The applicant, born in 1959, was an Egyptian national at the time of the events complained of. He has since obtained Netherlands nationality and, as far as the Court is aware, is at present living in the Netherlands.

The applicant first arrived in the Netherlands in 1985. That year he met Ms R., a Netherlands national. On 16 January 1987 a daughter, S., was born to the couple, who were not married and were not living together. By a decision of 12 February 1987, the Deventer District Court judge (kantonrechter) appointed the applicant as the auxiliary guardian (toeziend voogd) of S., Ms R. as her mother ipso jure being her guardian (voogdes).

At some time in or around August 1987, the applicant moved in with Ms R. and their daughter in the house of Ms R.’s mother. They lived together for about a year.

The applicant went to the Middle East in July 1988 and stayed there for some two and a half years. During this time, contact between the applicant on the one hand and Ms R. and S. on the other was limited to the exchange of some letters.

The applicant returned to the Netherlands in early 1991. The applicant states that he saw S. every two weeks until 1993. Despite the applicant’s repeated requests, Ms R. refused to give him permission to recognise (erkennen) S.

Ms R. contracted a terminal illness. On 9 June 1993 she made a will in which she expressed the wish that, after her death, her brother Mr H.R. should have guardianship of her daughter, S. In January 1994 the applicant instigated summary injunction proceedings (kort geding) before the President of the Zwolle Regional Court (arrondissementsrechtbank), seeking an order for Ms R. to give him permission to recognise S. On 25 January 1994 the President gave a judgment refusing to grant the injunction sought. The President considered that Ms R. had not abused her power to withhold permission to the applicant’s recognition of S., since the change of surname which such recognition would entail for S. could not be deemed to be in her best interests. However, the President added by way of obiter dictum that it was important for both the applicant and his daughter that contacts between them be continued. The President therefore thought it desirable that S. spend every other weekend with her father.

In a further, supplementary will dated 7 February 1994 Ms R. stated that she had agreed with another of her brothers, Mr J.R., that after her death S. would be placed with his family. Ms R. further stated that it was her express wish that the applicant should not visit her daughter as this would seriously disrupt the life of the family in which S. was to be raised. Ms R. also expressed the opinion that it would be contrary to the best interests of her daughter if the applicant were to obtain access to S. According to Ms R., the applicant had no fixed abode, no residence permit, no employment and no financial means; he would only use the care for his daughter as a pretext for obtaining a residence permit in the Netherlands and thus be entitled to social-security benefits. Prior to her illness, the applicant had not shown much interest in S., nor had he contributed financially to S.’s upbringing.

Ms R. died on 15 February 1994. In conformity with her wishes, her brother, Mr H.R., was granted guardianship of S. and she was placed in Mr J.R.’s family. The applicant saw S. once every three weeks under an arrangement with the R. family.

Following Ms R.’s death, the applicant requested the Deventer Registrar of Births, Deaths and Marriages (ambtenaar van de burgerlijke stand – “the Deventer Registrar”) to draw up a deed of recognition and to enter this into the register of births. By a letter of 18 February 1994, the Deventer Registrar notified the applicant of his refusal to do so, being of the opinion that Egyptian law, which did not provide for the recognition of children, applied.

On 28 February 1994 the applicant lodged a request pursuant to Article 1:29 of the Civil Code (Burgerlijk Wetboek) with the Zwolle Regional Court asking that the Deventer Registrar be ordered to draw up the deed of recognition and enter it in the appropriate registers. Although the Regional Court agreed with the applicant that Netherlands law applied, it nevertheless refused to grant the request on 19 October 1994. It considered that, when alive, Ms R. had always withheld her permission for the applicant’s recognition of S.; it had not been established that there was family life within the meaning of Article 8 of the Convention; following Ms R.’s death somebody other than the applicant had been granted the guardianship of S.; and S. was, moreover, not living with the applicant.

Meanwhile, in June 1994, the applicant requested the Maastricht Regional Court to grant him access to S. every other weekend, as had been recommended by the President of the Zwolle Regional Court. He submitted that Mr H.R. was frustrating his right to regular and undisturbed access to his daughter. At the hearing in those proceedings on 3 October 1994, Mr H.R. and Mr J.R. stated that there was not and never had been family life between the applicant and S.; that the applicant only wanted regular access to S. in order to obtain a residence permit; that S. was settling into her new family; that S. called Mr J.R. “Daddy”; that S. did not enjoy the applicant’s visits; and that she did not trust him. In reply, the applicant stated that S. was very important to him; that the late Ms R. had been heavily influenced by her overbearing mother; that unbeknownst to Ms R.’s mother the applicant had continued the relationship with Ms R. after they had stopped living together; and that it was Ms R.’s mother who had told S. not to call the applicant “Daddy”.

At the conclusion of the hearing the Regional Court, being of the opinion that there was “family life” between the applicant and S., decided provisionally that the contacts between the applicant and S. were to continue at the offices of the Child Welfare Board (Raad voor de Kinder-bescherming), and that it would take a decision based on a report to be drawn up by that organisation.

The applicant lodged an appeal with the Court of Appeal (gerechtshof) of Arnhem against the decision of the Zwolle Regional Court not to order the Deventer Registrar to draw up a deed of recognition. He argued that Ms R.’s refusal to consent to his recognition of S. no longer had any effect after her death. That being so, there was no call for the courts to go into the question whether or not there existed family life between the applicant and S. Should the Court of Appeal nevertheless be of the opinion that it ought to examine this question and that a balancing exercise as required by Article 8 of the Convention was called for, the applicant submitted that he was the natural father of S.; that not only had there been a meaningful relationship between Ms R. and himself, they had also lived together as a family for some time and they had contributed equally to the care and upbringing of S. The applicant also referred to his request lodged with the Maastricht Regional Court to have his rights of access to S. increased. While he conceded that during the mother’s lifetime an unwanted recognition might have constituted a disproportionate interference with her private and family life, after her death only the interests of the applicant and the child remained to be balanced against each other, and there were no weighty interests on the side of the child which militated against recognition.

