Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award

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

The applicant was born in 1936 and lives in Osijek.

The events at issue took place in Vukovar, a Croatian town near the Serbian border which was heavily attacked by the Yugoslav People's Army and paramilitary Serbian armed forces during the Homeland War from August to November 1991 and finally occupied at the end of November 1991. Between 1992 and 1996 Vukovar was a part of the United Nations Protected Area (the “UNPA”).

In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”), which included Vukovar. On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began.

According to the applicant, on 17 September 1991 several members of the Serbian paramilitary forces came to her home, took some money and ransacked the house looking for money and gold. The applicant recognised three of them as P.Z., S.Z. and V.Z.

On 3 October 1991 three men, dressed in Yugoslav People's Army uniforms, one of whom was M.S. and personally known to the applicant, came to the applicant's family house in Vukovar. They hit her husband, A.J., before taking him away. A few minutes later the applicant heard shots from an automatic weapon. The uniformed men then also took the applicant and her grandson, M.J., together with some other persons, including S.M., to the military headquarters. On the way there the applicant saw the dead body of her husband, his head battered, lying on a path in front of a house; the persons who had brought him out of the house were standing next to the body.

In autumn 1991 the applicant reported the above-mentioned event to the Vukovar police station, which was located in Zagreb at that time.

On 18 March 1992 the Vinkovci Police Department lodged a criminal complaint with the Osijek Military Prosecution against ten alleged offenders (G.J., M.S., S.S., M.N., B.G., M.K., Z.R., P.N., S.Z. and V.Z.), alleging that on 3 October 1991 they had arrested several individuals and then killed two of them, one of whom was the applicant's husband, and had thus committed a war crime against the civilian population. Following a request of the Osijek Military Prosecution, dated 14 May 1992, the Osijek Military Court opened an investigation in respect of the ten suspects on 31 August 1992 on the criminal charge of armed rebellion. The Military Court also ordered the suspects' detention and issued a warrant to find and arrest them, as they had absconded.

On 9 February 1993 the Military Court heard evidence from the applicant and her son. The applicant said that in September and October 1991, after the Serbian forces had entered Vukovar, but before the city finally fell, several persons, including her former neighbours M.S., S.S. and three brothers Z., all dressed in Yugoslav People's Army uniforms and equipped with shotguns and Kalashnikovs, had been coming to the yard in front of her house daily, threatening her and asking for her sons. She further stated that one of the persons who had come to her house on 3 October 1991 and taken her husband away was M.S., but she did not know the names of the others. A few minutes later, while she was being taken to the military headquarters, the applicant had passed the dead body of her husband. Her neighbour, S.M., who had been with her at the time, knew the names of the men who had taken the applicant's husband away.

On 17 December 1996 the Osijek County State Attorney's Office requested that the investigation be extended to two further suspects, Đ. P. and A.G. The charge was changed to one of war crimes against the civilian population. It was also requested that two witnesses be called once the police had found out their addresses. On 29 December 1996 the Osijek County Court requested the police to inform them of the addresses of the two witnesses. On 9 January 1997 the Osijek County Court extended the investigation to Đ.P. and A.G. and issued arrest warrants against them. On 23 January 1997 the police gave the County Court the requested addresses.

On 30 January 1997 the applicant and another witness gave evidence before the Osijek County Court. The applicant specifically named one of the perpetrators, and the witness S.M. said that she had seen all twelve suspects at the scene.

On 16 May 1997 the Osijek County Court stayed the investigation on the ground that the suspects and some of the witnesses resided in the occupied territory of Croatia, where the Croatian authorities were not able to exercise their power.

The Convention was ratified by Croatia on 5 November 1997.

The territories of Eastern Slavonija, Baranja and Western Slavonija were re-integrated into Croatia in January 1998.

On 27 November 2000 jurisdiction in the matter was transferred to the Vukovar County Court (Županijski sud u Vukovaru) and the investigation was resumed.

On 2 October 2001 one of the suspects, Đ.B., was arrested and gave evidence before an investigating judge of the Vukovar County Court. On 10 October 2001 the investigating judge heard evidence from three further suspects, B.G., Z.R. and S.Z. On 11 October 2001 Đ.B. again gave evidence before the investigating judge. All the suspects denied their involvement in the murder of the applicant's husband. On 5 December 2001 the applicant again gave evidence.

On 14 May 2002 the Vukovar County State Attorney's Office requested a further investigation. On 13 and 23 September 2002 the investigating judge again heard evidence from the witness S.M and two other witnesses. Witness D.K., who had been ordered to bury the body of the applicant's husband, stated that he had been arrested by members of the Serbian paramilitary forces and taken to the place where the dead body of the applicant's husband had been lying. The head had been battered and the body was riddled with bullets. The witness could not name any of the uniformed men who had been standing next to the body and had ordered him to bury it. The other witness, M.K., had no knowledge of the relevant facts.

The applicant enquired about the investigation on several occasions and on 17 December 2002 she was informed that an investigation had been opened against S.Z., V.Z. and others in the Vukovar County Court on charges of war crimes against the civilian population, and was still pending.

On 21 May 2003 the investigating judge terminated the investigation following a general amnesty granted in respect of the criminal offence of armed rebellion. On 27 May 2003 a three-judge panel of the Vukovar County Court quashed that decision on the ground that, prior to the amnesty, the offence had already been reclassified as a war crime against the civilian population. On 17 September 2003 the case file was forwarded to the State Attorney's Office. On 31 October 2003 that Office requested a further investigation.

A psychiatric report in respect of witness Z.F. was commissioned. The report was submitted to the Vukovar County Court on 6 February 2004. On 17 February 2004 Z.F. gave evidence before the investigating judge. He had no specific knowledge of the facts in issue. Further hearings were held before the investigating judge on 28 April, 29 October and 15 November 2004. In the meantime, on 20 September 2004, the investigation in respect of G.J. was terminated owing to his death.

On 13 January 2005 the applicant complained to the State Attorney of inactivity and delays in the investigation into the death of her husband and of failure to commit the suspect for trial.

At a hearing held before the investigating judge on 17 March 2005 witness S.M. gave her evidence.

On 6 April 2005 the applicant again gave evidence. She stated that another witness, A.M., had been present when her husband had been taken away on 3 October 1991. A.M. was not called as a witness.

Further hearings were held before the investigating judge on 6 and 21 April, 15 June, 13 July, 8 August and 11 November 2005.

On 25 March 2006 the applicant lodged a constitutional complaint of inactivity on the part of the investigating authorities. The Constitutional Court answered in a letter of 31 March 2006 that the applicant's complaint was not suitable for proceedings before that court.

At hearings held before the investigating judge on 11 May 2006 and 14 November 2007, further witnesses gave evidence.

Identification parades were held on 17 November and 9 December 2008 in order to verify the identity of the suspect M.S. None of the three witnesses called, including S.M., recognised him as one of the people who had taken the applicant's husband away. On 5 March 2009 the investigation in respect of M.S. was terminated for lack of evidence.

On 1 July 2009 the investigating judge requested international legal assistance in order to have the suspect A.G. interviewed in Sweden. On 3 April 2009, in reply to a request from the Swedish authorities, the investigating judge supplied a list of questions to be put to A.G. The latter was heard by the Swedish authorities on 9 February 2010.

On 31 March 2010 the investigating judge heard evidence from witness M.J.

On 22 April 2010 the Vukovar County Court terminated the proceedings in respect of the suspect M.N. because he had died.

On 27 April 2010 the offence with which the suspects had been charged was reclassified as armed rebellion. On the basis of that reclassification and pursuant to the Amnesty Act, the Vukovar County Court terminated the proceedings on 30 July 2010.


Government's request for strike-out rejected;Violations of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings

The applicant bank was set up and acquired a banking licence in 1993. On 20 November 1997 its licence was revoked by the BNB and on 6 January 1998 it was put into compulsory liquidation (see paragraphs 20 and 27 below). On 20 April 2005 the bank was wound up and it was struck off the register of companies (see paragraph 37 below).

On 27 March 1997 the BNB ruled that the applicant bank was insolvent.

On 5 May 1997 the BNB lodged a petition with the Sofia City Court to wind up the applicant bank.

In a decision of 15 May 1997 the BNB found that the overall amount of the applicant bank’s outstanding major loans was more than twenty times greater than the amount of its capital (including paidup capital and reserves), when the regulatory maximum was eight times. Considering that that situation put at risk the bank’s ability to operate and posed certain other problems with its financial standing, it decided to restrict the bank’s operations. In particular, it prohibited it from taking deposits, granting loans or other credit facilities, purchasing bills of exchange or promissory notes, entering into foreigncurrency or preciousmetals transactions, entering into deposit transactions, acting as a surety or guarantor or providing security to third parties, effecting noncash operations, clearing current accounts of third parties and conducting factoring transactions. The BNB also appointed a special administrator (see paragraph 49 below) to supervise the activities of the applicant bank and to verify whether it complied with the restrictions.

On 23 September 1997 the Sofia City Court, finding that the BNB had yet to revoke the applicant bank’s licence, which was a precondition to making a winding-up order under the new Banks Act of 1997, discontinued the proceedings. Its decision was upheld by the Supreme Court of Cassation on 12 November 1997.

In principle, it would have been possible to remedy the problems noted in the BNB’s decisions of 27 March and of 15 May 1997 (see paragraphs 11 and 13 above) by increasing the applicant bank’s capital.

