The applicant is an Icelandic citizen, born in 1960 and resident in Reykjavik. Before the Court he is represented by Mr Ragnar Aðalsteinsson, an advocate practising in Reykjavik. The respondent Government are represented by their Agent, Mr Thorsteinn Geirsson, Director General, Ministry of Justice and Ecclesiastical Affairs.

The facts of the case, as described mainly in the domestic courts’ judgments, may be summarised as follows.

On 24 November 1989, the applicant drove his car along a country road up a slope, and met three lorries travelling at short intervals in the opposite direction. As the applicant met the third lorry he lost control of his car which went off the road, which went unnoticed by the lorry drivers. The car went over a patch of stony gravel, came to a halt at a fence and was damaged. His head was knocked against the windscreen; he lost consciousness and was taken to hospital.

The applicant instituted proceedings against the company that owned the lorries and its insurance company before the District Court of Reykjavik and requested compensation for the damage to his car and the loss of its use, claiming that the third lorry was being driven unduly fast and very carelessly. According to the applicant when he noticed the lorries he reduced his speed from 50-60 km to approximately 20 km per hour. The third lorry drove so far over to the applicant’s side of the road that the applicant had been forced to the edge and off the road. The applicant had stated that he drove on radial tyres of the so-called all year type.

The respondents disputed that the accident could be attributed to any facts for which they were responsible and challenged the applicant’s assertion that the driver of the third lorry had failed to yield to the side and was travelling at high speed. While the lorry drivers had been travelling as slowly and carefully as possible under the circumstances, the applicant had himself acknowledged in the police reports that he had been travelling at 50-60 km per hour. There was no evidence as to the position on the road of the respective vehicles when they met. In any event the applicant was in part responsible, as he had driven with summer tyres at a considerable speed on a slippery road.

According to the applicant, during the proceedings before the District Court he had submitted certain evidence, mainly police reports, in support of his statement of the facts of the case, which counsel for the defendant had stated was a correct presentation of the facts. Moreover, counsel for each party had the following declaration recorded:

“That they are in agreement to base their case on the statements given by witnesses as if they had been confirmed in court, should witnesses be unable to appear before it.”

By judgment of 19 February 1993 the District Court ordered the respondents to pay the applicant approximately ISK 572,000 in compensation plus an amount for legal costs.

In its judgment the District Court observed that, while the applicant was driving up the slope at Glerárskógar, he met three lorries driving in succession down the slope in a southerly direction. According to the statements of witness E., who was driving at a short distance in front of the applicant’s car, and of witness M., who observed the events at a distance of 200 to 300 metres, the vehicles proceeded fast, in spite of the fact that the road was slippery and narrow compared to their size. The drawing made by Dalasýsla police indicated that the road was 3 metres wide and flanked by gravel shoulders 0.70 metre wide at the point where the applicant’s car went off, while the rearmost lorry was 2.48 metres wide. The District Court further observed that the road was covered with a thin layer of snow and was slippery. The driver of the leading lorry stated that its speed was approximately 50 km per hour, the driver of the second lorry stated that its speed had been 30-40 km. Given the conditions at the scene and, in particular, the third lorry’s width, its speed was deemed excessive. Considering witness E.’s statement that the lorry had not been swung to the side to make room for the applicant’s car and police officer S.G.’s report to the effect that no evidence had been found to the contrary, the District Court upheld the applicant’s assertion that its driver had failed to observe the relevant provisions of the Road Traffic Act. It found it not established that the applicant’s car had been inadequately equipped. Nor could he be considered to have driven with such lack of care as to make him partly responsible for the accident.

The company that owned the lorries and the insurance company appealed to the Supreme Court.

By judgment of 5 March 1995 the Supreme Court found for the appellant companies.

In reaching this conclusion the Supreme Court observed that the facts of the case were not adequately described in the District Court’s judgment. It considered the various items of evidence in the case, notably the initial report of the Dalasýsla Police, which quoted statements by the applicant and witnesses M. and E., subsequent witness statements taken by the police from M. and E. and the latter’s testimony to the District Court, statements taken by the police in May 1990 from the three lorry drivers, and a police report of 3 April 1990. The Supreme Court noted, inter alia, the following.

In the initial police report it was indicated that the applicant’s car was equipped with summer tyres but that, according to his own statement he had been driving with radial tyres. The driver of the rearmost lorry had stated that he had proceeded as closely to the road edge as possible and that the applicant had done the same, that the estimated speed of the lorries was 20-30 km per hour and that the slippery condition of the road was the only factor requiring caution. None of the lorry drivers had noticed the applicant’s mishap. Nearly 1 month after the accident witnesses M. and E. had made statements to the effect that they were unable to say where on the road the rearmost lorry had been while meeting the applicant’s car, whereas in later statements they had indicated that the lorries proceeded on the middle of the road. Five months after the event witness M. had stated that the lorries proceeded at high speed, while witness E. had not, until the District Court’s hearing, commented on the speed but without being able to do so with any accuracy. In the view of the Supreme Court, the above witnesses were in a poor position to observe clearly the events leading to the accident and exactly how the danger had developed; this reduced the evidential value of their statements.

Moreover, the Supreme Court noted a number of deficiencies in the initial police report (of November 1989) and the drawing of the scene appended to it, including on such matters as tyre tracks, the absence of a scale, an indication of the time of the police’s arrival at the scene and, in particular, the road dimensions. According to the road measurements reproduced in the police report, the width of the permanent road surface was 3 metres, and the width of each road shoulder 0.7 metre, making a total width of 4.4 metres. The lorries had been 2.48 metres wide, and the applicant’s car 1.67 metres wide. According to the drawing the vehicles thus had a surplus space of 0.25 metre within which to pass. This made it clear to the Supreme Court that the road dimensions indicated could not be accurate and that the drawing had little evidential value as regards the circumstances at the scene.

The Supreme Court concluded that the applicant should have been aware that it would be difficult and risky to pass so large and voluminous vehicles on the slope, as the road could be assumed to have been narrow and his car was not perfectly equipped for winter driving. He should have stopped his car as close to the edge as possible and waited there until the lorries had passed, as he clearly was in a better position to yield and make room on the road. Instead he drove without hesitation up the slope, regardless of success or failure. By this conduct he had obviously endangered his own car and safety. He had failed to establish that the lorries proceeded too fast or unduly on to his side of the road and that the accident could be traced to any other cause than his own inadvertence.

On 29 May 1995 the applicant requested the Supreme Court to reopen the proceedings, which the latter refused on 12 July 1995.


The applicant, Mr Jan Wiącek, is a Polish national who was born in 1950 and lives in Nowa Słupia, Poland.

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

The applicant was a party to civil proceedings concerning a claim for division of marital co-ownership.

On 6 September 2000 a hearing took place before the Ostrowiec Świętokrzyski District Court (Sąd Rejonowy). The judge heard the applicant and dictated his replies to the court clerk, who was taking minutes of the hearing. As the judge’s instructions to the clerk differed considerably from what the applicant was saying and as the judge repeatedly interrupted the applicant in his statements, the applicant expressed his objections. However, this was to no avail. Eventually the applicant said:

“I should reply, not the court”.

The judge became angry and warned the applicant that a fine could be imposed on him.

The records of the hearing first relate the applicant’s statements concerning the subject matter of the case. Then it reads as follows:

“The presiding judge warned the [applicant] not to make any comments to the court and warned him that a fine would be imposed on him if he continued to do so.

Thereupon the [applicant] says: “If it is necessary, I will pay”.

The court holds that a fine of PLN 500 be imposed on the [applicant]. “

On 12 September 2000 the applicant appealed to the Ostrowiec Świętokrzyski Regional Court (Sąd Okręgowy) against the imposition of the fine. On 12 October 2000 the Ostrowiec Świętokrzyski District Court (Sąd Rejonowy), invoking the Act of 20 June 1985, rejected the applicant’s appeal, considering that the domestic law did not provide for a possibility to appeal against such a decision. On 9 November 2000 the applicant lodged an interim appeal against this decision. On 10 November 2000 the District Court rejected the applicant’s appeal as lodged outside the prescribed time limit. On 29 November 2000 the applicant applied for leave to file an appeal out of time. His motion was dismissed on 24 April 2001.

On 14 September 2000 the applicant lodged a request with the Ostrowiec Świętokrzyski District Court to rectify the minutes of the hearing of 6 September 2000. He submitted that during that hearing he had said, reacting to the court’s interruptions and interference with the contents of his statements:

“I should reply, not the court.”

This statement had not been recorded in the minutes of the hearing. Consequently, the actual circumstances in which the presiding judge decided to impose a fine on the applicant were not reflected in the minutes, as required by Article 158 § 1 of the Code of Civil Procedure.

