The applicants are 428 individuals from the Thule District in Greenland, and Hingitaq 53, a group that represents the interests of relocated Inughuit (the Thule Tribe) and their descendants in a legal action against the Danish Government. They were represented before the Court by Mr Christian Harlang, a lawyer practising in Copenhagen.

s, may be summarised as follows.

The population of Greenland (approximately 55,000) is predominantly Inuit, a people bearing an affinity and solidarity with the Inuit populations of Canada, Alaska and Siberia.

In the north-west of Greenland the Inuit people are Inughuit (also known as the Thule Tribe), a people living from hunting and fishing, who entered Greenland from Canada in around 2000 BC. They lived completely isolated until 1818, following which they received visits by whalers and expeditions.

In 1909 the Danish polar researcher Knud Rasmussen established a commercial trading station and privately initiated a colonisation of the area, which he called the Thule District. By a decree of 10 May 1921 the Thule District was incorporated into the Danish colonial area in Greenland. In order to preserve the people’s way of living, in 1927 Knud Rasmussen established a Hunters’ Council (Fangerråd), which adopted the “Laws of the Cape York Station Thule”. In 1937 Denmark took over the trading station.

During World War II, after the German occupation of Denmark in 1940, the United States of America (“the US”) invoked the Monroe Doctrine in respect of Greenland and reached an agreement in 1941 with the Danish minister at Washington that permitted the establishment of US military bases and meteorological stations. Thus, in 1946, among other places in Greenland, a so-called weather station was built in the Thule District. It appears that the Hunters’ Councils received a sum of approximately 200 Danish kroner (DKK) in compensation for this.

After the war, Denmark and the US signed a treaty on the defence of Greenland, which was approved on 18 May 1951 by the Danish Parliament (called Rigsdagen at the relevant time) and entered into force on 8 June 1951.

Consequently, an American air base was established at the Dundas Peninsula in the Thule District amidst the applicants’ hunting areas and in the vicinity of the applicants’ native village site, Uummannaq (then called Thule).

As part of the base a 3 km-long airstrip was built, together with housing and facilities intended to accommodate 4,000 people. There appears to be dispute as to the exact size of the defence area at the relevant time and how much of it the Inughuit were excluded from. The applicants alleged that the defence area amounted to 2.743 square kilometres.

It is common ground, however, that Inughuit access to hunting and fishing was increasingly restricted and that the activities at the base eventually had a detrimental effect on the wildlife in the area.

In the spring of 1953 the US wished to establish an anti-aircraft artillery unit as well and requested permission to expand the base to cover the whole Dundas Peninsula. The request was granted, with the consequence that the Thule Tribe was evicted and had to settle outside the defence area. The tribe was informed of this on 25 May 1953 and within a few days, while they could still travel over the frozen sea ice with dog sleds, twentysix Inuit families, consisting of 116 people, left Uummannaq, leaving behind their houses, a hospital, a school, a radio station, warehouses, a church and a graveyard (the family houses were later burned down and the church was moved to another village on the west coast).

Most of the families chose to move to Qaanaaq, more than 100 km north of Uummannaq, where they lived in tents until September 1953, when substitute housing was built for them (altogether twenty-seven wooden houses), together with facilities for a new village (including a school, a church, a hospital, administration buildings, a power station and road facilities). Also, groceries and equipment were handed out to the families.

The total cost of the relocation amounted to approximately DKK 8.65 million (equivalent to 1.15 million euros (EUR)), of which the US paid 700,000 United States dollars (USD), equivalent to DKK 4.9 million. It is estimated that the families’ yearly income on average at the relevant time amounted to DKK 1,500.

On 5 June 1953 a new Danish Constitution was passed (to replace the previous one of 1849). It extended to all parts of the Danish Kingdom, including Greenland, which thus became an integral part of Denmark.

Subsequently, by Resolution 849 (IX) of 22 November 1954 the United Nations General Assembly approved the constitutional integration of Greenland into the Danish Realm and deleted Greenland from the list of non-self-governing territories.

At the Hunters’ Council’s meeting in 1954 the question of compensation for the Thule Tribe’s relocation arose for the first time, but not until after their meetings in 1959 and 1960 did they submit formal requests to the Ministry for Greenland. The latter requested a statement by the Chief of Greenland (Landshøvdingen), who submitted his reply on 3 December 1960. It is in dispute what happened thereafter, but the authorities claimed that the case file had disappeared. It reappeared in 2000. It is undisputed, however, that neither the Hunters’ Council nor the Thule Tribe received a decision on their requests.

In 1979 home rule was introduced in Greenland, a scheme which left most of the important decision-making, excluding the areas of foreign policy and defence, to the Home Rule Government (Landsstyret).

In 1985, following the publication of a book on the Thule Tribe and the Thule Air Base (Thule – fangerfolk og militæranlæg), the Thule Tribe lodged a fresh claim for compensation via the municipality of Qaanaaq.

Consequently, several meetings were held between the Minister for Greenland, the municipality of Qaanaaq, and a working group appointed to safeguard the interests of the applicants. This led, inter alia, to the building of new houses instead of the original houses from the 1950s, and to an agreement between the Danish Government and the Home Rule Government to coordinate a plan to improve the conditions for the Thule municipality vis-à-vis its military neighbour in order to remedy the inconveniences resulting from the existence of the military base. The plan was implemented in the period 1985-1986. Thus, on 30 September 1986 the US and Denmark entered into an agreement reducing the area of the base to almost half its original size. Moreover, the Danish Government and the Home Rule Government agreed to seek a solution concerning an improvement in the use of the military base for additional civilian traffic and to create a civilian transit area funded by the Danish Government.

Finally, on 4 June 1987 the Minister of Justice set up a review committee to submit a report establishing the facts of the Thule Tribe’s relocation in 1953. The committee consisted of a High Court judge, a senior archivist and a vice-bishop. As part of the review, numerous people gave statements to the committee, which submitted its report in December 1994.

The Home Rule Government made some very critical observations on the conclusions of the report, but found that the material that had been obtained as its basis had been satisfactory, apart from the above-mentioned case file that had apparently disappeared within the Ministry for Greenland and some security-related documents to which the committee had been unable to obtain access.

On 31 January 1997, in order to resolve the Thule case dispute, the Prime Minister’s Office (Statsministeriet) and the Premier of the Home Rule Government (Formanden for det Grønlandske Hjemmestyre) entered into an agreement whereby the former agreed to donate DKK 47,000,000 towards the cost of a new airport in Thule.

In the meantime, on 20 December 1996 the applicants had brought a case against the Prime Minister’s Office before the High Court of Eastern Denmark (Østre Landsret), seeking a declaration:

(1) that they had the right to live in and use their native settlement in Uummannaq/Dundas in the Thule District;

(2) that they had the right to move, stay and hunt in the entire Thule District;

(3) that the Thule Tribe was entitled to compensation in the amount of DKK 25,000,000 (equivalent to approximately EUR 3,333,333); and

(4) that each individual was entitled to compensation in the amount of DKK 250,000 (equivalent to approximately EUR 33,333).

