ITEMID: 001-86746
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: HEIDECKER-TIEMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Eckart Klein;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Volodymyr Butkevych
TEXT: The applicant, Mr Colin Christoph Heidecker, is a German national who was born in 1986 in Edinburgh and lives in Hamburg. In his everyday life the applicant uses the compound name Heidecker-Tiemann. The application was originally filed by his parents, Mrs Gisela Heidecker and Mr Axel Tiemann. Having reached legal age, the applicant informed the Court in March 2004 that he wished to pursue the application himself. He is represented by his father, Mr A. Tiemann.
The German Government (“the Government”) are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
According to the initial regulation of Article 1616 of the German Civil Code (Bürgerliches Gesetzbuch) of 18 August 1896, a child born in wedlock would obtain the surname of the father, which was also the common family name. With the introduction of the Act on the Reform of the Marital and Family Law (Erstes Gesetz zur Reform des Ehe- und Familienrechts) of 14 June 1976, a married couple could choose any of the spouses’ surnames as the family name. Their children would then obtain the same family name. If the parents were unable to choose a family name, the husband’s name would automatically become the family name according to the then applicable version of Article 1355 § 2 of the German Civil Code. That provision was held to be unconstitutional and incompatible with the prohibition of discrimination (Article 3 § 2 of the Basic Law) by the Federal Constitutional Court on 5 March 1991. The Federal Constitutional Court ordered that, until the legislator had formulated a new regulation, couples who married after the day of the delivery of the judgment and who were unable to agree on the choice of a common family name would provisionally keep their surnames. In such an instance, their children were provisionally able to obtain a compound name composed of both surnames of the parents, in order to leave to the legislator the option to introduce the possibility to obtain such names.
On 1 April 1994, the Act on the Regulation of the Law of Family Names (Gesetz zur Neuordnung des Familiennamensrechts) came into force which corrected the above constitutional flaws. Article 1355 of the Civil Code was amended by giving both spouses the possibility to keep their surnames. According to the henceforth relevant Article 1616 § 2 (replaced in 1997 by 1617 § 1) of the Civil Code, a child would either obtain the surname of the father or the mother. A compound name for the child was not provided for by the new Act.
The applicant’s parents married in 1984. While the applicant’s father kept his surname, “Tiemann”, the applicant’s mother adopted the compound name “Heidecker-Tiemann”. The applicant was born in 1986 in Edinburgh where he was subsequently registered by the Registry Office as “Colin Christoph Heidecker-Tiemann”, bearing a surname composed of both his parents’ original surnames (“Heidecker” and “Tiemann”). The applicant was registered under the surname “Tiemann” in the Family Register (Familienbuch) at the Registry Office of Neubrandenburg, where the family resided at the time. The applicant’s birth was not registered within the meaning of the Register of Births, Deaths and Marriages Act (Personenstandsgesetz).
After the Act on the Regulation of the Law of Family Names entered into force on 1 April 1994, the applicant’s mother changed her surname back to her original maiden name (“Heidecker”) in May 1994. Subsequently, the applicant’s parents declared before the Neubrandenburg Registry Office that the applicant’s surname should be “Heidecker-Tiemann”. When the Registry officer refused the registration because compound names were not permitted by the Civil Code, the parents opted for the registration of the name “Heidecker” and instituted proceedings in order to be able to register a compound name.
On 28 March 1995, the Neubrandenburg District Court dismissed the parents’ claim and found that the Registry Office was not compelled to authenticate (öffentliche Beglaubigung) the applicant’s parents’ declaration and register the applicant with a compound name.
The appeal was dismissed by the Neubrandenburg Regional Court on 26 February 1996. The court found that the claimants had not demanded the authentication and the certification of their declaration, but the registration of the requested surname of the applicant.
Upon the applicant’s immediate appeal, that decision was quashed by the Rostock Court of Appeal on 22 August 1996. The latter ordered the Neubrandenburg Registry Office to authenticate the declaration of the applicant’s parents. It also found that the Neubrandenburg Registry Office was not competent to register the applicant’s surname. As the applicant had been born abroad, the competent authority was the Berlin Registry Office. The application had been given the file number “III 16/94” by the Neubrandenburg District Court, which was subsequently quoted by the Neubrandenburg Regional Court and the Rostock Court of Appeal.
