Violation of Art. 6-1;Not necessary to examine Art. 6-1 (independence and impartiality of the court);Violation of Art. 14+P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage - financial award (global)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Isabelle Berro-Lefèvre

The applicant was born in 1932 and lives in Sancraiu de Mureş.

In 1953 the applicant was called up for military service. However, because of his father’s opposition to the collectivisation of farmland, he was not allowed to undergo military training. Instead, he was assigned to a number of military units, including the Vatra Dornei unit, as a building worker. His military service ended in 1955.

In 1961 the Labour Department, an administrative body grouping together the military units specially created for conscripts who were barred from military training, was abolished.

Law no. 309 of 22 May 2002 (“Law no. 309-2002”) recognised as forced labour the work performed in the military units coming under the authority of the Labour Department, and provided for compensatory measures including a monthly allowance, free medical treatment and exemption from the television licence fee.

On 22 August 2002 the applicant applied to the county pensions and social insurance fund (“the county fund”), claiming the benefits available under Law no. 309-2002. In a decision of 19 December 2002 the county fund refused the application on the ground that the applicant had not performed his military service in a military unit coming under the authority of the Labour Department.

On 5 May 2003 the applicant brought proceedings against the county fund before the Targu Mureş Court of Appeal, seeking to have the decision of 19 December 2002 set aside and to be recognised as having performed forced labour during his military service.

In a judgment of 2 June 2003 the Court of Appeal found in the applicant’s favour and ordered the county fund to issue a new decision awarding him the benefits provided for by Law no. 309-2002. On the basis of the entries in the applicant’s military service record book, the Court of Appeal concluded that he had worked on various building projects with the Vatra Dornei military unit and had been discharged from service as an “untrained combat soldier”.

The county fund appealed to the High Court of Cassation and Justice (“the HCCJ”).

At the applicant’s request, the HCCJ referred to the Constitutional Court an objection raised by the applicant as to the constitutionality of Article 1 of Law no. 309-2002. The applicant alleged that, in making a distinction between persons who had performed the same kind of forced labour during their military service, the provision in question was in breach of Article 16 of the Constitution and of the European Convention on Human Rights. He considered this difference in treatment to be unjustified since it was based solely on the hierarchical structure to which the conscript’s military unit had belonged.

The Constitutional Court dismissed the objection in a judgment of 1 April 2004, which included the following passage:

“The definition of the categories of persons who are eligible for certain measures in compensation for the duress and hardship they underwent in the past ... is a matter for the legislature alone, provided that no privileges or discrimination are engendered between persons belonging to the same category and in identical situations. Article 1 of Law no. 309-2002 does not give rise to any privileges or discrimination contrary to Article 16 of the Constitution.”

In a judgment of 8 June 2004 in which it found in favour of the county fund, the HCCJ quashed the judgment of the Court of Appeal and remitted the case for further preparation, with a view to determining whether the Vatra Dornei military unit had been attached to the Labour Department.

In a letter of 1 November 2004 in reply to a request for information made by the Court of Appeal, the Piteşti military unit, which kept the army archives, stated that the Vatra Dornei military unit did not feature on the list of units attached to the Labour Department. It added that, in accordance with the rules on the implementation of Law no. 3092002, the list had been drawn up by the National Pensions and Social Insurance Fund, which had made it available to the military unit as a “working tool”.

On 3 November 2004 the national archives of the Ministry of the Interior and Administrative Affairs informed the Court of Appeal that the Vatra Dornei military unit had not been attached to the Labour Department.

On the basis of the information provided by the Piteşti military unit and the national archives, and taking the view that Law no. 309-2002 applied only to conscripts who had worked in military units coming under the authority of the Labour Department, the Court of Appeal dismissed the applicant’s claims in a judgment of 8 November 2004.

The applicant appealed to the HCCJ. In his submission, the Piteşti military unit, by confining itself to reproducing the information contained in the list drawn up by the National Pensions and Social Insurance Fund and omitting to check the recruitment file, which contained proof of the work carried out, had not adequately replied to the request for information from the Court of Appeal.

The applicant further contested the distinction made by the Law between those conscripts who had performed forced labour in military units answerable to the Labour Department and other conscripts who, although they had performed the same kind of work, were not entitled to benefits under the Law solely because their military units had not come under the authority of the Labour Department. He argued that, in any event, the HCCJ, in a judgment of 21 January 2004, had recognised a former conscript in a similar situation to his own as being covered by the provisions of Law no. 309-2002.

In a final judgment of 13 May 2005, the HCCJ dismissed the appeal and upheld the judgment of the Court of Appeal on the following grounds:

“In accordance with Law no. 309-2002, persons who performed their military service between 1950 and 1961 in the work brigades under the authority of the Labour Department are covered by the provisions of that Law.

It follows that the decisive criterion for eligibility under the Law is not the kind of work performed within the military unit, for example building work, but whether or not the unit in question came under the authority of the Labour Department, within which work brigades were established.

As a result, given the information provided by the Piteşti military unit in its letter stating that the unit to which the applicant belonged was not on the list of units answerable to the Labour Department, the Court of Appeal was correct in ruling that the conditions for application of the Law were not met in the instant case and in dismissing the appeal accordingly.”

“Any Romanian citizen who performed military service between 1950 and 1961 in the work brigades coming under the authority of the Labour Department shall be covered by the provisions of this Law.”

“The persons referred to in Article 1 shall be entitled to a monthly allowance ...”

“The persons referred to in Article 1 ... shall also be entitled to ...:

– free medical treatment and medicines ...;

– exemption from the television licence fee ...”

“(2) The benefits referred to in the preceding sections shall be awarded on request, regard being had to the entries in the individual’s military service record book or certificates issued by the county military headquarters or the Piteşti military unit.

(3) Requests for these benefits shall be addressed to the county pensions and social insurance funds.”

“For the purposes of the award of the benefits provided for by this Law, the National Pensions and Social Insurance Fund may request the national archives ... to compile, on the basis of the documents at its disposal, a list of the work brigades under the authority of the Labour Department.”

In a case similar to the present one, a former conscript who had performed forced labour in a military unit which did not come under the authority of the Labour Department claimed eligibility under the provisions of Law no. 309-2002. When the county pension fund dismissed his claim on the ground that the Law applied only to conscripts in the work brigades, he appealed to the Court of Appeal, which found in his favour.

Following an appeal by the county fund, the HCCJ upheld the Court of Appeal judgment on the following grounds:

“As the fact that the claimant was subjected to forced labour is not in dispute ..., there is no justification for withholding the benefits in question. To do so would be to create an inequitable situation, denying compensation to persons who performed military service in identical conditions and who, for purely formal reasons relating solely to the hierarchical structure to which their military units belonged, would thus be subjected to different treatment of a clearly discriminatory nature.”

In a number of other judgments, including those of 4 November 2003, 21 January, 2 June and 14 December 2004, 11 and 19 January, 7, 14, 18, 22 and 28 February, 1, 8, 14 and 28 March and 24 May 2005, and 24 May and 6 June 2006, the HCCJ delivered rulings to the same effect as that referred to above.

However, in other judgments, and in particular those delivered on 13 and 28 November 2003, 11 March and 15, 22 and 29 April 2004, 11 and 18 January, 1, 17 and 21 February, 1, 10 and 28 March, 13 and 23 May and 14 November 2005, and 12 and 13 April and 25 May 2006, it ruled to the opposite effect, holding that conscripts who had not performed their military service in a military unit coming under the authority of the Labour Department were not covered by the provisions of Law no. 309-2002.


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Serbia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life)

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The first applicant is Mr Sladjan Nacic born in 1969, the second applicant is Mrs Jelena Nacic born in 1971, and the third and fourth applicants are their sons, born in 1991 and 1994. They are currently in Sweden.

The applicants are of Roma descent and lived in the village of Kosovo Polje. Following the outbreak of war in 1999, the first applicant refused to participate in the fighting and hid from the armed forces. Due to this, the other applicants were subjected to threats and beatings by Serbian military. Finally, they were driven out of their home by Albanian militia. They fled by train to Suvi Do, another village in Kosovo. On their way, they lost a bag containing their passports and identification papers. They hid at a friend’s home, where they remained completely isolated from the world until they travelled to Sweden in 2006. They had felt harassed in Kosovo because of their being Roma, but they had not been subjected to any persecution, allegedly due to their isolation. They applied for asylum and permanent residence permits on arrival.