The applicants had been granted free legal aid to bring their case, although this was restricted so that their claim for compensation could amount to a maximum of DKK 25,000,000 instead of DKK 136,200,000 (equivalent to approximately EUR 18,169,000), which was the amount that they had originally intended to claim.

Before the High Court numerous ethnographical, geographical, historical, political and autobiographical reports, books and minutes, inter alia, were submitted on the issue, including the report of December 1994 by the review committee. Witnesses gave evidence and the High Court visited the relevant areas in Greenland. In addition, experts were appointed to produce a report on the development of hunting in the Thule District. It was submitted on 29 January 1999.

On 20 August 1999 the High Court of Eastern Denmark delivered its judgment, which ran to 502 pages. It found, in particular: that the Thule Air Base had been legally established under the 1951 Defence Treaty, the adoption and content of which had been in accordance with Danish law; that the population at the relevant time could be regarded as a tribal people as this concept was now defined in Article 1.1 (a) of the International Labour Organisation’s Convention no. 169 of 28 June 1989 concerning Indigenous and Tribal Peoples in Independent Countries (“the ILO Convention”); that the substantial restriction of access to hunting and fishing caused by the establishment of the Thule Air Base in 1951 and the eviction of the tribe from the Thule District in May 1953 had amounted to such serious interferences that they had to be regarded as expropriations; that the tribe had had too little time to prepare their departure; that expropriations could be carried out in Greenland at the relevant time without statutory authority; but that at the relevant time, pursuant to Article 73 of the UN Charter (FN Pagten), the Danish Government had had international obligations towards Greenland, as was confirmed by section 45 of the Greenland Administration Act of 1925 (Loven af 1925 om Grønlands styrelse); and that the applicants’ claims had not become time-barred.

Since the exercise of the rights claimed by the applicants according to the wording of claims nos. (1) and (2) would be incompatible with the presence of the US air base, and having regard to its finding concerning the legal basis for the establishment of the base, the High Court found that claims nos. (1) and (2) could not be allowed, but that claims nos. (3) and (4) should be allowed in part.

In order to assess the compensation to be granted, the High Court took into account various accounts, minutes, witness statements and historical and political descriptions but stated that the material did not give an unambiguous and objective picture. In addition, the change in hunting possibilities had to be taken into account. The High Court found it established, for example, that fox hunting, which in 1953 had represented a very significant part of the Thule Tribe’s hunting, had become more difficult since the distance to the fox-hunting fields had increased after the tribe’s removal. On the other hand, the hunting of seals and narwhals had later become of crucial importance. Having regard to those factors, and to the fact that the Danish authorities in the past had failed to examine and specify the loss suffered, the High Court decided to ease the burden of proof normally required for granting compensation for alleged loss. In addition, it found that the loss should be assessed only up to the mid-1960s, when a new site called Moriussaq had been established between Qaanaaq and Uummannaq in order to adapt to various changes in hunting. Finally, the High Court took into account the fact that substitute housing had been built for the families concerned.

In conclusion, the High Court found that the Thule Tribe should be granted DKK 500,000 (equivalent to approximately EUR 66,666) in compensation for its eviction and loss of hunting rights in the Thule District.

As regards the applicants’ individual claims, the High Court did not find it established that they had suffered pecuniary damage which had not been covered by the substitute housing and the groceries and materials handed out to them in the summer of 1953, and the above amount granted to the tribe by way of compensation.

With regard to the claim for non-pecuniary damage, the High Court noted that at the relevant time there had been no legal rules authorising such compensation in relation to Greenland. Nevertheless, having regard to the nature and extent of the interference imposed by the colonial power on an isolated indigenous tribe, the High Court found that the individuals affected in 1953 should be granted an award for non-pecuniary damage. In the assessment of the amount to be awarded, the High Court found it appropriate to deviate from the general principles according to which the calculation of compensation should take as a point of reference the time at which the harm was sustained, in this case 1953, notably because the relevant applicants had been prevented for a long time from having their claim examined. The age of the individuals at the time of the eviction was also taken into account.

Accordingly, those applicants who at the relevant time had been at least 18 years of age were granted DKK 25,000 (equivalent to approximately EUR 3,333) in compensation for non-pecuniary damage and those who had been between 4 and 18 years old were granted DKK 15,000 (equivalent to approximately EUR 2,000).

In accordance with the applicants’ claim, interest was payable on the amounts awarded as from the date on which the case had been brought before the High Court.

In the proceedings before the High Court, the applicants’ two counsel was awarded fees in the amount of respectively DKK 1,200,000 and DKK 1,000,000 plus VAT.

On 2 September 1999, in addition to signing a new agreement aimed at renewing the relationship between the Danish Government and the Home Rule Government, the Danish Prime Minister formally apologised to the applicants for the forced relocation of the Inughuit in 1953, by stating as follows:

“The Danish High Court has on 20 August 1999 ruled in the case regarding the forced movement of the Thule people in 1953. The Danish High Court states that the Danish authorities acted unlawful at the time. The forced movement was decided and carried out in such a way, and under such circumstances, that it has to be regarded as a serious encroachment towards the people. We cannot alter the historical events, but we have to answer for them and respect them. With the recent verdict, a limit has been set on the Government’s encroachment towards the people.

Today, no one can be made responsible for actions committed by past generations almost 50 years ago. But with the spirit of the Commonwealth, and with respect for Greenland and the inhabitants of Thule, the Government would, on behalf of the Danish State, like to offer an apology – utoqqatserpugut (mamiasuktugut) – to the Inughuit, the inhabitants of Thule, and to the rest of Greenland, for the way in which the decision regarding the forced movement was made and carried out in 1953. We wish to continue and strengthen our collaboration and solidarity between Denmark and Greenland. Danish-Greenlandic cooperation within the Commonwealth shall also in the future be based on mutual respect.

With the amendment of the Constitution in 1953, the citizens of Greenland were made to enjoy the same rights as the Danish people. With the introduction of the Home Rule Government in 1979, Greenland obtained its own parliament, a fact which implied that decisions were and are made closer to the people in the Greenlandic democracy. Any possible repetition of what took place in 1953 is therefore out of the question.

We recognise the achievements we have made through our cooperation and solidarity over the years since 1953. Our Commonwealth has experienced a very positive human, social and economic development for the benefit of the people of Greenland and Denmark.

The Danish Government wishes to strengthen Greenlandic participation in matters to do with foreign policy and in security issues relating to Greenlandic interests. Dialogue regarding this matter has begun already on the basis of the report of the ‘Anorak’ Committee (committee comprising officials from both the Greenlandic and the Danish Governments), among other things. Representatives of the Greenlandic Government will be included in the negotiation process, when new agreements are made between the Danish Government and foreign States on matters which relate specifically to Greenland.”

On appeal to the Supreme Court (Højesteret), the applicants argued that pursuant to Article 1.1 (b) of the ILO Convention, they had to be considered a distinct indigenous people separate from the rest of the Greenlandic population, for which reason Articles 1, 12, 14 and 16 of the ILO Convention should be applied in particular. They also increased their claim for compensation to DKK 235 million.

