Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant, Ms Mihaela Novak, is a Croatian national, who was born in 1974 and lives in Selnica. She was represented before the Court by Ms M. Drča, an advocate practising in Zagreb.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

On 27 February 2008 the applicant sustained an injury at work.

On 13 September 2010 the applicant brought a civil action in the Čakovec Municipal Court (Općinski sud u Čakovcu) against her employer, company I., seeking compensation for pecuniary and non-pecuniary damage sustained.

On 6 October 2010 the applicant’s statement of claim was forwarded to the defendant, which responded to it on 18 October 2010 by arguing that the injury had been exclusively her fault and by objecting to the level of compensation sought. The applicant made further submissions on 25 October 2010.

On 5 January, 25 May, 17 October and 20 December 2011 the applicant urged the court to schedule a hearing

The first hearing in the case was held on 12 March 2013 at which the applicant asked the court to obtain an opinion of a medical expert and opposed the defendant’s proposal to examine certain witnesses.

On 22 May 2013 the court decided to obtain an opinion of a forensic expert in medicine and invited the applicant to advance the costs thereof. The applicant did so on 8 July 2013.

On 12 September 2013 the expert submitted his opinion suggesting that a further expert opinion of an expert in psychiatry be obtained.

On 3 October 2013 the defendant submitted its comments on the expert opinion whereas the applicant did so on 29 October 2013. In her submissions she endorsed the proposal to obtain a further expert opinion of an expert in psychiatry and amended her action in accordance with the opinion of a medical expert already obtained.

On 5 November 2013 the court decided to obtain an opinion of a forensic expert in psychiatry.

On 17 December 2013 the expert in psychiatry submitted her opinion.

On 10 January 2014 the applicant commented on the expert opinion and amended her action accordingly whereas, on 23 January 2014, the defendant contested that opinion.

On 13 March 2014 the court held a hearing at which it heard the parties and the two experts and examined four witnesses.

Further hearings were held on 29 April and 15 May 2014. At the latter hearing the court closed the main hearing and scheduled a hearing for pronouncement of the judgment for 2 June 2014.

By a judgment pronounced on 2 June 2014 the Municipal Court ruled for the applicant and awarded her 44,840 Croatian kunas (HRK) in compensation together with the accrued statutory default interest and HRK 18,300 in costs.

On 10 June 2014 the defendant appealed against that judgment.

By a decision of 30 October 2014 the Varaždin County Court dismissed the appeal by the defendant and upheld the first-instance judgment which thereby became final.

Meanwhile, on 1 October 2013 the applicant lodged a request for protection of the right to a hearing within a reasonable time with the President of the Čakovec Municipal Court. She relied on section 65 of the 2013 Courts Act (see paragraph 23 below).

On 11 November 2013 the President issued a decision holding that the applicant’s request was well-founded and ordering the judge hearing the case to give a decision in the above civil proceedings within six months.

Section 63 of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette of the Republic of Croatia no. 99/1999 with subsequent amendments– “the Constitutional Court Act”), reads as follows:

“(1) Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person vested with public authority, on his or her rights or obligations, or as regards suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (‘constitutional rights’)...

(2) If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.

(3) In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.”

“(1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted if the relevant court has failed to decide within a reasonable time on the rights or obligations of a party [to the proceedings] or as regards a suspicion or accusation of a criminal offence...

(2) If it finds the constitutional complaint for failure to decide within a reasonable time referred to in paragraph 1 of this section well-founded, the Constitutional Court shall set a time-limit within which the relevant court must decide the case on the merits...

(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall award appropriate compensation to the complainant for the violation of his or her constitutional right ... to a hearing within a reasonable time. The compensation shall be paid from the State budget within three months of the date on which a request for payment is lodged.”

The relevant provisions of the Courts Act of 2013 (Zakon o sudovima, Official Gazette no. 28/13), which entered into force on 14 March 2013, read as follows:

“A party to judicial proceedings which considers that the competent court did not decide within a reasonable time on its rights or obligations, or on a suspicion or accusation of a criminal offence, shall have the right to judicial protection in accordance with this Act.”

“(1) The legal remedies for the protection of the right to a hearing within a reasonable time are:

The request for protection of the right to a hearing within a reasonable time,

The request for payment of appropriate compensation for the violation of the right to a hearing within a reasonable time.

(2) In the proceedings for deciding the requests referred to in paragraph 1 of this section the rules of non-contentious procedure shall apply mutatis mutandis, and, in principle, no hearing shall be held.”

“(1) The request for protection of the right to a hearing within a reasonable time shall be lodged with the court before which the proceedings are pending.

(2) The request shall be decided by the President of the court unless he or she is the judge hearing the case, in which situation the request shall be decided by the Vice-President of the court.

(3) The President of the court shall, within 15 days of the receipt of the request, demand the judge hearing the case [to submit] a report on the length of the proceedings and the reasons why [they] have not been completed, as well as an opinion on the period within which the case could be decided. The President of the court may himself or herself inspect the case-file.

(4) The judge hearing the case shall submit the report immediately, but no later than 15 days from the time the President of the court demanded him or her to do so.

(5) In deciding on the request the President of the court shall in particular take into account the type of the case, [its] factual and legal complexity, the conduct of the parties and of the court.

(6) The President of the court shall decide on the request within 60 days of its receipt.”

(2) If the judge does not decide the case within the specified time-limit, he or she must within 15 days of its expiry, submit a written report to the President of the court giving reasons for having failed to do so. The President of the Court shall without delay forward the judge’s report and his or her [own] observations to President of the immediately higher court and to the Ministry of Justice.”

“(1) If the President of the court finds the request unfounded, he or she shall dismiss it by a decision against which the [requesting] party shall have the right to appeal within eight days of the receipt of the decision.

(2) The [requesting] party shall have the right to appeal also when the President of the court, within 60 days from receiving it, does not decide on the request.

(3) The appeal shall be decided by the President of the immediately higher court. If the request concerns the proceedings pending before the Supreme Court, the appeal shall be decided by a panel of three judges of that court. The President of the immediately higher court or the panel may dismiss the appeal as unfounded and uphold the first-instance decision or reverse [that] decision.”

“(1) If the court does not decide on the case referred to in section 65 of this Act within the specified time-limit, the [requesting] party may within a further period of six months lodge a request for payment of appropriate compensation for the violation of the right to a hearing within a reasonable time with the immediately higher court.

(2) If the request concerns the proceedings pending before the High Commercial Court, the High Administrative Court or the High Court for Administrative Offences, the request shall be decided by the Supreme Court.

(3) The request referred to in paragraph 1 of this section shall be decided by a decision of a single judge.

(4) If the request concerns the proceedings pending before the Supreme Court, the request shall be decided by a panel of three judges of that court.

(5) The immediately higher court shall decide on the request within six months.”

“(1) The immediately higher court or the panel of the Supreme Court shall specify the time-limit within which the court before which the proceedings are pending must decide the case, and shall award [the requesting party] appropriate compensation for the violation of his or her right to a hearing within a reasonable time.

