Violation of Art. 10;Non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque

The applicant was born in 1952 and lives in Pécs.

On 6 March 2008 the applicant, at the material time a member of the Hungarian Workers’ Party 2006 (Munkáspárt 2006), a registered left-wing political party, was convicted by the Pécs District Court under section 269/B (1) of the Criminal Code of the offence of having displayed a totalitarian symbol in public. The court observed that the applicant had publicly worn a five-pointed red star while participating in a demonstration on 1 May 2004 celebrating Hungary’s accession to the European Union and, at the same time, the International Workers’ Day. As a sanction, the court issued a reprimand.

On appeal, on 23 September 2008 the Baranya County Regional Court reversed this judgment and acquitted the applicant. In holding that his act had represented in fact no danger to society, the Regional Court made reference inter alia to a judgment of the European Court of Human Rights, adopted on 8 July 2008, which had been introduced by another individual on account of a conviction similar in nature (Vajnai v. Hungary, no. 33629/06). In that judgment the European Court of Human Rights held that prosecution for having worn a red star amounted to a violation of that applicant’s freedom of expression enshrined in Article 10 of the Convention.

In pursuit of the prosecution’s further appeal, on 5 March 2010 the Pécs Court of Appeal reversed the second-instance judgment and upheld the applicant’s conviction. It confirmed the reprimand and ordered the applicant to pay 7,500 Hungarian forints in criminal costs. The Court of Appeal held that positive Hungarian law did not permit the domestic courts to apply the holding of Vajnai as such. It pointed out that the conditions of social dangerousness – which had been found by the Supreme Court to be absent in some, otherwise similar, cases – were indeed present in the instant circumstances. The court argued as follows:

“The common feature of those cases can be summarised as the absence of identification with the totalitarian symbol, in the first case more emphatically, and in the latter one by virtue of the perpetrator’s indifference towards the symbol connected to the incriminated conduct.

The situation in the present case, however, was quite the contrary.

János Fratanoló used the five-pointed red star in a political context and as a sign of solidarity felt for his fellow party member, that is, because he identified himself with the symbol, with its meaning known and communicated to the outer world. In this context, the defendant’s concrete political credo is irrelevant: the statutory provision prohibits everyone, irrespective of one’s conviction, from the use of totalitarian symbols, including the five-pointed red star associated with Communist dictatorship. This statement remains true even if the symbol in question has dual meaning referring both to the totalitarian system mentioned above and to the international workers’ movement promoting the ascendance of large groups of society. ...

The entirety of the elements of this offence is defined as the legal hypothesis of a socalled “conduct” (immaterial) crime. This means that the offence will be committed merely by performing the sanctioned conduct (dissemination, use in public or public display) and no further condition or result, let alone actual fear or anxiety caused to those perceiving, is required.”

The court concluded that the applicant’s act was indeed dangerous to society.

Act no. IV of 1978 on the Criminal Code provides:

“(1) A criminal offence is an act perpetrated intentionally or – if the law also punishes negligent perpetration – by negligence, which represents a danger for society and for which the law orders the infliction of punishment.

(2) An activity or omission shall be an act dangerous to society if it violates or endangers the constitutional, social or economic order of the Republic of Hungary, or the person or rights of citizens.”

“(1) Any person who (a) disseminates, (b) uses in public or (c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle-and-hammer or a five-pointed red star, or a symbol depicting any of them, commits an offence – unless a more serious crime has been committed – and shall be sentenced to a fine.

(2) The conduct prescribed under paragraph (1) is not punishable if it is done for the purposes of education, science, art or in order to provide information about history or contemporary events.

(3) Paragraphs (1) and (2) do not apply to the insignia of States which are in force.”


The applicant, Mr Zbigniew Kaczmarek, is a Polish national who was born in 1940 and lives in Łódź, Poland. He is represented before the Court by Mr S. Janiszewski, a lawyer practising in Zgierz, Poland.

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

On 28 September 1989 the applicant lodged a claim for the division of matrimonial property with the Łódź District Court (Sąd Rejonowy).

The proceedings are pending before the first-instance court.

On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.

Section 2 of the 2004 Act reads, in so far as relevant:

Section 5 reads, in so far as relevant:

“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”

Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:

“1. The court shall dismiss a complaint which is unjustified.

If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.

At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.

If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”

Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:

“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.

On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


The applicants, Ms Faradokht Dejbakhsh (“D”) and Ms Nagmeh Mahmoud Zadeh (“M”), are Iranian nationals who were born in 1950 and 1978 respectively. They are mother and daughter. They are represented before the Court by Mr P. Stadig, a lawyer practising in Stockholm. The respondent Government are represented by Ms I. Kalmerborn, Ministry for Foreign Affairs.

The applicants arrived in Sweden on 16 March 2002 and applied for asylum on 5 April the same year. They presented genuine passports, valid until 6 September 2002 and 20 September 2002 respectively, as well as visas valid from 31 February to 1 April 2002, issued by the Swedish Embassy in Teheran on 4 February 2002. The applicants had previously been granted visas to Sweden on two separate occasions; D in 1997 and M in 1998, both for the purpose of visiting relatives. D’s mother (M’s grandmother) had been a permanent resident of this country since the 1980s, as had three sisters and a brother of D.

The Migration Board (Migrationsverket) conducted an initial interview with the applicants on 5 April 2002. D essentially stated the following: Her mother had died on 2 February 2002. She applied for asylum in Sweden solely because of the problems she had experienced with her husband in Iran (henceforth referred to as “H”). They had married in 1967 and since then he had repeatedly subjected her to harassment and physical assault. They had two children together, M and a son born in 1971. H had also assaulted the son. The assaults had occurred when H, an alcoholic, was drunk and had caused D injuries such as a broken jaw. At one point, D had been in surgery for a navel rupture. Before the wound had healed, H had stabbed her in the stomach with a knife so that she had to be operated again. D had not reported any of the incidents of assault to the Iranian authorities because they would not offer her any protection anyway. Furthermore, H was an influential person. He was retired but had worked in the military, where he had held the rank of colonel. She believed that he worked for the revolutionary committee; he had done so previously. The stabbing incident had been automatically reported to the police, but she had told them that she had fainted and could not remember what had happened. The police had not pursued the matter any further. She had not divorced H, because this was not possible for her, being a woman. However, they had been living apart since 1992, when he had thrown her and the children out of their home. Prior to that they had lived apart from time to time, but this time the separation had been definite. D had moved with the children into her mother’s home in Teheran and, after the son had married, D and M had lived there alone. However, H had continued to harass the applicants, claiming that they were women of no morals. He had asserted that M must marry a man he had chosen for her in order to restore her father’s honour. If M would disobey him, he had threatened to cut her throat. Despite the discords, H had given his permission for D to apply for a passport. This passport had been issued on 6 September 1997. This time she had left Iran without his knowledge. The additional consent he had given her to travel outside Iran in 1997 still applied. Since the separation in 1992, D had worked as a hairdresser and, in addition to an inheritance from her father, she had received financial support from her mother and family.

At the interview on 5 April 2002, M essentially stated the following: She had left Iran because of her father. She and D had lived in her grandmother’s home in Teheran for the past 11 years but had also stayed with H intermittently. However, they had not returned to him since their last visit to Sweden. She had studied at the university in Zanjan between 1996 and 2000 and was currently working at a private pharmaceutical company. While she had still been studying, she had been interrogated by the security forces several times, the last time in the winter of 2000. H had friends in the security forces. She had been interrogated because of his claim that she was a girl of bad morals. He had not been able to take her from the university because she had already paid the entrance fee. The man he wanted her to marry was already married.

The Migration Board conducted a second interview with D and M on 8 May 2002. On this occasion D essentially added the following: Her mother had been buried in Iran on 10 February 2002. D’s siblings had brought the remains from Sweden to Iran. H had tried to ruin the funeral. He had taken M to a physician in forensic medicine to ascertain whether she was still a virgin. D had not lived with H since 1992 but had visited him at times when he had been ill. He had allowed her and the children to live on their own so that he would be free to get drunk and would not have to pay for them. After the revolution he had worked in the revolutionary court for three to four years. Just before retiring in 1985-86, he had been in command over Iraqi prisoners of war. Since then he had worked secretly for the revolutionary committee but she did not know exactly for whom. The committee was part of the security forces (Niruha-ye-Entezami) and its task was to ensure that people followed rules of dress and behaviour. There were several committees named after geographical areas. H knew that she and M had left Iran, but she did not know whether he had reported her to some authority. H had disapproved of M’s studies and had physically assaulted M two or three times when he had come to visit her at her student residence.

With regard to the stabbing incident, D first stated that the operation for the navel rupture had been carried out in November/December 2000 and that H had come to see her while she had still been in bed recovering. She later stated that the operation, which had allegedly occurred on 22 January 2001, had not been well performed. H had asked what she had done wrong against God, since she had not yet recovered, and had stabbed her. She had first thought that her stitches had come undone. When she had opened her eyes she was in hospital. The police had arrived and told her that H had stabbed her. When asked by the interviewer why the police had come to the hospital, D said that hospitals were obliged to report knife and bullet injuries to the police. She further stated that when she had regained consciousness she had told the police what had happened. They had also talked with the nurse and the doctors. She had not contacted the police to find out what had happened with the investigation, and assumed that it had been dropped since no one had contacted her about it.