Before the Supreme Court all the evidence that had been presented before the High Court was submitted, together with the case file from the Ministry for Greenland that had reappeared in 2000. Witnesses also gave evidence.

In a judgment of 28 November 2003 the Supreme Court unanimously upheld the High Court’s judgment and held as follows:

“The ILO Convention

In order to address the Prime Minister’s Office’s request for their claims to be dismissed, and in support of their own claims, [the applicants] have as their main argument referred to the provisions of the International Labour Organisation’s Convention no. 169 of 28 June 1989 concerning Indigenous and Tribal Peoples in Independent Countries (the ILO Convention), particularly Articles 1, 12, 14 and 16. Thus, [the applicants] have argued that pursuant to Article 1.1 (b), the tribe is considered a distinct indigenous people separate from the rest of the Greenlandic population.

The Convention became operative for Denmark on 22 February 1997. At the time of ratification, the Greenlandic people as a whole were considered an indigenous people within the meaning of the Convention.

In support of its allegation that it is an indigenous people, the Thule Tribe has pointed out that its members descend from the people that lived in the Thule District at the time of the colonisation in 1921, and that its members retain some of their own social, economic, cultural and political institutions. According to its own definition, the Thule Tribe encompasses all descendants of this indigenous population and the descendants’ spouses, irrespective of where they were born and where they live. The members of the tribe see themselves as belonging to one distinct indigenous people.

[The Supreme Court finds that] the assessment of whether or not the Thule Tribe is a distinct indigenous people within the meaning of the ILO Convention should be based on current circumstances. In Greenland, there are still regional variations in terms of language, business conditions and judicial systems, caused by the size of the country, communication and traffic conditions, and local natural conditions, among other things. After an overall assessment of the evidence before it, the Supreme Court finds that in all essential respects the population of the Thule District [live under] the same conditions as the rest of the Greenlandic people, and that they do not differ from the latter in any other relevant way. The particulars produced on the difference between the languages spoken in Qaanaaq and in West Greenland and the Thule Tribe’s perception of itself as a distinct indigenous people cannot lead to any other conclusion. The Supreme Court therefore finds that the Thule Tribe does not ‘retain some or all of its own social, economic, cultural and political institutions’, and that accordingly the Thule Tribe is not a distinct indigenous people for the purposes of Article 1.1 (b) of the ILO Convention.

Article 1.1 (a) of the ILO Convention also includes ‘tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations’. As reasoned above, the Supreme Court finds that the Thule Tribe does not fall within this provision of the Convention either.

This interpretation is consistent with the declaration made by the Danish Government, endorsed by the Greenland Home Rule Government, in connection with the ratification of the ILO Convention. According to this declaration, Denmark has ‘only one indigenous people’ within the meaning of the Convention, namely the original inhabitants of Greenland, the Inuit.

In its decision of March 2001 the ILO’s Governing Body reached the same conclusion. It thus endorsed the report of 23 March 2001 by the ILO committee that had considered a complaint submitted by the Greenland trade union Sulinermik Inuussutissarsiuteqartut Kattuffiat (SIK) concerning Denmark’s alleged breach of the Convention. The report states that ‘there is no basis for regarding the inhabitants of the Uummannaq community as a ‘people’ separate from and different from other Greenlanders’ and that ‘the territory traditionally inhabited by the Inuit has been identified and consists of the entire territory of Greenland’.

It must be considered established that within the meaning of Article 1.1 of the ILO Convention the Thule Tribe does not constitute a tribal people or a distinct indigenous people within or coexisting with the Greenlandic people as a whole. Consequently, the Thule Tribe does not have separate rights under the said Convention.

The Prime Minister’s Office’s request for the claims to be dismissed

The fact that the Thule Tribe cannot be considered a tribal people or a distinct indigenous people within the meaning of the ILO Convention does not preclude the Thule Tribe from being entitled to take legal action in accordance with the general rules on the matter.

The Prime Minister’s Office has not disputed that the organisation Hingitaq 53 may represent the Thule Tribe. As was stated by the High Court, the Thule Tribe must be considered a sufficiently clearly defined group of people. These matters are not altered by the fact that only 422 of the original approximately 600 individual plaintiffs have lodged individual appeals with the Supreme Court. The objection raised by the Prime Minister’s Office that the Thule Tribe is not entitled to the claims, and that consequently [the tribe] is not the rightful plaintiff cannot result in their dismissal. In view of their substance, Claims 1 and 2 are not so ambiguous that they cannot form the basis of an examination of the case.

For this reason, the Supreme Court [agrees with the High Court] that the [Prime Minister’s Office’s] request to dismiss the Thule Tribe’s Claims 1 and 2 should be rejected. For the same reason, the Supreme Court rejects the request to dismiss Claim 3.

The Supreme Court further agrees that the request to dismiss Claims 1 and 2 in respect of the individual appellants should also be rejected.

Access to habitation, travelling, hunting and fishing (Claims 1 and 2)

In support of Claims 1 and 2, [the applicants] have – in addition to the reference to the ILO Convention – argued in particular that the Thule Air Base was established illegally because the 1951 US-Denmark Defence Agreement is invalid under constitutional and international law. [The applicants] have also argued that no legal decision to move the settlement was taken.

As was stated by the High Court in section 7.3 of its judgment, the Thule Air Base was established under the 1951 US-Denmark Defence Agreement. The agreement was adopted by the Rigsdagen [name of the Danish parliament until 1953] pursuant to Article 18 of the Danish Constitution, as applicable at the relevant time, and accordingly the Supreme Court accepts that a constitutionally valid approval of the establishment of the base existed, although the technical appendix to the agreement was not submitted to the Rigsdagen. For this very reason, the agreement is also valid under international law.

The substantial restriction of access to hunting and fishing caused by the establishment of the Thule Air Base in 1951 cannot, for the reasons stated by the High Court in section 7.4, be considered a non-indemnifiable regulation, but an act of expropriation. This expropriation could, as stated by the High Court in section 7.3, be carried out without statutory authority. The Supreme Court therefore finds, for the reasons stated by the High Court, that the substantive law provisions of the Danish Constitution applicable at that time, including Article 80 on the inviolability of property, did not extend to Greenland, that the Greenland Administration Act did not include any claim to statutory authority, and that the question of establishing the base did not fall within the competence of the Hunters’ Council.

As was stated by the High Court in section 7.4, the intervention in the Uummannaq settlement and the Thule colony that took place in connection with the decision in 1953 to move the population is also to be considered an act of expropriation. This intervention may also be considered to have been carried out under the 1951 USDenmark Defence Agreement and the expropriation it entailed could take place without statutory authority.

[The Supreme Court] notes that any inadequate information provided to the Hunters’ Council in 1951 and 1953 cannot constitute grounds for invalidity.

The Supreme Court therefore finds that both the intervention in 1951 regarding access to hunting and fishing and the intervention in 1953 on relocation of the settlement were legal and valid. In this context, it is not necessary to decide whether or not the population of the Thule District at that time constituted a tribal people or a distinct indigenous people in the sense in which these terms are now defined in Article 1 § 1 of the ILO Convention.

