The applicant, Mr Zbigniew Prokopyszyn, is a Polish national who was born in 1964 and lives in Głogów. The applicant informed the Court that on 1 February 2005 he had changed his surname to “Prokopyszyn” and he submitted an official document to that effect. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

The applicant was born in 1964 and lives in Głogów.

On 20 March 2001 the applicant was suspected of having committed aggravated burglary and fraud as a result of which a third person’s property had been disposed of to the detriment of its owner.

On 29 May 2001 the applicant was arrested and placed in police custody.

On 31 May 2001 the Radomsko District Court ordered that the applicant be detained. The court based its detention order on a reasonable suspicion that the applicant had committed the offences, the severity of the likely penalty, the risk of the applicant’s “avoiding the administration of justice” and his relapse into crime.

Subsequent decisions extending the applicant’s pre-trial detention were taken by the Radomsko Regional Court on 16 August 2001, 25 October 2001, 21 December 2001, an unknown subsequent date, 31 May 2002, 27 June 2002, 13 September 2002 and 28 October 2002 and on an unknown subsequent date.

The court referred to the need to conduct further investigations, the reasonable suspicion that the applicant had committed the offences, the risk of the applicant’s obstructing the proper course of the proceedings (especially, in view of the fact that he had previously gone into hiding).

The applicant appealed against the decisions extending his detention on several occasions. All of his appeals were dismissed.

On many occasions the applicant requested that his detention pending trial be lifted. On each occasion his requests were dismissed. The decisions to that effect were given by the Piotrków Trybunalski District Court (a decision of 20 June 2001) and the Radomsko Regional Court (decisions of 27 June 2001, 24 October 2001, 21 December 2001, 27 February 2002, 16 April 2002, 9 May 2002, 21 May 2002 and 8 July 2002). These decisions relied on the fact that the reasons for which the applicant had been initially detained were still valid. Neither the applicant’s family situation nor his state of health had been found as such to justify lifting his pre-trial detention.

The applicant appealed unsuccessfully against some of the decisions dismissing his requests for release.

On 16 October 2001 a bill of indictment was lodged with the Radomsko Regional Court. The applicant was charged with aggravated burglary and fraud as a result of which a third party’s property had been disposed of to the detriment of its owner.

Hearings were held on: 23 November 2001, 9 January 2002, 30 January 2002, 20 February 2002, 20 March 2002, 29 March 2002, 16 April 2002, 24 April 2002, 29 April 2002, 14 June 2002, 17 July 2002, 14 August 2002, 6 September 2002, 11 October 2002, 6 November 2002, 11 December 2002, 15 January 2003, 12 February 2003, 7 March 2003 and 12 March 2003.

From 11 June 2001 to 7 February 2002 and from 5 July 2002 to 15 October 2004 the applicant was serving prison sentences in respect of his other convictions. Therefore, for one year and four months of the period of his pre-trial detention, which lasted one year and nine months, the applicant was serving his prison sentences.

On 12 March 2003 the Radomsko District Court found the applicant guilty of the offences he had been charged with and sentenced him to four and a half years’ imprisonment. The applicant appealed.

On 22 August 2003 the Piotrków Trybunalski Regional Court upheld the judgment. As the applicant did not lodge a cassation appeal, the judgment became final.

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


Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant, Ms Zybeyde Sahin, is an Austrian national who was born in 1974 and lives in Innsbruck. She is represented before the Court by Mr L. Szabo, a lawyer practising in Innsbruck. The Austrian Government (“the Government”) are represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

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

The applicant and her husband had two children: a daughter D, born in 1997, and a son S, born in 1999. Following allegations against the applicant’s husband of violence against the children and sexual abuse of D, the Innsbruck Youth Welfare Office (Jugendwohlfahrtsträger) removed both children from their home and placed them in a children’s home as a provisional measure on 20 December 2005, having found the children to be in imminent danger as required by Article 215 § 1 of the Civil Code.

In compliance with the time-limit set out in Article 215 § 1 of the Civil Code, the Youth Welfare Office thereafter, on 27 December 2005, applied to the Innsbruck District Court (Bezirksgericht Innsbruck) seeking to be awarded custody of the children for the purposes of their care and education and to have their placement in a children’s home approved.

The applicant and her husband denied the allegations of domestic violence or sexual abuse and requested the court to dismiss the authority’s application for custody.

The District Court promptly heard the applicant and her husband, the children’s teachers, other witnesses and commissioned an expert opinion. Following its investigation, on 24 February 2006 the Innsbruck District Court dismissed the Youth Welfare Office’s custody application, but ordered the parents to attend weekly psychotherapy sessions offered by a specialised association and to allow the children to receive psychological counselling if recommended by the association.

The children were returned to their parents on 3 March 2006.

The Youth Welfare Office appealed against the District Court’s decision, but on 5 May 2006 the Innsbruck Regional Court (Landesgericht Innsbruck) dismissed the appeal.

In addition to the above civil proceedings, the applicant applied on 29 January 2006 to the Tyrol Independent Administrative Panel (Unabhängiger Verwaltungssenat Tirol) and contested the measures taken by the Youth Welfare Office. She requested it to rule that the Youth Welfare Office had violated her rights by removing the children on 20 December 2005, complaining that the children had been taken away without the applicant having first given evidence, and arguing that until the court had issued a decision their placement in a children’s home had been without any legal basis. She also argued that the provisional removal of the children from their home on the basis of suspicions of domestic violence had been disproportionate.

On 29 March 2006 the Independent Administrative Panel rejected the application. It found that the measures were based on the provisions of the Civil Code and not on the administrative law. Thus, only the civil courts were competent to decide on the lawfulness of the measure.

The applicant lodged a complaint with the Constitutional Court against that decision under Article 144 of the Federal Constitution.

On 20 June 2007 the Constitutional Court dismissed the complaint confirming its case-law whereby a provisional measure implemented by the Youth Welfare Office pursuant to Article 215 § 1 of the Civil Code was a measure under civil law. Accordingly, the administrative authorities had no jurisdiction to decide on the applicant’s application.

The Constitutional Court’s judgment was served on the applicant’s counsel on 12 July 2007.

Under Article 215 § 1 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch), the competent Youth Welfare Office must apply for court orders regarding custody measures which are necessary in order to ensure a child’s well-being. Where a child is in imminent danger, the Youth Welfare Office must also make the necessary provisional arrangements concerning care and custody until the competent court has given a decision. Such provisional arrangements have to be notified to the competent District Court immediately, at the latest within eight days.

Article 138 of the Federal Constitution (Bundesverfassungsgesetz) provides that the Constitutional Court decides on conflicts of jurisdiction between the courts and the administrative authorities.

Under Article 144 of the Federal Constitution, an application can be lodged with the Constitutional Court alleging a violation of a constitutional right as the result of a decision of the administrative authorities, including the Independent Administrative Panels.