(2) The total amount of appropriate compensation awarded in one case may not exceed 35,000 Croatian kunas.

(3) An appeal, to be lodged within eight days with the Supreme Court, lies against the decision on the request for payment of adequate compensation for the violation of the right to a hearing within a reasonable. The appeal shall be decided by a panel of three judges of that court, and, if the decision was rendered by the panel of the Supreme Court referred to in section 68 paragraph 4 of this Act, the appeal shall be decided by a panel of five judges of that court.

(4) The decision awarding appropriate compensation for the violation of the right to a hearing within a reasonable time shall immediately after becoming final be forwarded to the President of the court before which the violation of the right to a hearing within a reasonable time occurred, to the President of the Supreme Court and to the Ministry of Justice.

(5) The compensation referred to in paragraph 1 of this section shall be paid out of the State budget.

(6) If the case referred to in paragraph 1 of this section is not decided within the specified time-limit, the court president must within 15 days of its expiry, submit a written report to the President of the immediately higher court and the Ministry of Justice giving reasons for having failed to do so.”

“If before the European Court of Human Rights proceedings have been instituted for the protection of the right to a hearing within a reasonable time and the Government’s representative before the European Court of Human Rights has requested information on the case from the [domestic] court before which the proceedings [complained of] are pending, that court shall inform the President of the immediately higher court, the President of the Supreme Court and the Ministry of Justice of the Government representative’s request and of the reasons for the delay.”

“Requests for protection of the right to a hearing within a reasonable time received before the entry into force of this Act shall be dealt with in accordance with the provisions of the 2005 Courts Act.”

On 23 December 2014 the Constitutional Court issued a decision no. U-IIIA-322/2014, where it held that complainants wishing to lodge constitutional complaints under section 63 of the Constitutional Court Act (see paragraph 22 above) to complain about the excessive length of ongoing judicial proceedings were first required to make full use of remedies available under the 2013 Courts Act (see paragraph 23 above). It therefore declared inadmissible a constitutional complaint lodged under section 63 of the Constitutional Court Act (see paragraph 22 above) by the complainant who did not attempt to avail herself of those remedies before lodging her constitutional complaint. The Constitutional Court’s decision was published in the Official Gazette no. 8/15 of 23 January 2015. The relevant part of that decision reads as follows:

“3.1. It follows from the foregoing that since the introduction in 2005 in the domestic legal system of a new remedy (a request for protection of the right to hearing within a reasonable under sections 27 and 28 of the 2005 Courts Act), a constitutional complaint under section 63 of the Constitutional Court Act was no longer the only remedy in the Republic of Croatia for protection of the constitutional right to a hearing within a reasonable time. In other words, the Constitutional Court was no longer competent for the protection of the right to a hearing within a reasonable time in the first instance ...

- Apart from the general procedural requirements that every constitutional complaint must meet, a prerequisite for deciding on the constitutional complaint in which a violation of the constitutional right to a hearing within a reasonable time was alleged ([regardless of the fact] whether it was lodged under section 62 or section 63 of the Constitutional Court Act) is, as a rule, that the complainant had used beforehand all available remedies [to complain] against the unreasonable length of the proceedings.


CASE OF OSMANOĞLU AND KOCABAŞ v. SWITZERLAND

No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion;Manifest religion or belief)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in 1976 and 1978 respectively and live in Basle.

The first applicant, who was born in Turkey, moved to Switzerland at the age of 10. On completing a business-studies course in Basle, he returned temporarily to Turkey to attend classes in Islamic studies; while there, he met the second applicant, who became his wife. She moved to Switzerland in 1999 under the provisions for family reunion. When the present application was lodged she was on a training course to become a playgroup leader (Spielgruppenleiterin). The first applicant speaks fluent Swiss German.

Three daughters were born to the applicants, on 8 July 1999, 22 June 2001 and 7 July 2006 respectively. The present application concerns only the first two daughters. They were initially enrolled in the Vogelsang primary school in Basle. The eldest daughter subsequently attended an “orientation school” (Orientierungsschule, between the primary and secondary levels).

Swimming lessons are part of the compulsory school curriculum; under the applicable legislation in the canton of Basle Urban, pupils cannot be exempted until they reach puberty (see paragraph 27 below). This fact was brought to the applicants’ attention on 11 August 2008 through a recommendation entitled “Guidelines on dealing with religious matters in schools” (see paragraph 27 below). The applicants, who are devout Muslims, refused to send their daughters to the swimming lessons on the grounds that their beliefs prohibited them from allowing their children to take part in mixed swimming lessons. They stated that although the Koran did not instruct women to cover their bodies until puberty, their beliefs required them to prepare their daughters for the precepts that would be applied to them from that point onwards. As the holders of parental responsibility for their daughters, the applicants alleged that there been a violation of their own rights.

By a letter of 13 August 2008, the Public Education Department of the Canton of Basle Urban (Erziehungsdepartement des Kantons Basel-Stadt) advised the applicants that under section 91 (9) of the Education Act of the Canton of Basle Urban (see paragraph 24 below), they were liable to a maximum fine of 1,000 Swiss francs (CHF) (around 923 euros (EUR)) each if their daughters did not comply with the obligation to attend school.

On 30 March 2010 the head teacher of the school held a meeting with the applicants in order to resolve the situation. The applicants continued to refuse to send their daughters to the swimming lessons. By letters of 30 March and 4 May 2010, the applicants were again invited to send their daughters to the swimming lessons. In spite of these attempts by the school, the applicants’ daughters continued to be absent from the swimming lessons.

On 4 May and 14 June 2010 the school authorities asked the Head of the Public Education Department to open fixed-penalty proceedings against the applicants. On 17 June 2010 the applicants were invited to comment again as part of those proceedings.

By a letter of 28 July 2010, the education authorities ordered the applicants to pay a fine of CHF 350 (about EUR 323) per parent and per child (a total of CHF 1,400 CHF – about EUR 1,292) for acting in breach of their parental duties (see section 91 (8) and (9) of the Education Act of the Canton of Basle Urban, paragraph 24 below).

An appeal by the applicants against that decision was dismissed by the Court of Appeal of the Canton of Basle Urban (Appellationsgericht des Kantons Basel-Stadt) on 30 May 2011.

Drawing on its leading decision of 24 October 2008 (see Federal Supreme Court judgment 135 I 79; paragraph 29 below), the Federal Supreme Court, by a judgment of 7 March 2012, dismissed an appeal by the applicants, holding that the authorities’ refusal to exempt their daughters from mixed swimming lessons in primary school had not breached the applicants’ right to freedom of conscience and belief.

It accepted that this refusal represented a breach of freedom of religion. Nonetheless, it considered that the swimming lessons formed part of the compulsory school curriculum in the Canton of Basle Urban and that this obligation had a sufficiently solid legal basis. It cited, firstly, section 22 of the Education Act of the Canton of Basle Urban, which stated that gymnastics was one of the compulsory lessons in primary school, and section 139 of the same Act, stating that at least three hours of the pupils’ weekly timetable was to be spent in physical education. It also held that, under section 17 of the Act, boys and girls at primary-school level were, in principle, to attend classes together. It further stated that, in accordance with section 68 of the Act, the precise organisation of this subject, especially the various lessons and the number of hours allocated to them, was set out in the curriculum, point 9.2.4 of which provided that swimming formed part of compulsory gymnastics and sports lessons.