The applicant lastly submitted that it had been his desire from the outset to obtain guardianship (voogdij) of S. after her mother’s death and that S. should live with him. In order for a request for a change of guardianship to stand any chance of success, the applicant ought first to have recognised his daughter. The applicant urged the Court of Appeal to deal with his request speedily as he was being threatened with expulsion, the Deputy Minister of Justice (Staatssecretaris van Justitie) not accepting that there was family life between the applicant and S. Recognition would serve to confirm officially the natural ties between father and daughter.

At the hearing before the Court of Appeal on 8 December 1994, the applicant submitted, inter alia, that he had always done everything possible to ensure S.’s happiness but that Ms R.’s family had never accepted him. However, the relationship between S. and him was very strong.

In a decision of 17 January 1995 the Court of Appeal dismissed the applicant’s appeal. It held that the explicit refusal of Ms R. to consent to the applicant’s recognition of S. had not ceased to have effect after her death, as she had stated in her will that she maintained the refusal which she had considered to be in the best interests of S.

The Court of Appeal further found that, even assuming that family life had at one time existed between the applicant and S., that tie had been broken by subsequent events. The contacts which had taken place between the applicant on the one hand and Ms R. and S. on the other had been so sparse and irregular, and so devoid of mutual commitment, that they could no longer be regarded as constituting family life. The Court of Appeal went on to hold, however, that even if it had to be assumed that family life still existed, the interests of the child should be its foremost consideration. These interests would be best served by allowing S. to grow up in the family where she had been placed after the death of her mother and in accordance with her mother’s explicit last wishes, and where she received the care she needed. The recognition intended by the applicant was aimed at bringing about a change in this situation and, for that reason, could not be held to be in the best interests of S. The Court of Appeal found that this was all the less so as the applicant had never had the care of S., had not previously indicated that he actually wished to care for her and, in addition, had not substantiated his claim that he would be able to discharge his duty of care in a responsible manner. Moreover, recognition would mean that S. would automatically take the applicant’s surname, whereas she now had the same surname as the other members of the family in which she was growing up.

The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad), arguing, inter alia, that the Court of Appeal had been wrong to hold that the refusal of Ms R. to consent to the applicant’s recognition of S. could still have effect after her death. Moreover, the relevant legal provisions did not require that, in order for the natural father to recognise a child following the death of the mother, there should be family life between them. In any event, contrary to what the Court of Appeal had found, there was family life between the applicant and S., so that the Court of Appeal’s finding on this point was incomprehensible.

According to the applicant, the Court of Appeal had also been wrong to hold that it would be in the best interests of S. to be raised in Mr J.R.’s family. The legislature had, on the contrary, deemed that recognition by the natural father would serve a child’s interests in a case such as the present where the mother had died. Moreover, recognition as such would not entail any changes in the child’s living arrangements. Such changes could only be brought about if the applicant were to file a request for a change in the guardianship arrangements, in which event the interests of the child could be assessed at that time. Finally, the applicant submitted that the Court of Appeal could not have properly assessed what was in the best interests of S. without having sought the opinion of the Child Welfare Board.

By a decision of 8 December 1995, the Supreme Court dismissed the appeal on points of law. It agreed with the applicant that Ms R.’s refusal to consent to his recognition of S. – to which she had been entitled, such a right having been provided by law in order to protect the interests of mothers in her position – was no longer valid after her death. The Court of Appeal had given additional reasons for its decision not to order the Deventer Registrar to draw up a deed of recognition, even assuming that family life did exist. This reasoning, in the view of the Supreme Court, was sufficient in itself to support the Court of Appeal’s decision. In this regard the Supreme Court pointed out that, as a result of a valid recognition, legally recognised family ties (familierechtelijke betrekkingen) would be created between the child and the person who had recognised the child. This far-reaching consequence meant that recognition could affect interests of the child which were protected by Article 8 of the Convention. Although recognition could serve these interests, it could similarly harm them. Article 8 had thus required the Court of Appeal to balance the applicant’s interest in having the relationship between himself and S. confirmed as a legally recognised family tie, assuming that this relationship constituted family life, against the interest of the child in continuing to live with the legal family in which she had lived ever since her mother had died, and to keep that family’s surname. The Supreme Court found that the Court of Appeal had adequately acquitted itself of this task.

Given that the applicant had never made a secret of the fact that he intended to obtain guardianship of S. and to have her live with him, the Court of Appeal had been correct to take into account S.’s interest in not having her residence with Mr J.R.’s family threatened by the outcome of further legal proceedings. Finally, the legal provisions in force had not required the Court of Appeal to seek advice from the Child Welfare Board, and it had been up to the Court of Appeal itself to determine whether or not it needed such advice.

During and following the proceedings before the Supreme Court, a change in S.’s living arrangements occurred; the Supreme Court was unable to take these new circumstances into account as, pursuant to Article 419 § 2 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), it was bound by the facts as established by the Court of Appeal and contained in the case file.

