TRAJKOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

The applicant, Mr Strezo Trajkovski, is a national of the Former Yugoslav Republic of Macedonia, who was born in 1926 and lives in Skopje. He was represented before the Court by Mr Saško Dukoski, a lawyer practising in Skopje.

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

Under the relevant legislation of the Socialist Federal Republic of Yugoslavia (SFRY) at the material time the banks were under a duty to deposit foreign currency funds in the SFRY National Bank.

The applicant had savings in foreign currency in a State owned bank - Komercijalna Banka-Skopje before the dissolution of the SFRY.

In 1989 Komercijalna Banka paid an average monthly interest of 2.2 for savings in Deutschmarks (DEM). The same year it paid an average monthly interest of 6.9 for savings in United States dollars (US$).

In 1991 the SFRY Council of Ministers passed a decision to the effect that the withdrawal of funds from foreign currency savings accounts was possible only in instalments (see relevant domestic law). The decision was repealed in 1992.

On 8 September 1991 the Former Yugoslav Republic of Macedonia declared its independence. On 17 November 1991 the Former Yugoslav Republic of Macedonia adopted its Constitution and the Constitutional Law for the Implementation of the Constitution under which the laws from the SFRY remained in force except for the laws regulating the organisation and the competence of the SFRY institutions.

On an unspecified date in 1991 the applicant’s bank refused his request to allow him to withdraw his savings in foreign currency on the basis of the aforementioned decisions of the SFRY Government.

On 26 February 1992 the applicant’s funds were transferred to a new account in the same bank which was also frozen. The applicant had DEM 5,593.49 and US$ 499.91 in his new bank account; and 646 French Francs (FRF) and small amount of Swiss Francs (CHF), pounds sterling (GBP) and Austrian Schillings (ATS) in his old bank account. Both bank accounts bore the same number.

On 24 April 1992 the Former Yugoslav Republic of Macedonia introduced its own currency. The State reserves in foreign currency were US $ 3.000.000. There were 1, 284,616 frozen bank accounts. The debt towards the holders of the accounts amounted to DEM 1.6 billion.

On 26 April 1992 the Parliament of the Former Yugoslav Republic of Macedonia adopted the Act on Undertaking the Citizens’ Foreign Currency Deposits (hereinafter referred to as the 1992 Act) concerning the personal funds put on foreign currency bank accounts which had been deposited in the SFRY National Bank. Under the Act the Government undertook the obligation to pay back the respective funds provided that they had been put in savings accounts in the banks with headquarters on its territory. The citizens were entitled to draw a limited amount out of their savings accounts. Government bonds were to be issued for the remaining sum.

On 27 July 1992 the applicant lodged a civil claim with the Skopje Municipal Court against the bank claiming back his money with the penalty interest. On 24 February 1993 his civil claim was dismissed on the grounds that under the relevant SFRY regulation the banks were obliged to deposit the natural persons’ funds in foreign currency in the Federal National Bank, and that the withdrawal of the funds from the savings accounts was possible only for the purchase of apartments, or business premises.

On 20 May 1993 the Macedonian Parliament adopted the Act on the Guarantee by the Republic of Macedonia of Foreign Currency Savings and on the Funds and Means of Repayment of Foreign Currency Savings Deposited in 1993 and 1994 (hereinafter referred to as the 1993 Act) which repealed the 1992 Act. The 1993 Act provided that the withdrawal of funds from the frozen foreign currency savings accounts was only possible for the purposes set forth in law (see relevant domestic law).

On 2 November 1993 the applicant appealed to the Appellate Court. He complained, inter alia, that funds put on frozen savings account should have borne the same interest, as thought they were put on a notice account, i.e., deposited on a contractual basis without the right to withdraw for a certain period of time.

On 13 January 1994 the Skopje Appellate Court quashed the Skopje Municipal Court’s judgment, as it found, inter alia, that the court had not based its decision on the legislation adopted by the Former Yugoslav Republic of Macedonia and had not replied to the applicant’s arguments in respect of the payable interest rate. The applicant’s case was remitted for examination to the Skopje Municipal Court.

On 20 December 1995 the Skopje Municipal Court found that all savings accounts in foreign currency had been frozen by the relevant decisions of the SFRY Council of Ministers. The claims of the holders of the frozen savings accounts had been regulated by the 1993 Act of the Former Yugoslav Republic of Macedonia because the country was facing a difficult economic situation. The court rejected the applicant’s claim on the ground that he had not wished to withdraw funds from his savings account in order to purchase an apartment, business premises, or for other purposes set out by law.

As regards the interest rate, the court held that since the applicant had not concluded a contract with the bank for putting funds in a notice account he could not have received the same interest payable to the holders of such accounts.

On 6 March 1997 the Appellate Court dismissed the applicant’s appeal. It held, inter alia, that the applicant’s allegations that the bank should have paid penalty interest were ill-founded, as the accounts had been frozen by virtue of law.

On 18 March 1999 the Supreme Court upheld the lower courts’ decisions. It held that the applicable law in the applicant’s case had been the 1993 Act with its amendments. Finally, it concluded that the lower courts had rightly rejected the applicant’s action since his request to withdraw money was not made for one of the purposes provided by the Act.

In 2000 the State reserves in foreign currency had been US $ 714,000,000, whereas the debt towards the account holders had decreased by DEM 508,100,000.

On 21 April 2000 the Parliament adopted the Act on the Manner of the Re-payment of the Citizens’ Foreign Currency Deposits for which the [Former Yugoslav] Republic of Macedonia is Guarantor (hereinafter referred to as the 2000 Act) (see relevant domestic law) which repealed the 1993 Act. Under the 2000 Act the applicant’s funds on his account were converted into euros. Their amount was 4,168.10 euros. On 8 August 2000 the applicant withdrew 125.25 euros from his account. He was given Government bonds for the remaining sum.

Following the Government’s decision of 12 December 2000 on the early buy out of the bonds which were mature in 2002, the applicant received 256.21 euros.

Section 1035 provided as follows:

“1. A contract on a monetary deposit is concluded when the bank obliges itself to accept and the depositor obliges himself or herself to deposit in the bank a certain amount of money.

By this contract the bank has the right to dispose of the deposited money and the obligation to return it in accordance with conditions determined in the contract.”