Pursuant to section 1 of the Official Liability Act (Amtshaftungsgesetz), the Federation, the Länder, districts, municipalities, other bodies of public law and the institutions of social insurance (hereinafter named “legal entities”; Rechtsträger) are liable pursuant to the relevant civil law for any damages caused deliberately or negligently by unlawful acts carried out by their officials in the execution and enforcement of the law. Sections 8 and 9 of the Official Liability Act provide that, as a first step, an injured party shall demand a written statement of the legal entity, against which a claim of damages is to be raised, indicating whether the legal entity at issue accepts or rejects the claim for damages. Such a statement shall be rendered within three months. After expiration of the delay of three months and in the event the legal entity does not accept the claim (in full), the injured party can lodge an action for damages with the competent Regional Civil Court.


Remainder inadmissible;No violation of Art. 14+8;Pecuniary and non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant was born in 1968 and lives in Vilnius. In 1990 the applicant married VG.

In 2000, the applicant became involved in the activities of the Ojas Meditation Centre, a Lithuanian branch of a new religious movement called Osho.

In 2001, she divorced her husband. The permanent place of residence of the applicant's two daughters, IG and AG, born in 1995 and 1996 respectively, was not determined and they stayed with the applicant and her former husband in Kaunas.

In July 2003, the applicant's former husband brought an action requesting that his home be fixed as the place of residence of his daughters. He alleged, inter alia, that the applicant's involvement in the Osho religious movement could have a negative influence on the children.

On 24 July 2003 the Kaunas District Child Rights Protection Agency, having visited the father's place of residence, concluded that the living conditions were suitable and, taking into consideration the wishes of AG and IG, suggested fixing their place of residence with the father. On 28 August 2003 the same Agency proposed to the District Court of Kaunas that it hear the views of the children.

By a ruling of 29 September 2003, the Kaunas District Court decided that, pending the proceedings, AG should reside with the applicant, and IG should stay with her father.

On 1 October 2003 the applicant and AG moved to Vilnius, settling in an apartment situated in the same building as the Ojas headquarters. The applicant was allowed to use that apartment free of charge. IG stayed with her father.

On 3 October 2003 the employees of the Vilnius City Child Rights Protection Agency (Vaiko teisių apsaugos tarnyba) visited the applicant's residence. They noted the applicant's explanation that she had two rooms for her use, one of them being reserved for AG. When the applicant was absent, a nanny would take care of her. The living conditions seemed suitable for a child. However, during the interview AG explained that she wanted to stay with her father, who took better care of her and did not leave her alone. She elaborated that her mother left her alone during the day and that she often felt scared. The Agency then suggested fixing AG's place of residence with her father.

On 9 December 2003 the employees of the Vilnius City Child Rights Protection Agency, having visited the applicant's place of residence in Vilnius, concluded that it was unsafe for AG to live there and that the applicant was not caring enough about AG's upbringing and education. They noted that the applicant's living space consisted of one room and that the kitchen was shared with other residents of the house. AG lived in that room with her mother, both of them sleeping in the same bed. The other room, which was supposed to be part of the applicant's living space, was apparently also used by other persons. At the time of the interview with AG, two teenage boys entered the room without asking for permission. According to AG, her mother did not take care of her; she did not have any friends and, during the day, was left alone. The girl had to cook for herself; she was not allowed to go to the adjoining yard and the building next to it, where her mother was meditating. The nanny would only come to take care of AG when the applicant left for a few days. AG expressed her wish to live in Kaunas with her father and sister IG. The Agency's workers also interviewed AG's kindergarten teachers. According to them, AG was often sad about not seeing her sister and father. AG would also be picked up from the kindergarten by some fifteen year old girl, but at the time of the interview she was going home on her own. The Agency's workers suggested to the applicant that she find another place to live where AG would feel safer. However, the applicant refused because she did not have to pay rent for the current flat, and it was close to her meditation centre.

On 26 March 2004 the employees of the Vilnius City Child Rights Protection Agency again interviewed AG, who repeated her wish to live with her father. The Agency also noted that AG had stressed that she had made the same statement before the court of first instance and to the psychologists.

From 25 June to 2 July 2004, AG was examined by a psychologist. Again, she expressed her wish to stay with her father and older sister.

On 13 April 2004 the Kaunas District Court granted the action in part, ruling that IG should live with the applicant's former husband, and AG should live with the applicant. The court noted that both parents were well educated and had sufficient salaries to provide for their daughters. In the course of the proceedings, both girls had been heard by the court as well as by a psychologist. They had both expressed their wish to stay with their father. However, the court agreed with one of the experts that AG (then 8 years old) was not mature enough to take a reasonable decision about her parental preferences. With respect to the applicant's affiliation to the meditation centre, the court noted:

“The Ministry of Justice has refused to register [Ojas] as a religious community, suggesting that it should be registered as [a non governmental organisation]. There is no indication in the case file that the meditation centre has a negative influence on children or that it propagates certain intolerable views; nor is there any evidence that the [applicant's] children are involved in the activities of the centre.

The court concludes that [the applicant's] active participation in the activities of the meditation centre does not have any negative impact on her children. In accordance with Article 26 § 2 of the Constitution, everyone is free to choose a religion or belief and ... to profess his religion, to perform religious practices, and to practise and teach his beliefs.”

On 16 July 2004 the Kaunas Regional Court amended the decision, ruling that both daughters should live with their father. The court considered that too little weight had been afforded by the lower court to the express wish of AG to live with her father. According to the appellate court, this had not complied with Article 12 of the United Nations Convention on the Rights of the Child or the relevant provisions of national law, which obliged the court to take into account a child's wishes irrespective of its age. The appellate court had regard to the expert's conclusion of 9 December 2003 that the environment in which the applicant lived was unsafe, whereas the applicant's husband was able to provide good living conditions for AG. The recommendation by the Kaunas District Child Rights Protection Agency to fix the place of residence of both daughters with the father was taken into account. The court also observed the girls' wish to stay together, and to be close to other family members (grandparents) and friends living in Kaunas. Certain instances of inadequate care were noted, namely, the applicant's failure on one occasion to arrange for AG's medical assistance or to ensure her attendance at school. Finally, the appellate court observed that the first-instance court had not assessed (nevertino) the material submitted to the Ministry of Justice characterising the Osho movement as controversial. Neither did the first-instance court give any credit to the fact that the movement had been unable to obtain registration as a religious community.

The applicant submitted a cassation appeal, alleging, inter alia, that the court's decision was discriminatory, and that it had failed to respect her family life. She requested that her youngest daughter, AG, live with her.

On 1 December 2004 the Supreme Court dismissed the applicant's cassation appeal. It emphasised that the rights of both parents in the education of their children were equal, regardless of their beliefs, convictions or views. The custody dispute was to be resolved taking into account the best interests of the children, in which context their wishes should be considered, regardless of their age. In assessing the significance of such wishes, the most important factor would be the children's ability to formulate, express and substantiate their views.

The Supreme Court established that AG had amply explained her preference to stay with her father during the entire proceedings, both in her submissions to the courts and during the interviews with the experts. She had stressed, in particular, that her mother had not taken adequate care of her, often leaving her alone and neglecting to cook meals. The girl had also expressed a preference for living in Kaunas, together with her sister and close to other relatives and friends. She had noted that her father spent more time with her and took better care of her. The Supreme Court emphasised that the experts had considered that the living conditions of the applicant were unsafe for children.