During the second interview on 8 May 2002, M essentially added the following: H had come to the university more than 20 times during the four years she had studied there. He had been rude and had always given her a smack on the face. On most occasions he had been accompanied by some of his friends from the committee in Teheran, which was a group of people belonging to the Basij (a paramilitary volunteer force operating in Iran). They made sure that people followed strict moral rules. The last time M and her mother had stayed with H had been in September 1998 when they had returned from Sweden. They had stayed with him for three weeks. They had moved away from him for the first time in 1991/1992 and had moved back and forth a number of times until 1998. Since September 1998 they had not returned to him.

In submissions of 6 June 2002 to the Migration Board, counsel for the applicants stated the following: The son of the family had recently told the applicants that H had threatened and blamed him for their departure from Iran. H had further stated that he intended to put them on trial in order to have them sentenced to stoning when they returned to Iran. As to what extent the applicants had lived with him, it was submitted that the applicants had returned to him on some occasions between 1992 and 1998 because it had been difficult to live without him and because he had repeatedly promised to give up drinking and stop battering D. However, he had never kept his promise and they had not lived with him since a few weeks after returning from Sweden in 1998.

To the submission of 6 June 2002 were appended three documents, seemingly drafted by Iranian authorities: a “statement” issued by the “Madanis legal complex” on 3 April 2002, apparently based on a report made by H, and two summonses instructing the applicants to appear at the complex on 23 May 2002. The applicants also invoked a marriage licence between D and H.

On 16 July 2002 the Migration Board rejected the applicants’ request for a residence permit and ordered that they be deported to Iran. The Board questioned the veracity of the applicants’ statements concerning the alleged actions and controlling influence of H, as the applicants had lived on their own since 1992, as M had been able to study in another town between 1996 and 2000, and as they had been able to leave for Sweden in 1997/98 and in 2002. Noting that H was retired, the Board also found that the applicants had not shown that he was a man of great influence in Iranian society or that he was involved with the security forces. The Board also found it remarkable that the applicants had waited three weeks after their arrival in Sweden to apply for asylum. The fact that D’s mother had died could not explain this delay, as she had died and had been buried in Iran before the applicants left for Sweden. The Board further noted that D had given conflicting information on her reporting the stabbing incident to the police. It also took into account that the applicants had not turned to the police to report H’s alleged threats and harassment, and that D had not filed for divorce. In conclusion, the Board did not find the applicants’ statements credible.

The applicants appealed to the Aliens Appeals Board (Utlännings-nämnden) on 6 August 2002. In the appeal they submitted that they had applied for asylum while their visas were still valid and that they were staying legally in Sweden. The reason why they had not applied for asylum earlier was that they had been busy with different mourning ceremonies among relatives and friends and that D had been in a bad mental state due to her mother’s death. It was furthermore submitted that D’s operation for the navel rupture had taken place at the end of 2001, and that H had stabbed her on 22 January 2002. In this respect the applicants invoked an operation report sheet and a note of medical records. They also invoked an ID card to confirm their claim that H was employed by the Basij.

Further submissions were made to the Appeals Board on 13 October 2003. Appended to the submissions was a summons (“warning”) directed at D to appear before the family court in Teheran on 31 August 2003 in order to respond to a report made against her by H. The applicants stated that the son had sent the summons to Sweden by fax and that, according to the summons, there was further documentation in the case, the content of which D was not aware, and which she did not know how to access unless she was to appear in person before the court. D submitted that a summons to the family court could be very serious because the various religious authorities cooperated closely with that court, which she believed to be the case here.

On 24 November 2003 the applicants made yet another submission to the Appeals Board. They claimed that the report filed by H against D had turned out to concern adultery and had resulted in D being sentenced in her absence by an Iranian court to death by stoning. The son had allegedly obtained the report and the judgment by bribing court officials. As it appears, the report had been filed on 20 July 2003, the hearing held on 31 August 2003 and the judgment issued the same day.

In final submissions of 18 February 2004, the applicants claimed that the circumstances that had led to the judgment against D gave strong reason to believe that M would face a similar charge and conviction.

On 22 March 2004, the Aliens Appeals Board rejected the applicants’ appeal. It generally agreed with the Migration Board’s assessment and added the following: It noted that the medical documents concerning D’s operation for stabbing wounds were dated 22 January 2001 and not 22 January 2002, as alleged by D. Although D had stated that she had been operated for a navel rupture before the alleged stabbing, the documents did not mention any such operation. In regard to the alleged judgment and death sentence against D, the Appeals Board found it remarkable that she had been sentenced in absentia, having regard to the evidence requirements under the hodûd rules of the Iranian criminal law. The Board also noted that the judgment submitted by the applicants stated that it was final, whereas Iranian death sentences were subject to appeal.

Following the Court’s indications under Rule 39 of the Rules of Court, the Migration Board decided, by decisions of 8 July, 13 August and 27 September 2004, to stay the enforcement of the deportation order against the applicants, on the latter occasion without a time-limit.


SVENSKA FLYGFORETAGENS RIKSFORBUND AND SKYWAYS EXPRESS AB v. SWEDEN

The first applicant, Svenska Flygföretagens Riksförbund (the National Association of Swedish Airlines), is a nationwide non-profit association open for membership to all serious, commercial airline companies. The second applicant, Skyways Express AB, is a private limited airline company based in Sweden and is a member of the applicant association. The applicants are represented before the Court by Mr J. Thörnhammar, a lawyer practising in Stockholm. The Swedish Government (“the Government”) are represented by their Agent, Mr C.H. Ehrenkrona, Ministry for Foreign Affairs.

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

The Swedish Civil Aviation Administration (Luftfartsverket, hereinafter “the CAA”) is a public utility, wholly-owned by the Swedish State. The activities of the CAA are directed by the Government and subject to their decisions. The CAA operates 19 airports in Sweden and is responsible for, inter alia, air traffic services and air safety in the country. The aviation infrastructure is financed through charges levied by the CAA on the airline companies wanting to use State airports. About two-thirds of the CAA’s budget is financed by these traffic charges.

The Government specify the economic goals and restrictions applicable to State authorities, such as the CAA, through so-called letters of regulation (regleringsbrev), which are binding. The letter of regulation relevant to the instant case was issued by a Government decision dated 18 December 1997. It stipulated guidelines for, inter alia, the overall targets and the financial conditions of the CAA and specifically fixed the financial targets of the CAA for the period between 1999 and 2001. The letter also stipulated the following limitation on permissible increases in traffic charges:

“As a restriction on price increases, the traffic charges, excluding land routing charges, security charges and noise charges, must not increase on average over the years more than the net price index, calculated as of 1993.”

Following consultations with Swedish and foreign airline companies, the CAA, on 10 December 1998, decided to adopt a regulation which established new norms for air traffic charges at State airports (the Code of Statutes of the CAA – Luftfartsverkets författningssamling – LFS 1998:83). The regulation was published on 22 December 1998 and entered into force on 1 January 1999.

By a letter of 10 January 1999, the first applicant, on behalf of its members, filed an appeal with the Government against the decision of the CAA. It argued that the increase in air traffic charges amounted to 5%, which was too high having regard to the situation in the country with hardly any inflation and low interest rates. It also pointed out that the new charges heavily disadvantaged smaller aircraft, imposing on them relatively high price increases compared to heavier aircraft. The first applicant also stated that the airline companies had not had sufficient time to alter their customer prices in line with the increase since the decision had been made by the CAA on 10 December 1998 and had come into force already on 1 January 1999.

The CAA submitted its comments to the Government in a letter dated 15 January 1999. The CAA initially stated that the appeal had been received on 12 December 1998 and had thus been made in time. (The stated date is obviously incorrect; the correct date appears to have been 12 January 1999.)

However, the CAA opposed the appeal since the increase in the charges was necessary to fulfil the financial demands imposed on the CAA. It stated that the total increase in charges amounted to 4.2%, which corresponded to an annual increase in its income of approximately 115,000,000 Swedish kronor (SEK). The main increases had been made in relation to passenger charges, charges for local air flight services and the minimum charges for landing. The increase of the two latter charges in relation to smaller aircraft had been compensated by introducing a new annual landing card and by increasing the weight-limit for aircraft having to pay the local air flight charge. Furthermore, the lighter aircraft had experienced very little price increases between 1993 and 1998 compared to the heavier aircraft.

The CAA further reiterated that the Government had imposed a limit on the charge increase corresponding to the net price index calculated from 1993. The increase in charges previously made between 1993 and 1998 had, however, been below this limit; the CAA had in fact lowered prices by 5% during this period. The current increase was therefore well within the scope of possible increases accumulated over the years.

In a letter dated 29 April 1999, the first applicant submitted to the Government its comments on the CAA’s position. It stated that the introduction of the annual landing card for the lighter aircraft, whilst commendable, was of minor importance since only three or four aircraft in the country could benefit from it. It conceded that, in previous years, the CAA had charged less than the authorised price increases. However, it found it remarkable that the CAA relied on the cumulative effect of the price ceiling’s shortfall over the years to justify a steep increase in the charges now.

