CASE OF SIDIROPOULOS AND OTHERS v. GREECE

Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (abuse of process);Violation of Art. 11;Not necessary to examine Art. 6-1;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicants all live at Florina, in northern Greece, on the border of the Former Yugoslav Republic of Macedonia. Mr Sidiropoulos, an electrician, was born at Kastoria in 1949; Mr Dimtsis, a teacher, was born at Florina in 1957, Mr Anastassiadis, a farmer, was born at Florina in 1944; Mr Boules, a farmer, was born at Florina in 1941; Mr Sovislis, a farmer, was born at Florina in 1950; and Mr Seltsas, a dentist, was born at Florina in 1956.

On 18 April 1990 the applicants, who claim to be of “Macedonian” ethnic origin and to have a “Macedonian national consciousness”, decided together with forty-nine other people to form a non-profit-making association (somatio) called “Home of Macedonian Civilisation” (Stegi Makedonikou Politismou). The association’s headquarters were to be at Florina. According to clause 2 of its memorandum of association, the association’s objects were “(a) the cultural, intellectual and artistic development of its members and of the inhabitants of Florina in general and the fostering of a spirit of cooperation, solidarity and love between them; (b) cultural decentralisation and the preservation of intellectual and artistic endeavours and traditions and of the civilisation’s monuments and, more generally, the promotion and development of [their] folk culture; and (c) the protection of the region’s natural and cultural environment”.

On 12 June 1990 the applicants, who constituted the provisional management committee of the association, lodged an application under Article 79 of the Civil Code with the Florina Court of First Instance for registration of their association under the name of “Home of Macedonian Civilisation”.

On 9 August 1990 the court, having heard the applicants, refused their application on the following grounds:

“It is apparent from the documents lodged by the applicants and from the information which the Court may take into consideration of its own motion … that recognition of the association under this same name has already been sought, in an application on 19 January 1990 which was dismissed by this Court on 19 March 1990... Now that the words [the defence of national independence] that constituted the ground on which the aforementioned application was dismissed as being contrary to law have been deleted, a fresh application has been made for recognition of the association in question. Some of the founder members of the association who are on the provisional management committee … have engaged in promoting the idea that there is a Macedonian minority in Greece (see, for example, the newspapers Makhitis, Ellinikos Voras, Nea and Stokhos of 28 June 1990, 24 June 1990, 18 June 1990 and 28 June 1990 respectively); these newspapers strengthen the Court all the more in its previous opinion as none of the applicants has so far cast any doubt on the matters set out in these newspapers …, namely that they travelled to Copenhagen on 9 June 1990 and took part in the Conference on Security and Co-operation in Europe (CSCE), where they maintained that there was a Macedonian minority in Greece and even congratulated Professor Ataov, a Turk, who read out a text containing provocative and unacceptable allegations against Greece. One of the members of the provisional management committee, Mr Constantinos Gotsis, refused, in the course of proceedings in the Florina Court of First Instance against the publisher of the newspaper Stokhos, to accept that he was Greek… Besides, sixteen founder members of the above-mentioned association reportedly contributed money so that Christos Sidiropoulos and Stavros Anastassiadis could go to Copenhagen to defend their ideas… On the basis of the foregoing circumstances, which have been proved, the Court considers that the true object of the aforementioned association is not the one indicated in clause 2 of the memorandum of association but the promotion of the idea that there is a Macedonian minority in Greece, which is contrary to the country’s national interest and consequently contrary to law.

On 7 September 1990 the applicants appealed against that judgment to the Salonika Court of Appeal. After hearing the applicants, that court dismissed their appeal on the following grounds:

III. In view of the strong public interest at stake, the court, when examining the grounds of an application being heard under the special procedure, as in the present case, may and indeed must take into consideration, of its own motion, matters over and above the evidence submitted to the court by the parties – in particular, real events and situations reported in publications (books, magazines, newspapers, etc.) accessible to any interested person – and this notwithstanding the ordinary rules on the burden of proof. On the basis of the well-known facts set out below, whose validity the Court does not doubt, the Court accepts the following in relation to the case. Ancient (classical) Macedonia is delimited to the south by the Aegean Sea and the Kamvounia, Pieria and Olympus mountains; to the north by Lake Ohrid, the Prespa lakes, and the Babuna-Skomion (Rila Planina) and Rhodope mountains; to the east by the river Nestos; and to the west by Mount Grammos and the Pindus range (see: Makedonia, Ekdotiki Athinon, pp. 10 et seq.; A. Vakalopoulos, Synchrona Valkanika Ethnologika Provlimata, p. II; G. Mintsis, Istoria tou Makedonikou Zetematos, p. 29). Its inhabitants (the Macedonians) were one of the most ancient Greek tribes, closely related to the Thessalians, who were also of Aeolian origin, and especially to the Magnesians. Their language was one of the oldest Greek dialects, akin to Aeolian and Arcado-Cyprian and also to the Mycenean dialect. Their religion was that common to the Greeks and their myths and traditions were similar to those elsewhere in the Greek world (see H.G. Wells, The Outline of History, trans. K. Yeroyannis as Pankosmios Istoria, Pergaminai, Chapter B 1, p. 439, and Chapter I, p. 367; Will Durant, Pankosmios Istoria tou Politismou, ed. A. Daskalakis, 1965, p. 483V; Pandit Jawaharlal Nehru, Maties stin Pankosmia Istoria, trans. P. Drakou, Faros, 1954, p. 25; A. Vakalopoulos, op. cit., pp. 14 et seq.; M. Sakellariou, I taftotita ton Makedonon, communication to the Academy of Athens on 8 November 1988; K. Vavouskos, correction of the draft article on Macedonia for the new Australian encyclopedia Australian People, speech to the special meeting of the Academy of Athens on 7 March 1989; N. Andriotis, The Language and the Greek Origin of the Ancient Macedonians, Salonika, 1978). The Macedonian kings Philip II and Alexander the Great acted not just as Greeks but as pan-Hellenists, in the sense that they incarnated the old idea of the creation of a unified Greek State by bringing together the smaller Greek territories; they were bearers, and the latter was a disseminator, not of an incomplete Macedonian civilisation but of Greek civilisation (see Johann Gustav Droysen, Istoria tou Megalou Alexandrou, trans. with commentary etc. by Renos Apostolidis, 1988, pp. 1–9 and 28 et seq.; Istoria tou Ellinikou Ethnous, Ekdotiki Athinon, vol. D, pp. 10 et seq.). And in later years, especially after the appearance in the Balkans of the Bulgars and Slavs (6th–7th cent. A.D.), the Macedonian region as defined above was a stronghold and bastion of Hellenism just as it had been in ancient times. Polybius describes Macedonia as a ‘shield’ and praises the Macedonians because they fought the barbarians (non-Greeks) to ensure the safety of the (other) Greeks (Polybius, Historiae, Leipzig edition, 1898, vol. 3, book 9, p. 35). For the Byzantine period the same is affirmed by the French historian Paul Lemerle in his classic work Philippe et la Macédoine orientale, Paris, 1945, pp. 516–17. In addition, a guide to Salonika written by German historians and archaeologists during the last world war states that ‘the waves of migrating peoples which frequently swamped the Balkan peninsula broke on this most powerful bastion of Hellenism’ (see A. Vakalopoulos, op. cit., pp. 17 et seq.). Nowhere in either the recent or the distant past are Macedonia and the Macedonians mentioned in any official document as a specific ethnic group. The Treaty of Berlin, and the Treaty of San Stefano which it replaced, make no reference to such a notion. In the official Turkish census of 1905 there is mention of Greeks and Bulgarians, or inhabitants whose identity was partly Bulgarian, in the vilayets of Salonika and Monastir, where there were Greek ethnic majorities; but no mention of Macedonians, since nobody declared such descent (A. Vakalopoulos, op. cit., pp. 84 et seq.; G. Roussos, Neoteri Istoria tou Ellinikou Ethnous, vol. 5, pp. 83 et seq., which includes a reproduction of the census tables). In his work Voyage dans la Macédoine (Paris, 1831) E.M. Cousinery, the French Consul in Salonika, says that the Bulgarians (as all speakers of Slavic were then called) never penetrated the forests beyond Vermion, where the population remained Greek (see vol. 1, pp. 67–68, and vol. 2, p. 140). With reference to the same area, the German geographer Leonard D. Schultze observes that in their language, traditions, cultural affinities, ethnic preferences and religion, its inhabitants are as legitimately and authentically Greek as their brothers further to the south (Macedonien Landschafts- und Kulturbilder, Jena, 1927, p. 106). He reiterates the words of Lord Salisbury, Great Britain’s representative at the Congress of Berlin, on 19 June 1878, when he said that ‘Macedonia and Thrace are just as Greek as Crete’ (K. Vavouskos, op. cit., p. 84). The fact that a small part of this region’s population also speaks a language which is basically a form of Bulgarian with admixtures of Slavic, Greek, Vlach and Albanian words, does not prove that this minority is of Slavic or Bulgarian origin; in isolation this criterion is of no value whatsoever, as is borne out by the experience in the recent past of the forced migration from Asia Minor to Greece of populations which were indisputably Greek but totally ignorant of the Greek language. It is indicative that among the fighters of the Macedonian campaign (1904–08) there were men who spoke the Bulgarian-Slav dialect but who had a purely Greek national consciousness; for example Kotas, Dalipis, Kyrou, Gonos and others. In his Short History of the Bulgarian, Serb and Romanian Orthodox Churches (Moscow 1871), the Russian historian E. Golubinstii wrote of these non-Greek-speaking Greeks that they had an implacable hatred of and scorn for all Slavs and Bulgarians (see K. Vavouskos, op. cit., pp. 85 et seq.). After the Balkan Wars of 1912–13, 51.57% of the region corresponding to ancient Macedonia was under Greek domination, 38.32% under Yugoslav domination, and 10.11% under Bulgarian domination (see Makedonia, Ekdotiki Athinon, p. 504, which includes a map). In this way a territorial status came into being. There were exchanges of population, either voluntary or following bilateral agreements such as the Kafantari-Molov agreement between Greece and Bulgaria in 1926; and Greeks from Turkey populated the Greek part of Macedonia, so that only Greeks remained in this part of Macedonia, even if some of them were bilingual. Greek Macedonia thus became a completely homogeneous part of Greek territory (see K. Vavouskos, op. cit., p. 92; and A. Vakalopoulos, op. cit., p. 31, who refers to the work of the German Stephan Ronart, Griechenland von heute). This was especially true in the period immediately following the Second World War (1945–49), when almost all the bilingual inhabitants of this region who did not have a Greek national consciousness emigrated to neighbouring countries (see E. Kofos, Nationalism and Communism in Macedonia, Salonika, 1964, pp. 185 et seq.). There they experienced a mutation of their partly Greek or partly Bulgarian nationality into a ‘Macedonian’, i.e. a Slav-Macedonian, nationality (see E. Kofos in Yugoslavia Today, Athens, 1990, p. 50; Kentron Apodimu Ellinismou, Makedonia, Istoria kai Politismos, Ekdotiki Athinon, 1989, pp. 29 et seq.). This situation was preceded by a number of violent incidents, such as the Ilinden revolt, in which the Bulgarians claim to have revolted against the Turks on 2 August 1903 at Krusevo, a town near Monastir whose ethnic composition was overwhelmingly Greek. In fact they turned against the town’s Greek inhabitants, whom they tried to wipe out with the cooperation of the Turks and without causing the rest of the population any significant harm (see K. Vavouskos, op. cit., p. 89; Douglas Dakin, The Greek Struggle in Macedonia 1897–1913, Salonika, 1966, pp. 92 et seq.; Douglas Dakin, E.K. Mazarakis-Ainianos, E. Kofou and I. Diamantourou, O Makedonikos Agonas, Athens, 1985, pp. 30 et seq.; G. Mintsis, op. cit., pp. 53 et seq.). Until 1914 ‘Macedonia’ as a Slavic State and ‘the Macedonian nation’ as a specific nation were unheard of. The part of Macedonia which fell under Yugoslav domination, like that which fell to Bulgaria, is a narrow strip of land along the Greek border and represents only a small part of Serbia. Skopje, which today is the capital of the misleadingly named Socialist Republic of Macedonia of the Federal Yugoslav State, is far away from Macedonia. The S.R.M. was founded under the German occupation (see E. Kofos, The Impact of the Macedonian Question on Civil Conflict in Greece 1943–1948, Athens, 1989). Its foundation was part of a deliberate strategy according to which, when the regions of Skopje and Tetovo (which belonged to ancient Dardania, a non-Macedonian country) were ceded, a Serb population could be said to exist in the sparsely populated part of Macedonia that lay beyond the Greek borders and contained Serbs, Greeks, Greek Vlachs, Muslims with a partly Turkish identity, and Bulgarians; a Slav-speaking population with a specific dialect and an unstable national consciousness (see A. Vakalopoulos, op. cit., pp. 12 et seq.; N. Andriotis, The Confederate State of Skopje and its Language, Athens, 1957, with relevant bibliography). The long-term purpose of founding the S.R.M. was to re-establish a Slav Macedonian State with access to the Aegean. One of the means to this end is to enlist in various ways bilingual Greeks from Greek Macedonia. Setting up an association called ‘Home of Macedonian Civilisation’ at Florina is part of this effort and applies a directive issued by Slav organisations abroad. The aim is to create a Macedonian Question with international ramifications (see statements by Serb politicians to the Borba newspaper, 8 November 1990 and to Nin magazine, 1 February 1991). The parties applying for recognition of the above association are the enablers in this operation. Among them are Christos Sidiropoulos and Stavros Anastassiadis, who appeared at an international conference to dispute the Greek identity of (Greek) Macedonia, the former in particular by distinguishing between Macedonians and Greeks (see the Makedonikos Voras newspaper of 17 March 1991, which includes photographs of the above persons among sixteen members of the ‘Macedonian’ delegation at the CSCE in Copenhagen; and the Ethnos newspaper of 5 February 1991, p. 10). This, in combination with the name of the proposed association and with the whole content of its memorandum of association, renders at least dubious the association’s aims, which according to the founder members’ seemingly lawful statement in clause 2 of the memorandum of association, consist in the cultural, intellectual and artistic advancement of its members, cultural decentralisation, etc. This assessment is supported by the content of clause 3, paragraph 2, of the same memorandum of association, which states that all youths in the Florina area will be enrolled in the proposed association’s youth section. It is clear from this that there is a danger that the immaturity of young people will be exploited and that youths will be trapped by suitable propaganda in an ethnologically non-existent and historically evacuated Slav-Macedonian minority. Clause 4 of the same memorandum of association lays down the condition that enrolment in the association is subject to written acceptance of the association’s principles. Nowhere in the association’s memorandum of association, however, are these principles defined. Thus the memorandum of association does not provide a clear idea of who will enrol, since a clear definition of the principles governing the proposed association is deliberately omitted. Lastly, the very name of the association may be a source of confusion, because at first sight it creates the impression that it refers to Macedonia’s Greek civilisation, whereas in reality it envisages a specifically Slavic civilisation which does not exist in the region in question. Altogether, this Court has good reasons in the light of the foregoing to believe that the purpose of using the term ‘Macedonian’ is to dispute the Greek identity of Macedonia and its inhabitants by indirect and therefore underhand means, and discerns an intention on the part of the founders to undermine Greece’s territorial integrity. The impugned refusal of the application in question was therefore justified, notwithstanding that it was based on shorter and partly different reasoning; and the arguments to the contrary put forward in the present appeal must fail.

On 20 June 1991 the applicants appealed on points of law to the Court of Cassation, relying, in particular, on Articles 2, 4, 5 and 12 of the Greek Constitution and the corresponding provisions of the Convention. They maintained that, contrary to law, the Court of Appeal had (a) not confined itself to reviewing the lawfulness of the establishment of their association – namely whether the requirements of Articles 78 to 80 of the Civil Code had been satisfied – but had reviewed its desirability, relying on the presumed intentions of the founder members, which (assuming them to have any reality) could not, however, be the subject of judicial review at the stage of granting the association legal recognition; (b) taken into consideration information (in particular, irresponsible and unfounded press articles concerning some of the founder members) that had not been produced by the parties; (c) accepted as true certain matters that were of decisive importance for the outcome of the proceedings without ordering evidence to be taken to establish whether they were in fact true; (d) distorted the content of the association’s memorandum of association; and (e) not given sufficient reasons in its judgment.

In a pleading filed on 25 February 1994 the applicants essentially reiterated the complaints they had set out in their appeal on points of law and stated that the refusal to authorise the founding of their association was based on assessments and assumptions as to their personalities and ideological and historical convictions which in turn rested not on the association’s memorandum of association but on suspect anonymous publications.

In a judgment of 16 May 1994 the Court of Cassation upheld the Court of Appeal’s judgment. It considered that the grounds of appeal were vague and unfounded. It pointed out that under the special procedure for granting recognition to associations, the inquisitorial system allowed the court to take into account, of its own motion, matters which had not been mentioned by the parties and that the court was not bound by the parties’ evidence and assertions. As to the “matters that were of decisive importance for the outcome of the proceedings”, the parties had not specified the matters in question in their appeal. The Court of Appeal had accepted the truth of certain circumstances in reliance on the content of the association’s memorandum of association and on matters that were common knowledge and supported by documents such as the press articles; and there had not, moreover, been any distortion of the content of the memorandum of association. The Court of Cassation also held that sufficient reasons had been given in the Court of Appeal’s judgment. It further noted that the assertion that Articles 2, 4, 5 and 12 of the Constitution, together with the Rome Convention, had been infringed referred not to the Court of Appeal’s judgment but to the judgment of the Florina Court of First Instance; even supposing that the applicants had put forward a ground of appeal based on Article 559 § 1 of the Code of Civil Procedure, it would have had to be dismissed as vague since they had not stated in what way the Court of Appeal had made a mistake in interpreting or applying those provisions.

Article in the 5 February 1991 issue of the Ethnos newspaper:

“Skopje: Skopje has made use of three Greeks – one of them a public employee – who made allegations of repression against the Greek Government to a representative of the American embassy visiting villages in Florina.

The three testified against Greece at a meeting of the Conference on Security and Co-operation in Europe which was held in Denmark on 15 June 1990. According to the American Macedonian Association, the men in question are Christos Stergiou Sidiropoulos, Constantinos Gotsis, and Stavros Anastassiadis.

Sidiropoulos is a forestry official employed by the Greek State. These and other Greeks belonging to an association called ‘Home of Macedonian Civilisation’ are controlled by Vasil Tuvorkovsky, a member of the central committee of Yugoslavia’s Presidential Council and a frequent visitor to Greece, where he stays in a mobile home in Halkidiki.”