The purport of the Thule Tribe’s Claims 1 and 2 is that tribe members are entitled to live in and utilise the abandoned settlement and to travel, stay, hunt and fish in the entire Thule District. For the very reason that, owing to the acts of expropriation, the exercise of this right of enjoyment has been prevented or curtailed in the areas affected by such acts, the appellants’ Claims 1 and 2 cannot be complied with.

This finding applies to Claim 1, although in February 2003 the US and Denmark, including the Greenland Home Rule Government, in continuation of the 1951 USDenmark Defence Agreement, signed a memorandum of understanding about isolating Dundas – the area in which the settlement and colony were placed – from the defence area at Thule. In this connection, it should be noted that the Thule Tribe, which as stated is not considered a tribal people or a distinct indigenous people within the meaning of the ILO Convention, cannot claim privileges regarding Dundas with reference to Article 16 § 3 of the Convention. Nor does Greenland customary law give cause for such privileges.

The Supreme Court therefore finds for the Prime Minister’s Office as concerns the appellants’ Claims 1 and 2.

The Thule Tribe’s claim for damages (Claim 3)

The primary claim for damages in the amount of around DKK 235 million relates in the first place to the Thule Tribe’s loss owing to the lost and reduced hunting and fishing opportunities as a result of the establishment of the base and the relocation of the population from the Uummannaq settlement.

For the reasons stated by the High Court in section 7.4, the Supreme Court finds that compensation for this loss should be granted according to the principles of Article 80 of the Danish Constitution as applicable at that time, although this provision was not directly applicable to Greenland.

After making an overall assessment and weighing up the pros and cons, the High Court set the compensation at an estimated DKK 500,000, and the Prime Minister’s Office has requested that this decision be upheld.

For the reasons stated by the High Court, the Supreme Court finds that there has to be a certain adjustment of the standard of proof as to the loss incurred.

The calculations on which the Thule Tribe’s claims are based cannot be accorded any weight. These calculations use factors that, to a large extent, may be deemed arbitrary, while discounting various matters that ought to have been included in the assessment. The calculations are not based on developments in the species being hunted. The primary claim in the amount of around DKK 235 million is based on the size of the confiscated land without clarifying the correlation between surface area and hunting potential. The calculation comprises a period of 45 years without taking into account the substantial reduction in the area of the base in 1986 and the general limitation of the indemnification period. These calculation factors relate to an annual compensation figure of DKK 200, the sum which was granted when the weather station in Thule was established in 1946 and whose basis remains unknown. The alternative claim in the amount of around DKK 136 million is mainly based on a presumed increase in costs owing to the longer distances required for hunting, without taking into account the fact that, according to the experts’ report, it was not a general rule that the distances to the most significant hunting grounds increased. The adaptation of the species in question to the changed conditions has not been taken into consideration. The number of hunters included in the calculation – approximately half of the original plaintiffs – is not consistent with the number of hunters affected by the interventions.

The Supreme Court agrees, on the whole, with the High Court’s assessment of the facts to be considered when determining the amount of compensation, such as the character of the confiscated hunting grounds, the distances to the most significant hunting grounds, general developments in the patterns of the species concerned – especially the decrease in the fox population and the increase in the narwhal population – and the limitation of the period to be included in the assessment.

From an overall assessment the Supreme Court finds no grounds for increasing the compensation of DKK 500,000 set by the High Court.

For the reasons stated by the High Court, no separate compensation for the church should be granted.

The Supreme Court therefore accepts the request by the Prime Minister’s Office to uphold the Thule Tribe’s Claim 3.

Individual claims (Claim 4)

The appellants concerned by this claim are members of the Thule Tribe who were affected by the relocation in 1953 or their heirs. They have repeated their claim for compensation of DKK 250,000 each.

As was stated by the High Court in section 7.4, the inhabitants of Uummannaq are deemed to have received full compensation for giving up their houses in Uummannaq when they were granted substitute housing. Having been supplied with free goods and equipment from the store, they are further deemed to have received full compensation for special expenses incurred as a result of the relocation.

Thus, the claims under Claim 4 relate solely to compensation for the injury that the persons in question suffered owing to the circumstances of their relocation.

Before the Supreme Court, the Prime Minister’s Office has admitted that the relocation of the population of Uummannaq, as described by the High Court in section 7.1, was decided and carried out in a way and under circumstances that constituted a serious interference and unlawful conduct towards the population of Uummannaq. Against this background, the Prime Minister’s Office has accepted the amounts of compensation determined by the High Court.

In assessing the awards of compensation to be granted, the Supreme Court endorses the High Court’s statements in section 7.5 concerning the matters that have to be taken into consideration. The Supreme Court also agrees that weight should be attached to the population’s age at the time of the relocation as outlined by the High Court, so that persons aged 18 or more at the time of relocation are granted a larger amount of compensation than those who were younger, and persons who were under 4 years of age receive no compensation.

The Supreme Court finds no grounds for increasing the compensation awarded by the High Court. The request by the Prime Minister’s Office to uphold Claim 4 is therefore to be complied with.

... Thus, the Supreme Court upholds entirely the High Court’s judgment.

None of the parties are to pay costs for the proceedings before the Supreme Court to the other party or to the Treasury. ”

On 2 December 2003 the Supreme Court decided on the fee to be awarded the applicant’s counsel. The latter had submitted that since the lodging of the appeal with the Supreme Court he had spent 1,429 hours on the case. The Supreme Court found such an amount of hours to be excessive and granted counsel a legal fee in the amount of DKK 1,500,000 plus VAT (equivalent to approximately EUR 200,000 plus VAT) in addition to compensation for costs and expenses incurred in the amount of DKK 122,605.

The Danish Constitution of 1849 ensured, among other things, the inviolability of one’s dwelling and the right of property (Article 80). On 5 June 1953 a revised Danish Constitution was passed. Article 1 of the Constitution provides that the Constitution applies to all parts of the Danish Realm. Greenland’s colonial status was thus ended through full integration into the Danish Realm. The Constitution secured the Greenland population two out of the 179 seats in the Danish Parliament (Folketing). By virtue of its general scope of application, the Constitution put the Greenland population on an equal footing with the Danes and the Faeroese as Danish citizens.

The new Constitution reads, in as far as relevant:

“The dwelling shall be inviolable. House searches, seizures, and the examination of letters and other papers, and any breach of the secrecy to be observed in postal, telegraphic and telephone matters, shall take place only by judicial order unless particular exception is warranted by statute.”

“1. The right of property shall be inviolable. No person shall be ordered to surrender his property except where required by the public weal. This may be done only as provided by statute and subject to full compensation.

Where a Bill relating to the expropriation of property has been passed, one-third of the Members of Parliament may, within three weekdays from the final passing of the Bill, request that it should not be submitted for Royal Assent until new elections to Parliament have been held and the Bill has been passed again by the Parliament assembling thereafter.