On 11 May 2000 the first applicant further submitted that the net price index had fallen heavily since 1995 and had, during certain periods, almost reached the 1993 level. The scope for increasing the charges had thus gradually been reduced. Furthermore, a large part of the increase concerned charges restricted by the Government’s letter of regulation, and the increase in those charges clearly exceeded the development of the net price index. The first applicant also stated that the real increase in charges was in fact greater than that mentioned by the CAA, since infrastructure costs should also be considered a traffic charge.

The CAA submitted to the Government on 26 June 2000 that it had not overstepped the price ceiling set by the Government and that the infrastructure charges were to be excluded from the calculation of the increases complying with the price ceiling.

The first applicant responded, in submissions to the Government on 21 August 2000, that the Government’s letter of regulation did not provide for the possibility of accumulating the annual increases, as the CAA had done, and that the increase in air traffic charges clearly exceeded the development of the net price index during the given period.

On 28 February 2002 the Government dismissed the first applicant’s appeal for the following reasons:

“Under section 35 of the Ordinance (1988:78) with Instructions for the CAA, the decisions of the CAA in matters other than personnel issues are subject to appeal only if expressly stated. The instant appeal concerns a decision on the issue of regulations, as provided for in chapter 8 of the Instrument of Government [Regeringsformen]. There is no provision stating that an appeal lies against such a decision of the CAA. The appeal will not therefore be examined.”

The CAA is a public utility and part of the State administration. It does not own its assets but merely administers them for the State. As opposed to other public authorities, a utility is a self-financing unit conducting business, and is run on principles of corporate finance. Under section 1 of the Ordinance with Instructions for the CAA (Förordningen med instruktion för Luftfartsverket, 1988:78, hereinafter “the CAA Ordinance”), applicable at the material time, the CAA is defined as a central public authority with the overall responsibility for civil aviation.

The Government decide upon the conditions for the individual State authorities through ordinances and annual letters of regulation. The letters of regulation set out, inter alia, the goals to be achieved by the authority, the funding at the authority’s disposal and the way that funding should be distributed among its different activities.

Chapter 6, section 13 of the Aviation Act (Luftfartslagen, 1957:297) provides that the Government, or an authority designated by the Government, may issue regulations concerning charges for the use of public airports or other public facilities or services for air traffic. While the air traffic charges originally were set by the Government, the competence to do so was, of 1 January 1993, delegated to the CAA through an amendment (section 75) to the Aviation Ordinance (Luftfartsförordningen, 1986:171). These two provisions constituted the legal basis for the CAA’s decision of 10 December 1998 to adopt its regulation on new air traffic charges.

As regards the right to appeal, section 35 of the CAA Ordinance provided the following:

“The decisions of the CAA in personnel matters are subject to appeal to the Government, [unless otherwise stated] ...

The decisions of the CAA concerning the enrolment for education in the air traffic control service are not subject to appeal. The decisions of the CAA in other matters are subject to appeal only if

this follows from a provision other than section 22(a) of the Public Administration Act [Förvaltningslagen, 1986:223], or

a provision specifically refers to section 22 (a) of the Public Administration Act.

If the matter concerns the exercise of public authority in respect of an individual and there are no specific provisions on appeal, the decision is nevertheless subject to appeal to the Government.”

The Public Administration Act applies to the handling of matters by the administrative public authorities and to the courts’ handling of administrative matters (section 1).

Under section 22 of the Act, a decision may be appealed by the person whom the decision concerns, provided that it has affected him or her adversely and is subject to an appeal.

Under section 22 (a), appeals lie to the administrative courts. However, this does not apply to decisions in administrative matters or in matters concerning the adoption of regulations (normgivningsärenden), as provided for in chapter 8 of the Instrument of Government (Regeringsformen). If there is a specific provision in another Act providing for an appeal, that provision will have precedence.

Section 23 provides that an appeal shall be made, within three weeks, to the authority which issued the impugned decision. According to section 24, that authority shall examine whether the appeal has been submitted in time. If it has been submitted in time, the appeal and the case-file are forwarded to the authority empowered to examine the appeal.

Chapter 8 of the Instrument of Government contains provisions on laws and other regulations, stating the areas which may be regulated only by law and the areas which may also be regulated by other provisions, as well as the competence of Parliament or the Government to delegate the power to issue regulations to the authorities or the municipalities.

The term “exercise of public authority” (myndighetsutövning) is used in many laws and regulations, including the Instrument of Government, the Public Administration Act, the Criminal Code (Brottsbalken) and the Tort Liability Act (Skadeståndslagen, 1972:207). According to the preparatory works of the Instrument of Government (prop. 1973:90, p. 397) and the Public Administration Act (prop. 1985/86:80, p. 55), the term has the same meaning as section 3 of the repealed 1971 Public Administration Act (1971:290). That section gave the following definition: “the exercise of authority to decide on a benefit, right, obligation, disciplinary sanction, dismissal or other comparable issue in respect of an individual” (“utövning av befogenhet att för enskild bestämma om förmån, rättighet, skyldighet, disciplinpåföljd, avskedande eller annat jämförbart förhållande”).


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

The details of the applicants are contained in the annex.

The Turkish Government (“the Government”) were represented by their Agent; and in those cases in which they were intervening party, the Republic of Cyprus were represented by their Agent.

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

The applicants submitted that since the 1974 Turkish intervention in northern Cyprus they have been deprived of their property rights, as their property was located in the area that was under the occupation and control of the Turkish military authorities. Since that date, they had been prevented from having access to and from using their respective homes and properties. In particular:

The first applicant, mother of the second and third applicants (born in 1951 and 1949 respectively) was married to Michael Fieros, who by 1974 was a leading property developer in the Kyrenia area, owning over 200 sites on many of which he had built villas and luxury flats as well as the family home. On his death in 1983, his property passed to the applicants. In or about 1995, the second applicant donated her share in the property to the second and third applicants.

The second applicant is the father of the third, fourth, fifth and sixth applicants, born in 1925, 1959, 1960, 1961 and 1967 respectively. The third to sixth applicants are shareholders in the first applicant, a company set up in 1968, which dealt in real estate. The fifth and sixth applicants are director and secretary, and director, respectively of the first applicant.

The first applicant owned various houses, shops, warehouses and plots of land. This property included the house built on plot 150 which was where the other applicants were living in 1974 and had been living since 1968.

The applicant owned a half share in immovable property in Dherynia, near to Famagusta, consisting of some 11 acres of orange groves. He had married in April 1968 and from July 1971 had been living with his wife and two children in a house which belonged to his wife.

The applicants are a family, consisting of a father, mother and three children (born in 1958, 1960 and 1969 respectively). The first applicant owned, or part owned, some 20 plots of land in and around Famagusta, including buildings, shops, apartments, a restaurant and various land on or near the seafront as well as the family home. The third, fourth and fifth applicants each owned varying shares in thirteen plots of land. The second applicant owned half of two plots, one co-owned with the first applicant; while the third applicant wholly owned another plot of land.

The applicants are a family (grandmother, uncle, father, mother, son and daughter) born in 1916, 1938, 1941, 1947, 1968 and 1970 respectively. They owned, or part-owned, 17 plots of land and four houses and various other buildings in or around Famagusta. Of the houses, two were claimed as having been family homes: a house built on plot 504 which had been the home where the second and third applicants had grown up and where the first and second applicants had been living in 1974 and which was now owned by the fifth and sixth applicants; and a house built on plot 1189 where the third, fourth, fifth and sixth applicants had been living in 1974 and which was jointly owned by the second and third applicants.

The applicants are mother and daughter, born in 1928 and 1951 respectively. In 1973, the first applicant's husband died and the family home owned by him was inherited by the first applicant and her two children. In January 1974, on the second applicant's marriage, the first applicant rented an apartment pending the availability of another property under lease.

In 1995, due to health reasons, the first applicant transferred her share in the family home and other properties, including houses, shops and fields to the second applicant.

The applicants are a family; the third and fourth applicants born in 1933 and 1931 are the parents of the first and second applicants born in 1960 and 1959.

Prior to the invasion in 1974, the third applicant had run a shop on land which had been owned by the fourth applicant. She had also owned two plots of land, on one of which was situated the family home.

The applicants are a family; the first applicant is the mother of the second, third, fourth and fifth applicants, born in 1950, 1952, 1955 and 1958 respectively. Prior to events in 1974, they had lived together in the family home owned by the first applicant's husband. His property, some forty plots of land, including business premises, building plots, fields and orchards, was inherited by the applicants on his death in 1981. The first applicant however donated her share to the other applicants.

The first and second applicants, husband and wife, are the parents of the third, fourth and fifth applicants who were born in 1961, 1963 and 1975. The first applicant owned 29 plots of land, 2 flats and a storehouse; the second applicant owned 3 building plots, 3 buildings and 2 flats; both appear to have jointly owned the family apartment. The third, fourth and fifth applicants also owned property, including a flat and various plots of building land.