Section 1038, as far as relevant, provided as follows:

“Unless otherwise agreed, ... the depositor has the right to dispose of the whole or a part of the balance of the deposit at any moment.”

Section 14, as far as relevant, provided as follows:

“1. Domestic natural and legal persons may keep foreign currency on a foreign currency savings account or foreign currency savings deposit at an authorised bank and use it for making payments abroad, in accordance with the provisions of this Law.

The foreign currency on foreign currency savings accounts or foreign currency savings deposits are guaranteed for by the SFRY.”

Section 71, as far as relevant, provided as follows:

“1. Domestic natural persons may sell convertible currencies to an authorised bank or other authorised exchange office or they may deposit them in a foreign currency savings account or foreign currency savings deposit with an authorised bank.

Foreign currency kept in a foreign currency savings account or a foreign currency savings deposit may be used by domestic natural persons for payment of imported goods or services for his or her personal needs and the needs of close family members in accordance with the federal law governing foreign trade operations.

Foreign currency referred to in paragraph 2 of this Article may be used by domestic natural persons for the purchase of convertible bonds, for endowments for scientific and humanitarian purposes in Yugoslavia and for payment of a life insurance with an insurance company in Yugoslavia.

The National Bank of Yugoslavia shall regulate the operation of foreign currency savings accounts and foreign currency savings deposits of domestic and foreign natural persons.”

Section 103, as far as relevant, provided as follows:

“1. The National Bank of Yugoslavia is obliged, following a request of an authorised bank, to receive into deposit foreign currency funds which has effectively been deposited by domestic and foreign natural persons in foreign currency savings accounts or foreign currency savings deposits after the entry into force of this Law.

The methods and conditions for the deposition and withdrawal of foreign currency at the deposit of the National Bank of Yugoslavia shall be regulated by the Federal Executive Council on the proposal of the National Bank of Yugoslavia.”

“1. On the basis of the deposited foreign currency ... the national banks shall authorise credits to banks in dinars in an amount equal to the deposited foreign currency, which shall be established on the basis of the average daily exchange rate applicable at the end of the respective month when the foreign currency is deposited.

When withdrawing foreign currency from the deposit, the bank is obliged to repay the national bank the used dinar credit in an amount equal to the amount of foreign currency withdrawn from the deposit, which shall be established on the basis of the exchange rate as applied when the same foreign currency was deposited.”

Paragraph 8 of the Decision confirmed the purposes for which foreign currency could be used, as prescribed in the amended Article 71.

Paragraph 10 stated as follows:

“Domestic natural persons may withdraw from their accounts foreign money, cheques and letters of credit for travelling to a foreign country in accordance with applicable regulations.”

The 1991 Decision was amended on 25 April and 16 May 1991 (OG SFRY nos. 30/91 and 36/91) by the addition of certain provisions, of which paragraph 17c established the following rules on advance announcement of withdrawals:

“Authorised banks shall execute orders to pay to domestic natural persons foreign currency deposited in their foreign currency accounts ... if such persons previously announced to the authorised banks, within the following time-limits, that they will use foreign currency in the following amounts:

an amount not exceeding DEM 500: within 15 days for the first withdrawal ... and within 30 days for any subsequent withdrawal...;

an amount not exceeding DEM 1,000: within 30 days for the first withdrawal ... and within 45 days for any subsequent withdrawal ...;

an amount not exceeding DEM 3,000: within 90 days; and

an amount not exceeding DEM 8,000: within 180 days.”

Section 1, as far as relevant, provided as follows:

“A bank is an independent self-governing financial institution, which administers deposits, credits and other banking business in accordance with the law.”

Section 2 stated as follows:

“1. A bank conducts its activities independently with a view to making profit based on the principles of liquidity, security and profitability.

Banks and other financial institutions are holders of all rights, obligations and responsibilities in legal payment operations with respect to both social and other funds at their disposal which they use in accordance with the nature and purpose of financial funds.

Banks and other financial institutions decide independently on the manner and form of organisation and association as well as on their activities in accordance with market conditions and profit-making, pursuant to the provisions of this and other laws.”

Section 61, as far as relevant, provided as follows:

“The liability of banks shall be settled out of the bankruptcy estate in the following order:

claims of individuals;

claims of the National Bank of Yugoslavia, the SFRY and other creditors who are not the founders of the bank;

claims of the founders of the bank.”

Article 30, as far as relevant, provides as follows:

No person may be deprived of his property or property rights, save [for the protection of] public interest as determined by law.

If property is expropriated, or the property rights are restricted a just compensation not lower than the property’s market value is guaranteed...”

Article 52 § 4 provides as follows:

Laws and other regulations may not have a retroactive effect, save if they are more favourable to the citizens.”

Article 5 §§ 1 and 4 provides that the existing federal laws of the former Yugoslavia shall be in force in the Former Yugoslav Republic of Macedonia with the exception of laws regulating the organisation and competence of the Yugoslav federal organs.

Article 6 provides that all federal laws which are inconsistent with the Macedonian Constitution shall be amended accordingly within one year from the day the Constitution has been promulgated.

Under section 1 the Former Yugoslav Republic of Macedonia was the guarantor for the payment of domestic and foreign currency bank savings and was under a duty to provide funds.

Under section 2 the Former Yugoslav Republic of Macedonia was guarantor for the payment of funds put on foreign currency savings accounts on its territory which had been transferred to the National Bank of the SFRY by 27 April 1992.

Under section 3 the banks were not allowed to convert funds from the frozen savings accounts in another currency. The funds yielded the interest, as determined by the National Bank.

Under section 4 in order to insure the liquidity of the State funds all foreign currency savings accounts were frozen and the funds could be withdrawn, or spent only for the purposes set out by law.

Under sections 5 and 6 the State was to provide funds for the re-payment of the debt.

Under section 7 the account holders were allowed to withdraw the equivalent in domestic currency of DEM 100 per month from their frozen savings accounts provided that they had not had sufficient funds to meet their monthly needs.

Under section 8 account holders were allowed to withdraw some funds from their savings accounts in foreign currency to meet medical, wedding, funerary and school expenses, or to re-pay long-term bank credits, to pay taxes, custom duties, taxes concerning the transfer of shares, to purchase State-owned agricultural land, machines for agriculture and for other purposes set out by law.