In September 1995 S. returned to live with her maternal grandmother. According to the Child Welfare Board, one of the reasons for this was the distress caused to the family of her uncle, Mr J.R., by the applicant’s seeking access to S. On 31 January 1996 the Child Welfare Board requested the juvenile judge (kinderrechter) of the Amsterdam Regional Court to issue a supervision order (ondertoezichtstelling) in respect of S. During a hearing on 21 February 1996, the juvenile judge stated that for the time being it would be best if S. stayed with her grandmother, but that there should be contact between the applicant and S. and that the applicant’s future role in the life of S. should be further examined. On 6 March 1996 the juvenile judge issued a supervision order and appointed a family guardian (gezinsvoogd).

On 6 November 1996 the Deventer Registrar refused to comply with a new request from the applicant to draw up a deed of recognition and enter it in the register of births. The applicant again turned to the Zwolle Regional Court, submitting that the circumstances leading to the rejection of his first request had changed as S. was no longer living with her uncle. He further stated that he was concerned about his daughter’s well-being in view of the advanced age of the grandmother and the latter’s overbearing character. Moreover, the applicant submitted that he was capable of looking after S. himself.

The Regional Court rejected the applicant’s request on 26 May 1997. It considered that the change in S.’s living arrangements had been brought about by the juvenile judge and could not be held to be to the detriment of S. Moreover, the persons responsible for the care and upbringing of S. were in receipt of assistance as a result of the supervision order. The change in the living arrangements could therefore not, as such, alter the result in the balancing exercise that had been carried out by the Arnhem Court of Appeal. Noting that the applicant was still attempting to obtain guardianship of S., the Regional Court finally considered that the recognition of S. by the applicant would not be in her best interests.

The applicant did not file an appeal against the Regional Court’s decision of 26 May 1997.

Following the entry into force of the Law of 6 April 1995, which abolished the institution of auxiliary guardianship, the applicant is no longer S.’s auxiliary guardian.

The applicant, who since the events complained of has taken Netherlands nationality, has married another woman by whom he has a son.

A child born out of wedlock had the status of the natural child of its mother. It became the natural child of its father after having been recognised by the latter – the “father”, for the purposes of this provision, being the man who recognised the child, whether or not he was the biological father (Article 1:221 of the Civil Code).

A child born out of wedlock automatically had legally recognised family ties with its mother and her relatives. Recognition by the father entailed the creation of a legally recognised family tie between him and the child, as well as between the child and the father’s relatives (Article 1:222 of the Civil Code). At the relevant time the surname of such a child was the surname of its father if the latter had recognised the child, and the mother’s surname if not (Article 1:5 § 2 of the Civil Code).

Recognition of a child could be effected on the birth certificate itself or by a separate deed of recognition drawn up for that purpose by the Registrar of Births, Deaths and Marriages or a notary (Article 1:223 of the Civil Code). A deed of recognition drawn up by the registrar was entered in the register of births (Article 1:21 § 3 of the Civil Code). At the request of an interested party, the regional court could order that a deed be entered in the appropriate registers (Article 1:29 § 1 of the Civil Code).

A recognition was invalid if it was done during the mother’s lifetime without her prior consent in writing (Article 1:224 § 1 (d) of the Civil Code). However, in view of the right of the father and the child to respect for their “family life”, as guaranteed by Article 8 of the Convention, the Supreme Court construed this provision in such a way that the effective right of veto which the provision gave the mother could be overridden if she abused it (see, inter alia, the Supreme Court’s decision of 8 April 1988, Nederlandse Jurisprudentie 1989, no. 170).

The man who had recognised the child could apply to the district court for guardianship of the child. If a person other than the mother had guardianship, such an application could only be refused if there was reason to fear that the child’s interests would be neglected. However, if the mother had guardianship, the application would only be allowed if the district court considered that the child’s interests would thus be best served (Article 1:288 of the Civil Code).

In proceedings concerning, inter alia, parental authority, guardianship and access, the competent court could obtain advice from the Child Welfare Board if it felt that it needed such advice in order to make a proper assessment of the best interests of the child (Article 902a Code of Civil Procedure).

On 1 April 1998 a new Article 1:204 of the Civil Code came into force. It is still provided that, for a man to recognise a child who is not yet 16 years old as his, the prior written permission of the mother is required (Article 1:204 § 1 (c)). If the mother’s permission is lacking, it may be replaced by the permission of the regional court (Article 1:204 § 3). However, the man who seeks such permission must be the child’s biological father; in addition, recognition must not be detrimental to the mother’s relationship with the child or to the child’s own interests (ibid.). The explanatory memorandum on the bill which eventually led to the enactment of this provision makes it clear that the permission of the regional court is required in all situations where the mother’s permission cannot be obtained, including in the event of her death (Kamerstukken (Parliamentary Documents) II, 1995/96 session, 24,649 no. 3, p. 10). In addition, the child’s written permission is required if he or she has reached the age of 12 (Article 1:204 § 1 (d)).

At the same time Article 1:207 was introduced into the Civil Code, pursuant to which a child may request the regional court to issue a judicial declaration of paternity (gerechtelijke vaststelling van vaderschap) in order to have a legal tie established between him or her and the biological father. No time-limit applies for lodging such a request.

The status of the Convention in Netherlands domestic law is regulated by the following provisions of the Netherlands Constitution:

“Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.”

“Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions.”

An example of a decision of the Supreme Court in which a provision of domestic law was considered to be incompatible with a provision of the Convention, and for that reason held to be overridden by the latter, is that of 8 April 1988, cited in paragraph 40 above.