The Supreme Court further assessed the material conditions of accommodation offered by both parents. It was established that the applicant's husband was able to provide his daughters with a separate room in a private cottage in the countryside near Kaunas.

The Supreme Court also emphasised the importance for the two sisters to be brought up together, and underlined that close ties existed between them.

The applicant's allegations of discrimination were dismissed as unsubstantiated. In this respect, the Supreme Court noted:

“The applicant's claim in her cassation appeal that the appellate court had breached the principle of non-discrimination, enshrined in Article 14 of the Convention as well as in [Lithuanian law], by wrongly assessing the evidence on the Ojas Meditation Centre and taking into account that the applicant belonged to it, is unfounded. When determining the place of residence of the two children, whose parents live separately, the Court of Appeal gave priority to the interests of the children, took into account their wishes, the ability and efforts of each parent to guarantee the basic rights of the children, and each parent's living conditions, that is to say, those conditions in which the children would have to live once their place of residence was decided. The decision of the appellate court did not contain any indication that the resolution of the dispute was influenced by the fact that the applicant was a member of [Osho/Ojas] ... The appellate court only noted that the first-instance court had not assessed all the evidence regarding the meditation centre. However, that does not presuppose that the appellate court considered the applicant's membership of the centre important in the resolution of the dispute. Had that been so, such a consideration would require an assessment of whether the prohibition of discrimination on grounds of religion was observed. In its judgments in the cases of Hoffmann v. Austria and Palau-Martinez v. France, the European Court of Human Rights ruled that the prohibition of discrimination on the basis of religion, enshrined in Articles 14 and 8 of the Convention, had not been respected in cases where the courts had attached decisive importance to the [applicant's] religious affiliation. However, when determining [the custody dispute], the appellate court did not attach significance to the fact that the applicant was a member of [Osho/Ojas].”

In an unrelated set of proceedings, the Ojas Meditation Centre requested a court order obliging the Ministry of Justice to register it as a religious community. The action was granted by the Supreme Administrative Court on 4 February 2005. The court found no evidence that Ojas propagated any controversial practices amongst its members. Ojas was registered as a religious community on 12 April 2005.

Article 23 of the Law on the Fundamentals of Protecting the Rights of the Child (Vaiko teisių apsaugos pagrindų įstatymas), in force at the material time, provided that disputes arising over a child's place of residence, in cases where the parents live separately, were to be resolved in court. It further stipulated that priority consideration had to be accorded to the interests and wishes of a child capable of expressing its own opinion as to which one of its parents it would wish to live with.

Article 3.174 of the Civil Code stipulates that, in the case of a dispute over a child's place of residence, the court is to take into consideration the wishes and interests of the child. The child's choice in the matter may be only disregarded if it is contrary to its best interests. Under Article 3.177 of the Code, when adjudicating disputes over children, the court must hear the child capable of expressing its views and ascertain its wishes.

On 21 June 2002 the Senate of the Judges of the Supreme Court adopted a ruling “On the application of laws in the case-law of the courts in determining the place of residence of minors when the parents are separated”. The ruling reads:

“4. In deciding the dispute between separated parents over a child's place of residence, the court hearing the case must clarify and establish the following facts of legal importance:

1) the opportunities and efforts of each parent to ensure the implementation of the fundamental rights and duties of the child enshrined in legal provisions ...;

2) the conditions of the environment of each parent, namely, those conditions in which a child would live once its place of residence with one of the parents had been decided;

3) the wishes and views of the child. ...

(...) The court must also find out whether a child, over whose place of residence the dispute arose, has brothers or sisters .... The separation of brothers and sisters, especially in cases where the children have strong emotional attachments to each other and where they are fond of communicating and being together, would violate the interests of the children. ...”

Article 185 of the Code of Civil Procedure provides that a court shall make its own judgement on the probative value of evidence, based on the comprehensive and unbiased examination of that evidence in court.

On 3 July 1995 the Seimas of the Republic of Lithuania ratified the 1989 United Nations Convention on the Rights of the Child which then became an integral part of Lithuanian law. The convention provides, in so far as relevant in the present case, the following:

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”

“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”


HENKEL NEDERLAND B.V. v. THE NETHERLANDS

The applicant is a limited liability company (besloten vennootschap met beperkte aansprakelijkheid, “B.V.”) having its registered seat in Nieuwegein, the Netherlands. It is represented before the Court by Mr G.J.H. van Hoof, a lawyer and professor of International Law. The respondent Government are represented by their Agent, Mr R. Böcker, of the Netherlands Ministry of Foreign Affairs.

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

On 26 February 1986, the limited liability company Viho B.V. instituted civil proceedings before the Regional Court (Arrondissementsrechtbank) of Amsterdam against the applicant company for alleged breach of contract (wanprestatie) claiming, inter alia, damages to an amount of 60,504.60 NLG (Netherlands guilders).

On 12 March 1986, Viho B.V. submitted its statement of claim (conclusie van eis). In its statement of defence (conclusie van antwoord), submitted on 2 July 1986, the applicant company contested Viho B.V.’s claim.

By interim judgment of 20 August 1986, the Regional Court ordered the parties’ appearance (comparitie van partijen) at a hearing scheduled for 13 October 1986 in order to clarify certain issues and to examine the possibilities for a settlement (minnelijke schikking).

In its interlocutory judgment of 13 October 1986, following a hearing held on the same day, the Regional Court invited the applicant company to prove allegations made. Pursuant to this invitation, two witnesses for the applicant company were heard (enquête) before the Regional Court on 8 December 1986. After this taking of evidence the Regional Court scheduled the case for 7 January 1987 to allow Viho B.V. to state whether it wished to submit evidence to the contrary (uitlating contra-enquête). This time-limit was prolonged several times.

By letter of 3 December 1987, Viho B.V.’s lawyer informed the Regional Court that Viho B.V. did not wish to submit evidence to the contrary and requested the court to proceed with the case.

The applicant company submitted its further conclusions as to these points of evidence (conclusie na enquête) on 30 March 1988, to which Viho B.V. responded on 31 August 1988. In its submissions of 31 August 1988, Viho B.V. further sought to amend its initial claim for damages by increasing it to NLG 160,504.60.

In its interlocutory judgment of 1 March 1989, the Regional Court noted that Viho B.V. had failed to submit two of the three exhibits it had announced in connection with the amendment of its claim. After having considered the parties’ written submissions after the taking of evidence on 8 December 1986, the Regional Court further held that the applicant company had failed to prove that it had been discharged by Viho B.V. of its contractual obligations and invited Viho B.V. to substantiate certain claims and scheduled the case for 29 March 1989.

Viho B.V. submitted the substantiation requested on 23 May 1990, in which it argued that the breach of contract had caused direct damages amounting to NLG 170,386 and additional consequential damages (gevolgschade) amounting to NLG 12,210,000.

In its written reply submitted to the Regional Court on 20 February 1991, the applicant company objected to the increase of the claim. In its interim decision of 20 March 1991, the Regional Court accepted an increase of the initial claim up to an amount of NLG 170,386 but refused to take into consideration Viho B.V.’s additional claim for consequential damages.

The applicant company made further written submissions to the Regional Court on 24 April 1991, as did Viho B.V. on 18 December 1991.