Under section 10 account holders were allowed to withdraw some funds from the frozen savings accounts in order to meet their medical and school expenses overseas, or purchase plane tickets.

Under section 11 in accordance with the Government’s decision the State would advance a credit of 50% of the amount paid by the banks to the holders of the frozen accounts.

In 1997 and 1998 the payable interest rate for the frozen savings in DEM was 1.50, and in 1999 and 2000 it was 1.90.

In 1997 the payable interest rate for the frozen savings in US$ was 3.90; in 1998 it was 4.30; in 1999 it was 3.60 and in 2000 it was 4.30.

Section 8 provides, inter alia, that the communal apartments may be purchased by denars received from the buy out of the funds from the frozen savings accounts.

It was possible to sell funds from the frozen savings accounts to persons who wished to purchase communal apartments or business premises. Their price (not lower than 50%) was determined in accordance with the market demand.

Section 13 provides that the state-owned shares in companies, banks and other state-owned securities may be purchased with funds drawn from the frozen foreign currency savings accounts.

Section 1 provides that the law shall set out the manner and the procedure for the payment of funds put on foreign currency savings accounts which were frozen and for which the guarantor is the State.

Under section 3 the banks shall convert funds from the frozen foreign currency savings accounts into euros in accordance with the National Bank’s exchange rate.

Under section 4 the holders of the foreign currency savings accounts may withdraw 3% of funds from each of their savings accounts as from 1 July 2000 provided that the amount of their funds exceeds 50 euros.

Under section 10 the bonds are negotiable and their value is expressed in euros.

Under sections 11, 12 and 13 the bonds shall be bought out in national currency twice a year within a ten year period of time, as from 1 April 2002. The interest shall be paid off twice a year, as from 1 April 2001. The applicable exchange rate shall be the average exchange rate of the National Bank’s exchange list published on the day of payment, or within thirty days from the day the bond becomes mature.

Under section 17 the bonds may be used to pay off securities and concessions, to obtain shares in State-owned companies, to pay long-term rents, to purchase communal apartments, agricultural and construction land and to obtain shares in accordance with the Reconstruction of the Banks’ Act.

Under section 21 the State may buy out the bonds at any time in accordance with the Government’s decision.


No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

George Nicolaou;Ledi Bianku;Vincent A. De Gaetano

The applicant was born in 1958 and currently lives in Łódź.

On 14 February 2007 the applicant was arrested on suspicion of several counts of fraud and incitement to murder committed in an organised criminal group.

On 16 February 2007 the Katowice District Court remanded him in custody, relying on the reasonable suspicion that he had committed the offences in question. It attached importance to the serious nature of those offences and the likelihood of a severe prison sentence being imposed on the applicant. In this connection the court noted that the applicant had admitted to having committed some of the offences of which he had been suspected, including incitement to murder. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might go into hiding. As regards the latter, the court relied on the fact that he did not have a permanent place of residence in Poland and that he had already been hiding from the police. Finally, the court underlined that the applicant was a member of an organised criminal group and that some other members of that group were still at large which increased the risk that a detainee, if released, might obstruct the proceedings.

The applicant’s appeal against the detention order, likewise his further appeals against decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him, were unsuccessful.

In April 2007 the applicant had a heart attack and had to be hospitalised three times during that year.

In the course of the investigation, the applicant’s detention was extended on several occasions, namely on 7 May 2007 (to 7 October 2007), 10 September 2007 (to 7 January 2008) and on an unspecified subsequent date. In their detention decisions the courts repeatedly relied on the original grounds given for the applicant’s detention underlining the complexity of the case and the substantial volume of evidence to be examined. They also found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Criminal Code. In particular, the courts observed that it resulted from medical reports that the applicant could be treated within a penitentiary facility.

On 10 June 2008 the Katowice Regional Prosecutor lodged a bill of indictment with the Katowice Regional Court. The applicant was charged with an incitement to murder as well as several counts of thefts and extortions committed while acting as a leader of an organised criminal group. The bill of indictment comprised numerous charges brought against several defendants.

On 23 June 2008 the case was transferred to the Gliwice Regional Court.

In an opinion of 26 February 2009 experts from the cardiology institute of the Medical University in Katowice declared the applicant fit to participate in the proceedings, though limiting the duration of the hearings.

During the court proceedings the courts further extended the applicant’s detention, namely on 24 September 2008 (to 14 February 2009), on unspecified subsequent dates and 23 June 2010 (to 30 September 2010). The courts repeated the grounds previously given for the applicant’s continued detention.

On 30 June 2010 the Gliwice Regional Court gave judgment. The applicant was convicted as charged and sentenced to six years’ imprisonment.

The applicant and the Prosecutor appealed.

On 24 March 2011 the Katowice Court of Appeal decided that the applicant be released from custody and placed under police supervision. The court also barred the applicant from leaving the country.

It appears that the appellate proceedings against the applicant are still pending.

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


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Ján Šikuta;Lech Garlicki;Vincent A. De Gaetano

The applicant was born in 1958 and lives in Biskupiec.

On 19 June 2002 the applicant was arrested on charges of arson and uttering threats. On an unknown later date he was indicted before the Biskupiec District Court.

Between 19 March and 19 June 2006 the applicant was detained on remand.

On 3 June 2003 the District Court convicted him as charged and sentenced him to three years’ imprisonment.

On 26 June 2003 the applicant appealed against his conviction.

On 16 October 2003 the Olsztyn Regional Court quashed the judgment and remitted the case.

Between 19 October 2005 and 29 March 2006 the District Court held seven hearings. On several occasions the applicant who was duly summoned, refused to appear at hearings. However, the court proceeded with the trial in his absence.

On 31 March 2006 the Biskupiec District Court convicted the applicant as charged and sentenced him to three years’ imprisonment.

On 14 September 2006 the Olsztyn Regional Court again quashed the judgment and remitted the case.

On 3 June 2009 the Gizycko District Court again convicted the applicant as charged.

On 27 July 2009 the applicant filed his appeal against this judgment. It appears that the proceedings are pending before the Olsztyn Regional Court.

On 16 and 21 August 2007 the applicant lodged complaints with the Białystok Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). The applicant sought a ruling that the length of the proceedings before the Olsztyn Regional Court had been excessive and an award of just satisfaction.