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant, Mr Musa Güney, is a Swedish citizen who was born in 1960. He was represented before the Court by Mr R. Armholt, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were 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 Tax Authority made a tax audit of a restaurant business, owned by a holding company owned, in its turn, by the applicant and three other persons. Following the audit the Tax Authority, by decisions of 8 December 2004, raised the company’s turnover by 2.7 million Swedish kronor (SEK) and considered that SEK 1.9 million of that amount had been paid to the company owners during the tax assessment years 2002 and 2003. Consequently, by the same decisions, the applicant’s taxable income for both years was raised by SEK 236,581. Moreover, as the revised taxation involved a discretionary assessment due to allegedly undisclosed salary payments in the applicant’s tax returns, tax surcharges (skattetillägg) were imposed on him, amounting to SEK 30,078 and 25,886, respectively, for the two assessment years (in total approximately 6,000 euros (EUR)).

The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm through his legal counsel. On 14 March 2005 the Tax Authority reconsidered its decisions but did not change them.

On 31 August 2005 the applicant applied to the County Administrative Court for legal aid. Referring to Article 6 § 3 (c) of the Convention, he maintained that he had no financial means to pay for legal representation as he had not been granted a respite to pay the tax amounts, that the legal issues were not uncomplicated as statistical information concerning the Swedish restaurant business had been used in determining the revised taxes and that the tax surcharges imposed on him were considerable. He further stated that, being of foreign origin, he did not fully master the Swedish language.

On 8 September 2005 the court refused the applicant legal aid. It noted that, under the terms of the Legal Aid Act (Rättshjälpslagen, 1996:1619), the scope for granting legal aid to a businessman in a taxation case was very limited. According to a leading decision by the Supreme Administrative Court (Regeringsrätten), the application of Article 6 § 3 (c) in a case concerning tax surcharges would depend on the size of the surcharges and the nature of the case; only if the penalties were particularly heavy and the legal issues complicated could legal aid be granted by virtue of the Convention (RÅ 2003 ref. 56). The instant case concerned mainly the question whether the documentation obtained by the Tax Authority constituted a sufficient ground for increasing the first applicant’s liability to income tax. The court found that, although the documentation was relatively extensive, the legal issues, including those related to the subordinate questions concerning the tax surcharges, were not of such a character that the applicant had a right to legal aid under Swedish law or the Convention.

On 18 October 2005 the Administrative Court of Appeal (kammarrätten) in Stockholm rejected the applicant’s appeal, subscribing to the reasons given by the County Administrative Court. On 5 April 2006 the Supreme Administrative Court refused leave to appeal.

By a judgment of 3 January 2007, the County Administrative Court reduced the company’s unrecorded revenues and salary payments. Accordingly, in a further judgment of 16 March 2007 the court lowered the applicant’s taxable income to SEK 125,008 for each of the assessment years. In consequence of this finding, the tax surcharges were also reduced, to SEK 14,495 and 12,614, respectively, for the two assessment years (in total approximately EUR 3,000). The court also decided that the applicant be compensated for litigation costs under the Act on Compensation for Costs and Expenses in Cases Concerning Taxes, etc. (Lagen om ersättning för kostnader i ärenden och mål om skatt, m.m., 1989:479). The applicant was awarded SEK 825 concerning the court proceedings and SEK 1,000 concerning the proceedings before the Tax Authority (in total about EUR 200). He had claimed SEK 825 and 3,500, respectively.

The applicant appealed against the taxation and the tax surcharges to the Administrative Court of Appeal, where the case was still pending at the time of the present decision.


No violation of Art. 6-1 with regard to fairness;Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicants are a married Finnish couple, born in 1957 and 1955 respectively and resident in Helsinki. In 1987 they bought a real property from the owner of a neighbouring property, L., who had undertaken to tear down a lean-to which the latter had constructed partly on the land purchased by the applicants before splitting it up into a separate property. The applicants and L. allegedly reached a further agreement to the effect that the latter consented to the applicants’ construction of a car shelter which would be connected to a new sauna building which L. agreed to construct on his own property so as to replace the sauna in his lean-to.

On 26 January 1988 the Helsinki Building Inspection (rakennus-valvontavirasto, byggnadsinspektionen) granted permission to demolish the lean-to. Following that demolition, the Helsinki Building Board (rakennuslautakunta, byggnadsnämnden), on 23 February 1988, granted the applicants permission to construct a dwelling-house and a car shelter on their property. L. did not appeal but refused to demolish the whole of his lean-to and to construct the new sauna building to be connected to the applicants’ dwelling.

In August 1988 L. was prohibited from using his existing sauna as its chimney top was found to be partly under the roof level of the applicants’ car shelter. The applicants’ offer to have the chimney top extended was refused by L.

On 2 October 1990 representatives of the Building Board inspected the applicants’ car shelter and found that it complied with the building permit. L. lodged an objection with the Building Board against this finding.

In November 1990 L. brought a civil action against the applicants, demanding, inter alia, that they be ordered to tear down the car shelter which they had allegedly built in violation of the fire regulations. The Helsinki City Court (raastuvanoikeus, rådstuvurätten) held its first hearing in January 1991 but adjourned the case at L.’s request in anticipation of the Building Board’s forthcoming decision.

On 29 January 1991 the Building Board dismissed L.’s objection against the outcome of the inspection on 2 October 1990 and confirmed that the applicants had constructed their buildings in accordance with the permit delivered in 1988. The Board found that L. had contributed to the fact that he had been prohibited from using his sauna, having refused to carry out his own construction works as agreed with the applicants. Had he fulfilled his part of their joint agreement in accordance with the building permission granted to that effect, the roof of his and the applicants’ respective buildings would have been at the same height. The Board considered that the dispute between the parties was to be resolved by the civil courts.