The applicant family, now living in Australia, consist of the first and second applicants, husband and wife, and their two children, the third and fourth applicants, born in 1967 and 1968. The first applicant was part owner of the family house, as well sharing ownership of a plot of land with the second applicant.


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant, Mr Mariusz Pińkowski, is a Polish national who was born in 1970 and lives in Częstochowa.

On 9 March 2000 the Częstochowa Regional Prosecutor (Prokurator Okręgowy) charged the applicant with being an accomplice to an armed robbery and murder in France.

On the same date the Częstochowa District Court (Sąd Rejonowy) remanded the applicant in custody. The court justified its decision by the strong evidence against the applicant, the likelihood of a severe sentence of imprisonment being imposed on him if convicted and the risk that he might obstruct the proceedings.

On an unspecified date the applicant was charged with being an accomplice to an armed robbery, murder, false imprisonment and being a member of an organised criminal gang (no. II K 55/01). All the offences in question were alleged to have taken place in France.

Subsequently, on 25 May 2001 the applicant was charged with being an accomplice to an armed robbery and with the imprisonment, torture and murder of a certain A.T., and with being a member of an organised criminal gang in France.

On 18 June 2001 the bill of indictment was lodged with the Częstochowa Regional Court.

The applicant's pre-trial detention was extended by the decision of the Katowice Court of Appeal (Sąd Apelacyjny) of 28 August 2000 (upheld by the Supreme Court (Sąd Najwyższy) on 2 October 2000) and the decisions of the Katowice Regional Court of 14 February, 28 June and 29 November 2001 (upheld by the Katowice Court of Appeal on 14 March, 22 August and 20 December 2001, respectively).

The courts referred to the original grounds for the applicant's detention and, additionally, to the international dimension of the case.

Meanwhile, on 1 March 2002 the Nowy Sącz Regional Court convicted the applicant as charged and sentenced him to twenty-five years' imprisonment. The reports obtained from Polish and French forensic experts in the course of the proceedings were contradictory as regards the cause of the victim's death. However, relying on the witness testimony and other evidence, the court established that the victim had died not as a result of asphyxia (when the applicant, acting together with accomplices, strangled him with a wire and put tape around his face) as claimed by some experts but as a result of being shot by the applicant in a forest where the applicant had possibly buried him with the aid of the gang.

On 3 October 2002 the Kraków Court of Appeal quashed the above judgment and remitted the case to the prosecution for further investigation, with a view to eliminating the major discrepancies in the evidence obtained.

On 21 November 2003 the Częstochowa Regional Prosecutor issued a new decision charging the applicant with, among other offences, attempting to kill A.T. by strangling him and then hiding the body. The supplementary investigation revealed that the victim had died as a result of numerous wounds inflicted on him. In addition, the applicant was found to have incited and led the other accomplices, acting on orders from a certain R.S. All the offences in question were alleged to have taken place in France.

Meanwhile, the preventive measure was upheld by decisions of the Kraków Court of Appeal of 21 February, 21 August, 3 October and 31 December 2002, and 26 March, 24 September and 16 December 2003.

Subsequently the applicant's pre-trial detention was extended by the trial court, the Nowy Sącz Regional Court, in its decisions of 29 June and 15 November 2004 and of 29 March and 19 August 2005 (upheld by the Kraków Court of Appeal on 22 July and 9 December 2004 and on 4 May and 14 September 2005, respectively).

The courts reiterated the original grounds for the applicant's pre-trial detention. In addition, although they acknowledged the fact that the investigation had been lengthy, the domestic courts considered it justified in the light of the international character of the case and the fact that certain witnesses had to be examined with the aid of the French authorities.

On an unspecified date in early-2004 a new bill of indictment was lodged by the prosecutor (no. II K 8/04) and the case was sent to the Nowy Sącz Regional Court.

From 17 May 2004 until 18 November 2005 the trial court held thirteen hearings. The court examined a French witness and obtained a forensic report from a French expert. The case file comprised twenty-three volumes in Polish and twenty-nine volumes in French.

On 18 November 2005 the Nowy Sącz Regional Court convicted the applicant as charged and sentenced him to fifteen years' imprisonment. That term was reduced by the period which the applicant had already spent in pre-trial detention, from 11 March 2000 until 27 March 2001 and from 14 January 2003 until 18 November 2005.

On 8 March 2006 the Kraków Court of Appeal acquitted the applicant of inciting and commanding the other accomplices and upheld the remainder of the first-instance judgment.

On 15 February 2007 the Supreme Court dismissed the cassation appeals lodged by the defence lawyers.

In parallel to his pre-trial detention which is the subject of the instant application, the applicant served two separate prison sentences. Between 22 April and 31 July 2002 the applicant was serving a sentence of 100 days imposed on him by a judgment of the Częstochowa District Court of an unspecified date (no. III K 1554/98). On 31 July 2002 he started serving a sentence of twelve years' imprisonment, which was imposed on him by a judgment of the Nowy Sącz Regional Court of an unspecified date (no. II K 14/06).

During his pre-trial detention, the applicant was first held in the Nowy Sącz Prison and later in Częstochowa Remand Centre.

On 14 November 2001 the Penitentiary Commission of Nowy Sącz Prison (Komisja Penitencjarna) classified him as a “dangerous detainee” (“N”). That decision was based on the information about the applicant obtained from the trial court, namely that he had been suspected of a cruel crime committed while acting in an organised criminal gang.

On 8 May 2003 that decision was lifted by the Penitentiary Commission of Częstochowa Remand Centre.

The applicant did not submit any details about the conditions of his detention under the “N” regime.

It appears that on 19 December 2007 the applicant was released on parole.

The applicant did not complain about the length of the proceedings under the Act of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).

The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are summarised in several judgments concerning similar cases (see, among others, Kauczor v. Poland, no. 45219/06, §§25-27, 3 February 2009; Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006; Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006).

The relevant domestic law and practice concerning remedies for excessive length of judicial proceedings, in particular the applicable provisions of the above-mentioned 2004 Act, are stated in the Court's decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII, and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant, Viktor Aleksandrovich Pylnev, is a Russian national who was born in 1952 and lives in Voronezh. He is represented before the Court by Ms O. Preobrazhenskaya, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

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

On 5 April 1999 the Kaluga Regional Deputy Prosecutor opened a criminal investigation in respect of the applicant, who was at the time a member of the regional legislature, on suspicion of tax evasion.

On 15 September 1999 the applicant was questioned by the investigator as a suspect and signed an undertaking not to leave town pending the investigation. At the time he resided in Maloyaroslavets in the Kaluga Region.

On 20 September 1999 the applicant was indicted on the charge of tax evasion.

On 21 September 1999 the investigator authorised the applicant's detention pending the investigation. In particular, the investigator noted:

“Having regard to the gravity of the charge and the fact that [the applicant] does not have permanent employment and may abscond or put pressure on witnesses and conspire with other co-accused to obstruct the course of justice, [the investigator] decides to ... place [him] in custody...”

It appears that the applicant left for Moscow on 22 September 1999. He did not notify the investigator of his departure. On the following day the applicant's name was put on the wanted persons' list. From 6 to 23 October 1999 the applicant underwent in-patient treatment in a cardiology centre in Ivanovo. From 26 October to 25 November 1999 the applicant was in Moscow, where he fell ill and received unspecified outpatient treatment. Upon his return to Maloyaroslavets he was arrested in his flat on 28 November 1999 and placed in custody. His lawyer appealed, asking the court to release the applicant.

On 10 December 1999 the Kaluga District Court of the Kaluga Region confirmed the lawfulness of the applicant's arrest, noting that:

“[The applicant] is charged with a serious offence which carries a custodial sentence of up to five years. Furthermore, [the applicant] earlier absconded and his name was put on the wanted persons' list”.

On 8 February 2000 the applicant was charged with fraud and abuse of power. On 11 and 14 February 2000 the charges were dropped.

On 28 February 2000 the applicant was indicted on charges of securities fraud, corrupt business practices and breach of trust.

On 13 June 2000 the applicant was released on an undertaking not to leave town.

On 30 June 2000 the applicant consulted a psychiatric hospital in Kaluga and agreed to undergo in-patient treatment there. He was diagnosed with an “organic disorder of mixed origin with cerebro-asthenic and psychopathic-like personality change” (органическое расстройство смешанного генеза с церебрастеническими, психопатоподобными изменениями личности). He was released from hospital on 31 July 2000.

From 20 October to 2 November 2000 the applicant underwent treatment in the same hospital. It appears that the applicant failed to inform the authorities of his departure from Maloyaroslavets and on 6 December 2000 the regional prosecutor revoked the applicant's undertaking not to leave town and ordered his detention pending investigation and trial. The prosecutor noted that the applicant, who “remained impenitent”, might obstruct the course of justice or abscond. On the same day the prosecutor transferred the applicant's case file to the Maloyaroslavets District Court of the Kaluga Region. On 7 December 2000 the applicant was placed in remand prison no. IZ-40/1 in Kaluga.

On 3 January 2001 the Maloyaroslavets District Court of the Kaluga Region scheduled the opening of the trial for 12 January 2001. The applicant was to remain in custody.

