ITEMID: 001-89309
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF CARSON AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 14+P1-1
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Simon Brown
TEXT: 7. Ms Carson was born in 1931. She spent most of her working life in the United Kingdom, paying National Insurance Contributions in full, before emigrating to South Africa in 1989, where she has been resident since 1990. From 1989 to 1999 she paid further National Insurance Contributions on a voluntary basis to maintain her entitlement to a full State retirement pension.
8. In 2000 she became eligible for a State pension and an additional pension under the State Earnings Related Pension Scheme (“SERPS”). She receives a total of GBP 103.62 per week, comprising GBP 67.50 basic State pension, GBP 32.17 SERPS and GBP 3.95 graduated pension. Her pension has remained fixed at this rate since 2000. Had her basic pension benefited from up-rating in line with inflation, it would now be worth GBP 82.05 per week.
9. There is no State social security system in South Africa. Ms Carson therefore contends that she is dependent on her British pension to support her in retirement, having no other resources other than some earnings as a writer.
10. Ms Carson brought domestic proceedings challenging the refusal to up-rate her pension: see paragraphs 24-36 below.
11. Mr Jackson was born in 1922. He spent 50 years working in the United Kingdom, paying National Insurance Contributions in full. He emigrated to Canada on his retirement in 1986 and became eligible for a State pension in 1987. His basic State pension was then GBP 39.50 a week, and it has remained fixed at that level since 1987. Had his State pension benefited from up-rating since 1987 it would now be worth GBP 82.05 a week.
12. Mrs Stewart was born in 1931. She spent 15 years working in the United Kingdom, paying National Insurance Contributions in full, before emigrating to Canada in 1964. She became eligible for a State pension in 1991. Her basic State pension was then GBP 15.48 per week, and it has remained fixed at that level since 1991. Had her State pension benefited from up-rating, it would now be worth approximately GBP 22.50 per week.
13. Mrs Kendall was born in 1913. She spent 45 years working in the United Kingdom, paying National Insurance Contributions in full, before retiring in 1976. She became eligible for a State pension in 1973, and emigrated to Canada in 1986, at which point her State pension had increased to GBP 38.70 per week. It has remained fixed at that level. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 a week.
14. Mr Dean was born in 1923. He spent 51 years working in the United Kingdom, paying National Insurance Contributions in full, before retiring in 1991. He became eligible for a State pension in 1988, and emigrated to Canada in 1994, when his weekly State pension was GBP 57.60. It has remained fixed at that level since 1994. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 per week.
15. Mr Buchanan was born in 1924. He spent 47 years working in the United Kingdom, paying all applicable National Insurance Contributions in full, before emigrating to Canada in 1985. He became eligible for a State pension in 1989. His basic State pension was then GBP 41.15 per week, and it has remained fixed at that level since 1989. Had his State pension benefited from up-rating, it would now be worth approximately GBP 82.05 per week.
16. Mr Doyle was born in 1937. He spent 42 years working in the United Kingdom, paying National Insurance Contributions in full, before retiring in 1995 and emigrating to Canada in 1998. He became eligible for a State pension in 2002. His basic State pension was then GBP 75.50 per week, and it has remained fixed at that level since then. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 per week.
17. Mr Gould was born in 1933. He spent 44 years working in the United Kingdom, paying National Insurance Contributions in full, before retiring and emigrating to Canada in 1994. He became eligible for a State pension in 1998. His basic State pension was then GBP 64.70 per week, and it has remained fixed at that level since then. Had his State pension benefited from up-rating, it would now be worth approximately GBP 82.05 per week.
18. Mr Dancer was born in 1921. He spent 44 years working in the United Kingdom, paying National Insurance Contributions in full, before emigrating to Canada in 1981. He became eligible for a State pension in 1986. His basic State pension was then GBP 38.30 per week, and it has remained fixed at that level. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 per week.
19. Mrs Hill was born in Australia in 1940; it appears that she remains an Australian national. She lived and worked in the United Kingdom between 1963 and 1982, paying National Insurance Contributions in full, before returning to Australia in 1982. She made further National Insurance Contributions for the tax years 1992-1999, and became eligible for a British State pension in 2000. Her basic State pension was then GBP 38.05 per week.
20. Between August 2002 and December 2004 she spent over half her time in London. During this period, her pension was increased to GBP 58.78, which included an up-rating of the basic State pension. When she returned to Australia, her pension returned to the previous level, including a basic State pension of GBP 38.05. Her pension has remained at this level subsequently. Had her State pension benefited from up-rating, it would now be worth approximately GBP 43.08 per week.
21. Mr Shrubshole was born in 1933. His contributions record in the United Kingdom qualified him for a full basic State pension in 1998. He emigrated to Australia in 2000, at which point his State pension had increased to GBP 67.40. Save for a period of seven weeks when he returned to the United Kingdom (during which time his pension was increased to take into account annual up-ratings), his State pension has remained fixed at that level since 2000. Had his State pension benefited from up-rating, it would now be worth approximately GBP 82.05 per week.
22. Mr Markiewicz was born in 1924. He spent 51 years working in the United Kingdom, paying National Insurance Contributions in full, and became eligible for a State pension in 1989. In 1993 he emigrated to Australia. His basic State pension was then worth GBP 56.10 a week, and it has remained fixed at that level. Had it benefited from up-rating, it would now be worth approximately GBP 82.05 per week.
23. Mrs Godfrey was born in 1934. She spent 10 years working in the United Kingdom between 1954 and 1965, paying National Insurance Contributions in full, before emigrating to Australia in 1965. She became eligible for a State pension in 1994. Her basic State pension was then GBP 14.40 per week, and it has remained fixed at that level. Had it benefited from up-rating, it would now be worth approximately GBP 20.51 per week. Mrs Godfrey contends that she is ineligible for any old age security benefits from the Australian Government, and is thus dependent on her British State pension as a source of income.
24. In 2002, Ms Carson brought proceedings by way of judicial review to challenge the failure to index-link her pension. At first instance she was supported by the Australian Government as an intervening party, but the Australian Government withdrew from the proceedings before the Court of Appeal and House of Lords.
25. Before the High Court, Ms Carson based her argument on Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention. Stanley Burnton J, in a judgment handed down on 22 May 2002 (R (Carson) v Secretary of State for Work and Pensions [2002] EWHC 978 (Admin)), dismissed her application for judicial review.
26. Applying the principles he drew from the case-law of the Court, the judge found that the pecuniary right that fell to be protected by Article 1 of Protocol No. 1 had to be defined by the domestic legislation that created it. He found that, by the operation of the domestic legislation, Ms Carson had never been entitled to an up-rated pension, so that there could be no breach of Article 1 of Protocol No. 1 taken in isolation.
27. The matter nonetheless fell within the ambit of Article 1 of Protocol No. 1, such that the judge had to consider whether Ms Carson had suffered discrimination contrary to the provisions of Article 14. He held that residence, applied as a criterion for the differential treatment of citizens, was a ground within the scope of Article 14; like domicile and nationality, it was an aspect of personal status. This was not contested by the Secretary of State. Stanley Burnton J went on, however, to dismiss the claim following the reasoning of the European Commission of Human Rights in JW and EW v United Kingdom (no. 9776/82, decision of 3 October 1983, Decisions and Reports (DR) 34, p. 153) and Corner v United Kingdom (no. 11271/84, decision of 17 May 1985, unpublished), holding that the applicant was not in a comparable position to pensioners in countries attracting up-rating. The differing economic conditions in each country, including local social security provision and taxation, made it impossible simply to compare the amount in sterling received by pensioners.
28. Stanley Burnton J found that, in the alternative, even if the applicant could claim to be in an analogous position to a pensioner in the United Kingdom or a country where up-rating was paid subject to a bi-lateral agreement, the difference in treatment could be justified. He considered that the Government had a considerable margin of appreciation, that there was a lack of consistency in State practice, and that the limitation had been publicised for some time. He declined to accept that the payment of an up-rated pension in one country (or several) meant that there was an obligation under Article 14 to pay up-rated pensions to all pensioners living abroad. He found that the illogicality in the scope of bilateral agreements reflected their political nature, the relative complexity of the issue, and historical factors. He therefore concluded that the “remedy of the expatriate United Kingdom pensioners who do not receive up-rated pensions is political, not judicial. The decision to pay them up-rated pensions must be made by Parliament.”
29. Ms Carson appealed to the Court of Appeal, which dismissed her appeal on 17 June 2003 (R (Carson and Reynolds) v Secretary of State for Work and Pensions [2003] EWCA Civ 797). For similar reasons to the High Court, the Court of Appeal (Lords Justice Simon Brown, Laws and Rix) found that, since Article 1 of Protocol No. 1 conferred no right to acquire property, the failure to up-rate Ms Carson's pension gave rise to no violation of that provision.
30. As to the complaint under Article 14 in conjunction with Article 1 of Protocol No. 1, the Court of Appeal noted that the Secretary of State accepted that place of residence constituted a “status” for the purposes of the Article. However, it found that the applicant was in a materially different position to those she contended were her comparators. In this connection it was significant that the legislative scheme was entirely geared toward the impact of price inflation in the United Kingdom, such that it would be “inescapable that [an annual up-rate] being awarded across the board to all ... pensioners [in Ms Carson's position] would have random effects.”
31. The Court of Appeal also considered, in the alternative, the question of justification and found that the “true” justification of the refusal to pay the up-rate was that Ms Carson and those in her position “had chosen to live in societies, more pointedly economies, outside the United Kingdom where the specific rationale for the uplift may by no means necessarily apply.” The Court of Appeal thus considered the decision to be objectively justified without reference to what they accepted would be the “daunting cost” of extending the up-rate to those in Ms Carson's position. Moreover, the cost implications were “in the context of this case a legitimate factor going in justification for the Secretary of State's position,” because to accept Ms Carson's arguments would be to lead to a judicial interference in the political decision as to the deployment of public funds which was not mandated by the Human Rights Act 1998, the jurisprudence of this Court or by a “legal imperative” which was sufficiently pressing to justify confining and circumscribing the elected Government's macro-economic policies.