L. appealed to the County Administrative Court (lääninoikeus, länsrätten) of Uusimaa, arguing that while he had consented to the applicants’ constructing up to the boundary line, he had not agreed to any construction on their part preventing him from using his existing sauna and requiring him to take construction measures of his own. Although he had informed the applicants that his consent did not cover those aspects, they had not informed the Building Board accordingly. As a result the building permit and the approval of the applicants’ construction works had been based on false premises.

In February 1991 the applicants filed a counter claim against L., demanding that he be ordered to carry out his part of their alleged agreement. The two suits were joined at the applicants’ request. The City Court’s second hearing was held on 7 March 1991 but the case was again adjourned at L.’s request.

On 17 September 1991 the County Administrative Court upheld the Building Board’s decision of 29 January 1991. L. appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) and also requested the annulment of the Building Board’s decision of 1988, whereby it had granted the applicants a building permit.

The City Court’s third hearing was held on 19 September 1991. The case was again adjourned at L.’s request, as he had not yet received the County Administrative Court’s decision of 17 September 1991.

On 10 October 1991 the Land Court (maaoikeus, jorddomstolen) of Southern Finland dismissed L.’s appeal against a refusal to move a marker indicating his and the applicants’ joint boundary line.

The civil case was again heard on 16 January 1992 but was now adjourned at the request of both parties in anticipation of the Supreme Administrative Court’s decision in respect of L.’s annulment request.

The City Court’s fifth hearing was held on 24 September 1992 but the case was again adjourned at L.’s request. Following a sixth hearing on 28 January 1993 the City Court adjourned the case for the summoning of witnesses.

On 19 February 1993 the Supreme Administrative Court dismissed L.’s request for annulment of the Building Board’s decision of 23 February 1988. The court held that an error had indeed been committed during the Building Board’s examination of the applicants’ request for a building permit. The court noted however the nature of L.’s written undertakings towards the applicants which had led to the error, the manner in which their car shelter had been built as well as the fact that it would be easy to arrange for the smoke from L.’s sauna to be evacuated in a manner acceptable from the point of view of fire safety. The court therefore considered that the Building Board’s decision of 23 February 1988 did not violate L.’s rights, nor was it necessary in the general interest to annul that decision. The court furthermore dismissed L.’s appeal against the County Administrative Court’s decision of 17 September 1991.

In April 1993 L. extended his civil action against the applicants by bringing further claims partly based on different legislation. At the City Court’s seventh hearing on 11 May 1993 it took evidence from the applicants’ witnesses K. and P. The case was again adjourned at L.’s request.

At the eighth hearing on 31 August 1993 witnesses A. and V. were heard at L.’s request and witness H. was heard at the request of the applicants. A. furthermore handed in reports of his inspections in situ dated 2 August 1989 and 8 August 1990. According to the applicants, the City Court had by then already refused their request that the court conduct its own inspection. The case was adjourned at both parties’ request so as to enable them to lodge further submissions in writing.

At the City Court’s ninth hearing on 23 November 1993 one further witness was heard at the applicants’ request and another witness at L.’s request. The parties requested permission to make their final pleadings in writing and the case was adjourned for judgment at a later date.

Each of the nine hearings was presided over by a different judge.

Due to a national reorganisation of the courts of first instance the case was transferred to the Helsinki District Court (käräjäoikeus, tingsrätten; formerly the City Court). In its judgment of 3 March 1994 it found that the Supreme Administrative Court’s decision of 1993 had not given rise to res judicata. The District Court, moreover, accepted L.’s extended action for consideration. It considered that whereas P. was the only witness who could have testified regarding the true character of the alleged agreement between the applicants and L., P.’s testimony had not been so detailed and certain that it could be regarded as decisive evidence that L. had agreed to tear down the whole of his lean-to. The court therefore found it established that the applicants had understood all along that L. had not intended to tear down the whole of his lean-to. By constructing the car shelter in the manner established they had effectively prevented L. from using his sauna. The applicants were therefore ordered to demolish their shelter and to restore L.’s lean-to into its original state. It followed that the applicants’ counter suit had to be dismissed.

The applicants were ordered to pay L. FIM 2,850 (about EUR 480) in compensation for the damage which the construction of their shelter had caused to his lean-to. They were ordered to pay a further FIM 3,000 (some EUR 500) a year (as from 1990) in compensation for the impossibility for L. to use his sauna. They also had to reimburse L.’s costs in the amount of FIM 32,668,50 (about EUR 5,500).

As regards the extent of the damages suffered by L., the District Court based itself exclusively on A.’s testimony. After the District Court’s judgment the applicants filed a criminal complaint against him, suspecting that he had committed perjury.

The applicants appealed against the District Court’s judgment and later supplemented their appeal with a copy of the record of the pre-trial investigation into the suspected perjury which in their view showed that A.’s testimony had not been truthful.

On 9 February 1995 the Helsinki Court of Appeal (hovioikeus, hovrätten) dismissed the applicants’ appeal and upheld the District Court’s judgment, including its reasons. The Court of Appeal refused to take into account the pre-trial investigation record concerning A., as it had been submitted out of time and no special reasons militated in favour of accepting it as evidence. The applicants were ordered to pay L.’s costs in the amount of FIM 2,500 (about EUR 420).

On 7 September 1995 the Supreme Court (korkein oikeus, högsta domstolen) refused the applicants leave to appeal.