On 13 October 2000 the court refused to rectify the minutes. The court considered it to be sufficient that the court’s reaction to the applicant’s conduct was reflected in the minutes of the hearing, and that therefore the minutes were exact.

On 9 November 2000 the applicant appealed against this decision. He reiterated that the minutes of the hearing did not reflect the actual conduct of the hearing in that his statement was not noted. As a result, they contained the presiding judge’s warning about the imposition of a fine, but no information as to the reason which had prompted this reaction on the part of the judge. The applicant stated that this was illogical. He further stressed that he had not said anything that could have been construed as either insulting to the court, or not linked to the subject-matter of the civil case. The court’s failure to dictate the parties’ statements so that the minutes reflected exactly what was said amounted to a procedural breach, which could negatively affect the substantive outcome of the case.

On 22 December 2000 the Ostrowiec Świętokrzyski District Court dismissed his appeal. The court reiterated the reasons invoked in the first-instance decision of 13 October 2000. It was further stated that according to the case-law of the Supreme Court, the court was not obliged to include in the minutes of a hearing all the statements of the parties, in particular those which were not related to the subject-matter of the proceedings.

On 7 February 2003 the Ostrowiec Świętokrzyski District Court of its own motion gave a decision and quashed its decision of 12 October 2000. The court held that on 1 October 2001 the new act on the legal structure of the courts entered into force. According to Section 50 of the new act it was possible to file an appeal against a decision imposing a fine for contempt of court. The court considered that the change of law was of such importance that it justified quashing the decision of 12 October 2000 even though it had been delivered under the 1985 Act.

On 22 July 2003 the Ostrowiec Świetokrzyski District Court ordered the return to the applicant of the fine paid by him. On 23 July 2003, 500 PLN was transferred to the applicant’s bank account.

Section 43 § 1 of the Act of 20 June 1985 (“the 1985 Act”) on the legal structure of the courts (Prawo o ustroju sądów powszechnych), provides inter alia that the court may impose a disciplinary penalty, a fine or a prison sentence, on a person who, at a court session, behaves in an abusive manner or disturbs the public order.

Under Section 44 § 1 of the Act, no appeal is available against a decision to impose such a penalty.

On 1 October 2001 the new act on the legal structure of the courts entered into force. According to Section 50 of the new act it is possible to file an appeal against a decision to impose a penalty for contempt of court.

On 3 July 2002 the Constitutional Court gave judgment (No. SK 31/01) and declared unconstitutional Section 44 § 1 of the 1985 Act. It found that this provision was not in compliance with article 78 (right to appeal) and article 176 § 1 (right to two court instances) of the Constitution.

Article 380 of the Code of Civil Procedure provides:

“The second-instance court shall, upon a motion by a party, examine all those rulings of the court of first-instance which were not subject to interlocutory appeal but which had an effect on the determination of the case.”

Article 79 § 1 of the Constitution provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

“1. Judgments of the Constitutional Court shall be universally binding and final.

Judgments of the Constitutional Court, ... shall be published without delay.

A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...

A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”


MEYNE-MOSKALCZUK and OTHERS v. THE NETHERLANDS

The applicants are all Netherlands nationals resident in the Netherlands.

Mrs Hubertina Antoinette Thomas Boesten-Aarts was born in 1939 and lives in Heerlen.

Mrs Maria Anna Hammann was born in 1931 and lives in Helmond.

Mrs Sophia Stanislawa Meyne-Moskalczuk was born in 1925 and lives in Amsterdam.

Mrs Cornelia Harmina Johanna Nagtegaal was born in 1931 and lives in Hilversum.

The applicants are represented before the Court by Mr R.K. van der Brugge, a lawyer practising in The Hague.

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

Mrs Boesten-Aarts married a Mr G. on 15 February 1960. They were divorced with effect from 3 March 1977. During the marriage Mr G. was employed and accumulated pension entitlements. Mrs Boesten-Aarts took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name.

Mr G. became entitled to a pension from the General Civil Service Pension Fund (Algemeen Burgerlijk Pensioenfonds, “ABP”) as of 1 April 1995.

Mrs Boesten-Aarts applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 12 May 1995, the ground being that she and Mr G. had been married for less than eighteen years.

Mrs Boesten-Aarts lodged an administrative appeal (beroep) with the ABP’s Board of Management, arguing that the refusal was discriminatory.

By a letter dated 19 October 1995 the ABP’s Board of Management informed Mrs Boesten-Aarts that her objection could not be received. The objection was directed against provisions of the law as such; these the ABP, an executive administrative body, was not empowered to set aside.

Mrs Hammann married a Mr P. on 23 April 1963. They were divorced with effect from 10 October 1980. During the marriage Mr P. was employed and accumulated pension entitlements. Mrs Hammann took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name.

Mr P. became entitled to a pension from the ABP as of 31 March 1992.

Mrs Hammann applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 15 May 1995, the ground being that she and Mr P. had been married for less than eighteen years.

Mrs Hammann lodged an administrative appeal with the ABP’s Board of Management, arguing that the refusal was discriminatory.

By a letter dated 4 October 1995 the ABP’s Board of Management informed Mrs Hammann that her objection could not be received. The objection was directed against provisions of the law as such; these the ABP, an executive administrative body, was not empowered to set aside.

Mrs Meyne-Moskalczuk married a Mr M. on 23 July 1958. They were divorced with effect from 22 May 1974. During the marriage Mr M. was employed and accumulated pension entitlements. Mrs Meyne-Moskalczuk took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name.

Mr M. became entitled to a pension from the ABP as of 1 July 1991.

Mrs Meyne-Moskalczuk applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 28 April 1995, the ground being that she and Mr M. had been married for less than eighteen years.

Mrs Meyne-Moskalczuk lodged an administrative appeal with the ABP’s Board of Management, arguing that the refusal was discriminatory.

By a letter dated 15 September 1995 the ABP’s Board of Management informed Mrs Meyne-Moskalczuk that her objection could not be received. The objection was directed against provisions of the law as such; these the ABP, an executive administrative body, was not empowered to set aside.

Mrs Nagtegaal married a Mr L. on 25 May 1959. They were divorced with effect from 15 August 1977. During the marriage Mr L. was employed and accumulated pension entitlements. Mrs Nagtegaal took care of the couple’s children. She had no work outside the home and did not accumulate any pension entitlements in her name.

Mr L. became entitled to a pension from the ABP as of 1 March 1991. One quarter of his pension was allocated to Mrs Nagtegaal.

Mrs Nagtegaal applied to the Board of Management of the ABP for the pension entitlements of her former husband to be divided equally between him and her. This was refused by a decision of 15 May 1995, the ground being that the divorce had occurred before 27 November 1981 and the law in force therefore entitled her to no more than one quarter of her former husband’s pension.

Mrs Nagtegaal lodged an administrative appeal with the ABP’s Board of Management, arguing that this decision was discriminatory.

By a letter dated 28 March 1996 the ABP’s Board of Management informed Mrs Nagtegaal that her objection had been dismissed on the ground that the applicable legal provisions had been correctly applied, and that there was no apparent justification for deviating from them.

The applicants each lodged an appeal (beroep) to the Regional Court (arrondissementsrechtbank) of The Hague.

A single hearing was held before the Regional Court in the cases of all four applicants on 14 November 1996.

The Regional Court gave four separate but, for present purposes, identical decisions, one in respect of each applicant, on 20 December 1996 dismissing the appeals. It acknowledged that there was a difference in treatment between persons in the position of the applicants and persons divorced after 27 November 1981, but considered that the requirements of legal certainty constituted adequate reasonable and objective justification.

The applicants lodged further appeals (hoger beroep) to the Central Appeals Tribunal (Centrale Raad van Beroep), the highest administrative tribunal in matters concerning social security and civil service pensions.

The Central Appeals Tribunal held a single hearing in all four cases on 1 April 1999. It eventually dismissed the appeals in four separate but identical decisions on 12 May 1999. Like the Regional Court, it considered the difference in treatment justified by the requirements of legal certainty.

Prior to 27 November 1981, it was considered that pensions were by their very nature connected (verknocht) solely to the person nominally entitled to them (see the judgment of the Supreme Court (Hoge Raad) of 7 October 1959, Beslissingen in Belastingzaken (Reports of Decisions in Taxation Cases – “BNB”) 1959, no. 355). This meant that pension entitlements could not be included in divorce settlements.

In a landmark judgment of 27 November 1981, Nederlandse Jurisprudentie (Netherlands Law Reports) 1982, no. 503, the Supreme Court held that pension entitlements existing at the time that a marital community of property (gemeenschap van goederen) was dissolved by divorce or judicial separation were, in principle, part of that community of property even if they had not yet fallen due. This meant that they had to be taken into account in the settlement when the assets and liabilities belonging to the community were divided.