32. Ms Carson appealed to the House of Lords, relying on Article 1 of Protocol No. 1 read together with Article 14. Her appeal was dismissed on 26 May 2005 by a majority of four to one (R (Carson and Reynolds) v. Secretary of State for Work and Pensions [2005] UKHL 37).
33. The majority (Lords Nicholls of Birkenhead, Hoffmann, Rodger of Earlsferry and Walker of Gestinghope) accepted that a retirement pension fell within the scope of Article 1 of Protocol No. 1 and that Article 14 was thus applicable. They further assumed that a place of residence was a personal characteristic and amounted to “any other status” within the meaning of Article 14, and was thus a prohibited ground of discrimination. However, because a person could choose where to live, less weighty grounds were required to justify a difference of treatment based on residence than one based on an inherent personal characteristic, such as race or sex.
34. The majority observed that in certain cases it was artificial to treat separately the questions, first, whether an individual complaining of discrimination was in an analogous position to a person treated more favourably and, secondly, whether the difference in treatment was reasonably and objectively justified. In the present case, the applicant was not in an analogous, or comparable position, to a pensioner resident in the United Kingdom or resident in a country with a bilateral agreement with the United Kingdom. The State pension was one element in an interconnected system of taxation and social security benefits, designed to provide a basic standard of living for the inhabitants of the United Kingdom. It was funded partly from the National Insurance Contributions of those currently in employment and their employers, and partly out of general taxation. The pension was not means tested, but pensioners with a high income from other sources paid some of it back to the State in income tax. Those with low incomes might receive other benefits, such as income support. The provision for index-linking was intended to preserve the value of the pension in the light of economic conditions, such as the cost of living and the rate of inflation, within the United Kingdom. Quite different economic conditions applied in other countries: for example, in South Africa, where Ms Carson lived, although there was virtually no social security, the cost of living was much lower, and the value of the rand had dropped in recent years compared to sterling.
35. Lord Hoffmann, who gave one of the majority opinions, put the arguments as follows:
“18. The denial of a social security benefit to Ms Carson on the ground that she lives abroad cannot possibly be equated with discrimination on grounds of race or sex. It is not a denial of respect for her as an individual. She was under no obligation to move to South Africa. She did so voluntarily and no doubt for good reasons. But in doing so, she put herself outside the primary scope and purpose of the UK social security system. Social security benefits are part of an intricate and interlocking system of social welfare which exists to ensure certain minimum standards of living for the people of this country. They are an expression of what has been called social solidarity or fraternité; the duty of any community to help those of its members who are in need. But that duty is generally recognised to be national in character. It does not extend to the inhabitants of foreign countries. That is recognised in treaties such as the ILO Social Security (Minimum Standards) Convention 1952 (article 69) and the European Code of Social Security 1961.
19. Mr Blake QC, who appeared for Ms Carson, accepted the force of this argument. He agreed in reply that she could have no complaint if the United Kingdom had rigorously applied the principle that UK social security is for UK residents and paid no pensions whatever to people who had gone to live abroad. And he makes no complaint about the fact that she is not entitled to other social security benefits like jobseeker's allowance and income support. But he said that it was irrational to recognise that she had an entitlement to a pension by virtue of her contributions to the National Insurance Fund and then not to pay her the same pension as UK residents who had made the same contributions.
20. The one feature upon which Ms Carson seizes as the basis of her claim to equal treatment (but only in respect of a pension) is that she has paid the same national insurance contributions. That is really the long and the short of her case. In my opinion, however, concentration on this single feature is an over-simplification of the comparison. The situation of the beneficiaries of UK social security is, to quote the European Court in Van der Mussele v Belgium (1983) 6 EHRR 163, 180, para. 46, 'characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect'.
21. In effect Ms Carson's argument is that because contributions are a necessary condition for the retirement pension paid to UK residents, they ought to be a sufficient condition. No other matters, like whether one lives in the United Kingdom and participates in the rest of its arrangements for taxation and social security, ought to be taken into account. But that in my opinion is an obvious fallacy. National insurance contributions have no exclusive link to retirement pensions, comparable with contributions to a private pension scheme. In fact the link is a rather tenuous one. National insurance contributions form a source of part of the revenue which pays for all social security benefits and the National Health Service (the rest comes from ordinary taxation). If payment of contributions is a sufficient condition for being entitled to a contributory benefit, Ms Carson should be entitled to all contributory benefits, like maternity benefit and job-seekers allowance. But she does not suggest that she is.
22. The interlocking nature of the system makes it impossible to extract one element for special treatment. The main reason for the provision of state pensions is the recognition that the majority of people of pensionable age will need the money. They are not means-tested, but that is only because means-testing is expensive and discourages take-up of the benefit even by people who need it. So state pensions are paid to everyone whether they have adequate income from other sources or not. On the other hand, they are subject to tax. So the state will recover part of the pension from people who have enough income to pay tax and thereby reduce the net cost of the pension. On the other hand, those people who are entirely destitute would be entitled to income support, a non-contributory benefit. So the net cost of paying a retirement pension to such people takes into account the fact that the pension will be set off against their claim to income support.
23. None of these interlocking features can be applied to a non-resident such as Ms Carson. She pays no United Kingdom income tax, so the state would not be able to recover anything even if she had substantial additional income. (Of course I do not suggest that this is the case; I have no idea what other income she has, but there will be expatriate pensioners who do have other income). Likewise, if she were destitute, there would be no saving in income support. On the contrary, the pension would go to reduce the social security benefits (if any) to which she is entitled in her new country.
State and private pensions
24. It is, I suppose, the words 'insurance' and 'contributions' which suggest an analogy with a private pension scheme. But, from the point of view of the citizens who contribute, national insurance contributions are little different from general taxation which disappears into the communal pot of the consolidated fund. The difference is only a matter of public accounting. And although retirement pensions are presently linked to contributions, there is no particular reason why they should be. In fact (mainly because the present system severely disadvantages women who have spent time in the unremunerated work of caring for a family rather than earning a salary) there are proposals for change. Contributory pensions may be replaced with a non-contributory 'citizen's pension' payable to all inhabitants of this country of pensionable age. But there is no reason why this should mean any change in the collection of national insurance contributions to fund the citizen's pension like all the other non-contributory benefits. On Ms Carson's argument, however, a change to a non-contributory pension would make all the difference. Once the retirement pension was non-contributory, the foundation of her argument that she had 'earned' the right to equal treatment would disappear. But she would have paid exactly the same national insurance contributions while she was working here and her contributions would have had as much (or as little) causal relationship to her pension entitlement as they have today.
25. For these reasons it seems to me that the position of a non-resident is materially and relevantly different from that of a UK resident. I do not think, with all respect to my noble and learned friend, Lord Carswell, that the reasons are subtle and arcane. They are practical and fair. Furthermore, I think that this is very much a case in which Parliament is entitled to decide whether the differences justify a difference in treatment. It cannot be the law that the United Kingdom is prohibited from treating expatriate pensioners generously unless it treats them in precisely the same way as pensioners at home. Once it is accepted that the position of Ms Carson is relevantly different from that of a UK resident and that she therefore cannot claim equality of treatment, the amount (if any) which she receives must be a matter for Parliament. It must be possible to recognise that her past contributions gave her a claim in equity to some pension without having to abandon the reasons why she cannot claim to be treated equally. And in deciding what expatriate pensioners should be paid, Parliament must be entitled to take into account competing claims on public funds. To say that the reason why expatriate pensioners are not paid the annual increases is to save money is true but only in a trivial sense: every decision not to spend more on something is to save money to reduce taxes or spend it on something else.
26. I think it is unfortunate that the argument for the Secretary of State placed such emphasis upon such matters as the variations in rates of inflation in various countries which made it inappropriate to apply the same increase to pensioners resident abroad. It is unnecessary for the Secretary of State to try to justify the sums paid with such nice calculations. It distracts attention from the main argument. Once it is conceded, as Mr Blake accepts, that people resident outside the UK are relevantly different and could be denied any pension at all, Parliament does not have to justify to the courts the reasons why they are paid one sum rather than another. Generosity does not have to have a logical explanation. It is enough for the Secretary of State to say that, all things considered, Parliament considered the present system of payments to be a fair allocation of available resources.
27. The comparison with residents in treaty countries seems to me to fail for similar reasons. Mr Blake was able to point to government statements to the effect that there was no logical scheme in the arrangements with treaty countries. They represented whatever the UK had from time to time been able to negotiate without placing itself at an undue economic disadvantage. But that seems to me an entirely rational basis for differences in treatment. The situation of a UK expatriate pensioner who lives in a country which has been willing to enter into suitable reciprocal social security arrangements is relevantly different from that of a pensioner who lives in a country which has not. The treaty enables the government to improve the social security benefits of UK nationals in the foreign country on terms which it considers to be favourable, or at least not unduly burdensome. It would be very strange if the government was prohibited from entering into such reciprocal arrangements with any country (for example, as it has with the EEA countries) unless it paid the same benefits to all expatriates in every part of the world.”