This appears to have been the reason why on 23 March 1997 the applicant bank’s general meeting of shareholders resolved to issue new shares up to an amount of 12,000,000,000 old Bulgarian levs (BGL), to be subscribed by the shareholders. The resolution was registered by the Sofia City Court and took effect on 12 May 1997.

Two of the applicant bank’s shareholders, TOO Royal Flash and OOO Rontadent Trade, subscribed the shares and, accordingly, became liable to pay for them. However, they sought to discharge this liability by other means. On 30 June and 7 and 29 August 1997 the two shareholders purchased, at a discount, debts due by the applicant bank to the BNB and several other banks and companies. By virtue of these debt assignments the applicant bank’s shareholders also became its creditors. They advised the applicant bank that they wished to set off their obligations to pay for their newly subscribed shares against the debts that the applicant bank now owed them. Accordingly, the applicant bank made entries in its accounts to effect the required set-offs.

On 11 November 1997 the deputygovernor of the BNB responsible for banking supervision, in whom the Central Bank’s powers under section 65 of the Banks Act of 1997 (see paragraph 48 below) were vested, directed the applicant bank to cancel the abovementioned entries in its accounts. She reasoned that the set-offs represented noncash consideration for the shares and that they had been effected in breach of sections 72 and 73 of the Trade Act of 1991 and of section 19(2)(5) of the Banks Act of 1997 (see paragraphs 7072 below). The deputygovernor of the BNB also ordered the applicant bank to present to the BNB a rectified balance sheet showing the cancelling of the entries. The order was immediately enforceable and not subject to judicial review (see paragraph 56 below).

In a subsequent decision of 20 November 1997 (see paragraph 20 below) the BNB appears to have considered that the set-offs were in fact a conversion of assets which could not improve the applicant bank’s financial situation.

On 20 November 1997 the governor of the BNB, acting on a recommendation by the deputygovernor responsible for banking supervision, revoked the applicant bank’s licence and appointed two special administrators to act in place of the applicant bank’s board of directors. The reasons for his decision were as follows:

“In its decision [of 27 March 1997] the BNB’s board of governors found that the [applicant bank] was insolvent and petitioned the court to put it in compulsory liquidation.

With a view to allowing the [applicant bank’s] managing bodies to improve its financial situation by increasing its capital and accumulating additional funds and thus allowing it to restore itself to a state of solvency, [the BNB’s] banking supervision department decided not to recommend the revocation of the bank’s licence on grounds of insolvency.

The analysis of the [applicant bank’s] financial situation as of 11 November 1997, carried out by [the BNB’s] banking supervision department, indicates that the bank’s capital has not been increased through the accumulation of additional funds, but mainly through the conversion of assets – a conversion which was, moreover, not carried out in the proper manner – which has not led to a substantial improvement in the bank’s financial situation.

The overall capital adequacy of the bank is negative – minus 16.74% –, and the valuation of the bank’s assets and liabilities, carried out in accordance with the BNB’s supervisory requirements and rules, indicates that the value of the bank’s liabilities exceeds the value of its assets by BGL 1,072,977,000. Moreover, the bank has failed for more than seven working days to pay a due debt of 437,975.65 United States dollars (USD) to the Commercial and Savings Bank AD (in liquidation). Because of all these facts the BNB’s deputygovernor in charge of the banking supervision department has recommended that the bank’s licence be revoked by reason of insolvency.”

The decision, a copy of which was sent to the applicant bank by fax on 20 November 1997 and later by a letter of 1 December 1997, which was received by the bank on 2 December 1997, stated that it was immediately enforceable and not subject to judicial review (see also paragraph 56 below). On 25 November 1997 it was published in the State Gazette.

The applicant bank contended that the debt to which the BNB had referred in its decision had in fact been settled. In support of that assertion it presented a decision of 12 April 2001 of an enforcement judge at the Sofia District Court, which indicated that by 5 September 1997 the applicant bank had paid in full a debt to the Commercial and Savings Bank AD under a writ of execution. The applicant bank further claimed that the BNB had been informed of the payment of the debt through a report made by the applicant bank’s special administrator on 8 September 1997. The Government disputed the applicant bank’s contentions and said that the debt in fact remained unpaid, as the Sofia City Court had found in its judgment approving the list of agreed creditors’ claims in the liquidation proceedings (see paragraph 35 below). The parties also produced a number of other documents in corroboration of their assertions.

The applicant bank further contended that its assets exceeded its liabilities, contrary to what the BNB had found in its decision. In particular, it had money in two accounts in banks in the United States of America. The Government disputed that statement. Both parties presented various documents in corroboration of their assertions.

On 24 November 1997 the BNB filed with the Sofia City Court a petition to wind up the applicant bank. In the petition it repeated almost verbatim the findings it had made in its decision of 20 November 1997 (see paragraph 20 above).

A hearing was held on 17 December 1997, at which the applicant bank was represented by the special administrators previously appointed by the BNB (see paragraph 20 above). A prosecutor from the Sofia City Prosecutor’s Office also took part in the proceedings, as mandated by former section 81 of the Banks Act of 1997 (see paragraph 61 below).

Counsel instructed by the special administrators argued that there was no indication that the applicant bank’s liabilities exceeded its assets or that it had defaulted on a debt which had fallen due. This position was supported by the prosecutor, who also submitted that it was necessary to gather evidence on the applicant bank’s real financial situation.

In a judgment of 6 January 1998 the Sofia City Court granted the BNB’s petition, declared the applicant bank insolvent, made an order for it to be wound up, divested its decision-making bodies of their powers and the bank of the right to administer its property, ordered the sale of its assets, and appointed liquidators. It found that the conditions for making a winding-up order – namely, that an order revoking the bank’s licence had been made and a copy of that order produced to the court – were satisfied. The Banks Act of 1997 gave the court limited jurisdiction in proceedings to wind up an insolvent bank. The only fact the court had to verify in such proceedings was whether the above two conditions were met. The judgment continued:

“...in view of the new procedure introduced by the Banks Act [of 1997], ... the objection ... that the BNB’s averment of [the applicant bank’s] insolvency is not supported by evidence is unfounded. Unlike the repealed Banks and Credit Business Act [of 1992], which provided that the BNB had to ... prove ... the bank’s insolvency, the new Banks Act [of 1997] does not contain such a requirement. Moreover, in section 79(1) and (3) of the Act the legislature has exhaustively specified the conditions for making a winding-up order [in respect of a bank] and the requirements that the BNB’s petition has to conform to. These boil down solely to indicating the grounds on which the bank’s licence has been revoked under section 21(2) of the Act.

The logical and comparativelaw construction of the above provisions ... leads to the categorical conclusion that the changes in the statutory regime of bank insolvency are aimed, on the one hand, at a significant reduction in the court’s jurisdiction, [and even] at taking away its power to determine whether the bank is insolvent, and, on the other hand, at empowering [the BNB] to determine that issue without being required to substantiate or prove its finding before the court...

An argument in favour of the above conclusion is section 21(5) of the Act, which expressly provides that the decision of [the BNB] to revoke a banking licence is not subject to judicial review. ... Gathering evidence relating to the ... insolvency of a bank would run counter to the abovecited prohibition against judicial review.

In view of all this the court finds that all [the applicant bank’s] requests and objections ... contesting the BNB’s averments about its insolvency are inadmissible and cannot be examined. The same goes for the evidence presented by [the applicant bank]: even if it is admissible, it should not be taken into account, as it is absolutely irrelevant to the dispute at hand. The two abovecited prerequisites – the order ... revoking the banking licence of [the applicant bank] and the production of a copy of that order to the court... – are sufficient for the resolution of this dispute.”

As the judgment was immediately enforceable (see paragraph 64 below), it was considered that from that moment onwards the persons entitled in law to act on the applicant bank’s behalf were the courtappointed liquidators. Accordingly, the liquidators represented the applicant bank in the ensuing stages of the proceedings.

The liquidators did not appeal against the judgment, but the Sofia City Prosecutor’s Office did. It argued that the Sofia City Court had erred in not examining whether the applicant bank was in fact insolvent. It had thus turned the proceedings into a mere rubber-stamping of the BNB’s petition for an order winding up the applicant bank. Had the court taken the trouble to look at the actual circumstances, it would have found that the applicant bank had more than USD 3,000,000 in cash, as evidenced by a report drawn up by the BNBappointed special administrators. That fact raised the question whether the BNB’s finding that the value of the applicant bank’s liabilities exceeded the value of its assets was indeed true. Also, the BNB had not specified the amount or the date of maturity of the overdue debt the applicant bank was alleged to have failed to pay for more than seven working days. It was thus impossible to carry out an independent assessment of the veracity of its allegation. The Prosecutor’s Office presented an expert report according to which the applicant bank’s assets adequately covered its liabilities.

In reply the BNB and the applicant bank’s liquidators argued that the appeal was unfounded.

On 10 March 1998 a threemember panel of the Supreme Court of Cassation upheld the Sofia City Court’s judgment. Although it held that it could independently establish the facts, without deferring to the BNB’s findings, it was of the view that the applicant bank was indeed insolvent. An analysis of the evidence showed that, according to the BNB’s deputygovernor, the value of the applicant bank’s assets was BGL 8,391,953,000, and the value of its liabilities BGL 9,464,930,000. The difference between those figures was exactly the amount mentioned in the BNB’s decision and its ensuing winding-up petition. Turning to the other factual evidence of insolvency – the nonpayment of a due debt for more than seven working days – the court held that the applicant bank did in fact owe another bank more than USD 2,500,000 under a debt rescheduling agreement of 18 September 1997. No payments had been made in satisfaction of that debt. The applicant bank’s objection that it had not been able to make any payments because of the prohibition on noncash operations imposed on it by the BNB’s decision of 15 May 1997 (see paragraph 13 above) was unfounded. In any event, the reasons for non-payment were irrelevant, since inability, however caused, to pay a debt for more than seven working days was of itself sufficient for the court to find insolvency.