On 17 January 1997, the Neubrandenburg Registry Office authenticated the declaration of the applicant’s parents (that is, that the applicant’s last name should be “Heidecker-Tiemann”) of 10 May 1994 and forwarded a verified copy to the Berlin Registry Office which received it on 20 January 1997. The Berlin Registry Office did however not receive the original.
On 4 February 1997, the Berlin Registry Office refused to certify the validity of the declaration. It found that the application was ill-founded for formal reasons, because section 7(1) of the Act on the Regulation of the Law of Family Names provided that a declaration had to be issued within one month after one parent changed his or her last name. Thus, the time-limit had already expired with the receipt of the declaration in January 1997.
On 4 December 1997, the Schöneberg District Court dismissed the motion of the applicant’s parents to register the applicant under a compound name. The court found that, irrespective of formal requirements, the applicable law did not provide for the possibility to obtain compound names.
The parents’ appeal was dismissed by the Berlin Regional Court on 2 July 1998.
On 17 August 1999, the Berlin Court of Appeal (Kammergericht) dismissed the parents’ further appeal (weitere Beschwerde). The application had been given the file number “70 III 257/97” by the Schöneberg District Court, which was subsequently quoted by the Berlin Regional Court and the Berlin Court of Appeal.
On 19 June 2000, the Federal Constitutional Court refused to admit the applicant and his parents’ constitutional complaint against the above decisions because the complaint was inadmissible.
The applicant’s parents subsequently obtained a required permit of their declaration of 10 May 1994 by the guardianship court (vormundschaftliche Genehmigung) by order of the Neubrandenburg District Court of 29 September 1999. The original copy of the declaration was subsequently sent to the Berlin Registry Office on 7 February 2000.
On 11 February 2000, the Berlin Registry Office issued a statement to the applicant to the effect that he was registered under the last name “Heidecker” as from 19 May 1994. The applicant’s parents argued that the above-mentioned permit would satisfy the procedural requirements for the registration of the applicant’s surname as “Heidecker-Tiemann”. The Registry Office however refused to register the compound name.
On 12 July 2000, the Schöneberg District Court dismissed the applicant and his parents’ motion against the refusal because the applicable law did not provide for compound names and did not violate fundamental rights. The court found it therefore unnecessary to rule whether or not the certified declaration of 10 May 1994 was introduced out of time.
On 20 October 2000, the Berlin Regional Court dismissed the applicant and his parents’ appeal. On 19 June 2001, their further appeal was dismissed by the Berlin Court of Appeal (Kammergericht). The application had been given the file number “70 III 98/00” by the Schöneberg District Court, which was subsequently quoted by the Berlin Regional Court and the Berlin Court of Appeal.
On 21 February 2002, the Federal Constitutional Court refused to admit the applicant and his parents’ constitutional complaint against the decision by the Berlin Court of Appeal (Kammergericht) of 19 June 2001 by referring to a leading judgment of 30 January 2002 (see “Relevant domestic law and practice” below) in which the constitutionality of Article 1617 of the Civil Code had been confirmed.
Article 1355 of the Civil Code provides:
“§ 1 Spouses should designate a common family name (marital name). The spouses shall use the marital name which they have designated. If the spouses do not designate a family name, they will continue to bear those surnames after the marriage which they bore at the time when entering into the marriage.
§ 2 By declaration to the registrar, the spouses may designate, as their marital name, the birth name of the husband or the wife or the name he or she has at the time of the designation of the marital name. (...)
§ 4 A spouse whose name does not become the marital name may, by declaration to the registrar, attach, before or after the marital name, his or her birth name or the name he or she has at the time of the declaration on the designation of the marital name. This shall not apply if the marital name consists of more than one name. If the name of one of the spouses consists of more than one name, only one of these names may be attached. (...)”