On 7 November 2007 the Court of Appeal gave a decision and dismissed the applicant’s complaint.

On 19 June 2008 the Olsztyn Regional Court dismissed yet another complaint under 2004 Act lodged by the applicant. The court considered that there had been no significant delays in the proceedings.

The applicant was also involved in several other sets of criminal and civil proceedings, in particular, proceedings concerning assaulting a judge and contempt of court. The proceedings were terminated respectively on 24 October 2005 and 14 March 2007 by the Olsztyn Regional Court.

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.


The applicant, Mr D.K., is a Slovakian national living in Košice. The respondent Government are represented by Mr P. Vršanský, their Agent.

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

On 11 December 1996 the applicant lodged an action for protection of his good name and reputation with the Košice I District Court (Okresný súd). He claimed that his registration as a collaborator of the former secret police in the files kept by the Slovak Information Service had no justification. The applicant further requested that the entry concerning his person should be deleted from the files.

On 8 January 1997 the District Court asked the Slovak Information Service to submit its memorial in the action. The defendant complied with the request on 28 January 1997.

On 10 February 1997 the applicant submitted his observations in reply. He extended his action and asked the District Court to find that he had not been an agent of the former State Security.

On 28 May 1997 the applicant requested the District Court to decide on his action.

On 11 August 1997 the applicant complained to the president of the District Court that there had been no progress in his case. On 13 August 1997 the president of the District Court admitted that there had been delays in the proceedings due to the transfer of the judge dealing with the case to another court.

On 20 August 1997 the applicant lodged a petition with the Constitutional Court (Ústavný súd) alleging that his case had not been heard within a reasonable time.

On 2 September 1997 the applicant complained about undue delays in the proceedings to the president of the Košice Regional Court (Krajský súd).

On 13 November 1997 the Košice I District Court held the first hearing in the case.

On 18 November 1997 the applicant submitted documentary evidence to the District Court.

On 7 January 1998 the Constitutional Court found that the applicant’s constitutional right to have his case examined without undue delays had been violated. It noted, in particular, that the District Court had failed to decide on the action for protection of the applicant’s personal rights within a year after its introduction as required by Section 200i (4) of the Code of Civil Procedure.

On 15 January 1998 the Košice I District Court held another hearing and on 19 February 1998 it dismissed the applicant’s action. The judgment stated that the relevant facts of the case were secret and that the evidence available indicated that the action was manifestly ill-founded.

On 30 March 1998 the applicant appealed to the Košice Regional Court. He alleged that the District Court had not established all relevant facts of the case.

On 27 August 1998 the Supreme Court (Najvyšší súd) transferred the case to the Prešov Regional Court.

On 30 October 1998 the Košice I District Court dismissed the applicant’s request for an exemption from the obligation to pay court fees. The applicant appealed.

On 10 January 1999 the applicant informed the Prešov Regional Court that he wished to withdraw his action against the Slovak Information Service lodged on 11 December 1996 and requested that he be exempted from the obligation to pay court fees.

On 24 February 1999 the Prešov Regional Court quashed the first instance judgment and discontinued the proceedings on the ground that the applicant had withdrawn his action concerning his claims that (i) he had not been an agent of the State Security, (ii) he had been erroneously entered in the files of the State Security as a collaborator of the latter and (iii) the defendant be ordered to delete the entry concerning the applicant in the files of the former State Security. The Regional Court further upheld the District Court’s decision on the court fees of 30 October 1998 and ordered the applicant to pay the defendant’s fees. The decision became final on 19 April 1999.

On 9 June 1999 the applicant complained to the president of the Prešov Regional Court that the appellate court had failed to decide on his claim that he had not been an agent of the former State Security. The applicant alleged, with reference to his earlier submissions, that he had not withdrawn this part of his action and asked the court to proceed with it without delay.

On 11 August 1999 the president of the Prešov Regional Court replied to the applicant that the proceedings had been discontinued on 24 February 1999 and that there had been no undue delays in them.

On 12 November 1999 the Ministry of Justice found unjustified the applicant’s complaint about delays in the proceedings.

On 12 January and on 15 March 2000 the applicant filed a petition to the Constitutional Court. He alleged that he had not withdrawn his claim submitted on 15 February 1997 in extension of his original action. The Regional Court had failed to proceed with that part of the action and thus caused delays in the proceedings.

On 30 March 2000 the Constitutional Court dismissed the petition. It held that it was evident from the Regional Court’s decision of 24 February 1999 that the appellate court had interpreted the applicant’s submission of 10 January 1999 as concerning his action as a whole and that the proceedings had been discontinued in respect of all his claims. The applicant’s expectation that the Prešov Regional Court would proceed with the examination of one of his claims after the delivery of the decision of 24 February 1999 was therefore ill-founded. The applicant’s constitutional right to a hearing without delays could not have been therefore violated as a result of the Regional Court’s failure to proceed with the case after 24 February 1999. The Constitutional Court’s decision further stated that it had been open to the applicant to seek redress by means of an appeal on points of law after he had learned from the appellate court’s decision that his submission of 10 January 1999 had been misinterpreted.

Pursuant to Section 237 (f) of the Code of Civil Procedure, an appeal on points of law may be lodged against a decision of the court of appeal if a party to the proceedings was prevented from acting before the court due to a wrong court procedure. Section 240 (1) provides that an appeal on points of law can be lodged within one month after the appellate court’s decision has become final.

In accordance with the Supreme Court’s case-law, the possibility of filing an appeal on points of law pursuant to Section 237 (f) of the Code of Civil Procedure extends to cases when the merits of an action have not been examined as a result of an erroneous action of the court.


CASE OF GONCHAROVA AND OTHER “PRIVILEGED PENSIONERS” CASES v. RUSSIA

Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicants are pensioners who live in the Moscow Region. Before retirement they used to work in hazardous industry. They had a dispute with a pension authority about the scope of their privileged pensions and appealed to the Region’s district and town courts.

In March–November 2006 the courts held for the applicants and ordered the pension authority to recalculate the pensions. The courts based their finding on the Law on Labour Pensions. In May 2006–February 2007 these judgments became binding and were executed.