The Federal Supreme Court then pointed out that pupils could be exempted from lessons or from certain subjects, and any such decision was to be taken by the school authorities at the request of teachers or of persons responsible for the children’s education (section 66 (5) and (6) of the Education Act; see paragraph 24 below). It noted that detailed information on exemptions was set out in point 34 of the School Regulations (Schulordnung) of the Canton of Basle Urban, and that the arrangements for dealing with religious issues in schools were included in a Recommendation (Handreichung) that had been issued by the Education Department of the Canton of Basle Urban in September 2007. It added that, under point 5.1 of that recommendation, exemption from swimming classes could only be granted to pupils who had reached the age of puberty. It also indicated that from the sixth year of school (that is, generally when pupils had reached the age of twelve), girls and boys attended physical education and swimming lessons separately (point 5.3 of the recommendation).

The Federal Supreme Court further held that the applicants’ argument that the recommendation had no legal validity was irrelevant in this case, in so far as, in its view, the recommendation was in any event merely a tool to assist in balancing the competing interests involved in reaching a decision on an exemption request. It also considered the fact that swimming was not taught in all the canton’s schools and that ice-skating, which also appeared as a lesson in the curriculum, was not taught at all in practice, to be irrelevant in assessing the legal basis.

The Federal Supreme Court accordingly concluded that the measure had a valid legal basis.

As to the public interest and the proportionality of the interference, the Federal Supreme Court upheld the lower court’s judgment to the effect that it was of paramount importance to ensure that children were integrated, irrespective of their origin, culture or religion. It further considered that the interference was lessened by the fact that the swimming lessons were mixed only until the age of puberty, and that the impact of the measure was attenuated by the accompanying measures (separate changing rooms and showers, and the option of wearing a burkini).

The Federal Supreme Court also found irrelevant the applicants’ argument that their children were receiving private swimming lessons, holding that what was at stake for the children was not simply learning to swim, but also submitting to the conditions surrounding the teaching itself (äussere Bedingungen des Unterrichts). It held that the school’s function of social integration, valid in respect of all pupils, required that exemptions for swimming classes be granted only sparingly. The refusal to grant an exemption in the present case thus corresponded to its new practice, according to which educational obligations were, in principle, to be recognised as prevailing over compliance with the religious precepts (religiöse Gebote) of one part of the population. For that reason, the comparison with exemptions granted for medical reasons was also irrelevant.

Having regard to the foregoing factors, the Federal Supreme Court concluded that the refusal to grant an exemption from the mixed swimming classes had not breached the applicants’ right to freedom of religion.


Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicants, Mr Michael Borg, Mrs Olympia Borg, Mr Andrew Vella are Maltese nationals and Mrs Lorena Vella is a Canadian national. They all live in Gozo and they were born respectively in 1975, 1976, 1974, and 1973. They were represented by Dr T. Abela, a lawyer practising in Attard.

The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General.

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

Following a project launched by the Government in 1984 asking the public to identify features of the Maltese cultural and natural heritage which deserved to be included in the Conservation and Preservation Plan for the protection of the environment, a villager suggested protecting the picturesque view, across open sloping fields leading down to the sea, which was visible from north of Nadur, Gozo, in the area at issue in the present case.

Some time later – the Government having accepted the proposal –procedures for the execution of the project commenced. In June 1991 the Commissioner of Land (CoL) expropriated a plot of land in the above-mentioned area – it is not clear whether this land belonged exclusively to the applicants or in part also to Nadur Parish Church – in order to widen an existing road and develop an open panoramic view, known locally as a “belvedere”. In the development phase of the belvedere, the Government demolished a rubble wall on the boundary between expropriated land and the applicants’ property and installed iron railings to permit an unobstructed view. In due course the area became a designated belvedere, with an unobstructed view overlooking the fields sloping down to the sea. No dispute arose in relation to this (first) expropriation. The applicants’ property abuts immediately onto and is slightly below the site of the belvedere and is, in effect, part of the view from the said belvedere and part of the sloping fields.

On an unspecified date the applicants sought planning permission to develop the remaining part of the land owned by them, but the Malta Environment and Planning Authority refused the application on the grounds that the site, although within a development zone, was a protected green area.

Subsequently, on 1 April 2004, the applicants brought an action against the CoL, asking the court to declare that they had the right to erect a wall on the boundary between their land and the expropriated plot (see Relevant domestic law). The CoL did not submit any pleas countering the claim, although he was served with the claim on 23 April 2004.

Since the applicants did not own all the land expropriated in conjunction with the belvedere, the wall in question would not have been built along the entire length of the belvedere. It would only have been built on the two plots owned by the applicants, these being 12.8 metres and 7 metres wide respectively. Although not specified, from the photos and plans provided it would appear that the entire belvedere is approximately 50 metres long.

The case was set down for hearing for 25 June 2004. On that same day the Court of Magistrates (Gozo) in its superior jurisdiction gave judgment in default, upholding the applicants’ claim, finding that they had the right to build such a “boundary” wall and authorising them to build such a wall “up to the height required by law” under the supervision of a court-appointed architect.

Since no appeal was lodged, the judgment became final.

In the ensuing four years, numerous applications were made to the court by both parties to the suit in respect of technical issues connected with the execution of the above-mentioned judgment, that is, the erection of the proposed wall (these included the removal of items installed on the belvedere so that the wall could be constructed, the question of distances, given the sloping terrain, and the manner in which the boundary wall should be built – over which the CoL disagreed with the interpretation of the architect). A decision in the form of a decree of 21 August 2006, given pursuant to one of the applications, held that the wall had to be built along the boundaries of the land expropriated for the purposes of the belvedere (where a retaining wall already existed) and that it had to be one and half metres high measured “from the belvedere”. A request by the CoL to have the height of the wall measured from the boundaries (the level where the properties met) and not from the surface level of the belvedere was rejected on 22 September 2006. The court therefore rejected the CoL’s interpretation as to how the wall had to be built.

The execution of the judgment of 25 June 2004 was to take place on 5 April 2008.

On 2 April 2008 the President of Malta declared that as from 3 April 2008 the Minister for Gozo was to assume the additional duties of Prime Minister during the Prime Minister’s absence from Malta. By virtue of a declaration made by the acting President of Malta on 3 April 2008, a piece of land (112 square metres) owned by the applicants – which included part of the strip of land on which they were to build the boundary wall – was expropriated by the CoL for the price of 23,300 euros (EUR).

On 4 April 2008 the CoL asked the court to suspend execution of the judgment in the applicants’ favour in view of the above-mentioned expropriation, which included part of the applicants’ land adjacent to the existing retaining wall. According to the CoL there was a public interest in the expropriation for the purposes of safeguarding the environment and particularly the belvedere (and the view therefrom), built at the expense of the taxpayer, from the actions proposed by the applicants.

