and of ensuring optimal use of the land in question with due regard to the requirements of the landscape and the environment. It was as such in the public interest. The measure was limited in duration and it was not disproportionate as it filled the gap which arose following the quashing of section 22(3) of the Land Ownership Act 1991. Parliament, by obliging the owners to let the land to the gardeners, had not overstepped its margin of appreciation and had struck a fair balance between the general interest and the protection of individuals' rights. Section 3 was therefore not contrary to Article 1 of Protocol No. 1 to the Convention or its constitutional equivalent.

As to the argument that the rent payable under section 4 of Act 64/1997 was disproportionately low, the Constitutional Court held that Article 1 of Protocol No. 1 imposed on the Contracting Parties to the Convention no specific obligations as regards compensation for the use of property in the general interest. There was no appearance that the relevant provision was unconstitutional.

The plaintiffs also argued that the transfer of ownership of the land to the gardeners under sections 7 et seq. of Act 64/1997 was not in the general interest as it restricted the rights of the owners to the benefit of a different group of individuals without any relevant justification.

In the Constitutional Court's view, that transfer of ownership was to be seen in the broader context of land consolidation, the purpose of which was set out in section 19 of the Land Ownership Act 1991 and in section 2(a) of the Land Consolidation Act 1991. Consolidation pursued the aim of setting up integrated land entities in accordance with the needs of individual owners, with their consent, and with due regard to general requirements as regards the creation of the landscape, the environment and investment development. Land consolidation was also justified with a view to adjusting the existing relations between owners and users and eliminating any obstacles which had arisen as a result of past developments. Sections 7 et seq. of Act 64/1997 in no way affected the above general interest in land consolidation.

The plaintiffs further alleged that the compensation for land under section 11 of Act 64/1997 was inappropriate as it was substantially lower than the market value of the land.

The Constitutional Court noted that the owners had the choice between alternative plots of land and financial compensation. The gardeners could not be held liable and they should not be penalised for the fact that the owners had been deprived of the possibility of enjoying their property under a regime which had disregarded democratic principles. Furthermore, the users, by cultivating the land, had substantially increased its value. The Constitutional Court therefore accepted as just the relevant provisions under which compensation to the owners should be based on the value of the property at the time when the gardeners had started using it. The compensation under Act 64/1997 was therefore appropriate and compatible with the requirements of Article 1 of Protocol No. 1.

Finally, the Constitutional Court found that section 17(3) of Act 64/1997 was unconstitutional as there was no justifiable public interest in transferring ownership of land to the State in cases where the user had failed to pay the amount due.

In a separate opinion three judges stated that the compulsory letting under section 3 of Act 64/1997 was unconstitutional and that the compensation payable under section 11 was not appropriate as it was based on the value of the property at the time when the gardeners had acquired the right to use the land.

The dissenting judges expressed the view that the parties to proceedings under Act 64/1997 were in an unequal position. In particular, the applicable law did not permit the administrative authorities or courts called upon to review their decisions to balance the interests of the persons involved, assess whether the transfer of ownership was justified or examine the question whether the compensation provided to the owner was appropriate.

In accordance with its established practice, the Constitutional Court lacks jurisdiction to examine a complaint lodged by natural or legal persons when the determination of the point in issue involves the preliminary question of conflict of legal rules (see, for example, I. ÚS 96/93, decision of 16 November 1993; II. ÚS 806/00, decision of 16 November 2000; II. ÚS 19/2001, decision of 22 March 2001; or IV. ÚS 11/04, decision of 22 January 2004). Such proceedings can be brought only by the persons enumerated in Article 130 § 1 of the Constitution including, inter alia, onefifth of the members of Parliament and the Prosecutor General.


Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicant, Mr Ogtay Rahimov, is an Azerbaijani national who was born in 1951 and lives in Baku. He was represented before the Court by Mrs N. Huseynova, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov.

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

The applicant was the chairman of the Metanet Construction Cooperative (“the Cooperative”).

In 1993 the Cooperative concluded a construction contract with the Education Department of the Nasimi District of Baku (“the Nasimi Education Department”) according to which the Cooperative agreed to repair the heating system in one of the district’s public schools. In 1997 a similar contract was concluded with the Education Department of the Narimanov District of Baku (“the Narimanov Education Department”).

Although the Cooperative had completed its contract obligations, it did not receive any payments under either contract.

The Cooperative, represented by the applicant, lodged an action against the Nasimi Education Department. By a judgment of 27 January 1998 the Economic Court ordered the Nasimi Education Department to pay the Cooperative 34,492,634 Azerbaijani manats (AZM).

Subsequently, on an unspecified date the Economic Court revised its judgment and reduced the awarded amount to AZM 18,321,250.

No appeal was filed against the judgment and it entered into force. In January 1998 the Economic Court issued a writ of execution of the judgment.