On the pension authority’s request, in October 2007–March 2008 the district and town courts quashed their judgments due to discovery of new circumstances. The courts found, in particular, that the judgments had ignored the interpretation of the Law on Labour Pensions given by the Supreme Court in December 2005 and March 2007.

The applicants’ cases were remitted for a rehearing and eventually dismissed.


András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The applicant, Ercanlar Otomotiv Tic. A.Ş., is a joint stock company registered in Turkey and located in Istanbul. It was represented before the Court by Mr S.N. Gürel, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

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

On 17 November 1982 a public company, the Türkiye Süt Endüstrisi Kurumu (the State dairy producer, hereafter referred to as the “SEK”), decided to partially expropriate a plot of land (parcel no. 80) owned by the applicant company and located in Mersinli, İzmir.

On 25 February 1983 the applicant company was officially notified of the SEK's expropriation decision by a notice served through the notary public. It was indicated in the notice that expropriation compensation in the amount of 2,803,700 Turkish liras (TRL) had been deposited in the applicant company's name in a blocked bank account at the Alsancak Branch of Ziraat Bankası, a State-run bank.

The applicant subsequently sought the annulment of the expropriation. On 21 December 1983 the İzmir Administrative Court rejected the applicant's request and on 18 December 1984 the Supreme Administrative Court upheld the administrative court's decision.

On an unspecified date the applicant company commenced proceedings for additional compensation. On 4 November 1986 the İzmir Civil Court ordered that the amount of compensation be increased by TRL 7,848,800. The judgment became final on 17 February 1987, neither of the parties having appealed. On 25 November 1987 the additional expropriation was deposited in the same account at Ziraat Bankası in the applicant company's name.

The applicant company subsequently lodged an action with the İzmir Administrative Court for the annulment of the parcel plan pertaining to the expropriated plot of land. On 27 April 1988 the İzmir Administrative Court annulled the parcel plan as requested. On 29 May 1989 the Supreme Administrative Court upheld the judgment of the administrative court. A new parcel plan was prepared on 24 September 1998, which was also annulled by the İzmir Administrative Court on 18 October 2002. It appears that there is presently no parcel plan in respect of the land in question.

On 3 December 1987 the SEK commenced proceedings before the İzmir Civil Court for the compulsory registration of the title of the expropriated land in its name. Following proceedings which lasted for ten years and involved six examinations, on 1 April 1997 the Court of Cassation granted the suit. On 2 July 1997 it rejected the applicant company's rectification request. The Court of Cassation held that the pending parcel plan pertaining to the relevant land did not preclude the registration of its title in the expropriating company's name.

In the meantime, on 6 March 1992 the applicant company lodged an action for recovery of the expropriated land in accordance with Article 23 of the now defunct Expropriation Law (Law No. 6830). They argued that the public interest justifying expropriation in the present case had been lost as the land had not been put to use in accordance with the initial purpose of the measure. On 30 October 1996 İzmir Civil Court dismissed the applicant's request, holding that the conditions for restitution of expropriated land under Article 23 of the said Law had not materialised. On 4 April 1997 the Court of Cassation upheld this judgment and on 4 June 1997 it rejected the applicant company's rectification request.

On 11 November 1997 the SEK was merged with another public company, thereby losing its legal personality. Upon this merger, on 11 February 1998 the applicant company applied for the reopening of the proceedings concerning the recovery and the compulsory registration of the land. They argued that the land was no longer required for public purposes as the expropriating public company had ceased to exist. On 21 December 1999 the İzmir Civil Court rejected the applicant's request by two separate judgments (cases nos. 1996/529 E. and 1996/530 E.), holding that the conditions for reopening the proceedings had not been satisfied. According to the information in the case file, both judgments became final on 19 October 2000.

On 7 June 2000 the applicant company sent a letter to Ziraat Bankası to inquire whether the expropriation compensation, together with the additional amount, had been deposited with the bank and, in the affirmative, whether they were entitled to have access to the money. On 26 July 2000 they sent another letter to the bank, requesting it to expedite the reply. It is alleged that the bank never sent a written reply but orally informed the applicant company that they had no records regarding the requested information. The applicant company accordingly brought an action seeking a declaratory judgment (tespit davası) on 15 April 2002 before the İzmir Civil Court to establish whether the expropriation compensation had been deposited in a blocked account at Ziraat Bankası in its name or whether any payment had been otherwise made to it in compensation for the expropriation. The bank verified during the proceedings that the expropriation compensation had been deposited in a blocked account in the applicant company's name at their Alsancak Branch, but no attempt had been made to collect it. On 19 September 2002 the firstinstance court dismissed the applicant company's case, as the statements received from the bank had made it unnecessary to render a declaratory judgment. On 8 April 2003 the Court of Cassation upheld the judgment of the first-instance court and on 27 June 2003 it rejected the rectification request.


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

The applicant, Mr Ion Nedelcov, is a Moldovan national who was born in 1933 and lives in Chişinău. He was represented before the Court by Mr R. Zadoinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr Vladimir Grosu.

The applicant was a member of a gardening association and, on account of his membership, occupied a parcel of land on which he cultivated fruit and vegetables for the needs of his family.

On an unspecified date he was excluded from the association on grounds which are not known to the Court. According to the statute of the association, disputes between the association and its members were to be resolved by the Chişinău Municipal Council.

The applicant lodged an application with the Chişinău Municipal Council and challenged the decision of the association; however, his application was rejected on procedural grounds.

The applicant contested the Municipal Council’s decision and on 19 May 2004 obtained a final judgment ordering the Municipal Council to examine his application on the merits. An enforcement warrant was issued on 1 June 2004 and the judgment was enforced on 27 April 2005, when the Chişinău Municipal Council examined the applicant’s application on the merits and adopted a decision in his favour.

The applicant received the Municipal Council’s decision by mail on 19 September 2005.

The applicant did not inform the Court about the enforcement of the judgment in his favour and it was only through the Government’s observations that the Court learned about the enforcement of the judgment.


Anatoly Kovler;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant, Mr Mile Trubić, is a Croatian national, who was born in 1964 and lives in Dugo Selo. He is represented before the Court by Mr K. Vilajtović, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

On 14 June 2007 the applicant, a policeman at the time, was returning to Croatia from an official assignment in Albania, where he had been with three other police officers T.P., Đ.J. and S.B. When crossing the border, travelling in a regular civilian coach, they were checked by customs officials who found 104 cartons of cigarettes and nine bottles of liquor allegedly belonging to the police officers.