Article in the 17 March 1991 issue of the Ellinikos Voras newspaper:

“First headline: Skopje’s Trojan horse in Salonika’s Court of Appeal tomorrow – Expulsion of ringleader S. Todorovski – Decisive documents.

Second headline: Leader of secret organisation is a public servant – Spectre of ‘Aegean Macedonians’ – How the international plot against Greece was set up; who will be promoting it tomorrow – Tomorrow’s appeal hearing in Salonika carries out a directive issued in 1989. Radin, Popov, Skopje and ‘Consul’ Todorovski control the local leader – Application is a trap designed to vilify Greece in the International Court.

As dramatic developments in a rapidly disintegrating Yugoslavia and the broader Balkan region begin to resemble a thriller, with the emergence of a ‘new order’ in the Balkans whose targets include Greek Macedonia and Thrace, the leader of a secret organisation called ‘Macedonians of the Aegean’, Christos Sidiropoulos, also a full-time employee of the Greek State, will be trying in Salonika tomorrow to embroil Greece in a satanic plot organised abroad by Skopje and the independence movements it runs in Australia. This accounts for the announcement that the Yugoslav consul in Salonika, Sasko Todorovski, is to be expelled just 72 hours before tomorrow’s hearing. Todorovski’s cover was blown when Ellinikos Voras revealed on 17 February that he was the leader of a triangle opposed to Greek Macedonia and including the American vice-consul, Colonel Donald Miller, and the educational adviser of the American embassy in Athens, John Kiesling.

It is also known that Donald Miller left Salonika ‘overnight’ for the United States when Ellinikos Voras exposed his dark ‘triangular’ role in the State Department’s contemptible report. Todorovski is a tool of the Yugoslav secret service and used agents to lead an international destabilisation operation in Greek Macedonia.

One stage of this destabilisation operation unfolds tomorrow in Salonika. The city’s Court of Appeal will consider the application by seventeen inhabitants of the prefecture of Florina for approval of their memorandum of association for establishing an association called ‘Home of Macedonian Civilisation’. The memorandum of association is drafted with expert care so as to provide full international legal cover for a well-planned destabilisation of the country – the legal wrapping of a Trojan horse on Greece’s borders. The application in question was refused by the lower court at Florina, where an earlier, less veiled version drawn up by the same persons had also been refused. The new application in the Salonika Court of Appeal tomorrow will be heard as ‘a straightforward everyday case’.

However, evidence and information from Slavic sources reveals the following.

(a) The leaders of the seventeen, most of whom were ensnared by what seemed an innocent ‘cultural’ project, are Christos Sidiropoulos from Amindaio, a forester with the Ministry of Agriculture, and Stavros Anastassiadis, a wealthy businessman from Meliti in the prefecture of Florina, both of whom are signatories of the application. The two also appeared last June at a meeting of the Conference on Security and Co-operation in Europe (CSCE) held in Copenhagen on the subject of human rights, declaring that they were Greek citizens but Macedonian nationals, and denounced the Greek State for ‘oppressing’ the ‘Macedonians’ of ‘Aegean Macedonia’ and ‘depriving’ them of all human rights. In fact, according to the newspaper run by the émigré independence movement in Australia, Australian Macedonian (1/8/1990), the two men carried letters containing similar allegations from Petros Dimtsis of Kato Klines, a village in the prefecture of Florina, who lodged a complaint in Strasbourg in May 1989, and from Stefos Skenderis, a teacher in the Greek State education service who lives at Florina.

(b) As disclosed by the ‘Australian-Macedonian Committee for Human Rights’ on 1 August 1990, Christos Sidiropoulos is the invisible leader of a secret phantom organisation of ‘Aegean Macedonians’, the ‘Central organising committee for the Macedonian human rights of the Macedonians of Aegean Macedonia’. In 1984 this organisation distributed by post a manifesto containing the ‘demands of the Macedonians of Aegean Macedonia’ which caused the Greek people profound unease and distress at the activities of invisible agents belonging to an independence movement within Greek Macedonia. This secret phantom movement remains unknown; however, it claims to be based in Salonika and it is certain that it is directed from abroad and imports all its printed propaganda against Greek Macedonia from foreign countries.

(c) The application to be heard tomorrow in the Salonika Court of Appeal for registration of the ‘Home of Macedonian Civilisation’ will in fact set in motion a provocation of the Greek system of justice which was planned abroad as far back as 1989. The aim is to trap Greece into a series of legal refusals which will then be used against Greece by Skopje in the European Court of Human Rights and the Committee of Ministers at the Council of Europe in Strasbourg. The plot is satanic because if the Greek courts accept the application by the leader of the ‘Aegean Macedonians’, Greece will be legalising a Trojan horse sent by Skopje to trap unwitting bilingual Greek Macedonians and deliver them into the claws of foreigners and of propaganda inspired from abroad.

The Slavic plot which is to be submitted tomorrow in Salonika to unsuspecting appeal court judges is part of a directive released by independence activists in Australia two years ago, in 1989, following their first appearance on the international stage at the Council of Europe in Strasbourg. At the time ‘Macedonian’ professors Michael Radin and Chris Popov, who are Australian citizens, released a plan of action entitled ‘The road to Macedonian human rights’ on behalf of the Salonika ‘section’. The report was written in English and printed abroad and its title mentions that it is a publication of Christos Sidiropoulos’s secret phantom organisation in Salonika. It contains 55 pages; page 38 contains the following revelations:

‘The following scenario is a convincing way of lawfully challenging the denial of Macedonians’ rights by the Greek State. Macedonians from Aegean Macedonia could, for instance, set up an association for popular dances with the name “Macedonian Folklore Association”. The association will undoubtedly be forbidden by the laws mentioned above, which prohibit establishing groups on the ground of nationality. Provided that all appeals to the lower courts are turned down, the case will go through the Greek judicial system until it reaches the country’s highest court, the Court of Cassation. The refusal of an appeal at that level will mean that all domestic legal remedies have been exhausted. One of the conditions for submission of a case to the Convention for the Protection of Human Rights will thus have been fulfilled. Within six months of the Supreme Court’s decision an application can be submitted on the ground that the right to freedom of peaceful assembly and association has been violated, with the result that the Court of Human Rights, or the Committee of Ministers of the Council of Europe, will deliver a decision against Greece.’

This foreign directive will be carried out to the letter tomorrow when the Salonika Court of Appeal considers the application to establish the ‘Home of Macedonian Civilisation’.

Christos Sidiropoulos and Stavros Anastassiadis are acting under the control of independence activists Radin and Popov who drew up the above report or directive. With them as leaders, along with two others from Skopje and about ten other representatives of ‘Macedonian’ independence movements from the United States, Canada and Europe, Sidiropoulos and Anastassiadis appeared in Copenhagen at a meeting of the Conference on Security and Co-operation in Europe to accuse Greece at a press conference organised by Yugoslavia’s official diplomatic delegation to the CSCE. At the conference Sidiropoulos was seated beside the secretary of the Yugoslav embassy, who directed the discussion with the foreign journalists.

On 15 July 1990 Macedonia, a newspaper in the service of Slav independence activists fighting in the United States and Canada for the separation of Greek Macedonia and its incorporation into Skopje, published a revealing photograph in which Sidiropoulos and Anastassiadis appear beside their instructors Radin and Popov and their leaders from Skopje in the midst of the group of agents presented by the Yugoslavian diplomatic mission at the CSCE. In this newspaper, which is run by Slav independence activists, the photograph and report appear under the headline ‘Yugoslavia protecting minority rights’.”

Article 4 § 1 of the Constitution provides:

“All Greeks shall be equal before the law.”

Article 12 § 1 of the Constitution provides:

“All Greeks shall be entitled to form non-profit-making unions and associations, in accordance with the law, which may not, however, make the exercise of this right subject to prior authorisation.”

The Civil Code contains the following provisions concerning non-profit-making associations:

“A union of persons pursuing a non-profit-making aim shall acquire legal personality as soon as it has been entered in a special public register (of associations) held at the Court of First Instance for the place where it has its headquarters. At least twenty persons shall be necessary to form an association.”

“In order to have an association registered, its founders or its management committee must lodge an application with the Court of First Instance. The application must be accompanied by the document establishing the association, a list of the names of the members of the management committee and the memorandum of association dated and signed by the committee’s members.”

“To be valid, the memorandum of association must specify (a) the object, name and headquarters of the association; (b) the conditions of admission, withdrawal and expulsion of its members, together with their rights and obligations; …”

“The Court of First Instance shall allow the application if it is satisfied that all the legal requirements have been complied with…”

“The Court of First Instance shall order the dissolution of an association … (c) if the association pursues aims different from those laid down in its memorandum of association or if its object or its functioning prove to be contrary to law, morality or public order.”

The non-contentious procedure (ekoussia dikeodossia) followed by the courts when they examine, among other things, applications to register an association is governed by the following provisions:

“The court may of its own motion order any measure which might lead to the establishment of relevant facts, even if these are not mentioned in the parties’ submissions…”

“2. Where the court directs that evidence is to be taken, such evidence shall be brought by one of the parties.

The court may of its own motion order any measure that it considers necessary for establishing the facts, even if in so doing it departs from the provisions governing the taking of evidence.”

Furthermore, Article 336 § 1 provides:

“The court may, of its own motion and without directing that evidence is to be taken, have regard to matters which are so widely known that their truth cannot reasonably be put in doubt.”

Lastly, Article 345 allows a party who does not have to discharge the burden of proof to adduce refuting evidence.