In its judgment of 22 July 1992, the Regional Court found against Viho B.V. On 20 October 1992, Viho B.V. filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. It was not before 9 February 1995 that Viho B.V. submitted its objections against the judgment of 22 July 1992. The applicant company’s reply was submitted to the Court of Appeal on 4 May 1995.

In its judgment of 21 December 1995, the Court of Appeal quashed the judgment of 22 July 1992 and found against the applicant company.

In the applicant company’s reply of 4 May 1995 to Viho B.V.’s objections to the judgment of 22 July 1992, the applicant company had argued that Viho B.V. had violated principles flowing from rules of proper procedure by its failure to comply with the obligation of substantiation and had caused the proceedings to exceed the reasonable time requirement of Article 6 of the Convention, inter alia, by having submitted its objections against the judgment of 22 July 1992 more than two years after having issued the appeal summons.

In its judgment of 21 December 1995, the Court of Appeal construed the applicant company’s submissions as meaning that Viho B.V.’s appeal should be declared inadmissible on the ground that it had unduly prolonged the proceedings. It then rejected this argument. It held that Viho B.V.’s appeal had been lodged within the applicable time-limit. Moreover, the applicant company could have itself limited the delay by asking the Court to set Viho B.V. a peremptory time-limit (peremptoirstelling), of which possibility it had apparently not availed itself.

The applicant company subsequently sought legal advice as to the chances of success of an appeal on points of law to the Supreme Court (Hoge Raad). By letter of 7 March 1996, Mr H., a lawyer practising in The Hague, advised that such an appeal was likely to fail.

Insofar as the applicant company considered raising a complaint in respect of the length of the proceedings, Mr H. considered that it was doubtful that the Supreme Court would accept such a complaint under Article 6 § 1 of the Convention. He noted that the Court of Appeal had rejected the argument that Viho B.V.’s appeal should be declared inadmissible on grounds of a finding that it had unduly prolonged the proceedings, pointing out that the applicant company could have sought a peremptory time-limit. Mr H. further referred to the Supreme Court’s case-law according to which this provision of the Convention only created obligations for Contracting States and had no horizontal application between private parties.

Pursuant to Article 134 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) a claimant may amend the claim submitted to the civil courts throughout the proceedings. The adversary party may, however, object to such an amendment if, inter alia, this would cause an undue delay in the proceedings.

Article 143 of the Code of Civil Procedure states that the judge shall determine time-limits for written submissions and that, where the parties agree on this point, the judge shall respect their wishes unless this would lead to an unreasonable delay. Where one of the parties seeks an extension of a given time-limit, which is considered unacceptable by the court or the opposing party, the court may decide to set a peremptory time-limit, i.e. a final time-limit.


The applicant, born in 1959, is a German national and residing in Wattenbek. In the proceedings before the Court, he is represented by Mr. Traulsen, a lawyer practising in Kiel.

On 29 November 1994, in the context of divorce proceedings before the Itzehoe District Court (Amtsgericht), the applicant and Mrs F.E., his wife, concluded a maintenance agreement. Under the terms of this agreement, the applicant committed himself to pay maintenance for his two children Jankl and Yorrick, born in wedlock in 1990 and 1992, in the monthly amount of DEM 241 each, and for Mrs F.E. in the monthly amount of DEM 836. The agreement also indicated the considerations underlying the calculation of the maintenance payments, in particular the applicant’s monthly net income amounting to DEM 2624 and his personal financial needs (Eigenbehalt).

On 29 October 1995 the applicant, represented by counsel, applied to the Itzehoe District Court for legal aid with a view to institute proceedings against Mrs F.E., claiming that his maintenance payments for her as well as Jankl and Yorrick be reduced to zero as from 1 November 1995. He submitted that he had remarried in the meantime and that, following the birth of his daughter Pauline in July 1995, he had agreed with his wife to take parental leave from October 1995 to July 1998. His only income was therefore an educational allowance.

On 13 December 1995 the Itzehoe District Court dismissed the applicant's request for legal aid on the ground that the intended action lacked sufficient prospect of success.

In its decision, the court stated that the action was inadmissible to the extent that the applicant's maintenance obligations towards his children Jankl and Yorrick were concerned, as Mrs F.E. was not the proper defendant in this respect.

As regards his claim that his maintenance payments for Mrs F.E. be reduced, the court found that the applicant could not invoke his choice concerning the repartition of roles in his new family and resulting reduction of his income vis-à-vis Mrs F.E. In this respect, the court noted that the applicant was obliged to pay maintenance to Mrs F.E. on the ground that she took care of their two minor children. The court, referring to the case-law of the Federal Court of Justice (Bundesgerichtshof), stated that, for the purposes of maintenance, the divorced spouse only had to accept the termination of occupational activities in order to care for a new child, if such a repartition of roles had considerable advantages for the new family. The decisive factor in this respect was the overall amount of the family income. However, the solution envisaged by the applicant did not change the family income. It was only advantageous if his maintenance obligations towards Mrs F.E. and his minor children Jankl and Yorrick would be set aside. In such a situation, the applicant could not evade his primary maintenance obligations towards Mrs F.E. as well as Jankl and Yorrick.

On 22 January 1996 the Itzehoe District Court, upon the applicant’s appeal (Beschwerde), confirmed its decision of 13 December 1995.

On 28 February 1996 the Schleswig-Holstein Court of Appeal (Oberlandes-gericht) dismissed the applicant's appeal. The Court of Appeal found that the impugned decision was consistent with the constant case-law of the Federal Court of Justice. According to the Court of Appeal, Mrs F.E. was entitled to maintenance under section 1570 of the Civil Code (Bürgerliches Gesetzbuch) in order to be in a position to take care of the divorced spouses’ minor children. Referring to section 1582 of the Civil Code, the Court of Appeal observed that, for the purposes of maintenance matters, a divorced spouse taking care of minor children took precedence over the second wife.

According to section 1570 of the Civil Code, a divorced spouse can claim maintenance from the other divorced spouse, as long as and to the extent that, taking care of the spouses’ child, he or she cannot be expected to take up gainful occupation. Section 1581 provides that maintenance obligations of a divorced spouse may be reduced in case that the divorced spouse, given his or her earned income, assets and other financial obligations, would risk not to dispose of sufficient own financial means. In determining the maintenance entitlement of a divorced spouse under section 1581, the divorced spouse takes, as a rule, precedence over a new spouse (section 1582).

On 7 May 1996 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde).

Meanwhile, on 1 April 1996 the applicant had accepted part-time occupation of twelve hours per week, with a salary of DEM 1,446.


Violation of Art. 10;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

In 1992 a controversy arose between His Serene Highness Prince Hans-Adam II of Liechtenstein (“the Prince”) and the Liechtenstein government on political competences in connection with the plebiscite on the question of Liechtenstein’s accession to the European Economic Area. At the relevant time, the applicant was a member of the Liechtenstein government. Following an argument between the Prince and members of the government at a meeting on 28 October 1992, the matter was settled on the basis of a common declaration by the Prince, the Diet (Landtag) and the government.