On 13 March 2008 the Migration Board (Migrationsverket) rejected their applications. First, the Board found that the applicants had not proved their identity. By submitting an UNMIK certificate on their residency in Kosovo Polje, they had made it plausible that they were from Kosovo or Serbia. However, the Board found that neither the general situation in Kosovo nor that in Serbia was such that it in itself constituted grounds for granting asylum. Also, the Board found that the applicants were not to be considered as refugees or as in need of any other specific protection. In regard to the applicants’ Roma ethnicity, the Board noted that the first applicant’s mother was Serb, that none of the family members spoke Romani or had any contact with other Roma. In Kosovo, they had lived in Serb areas and had only socialised with Serbs. In the Board’s view, it was difficult to conclude in these circumstances that the applicants would be seen as Roma upon return. Noting, furthermore, that they had not been subjected to any persecution because of their ethnicity previously, the Board concluded that they had failed to show that there was such a risk upon return.

The Board went on to assess whether the applicants’ personal situation could constitute a ground for granting residence permits. The first, second and third applicants submitted that they suffered from medical problems.

The first applicant claimed that he was hypertonic. The Board found that this was a common medical condition and that he would not be subject to any medical risk if he were to return to Kosovo or Serbia.

The second applicant claimed that she suffered from psychological problems and submitted a certificate issued by a nurse on 24 January 2008 and extracts from her medical records covering the period from 12 April to 17 December 2007. The Board found that the certificate had not been issued in accordance with Swedish regulations and did not contain any prognosis. Therefore, it was not able to assess fully the gravity of her condition or what type of care she needed. Nevertheless, it found that her condition was not life-threatening and thus could not constitute a ground for granting a residence permit.

The third applicant claimed that he also suffered from psychological problems and submitted a medical certificate issued by a senior physician on 25 January 2008. The Board found that the medical certificate did not contain any diagnosis and that it therefore could not assess whether or not the applicant could receive appropriate medical care in Kosovo or Serbia. The Board noted that treatment for depression was offered both in Kosovo and Serbia. It further noted that the applicant’s health had not improved after he had received treatment in Sweden and that his condition would probably only improve if he were in a more secure and stable environment.

The applicants appealed to the Migration Court (Migrationsdomstolen) in Malmö where they held to their earlier submissions and added the following. The whole family moved to a children’s home in July 2008, when the authorities decided that the parents did not have the ability to take care of their children under the existing circumstances. The applicants also submitted several medical certificates regarding the first, second and third applicants. According to the certificates regarding the first and second applicants, there was a risk that they might commit suicide if they were to be expelled from Sweden. Regarding the second applicant, it was stated that she had earlier attempted suicide and that she showed clear signs of post-traumatic stress disorder (PTSD).

According to the certificate regarding the third applicant, issued on 27 September 2008 by Ann-Marie Nyberg, specialist in youth psychiatry, he was in a very bad state on arrival in Sweden. He was depressed and could hardly interact with other persons. During the spring of 2007, he was in contact with the Children and Youth Psychiatric Care Unit (Barn- och ungdomspsykiatrin) in Lindesberg, which found that he suffered from depression. His condition improved when he started school and began to play football and also had a contact person assigned. However, after the Migration Board’s decision in March 2008, his depression became worse again. He isolated himself at home and became apathetic. In June 2008, he attempted suicide by overdose of anti-depressants. He was committed to hospital, but discharged after one day. When the family arrived at the children’s home in July 2008, he was in very poor condition, refused to eat solid food and stayed in bed most of the time. There would be a serious risk of another suicide attempt if he were to be expelled from Sweden.

On 1 December 2008 the Migration Court rejected the appeal, upholding the Board’s reasoning and conclusion, adding the following. The third applicant would soon be 18 years old. Although he suffered from severe depressive devitalisation, it could not be assumed that his psychosocial development would be damaged if he were to be expelled from Sweden. Also, psychiatric care was available in both Kosovo and Serbia, at least for those who could pay. Therefore, neither the third applicant’s health nor his personal situation were enough to justify granting him a residence permit. This reasoning also applied to the other applicants, who were all in better health. Two of the lay judges delivered a dissenting opinion finding that the third applicant’s health constituted a sufficient reason to grant him a residence permit. Applying the principle of respect for family life, they also found that the rest of the family should be granted a right to stay.

The applicants proceeded to the Migration Court of Appeal (Migrationsöverdomstolen) and submitted that they had been subjected to persecution in Kosovo due to their ethnicity and that this had caused their health problems. Their possibilities to receive proper care if sent back were limited, especially regarding the third applicant. Also, they would not have access to the health care system due to their ethnicity. Their health had deteriorated, as allegedly shown by several medical certificates submitted.

On 23 November 2009 the Migration Court of Appeal delivered its judgment. Regarding the third applicant, the court found that the medical certificates showed that he suffered from severe mental illness, that he was unlikely to get better in the foreseeable future and that the necessary treatment presupposed that he was in a safe, secure and stable environment. Furthermore, it found that health care was available in both Kosovo and Serbia, but that the applicant’s health issues had arisen due to events taking place there. Considering all this, the court quashed the lower court’s judgment and granted him a permanent residence permit. Regarding the other applicants, it upheld the lower court’s reasoning and decision.

Two dissenting opinions were attached to the appellate court’s judgment. In the first, one of the judges held that the third applicant had recently turned 18 years old, that he therefore should be regarded as an adult and that his circumstances should be assessed separately from the other applicants. Taking this into account, and also the fact that proper health care would be available to him in Kosovo or Serbia, the judge found that he had no right to remain in Sweden. He should therefore be expelled together with the other applicants.

In the second dissenting opinion, another judge held that the medical certificates clearly showed that the first, second and third applicants in particular suffered from severe mental illness. The documents available also showed that the condition for the third applicant’s well-being was a safe, secure and stable environment. Although he had turned 18, the family’s situation had to be taken as a whole. Therefore, all of the applicants should be granted permanent residence permits.

On 5 February 2010 the applicants lodged a new request for residence permits on the basis that there were impediments to the enforcement of their deportation order. They submitted new medical certificates and argued that their conditions had worsened. On 24 February 2010 the Migration Board rejected the request as it found that the applicants had invoked no new circumstances of importance and that there were no impediments to the enforcement of the first, second and fourth applicants’ deportation order. Moreover, as the third applicant had reached the age of majority, they could no longer be granted residence permits on account of family ties to him.

On 18 March 2010 the applicants requested the Court to indicate to the Swedish Government under Rule 39 of the Rules of Court a suspension of the first, second and fourth applicants’ deportation to Kosovo or Serbia.

On 23 March 2010, the applicants submitted new medical certificates concerning the first, the second and the third applicants. The certificates were issued jointly by Ann-Marie Nyberg, specialist in youth psychiatry, Anna-Karin Klenell-Hjerm, psychologist and psychotherapist, and Teija Jyrinki Kärkkäinen, trained social worker and psychotherapist and were dated December 2009.

The medical certificate regarding the first applicant stated that he suffered from grave depression, insomnia and eating disorders. He had suicidal tendencies, but had not made any suicide attempts out of concern for his children. The diagnosis was grave depression and complex PTSD. According to the medical certificate regarding the second applicant, her condition was serious and possibly fatal and she would not be able to cope with a separation from her son. The prognosis was that all treatment presupposed a safe, secure and stable environment. She was diagnosed with grave depression, depressive devitalisation and complex PTSD. The medical certificate regarding the third applicant stated that he was in need of professional therapy to be able to deal with his traumatic experiences. It was not possible for him to cope without the support of his family. If his parents and his brother were to be returned to Kosovo or Serbia, there was a grave risk that his depression would become worse and that his rehabilitation would be compromised. He was diagnosed with grave depression, depressive devitalisation and complex PTSD.

On 16 June 2011, the applicants submitted new medical certificates issued by Ann-Marie Nyberg and dated June 2011. According to these, the first applicant had been feeling slightly better since the family had moved from the children’s home to an apartment in Trollhättan in December 2010. However, he still suffered from feelings of futility and despair. The second applicant had been feeling better since the Court’s decision not to deport them until further notice. However, she had recently been feeling worse again due to her fear of a possible deportation. She still suffered from severe depression and PTSD and was worried about the third applicant’s health. The third applicant had gradually been feeling better since he had been granted a residence permit. However, his positive development had been halted by the threat of disruption of the family and he showed clear signs of falling into depression again. The fourth applicant had, due to his young age, been spared the traumatic experiences in Kosovo. However, according to the medical certificate, a disruption of the family could be expected to cause him a severe trauma.