On 12 January 2001 the District Court dismissed an application by the applicant for release. On 9 February 2001 the Kaluga Regional Court upheld the decision of 12 January 2001 on appeal. The court noted that the applicant was charged with serious offences, which fact alone justified his pre-trial detention.

On 31 January 2001 forensic psychiatrists examined the applicant and found him fit to stand trial.

On 7 March 2001 the District Court ordered the applicant to undergo a comprehensive psychiatric examination. The applicant was transferred to remand prison no. 77/2 in Moscow on 19 May 2001. On 27 June 2001 he was placed in a forensic psychiatric hospital. On 24 July 2001 the medical panel established that the applicant did not suffer from any chronic mental disorder and ruled that he was fit to stand trial. On 9 August 2001 the applicant was transferred back to remand prison no. IZ-40/1 in Kaluga.

On 28 August 2001 the District Court found the applicant guilty as charged and sentenced him to seven years' imprisonment.

On 26 October 2001 the Kaluga Regional Court quashed the judgment of 28 August 2001 on appeal and referred the matter back for fresh consideration.

On 16 November 2001 the applicant was released on an undertaking not to leave town. On an unspecified date he left for Obninsk, in the Kaluga Region, where he underwent in-patient treatment for ischaemia and an organic disorder of mixed origin with cerebro-asthenic and psychopathic-like personality change in hospital no. 8 from 23 November 2001 to 23 January 2002.

On 24 December 2001 the hospital informed the District Court that the applicant's condition did not entail an impediment to his participation in the trial.

On 3 and 4 January 2002 the applicant failed to attend the hearings. According to the applicant, on 9 January 2002 the District Court had to adjourn the hearing owing to his poor health. In response to the applicant's complaints about his health, the court summoned an emergency response doctor, who examined the applicant and gave him pain relief.

On 14 January 2002 the District Court granted a request by the applicant to adjourn the hearing until 21 January to allow him to hire a new lawyer to represent him. Later that day the applicant consulted a doctor.

On 16 January 2002 the applicant was examined by a medical panel which recommended that he should avoid stressful situations for ten days.

On 21, 23 and 25 January 2002 the District Court held hearings. It dismissed the applicant's request to stay the proceedings on account of his poor health condition. The court relied on the opinion of the doctors from hospital no. 8, where the applicant was undergoing in-patient treatment at the time. According to the applicant, he did not feel well after the hearings and had to seek medical assistance.

On 23 January 2002 hospital no. 8 discharged the applicant, noting that his health condition was satisfactory.

On 29 January 2002 the applicant allegedly lost his eyesight temporarily and asked the court to adjourn the hearing. The court called for an ambulance, which took the applicant to a hospital in Maloyaroslavets, where he stayed until 18 February 2002. He was diagnosed with cervical osteochondrosis and hernia of intervertebral discs, myelopathy, astheno-neurotic syndrome, ischaemia, angina pectoris and hypertension and underwent relevant treatment. Then he was transferred to another hospital in Kaluga on 18 February 2002. The court hearings on 21 and 26 February 2002 were adjourned. It appears that the applicant did not obtain the District Court's authorisation for his transfer to Kaluga.

On 7 March 2002 the Kaluga Regional Department of Health and Pharmaceuticals recommended that the applicant be examined by neurology specialists in Moscow. The applicant's medical file was forwarded to Moscow City Hospital no. 19 affiliated to the Burdenko Neurosurgery Institute.

On 18 March 2002 the applicant failed to attend the hearing and the judge ordered his detention pending trial. The court noted that the applicant had violated his undertaking not to leave town. The applicant was taken into custody in hospital and transferred to a temporary detention unit in Maloyaroslavets on 19 March 2002. He was held there until 21 March 2002. Every day the administration called for emergency response doctors to attend to the applicant. On 21 March 2002, upon the neurologist's recommendation, the applicant was transferred to a hospital in Maloyaroslavets. According to the applicant, he lost sensitivity in his legs and was constantly in pain in the spinal area. He felt giddy and had headaches and heart pain. His limbs were swollen. His speech was slow and he suffered from memory loss.

On 19 March 2002 the medical professionals at the Burdenko Neurosurgery Institute examined the applicant's medical file and recommended that he receive spinal surgery “shortly”.

On 26 March 2002 the applicant started wearing a neck brace. On the same day the policemen removed him from hospital and took him to the temporary detention unit in Maloyaroslavets. On 27 March 2002 the District Court adjourned the hearing in response to a complaint by the applicant about his medical condition. The applicant was examined by a general practitioner, who testified in court, recommending a comprehensive medical examination. On 28 March 2002 the District Court granted the prosecutor's request and commissioned an expert panel to examine the applicant in order to ascertain whether his health condition permitted him to participate in the proceedings.

It appears that on 28 March 2002 the applicant arranged for a meeting with a group of medical professionals from Kaluga. However, the judge in charge of his case refused to authorise their access to the temporary detention unit where the applicant was being held at the time.

According to the applicant's medical file, submitted by the Government, on 29 March 2002 he was transferred to the medical unit at remand prison no. IZ-40/1 in Kaluga.

On 10 April 2002 the applicant was examined by a medical panel comprising specialists in neurosurgery, cardiology, neuropathology, neurology and general therapy. The experts concluded that the applicant could participate in the proceedings. They noted that he could move his feet and toes, but he refused to flex the knees, alleging that such movements caused extra pain in the spinal cord. The applicant was able to sit up and turn from side to side. They summed up their findings as follows:

“[The applicant] suffers from cervical osteochondrosis and hernia of intervertebral disks, myelopathy, astheno-neurotic syndrome, ischaemia, angina pectoris and hypertension. The applicant's current condition allows him to participate in the criminal proceedings. [The Burdenko Scientific Research Institute, Department of Neurosurgery] and town hospital no. 19 ... recommended that [the applicant] undergo in-patient treatment and surgery shortly. The in-patient treatment and surgery in question have been recommended on account of the deterioration of the applicant's health.”

On the same day Colonel K. of the Kaluga Regional Department for the Execution of Sentences asked the Main Department for the Execution of Sentences for the applicant to be transferred to the Burdenko Neurosurgery Institute in Moscow. In particular, he noted that the applicant's condition required specialist medical intervention, which was unavailable at the remand prison.

On 15 April 2002 the District Court resumed the proceedings. Prior to the hearing, the applicant, who complained of a headache, heart pain, dizziness and shortness of breath, was examined by a general practitioner at the courthouse. The doctor noted that the applicant was suffering from an attack of angina pectoris and prescribed pain-relieving medication. The hearing was adjourned.

The District Court subsequently held hearings on 16 to 19, 22 and 24 April 2002. Prior to each hearing, doctors examined the applicant and found him fit to participate in the proceedings. They noted, inter alia, that the applicant was lucid and responded appropriately to the questions asked.

During the trial the applicant pleaded not guilty and chose not to testify.

On 27 April 2002 the Maloyaroslavets District Court acquitted the applicant of breach of trust, found him guilty of securities fraud and tax evasion and sentenced him to five and a half years' imprisonment. The court also granted civil claims brought against the applicant with regard to the securities fraud.

On 18 May 2002 the Main Department for the Execution of Sentences authorised the applicant's transfer to hospital no. 19, affiliated to the Burdenko Neurosurgery Institute.

On 30 May 2002 the applicant was examined by a neurosurgeon and a neurologist, who confirmed the earlier diagnosis and recommended that the applicant be transferred to the Burdenko Neurosurgery Institute to determine the date of the surgery.

On 25 June 2002 the Kaluga Regional Court upheld the applicant's conviction in substance on appeal.

From 3 to 25 July 2002 the applicant underwent treatment at a regional hospital. On an unspecified date he was transferred to hospital no. 19 in Moscow. On 7 August 2002 the applicant had surgery. He was discharged from hospital on 9 September 2002.

On 12 February 2004 the Lyublinskiy District Court of Moscow reclassified the applicant's conviction to bring it into compliance with the amendments of the Russian Criminal Code. The term of the sentence remained unchanged. On 1 April 2004 the Moscow City Court upheld the decision of 12 February 2004 on appeal.

On 26 June 1999 the police conducted a search of the applicant's flat and seized 25,000 United States dollars.

The applicant lodged a complaint with the Kaluga District Court, arguing that the money should be transferred to the tax authorities as payment of his tax arrears. On 18 August 2000 the court dismissed the applicant's complaint. On 2 October 2000 the Kaluga Regional Court upheld the judgment of 18 August 2000 on appeal.

It appears that the money in question was admitted in evidence and deposited with the tax authorities pending criminal proceedings against the applicant.

On 1 August 2002, in response to an inquiry initiated by the applicant's wife, the District Court ruled that the money seized in his flat and deposited with the tax authorities would be used to repay the pecuniary damage caused by his crimes. On 4 September 2002 the District Court refused to reinstate the time-limits for the applicant's appeal. On 1 November 2002 the Kaluga Regional Court quashed the decision of 4 September 2002 and discontinued the proceedings, noting that even though the applicant's wife was his representative, she was not authorised as a matter of law to initiate the inquiry.

On 21 November 2002 the bailiff seized the money in the context of enforcement proceedings against the applicant.