36. Lord Carswell, dissenting, found that Ms Carson could properly be compared to other contributing pensioners living in the United Kingdom or other countries where their pensions were up-rated. He continued:
“How persons spend their income and where they do so are matters for their own choice. Some may choose to live in a country where the cost of living is low or the exchange rate favourable, a course not uncommon in previous generations, which may or may not carry with it disadvantages, but that is a matter for their personal choice. The common factor for purposes of comparison is that all of the pensioners, in whichever country they may reside, have duly paid the contributions required to qualify for their pensions. If some of them are not paid pensions at the same rate as others, that in my opinion constitutes discrimination for the purposes of Article 14 ...”
Lord Carswell therefore considered that the appeal turned on the question of justification. He accepted that the courts should be slow to intervene in questions of macro-economic policy. He further accepted that, had the Government put forward sufficient reasons of economic or State policy to justify the difference in treatment, he should have been properly ready to yield to its decision-making power in those fields. However, in the present case the difference in treatment was not justified: as the Department of Social Security itself accepted, the reason all pensions were not up-rated was simply to save money, and it was not fair to target the applicant and others in her position.
37. In the United Kingdom, the State pension is a contributory benefit payable from pensionable age to an individual who, for a requisite number of years during his or her “working life”, has paid or been credited with contributions to the National Insurance Fund (see the Social Security Contributions and Benefits Act 1992: “the 1992 Act”). National Insurance Contributions, payable by earners, employers and others under the 1992 Act, together with taxation, provide funds for the payment of a number of benefits, including the state retirement pension, job-seekers' allowance, incapacity benefit, maternity allowance and survivors' benefits. Contributions also part-fund the National Health Service.
38. Section 44(4) of the 1992 Act set the weekly rate of the basic pension at GBP 54.15. In each tax year the Secretary of State is obliged by virtue of section 150 of the Social Security Administration Act 1992 to review the sum specified in section 44(4) of the 1992 Act in order to determine whether it has retained its value “in relation to the general level of prices obtaining in Great Britain” and to lay an up-rating order before Parliament where it appears to him that the general level of prices has risen. The draft order must increase the sum specified in section 44(4) by a percentage which is no less than the increase in general inflation. Provided that Parliament approves the draft order, then by virtue of section 150(9) of the 1992 Act, the basic State pension is up-rated annually in line with United Kingdom inflation.
39. Section 113(1) of the 1992 Act creates a general rule withholding benefits, including pensions, from all expatriates:
“Except where regulations otherwise provide, a person shall be disqualified for receiving [benefits including the State pension] for any period during which the person –
is absent from Great Britain; ...”
40. However, section 113(3) of the 1992 Act provides that the Secretary of State may adopt secondary legislation allowing for a person resident overseas to receive any benefit to which he or she would be entitled if living in the United Kingdom. Regulation 4(1) of the Social Security Benefit (Persons Abroad) Regulations 1975 (SI 1975 No. 563: “the 1975 Regulations”), made under a similar provision in earlier legislation, provides, so far as material:
“Subject to the provisions of this regulation and of regulation 5 below, a person shall not be disqualified for receiving ... a retirement pension of any category ... by reason of being absent from Great Britain.”
41. Regulation 5 of the 1975 Regulations, however, provides that a person not ordinarily resident in Great Britain shall, unless or until he or she becomes resident there again, be disqualified from receiving up-rated benefits.
42. The Regulations applicable at the time that Ms Carson started her claim before the United Kingdom courts were the Social Security Benefits Up-rating Regulations 2001, SI 2001/910 (“the 2001 Regulations”). Regulation 3 of the 2001 Regulations provided for the application of the disqualification to the additional benefit payable by virtue of the Social Security Benefits Up-rating (No 2) Order 2000, SI 2001 No. 207 including the up-rating of the retirement pension introduced by article 4 of the 2001 order with effect from 9 April 2001:
“Regulation 5 of the Social Security Benefit (Persons Abroad) Regulations 1975 (application of disqualification in respect of up-rating of benefit) shall apply to any additional benefit payable by virtue of the Up-rating Order.”
The Regulations were publicised in a series of leaflets produced by the Department of Social Security and routinely sent to United Kingdom residents and former residents who, for example, applied to pay voluntary National Insurance Contributions from abroad.
43. By section 179(1) of the Social Security Administration Act 1992, the Queen is empowered by Order in Council to make provision for modifying or adapting the relevant legislation in its application to cases affected by an agreement with a country outside the United Kingdom which provides for reciprocity in matters relating to payments for purposes similar or comparable to the purposes of the 1992 Act. The purpose of a reciprocal agreement is to provide a reciprocal basis for wider social security cover to workers and their families moving between States Party than is available under national legislation alone. Reciprocal agreements are not entered into solely to allow for payment of annual up-rating increases to recipients of United Kingdom pensions resident abroad. Cover under reciprocal agreements varies. Each results from negotiations between the United Kingdom and the partner State, taking into account the scope for reciprocity between the two social security schemes.
44. Between 1948 and 1992 the United Kingdom entered into bilateral agreements, or reciprocal social security agreements, with a number of foreign States, principally the United States of America, Japan, Mauritius, Turkey, Bermuda, Jamaica and Israel. With one minor exception, the agreements entered into force after 1979 fulfilled earlier commitments given by the United Kingdom Government. Agreements with Australia, New Zealand and Canada, where the majority of British expatriate pensioners live, came into force in 1953, 1956 and 1959 respectively; however they did not require payment of up-rated pensions. The agreement with Australia was terminated by Australia with effect from 1 March 2001, because of the refusal of the United Kingdom Government to pay up-rated pensions to its pensioners living in Australia. Up-rating has never been applied to those living in South Africa, Australia, Canada and New Zealand.
45. The EC Regulations on social security for migrant workers (Regulation (EEC) No 1408/71, as updated) require up-rating of benefits throughout the European Union.
46. The existence of a bilateral agreement is not necessary for the uprate to be paid, as the question is regulated purely by domestic legislation. However, it is the case that up-rating is not applied for nonresident pensioners save where a bilateral agreement is in place.
47. In the Third Report (January 1997) of the House of Commons Social Security Committee (Up-rating of State Retirement Pensions Payable to People Resident Abroad; HC Paper 143), the Committee reported that:
“It is impossible to discern any pattern behind the selection of countries with whom bilateral agreements have been made providing for up-rating.”
On 13 November 2000 the Minister of State (Mr Jeff Rooker) in a statement in the House of Commons (356 HC Official Report (6th Series) col 628) concluded as follows:
“I have already said I am not prepared to defend the logic of the present situation. It is illogical. There is no consistent pattern. It does not matter whether a country is in the Commonwealth or outside it. We have arrangements with some Commonwealth countries and not with others. Indeed, there are differences among Caribbean countries. This is an historical issue and the situation has existed for years. It would cost some £300 million to change the policy for all concerned.”
48. The International Labour Organisation's Social Security (Minimum Standards) Convention, 1952, provides in Article 69:
Article 69
“A benefit to which a person protected would otherwise be entitled in compliance with any of Parts II to X of this Convention may be suspended to such extent as may be prescribed –
(a) as long as the person concerned is absent from the territory of the Member; ...”
49. The above provision is echoed in Article 68 of the European Code of Social Security, 1964, which is one of the basic standard-setting instruments of the Council of Europe in the field of social security:
“A benefit to which a person protected would otherwise be entitled in compliance with any of Parts II to X of this Code may be suspended to such extent as may be prescribed:
as long as the person concerned is absent from the territory of the Contracting Party concerned; ...”
50. Many States impose some restriction on payment of benefits outside their territory. It appears, however, that the United Kingdom is unique in continuing to pay a pension to expatriates while restricting the extent to which expatriates living in certain countries can benefit from index-linking.
51. The applicants have also annexed to their application witness statements from civil servants working for the Australian and Canadian Governments. The former was produced in the context of the domestic proceedings brought by Ms Carson; the latter has been produced in the context of the current application to this Court. The Australian statement is to the effect that: (1) the approach of the United Kingdom Government has a detrimental effect on most of the 220,000 United Kingdom pensioners resident in Australia; (2) the formal view of the Australian Government is that the approach of the United Kingdom does amount to unlawful discrimination; (3) in 2001 Australia terminated its Social Security Agreement with the United Kingdom because of the United Kingdom Government's refusal to provide up-rating of pensions to its nationals residing in Australia; and (4) Australian pensioners resident in the United Kingdom enjoy the same annual indexation of their pensions as those resident in Australia.
52. The Canadian statement is to the effect that: (1) the United Kingdom Government's approach directly affects virtually all the approximately 151,000 British pensioners resident in Canada; (2) indexation is a universal feature of social security systems and the United Kingdom's policy of arbitrarily restricting its application in respect of certain individuals is clearly discriminatory and contrary to acceptable international practice in the realm of public pensions; and (3) the United Kingdom's failure to index pensions into Canada is the reason why no arrangements on benefits or removal of barriers of exportability are contained in the Canada/United Kingdom Social Security Convention.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-5142
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: J.S. AND OTHERS v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicants, a group of Polish nationals, are represented before the Court by Mr Waldemar Gałuszko, a lawyer practising in Szczecin.
s, may be summarised as follows.
1. The first applicant, [J.S.], born in 1931, resides in Szczecin, Poland. On 29 November 1993 he claimed compensation of 84,019,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 1 June 1952 to 27 April 1954 in the formations of forced labour, known as Mining Battalions. The applicant further claimed 2,107.500 (old) PLZ as an equivalent for holiday, which he had not taken during this period, and 18,900,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees of coal mines had been entitled. On 18 April 1995 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time -barred.