The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the Aliens Act”), as amended on 1 January 2010. The following refers to the Aliens Act in force at the relevant time.

Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the Aliens Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act).

Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6 of the Aliens Act).

As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act).

It should also be noted that Chapter 1, Section 2 of the Aliens Act defines a child as a person under 18 years of age.

Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the Aliens Act).

The U.S. Department of State 2010 Country Reports on Human Rights Practices, states, inter alia, the following regarding the situation in Kosovo:

“Institutional and societal discrimination persisted against Kosovo Serb, Roma, Ashkali, and Egyptian communities in employment, education, social services, language use, freedom of movement, the right to return, and other basic rights. Members of the Kosovo Bosniak and Gorani communities also complained of discrimination, while Kosovo Croat and Kosovo Montenegrin communities were nominally acknowledged through appointment of their representatives to the Kosovo president’s Communities’ Consultative Council. Kosovo Bosniak leaders continued to complain that many of their community members continued to depart the country as a result of discrimination and, increasingly, an absence of economic opportunities. Members of the Roma, Ashkali, and Egyptian communities were subject to pervasive social and economic discrimination; often lacked access to basic hygiene, medical care, and education; and were heavily dependent on humanitarian aid for survival. Reports of violence and other crimes directed at minorities and their property persisted. There were clashes between groups of Kosovo Albanians and Kosovo Serbs during the year.”

The International Organisation for Migration’s report “Returning to Kosovo, country information” from 1 December 2009 provides the following:

“The public health care system in Kosovo is still in a phase of post-war reconstruction. The rehabilitation of the mental health system is one of the priorities of the MoH [...]. However, the system faces many challenges. The number of mental health professionals is very limited and the present educational system for mental health is underdeveloped. Existing institutions also have limited access modern know-how in psychiatry. Nevertheless, there is a favourable environment for accelerating reforms, supported by the Mental Health Strategy 2008-2011 of the MoH.

The mental health needs of the severely traumatised population are very high but there is only one psychiatrist for 90,000 inhabitants and one mental health worker for 40,000 inhabitants. There are only five clinical psychologists and a small number of social workers. The psychiatric treatment provided is biologically-oriented, using pharmaceuticals and hospitalisation as the main, if not the only, tools.

This sector suffers also from the destruction of medical equipment during and since the conflict in 1999. Treatment of post-traumatic stress disorder (PTSD), which became a matter of the greatest importance after the wars in Yugoslavia and the turmoil in Kosovo in March 2004, is in desperate need of improvement. Some calculations suggest that 140,000 to 200,000 people (an estimated 7-10% of the population) are suffering from PTSD. The mental health care system in Kosovo simply does not have sufficient resources of people or facilities to respond to the need for treatment for mental health disorders.

Because of the lack of clinical psychologists and psychiatrists, there is almost no time for psychotherapy. The extreme lack of beds for chronically mentally ill people, and the lack of forensic psychiatry services aggravate the problem. There is only one child psychiatrist in the public health service to provide adolescent mental health services for a population that is overall very young. Drug addiction is also a growing problem without an adequate solution because of the lack of specialised professionals and institutions.

However, with international support, new facilities, called “Houses of Integration”, have been opened in Gjakovë/Djakovica, Gjilan/Gnjilane, Prizren, Mitrovicë/a and Drenas/Gllogovac. These facilities offer protected apartments for people with minor mental health problems, as well as therapeutic and psycho-social support. In 2006 the new Intensive Care Psychiatric Unit (ICPU) of the UCC in Prishtinë/Priština became operational. This facility is intended to offer psychiatric treatment to people with severe mental health problems. The Swiss Red Cross and the Psychiatric University of Basel (Switzerland) will provide training support to the ICPU.

Community Mental Health Centres offer community-based outpatient mental health services and can be found in the following cities: Gjakovë/Djakovica, Mitrovicë/a, Ferizaj/Uroševac, Prizren, Pejë/ Peć, Prishtinë/Priština, Gjilan/Gnjilane

There are neuropsychiatry wards at general hospitals for acute psychiatry in: Prizren, Pejë/Peć, Gjakovë/Djakovica, Mitrovicë/a, Gjilan/Gnjilane, Prishtinë/Priština In Prishtinë/Priština the neuropsychiatry ward is at the UCC. The ward in Prishtinë/Priština provides 75 acute psychiatric beds, while wards in other regions provide around 16 beds for psychiatric patients. In addition, there are special institutions (SSI) in Prishtinë/Priština and Shtime/Štimlje. These institutions come under the mandate of the Ministry of Labour and Social Welfare (MLSW). They were intended to provide services to a specific population with severe learning difficulties during the previous regime but they ended up accommodating about 70 people with psychiatric problems. The mental health services, through the programme of protected apartments, are supporting the de-institutionalisation of patients in Gjilan/Gnjilane and Gjakovë/Djakovica, which are designed for the rehabilitation of long-term psychiatric patients. The MLSW has its own programme to improve the quality of life in the institutions.”

The Non-Governmental Organisation Praxis report “Access to rights and integration of returnees on the basis of readmission agreements, analysis of the main problems and obstacles” provides, inter alia, the following regarding the health care for Roma in Serbia:

“Health care

In order for a person in the Republic of Serbia to exercise the right to health care, he/she needs to be registered in the system of mandatory health insurance and to possess a health booklet. In addition to the proof of insurance (employment contract, decision on the right to pension, etc.), one needs to present an ID card or a birth certificate (for minors) in order to register for insurance and issuance of a health booklet. The request is submitted at the branch office of the Republic Institute for Health Insurance (RIHI) as per place of permanent/temporary residence. The Law on Health Insurance identifies Roma, who do not have a registered permanent/temporary residence in Serbia, as a category of persons for whom contributions are paid from the budget of the Republic. However, the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance in effect until July 2010 stipulated that when applying for registration to health insurance, Roma must give a statement on belonging to this population, and the proof of temporary residence registration in addition to it.

As the said regulation was in contravention of the Law on Health Insurance, Praxis sent a request to the Constitutional Court to assess the legality of this regulation. In July 2010, the Rulebook on Amendments to the Rulebook on the Method and Procedure of Exercise of Rights from Mandatory Health Insurance stipulating that the Roma who do not have permanent/temporary residence registered on the territory of the municipality they truly live in, may register health insurance by giving only a statement about the address at which they truly live in addition to the statement on belonging to the Roma minority. The implementation of these changes in the Rulebook was not uniform. Partly due to inadequate levels of information of employees in RIHI branch offices throughout Serbia, partly due to resistance to the concrete novelties and lack of sensitivity, the branch offices in certain municipalities refused to enable Roma to exercise the right to health insurance and issue health booklets under the above stated conditions. On behalf of its clients, Praxis intervened repeatedly and pointed to the changed regulations, managing to have its clients registered. Also, as the impossibility to register permanent residence makes obtaining ID cards impossible, the RIHI branch offices request that Roma submit at least birth certificates instead of ID cards. Returnees on the basis of the readmission agreements with travel documents are allowed only access to urgent medical care for which the Republic budget funds are allocated, until regulation of the status of an insured person or until the expiry of the validity of the travel document. Returnees who fail to obtain ID cards or birth certificates for children born within the period of validity of the travel document (e.g. re-registration into registry books or registration in birth registry book abroad was not done) will remain outside the health care system. Only exceptionally will some RIHI branch offices issue health booklets to undocumented persons and establish a provisional citizen’s unique personal number.”


No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect)

“On the night of 19 November 1999, I was tricked into opening the door as they said that they were Osman and Şefik, my brothers-in-law. The three people who entered the house said they were from the anti-terrorism branch and they pulled my headscarf over my mouth. They were carrying Kalashnikovs. They asked for my daughter and said they were going to kill me and my children...One of them spoke Kurdish and said that he was from Urfa. The one who was tall and thin, with white skin and black hair, strangled me with an iron cord. One of them, who I cannot describe, took off my baggy trousers and pants. I fainted from shame and fear when the other inserted a truncheon into my sexual organ... When I woke up they were searching the house. They found money underneath the bed and took it with them... When my son arrived he took me to a private doctor. This doctor did not draw up a report but gave me medicine and an injection. As I was not getting better he took me to the doctors at the Human Rights [foundation]... These same three people came to my house on 27 December 1999 and said that it was not good that I had complained about them...they called their superior and a police patrol came to pick us up. My son Teyfik was next to me... At the police station, an officer named Erkan was nice to us... I was sent to the hospital. The doctor said, without examining me, that there was nothing wrong with me. After this date I was not harassed.”