The Chief Prosecutor’s Office filed a petition for review of the judgment of the threemember panel.

On 30 June 1998 a fivemember panel of the Supreme Court of Cassation dismissed that petition in the following terms:

“The first-instance court’s construction of the law – the Banking Act [of 1997] – is correct. The regime of bank insolvency is a lex specialis in relation to general commercial insolvency law ... In this context it has to be considered that the ... prerequisites for ... an order winding up a bank are governed not by the general rules of the Trade Act [of 1991], but by the special rules of the Banks Act [of 1997]... This is necessary because of the specific character of the banking business ... [Banks operate] predominantly with other people’s money, which necessitates compliance with strict requirements for capital adequacy, formation of provisions and ... liquidity. [The BNB monitors compliance with these requirements] as part of its function of banking supervision, with a view to preserving the stability of the banking system and achieving effective and enhanced protection of depositors. Because of this specificity proceedings to wind up banks are expedited, with a view to protecting the interests of the creditors of the insolvent bank.

The Sofia City Court correctly held that the soundness and the expediency of the BNB’s decision to revoke [the applicant bank’s] licence could not be reviewed by the court, because [the BNB has special powers] in discharging its banking supervisory duties. By virtue of section 82 of the Banking Act [of 1997] the court is bound by [the BNB’s] winding-up petition, if it meets the requirements of section 79(3) in conjunction with section 21(2). [T]he court does not carry out an additional examination of circumstances evidencing the insolvency of a bank. ... The BNB alone ... has the competence to determine extra-judicially whether the two grounds for [declaring a bank insolvent] exist. [This determination] is not subject to review by the court, which has no latitude in such proceedings. Once the BNB has established the insolvency of a bank before the winding-up procedure begins, the court may not reconsider the issue. It must only carry out a formal, ex facie verification of [the BNB]’s winding-up petition, without venturing into the substantive issues..., because it is the revocation of the licence itself that constitutes the ground for making a winding-up order. The court may only verify whether [the BNB]’s decision is void, but may not examine whether [the BNB’s] finding of insolvency is borne out by the facts...”

Thereafter winding-up proceedings unfolded in respect of the applicant bank.

In the course of those proceedings the applicant bank’s creditors, which included its three shareholders, submitted their proofs of debt to the bank’s liquidators. The liquidators examined the proofs and drew up a list of agreed claims. Two of the bank’s shareholders, TOO Royal Flash and OOO Rontadent Trade, and two other creditors made objections to the list, which the liquidators examined. The liquidators then transmitted the list to the Sofia City Court for approval. No objections to the list were made to the court, which approved it in a final judgment of 9 February 1999. On 7 December 2000 the liquidators tried to obtain a ruling that a debt to the Commercial and Savings Bank AD did not exist and that the underlying claim should accordingly be disallowed, but the Sofia City Court declared their request inadmissible in a decision of 23 January 2001, holding that no objections had been made to that claim at the appropriate time, and that the existence of the debt had therefore been conclusively established in its judgment of 9 February 1999, which was binding on the bank, its creditors and liquidators.

On 10 October 2003 the applicant bank’s liquidators applied to the Bank Deposits Guarantee Fund (see paragraph 67 below) for permission to start negotiations with potential buyers for the purchase of the applicant bank’s entire undertaking. Permission was granted on 14 October 2003 and on 31 January 2005 the liquidators entered into a contract for the sale of the undertaking to the Central Cooperative Bank AD, with the latter agreeing to pay a purchase price of BGN 1 and the applicant bank’s creditors BGN 3,254,000 in satisfaction of their claims. The contract was approved by the Sofia City Court in a final judgment of 8 April 2005.

In a final judgment of 20 April 2005 the same court, on an application by the applicant bank’s liquidators, brought the winding up to an end and ordered that the applicant bank be struck off the register of companies.

On an unspecified date in 2002 one of the applicant bank’s shareholders, First Financial AD, lodged with the Supreme Administrative Court an application for judicial review of the BNB’s decision to revoke the bank’s licence. It argued that the decision was null and void. Later the chairman and vicechairman of the applicant bank’s board of directors, purporting to act on the bank’s behalf, requested leave to intervene in the proceedings.

In a decision of 5 March 2002 a threemember panel of the Supreme Administrative Court held that the applicant bank’s request to be allowed to intervene in the proceedings was inadmissible because it had been lodged by persons who no longer represented it. Following the winding-up order and by virtue of section 84(3) of the Banks Act of 1997, read in conjunction with section 658(1) of the Trade Act of 1991, the only persons with power to act on its behalf were the liquidators. The court went on to hold that First Financial AD’s application for judicial review of the BNB’s decision was inadmissible. Section 21(5) of the Banks Act of 1997 excluded decisions by the BNB to revoke a bank’s licence from the scope of judicial review. That provision was to be construed according to its plain meaning and was applicable regardless of whether the request was to annul the decision or to declare it null and void. Furthermore, First Financial AD had no standing to lodge an application for judicial review, because the BNB’s decision was addressed to the applicant bank, not to its shareholders.

The chairman and the vicechairman of the applicant bank’s board of directors and First Financial AD appealed.

In a decision of 10 April 2002 a fivemember panel of the Supreme Administrative Court declared the appeal by the chairman and vicechairman of the applicant bank’s board of directors inadmissible and First Financial AD’s appeal illfounded. It held that no appeal lay against the refusal to allow the applicant bank to intervene in the proceedings. It also held that the decision not to examine First Financial AD’s application for judicial review on the merits was correct. The prohibition of section 21(5) of the Banks Act of 1997 applied regardless of whether the request was to annul the BNB’s decision or to declare it null and void.

In late 1997 the chairman and the vicechairman of the applicant bank’s board of directors complained to the prosecution authorities about the actions of the BNB’s deputygovernor in charge of banking supervision who had made the order of 11 November 1997 and the recommendation to the governor of the Central Bank to revoke the applicant bank’s licence (see paragraphs 18 and 20 above). They argued that she had acted in excess of her powers with a view to causing damage to the applicant bank. On 8 June 1998 the Chief Prosecutor’s Office ordered a criminal investigation into the deputygovernor’s actions. On 6 November 1998 she was charged with abuse of office. In the course of the investigation the prosecution authorities ordered expert reports on, inter alia, the issue of whether the applicant bank had been insolvent as of 20 November 1997. One of the experts answered that question in the affirmative, another answered it in the negative.

One of the expert reports, drawn up on 7 April 1999, noted that a confidential agreement concluded in May 1997 between the International Monetary Fund (“the IMF”) and Bulgaria for the establishment of a currency board in the country stipulated that the right to appeal against the BNB’s decisions should be preserved, but should not hamper it in the performance of its banking supervisory functions. According to an opinion expressed by the IMF’s mission in Bulgaria, any successful appeal should only lead to an award of compensation, not to the invalidation of the BNB’s decision to close the bank. It appears to have been the view of the IMF’s mission in Bulgaria that the protracted process of judicial review of the BNB’s decisions and their possible invalidation would not be consistent with the effective process of banking supervision.

On 23 April 1999 a prosecutor from the Supreme Cassation Prosecutor’s Office discontinued the proceedings, considering that the BNB’s deputygovernor had acted lawfully and had not acted in abuse of office. On 11 March 2005 another prosecutor from the Supreme Cassation Prosecutor’s Office, acting on a complaint by the applicant bank’s shareholders, decided to reopen the investigation, which the Court understands is still pending.

In 199697 a serious financial crisis unfolded in Bulgaria, leading to economic instability, considerable inflation and the failure of a number of Stateowned and private banks. As a response to that and after negotiations with the IMF, the country adopted a currency board, whereby its national currency became pegged to the German mark, and also established a completely new legislative framework regulating the activity of banks, mainly consisting of the new Bulgarian National Bank Act of 1997 („Закон за Българската народна банка“), which entered into force on 10 June and 1 July 1997, and the Banks Act of 1997 („Закон за банките“), which entered into force on 1 July 1997 and superseded the Banks and Credit Business Act of 1992 („Закон за банките и кредитното дело“).

The BNB, established in 1879, is the Central Bank of Bulgaria. At present its mission, structure, mandate and powers are principally set out in the Bulgarian National Bank Act of 1997. Its duties comprise, inter alia, regulating and supervising the other banks in the country with a view to securing the stability of the banking system and protecting the interests of depositors (section 2(6) of the Act). It is accountable to the National Assembly (section 1(2) of the Act), which elects its governor (section 12(1) of the Act) and deputygovernors (section 12(2) of the Act). The three remaining members of its board are appointed by the President of the Republic (section 12(3) of the Act). Section 44 of the Act, as worded at the material time, provided that the BNB was independent of the instructions of the Council of Ministers or any other government agency in the exercise of its powers.

Under the Banks and Credit Business Act of 1992 the BNB could, under certain conditions, restrict the activities of a bank and the types of transactions it could enter into (section 56(1)(5) of the Banks and Credit Business Act of 1992; see also section 65(2)(6) of the Banks Act of 1997).

Section 65(1)(1) and (2)(3) of the Banks Act of 1997 allows in broad terms the BNB to direct a bank in writing to remedy breaches of the Act or of the BNB’s regulations or other Acts or directives.