On 2 March 2004 the Maloyaroslavets District Court of the Kaluga Region dismissed the applicant's complaint about the seizure of his money by the bailiff. On 12 April 2004 the Kaluga Regional Court upheld the judgment of 2 March 2004 on appeal.

The applicant submitted that from 28 to 30 November 1999 he was detained in an overcrowded cell at the temporary detention unit in Obninsk.

From 30 November 1999 to 13 June 2000, from 7 December 2000 to 19 May 2001 and from 10 August to 16 November 2001 the applicant was detained in remand prison no. IZ-40/1 in Kaluga. According to the applicant, all the cells in the prison were overcrowded. The number of beds was insufficient and the inmates had to take turns to sleep.

From 19 May to 9 August 2001 the applicant was held in remand prison no. 77/2 in Moscow. According to the applicant, during the period in question he was detained in severely overcrowded cells. The cells were infested with cockroaches. The windows were covered with metal shutters which prevented access to fresh air. The light, which was constantly on, was not sufficient to permit reading. His relatives were not allowed to send him books or periodicals. Nor were they available from the prison library. The food was of low quality. On frequent occasions the inmates received no more than two meals per day. The daily walk lasted no longer than half an hour.

From 19 to 21 March and from 26 to 31 March 2002 the applicant was detained in the temporary detention facility in Maloyaroslavets. The applicant was kept in a basement in a cell without windows or the possibility of access to fresh air. He was not provided with bed sheets or toiletries. There was no toilet in the cell.

According to the applicant, he was unable to walk at the time. The guards did not have stretchers and had to carry him from the van to the courtroom holding him by the arms and legs.

From 1 April to 3 July 2002 the applicant was detained in the medical unit of remand prison no. IZ-40/1 in Kaluga. According to the Government, the applicant was detained in “ward no. 6”, which measured 24.9 square metres. It had eight sleeping places and six inmates, including the applicant, were detained there.

According to the applicant, he had an individual sleeping place. He provided no further details as to the conditions of his detention during the period in question.

The relevant extracts from the 3rd General Report [CPT/Inf (93) 12] by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows:

“35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ...

Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner.

The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital.

A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly.

A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment.

Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise.

The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.”


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;Violation of Art. 8;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

At about 5 a.m. on 9 May 1998 the applicant and an accomplice were surprised by police while in the process of trying to enter a computer equipment shop through a hole in the wall of the basement of a neighbouring building. They had previously drilled the hole over the course of several nights, and in this way had attracted the attention of the building’s inhabitants.

On the morning of 9 May 1998 the applicant and his accomplice were heavily armed. The applicant opened fire and shot a police officer dead. Later he detonated a hand grenade. In the ensuing exchange of gunfire his accomplice was injured and died. The special antiterrorism squad intervened later in the morning. The applicant gave himself up and was arrested at about 8.30 a.m., after negotiations with the police, a psychologist and a public prosecutor.

On the same day, 9 May 1998, the applicant was charged with attempted robbery committed in conspiracy with others and accompanied by murder, and placed in pretrial detention.

The charges against him were later amended to include the unlawful possession of firearms, ammunition and explosives in large quantities, the murder of a police officer, and attempted murder of six police officers committed in a manner and by means which endangered several lives and by a person who had already committed murder. The maximum penalty on conviction for those offences was life imprisonment, with or without parole.

After the Sofia City Prosecutor’s Office referred the case back to the investigator on three occasions for additional investigation, on 13 August 1999 the investigator finished his work on the case, recommending that the applicant be committed for trial.

On 29 December 1999 the Sofia City Prosecutor’s Office filed an indictment against the applicant with the Sofia City Court.

On 21 February 2000 the judgerapporteur to whom the case was assigned set it down for hearing on 8 and 9 June 2000. As required by Article 241 § 2 (4) of the 1974 Code of Criminal Procedure, as in force at that time, he examined of his own motion whether the applicant’s pretrial detention should be replaced with a more lenient measure, and confirmed it without giving reasons.

The trial against the applicant began in June 2000, but had to restart in October 2001, as in May 2001 the judge-rapporteur was appointed as the Minister of Justice and the formation examining the case did not include a reserve judge.

Over the course of the next few years numerous hearings were adjourned for various reasons. On some occasions the adjournments were made necessary by the fact that the applicant had dismissed his counsel and instructed new ones, who needed time to acquaint themselves with the case file.

In a judgment of 14 October 2005 the Sofia City Court found the applicant guilty of murdering a police officer, attempting to murder another police officer and unlawfully possessing firearms and explosives. Although under the relevant provisions of the 1968 Criminal Code it could have imposed a sentence of life imprisonment, it opted for a lesser penalty and sentenced the applicant to thirty years’ imprisonment, citing his clean criminal record, and the facts that he had a family and had not been fully discredited morally and socially.

Both the applicant and the prosecution appealed. The prosecution requested that the applicant’s sentence be increased to life imprisonment.

On 2 October 2007 the Sofia Court of Appeal upheld the Sofia City Court’s judgment. When considering the appropriateness of the applicant’s sentence, it found that the mitigating circumstances relied on by the lower court were not sufficient to warrant a sentence less than the maximum penalty. It also found that the Sofia City Court had failed to take into account certain aggravating circumstances, such as the victim’s good moral character. In its judgment, the murder committed by the applicant was considerably graver than other offences of that type and the aggravating circumstances were, overall, of such weight and intensity as to rule out a penalty showing any degree of lenience. However, it went on to say, by express reference to Article 6 § 1 of the Convention, that the criminal charges against the applicant had not been determined within a reasonable time, with all the negative repercussions which this had had on him. It found that the excessive length of the proceedings was not attributable to the applicant’s conduct, although he had at times failed to organise his defence efficiently. In the court’s view, the undue delay amounted in itself to a mitigating circumstance, which obviated the need to imprison the applicant for life, in line with the former Commission’s and the Court’s caselaw that the excessive length of criminal proceedings could be remedied by a reduction in sentence.

The applicant and the prosecution appealed on points of law. The prosecution again argued that the penalty was far too lenient and should be increased to life imprisonment.

In a judgment of 5 March 2008 the Supreme Court of Cassation upheld the Sofia Court of Appeal’s judgment, endorsing its reasoning.

The applicant was arrested on 9 May 1998 and detained by an investigator’s order of the same day. The reasons given by the investigator were that the applicant had committed a serious wilful offence and that there existed a genuine risk that he might abscond. On the same day the investigator’s order was approved by a prosecutor.

The applicant made his first request for release on 2 October 1998, when the proceedings against him were at the preliminary investigation stage. The request was dismissed by the Sofia City Court at a public hearing held on 13 October 1998. The court observed that the applicant had committed a serious wilful offence carrying a very severe penalty, and that no special circumstances warranting his release existed. This decision was not subject to appeal. Nevertheless, on 13 December 2000, when the proceedings against him had already progressed to the trial stage, the applicant appealed against it to the Sofia Court of Appeal. In a decision made in private on 15 January 2001 the Sofia Court of Appeal, finding that the applicant’s legal challenge was actually not an appeal but a fresh request for release, sent it to the Sofia City Court for a ruling. On 1 February 2001 the applicant appealed against this decision to the Supreme Court of Cassation. On 21 February 2001 the Sofia Court of Appeal returned the appeal, informing the applicant that its decision was not subject to appeal on points of law. It seems that the Sofia City Court did not examine the request.

On 26 February 2001 the applicant appealed against the decision of the judgerapporteur to confirm his detention of his own motion following receipt of the indictment (see paragraph 11 above). On 9 March 2001 the Sofia Court of Appeal, sitting in private, declared the appeal inadmissible.

The applicant made further requests for release at several trial hearings, held on 9 April and 29 November 2001, and 18 March and 9 May 2002. They were all turned down by the Sofia City Court at the respective hearings. The applicant’s ensuing appeals were dismissed by the Sofia Court of Appeal by decisions made in private on 4 May 2001, 7 January, 15 April and an unknown later date in 2002.

In their reasoning the Sofia City Court and the Sofia Court of Appeal stressed, with various degrees of detail, the following points: (i) the applicant stood accused of several very serious offences, which in itself justified the conclusion that he was a dangerous individual who could abscond or reoffend, (ii) there were no fresh circumstances warranting his release, and (iii) no unwarranted delays had taken place in the criminal proceedings, as the case was factually and legally complex.

In its decision of 4 May 2001 the Sofia Court of Appeal stated that the presumption under Article 152 § 2 (3) of the 1974 Code of Criminal Procedure, in the 1 January 2000 version, about the existence of a risk that the detainee might abscond or reoffend (see paragraph 32 below) applied to the applicant’s case. In two other decisions – those of 7 January and 15 April 2001 – that court expressed the view that the applicant’s lack of a criminal record, known identity and permanent place of abode were not enough to rebut this presumption.

On at least two occasions, in April and May 2002, the applicant’s appeals against the decisions of the Sofia City Court were sent to the competent public prosecutors, who commented on them in writing. These comments were not communicated to the applicant and later the Sofia Court of Appeal ruled on the appeals in private, without holding a hearing, with the result that the applicant did not have the opportunity of replying to these comments.