A description of the relevant domestic law at the material time can be found in Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, 3 June 2004).


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Non-pecuniary damage - finding of violation sufficient

Françoise Tulkens;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque

At the time of the events the applicant was serving in the Turkish Navy. On 8 July 2008 the military prosecutor filed an indictment against the applicant with the Kasımpaşa Military Criminal Court (Kuzey Deniz Saha Komutanlığı Askeri Mahkemesi). He accused the applicant of wilfully disobeying his superior contrary to section 87 of the Military Criminal Code.

On 18 February 2009 the Kasımpaşa Military Criminal Court, composed of a military officer with no legal background and two military judges, found the applicant guilty as charged and sentenced him to two months and fifteen days’ imprisonment.

On 21 July 2009 the Military Court of Cassation rejected the applicant’s appeal. The applicant stated that he learned of this decision on 23 September 2009 when he was summoned to the prosecutor’s office. The applicant served his prison sentence between 5 November and 25 December 2009.

The relevant provisions of the Constitution provide:

“Judicial power shall be exercised by independent courts on behalf of the Turkish Nation.”

“In the performance of their duties, judges shall be independent; they shall give judgment according to their personal conviction, in accordance with the Constitution, statute and the Law.

No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars, or make recommendations or suggestions to them.

“Judges ... shall not be removed from their office or compelled to retire without their consent before the age prescribed by the Constitution.”

“The personal rights and obligations of military judges ... shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve as regards their non-judicial duties shall also be regulated by law...”

“Military courts shall be composed of two military judges and a military officer.”

In a decision dated 7 May 2009 and published in the Official Gazette on 7 October 2009, the Constitutional Court examined the independence and impartiality of military courts on account of the presence of a military officer on the bench. The Constitutional Court firstly pointed out that the officer sitting on the bench of the military criminal court was appointed on a case by case basis by his hierarchical superiors and continued to perform his other military duties while also acting as a judge. Noting that the military officer remained in the service of the military authorities, the Constitutional Court found that military courts could not be considered as compatible with the principle of judicial independence guaranteed under Article 9 of the Constitution. As a result, the Constitutional Court decided to repeal section 2(1) of Law no. 353 on the Composition and Functioning of Military Courts. The decision of the Constitutional Court became effective one year after its publication in the official gazette.


BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND

The applicants are Ursula Balmer-Schafroth, Ueli Balmer-Schafroth, Ursula Wanner and Rainer Zur Linde, all Swiss citizens who live in Wileroltigen and Detligen in Switzerland. They are represented before the Court by Mr Rainer Weibel, a lawyer practising in Bern. The applicants were among the ten applicants in the previous Balmer-Schafroth and Others v. Switzerland case (see judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV, pp. 1346 et seq.).

The applicants live in the alarm zone 1 within a radius of between four and five kilometres from the nuclear power station at Mühleberg in Switzerland.

On 14 December 1992, the Federal Council (Bundesrat) granted to the Mühleberg nuclear power station the operating licence for a limited period, i.e. until 31 December 2002. This decision of the Federal Council was contested before the Court and led to the judgment in the Balmer-Schafroth and Others case (cited above).

In 1996 the company which operated the nuclear power station, the Bernische Kraftwerke AG, maintaining economic reasons, filed a request to cancel the limitation of the period of operation, and to obtain a licence for an unlimited period. The application was published in the Federal Gazette (Bundesblatt), whereupon 1,170 persons and four organisations filed objections thereto.

The Federal Department of Transport and Energy (Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement) then requested the Technical Examination Board TÜV, a German association, to examine in particular the relevance of certain cracks in the inner nuclear casing (Kernmantel) of the nuclear power station. In its expert opinion of 29 January 1998, numbering 178 pages, the TÜV concluded that the cracks endangered neither the possibility to turn off, or to cool, the reactor. The calculations of the growth in the cracks disclosed that in the coming years the security would only insignificantly be reduced. Moreover, the producer had considered all possible accident combinations. The report also noted that the control programs and methods were such that they could detect such cracks and determine their size, and to do so within a time-limit before the cracks became dangerous.

Following this expert opinion, various persons applied to the Federal Council for a complete examination of all welded joints of the nuclear casing. The “Mühleberg association”, an association aiming at the closure of the Mühleberg nuclear power station, requested Mr C.K., a physicist, to comment on the TÜV expert opinion.

In his reply, dated 30 April 1998, the expert C.K. concluded that the “size of the cracks may [have been] substantially underestimated”, and that so far the effects of the cracks in the nuclear casing upon the security of the nuclear power station had only insufficiently been examined.

By decision of 28 October 1998 the Federal Council dismissed the various objections and prolonged the operating licence for a period of ten years, i.e. until 31 December 2012. The decision considered that due to various modernisations the Mühleberg nuclear power station had meanwhile become more secure than when it had been constructed. There were no defaults of a technical nature which would exclude a secure operation of the station. The Federal Nuclear Safety Inspectorate (Hauptabteilung für die Sicherheit der Kernanlagen) had given the go-ahead, and the TÜV expert opinion concluded that the cracks found did not impair the security.

The decision also noted that the Federal Nuclear Energy Act (Atomgesetz) did not grant a right to an unlimited period of operation. In view of a popular consultative referendum in the Canton of Bern in 1992, in which the populace had in fact expressed itself against the Mühleberg nuclear power station, the Federal Council decided to grant a license for only a limited period of ten years.

On 24 April 2000, the “Mühleberg association” wrote to the Federal Council, requesting a public hearing of the Federal Nuclear Safety Inspectorate as to the conditions for a possible closure of the Mühleberg power station. By letter dated 19 May 2000, Mr M. Leuenberger, a Federal Councillor (Bundesrat), refused the request. Annexed to the letter was a statement of the Federal Nuclear Safety Inspectorate dealing, inter alia, with the issue of an earthquake in the Mühleberg area. It was considered that the probability of damage to the nuclear reactor lay between (5-10)x10-6 per year, a figure based on all accidents of nuclear power stations of the world resulting from earthquakes, and that indeed, the Mühleberg nuclear power station had been constructed to withstand earthquakes. The probability of a plane crash on the nuclear power station was negligibly small.

On 8 September 2000 the applicants filed with the Federal Council a request for reconsideration of its decisions of 14 December 1992 and 28 October 1998.

Under Section 4 § 1 (a) of the 1959 Federal Nuclear Energy Act, a licence from the Confederation is required for the construction and operation of nuclear installations and for any changes in the purpose, nature or scale of such installations. Section 5 § 1 provides that a license must be refused or granted subject to appropriate conditions or obligations if that is necessary in order, in particular, to protect people, the property of others or important rights. Section 6 provides that the Federal Council or a body designated by it decides license applications. No appeal lies against its decisions. Section 8 stipulates that nuclear installations and every form of ownership of radioactive nuclear fuels and residues shall be placed under federal supervision; the Federal Council and the body designated by it shall have the right in executing their supervisory function to issue instructions at any time if that becomes necessary in order, in particular, to protect people, the property of others and important rights; they are also entitled to supervise compliance with these instructions.

Under the Federal Court’s case-law, the safety of nuclear power plants can be considered by the Confederation only in the context of its licensing procedures (see judgments of the Federal Court (BGE [Bundesgerichtsentscheide] 119 Ia, p. 402).


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant is the National Notary Chamber of Albania (Dhoma Kombëtare e Noterisë) (“the applicant organisation”). The applicant organisation is represented before the Court by its President and representative Mrs Sh. Kurti.

organisation, may be summarised as follows.

The applicant organisation was established by Law no. 7829 of 1 June 1994 (“the Notary Act”) which was amended by Law no. 8790 of 10 May 2001 and Law no. 9216 of 1 April 2004.

Prior to 1994 a public notary in Albania was considered a public servant and the role and profession of notary were not recognised as a liberal profession.

On an unspecified date the applicant organisation became a member of the International Union of Latin Notaries (Union internacional del notariado latino, UINL).