Under section 58(2) in conjunction with section 56(1)(5) of the Banks and Credit Business Act of 1992, the BNB could appoint special administrators („квестори“) with the power to, inter alia, control the activities of the bank, verify whether it had complied with restrictions, gain access to its premises and check all its operations (see also section 58(1)(1) and (2) of that Act).

Sections 68 and 69 of the Banks Act of 1997 also allow the BNB to appoint special administrators to a bank. These special administrators act in lieu of the bank’s board of directors (section 71(1)), that is to say on behalf of the bank. They are appointed and dismissed by the BNB (section 69(1)), which may give them instructions (section 71(3)), and are accountable only to it (section 71(5)). All transactions made by a bank without the prior approval of the special administrators are null and void (section 71(6)).

The BNB is required to revoke a bank’s licence on the ground of insolvency if (a) the bank fails for more than seven working days to repay a debt which has fallen due or (b) the total of the bank’s liabilities exceeds the total of its assets (section 21(2) of the Banks Act of 1997). The value of the bank’s assets and liabilities is determined by the BNB in accordance with supervisory requirements and its own rules (section 21(3)).

When it revokes a bank’s licence, the BNB must appoint special administrators (see paragraphs 49 and 50 above) if none have yet been appointed (section 21(4) of the Banks Act of 1997). The administrators represent the bank until the court appoints liquidators (section 69(3) of the Banks Act of 1997). A decision by the BNB to revoke a bank’s licence is immediately enforceable (section 21(5) of the Banks Act of 1997).

As an exception to the general rules of administrative procedure (sections 7(2) and 11(1) of the Administrative Procedure Act of 1979 („Закон за административното производство“)), the BNB does not inform the bank of the commencement of the procedure for revoking its licence and does not have to examine or take into account the bank’s representations and objections, if any (section 21(5) of the Banks Act of 1997). Under previous legislation (section 56(4) of the now repealed Banks and Credit Business Act of 1992), when revoking a bank’s licence the only circumstance in which the BNB could dispense with informing the bank of the commencement of the procedure and with examining its representations and objections was if the case was exigent and urgent.

After revoking a bank’s licence on the ground of insolvency, the BNB is required to file with the competent insolvency court a petition for an order winding-up the bank (former section 79(1) of the Banks Act of 1997; see also sections 8 and 9 of the Bank Insolvency Act of 2002 („Закон за банковата несъстоятелност“), which in December 2002 superseded the provisions of the Banks Act of 1997 relating to the winding up of insolvent banks).

Article 120 of the Constitution of 1991 provides:

“1. The courts shall review the lawfulness of the administration’s acts and decisions.

Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”

Whereas the BNB’s decisions under the Banks and Credit Business Act of 1992 were, without limitation, subject to review by the Supreme Administrative Court (section 88(2) and (3) of the Banks and Credit Business Act of 1992), the Banks Act of 1997 prohibits judicial review of a number of the BNB’s decisions. Thus, supervisory and enforcement measures ordered by the BNB under section 65 of the Act are not subject to judicial review (section 65(4) of the Banks Act of 1997); neither are its decisions to revoke a bank’s licence (section 21(5) of the Banks Act of 1997), or to appoint or replace special administrators at a bank (sections 65(4) and 69(4) of the Banks Act of 1997).

The Administrative Procedure Act of 1979 governs the procedure for issuing administrative decisions and for judicial review of such decisions. An application for judicial review must be lodged within a specified timelimit, which varies depending on whether the administrative decision was express or implied and on whether there has been an appeal to a higher administrative authority (section 37(1), read in conjunction with sections 22, 29 and 31 of the Act). The only circumstance in which no timelimit will apply is if it is alleged that the administrative decision is null and void (section 37(2) of the Act).

On 14 November 1997 the Constitutional Court delivered judgment (реш. № 18 от 14 ноември 1997 г. по конституционно дело № 12 от 1997 г., обн., ДВ брой 110 от 25 ноември 1997 г.) in proceedings that had been brought by fiftyone members of Parliament who considered, inter alia, that sections 21(5) and 65(4) of the Banks Act of 1997 should be declared contrary to Article 120 § 2 of the Constitution.

The Constitutional Court dismissed the complaint in the following terms:

“[This] court has already clearly and categorically expressed the view that ‘judicial review of administrative decisions is a constitutive element of the rule of law’...

The court is of the view that the question of the judicial review of administrative decisions may be resolved only in accordance with the express wording of Article 120 § 2 of the Constitution. According to that provision, judicial review of administrative decisions may be limited only by statute. In the case at hand this means the Banks Act [of 1997].

In view of the wording of Article 120 § 2 in fine of the Constitution, the court may not come up with an interpretation providing exceptions to the exception. Only the legislature has the power, by statute, to exclude certain administrative decisions from judicial review. [Article 120 § 2] does not lay down any criteria limiting the legislature’s powers in this respect. This is a question falling within the legislature’s competence...

At the same time the court deems it necessary to point out that the legislature’s right to exclude certain categories of administrative decisions from judicial review is not absolute. In exercising that right the National Assembly must have regard to the main constitutional principles relating to the rule of law and the protection of the fundamental human rights. The power granted to the National Assembly by Article 120 § 2 in fine is an exception and has to be construed and applied restrictively. The character of this exception requires the National Assembly to use its powers in this respect only when it has good and compelling reasons to do so. To hold otherwise would render the principle of judicial review meaningless. For this reason [this court] has jurisdiction to assess in each specific case whether the legislature’s discretion has been exercised within the limits laid down in the Constitution...

An analysis of the decisions excluded from judicial review by the Banks Act [of 1997] indicates that the legislature has remained within the bounds of its constitutional discretion in protecting the public interest and the interests of depositors. These are mainly acts of banking supervision, an area in which the competence of the supervisory body cannot be supplanted by judicial decision. ... In all cases where the administrative decisions that are not subject to review affect the rights and legal interests of individual citizens, there are no obstacles to their seeking redress in a civil action and claiming compensation for the alleged damage.

In addition, the Court considers it necessary to emphasise that the rule set out in Article 120 § 2 in fine of the Constitution does not preclude the courts from ruling incidentally on the nullity of administrative decisions. To hold otherwise would mean that vitiated administrative decisions, such as decisions issued ultra vires, would be less easy to challenge than a statute, whose unconstitutionality can be established in proceedings before the Constitutional Court. In this sense the restriction on reviewing administrative decisions is not absolute.”

Before 1 July 1997 bank insolvency was regulated by the Banks and Credit Business Act of 1992. From that date onward the newly adopted Banks Act of 1997 became applicable to such proceedings (until December 2002, when its provisions relating to bank insolvency were superseded by the Bank Insolvency Act of 2002 – see paragraph 54 above).

The regime of bank insolvency set forth in the Banks Act of 1997 (and largely followed by the Bank Insolvency Act of 2002) contained a number of special features. Only the BNB, not creditors or the bank itself, could petition for a winding-up order against a bank (former section 79(2) of the Banks Act of 1997). The BNB had a statutory obligation to lodge such a petition after revoking a bank’s licence on the ground of insolvency (former section 79(1) of the Banks Act of 1997). The petition needed only specify the grounds on which the bank’s licence had been revoked under section 21(2) of the Banks Act of 1997 (former section 79(3) of the Banks Act of 1997). A certified copy of the BNB’s decision to revoke the licence had to be enclosed with the petition (ibid.). The petition was examined by the competent court at a hearing in the presence of a prosecutor from which the public was excluded (former section 81 of the Banks Act of 1997). The court had no power to make an order for the restructuring of the bank (former section 91 of the Banks Act of 1997). The bank was divested of the right to administer and dispose of its assets (former section 82(6) of the Banks Act of 1997), and, when granting the petition, the court was also required to immediately order the sale of the bank’s assets and the distribution of the proceeds to its creditors (former section 82(7) of the Banks Act of 1997). The court divested the bank’s decision-making bodies (such as the general meeting of shareholders and the board of directors) of their powers (former section 82(4) of the Banks Act of 1997) and appointed liquidators („синдици“ – former section 82(8) of the Banks Act of 1997) in whom most of these powers, including the right to represent the bank in court, were vested (former section 84(3) of the Banks Act of 1997, in conjunction with section 658(1) of the Trade Act of 1991 („Търговски закон“)).

The decision-making bodies of a company in liquidation continue, however, to exist and may act on its behalf in certain limited circumstances; for instance, when there is a conflict of interest between the company and the liquidators. Thus, in a decision of 19 July 1999 (опред. № 234 от 19 юли 1999 г. по гр.д. № 52/1999 г. на ВКС, петчленен състав) the Supreme Court of Cassation held that the insolvent company, not the liquidator, had standing to appeal against the winding-up order. The rationale adopted by the court was that the liquidator might have a conflict of interest with the company. However, section 16(1) of the Bank Insolvency Act of 2002 now provides that it is the BNBappointed special administrators (see paragraph 50 above) who may appeal against a court order putting a bank into compulsory liquidation.

The court could appoint liquidators only from a panel of qualified persons named on a list drawn up by the BNB (former section 84(1) of the Banks Act of 1997). If a liquidator was subsequently struck off that list by the BNB, the court was bound to discharge him or her (former section 84(2) of the Banks Act of 1997). In a decision of 29 October 1997 the Supreme Court of Cassation held that the insolvency court could not review a decision by the BNB to remove a person from that list, because the court had no discretion in this respect (опред. № 1712 от 29 октомври 1997 г. по гр.д. № 1631/1997 г., на ВКС, V г.о.).