Following elections and the constitution of the new Diet in May 1993, discussions on various constitutional issues took place between the Prince and the government, when the applicant no longer held a government office. The applicant had not stood for re-election in May 1993, and he was appointed President of the Liechtenstein Administrative Court (Verwaltungsbeschwerdeinstanz) in December 1993 for a fixed term of office (see paragraph 26 below).

On 16 February 1995, in the context of a series of lectures on questions of constitutional jurisdiction and fundamental rights, the applicant gave a public lecture at the Liechtenstein-Institut, a research institute, on the “Nature and Functions of the Liechtenstein Constitutional Court” (“Wesen und Aufgaben des Staatsgerichtshofes”). In the course of the lecture, the applicant expressed the view that the Constitutional Court was competent to decide on the “interpretation of the Constitution in case of disagreement between the Prince (government) and the Diet” (“Entscheidung über die Auslegung der Verfassung bei einem Auslegungsstreit zwischen Fürst (Regierung) und Landtag”).

On 17 February 1995 the newspaper Liechtensteiner Volksblatt published an article on the lecture given by the applicant, mentioning, inter alia, his views on the competences of the Constitutional Court.

On 27 February 1995 the Prince addressed a letter to the applicant concerning the above lecture, as summarised in the article published in the Liechtensteiner Volksblatt.

The letter, written on heraldic letter paper, read as follows:

“Vaduz Castle, 27 February 1995

Dr Herbert Wille

[applicant’s private address]

Sir,

I was astonished to read the report in the 17 February issue of the Liechtensteiner Volksblatt on your lecture on the theme of the ‘Nature and Functions of the Liechtenstein Constitutional Court’. I assume that the statements you made on the Court’s areas of responsibility have been correctly reproduced in this report, in particular the comment that the Constitutional Court can, as a court that interprets the law, be appealed to in the event of a disagreement between the Prince and the people.

You will doubtless remember the discussion between the government and me in the period before 28 October 1992, at which you were present as deputy head of government. I drew the government’s attention during this exchange of views at Vaduz Castle to the fact that it was not abiding by the Constitution and read out the relevant Articles thereof. You replied that you did not agree (or words to that effect) with these parts of the Constitution in any case and that you therefore did not consider yourself bound by it. Since the other members of the government did not contradict you, I was forced to assume that the entire government was of the opinion that the two bodies that hold supreme power, the people and the Prince, must observe the Constitution and the ordinary laws but not the members of the government, who have sworn an oath of allegiance to the Constitution.

I considered your statement at that time and the government’s attitude to be incredibly arrogant and therefore informed the government in no uncertain terms that it had lost my confidence. Following the compromise that was fortunately reached a little later between the government and the Diet, on the one hand, and myself, on the other, I declared that I once again had confidence in the government, doing so in the hope that individual members had realised that they had taken up an inexcusable position in relation to our Constitution and now recognised that they were bound by it. Just as I would have appointed Mr Brunhart head of government, had his party won the election, I appointed you President of the Administrative Court on the Diet’s recommendation.

Unfortunately, I had to realise following the publication of the report in the Liechtensteiner Volksblatt that you still do not consider yourself bound by the Constitution and hold views that are clearly in violation of both the spirit and the letter thereof. Anyone reading the relevant Articles of the Constitution will be able to establish that the Constitutional Court has no competence to decide as a court of interpretation in the event of a disagreement between the Prince and the people (the Diet). In my eyes your attitude, Dr Wille, makes you unsuitable for public office. I do not intend to get involved in a long public or private debate with you, but I should like to inform you in good time that I shall not appoint you again to a public office should you be proposed by the Diet or any other body. I only hope that in your judgments as President of the Administrative Court you will abide by the Constitution and the ordinary laws for the rest of your term of office.

Yours sincerely,

Hans-Adam II

Prince of Liechtenstein”

“Schloss Vaduz, 27. Februar 1995

Herrn Dr. Herbert Wille

Präsident der Fürstlich Liecht.

Verwaltungsbeschwerdeinstanz

Sehr geehrter Herr Präsident

Mit Erstaunen habe ich im Liechtensteiner Volksblatt vom 17. Februar den Bericht über Ihren Vortrag am Liechtenstein Institut zum Thema ‘Wesen und Aufgaben des Staatsgerichtshofes’ gelesen. Ich nehme an, dass Ihre Aussagen über die Zuständigkeitsbereiche des Staatsgerichtshofes in diesem Bericht korrekt wiedergegeben wurden, insbesondere jene, in der Sie feststellen, dass der Staatsgerichtshof als Interpretations-gerichtshof bei unterschiedlichen Auffassungen zwischen Fürst und Volk angerufen werden könne.

Sie werden sich bestimmt noch an die Auseinandersetzung zwischen der Regierung und mir vor dem 28. Oktober 1992 erinnern, bei der Sie als stellvertretender Regierungschef anwesend waren. Ich habe damals bei der Aussprache auf Schloss Vaduz die Regierung darauf aufmerksam gemacht, dass sie sich nicht an die Verfassung hält, und die entsprechenden Artikel aus der Verfassung der Regierung vorgelesen. Sie haben dazumal sinngemäss geantwortet, dass Sie mit diesen Teilen der Verfassung sowieso nicht einverstanden seien, und sich deshalb auch nicht an die Verfassung gebunden fühlten. Nachdem die anderen Regierungsmitglieder Ihrer Aussage nicht widersprochen haben, musste ich davon ausgehen, dass die gesamte Regierung der Auffassung ist, dass sich zwar die beiden Souveräne, Volk und Fürst, an Verfassung und Gesetze zu halten haben, nicht aber die Regierungsmitglieder, welche einen Eid auf die Verfassung abgelegt haben.

Ich habe Ihre damalige Aussage sowie die Haltung der Regierung als unglaubliche Arroganz empfunden, und deshalb habe ich der Regierung in sehr klaren Worten mitgeteilt, dass sie mein Vertrauen verloren hat. Beim Kompromiss, der glücklicherweise etwas später zwischen Regierung und Landtag auf der einen Seite und mir auf der anderen Seite erzielt wurde, habe ich der Regierung wieder mein Vertrauen ausgesprochen. Ich habe dies auch in der Hoffnung getan, dass die einzelnen Regierungsmitglieder ihre unentschuldbare Haltung gegenüber unserer Verfassung eingesehen haben und die Verfassung für sie wieder als bindend anerkennen. Ebenso wie ich Herrn Brunhart bei einem Sieg seiner Partei wiederum zum Regierungschef ernannt hätte, so habe ich Sie über Vorschlag des Landtages zum Präsidenten der Verwaltungs-beschwerdeinstanz ernannt.

Leider muss ich aufgrund des Berichtes im Liechtensteiner Volksblatt nun feststellen, dass Sie sich nach wie vor nicht an die Verfassung gebunden fühlen und Auffassungen vertreten, die eindeutig gegen Sinn und Wortlaut der Verfassung verstossen. Jeder wird beim Lesen der einschlägigen Verfassungsartikel feststellen können, dass der Staatsgerichtshof eben nicht Interpretationsgerichtshof bei unterschiedlichen Auffassungen zwischen Fürst und Volk (Landtag) ist. In meinen Augen sind Sie, Herr Dr. Wille, aufgrund Ihrer Haltung gegenüber der Verfassung ungeeignet für ein öffentliches Amt. Ich habe nicht die Absicht, mich mit Ihnen öffentlich oder privat in eine lange Auseinandersetzung einzulassen, aber ich möchte Ihnen rechtzeitig mitteilen, dass ich Sie nicht mehr für ein öffentliches Amt ernennen werde, sollten Sie mir vom Landtag oder sonst irgendeinem Gremium vorgeschlagen werden. Es verbleibt mir die Hoffnung, dass Sie sich während des Restes Ihrer Amtszeit als Präsident der Verwaltungsbeschwerdeinstanz in Ihren Urteilen an Verfassung und Gesetze halten.