Following a number of complaints by the applicant to the enforcement authorities, it appears that on an unspecified date in 2001 the judgment was partially executed and AZM 5,000,000 of the judgment amount paid to the Cooperative. However, despite the applicant’s continuous complaints to the Nasimi District Department of Judicial Observers and Enforcement Officers (Nəsimi rayon Məhkəmə Nəzarətçiləri və Məhkəmə İcraçıları şöbəsi; “the Nasimi Department of Enforcement Officers”), the remainder of the judgment award, amounting to AZM 13,321,250, was not paid.

The Cooperative lodged a new action against the Nasimi Education Department and Nasimi District Finance Department complaining about non-execution of the judgment. On 29 January 2004 the Nasimi District Court ordered the defendants to comply with the judgment of 27 January 1998. On 29 April 2004 the Court of Appeal quashed this decision, finding that the complaints concerning non-enforcement of final judgments should be directed against the Nasimi Department of Enforcement Officers and not the original defendant.

The Cooperative lodged another action asking the court for “indexation” of the judgment amount due to inflation. On 19 May 2004 the Local Economic Court No. 1 granted this request. It found that, taking into account the inflation, the remainder of the amount to be paid by the Nasimi Education Department pursuant to the judgment of 27 January 1998 constituted AZM 17,317,625.

The Cooperative, again represented by the applicant, lodged a separate action against the Narimanov Education Department. By a judgment of 5 January 2000 the Economic Court ordered the Narimanov Education Department to pay the Cooperative AZM 135,505,731.

Although the applicant sent numerous inquiries to the Narimanov District Department of Judicial Observers and Enforcement Officers within the next two years, the judgment was not enforced.

The Cooperative lodged a new action against the Narimanov Education Department and Narimanov District Finance Department complaining about non-execution of the judgment. On 26 March 2004 the Narimanov District Court ordered the defendants to comply with the judgment of 5 January 2000. On 17 August 2004 the Court of Appeal upheld this decision.

The Cooperative lodged another action asking the court for “indexation” of the judgment award due to inflation. On 19 May 2004 the Local Economic Court No. 1 granted this request. It found that, taking into account the inflation, the amount to be paid by the Narimanov Education Department pursuant to the judgment of 5 January 2000 constituted AZM 149,056,304.

According to the Government the delayed execution of the judgments of 27 January 1998 and 5 January 2000 was due to the fact that the Cooperative’s bank account was closed since 1998 for unspecified reasons.

On 19 April 2007 the outstanding amounts awarded by both judgments were transferred to an alternative bank account as directed by the applicant.

By a letter of 19 April 2007 addressed to the Nasimi Department of Enforcement Officers, the applicant acknowledged the receipt of the outstanding amounts and noted that he had no further complaints before the domestic authorities concerning the execution of the judgments of 27 January 1998 and 5 January 2000.

In accordance with the Civil Code of 1 September 2000 a cooperative is a type of commercial company which is a voluntary union of individuals or legal entities established for the purpose of satisfying material and other needs of its members through consolidation of their material contributions (Article 109.1). A cooperative can be established by at least five members (Article 109-1.1).

A “full” member, in essence, enjoys rights similar to those of founders or shareholders of other types of legal entities, including rights to participate in the management and to receive a share of the cooperative’s profits (Articles 109.2 and 109.4 in fine). An “associative” member’s rights to participate in the management are limited (Article 109.3). The cooperative’s profits are distributed to the members in accordance with their shares, as well as the extent of their participation in the function of the cooperative, by way of contributing personal labour or otherwise (Article 110).

The supreme management body of a cooperative is the general meeting of members. Each member has one vote at the general meeting regardless of the size of his or her contribution to the cooperative’s fund (Articles 111.1 and 111.5).

The executive bodies of a cooperative are a management board and/or a chairman. A cooperative’s chairman may be elected only from among the cooperative’s members. The chairman is elected for a specified term at the general meeting of members and has a right to represent the cooperative (Articles 111.1 and 111.10).

Article 69.2 of the Code of Civil Procedure of 1 September 2000 provides that legal entities can be represented before courts by their bodies, acting within the scope of powers conferred on them by law, regulations or articles of incorporation of the legal entity, or by representatives acting on the basis of a power of attorney.


The applicant, Mr Norman Barrow, is a British national who was born in 1930 and lives in Stoke-on-Trent.

His wife died on 11 October 1985.

On 25 June 2000, the applicant applied to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows' benefits were specific to women. The claim was finally rejected by the Social Security Appeal Tribunal on 14 February 2001.

The applicant, Mr Joseph Roberts, is a British national who was born in 1957 and lives in Springfield.

His wife died on 7 October 1999, leaving the applicant and his son, born on 2 March 1984.