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The first applicant, Mrs Martha Ullmann, and the second applicant, Mr Markus Ullmann, are German nationals who were born in 1966 and 1968 respectively and live in Lappersdorf. They were represented before the Court by Ms C. Schenk and Mr F. Schwinghammer, lawyers practising in Regensburg.

The applicants, a married couple, are the parents of a girl, Mi., born on 28 June 2001, and of a boy, Ma., born on 23 September 2003.

Since his birth Ma. has been in hospital three times, namely from 29 October 2003 to 12 November 2003 because of pneumonia, from 20 November 2004 until 2 December 2004 due to a haemangioma in his mouth and from 12 January 2004 to 28 March 2004 due to bronchitis. Otherwise, he has been looked after only by his parents, mainly his mother.

During this last stay in hospital, acute shortness of breath put his life at risk, which was saved by intubation. Several radiographies disclosed fractures of several ribs and of his right upper arm. Having consulted a radiological expert, the doctors treating him concluded that Ma.’s injuries had not been caused by illness, in particular not by a pathological structure of his bones, but by third persons. Having been confronted with the suspicion of having ill-treated their child, the applicants vigorously denied having injured Ma.

On 4 February 2004 the Regensburg District Court, having regard to Ma.’s injuries and having heard the applicants, withdrew the applicants’ right to determine Mi.’s and Ma.’s whereabouts and their right to decide on their health care by way of an interim injunction.

Both children were placed in foster families. The District Court subsequently excluded the parents’ access to their children for approximately one month and then allowed the parents supervised contact with both Mi. and Ma. once a week and later once every two weeks.

In their report of 21 July 2004 to the District Court, the paediatricians G. and W., who had also consulted Sch., a child radiologist, concluded that the nine fractures of his ribs Ma. had suffered and the fracture of his right upper arm had not been caused by an illness, in particular not by osteogenesis imperfecta (“OI”, commonly known as brittle bone disease), or by his medication. They could thus only be explained by the use of massive force by an adult or teenager on at least two occasions. At least some of the fractures had been caused during periods of time in which Ma. had stayed only with his parents and not in hospital.

In his report dated 14 September 2004, psychiatric expert Kr. concluded that, even though neither of the parents was prone to violence, it could not be excluded that one of them had ill-treated Ma. The mother did not suffer from a psychiatric illness, but could have been under strain from raising Ma. with his fragile health in addition to Mi. However, it was more likely that Ma.’s father, who suffered from a narcissistic personality disorder and was unhappy with the strain put on the rest of the family by Ma., had caused the boy’s injuries.

In his report of 12 October 2004, psychological expert Ki. found that the applicants’ family did not as such pose high risks of ill-treatment. Assuming that one of the parents had ill-treated Ma., there was an enhanced risk of repeated ill-treatment, particularly for Ma., but also for Mi., as the parents denied any responsibility for Ma.’s injuries, which made it difficult to provide them with assistance.

On 2 December 2004 the Regensburg District Court withdrew the applicants’ parental custody of Mi. and Ma. and appointed a guardian for the children. Relying on Articles 1666 and 1666a of the Civil Code (see Relevant domestic law below), it found that the children’s physical well-being had been endangered by the applicants’ abuse of their parental authority and that there were no less intrusive means to avert this danger.

Having heard the applicants and their counsel, the first applicant’s brother, the children’s curator and curator ad litem, the Youth Office and the experts G., Kr. and Ki. in person, the District Court was convinced that Ma. had been subjected to physical ill-treatment in his parents’ home. In particular, having regard to the findings of expert G. as to the periods of time in which the fractures, which had not been caused by an illness, had probably occurred, and to the fact that Ma.’s state of health had never deteriorated in hospital, the District Court found that it could be excluded that the boy’s numerous injuries had occurred in the two different hospitals in which he had been treated since his birth. They had thus been caused at Ma.’s home either by one of the parents or by both of them. The psychological and psychiatric expert reports had disclosed that the parents, who continued to deny having injured Ma., had been partly overstrained by having to raise two young children. This finding was not put into question by the fact that four paediatricians whom Ma. had seen on several occasions due to shortness of breath had not noticed any signs of ill-treatment.

As to Mi., the District Court considered that she risked becoming the victim of ill-treatment in the future as well. It was impossible to avert the danger to her in practice by less intrusive measures.

On 4 May 2005 the Nuremberg Court of Appeal, having heard the applicants and their counsel, the experts G. and Sch., the applicants’ expert V., a doctor having treated Ma. in hospital, the children’s guardian and their curator ad litem in person, and having regard to the written expert reports submitted by Kr. and Ki., dismissed the applicants’ appeal concerning the withdrawal of custody of Ma. It quashed the withdrawal of custody of Mi. as of 20 May 2005 but imposed several conditions on the parents aimed at safeguarding and controlling Mi.’s welfare.

In a decision running to thirty-one pages the Court of Appeal found that withdrawing the parents’ custody of Ma. was presently the only means of averting danger to the boy’s welfare.

Having regard to the expert reports of G. and Sch., the Court of Appeal found that three of the boy’s ribs had been broken during a period when he was at home, another four had been broken during a period when Ma. was both in hospital and at home, and on two further occasions two and three ribs respectively had been broken in periods in which Ma. had stayed at home. The boy’s right upper arm had been broken in a period in which he had stayed both at home and in hospital. None of these injuries could have been caused by an accident. The Court of Appeal conceded that the experts G. and Sch. had partly modified their diagnosis compared to their initial report of 21 July 2004, finding that Ma. had been injured not only on at least two, but on at least five occasions, and partly modifying the periods in which the injuries had occurred. However, their new findings were based on a particularly thorough further examination of the radiographies in question and were thus convincing.

Moreover, having regard to the reports of experts G. and Sch. and to the two reports dated 10 March 2005 and 20 April 2005 drafted by a laboratory for human genetics, no illness, in particular no osteogenesis imperfecta, could be diagnosed which could have caused Ma.’s bones to break. It was therefore virtually certain that Ma.’s injuries had been caused by an abuse of parental authority. It could also not be explained otherwise that several radiographies done since Ma.’s separation from his parents in January 2004 had not disclosed any further fractures which had occurred either during his stays in hospital or with his foster family. The Court of Appeal assumed that the parents had not been aware that Ma. had suffered numerous fractures before the injuries had been discovered in hospital. As it could not be determined which of the parents, who had both denied being responsible for the injuries, had caused those injuries, the boy could not currently be returned to his parents as his welfare would otherwise be at risk.

In reaching that conclusion, the Court of Appeal also had regard to the submissions of a paediatric expert consulted by the applicants on their own motion, V., who had invited the court to examine more thoroughly whether Ma. was suffering from osteogenesis imperfecta. A report drawn up on 10 March 2005 by a human genetics laboratory obtained by the applicants had concluded that it could not be totally excluded that Ma. was suffering from such a condition. The Court of Appeal, on V.’s proposal, had then obtained an additional expert report dated 20 April 2005 from that laboratory, which found after another analysis that no such genetic illness could be diagnosed. It had refused to allow V. to examine Ma., arguing that it had already obtained a report from a paediatric expert.

In the Court of Appeal’s view, which did not follow the additional report submitted by expert Ki. in this respect, the physical well-being of Mi., who had never been injured and had a close relationship with both parents, was no longer endangered if she was returned to her parents under conditions safeguarding her well-being. It further stated that it considered Ma.’s separation from his family not to be permanent, but that his return could be examined when he reached the age of three and went to kindergarten, provided that Mi.’s return to her family had gone well.

On 8 June 2005 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They claimed that the decisions of the family courts ordering their separation from Ma. disproportionately interfered with their right to respect for their family life. It had not been proved that either or both of them had injured the boy and the courts had not sufficiently examined whether the boy suffered from a condition which made his bones particularly fragile.

On 23 June 2005 the Federal Constitutional Court, without giving reasons, declined to consider the applicants’ constitutional complaint (file no. 1 BvR 1230/05).

On 9 October 2007 the Nuremberg Court of Appeal, having consulted psychological expert Ki., decided to retransfer custody of Ma. to his parents as of 19 October 2007 under several conditions, including psychological assistance for the parents and regular medical examinations of the boy. It found that the applicants had sought the help of therapists and had had regular access to Ma., who was now old enough to complain to others about potential ill-treatment. Therefore, the withdrawal of the parents’ custody was no longer necessary to safeguard Ma.’s well-being. Since then Ma. has again been living with the applicants.

Article 1666 § 1 of the Civil Code provides that the family courts are under an obligation to order the necessary measures if a child’s welfare is jeopardised.

Pursuant to Article 1666a § 1 of the Civil Code, measures entailing a child’s separation from his or her family are permissible only if the danger to the child’s welfare cannot be averted by other means, including public assistance. Article 1666a § 2 of that Code stipulates that full parental custody may only be withdrawn if other measures have proved ineffective or have to be considered insufficient to remove the danger.


The applicant is a German citizen, born in 1943 and residing in Kaisheim.

A previous application No. 29857/96 by the applicant concerning criminal proceedings was declared inadmissible.

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

A. The administrative proceedings

On 19 October 1993 the Munich Labour Office (Arbeitsamt) dismissed the applicant’s request of 9 March 1993 for payment of unemployment benefits because he had not fulfilled the statutory condition of having been employed for a minimum of 360 days within the last three years at the time of his request. The Office considered that the applicant had performed functions as manager and thus as employer in Austria.