Mit vorzüglicher Hochachtung

Hans-Adam II.

Fürst von Liechtenstein”

By letter of 9 March 1995 the applicant informed the President of the Diet about the letter of 27 February 1995. He denied having ever made a statement to the effect that he did not consider himself bound by the Constitution or parts thereof. He further explained his research on the competences of the Constitutional Court in constitutional matters. According to him, the expression of an opinion not shared by the Prince could not be regarded as a failure to comply with the Constitution. However, taking into account the conclusions drawn by the Prince in the said letter, his office as President of the Administrative Court was called into question. The President of the Diet subsequently informed the applicant that the Diet had discussed the matter in camera and had come to the unanimous conclusion that the applicant’s office was not called into question on account of his legal opinions as stated in the context of his lecture.

On 20 March 1995 the applicant replied to the letter sent by the Prince on 27 February 1995, and enclosed a copy of his letter to the President of the Diet. He explained in particular that it was his conviction as a lawyer that his statements on the occasion of the lecture of 16 February 1995, namely that the Constitutional Court was competent to decide on the interpretation of the Constitution in case of a dispute between the Prince and the people (Diet), were correct and did not infringe the Constitution. The applicant concluded that the declaration made by the Prince that he did not intend to appoint the applicant to a public office, amounted to an interference with his rights to freedom of opinion and to freedom of thought, as guaranteed under the Constitution and the European Convention on Human Rights. It further called into question the constitutional right to equal access to public office and constituted an attempt to interfere with judicial independence.

In his letter in reply dated 4 April 1995, the Prince noted that Mr Wille had distributed the letter of 27 February 1995 to a large group of persons. The Prince stated that it had been his intention to avoid a public discussion in informing Mr Wille, in a personal letter, about his decision as early as possible. He considered that a long debate between them on the question of Mr Wille’s qualification for the office of judge was inappropriate, as Mr Wille had remained in office and the Prince’s criticism had not been directed at the decisions of the Administrative Court, but at Mr Wille’s general attitude towards the Constitution.

The Prince added that it was left to his discretion whether or not to appoint a candidate for public office and that he was not obliged to give any reasons for such a decision. However, as he had known Mr Wille for many years, he had considered it appropriate to state the reasons for his decision regarding him. Moreover, the decision no longer to appoint him to the office of President of one of the highest courts, on account of his attitude in the past as well as the opinions expressed by him, did not amount to an interference with Mr Wille’s rights to freedom of expression and to freedom of thought. All citizens were free to propose and to plead for amendments to constitutional or other legal provisions. However, Mr Wille, during his term of office as a member of the government and in his lecture, had not availed himself of such constitutional and democratic means, but had simply ignored those parts of the Constitution with which he disagreed.

The Prince further explained that the relevant provision, namely Article 112 of the Constitution, concerned the competence of the Constitutional Court to decide on the interpretation of the Constitution in case of a dispute between the government and the Diet. Confusing the terms “Government” and “Diet” with “Prince” or “people”, as Mr Wille had done, would undermine the rule of law. As head of State, he was obliged to safeguard the constitutional order and the democratic rights of the people. He would be failing in his duties if he were to appoint to one of the highest judicial offices a person whom, owing to his attitude and the statements he had made, he could not regard as being committed to upholding the Constitution.

On 2 June 1995 the Prince sent to the applicant, President of the Administrative Court, an open letter which was published in Liechtenstein newspapers. The Prince noted that Mr Wille had made public at least part of the Prince’s letter of 27 February 1995. As this had given rise to various comments, the Prince considered it necessary to explain his point of view in an open letter.

In his opinion, in a democratic State based on the rule of law (demokratischer Rechtsstaat), a distinction had to be drawn between freedom of expression and the means used by an individual for imposing his views in such a society. In that connection, the individual should respect the rules defined in the Constitution and other statutory provisions. The Prince further stated that it was the right of Mr Wille, in his position as a judge, to express the opinion that the monarchy was no longer opportune; that Article 7 of the Constitution should be amended; that the Prince should be subject to the jurisdiction of the Liechtenstein judiciary; and that the Liechtenstein Constitutional Court should be given supplementary competences. However, Mr Wille was not entitled to place himself above the existing Constitution or incite the Constitutional Court to lay claim to competences which were not vested in it by virtue of the Constitution. The Prince considered that Mr Wille, having regard to his education and professional experience, knew that the terms “people” (“Volk”), “Diet” (“Landtag”), “Government” (“Regierung”) and “Prince” (“Fürst”) and their respective rights and obligations were clearly defined in the Constitution. The applicant’s contention that these terms were interchangeable would jeopardise the Constitution and the constitutional State as a whole.

The Prince also made reference to the political events in the autumn of 1992 and, lastly, he stated that, on the basis of the article in a Liechtenstein newspaper of 17 February 1995, he was forced to conclude that Mr Wille continued to have the intention of placing himself above the Liechtenstein Constitution. He explained that he had therefore intended to inform Mr Wille, in a personal letter and as early as possible, about his decision not to appoint him to public office in future.

In spring 1997 the applicant’s term of office as President of the Administrative Court expired. On 14 April 1997 the Liechtenstein Diet decided to propose the applicant again as President of the Administrative Court.

In a letter of 17 April 1997 to the President of the Diet the Prince refused to accept the proposed appointment. He explained that, considering his experiences with Mr Wille, he had become convinced that Mr Wille did not feel bound by the Liechtenstein Constitution. In these circumstances, he would be failing in his duties as head of State if he were to appoint Mr Wille as President of the Administrative Court. The Prince further stated that Mr Wille, on account of his other professional qualifications, had made important contributions as a judge of the Administrative Court and that he (the Prince) could therefore understand the proposal made to a certain extent. If the Diet did not share his doubts regarding Mr Wille, it could elect him as associate judge of the Administrative Court.

The applicant is currently employed as a researcher by the Liechtenstein-Institut.

The Principality of Liechtenstein is a constitutional, hereditary monarchy on a democratic and parliamentary basis; the power of the State is inherent in and emanates from the Prince and the people and shall be exercised by both of them in accordance with the provisions of the Constitution (Article 2 of the Constitution of 24 October 1921).