On 21 November 2000, the applicant applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed on 27 November 2000 that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows' benefits were specific to women. His appeal was dismissed by the Appeal Tribunal on 27 February 2001.

The applicant, Mr Michael McConville, is a British national who was born in 1934 and lives in Belfast. He is represented before the Court by Campbell McKee, solicitors.

His wife died on 20 June 1985, leaving two children aged 8 and 4. Shortly after her death, the applicant contacted the Department of Health and Social Security by telephone to see whether any widowers' benefits would be available. He was informed that there were no benefits available to him because he was a man.

He subsequently made a claim for widowers' benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of his wife, would have been entitled under the Social Security and Benefits Act 1992 (“the 1992 Act”). He was informed on 5 September 2000 that the Benefits Agency was unable to accept his application as a valid claim because the regulations governing the payment of widows' benefits were specific to women. His appeal to the Social Security Appeal Tribunal was rejected on 9 November 2000.

The applicant, John Kelly, is a British national who was born in 1935 and lives in Cheshire.

His wife died on 23 September 1998. His claim for widow's benefit was rejected by the Department of Health and Social Security on 8 September 2000 on the ground that, as a man, he was not eligible for the benefits. His appeals to the Appeal Service of the Department were refused in April and July 2001 respectively.

The domestic law relevant to these applications is set out in Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV.


The applicants, Mr Oskar Põder, Ms Ene Mölder and Ms Maie Raag, are Estonian nationals who were born in 1910, 1943 and 1947 respectively. On 12 August 2002 Mr Põder died and his daughter, Ms Tiiu Kasvand, pursued the application on his behalf. Ms Kasvand and Ms Raag live in Tallinn. Ms Mölder lives in Tartu. The applicants were represented before the Court by Mr H. Vallikivi, a lawyer practising in Tallinn. The respondent Government were represented by Mrs M. Hion, Director of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.

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

On 8 October 1991 Mr Põder lodged an application with the Valga County Government (Valga Maavalitsus) for restitution of his family's property, which had been nationalised in 1947 and allocated by the authorities to a third person free of charge since 1970. The property consisted of farmland, a house and farm buildings.

By a decision of the Valga County Commission for the Return and Compensation of Unlawfully Expropriated Property (Õigusvastaselt võõrandatud vara tagastamise ja kompenseerimise Valga maakonna komisjon) of 5 May 1994, all three applicants were recognised as the persons entitled to the nationalised property under the property reform legislation.

On 9 April 1996 the Õru District Administration (Õru Vallavalitus), relying on section 12(8)(2) of the Property Reform (Principles) Act (Omandireformi aluste seadus), decided not to return the property to the applicants on the ground that it had lost its former distinct character (that is, the form or size of the property, as assessed according to the criteria established by law, had changed significantly). On 28 February 1997 the District Administration decided to award the applicants compensation in respect of the property.

The applicants appealed against both of these decisions to the Valga County Court (Valga Maakohus).

By a judgment of 23 February 1998, the County Court declared the decision of the Õru District Administration of 9 April 1996 unlawful, finding that the condition of the property had been incorrectly assessed. The judgment was upheld by the Tartu Court of Appeal (Tartu Ringkonnakohus) on 22 June 1998. The courts left unexamined the applicants' complaint concerning the decision on compensation of 28 February 1997 as the complaint did not meet the formal requirements.

On 25 August 1998 the Õru District Administration gave a new decision refusing to return the property to the applicants. That decision was also declared unlawful, mainly for lack of reasoning, by the Valga County Court and the Tartu Court of Appeal on 11 June 1999 and 24 September 1999 respectively. The courts also declared unlawful the compensation decision of 28 February 1997, as it had been made on the basis of the unlawful decision of 9 April 1996 to refuse restitution.

By a decision of 25 January 2000, the Õru District Administration refused to return the nationalised property to the applicants on the ground that the property was in the possession of a third person who had acquired it in good faith. In particular, that person had not persecuted the applicants or expropriated their property. The District A dministration based its decision on an amended version of section 12(3)(3) of the Property Reform (Principles) Act, which had come into force on 2 March 1997.

The applicants lodged a complaint against the decision submitting, inter alia, that, under section 12(3)(3) of the Property Reform (Principles) Act in the version in force until 2 March 1997, a person who had obtained expropriated property free of charge could not be regarded as the bona fide owner of the property. They had lodged an application for restitution at the time when that Act was in force and therefore had a legitimate expectation that their application would be decided according to that Act.

By a judgment of 24 April 2000, the Võru County Court (Võru Maakohus) dismissed the applicants' complaint. The judgment was upheld by the Tartu Court of Appeal on 6 September 2000. The Supreme Court (Riigikohus), which initially refused the applicants leave to lodge an appeal with it, subsequently granted them leave and, on 11 June 2001, rendered a judgment upholding the Court of Appeal's judgment.