On an unspecified date the applicant organisation lodged a constitutional complaint with the Constitutional Court, complaining that Law no. 9216 of 1 April 2004 was unconstitutional. According to the applicant organisation, the Law gave the Minister of Justice control over the exercise of the profession of notary which was incompatible with the nature of liberal professions, thus infringing its rights to freedom of association. It argued that the character of its organisation was akin to that of non-profit-making organisations. It maintained that the new Law had applied rules applicable to public servants to the profession of notary. In particular, sections 6 § 6, 7 (f), 9 § 3, 13 §§ 3 and 5, 14 § 3 and 20 § 5 provided for the most important decisions taken by the National Notary Chamber to be approved by the Minister of Justice, thus stripping it of its decision-making powers and infringing its independence. According to the applicant organisation, the Law gave the Minister of Justice powers that went beyond his supervisory role, subjecting notaries to hierarchical dependence. Lastly, the applicant organisation contested the age-limit imposed by the Law on the exercise of the profession of notary as at variance with the principle of the exercise of liberal professions.

On 19 January 2005 the Constitutional Court dismissed the applicant organisation’s complaint and upheld the constitutionality of the Law contested. The court assessed that the basis for the restrictions on the exercise of the profession of notary, in contrast with other liberal professions, had to be found in the public effects of notaries’ actions and in the control that the State needed to exercise over notaries’ services in order to guarantee the interest of the community.

“The Constitutional Court decides on:

(a) the compatibility of a law with the Constitution or international agreements as provided for under Article 122 ...

The Constitutional Court can be seized only at the request of ... (f) political parties and other organisations ...

The entities designated in the first paragraph, letters ... f ... can lodge applications only on issues connected with their interests.”

Pursuant to the Notary Act of 1994, as amended in 2001, the profession of notary in Albania was considered a liberal profession and notaries in exercising their profession were independent and bound by the legal provisions in force. For the purpose of exercising his duties, a notary was equivalent to a public servant and enjoyed protection under the law.

The Act sets forth the structure and bodies of the notary profession. It provides for notaries to be organised at district and national level. All practising notaries engaged within a given district must be members of the district notary chamber. The Act provides that a notary chamber is a legal entity and as such is to be registered in accordance with the procedures prescribed for registering a legal entity. The governing bodies of district notary chambers are the general assembly of all practising notaries in the district and the council of notary chambers. The Act describes in detail the powers of each of these bodies. Disciplinary measures such as: a reprimand, a reprimand with a warning of dismissal, and a fine, are taken by district notary chambers. The disciplinary measure of dismissal is taken by the Minister of Justice.

Section 36 of the Act establishes the National Notary Chamber, which is composed of notaries elected by the general assembly of district notary chambers. The central bodies of the National Notary Chamber are the general assembly of representatives of district notary chambers, the national council and the president. The tasks of the president and the national council are defined in the National Notary Chamber’s statute, which is approved by its general assembly. The Act sets forth the following chief tasks of the National Notary Chamber: a) to coordinate the activities of all notary chambers at district level; b) to represent and defend the interests of district notary chambers before state authorities and other institutions; c) to draft a Professional Ethics Code to be approved by the Minister of Justice; d) to approve the standard statute (statuti tip) of district notary chambers and their internal rules of procedure; e) to draw up and keep national and regional registers of notaries; and f) to determine the amount of funds to be allocated to the national council for the performance of its duties.

The Act describes the procedure for entering and practising the notary profession. Thus, before engaging in private practice an incumbent notary has to sit an entrance examination whose overall organisation is run directly by the Minister of Justice. A notary must also obtain a licence issued by the Minister of Justice prior to entering professional practice. The appointment, transfer and removal from office of a notary are made by order of the Minister of Justice. Before assuming their duties notaries take an oath before the Minister of Justice or a duly authorised person appointed by the Minister. Under the 1994 Act the removal from office of a notary was not conditional on age.

The Act also contains provisions governing, inter alia, the rights and obligations of notaries. The Ministry of Justice, having regard to the opinion of the Ministry of Finance and the National Notary Council, determines the schedule of notary fees. Section 14 stipulates that the Ministry of Justice supervises notaries’ [legal] performance.

In 2004 Parliament enacted Law no. 9216 of 1 April 2004, which amended several sections of the Notary Act. In particular, the new Law strengthened the role of the Minister of Justice. Sections 6 § 6, 7 (f), 9 § 3, 13 §§ 3 and 5, 14 § 3 and 20 § 5 provide for the most important decisions to be adopted by the Minister of Justice, having regard to the written opinion of the National Notary Chamber. Most notably, it stipulates that the transfer of a notary to another district must be authorised by the Minister of Justice. It empowers the Minister of Justice to initiate disciplinary proceedings and decide on the disciplinary measures to be taken, even though the notary chamber may refuse to impose such a measure.

Section 6 introduces an upper age limit on the notary profession. A notary’s licence will thus be removed when that notary reaches the age of 65.


The applicant, Mr Algis Peleckas, is a Lithuanian national who was born in 1960 and lives in the Alytus region. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė.

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

The applicant is a veterinary doctor. On 10 February 2000, while driving to his work place in the countryside, the applicant was stopped by two policemen, MN and ST. The policemen asked for the applicant’s papers. Having established that the applicant had no driving licence, MN took the wheel of the applicant’s car. ST followed him in the police car, with the applicant sitting in the back seat. They drove several kilometres and stopped on a side road in the countryside.

The applicant presented the following account of the subsequent events:

The policemen asked the applicant to take an alcohol test. The applicant requested that they replace the tip of the alcotest (breath-analyser), as it might have been used by another person. This request allegedly infuriated the policemen. It appears that the applicant nonetheless took the test, and he was found not to be under the influence of alcohol.

MN made a written record of an administrative offence, warning the applicant that he would be fined in the amount of LTL 1,000 (about EUR 290) for driving without a licence. The applicant having commented on the allegedly disproportionate amount of the fine, ST hit him on the neck.

The applicant jumped out of the police car, attempting to escape. The policemen pursued him and apprehended him by using tear-gas. The applicant was then brought to the ground by a strong blow to the face by ST. The policemen then continued to beat the applicant by kicking him on his thighs, elbows, chest, back, abdomen and crotch. The policemen having subsequently handcuffed the applicant while he was lying face-down on the ground, ST sat on him and inflicted several blows to his head. At the same time, MN kicked his thigh. The applicant was then taken to the police station, where the policemen continued beating him.

After the applicant’s release from the police station several hours later, he immediately went to the hospital where he was treated.

Upon the applicant’s request, on 14 February 2000, he was examined by a medical expert. The expert found a scratch on the applicant’s vertex (2×1 mm) and forehead (5×8 mm), bruises on his right cheek (10×5 mm) and left forearm (170×8 mm), and a fracture of his left elbow. The expert noted that the injuries had been made by hard, blunt objects. The fracture resulted in a long-term impairment of the applicant’s health.

On 15 February 2000 the applicant filed a complaint against the police, alleging ill-treatment. On the same date the prosecution took his statement and ordered an expert medical examination, which took from 21 February 2000 to 13 March 2000. The expert mentioned the same injuries as those in the examination of 14 February 2000, noting in addition that the applicant had a scratch on his upper lip.

The expert opined that the injuries had been made by at least five impacts or blows. He could not unequivocally identify the mechanism whereby the injuries had been incurred. He noted that the fracture of the applicant’s elbow and the bruise on his left forearm could have resulted either from kicking or twisting the applicant’s arms behind his back, or by him falling on the ground and hitting his arm against a hard surface. The scratch on the applicant’s forehead could also have been the result of the applicant hitting the ground with his head.

On 21 March 2000 criminal proceedings were instituted against ST, who was charged with abuse of office (Article 287 § 1 of the Criminal Code), by causing the applicant medium bodily harm. In particular, ST was suspected of having kicked the applicant while he was lying on the ground, and having hit the applicant on his head. The applicant took part in the proceedings as the victim. He did not claim pecuniary or non-pecuniary damages.

The charges brought against MN were withdrawn, there being no indication of a crime having been committed by him. The applicant did not appeal against that decision, and MN then took part in the other proceedings as a witness, along with several other eyewitnesses to the events.

From 23 May to 30 June 2000, the medical expert examination was repeated upon the initiative of the prosecution. The expert mentioned the same injuries as those determined at the last examination and reiterated that the injuries had been made by no less than five impacts or blows. He further explained that the scratches on the applicant’s forehead, vertex and lip, as well as the bruises on his right cheek, could have been caused either by the administration of blows or by the applicant hitting himself against hard objects. As to the fracture of his elbow, the expert opined that it was ‘unlikely’ that it could have been the outcome of hitting or falling, but had ‘most likely’ occurred when the arm of the applicant had been twisted behind his back in order to handcuff him. The bruise on his left forearm could have appeared after the tissue of the elbow had been injured by the fracture.