Chapter II of the Constitution is entitled “The Prince”. In its Article 7, it stipulates that the Prince is the head of the State and exercises his sovereign authority in conformity with the provisions of the Constitution and of the other laws; and that his person is sacred and inviolable. Further competences are laid down in Articles 8 to 13. According to Article 11, the Prince appoints the State officials, in conformity with the provisions of the Constitution (see Article 79 concerning the head of the government, the government councillors and their substitutes; Article 97 concerning the president of the Administrative Court and his deputy; Article 99, in conjunction with the Court Organisation Act, concerning the first-instance judges; Article 102 § 3 concerning the members of the High Court (Obergericht) and the Supreme Court of Justice (Oberster Gerichtshof)). By letter of 28 April 1997, the Prince informed the Liechtenstein government that he instructed it to proceed, within its competence, with the appointment in 1997 of State officials who, pursuant to Article 11 of the Constitution, were to be appointed by the Prince.

Chapter IV of the Constitution contains the general rights and obligations of citizens of the Principality. Article 31 stipulates the equality of all citizens before the law, and also provides that the public offices are equally open to them, subject to observance of the legal regulations.

According to Article 97 of the Constitution, all decisions or orders by the government are subject to appeal before the Administrative Court. The Administrative Court consists of a president trained in the law and of his deputy, who are appointed by the Prince on the proposal of the Diet, and of four appeal judges and their substitutes, who are elected by the Diet. The president and his deputy must be Liechtenstein nationals. Their term of office coincides with that of the Diet, and ends at such time as they are replaced.

According to Article 104 of the Constitution, the Constitutional Court is, inter alia, competent to protect rights accorded by the Constitution. Section 23 of the Constitutional Court Act (Staatsgerichtshofgesetz) provides that decisions of a court or of an administrative authority may be challenged before the Constitutional Court, by alleging that there has been an infringement of constitutional rights or of rights guaranteed under the Convention for the Protection of Human Rights and Fundamental Freedoms.

Pursuant to Article 105 of the Constitution, in conjunction with section 4 of the Constitutional Court Act, the judges of the Constitutional Court are elected by the Diet; the election of the president and the deputy president are subject to confirmation by the Prince.

Article 112 of the Constitution reads as follows:

“If doubts arise as to the interpretation of specific provisions of the Constitution and cannot be dispelled on the basis of an agreement between the Government and the Diet, the Constitutional Court is called upon to decide on the matter.”

“Wenn über die Auslegung einzelner Bestimmungen der Verfassung Zweifel entstehen und nicht durch Übereinkunft zwischen der Regierung und dem Landtage beseitigt werden können, so hat hierüber der Staatsgerichtshof zu entscheiden.”

In 1991 the Liechtenstein government introduced a bill in Parliament with the object of amending the Constitutional Court Act of 1925. In its comments on the provision regarding the Constitutional Court’s competence to decide on the interpretation of specific provisions of the Constitution, the government explained, inter alia, its views on the wording and purpose of Article 112 of the Constitution and in particular on the term “Government” which should be understood as referring to the Prince. At the preparatory stage, the Prince, in a letter addressed to the applicant, who at the time held the office of deputy head of the Liechtenstein government, had stated his disagreement with the proposed interpretation. The applicant explained the bill in Parliament when it received its first reading in April 1992. In the course of the discussions, the President of the Parliament questioned the interpretation of Article 112 of the Constitution, as contained in the government’s comments. The bill was passed by the Diet on 11 November 1992; however, the Prince failed to sign it so that it did not enter into force.

Under section 20 of the Liechtenstein Court Organisation Act (Gerichtsorganisationsgesetz, LGBl 1922 Nr. 16), judges are required to swear an oath, including the duties of loyalty to the Prince and of obedience to the laws and the Constitution.


Violation of Art. 14+P1-1;Not necessary to examine Art. 14+8;No violation of Art. 14+8 in connection with widow's pension;Not necessary to examine Art. 14+8 or 14+P1-1 in connection with alleged discrimination against applicant's late wife;No violation of Art. 13

The applicant is a British national born in 1956 and living in Bristol.

In December 1984 the applicant married Marlene Willis. They had two children: Natasha Uma, born on 24 March 1989, and Ross Amal, born on 2 August 1990. Mrs Willis died of cancer on 7 June 1996, at the age of 39. The applicant is the administrator of his late wife's estate.

Mrs Willis had been employed as a local authority housing officer. For the greater part of her married life, she was the primary breadwinner. She had paid full social-security contributions as an employed earner until 1994, and was subsequently entitled to contribution credits as a person unfit for work. On 3 November 1995 the applicant gave up work to nurse his wife and care for their children. Following his wife's death, he worked part time between 2 September 1996 and 6 November 1996, for an annual salary of 4,393 pounds sterling (GBP), but since this proved uneconomic he stopped working to care full time for the children.

On 4 November 1996 the applicant applied to the Benefits Agency for the payment of social-security benefits. He applied for benefits equivalent to those which a widow whose husband had died in similar circumstances to those of Mrs Willis would have been entitled, namely a widow's payment and a widowed mother's allowance, payable under the Social Security and Benefits Act 1992.

By a letter dated 18 November 1996, the Benefits Agency informed the applicant that the benefits he had claimed did not exist for widowers, and that his claim accordingly could not be accepted as valid. The letter continued:

“I am afraid I can only explain that the Government says that it has no plans to introduce a widowers' pension on the same line as the existing widows' benefits.

It may help if I explain the current policy underlying widows' benefits was established at a time when married women rarely worked. It is based on the assumption that women are more likely than men to have been financially dependent on their spouse's earnings and therefore more likely on widowhood to face greater financial hardship. The benefits themselves are concentrated on those widows who are perceived to have the greatest problems, those with children and older women who may have been out of the labour market for many years.

It is accepted that social patterns have changed considerably since the provisions were first introduced. However, it is still broadly the case that on bereavement, women are more likely than men to be in financial need. For instance, most widowers of working age will have been in employment before the death of their wives. They will not therefore have the same degree of difficulty in supporting themselves as widows who may have been out of the labour market for some time and may find it difficult to obtain paid work. Women on average earn less than men. So even for women who have been working, the financial loss on widowhood is likely to be significantly more than for men.

Widows' benefits are not means tested and are paid regardless of the level of the widows' earnings. The Government says that the extension of the benefits on the same basis to widowers would mean substantial extra expenditure in paying maintenance benefit to men who are likely to be already maintaining themselves by their earnings, and in some cases, very high earnings indeed. To make existing widows' benefits provisions available to widowers would add an estimated GBP 490 million to the annual Social Security budget. The Government is of the opinion that at a time when all areas of public expenditure are having to be carefully considered, this is simply not a best use of scarce resources.

In making these points, the Government says that it is in no way minimising the sad problems faced by widowers, in particular those left with small children to care for. For them there are already available benefits such as Child Benefit and One Parent Benefit, together with the range of income-related benefits, for example, Income Support for those not in full time work and Family Credit for low paid workers. In the Government's view this remains the fairest way of providing benefits to meet specific need rather than an extension of widows' benefits along the lines suggested. ...”

The applicant lodged a statutory appeal against this decision on 17 February 1997. The Social Security Appeal Tribunal declined jurisdiction on the basis that no appealable decision had been made.