On 23 April 2008 the court rejected the request as it could not suspend the execution of a judgment which had become final and in respect of which there had been no appeal or retrial.

On 25 April 2008 the CoL lodged a further application asking the court to prohibit the applicants from undertaking any works on the aforementioned plot by reason of the expropriation of 3 April 2008. Given the circumstances, the applicants agreed not to proceed with the building of the wall until the competent court had decided on the validity of the second expropriation. That being so, the court did not consider it necessary to issue the relevant prohibitory injunction.

On 26 April 2008 the applicants lodged a judicial protest noting that they were not accepting the compensation offered and declaring their intention to institute constitutional redress proceedings in relation to the expropriation.

On 7 May 2008 the CoL instituted fresh ordinary civil proceedings, asking the court to declare that the land where the wall was to be built was Government land, to declare the decision of 23 April 2008 null and void – given that the land on which the wall was to be built had now been expropriated for a public purpose – and to revoke any other court decision issued after the 25 June 2004 intended to establish the boundaries between the property of the Government and that of the applicants.

The hearing of the case was suspended in view of the constitutional redress proceedings lodged by the applicants (see below). It does not transpire that they have been resumed.

On 23 July 2008 the applicants instituted constitutional redress proceedings claiming a violation of Article 6 of the Convention – in so far as they had been denied execution of a judgment in their favour – and Article 1 of Protocol No. 1 to the Convention in that the expropriation of 3 April 2008 had not been in the public interest. They further invoked Article 14 of the Convention.

By a judgment of 23 April 2010 the Civil Court (First Hall) in its constitutional competence rejected the applicants’ claims. It considered that under domestic law an owner had no right to be exempted from an expropriation of property which was carried out in the public interest and in exchange for adequate compensation. That being so, no fair-trial rights arose in relation to the expropriation itself, the right of the individual being limited to contesting the public interest and the compensation at issue in any given expropriation. It held that in the present case the expropriation in 2008 had been made in the public interest to ensure the effectiveness of the 1991 expropriation, the public interest of which (the creation of a belvedere) was not disputed. The fact that certain third parties (people living in the area of Nadur) had more to gain than others did not deprive the expropriation of its public interest, given that the entire Maltese and Gozitan population would benefit from the view. There was nothing wrong in the State ensuring that a plan it had embarked on years before was not frustrated. The court considered that, while the Government’s negligence in the proceedings before the Court of Magistrates in Gozo was grave, they had been entitled to take action to correct their mistakes. It further considered that there had not been any discriminatory treatment. The project in 1984 had been started by a socialist Government and then continued by a nationalist Government, and neither the initiation nor the continuation thereof appeared to have been politically motivated. Both administrations were taking action solely for the preservation of the environment. Moreover, while it was true that the 2008 expropriation had been made at a time when the Minister for Gozo was acting Prime Minister and that such an action probably brought most benefit to the residents of Nadur – who were, in the main, of the same political persuasion as the Minister for Gozo – it did not appear that the expropriation (which had been decided on 14 March 2008, that is to say prior to the Minister’s being assigned the duties of acting Prime Minister) was a result of any intervention on her part. Neither had it been proved that the applicants were treated differently from others in their position or that the expropriation had been politically motivated.

By a judgment of 30 September 2011 the Constitutional Court rejected an appeal lodged by the applicants. It confirmed in full the first-instance judgment in respect of the claim under Article 1 of Protocol No. 1, as the expropriation was indeed necessary to protect the view which was in the general interest and which would have been frustrated by the building of a wall. It further considered that the applicants had not been denied access to a court as they could still contest the merits of the expropriation in relation to the public interest and the amount of compensation. The fact that the applicants had a judicially recognised right over that land (in the instant case, the right to build a dividing wall when two properties belong to different owners) did not mean that that land could not be expropriated in accordance with the existing legal procedures, subject always to the judicial review of the administrative act of expropriation. Lastly, in relation to the complaint under Article 14 it considered that – even if the Minister had been involved in the expropriation – it had already been found that the expropriation was legitimate, and it was self-evident that a minister had to act, even if it happened that the beneficiaries shared the same political opinion. In the court’s view, the argument that – unlike the applicants – the neighbours had direct access to the Minister, enabling them to influence decision-making, did not mean that there had been discriminatory treatment. Similarly, the fact that other people’s property had not been expropriated did not mean that the expropriation was discriminatory, as not everyone’s property was relevant for the purpose sought to be achieved by the expropriation. Moreover, the applicants were entitled to compensation for the taking of their property.

Pending the proceedings before this Court and after the parties had submitted their observations, by means of a publication in the Government Gazette of 21 August 2014, the President of Malta revoked the President’s Declaration of 3 April 2008 which had expropriated the applicants’ land.

According to information submitted by the parties, the applicants became aware of the revocation on an unspecified day, weeks after it happened. Subsequently, the applicants informed the Government Agent, who according to the applicants was unaware that the measure had been lifted. The parties met and agreed that the Government agent would inform the Court about the matter.

The Court was eventually informed of the matter on 4 November 2014, both parties having claimed that the delay in informing the Court was due to an oversight and a lack of co-ordination, for which they apologised to the Court.

Article 434 of the Civil Code, Chapter 16 of the Laws of Malta reads:

“Every person may construct any wall or building on the boundary-line of his tenement, saving the right of the neighbour to acquire co-ownership of the wall (...)”

Article 408 of the Civil Code, in so far as relevant reads:

“A party-wall between two courtyards, gardens or fields, may be built of loose stones, but must be -

(c) one and one-half metres high, if it is between two fields.”


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

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1973 and lives in Brčko, Bosnia and Herzegovina.

On 29 December 2011 the applicant lodged a request for a residence permit in Croatia on the grounds of family reunification with her partner, Ms D.B., who was living in Sisak. She submitted that she had been educated in Croatia and that she had lived in Zagreb for seventeen years. She also explained that she wanted to live with D.B., with whom she had been in a relationship for two years, and with whom she wanted to establish a household and start a business.

By a letter dated 28 December 2011 D.B. stated that she owned a house in Sisak where she wanted to live with the applicant. She explained that she had been in a relationship with the applicant for two years and that they wanted to live together so as to avoid constant travelling and the distance between them.

During the proceedings the Sisak Police Department (Policijska uprava Sisačko-moslovačka) found that the applicant and D.B. had been in a relationship since October 2009 and that in order to maintain their relationship they had been travelling to see each other. It was also established that the applicant had recently stayed with D.B. in the period between 16 September and 4 December 2011.

On 24 February 2012 the Sisak Police Department dismissed the applicant’s request with a summary reasoning indicating that all the relevant requirements under the Aliens Act had not been met.