Article 1617 of the Civil Code provides:
“§ 1 If the parents do not have a marital name but if they have joint parental responsibility, they shall, by declaration to the registrar, designate the surname that the father or the mother has at the time of the declaration as the birth name of the child. (...)
§ 2 If parents make no designation within one month of the birth of the child, the family court shall transfer the right of designation to one of the parents. Subsection (1) applies mutatis mutandis. The court may impose a time-limit on the parent for the exercise of the right of designation. If, after the time-limit has expired, the right of designation had not been exercised, the child shall be given the name of the parent to whom the right of designation was transferred.”
Under German law, authentic compound names are permitted only in very specific circumstances. For example, compound names may be retained if they were used prior to State regulation of the law governing names. Moreover, pursuant to the Act on Change of Family Names and Forenames, compound names may come into being when persons with surnames which are highly common in Germany such as “Schmidt” or “Müller” (so-called Sammelnamen) add another name to render their family name easier to distinguish. Compound names created in this way may be passed on to children.
Under Section 10 § 1 of the Law Introducing the Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch), a person’s name falls to be decided by the law of the State of his or her nationality.
In a leading judgment of 30 January 2002, the Federal Constitutional Court held, by six votes to two, the former version of Article 1616 § 2 of the German Civil Code (which is identical to Article 1617 § 1 of the current version of the Civil Code) to be constitutional. In particular, the Federal Constitutional Court found that the provision neither constituted a violation of the right to a family (Article 6 § 1 of the Basic Law), the right to educate one’s own children (Article 6 § 2 of the Basic Law) nor the children’s right to protection of their personality rights as guaranteed by Articles 2 § 1 and 1 § 1 of the Basic Law.
The Federal Constitutional Court considered that, once children would be allowed to obtain compound names, the number of surnames could exponentiate with each future generation. The next generation would already be able to obtain a last name comprised of four names. Such growing “chains of surnames” would not only be impracticable, they would also be to the detriment of future generations whose last names would be at risk of losing their function as a means of identification. The Basic Law would not prohibit the legislator from reducing the number of possible last names to avoid such “name chains” in order to secure the function of the surnames of future generations.
The Federal Constitutional Court considered that a different way of avoiding “name chains” would have been to allow compound names, but to restrict the number of last names to two. This method, however, would prevent parents who already bore a compound name from giving their children a compound name comprised of both parents’ last names, or obtaining such a last name themselves. A person with a compound name could no longer keep his or her last name after marriage and add the last name of his or her partner, as currently provided for by Article 1355 of the Civil Code. Therefore, the introduction of an option to let one’s children obtain compound names would at the same time reduce the choice of last names for those who already bore a compound name. Such a situation, in which one fundamental right restricted another, would consequently require a balancing of interests, which the legislator had done when introducing the former version of Article 1616 § 2 of the German Civil Code (now Article 1617 § 1). The Federal Constitutional Court stated that the legislator had had several options to balance the above interests. The option which the legislator chose was thereby neither required nor prohibited by the Basic Law.
Lastly, the Federal Constitutional Court found that the former version of Article 1616 § 2 of the German Civil Code did not violate the prohibition of discrimination on grounds of sex as guaranteed in Article 3 § 2 of the Basic Law. If each spouse kept his or her last name after marriage, married couples could choose one of their last names as the surname for their children. Article 1616 § 2 of the German Civil Code reduced the possible options to give their children a last name, but this concerned spouses of both sexes alike. The fact that married couples with different last names were in practice more likely to choose the husband’s last name for their children was not considered to suggest a different finding. Even though this could possibly indicate a widespread affirmation of traditional marriage patterns, Article 3 § 2 of the Basic Law could not be interpreted as containing a positive obligation on the State to introduce the parents’ right to choose a compound name for their children. In any case, such a regulation had only minor effects on the State’s positive obligation to secure equality of the sexes as contained in the second sentence of Article 3 § 2 of the Basic Law.
That children could still obtain a compound name in cases in which one parent already bore a compound name was not regarded as a violation of the prohibition of discrimination against those children who could not obtain a compound name. In both instances, children were only allowed to obtain either the last name of the mother or the father.
