Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicants were born in 1977, 1978, 1977, 1981, 1981, 1980, 1982 and 1980 respectively. They lived in Hakkari (the first applicant), Bingöl (the second applicant), Istanbul (the third, fourth, fifth and eighth applicants), Diyarbakır (the sixth applicant) and Muş (the seventh applicant) at the time their applications were lodged with the Court.

The applicants, who are of Kurdish ethnic origin, were students at various faculties attached to Istanbul University (“the University”) at the time of the events. In November 2001 they petitioned the University Rector’s office requesting that Kurdish language classes be introduced as an optional module.

Around the same time similar petitions were submitted by students studying at various universities in Turkey.

Upon receipt of these petitions a disciplinary investigation was initiated by the University into the applicants’ actions.

On 14 February 2002, relying either on regulation 9(d) or on regulation 10(e) of the Disciplinary Regulations of Higher Education Institutions, the Administrative Board of Istanbul University, after having heard defence submissions from some of the applicants, either suspended them from the University for a period of two semesters (Mr Çölgeçen and Mr Salim) or expelled them from the University (Mr Bek, Mr Çalışkan, Ms Işık, Mr Ay, Mr Uçak and Mr Turğay).

The applicants claim that following this disciplinary sanction they were denied access to the University facilities, they were branded as terrorists by the University authorities, their names were put on notice boards and they were shunned by their friends and other students. Some of the applicants also alleged that they were subject to criminal investigations.

The applicants, upon notification of the disciplinary sanctions in question, lodged separate actions with the Istanbul Administrative Court, requesting a stay of execution of the disciplinary decisions, with a view to their subsequent annulment.

On 9 May 2002 and on 27 June 2002 (in respect of the fifth applicant) the Istanbul Administrative Court suspended the execution of the applicants’ disciplinary sanctions on the grounds that, inter alia, the sanctions in question were unlawful and that, therefore, their application would cause irreparable damage to the applicants. It appears that the objections of the University to some of these decisions were also dismissed by the court on 4 July 2002.

On 25 June 2002, following the notification of the aforementioned decisions to the University, the applicants, save for Mr Çalışkan, were all re-enrolled in their respective faculties. As a result they were allowed to take part in the repeat exams held on 1-12 July 2002. Mr Çalışkan was reenrolled on 23 July 2002 and he was allowed to sit his exams, upon his request, in the 2002-2003 spring midterm period.

On 12 and 19 December 2002 the Istanbul Administrative Court examined the merits of the cases and annulled the disciplinary sanctions against the applicants on the ground that they were unlawful. In its decisions, the court noted, inter alia, that there was nothing in the content of the petitions or in the manner in which they were submitted to warrant disciplinary sanctions.

The University unsuccessfully challenged these decisions before the Supreme Administrative Court.

In 2004 the applicants each lodged an action for compensation with the Istanbul Administrative Court pursuant to Article 13 of the Administrative Procedure Act (Law no. 2577). In their petitions they maintained that they had sustained psychological damage as a result of the disciplinary punishment imposed on them for having used their democratic right of petition, and requested nonpecuniary damages.

Between September 2004 and January 2005 the Istanbul Administrative Court awarded compensation to the applicants on the grounds that they had been denied their right to education and that their honour and dignity had been adversely affected by the accusations against them.

Between March 2007 and March 2008 the Istanbul District Administrative Court quashed the judgments of the first-instance court and dismissed the actions. In its decisions the court held, inter alia, that following the stay of execution of the disciplinary sanctions the University administration had permitted the students to take repeat exams in July, compensating for the exams which they had been unable to sit in the spring semester and that therefore the conditions for awarding non-pecuniary damage had not been met.

By a letter dated 25 March 2011 the office of the Dean of the Faculty of Literature of Istanbul University submitted the following information to the Government for the purposes of the present proceedings:

– Mr Mehmet Halit Çölgeçen, who was studying to become a librarian, graduated on 14 July 2006;

– Mr Übeyt Salim, who was studying Russian language and literature, graduated on 11 October 2004;

– Mr Mürsel Bek, who was studying to become a teacher of Turkish language, graduated on 13 June 2003;

– Mr Yavuz Uçak, who was studying to become a primary school teacher, graduated on 4 June 2003;

– Mr Mustafa Çalışkan, who was studying to become a primary school mathematics teacher, graduated on 11 July 2006;

– Mr Münür Ay, who was studying geography, failed to finish his studies within the required time-limit and he was removed from the University register on 18 February 2008;

– Ms Ruken Buket Işık, who was studying English language and literature, graduated on 9 February 2007;

– Mr Ali Turğay, who was studying Turkish language and literature, graduated on 27 July 2006.

According to the Dean of the Faculty of Literature of Istanbul University, Mr Bek and Mr Uçak graduated from the University within the minimum time allowed (4 years).


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1976 and lives in Białystok.

The applicant is deaf and mute. He uses sign language to communicate with other people.

The applicant and A.N. married on 20 August 2005. A.N. suffers from a hearing impairment and has had a hearing implant fitted. She communicates both orally and through sign language.

The son (S.N.) of the applicant and A.N. was born on 10 December 2006. He also suffers from a hearing impairment. In February 2007 the applicant and his wife separated. On 11 June 2007 A.N. filed a petition for divorce.

In the course of the divorce proceedings, on 19 July 2007 the Białystok Regional Court issued an interim decision on the applicant’s contact with his son. Under that decision, the applicant could visit his son every Tuesday and Thursday between 4 p.m. and 6 p.m. and every Sunday between 2 p.m. and 5 p.m. at the child’s place of residence and without the presence of any third parties.

The court ordered experts from the Białystok office of the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny “the RODK”) to prepare an opinion on the suitable form and frequency of the applicant’s contact with his son. In the course of his interview with the experts, the applicant underlined his commitment to maintaining contact with the child, without giving any details. The experts established that the applicant had not been visiting his son as frequently as he was allowed under the interim decision of 19 July 2007. The last contact had occurred on 25 August 2007.

In their opinion, dated 15 October 2007, the experts underlined that the emotional ties between the mother and the child were strong and natural. However, the ties between the applicant and his son were weak and superficial. In the view of the experts, taking into account the necessity to ensure the proper development of the child, contact between the applicant and the child should take place four times a month and last two hours on each occasion.

On 15 November 2007 the Białystok Regional Court granted a decree of divorce without ascribing blame for the breakdown of the marriage. In its judgment the court also ruled that parental authority should be exercised by both parents and that the child should reside with the mother. It further ruled that the applicant had a right to see his son on the first three Fridays of each month from 4 p.m. until 6 p.m. and on every fourth Sunday of each month from 11 a.m. until 1 p.m. Contact should take place at the mother’s home in her discreet presence but in the absence of third parties. The applicant was further ordered to pay child maintenance.

It appears that neither of the parties appealed against the judgment, which consequently became final on 6 December 2007.

In August 2011 the applicant filed an application with the Białystok District Court for a change to his contact arrangements. He asked the court to be allowed to have contact with his son on every second and fourth weekend of each month from 3 p.m. on Friday until 6 p.m. on Sunday, away from the mother’s home. He also asked to be allowed to see his son for some time over the Christmas and Easter periods and to spend with him half of the winter holidays and half of the summer school holidays. The applicant argued that the child had already reached the age of five and needed increased contact with his father in order to strengthen their ties.

The applicant admitted that after the divorce he had not seen his son for one year on account of his health problems. He submitted that his son was happy to spend time with him and to play with him. The applicant asserted that he had been able to provide appropriate care to his son and that in the event of need he could count on the support of his family. It was the mother of the child who had obstructed his contact with the child and made the atmosphere unfriendly. For example, she refused to pass on oral messages from their son to the applicant. The mother did not inform him about important decisions concerning the child and tried to marginalise him.

The mother submitted that the applicant had remained passive during his meeting with S.N. and that she had not obstructed those meetings. In her view, S.N. did not have any emotional ties with his father and did not need contact with him. Further, the applicant would be unable to properly care for S.N. The mother lived together with her parents and her son.

On 4 November 2011 a court guardian submitted a report to the court. According to that report, the applicant had not been visiting his son regularly on account of his being treated for depression and other illnesses. He had not seen his son since 12 October 2011. However, the mother of the applicant had been visiting her grandson regularly.

On 15 March 2012 the applicant applied for an interim decision and asked for the right to have contact with his son during the second day of the Easter holidays, from 10 a.m. to 5 p.m., and to take him away from his place of residence. On 23 March 2012 the Białystok District Court issued an interim decision allowing the applicant to visit his son during the second day of the Easter holidays from 11 a.m. to 1 p.m. at the child’s place of residence.