The way in which such entitlements should be taken into account depended on considerations of equity (redelijkheid en billijkheid), as applicable to the dissolution of a marital community of property. In many cases, the party nominally entitled to the pension would be faced with an obligation, conditional on the survival of both parties, to pay a certain percentage of the pension instalments to the other party as they became due. However, equitable considerations might dictate other solutions, for example the purchase by the party nominally entitled to the pension of an annuity for the benefit of the other party. In certain cases, for example if adequate arrangements had been made for the maintenance of the other party in some other way, it might be equitable to reduce the other party’s claim to part of the pension or even to cancel it altogether.

The Supreme Court recognised that this judgment involved a reversal of its case-law since 1959. It realised that many marital communities of property had been dissolved in the meanwhile without pension rights being taken into account. Although in principle the Supreme Court’s new approach could give rise to the reopening of such cases, considerations of equity coupled with interests of legal certainty entailed that, as a rule, the party nominally entitled to the pension should not be faced with hitherto unexpected claims.

On 1 May 1995 the Pensions Equalisation (Divorce) Act (Wet verevening pensioenrechten bij scheiding, “the 1995 Act”) entered into force.

In relevant part, it provides as follows:

“1. In case of divorce and in so far as one of the spouses has accumulated pension entitlements after the marriage was contracted and before the divorce, the other spouse shall have a right to pension equalisation as provided in or under this Act ...

Pursuant to the right to pension equalisation referred to in the first paragraph, a right to payment of a part of each instalment of the pension [as it becomes] payable shall come into being vis-à-vis the implementing body ...

Payment shall take place subject to the conditions laid down in the applicable instrument. If the time at which the pension starts (pensioeningang) precedes or coincides with the time of the divorce, payment shall start at the time the pension starts ...

The right to payment shall end at the time when the right to the pension ends or at the end of the month in which the spouse entitled to pension equalisation dies ...

“1. The part referred to in section 2, paragraph 2, shall be half of the pension that would be payable if:

(a) the spouse who is under an obligation to equalise had participated solely during the years of participation from the time the marriage was contracted until the time of the divorce;

(b) he had terminated his participation at the time of the divorce; and

(c) he were married or in a registered partnership during the period when he was entitled to the pension.

If the pension is increased or decreased after it starts, the sum resulting from the first paragraph shall be increased or decreased in proportion to the increase or decrease of the pension.

“1. This Act shall not apply to a divorce that took place before the date on which this Act entered into force.

Nonetheless, this Act shall apply by analogy (van overeenkomstige toepassing) to a divorce that has taken place before 27 November 1981, provided that the marriage lasted for at least 18 years and there were, during the marriage, minor children of the spouses together or one of them, it being understood that the part referred to in section 2, second paragraph, shall be only one quarter of the pension that would have to be paid pursuant to section 3, first and second paragraphs, and that there shall be no right to pension equalisation to the extent that the circumstance that the spouse entitled to equalisation has accumulated insufficient pension or none at all has already demonstrably been taken into account. ...

The Explanatory Memorandum to the Bill which later became the Act (Explanatory Memorandum (Memorie van Toelichting), Lower House of Parliament, 1990-91, 21,893, no. 3, pp. 1–2) explains that the Government’s intention in introducing this legislation was to make the rule stated by the Supreme Court in its judgment of 21 November 1981 more effective by replacing the claim of one spouse against the other with an automatic claim against the body responsible for paying out the pension. It was felt that this would simplify the realisation of the rights of the spouse who was not nominally entitled to the pension, and in addition forestall litigation by making it unnecessary.

An additional aim was to recognise a shared claim after divorce to the pension regardless of whether the parties had been married in community of property or had made other arrangements by a marriage settlement (huwelijkse voorwaarden), the question of the applicability of the Supreme Court’s case-law in the latter situation having given rise to problems in that regard (Explanatory Memorandum, loc. cit., p. 2).

Initially, the proposed wording of Article 12 of the Act comprised only the present first paragraph. It was intended that the new Act should not affect divorces pre-dating the Supreme Court’s judgment of 27 November 1981, and that divorces which became final after that date but before the entry into force of the Act should be dealt with in accordance with the case-law which that judgment defined (Explanatory Memorandum, loc. cit., p. 33).

The second paragraph of section 12 resulted from an amendment proposed by two members of the Lower House of Parliament, Mesdames Kalsbeek-Jasperse and Soutendijk-van Appeldoorn (Modified Amendment (Gewijzigd amendement), Lower House of Parliament, 1992-93, 21,893, no. 30). It was intended as a compromise between the requirements of legal certainty and considerations of an equitable nature. For that reason it granted a particular, limited, category of persons divorced before 27 November 1981 a partial entitlement to pension rights accumulated by their former spouses, albeit a lesser one than that enjoyed by persons who were divorced after the entry into force of the Act (Memorandum in Reply (Memorie van antwoord), Upper House of Parliament, 1993-94, 21,893, no. 111b, and Further Memorandum in Reply (Nadere memorie van antwoord), Upper House of Parliament, 1993-94, 21,893, no. 111d).


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-1-f;Violation of Art. 5-4;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicant, who was born in Grozny, Chechnya, settled in Varna, Bulgaria, in 1994, after finishing his university studies. Between 24 September 1995 and 3 November 1999 he was prosecuted and tried on charges of attempted murder and illegal possession of explosives, contrary to Articles 116 § 1 (6) and 339 § 1 of the Criminal Code of 1968. In a final judgment of 3 November 1999 he was acquitted of the first charge and found guilty of the second, and sentenced to two years’ imprisonment. As he had already spent a longer period of time in pretrial detention, on 8 November 1999 he was released from prison (for a detailed description of these events, see the admissibility decision Sadaykov v. Bulgaria (dec.), no. 75157/01, 20 March 2007).

On 8 November 1999 the applicant was rearrested on his way out of prison. This happened because in a letter of 5 November 1999 the Varna deputy regional prosecutor had informed the Regional Department of the Ministry of Internal Affairs (“the RDMIA”) that during his trial the applicant had threatened prosecutors and judges that he would “deliver justice” after his release. Apart from that, the validity of the applicant’s Russian passport and of his permit to reside in Bulgaria had expired. As a result, on 8 November 1999 the head of the RDMIA ordered that the applicant be brought immediately to the border by force and that he be banned from entering Bulgaria until 1 November 2009. The order was based on sections 41(2) and 10(3) and (6) of the 1998 Aliens Act (see paragraphs 9 and 10 below) and was reasoned as follows: “[the applicant] threatens public order and has been charged under Articles 116 and 339 § 1 of the [1968] Criminal Code”. The order also stated that it was to be enforced immediately and was subject to appeal in accordance with the provisions of the 1979 Administrative Procedure Act (see paragraphs 13 and 14 below).

Upon his arrest the applicant was informed about the order: he signed it, and stated in writing that he had familiarised himself with its contents. The applicant alleged that he had not been given a copy of it, whereas the Government averred that he had been provided with one. The applicant also alleged that after his arrest he had not been allowed to contact a lawyer. The Government denied this, stating that the applicant’s brother was apparently well aware of his situation, as on 11 November 1999 he had managed to bring a complaint in this regard to the attention of a nongovernmental organisation, the Human Rights Committee, which had enquired of the Minister of Internal Affairs about the applicant’s case.

After his arrest the applicant was brought to a detention facility in Varna, where he was kept until 13 November 1999. On that day he was provided with a provisional passport and escorted to Ruse, on the Danube River, where he was supposed to board a train to Moscow. However, during passport control at the border checkpoint it turned out that since September 1995 the applicant had been under a prohibition order not to leave Bulgaria, which was still in force. He was then taken back to the detention facility in Varna, where he spent three more days, until the prohibition was lifted. On 15 November 1999 he wrote to the head of the RDMIA, asking for his assistance in clearing the obstacles to his leaving Bulgaria. On the same day the authorities bought the applicant a new train ticket to Moscow. On the following day, 16 November 1999, he was deported to the Russian Federation.

Under section 41(2) of the 1998 Aliens Act („Закон за чужденците в Република България“), as in force at the relevant time, the Minister of Internal Affairs or an official authorised by him or her could issue an order for the taking of an alien to the border by force in the event that he or she had not left the country after the expiry of his or her residence permit. By section 42a(1) (presently section 42h(1)) of the Act, a ban on entering the country had to be ordered if the grounds under section 10 were met.