The Trade Act of 1991 was applicable mutatis mutandis and insofar as the Banks Act of 1997 did not contain special rules (former section 97 of the Banks Act of 1997). Section 634 of the Trade Act of 1991, which thus appears to have been applicable, provides that a court order declaring a debtor insolvent and requiring it to be wound up is immediately enforceable (see also section 13(2) of the Bank Insolvency Act of 2002).

A winding-up order has the effect of automatically staying all pending enforcement proceedings against property forming part of the insolvent entity’s estate (section 638(1) of the Trade Act of 1991, as applicable until superseded in December 2002 in respect of banks by section 21(1) of the Bank (Insolvency) Act of 2002, which provides for such proceedings to be stayed even earlier, namely when the BNB’s decision revoking the bank’s licence is published in the State Gazette).

Creditors of the bank were required to submit their proofs of debt to the liquidators within one month after the publication of the winding-up order (former section 86(1) of the Banks Act of 1997). The liquidators then examined the claims, drew up a list of agreed claims, and informed the creditors thereof by a notice published in, inter alia, the State Gazette (former section 87(1) of the Banks Act of 1997). The creditors and shareholders of the bank owning at least 25% of the voting shares were entitled to lodge objections to the list with the liquidators (former section 87(2) of the Banks Act of 1997). The liquidators were required to examine the objections within fourteen days in the presence of the debtor, the creditor whose claim was challenged, and the person who had made the objection (section 690(2) of the Trade Act of 1991, as in force at the material time). The liquidators then submitted the original or the amended list, as appropriate, to the insolvency court for approval. Any of the above persons could then repeat its objection before the court, which had a duty to examine it at a public hearing (section 692(1), (2) and (3) of the Trade Act of 1991, as in force at the material time). An appeal lay against the court’s judgment to the Supreme Court of Cassation (former section 90(1) of the Banks Act of 1997, as in force at the material time). If no objections were made before the court, it examined the list in private and approved it in a final judgment (section 692(5) of the Trade Act of 1991, as in force at the material time). The court’s judgment was binding on the insolvent bank, the liquidator, and all the creditors (former section 90(6) of the Banks Act of 1997, as in force at the material time).

The insolvent bank’s assets may be sold off individually at auction and the proceeds then distributed among the creditors whose claims have been allowed (former sections 92, 94a and 95 of the Banks Act of 1997, in conjunction with sections 71632 of the Trade Act of 1991, superseded in December 2002 by sections 7290 and 93104 of the Bank Insolvency Act of 2002). Alternatively, the liquidators may try to sell the bank’s entire undertaking to another licensed bank, with the permission of the body responsible for overseeing the winding up of banks, the Bank Deposits Guarantee Fund (sections 91 and 92 of the Bank Insolvency Act of 2002; see also former sections 93 and 94 of the Banks Act of 1997).

A bank’s paidup capital on incorporation must not be less than BGL 10,000,000,000 (BGN 10,000,000 after the currency revalorization of 5 July 1999) (section 23(2) of the Banks Act of 1997). All payments made by the shareholders for subscribed shares must be in cash, until this minimum capital is attained (section 23(3) of the Banks Act of 1997). The bank’s capital must at all times surpass this amount (section 2(2) of the BNB’s Regulation no. 8 of 5 August 1997 on the capital adequacy of banks, superseded on 1 July 2005 by section 2(2) of the BNB’s Regulation no. 8 of 23 December 2004 on the capital adequacy of banks).

Also, a bank’s capital adequacy: the ratio between its capital base – defined as its primary, or tierone, capital (including paidup shares plus premiums and statutory and other reserves minus intangible assets, losses, and treasury shares – section 9 of Regulation no. 8 of 5 August 1997), plus supplementary capital elements, or tiertwo, capital (including retained earnings, special reserves, hybrid capital instruments, subordinated debt – section 10 of Regulation no. 8 of 5 August 1997) – and its riskweighted assets and offbalancesheet items may not be less than 12% (section 23(3) of Regulation no. 8 of 5 August 1997; see also section 8(6) of the BNB’s Regulation no. 8 of 23 December 2004 on the capital adequacy of banks).

Under Bulgarian law banks are jointstock companies („акционерно дружество“ – section 1(1) of the Banks Act of 1997). The capital of jointstock companies may be increased by, inter alia, issuing new shares (section 192(1) of the Trade Act of 1991). Once these shares have been subscribed, the subscriber is under an obligation to pay cash or to provide noncash consideration for the shares (section 188(1) of the Trade Act of 1991). The manner and conditions for providing noncash consideration are laid down in sections 72 and 73 of the Trade Act of 1991 (see also new sections 73b and 73c of the Trade Act of 1991).

If a bank decides to increase its capital by issuing shares for noncash consideration, it has to obtain the prior written approval of the BNB (section 19(2)(5), now section 19(4)(5), of the Banks Act of 1997). Any increase made without such approval is null and void (section 19(6), now section 19(9), of the Banks Act of 1997).

At the relevant time section 120(2) of the Trade Act of 1991 prohibited any set-off between the obligation of a member of a limited liability company („дружество с ограничена отговорност“) to pay up his or her shares against debt due by that company to the member. At the time it was unclear whether this prohibition also applied to jointstock companies in the absence of any express provision. Although expressed obiter, the Supreme Court of Cassation’s view appears to have been that it did (опред. № 51 от 26 февруари 1999 г. по гр.д. № 41/1999 г. на ВКС, V г.о.). In 2000 the legislature clarified the issue by introducing a new section 73a of the Trade Act of 1991, whereby the proscription was explicitly expanded to both limited liability companies and jointstock companies.

Section 1(1) of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides that the State is liable for damage suffered by private persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. Section 1(2) provides that compensation for damage flowing from unlawful decisions may be claimed after the decisions concerned have annulled in prior proceedings. The court examining the claim for compensation cannot inquire into the validity of a voidable decision; it may merely examine whether a decision is null and void. Only natural persons, not juristic persons, may claim compensation under the Act (реш. № 1307 от 21 октомври 2003 г. по гр.д. № 2136/2002 г., на ВКС, V г.о.). Persons seeking redress for damage occasioned in circumstances falling within the scope of the Act have no claim under the general law of tort, as the Act is a lex specialis and excludes the application of the general regime (section 8(1); реш. № 1370/1992 г. от 16 декември 1992 г. по гр.д. № 1181/1992 г. на ВС, ІV г.о.; реш. от 29 юли 2002 г. по гр.д. № 169/2002 г. на СГС, ГК, ІVб отд.).


The applicant, Mr Retzep Karabouyiouklou, is a Greek national, who was born in 1959 and lives in Xanthi. The Government are represented by Mr V. Kyriazopoulos and Mr D. Kalogiros of the Legal Council of the State, Acting Agents.

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

The applicant, who considers himself a member of the Muslim Turkish minority of Thrace, is a graduate of the Special Academy for Teachers of Thessaloniki. He used to work as a teacher in the minority schools of Thrace. His conditions of employment were not different from those of other civil servants.

On 18 January 1993 the Minority Schools Office of the Prefecture of Rodopi called all the Muslim teachers of the minority schools of Rodopi to attend an educational meeting on 1 February 1993. The aim of the meeting was to present new books for the teaching of the Turkish language, which would be delivered to the directors of the schools between 2 and 5 February 1993.

A similar order was issued on 19 January 1993 by the Minority Schools Office of the Prefecture of Xanthi.

On 26 January 1993 the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement to the effect that the content of these books “was in breach of the autonomy of the Muslim Turkish Minority of Western Thrace” and failed to respect certain international agreements. The Muslim teachers were called upon not to collect these books and the Muslim pupils not to attend school between 1 and 5 February 1993, in order to voice the protest of the Muslim Turkish Minority of Western Thrace.

On 29 January 1993 the Union of Turkish Teachers of Western Thrace issued a statement to the effect that the Turkish schools of Western Thrace would be closed between 1 and 5 February 1993, because the Turkish teachers of Western Thrace were against the Turkish language books which the Greek State intended to distribute to the pupils of the minority schools. The statement also said that all the Turkish Muslim teachers of Western Thrace would participate in the strike. Reference was made to the members of the Union of Teachers of Western Thrace who were graduates of the Special Academy for Teachers of Thessaloniki. The statement specified that all those who felt they were Turkish and who wanted to learn or teach the Turkish language would take part in the boycott.

On an unspecified date, a Muslim religious leader, the mufti of Xanthi, called on the Muslim teachers who felt they were Turkish, not to go to the presentation of the books on 1 February 1993.

On 1 February 1993 eleven teachers of the minority schools of Xanthi, including the applicant, signed a statement to the effect that they would not attend the educational meeting in the Minority Schools Office of the Prefecture of Xanthi in order to protest about certain unfair decisions against them concerning posting, transfer and secondment and their exclusion from training seminars in Thessaloniki and Strasbourg. They specified that they would not carry out their duties between 1 and 5 February 1993.

On 5 February 1993 the Executive Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights.

On 8 February 1993 the Minority Schools Office of the Prefecture of Xanthi decided to institute disciplinary proceedings under Article 206 § 1 of the Civil Servants’ Code against thirteen minority school teachers, including the applicant, for having failed to attend the educational meeting of 1 February 1993.

On 10 February 1993 the Regional Disciplinary Board of Xanthi ordered an inquiry and decided provisionally to suspend the applicant from his duties for a year pending the outcome of the disciplinary proceedings against him.

On 31 March 1993 the Ministry of Education confirmed the decision of the Regional Disciplinary Board of Xanthi regarding the provisional suspension of the applicant from his duties.