On 14 and 15 June 2007 the police questioned the applicant, T.P., Đ.J. and S.B. about the above event. The police also questioned the coach drivers, Z.R. and A.S., and a customs officer, Ž.M. In addition, on 18 June 2007 the applicant, T.P., Đ.J. and S.B. provided further statements concerning the circumstances in which they had bought the cigarettes and liquor.

On 2 July 2007 the Zagreb First-Instance Disciplinary Board of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Uprava pravnih i kadrovskih poslova, Odsjek prvostupanjskog disciplinskog sudovanja Zagreb) instituted disciplinary proceedings against the applicant on the ground that on 14 June 2007 he had attempted to smuggle ten cartons of cigarettes and five bottles of liquor from Albania to Croatia.

A hearing was held on 19 September 2007 before the Zagreb FirstInstance Disciplinary Court of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Prvostupanjski disciplinski sud Zagreb) in the presence of the applicant and his counsel. The applicant pleaded not guilty for smuggling goods although he admitted that he had brought certain cigarettes and alcohol from Albania but had not known the quantity or that it had been prohibited.

At the hearing the police reports on the witness statements of the coach drivers Z.R. and A.S. and officer Ž.M. were read out together with other evidence from the case file. Defence counsel asked for the written records of the oral statements from other police officers also to be admitted in evidence, which was allowed by the court. The applicant and his defence counsel made no objection as to the manner in which the evidence had been taken. However, defence counsel questioned the veracity of the statement given by customs officer Ž.M.

On the same day the Zagreb First-Instance Disciplinary Court of the Ministry of the Interior found that the applicant had attempted to smuggle the above-mentioned goods and sentenced him to a suspended sentence of dismissal from his duties.

Against the above decision, the Director of the Police (Ravnatelj policije) and the applicant lodged appeals on 4 October 2007 and 9 October 2007 respectively, with the Appeals Division of the Disciplinary Board of the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske, Uprava pravnih i kadrovskih poslova, Odsjek drugostupanjskog disciplinskog sudovanja Zagreb). In his appeal, the applicant argued that the Zagreb First-Instance Disciplinary Court had misinterpreted some of the evidence and that the sentence was disproportionate to the offence.

On 21 November 2007 the Appeals Division of the Disciplinary Board of the Ministry of the Interior upheld the findings on the applicant’s disciplinary liability but amended the sentence and ordered the applicant’s dismissal.

The applicant lodged an action with the Administrative Court (Upravni sud Republike Hrvatske) against the above decision on 4 January 2008, complaining about the outcome of the proceedings before the lower administrative bodies. He also argued that the witnesses should have been heard by the disciplinary court.

On 23 January 2008 the applicant was indicted in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of smuggling cigarettes and liquor on to the territory of Croatia.

On 11 September 2008 the Administrative Court dismissed the applicant’s action and upheld the decision of the Appeal Division of the Disciplinary Board of the Ministry of the Interior, on the ground that there had been no flaws in the procedure or findings of the administrative bodies. The relevant part of the decision reads:

“After the assessment of the impugned decision [of the second-instance disciplinary body], this court considers that all the relevant facts have been correctly established, that the relevant law was applied correctly and that there have been no flaws in the procedure.

It was undoubtedly established that on the relevant date, after he had finished his official assignment of deportation of foreign citizens to Albania and when entering the territory of the Republic of Croatia at the “Karasovići” border control check-point, the plaintiff had been controlled by the custom officers who had found that he had tried to smuggle ten cartons of cigarettes and five bottles of liquor with a foreign label to Croatia, without having these goods declared to the custom service, although he had known that the import of that amount of such goods had not been allowed, namely that it had been limited. All these relevant facts were established based on the statements of the custom officers, the coach drivers and the plaintiff himself and therefore the complaint concerning the establishment of the relevant facts should be dismissed.

The substance of the plaintiff’s action did not raise any issue as regards the lawfulness of the impugned decision, and therefore the action was dismissed as illfounded pursuant to section 42 § 2 of the Administrative Disputes Act. ”

The applicant lodged a constitutional complaint with the Constitutional Court on 15 December 2008 (Ustavni sud Republike Hrvatske), reiterating the same arguments he had brought before the Administrative Court.

The Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded on 6 May 2010. The relevant part of the decision reads:

“The Administrative Court fully endorsed the findings and application of the relevant law by the second-instance disciplinary body and, by the impugned judgment, it dismissed the applicant’s action against the second-instance decision.

The Constitutional Court finds that the complaints raised in the constitutional complaint essentially represent repetition of the complaints raised before the Administrative Court, without any substantiation of the alleged violations of the Constitution.

The applicant failed to show that the Administrative Court, in its procedure or decision, had violated the human rights and fundamental freedoms set out in the Constitution or that it had arbitrarily interpreted the relevant domestic law. Therefore, the Constitutional Court finds that this case does not raise any issue of the applicant’s human rights. Accordingly, there is no issue on which the Constitutional Court should decide.”

This decision was served on the applicant’s counsel on 7 June 2010.

On 8 March 2012 the Zagreb Municipal Criminal Court acquitted the applicant of the criminal charges of smuggling cigarettes and liquor on to the territory of Croatia.

The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001) provides:

“(1) In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

The relevant provisions of the Police Act (Zakon o policiji, Official Gazette no. 129/2000) read as follows:

Disciplinary action shall be taken against police officers responsible for breaches of work discipline.”

“Other than those provided in the rules governing the conduct of civil servants, the following shall particularly be considered a serious breach of work discipline:

inappropriate conduct during or outside the hours of service...”


Violation of Art. 10;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award

Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky

At the material time the applicants were the owners, executive directors, editors-in-chief, news directors and journalists of four daily newspapers published in Turkey: Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi. The publication of all four newspapers was regularly suspended, pursuant to section 6(5) of Law no. 3713 (the Prevention of Terrorism Act), by various Chambers of the Istanbul Assize Court, between 16 November 2006 and 25 October 2007, for periods ranging from 15 days to a month in respect of various news reports and articles. The impugned publications were deemed to be propaganda in favour of a terrorist organisation, the PKK/KONGRA-GEL, as well as the approval of crimes committed by that organisation and its members.