In order to tear down their car shelter and restore L.’s lean-to the applicants were to obtain permission from the Building Inspection. In an opinion to the Supreme Court dated 22 February 1995 the Building Inspection nevertheless considered that the District Court’s demolition order was “not an equitable solution”, since the only change needed from the point of view of fire safety would be to extend L.’s chimney top to a point 80 centimetres above the applicants’ car shelter. The Building Inspection would therefore not permit the car shelter to be torn down and such demolition would be contrary to the general interest by spoiling the appearance of the neighbourhood and violate both local planning regulations and general regulations on fire safety.

On 20 August 1997 the Helsinki District Court convicted A. of perjury and sentenced him to nine months’ conditional imprisonment. It found it established that he had deliberately omitted various relevant information from his testimony in L.’s civil case against the applicants. In the light of this judgment the applicants requested the Supreme Court to reopen the proceedings.

L. died in November 1997, having sold his property.

On 8 March 2000 the Supreme Court granted the applicants’ request for a reopening of the proceedings in so far as they had been ordered to compensate L. for the damage which the construction of their car shelter had caused to his lean-to as well as to pay him the costs incurred in the proceedings before the lower courts. The Supreme Court referred to A.’s conviction of perjury.

Referring to its decision of 16 May 1997, the Supreme Court declined to examine anew the applicant’s request for a re-opening of the case in respect of the order requiring them to demolish the car shelter, to restore L.’s lean-to into its state prior to the construction of the shelter as well as to pay L. annual compensation for the fact that he had been prevented from using his sauna.

As of November 2002 the current owners of L.’s house had not requested, and the authorities had not enforced, the aforementioned three orders.

In re-opening part of the case the Supreme Court instructed the applicants to file, within three months, a new action against L. before the District Court. They initiated such proceedings against L.’s successors on 30 May 2000 and supplemented their statement of claim on 28 May 2001 in light of the defendants’ written observations. The court’s preparatory hearing was held on 5 June 2002.

On 13 August 2002 the parties reached a settlement whereby L.’s successors undertook to reimburse the applicants the amount of FIM 2,850 (i.e. the compensation which the applicants had paid to L.) as well as a further sum of EUR 5,045.64. L.’s insurance company undertook to reimburse EUR 3,363.76 of the costs paid by the applicants. The sums were to be divided between the applicants and their insurance company as later agreed. The applicants and L.’s successors declared that they had no further claims against one another whether in relation to the proceedings initiated in May 2000 or to any previous court proceedings or related events.

The settlement was approved by the District Court on 23 August 2002.

According to the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the relevant time (Chapter 2, section 3), the chairman and three lay judges constituted the quorum in a district court. Each of the lay judges had a personal vote.

If a party considered that civil or criminal proceedings had been delayed unjustifiably, a procedural complaint (kantelu, klagan) could be lodged with the court of appeal within 30 days from the adjournment (Chapter 16, section 4, subsection 2 of the Code of Judicial Procedure). If it was important for the resolution of the case that an issue under examination in other proceedings be resolved first, or if there was another long-term impediment to the case being examined, the court could adjourn the case until such time that the impediment has ceased to exist (section 5). These provisions were repealed with effect from 1 October 1997.


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

The applicant, Mr Clarence Hornby, is a British national who was born in 1945 and lives in Wigan. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

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

The applicant’s wife died on 8 March 2001, leaving no dependent children. His claim for widows’ benefits was made on 17 June 2001 and was rejected on 31 June 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. This decision was confirmed by an appeal tribunal on 8 October 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.

The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


The applicants, Mr Ağa Hakan, Mr Abdulkerim Hakan, Mr Abdullah Hakan and Mr Abdulhekim Hakan, are Turkish nationals. They are represented before the Court by Mr Bekir Kaya, a lawyer practising in İstanbul.

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

Until 1997 the applicants lived in Yanıkçay, a village of the Gevaş district in Van. It is to be noted that the applicants did not submit any certificate attesting their ownership of property in Yanıkçay.

On 10 October 1997 the applicants left their village due to pressure from the security forces.

On 13 December 1997 the security forces set fire to the houses and livestock of the applicants. Two inhabitants of Yanıkçay, Mr Muzaffer Şeker and Mr Mustafa Ülger witnessed the incident.

On an unknown date, approximately twenty villagers from Yanıkçay were required to go to the District Gendarmerie Command in Gevaş. They were then compelled to sign statements that the houses had been burned by members of the PKK (Kurdish Workers’ Party).

On 16 December 1997 Mr Ağa Hakan, Mr Abdulkerim Hakan and Mr Abdullah Hakan filed a petition with the Public Prosecutor’s office in Gevaş, complaining about the destruction of their property and requestiong redress for the damages they had suffered.

On 17 March 1998 the Gevaş Public Prosecutor issued a permenant search warrant to find the perpetrators of the burning down of the applicants’ property.

On 15 October 2001 the District Gendarmerie Command in Gevaş informed the Public Prosecutor’s office in Gevaş that the perpetrators of the offence had been neither identified nor captured.

On 25 October 2001 Mr Ağa Hakan, Mr Abdulkerim Hakan and Mr Abdullah Hakan filed further petitions with the Public Prosecutor’s office in Gevaş and the Governor’s office in Van reiterating their demand for redress for the damage they had suffered.

On 26 October 2001 the Public Prosecutor’s office in Gevaş sent the permanent search warrant and the Gevaş District Gendarmerie Command’s letter of 15 October 2001 to the applicants.