On 5 April 1994 the Regional Disciplinary Board of Xanthi issued a decision in which it considered the following:

– Firstly, the applicant had been asked by his superiors to attend the educational meeting of 1 February 1993 but had failed to do so, arguing that attending the meeting would have disrupted his relationship with his pupils and their parents and put his personal integrity in danger. However, the Board considered that this excuse was not valid, because the meeting would have taken place in the city of Xanthi far from the applicant’s school area. Moreover, the applicant took part in the strike between 1 and 5 February 1993 complying with the order and appeal of the irregular Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993. He had accused the State of persecuting him. His illegal acts had contributed to creating tension and commotion in the minority community. The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in Western Thrace. Thus, he had become an agent of foreign anti-Greek powers. These facts constituted the following disciplinary offences: not having faith in and dedication to his country (Article 206 § 1–1 of the Civil Servants’ Code), refusing to discharge his duties or employing obstructive tactics (Article 206 § 1–19 of the Code), taking part in a strike in breach of Article 23 § 2 of the Constitution and the relevant legislation (Article 206 § 1–20 of the Code) and intentionally engaging in an act or omission which could damage or endanger the interests of the State (Article 206 § 1–27 of the Code).

– Secondly, the applicant had publicly criticised the Ministry of Education on the ground that the new books were distributed in breach of international agreements concluded by Greece. As a result, he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments (Article 206 § 1–6 of the above-mentioned Code).

– Thirdly, the applicant had become an organ of irregular committees acting against the interests of the nation. His actions had stirred up trouble in the minority community and had led to the involvement of Turkish newspapers, to tension between the two countries, and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools. As a result, the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law (Article 206 § 1–28 of the Code).

The Board was fully satisfied that the applicant “acting in full conscience and with intent and malice, behaving in a manner incompatible with [his] status as civil servant, acting against the nation and obeying the commands of anti-Greek power structures, aimed at destabilising the region where the situation was until then normal and creating social unrest”. In the light of all the above, the Board decided to dismiss the applicant.

On 7 April 1994 the Prefect of Xanthi ordered the applicant’s dismissal by virtue of Article 12 of Presidential Decree no. 1024/1979. Under that decree, pertaining to the appointment and career of Muslim teachers in the minority schools of Thrace, the Prefect is the competent authority to pronounce the termination of service of Muslim teachers.

On 30 May 1994 the applicant challenged the decision of the Disciplinary Board and the Prefect’s decision before the Council of State. He claimed that he did not lack faith in and dedication to his country, that he had not acted against social order, that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government, that he had not refused to discharge his duties but had instead participated in a lawful strike, that he had not engaged in any acts which could have caused damage to the State or in any criminal offences, that he had been forced not to collect the books in person because his life had been threatened by other Muslims, that the Board had attributed wrong motives to his actions which were not anti-Greek and that his punishment aimed at his destruction. He further submitted that the hearing before the Disciplinary Board had not been preceded by a proper inquiry, that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that the Board had not heard a number of witnesses he had proposed. Finally, the applicant argued that the decision of the Board was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty.

On 22 June 1995 the Council of State rejected the applicant’s appeal against the decision of the Disciplinary Board of 5 April 1994. The Council considered that the inquiry ordered on 10 February 1993 satisfied the requirements of the law and that the Board had not failed to examine any witnesses proposed by the applicant. The Council also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of 8 February 1993 by which the disciplinary proceedings had been instituted. The applicant could only be punished for having failed to attend the educational meeting of 1 February 1993. However, the Disciplinary Board and the Council of State remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings. The Council considered that the applicant’s failure to attend the meeting of 1 February 1993 in order to participate in the strike between 1 and 5 February 1993 amounted to the disciplinary offence of serious disobedience under Article 207 § 4–10 of the Civil Servants’ Code. The Council found that the punishment imposed was appropriate given the circumstances in which the offence had taken place. The Council referred in this connection to the statement of 26 January 1993 of the Co-ordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace, the statement of 29 January 1993 of the Union of Turkish Teachers of Western Thrace and the statement of the mufti of Xanthi which called on all the Muslim teachers who considered themselves Turkish not to attend the educational meeting of 1 February 1993. The Council considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above-mentioned statements of organisations which purported to represent the self-proclaimed Turkish minority of Western Thrace. Seen in the light of the above, the applicant’s actions had had as a result the disruption of the functioning of the minority schools in Western Thrace in which the State was particularly interested. They had also resulted in social unrest among the Muslim minority of this sensitive region. This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between Greece and neighbouring countries and in the disruption of the harmonious coexistence between the Greek citizens, Muslim and Christian, who lived in Western Thrace.

Finally, the Council considered that the decision of the Board was duly reasoned. All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of 1 February 1993, although he had been asked to do so by his superiors. The decision also specified that the applicant had complied with the order and appeal of the irregular Coordination Committee of the Highest Council of the Muslim Turkish Minority of Western Thrace and the appeal of the illegally self-proclaimed mufti of Xanthi calling on the Muslim teachers who felt they were Turkish not to attend the meeting of 1 February 1993 (decision no. 3597/1995).

On 4 December 1995 the Prefect of Xanthi revoked his decision of 7 April 1994 and, in compliance with decision no. 3597/1995 of the Council of State, ordered the applicant’s dismissal as from the same date.

On 4 April 1996 the Council of State struck out the proceedings instituted against the Prefect’s decision of 7 April 1994, on the ground that the decision complained of had already been revoked by the Prefect (decision no. 1717/1996).

On 4 December 1997 the Prefect ordered for the third time the applicant’s dismissal.

On 16 March 1998 the applicant appealed against the Prefect’s decision of 4 December 1997 to the Administrative Court of Appeal of Komotini. He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom. He further complained that he was not previously heard by the Prefect. The applicant further invoked Articles 6 and 14 of the Convention and 1 of Protocol No. 1.

On 13 June 2000 the Administrative Court of Appeal rejected the appeal (decision no. 174/2000). The court held that, by definition, the Prefect had a better knowledge of the local situation than the Minister; therefore, it could not be sustained that the delegation to the Prefect to pronounce the termination of service of Muslim teachers violated the religious freedom. Moreover, the court held that the Prefect’s decision aimed at complying with the relevant decisions of the Council of State; therefore, the previous hearing of the applicant was not required. The applicant did not appeal against this decision to the Council of State.

The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums (arrears of salaries, compensation for his dismissal, etc.). The applicant alleges that a set of proceedings instituted on 30 June 1997 before the First Instance Court of Rodopi is still pending. He further alleges that on 12 October 1998 the Minority Schools Office notified to him a decision of the Minister of Education that his pecuniary claims had been statute-barred.

On 2 September 1997 the applicant instituted proceedings also before the First Instance Administrative Court of Komotini. On 28 December 2001 the court noted that the applicant had perceived his salaries for a certain period after his dismissal. It declared his recourse inadmissible on the ground that the applicant was not duly represented by a lawyer (decision no. 280/2001). The applicant did not appeal against this decision within the sixty days time-limit provided for by the Code of Administrative Proceedings.


The first applicant, Ms Jutta Köhler, is a German national who was born in 1962 and lives in Nuremberg, Germany. She lodged the application also in the name of her daughter Julia Köhler (second applicant), a German national born in 1996.

s, may be summarised as follows.

The second applicant, Julia Köhler (J.), is the daughter of the first applicant and E. She was born out of wedlock on 2 January 1996. Pursuant to the statutory provisions (section 1626a § 2 of the Civil Code) the first applicant had sole custody of J. who has been living with her mother since her birth.

At the age of three, J. was diagnosed with a general development and autistic disorder and with retrogressive speaking capacities. She was not admitted to an ordinary nursery school.

On 31 August 2001 the Nuremberg Youth Office lodged a motion with the Nuremberg District Court (no. 110 F 02973/01) to restrict the first applicant’s custodial right to decide on her daughter’s whereabouts and health care and to appoint the Youth Office as special curator (Ergänzungspfleger) to deal with these issues.

On 26 November 2001 the Nuremberg District Court appointed Ms L.-K., a lawyer, as J.’s curator ad litem to represent her interests the custody proceedings.

On 28 December 2001 the Nuremberg District Court refused to change its decision to appoint a curator ad litem on the first applicant’s motion, arguing that no appeal lay against such an interim decision. In any event, the appeal would also be ill-founded, as the first applicant failed to give convincing reasons against Ms L.-K.’s appointment. On 17 January 2002 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision.

On 18 February 2002 the Nuremberg District Court, having heard the first applicant, her daughter’s curator ad litem and a representative of the Youth Office, restricted the first applicant’s sole custody over her daughter pursuant to section 1666 of the Civil Code. It ruled that the first applicant was no longer entitled to choose which nursery school or school her daughter should attend and had no right to determine her daughter’s whereabouts. It appointed the Nuremberg Youth Office as special curator to decide on these issues. The court authorised the Youth Office to enforce the child’s surrender, if necessary with the help of the police, in order to secure the execution of the court’s decision.

Having regard to the report of a doctor working for the city of Nuremberg dated 7 February 2002, earlier medical reports and its own attempt on 10 January 2002 to hear J. (with whom, however, a communication had proved impossible), the District Court found that it was almost certain that J. suffered from a severe development disorder and showed clearly autistic behaviour. Therefore, J. was in need of care in a specialised institution. The first applicant was acutely endangering her daughter’s mental welfare by refusing to accept her daughter’s illness and to send the child to an institution responding to her needs. Instead, the first applicant insisted on sending her daughter to an ordinary (nursery) school or to a school merely treating speaking irregularities. Her custody of J. therefore had to be restricted in respect of these issues.