2. [A.B.K.], born in 1927, resides in Brzesko Szczecińskie. On 26 July 1993 the applicant claimed compensation of 116,896,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 25 February 1950 to 10 November 1952 in the formations of forced labour known as Construction Battalions. The applicant further claimed 2,810,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 9,450,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 14 June 1994 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.
3. [L.H.], born in 1932, resides in Szczecin. On 1 December 1994 the applicant claimed compensation of 87,672,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 1 April 1953 to 10 May 1955 in the formation of forced labour known as Mining battalions. The applicant further claimed for 2,248,500 (old) PLZ as an equivalent for holiday, which he had not had and 20,160,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 8 September 1995 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

4. [K.P.], born in 1936, resides in Szczecin. On 17 December 1993 the applicant claimed compensation of 56,621,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 26 November 1956 to 15 March 1958 in the formation of forced labour known as Mining battalions. The applicant further claimed for 2,248,000 (old) PLZ as an equivalent for holiday, which he had not had and 13,020,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 1 February 1995 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred. On 10 August 1995 the Warsaw Regional Court dismissed the applicant’s appeal.
5. [J.S.], born in 1930, resides in Szczecin. On 6 October 1994 the applicant claimed compensation of 87,672,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 24 November 1950 to 20 December 1952 in the formations of forced labour known as Construction Battalions. The applicant further claimed 2,248,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 7,560,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 13 March 1995 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.