On 30 April 2012 the RODK issued an opinion commissioned by the District Court. It had been prepared by a psychologist, an education specialist and a psychiatrist who had met the parents and the child and had been assisted by an interpreter of sign language. The experts stated that emotional ties between the mother and the child were strong – indeed, the mother had a tendency to be overprotective. The child’s ties with the father were superficial and weak. The child recognised the applicant as his father but did not consider him a part of his family. The father’s ties with the child were positive, but founded on limited experience and high expectations. These ties were also affected by the communication difficulties between them. The experts further noted that the conflict between the parents impeded their cooperation with regard to the child. They suggested that the parents be counselled by a specialist with a view to their being taught how to accept each other as a parent.

The experts opined that an increase in contact, as requested by the applicant, was not advisable, on account of the limited level of communication between him and the child, the child’s age and history, and the strength of the child’s ties with the mother and maternal grandparents. They recommended, however, that contact should also take place outside the mother’s home (at playgrounds, during walks) but in her presence. The mother should cooperate with the father and support him in making his contact with the child more diverse. The experts noted that the ability of the applicant to care independently for his son was considerably limited. In their view, the interests of the child required that the parents cooperate with each other, despite the communication problems. The experts added that the mother should be more proactive in this regard but that the father should not contest the mother’s decisions concerning the child.

The applicant contested the experts’ findings and alleged that the opinion should have been prepared with the assistance of a specialist in deaf education and a psychologist specialising in the needs of deaf people. He claimed that their finding that contact could not take place without the presence of the mother on account of his (that is to say the applicant’s) disability amounted to discrimination. The experts had also disregarded the possibility of the paternal grandmother rendering assistance and of ordering the parents to undergo family therapy.

The District Court heard evidence from the RODK experts. The psychologist, G.H., admitted that the RODK did not have specialised methods of examining deaf people but stated that such methods were not necessary in respect of determining the advisability of maintaining contact. She noted that the child was well-developed and rehabilitated (zrehabilitowanym). The main obstacle in respect of contact was the conflict between the parents and the lack of cooperation between them. Such circumstances created a particular difficulty in the case of a child with a hearing impairment. The psychologist observed that the applicant’s disability also constituted an objective obstacle. In her opinion, contact should take place two to three times a month.

The court dismissed the applicant’s request for a second expert opinion since the earlier opinion was complete and comprehensive.

The court also heard the parties and witnesses (family members). It further took into account information submitted by a court guardian after visiting the applicant’s and the mother’s respective homes, together with relevant documentary evidence.

On 9 August 2012 the Białystok District Court dismissed the applicant’s application for a change to the contact arrangements.

The court established that the parents of S.N. remained in conflict and could not reach an agreement regarding the child’s contact with the father. Since September 2009 the child had attended a nursery school with an integration unit, where he had remained under the supervision of a specialist in deaf education, a speech therapist and a psychologist. He suffered from a hearing impairment and used a hearing aid. The child required specialised medical care and followed a rehabilitation programme. He was certified as having a second-degree disability.

Having regard to all the evidence, and in particular the expert opinion, the court found that the requested change to the contact arrangements would not be in the child’s best interests. It was true that the first decision in respect of contact had been given five years previously, when S.N. had been a baby and when the presence of his mother during contact had been justified by the child’s age. However, the age of the child was not the only element to consider. Other relevant elements were the specifics of the child’s development, his state of health, his disability, the need for his permanent medical rehabilitation and his heavy dependence on his mother and maternal grandparents. The court found that these elements still justified the discreet presence of the mother and at her home during the applicant’s contact visits. It noted that the requested change to the contact arrangements would be too far-reaching, since the applicant wanted to see his son more often, outside S.N.’s place of residence and without the mother being present. The court observed that except for the first two months of the child’s life the applicant had not lived with him or cared for him. The applicant admitted that he had not always kept to scheduled visits. Sometimes the reasons for this had been beyond his control (health problems or evening school commitments) and sometimes contact had been obstructed by the mother. However, in consequence, his limited and irregular involvement in the child’s life had adversely influenced the emotional ties between the father and the son.

The court underlined that the applicant had not been fully availing himself of his rights to contact his son, as granted by the divorce judgment. Nonetheless, once their ties were strengthened and the applicant made full use of the rights already granted to him, it would be possible to extend contact.

The court also found that it could not disregard the communication problems between the applicant and his son. It did not agree with the applicant that this constituted a discriminatory measure against him; rather, it constituted an objective and independent factor that hampered his communication with the child. The applicant, irrespective of his own and his son’s disability, had an incontestable right to contact with his son. However, the communication problem should be taken into account in regulating the contact arrangements so they would remain as favourable as possible to the child. The court noted that the applicant used mostly sign language (and articulated a few single words), while the child communicated only orally, so communication difficulties naturally arose. For this reason, it was still justifiable that the mother, who was able both to use sign language and communicate orally, should be present during the applicant’s visits. The mother’s presence, which provided the child with a sense of security, could also help him to relax during his meetings with the father. The court disagreed with the applicant that the paternal grandmother could ensure proper communication between him and his son. The issue was not only about interpreting between sign language and speech but also about ensuring security and stability, which could only be provided by the mother. The applicant’s son did not know his paternal grandmother well and so her presence would not compensate for the absence of his mother.

The court underlined that the applicant’s contact with his son should first and foremost ensure the security and stability of the child. The stress to which he would be exposed in the event of a change to his current environment and in the absence of persons with whom he usually spent his time would certainly jeopardise the child’s well-being and damage his sense of security. The court dismissed the applicant’s argument that the child spent most of his day in a nursery school (that is to say outside his home and without his mother), so he could easily stay at the applicant’s father’s home. It noted that the mother had been preparing her son for nursery school over a long period of time and had at first attended the school with him for short periods of time so he could become familiar with the place.

The court observed that the child’s paternal grandmother had not visited her grandson for some time and was therefore not a person with whom the child was familiar or who could assist as an interpreter between the applicant and his son.

The fact that the child had been paying short unsupervised visits to a neighbour of the mother’s family did not support the applicant’s argument either. The court noted that the neighbour was a familiar person to the child, since he had been regularly visiting the child’s family. In addition, the unsupervised visits to the neighbour’s flat did not last longer than one hour.

Lastly, the court did not consider it necessary to impose an obligation on the parents to undergo family therapy. It noted that the experts had opined that both parents required contact with a specialist who would assist them in mutually accepting each other as a parent. However, the only suitable place for such therapy for persons with impaired hearing was the premises of a foundation (fundacja) attached to the nursery school attended by the child. The mother stated that she already attended a parent support group there and the applicant declared that he could do the same. In these circumstances, the court found that there was no need for its intervention.

The applicant lodged an appeal with the Białystok Regional Court. He argued that the District Court had failed to respect the principle of non-discrimination against deaf and mute persons by dismissing his application for unsupervised contact with his son. He invoked Article 4 § 1 of the Convention on the Rights of Persons with Disabilities. The applicant further argued that the lower court had erred in holding that the child’s interests did not justify a change to contact arrangements. The expert opinion indicated that the presence of the mother during contact created tensions between the parents and that this was unfavourable to the child. In addition, according to some witnesses, the contact took place in the presence of third parties.

The applicant contested the lower court’s finding that the child’s paternal grandmother was a stranger to him; he argued that the child would not be exposed to stress in the event of contact without the mother’s presence and outside her home in view of the fact that the child attended nursery school and was cared by a neighbour a few times a week. Lastly, the applicant contested the refusal to order a supplementary expert opinion.

On 23 November 2012 the Białystok Regional Court dismissed the applicant’s appeal. It found that the lower’s court assessment of the evidence had been correct and that the refusal to order a supplementary expert opinion had been justified.

The Regional Court noted that the contact arrangements could be amended if the interests of the child so required (Article 1135 of the Family Code). It concurred with the lower court that there was no justification for a change to the existing arrangements since the applicant already had the possibility of regular contact with his son and if used this would enable the parties to strengthen their ties. The findings of the RODK experts clearly supported the conclusion that no change was necessary. The Regional Court also agreed that the existing conflict between the parents would certainly prevent the applicant from benefitting from increased contact. It stressed that the priority of the court in such cases was to take into account the interests of the child, not the interests of either of his or her parents.