The ground under section 10(1)(3) of the Act, as in force at the material time, was the existence of information that the alien was a “member of a criminal gang or organisation, or [was] engaged in terrorist activities, smuggling, or unlawful transactions with arms, explosives, ammunitions, strategic raw materials, goods or technologies with a possible dual use, or in the illicit trafficking of intoxicating and psychotropic substances or precursors or raw materials for their production”. The ground under section 10(1)(6) of the Act was that the alien had “committed, on the territory of the Republic of Bulgaria, a wilful offence punishable by more than three years’ imprisonment”.

Section 44(3) of the Act, as in force at the relevant time (presently, with slightly modified wording, section 44(5)), provided that if there were impediments to the deported alien’s leaving Bulgaria or entering the destination country, he or she was under a duty to report daily to his or her local police station. Under section 44(4) of the Act, as in force at the material time (presently, with slightly modified wording, section 44(6)), aliens who were being deported could be placed in holding facilities if this was deemed necessary by the Minister of Internal Affairs or officials authorised by him or her. The new subsection 8 of section 44, added in April 2003, explicitly states that the placement of aliens in holding facilities pending their deportation is to be done pursuant to a special order, separate from the one for taking them to the border by force. The order has to moreover specify the need for the placement and its legal grounds. In addition, the new subsection 9, also added in April 2003, provides that the procedure for the temporary placement of aliens in holding facilities is to be laid down in a regulation issued by the Minister of Internal Affairs. The Minister issued such a regulation on 29 January 2004 („Наредба № І-13 от 29 януари 2004 г. за реда за временно настаняване на чужденци, за организацията и дейността на специалните домове за временно настаняване на чужденци“, обн., ДВ, бр. 12 от 13 февруари 2004 г.).

Section 49(1) of the regulations for the application of the Act, adopted in May 2000, provides that an alien may be placed in a holding facility until being taken out of the country if this is expressly stated in the order for his or her taking to the border by force or his or her expulsion. Section 49(2) of the Regulations states that the procedure for the placement of aliens in these facilities until their deportation is to be ordained by the Minister of Internal Affairs.

Section 46 of the Act, as in force at the relevant time, provided that orders made under sections 40 to 44 thereof could be challenged in accordance with the provisions of the 1979 Administrative Procedure Act, that is, they were subject to an appeal before the higher administrative authority and judicial review.

According to the 1979 Administrative Procedure Act, as in force at the relevant time, an administrative appeal had to be made within seven days from the notification of the person concerned of the administrative decision (section 22(1) of the Act). The higher administrative authority had to rule within two weeks (section 29(1) of the Act). If it failed to do so, or if the ruling was negative, the aggrieved person was entitled to lodge an application for judicial review (sections 29(2) and 35(2) of the Act). The aggrieved person could alternatively skip this step and directly seek judicial review of the original decision. However, this was only possible if the timelimit for lodging an administrative appeal – minimum seven days – had already lapsed (section 35(2) of the Act).


The applicant, Mr Miroslav Kučera, is a Czech national who was born in 1956 and lives in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, Ministry of Justice.

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

The applicant occupied a flat in a building owned by the Ministry of the Interior. On 18 July 1996 the Ministry filed an action against the applicant seeking to order him to vacate the flat.

On 16 February, 27 April and 7 September 1998 the Prague 6 District Court (obvodní soud) held three hearings. After having held a hearing on 26 May 1999, the court adopted a judgment by which it allowed the Ministry’s claim and ordered the applicant to vacate the flat.

On 17 September 1999 the Prague Municipal Court (městský soud), upon the applicant’s appeal of 12 July 1999, upheld the first instance judgment. The proceedings were finally closed on 16 November 1999. On that date, the execution title became final.

On 3 December 1999 the applicant filed an appeal on points of law (dovolání) in the Supreme Court (Nejvyšší soud) which dismissed it in judgment of 19 December 2000 which was notified to the applicant’s lawyer on 19 March 2001.

In the mean-time, on 22 November 2000, the District Court had issued an eviction order against the applicant. The applicant’s subsequent requests to adjourn his eviction were rejected.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1957 and lives in Warsaw.

On an unknown date in 1991 the applicant was charged with aggravated robbery. In 1993 the Siedlce Regional Prosecutor (Prokurator Wojewódzki) stayed the investigation as the applicant’s whereabouts were not known. In July 1993 the applicant was arrested and began serving a prison sentence which had been imposed in 1982.

On 14 March 1994 a bill of indictment was lodged with the Warsaw Regional Court (Sad Wojewódzki). The applicant was charged with robbery.

The proceedings were stayed on 6 March 1996 in view of the applicant’s health. In December 1996 he underwent spinal surgery. The trial was resumed on 28 September 1997.

The applicant failed to appear at some hearings in 2003, however the trial court found that this was because he had been serving a prison sentence imposed in another set of criminal proceedings.

On 5 April 2004 the charges against the applicant and several coaccused were severed and dealt with in a separate set of proceedings.

The applicant failed to appear at a hearing held on 30 June 2005. On the same date the Warsaw Regional Court (Sad Okręgowy) issued a wanted notice in respect of the applicant and ordered that he be arrested and remanded in custody.

On 18 July 2005 the court severed the charges against the applicant, to be dealt with in a separate set of the proceedings, and on the same date stayed the proceedings as the applicant was in hiding.

The applicant was arrested on 18 May 2007. He was placed in the Warsaw Białołęka Detention Centre on 21 May 2007.

On 11 June 2007 the Warsaw Regional Court resumed the proceedings against the applicant.

In the course of the proceedings, the applicant’s detention was extended on 13 August and 17 December 2007 and 26 March, 21 April, 21 July and 26 September 2008. In their decisions on the matter the authorities relied on the original grounds given for holding him in custody. The applicant did not appeal against most of the decisions extending his detention.

On 22 September 2009 the Warsaw Regional Court convicted the applicant of armed robbery, burglary and causing serious bodily harm and sentenced him to five years’ imprisonment.

The applicant’s detention was subsequently extended, in particular on: 26 September and 22 December 2008 and 6 March 2010. The applicant lodged an appeal against the last of those decisions.

On 10 April 2010, at the applicant’s request, the detention was lifted and he was released from custody.

On 2 March 2011 the applicant began serving the prison sentence imposed on 22 September 2009.

On an unknown date in 2007 the Płock Regional Prosecutor (Prokurator Okregowy) instituted criminal proceedings against the applicant and several co-accused on charges of illegal possession of weapons and robbery.

On 23 May 2007 the Ostrołeka District Court remanded the applicant in custody, relying on the suspicion that he had committed the offences with which he was charged. It attached importance to the likelihood of a lengthy prison sentence being imposed on the applicant, the serious nature of the offences of which he was suspected, and the risk that he would go into hiding. This was made more likely by the facts that he did not have a permanent place of residence and was unemployed. The applicant did not appeal against this decision.

In the course of the investigation the applicant’s detention was extended on 31 July and 15 November 2007 and on 31 January, 18 April and 3 October 2008. The authorities relied on the original grounds given for keeping him in custody.

Appeals by the applicant against the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful.

On 21 January 2008 a bill of indictment was lodged with the Płock Regional Court.

On 18 December 2008 the Płock Regional Court convicted the applicant as charged and sentenced him to seven years and six months’ imprisonment. The applicant’s detention was subsequently extended.

On 28 October 2009 the Warsaw Court of Appeal partly upheld the first-instance judgment and partly remitted it. It also sentenced the applicant to one year’s imprisonment. The applicant served this sentence between 18 May 2007 and 18 May 2008.

On 8 December 2009 the Warsaw Court of Appeal lifted the applicant’s remand in custody.

On 1 September 2009 the applicant lodged a complaint with the Warsaw Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The applicant sought a ruling that the length of the proceedings before the Warsaw Regional Court (see paragraphs 6-19 above) had been excessive, and also sought an award of just satisfaction.

On 15 December 2009 the Court of Appeal gave a decision and dismissed the applicant’s complaint. The court considered that there had been no significant delays in the proceedings, as the applicant had contributed to the length of the proceedings.

On 21 May 2007 the applicant was placed in the Warsaw Białołęka Remand Centre (Areszt Śledczy).

On 1 June 2007 the Penitentiary Commission of the Warsaw Białołęka Remand Centre classified him as a “dangerous detainee” (tymczasowo aresztowany niebezpieczny) and ordered that he be placed in a closed cell. The commission referred to: the fact that the applicant was accused of armed robbery and using fake police uniforms, and that he had previously escaped from the Warsaw Mokotów Remand Centre, and also to his “serious lack of moral character” and long history of criminal convictions.

Every three months the Warsaw Remand Centre Penitentiary Commission reviewed and upheld its decision classifying the applicant as a “dangerous detainee”. In particular on 26 February 2008 the commission confirmed its previous decision. It considered that it was necessary to place the applicant in solitary confinement as he had been charged with numerous offences, including armed robbery. The commission also referred to “serious lack of moral character”.