In October 2002 and April and December 2003 the applicant made three further requests for release in writing. They were turned down by the Sofia City Court in decisions made in private on 18 October 2002 and 14 April and 29 December 2003. On appeal, these decisions were upheld by the Sofia Court of Appeal in decisions also made in private on 11 November 2002, 23 May 2003 and 12 January 2004.

The applicant later lodged four more requests for release. They were all rejected by the Sofia City Court at public hearings held on 27 January, 4 May, 8 September and 23 November 2004. The applicant’s ensuing appeals were dismissed by the Sofia Court of Appeal by decisions made in private on 19 February, 7 June, 21 September and 20 December 2004. The Sofia City Court declined to examine a further request for release made by the applicant during the trial hearing on 13 January 2005, on the grounds that his counsel was absent and it could not proceed with the case.

In turning down the requests for release made between October 2002 and November 2004 the courts relied on the seriousness of the charges against the applicant, the lack of change in the circumstances save for the passage of time, the complexity of the case and the diligent conduct of the proceedings. In their decisions of 4 May 2004 and 8 September and 23 November 2004 the Sofia Court of Appeal and the Sofia City Court expressed the view that the length of the proceedings was due to the numerous adjournments caused by the applicant.

In its decisions of 4 May, 8 September and 23 November 2004 the Sofia City Court stated that under the newly added Article 268a of the 1974 Code of Criminal Procedure (see paragraph 36 below), when ruling on requests for release made during the trial, it was barred from examining the existence or otherwise of a reasonable suspicion against the applicant. In its view, to do so would mean to prejudge the merits of the criminal case against the applicant. It was true that under Article 5 § 1 (c) of the Convention the court had to examine whether a reasonable suspicion existed, but that applied only to rulings made at the pretrial stage. This view was endorsed by the Sofia Court of Appeal in its decision of 21 September 2004. For this reason, the courts declined to delve into the applicant’s arguments concerning this point.

On 14 October 2005 the Sofia City Court convicted the applicant (see paragraph 14 above). In a separate decision it confirmed his detention.

On 17 June 2002 the applicant asked the Supreme Administrative Court to annul certain provisions of Regulation no. 2 governing the legal regime of pretrial detainees (see paragraph 42 below), which, in his view, violated, inter alia, his freedom of correspondence. In a final judgment of 19 July 2002 the Supreme Administrative Court rejected his application.

The relevant provisions of the 1974 Code of Criminal Procedure and the Bulgarian courts’ practice before 1 January 2000 are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 2536, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 5559, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 7988, ECHR 2003-XII (extracts)). On 1 January 2000 the legal framework of pretrial detention was amended with the aim of ensuring the compliance of Bulgarian law with the Convention (тълк. реш. № 1 от 25 юни 2002 г. по н.д. № 1/2002 г., ОСНК на ВКС). The amendments and the resulting practice of the Bulgarian courts are summarised in the Court’s judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 3235, 10 August 2006), and Yordanov v. Bulgaria (no. 56856/00, §§ 2124, 10 August 2006).

On 29 April 2006 the 1974 Code was superseded by the 2005 Code of Criminal Procedure, which reproduced all the provisions brought in with the January 2000 reform.

By Article 304 § 1 of the 1974 Code, during the trial the detainees’ requests for release were examined by the trial court (the same is currently provided for by Article 270 of the 2005 Code). It followed from Article 304 §§ 1 and 2 of the 1974 Code that these requests could be examined in private or at an oral hearing (under Article 270 § 2 of the 2005 Code, these requests must be examined at an oral hearing). The law did not – and still does not – require the court to decide within a particular timelimit.

The trial court’s decision was subject to appeal to the higher court (Article 344 § 3 of the 1974 Code; superseded by Article 270 § 4 of the 2005 Code). The higher court could examine the appeal in private or, if it considered it necessary, at an oral hearing (Article 348 § 1 of the 1974 Code, reproduced in Article 354 § 1 of the 2005 Code).

A new Article 268a was added to the 1974 Code in May 2003. By paragraph 1 of that Article (presently reproduced in Article 270 § 1 of the 2005 Code), a fresh request for release at the same level of court could be made only if there had been a change in circumstances. Paragraph 2 in fine of this Article (presently reproduced in Article 270 § 2 in fine of the 2005 Code) provided that the trial court had to refrain from examining the existence or otherwise of a reasonable suspicion against the detainee.

Section 2 of the 1988 State Responsibility for Damage Caused to Citizens Act (“the SRDA” – Закон за отговорността на държавата за вреди, причинени на граждани – this was the original title; on 12 July 2006 it was changed to the State and Municipalities Responsibility for Damage Act, Закон за отговорността на държавата и общините за вреди), provides as follows:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful:

pretrial detention, including when imposed as a preventive measure, when it has been set aside for lack of lawful grounds;

criminal charges, if the person concerned has been acquitted, or if the criminal proceedings have been discontinued because the act has not been committed by the person concerned or did not constitute a criminal offence...”

In a binding interpretative decision (тълк. реш. № 3 от 22 април 2004 г. на ВКС по тълк.д. № 3/2004 г., ОСГК) made on 22 April 2004 the Plenary Meeting of the Civil Chambers of the Supreme Court of Cassation resolved a number of contentious issues relating to the construction of various provisions of the SRDA. In line with the courts’ earlier case-law, in point 13 of the decision it held that pretrial detention was unlawful when it did not comply with the requirements of the Code of Criminal Procedure and that the State was liable under section 2(1) of the SRDA when such detention had already been set aside as unlawful.

Individuals seeking redress for damage resulting from decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС, ІV г.о.).

Articles 30, 32 § 1 and 34 of the 1991 Constitution read, as relevant:

“Everyone has the right to meet in confidence with the person who defends him. The confidentiality of their communication shall be inviolable.”

“The private life of citizens shall be inviolable. Everyone has the right to protection against unlawful interference in his private or family life and against encroachment on his honour, dignity and reputation.”

“1. The freedom and secrecy of correspondence and other communications shall be inviolable.

This rule may be subject to exceptions only with the permission of the judicial authorities when necessary for uncovering or preventing serious offences.”

Section 18(2) of the 1991 Bar Act (Закон за адвокатурата), presently superseded by section 33(2) of the 2004 Bar Act, provided that the correspondence between lawyers and their clients was inviolable, could not be subject to interception and could not be used as evidence in court.

Between 1993 and 2000 the legal regime of pretrial detainees, including their correspondence, was the subject of two successive regulations issued by the Minister of Justice: Regulation no. 12 of 15 April 1993, superseded by Regulation no. 2 of 19 April 1999.

Under section 18(5) of Regulation no. 12, detainees had the right to send and receive an unlimited number of letters. Section 19(2) of the Regulation provided that letters (except those to and from the detainees’ counsel), which contained advice about the criminal proceedings against them, were not allowed to be passed on, but instead had to be made available to the competent prosecutor or court.

Section 25(1) of Regulation no. 2 provided that “the correspondence of the accused and of the indicted [was] subject to inspection by the [detention facilities] administration”.

In a decision of 22 December 2000 (реш. № 7982 от 22 декември 2000 г. по адм.д. № 3351/2000 г., ВАС, петчленен състав, обн., ДВ, бр. 4 от 12 януари 2001 г.) the Supreme Administrative Court annulled this provision, holding that it was contrary to Articles 30 § 5, 32 and 34 of the 1991 Constitution (see paragraph 40 above), Article 8 of the Convention and section 18(2) of the 1991 Bar Act (see paragraph 41 above), as it provided for systematic monitoring of the entirety of the detainees’ correspondence.

In June 2002 the 1969 Execution of Punishments Act (Закон за изпълнение на наказанията), which is the statute regulating, along with other matters, the manner of serving custodial sentences, was amended and now incorporates, in the newly added sections 128132h, special rules relating to pretrial detainees. As a result, Regulation no. 2 ceased to apply; it was however expressly repealed only on 1 September 2006, when the Minister of Justice amended the Regulations relating to the application of the Act (see paragraph 49 below).

The new section 132d(3) of the 1969 Act provided that “[t]he correspondence of the accused and of the indicted [was] subject to inspection by the [prison] administration”.

In a decision of 18 April 2006 (реш. № 4 от 18 април 2006 г. по к.д. № 11 от 2005 г., обн., ДВ, бр. 36 от 2 май 2006 г.) the Constitutional Court, acting pursuant to a request by the Chief Prosecutor, declared this provision unconstitutional. After analysing in detail the relevant constitutional and Convention provisions and making reference to, among others, the cases of Campbell v. the United Kingdom (judgment of 25 March 1992, Series A no. 233), Calogero Diana v. Italy (judgment of 15 November 1996, Reports of Judgments and Decisions 1996V) and Petra v. Romania (judgment of 23 September 1998, Reports 1998VII), it held that a blanket authorisation to inspect the correspondence of all detainees without regard to their particular circumstances and the threat which they allegedly posed to society through such correspondence was contrary to Articles 30 § 5 and 34 of the 1991 Constitution (see paragraph 40 above).