In its judgment the Supreme Court reiterated that one of the purposes of the property reform was to undo the injustices caused by violations of property rights in the past. At the same time, the restitution of property or the payment of compensation to former owners should not prejudice the lawful interests of other persons or cause new injustices. The deprivation of property of new owners who had received it free of charge would create such an injustice. Expropriated property had often been preserved thanks to the efforts of new owners. The provisions of section 12(3)(3) of the Property Reform (Principles) Act, as they had existed until 2 March 1997, were unjust and offered no protection to new owners of unlawfully expropriated property. The applicants could not reasonably expect that the law would not change. Their expectation that their restitution claim would be decided in accordance with the former law did not outweigh the right of the current owner to the protection of his property and his legitimate expectation that he would not be deprived of his lawfully obtained possessions. The applicants were, however, entitled to claim compensation for property which could not be returned to them.

In the meantime, on 28 November 2000 the Õru District Administration decided to award compensation to the applicants in respect of the nationalised property in the form of “privatisation vouchers” to the nominal value of 63,150 Estonian kroons (EEK) for Mr Põder and to the nominal value of EEK 31,575 each for Ms Raag and Ms Mölder. The Government informed the Court that the applicants had received the compensation. There is no indication that the applicants appealed against the size of the award.

B. Relevant domestic law

The Property Reform (Principles) Act came into force in 1991. It subsequently underwent various substantial amendments. Section 12(3)(3) of the Act in its original wording provided that unlawfully expropriated property was not subject to return if

“the property [was] in the possession of a natural person who [had] acquired it in good faith”.

Section 12(3)(3) of the Act as in force from 21 June 1993 to 2 March 1997 provided that unlawfully expropriated property was not subject to return if

“the property [was] in the possession of a natural person who [had] acquired it in good faith; a person who [had] obtained the property free of charge by a decision of a State authority or who [had] participated in the persecution of the owner of the property or in its unlawful expropriation [could] not be regarded as a bona fide owner”.

On 2 March 1997 a further relevant amendment to the Act came into force. Under the new text of section 12(3)(3), unlawfully expropriated property was not subject to return if

“the property [was] in the possession of a natural person who [had] acquired it in good faith; above all, a person who [had] participated in the persecution of the owner of the property or in its unlawful expropriation [could] not be regarded as a bona fide owner”.

Section 13(1) of the Property Reform (Principles) Act stipulated that if unlawfully expropriated property could not be returned on the basis of section 12 of the Act, the State would pay compensation in respect of the property according to the procedure provided for by law.

In accordance with the Regulation on the procedure for the restoration of unlawfully expropriated property enacted by the government on 5 February 1993, as amended, the restitution of property rights was carried out in three stages: (1) the establishment of the unlawfulness of the expropriation and the determination of the persons entitled to restitution of their property rights; (2) the decision as to whether the property was to be returned; (3) the transfer of the property to the eligible persons. The Regulation on the procedure for determining compensation in respect of unlawfully expropriated property enacted by the government on 13 July 1993, as amended, provided that the compensation procedure was initiated where the eligible person had requested compensation, the property in question had been destroyed, or the law did not provide for the return of the property concerned.

C. The Estonian reservation in respect of Article 1 of Protocol No. 1

The instrument of ratification of the Convention deposited by the Estonian government on 16 April 1996 contains the following reservation:

“In accordance with Article 64 of the Convention, the Republic of Estonia declares that the provisions of Article 1 of the First Protocol shall not apply to the laws on property reform which regulate the restoration or compensation of property nationalised, confiscated, requisitioned, collectivised or otherwise unlawfully expropriated during the period of Soviet annexation; the restructuring of collectivised agriculture and privatisation of state owned property. The reservation concerns the Property Reform (Principles) Act (published in Riigi Teataja [Official Gazette] 1991, 21, 257; RT I 1994, 38, 617; 40, 653; 51, 859; 94, 1609), the Land Reform Act (RT 1991, 34, 426; RT I 1995, 10, 113), the Agricultural Reform Act (RT 1992, 10, 143; 36, 474; RT I 1994, 52, 880), the Privatisation Act (RT I 1993, 45, 639; 1994, 50, 846; 79, 1329; 83, 1448; 1995, 22, 327; 54, 881; 57, 979), the Dwelling Rooms Privatisation Act (RT I 1993, 23, 411; 1995, 44, 671; 57, 979; 1996, 2, 28), the Act on Evaluation and Compensation of Unlawfully Expropriated Property (RT I 1993, 30, 509; 1994, 8, 106; 51, 859; 54, 905; 1995, 29, 357), the Act on Evaluation of Collectivised Property (RT I 1993, 7, 104) and their wording being in force at the moment the Ratification Act entered into force.”