The applicant appealed to the penitentiary courts against most of those decisions, arguing that he was suffering from various health problems including hemiparesis and discopathy, and should not be placed in solitary confinement. He also stressed that he had never been charged with acting as part of an organised criminal group.

All his appeals were dismissed. The courts gave decisions on 26 May, 29 August and 17 October 2008, 15 April and 24 June 2009, and 4 March 2010. The authorities relied on the grounds given for the initial decision. In particular they stressed the risk posed by the seriousness of the offences and the use of weapons and fake police uniforms.

On 30 May 2008 the applicant was transferred to Płock Prison so that he could attend the proceedings before the Płock Regional Court (see paragraphs 20-27 above). He was placed alone in a cell for dangerous detainees. This situation applied between 30 May and 4 September 2008 and 9 September and 11 December 2008. The applicant complained about this on several occasions, alleging that due to his health problems, for safety reasons he should have been placed with another inmate.

Due to his “dangerous detainee” status the applicant was under increased supervision. The applicant’s cell in Płock Prison measured 6.92 sq. m. Between 11 December 2008 and 9 January 2009 he shared it with another inmate. Every time the applicant left or entered his cell he was subjected to a body search, which in practice meant that he had to strip naked. Examinations of the applicant’s body, his clothing and shoes were conducted in a separate room, with no third parties present.

The applicant was ordered to wear “joined shackles” (kajdanki zespolone) on his hands and feet on three occasions during the proceedings before the Płock Regional Court, on 2, 9 and 11 June 2008. Those shackles consisted of handcuffs and fetters joined together with chains. On each occasion he was put in the shackles on his arrival at the court and remained handcuffed throughout the day until the end of the hearing.

The applicant was allowed to receive visits from his family. According to a list of visits provided by the Government, between 8 July and 28 October 2008 the applicant was visited on four occasions by his sister and son (one visit per month). Subsequently, between 29 June 2009 and 2 November 2009 his sister and son visited him on average once a month. The majority of these visits lasted one hour. Between 28 October 2008 and 4 June 2009 he was not visited by anyone.

On 8 May 2009 the applicant was granted leave to attend his mother’s funeral.

The Government submitted that after his initial complaint the applicant had, in direct conversation with the prison authorities, agreed to be held in solitary confinement.

The applicant argued that when his complaints were unsuccessful he had had no other choice than to accept the situation which had been imposed on him.

The applicant was detained in the following detention centres: Warsaw Białołeka Detention Centre, Lublin Remand Centre, Warsaw Mokotów Remand Centre, and Płock Prison.

He failed to lodge a claim for compensation for damage to his health sustained as a result of inadequate conditions of detention.

The applicant argued that the living conditions in the detention centres in which he was detained were inadequate. The cells were very small, with approximately 3 sq. m per person. The exercise area was also very small, approximately 15 sq. m.

The Government submitted that during the applicant’s detention in all four of the penal establishments listed above all standards of detention were respected.

The relevant domestic law and practice concerning the imposition of dangerous detainee status are set out in the Court’s judgments in the cases of Piechowicz v. Poland (no. 20071/07, §§ 105-117, 17 April 2012), and Horych v. Poland (no 13621/08, §§44-56, 17 April 2012).

The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006), and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006).

The relevant domestic law and practice concerning remedies for excessive length of judicial and enforcement proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland, no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005VIII, and in its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.

Article 23 of the Civil Code contains a non-exhaustive list of “personal rights” (dobra osobiste). This provision states:

“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”

Article 24, paragraph 1, of the Civil Code provides:

“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an appropriate sum for the benefit of a specific public interest.”

Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:

“The court may grant an appropriate sum as pecuniary compensation for non-material damage (krzywda) to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of whether they are seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”

Articles 417 et seq. of the Polish Civil Code provide for the State’s liability in tort.

Article 417 § 1 of the Civil Code (as amended) provides:

“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”

Article 4421 of the Civil Code sets out limitation periods for civil claims based on tort, including claims under Article 23 read in conjunction with Articles 24 and 448 of the Civil Code. This provision, in the version applicable from 10 August 2007, reads, in so far as relevant, as follows:

“1. A claim for compensation for damage caused by a tort shall lapse after the expiration of three years after the date on which the claimant learned of the damage and the identity of the person responsible for it. However, this expiry date may not be later than ten years after the date on which the event causing the damage occurred.”

The relevant international documents concerning the imposition of security measures and the 2009 Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) are set out in the Court’s judgment in the case of Piechowicz v. Poland (cited above, §§ 127-136).


SKENDER v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant, Mr Fatmir Skender, Turkish by birth, is a national of the former Yugoslav Republic of Macedonia. He was born in 1966 and lives in the village of Mal Papradnik, Centar Župa.

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

According to the Primary Education Act, pupils have to attend State primary schools in their place of residence. However, in the school situated in the applicant's district Centar Župa no classes in Turkish were available.

Between September and 18 December 1996 the applicant's older daughter attended the primary school in the village of Kođađik in a different district where education in Turkish was provided. However, according to the applicant, on 19 December 1996 classes were allegedly interrupted by the police and the school director announced that pupils from other villages were no longer allowed to attend classes in the Kođađik school.

On 11 June 1997 the Ministry of Education and Sport (“the Ministry”) refused the applicant's request of April 1997 to provide education in Turkish in Centar Župa. It stated, inter alia, the following:

“... we inform you that the Council of Ministers ... [on] 2 September 1996 decided the following:

The Ministry of Education and Sport is responsible for providing education in the primary schools in the Municipality of Debar - Centar Župa in accordance with the Constitution and the Primary Education Act.

... [education in] Macedonian cannot be replaced by [education in] Turkish [in Centar Župa], as the children have not been speaking Turkish before they started attending the school.

The Ministry ... is instructed to inform the parents of the pupils who boycotted the classes ... and request the [pupils] to return to the school [in Centar Župa] where special courses will be given so that [they could] catch up with the rest ...

The Ministry of Education and Sport urges that your children attend the courses in the [primary school]... in Centar Župa in accordance with the Primary Education Act.”

On 31 August 1999 the Ministry decided to provide education in Turkish in the school in Centar Župa for the pupils whose mother tongue was Turkish in accordance with the Council of Ministers' decision of 10 August 1999 to that effect.

On 17 May 2000 the political party 'Liga za Demokratija' and the associations of citizens “The World Macedonian Congress” and “the Association of the Macedonians with Muslim Religion in Macedonia” asked the Constitutional Court to examine the constitutionality of the Council of Minister's decision of 10 August 1999 and the respective Ministry's decision of 31 August 1999. On 5 July 2000 the Constitutional Court declared the decisions null and void on the following grounds:

... it, inter alia, appears that (1) the impugned acts determined that Turkish was the mother tongue of all the pupils [residing in] the municipality of Centar Župa ...

Under Article 48 § 4 of the Constitution the members of the national minorities have the right to education in their language in primary and secondary schools in accordance with the respective law. In the schools where the education is in the languages of the minorities, the Macedonian language shall be studied as well.

It follows that the members of the minorities are educated in the primary and secondary schools in their language, and that is, according to the court, the language of their choice [which they use] in their everyday life. Therefore, the provision of the Constitution established objective criteria for the fulfilment of the right to education of the national minorities in their language [which] does not depend on the subjective will of the State bodies ...

The impugned acts provide education in Turkish for the pupils in the municipality of Centar Župa who use the Macedonian language of their choice in their everyday communications and, thereby, express their national identity, and who do not use the Turkish language in their everyday communications and of their choice. Thus, [the acts] exceeded the boundaries of the Constitutional framework setting out the rights of the national minorities to education in their language (Article 48 § 4 of the Constitution) and inhibited the achievement of the purpose of education - to provide knowledge, and impinged upon the very content of the right to education, i.e. the [right to] education is being manipulated with the purpose of changing the national identity of a number of pupils in the municipality. Therefore, the court finds that the impugned acts are not in conformity with the aforementioned Constitutional provision.

On 22 February 1997 the applicant asked the Kođađik school to admit his older daughter. Since he received no reply, on 20 March 1997 he complained to the Second Instance Government Commission (“the Commission”). No reply was received by the applicant.

On 4 June 1997 the applicant brought administrative proceedings before the Supreme Court, arguing that his daughter had the right to education in Turkish.

On 16 June 1997 the Kođađik school refused to enrol the applicant's older daughter as the applicant's place of residence was in a different district.