In the first case against Ülkede Özgür Gündem on 16 November 2006, the trial judge considered that the content of certain reports and articles contained elements of propaganda, the approval of terrorist crimes and had identified officials who risked terrorist attack, contrary to section 6(5) of Law no. 3713. Their content thus exceeded the permissible limits of Article 10 of the Convention. Moreover, the offences had not been limited to a single issue of the newspaper, but had been continuous. Consequently, he was authorised by section 6(5) to suspend the publication and distribution of the periodical for a period of fifteen days to a month.

In the case against Güncel on 16 July 2007, the newspaper was suspended for 15 days, not by virtue of section 6(5) of Law no. 3713, but because its owners, journalists and content were the same as those of Gündem, whose publication and distribution had been suspended for 15 days by a court decision of 12 July 2007.

Neither the applicants nor their representative participated in these ex parte procedures, and their written objections to the suspension orders were dismissed. Consequently, the orders were executed.

The applicant Ali Gürbüz, the owner of Ülkede Özgür Gündem, was prosecuted under sections 6(1) and (2) and 7(2) of Law no. 3713, as well as Article 215 of the Criminal Code, for disseminating propaganda in favour of the aforementioned organisation, approving crimes committed by that organisation and its members, and identifying officials with anti-terrorist duties as targets, in respect of various articles published in their newspaper (case no. 2007/367). Ali Gürbüz was convicted and fined 380,000 new Turkish liras (TRY) (approximately 217,000 euros (EUR)).

The applicant Özlem Aktan, the executive director of Ülkede Özgür Gündem and Gündem, was similarly prosecuted. Her first case concerning the former newspaper was disjoined from that of Ali Gürbüz. Her second case (no. 2007/197) involved another applicant, Lütfi Ürper, the owner of Gündem and Güncel. They were charged under sections 5, 6(2) and (4) and 7(2) of Law no. 3713, as well as Articles 215 and 218 of the Criminal Code.

Lütfi Ürper was prosecuted on three other occasions on similar charges (case nos. 2007/419, 2007/343 and 2007/482). Another applicant, Hüseyin Bektaş, the owner and executive director of Gerçek Demokrasi, was prosecuted for the same offences under sections 6(2) and 7(2) of Law no. 3713 and Article 215 of the Criminal Code.

According to the information in the case file, all these prosecutions are still pending at first instance, except for that against Ali Gürbüz, which is apparently still pending before the Court of Cassation.

Article 28 of the Constitution of Turkey reads as follows:

“The press is free and shall not be censored. The establishment of a publishing company shall not be subject to prior permission or the deposit of a financial guarantee.

The State shall take the necessary measures to ensure freedom of the press and freedom of information.

As regards restrictions on freedom of the press, Articles 26 and 27 of the Constitution are applicable.

Anyone who writes or prints any news or articles which threaten the internal or external security of the State or the indivisible integrity of the State with its territory and nation, which are aimed at inciting offences, riot or insurrection, or which refer to classified State secrets, and anyone who prints or transmits such news or articles to others for the above purposes, shall be held responsible under the law governing these offences. Distribution may be suspended as a preventive measure by the decision of a judge or, in the event that delay is deemed prejudicial, by the competent authority designated by law. The authority suspending distribution shall notify a competent judge of its decision within twenty-four hours. The order suspending distribution shall become null and void unless upheld by a competent judge within forty-eight hours.

No ban shall be placed on the reporting of events except by a judge's decision designed to ensure the proper functioning of the judiciary, within the limits specified by law.

Periodical and non-periodical publications may be seized by the decision of a judge in the event of an ongoing investigation into or prosecution of offences prescribed by law and, in situations where a delay could endanger the indivisible integrity of the State with its territory and nation, national security, public order or public morals, and for the prevention of an offence, by order of the competent authority designated by law. The authority issuing the order to confiscate shall notify a competent judge of its decision within twenty-four hours. The order to confiscate shall become null and void unless upheld by the competent court within forty-eight hours.

The general common provisions shall apply to the seizure and confiscation of periodicals and non-periodicals for the purposes of criminal investigation and prosecution.

Publication of periodicals published in Turkey may be temporarily suspended by order of the courts in the event of a criminal conviction on account of their containing material which undermines the indivisible integrity of the State with its territory and nation, the fundamental principles of the Republic, national security and public morals. Any publication which is clearly a continuation of a suspended periodical shall be prohibited and shall be seized following a decision by a competent judge.”

The relevant provisions of the Prevention of Terrorism Act (Law no. 3713), amended by Law no. 5532, which entered into force on 18 July 2006, read as follows:

“1. It shall be an offence, punishable by a term of imprisonment of one to three years, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person's ... identity is divulged, provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target.

It shall be an offence, punishable by a term of imprisonment of one to three years, to print or publish declarations or leaflets emanating from terrorist organisations.

If any of the offences defined in the paragraphs above are committed through the press or the media, the owners and editors-in-chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to between a thousand and ten thousand days' imprisonment. However, the maximum limit of this punishment shall be the equivalent of five thousand days for editors-in-chief.

Periodicals whose content openly encourages the commission of offences within the framework of the activities of a terrorist organisation, approves of the offences committed by a terrorist organisation or its members or constitutes propaganda in favour of the terrorist organisation may be suspended for a period of fifteen days to one month as a preventive measure by decision of a judge or, if a delay is detrimental, on an instruction from a public prosecutor. The public prosecutor shall notify the judge of such instruction within twenty-four hours. If the judge does not approve the decision within forty-eight hours, the instruction to suspend publication shall become null and void.”

On 3 March 2006 the former President of Turkey lodged a case with the Constitutional Court (case no. 2006/121) challenging the validity of section 6(5) of Law no. 3713. It had been argued, inter alia, that this section had created an unconstitutional penalty. On 18 June 2009 the Constitutional Court dismissed the case (decision no. 2009/90).

“Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years. Where this offence is committed through the press or the media, the sentence shall be increased by half. Moreover, the owners and editors-in-chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to between one thousand and ten thousand days' imprisonment. However, the maximum limit of this punishment shall be the equivalent of five thousand days for editors-in-chief.”