6. [S.T.], born in 1933, resides in Baranisław. On 5 August 1993 the applicant claimed compensation of 109,590,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 17 October 1953 to 10 July 1955 in the formations of forced labour known as Mining Battalions. The applicant further claimed 2,800,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 25,560,000(old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 21 May 1996 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.
7. [P.P.], born in 1937, resides in Szczecin. On 02 August 1993 the applicant claimed compensation of 54,795,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 17 February 1958 to 21 May 1959 in the formations of forced labour known as Mining Battalions. The applicant further claimed 1,405,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 12,600,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 6 June 1994 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.

8. Franciszek Lempach, born in 1928, resides in Szczecin. On 28 October 1993 the applicant claimed compensation of 138,443,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 3 April 1950 to 10 November 1952 in the formations of forced labour known as Mining Battalions. The applicant further claimed 1,250,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period. On 24 June 1995 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.
9. [J.P.], born in 1930, resides in Szczecin. On 11 February 1994 the applicant claimed compensation of 69,407,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 24 November 1950 to 20 December 1952 in the formations of forced labour known as Mining Battalions. The applicant further claimed 2,248,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 7,560,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 12 July 1994 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.
10. [S.O.], born in 1931, resides in Szczecin. On 26 July 1993 the applicant claimed compensation of 98,631,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 25 November 1954 to 25 January 1957in the formations of forced labour known as Mining Battalions. The applicant further claimed 2,435,340 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 20,160,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 25 August 1994 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

11. [J.S.], born in 1933, resides in Mechowo. On 11 January 1994 the applicant claimed compensation of 94,978,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 23 February 1954 to 27 April 1956 in the formations of forced labour known as Mining Battalions. The applicant further claimed 2,388,500 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 21,420,000 (old) PLZ as an equivalent for inkind payment in coal to which employees had been entitled. On 12 May 1995 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.

12. [T.S.], born in 1935, resides in Szczecin. On 26 July 1993 the applicant claimed compensation of 91,325,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 7 October 1955 to 27 October 1957 in the formations of forced labour known as Mining Battalions. The applicant further claimed for 2,248,500 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 20,160,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 7 October 1993 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

13. [M.S.], born in 1928, resides in Police. On 10 July 1995 the applicant claimed compensation of 21,840 (new) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 4 December 1949 to 7 November 1952 in the formations of forced labour known as Mining Battalions. The applicant further claimed for 552,500 (new) PLZ as an equivalent for holiday, which he had not taken during this period and 4,600 (new) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 16 November 1995 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

14. [W.W.], born in 1928, resides in Drezdenko. On 15 August 1993 the applicant claimed compensation of 91,325,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 25 February 1950 to 11 April 1952 in the formations of forced labour known as Mining Battalions. The applicant further claimed for 2,248,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 20,160,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 23 June 1994 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

15. Ryszard Kuźminski, born in 1935, resides in Szczecin. On 19 July 1994 the applicant claimed compensation of 84,019,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 25 November 1955 to 25 October 1957 in the formations of forced labour known as Mining Battalions. The applicant worked in the coal mine while doing his obligatory military service. The applicant further claimed for 2,107,500 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 18,900,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 5 July 1996 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

16. [S.K.], born in 1929, resides in Lisowo. On 5 October 1993 the applicant claimed compensation of 98,631,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 17 June 1951 to 29 September 1953 in the formation of forced labour known as Mining Battalions. The applicant further claimed for 2,529,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 22,680,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 17 June 1994 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

17. [M.A.], born in 1931, resides in Maszewo. On 9 November 1993 the applicant claimed compensation of 101,188,100 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 26 October 1953 to 21 February 1956 in the formations of forced labour known as Mining Battalions. The applicant further claimed for 2,292,100 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 20,160,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 6 September 1994 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

18. [E.Z.], born in 1937, resides in Wolin. On 26 July 1993 the applicant claimed compensation of 58,448,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 5 November 1957 to 5 February 1959 in the formations of forced labour known as Mining Battalions. The applicant further claimed for 2,240,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 12,600,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 6 September 1994 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.

19. [W.S.], born in 1930, resides in Szczecin. On 20 August 1993 the applicant claimed compensation of 91,325,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 29 November 1950 to 20 December 1952 in the formations of forced labour military service as Construction Battalions. The applicant further claimed for 2,248,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 7,560,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 6 June 1994 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

20. [M.P.], born in 1928 resides in Choszczno. On 14 October 1993 the applicant claimed compensation of 116,800,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 25 February 1950 to 10 November 1952 in the formations of forced labour known as Construction Battalions. The applicant further claimed for 13,030,500 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 10,080,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 14 December 1994 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

21. [E.G.], born in 1927, resides in Szczecin. On 2 December 1993 the applicant claimed compensation of 43,838,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 27 April 1949 to 5 April 1950 in the formations of forced labour known as Mining Battalions. The applicant further claimed for 1,124,000 (old) PLZ as an equivalent for holiday, which he had not taken and 10,080,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 11 June 1996 the Szczecin Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

22. [C.K.], born in 1929, resides in Szczecin. In 1994 the applicant claimed compensation of 50,364,500 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 18 June 1951 to 8 May 1952 in the formations of forced labour know as Mining Battalions. On 17 February 1994 the Warsaw District Court dismissed the applicant’s compensation claim as time-barred.