On 8 October 1997 the Supreme Court refused to examine the applicant's complaint on the merits in respect of the Kođađik school's refusal to enrol his older daughter. It, inter alia, stated:

Under section 26 § 1 of the Administrative Disputes Act if the second instance administrative body does not pass a decision within sixty days, and on the person's repeated request to act does not reply within seven days, the person may institute administrative proceedings ...

... it cannot be established from the submitted documents that the [second instance] administrative body received [the applicant's] second request to act ... it follows that the complaint is premature.

The applicant's request that the Ministry provides education in Turkish ... is inadmissible, as under section 6 of the Administrative Disputes Act a complaint may only be lodged concerning the administrative acts and the [applicant's] request is not an administrative act ...”

On 28 May 1998 the applicant requested the Constitutional Court to quash the Supreme Court's decision of 8 October 1997. He, inter alia, complained that the court had assessed the evidence wrongly and that his daughter had been discriminated against as a result of the Supreme Court's decision since she was denied access to a Turkish-speaking school.

On 17 June 1998 the applicant was informed that the Constitutional Court had not been competent to deal with his complaint. On 9 December 1998 the Constitutional Court refused to examine the applicant's complaint that the Supreme Court's decision of 8 October 1997 interfered with his daughter's right to education in Turkish. It, inter alia, held that:

“... the Supreme Court did not decide on the enjoyment of the right to primary education in the language of the minorities, but on the procedural conditions ... to institute administrative proceedings, as such [the decision] cannot have any repercussions in favour or to the disadvantage of the applicant ...

... the [impugned] decision is procedural and [does not examine] the merits and does not concern the right to primary education in the minorities' languages, therefore, the court holds that there are procedural impediments to examine the applicant's complaint ...

On 18 May 1998, the applicant requested that his younger daughter D. be enrolled in the Turkish-speaking primary school in Kođađik.

On 28 August 1998 the applicant's request was refused by the Principal of the school as he lived in another district.

On 31 August 1998 the applicant applied to the Supreme Court to expand his existing claim concerning his older daughter with complaints concerning his younger daughter D.

On 21 October 1998, the Supreme Court informed the applicant that it was not possible to expand his claim as the case concerning his older daughter had terminated on 8 July 1998 and that his application would be treated as concerning a new claim. He was requested to identify and provide a copy of the administrative act against which the claim was directed within fifteen days.

On 6 November 1998, the applicant wrote to the local office of the Ministry lodging an objection with the refusal of the Kođađik school to enrol D.

On 23 December 1998 the Supreme Court refused to examine the applicant's complaint about the school's refusal on the ground that he had not complied with the fifteen day time-limit for completing his appeal.

On 1 February 1999 the applicant complained to the Commission that he had not received a reply to his objection.

On 4 March 1999 the Ministry informed the applicant that he should enrol his daughter in the school in his place of residence.

On 15 March 1999 the applicant applied again to the Commission, considering that this was neither a decision nor an administrative act and requiring that a decision be taken.

On 28 April 1999, having not received an answer from the Commission, the applicant lodged an administrative complaint with the Supreme Court.

From 1 September 1999, following the decision of the Ministry on 31 August 1999, children in the primary school in Centar Župa whose parents had requested them to be taught in Turkish, including the applicant's daughter D., commenced their regulation education classes which were conducted in Turkish.

On 24 November 1999, the Supreme Court requested the applicant to specify the basis of his complaints.

On 21 November 2000 the Supreme Court dismissed the applicant's administrative complaint on the ground that under the Primary Education Act pupils were assigned to schools in accordance with their place of residence and that he had been informed that his daughter had to attend the school in Centar Župa. The court further relied on the Constitutional Court's decision of 5 July 2000 annulling the Government's decisions to provide education in Turkish in Centar Župa.

The Centar Župa primary school attended by D. continues to teach regular classes in Macedonian, Albanian and Turkish.

Article 44 provides as follows:

“Every person has the right to education. Education is accessible to all persons under equal conditions. Primary education is compulsory and free of charge.”

Article 48 provides as follows:

“The members of minorities have the right to express, nurture and promote their identity and national attributes.

The Republic guarantees the protection of their ethnic, cultural, linguistic and religious identity.

The members of minorities have the right to establish institutions for culture and art, as well as scientific and other associations to express, nurture and promote their identity.

The members of minorities have the right to education in their language in the primary and secondary schools in accordance with the relevant law. In the schools where the education is provided in the minorities' languages, the Macedonian language shall also be taught.”

Article 110 § 3 sets out the Constitutional Court's competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation. Article 112 provides that the Constitutional Court shall repeal or revoke a law if it determines that it does not conform to the Constitution and that it shall repeal or revoke any other regulation or enactment, collective agreement, statute or programme of a political party or association, if it determines that it does not conform to the Constitution or law.

Section 51 provides that a person who claims to be a victim of a violation of one of the rights set out in Article 110 § 3 of the Constitution shall have the right to file an application with the Constitutional Court.

Section 8 provides, inter alia, that the members of minorities shall have the right to education in their own language. They shall also study the Macedonian language.

Section 45 provides that primary schools shall admit all the pupils living in their district. Sections 46 and 47 provide that the parents are responsible for the enrolment of their children and for their regular attendance at the classes. The primary school shall inform the Ministry of Education and Sport about the pupils of its area who have not enrolled, or have not attended the classes for more then thirty days without a justification.

Section 48 provides, inter alia, that on the parents' or guardians' request the pupils may be transferred to another school.

Section 230 provides that an appeal can be lodged against a decision of an administrative body with the second instance administrative body within fifteen days.

Section 26 § 1 provides that a person may institute administrative proceedings before the Supreme Court provided that the second instance administrative body does not decide on the matter within sixty days from the day the appeal against the first instance administrative body is received, and does not react within seven days on the person's repeated request.


No violation of Art. 6-1;No violation of Art. 8

The applicant was born in 1944 and lives in Tallinn. He and another Estonian national have a daughter born out of wedlock in 1992. On 31 July 1994 mother and daughter arrived in Finland. On 17 February 1995 their residence there was officially registered. In 1994-1998 the daughter lived both with her father in Estonia and with her mother in Finland in accordance with an agreement between the parents.

According to the Government, on 18 January 1995 the applicant gave his written consent to the child's temporary stay in Finland and on 5 February 1995 he gave his consent that she stay permanently in Finland, presupposing that his visiting rights would not be affected.

According to the applicant, he and the mother agreed in writing on 3 February 1995 that they would participate equally in the care of their daughter and that she would spend an equal amount of time, about one month at a time, with each parent.

On 8 December 1995 the applicant and the mother agreed that neither of them would pay the other maintenance in respect of their daughter. On 19 December 1995 the agreement was confirmed by the Social Welfare Board (sosiaalilautakunta, socialnämnden) of Harjavalta, Finland.

On 17 August 1998 the mother removed the child from day care in Tallinn and brought her to Finland.

On 12 November 1998 the mother instituted custody proceedings in the District Court (käräjäoikeus, tingsrätten) of Kokemäki, Finland, following which the court made an interim order awarding her sole custody.

The court received the Social Welfare Board's of Harjavalta and the Social Welfare and Health Care Department's (Sotsiaal- ja Tervishoiuamet) of Tallinn written opinions on the assessment of the parents and their living conditions. The Finnish authority had interviewed the mother, the child and her brother, the mother's partner and the child's day care teacher. It did not interview the applicant nor did its Estonian counterpart interview anyone other than the applicant. It appears that the authorities did not contact each other before submitting their opinions.

The District Court held two hearings, on 17 May and 4 June 1999, during which the parents with counsel were present. It received evidence from the parties and several witnesses. In its decision of 9 June 1999 the court found that the Finnish courts had jurisdiction and that Finnish law was applicable to the case. The court held that as the parents were unable to agree on matters relating to custody, custody should be awarded to the mother alone. The court reached its decision having had regard to all the circumstances and evidence submitted to it and having assessed the case also in the light of the written opinions of the relevant social welfare authorities.

On 10 December 1999 the Turku Court of Appeal (hovioikeus, hovrätten), having held a hearing, rejected the applicant's appeal. It held that the Finnish courts had jurisdiction because the child resided in Finland and had a close connection with the country. It also agreed with the lower court that Finnish law was applicable. As the parents' agreement of February 1995 had not been confirmed by the Social Welfare Board, the custody had not been settled prior to the proceedings in question. Further, the court found that the child's living conditions with the mother were balanced and solid. As the parents were unable to make decisions together relating to their daughter's custody, the court saw no reason to amend the lower court's decision.

On 12 June 2000 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.