On 8 August 2000 the prosecutor requested the applicant to undergo a psychiatric examination, referring to the possibility that, during the incident, he might have suffered epileptic seizures. The applicant was brought to the clinic, but the examination did not take place due to the absence of a qualified expert. Eventually, no examination was carried out, as the applicant refused to report to the clinic.

The investigation into the incident included the questioning of more than 38 witnesses, several confrontations, the on-site verification of evidence, the examination of the police car allegedly damaged by the applicant’s resistance and other measures.

On 5 March 2001 the Alytus District Court acquitted ST, holding that his actions had not gone beyond those necessary in the circumstances. It accepted the version of the events given by the policemen. In particular, it was established that the applicant had been the first to attack ST, hitting him on the nape of the neck while sitting in the back seat of the police car. ST’s version was corroborated by the medical evidence that he had sustained a bruise as a result. Thus, it was considered that the applicant had himself provoked the use of force by the policemen, who had then taken the applicant out of the car and had attempted to handcuff him, the applicant having actively resisted the lawful arrest. The applicant’s resistance warranted the use by the policemen of the “special measures” foreseen in Article 43 of the Police Act, in order to handcuff him. The court then referred to the experts’ conclusion that the fracture of the applicant’s elbow could have occurred as a result of his arms being pulled and twisted backwards for handcuffing. The bruises on his face and head could have been the result of the applicant actively resisting the police, whilst falling down and hitting himself against a hard surface. The court did not find it established that the applicant had been kicked or hit while lying on the ground or after being handcuffed. The court also took account of the video recording, taken by the CCTV camera in the police station, showing the applicant’s continued resistance. The court’s conclusions were essentially based on the submissions of the accused officer, ST, as well as those of MN.

The applicant and the prosecutor appealed. On 1 May 2001 the Kaunas Regional Court rejected their appeal. The court noted that the applicant had been the first to have recourse to violence, the subsequent use of force by ST being the consequence of the applicant’s aggressive behaviour. The court also held that there was no evidence that ST had purposefully injured or tortured the applicant when trying to handcuff him. It further reiterated the lower court’s conclusions as to the origin of the applicant’s injuries. Finally, the court noted that the different version of the incident given by other witnesses might have been distorted by their emotional reaction to the events.

The Office of the General Prosecutor and the applicant lodged cassation appeals. The prosecution argued in particular that the policemen’s version, according to which the applicant had assaulted ST, was not credible. The applicant had been sober, he had not disputed the fact of driving without a licence, and he had cooperated with the policemen while they wrote up the administrative offence. Moreover, the applicant had been alone. Therefore it was highly dubious that he could have assaulted two policemen. The courts had unreasonably dismissed the submissions of three independent witnesses, and based their conclusions on the allegations of ST and MN, ignoring the fact that they both had a clear interest in the outcome of the proceedings.

On 23 October 2001 the Supreme Court quashed the appellate decision, remitting the case for a new examination by the appeal court. The Supreme Court noted inter alia:

“[T]he trial court unconditionally believed only the version of the defendant and his colleague, and dismissed the submissions of other witnesses on the ground that they had been contradictory. However, no essential contradictions were specified ...

The courts failed to assess fully whether the policeman had overstepped the legitimate limits of the use of force. Article 5 of the Police Act authorises the use of force against persons who refuse to submit to the lawful requirements of the police. Force can be used only insofar as it is necessary to execute a professional duty, and only after all other possible means have proved themselves to be ineffective. Article 41 of the same law authorises the use of “special measures” (specialiosios priemonės) only in order to stop an activity giving rise to a danger to society, or to an arrest, bringing the person engaged in such activities to the police station. “Special measures” may be used only having regard to the nature of the offence, the personality of the offender and the particular circumstances of the situation. There is also an obligation to make efforts to avoid severe consequences, as well as to warn the person before using such measures against him. The courts did not consider the actions of ST in the light of the requirements of the above law, or those of the Rules on Road Traffic Police [of 26 March 1999]; the courts failed to give reasons for their conclusions regarding the right to use force, its aims and limits.

[The applicant and ST] gave different accounts of the events that led to the fight. If ST’s version - that the applicant had violently resisted police demands - were accepted as truth ... there is no doubt that criminal proceedings should have been instituted against him. However, that was not the case. Nor was [the applicant] held liable for an administrative violation ...

The court of first instance acknowledged that force had been used against the applicant by ST, in the form of applying “special measures”. However, the courts had failed to specify which particular measures had been used. ST had submitted ... that he had only pushed the applicant to the ground once, had twisted his arms behind his back, and had put the handcuffs on with the assistance of MN. This ... use of force clearly contradicts the evidence given by the medical experts, who had established that the injuries to the applicant had been caused by way of no less than five blows.

The fracture of the elbow might have been caused ... by twisting the arm behind the applicant’s back and putting on the handcuffs. The applicant had also sustained other injuries. However, the courts failed to give a reasonable explanation as to the way in which the other injuries may have been caused. Assuming [the truth of] ST’s version that he had only brought the applicant down once, it remains unclear how a wide scratch on the applicant’s vertex and the injuries [elsewhere on his body] were caused, as they must have originated from separate actions. [The applicant’s version of the cause of those injuries] does not contradict the submissions of witnesses. Still, the court refused to believe them, and dismissed their submissions without giving a reasonable explanation, notwithstanding the fact that none of those witnesses had had any interest in giving false evidence.”

On 3 June 2002 the Kaunas Regional Court examined the case at the appeal level, upholding ST’s acquittal. On 10 December 2002 the Supreme Court dismissed the applicant’s cassation appeal. The courts concluded that the applicant had assaulted ST by hitting him on the nape of the neck, and that the policemen had properly exercised their right to use force. Moreover, it was deemed highly improbable that ST could have hit the applicant while he was in the back of the police car.

The courts recognised that ST had not used excessive force, and that the applicant had not been beaten after being forced to the ground and handcuffed. They concluded that the evidence had been insufficient to establish ST’s guilt. The submissions of the applicant were considered incoherent and unreliable. While the applicant had stated during his early questioning that he had been hit and kicked on various parts of his body, subsequently he had adjusted his version in accordance with the results of the expert examinations. The evidence given by other independent witnesses was also dismissed as being too incoherent to be relied on.

The following version of the events of 10 February 2000 and their legal assessment were established by the courts.

The applicant used violence against ST in the police car, while the latter was performing his official duty. He refused to obey the order to get out of the car. When the policemen were trying to take him out by force, the applicant was kicking with his legs, breaking a door-handle. Nor did he yield after being taken out of the car. Instead, he grabbed the policemen’s clothes and attempting to hit MN in the face. He was thus brought down close to the police car, his hands being twisted behind his back, and he was handcuffed. As a result, the applicant sustained bodily injuries. ST did not cause any injury deliberately, other than to effect the applicant’s submission. The use of combat action (kovinių veiksmų panaudojimas) in these circumstances was provoked by the unlawful actions of the applicant. There were no other measures which the officers could have employed in view of the applicant’s resistance. In these circumstances, ST did not exceed his authority as a police officer.

The courts also explained the origin of the injuries sustained by the applicant in the following way:

(a) The scratch on the applicant’s vertex (2×1 mm) must have resulted from the applicant hitting his head on the ground during the conflict; it may not have been the outcome of direct blows with a fist, as alleged by the applicant, because in that case he would have sustained larger bruises.

(b) While the experts were not able to give a definite answer as to the origin of the fracture of the applicant’s elbow, they admitted that it may have been the result of ST and MN twisting his arms behind his back in order to handcuff him. The version of the applicant being kicked was thus dismissed.

(c) The bruises on the applicant’s cheek (10×5 mm) and forehead (5×8 mm) could also have been the result of the applicant having been forced to the ground, in the course of his resistance to the policemen while they were trying to handcuff him. This version did not contradict the results of the medical examinations. Thus the applicant’s allegation that he had suffered direct blows to his face was refuted.

(d) Insofar as the applicant had alleged that he had been hit and kicked on other parts of the body, no signs of other blows were detected in support of these submissions.

It appears that no charges were brought against the applicant for his refusal to submit to the lawful requirements of the police, despite the fact that a report to this effect had been filed by officers ST and MN right after the incident.