23. [L.B.], born in 1931, resides in Szczecin. On 24 November 1996 the applicant claimed compensation of 40,185,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 28 January 1955 to 20 December 1955 in the formations of forced labour known as Construction Battalions. The applicant further claimed for 983,500 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 3,465,000 (old) PLZ as an equivalent for in kind payment in coal to which employees had been entitled. On 28 March 1996 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.

24. [F.Z.], born in 1928, resides in Szczecin. On 11 April 1994 the applicant claimed compensation of 127,855,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 5 December 1949 to 4 November 1952 in the forced labour formations known as Mining Battalions. The applicant further claimed for 3,231,500 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 28,980,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 10 November 1994 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.
25. [M.K.], born in 1927, resides in Choszczewo. On 24 June 1996 the applicant claimed compensation of 117,579,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 25 February 1950 to 11 November 1952 in the formations of forced labour known as Mining Battalions. The applicant further claimed for 30,800,000 (old) PLZ as an equivalent for holiday, which he had not taken and 10,395,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 11 August 1994 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.

26. [J.K.], born in1935, resides in Szczecin. On 7 September 1993 the applicant claimed compensation of 84,019,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 25 March 1956 to 18 February 1958 in the formations of forced labour known as Mining Battalions. The applicant further claimed for 2,107,500 (old) PLZ as an equivalent for holiday, which he had not taken and 18,900,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 30 November 1993 the Szczecin Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.
27. [S.K.], born in 1930, resides in Szczecin. On 26 July 1993 the applicant claimed compensation of 76,713,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 27 March 1951 to 20 December 1952 in the formations of forced labour known as Mining Battalions. The applicant further claimed for 1,967,500 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 17,640,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 2 December 1993 the Szczecin Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

28. [J.M.], born in 1936, resides in Szczecin. On 14 September 1993 the applicant claimed compensation of 10,366,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 25 February 1957 to 31 December 1958 in the formation of forced labour known as Mining Battalions. The applicant further claimed for 1,967,500 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 17,640,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 26 May 1994 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.

29. [W.L.], born in 1927, resides in Szczecin. On 26 July 1993 the applicant claimed compensation of 58,448,000 (old) PLZ from the State Treasury for forced labour which he had been doing his compulsory military service from 10 August 1949 to 21 December 1950 in the formation of forced labour known as Mining Battalions. The applicant further claimed for 1,545,500 (old) PLZ as an equivalent for holiday, which he had not taken during this period and 5,040,000 (old) PLZ as an equivalent for in-kind payment in coal to which employees had been entitled. On 16 March 1994 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.

30. [A.W.], born in 1934, resides in Szczecin. On 3 October 1995 the applicant claimed compensation of 11,856 PLZ (new) from the State Treasury for forced labour which he had been doing during his compulsory military service from 16 November 1954 to 28 June 1956 in the formation of forced labour known as Mining Battalions. The applicant worked in the coal mine while doing his obligatory military service. The applicant further claimed for 288 (new) PLZ as an equivalent for holiday, which he had not taken during this period and 2,400,000 as an equivalent for in-kind payment in coal to which employees had been entitled. On 31 January 1996 the Warsaw Regional Court dismissed the applicant’s compensation claim, considering that it was time-barred.

31. [A.B.], born in 1931, resides in Szczecin. On 17 August 1993 the applicant claimed compensation of 100,000,000 (old) PLZ from the State Treasury for forced labour which he had been doing during his compulsory military service from 26 April 1952 to 27 April 1954 in the formation of forced labour known as Mining Battalions. The applicant worked in the coal mine while doing his obligatory military service. The applicant further claimed for 16,800,000 (old) PLZ as an equivalent for holiday, which he had not taken during this period. On 14 December 1993 the Warsaw District Court dismissed the applicant’s compensation claim, considering that it was time-barred.