The investigation carried out by the authorities indicated that the applicants had left their village of their own will. Statements taken from the applicants’ fellow villagers established that the security forces had not forced the applicants to leave their village. The applicants had left their village, taking their all belongings with them, two months before the burning of their houses. In their petitions filed with the Gevaş Public Prosecutor’s office and in their statements to the Public Prosecutor, the applicants never claimed that they had been forcibly evicted by the security forces.

Two eye-witnesses to the burning of the applicants’ houses stated that they had not seen anybody suspicious who could have perpetrated the burning down of the applicants’ abandoned houses. However, a former PKK militant A.U. stated that the houses had been burned by the PKK for revenge from the inhabitants of the Yanıkçay village.

Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages.

On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages.

In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation.

The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained.

A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI).


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in 1980 and lives in Chişinău, Moldova. He was a student at the time of the events and earned a stipend of 50 Moldovan Lei (MDL).

On 18 April 2000, between 9.30 a.m. and 12.30 p.m., the applicant attended a demonstration against the decision of the Municipal Council to abolish urban transport privileges for students. The demonstration was not authorised in accordance with the law and it appears from the statements of the parties that its organisers did not even apply for authorisation. The demonstration took place on the Great National Assembly Square in Chişinău. In the beginning it was peaceful, but later some of the demonstrators started to throw eggs and stones at the Municipality building and the police intervened.

Around 12.30 p.m. the applicant was arrested by the police on grounds of being an active participant in an unauthorised demonstration in breach of Article 174/1 § 4 of the Code of Administrative Offences (hereinafter referred to as the “CAO”). He was brought to the precinct police station an hour later. Between 1.30 p.m. and 7.00 p.m., he was detained in the police station and interrogated by several criminal investigators.

In his written statement given at the police station, the applicant mentioned, inter alia, that he had been arrested by the police when he and a journalist from the National Radio approached a group of policemen beating up a student. Since he had written on his forehead the word “STUDENT”, the police arrested him. He stated that he was an active participant but that he was not involved in violence.

On an unspecified date, the district police completed the administrative case file in connection with the offence committed by the applicant, mentioning inter alia that he had actively participated in an unauthorised meeting that had taken place in front of the building of the Municipal Council. The case was then referred to the competent district court.

Following an oral hearing on 19 April 2000, the Centru District Court imposed on the applicant an administrative fine of MDL 36 (the equivalent of 3.17 euros (EUR) at the time) provided for in Article 174/1 § 4 of the CAO. In its order, the court stated, inter alia, that the applicant had actively participated in a demonstration of students, which had been carried out without authorisation from the Municipal Council, and that he had admitted having participated in the demonstration.

On 28 April 2000 the applicant lodged an appeal against the above order. He argued that the fine had been unlawfully imposed on him and that the sanction was contrary to the freedom of assembly and to the right to strike guaranteed by Articles 40 and 45 of the Constitution.

On 4 May 2000 at 10 a.m. the Chişinău Regional Court heard the applicant’s appeal in his absence and dismissed it.

According to the Government the summons for the hearing was sent on 2 May 2000 by regular post and should have arrived at its destination on 3 May 2000.

According to the applicant, it was sent on 3 May 2000 and was received by him on 4 May 2000 after 10 a.m.

The postmark on the envelope, applied by the outgoing post office (namely, by the first post office through which the envelope was routed) indicates the date of 3 May 2000. The postmark applied by the incoming post office is not entirely legible.

On 5 May 2000, the applicant appeared before the Registry of the Chişinău Regional Court to inquire about his case. He was issued with a copy of the judgment of the Chişinău Regional Court of 4 May 2000 dismissing his appeal and upholding the order of the District Court of 19 April 2000.

On 10 May 2000 the applicant filed a request for annulment (contestaţie în anulare) with the Chişinău Regional Court against its decision of 4 May 2000, arguing that he had not been properly summonsed and consequently did not have a fair trial. The court refused to register the request on the ground that the CAO did not provide for such a remedy. On 18 May and 22 June 2000 respectively, the court rejected the repeated requests lodged by the applicant and his lawyer.

On 18 May 2000, the applicant accompanied by a lawyer of the Helsinki Committee of Human Rights and by an advocate made another attempt to file a request for annulment with the Registry of the Chişinău Regional Court but the Registry refused to register it.

On 12 June 2000, following the bailiff’s request, the applicant paid the fine provided for in the decision of 19 April 2000.

The relevant provisions of the Code of Administrative Offences in force at the material time read:

The Code of Administrative Offences aims at the protection of the personality, the rights and the legal interests of the physical and moral person, property, the State and public order, as well as at finding, preventing and eliminating the consequences of administrative offences and at educating citizens in the spirit of respect for the law.

... The sanction for the attempt to commit an administrative offence is established in accordance with the article which provides for the responsibility for that offence.

Only persons who were 16 years old at the moment of the commission of an administrative offence can be held responsible.

The person who has committed an administrative offence while acting in legitimate defence shall not be responsible...

The administrative sanction is a measure of responsibility and is applied in order to educate the person who committed an administrative offence, as well as to deter any future similar acts by the perpetrator himself or by others.

In case of evasion of payment of a fine imposed for an administrative offence in bad faith, the court may replace the fine with imprisonment of ten days for every MDL 18, the maximum term being thirty days.

(În caz de sustragere cu rea-voinţă de la achitarea amenzii aplicate pentru contravenţia administrativă savârşită, instanţa judecatorească poate înlocui această sancţiune cu arest administrativ, calculându-se zece zile de arest pentru un salariu minim, termenul fiind cel mult treizeci de zile.)