It further underlined that the presence of the mother during visits was necessary in order to ensure the child’s sense of security since the mother was the primary carer, with strong ties to the child. The paternal grandmother could not provide the same sense of security. In addition, the mother’s presence would solve the problem of communication between the applicant and the child. The Regional Court did not agree with the applicant that the lower court’s taking into account the issue of communication barrier had amounted to discrimination against him. The communication barrier was a real obstacle to the forging of ties between the applicant and his son and it could not be disregarded, given that the interests of the child were of primary consideration, overriding the individual interests of the parents. The Regional Court stressed that this constituted an objective obstacle, not a form of discrimination against the applicant.

In July 2011 A.N. brought an action in the Białystok District Court for an order limiting the scope of the applicant’s parental authority over S.N. to those issues that concerned their son’s education. She submitted that the applicant had refused to give his consent to an identity document being issued for the child.

In October 2011 the applicant brought a counteraction seeking an order to compel A.N. to undergo family therapy. He argued that A.N. was acting to the child’s detriment by refusing to cooperate with the applicant in matters concerning the child. She also humiliated and insulted the applicant in the child’s presence and undermined his authority.

On 2 August 2012 the Białystok District Court restricted the applicant’s parental authority over S.N. to issues concerning his education. It dismissed the applicant’s counteraction.

The court relied on the opinion prepared by the experts of the RODK for the purposes of the proceedings. The experts concluded that the joint exercise of parental authority was practically impossible. The reason for this was the permanent conflict between the parents, as well as the communication difficulties. The experts recommended that both parents undergo therapy with a view to developing their parenting skills. They further pointed out that that the possibility of communication between the applicant and his son was significantly restricted because of the different method that each used to communicate. In the view of the experts, the mother of the child properly exercised her parental authority, in particular with respect to the child’s needs, the necessity of treatment, and the development of the child’s social skills.

Having regard to the evidence, the court found that it was justifiable to restrict the applicant’s parental authority and limit it only to matters concerning the child’s education. Its decision was motivated by the lack of agreement between the parents in respect of the exercise of parental authority. The applicant was not to be solely blamed for this situation. Furthermore, communication with the applicant was limited on account of his disability; however, the mother had been aware of this fact since the beginning of their relationship. The court further took into account the fact that the child was being raised by the mother, the parents lived apart, and there was a communication barrier between the applicant and the child. This was of importance in respect of matters concerning the child’s health.

The court underlined that the fact that communication between the applicant and his son was limited did not mean that the applicant was a bad father. The court found that it was not necessary to give the applicant the possibility to have a say in matters concerning the child’s medical treatment since these were sometimes urgent – therefore, it was the mother, with whom the child lived, who should decide on them.

With regard to the applicant’s request for the mother to be obliged to undergo family therapy, the court did not find this justified. It took into account the fact that the mother had already been attending a support group and found no reasons to formally oblige her to undergo therapy. It was established that the mother had independently taken important decisions concerning the child of which she had not informed the applicant and that she was overprotective. Nonetheless, the court found that she properly exercised her parental authority and that the child’s welfare was not endangered.

The applicant appealed.

On 23 November 2012 the Białystok Regional Court dismissed the applicant’s appeal. It underlined that the court of first instance had comprehensively assessed the evidence in the case. In the view of the Regional Court, the limitation of the applicant’s parental authority was in the interests of the child. It ruled that the communication barrier constituted an objective obstacle to relations between the applicant and his son and that taking it into account could not be considered to constitute a form of discrimination against the applicant.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Ms Margarita Mihaylova Mihaylova, is a Bulgarian national, who was born in 1945 and lives in Varna. She was represented before the Court by Mr M. Ekimdzhiev and Ms G. Chernicherska, lawyers practising in Plovdiv.

The Bulgarian Government (“the Government”) were represented by their Agents, first Ms N. Nikolova, and then Ms M. Kotseva and Ms A. Panova, of the Ministry of Justice.

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

The applicant’s grandfather owned several plots of agricultural land in the area surrounding Varna measuring 48,500 square metres in total, which were expropriated between 1966 and 1970 for urban development.

Following the enactment of restitution legislation in Bulgaria in the early 1990s, on 20 February 1992 the applicant’s father applied to have the expropriation revoked. The request, initially addressed to the local agricultural land commission, was forwarded to the mayor of Varna on 21 July 1994, as it was decided that the 1992 Restitution Act (see paragraph 21 below) applied to the case. After the time-limit for assessing whether the land should be returned elapsed without any decision being made, on 5 September 1994 the applicant’s father sought judicial review of the mayor’s tacit refusal.

In a judgment of 10 January 1996 the Varna Regional Court overturned the mayor’s refusal in part by revoking the expropriation in so far as it concerned 14,700 square metres of land and returning the land in question to the applicant’s father. The Regional Court’s judgment was subject to supervisory review (преглед по реда на надзора). Following a request by the mayor of Varna, on 21 October 1997 the judgment was quashed by the Supreme Administrative Court and the case remitted to the lower court.

On 21 April 1998, after re-examining the case, the Varna Regional Court once again revoked the expropriation of the land and returned it to the applicant’s father on the grounds that no construction works had yet taken place and that it was sufficient in size to form an independent plot. It did not comment on any rights to that land by third parties such as Cherno More EAD and ET Koti (see paragraphs 10-11 below).

No appeal was lodged against the above-mentioned judgment and on 20 May 1998 it became final. On 13 November 1998 the mayor of Varna applied to the Supreme Administrative Court to have the judicial proceedings reopened, referring to newly discovered evidence, but on 25 May 1999 the application was dismissed.

On an unspecified date prior to 31 May 1996 the applicant’s father paid back 4,504.87 Bulgarian levs (BGL) to the municipality, representing the monetary compensation received at the time of expropriation. At that time, because of inflation and the depreciation of Bulgarian currency, the sum repaid equalled approximately 90 German marks (DEM). At the same time the applicant’s father requested to have the plot of land marked as his in the relevant cadastral plans, which was necessary in order to obtain possession, but this was refused as it was established that third parties asserted competing rights to the same property (see below).

Following expropriation, the plot of land at issue formed part of Varna’s industrial zone and a plant, storehouses and accompanying infrastructure were constructed on it. In 1987 the land was allocated for use by a State enterprise, which in 1991 was transformed into a limited liability company and then in 1992 into a joint-stock company named Cherno More EAD (“Cherno More”), the shares of which were owned entirely by the State.

In November 1994 Cherno More put 9,925 square metres of the land it owned up for sale. On 2 March 1995 the land was sold to ET Koti (“Koti”), a sole trader. It appears that this land was situated entirely within the boundaries of the larger 14,700 square metre plot which had been the subject of the applicant’s father’s restitution claim.

On 21 March 1997 the applicant’s father brought a rei vindicatio action against Cherno More and Koti. He based his claim on the Varna Regional Court’s judgment of 10 January 1996 (see paragraph 6 above), arguing that he owned the 9,925 square metre plot of land which Koti had bought from Cherno More in 1995.

On 19 June 1997, upon a request by Koti, to which the applicant’s father consented, the proceedings were stayed pending the outcome of related litigation between the two defendants regarding ownership of the disputed land. The proceedings were resumed in February 1999, but were again briefly stayed pending the outcome of the application by the mayor of Varna for restitution proceedings to be reopened (see paragraph 8 above).

After the rei vindicatio proceedings were resumed, in their respective judgments of 12 May and 17 November 2000 the Varna Regional Court and the Varna Court of Appeal disallowed the claim. While the proceedings were under way, the applicant’s father died and the applicant and her mother joined the proceedings as his heirs. They subsequently lodged an appeal on points of law.

In a judgment of 23 November 2001 the Supreme Court of Cassation quashed the Court of Appeal’s judgment and remitted the case on the grounds that the lower courts had failed to take into account the Varna Regional Court’s judgment of 21 April 1998.

Following a fresh examination of the case, on 27 September 2002 the Varna Court of Appeal once again dismissed the rei vindicatio claim. It found that Cherno More and Koti were not bound by the judgment of 21 April 1998 as they had not participated in the earlier proceedings and had only in the present proceedings had an opportunity to make their own claims. It further noted that a decision given in restitution proceedings could not prejudice the interests of third parties; third parties who had in the meantime acquired property from the State could always oppose their rights to the former owner claiming restitution.