Any question concerning the legality of an act of expropriation and the amount of compensation may be raised before the courts of justice. The examination of issues relating to the amount of compensation may be referred by statute to courts of justice established for that purpose.”

Chapter XI of the Charter of the United Nations of 26 June 1945 (Declaration regarding non-self-governing territories) reads as follows:

“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:

a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;

b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;

c. to further international peace and security;

d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and

e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.”

“Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighborliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.”

By Resolution 849 (IX) the United Nations General Assembly on 22 November 1954 approved the constitutional integration of Greenland into the Danish Realm and deleted Greenland from the list of non-self-governing territories.

The ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries was adopted on 27 June 1989 and entered into force on 5 September 1991. With regard to Denmark, the Convention was ratified in 1996 and became operative on 22 February 1997. It applies to the indigenous population in Greenland and ratification was encouraged by the Home Rule Government of Greenland, amounting to a declaration that the Home Rule Act for Greenland fulfils the obligations of the Convention. It reads, in so far as relevant:

“1. This Convention applies to:

(a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

(b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”

“The peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights. Measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings, where necessary through the provision of interpretation or by other effective means.”

“1. In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.

The use of the term ‘lands’ in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.”

“1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.

Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.

Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.”

“1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.

Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.

Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.

When such return is not possible, as determined by agreement or, in the absence of such agreement, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.

Persons thus relocated shall be fully compensated for any resulting loss or injury.”


The applicant, Ms Eleonóra Witkovská, is a Slovakian national, who was born in 1931 and lives in Smolník.

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

On 3 April 1998 the applicant sued a private company before the Poprad District Court. She claimed that construction works carried out by the defendant in her house resulted in defects and that the defendant should be ordered to repair those defects.

On 22 May 1998 the judge asked the applicant to submit further information including the address of the defendant as a letter of 15 April 1998 could not be served on its representatives. The applicant replied on 16 June 1998.

On 16 July and on 14 September 1998 the judge asked the defendant to submit comments on the action.

On 27 October 1998 the District Court discontinued the proceedings as the defendant had not been indicated correctly in the action. On 30 November 1998 the applicant appealed.

The District Court unsuccessfully attempted to serve the decision of 27 October 1998 and the applicant's appeal against it on the representative of the defendant. On 1 March 1999 the police informed the court that the representative had moved and that his address was unknown. The District Court then unsuccessfully tried to have the above documents delivered at the registered address of the defendant company. The representative of the defendant company appeared at the District Court and was served with the documents on 18 May 1999. On 1 July 1999 the case file was transmitted to the Prešov Regional Court.

On 17 November 1999 the Regional Court quashed the District Court's decision of 27 October 1998. The Regional Court's decision was delivered to the District Court on 30 December 1999.

The District Court heard the parties on 11 February 2000 and on 10 March 2000. In the course of March 2000 the parties submitted further documents at the court's request.

On 19 October 2000 the District Court heard witnesses. It then decided to obtain an expert opinion.

An expert was appointed on 22 December 2000. The applicant was instructed to pay an advance on the expert's fees. The expert submitted the opinion on 30 January 2001.

On 16 February 2001 and on 5 April 2001 the District Court urged the applicant to pay an advance on the expert's fees. On 5 April 2001 the applicant replied that the bank account number of the District Court had not been notified to her. On 23 April 2001 the applicant paid the sum due after she had received the relevant money transfer document from the District Court.

On 19 July 2001 the case was adjourned as the applicant's representative did not appear and the applicant was not in a position to comment on the expert opinion as the lawyer had not transmitted it to her.

The applicant submitted her written comments on the expert opinion on 11 September 2001.

Following the applicant's complaint about the conduct of the proceedings the file was sent to the Regional Court on 24 October 2001. It was returned to the District Court on 13 December 2001.

On 12 February 2002 and on 28 March 2002 the District Court adjourned the case with a view to obtaining further evidence. Such evidence was submitted in the course of May 2002.

On 12 July 2002 the judge requested the defendant to submit additional information.

A hearing was scheduled for 13 September 2002. The applicant's lawyer and a witness informed the District Court that they could not appear. The lawyer asked the court to proceed with the case in her absence. On 13 September 2002 the case was adjourned as the applicant insisted that it be proceeded with only in the presence of her lawyer.

On 26 September 2002 the District Court partly granted the applicant's action. The judgment was served on the parties on 15 and 26 November 2002 respectively.

On 29 November 2002 the applicant appealed against the part of the District Court's judgment by which her claim had been dismissed. The defendant appealed on 10 December 2002.

On 7 January 2003 the judge instructed the defendant to pay the court fee and to submit another copy of the appeal. The case file was submitted to the Regional Court on 7 March 2003.

On 23 September 2003 the Prešov Regional Court upheld the District Court's judgment of 26 September 2002.

On 12 February 2003 the applicant complained to the Constitutional Court about the length of the above proceedings before the Poprad District Court.

On 12 March 2003 the Constitutional Court declared the complaint admissible.

On 2 July 2003 the Constitutional Court found that the applicant's right to a hearing within a reasonable time had not been violated. The decision stated that the case was not complex from the legal point of view. However, certain difficulties arose due to the fact that the contract between the applicant and the defendant concerning the repair of the applicant's house had been concluded orally and that its contents were disputed between the parties. This required extensive evidence to be taken including an expert opinion.

The Constitutional Court held that the applicant and her representative had contributed to a certain extent to the length of the proceedings in that the lawyer had not transmitted the expert opinion to the applicant who was therefore not able to comment on it at the hearing held on 19 July 2001 at which her lawyer did not appear. In addition, the case had to be adjourned on 13 September 2002 as the applicant did not agree that it be proceeded with in the absence of her lawyer. The Constitutional Court's decision also stated that the applicant had paid an advance on the expert's fees belatedly and that she had not informed the District Court in time that she did not have at her disposal the information necessary for paying the fee.

In 1971 the applicant was dismissed from her job for political reasons. The final decision on this issue was delivered by the Košice Regional Court on 9 February 1972.

The State-owned company concerned again employed the applicant as from 1 November 1990. The company's representatives apologised to the applicant for the wrongs which had been caused to her. On 25 July 1991 the employer issued a certificate to the applicant under Section 22(1) of the Extra-Judicial Rehabilitations Act.

The applicant sought to obtain compensation for her earlier persecution. She was informed by several authorities including the Constitutional Court and the General Prosecutor's Office that her claim for compensation could not be satisfied under the existing law.

On 28 August 1996 the applicant claimed compensation for lost income from the Ministry of Justice under the State Liability Act of 1969. The Ministry refused to satisfy the claim and the applicant sought redress before the Spišská Nová Ves District Court.

The District Court dismissed the action on 18 February 1997. The decision stated that the relevant judicial decisions concerning the applicant's dismissal had not been quashed in a separate set of proceedings as required by Section 4(1) of the State Liability Act, and that that the applicant had no right to compensation under Section 22(6) of the Extra-Judicial Rehabilitations Act.

On 17 June 1999 the Košice Regional Court upheld the first instance judgment. The decision stated that in the applicant's case the Extra-Judicial Rehabilitations Act was a lex specialis with respect to the State Liability Act of 1969.