The applicant appealed against that decision to the Ministry of the Interior (Ministarstvo unutarnjih poslova; hereinafter: the “Ministry”), arguing that it could be inferred from the decision of the Sisak Police Department that her request had been dismissed because the Aliens Act did not allow family reunification for same-sex couples. She considered that there had been no grounds for a difference in treatment based on sexual orientation and that the relevant law should not be construed in a manner that allowed for such a possibility. She relied, inter alia, on the Constitution and the Prohibition of Discrimination Act, arguing that even if she was not to be considered as D.B.’s “immediate family member”, within the meaning of the Aliens Act, she should in any case be considered as her “other relative” within the meaning of that Act.

On 8 June 2012 the Ministry dismissed the applicant’s appeal and upheld the decision of the Sisak Police Department. The relevant part of the Ministry’s decision reads:

“Concerning the family reunification, based on which the request for the regularisation of the status of an alien in Croatia has been submitted in the case at issue, [it is to be noted that] the case file shows that the appellant relies on the existence of a same-sex relationship with the Croatian national D.B., which has allegedly lasted for two years ...

The impugned decision shows that the [first-instance body], other than citing the [relevant] provisions of the Aliens Act, also cited section 3 of the Family Act, according to which the effects of an extramarital relationship, that is to say the rights and obligations following from its existence, relate to a union between an unmarried woman and man which has lasted for at least three years, or less if a child was born of [the union]; and section 2 of the Same-Sex Union Act ... which defines a same-sex union as a union between two persons of the same sex (partners) who are not married, or in an extramarital relationship or other same-sex union, which has lasted for at least three years and which is based on the principles of equality of partners, mutual respect and assistance as well as the emotional bonds of partners.

It follows that the [Same-Sex Union] Act does not define a same-sex union as a family and the Family Act does not cover same-sex unions. It should also be taken into account that the provisions of the Aliens Act concerning temporary residence for family reunification do not provide for a possibility of regularisation of the status of an alien on the grounds of [the existence of] a same-sex union, nor does such a union fall within the scope of [the term] ‘immediate family member’ incorporated in that Act, which makes it clear that there is no legal ground for granting the request of the appellant.

Therefore, the appellant wrongly considers that the first-instance body should have applied section 56 § 4 of the Aliens Act in her case ... because that provision clearly provides that exceptionally to the provision defining immediate family members, ‘other relative’ could be so considered if there are specific personal or serious humanitarian reasons for a family reunification in Croatia.”

On 24 July 2012 the applicant lodged an administrative action with the Zagreb Administrative Court (Upravni sud u Zagrebu), arguing that she had been discriminated against in comparison to different-sex couples who had a possibility to seek family reunification under the Aliens Act. She relied on the domestic anti-discrimination legislation, including the Prohibition of Discrimination Act, as well as the Convention and the Court’s case-law.

The Zagreb Administrative Court dismissed the applicant’s action on 30 January 2013. The relevant part of the judgment provides:

“The cited section 56 § 3(1) and (2) of the Aliens Act provides that the immediate family members are spouses or persons who live in an extramarital relationship in accordance with Croatian legislation. The cited sections 3 and 5 of the Family Act show that marriage and extramarital relationship are unions between a man and a woman. Thus, union between two same-sex persons cannot be considered under the relevant legal provisions as marriage or an extramarital relationship.

Union between two same-sex persons can be considered under the legal term same-sex union under the conditions provided for in section 2 of the Same-Sex Union Act. However, given the limited legal effects of a same-sex union, the possible existence of such a union does not represent a basis for family reunification. It should be noted that section 56 of the [Aliens] Act explicitly enumerates persons who are to be considered immediate family members or who are to be exceptionally considered [so], which leads to a conclusion that it cannot be extended to cover persons living in a same-sex union.

Accordingly, the granting of a request for temporary residence of an alien on the grounds of family reunification depends on the satisfaction of the requirements under sections 52 and 56 of the Aliens Act. In the case at issue the plaintiff is neither married nor in an extramarital relationship with the Croatian national D.B., which is not in dispute between the parties. It therefore follows that the plaintiff cannot be considered an immediate family member within the meaning of section 56 § 1(1) and (2) of the [Aliens] Act and thus she did not justify the purpose (in the concrete case: family reunification) for which a temporary residence of an alien in Croatia can be granted ...

In view of the cited legal provisions, and the facts of the case, this court finds that in the concrete case it was not possible to grant the plaintiff’s request.”

On 8 March 2013 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), contending that she had been discriminated against on the basis of her sexual orientation. She relied on the Convention and the relevant domestic anti-discrimination legislation, and she cited the Court’s case-law on the question of discrimination related to sexual orientation.

On 29 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint, endorsing the reasoning of the lower bodies. The relevant part of the decision reads:

“8. The Constitutional Court reiterates that discrimination under Article 14 of the Constitution does not have an independent standing for a constitutional complaint but must be submitted in conjunction with another (substantive) constitutional right. Discrimination means difference in the treatment of persons in the same or relevantly similar situations without an objective and reasonable justification. Article 14 of the Constitution contains constitutional guarantee against discrimination on any ground in securing a concrete right.

Although the appellant relied in her constitutional complaint in Article 35 of the Constitution and the related Article 8 of the Convention, the Constitutional Court finds that these provisions are not applicable in the case at issue.

8.1. In the proceedings before it, the Constitutional Court did not find facts or circumstances which would suggest that in the proceedings before [the lower bodies] the appellant was discriminated against on any ground ... Thus her complaint of a violation of Article 14 § 1 of the Constitution, the Constitutional Court finds unfounded.

8.2. The Constitutional Court also notes that the appellant, in the concrete case, did not show that she has used the legal avenue under the Prohibition of Discrimination Act ...

There has therefore been no violation of her constitutional right under Article 14 §§ 1 and 2 of the Constitution.

The case-law of the European Court cited in the constitutional complaint is of no relevance for the case at issue since it relates to cases concerning health insurance and inheritance of tenancy rights by same-sex partners living in a stable (de facto) relationship.”


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1966 and lives in Diyarbakır.

At the time of the events he was a lawyer practising in that city.

On 18 April 2000 the applicant was questioned by the public prosecutor at the Diyarbakır State Security Court, on suspicion of membership of an illegal organisation, namely Hizbullah. The contents of a computer disk holding detailed information on the applicant’s background, which had been obtained by the security forces in a house belonging to Hizbullah, and police statements of four people, all of whom were accused of being members of the same illegal organisation, were read out to him during the questioning. The applicant denied having any affiliation with the illegal organisation and contested the accuracy of the evidence presented to him. He maintained that he had assisted certain members of Hizbullah as a lawyer and that he always acted within the limits of his profession, without directing those people’s submissions as alleged. He further maintained that certain information in the illegal organisation’s background report, such as the ages of his siblings, was wrong and that this in itself proved that he had not provided the information. He did not benefit from the assistance of a lawyer during questioning.

On the same day the applicant gave statements before the investigating judge of the Diyarbakır State Security Court, this time together with his business partner, who was accused of being a member of the same illegal organisation. He reiterated his submissions given to the public prosecutor and added that the fact that he had provided legal assistance to some members of the illegal organisation might have been perceived as a demonstration of support by certain people. The investigating judge refused the public prosecutor’s request for the applicant’s detention and decided that he should be released pending trial.