The District Court observed that it was in J.’s best interests to attend an institution individually educating children with autistic behaviour while living with her mother. However, should the first applicant continuously refuse to send her daughter to a suitable institution it was necessary, as a last resort, to separate mother and daughter and to place J. in a home providing her with the necessary individual care.

On 3 April 2002 the Nuremberg District Court dismissed the first applicant’s motions to rectify the protocol of the court’s hearing. It found that the changes proposed by the first applicant concerned additional information she had not yet given in the hearing itself.

On 16 May 2002 the Nuremberg Court of Appeal dismissed the applicant’s appeal against the District Court’s decision dated 3 April 2002, as no appeal lay against this decision.

On 30 July 2002 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint against the decisions of 26 November 2001, 28 December 2001, 3 April 2002 and 16 May 2002 (no. 1 BvR 1067/02).

In July 2002 J. attended test lessons in an ordinary school together with her mother and grandmother. At the outset J. was crying and shouting loudly and refused to stay in the classroom. She only calmed down after she had been running up and down the corridor with her mother and both had been shouting for twenty minutes. Back in the classroom, she refused to follow any of the teacher’s instructions and did not react to any questions. She then wrote the alphabet on the blackboard and, when interrupted, had a rage attack and was jumping around in the classroom to calm down. She did not speak a single word during the lessons and did not establish contact with anyone. In further test lessons at a later date J. was only running around in the classroom, did not react to any instructions and frightened other children by running closely towards them uttering inarticulate sounds. In view of this, the school director and teachers informed the first applicant that it was impossible to educate J. and respond to her needs in an ordinary school.

On 19 August 2002 J. was taken away from her mother with the help of the police on the motion of the Youth Office, acting as J.’s special curator, as her mother had refused to allow her to attend a specialised school taking account of her educational needs. She was placed in an open youth home – the location of which was not disclosed to the first applicant – in which she subsequently attended a school furthering its pupils’ learning progress individually.

On 21 August 2002 the Nuremberg Court of Appeal, having heard the first applicant, the second applicant’s curator ad litem and a representative of the Youth Office, dismissed the applicant’s appeal against the District Court’s decision dated 18 February 2002, which thereby became final.

On 16 September 2002 the applicants lodged a complaint with the Federal Constitutional Court (no. 1 BvR 1792/02) against the impugned decisions of the District Court dated 18 February 2002 and of the Nuremberg Court of Appeal dated 21 August 2002.

In at least one letter dated 22 January 2003 the Youth Office invited the first applicant to contact the Youth Office in order to set up a visiting arrangement. However, no contacts between mother and daughter could be built up.

A subsequent action for damages brought by the first applicant with the Nuremberg civil courts against J.’s curator ad litem because of her conduct in the custody proceedings was to no avail. The Federal Constitutional Court refused to admit the first applicant’s constitutional complaint concerning these decisions on 25 August 2005 (no. 1 BvR 1439/05).

On 13 October 2006 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint (no. 1 BvR 1792/02) against the decisions of 18 February 2002 of 21 August 2002.

On 23 February 2004 the first applicant lodged a motion with the Nuremberg District Court (no. 110 F 610/04) to be surrendered her daughter. She argued that the separation from her and her daughter’s placement in a youth home constituted an illegal deprivation of liberty. Moreover, her daughter’s right to be integrated in an ordinary school as protected by the Constitution had been breached.

In its report dated 3 March 2004 the Youth Office stated that J. had settled well in the institution for disabled children she lived in since August 2002. While her father was visiting her regularly since May 2003 her mother had not reacted to several attempts made in letters addressed to her by the Youth Office in 2003 to re-establish contacts with her daughter and showed no real interest in being informed about her daughter’s development. Sending J. back to live with her mother would not be in J.’s best interests.

On 15 April 2004 the Nuremberg District Court held a hearing, in which it heard the first applicant, a representative of the Youth Office and the child’s father E. It did not hear J. in person, because, as confirmed by E., a verbal communication with her was impossible, as had also been found by the court itself in its hearing on 10 January 2002 in the custody proceedings.

On 27 April 2004 the Nuremberg District Court dismissed the first applicant’s motion to surrender her daughter to her. It found that the first applicant did not have a right to be rendered her daughter pursuant to section 1632 § 1 of the Civil Code. The court noted that the District Court’s decision dated 18 February 2002 restricting the first applicant’s custody of her daughter had become final. The Youth Office, acting as J.’s special curator, had therefore been entitled to order her full-time placement in a home and to take the child away from her mother, as had been done on 19 August 2002. In particular, a child’s right to attend an ordinary school was subject to his or her physical and mental ability to meet its demands. As had been found by the civil courts in previous decisions, J. could not meet these demands due to her illness and could not be expected to do so in the future.

The District Court further found that there was nothing to indicate that it was in J.’s best interests to re-award custody in all respects to her mother. In particular, J.’s placement in a youth home which furthered her adequately in view of her illness had clearly proved to be beneficial to her. As long as her mother was unable to accept that her daughter would be absolutely overstrained in and could not be integrated in an ordinary school, the child could not be taken care of in her mother’s home.

In an obiter dictum the District Court noted that it could not understand why the Youth Office refused the first applicant any contacts with her daughter whose whereabouts still had not been disclosed to her. It considered it indispensable for the child’s welfare to organise visits of her mother as soon as possible.

On 17 June 2004 the Nuremberg Court of Appeal (no. 7 UF 1604/04), following the first applicant’s appeal, heard the first applicant, J.’s curator ad litem and a representative of the Youth Office. The latter stated that she had now informed the first applicant about her daughter’s whereabouts and offered to organise contacts either at the first or the second applicant’s place of residence. The first applicant stated that she had not visited her daughter yet because she feared that the Youth Office could again assert that she was endangering her daughter’s welfare which, in her view, amounted to an allegation that she had abused or ill-treated her daughter.

On 18 June 2004 the Nuremberg Court of Appeal dismissed the first applicant’s appeal as ill-founded. It found that the Youth Office had acted legally in taking away the child from her mother and placing the child in a youth welfare institution, as its decision could be based on the District Court’s decision dated 18 February 2002.

The Court of Appeal observed that pursuant to the statements of a child psychiatrist dated 4 June 2004 it was clear that J. showed severe signs of autism so that intensive care was necessary which her mother could not provide and which made it impossible for her to attend an ordinary school for the time being. As the first applicant was unable to understand her daughter’s needs it was necessary to uphold the partial deprivation of her custody.

On 7 July 2004 the first applicant lodged a complaint with the Federal Constitutional Court against the decisions of the District Court dated 27 April 2004 and of the Court of Appeal dated 18 June 2004. She argued in particular that the continuous restriction of her custody and the failure to surrender her daughter, who was kept in a care institution and had to attend a school for disabled children, violated her parental rights and her daughter’s right to liberty and education as guaranteed by the Basic Law.

On 25 November 2004 the Federal Constitutional Court refused to admit the first applicant’s constitutional complaint (no. 1 BvR 2248/04).

On 13 October 2006 the Federal Constitutional Court refused to admit another constitutional complaint lodged by the applicants against, inter alia, the decisions of the Nuremberg District Court dated 27 April 2004 and of the Nuremberg Court of Appeal dated 18 June 2004 (1 BvR 1416/04).

On 8 December 2002 E., the father of the second applicant, brought a motion with the Nuremberg District Court (no. 110 F 4498/02) to be granted access to his daughter.

On 20 February 2003 the Nuremberg District Court dismissed the first applicant’s motion for bias against District Court judge A. On 26 March 2003 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision as ill-founded. In the court’s view, the fact alone that judge A. had already sat in earlier cases brought by the first applicant in the District Court in accordance with the court’s internal assignment of functions did not warrant the conclusion that he was biased. The applicant’s constitutional complaint against these decisions was to no avail (decision no. 1 BvR 726/03 of 22 September 2004).

On 24 April 2003 the Nuremberg District Court, having heard the first applicant and the child’s father E. and having consulted the Youth Office, granted E. a right of access to his daughter for four hours once in three weeks.

On 27 May 2003 the Nuremberg Court of Appeal dismissed the first applicant’s appeal against this decision as inadmissible. It argued that the first applicant was not prejudiced by the decision as she had expressly claimed not to object to the access order, but merely complained against the court’s reasoning referring to her daughter as being a “sick child”.

On 22 September 2004 the Federal Constitutional Court refused to admit the first applicant’s constitutional complaint against the latter decision (no. 1 BvR 1537/03).

On 10 July 2003 the Nuremberg Court of Appeal dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of the Nuremberg General Public Prosecutor to institute criminal proceedings for fraud against P. It observed that the applicants failed to set out in a comprehensible manner facts which could warrant the conclusion that P., a representative of the Nuremberg Youth Office, had committed fraud.

On 17 November 2003 the Federal Constitutional Court refused to admit the applicants’ constitutional complaint (no. 2 BvR 1297/03).

On 19 November 2003 the Nuremberg Court of Appeal dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of the Nuremberg General Public Prosecutor to institute criminal proceedings for having threatened another person with the commission of a crime against M., O., H. and L.

It found that the applicants’ motion was in any event ill-founded as there were no sufficient grounds for suspicion that an offence had been committed by the impugned representatives of the Youth Office and policemen when separating J. from her mother on 19 August 2002. A further identical motion lodged with the Court of Appeal was to no avail.