On 18 November 1993 the applicant lodged an administrative appeal (Widerspruch) against the above decision, arguing that he had worked as an employee in Austria, where he had paid social security contributions.

On 22 March 1994 the Munich Labour Office dismissed the applicant’s administrative appeal without giving reasons on the substance.


Violation of Art. 7;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - national proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in 1963 and lives in Lyons.

On 16 October 1984 the Lyons Criminal Court found the applicant guilty of drug trafficking involving ten kilograms of hashish and sentenced him to three years' imprisonment.

In a judgment of 14 April 1997 the Lyons Criminal Court found the applicant guilty of a drug offence, following the discovery in his garage of two bags containing some fifty-seven kilograms of cannabis, and sentenced him to eight years' imprisonment, in addition ordering his exclusion from French territory for ten years. It gave the following reasons for its decision:

“We have a young man returning from Guadeloupe in late 1993, with no job or verifiable income, who, having tried his hand in turn at property, trading in linen, crockery, air-conditioners, foie gras and, incidentally, counterfeit 200-franc notes (??), found himself, somehow or other – he repeatedly tried to explain this with a story about profitable 'air-conditioners' – in possession of a considerable pile of money, more than 61 million old francs, at his home (see D351), scattered about and hidden in the unlikeliest places (such as the maintenance hatch under the bath!!).

Even better, the arrest on 7 December 1995 in the morning resulted in the seizure, without a warrant, of two bundles of drugs, consisting of more than 50 kilograms of prohibited substances, laid out, packed and wrapped in a manner bearing little resemblance to a craft industry.

Nobody claimed them – which one of H. or Achour turned the other one in??

What is more, H. was in possession of 3 kilograms of the same kind of resin (see the expert report, D339) and 33,000 francs in cash, stored in the glovebox of his car.

The circumstances outlined above amount to two pieces of evidence against Achour, which elicited nothing more than vague and inconsistent explanations in which he accused H. of being the delivery man, claimed ignorance as to the nature of the two bundles (!!!), and referred again and again, as a kind of 'judicial trump card', to the money-spinning air-conditioners (repeatedly) and the savings of his late brother (A.).

A third piece of evidence results from shadowing, tracking and telephone-tapping.

Treading stealthily like a Sioux Indian and behaving like a secret agent, before and after 30 October 1995, Achour moved about a good deal, showing a preference for mornings, twisting and turning constantly, keeping a sharp lookout where necessary, and receiving his 'contacts'' vehicles in his garage (albeit for very short amounts of time)... What was going on??

What was going on, his counsel argued, as, subsequently, did counsel for D. and R., was indeed 'trading', but in linen, foie gras (in 'blocks'), counterfeit banknotes, trousers, but never hashish.

This cunning strategy was supported by the statements of G. (D322), and indeed those of V. or C.

Furthermore, and above all, no air-conditioners, foie gras or trousers were seized on 7 December 1995; what was physically observed in this case was hashish, and a sizeable quantity of it.

Accordingly, Couider Achour, who already has several convictions, having, in particular, been sentenced to three years' imprisonment in October 1984 for a drug offence, cannot lay claim to any indulgence, even in view of the particularly well-organised nature of his activities (the court has left aside the pagers, mobile phones, etc. used for 'contacts'). The public prosecutor, for his part, sought an eight-year term of imprisonment and the court endorses and imposes that sentence, which is still mild when it is borne in mind that the defendant is classified in law as a recidivist. A proportionate fine and continued detention, in addition, in order to ensure that the sentence is executed and that the offence is not repeated. Lastly, as an additional penalty, exclusion from national territory for ten years.”

The Criminal Court also sentenced the applicant's mother and his partner, S., to two years' imprisonment, suspended, for handling the proceeds of drug offences.

In a judgment of 25 November 1997 the Lyons Court of Appeal increased the applicant's sentence to twelve years' imprisonment and upheld the exclusion order. It observed, among other things:

“By Article 132-9 of the Criminal Code, a person is deemed to be a recidivist where, having already been convicted with final effect of an offence punishable by ten years' imprisonment, he commits a further offence carrying a similar sentence within ten years of the expiry of the limitation period for enforcing the previous sentence.

That was so in the case of Couider Achour-Aoul, who, having been sentenced by the Lyons Criminal Court on 16 October 1984, after adversarial proceedings, to three years' imprisonment for offences under the regulations on buying, possessing, using, trading in and transporting drugs, punishable under Article L. 627, paragraph 1, of the Public Health Code, as applicable at the time, by a term of between two and ten years' imprisonment, and having completed that sentence on 12 July 1986, committed the offences with which he was charged, which likewise carry a sentence of ten years' imprisonment pursuant to Article 222-37 of the Criminal Code, in the course of 1995 and up to 7 December of that year.

In convicting him on the charges set out in the order committing him for trial, the court below made a correct analysis of the facts of the case and drew the necessary legal inferences. Its judgment must therefore be upheld as to the finding of guilt.

Despite having been convicted on 16 October 1984 of drug offences relating to the possession of 10 kilograms of cannabis resin, Couider Achour-Aoul, with no declared income since 1993, had no hesitation in committing further drug offences, making a substantial profit which he shared with his family and amassing a sizeable fortune which he invested shrewdly.

A total of 57 kilograms of cannabis resin – a substance extremely harmful to the health of young people, in particular those living in poverty, who are exposed to the illegal and dangerous activities of unscrupulous individuals – was found at his home. He had asked Mr H.M., who had sought his help in finding a decent job, to sell hashish for him.

Accordingly, both the nature and the seriousness of the accused's conduct, reflecting a deep-seated inclination to crime for financial gain regardless of the risk to other people's lives and occurring at a time when he was liable to be classified as a recidivist, dictate that he should be sentenced to twelve years' imprisonment...”

The applicant appealed on points of law, arguing, among other things, that his classification in law as a recidivist contravened the rule governing the application of successive criminal laws, the Court of Appeal having retrospectively applied the harsher provisions of the new legislation.

In a judgment of 29 February 2000 the Court of Cassation dismissed his appeal. It held that the Court of Appeal had been justified in deeming him to be a recidivist, on the following grounds:

“... where a law introduces new rules on recidivism, for them to apply immediately it is sufficient for the offence constituting the second component of recidivism – which the offender may choose to commit or not to commit – to have been committed after the law's entry into force.”

The applicant is due for release on 21 June 2006.

The relevant provisions of the Criminal Code, as in force before 1 March 1994, were as follows:

“Anyone who, having been sentenced for a serious crime [crime] to a term of imprisonment exceeding one year, commits, within five years of the expiry of that sentence or of the time allowed for its enforcement, a further serious crime or other major offence [délit] punishable by imprisonment shall be sentenced to at least the statutory maximum penalty for that offence and, at most, twice that penalty.”

“The same shall apply to persons who have been sentenced for a major offence [délit] to a term of imprisonment exceeding one year and, within the same period, are found guilty of the same offence or of a serious crime punishable by imprisonment.

Anyone who, having previously been sentenced to a shorter term of imprisonment, commits the same offence within the same period shall be sentenced to a term of imprisonment of at least twice the previous sentence and, at most, twice the statutory maximum sentence.

Article 132-9 of the new Criminal Code, which came into force on 1 March 1994, provides:

“Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years' imprisonment commits, within ten years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a similar sentence, the maximum sentence and fine that may be imposed shall be doubled.

Where a natural person who has already been convicted with final effect of a serious crime or other major offence punishable under the law by ten years' imprisonment commits, within five years of the expiry of the previous sentence or of the time allowed for its enforcement, a further offence carrying a prison sentence of more than one year but less than ten years, the maximum sentence and fine that may be imposed shall be doubled.”

As early as 1893 the Criminal Division of the Court of Cassation held:

“ ... the increase in the sentence in the event of recidivism amounts to an additional penalty not for the first offence but for the second, which the offender may choose to commit or not to commit. Accordingly, new legislation may, without having retrospective effect, lay down the penalties that may be imposed in future for offences committed while it is in force; the offender cannot request the application of the penalties under the previous legislation for an offence committed since the new legislation has been in force, his status as a recidivist being determined by the new legislation.” (Cass. crim., 31 August 1893, D. 1896.1.137)

That position has been reiterated in subsequent judgments of the Criminal Division of the Court of Cassation (Cass. crim. 14 June 1945, Bull. crim. no. 68; 29 January 1948, Bull. crim. no. 38; 23 March 1981, Bull. crim. no. 103; 29 February 2000, Bull. crim. no. 95).

During the passage through Parliament of a bill amending the general provisions of the Criminal Code, the rapporteur for the Senate stated, among other things (Senate Report no. 271, appended to the record of the sitting of 27 April 1989):

“Article 132-9

Recidivism entailing a serious crime or other major offence punishable by seven years' imprisonment and a further offence carrying a sentence of seven years or between one and seven years

The increased severity of the rules on recidivism applicable where the second offence is punishable by seven years' imprisonment lies in the extension of the 'probationary period' (ten years) within which a convicted person may be deemed to be a recidivist. If the second offence is punishable by a prison sentence of between one and seven years, the rules on recidivism apply only if the 'relapse' occurs within a period of five years. In both cases, the maximum sentence and fine that may be imposed are to be doubled in the event of recidivism.