In 2002 the applicant lodged an application with the Finnish Ministry of Justice (oikeusministeriö, justitieministeriet) in order to have the child returned to Estonia under the Hague Convention on the Civil Aspects of International Child Abduction. The application was rejected, since it had already been confirmed by the above-mentioned courts that the child's habitual residence was in Finland. Thus, the Hague Convention did not operate.

Meanwhile, on 28 August 1998 the applicant instituted custody proceedings before the Tallinn City Court (Tallinna Linnakohus). In June 1999 the proceedings were suspended “until clarification of the issue of proper forum”.

On 26 January 2000 the applicant instituted access proceedings before the District Court of Kokemäki. He requested that the child be allowed to visit him once a month from Friday evening until Sunday evening and during some of the holidays.

On 9 June the court received a written opinion from the Social Welfare Board of Harjavalta, which had interviewed the mother and her partner on several occasions. Also the daughter had been interviewed at her home. The applicant had been interviewed over the telephone and he had submitted some documents in support of his access claim.

On 6 July 2000 the court held a hearing during which the parents with their counsel were present. It received written and oral evidence.

On 14 July 2000 the court ordered that the child should have the right to meet with the applicant every other Friday from 12 noon to 6 p.m. under the supervision of a social worker at the child's domicile. The mother was to assume responsibility for transporting their daughter to these meetings and for bearing the transportation costs. The court considered that the visits should be supervised owing to the fact that the applicant and the child had not met regularly for two years. One of the factors that contributed to this conclusion was that the applicant had allegedly tried to abduct the child. Further, as to the view of the Social Welfare Board that access should be granted twice a month for three hours at a time, the court found that three hours was too short a period in order to develop a trusting relationship between the applicant and his daughter and accordingly, it ordered that the visits should last six hours at a time. Lastly, the court emphasised that the access arrangements could be altered in the future, if need be.

On 9 March 2001 the Turku Court of Appeal rejected the applicant's appeal without an oral hearing. As to the allegedly unfair District Court proceedings, it found that the applicant had been able to submit evidence, which fact transpired from the decision. In its decision the District Court had stated what evidence had been submitted to it. As to the merits, the Court of Appeal found no reason to amend the lower court's decision.

On 30 July 2001 the Supreme Court refused leave to appeal.

Custody and right of access may be organised either by an agreement that is confirmed by the Social Welfare Board or by a court decision. The parents can have joint custody, custody can be awarded to one of the parents or to some one else who has consented thereto. The child has the right to maintain contact and meet with the parent with whom he or she no longer resides (sections 7, 8 (186/1994) and 9) of the Child Custody and Right of Access Act (laki lasten huollosta ja tapaamisoikeudesta, lag angående vårdnad om barn och umgängesrätt; 361/1983). When making a decision relating to custody and right of access, the best interests and the wishes of the child must be taken into account (sections 10 and 11).

When a child has domicile in Finland at the time of conclusion of an agreement on his or her custody, the agreement has to be made in accordance with Finnish law, even if all the parties are of a foreign nationality. In order for the agreement to be valid, it has to be confirmed by the Social Welfare Board (section 8). Alternatively, the question of custody may be decided by a court. An agreement concluded without the confirmation of an authority may upon request be recognised and enforced in Finland as a decision given in a foreign State, if the measure is legally valid and enforceable in the State where the child had habitual residence at the time of conclusion of the agreement (section 23).

In order to have an agreement enforced in Finland it must first be recognised by the Helsinki Court of Appeal (section 25; 186/1994).

A parent may at any time institute proceedings in a case relating to custody or right of access (section 14). An agreement or a court order may be amended if the circumstances have changed (section 12).

's opinion on how custody or rights of access could be arranged (section 16; 186/1994).

In cases where the parents are unable to reach an agreement on custody or rights of access, the case will be decided by the court. The guiding principle is the best interests of the child. Special attention shall be paid to the manner in which custody or right of access may best be realised (section 10).

The child's wishes and views must be ascertained as far as possible in view of the child's age and stage of development. The views of the child shall be ascertained tactfully, taking his or her stage of development into account, and in a manner not detrimental to the relationships between the child and the parents (section 11).

In normal circumstances a twelve-year-old is considered mature enough to express his or her views. The interview of a child is usually conducted by the social welfare authorities and at the child's home. However, the court may decide to hear the child in person, if there are important reasons for doing so, the child does not object to it and it causes no harm to the child (section 15).


The applicant, Mr Wolfgang Weber, is a German national who was born in 1935 and lives in Estancia Campo’i Filadelfia, District Chaca (Paraguay). He was represented before the Court by Mr U. Grammel, a lawyer practising in Stuttgart.

Until 1992 the applicant was the executive president (Vorstandsvorsitzender) of a public limited company, Südmilch AG, which collapsed in 1993. When the Stuttgart Public Prosecutor’s Office instituted criminal proceedings against the applicant on suspicion of breach of trust and falsification of a balance sheet, the applicant left Germany and moved to Paraguay. During the criminal proceedings, the applicant was interrogated on 30 January 1997 by the consular service (konsularische Vernehmung) of the German Embassy in Asunción. On 9 January 1998 the Stuttgart Public Prosecutor’s Office discontinued the criminal proceedings against him. During these proceedings the applicant had been represented by a lawyer, W, practising in Stuttgart.

On 30 August 1996 a creditor company brought a civil action for damages against the applicant personally before the Stuttgart Regional Court, claiming damages of three million DEM.

On 23 October 1996 the Regional Court lodged a request to serve the writ on the applicant through the German diplomatic service (Zustellungsantrag im Wege der Rechtshilfe).

On 30 January 1997 the German Embassy in Asunción made an attempt to serve the writ directly on the applicant following his interrogation in the criminal proceedings. According to the Embassy the applicant refused to permit his lawyer W to accept the writ. According to the applicant, only W was informed of the writ, but the lawyer declined to accept it and consequently the applicant was not aware of the writ.

Subsequently, the Embassy referred the request to the Paraguayan authorities for action, but the latter did not execute the request for service.

On 27 February 1998 the plaintiff requested the Regional Court to serve the writ by public notification (öffentliche Zustellung) referring to information from the Embassy according to which attempts to serve documents in Paraguay usually failed because the Paraguayan authorities remained inactive.

As it was not possible to have the writ served by the Paraguayan authorities, on 5 March 1998 the Regional Court ordered service of the writ by public notification in the Federal Bulletin and on the court’s notice board. It fixed a two-month time-limit for entering a notice of defence.

On 2 April 1998 the writ was published in the Federal Bulletin. Between 24 March 1998 and 8 April 1998 it was posted on the court’s notice board.

On 2 July 1998 the two-month time-limit set by the Regional Court for entering a notice of defence elapsed without any reaction from the applicant.

On 7 July 1998 the Regional Court ordered the applicant by way of default judgment to pay the plaintiff damages amounting to three million DEM and fixed a two-month time-limit for filing objections (Einspruchsfrist).

On 15 July 1998 the judgment was served by public notification on the court’s notice board. It became final on 30 July 1998. The two-month time-limit fixed by the Regional Court for filing objections elapsed on 30 September 1998.

By letter of 27 July 1999, the applicant’s lawyer W asked the plaintiff’s lawyer about the civil proceedings. On 2 August 1999 he was informed that the civil proceedings had ended a year earlier with the default judgment.

On 28 June 2000 the applicant lodged an objection against the default judgment before the Stuttgart Regional Court and requested reinstatement of the proceedings. The applicant argued that the Regional Court had no right to serve the judgment by public notification within the meaning of Section 203 § 2 of the Code of Civil Procedure. As the Regional Court knew his address it should have served the judgment by postal service in terms of Section 175 of the Code of Civil Procedure. On 9 August 2000 the applicant’s lawyer W stated that he did not wish to challenge the validity of the public notification of the writ, which in his view had been erroneous but valid (er wende sich “nicht gegen die obschon fehlerhafte, aber trotzdem wirksame öffentliche Zustellung der Klagschrift”). His complaint was limited to a challenge to the validity of the public notification of the default judgment.

On 13 September 2000 the Regional Court rejected the applicant’s objection on the ground that the judgment had been validly notified (by public notification), and that the public notification itself had been valid. The Regional Court found that there had been no entitlement to postal service according to Section 175 of the Code of Civil Procedure as it was for the court, in its discretion, to select the method of service (pflichtgemäßes Ermessen) once the conditions set out in Section 203 § 2 of the Code of Civil Procedure had – as in the applicant’s case - been satisfied. It opted for service by public notification because postal service was disadvantageous to the applicant. Thus, Section 175 § 1 sentence 3 of the Code of Civil Procedure provided that the relevant time-limit started to run from the day on which the judgment had been posted. It was therefore likely that the time-limit for lodging an objection would have elapsed before the applicant received the default judgment. Moreover, postal service would be invalid if it transpired that the defendant’s address had been incorrect. In such a case the court would have to re-serve by way of postal service, which was neither in the plaintiff’s interest nor in the interest of legal certainty.