The Varna Court of Appeal further found that the urban development projects for which the land had been expropriated had been completed, which was sufficient ground to refuse restitution. Furthermore, by the time the restitution legislation had entered into force, the land had already become the property of Cherno More, as a result of its transformation into a limited liability company, whereas the legislation had only applied to property owned by the State or municipalities when it entered into force. In addition, the land had been lawfully acquired by Koti in 1995. Accordingly, the applicant’s father, succeeded by the applicant and her mother, could not have acquired any rights of ownership as a result of the Varna Regional Court’s judgment of 21 April 1998.

Following an appeal by the applicant and her mother, on 25 February 2004 the above-mentioned judgment was upheld by the Supreme Court of Cassation, which reiterated that in 1995 Koti had validly acquired ownership of the disputed plot. It held further that the rei vindicatio action was in fact time-barred because the applicant’s father had not complied with the six-month time-limit provided for in paragraph 6a of the transitional and concluding provisions of the Privatisation Act (see paragraph 25 below).

On 17 February 2003 during the course of these proceedings the applicant’s mother died, leaving the applicant as her sole heir.

The Court has not been informed of what happened to the remainder of the plot of land measuring 14,700 square metres following the Regional Court’s judgment of 21 April 1998 (see paragraph 7 above).

The Restitution of Property Expropriated under Building Planning Legislation Act (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the Restitution Act”) entered into force in February 1992. Its most relevant provisions have been summarised in the Court’s judgment in the case of Decheva and Others v. Bulgaria (no. 43071/06, §§ 28-31, 26 June 2012). It did not contain any provision prohibiting the sale to third parties after its entry into force of properties which were subject to restitution claims.

The provisions of domestic law concerning the res judicata effect of court judgments have been summarised in the Court’s judgment in the case of Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, §§ 34-55, 12 January 2006).

Although not expressly stipulated in the Restitution Act, according to settled judicial practice restitution was only possible where the property taken had remained State or municipally-owned. The same view was expressed by the Constitutional Court in a decision of 11 March 1998 (Решение № 4 от 11.03.1998 г. на КС на РБ по конст. д. № 16/97 г.). According to settled judicial practice under the Restitution Act, third parties claiming property rights could not intervene in the ex parte proceedings under that Act or challenge any decision restoring the former owners’ rights, but could have their claims examined in separate judicial proceedings, in which the courts exercised “indirect judicial review” (косвен контрол) of the restitution decision. The scope of that review was discussed in an Interpretative Decision of 10 May 2006 of the Supreme Court of Cassation, which noted that a third party claiming rights to a restituted property was not bound by a decision given under the Restitution Act and could dispute all preconditions for restitution as provided for under that Act, as this was its sole means by which to defend its rights (Тълкувателно решение № 6 от 10.05.2006 г. на ВКС по т. гр. д. № 6/2005 г.).

The Transformation and Privatisation of State and Municipally-Owned Enterprises Act (“the Privatisation Act”), enacted in 1992 and superseded by other legislation in 2002, provided for the privatisation of State and municipally-owned enterprises and companies and publicly owned property. A summary of the legislation’s provisions relating to the transformation of companies from public enterprises into companies is set out in the Court’s judgment in the case of Sivova and Koleva v. Bulgaria (no. 30383/03, §§ 45-49, 15 November 2011). Transformation is also regulated by other legislation, summarised in the Court’s decision in the case of Credit Bank and Others v. Bulgaria ((dec.), no. 40064/98, 30 April 2002). Most notably, the transformation procedure involved transferring ownership of all the assets to the newly created company.

Pursuant to paragraph 6a of the transitional and concluding provisions of the Privatisation Act (“paragraph 6a”), which was added in May 1996, creditors of State and municipally-owned enterprises and companies were obliged to notify their claims to the body competent to make a decision for privatisation. Notifications had to be made within six months of the publication in the Official Gazette of a notice that the privatisation procedure had started. Creditors failing to give such notice forfeited their right to bring subsequent proceedings regarding the same claim.


Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;André Potocki;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ján Šikuta;Jon Fridrik Kjølbro;Josep Casadevall;Ledi Bianku;Mark Villiger;Nebojša Vučinić;Päivi Hirvelä;Paul Lemmens;Paul Mahoney;Paulo Pinto De Albuquerque;Peer Lorenzen;Robert Spano;Vincent A. De Gaetano;Ksenija Turković

The applicants were born, respectively, in 1971 in Togo and in 1979 in Ghana. They live in Malmö, Sweden.

The first applicant lived in Togo until the age of 6 and again briefly from the age of 21 to 22. From the age of 6 to 21 he lived in Ghana with his uncle. He attended school there for ten years and speaks the local language. On 18 July 1993, when he was 22 years old, he entered Denmark and requested asylum, which was refused by a final decision of 8 March 1995.

In the meantime, on 7 November 1994, he had married a Danish national. Having regard to his marriage, on 1 March 1996, by virtue of the former section 9, subsection 1(ii), of the Aliens Act (Udlændingeloven) he was granted a residence permit, which became permanent on 23 September 1997.

On 25 September 1998 the first applicant and his Danish wife got divorced.

On 22 April 2002 the first applicant acquired Danish citizenship. At the relevant time he met the requirements set out in the relevant circular relating to the length of his period of residence (at least nine years), age, general conduct, arrears owed to public funds and language proficiency.

On 22 February 2003 the first applicant married the second applicant in Ghana. He had met her during one of four visits to Ghana made in the five years prior to their marriage.

On 28 February 2003, at the Danish Embassy in Accra, Ghana, the second applicant requested a residence permit for Denmark with reference to her marriage to the first applicant. At that time she was 24 years old. She stated that she had never visited Denmark. Her parents lived in Ghana. On the application form, the first applicant submitted that he had not received any education in Denmark, but had participated in various language courses and short-term courses concerning service, customer care, industrial cleaning, hygiene and working methods. He had been working in a slaughterhouse since 15 February 1999. He had no close family in Denmark. He spoke and wrote Danish. The spouses had come to know each other in Ghana and they communicated between themselves in the Hausa and Twi languages.

At the relevant time, under section 9, subsection 7, of the Aliens Act family reunion could be granted only if both spouses were over 24 years old and their aggregate ties to Denmark were stronger than the spouses’ attachment to any other country (the so-called attachment requirement).

On 1 July 2003 the Aliens Authority (Udlændingestyrelsen) refused the residence permit request because it found that it could not be established that the spouses’ aggregate ties to Denmark were stronger than their aggregate ties to Ghana.

In July or August 2003 the second applicant entered Denmark on a tourist visa.

On 28 August 2003 she appealed against the Aliens Authority’s decision of 1 July 2003, to the then Ministry for Refugees, Immigration and Integration (Ministeriet for Flygtninge, Indvandrere og Integration). The appeal did not have suspensive effect.

On 15 November 2003 the applicants moved to Malmö, Sweden, which since 1 July 2000 has been connected to Copenhagen in Denmark by a 16 km bridge (Øresundsforbindelsen).

By Act no. 1204 of 27 December 2003, section 9, subsection 7, of the Aliens Act was amended so that the attachment requirement was lifted for persons who had held Danish citizenship for at least 28 years (the socalled 28-year rule – 28-års reglen). Persons born or having arrived in Denmark as small children could also be exempted from the attachment requirement, provided they had resided lawfully there for 28 years.

On 6 May 2004 the applicants had a son. He was born in Sweden but is a Danish national by virtue of his father’s nationality.

On 27 August 2004 the Ministry for Refugees, Immigration and Integration upheld the decision by the Aliens Authority of 1 July 2003 to refuse to grant the second applicant a residence permit. It pointed out that in practice, the residing person was required to have stayed in Denmark for approximately twelve years, provided that an effort had been made to integrate. In the case before it, it found that the applicants’ aggregate ties to Denmark were not stronger than their ties to Ghana and that the family could settle in Ghana, as that would only require that the first applicant obtain employment there. In its assessment, it noted that the first applicant had entered Denmark in July 1993 and had been a Danish national since 22 April 2002. He had ties with Ghana, where he had been raised and had attended school. He had visited the country four times in the past six years. The second applicant had always lived in Ghana and had family there.

On 18 July 2006, before the High Court of Eastern Denmark (Østre Landsret), the applicants instituted proceedings against the Ministry for Refugees, Immigration and Integration and relied on Article 8 of the Convention, alone and in conjunction with Article 14 of the Convention, together with Article 5 (2) of the European Convention on Nationality. They submitted, among other things, that it amounted to indirect discrimination against them when applying for family reunion, that persons who were born Danish citizens were exempt from the attachment requirement altogether, whereas persons who had acquired Danish citizenship at a later point in life had to comply with the 28-year rule before being exempted from the attachment requirement. In the present case that would entail that the first applicant could not be exempted from the attachment requirement until 2030, thus after 28 years of Danish citizenship, and after reaching the age of 59.