Extra-Judicial Rehabilitations Act of 1991

The aim of the Extra-Judicial Rehabilitations Act (Zákon o mimosúdnych rehabilitáciách, in force as from 1 April 1991) is to redress certain infringements of property and social rights which occurred between 25 February 1948 and 1 January 1989. The following provisions are relevant in the present case.

Pursuant to Section 21(1), legal actions terminating a person's contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void for the purpose of the Extra-Judicial Rehabilitations Act.

Section 22(1) provides that the former employer or its successor shall issue, at the request of the person concerned, a certificate that the latter's contract of employment was terminated for reasons mentioned in Section 21(1).

Pursuant to paragraph 6 of Section 22, the fact that a legal act is considered as void under Section 21 neither renews an earlier terminated labour contract nor does it give a right to compensation for lost income or other damage.

Under Section 24(1), when the termination of employment is considered void within the meaning of Section 21, the period between the termination of the contract of employment and the date when the person concerned acquired a right to an old-age pension or invalidity pension is to be considered as the period of employment for the determination of that person's social security rights.

State Liability Act of 1969

Section 1 of Act No. 58/1969 on the liability of the State for damage caused by a State organ's decision or by its erroneous official action (“the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings.

Pursuant to Section 4(1), a claim for damages can only be lodged after the decision by which damage was caused has been quashed by the competent authority as being unlawful.


CASE OF HADŽIĆ AND SULJIĆ v. BOSNIA AND HERZEGOVINA

Violation of Art. 5-1;Non-pecuniary damage - award

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

A. The facts concerning Mr Hadžić

The applicant was born in 1959. He is currently serving a prison sentence in Zenica Prison.

On 1 May 2002 the applicant killed three people. He was remanded in custody on the same day.

On 23 September 2002 the Tuzla Cantonal Court found the applicant guilty of manslaughter, as well as of possessing a firearm without a licence, and sentenced him to twenty-one years’ imprisonment. In view of the applicant’s diminished responsibility at the time the offences were committed, it imposed a concurrent hospital order, pursuant to Article 63 of the Criminal Code 1998 (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi).

On 21 February 2003 the applicant was placed in the Psychiatric Annex.

On 30 April 2003 the Supreme Court of the Federation of Bosnia and Herzegovina increased the prison sentence from twenty-one to twenty-four years and upheld the remainder of the first-instance judgment of 23 September 2002.

On 17 March 2004 the applicant lodged his first application with this Court, complaining, among other things, that his detention in the Psychiatric Annex was unlawful. On 11 October 2005 the Court struck it out of its list of cases following a friendly settlement between the parties (see Hadžić v. Bosnia and Herzegovina (dec.), no. 11123/04, 11 October 2005). The Government undertook as part of that settlement to move all patients held in the Psychiatric Annex (including the applicant) to an adequate facility by 31 December 2005 and to pay ex gratia 9,000 euros (EUR) to the applicant. The applicant, in return, waived any further claims against Bosnia and Herzegovina in respect of the matters giving rise to that application. On 27 February 2006 the Government paid the amount due, but the applicant continued to be detained in the Psychiatric Annex despite the Government’s undertaking mentioned above.

On 21 December 2006 the Constitutional Court of Bosnia and Herzegovina found a breach of Article 5 §§ 1 and 4 of the Convention in the applicant’s case. It held, among other things, that the Psychiatric Annex was not an appropriate institution for the detention of mental health patients. It ordered certain general measures, such as the establishment without further delay of an adequate health care institution. Furthermore, it held that those who complained that their detention in the Psychiatric Annex was unlawful did not have an effective remedy at their disposal after 1 August 2003 other than an appeal to the Constitutional Court itself. The applicant was not awarded any compensation.

On 20 August 2007 the applicant instituted civil proceedings seeking damages from the State for a breach of the right to liberty and security under the Civil Obligations Act 1978. He referred to the Constitutional Court decision of 21 December 2006 mentioned above. It would appear that the case is pending before the Tuzla Cantonal Court. On 21 August 2007 the applicant instituted similar proceedings against the Federation of Bosnia and Herzegovina. It would appear that the case is pending before the Sarajevo Cantonal Court.

Pursuant to a proposal of the Psychiatric Annex, on 31 March 2008 the Tuzla Cantonal Court established, on the basis of a report prepared by the Sarajevo Psychiatric Hospital, that the applicant’s mental condition no longer required his confinement in that Annex. It relied on Article 63 § 2 of the Criminal Code 1998 and Article 480 § 2 of the Code of Criminal Procedure 1998 (although they were no longer in force). The applicant failed to appeal in due time. On 13 August 2008 he was transferred from the Psychiatric Annex to the general section of Zenica Prison pursuant to that decision.

B. The facts concerning Mr Suljić

The applicant was born in 1956.

On 23 November 2002 the applicant killed his girlfriend. He was remanded in custody on the same day.

On 20 January 2003 the Tuzla Cantonal Court found the applicant guilty of manslaughter and sentenced him to eight years’ imprisonment. In view of the applicant’s diminished responsibility at the time of committing the offence, it imposed a concurrent hospital order, pursuant to Article 63 of the Criminal Code 1998 (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi).

On 16 April 2003 the Supreme Court of the Federation of Bosnia and Herzegovina upheld the first-instance judgment of 20 January 2003.

On 5 May 2003 the applicant was placed in the Psychiatric Annex.

At the request of the Psychiatric Annex, on 4 July 2008 the Tuzla Cantonal Court established, on the basis of a report prepared by the Sarajevo Psychiatric Hospital, that the applicant’s mental condition no longer required his confinement in that Annex. It relied on Article 63 § 2 of the Criminal Code 1998 and Article 480 § 2 of the Code of Criminal Procedure 1998 (although they were no longer in force). The applicant did not appeal. On 21 July 2008 he was transferred from the Psychiatric Annex to the general section of Zenica Prison in accordance with that decision.

On 28 April 2010 the Constitutional Court of Bosnia and Herzegovina found a breach of Article 5 §§ 1 and 4 of the Convention in the applicant’s case. It held, among other things, that the Psychiatric Annex was not an appropriate institution for the detention of mental health patients. The applicant was awarded compensation of 2,000 convertible marks (BAM, approximately EUR 1,000).

There are two legal regimes applicable to psychiatric detention.

First of all, the relevant civil court can order the compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and/or the public from serious harm (see sections 22(1), 29(1) and 31(1) of the Mental Health Act 2001, Zakon o zaštiti osoba sa duševnim smetnjama, published in the Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”) no. 37/01 of 15 August 2001, amendments published in OG FBH no. 40/02 of 21 August 2002).