The following day, on 19 April 2000, the public prosecutor objected to the applicant’s release. The applicant was subsequently arrested on the basis of a warrant issued by the Diyarbakır State Security Court.

On 20 April 2000 the applicant was taken before the investigating judge, who decided that he should be detained on remand.

On the same day the public prosecutor filed a bill of indictment with the Diyarbakır State Security Court, accusing the applicant of membership of an illegal organisation. He relied on the police statements of the four witnesses as well as the background information obtained from the computer disk.

On an unspecified date the applicant’s lawyers lodged a petition with the trial court. They argued that there was no evidence against the applicant in that all of the witnesses relied on by the prosecution had denied their statements later on. They further stated that the background information obtained from the computer disk was not reliable.

At the hearing on 30 May 2000 the applicant’s lawyers once again challenged the use of the background information obtained from the computer disk, arguing that it was unreliable in that the disk had been de-encrypted and the information extracted in their absence. During the same hearing, the court noted that the four witnesses, who had mentioned the applicant in their police statements, had denied those submissions during the subsequent stages of the proceedings against them. The court held that the applicant should be released pending trial.

On 3 September 2001, following statements made by a certain M.S.B., the public prosecutor drew up another bill of indictment against the applicant, once again accusing him of membership of an illegal organisation. The allegations put forward by this latter indictment were joined with the case which was already pending before the State Security Court.

At the hearing on 4 December 2001, during which the applicant was not present, M.S.B.’s police statements were read out. On 30 April 2002 the court noted that M.S.B. had denied those statements at a later point.

On an unspecified date the public prosecutor submitted his written observations to the court. He argued that the applicant’s guilt was proven by various items of evidence, namely the background report prepared in respect of him, which contained detailed personal information, as well as the background reports and police statements of several other members of Hizbullah. In that connection, he referred to the statements of a certain N.S., who had maintained before both the police and the public prosecutor that the applicant had been a recruiter for the illegal organisation, had given courses to new members and had been in charge of certain cells. The public prosecutor also noted that the applicant’s name had been mentioned in the background reports of several members, including a certain Ş.A.

On 18 November 2003 the applicant’s lawyer applied for the expansion of the investigation and the cross-examination of the witnesses who had confirmed the applicant’s membership of Hizbullah. He mentioned, in particular, the names of N.S. and Ş.A., who had given statements against the applicant. The applicant’s lawyer further challenged the credibility of these two witnesses’ statements. In that connection, he argued that N.S. had not repeated his police statements against the applicant at a later point as alleged by the public prosecutor in his written opinion. The lawyer further noted that Ş.A. had claimed to have taken courses run by the applicant until the latter started his military service and asked the trial court to obtain information as regards the dates the applicant had served in the army in order to prove that those allegations were not credible.

On 27 January 2004 the court refused the application for the expansion of the investigation, without stating anything as regards the cross-examination of witnesses.

On 23 March 2004 the applicant applied to benefit from the Reintegration of Offenders into Society Act (Law no. 4959).

During the course of the proceedings, the State Security Courts were abolished and the case was transferred to the Diyarbakır Assize Court.

At the hearing on 21 February 2006 the Assize Court read out the police statements of Ş.A., in which he had claimed that the applicant had acted as a mentor within the illegal organisation and had given courses to other members, including him, which had ended when the applicant had started his military service. The trial court stated that although Ş.A. had reiterated his submissions in so far as they concerned himself before the public prosecutor and the investigating judge, he had not mentioned the applicant after his questioning by the police. The court nevertheless added the statements of N.S. and Ş.A. to the case file. The applicant’s lawyers maintained that they did not accept the statements against the applicant.

On 18 April 2006 the Diyarbakır Assize Court found the applicant guilty as charged and sentenced him to six years and three months’ imprisonment. The court relied on certain information obtained from the computer disk, namely the background report on the applicant and reports concerning other members, as well as the statements of N.S. and Ş.A. It also refused the applicant’s application to benefit from Law no. 4959, finding that he had not disclosed any information about the structure of the illegal organisation.

The applicant appealed against the judgment. He argued that the trial court had failed to hear evidence from N.S. and Ş.A. despite his requests to that effect and that he had been deprived of the possibility to put his questions to them.

On 19 November 2007 the Court of Cassation upheld the judgment of the Diyarbakır Assize Court.


Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

A list of the applicants is set out in the appendix.

The Slovenian Government (“the Government”) were represented by their Agent, Mrs A. Vran, State Attorney. The Croatian Government and the Government of Bosnia and Herzegovina, who had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not indicate that they intended to do so.

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

On 24 October 1994 the applicants each instituted separate civil proceedings with the Koper Labour Court against their employer, the company L.K., claiming the repayment of a loan which they had previously given it in the form of bonds.

On 27 October 1994 the court decided to join the proceedings.

On 29 March 2002 the Koper Local Court adjourned the case and ordered the applicants’ representative to submit within sixty days an original power of attorney for the second and third applicants and new addresses in respect of all three applicants. The time-limit for the submission of the documents was subsequently prolonged.

The applicants’ representative submitted a fresh power of attorney in respect of the first applicant and requested a further extension of the time-limit with respect to the second and third applicants, which was granted. However, he did not submit the requested documents.

On 10 December 2003 the Koper Local Court rejected the second and third applicants’ claims on procedural grounds for failure to present a valid power of attorney. The two applicants appealed. Their appeals were dismissed by the Koper Higher Court on 23 January 2007.

On 28 September 2007 the Koper Local Court held a hearing in respect of the first applicant’s claim and dismissed it. The first applicant appealed.

On 8 October 2008 the Koper Higher Court dismissed the first applicant’s appeal and he then lodged a constitutional complaint.

On 2 November 2009 the Constitutional Court rejected the constitutional complaint.

On 19 June 2009, after rejecting offers made by the State Attorney’s Office, the applicants, relying on the 2006 Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), each separately brought claims in respect of non-pecuniary damage incurred due to alleged unreasonable length of proceedings. The cases were then dealt with jointly by the Kranj Local Court.

On 28 December 2010 the Kranj Local Court found that the applicants’ right to a trial within a reasonable time had been breached. It ordered the State to pay 2,925 euros (EUR) to the first applicant, EUR 1,620 to the second and the third applicant and ordered that each party had to bear their own costs. The court dismissed the remainder of the claims. The applicants appealed.

On 9 January 2013 the Ljubljana Higher Court dismissed the applicants’ appeal.

For relevant domestic law with respect to length of proceedings see Grzinčič v. Slovenia (no. 26867/02, §§ 35-48, 3 May 2007). In particular, section 20(6) of the 2006 Act states that the provisions of the Civil Procedure Act concerning small claims apply in proceedings concerning compensation for non-pecuniary damage, irrespective of the type or amount of claim.