The relevant provisions of the Criminal Code (Law no. 5237) read as follows:

“(1) A person who abets commission of an offence shall be liable to a term of imprisonment of fifteen to twenty years if the offence is punishable by an aggravated life sentence and ten to fifteen years where the offence is punishable by a life sentence. Punishment is reduced by half in all other circumstances. However, in the latter case the punishment cannot exceed eight years.

(2) A person is deemed to have abetted commission of an offence in the following circumstances:

(a) Encouragement to commit an offence...”

“Any person who approves of an offence committed, or praises a person on account of an offence he or she has committed, shall be liable to a term of imprisonment of up to two years.”

“Where one of the offences proscribed by Articles 213-217 is committed through the press or the media, the sentence shall be increased by half.”


Anatoly Kovler;Elisabeth Steiner;Sverre Erik Jebens

The applicant was born in 1963 and he is currently imprisoned in Korydallos.

On 22 October 2004 criminal complaints were brought against him by the Athens First Instance Prosecutor for procuring and repeated rape.

In 2006, on an unspecified date, the Indictment Division of the Athens

Court of Appeal decided to prosecute the applicant and remitted the case to the Athens First Instance Criminal Court (decision no. 303/2006).

On 19 July 2006 the Athens First Instance Criminal Court convicted the applicant and sentenced him to ten years' imprisonment (judgment no. 2439/2006).

On 21 July 2006 the applicant lodged an appeal with the Athens Criminal Court of Appeal challenging the First Instance court's findings and its evaluation of the evidence.

By judgment dated 4 May 2009 the Court of Appeal dismissed the applicant's allegations (judgment no. 1245/2009).

On an unspecified date the applicant lodged an appeal on points of law with the Court of Cassation. The appeal was set for hearing on 3 February 2010. It transpires from the case file that these proceedings are still pending.


The applicant, Mr Giorgos Galanis, is a Greek national, who was born in 1948 and lives in Athens. He was represented before the Court by Mr S. Tsakyrakis, a lawyer practising in Athens. The Government were represented by Mr V. Kyriazopoulos, Senior Adviser, State Legal Council, and Mrs M. Papida, Legal Assistant, State Legal Council.

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

The applicant graduated from the Pedagogical Academy of Larissa in 1968. The Pedagogical Academies were, at the time, the only institutions training the future teachers of elementary schools and all graduates were eligible for appointment to the public school system. After graduation the applicant moved to Sweden where he worked as a teacher of Greek language at the elementary school of Stockholm from 1978 untill 1984.

In 1984 he returned with his wife and three children to live permanently in Greece. On 14 August 1984 he applied to the Ministry of National Education and Religion asking to be appointed as a teacher to a Greek public school. The appointments were made according to a seniority list comprising all persons having the necessary qualifications, mainly a degree from a Pedagogical Academy. The immediate result of his application should have been his registration in the list, so that he could be appointed when his turn would come.

On 24 September 1984 the Ministry rejected his application and returned his documents because the applicant was a Jehovah’s Witness. The Ministry indicated that according to an opinion of the State Legal Council, it was prohibited for persons believing in religions or dogmas other than the Greek Orthodox to be appointed as teachers.

Four years later Law 1771/1988 was enacted and explicitly provided in section 16 that persons believing in religions or dogmas other than the Greek Orthodox were eligible for appointment as teachers. Immediately after the enactment of that law the applicant resubmitted his application asking to be registered in the list of 1984. However, the Ministry registered him on the 1988 list.

By the end of 1990 all those who were on the 1984 list had been appointed, but not those who were on the 1988 list. By 1996 the applicant realised that, with the pace the appointments were made, he would not be appointed at all. In effect, Law 1566/1985 provided that no one over 50 years of age could be appointed as a teacher and the applicant would become 50 years old in 1998.

On 30 October 1996 he applied to the Ministry of Education asking to be considered as registered in the 1984 list, which would have resulted in his immediate appointment.

On 20 December 1996 his application was rejected on the ground that Law 1771/1988 had no retroactive effect, so the applicant was not eligible for registration on the 1984 list.

On 28 February 1997 the applicant applied to the Athens Administrative Court asking it to quash the decision rejecting his application.

By judgment 1782/1997 of 10 November 1997 the Administrative Court dismissed the application. It held that the authorities had correctly applied Law 1771/1988 which introduced an entirely new provision regarding the appointment of non-Christian Orthodox teachers. Law 1771/1988 was not intended to interfere with the seniority lists of the past. Any possible violations of the Greek Constitution or the European Convention on Human Rights on religious freedom occurred in 1984 and should have been challenged at that time.

On 29 October 1998 the applicant appealed to the Supreme Administrative Court. He maintained that Law 1771/1988 did not introduce an entirely new provision but instead tried to remedy the illegal practice of the authorities to exclude all non-Christian Orthodox Greeks from employment in the public education system. If it were to be construed as not having retroactive effect, this would constitute by itself a new and direct violation of the Constitution and the Convention.

By judgment 3390/2000 of 26 October 2000 the Supreme Administrative Court dismissed the applicant’s appeal on the ground that the refusal of the authorities in 1996 did not constitute an executory administrative act, but it was a mere repetition of the initial refusal of 1984 and the subsequent registration in the 1988 list and as such could not be subjected to judicial review. In particular, the Supreme Administrative Court held that : “Since the applicant challenged neither the initial refusal of his request nor his subsequent registration in the seniority list of 1988, which contained an omission to register him in the list of 1984, the final decision of the Minister of National Education ... has not an executory character and the applicant’s action against it must be dismissed as inadmissible ...”.

Article 16 of Law 1771/1988 provides as follows:

“1. Primary education and kindergarten teachers of another dogma or religion who are candidates for appointment will be appointed and placed in public primary schools with more than one teaching posts ... as the case may be, provided that they meet the qualifications of Articles 12 and 13 of Law 1566/1985.

In the cases of the above-mentioned paragraph, these teachers will not teach the course of religion, except to students believing in the same dogma or religion, provided that the said course is included in the curriculum.

The teachers of paragraph 1 may also be appointed to primary schools and kindergartens with one teaching post, if they are students of the same dogma or religion attending that school or kindergarten.”