In a judgment of 25 September 2007 the High Court of Eastern Denmark unanimously found that the refusal to grant the applicants family reunion with reference to the 28-year rule and the attachment requirement did not contravene the Articles of the Convention or of the European Convention on Nationality relied upon. It stated as follows:

“...the facts given in the decisions of the immigration authorities in the case are found not to be in dispute.

Accordingly, [the second applicant] who is a Ghanaian national, was thus 24 years old when she applied for a residence permit on 28 February 2003, and she had no ties with Denmark other than her recent marriage to [the first applicant]. [The second applicant] had always lived in Ghana and had family there. [The first applicant] had some ties with Ghana, where he had lived with his uncle while attending school in Ghana for ten years. He entered Denmark in 1993 at the age of 22 and became a Danish national on 22 April 2002. [The applicants] married in Ghana on 22 February 2003 and have lived in Sweden since 15 November 2003 with their child, born on 6 May 2004. [The first applicant] has told the High Court that the family can settle lawfully in Ghana if he obtains paid employment in that country.

It appears from a Supreme Court judgment of 13 April 2005, reproduced on page 2086 in the Danish Weekly Law Reports (Ugeskrift for Retsvæsen) for 2005, that Article 8 of the Convention does not impose on the Contracting States any general obligation to respect immigrants’ choices as to the country of their residence in connection with marriage, or otherwise to authorise family reunion.

In view of the information on [the applicants’] situation and their ties with Ghana, the High Court accordingly finds no basis for setting aside the Respondent’s decision establishing that [the applicants’] aggregate ties with Ghana were stronger than their aggregate ties with Denmark and that [the applicants] therefore did not meet the attachment requirement set out in section 9, subsection 7, of the Aliens Act. In this connection, the High Court finds that the refusal did not bar [the applicants] from exercising their right to family life in Ghana or in a country other than Denmark. The fact that [the first applicant] is able to reside in Ghana only if he obtains paid employment there is found not to lead to any other assessment. Accordingly, the High Court holds that the decision of the Ministry did not constitute a breach of Article 8 of the Convention.

Although the High Court has held that Article 8 of the Convention has not been breached in this case, the High Court has to consider [the applicants’] claim that, within the substantive area otherwise protected by Article 8, the decision of the Ministry constituted a breach of Article 14 read in conjunction with Article 8 of the Convention.

The High Court initially observes that [the first applicant] had been residing in Denmark for 11 years when the Ministry issued its decision. Although he acquired Danish nationality in 2002, nine years after entering Denmark, he did not meet the 28year nationality requirement applicable to all Danish nationals pursuant to section 9, subsection 7 of the Aliens Act, irrespective of whether they are of foreign or Danish extraction. Nor did he have the comparable attachment to Denmark throughout 28 years which will generally lead to an exemption from the attachment requirement according to the preparatory work of the 2003 statutory amendment.

The 28-year rule is a generally-worded relaxation of the attachment requirement based on an objective criterion. In practice, however, the rule may imply that a Danish national of foreign extraction will only meet the 28-year rule later in life than would be the case for a Danish national of Danish extraction. When applied, the rule may therefore imply an indirect discrimination.

According to the relevant explanatory report, Article 5 of the European Convention on Nationality must be taken to mean that Article 5 § 1 concerns the conditions for acquiring nationality while Article 5 § 2 concerns the principle of non-discrimination. According to the report, it is not a mandatory rule that the Contracting States are obliged to observe in all situations. Against that background, Article 5 is considered to offer protection against discrimination to an extent that goes no further than the protection against discrimination offered by Article 14 of the Convention.

The assessment of whether the refusal of the Ministry implied discrimination amounting to a breach of Article 14 read in conjunction with Article 8 of the Convention is accordingly considered to depend on whether the difference in treatment which occurred as a consequence of the attachment requirement in spite of nationality can be considered objectively justified and proportionate.

According to the preparatory work of the Act, the overall aim of the attachment requirement, which is a requirement of lasting and strong links to Denmark, is to regulate spousal reunion in Denmark in such a manner as to ensure the best possible integration of immigrants in Denmark, an aim which must in itself be considered objective. In the view of the High Court, any difference in treatment between Danish nationals of Danish extraction and Danish nationals of foreign extraction can therefore be justified by this aim as regards the right to spousal reunion if a Danish national of foreign extraction has no such lasting and strong attachment to Denmark.

The balancing of this overall consideration relating to the specific circumstances in the case requires a detailed assessment. The High Court finds that the assessment and decision of the Ministry were made in accordance with section 9(7) of the Aliens Act and the preparatory work describing the application of the provision. Accordingly, and in view of the specific information on [the first applicant’s] situation, the High Court finds no sufficient basis for holding that the refusal by the Ministry to grant a residence permit to [the second applicant] with reference to the attachment requirement of the Aliens Act implies a disproportionate infringement of [the first applicant’s] rights as a Danish national and his right to family life. The High Court therefore finds that the decision of the Ministry was not invalid, and that it was not contrary to Article 14 read in conjunction with Article 8 of the Convention.”

The applicants appealed against the judgment to the Supreme Court (Højesteret), which delivered its judgment on 13 January 2010 upholding the High Court judgment.

The Supreme Court, composed of seven judges, found, unanimously, that it was not in breach of Article 8 of the Convention to refuse the second applicant a residence permit in Denmark. It stated as follows:

“In its decision of 27 August 2004, the Ministry of Integration refused the application from [the second applicant] for a residence permit on the grounds that the aggregate ties of herself and her spouse [the first applicant] with Denmark were not stronger than their aggregate ties with Ghana (see section 9, subsection 7, of the Aliens Act).

[The applicants] first submitted that the refusal was unlawful because it was contrary to Article 8 of the European Convention on Human Rights. If the refusal was not contrary to Article 8, they submitted as their alternative claim that it was contrary to the prohibition against discrimination enshrined in Article 14 read in conjunction with Article 8, for which reason they were eligible for family reunion in Denmark without satisfying the attachment requirement set out in section 9(7) of the Act.

For the reasons given by the High Court, the Supreme Court upholds the decision made by the Ministry of Integration that it is not contrary to Article 8 to refuse [the second applicant’s] application for a residence permit.”

Moreover, the majority in the Supreme Court (four judges) found that the 28-year rule was in compliance with Article 8 of the Convention read in conjunction with Article 14 of the Convention. They stated as follows:

“Pursuant to section 9, subsection 7, as worded by Act No. 1204 of 27 December 2003, the requirement that the spouses’ or cohabitants’ aggregate ties with Denmark must be stronger than their aggregate ties with another country (the attachment requirement) does not apply when the resident has been a Danish national for 28 years (the 28-year rule).

Until 2002, Danish nationals had had a general exemption from the attachment requirement. Act No. 365 of 6 June 2002 tightened the conditions of family reunion, one of the consequences being that the attachment requirement would subsequently also apply to family reunion where one of the partners was a Danish national. One of the reasons for extending the attachment requirement to include Danish nationals also given in the preparatory work (on page 3982 of Schedule A to the Official Gazette for 2001 to 2002 (2nd session)) is that there are Danish nationals who are not particularly well integrated in Danish society and for this reason the integration of a spouse newly arrived in Denmark may entail major problems.

It quickly turned out that this tightening had some unintended consequences for persons such as Danish nationals who had opted to live abroad for a lengthy period and who had started a family while away from Denmark. For that reason, the rules were relaxed with effect from 1 January 2004 so that family reunion in cases where one of the partners had been a Danish national for at least 28 years was no longer subject to satisfaction of the requirement of stronger aggregate ties with Denmark.

According to the preparatory work in respect of the relaxation, the Government found that the fundamental aim of tightening the attachment requirement in 2002 was not forfeited by refraining from demanding that the attachment requirement be met in cases where the resident had been a Danish national for 28 years (see page 49 of Schedule A to the Official Gazette for 2003 to 2004). It is mentioned in this connection that Danish expatriates planning to return to Denmark one day with their families will often have maintained strong ties with Denmark, which have also been communicated to their spouse or cohabitant and any children. This is so when they speak Danish at home, take holidays in Denmark, read Danish newspapers regularly, and so on. Thus, there will normally be a basis for successful integration of Danish expatriates’ family members into Danish society.