The following provisions of the Constitutional Court Act (Official Gazette no. 15/94, with relevant amendments) are relevant to the present case:

“(1) Where there has been a violation of human rights or fundamental freedoms, a constitutional complaint may, under the conditions determined by this Act, be lodged against individual acts by which State authorities, local authorities, or bearers of public authority have decided on the rights, obligations, or legal entitlements of individuals or legal entities ...”

“(1) The Constitutional Court decides as a panel of three Constitutional Court judges (hereinafter referred to as a panel) at a closed session whether to initiate proceedings on the basis of a constitutional complaint.”

“(1) A constitutional complaint is not admissible if the violation of human rights or fundamental freedoms [alleged] did not have serious consequences for the complainant.

(2) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for a complainant with regard to individual decisions:

– issued in small claims disputes in accordance with the act which regulates civil procedure, or in other disputes if the value in dispute for the complainant does not exceed the amount which is determined by the definition of small claims disputes in the act which regulates civil procedure;

– concerning costs of proceedings, where such a decision alone has been challenged in the constitutional complaint;

– issued in property trespass disputes;

– issued in minor offence cases.

(3) Irrespective of the preceding paragraph, the Constitutional Court may in particularly justified cases decide exceptionally on a constitutional complaint against the individual decisions referred to in the preceding paragraph, notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case.”

The Government submitted a number of decisions taken in cases falling under section 55a(2) of the Constitutional Court Act in which the Constitutional Court had accepted constitutional complaints for consideration on their merits.

In particular, they submitted eleven decisions issued in minor offence proceedings (Up-3663/07 of 19 June 2009; Up-320/10 and Up-456/10 of 9 April 2010; Up-319/10 of 23 June 2010; Up-847/10 of 16 September 2010; Up-1293/10 of 10 October 2011; Up-1544/10 of 10 October 2011; Up-1220/11 of 3 April 2012; Up-965/11 of 3 April 2012; Up-187/13 of 5 September 2014; Up-375/13 of 5 September 2014; and Up-718/13 of 4 November 2014), and two decisions given in costs-only proceedings (Up-1547/08 and U-I-147/08 of 16 April 2009 and Up-1454/10 of 10 October 2011).

Furthermore, they submitted three Constitutional Court decisions in which the constitutional complaint had been lodged against lower court decisions issued in a small claims dispute or in which the value in dispute for the complainant did not exceed the amount determined by the definition of a small claim (EUR 2,000). In decision no. Up-109/12 of 23 January 2014 the Constitutional Court accepted a constitutional complaint for consideration which raised questions of discrimination against people with disabilities in a case concerning severance pay which was below EUR 2,000. Decision no. Up-584/12 of 2 April 2013 concerned a defamation claim amounting to EUR 2,000, whereas the constitutional complaint involved raised freedom of expression issues. In decision no. Up-234/14 of 4 November 2014 the Constitutional Court accepted a constitutional complaint for consideration in a case in which the disputed amount was lower than EUR 2,000 but which raised questions of equal protection of rights.

In all of the above cases the Constitutional Court concluded that the complainants had succeeded in arguing that their case represented an important constitutional question and had thus fulfilled the conditions for consideration of the constitutional complaint under section 55a(3) of the Constitutional Court Act.

The Government also referred to seven cases in which the Constitutional Court had rejected constitutional complaints lodged against decisions in small claims disputes (Up-308/11 of 6 March 2012; Up-441/13 of 10 September 2013; Up-1201/12 of 10 September 2013; Up-1131/12 of 30 September 2013; Up-132/13 of 30 September 2013; Up-925/12 of 15 April 2014; and Up-368/14 of 12 September 2014). In such cases the Constitutional Court examined in some detail whether the complainants had complied with the criterion of there being an important constitutional question at stake.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev

The applicant was born in 1951 and lives in Szczecin.

The applicant and her husband married in 1979 under the statutory regime of common marital property, provided for by the provisions of the 1994 Family and Custody Code. Under the applicable provisions of that Code they had equal shares in their common property.

By an administrative decision of 20 November 1989 the Szczecin Town Council (Urząd Miejski) held that the applicant’s husband, Mr Henryk Żuk, was determined a candidate to purchase two plots of land, nos. 184/3 and 187/3, owned at that time by the State Treasury and managed on its behalf by the State Land Fund (Państwowy Fundusz Ziemi). The Town Council, representing the State Treasury at that time, was obliged to sell the land to him on the basis of that decision. The administrative body established a three-month time-limit for the sale contract to be concluded.

J.S., W.K. and W.H., who had also applied to purchase the plots of land concerned, appealed against this decision. On 21 March 1990 the Director of the Regional Land Management Office in Szczecin (Urząd Wojewódzki) dismissed the appeal brought by J.S. It further confirmed the entitlement to purchase the land created by the contested decision, considering, inter alia, that the plots concerned were adjacent to a farm owned and run by the applicant and her husband and that therefore they were natural candidates for the purchase. The authority referred to the Act on Selling State-Owned Properties 1958 (ustawa o sprzedaży nieruchomości Państwowego Funduszu Ziemi).

By letters of 27 April 1990 and 23 July 1990 the Mayor of Szczecin (Prezydent m. Szczecina) informed the applicant and her husband that the decision of 20 November 1989 confirmed by the decision of 21 March 1990 could not be executed because W.K. had also contested it. The proceedings had therefore been re-opened ex officio. It was further stated that after the finalization of the appellate proceedings, the documents would be forwarded to the Cooperative Bank in Szczecin in order for the contract to be concluded. The three-month time-limit for the conclusion of the contract would start to run only after the decision became final.

On 16 April 1993 the Szczecin Governor (Wojewoda) upheld the validity of the decision of 20 November 1989. On 6 June 1994 the Minister of Agriculture dismissed the appeals referred to in paragraph 8 above. On 16 October 1995 the Supreme Administrative Court in Warsaw dismissed the appeal brought by W.K.

Accordingly, the contested decision became final on an unspecified date in early 1996.

On 16 May 1994 a new local land development plan (plan zagospodarowania przestrzennego) was adopted by the Szczecin municipality.

On 27 March 1998 the Szczecin Governor (Wojewoda) gave an administrative decision transferring ownership of the land concerned to the Agency of Agricultural Property of the State Treasury (Agencja Własności Rolnej Skarbu Państwa) in order for the 1989 decision to be executed. The Agency appealed. On 10 January 2002 the Minister of Agriculture quashed this decision. He found that under the provisions of the Szczecin land development plan of 1994 the lands situated within the administrative limits of the municipality and intended for agricultural purposes were not to be owned by the State Treasury and therefore not subject to transfer to the resources of the Agency.

The Szczecin Town Council, when subsequently called by the applicant and her husband to execute the 1989 decision by selling the land to them, refused to do so. In letters dated 13 June and 31 July 2002 and 14 February 2003 addressed to the applicant and her husband, the municipality’s executive board (Zarząd miasta) refused to transfer ownership to them essentially because the land concerned, situated within the administrative limits of the Szczecin municipality, had been designated for non-agricultural purposes under the 1994 land development plan.