On 3 and 9 March 2004 and on 24 November 2004 the Federal Constitutional Court refused to admit the applicants’ constitutional complaints against the Court of Appeal’s decisions (nos. 2 BvR 57/04, 2 BvR 2330/03 and 2 BvR 1806/04).

Pursuant to section 1629 § 1 of the Civil Code, parental custody encompasses the right to legal representation of the child. It is uncontested that the scope of the right to legal representation is identical to the – possibly restricted – scope of a parent’s right of custody.

Pursuant to section 1632 § 1 of the Civil Code, the right to personal custody comprises the right to claim the surrender of the child from anyone illegally withholding the child from one or both parents.

Section 1666 § 1 of the Civil Code provides that the family courts are entitled to take the necessary measures to avert dangers to the physical, mental or spiritual welfare of a child caused by an abusive exercise of parental custody, by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers. Pursuant to section 1666a § 1 of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger cannot be averted by other means, including aids by public authorities.


The applicant was born in 1968 and lives in Ludbreg.

Following a conviction for a dangerous activity, the applicant was incarcerated in Lepoglava State Prison during an unspecified period in 1999 and 2000.

In a judgment of 4 July 2002 the Zagreb Municipal Court convicted the applicant of fraud and gave him a suspended sentence of ten months' imprisonment. In addition, it ordered him to undergo compulsory psychiatric treatment as he had been diagnosed as suffering from post-traumatic stress disorder (PTSD). It appears that the suspension of the sentence was lifted because the applicant was again sent to Lepoglava State Prison from 17 May 2002 until 17 April 2003.

In a judgment of 17 February 2003 the Varaždin Municipal Court convicted the applicant of fraud and gave him a suspended sentence of ten months' imprisonment. However, on an appeal by the State Attorney, on 24 September 2003 the Varaždin County Court altered the sentence to six months' unconditional imprisonment.

On 18 December 2003 a judge of the Varaždin County Court with responsibility for the execution of sentences ordered the applicant to start serving his prison sentence in Varaždin Prison on 28 January 2004. The applicant applied for the order to be postponed on account of his PTSD condition. On 12 January 2004 a Varaždin County Court judge responsible for the execution of sentences dismissed the application because the applicant had failed to submit medical documentation concerning his condition.

The applicant appealed against that decision and on 22 January 2004 the Varaždin County Court dismissed his appeal. It found, firstly, that the medical documentation subsequently submitted by the applicant was outdated since it originated from 1991, 1998 and 2001, and, secondly, that during his prison term the applicant would be provided with adequate medical care.

The applicant started to serve his sentence on 26 February 2004 in Varaždin Prison. He was placed in cell no. 8, measuring four by five metres, with thirteen beds. The number of inmates ranged from fifteen to twenty, so that some inmates had to sleep on the floor or on the table. The table in the cell was designed to accommodate four persons, so that the inmates had to eat on the beds or on the floor. There was one window in the cell, covered with wire so that light and air hardly reached the cell.

On 11 March 2004 the applicant was removed from cell no. 8 and placed in cell no. 5, measuring 21.87 square metres, which he shared with four other inmates.

The applicant's correspondence with the Court was opened.

The medical documentation presented by the applicant shows that he was examined on 26 February 2004 by the prison physician, who found that the applicant had suffered from PTSD since 1995 and also from a personality disorder. The prison doctor prescribed medication, a drug called Fluval.

On 15 March 2004 the applicant was transferred to Zagreb Prison Hospital but was sent back to Varaždin Prison the same day because the psychiatrist at the hospital found no reason to keep him there. The applicant's treatment was changed to drugs named Amyzol and Xanax. On 16 March 2004 the applicant complained that the drugs prescribed were “too heavy”. On 17 March 2004 the medication prescribed to the applicant was again changed to Fluval. No psychiatric treatment was provided.

On 8 March 2004 the applicant applied for a transfer to another prison or the immediate termination of his prison sentence on account of the lack of adequate treatment for PTSD in Varaždin Prison. He further complained about the overcrowded conditions in the cell where he was being held. On 19 March 2004 a Varaždin County Court judge responsible for execution of sentences dismissed the application, finding that the applicant was not in need of any additional treatment. However, as to the overcrowded conditions, the judge found:

“... the prisoner's allegations concerning the number of inmates placed in one cell are true. However, such placement of prisoners is due to the considerable fluctuation in their number because persons sentenced to up to six months' imprisonment serve their sentences in [Varaždin] Prison.

The Varaždin Prison authorities shall remove the said insufficiencies so as to afford enough space to inmates ...”

The applicant appealed against that decision, but his appeal was dismissed by a three-judge panel of the same court on 30 March 2004.

On an unspecified date the applicant filed an application for early release from the prison because he had not received adequate treatment for PTSD. On 26 May 2004 the Varaždin County Court dismissed the application.

On an unspecified date the applicant contacted the Croatian Helsinki Committee to complain about the inhuman conditions in Varaždin Prison, alleging that he was being held in a cell measuring 4 by 5 metres with thirteen beds and that the number of inmates in the cell surpassed the number of beds. He alleged that such cramped conditions had had an adverse effect on his health since he was suffering from PTSD. Furthermore, he complained that there was insufficient daylight in the cell.

In a letter of 17 June 2004 the Committee informed the Department for the Enforcement of Sanctions (Uprava za izvršenje sankcija) about the applicant's allegations and sought an answer from it. On 6 July 2004 the Prison Administration of the Ministry of Justice (Uprava za zatvorski sustav Ministartsva pravosuđa) answered the Committee's enquiry. As to the applicant's health condition, it was stated that he had been diagnosed with PTSD and therefore sent to the psychiatric ward of Zagreb Prison Hospital on 15 March 2004. However, a psychiatrist from that hospital had found that there had been no indications requiring the applicant's hospitalisation. Furthermore, the applicant himself had asked not to be kept in the hospital. During his detention in Varaždin Prison he had been administered drugs. As to the applicant's allegations about the inhuman conditions in his cell, it was stated that the conditions of the execution of his sentence complied with the standards prescribed in Part XI of the Enforcement of Prison Sentences Act and that each cell had access to daylight.

In a decision of 12 July 2004 the Varaždin Prison Administration released the applicant on licence. His licence expired on 26 August 2004.

The CPT visited Croatia between 20 and 30 September 1998. Its findings with regard to Zagreb Prison Hospital were as follows (extract from the report to the Croatian Government on the visit to Croatia from 20 to 30 September 1998, CPT/Inf. (2001) 4):

“157. ... However, occupancy rates in the psychiatric ward were rather high, a drawback which was exacerbated by the fact that patients tended to spend most of the day in their rooms...

In all wards, the general atmosphere in the patients' rooms was rather drab; efforts should be made to provide a more positive therapeutic environment. The practice observed in the hospital of having patients wear pyjamas/nightgowns continuously should also be reviewed. As regards, in particular, psychiatric patients, this practice is not conducive to strengthening personal identity and self-esteem; individualisation of clothing should form part of the therapeutic process.

... The delegation was less impressed by the quality of psychiatric treatment, which was limited essentially to pharmacotherapy (though there were no indications of the misuse of medication). The hospital's doctors acknowledged that there was a clear need to develop rehabilitative and other therapeutic activities (occupational therapy, group therapy, individual psychotherapy, etc.) for the establishment's psychiatric patients; however, they commented that limited staff resources and the very nature of the establishment hindered progress in this area.

The CPT recommends that serious efforts be made to develop rehabilitative and other therapeutic activities for psychiatric patients at the hospital; the present state of affairs is untenable from a therapeutic standpoint. ...”

Article 23 of the Croatian Constitution (Ustav Republike Hrvatske) provides as follows:

“No one shall be subjected to any form of ill-treatment...”

The Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette no. 128/1999 of 30 November 1999, and no. 190/2003 of 3 December 2003 (consolidated text) – “the Act”) came into force on 1 July 2001, whereas the provisions concerning the judge responsible for the execution of sentences came into force six months later, on 1 January 2002. The relevant provisions of the Act read as follows:

“(1) Inmates shall have the right to complain against an act or decision of a prison employee.

(2) Complaints shall be lodged orally or in writing with a prison governor, a judge responsible for the execution of sentences or the Head Office of the Prison Administration. Written complaints addressed to a judge responsible for the execution of sentences or the Head Office of the Prison Administration shall be submitted in an envelope which the prison authorities may not open...”

“(1) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.

(2) Requests for judicial protection shall be decided by the judge responsible for the execution of sentences.”

“(1) The accommodation of inmates shall meet the required standards in terms of health, hygiene and space, including climatic conditions.

(2) Inmates shall as a general rule be accommodated in separate rooms...

(3) Inmates' rooms shall be clean, dry and of adequate size. Each inmate shall have at least 4 square metres and 10 cubic metres of space in the room.

(4) Every room ... must have daylight and artificial light...

(5) Penitentiaries and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions, whenever they wish to do so.

(6) Inmates shall have drinking water at their disposal at all times.”

“(1) Inmates shall be provided with medical treatment and regular care for their physical and mental health...”

“(1) Inmates shall have the right to unlimited correspondence at their own expense.

(4) Inmates shall have the right to correspond with their lawyer, the State authorities or international organisations for the protection of human rights without any restrictions or supervision of the content of such letters...”

Rule 13 of the Varaždin Prison House Rules (Kućni red za zatvorenike i kažnjenike Zatvora u Varaždinu) provided that letters addressed to lawyers, State authorities or international organisations for the protection of human rights were not to be opened by the prison authorities.