Article 5 of the Police Act as applicable at the material time provided:

“... If the demands of a police officer are not complied with, the officer shall have the right to use force (panaudoti prievartą), but only to the extent necessary to perform his/her official duties and only after all measures of persuasion have proved to be ineffective. ...”

Article 34 of that Act envisaged the right of the police officer to order the offenders to discontinue their unlawful activities, failing which and provided all measures of persuasion were exhausted, the use of force was permitted.

Article 41 of the Police Act further stated:

“...The police shall use special measures ..., in order to discontinue actions that endanger the public or to apprehend a perpetrator of such actions and bring him/her to the police station. ...

When using special measures ... an officer shall take into account the nature of the offence, the personal features of the offender and other particular circumstances of the situation. ... [T]he police officers shall try to avoid detrimental consequences.

Before using special measures ..., and if the circumstances allow, the person concerned shall be given a warning ...”

Article 43 of the Police Act listed as “special measures”, inter alia, handcuffs, combat action (kovinių veiksmų panaudojimas) and gas. It specified that:

“The police shall have the right to use handcuffs in order to apprehend the perpetrator of dangerous actions and to take him/her to the police station, when there are grounds to believe that he/she can resist or try to evade the arrest.

Handcuffs can be used when ... the actions of a person cause danger to him/herself or other people.

Combat actions can be used in order to detain a person who has committed dangerous actions or to take him/her to the police station, when such a person resists arrest or tries to evade it, as well as in cases where an offender intentionally refuses to obey the lawful requirements or resists the lawful actions of the police. ...

Gas can be used [inter alia] during the arrest ...”

Article 287 § 1 of the Criminal Code as then in force punished abuse of office.


Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Ms Karin Köpke, is a German national who was born in 1953 and lives in Feldberg. She was represented before the Court by Mr K. Nicolai, a lawyer practising in Neustrelitz.

The applicant started working as a shop assistant in 1968. From 1 August 1991 until her dismissal on 5 November 2002 she was employed as a shop assistant and cashier in a supermarket in Feldberg. She has been unemployed since then.

The applicant's employer noted in September 2002 that there were irregularities concerning the accounts in the drinks department of that supermarket, in that the sum of the till receipts for empty deposit bottles which had been printed out exceeded the total value of empty deposit bottles received by the supermarket. It suspected the applicant and another employee of having manipulated the accounts.

Between 7 October 2002 and 19 October 2002 the applicant's employer, with the help of a detective agency, carried out covert video surveillance of the supermarket's drinks department. The camera covered the area behind the cash desk including the till, the cashier and the area immediately surrounding the cash desk. The detective agency made a video and examined the data obtained. It drew up a written report and produced several photos from the recording, which it sent to the applicant's employer together with two copies of the video (one concerning the applicant and one concerning the other employee monitored).

On 5 November 2002 the applicant's employer dismissed the applicant without notice for theft. The applicant was accused of having manipulated the accounts in the drinks department of the supermarket and of having taken money (some 100 euros during the period in which she had been filmed) from the tills for herself which she had hidden in her clothes.

On 14 November 2002 the applicant, who was represented by counsel throughout the proceedings, brought an action in the Neubrandenburg Labour Court against her employer, requesting that the court find her dismissal invalid. She further claimed compensation for non-pecuniary damage she had suffered as a result of the covert video surveillance and requested to be given the videotapes, including all copies made thereof. She was granted legal aid for these proceedings.

The applicant contested having manipulated the tills or having stolen money and submitted that she had only put tips she had received from customers into her pockets. In accordance with the supermarket's practice, she had later put these tips into a separate till where all tips received by supermarket staff were collected. She further objected to the use of the covert video surveillance, arguing that this surveillance had breached her right to protection of her privacy.

On 29 August 2003 the Neubrandenburg Labour Court dismissed the applicant's action, having held a hearing in which it heard as witnesses the three staff members of the defendant party involved in the applicant's video surveillance and dismissal and having watched the video tapes submitted by the defendant party.

The Labour Court found that the defendant party had been entitled to dismiss the applicant without notice. It considered that the defendant party had been authorised to observe the applicant by means of covert video surveillance and to use the recording obtained thereby. The losses discovered in the drinks department during stocktaking and the irregularities between the amount of money paid out for returned empty deposit bottles and the value of the full bottles sold in the market during the applicant's working time had constituted sufficient grounds for the defendant party to order her surveillance. The defendant party's property rights had been seriously interfered with.

In such circumstances, the video observation of an employee was lawful, as had been confirmed by the Federal Labour Court in its judgment of 27 March 2003 (file no. 2 AZR 51/02, see 'Relevant domestic law and practice' below). In case of the covert video surveillance of an employee on suspicion of theft, the employer's fundamental right to respect for his property rights had to be weighed against the employee's fundamental right to privacy vis-à-vis third persons, including his employer or his colleagues. Special circumstances were necessary to justify an interference with the employee's right to privacy, which had to be proportionate.

Weighing these competing interests in the present case, the Labour Court found that the defendant party had been entitled to put the applicant under covert video surveillance. Having regard to the organisation of work in the drinks department of the supermarket, there were no other means to protect the defendant party's property rights. The surveillance had not been random, but carried out following suspicions of theft against two employees. The video records obtained had been used by the management staff of the defendant party and had been submitted to the court in order to justify the applicant's dismissal without notice. There was no risk of the records being used in a different manner. Therefore, the applicant neither had a right to non-pecuniary damage nor to be given the video tapes.

The Labour Court, having regard to the evidence before it including the information obtained by examining the video tapes in question, found that the defendant party had had sufficient grounds to conclude that the applicant had repeatedly committed offences against its property during the relevant period. The applicant had not proven that the money she had undeniably taken from the till had been tips. In any event, it had not been necessary to hear the witnesses named by the applicant to prove that the money concerned had been tips because such tips were, in any event, also the property of the defendant party according to the work regulations in place.

On 18 May 2004 the Mecklenburg Western-Pomerania Labour Court of Appeal, which had granted the applicant legal aid, dismissed the applicant's appeal and refused to grant her leave to appeal on points of law.

The Labour Court of Appeal, referring to the case-law of the Federal Labour Court (judgment of 27 March 2003, file no. 2 AZR 51/02, see 'Relevant domestic law and practice' below), endorsed the Labour Court's finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desk area of the drinks department. Her dismissal without notice had been justified as, following the examination of the videotapes in the proceedings, the applicant had stopped contesting that she had taken money from the till on several occasions.

The covert video surveillance of the applicant had complied with section 6b of the Federal Data Protection Act (Bundesdatenschutzgesetz, see 'Relevant domestic law and practice' below), which transferred Directive 95/46/EG into domestic law. The workplace of a cashier behind the cash desk was not an area in the supermarket accessible to the public. Therefore, video surveillance thereof did not have to be made visible under section 6b § 2 of that Act. In any event, a cashier whose surveillance had been justified could not rely on the fact that the video surveillance had also covered customers who were standing at the cash desk and in respect of whom the covert video surveillance had not been permitted.

The Labour Court of Appeal further considered that it had not been necessary to take further evidence in the proceedings, in particular to play the videotapes, after the applicant had stopped contesting having taken money from the till and having put it in her pockets on several occasions. As this fact alone justified the applicant's dismissal without notice, the use of the impugned videotapes as evidence in the proceedings had not been necessary. Even assuming that the defendant party had illegally obtained knowledge of the fact that the applicant had taken money from the till and even if this evidence were excluded, the defendant party had not been prevented from alleging this issue and the applicant had been obliged to reply truthfully.

Moreover, it had not been necessary to take further evidence in order to verify whether the applicant had taken only tips from the till which she had later put into another till designated for tips. An employer could not be expected to further employ a cashier who put money from the till into her pockets without keeping any records on where the money was to be found. The witnesses named by the applicant to prove that there had been a separate till for tips and that the applicant had put money into that till would not be sufficient to prove that all the money taken from the till in the drinks department had been tips and had been put into the till designated for tips.

The Labour Court of Appeal finally found that, at least at that stage of the proceedings, the applicant could not ask for the videotapes to be erased. The defendant party had a right to keep the videotapes at least until a final decision was given in the court proceedings brought by the applicant and until the admissibility and necessity of the tapes as evidence was no longer at issue (compare section 6b § 5 of the Federal Data Protection Act).

By a decision of 14 December 2004 the Federal Labour Court dismissed the applicant's complaint about the refusal of the Labour Court of Appeal to grant her leave to appeal. It further dismissed the applicant's request for legal aid as her complaint had not had reasonable prospects of success.