In 2003 the applicant called on the Zachodniopomorskie Governor (Wojewoda Zachodniopomorski) to issue an administrative decision transferring ownership rights from the State Treasury to the Szczecin municipality, but to no avail.

On an unspecified date the Szczecin Mayor (representing the municipality) requested the Governor (representing the State Treasury) to take over the ownership of the plots of land concerned. On 30 September 2003 the Governor refused to do so, relying on the Act of 19 October 1991 on the management of State-owned agricultural property (ustawa o gospodarowaniu nieruchomościami rolnymi Skarbu Państwa oraz o zmianie niektórych ustaw). It was noted that under the 1994 land development plan adopted by the Szczecin municipality, the plots no longer constituted agricultural land either within the meaning of the Civil Code nor under the local land development plan. It could therefore not be transferred to the Agency representing the State Treasury in the management of agricultural properties it owned as the agency had jurisdiction only in respect of land designated for agricultural uses. The Mayor appealed. On 8 June 2005 the Minister of Agriculture upheld the contested decision. No appeal to the administrative court against this decision was lodged.

As a result, the land remained municipal property.

On 17 April 2003 the applicant and her husband lodged a civil action against the Szczecin municipality. They requested the court, relying on Article 64 of the Civil Code, to oblige the defendant municipality to sell the property concerned to the applicant’s husband on the basis of the 1989 decision (roszczenie o złożenie oświadczenia woli). In response to the claim the defendant municipality asked for the action to be dismissed. It submitted that it did not own the land concerned. It was at that time owned by the State Treasury. As the Governor had refused to give a decision on the transfer of ownership of that land to the municipality (see paragraph 15 above), the latter could not sell it. The municipality further argued that the claim to have the property sold to the applicants had become prescribed.

The Szczecin District Court, by a judgment of 28 November 2003, dismissed the claim. The applicant and her husband appealed.

On 15 April 2004 the Szczecin Regional Court allowed the appeal, amended the contested judgment and allowed the claim. It dismissed the prescription objection. The court was of the view that the ten-year prescription period provided for pecuniary claims under the provisions of the Civil Code had started to run only in 1996 when the 1989 decision had become final (see paragraph 10 above).

The court further obliged the municipality to sell the land concerned to the applicant and her husband. It was of the view that the first-instance court had erred in finding that neither the provisions of the 1958 Sale of the National Land Fund Act (ustawa o sprzedaży nieruchomości Państwowego Funduszu Ziemi) nor the decision given in 1989 and 1990 (see paragraphs 7 and 8 above) on the basis of that Act provided for an obligation on the part of the municipality to sell the land to the addressee of that decision. That decision created on the claimants’ part a claim of a pecuniary nature to have the sale contract concluded with them. They were not therefore obliged to participate in a tender which was simply another procedure for buying the land owned by the State, not applicable to their situation. The fact that the proceedings lasted until 1996 because other persons had contested that decision did not affect the validity of their claim. Nor did the fact that the applicable provisions changed in 1991 and the ownership of the land had thereby been transferred ex lege from the State Treasury to the municipality (see paragraphs 34-35 below) affect the existence and validity of the claim to have the purchase contract concluded or the corresponding obligation on the part of the public authorities.

In the operative part of the judgment the court expressly formulated the essential provisions of the sale contract to be concluded by the Szczecin Municipality with the applicants, including the price of PLN 11,015 to be paid for the plots. The court further ordered the municipality to cover the legal costs borne by the applicant and her husband in the amount of PLN 4,496.

The defendant municipality appealed. Its appeal was rejected on 9 September 2004 by the Szczecin Regional Court for having been lodged out of time.

On 17 March 2005 the applicant and her husband paid PLN 6,519 to the municipality, the amount being the difference between the price of PLN 11,015 as determined by the judgment and PLN 4,496, the amount of court costs they had borne in the connection with the civil proceedings.

In 2005 and 2006 the applicant and her husband, referring to this judgment, called the municipality to sell the property to them, but to no avail.

By a judgment of 14 May 2007 the Szczecin District Court held that the statutory conjugal property of the applicant and her husband created ex lege by their marriage on 6 January 1979 had been replaced by a separate marital property regime as from 1 January 2004.

On 29 February 2008 the applicant and her husband lodged a civil action against the Szczecin Municipality with the civil court requesting that steps be taken by that court to put right the discrepancies between the entry in the land register and the actual ownership of the plot (powództwo o uzgodnienie ksiçgi wieczystej z rzeczywistym stanem prawnym). They referred to the judgment of the Regional Court, summarised in paragraphs 19 and 20 above and requested that the State Treasury be listed as owner of the land concerned.

The applicants also submitted an alternative claim asking the court to order the State Treasury represented by the Mayor of Szczecin to sell the property to them. The Mayor was invited to participate in the proceedings.

The municipality argued before the court that it did not own the land. As the land was owned by the State Treasury, the municipality could not sell it.

On 15 September 2008 the Szczecin District Court dismissed the claim. Subsequently, on 27 March 2009 the Regional Court quashed this judgment on formal grounds and ordered that the case should be re-examined.

On 30 July 2009 the Szczecin District Court dismissed the claim against the State Treasury – the Mayor of Szczecin (pko Skarbowi Państwa – Prezydentowi Miasta Szczecina) and against the municipality of Szczecin (pko Gminie Miasto Szczecin). It noted that the relevant land register listed the State Treasury as the owner of the plot. The land register could only be amended on the basis of an administrative decision issued by the Governor on the basis of section 18(1) of the Local Self-Government Act of 10 May 1990 ("the 1990 Act") confirming the ex lege transfer of ownership from the State Treasury to the local municipality on the basis of that Act (see paragraph 36 below). The Governor had never given a relevant administrative decision. The civil court had no jurisdiction to order administrative bodies to issue administrative decisions. In the absence of such a decision the ex lege transfer of ownership to the municipality provided for by law could not become operative. In the absence of such a transfer certified by a decision, the State Treasury remained the land’s owner. It was therefore impossible for the court to order the municipality to sell the plot to the claimant or to amend the land register in such a manner as to list the municipality as the owner. The judgment given in 2004 was not res iudicata towards the State Treasury as it was the municipality who had been the defendant in these proceedings.

The claimants appealed. They argued that they had already specified before the first-instance court that the claim was directed against both the State Treasury and the municipality of Szczecin.

During the hearing before the appeal court the lawyer representing the applicant and her husband stated that he had corrected the content of the alternative claim (as regards the entity who was supposed to make a declaration of intent) already during the proceedings before the court of first instance.

The applicant’s appeal was dismissed on 4 March 2010 by the Szczecin Regional Court. The court shared the conclusions of the lower court. It was of the view that the claimants had not made it sufficiently clear that the alternative claim had been directed against both the State Treasury and the municipality. Despite the fact that the plaintiffs had pointed out the mistake in their statement of claim which had been addressed against the State Treasury, the court could not rectify that mistake ex officio.

The Supreme Court refused to entertain the cassation appeal against this judgment by a decision of 23 February 2011.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

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

The applicants alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard. Some applicants also raised other complaints under the provisions of the Convention.