The existing rules on the subject derive from a law of 26 March 1891 and are set out in Article 57 of the Criminal Code. They provide for a conception of recidivism that is general in scope but limited in time (the probationary period being five years) where a person who, having been sentenced for a serious crime to a penalty exceeding one year's imprisonment (i.e. between one year and life), is prosecuted for a further serious crime or other major offence punishable by imprisonment. In such cases the sentence is increased to at least the statutory maximum penalty for the second offence and, at most, twice that penalty ...”

Article 769 of the Code of Criminal Procedure, on criminal records, provides, inter alia:

“... The following shall be removed from a person's criminal record: entries concerning convictions that have been expunged as a result of an amnesty or of automatic or judicial rehabilitation, or amended in accordance with a decision to rectify the criminal record. The same shall apply, save in the case of convictions for crimes not subject to limitation, to entries concerning convictions dating back more than forty years which have not been followed by a further conviction for a serious crime or other major offence.

Entries concerning the following shall also be removed from the criminal record:

(1) personal bankruptcy orders or disqualifications provided for in section 192 of the aforementioned Law no. 85-98 of 25 January 1985 where such measures are expunged by means of a judgment terminating the proceedings on account of the payment of outstanding debts, by means of rehabilitation, or upon the expiry of five years from the date on which the orders in question became final; and also orders for the liquidation of a natural person's assets, upon the expiry of five years from the date on which the orders in question became final, or after the delivery of a judgment rehabilitating the person concerned.

However, if the personal bankruptcy order or disqualification is valid for more than five years, an entry concerning these measures shall remain in the criminal record for the same period;

(2) disciplinary decisions expunged as a result of rehabilitation;

(3) sentences which are wholly or partly suspended, with or without probation, upon the expiry of the periods laid down in Articles 728-4 and 728-7 of the Criminal Code, calculated from the date on which the sentences are to be deemed void;

(4) discharges, upon the expiry of a three-year period starting on the date on which the conviction became final;

(5) convictions for petty offences [contraventions], upon the expiry of a three-year period starting on the date on which the convictions became final; this period shall be increased to four years where repetition of the offence in question constitutes a more serious offence [délit];

(6) measures carried out under the agreed penalty scheme, upon the expiry of three years from the date on which it is certified that the measure has been carried out, if during that period the person has not been convicted of a serious crime or other major offence or carried out a further measure under the agreed penalty scheme; and

(7) measures ordered in accordance with Articles 8, 15, 151, 16, 16 bis and 28 of the aforementioned Ordinance no. 45-174 of 2 February 1945, upon the expiry of three years from the date on which the measure was ordered, if during that period the person has not received a sentence for a serious crime or other major offence, or carried out a measure under the agreed penalty scheme, or been the subject of a further measure ordered in accordance with the aforementioned provisions of the Ordinance.”


The applicant was born in 1949 and lives in Bjugn.

On 10 March 1992 the head of the social services in the municipality of Bjugn contacted the local police after having received reports from Botngård kindergarten indicating that the applicant, who was an assistant at the kindergarten at the time, had sexually abused one or more of the children there. Subsequently, a criminal investigation was carried out. On 13 March 1992 the applicant was interrogated. He denied the accusations. On the same date he was suspended from his post.

On 1 September 1992 the applicant was formally indicted with respect to various offences under Articles 195, 198 and 228 of the Penal Code (straffeloven) concerning the sexual abuse of minors, allegedly committed against two children at the kindergarten, and under Article 192 of the Penal Code with respect to one of them. On 12 October 1992 the indictment was extended to 14 children at the kindergarten and, on 21 October 1992, a new indictment was issued involving 15 children. On 9 January 1993 the indictment was again extended to offences of sexual abuse of 36 named children and an unknown number of children at the kindergarten.

On the latter date, 6 further persons were indicted for sexual offences in relation to the same matter: the applicant's wife, two employees at the kindergarten and the local sheriff.

As a result of the above, the applicant spent three periods in pre-trial detention – respectively 7, 7 and 32 days – a total of 46 days. In the course of the investigations, three searches were carried out at the applicant's home.

On 22 September 1993 the applicant was formally indicted under Articles 195, 198 and 213 of the Penal Code for having allegedly committed various offences of sexual abuse against 10 kindergarten children.

On the same date the charges against the six other accused persons were dropped. They later claimed compensation under Articles 444 to 446 of the Code of Criminal Procedure (straffeprosessloven). The local sheriff obtained a settlement of NOK 200,000 in compensation for non-pecuniary damage; the five others obtained a court order requiring the State to pay NOK 200,000 to each of them. The applicant's wife obtained, in addition, NOK 140,000 in compensation for pecuniary damage.

The applicant's trial took place before the Frostating High Court (lagmannsrett), sitting with three judges and a jury, over a period of 43 days, between 15 November 1993 and 31 January 1994. After the jury had answered all of the 25 questions relating to the indictment in the negative, the applicant was acquitted by a judgment of 31 January 1994.

The applicant subsequently filed a petition with the High Court, claiming compensation under Articles 444 to 446 of the Code of Criminal Procedure.

The High Court, sitting with two of the judges who had taken part in the trial and a new judge (replacing the judge who had presided at the trial, disqualified from sitting in the compensation case), held an oral hearing between 13 and 15 February 1995.

In its decision of 28 February 1995, the High Court ordered the State to award him the entirety of his claim of NOK 45,000 in compensation for pecuniary damage under Article 445, according to which provision such “compensation for special or disproportionate damage as a consequence of the criminal prosecution” could be awarded as was “reasonable in the circumstances”. Moreover, under Article 446, cf. 445, the High Court awarded him NOK 125,000 in compensation for non-pecuniary damage suffered as a result of the prosecution. However, on the basis of an assessment, the relevant parts of which are quoted in the Supreme Court's (Høyesterett) decision cited below (paragraph 23), the High Court rejected his claim for supplementary compensation under Article 444, it not having been shown probable that he did not commit the act which was the basis of the charge. The High Court referred to the evidence presented during the trial hearing between November 1993 and January 1994 and during the oral hearing in the compensation case in February 1995.

The applicant appealed against the High Court's decision of 28 February 1995 to the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg). He complained that the High Court's decision contained assumptions of criminal liability and that, consequently, it violated Article 6 § 2 of the Convention. He requested the Supreme Court to quash the High Court's decision.

By a decision of 8 June 1995, notified to the applicant by mail on 20 July 1995, the Appeals Selection Committee, considering that the applicant's appeal concerned the High Court's application of Article 444 of the Code of Criminal Procedure, rejected the appeal.

In its reasoning, the Appeals Selection Committee first recalled that in its decision reported in Norsk Retstidende 1994, p. 721, the Supreme Court had stated (at p. 725):

“It is the accused who carries the burden of proof that he did not carry out the act. It is sufficient that it is more probable than not. I do not agree with counsel for the defence that the accused has discharged the burden of proof where both alternatives, on the basis of the available evidence, appear to be equally likely. In this assessment the ordinary standards of evidence shall apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the possibilities for the accused to show that he did not carry out the act. Given the manner in which the provision has been formulated the situation may easily arise that an acquittal is not sufficient to justify a compensation claim when the accused is unable to discharge this burden of proof. I should like to stress that the refusal of a compensation claim does not entail that the previous acquittal is undermined or that the acquittal is open to doubt. The compensation case must be determined on an independent basis and the rules on evidence applying in such compensation cases do not differ from those which apply to ordinary compensation claims. The legislator has as a starting point opted for a solution whereby the financial burden caused by the institution of criminal proceedings, which are discontinued or which end with an acquittal, must be borne by the accused unless he is able to show that it is probable that he did not commit the act.”

The Appeals Selection Committee further recalled that in the above case the Supreme Court considered the relationship between the conditions for compensation under Article 444 of the Code of Criminal Procedure and the case-law of the European Court of Human Rights, in particular the Sekanina v. Austria judgment of 25 August 1993 (Series A no. 266-A). The Supreme Court concluded that the rules in Article 444 of the Code of Criminal Procedure were not, as such, contrary to Article 6 § 2 of the Convention. The Appeals Selection Committee affirmed that it would base itself on this view in its assessment of the present case. It further recalled that, in the 1994 decision, the Supreme Court had expressed the following view on the Sekanina judgment:

“[In this case] decisive importance was attached to the reasoning in the particular case for rejecting the compensation claim. If in the reasoning for refusing compensation doubt is voiced as to whether the acquittal was correct or if the reasoning contains assumptions about criminal liability, then the relationship to Article 6 § 2 of the Convention would be problematic.”

Then the Appeals Selection Committee went on to state:

“As pointed out by the prosecution in its reply to the appeal, the High Court had to justify why it considered that the conditions for making an award for compensation under Article 444 of the Code of Criminal Procedure had not been fulfilled. The Appeals Selection Committee must determine whether the reasoning of the High Court conflicted with the requirements of Article 6 § 2 of the Convention.

The Committee refers to the fact that the reasoning must be formulated in the light of the conditions for compensation as mentioned above. It is further clear that the High Court ... was aware of the rules in Article 6 § 2 of the Convention, the European Court's Sekanina judgment and the 1994 decision of the Supreme Court. In its decision concerning compensation under Article 444, the High Court, after having quoted the provision, specifies the subject-matter of the case as follows.

'Following the High Court's acquittal, Mr Hammern is not guilty under the criminal law. This question has not been submitted to the High Court which will not deal with it. The present case is a compensation claim brought by Mr Hammern. The question is whether he, in view of the rules of evidence under the law of compensation, is able to show that he did not carry out the acts which were referred to in the indictment.'