The Federal Labour Court found, in particular, that the Labour Court of Appeal had not diverged from the Federal Labour Court's case-law. In any event, the Labour Court of Appeal had left open whether the video surveillance of the applicant had been lawful and whether the evidence obtained thereby should have been used in the proceedings before the labour courts. It had instead based its judgment on facts uncontested between the parties. As it had considered the applicant's dismissal lawful, it had also considered her claim for damages ill-founded. The lawfulness of the video surveillance had therefore been irrelevant to the outcome of the proceedings.

On 31 January 2005 the applicant lodged a constitutional complaint with the Federal Constitutional Court. She argued, in particular, that her right to privacy (allgemeines Persönlichkeitsrecht) had been breached by the unlawful covert video surveillance, by the processing of the data obtained thereby and by their use in the proceedings before the labour courts, which had refused to order the destruction of the video recording. Moreover, she submitted that her right to a fair trial and to be heard had been violated in that the labour courts had failed to take relevant evidence. She further submitted that the Federal Labour Court's refusal to grant her legal aid had breached her right of equal access to court.

On 28 June 2006 the Federal Constitutional Court declined to consider the applicant's constitutional complaint and dismissed the applicant's request to be granted legal aid (file no. 1 BvR 379/05). It found that the applicant's complaint had no prospects of success as there was nothing to indicate that her fundamental rights had been violated by the decisions of the labour courts.

Provisions aimed at protecting individuals against infringements of their right to privacy as a result of the way in which their personal data are handled are contained in the Federal Data Protection Act. Changes to that Act entered into force in 2001 in order to implement Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

Section 6b of the Federal Data Protection Act contains rules on the monitoring of publicly accessible areas with optic-electronic devices. Such video surveillance is lawful only in so far as it is necessary, in particular, to pursue legitimate aims for specifically defined purposes and if there are no indications of overriding the legitimate interests of the data subject (section 6b § 1 no. 3). Suitable measures shall be taken to make it visible that the area is being monitored and to identify the controller (section 6b § 2). The data shall be erased as soon as they are no longer needed to achieve the purpose or if further storage would conflict with the legitimate interests of the data subject (section 6b § 5).

On 1 September 2009 a new section 32 of the Federal Data Protection Act entered into force. It codifies (see judgment of the Berlin Labour Court of 18 February 2010, file no. 38 Ca 12879/09)) the previously developed case-law of the Federal Labour Court on video surveillance at the workplace (see below). Under paragraph 1 of section 32, an employee's personal data may be collected, processed or used for employment-related purposes where necessary for decisions regarding hiring or, after hiring, for carrying out or terminating the employment contract. Employees' personal data may be collected, processed or used to investigate criminal offences only under the following circumstances: if there is a documented, factual reason to believe that the data subject has committed a criminal offence in the course of his work; if the collection, processing or use of such data is necessary to investigate the criminal offence; if the employee does not have an overriding legitimate interest in ruling out the possibility of the collection, processing or use of such data, and, in particular, if the type and extent are not disproportionate to the aim pursued.

On 27 March 2003 the Federal Labour Court rendered a leading judgment on the lawfulness of covert video surveillance in the workplace (file no. 2 AZR 51/02).

The Federal Labour Court, upholding the judgment rendered by the Schleswig-Holstein Labour Court of Appeal on 4 December 2001 (file no. 1 Sa 392 b/01), found that the covert video surveillance of an employee by his employer interfered with the employee's fundamental right to privacy as guaranteed by Article 2 § 1, read in conjunction with Article 1, of the Basic Law, which also had to be respected in the relationship between private persons, including employment relations. This right had to be weighed against the employer's interest in securing evidence for his claim, having regard to the necessity of an effective judicial system required by the rule of law.

However, such an interference with the employee's right to privacy was justified and did not entail an exclusion of the evidence obtained thereby in subsequent court proceedings if there was a substantiated suspicion that the employee had committed an offence or was guilty of other serious misconduct towards his employer, if less intrusive means to examine the suspicion had been exhausted, if the video surveillance was, in practice, the only means which remained to verify the suspicion and if it was not as a whole disproportionate.

The Federal Labour Court confirmed this judgment in several subsequent decisions (see the decision of the Federal Labour Court of 29 June 2004, file no. 1 ABR 21/03; decision of 14 December 2004, file no. 1 ABR 34/03; and decision of 26 August 2008, file no. 1 ABR 16/07).


Violation of Art. 6-1;Pecuniary damage - claim dismissed

David Scicluna;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in 1952, 1954, 1961, 1960, 1964, 1963 and 1945 respectively and live in Malta. They are certified public accountants acting personally and in their capacity as partners of the partnership Deloitte & Touche Certified Public Auditors & Accountants.

On an unspecified date the applicants were sued, personally and in their capacity as partners of the partnership Deloitte & Touche Certified Public Auditors & Accountants, as auditors of PCO Ltd, in a civil action by a company, V. The latter claimed that the applicants’ audit firm had acted negligently and fraudulently in its drawing up of PCO Ltd’s audit report/financial statements, and was therefore liable for the losses sustained by V as a result of its reliance on those documents.

During the proceedings the applicants raised a preliminary plea to the effect that reliance by V. on the audit report when taking a particular credit decision, and knowledge on the part of the applicants of such reliance when taking that decision, were lacking. These requirements were fundamental to this type of action.

On 1 December 2003 the Civil Court dismissed this plea in a preliminary judgment.

On 3 December 2003 the applicants requested special leave to appeal the preliminary judgment under Article 231 (1) of the Code of Organisation and Civil Procedure (“COCP”). On 12 December 2003, the Civil Court in its ordinary jurisdiction granted leave to appeal.

On 29 December 2003 the applicants lodged an appeal.

On 8 June 2004, having heard the parties’ arguments, the Court of Appeal dismissed the appeal as out of time. It noted that while the legislator had clearly established that the time-limit for lodging an appeal against an interlocutory decree ran from the date of authorisation to appeal, in respect of an appeal against a “judgment” the legislator had made no distinction between a “judgment” and a “partial judgment” (sentenża parżjali). It followed that the twenty-day time-limit which ran from the date of delivery of a judgment according to Article 226 (1) of the COCP applied also to appeals necessitating prior leave to appeal.

On 17 September 2004 the applicants instituted constitutional redress proceedings before the Civil Court in its constitutional jurisdiction, claiming that such an erroneous interpretation by the Court of Appeal deprived them of access to court.

On 15 November 2006 the Civil Court upheld the applicants’ claims, finding that a right to appeal could not arise before leave to appeal had been given. Moreover, an appellant did not have to tolerate the delays of a court in giving leave to appeal. The Court of Appeal’s interpretation had therefore deprived the applicants of access to court in violation of Article 6 of the Convention. It declared the Court of Appeal’s judgment null and void.

On 2 March 2007 the Constitutional Court, on appeal by the Attorney General, acknowledged that the interpretation given to the law had been erroneous, thereby depriving the applicants of their right to appeal at an early stage. Nevertheless, it did not uphold the first-instance judgment, since a wrong interpretation did not suffice to lead to a violation of the Convention. While reiterating that an appeal could be heard before the Court of Appeal only once, it considered that the applicants had the opportunity to appeal in the civil case after the final judgment. Thus, given that a defect in first-instance proceedings could be remedied on appeal, the right to a fair hearing would similarly not be violated if a remedy which had been inappropriately denied became available at a later stage of the proceedings.

Article 231 (1) of the Code of Organisation and Civil Procedure (“COCP”) (Chapter 12 of the Laws of Malta), at the relevant time, read as follows:

“Where several issues in an action have been determined by separate judgments, appeal from any such judgments may only be entered after the final judgment and within the prescribed time, to be reckoned from the date of such final judgment; and in such an appeal express mention of the judgment or judgments appealed from shall be made:

Provided that an appeal from such separate judgments may be entered before the final judgment only by leave of court to be read out in open court; such request for leave to appeal shall be made either orally immediately after the delivery of such judgment or by application within six days from such judgment.”

The Article was amended in 2005, whereby the following phrase was added to the proviso:

“and when such leave to appeal from such separate judgments is granted the time for the filing of the appeal in respect thereof shall commence to run from the day on which the said leave is read out in open court.”

Article 226 (1) of the COCP reads as follows:

“An appeal is entered by means of an application to be filed with the registry of the Court of Appeal within twenty days from the date of the judgment.”