Persons who have not been Danish nationals for 28 years, but were born and raised in Denmark, or came to Denmark as small children and were raised here, are normally also exempt from the attachment requirement when they have stayed lawfully in Denmark for 28 years.

A consequence of this current state of the law is that different groups of Danish nationals are subject to differences in treatment in relation to their possibility of being reunited with family members in Denmark, as persons who have been Danish nationals for 28 years are in a better position than persons who have been Danish nationals for fewer than 28 years.

According to the case-law of the European Court of Human Rights, nationals of a country do not have an unconditional right to family reunion with a foreigner in their home country, as factors of attachment may also be taken into account in the case of nationals of that country. It is not in itself contrary to the Convention if different groups of nationals are subject to statutory differences in treatment as regards the possibility of obtaining family reunion with a foreigner in the country of their nationality.

In this respect, reference is made to paragraph 88 of the judgment delivered by the European Court of Human Rights on 28 May 1985 in the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom. In this case the Court found that it was not contrary to the Convention that a person born in Egypt who had later moved to the United Kingdom and become a national of the United Kingdom and Colonies was treated less favourably as regards the right to family reunion with a foreigner than a national born in the United Kingdom or whose parent(s) were born in the United Kingdom. The Court said in that respect: ‘It is true that a person who, like Mrs Balkandali, has been settled in a country for several years may also have formed close ties with it, even if he or she was not born there. Nevertheless, there are in general persuasive social reasons for giving special treatment to those whose links with a country stem from birth within it. The difference of treatment must therefore be regarded as having had an objective and reasonable justification and, in particular, its results have not been shown to transgress the principle of proportionality.’ The Court then held that Mrs Balkandali was not a victim of discrimination on the ground of birth.

As regards Mrs Balkandali, who was a national of the United Kingdom and Colonies, it was not contrary to the Convention to make it an additional requirement for family reunion that she must have been born in the United Kingdom. A different additional requirement is made under Danish law: a requirement of Danish nationality for 28 years. The question is whether [the first applicant] is subjected to discrimination contrary to the Convention owing to this criterion.

We find that the criterion of 28 years of Danish nationality has the same aim as the requirement of birth in the United Kingdom, which was accepted by the Court in the 1985 judgment as not being contrary to the Convention: to distinguish a group of nationals who, seen from a general perspective, had lasting and strong ties with the country.

In general, a person of 28 years who has held Danish nationality since birth will have stronger real ties with Denmark and greater insight into Danish society than a 28-year-old person who – like [the first applicant] – only established links with Danish society as a young person or an adult. This also applies to Danish nationals who have stayed abroad for a shorter or longer period, for example in connection with education or work. We find that the 28-year-rule is based on an objective criterion, as it must be considered objectively justified to select a group of nationals with such strong ties with Denmark when assessed from a general perspective that it will be unproblematic to grant family reunion with a foreign spouse or cohabitant in Denmark as it will normally be possible for such spouse or cohabitant to be successfully integrated into Danish society.

Even though it is conceivable that a national who has had Danish nationality for 28 years may in fact have weaker ties with Denmark than a national who has had Danish nationality for a shorter period, this does not imply that the 28-year rule should be set aside pursuant to the Convention. Reference is made to the case, relative to the then applicable additional British requirement of place of birth considered by the European Court of Human Rights, of a national who was not born in the United Kingdom, but who had in reality stronger ties with the United Kingdom than other nationals who satisfied the requirement of place of birth, but had moved abroad with their parents at a tender age or maybe had even been born abroad. It is noted in this respect that it was sufficient to satisfy the then British requirement of place of birth for only one of the relevant person’s parents to have been born in the United Kingdom.

We also find that the consequences of the 28-year rule cannot be considered disproportionate relative to [the first applicant]. [He] was born in Togo in 1971 and came to Denmark in 1993. After nine years’ residence, he became a Danish national in 2002. In 2003 he married [the second applicant] and applied for reunion with his spouse in Denmark. The application was finally refused in 2004. The factual circumstances of this case are thus in most material aspects identical to Mrs Balkandali’s situation assessed by the Court in its judgment in 1985, when the Court found that the principle of proportionality had not been violated. She was born in Egypt in 1946 or 1948. She first went to the United Kingdom in 1973 and obtained nationality of the United Kingdom and Colonies in 1979. She married a Turkish national Bekir Balkandali in 1981, and their application for spousal reunion in the United Kingdom for the husband of a British national was refused later in 1981. A comparison of the two cases reveals that both [the first applicant] and Mrs Balkandali only came to Denmark and the United Kingdom, respectively, as adults. In [the first applicant’s] case, the application was refused when he had resided in Denmark for 11 years, two of which as a Danish national. In Mrs Balkandali’s case, the application was refused after she had resided in the United Kingdom for eight years, two of which as a British national.

On these grounds we find no basis in case-law to find that the 28-year rule implied discrimination against [the first applicant] contrary to the Convention.

As regards the significance of the European Convention on Nationality of 6 November 1997, we find for the reasons stated by the High Court that it cannot be a consequence of Article 5 § 2 of this Convention that the scope of the prohibition against discrimination based on Article 14 read in conjunction with Article 8 of the European Convention of Human Rights should be extended further than justified by the 1985 judgment.

We hold on this basis that the refusal of residence for [the second applicant] given by the Ministry of Integration cannot be set aside as being invalid because it is contrary to Article 14 read in conjunction with Article 8 of the European Convention of Human Rights.

For this reason we vote in favour of upholding the High Court judgment.”

A minority of three judges were of the view that the 28-year rule implied indirect discrimination between persons who were born Danish citizens and persons who had acquired Danish citizenship later in life. Since persons who were born Danish citizens would usually be of Danish ethnic origin, whereas persons who acquired Danish citizenship at a later point in their life would generally be of foreign ethnic origin, the 28-year rule also entailed indirect discrimination between ethnic Danish citizens and Danish citizens with a foreign ethnic background. More specifically, they stated as follows:

“As stated by the majority, the requirement of section 9, subsection 7, of the Aliens Act that the spouses’ or cohabitants’ aggregate ties with Denmark must be stronger than their aggregate ties with another country (the attachment requirement) does not apply when the resident person has been a Danish national for 28 years (the 28year rule).

The 28-year rule applies both to persons born Danish nationals and to persons acquiring Danish nationality later in life, but in reality the significance of the rule differs greatly for the two groups of Danish nationals. For persons born Danish nationals, the rule only implies that the attachment requirement applies until they are 28 years old. For persons not raised in Denmark who acquire Danish nationality later in life, the rule implies that the attachment requirement applies until 28 years have passed after the date when any such person became a Danish national. As an example, [the first applicant] who became a Danish national at the age of 31, will be subject to the attachment requirement until he is 59 years old. The 28-year rule therefore implies that the major restriction of the right to spousal reunion resulting from the attachment requirement will affect persons who only acquire Danish nationality later in life far more often and with a far greater impact than persons born with Danish nationality. Hence, the 28-year rule results in obvious indirect difference in treatment between the two groups of Danish nationals.

The vast majority of persons born Danish nationals will be of Danish ethnic origin, while persons acquiring Danish nationality later in life will generally be of other ethnic origin. At the same time, the 28-year rule therefore implies obvious indirect difference in treatment between Danish nationals of Danish ethnic origin and Danish nationals of other ethnic origin regarding the right to spousal reunion.

Pursuant to section 9, subsection 7, of the Aliens Act, the attachment requirement may be disregarded if exceptional reasons make this appropriate. According to the preparatory work of the 2003 Act, this possibility of exemption is to be administered in such a manner that aliens who were born and raised in Denmark or who came to Denmark as small children and were raised here must be treated comparably to Danish nationals, which means that they will be exempt from the attachment requirement when they have lawfully resided in Denmark for 28 years. However, relative to persons who were not raised in Denmark, but acquire Danish nationality later in life, this does not alter the situation described above concerning the indirect difference in treatment implied by the 28-year rule.