The applicant currently receives child benefit and, in respect of his son Ross, received a disability living allowance and an invalid care allowance for a period following his wife's death. He is also in receipt of a widower's pension under Mrs Willis's occupational pension scheme. The applicant has capital, much of which is derived from a joint endowment policy (for which he and Mrs Willis had paid premiums) which matured on Mrs Willis's death, from which he obtains a further income of about GBP 150 per month. Because of his savings, the applicant does not qualify for means-tested benefits such as income support or family credit. All the social-security benefits he receives would also be received by a widow, who would in addition be paid a widow's payment and a widowed mother's allowance.

Under United Kingdom law, certain social-security benefits, including widow's payment, widowed mother's allowance and widow's pension, are paid for out of the National Insurance Fund. By section 1 of the Social Security and Benefits Act 1992 (“the 1992 Act”), the funds required for paying such benefits are to be provided by means of contributions payable to the Secretary of State for Social Security by earners, employers and others, together with certain additions made to the Fund by Parliament.

Male and female earners are obliged to pay the same social-security contributions in accordance with their status as employed earners or self-employed earners.

Under section 36 of the 1992 Act, a woman who has been widowed is entitled to a widow's payment (a lump sum payment of GBP 1,000) if:

(i) she is under pensionable age at the time when her husband died, or he was not then entitled to a Category A retirement pension; and

(ii) her husband satisfied certain specified social-security contribution conditions set out in a schedule to the 1992 Act.

Under the relevant part of section 37 of the 1992 Act, a woman who has been widowed (and who has not remarried) is entitled to a mother's allowance on certain conditions, the following being the conditions relevant to the circumstance of the present case:

(i) her husband satisfied the contribution conditions set out in a schedule to the Act; and

(ii) she is entitled to receive child benefit in relation to a son or daughter of herself and her late husband.

The widowed mother's allowance currently amounts to GBP 72.50 per week, with an extra GBP 9.70 per week in respect of the eldest eligible child, and a further GBP 11.35 per week in respect of other children.

Under section 38 of the 1992 Act, a woman who has been widowed (and who is not remarried) is entitled to a widow's pension if her husband satisfied the contribution conditions set out in a schedule to the Act; and

(i) at the date of her husband's death she was over the age of 45 but under the age of 65; or

(ii) she ceased to be entitled to a widowed mother's allowance at the time she was over the age of 45 but under the age of 65.

If the applicant were a woman, he could look forward to entitlement to a widow's pension at some stage between 2006 and 2009, depending on when his youngest child ceased to be a dependant, at which time he would no longer be entitled to the widowed mother's allowance.

Section 1(1) of the 1992 Act, which applies to the applicant, provides that no entitlement to a benefit arises unless a claim for the benefit is made in the prescribed manner and within the prescribed time.

At the relevant time, the time-limits for claiming a widow's payment and a widowed mother's allowance were set out in the Social Security (Claims and Payments) Regulations 1987 (Statutory Instrument 1987/1968), Regulation 19 of which provided:

“(6) The prescribed time for claiming benefits not specified in column (1) of Schedule 4 shall be –

(b) twelve months in the case of ... widow's benefit ...

(7) The periods of six and twelve months prescribed by paragraph (6) are calculated from any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.”

In addition, section 1(2) of the Social Security Administration Act 1992 provides, in relation to claims for a widow's payment:

“Where under subsection (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it –

(a) if the benefit is a widow's payment, she shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim is made or treated as made ... ”

The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) introduces two new social-security benefits, the widowed parent's allowance and the bereavement allowance. The widowed parent's allowance replaces the widowed mother's allowance. The bereavement allowance replaces the widow's pension. Both are payable to men and women who meet the relevant qualifying conditions. The 1999 Act also introduces a new social-security payment, called a bereavement payment, payable both to men and women in place of the widow's payment.

The relevant parts of the Act came into force on 9 April 2001 and allow any man whose wife dies before, on or after that date, or any woman whose husband dies on or after that date, to apply for the widowed parent's allowance. It also allows any man whose wife dies on or after that date to apply for the bereavement payment or the bereavement allowance in exactly the same way as a woman whose husband dies on or after that date.

The transitional provisions of the 1999 Act preserve the entitlements of women under the 1992 Act whose husbands died before 9 April 2001. Such women thus continue to be entitled to the widow's payment, the widowed mother's allowance and the widow's pension where the relevant qualifying conditions are met.

On 14 February 2002 Mr Justice Moses delivered judgment in the High Court in a case brought by four claimants, all of whom were widowers claiming, inter alia, that their ineligibility for widows' benefits under the 1992 Act was discriminatory contrary to Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1. Three of the claimants had been left with dependent children, with the result that the benefits at issue in their cases were the widow's payment and the widowed mother's allowance. The fourth claimant (Mr Naylor) had been left without dependent children, with the result that the benefits at issue in his case were the widow's payment and the widow's pension.

The defendant government department conceded before the High Court that there had been discrimination under Article 14 of the Convention taken in conjunction with Article 8 in relation to non-payment of the widowed mother's allowance. As regards the question of whether the claimants' complaints, in so far as they related to the widow's payment and the widow's pension, fell within the ambit of Article 8, Mr Justice Moses commented as follows:

“In my view, the availability of pecuniary support afforded by Widow's Payment and Widow's Pension does have a significant effect on the relationship of a family prior to the death of the spouse. They form a significant part of a family's plans for a secure future. ...

Financial planning seems to me to be a significant aspect of family life and the benefits play some part in allaying fears for the future of a surviving spouse. ...

Moreover, Widow's Payments and Widow's Pensions form part of a congeries of provisions, all of which are designed to provide support to a surviving spouse at different stages of her life. Widow's Payments ... are one-off payments made immediately on bereavement. Widowed Mother's Allowances are paid whilst she looks after dependent children and Widow's Pension payable in the longer term between the ages of 45-65 when she has finished bringing up her children. Viewed as part of a package, the payments and pensions payable to a widow are bound to be of concern to the family before the death of the husband.

Accordingly, for those reasons I conclude that the failure to make Widow's Payment and Widow's Pension available to a surviving widower falls within the ambit of Article 8(1). Thus Article 14 is itself engaged.”

In dismissing the claimants' arguments that the same complaints fell also within the ambit of Article 1 of Protocol No. 1, Mr Justice Moses commented:

“... In order to establish that the benefits in issue are their possessions, the claimants must establish a pecuniary right based upon their contributions. Absent such contributions, they have no possession within the meaning of Article 1 of the First Protocol. There is no hint, in any of the cases that the [Strasbourg] Court intended to depart from the fundamental principle that to come within the ambit of Article 1 of the First Protocol, a property right must be established. ...

... A deceased widow's entitlement to benefits depends upon the contributions of the deceased husband. ... A widower has no entitlement under domestic legislation arising from the contributions of his deceased spouse. He thus has no entitlement and consequently no possession within the meaning of Article 1 of the First Protocol.”

Prior to his examination of whether there was objective justification for non-payment of the widow's pension to widowers, Mr Justice Moses observed:

“Only Mr Naylor's case raises the issue of Widow's Pension. Although other claimants, in their written argument, raised the issue of future entitlement to Widow's Pension, such a claim is hypothetical, since they are too young to claim it now and may never become entitled should they re-marry, ... or should they co-habit ...”

Mr Justice Moses concluded that there was objective justification for the difference in treatment between widows and widowers as regards entitlement to a widow's pension under the 1992 Act.