ITEMID: 001-118594
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2013
DOCNAME: CASE OF DANILO KOVAČIČ v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
JUDGES: Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens
TEXT: 4. The applicant was born in 1940 and lives in Komen.
5. On 15 December 1993 an indictment was lodged against the applicant and three others before the Nova Gorica District Court. He was charged with the criminal offence of abuse of position as the director of the company HIT D.O.O. under section 133 of the Criminal Code.
6. The indictment was served on the applicant on 20 December 1993. All of the accused lodged objections to the indictment.
7. On 25 January 1994 the court rejected the objections.
8. On 19 April 1994 the first hearing was held. The representatives requested the recusal of the judge. The request was rejected.
9. Between 21 April 1994 and 12 July 1994 the court held some seven hearings. Three hearings were interrupted due to health problems of one of the co-accused (Ms A.T.K.). Five hearings scheduled for the second half of May were postponed to the beginning of June.
10. On 12 July 1994 held a hearing and decided that the case against Ms A.T.K. should be tried separately.
11. Between 14 July 1994 and 15 February 1995 the court held some twenty-six hearings, heard several witnesses, dealt with two requests for recusal of judges and adduced evidence.
12. On 15 February 1995 following amendments of the criminal legislation the court held a hearing in a different formation (a panel of five judges instead of three) and commenced the hearing by re-reading the indictment.
13. Between 16 February 1995 and 19 December 1995 the court held some twenty-eight hearings, heard several witnesses and adduced evidence. About ten hearings were postponed due to health problems of the applicant and one of the accused (Mr. D.K.).
14. During the hearing held on 9 January 1996 the applicant informed the court that he had serious heart problems and needed an operation. The court decided to try the applicant’s case in a separate set of proceedings.
15. On 16 April 1997 the Nova Gorica District Court issued a decision joining the proceedings against the applicant and Ms A.T.K.
16. On 6 May 1999 the court decided to join to the proceedings the case involving the co-accused Mr. D.K., whose case had been remitted to the first-instance court after an initial conviction and a subsequent successful appeal.
17. Between 27 May 1999 and 1 September 1999 the court had to appoint ex officio representatives for the accused and had to deal with a motion for recusal of a judge and a motion for transfer of jurisdiction.
18. Between 6 September 1999 and 9 June 2000 the court held about thirty-six hearings. The court heard several witnesses and adduced evidence. The court also had to deal with requests for recusal of judges and in addition the ex-officio representatives resigned and the court had to appoint new ones.
19. On 12 June 2000 the first-instance court issued a judgment finding the applicant guilty as charged. He was sentenced to four years’ imprisonment. The written copy of the judgment was issued on 2 November 2000. The applicant appealed.
20. On 12 June 2002 the Koper Higher Court rejected the appeal and upheld the first-instance judgment. The applicant lodged a request for protection of legality.
21. On 10 February 2005 the Supreme Court upheld the request for protection of legality in part and amended the operative part of the judgment by changing the legal classification and convicting him for the crime of the abuse of authority under section 244 of the Criminal Code. The Supreme Court found that the crimes under section 133 of the old Criminal Code and section 244 of the new Criminal Code constituted legal continuity and as the latter section was more favourable for the applicant the Supreme Court amended the first-instance judgment. His sentence was lowered to three years and eight months of imprisonment. He lodged a constitutional complaint.
22. On 3 February 2006 the applicant was granted pardon by a Decree issued by the President of the Republic of Slovenia. In the Decree it was stated only that the applicant’s sentence of three years and eight months imprisonment was to be reduced to two years’ imprisonment, provided that the applicant did not commit another crime within the following five years.
23. On 28 February 2008 the Constitutional Court rejected his complaint as unsubstantiated.
24. For relevant domestic law see Tomažič v. Slovenia (no. 38350/02,
13 December 2007).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-106267
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: MUSCAT v. MALTA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: The applicant, Mr Joseph Muscat, is a Maltese national who was born in 1983 and lives in Gudja. He was represented before the Court by Dr J. Herrera, a lawyer practising in Valletta.
The facts of the case, as submitted by the applicant, may be summarised as follows.
Following a car accident on 22 October 2007, the applicant was sued by third parties for damages.
According to section 15 (11) of the Arbitration Act (AA) the action was filed with the Arbitration Centre (AC). As the parties did not agree on the choice of arbitrator, an arbitrator was appointed by the AC’s Chairman according to section 20 (2) of the AA (see relevant domestic law). The applicant acknowledged that the two insurance policies covering the traffic accident had not been issued by an insurance company for which the arbitrator nominated acted as a legal adviser when working in private practice. Thus, there was no direct conflict of interest.
At the first sitting the applicant submitted that the law making this type of action subject to arbitration, as opposed to the ordinary courts, breached his Convention rights under Article 6 § 1. At the request of the applicant the proceedings were suspended pending the outcome of constitutional proceedings (see below). After they were resumed in December 2010 the proceedings were again suspended pending the outcome of proceedings before this Court. According to the applicant, had he not requested these suspensions, the State would have argued that he had accepted the jurisdiction of the arbitrator.
On 25 July 2008 the applicant instituted constitutional redress proceedings alleging a breach of Article 6 § 1 on account of the fact that he was forced to submit his case to an arbitrator who did not offer sufficient guarantees of independence and impartiality. He requested the court to stay the proceedings.
By a judgment of 29 May 2009 the Civil Court (First Hall) in its constitutional jurisdiction upheld the applicant’s claim. It considered that the applicant had a legal interest in filing the claim as it was the law itself and not its application in the applicant’s case that infringed his rights. It held that since arbitration was mandatory in certain cases, the tribunal had to be independent and impartial. Having analysed the AA provisions (see relevant domestic law), it considered that an arbitrator was subject to the AC’s decision. The AC’s Chairman had a discretion to decide whether to appoint a person as arbitrator and whether to appoint that person again in a subsequent case. It followed that the appointment of an arbitrator to one or more cases depended on the subjective appreciation of the AC, who was to an extent subject to the control of the Minister. Thus, the arbitrator did not enjoy security of tenure. He or she would be chosen for specific cases and might never be chosen again if disliked. The court further considered that an appeal on points of law could not remedy this defect, since such right of appeal was limited in scope. In consequence, the Arbitration Tribunal did not fulfil the requirement of independence under Article 6 § 1, particularly where, as in the instant case, the parties had not agreed on the choice of arbitrator. The court further held that the system also created justified doubts as to the objective impartiality of the Arbitration Tribunal, having regard to its composition, organisation and the appointment and removal of arbitrators.
On 15 June 2009 the defendants appealed.
By a judgment of 6 September 2010 the Constitutional Court upheld the appeal and reversed the first-instance judgment. Reiterating that the AC must comply with the requirements of impartiality and independence, it held that the criteria for choosing an arbitrator according to section 10 (3) of the AA (see relevant domestic law) were intended to ensure that persons appointed as arbitrators were competent and displayed integrity. In the absence of agreement between the parties, the selection of an independent arbitrator was left to the chairman. While it was true that the chairman was appointed by the Minister and was therefore to a certain extent subject to the Minister’s control, this could not be relevant since in most cases the Government were not a party to the arbitration proceedings. It followed that section 4 (4) of the AA (see relevant domestic law) offered sufficient guarantees. Moreover, the removal of an arbitrator was, like any other decision of the AC, an administrative decision subject to judicial review. However, the removal of an arbitrator from a particular case was usually intended to increase the efficiency and effectiveness of the procedure and could not raise issues as to security of tenure. Lastly, in the applicant’s case there was no actual or realistic threat to the independence of the tribunal. For the reasons stated above, the court also considered that there was no issue of partiality, particularly because the arbitrator was independent of the parties in a case and the law offered sufficient guarantees in this respect. A chairman making an appointment would have to take account of all the relevant considerations beforehand. Indeed, in the present case, it did not appear that the applicant was complaining about the specific choice of arbitrator in his case. Since such proceedings were Article 6 compliant it was not necessary to consider whether an appeal could have remedied the defect alleged.
In so far as relevant, the pertinent provisions of the Arbitration Act, Chapter 387 of the Laws of Malta, read as follows:
Section 4
“(1) There shall be a Board which shall be responsible for the policy and general administration of the affairs and business of the Centre.
(2) The Board shall consist of not less than three and not more than five members, appointed by the President of Malta acting on the advice of the Minister, one of whom shall be designated by the Minister as chairman. The Minister shall also designate another member as deputy chairman and such member shall have all the powers and perform all the functions of the chairman during his absence, or until a new chairman has been appointed following the resignation, termination of appointment, or death of the chairman.
(3) The Minister shall select the members of the Board from among persons who appear to him to be qualified by reason of having had experience of and shown capacity in matters relating to international or domestic arbitration, conciliation and the settlement of disputes, international trade, commerce, industry, investment and maritime affairs.
(4) In the exercise of their functions under this Act all the members of the Board shall exercise their functions in their individual judgment and shall not be subject to the direction or control of any other person or authority.”
Section 6
“(1) Subject to the provisions of sections 4, 7 and 9, the members of the Board shall hold office for a six-year period; a member shall, on ceasing to be a member, be eligible for reappointment:
Provided that the Minister may at any time, on the recommendation of the Commission for the Administration of Justice established under article 101A of the Constitution of Malta, terminate the appointment of a member of the Board if in his opinion, confirmed by the recommendation of the said Commission as aforesaid, such member is unfit to continue in office or has become incapable of properly performing his duties as member of the Board, and the said Commission is hereby vested with the function and power to make a recommendation to the Minister as aforesaid.”
Section 9
“(1) The Centre shall have a registrar, who shall also be the secretary of the Board. In connection with his functions under this Act, the registrar shall have power to administer oaths, including, without prejudice to the generality of the aforesaid, the power to administer oaths of office that may be required to be taken by arbitrators or any other person involved in arbitration proceedings under any rule made under this Act: (...)”
Section 10
“(2) The Centre may, from time to time, draw up panels of arbitrators for domestic arbitration and panels of arbitrators for international commercial arbitration:
Provided however that a person may be included in more than one panel.
(3) Domestic arbitration panels may be appointed on matters related to commerce, insurance, traffic collisions, building construction, the maritime sector and such other fields as the Centre may deem expedient from time to time. The panels shall be composed of persons who in the opinion of the Centre are qualified to carry out the duties and functions of arbitrators in a particular field of expertise.
(6) A person may be removed from any panel by the Centre at any time, and a person may at any time resign by letter addressed to the registrar:
Provided that any such removal or resignation shall not be deemed to include the removal or resignation of that person from any arbitration proceedings in which he may have already been appointed before his removal or resignation.”
Section 20
“(1) If a sole arbitrator is to be appointed, either party may propose to the other the names of one or more persons, one of whom may serve as the sole arbitrator.
(2) If within thirty days after receipt by a party of a proposal made in accordance with subsection (1), the parties have not reached agreement on the choice of a sole arbitrator, the sole arbitrator shall be appointed by the chairman.
(3) The chairman shall, at the request of one of the parties, appoint the sole arbitrator as promptly as possible; his decision shall be final and binding.
(4) In making the appointment, the chairman shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and to the members of the Domestic Arbitration Panels established under section 10(2).”
Section 23
“(1) A person who is approached as a prospective arbitrator shall disclose to those who approach him in connection with his possible appointment any circumstances likely to give rise to justifiable doubts as to his impartiality or independence.
(2) An arbitrator, once appointed or chosen, shall disclose to the parties the circumstances mentioned in the previous subsection unless the parties have already been informed by him of these circumstances.”
Section 24
“(1) Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubt as to the arbitrator’s impartiality or independence.
(2) A party may challenge the arbitrator appointed by him only for reasons of which he becomes aware after the appointment has been made.”
Section 25
“(1) A party who intends to challenge an arbitrator, shall send notice of his challenge within fifteen days after the appointment of the challenged arbitrator has been notified to that party or within fifteen days after the circumstances mentioned in article 23 and 24 became known to that party.
(2) The challenge shall be notified to the registrar, to the other party, to the arbitrator who is challenged and to the other members of the arbitral tribunal. The notification shall be in writing and shall state the reasons for the challenge.
(3) When an arbitrator has been challenged by one party the other party may agree to the challenge. The arbitrator may also, after the challenge, withdraw from his office. In neither case does this imply acceptance of the validity of the grounds for the challenge. In both cases the procedure provided in articles 20 and 21 shall be used in full for the appointment of the substitute arbitrator even if during the process of appointing the challenged arbitrator a party had failed to exercise his right to appoint or to participate in the appointment.”
Section 26
“(1) If the other party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge will be made by the chairman, and his decision shall be final and binding.
(2) When the chairman sustains the challenge, he shall appoint a substitute arbitrator.”
By virtue of section 15 (11) of the Act disputes arising from collisions between vehicles are subject to mandatory arbitration and in such cases the parties shall be deemed to be bound by an arbitration agreement in relation to such disputes.
In so far as relevant the Arbitration Rules, Subsidiary Legislation 387.01, Legal Notice 421 of 2004 as amended in 2005 and 2007, read as follows:
Section 6
“The appointment of an arbitrator shall be accompanied by a confirmation by such arbitrator accepting his appointment together with a declaration by him confirming his independence and impartiality in terms of section 23 of the Act.”
Section 72
“(1) In case of breach of duty by an arbitrator in relation to the management of the arbitration proceedings, the Registrar [of the Centre] may issue orders in writing to the arbitrator who shall be bound to comply as soon as possible with such order.
(2) The Board may request the Registrar to issue any such orders to any arbitrator if, when reviewing progress in any arbitration, the Board notes that any provisions of the Act, these rules or any guidelines are not being observed or that the arbitrator is failing to manage the arbitration process efficiently.
(3) When an arbitrator fails to observe the orders of the Registrar issued in terms of this rule, the Registrar shall report on such circumstances to the Board and the Board shall determine what disciplinary action to take against the arbitrator.
(4) In case of breach of the duty of independence by the arbitrator because of an undisclosed conflict of interest or because of irregular communication or otherwise, with one of the parties or any person on behalf of a party, the Registrar shall make a written report to the Board copied to the arbitrator and to the parties and the Board shall decide what actions are to be taken.
(5) In cases referred to above, the Board shall determine the issue after giving the arbitrator the opportunity of being heard and after considering such other evidence as may be appropriate.
(6) In such cases the Board has the power to take such disciplinary action as it considers appropriate in view of the circumstances. The powers of the Board include:
(a) the issuing of orders in relation to the proceedings;
(b) the removal of the arbitrator from the arbitration;
(c) the removal of the arbitrator from the domestic panel of arbitrators, and
(d) the imposition of a disqualification to act as an arbitrator in Malta for a stated period not exceeding three years.
(7) Action taken in terms of this rule by the Centre shall be without prejudice to any rights of the parties under applicable law.
(8) Nothing in the foregoing rule shall limit the rules applicable to the challenge of arbitrators in the Act.”
By means of Act IX of 2010 a number of amendments to the Arbitration Act were passed by Parliament, improving the guarantees applicable to arbitration. However, the Minister retained the power of introducing such amendments at later stages by means of a legal notice. On the date of the last correspondence with the applicant, namely 14 June 2011, these amendments had not yet come into force.