Secondly, the relevant criminal court can impose a hospital order (obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi) on an offender who, at the time of committing a criminal offence, was suffering from a mental disorder affecting his or her mental responsibility, if it is satisfied on the evidence of a psychiatrist that this is necessary in order to prevent the offender from committing another criminal offence. However, there is an important difference in this regard between the old and new criminal legislation (the latter entered into force on 1 August 2003). While a hospital order can still be imposed on those who have been found guilty although suffering from diminished responsibility (such as the present applicants), it can no longer be imposed against those who have been found not guilty by reason of insanity (see Article 74 § 1 of the Criminal Code 2003, Krivični zakon Federacije Bosne i Hercegovine, published in OG FBH no. 36/03 of 29 July 2003, amendments published in OG FBH nos. 37/03 of 31 July 2003, 21/04 of 17 April 2004, 69/04 of 7 December 2004, 18/05 of 23 March 2005 and 42/10 of 21 July 2010). If a hospital order has indeed been imposed on an offender with diminished responsibility, he or she can now apply once a year to have the application of the hospital order discontinued under Article 427 of the Code of Criminal Procedure 2003 (Zakon o krivičnom postupku Federacije Bosne i Hercegovine, published in OG FBH no. 35/03 of 28 July 2003, amendments published in OG FBH nos. 37/03 of 31 July 2003, 56/03 of 14 November 2003, 78/04 of 31 December 2004, 28/05 of 11 May 2005, 55/06 of 20 September 2006, 27/07 of 18 April 2007, 53/07 of 8 August 2007, 9/09 of 11 February 2009 and 12/10 of 15 March 2010).

The law of tort is regulated by the Civil Obligations Act 1978 (Zakon o obligacionim odnosima, published in Official Gazette of the Socialist Federal Republic of Yugoslavia (“OG SFRY”) no. 29/78, amendments published in OG SFRY nos. 39/85, 45/89 and 57/89, Official Gazette of the Republic of Bosnia and Herzegovina nos. 2/92 of 11 April 1992, 13/93 of 7 June 1993 and 13/94 of 9 June 1994, and OG FBH no. 29/03 of 30 June 2003). The main remedy for a tort is an action for damages, but in some cases permanent injunction can be obtained to prevent repetition of the injury (see sections 157, 199 and 200 of this Act). Section 172 of this Act prescribes, among other things, that a legal person should be liable for the torts committed vis-à-vis a third party by its organs in the course of, or in connection with, the exercise of their functions.

The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment provides non-judicial preventive machinery for the protection of individuals deprived of their liberty. It is based on a system of visits by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”). The CPT periodically draws up reports on individual States, which are strictly confidential. Nevertheless, if a State fails to cooperate or refuses to improve the situation in the light of the CPT’s recommendations, the CPT may decide to make a public statement. The State itself may at any time request publication of the CPT’s report, together with its comments.

The relevant part of the report on the visit to Bosnia and Herzegovina carried out from 27 April to 9 May 2003 reads as follows:

“84. Zenica Prison Forensic Psychiatric Annexe opened as a temporary accommodation for forensic psychiatric patients in 1996. It is the only closed forensic psychiatric unit on the territory of the Federation. With an official capacity of 64 beds, it is located on the first floor of Pavilion IV; at the time of the visit, it was accommodating 69 patients.

All patients were admitted to the Annexe following a court order for ‘mandatory psychiatric treatment and placement in an institution of a closed type’ and had been diagnosed as suffering from chronic psychosis, acute psychotic episodes, alcohol psychoses, epilepsy or organic psycho-syndromes. Most of them had committed homicides/attempted homicides and would stay in the Annexe for 4 to 5 years (on average).

According to the Prison Director, himself a doctor and psychiatrist, the Forensic Psychiatric Annexe is ‘a huge problem which remains unsolved since 1996’. The Director explained that ‘this temporary facility offered conditions which are worse than the conditions for the ordinary prisoners in the other parts of the establishment’, a situation that he described as ‘absurd’. He stated that, ‘on principle, the Forensic Psychiatric Annexe should not be located within a high security prison’.

The delegation was informed that there was unanimous agreement within the psychiatric and prison system, as well as at a political level, that ‘this group of forensic psychiatric patients required hospital conditions and that the treatment and conditions in the Zenica Prison Forensic Psychiatric Annexe were not acceptable’. The delegation was further informed that the Ministry of Justice of the Federation had allocated 3,000,000 convertible marks in 2002 to allow relocation of the forensic psychiatric annexe and provision of proper facilities. However, this decision was not implemented, as no municipalities within the Federation were ready to accept such a facility on their territory. At the time of the visit, the situation was still unresolved.

At the final talks held in Sarajevo in May 2003, the delegation clearly indicated that ‘placing mentally disordered patients in 30-bed, overcrowded dormitories in an essentially custodial environment can no longer be tolerated’ and expressed its support for the initiative taken by the authorities in 2002 to finance the renovation and relocation programme aimed at remedying the situation, and involving the health authorities to a much greater extent. The delegation asked to receive within three months further information on this issue, including realistically achievable objectives to resolve this urgent matter.

On 1 October 2003, the authorities provided the following information to the CPT.

After the CPT’s visit, an expert team was set up under the Ministry of Health, which carried out an inspection at Zenica Prison Forensic Psychiatric Annexe. Its findings fully confirm the observations of the CPT’s delegation (overcrowded dormitories and lack of space in general, lack of nursing staff, no adequate treatment for the patients, very poor hygiene and deficient heating, etc.). The expert team came to the conclusion that ‘conditions for patients [were] extremely inhuman and untenable’ and that measures had to be taken urgently to remedy the situation.

In response to this report, the Ministry of Justice and the Ministry of Health of the Federation decided to implement the following urgent measures until a new place is found to relocate the forensic psychiatric institution: improvement of hygiene; reduction of the number of beds in the dormitories; drafting of specific house rules for the Annexe; setting up a register on cases of use of force/restraint; ‘self-defence’ training for staff.

The CPT welcomes the efforts made by the authorities to solve, on an urgent basis, some serious deficiencies observed during the visit of its delegation and would like to receive updated information on the progress made in this domain.

However, as the authorities themselves acknowledge, this state of affairs cannot be prolonged further. The Committee therefore recommends that the authorities provide within three months a workable strategy to facilitate the relocation of the Forensic Psychiatric Annexe to a site which could offer the potential to remedy the numerous shortcomings observed by the CPT’s delegation.

In preliminary observations on a visit to Bosnia and Herzegovina carried out from 19 to 30 March 2007, the CPT noted that although the Psychiatric Annex was less crowded than during previous visits, the physical conditions had continued to deteriorate and remained wholly unacceptable for a health care institution.


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant, Mr Andreas Hinderberger, is a German national who was born in 1977 and lives in Berlin. He was represented before the Court by A. Feller, a lawyer practising in Hannover.

The applicant was serving a prison sentence in Amberg Prison. On 3 July 2002 he was transferred to another prison in Bielefeld for the purpose of arranging a visit (Besuchszusammenführung). From 10 to 12 July 2002 he was detained as a transit detainee (Durchgangsgefangener) in Hannover Prison for a period of 23 hours. During this transit detention he shared a prison cell measuring 16 square metres with four other prisoners. The cell was equipped with five beds, five chairs, two tables and two wardrobes. An in-cell sink and toilet were screened from view but not otherwise separated. The prisoners were allowed to leave the cell for one hour per day for exercise (Hofgang). The cell was locked during the night.