The Committee points to the fact that here the High Court clearly specifies that Mr Hammern is not liable under the criminal law. Furthermore it is specified that the compensation claim must be determined on the basis of the rules of evidence applying under the law on compensation. The High Court then concludes, against the background of the evidence adduced, that considering the case as a whole, Mr Hammern 'has not shown it to be probable that he did not carry out the acts which grounded the charge.'

Moreover, in the concluding remarks, it is stated:

'When the High Court, considering the case as a whole, reached the conclusion that Mr Hammern had not discharged his burden of proof, account was also taken of the fact that the requirements as to the strength of the evidence must to a certain extent be adapted to the possibility which he has for showing that he [Mr Hammern] did not commit the acts.... Nevertheless, in the assessment, it is the usual rules on evidence which should apply....'

In support of his submission that the High Court's reasoning contains assumptions about criminal liability, he points to certain intermediate passages in which the High Court states:

'Medical experts have in the light of their investigations reached conclusions which in practice imply a very high degree of probability that the 10 children referred to in the indictment have been exposed to sexual abuse. The medical experts have discounted the possibility of self-inflicted injuries, that the injuries are caused by pathological conditions or conditions at variance from the norm. As pointed out by the prosecution, the children themselves gave statements to their parents, during the judicial examinations and to a psychologist, about abuse by Mr Hammern. Through the video recording of the judicial examinations of the children, the Court has been able to see how the children expressed themselves.

The Court has been able to apprise itself of how the children during the examinations changed their behaviour when presented with questions of sexual abuse.

Nor does the following fact make it less likely that he carried out the acts for which he was charged: the children markedly changed their behaviour, inter alia, in the form of bedwetting, refusing or expressing fear about going to the kindergarten, several children had a sore crotch, sore abdomen and, on one or several occasions, blood on their underwear, circumstances which essentially occurred after Mr Hammern started to work at the kindergarten and which diminished after his departure.

The High Court further finds it established that at the kindergarten it was possible to perpetrate such abuse without it being revealed either from a technical or practical point of view.

In the aftermath, several of the employees at the kindergarten have pointed to a few surprising situations: for instance the governor's eyewitness evidence, her perception of the situation, when she came over to Mr Hammern while he was washing a child in the crotch under peculiar circumstances.

The High Court does not find any reason to go further into the discussion about the possibility of paedophilia. It is not only the so-called real paedophiles who commit abuse against children. Nor can a diagnosis which excludes paedophilia be deemed accurate, or notional paedophilia be defined precisely.'

Having regard to the fact that the High Court clearly specified that its assessment was confined to the compensation case which was to be determined on the basis of the rules of evidence applying in such cases, the Appeals Selection Committee finds that the High Court' s reasoning does not go further than is necessary to carry out a careful examination of the compensation claim and that it does not entail any infringement of the presumption of innocence laid down in the Convention. The Committee once more emphasises that a refusal to award compensation under Article 444 does not imply that the previous acquittal is being undermined.

In the light of the foregoing, the appeal must be rejected.”

Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant's guilt was not unanimous. The criminal system knows only two conclusions in a criminal case – guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, which was known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt.

Articles 444 to 446 of the Code of Criminal Procedure provide for compensation where a person has been acquitted, or the prosecution discontinued. The provisions read as follows:

“Article 444: If a person charged is acquitted or the prosecution against him is discontinued, he may claim compensation from the State for any damage that he has suffered through the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge. If a sentence of imprisonment or other custodial sanction has already been served, any damage resulting from this shall be compensated without regard to what has been shown to be probable.

Compensation shall not be awarded when the person charged, by making a confession or otherwise, has wilfully instigated the prosecution or the conviction.

If he has otherwise contributed to the damage by negligence, the compensation may be reduced or dispensed with entirely.

Article 445: Even if the conditions prescribed in Article 444 are not fulfilled, the court may award the person charged compensation for special or disproportionate damage as a consequence of the criminal prosecution whenever this appears to be reasonable in the circumstances.

Article 446: If the conditions relating to compensation prescribed in Articles 444 or 445 are fulfilled, the court may, when special reasons so indicate, award the person charged a suitable amount as redress for the indignity or other damage of a noneconomic nature that he has suffered as a result of the prosecution.”

In addition, there are certain formal conditions set out in Article 447 for the submission and examination of a compensation claim made under Articles 444 to 446:

“Any claim for compensation or redress must be submitted not later than three months after the person charged has been informed of the decision that finally concludes the case. The provisions of Article 318, first paragraph, shall apply correspondingly.

If the case has been concluded without any judicial trial of the evidence relating to the issue of guilt, the claim shall be submitted to a court of summary jurisdiction.

Otherwise the claim shall be submitted to the court that shall conduct or has last conducted any such trial. If the claim is submitted to the District Court or the City Court, but has not been decided when an appeal against the assessment of evidence in relation to the issue of guilt proceeds to an appeal hearing, the Court of Appeal shall also decide the question of compensation. On the hearing of the claim the court shall as far as possible sit with the same judges who decided the criminal case. In the Court of Appeal lay judges or the selected jurors who join the court pursuant to Article 376 e shall not take part unless the decision is made at the same court sitting as that at which judgement is pronounced in the case.”

Compensation after acquittal or a discontinued prosecution is not automatic and is not granted unless the conditions in the above-cited Articles are met.

When compensation is granted to persons considered innocent as they have been acquitted or the prosecution against them has been discontinued, Articles 445 and 446 are the general provisions and, de facto, the main provisions providing for compensation. In the present case the applicant was awarded compensation both under Articles 445 and 446.

In addition the applicant requested compensation under the special provisions of Article 444, under which the State may be liable to pay compensation even in the absence of any proof of negligence or fault on the part of the authorities. The liability of the State to pay compensation is strict where it has been shown to be probable that the claimant did not carry out the act of which he or she was charged. In the assessment of the latter, none of the other constitutive elements of a criminal offence, such as criminal intent, is in issue.

According to the case-law of the Norwegian Supreme Court, the evidentiary standard applying with respect to liability to pay compensation under Article 444 differs from that applying to criminal liability. Whereas in criminal proceedings it is for the prosecution to prove beyond reasonable doubt that the defendant committed the incriminated act, in compensation proceedings it is for the claimant to show that, on the balance of probabilities, it was more than 50% probable that he or she did not carry out the act grounding the charge. The requirement of proof in compensation cases may nevertheless be adjusted (i.e. to less than 50%) in the light of the claimant's ability to adduce evidence, especially where a long time has elapsed since the alleged criminal act. The competent court has to make a new assessment, independently of the acquittal, of all the evidence available in order to establish whether it is probable that the claimant did not carry out the act which formed the basis of the charge.

It is not a requirement for obtaining compensation that the acquitted claimant adduce new evidence. The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings or obtained by the court of its own motion.

In 1996 the Norwegian Council on Criminal Law (Straffelovrådet) made a recommendation to the Ministry of Justice that Articles 444 to 446 of the Code of Criminal Procedure be amended in a number of respects, including the abolition of the condition whereby the claimant must prove that on the balance of probabilities he or she did not carry out the act giving rise to the charge. Nevertheless, the Council was of the view that the provisions in force are not inconsistent with Norway's obligations under Article 6 § 2 of the Convention, as interpreted by the Court in its case-law (see Norges Offentlige Utredninger (Official Norwegian Report), Erstatning i anledning straffeforfølgning (Compensation in connection with Criminal Proceedings), 1996: 18, pp. 20-22, 36, 5 2). On 15 May 2002 a Government Bill was presented to Parliament (Ot.prp.nr.77, 2001-2002), proposing inter alia the repeal of this condition.


CASE OF PRIDATCHENKO AND OTHERS v. RUSSIA

Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award (Mr Pridatchenko, Mr Frolov);Non-pecuniary damage - financial award (Mr Pridatchenko, Mr Frolov, Mr Sychev)

At the time of the described events Mr Pridatchenko (born in 1965), Mr Sychev (born in 1970), and Mr Frolov (born in 1969) were active military officers. Mr Manatov (born in 1970) was a retired military officer. On different dates they sued their actual or former employers, respective military units, in courts. The applicants claimed payment of their salaries, various service-related benefits due to them, provision of free housing, compensation of travel expenses, compensation of damages, etc. In all cases the courts ruled in their favour (at least in part of their claims) making monetary awards. However, for some time the judgments in their favour remained unenforced.

On 16 November 2001 the Sertolovo Garrison Military Court granted in part the applicant's claims concerning free housing due to him under the military service contract. The court also awarded the applicant 2,015 Russian roubles (RUR) for legal costs. That judgment was not appealed against and became final on 27 November 2001.

On 26 November 2001 the Sertolovo Garrison Military Court granted the applicant's claims concerning the amount of compensation of his travel expenses awarding him arrears in the amount of RUR 93,731.70, plus RUR 15 for legal costs. That judgment was not appealed against and became final on 13 December 2001.

On 8 February 2002 the Sertolovo Garrison Military Court at the applicant's request held unlawful the refusal to dismiss the applicant from military service and awarded him RUR 2,015 for legal costs. That judgment was not appealed against and became final on 19 February 2002.

On 8 February 2002 the court issued a writ of execution on the basis of the judgment of 26 November 2001. The applicant forwarded it with accompanying documents to the State treasury office of the Leningrad Region. On 16 July 2002 the writ was returned to the applicant unexecuted. The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt. The applicant was advised to address the writ of execution to the head office of the Ministry of Finance in Moscow, which he did on 23 August 2002. However, the judgment remained unexecuted.