When the attachment requirement was introduced by Act No. 424 of 31 May 2000, all Danish nationals were exempt from the requirement. Act No. 365 of 6 June 2002 made the attachment requirement generally applicable also to Danish nationals. Concerning the reason for this, the preparatory work in respect of the Act states, inter alia: ‘With resident aliens and Danish nationals of foreign extraction it is a widespread marriage pattern to marry a person from their country of origin, among other reasons due to parental pressure ... The Government find that the attachment requirement, as it is worded today, does not take sufficient account of the existence of this marriage pattern among both resident foreigners and resident Danish nationals of foreign extraction. There are thus also Danish nationals who are not well integrated into Danish society and where integration of a spouse newly arrived in Denmark may therefore entail major problems.’ By Act No. 1204 of 27 December 2003, the application of the attachment requirement to Danish nationals was restricted through the 28-year rule, and the preparatory work in respect of the Act stated that the purpose was, inter alia, ‘to ensure that Danish expatriates with strong and lasting ties to Denmark in the form of at least 28 years of Danish nationality will be able to obtain spousal reunion in Denmark’. In the light of these notes, it is considered a fact that the indirect difference in treatment between Danish nationals of Danish ethnic extraction and Danish nationals of other ethnic extraction following from the 28-year rule is an intended consequence.

Under Article 14 of the Convention, the enjoyment of the rights and freedoms recognised by the Convention, including the individual’s right under Article 8 to respect for his or her family life, must be ‘secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. As mentioned above, the 28-year rule implies both indirect difference in treatment between persons born Danish nationals and persons only acquiring Danish nationality later in life and, in the same connection, indirect difference in treatment between Danish nationals of Danish ethnic extraction and Danish nationals of other ethnic extraction. Both these types of indirect difference in treatment must be considered to fall within Article 14 read in conjunction with Article 8 of the Convention. The two types of indirect difference in treatment implied by the 28year rule are therefore contrary to Article 14 unless the difference in treatment can be considered objectively justified and proportionate.

The European Convention on Nationality of 6 November 1997, which has been ratified by Denmark, provides in Article 5 § 2: ‘Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently’. The memorandum of 14 January 2005 made by the Ministry of Integration and the memorandum of November 2006 made by the working group composed of representatives of the Ministry of Justice, the Ministry of Foreign Affairs and the Ministry of Integration state that the provision solely concerns issues on the revocation and loss of nationality. In our opinion it is dubious whether there is any basis for such a restrictive interpretation as the provision, according to its wording, comprises any difference in treatment exercised as a consequence of how and when nationality was acquired. As is apparent from the explanatory report, the provision is not a prohibition from which no derogation may be made, and the provision must be taken to mean that it may be derogated from if the difference in treatment is objectively justified and proportionate. However, when assessing the 28-year rule relative to Article 14 read in conjunction with Article 8 of the Convention, we consider it necessary to include the fact that, at least according to its wording, Article 5 § 2 of the European Convention on Nationality comprises a general provision stating that any difference in treatment between different groups of a State Party’s own nationals is basically prohibited.

In an assessment made under Article 14 read in conjunction with Article 8 of the Convention, another factor to be taken into consideration is the crucial importance of being entitled to settle with one’s spouse in the country of one’s nationality.

As mentioned, Danish nationals were originally generally exempt from the attachment requirement. The Supreme Court established in a judgment reproduced on p. 2086 in the Danish Weekly Law Reports for 2005 that discrimination relative to the right to spousal reunion based on whether the resident spouse is a Danish or foreign national is not contrary to the prohibition of discrimination laid down in Article 14 read in conjunction with Article 8 of the Convention. In this respect, the Supreme Court referred to paragraphs 84 to 86 of the judgment delivered by the European Court of Human Rights on 28 May 1985 in Abdulaziz, Cabales and Balkandali v. the United Kingdom. Difference in treatment based on nationality must be seen, inter alia, in the light of the right of Danish nationals to settle in Denmark, and no significance can be attributed to the fact that such discrimination is not considered contrary to Article 14 read in conjunction with Article 8 when assessing whether it is permissible to implement a scheme implying a difference in treatment between different groups of Danish nationals. In our opinion, no crucial significance can be attributed to paragraphs 87 to 89 of the Abdulaziz, Cabales and Balkandali judgment either in this assessment, among other reasons because difference in treatment based on the length of a person’s period of nationality is not comparable to a difference in treatment based on place of birth.

In the cases in which the attachment requirement applies, some of the factors emphasised are whether the resident spouse has strong links to Denmark by virtue of his or her childhood and schooling in Denmark. Such strong attachment to Denmark will exist in most cases where a person has held Danish nationality for 28 years. However, when assessing whether the difference in treatment implied by the 28year rule can be considered objectively justified, it is not sufficient to compare persons not raised in Denmark who acquire Danish nationality later in life with the large group of persons who were born Danish nationals and were also raised in Denmark. If exemption from the attachment requirement was justified only by regard for the latter group of Danish nationals, the exemption should have been delimited differently. The crucial element must therefore be a comparison with persons who were born Danish nationals and have been Danish nationals for 28 years, but who were not raised in Denmark and may perhaps not at any time have had their residence in Denmark. In our opinion, it cannot be considered a fact that, from a general perspective, this group of Danish nationals has stronger ties with Denmark than persons who have acquired Danish nationality after entering and residing in Denmark for a number of years. It should be taken into consideration in that connection that one of the general conditions for acquiring Danish nationality by naturalisation is that the relevant person has resided in Denmark for at least nine years, has proved his or her proficiency in the Danish language and knowledge of Danish society and meets the requirement of self-support.

Against that background, it is our opinion that the indirect difference in treatment implied by the 28-year rule cannot be considered objectively justified, and that it is therefore contrary to Article 14 read in conjunction with Article 8 of the Convention.

The consequence of this must be that, when applying section 9, subsection 7, of the Aliens Act to Danish nationals, the authorities must limit the 28-year rule to being solely an age requirement, meaning that the attachment requirement does not apply in cases where the resident spouse is a Danish national and is at least 28 years old.

Accordingly, we vote for ruling in favour of the [applicants’] claim to the effect that the Ministry of Integration must declare invalid the decision of 27 August 2004, thereby remitting the case for renewed consideration.

In view of the outcome of the voting on this claim we see no reason to consider the claim for compensation.”

The applicants remained in Sweden and did not subsequently apply for family reunion in Denmark, which they could have done under section 9, subsection 7 of the Aliens Act, had the first applicant decided to reside in Denmark anew. He maintained a job in Copenhagen and therefore commuted every day from Malmö in Sweden to Copenhagen in Denmark.


András Sajó;Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants, Mr Ferenc Rózsa and Mr István Rózsa, are Hungarian nationals, who were born in 1951 and 1949 respectively and live in Budapest.

In its judgment of 28 April 2009 in the case of Ferenc Rózsa and István Rózsa v. Hungary (no. 30789/05), the Court found that the respondent Government had breached the applicants’ right of access to a court, as guaranteed by Article 6 § 1 of the Convention, since the authorities had excluded their ability to bring an action in damages against the domestic courts which had ordered the allegedly unlawful liquidation of their company. Their locus standi had been denied in the domestic proceedings on the ground that their company was in liquidation and only the liquidator had the capacity to conduct legal proceedings in its name.

The Court noted in the judgment that the purpose of the restriction on the shareholders’ capacity to take legal proceedings was intended to protect the rights and interests of the company’s creditors. However, it found that no fair balance had been struck between the general interest of securing the payment of creditors and the applicants’ personal interest in having access to a court.

The Court noted in paragraph 29 of the judgment, concerning the application of Article 41 of the Convention, that “where an individual, as in the instant case, has been denied access to a court in a manner irreconcilable with the Convention requirement of fairness, a reopening or a review of the case, if requested, represents in principle an appropriate way of redressing the violation.”

Following the Court’s judgment, on 29 August 2009 the applicants requested the domestic courts to reopen their case.

The Pest County Regional Court considered that the applicants’ request was time-barred and dismissed their motion without an examination on the merits. It observed that the applicants had not requested the reopening of their case within the objective, statutory time-limit prescribed by section 261(3) of the Code of Civil Procedure, that is, within five years counted from the date when the final domestic decision given in the principal case had become binding. The court reasoned that the five-year time-limit had started to run on the day of service of the final domestic decision, that is, on 13 April 2004, whereas the motion for reopening had been introduced only on 29 August 2009, thus outside the prescribed period.

In reply to the applicants’ argument that the proper execution of the Court’s judgment of 28 April 2009 necessitated the reopening of their case at any rate, the court observed that there was nothing in the operative part of the judgment indicating an obligation in that sense, since it only referred to Article 41 of the Convention concerning just satisfaction.