At a request lodged by the applicant on 11 July 2002 the Hannover Regional Court (Landgericht) found in a decision of 16 September 2002 that the conditions of the applicant’s transit detention in Hannover Prison had been unlawful since five prisoners sharing a cell of 16 square metres that was locked at night and equipped with a toilet only visually separated was in breach of the requirement for the humane accommodation of prisoners.

The applicant subsequently instituted official liability proceedings against the Land of Lower Saxony (Land Niedersachsen) before the Hannover Regional Court and requested adequate financial compensation for non-pecuniary damage of at least 200 euros. By a judgment of 15 July 2003 the Hannover Regional Court confirmed that the applicant’s conditions of detention had been in breach of the requirement for the humane treatment of prisoners. It held that a prison cell designed for accommodating several prisoners had to be equipped with a separate plumbing unit with its own ventilation system, failing which prisoners had to have access to washing facilities or toilets outside the cell, day and night. Sanitary facilities in a prison cell that were only visually separated infringed the prisoners’ right to humane treatment.

The Regional Court further found that in the instant case the relevant authorities were responsible for a breach of their official duties under Articles 839 and 847 of the Civil Code (Bürgerliches Gesetzbuch), as well as Article 34 of the Basic Law in conjunction with the pertaining provisions of the Penal Code (Strafvollzugsgesetz). They should have recognised that the conditions of detention did not comply with the requirements for humane accommodation. While noting the difficulties the Land was facing at that time in respect of the large number of detainees and the limited space for their accommodation, the court found that these did not justify the restriction of the prisoners’ rights as had previously been established by the case-law of the Federal Constitutional Court (Bundesverfassungsgericht). The Regional Court further held that the violation of the applicant’s right to human dignity in itself constituted a serious interference with his personal rights (Persönlichkeitsrecht) that could not be remedied other than by financial compensation for non-pecuniary damage and awarded the applicant the compensation he had requested.

Following an appeal lodged by the Land of Lower Saxony, the Celle Court of Appeal quashed, by a judgment of 2 December 2003, the judgment of the Hannover Regional Court and dismissed the applicant’s claim for financial compensation for non-pecuniary damage. The Court of Appeal confirmed that the applicant’’ case-law on Article 847 of the Civil Code in the version applicable at the time and which also applied to the case at hand, it stated that financial compensation for non-pecuniary damage could be refused in the event of minor bodily harm that was not significantly detrimental and did not cause permanent damage to the victim.

In view of the short duration of the applicant’s transit detention and the fact that there was nothing to establish that he had endured significant or long-term physical or mental suffering, the interference with the applicant’s rights had not reached a severity that required the award of financial compensation for the purpose of preventing similar violations or granting just satisfaction. Since the Regional Court had found a violation of the applicant’s right under Article 1 § 1 of the Basic Law, there was no danger of similar infringements of his rights occurring in the future.

Furthermore, it had to be taken into account that the prison’s transit detention division had been chronically overcrowded during the respective period and a short-term improvement of the situation had not been envisaged owing to financial restrictions. In order to respect the applicant’s rights under the specific circumstances, the prison authorities would have had to interfere with the rights of other prisoners or would have had to reject his transfer to another prison. This had been organised in his own interest, namely for the purpose of arranging a visit. While these considerations could not justify the breach of the applicant’s rights, they nevertheless indicated that the degree of the authorities’ fault and the motives for their actions could not be considered to have been of a serious nature.

On 4 November 2004 the Federal Court of Justice dismissed the applicant’s appeal. It upheld the Court of Appeal’s finding that under the particular circumstances of the instant case, pecuniary compensation had not been necessary for granting the applicant adequate legal redress. It pointed out that there was no automatic link between the finding of a violation of Article 1 § 1 of the Basic Law and the granting of financial compensation. In accordance with the established case-law of the Federal Constitutional Court a prisoner had the right to have the lawfulness of his detention conditions reviewed by the courts irrespective of their duration. The finding of a violation by the domestic courts did not, however, require financial compensation in each case. Depending on the severity and scope of the violation of the right to human dignity in the individual case as well as on the motives and the degree of fault of the acting authorities, sufficient redress could be provided by other means than financial compensation for non-pecuniary damage.

Referring to the Court’s case-law, the Federal Court of Justice pointed out that within the scope of the Convention it was also recognised that for inhuman or degrading treatment to trigger a right to financial compensation under Articles 3 and 41 of the Convention, it had to reach a minimum level of severity. The assessment of this minimum level was dependent on the circumstances of the individual case such as the duration of the treatment, its physical or psychological effects or the sex, age or state of health of the victim. Furthermore, it had also been established in the Court’s case-law that a judgment finding a violation might in itself constitute sufficient just satisfaction for non-pecuniary damage suffered by a victim.

By written submissions dated 24 December 2004 the applicant lodged a constitutional complaint against the decisions of the Court of Appeal and the Federal Court of Justice arguing, in particular, that without appropriate financial compensation he was being deprived of sufficient redress and satisfaction for the violation of his rights guaranteed by Article 1 § 1 of the Basic Law and Articles 3 and 5 of the Convention. The protection of human dignity was absolute and could not be subject to a weighting of other interests or legal values. The mere finding of a violation did not have a deterrent effect on the Land and was not an incentive to change the detention conditions in its prisons or prevent a recurrence of similar violations. An infringement of the right to human dignity constituted a serious violation irrespective of the gravity of the interference and thus always required financial compensation.

By a decision of 27 December 2005 (file No. 1 BvR 1359/05) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint and dismissed his request for legal aid. The Federal Constitutional Court found that even departing from the Court of Appeal’s finding that the conditions of the applicant’s detention had violated his right to human dignity, the Federal Court of Justice’s finding that there was no automatic link between the finding of a violation of Article 1 § 1 of the Basic Law and the granting of financial compensation under Article 839 of the Civil Code taken in conjunction with Article 34 of the Basic Law did not give rise to any concerns under constitutional law. Article 34 did not require the granting of a particular kind of compensation but only regulated the relevant authorities’’s conclusion – as upheld by the Federal Court of Justice – that the applicant had been granted sufficient redress by the Regional Court’s finding that the conditions of his detention had constituted a violation of Article 1 § 1 of the Basic Law did thus not raise any concern from a constitutional law perspective. While it was true that, under Article 1 § 1 of the Basic Law, a violation of human dignity could not be justified by weighing it against other constitutional concerns, this did not concern the possibility of taking into account the severity of the violation in the determination of the kind and amount of compensation to be awarded to the victim.

Article 1 § 1 of the Basic Law stipulates that human dignity shall be inviolable and that to respect and protect it shall be the duty of all state authorities.

Under Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code, an individual has the right to be compensated by the State for any damage arising from a breach of official duty committed by a public servant. Under Section 847 § 1 of the Civil Code (in its version in force until 31 July 2002 and applicable to damage caused before that date) adequate financial compensation for non-pecuniary damage can only be claimed in the case of injury to the body or health, or in the case of deprivation of liberty.