On 2 September 2002 the court issued two writs of execution on the basis of the judgments of 16 November 2001 and 8 February 2002 (concerning the legal costs awarded to the applicant). The applicant forwarded them with accompanying documents to the State treasury office of the Leningrad Region. On 10 September 2002 the treasury office returned the unexecuted writs to the applicant referring to the lack of funds on the debtor's account. The applicant was advised to address the writs to the head office of the Ministry of Finance, which he did on 12 September 2002. However, the writs remained unexecuted.

On 28 April 2003 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 93,746.70 in the applicant's name with reference to the writ of execution issued on 8 February 2002 on the basis of the judgment of 26 November 2001.

On 23 September 2003 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 2,015 in the applicant's name with reference to the writ of execution issued on 2 September 2002 on the basis of the judgment of 16 November 2001.

On 29 September 2003 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 2,015 in the applicant's name with reference to the writ of execution issued on 2 September 2002 on the basis of the judgment of 8 February 2002.

According to the applicant, the aforementioned amounts were transferred to his account on 10 January 2004. He submitted copies of banking receipts as evidence in that respect.

On 8 October 2001 the Kurtamysh District Court of the Kurgan Region granted the claims awarding him RUR 33,210 of salary arrears. The judgment was not appealed against and became final on 19 October 2001.

On 13 December 2001 the court issued a writ of execution. The applicant sent it to the bailiff's office. On 28 February 2002 the bailiff's office returned the unexecuted writ to the applicant and advised him to forward it to the Moscow City Specialised Branch of the State treasury.

On 27 April 2002 the forenamed branch of the State treasury returned the unexecuted writ to the applicant and explained that it was not responsible for financial obligations of the debtor military unit, apparently in accordance with a territorial jurisdiction principle.

It appears that the judgment of the Kurtamysh District Court of the Kurgan Region of 8 October 2001 has not yet been executed.

On 23 April 2002 the Far-East Command Military Court by the final decision awarded the applicant RUR 4,000 for non-pecuniary damages caused by the refusal to grant the applicant annual leave.

On 18 May 2002 the court issued a writ of execution on the basis of the judgment of 23 April 2002. The applicant forwarded it with accompanying documents to the treasury office of Belogorsk town. On 14 June 2002 the writ was returned to the applicant unexecuted. The Belogorsk town treasury office advised the applicant that it was not competent to deal with such requests.

On an unspecified date in 2002 the applicant sued his military unit for the refusal to send him for a medical examination, whereas his state of health was deteriorating. He claimed non-pecuniary damages in that respect. On 5 July 2002 the Belogorsk Garrison Military Court granted the applicant's claims awarding him RUR 5,000 for non-pecuniary damages, plus RUR 10 for legal costs. The judgment was not appealed against and became final on 19 July 2002. On 7 March 2003 the court issued a writ of execution on the basis of the judgment of 5 July 2002.

On an unspecified date in 2003 the applicant sent both the writs of 18 May 2002 and 7 March 2003 to the local bailiff's office and to the town treasury office. On 11 April 2003 the Belogorsk town treasury office paid the applicant RUR 1,000 on account of the judgment of 5 July 2002. On the same date they informed the applicant that the debtor had no money for paying off the rest of the judgment debt; the applicant was advised to address himself to the head office of the Ministry of Finance. On 23 April 2003 the bailiff's office returned both writs unexecuted and advised the applicant to forward them to the treasury office.

On an unspecified date in February 2004 the judgments of 23 April 2002 and 5 July 2002 were enforced in full.

On 29 August 2001 the Petrozavodsk Garrison Military Court granted the applicant's claims concerning compensation of his travel expenses, and awarded him arrears in the amount of RUR 74,360.70. It appears that the judgment was not appealed against and became final.

However, for some time the judgment of 29 August 2001 remained unexecuted. Referring to that fact the applicant brought proceedings requesting indexation of the judicial award due to him.

On 3 February 2003 the Petrozavodsk Garrison Military Court granted the applicant's claims and awarded him damages caused by non-enforcement of the judgment of 29 August 2001 in the amount of RUR 30,629.91 and RUR 1,030 for legal costs. That judgment was not appealed against and became final on 14 February 2003.

On 20 March 2003 a writ of execution was issued. The applicant forwarded it with accompanying documents to the State treasury office of the Republic of Karelia. On 1 April 2003 the writ was returned to the applicant unexecuted. The treasury office explained that the debtor had no available funds which could be used for paying off the judgment debt. The applicant was advised to send the writ of execution to the head office of the Ministry of Finance, which he did on 4 April 2003. However, the judgment of 3 February 2003 remained unexecuted.

On 9 October 2003 the judgment of 29 August 2001 was enforced in full. The applicant informed the Court about this fact; however, he maintained his complaints about the non-enforcement of the judgment of 3 February 2003.

On 16 February 2004 the Ministry of Finance allocated from the State budget to the Ministry of Defence RUR 31,659.91 in the applicant's name with reference to the writ of execution of 20 March 2003 relating to the judgment of 3 February 2003.

According to the applicant, the aforementioned amount was transferred to his bank account on 7 April 2004. He submitted a copy of a banking receipt as evidence in that respect.

The Russian Law on Enforcement Proceedings (no. 119-ФЗ of 21 July 1997) designates the court bailiffs' service as the authority charged with enforcement of court decisions (Section 3 § 1). Court judgments can also be executed by tax authorities, banks, financial institutions, other organisations, State officials and individuals – all of them are not considered to be the enforcement authorities (Section 5).

Section 110 of the Law on Federal Budget for the Year 2001 (no. 150-ФЗ of 27 December 2000) provided that writs of execution issued against the treasury of the Russian Federation were to be sent for execution to the Ministry of Finance of the Russian Federation and were to be executed in accordance with the procedure established by the Russian Government. A similar provision was included in Section 128 of the Law on Federal Budget for the Year 2002. However, Section 122 of the Law on Federal Budget for the Year 2003 (no. 176-ФЗ of 24 December 2002) established, in addition to the similar requirement that writs of execution were to be submitted to the Ministry of Finance, that the court bailiffs could not enforce judgments against the Russian Federation.

On 22 February 2001 the Russian Government approved “Rules on recovery of funds due on the basis of the writs of execution issued by the courts on account of monetary obligations of the recipients of federal budget funds” (“the Rules”). Sections 2 and 3 of the Rules provide that the creditor must submit the writ of execution and a copy of the judgment to the office of the federal treasury where the debtor has its current account. The federal treasury office must grant the recovery within three working days in the part not exceeding the balance of the account (Section 5). Should the balance of the account be insufficient for a full recovery, the writ of execution must be returned to the creditor who can then apply to the Ministry of Finance to recover the outstanding amount from the debtor's funding entity (Section 6).

On 9 September 2002 the Russian Government adopted Decree no. 666 which enacted the “Rules of Execution by the Ministry of Finance of court judgments against the Treasury of the Russian Federation arising from the claims for damages caused by unlawful acts or omissions of the State authorities or State officials”. The procedure of execution of such judgments provided by the Rules of 2002 was essentially the same as provided by the Rules of 22 February 2001 cited above.

On 19 July 2001 the Supreme Court of the Russian Federation delivered judgment no. ГКПИ 2001-864 concerning the lawfulness of certain provisions of the Rules. In particular, the court held that the Rules did not govern the enforcement of court judgments because the federal treasury was not an enforcement body, pursuant to Section 5 of the Law on Enforcement Proceedings. In subsequent judgment no. ГКПИ 2001-1345 of 22 October 2001 the court clarified its position as follows:

“The contents of the contested Rules indicate that they do not govern the procedure for enforcement of court decisions, rather they establish the procedure for voluntary execution of court decisions and for recovery of funds under monetary obligations of recipients of the federal budget funds...

The court also has regard to the fact that the contested Rules do not prevent the creditor from resorting to the enforcement proceedings in respect of a court decision...”

In judgments nos. ГКПИ 2001-1790 and 2002-139 of 27 February 2002 the Supreme Court of the Russian Federation confirmed that neither the Rules, nor the Laws on Federal Budgets for 2001 and 2002 prevented the creditor from seeking enforcement of a court judgment in accordance with the procedure set out in the Law on Enforcement Proceedings, the Law on Court Bailiffs and the Code of Civil Procedure. Finally, the Supreme Court again upheld this position in judgment no. ГКПИ 2001-1482 of 28 March 2002.

On 20 May 2003 the Supreme Court of the Russian Federation in its decision no. KAC 03-205 ruled that the Rules, adopted by Decree no. 666 of 9 September 2002, concerned the voluntary execution of court decisions against the Federal treasury and did not prevent the creditor from seeking enforcement through the court bailiffs.

The functioning of military courts is regulated by the Constitution, the Law on Judicial System of 31 December 1996, the Law on Military Courts of 23 June 1999. Military courts belong to the judicial system of the Russian Federation, they are courts of general jurisdiction exercising judicial power in the armed forces. military courts are established or dissolved by a federal law. Military courts are organised in the places of stationing of military units. Military courts administer justice on behalf of the Russian Federation examining cases in their jurisdiction by way of civil, administrative and criminal proceedings. In particular, military courts examine complaints of military personnel against acts or omissions of military officials or military command. Such cases are examined pursuant to the provisions of the Code of Civil Proceedings. Military courts administer justice independently subject only to the Constitution, federal constitutional laws and federal laws. The judges of the military courts are appointed by the President and should have a military rank, in addition to a law degree and necessary qualifications.