The conversion of an administrative fine into imprisonment is ordered by a court following a request lodged by the bailiff in accordance with Article 26 of the CAO. According to the Government, the courts can convert administrative fines into imprisonment when the following circumstances are present:

- when a person who knows about a fine imposed on him/her refuses to appear before a bailiff after multiple summonses;

- when the offender does not have any revenue or goods that could be sold;

- when the offender is unemployed and accordingly does not have a salary from which the fine could be deducted;

- when the offender has failed to comply with the time limit set by a court for the payment of an administrative fine.

A judgment by which an administrative fine is converted to imprisonment can be challenged before the hierarchically superior court. A person to whom such a measure is applied can always bring it to an end, by paying the administrative fine. The conversion cannot be made in respect of pregnant women, women who have children under twelve years of age, persons aged under eighteen and invalids of the first and second degree.

As to the latter provision the parties submitted copies of seven recent judgments in which administrative fines have been converted into imprisonment, in some of which the conversion had been ordered in the absence of the offender and not in a public hearing. In one of them the conversion was made due to the offender’s failure to pay an administrative fine in time. At the same time the Government submitted copies of letters addressed to the Government Agent by presidents of thirteen courts in which it was stated that in the last two years their courts had converted administrative fines into imprisonment in twenty six cases.

The circumstances that mitigate the administrative responsibility are:

1) repentance of the offender;

2) prevention by the offender of the negative effects of the offence and voluntary compensation for the damage caused;

3) committing the offence under influence of strong emotions or amidst difficult personal or family circumstances;

4) committing the offence as a minor;

5) committing the offence as a pregnant woman or as a woman who has a child aged under one year.

The circumstances that aggravate the administrative responsibility are:

1) the continuation of illicit behaviour in spite of the demand to refrain from it, made by an authorised person;

2) the commission of a similar administrative offence for the second time within one year or the commission of an offence by a person who had earlier committed a criminal offence;

3) involving a minor in an activity contrary to CAO;

4) the commission of an offence by a group of people;

5) the commission of an offence during natural calamities...;

6) the commission of an offence while under influence of alcohol....

(2) The organisation and holding of an assembly without a prior declaration deposited with the Municipal Council or not authorised by it, and in breach of the conditions (manner, place, time) concerning the conduct of a meeting as indicated in the authorisation shall be punishable by a fine to be imposed on the organisers (leaders) of the assembly in an amount equal to between ten and twenty five times the minimum wage....

(4) Active participation in an assembly referred to in paragraph 2 of the present article shall be punishable by a fine in an amount between MDL 36 and 90.

The hearing regarding an administrative offence shall be conducted in the presence of the suspect. If the suspect is absent, the hearing can take place only when it is proved that he or she was informed in due time about the place and the time of the hearing and if he or she did not submit any request for adjournment.

A decision of the first instance court regarding an administrative offence may be challenged before the hierarchically superior court, by an application lodged by the interested person or by the prosecutor.

When the parties have been informed in due time about the date of the hearing but do not appear, the appeal may be heard in their absence....

In examining a case regarding an administrative offence, the appeal instance may render one of the following decisions:

1) to leave the challenged decision unchanged and to reject the appeal application;

2) to quash the challenged decision and to order a re-examination by the first instance court;

3) to quash the challenged decision and to send the file to the investigation organs;

4) to quash the challenged decision and to stop the proceedings;

5) to change the administrative sanction and to mitigate the sanction imposed.

The appeal instance may quash the challenged decision for the following reasons: when the first instance court committed procedural mistakes or when it applied the wrong law. A decision which is correct on its merits cannot be quashed for procedural reasons, except in the following circumstances:

1) the case was examined by a set of judges which was not composed in accordance with the law;

2) the decision was not signed by the judge who examined the case or it was signed by a judge who did not participate at the trial of the case;

3) the decision was not pronounced by the judge who examined the case;

4) there were no minutes of the hearing, contrary to the law;

5) the case was examined without an interpreter, contrary to the law.

After examining the case, the appeal instance pronounces its decision. The decision does not have to contain any reasoning.

If an offender does not pay the fine within the time provided for in Article 292 of the present Code, the amount of the fine shall be compulsorily deducted from his or her salary, pension, stipend or other income in accordance with the rules set in the Code of Civil Procedure.

If the offender does not have an employment or if the deduction of the fine from the salary, pension, stipend or other income is not possible, the amount of the fine shall be recovered from the forced sale of his or her personal belongings or of his or her part of a co-ownership....

The relevant provisions of the Code of Criminal Procedure in force at the material time read:

The accused is called before the investigator by means of a summons. The summons is handed to the accused and the certificate confirming the date of the receipt is returned to the investigator. The summoning can also be done by telephone or by telegram.

The relevant provisions of the Code of Civil Procedure in force at the material time read:

The court informs the parties to the proceedings about the date and the place of the hearing by means of a summons....

The summons is to be handed to the parties in due time, so that they have enough time to prepare for the hearing in front of the court. In any event, the summons should be handed to the defendant at least three days ahead of the hearing.

In a book entitled “The Procedure in Administrative Offence cases” by Sergiu Furdui (judge at the Supreme Court of Justice in Moldova), (Chişinău 2000), the author states the following: “The Code of Administrative Offences provides for a number of procedural measures such as: detention, body search, search of property, administrative arrest... The CAO provides for few procedural guarantees as it does not guarantee legal aid, presumption of innocence, etc. The CAO cases are heard by criminal sections of the courts.... Only the convicted person may pay the administrative fine... It is illegal for the fine be paid by somebody else”.