On 19 January 2011 the Budapest Court of Appeal dismissed the applicants’ appeal, endorsing in essence the first-instance court’s reasoning. It noted that although, under Article 46 of the Convention, Hungary had undertaken to abide by the final judgments of the Court, the judgment in question merely entailed the obligation to pay just satisfaction to the applicants, and paragraph 29 of the judgment contained no more than guidance as to the means by which the domestic authorities could give effect to the Court’s ruling. Furthermore, it held that the domestic courts remained bound by the domestic procedural rules applicable to the reopening of civil cases. The court observed that should the applicants consider the provisions of the Code of Civil Procedure to be contrary to the Convention, and thus unconstitutional as well, they were entitled to request the ex post constitutional review of those provisions before the Constitutional Court.


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant was born in 1974 and lives in Kosovo.

The applicant entered Austria for the first time on 14 January 1994 when he was 19 years old.

In November 1994 the applicant was arrested for working illegally, and on 16 November 1994 the Dornbirn District Administrative Authority (Bezirkshauptmannschaft) issued a decision imposing a five-year residence ban (Aufenthaltsverbot) on him.

On 5 January 1995 the applicant lodged an asylum claim, which on 27 January 1995 was dismissed by the Federal Asylum Office (Bundesasylamt) as unfounded. His appeal against that decision was dismissed, and he voluntarily returned to Kosovo in September 1997.

On 1 July 1998 the applicant returned to Austria and lodged a fresh asylum claim on 8 July 1998, this time together with his wife and their daughter. The asylum claim was dismissed by the Federal Asylum Office on 12 August 1998, but the applicant and his family were granted subsidiary protection. They received a temporary residence permit, which was extended several times.

The applicant’s temporary residence permit, which was based on his right to subsidiary protection, expired in December 2009, as he had not applied for its renewal.

On 2 March 2003 the Dornbirn District Court (Bezirksgericht – hereinafter “the District Court”) convicted the applicant of bodily harm and sentenced him to a fine of 350 euros (EUR), suspended in part on the basis of a probationary period.

On 29 August 2003 the Feldkirch Regional Court (Landesgericht – hereinafter “the Regional Court”) convicted the applicant of bodily harm. He was sentenced to a fine of EUR 400, which was suspended on the basis of a probationary period.

On 30 October 2003 the Regional Court convicted the applicant of aggravated burglary and sentenced him to twelve months’ imprisonment, eight and a half months of which were suspended on the basis of a probationary period. He was in pre-trial detention and then prison from 28 July to 11 November 2003.

On 26 July 2004 the Regional Court convicted the applicant of participating in a brawl, for which he was sentenced to a fine of EUR 720.

On 17 January 2006 the District Court convicted the applicant of bodily harm and sentenced him to a fine of EUR 600.

On 13 March 2007 the Regional Court convicted the applicant of several offences under the Drugs Act (Suchtmittelgesetz) and aggravated threat, and he was sentenced to ten months’ imprisonment. The suspension of the eight and a half months’ imprisonment in the sentence of 30 October 2003 (see paragraph 13 above) was revoked. The applicant was in prison from 23 May until 12 November 2007. A part of the prison sentence was postponed until 18 November 2009, when the applicant started serving the remainder of the sentence.

On 21 January 2010, hence while he was in prison, the Regional Court convicted the applicant of an offence under the Drugs Act and sentenced him to a fine of 400 EUR.

On 12 May 2010 the Bregenz District Court convicted the applicant, who was still in prison at that time, of attempted bodily harm, bodily injury caused by negligence, and endangering the physical integrity of others, and sentenced him to a fine.

On 2 August 2012 the Regional Court convicted the applicant of aggravated threat and sentenced him to seven months’ imprisonment. It was his ninth criminal conviction in Austria.

On 13 September 2007, as a consequence of his criminal convictions, the Dornbirn District Administrative Authority issued the applicant with a ban prohibiting his return to Austria (Rückkehrverbot, see paragraph 33 below), which was valid for ten years. It however remained without effect as long as his subsidiary protection status was still valid (see paragraph 34 below). The Vorarlberg Security Police Authority (Sicherheitspolizeidirektion) confirmed the ban in a decision of 5 November 2007. The applicant did not appeal against that decision.

On 29 March 2010 the Innsbruck Federal Asylum Office instituted proceedings to withdraw the applicant’s subsidiary protection. On 7 April 2010 it conducted an interview with him, during which he stated the following concerning his living situation in Austria. He had four children, born in 1997, 1999, 2000 and 2006 respectively. His parents, his three siblings and their spouses and children all lived in the same city as him. His parents and his older brother were recognised refugees. He and his parents lived in the same house. He was working as a maintenance man and translator for Albanian and German, and his wife was also working. Both had a regular income. His father still owned some land and three shops in Kosovo, which were run by relatives at that time. The applicant stated that if he had to return to Kosovo he would not know what to do there or where to go. He had a “bad feeling” about returning, but did not fear any repression. The security situation was bad, and the views of society were primitive. His wife and children would not have to fear any problems upon returning to Kosovo, and would probably join him if he were expelled. He would, however, prefer to stay in Austria, where his children went to school.

On 17 May 2010 the Federal Asylum Office withdrew the applicant’s subsidiary protection status under section 9 (1) of the Asylum Act (Asylgesetz). It found that there was no longer a risk of a violation of the applicant’s rights under Article 2 or 3 of the Convention if he was returned to Kosovo, and declared his expulsion admissible. Quoting international sources, it explained that the security situation in Kosovo had significantly improved in recent years and was now considered to be stable. There was no threat from the Kosovo Liberation Army (Ushtria Çlirimtare e Kosovës) anymore, which the applicant had initially alleged when applying for asylum.

Turning to the applicant’s rights under Article 8 of the Convention, the Federal Asylum Office acknowledged how established his private and family life was in Austria, where his family members were living. However, it referred to his numerous convictions for crimes against life and limb as well as property, and concluded that the public interest in his expulsion outweighed his personal interest in remaining in the country. The Federal Asylum Office specifically mentioned the two convictions for drug offences in 2007 and 2010, which it considered particularly serious. Further, it held that the applicant still had ties with Kosovo, because he had grown up there, spoke Albanian, and was physically capable of working in order to earn a living. According to the applicant’s own statements, his father still owned some land and three shops in Kosovo, so it could be assumed that he could find work. Given that the applicant’s wife had her own income, the Federal Asylum Office further assumed that she would be able to take care of the needs of the family, and that the applicant could send her financial maintenance from Kosovo.

On 27 June 2011 the Asylum Court (Asylgerichtshof) confirmed the relevant parts of the Federal Asylum Office’s decision. It held that, according to Article 19 § 3 in conjunction with Article 37 § 1 of the Criminal Code (Strafgesetzbuch), the fines the applicant had received for his criminal convictions (1460 daily rates in total), amounted to almost twentyfour months’ imprisonment (see paragraphs 35-36 below). The actual prison sentences he had received amounted to twenty-two months in total, which was considerable. The Asylum Court concluded that, even though the applicant had strong private and family ties in Austria, the public interest in his expulsion in order to prevent crime outweighed his personal interest in continuing his family life in Austria. He had reoffended even after he had been issued with the ban prohibiting his return to Austria, a fact which did not speak in his favour. Also, he could reapply for a residence permit in 2017 when the ban expired.

The applicant lodged a complaint against that decision with the Constitutional Court. Among other things, he stated that one of his daughters had in fact been born as a result of an extra-marital relationship with an Austrian citizen, and was living with her Austrian mother and not with him. The applicant claimed that it would be difficult to maintain contact with her if he were expelled to Kosovo.

The Constitutional Court then asked the Asylum Court to submit a statement regarding this new fact. The Asylum Court replied on 13 September 2011 that the applicant had spoken of four children throughout the proceedings, but had never mentioned that one of them had in fact been born as a result of an extra-marital relationship and had never lived with him in the same household. He could continue to pay financial maintenance from Kosovo for his daughter. The Asylum Court expressed the view that the decision to declare the applicant’s expulsion admissible was nonetheless proportionate to the aims pursued, as his family life with his illegitimate daughter was in any event much less established than that with his other family members.

On 14 December 2011 the Constitutional Court refused to deal with the applicant’s complaint. That decision was served on the applicant’s counsel on 9 January 2012.

The applicant was in pre-trial detention and prison from 1 June 2012 (in relation to the criminal conviction of 2 August 2012, see paragraph 19 above) until he was placed in detention pending his expulsion on 4 January 2013.

On 5 January 2013 the applicant was expelled to Kosovo. His family decided to remain in Austria.

The ban on the applicant’s returning to Austria is in force until 16 November 2017.