At the same time, the Regional Court rejected the applicant’s request for reinstatement because the applicant had failed to comply with Section 234 § 3 of the Code of Civil Procedure as he had lodged his application for reinstatement only on 28 June 2000, which was far more than one year after the expiry of the time-limit for objections on 30 September 1998. Moreover, the applicant had failed to comply with the two-week time-limit to lodge his request for reinstatement (Wiedereinsetzungsfrist) within the meaning of Section 234 § 1 of the Code of Civil Procedure. The court noted that on 2 August 1999 W had been informed that the civil proceedings had ended a year earlier with the default judgment. Therefore, the applicant should have lodged his request for reinstatement in August 1999.

Finally, the Regional Court pointed out that the applicant had missed the time-limits through his own fault. It considered that the applicant had been aware of the civil proceedings and the default judgment. Thus, the German Embassy had tried to hand the writ over to the applicant at the end of his interrogation in the German Embassy during the criminal proceeding, but he had refused to accept it himself and had forbidden to serve it on his lawyer W. Even if only W was informed of the writ on 30 January 1997, as submitted by the applicant, W was known to the court as a very diligent lawyer who would have informed the applicant about the existence of the civil proceedings even if he had only been mandated for the criminal proceedings. Therefore the applicant failed to comply with the requirement of Section 174 § 2 of the Code of Civil Procedure to appoint a person for service (Zustellungsbevollmächtigten) to ensure the receipt of his mail.

On 30 March 2001 the Stuttgart Court of Appeal rejected the applicant’s appeal for the following reasons:

First, the conditions for public notification in terms of Section 203 § 2 of the Code of Civil Procedure had been satisfied, given in particular that service abroad had proved to be impossible due to the Paraguayan authorities’ lack of cooperation in dealing with requests for service of judicial documents. In this respect the Court of Appeal referred to the unsuccessful attempt of the Regional Court to serve the writ on the applicant through the diplomatic service and to the German Embassy’s communication of 30 January 1997 which confirmed that requests to serve documents were often not executed by the Paraguayan authorities.

Secondly, it found that the Regional Court had reasonably exercised its discretion to decide upon the type of service by striking a fair balance between the competing interests of legal certainty and the plaintiff’s right to have justice administered (Justizgewährungsanspruch), on the one hand, and the applicant’s right to fair trial, on the other hand. Thus, postal service would have excluded the application of Section 339 § 2 of the Code of Civil Procedure and, hence, the possibility to apply a longer time-limit to lodge objections against the default judgment than the two-week time-limit provided for by Section 339 § 1 of the Code of Civil Procedure. Both service by public notification and postal service contained an assumption that the documents had been duly served (Zustellungsfiktion). However, postal service entailed the additional risks for the plaintiff that the defendant’s address was incorrect or that the latter had changed his residence. In circumstances as in the present case where the defendant deliberately left Germany and moved to a country which did not cooperate with Germany in judicial matters, it would be unfair to burden the plaintiff, who had no opportunity to verify the correctness of the defendant’s address, with that risk.

Thirdly, the Court of Appeal relied on the Embassy’s information according to which the applicant had refused to permit his lawyer W to accept the writ. Thus, the applicant had been aware of the civil proceedings and could have participated in them. Moreover, the Court of Appeal emphasized that the applicant produced the difficult situation himself by moving to a non-cooperative country without complying with his procedural obligation under Section 174 § 2 of the Code of Civil Procedure to appoint a person for service and, hence, to ensure the receipt of his legal documents.

On 11 March 2002 the Federal Court of Justice dismissed the applicant’s further appeal. It argued that the applicant could not invoke a violation of his right to be heard because he had explicitly accepted the validity of the writ’s service by letter of 9 August 2000. In doing so he must be treated as if he had had the opportunity to appoint a person for service in terms of Section 174 of the Code of Civil Procedure.

On 18 February 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint without giving any reasons.

Sections 174 et seq. of the Code of Civil Procedure as in force at the material time governed the service of legal documents. Pursuant to Section 174 § 2 of the Code of Civil Procedure parties residing abroad were required to designate a person for service if they had no authorised legal representative who resided within the judicial district of the trial court. If the party failed to do so, the document could be served by post. In that case Section 175 § 1 sentence 3 of the Code of Civil Procedure provided that the document was deemed to have been served at the moment in which it was delivered to the post office. According to the case law of the Federal Court of Justice (see decision of 10 November 1998, no. VI ZR 243/97) the presumption of service (Zustellungsfiktion) did not apply in cases where the address of the recipient had been incorrect or incomplete.

Section 199 et seq. of the Code of Civil Procedure as in force at the material time governed the service of documents abroad. As a general rule a court’s request for service abroad of a judicial document should be effected either directly by the competent authority of the state addressed or through the diplomatic channel. Section 203 § 2 of the Code of Civil Procedure provided for that the document might be served by public notification (öffentliche Zustellung) if the service abroad had either proved impossible or was unlikely to be successful. Instead of ordering service by public notification, the domestic courts could, acting within their discretion, decide to serve the document by postal service pursuant to Section 175 § 1 of the Code of Civil Procedure. According to Section 206 of the Code of Civil Procedure a writ was considered to have been served one month after the public notification in the Federal Bulletin; a judgment was deemed to have been served two weeks after the notification on the court’s notice board.

Section 233 et seq. of the Code of Civil Procedure govern the reinstatement of proceedings. Section 233 of the Code of Civil Procedure provides that the reinstatement of the proceedings is granted where persons, through no fault of their own, are prevented from complying with inter alia the time-limit for lodging an objection against a default judgment or for requesting the reinstatement of the proceedings. Pursuant to Section 234 §§ 1, 2 of the Code of Civil Procedure the application for reinstatement of the proceedings must be made within two weeks from the moment in which the party becomes aware or should have become aware of the non-compliance with the respective time-limit. Section 234 § 3 of the Code of Civil Procedure precludes applications for reinstatements which are made more than one year after the relevant time-limit, such as the time-limit for lodging objections, had elapsed.

Section 339 § 1 of the Code of Civil Procedure provides that the two-week time-limit for lodging objections against default judgments starts to run with the service of the judgment. According to Section 339 § 2 the court fixes a time-limit for lodging objections if the service has to be effected abroad or by public notification.

Paraguay is not a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, nor is there any bilateral agreement on the service of judicial documents between Paraguay and Germany. In the absence of any such agreement, requests for legal assistance from Germany are executed on the basis of reciprocity in Paraguay.

The German administrative rules on mutual assistance in civil and commercial matters (Rechtshilfeordnung für Zivilsachen) provide guidelines for the domestic courts on how to deal with requests for mutual legal assistance. They also contain a country section which reports on the specific situation in the different States, including Paraguay.

According to these rules, a German court which wishes to serve a document on a party in Paraguay may send a request through the diplomatic channel. Such request shall be sent to the German Embassy in Asunción which will refer the request to the Paraguayan authorities for action. Members of the German Embassy are allowed to serve documents directly, i.e. without the involvement of the Paraguayan authorities, either on persons who reside in Asunción or on persons residing outside the capital if the service may be effected on a representative (Vertrauensperson). The administrative rules also allude to the long periods of time needed for the execution of such requests in Paraguay.


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicants are Turkish nationals and at the time of their applications they were all but six in pre-trial detention in Diyarbakır F-type Prison. The names and dates of birth of the applicants appear in the appendix. They were all represented before the Court by Mr M. Şahin and Mr O. Çelik, lawyers practising in Diyarbakır.

On 7 September 2006 the applicants announced a collective two-day hunger strike in protest against the conditions of detention of Abdullah Öcalan, leader of the PKK (the Workers’ Party of Kurdistan), an illegal, armed organisation. On 11 September 2006 the Diyarbakır F-type Prison Disciplinary Board imposed a disciplinary sanction on the applicants, consisting of a one-month ban on sports activities and conversation in groups (spor ve sohbet etkinlikleri), for launching a hunger strike and forming a group with a view to breaching the regulations. The applicants lodged appeals, which were rejected by the Diyarbakır Enforcement Court and the Diyarbakır Assize Court on 25 September and 9 October 2006 respectively. The final decision was deposited with the registry of the court on 10 November 2006.

Law no. 5275 on the Enforcement of Sentences and Preventive Measures provides as follows:

Article 40

“1. The penalty of a deprivation of certain activities deprives convicts of the right to participate in the prison workshops and sports activities from one to three months.

The acts requiring the penalty of a deprivation of certain activities are as follows:

(g) launching a hunger strike ...”