Following the Constitutional Court’s decision, on 1 September 2006 the Regulations for application of the 1969 Execution of Punishments Act were amended. Under the new section 178(1), pretrial detainees are entitled to unlimited correspondence which is not subject to monitoring. Envelopes have to be sealed and opened in the presence of members of staff, in a manner allowing those members to make sure that they do not contain money or other prohibited items (section 178(2) of the Regulations).


CASE "RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM" v. BELGIUM

Preliminary objection rejected (incompatibility)

The object of the Commission’s request is to submit the case to the Court, so that the Court may decide whether or not certain provisions of the Belgian linguistic legislation relating to education are in conformity with the requirements of Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the First Protocol (P1-2).

The Commission’s provisional submissions on the merits of the case are set out in paragraph 33 of its first memorial.

The Applicants, who are parents of families of Belgian nationality, applied to the Commission both on their own behalf and on behalf of their children under age, of whom there are more than 800. Pointing out that they are French-speaking or that they express themselves most frequently in French, they want their children to be educated in that language.

Alsemberg, Beersel, Antwerp, Ghent, Louvain and Vilvorde, where the signatories of five of the six Applications (Nos. 1474/62, 1691/62, 1769/63, 1994/63, and 2126/64) live, belong to the region considered by law as Dutch-speaking, whereas Kraainem (Application No. 1677/62) has since 1963 formed part of a separate administrative district with a "special status". In all of these districts ("communes") part of the population - in some cases a large part - is French-speaking.

Though the six Applications differ on a number of points, they are similar in many respects. For the purposes of this judgment it is sufficient to note that in substance they complain that the Belgian State:

- does not provide any French-language education in the municipalities where the Applicants live or, in the case of Kraainem, that the provision made for such education is, in their opinion, inadequate;

- withholds grants from any institutions in the said municipalities which may fail to comply with the linguistic provisions of the legislation for schools;

- refuses to homologate leaving certificates issued by such institutions;

- does not allow the Applicants’ children to attend the French classes which exist in certain places;

- thereby obliges the Applicants either to enrol their children in local schools, a solution which they consider contrary to their aspirations, or to send them to school in the "Greater Brussels district", where the language of instruction is Dutch or French according to the child’s mother-tongue or usual language or in the "French-speaking region" (Walloon area). Such "scholastic emigration" is said to entail serious risks and hardships.

In the main the Applicants complain that they and their children have suffered violation of certain Articles of the Convention and the Protocol as a result of being subjected to various provisions of the Act of 14th July 1932 "on language regulations in primary and intermediate education", the Act of 15th July 1932 "on the conferring of academic degrees", the Acts of 27th July 1955 and 29th May 1959, the Act of 30th July 1963 "on language regulations in education" and the Act of 2nd August 1963 "on the use of languages in administrative matters". The Acts of 14th and 15th July 1932 were repealed by the Act of 30th July 1963, but were still in force when the Alsemberg, Beersel, Kraainem, Antwerp and Ghent Applicants brought their cases before the Commission, and those Applicants still challenge these acts while at the same time attacking the present legislation.

Before the Commission, the Applicants complained of violations of Articles 8, 9, 10 and 14 (art. 8, art. 9, art. 10, art. 14) of the Convention and Article 2 of the Protocol (P1-2).

The Belgian Government, for its part, pleaded that the legislation in dispute fully respects or respected those Articles, and it therefore asked the Commission to declare the Applications inadmissible as being manifestly ill-founded (Article 27 (2) of the Convention) (art. 27-2).

The Commission did in fact, for that reason, reject the complaints which the Applicants (with the exception of those of Vilvorde) based on Articles 9 and 10 (art. 9, art. 10); on the other hand, it considered the six Applications admissible in so far as they alleged violations of Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the Protocol (P1-2). The decisions on this point were given on various dates between 26th July 1963 and 29th June 1964.

The Commission having decided to join the six Applications, a single Sub-Commission ascertained the facts by examining the Applications together with the parties and tried to arrange a friendly settlement between the parties (Articles 28 and 29) (art. 28, art. 29).

This attempt failed, and the plenary Commission therefore drew up a report as required under Article 31 (art. 31). The report was adopted on 24th June 1965 and transmitted to the Committee of Ministers of the Council of Europe on 25th June. That same day the Commission brought the case before the Court under Article 48 (a) (art. 48-a) of the Convention.

Summarising the opinion expressed in its report, the Commission recalled in paragraph 7 of its first memorial that it took the view:

"- by 9 votes to 3, that the legislation complained of was not incompatible with the first sentence of Article 2 of the Protocol (P1-2), considered in isolation;

- unanimously, that the legislation was not incompatible with the second sentence of the said article (P1-2), considered in isolation or in conjunction with Article 14 (art. 14+P1-2) of the Convention;

- by 10 votes to 2, that the legislation was not incompatible, in the case of the Applicants, with Article 8 (art. 8) of the Convention, considered in isolation or in conjunction with Article 14 (art. 14+8);

- by 9 votes to 3, that the general system of education in the areas which are unilingual by law was not incompatible with the first sentence of Article 2 of the Protocol, considered in conjunction with Article 14 (art. 14+P1-2) of the Convention;

- by 11 votes to 1, that the same was true of the "special status" conferred by Section 7 of the Act of 2nd August 1963 on six bilingual communes, of which Kraainem, on the periphery of Brussels, is one;

- by 7 votes to 5, that the Acts of 1963 were incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they result in the total withdrawal of subsidies from provincial, commune and private schools providing, in the form of non-subsidised classes and in addition to instruction given in the language prescribed by the language legislation, complete or partial education in another language;

- unanimously, that the conditions on which children whose parents live outside the Greater Brussels district may be enrolled in schools in that district (Section 17 of the Act of 30th July 1963) were not, in the case of the Applicants, incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention;

- that the Acts of 1963 were incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they prevent certain children, solely on the basis of their parents’ place of residence, from attending French-language schools at Louvain (8 votes to 4) and in the above-mentioned six communes on the periphery of Brussels (7 votes to 5);

- by 8 votes to 4, that the legislation complained of was also incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as it has resulted, since 1932, in a refusal to homologate certificates relating to secondary schooling not in accordance with the language requirements."

Altogether, of the 12 members of the Commission concerned in the adoption of the report, three found no breach by the Belgian State of its obligations, while the majority considered that there had been a breach on three counts, but none on the others. The size and composition of the majorities on the various questions varied appreciably; moreover, the majorities on some questions embodied more than one point of view. Therefore the Commission’s report also sets out a number of individual opinions - some concurring, some dissenting.

In its first memorial the Commission pointed out that its decision to refer the matter to the Court had been unanimous. Among its reasons for taking this step it particularly stressed the legal importance and complexity of the case and its human and social aspects.

During the written proceedings the following submissions were made with regard to the preliminary objection raised by the Belgian Government:

- by the Government in its first memorial:

"1. The European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol secure the enjoyment of the rights and freedoms expressly mentioned in Articles 2-13 (art. 2, art. 3, art. 4, art. 5, art. 6, art. 7, art. 8, art. 9, art. 10, art. 11, art. 12, art. 13) of the Convention and Articles 1-3 of the Protocol (P1-1, P1-2, P1-3).

The idea of "national minority" within the meaning of Article 14 (art. 14) of the Convention may benefit the members of a specified social group where there is a violation of a right of freedom guaranteed in the Convention or the Protocol.

However, in these cases, the Convention affords no such protection, since

(a) the right to education in one’s own language is not included among the rights and freedoms enshrined in the Convention and the Protocol; a fortiori there is no guarantee of the right to subsidies for education in one’s own language or to admission to all occupations on the strength of such education;

(b) as a subsidiary argument, the "Applicants" do not belong to a "national minority" within the meaning of Article 14 (art. 14) of the Convention;

(c) it follows that the Court is ratione materiae not competent to examine the merits of the dispute submitted to it.

May it please the Court

(a) to admit the Belgian Government’s preliminary objection and dismiss the legal action brought against the Government;

(b) alternatively, to join the preliminary objection to the merits."

- by the Commission in its second memorial

"The Commission invites the Court to reject the objection raised by the Belgian Government";

- by the Government in its second memorial

"The Belgian Government confirms the submissions stated by it at the end of its first memorial and reserves the right to supplement and amend them in subsequent proceedings".

At the hearing on 21st November 1966, the following submissions were made:

- by the Commission:

"The Commission ... requests the Court to reject the preliminary objection".

- by the Belgian Government:

"The Government’s preliminary objection should be accepted and the Applicants’ complaints rejected. Purely subsidiary, the Government requests that its preliminary objection be joined to the merits. It reserves the right to supplement and amend its submissions in the course of these proceedings".

At the hearing on 22nd November 1966 the Commission made the following submissions:

‘The Commission upholds its request that the Court now reject the preliminary objection raised by the Belgian Government.

"With regard to the Government’s alternative submission that the objection be joined to the merits we do not wish to express an opinion. We leave this point to the wisdom of the Court".

At the hearing on 23rd November 1966, the Belgian Government asked the Court by way of final submissions:

- to accept the preliminary objection

and

- alternatively, to join it to the merits.

The Commission for its part stated, before the hearing closed, that it upheld its submission "in full".