ITEMID: 001-76545
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SCHUTZENHOFER v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Corneliu Bîrsan;David Thór Björgvinsson
TEXT: 6. The applicant was born in 1952 and lives in Grafenschachen in Austria.
7. On an unspecified date in 1994 the applicant made an agreement for sale with the company C. The applicant, who had already paid to C, afterwards withdrew from the agreement since he had not received the agreed goods.
8. On 18 October 1995 the applicant instituted civil proceedings against C in the Ormož Local Court (Okrajno sodišče v Ormožu) seeking reimbursement of the payment.
On 12 December 1996 the applicant made a request that a date be set for a hearing. On 13 December 1996 the only judge working at the court at that time informed the applicant that the court lacked capacities and that the applicant’s case had not yet been allocated to any judge. The applicant made further three requests for a hearing on 19 March 1998, 22 January and 10 May 1999.
On 14 February 1997 and 27 May 1998 the court held hearings and on 8 June 1998 issued a decision declaring lack of jurisdiction and transferred the case to the Ptuj District Court (Okrožno sodišče na Ptuju).
Between 7 October 1997 and 30 September 2002 the applicant lodged eight preliminary written submissions and/or adduced evidence.
On 11 January 2000, he made a request that a hearing of a witness living in Austria and himself be carried out by an Austrian court – the Oberwart Local Court (Bezirksgericht Oberwart). On 13 April and 19 September 2001 he urged the Ptuj District Court to send a request to the Austrian court.
On 25 October 2001 the applicant filed a request for supervision with the president of the Ptuj District Court because of the delays in the proceedings.
On 27 November 2001 the request was forwarded to the Austrian authorities by the Slovenian Ministry of Justice (Ministrstvo za pravosodje). On 11 April 2002 the Ministry forwarded the minutes of the hearing it had received from Austria to the Ptuj District Court and on 22 April 2002 the applicant was requested to provide a translation of the minutes within 15 days. On 7 June 2002 the applicant submitted the translation, stating that he had received it from the court’s translator only on 28 May 2002.
Of the five hearings held before the Ptuj District Court between 16 September 1999 and 16 October 2002, none was adjourned at the request of the applicant.
At the last hearing the court decided to deliver a written judgment. The judgment, upholding the applicant’s claim, was served on the applicant on 29 October 2002.
On 16 November 2002 the judgment became final.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-67354
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF MARPA ZEELAND B.V. AND METAL WELDING B.V. v. THE NETHERLANDS
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1 with regard to the fairness of the proceedings;Violation of Art. 6-1 with regard to the length of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 8. The applicant companies are limited liability companies established under the law of the Netherlands. They have their registered office in Kwadendamme.
9. At some stage in 1989, officials of the Fiscal Intelligence and Information Service (Fiscale Inlichtingen- en Opsporingsdienst, “FIOD”) instituted an investigation into activities of the applicant companies and their director, Mr Wouterse, as they suspected forgery (valsheid in geschrifte) and tax fraud. On 29 October 1990 the FIOD searched the premises of the applicant companies and seized documents and items belonging to the companies. That same day Mr Wouterse was interviewed. The FIOD’s investigation was concluded on 7 August 1991. The official report of the investigation was completed on 17 August 1991. Twenty-one witnesses were heard during the investigation.
10. In April 1992 the scope for an out-of-court settlement in the cases of the applicant companies and Mr Wouterse was explored. In a letter of 24 April 1992 counsel for the applicant companies and Mr Wouterse asked the Public Prosecutor to allow them a period of three weeks in which to consider the question whether to request a preliminary judicial investigation (gerechtelijk vooronderzoek) so that witnesses could be heard by the FIOD or the investigating judge (rechter-commissaris). On 28 July 1992 the applicant companies and Mr Wouterse requested a preliminary judicial investigation, which was then applied for on 4 August 1992.
11. On 28 October 1992 the investigating judge sent a number of official records of evidence taken from witnesses to counsel for the applicant companies and asked him for the names of any further witnesses. On 10 November 1992 the investigating judge informed counsel that he had heard extensive testimony from a large number of witnesses and that in doing so he had given counsel the benefit of the doubt “with regard to the question of whether hearing these witnesses was necessary to the preliminary judicial investigation”. As to five new witnesses whose names counsel had put forward, he stated that counsel should provide detailed reasons why it was necessary for the purposes of the preliminary judicial investigation to hear them.
12. The preliminary judicial investigation into the applicant companies’ activities was concluded on 9 February 1993.
13. The applicant companies and Mr Wouterse submitted a request to the investigating judge on 16 February 1993 to reopen the preliminary judicial investigation because they still had five witnesses they wished to be heard. The investigating judge rejected this request in a decision of 19 February 1993 on the grounds that the applicant companies and Mr Wouterse had not established that hearing the five witnesses was in the interests of the investigation. The investigating judge also took the view that the defence would not by any reasonable standards be prejudiced if the five witnesses were not heard.
14. On 25 August 1993 the preliminary judicial investigation into the applicant companies was closed. Notice of closure was served on 3 September 1993. On 5 October 1993 notification of further proceedings against the applicant companies was sent to counsel.
15. On 29 December 1993 summonses were served on Mr Wouterse. The cases against the applicant companies and Mr Wouterse were dealt with at the same sitting but were not joined.
16. Following a hearing on 20 January 1994, the Middelburg Regional Court (arrondissementsrechtbank) convicted the applicant companies and Mr Wouterse on 3 February 1994. It imposed fines of 600,000 Netherlands guilders (NLG – 272,000 euros (EUR)) and NLG 1,000,000 (EUR 454,000) respectively on the applicant companies, and sentenced Mr Wouterse to two years’ imprisonment.
17. Both the applicant companies and Mr Wouterse lodged appeals with the Court of Appeal (gerechtshof) of The Hague on 9 February 1994. The Public Prosecutions Department (openbaar ministerie) lodged a cross appeal the next day. A first hearing in all three cases took place on 28 June 1995. Prior to the second hearing, scheduled for 4 December 1995, the Advocate General (advocaat-generaal) to the Court of Appeal initiated negotiations with counsel for the applicant companies and Mr Wouterse aimed at securing the withdrawal of the appeals. In a letter of 2 November 1995, counsel wrote as follows to the Advocate General:
“Mr Wouterse is in principle willing to accept that the judgments of the Middelburg Regional Court in the criminal proceedings against [the applicant companies] become final and conclusive. However, my client is only prepared to withdraw the appeals if the Public Prosecutions Department explicitly abandons the execution of those judgments and if the tax authorities also forgo the implementation of further measures of collection in respect of [the applicant companies] and/or Mr Wouterse personally. As regards the tax proceedings which are currently still pending as well as potential future fiscal and/or civil proceedings, the tax authorities and the Public Prosecutions Department should already at the present time undertake to waive their right to invoke the formal force of law of these judgments and/or their content. ...”
In reply, the Advocate General wrote on 9 November 1995:
“I suggested withdrawing the appeals in the cases of [the applicant companies] for practical reasons since you still have not provided me with any clarification of the structure of the legal entities, and in particular of the fact that there was no natural person with responsibility for them; you promised both of these things at the hearing.
...
Both the Public Prosecutions Department and the tax authorities will, either together or individually, make use of the (content of the) judgments in the widest sense of the word where this appears useful to them. ...”
18. The Public Prosecutions Department withdrew its appeals on 1 December 1995.
19. Just before the hearing of 4 December 1995 was about to start, Mr Wouterse and the Advocate General reached an agreement under the terms of which Mr Wouterse would withdraw his and the applicant companies’ appeals. In a letter to Mr Wouterse, also of 4 December 1995, counsel confirmed that agreement, stating that the appeals would be withdrawn and requests submitted for remission of the sentences (gratie) imposed by the Middelburg Regional Court. Remission, according to counsel in his letter, would be in the form of a reduction in the fines imposed on the applicant companies in the pending tax proceedings, while the sentence imposed on Mr Wouterse would be reduced to one year’s imprisonment, of which six months would be suspended and the remainder converted into a number of hours of community service.
20. According to counsel and Mr Wouterse, the Advocate General had further undertaken that a positive recommendation on the requests for remission of sentence would be issued, both by the Advocate General himself and the Court of Appeal.
21. In its judgments of 4 December 1995, the Court of Appeal noted that the appeals had been withdrawn and that no hearing of the substance of the cases had taken place.
22. Also on 4 December 1995 counsel informed a colleague – counsel for the applicant companies in the tax proceedings – of the withdrawal of the appeals in the criminal proceedings, stating that remission of sentence would be sought in respect of the judgments of the Middelburg Regional Court “which had now become final and conclusive”.
23. Requests for remission of sentence were lodged with the Ministry of Justice on 21 December 1995. The requests were forwarded for advice to the Middelburg Regional Court on 28 December 1995. On 2 February 1996 the Advocate General at the Court of Appeal of The Hague informed the Ministry that he was prepared to advise on the requests.
24. At the request of the Minister of Justice, the Public Prosecutor’s Office at the Middelburg Regional Court advised on the requests for remission of sentence on 5 August 1996. Its recommendation was that the requests of both the applicant companies and Mr Wouterse be dismissed.
25. On 17 September 1996 the Minister of Justice sought information from the Advocate General pursuant to section 12 of the Pardons Act (Gratiewet). On 22 October 1996, referring to probation and psychiatric reports, the Advocate General issued a favourable opinion on Mr Wouterse’s request. As far as the applicant companies were concerned, however, the Advocate General saw no grounds not to collect the fines imposed by the Regional Court in part or in full, in addition to the outstanding tax.
26. On 5 November 1996 the Court of Appeal of The Hague also gave a favourable opinion in respect of Mr Wouterse, but an unfavourable opinion with regard to the applicant companies.
27. On 14 January 1997 the requests for remission of sentence made on behalf of the applicant companies were rejected. The next day, counsel for the applicant companies and Mr Wouterse wrote to the Advocate General, informing him that he could not square those rejections with the undertakings given by the Advocate General. In a letter of reply dated 17 February 1997, the Advocate General denied that he had given such an undertaking as regards the applicant companies.
28. On 29 January 1997 Mr Wouterse again lodged appeals with the Court of Appeal of The Hague against the three judgments of the Regional Court of 3 February 1994. That same day the Public Prosecutor at the Middelburg Regional Court informed Mr Wouterse that he would proceed with the execution of the sentences imposed on the applicant companies by that court, in the light of the fact that the appeals against the judgments had been withdrawn in December 1994 and had thus become final and conclusive.
29. On 20 March 1997 the Minister of Justice requested the Middelburg Regional Court once again to advise on Mr Wouterse’s request for remission of sentence in view of the favourable recommendations from the Advocate General and the Court of Appeal.
30. The Public Prosecution Department gave a favourable opinion on Mr Wouterse’s request on 1 May 1997. The Middelburg Regional Court concurred with the recommendation of the Advocate General and the Court of Appeal on 16 June 1997.
31. Meanwhile, at a hearing before the Court of Appeal on 2 June 1997, the Advocate General recommended that the appeals be declared inadmissible since it was not possible to reinstate an appeal once it had been withdrawn. He stated that although he had suggested to Mr Wouterse that he might wish to withdraw his appeal and lodge a request for remission of sentence, he had never given an undertaking that such a request would be granted, but only that he would make a recommendation to that effect. He had made such a recommendation, but no decision had as yet been taken. In any event, as Mr Wouterse had been legally represented, he could have obtained advice from his counsel on the procedure. The Advocate General further confirmed that he had also suggested that the appeals in the cases against the applicant companies be withdrawn. He had done so because there was no longer any advantage to be gained since the companies were bankrupt.
32. In reply, Mr Wouterse argued that he had erred in his decision to withdraw the appeals and would certainly not have withdrawn them had he known that it was the Minister of Justice who had the final say on the requests for remission of sentence; the undertaking given by the Advocate General had led him to believe that the requests would be granted. Mr Wouterse further stated that the applicant companies were not bankrupt and continued to exist.
33. At a subsequent hearing on 8 August 1997, the Advocate General informed the Court of Appeal that on 19 July 1997 the request for remission of sentence in the case against Mr Wouterse had been granted. Neither Mr Wouterse nor his counsel had previously been informed of that decision. Mr Wouterse subsequently decided to withdraw his appeal.
34. In its judgments of 1 December 1997 in the cases against the applicant companies, the Court of Appeal held as follows:
“The talks between the Advocate General on the one hand and counsel and Wouterse – in his capacity both as the accused in the criminal proceedings against himself and as the representative in the criminal proceedings against the companies – on the other, took place at the initiative of the Advocate General. According to the Advocate General, his aim was to prevent the execution of the custodial sentence imposed on Wouterse by the first-instance court in view of the reports concerning Wouterse drawn up by a psychiatrist and the probation services. The Advocate General had further assumed that the companies would be unable to make any redress.
The Court of Appeal considers it likely that Wouterse ... was taken by surprise by this course of events and was under the impression that he would be able to rely on a favourable outcome if he withdrew the appeals.
In the opinion of the court, it is incomprehensible that the Advocate General should have advised as he did ... Both Wouterse and the companies ... had an interest in the appeals. In addition, it is difficult to see why the court, in its determination of the criminal charges against Wouterse, might not have been expected to have regard to the reports concerning his mental welfare, as the Advocate General had done and in accordance with his advice.
The solution favoured by the Advocate General on the other hand, that is to say a request for remission of sentence supported by him, was by no means certain to succeed. After all, the withdrawal of the appeal meant that it was firstly for the Public Prosecutor and the Regional Court to advise on the request for remission of sentence and their advice was apparently not to grant the request. It is true that it appears from the documents in the file that the Advocate General nevertheless attempted to find acceptance for his advice within the Ministry of Justice and that a decision in favour of Wouterse – in the shape of community service – was eventually made, but this decision was a long time coming and was preceded by a rejection of the companies’ requests for remission.
Due to the fact that a decision on his request for remission remained outstanding and in view of the rejection of the requests of the applicant companies, Wouterse again lodged an appeal in all three cases, partly also because the Public Prosecutor appears to be planning to proceed with the execution of the fines imposed in the criminal proceedings against the companies.
Wouterse fears that this execution may affect himself and/or his spouse personally. ... In view of the above, the court is of the opinion that Wouterse was persuaded to withdraw the appeal on improper grounds (op oneigenlijke gronden) ... by the Advocate General, that this has prejudiced the accused’s reasonable interests in this case and that, accordingly, the newly lodged appeal should be considered as a prolongation of the original appeal.”
The Court of Appeal then proceeded to find that a reasonable time within the meaning of Article 6 § 1 of the Convention had been exceeded and disallowed the prosecution of the cases against the applicant companies.
35. The Advocate General filed appeals on points of law (beroep in cassatie) with the Supreme Court (Hoge Raad). On 22 September 1998 the Supreme Court upheld the appeals. It ruled that, in view of the closed system of legal remedies, the Court of Appeal’s judgments of 4 December 1995 had become final and conclusive (onherroepelijk) since the legal remedy available against those judgments – an appeal on points of law – had not been exercised within the fourteen-day period allowed by statute. Given that the Court of Appeal had established in those judgments that the appeals against the decisions of the Regional Court had been withdrawn, the accused’s newly lodged appeals could not be declared admissible.
36. The Netherlands system of legal remedies against judgments in criminal proceedings is a closed one in the sense that the Code of Criminal Procedure (Wetboek van Strafvordering –“CCP”) lays down when a legal remedy is available and of what it consists. The general rule is that an appeal lies to the Courts of Appeal from final judgments given at first instance and an appeal on points of law to the Supreme Court from a final judgment given on appeal.
37. Pursuant to Article 408 of the CCP, appeal proceedings must be instituted within fourteen days of the final judgment. Appeals on points of law must also be lodged within fourteen days of the final judgment (Article 432 of the CCP).
38. Remission of sentence may be granted by royal decree (Koninklijk Besluit) – that is a decree signed by the Monarch and the Minister responsible – pursuant to Article 122 § 1 of the Netherlands Constitution (Grondwet).
39. For the purposes of the present case, a request for remission may be lodged in respect of a sentence imposed by a judgment that has become final and conclusive (Article 558 of the CCP). Before a decision is taken, the request is sent for advice to the court which imposed the sentence, as well as to the Public Prosecution Department (Articles 3 and 5 of the Pardons Act). Additional information may also be obtained (Article 12 of the Pardons Act).
40. Having considered the court’s recommendations and the Minister of Justice’s report, the Monarch decides the request.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1