In the case of Standesamt Stadt Niebüll v. Stefan Grunkin, Dorothee Regina Paul (C-96/04; Official Journal of the European Union of 17 June 2006), the Niebüll District Court made a reference for a preliminary ruling under Article 234 EC Treaty regarding the interpretation of section 10(1) of the Law Introducing the Civil Code (“EGBGB”, see “Relevant domestic law and practice” above) in the light of Article 12 EC Treaty (prohibition of discrimination on grounds of nationality) and Article 18 EC Treaty (freedom of movement). That case concerned a married couple of German origin who had kept their surnames and whose son (who also had German citizenship) was born in Denmark, where he was subsequently registered with a compound name composed of the surnames of his parents in the Danish birth register. The German authorities refused to recognise the compound name because of section 10(1) of the Law Introducing the Civil Code, according to which a person’s name falls to be decided by the law of the State of his or her nationality. Under German law, the son was not entitled to bear a compound name composed of the surnames of his parents. The parents’ appeal against that decision and their subsequent constitutional complaint with the Federal Constitutional Court were to no avail.
When the parents, who in the meantime divorced, refused to make a declaration before the Registry Officer regarding the surname of their child, the Niebüll District Court had to refer the right to determination to one parent pursuant to Article 1617 §§ 2 and 3 of the Civil Code. The District Court subsequently referred the matter to the European Court of Justice pursuant to Article 234 EC Treaty with the following question: “In light of the prohibition on discrimination set out in Article 12 EC and having regard to the right to the freedom of movement for every citizen of the Union laid down in Article 18 EC, is the provision on the conflict of laws contained in Article 10 of the EGBGB valid, in so far as it provides that the right to bear a name is governed by nationality alone?”. The European Court of Justice (First Chamber) decided on 27 April 2006 that it had no jurisdiction to answer the question referred by the District Court because the latter, when making a decision pursuant to Article 1617 §§ 2 and 3 of the Civil Code, exercised administrative authority, without at the same time being called on to decide a dispute. Therefore, the District Court could not be regarded as exercising judicial function.
On 30 April 2006 the parents lodged a fresh request to register the compound surname. Following the Registry Officer’s refusal to grant the request, the parents lodged a complaint with the Flensburg District Court which referred the matter with the same question to the European Court of Justice. The case is currently pending before the latter court (C-353/06).


ITEMID: 001-121143
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: POA AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney
TEXT: 1. The first applicant is the Professional Trades Union for Prison, Correctional and Secure Psychiatric Workers (“the POA”), a listed and certified trade union in the United Kingdom. The other applicants are British nationals: Ms Jacqueline Bates, born in 1960, and Mr Adrian Watts, born in 1965. They are both resident in the United Kingdom and are employed as prison officers, Ms Bates in a State-run prison and Mr Watts in a prison that was transferred to private-sector management in 2011. They are members of the POA. Ms Bates indicated she is the chair of the union branch in her establishment, and Mr Watts indicated that he is secretary to the union branch in his place of employment.
2. The applicants were represented by Ms V. Phillips of Thompsons Solicitors, a law firm in London, and advised by Mr J. Hendy QC and Professor S. Fredman QC, lawyers practising in London. The United Kingdom Government (“the Government”) were represented by their Agents, Ms A. Sornarajah and Ms R. Tomlinson of the Foreign and Commonwealth Office.
3. A joint submission was received from the European Trades Union Confederation (ETUC) and the Trades Union Congress (TUC), which had both been given leave by the President to intervene as third parties in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. In 1993 it was established that prison officers were forbidden by law to take industrial action. The issue arose in the context of injunction proceedings taken against the POA to prevent it organising industrial action (Home Office v. Evans, 19 May 1993, unreported). The High Court (May J) ruled that since prison officers were vested with the “powers or privileges of a constable” (Prisons Act, 1952, section 8), they were for this reason expressly excluded from the terms “employees” and “workers” within the meaning of the statutory provisions governing lawful industrial action (Trade Union and Labour Relations (Consolidation) Act, 1992, sections 219 and 280). The following year, legislation was introduced to restore to prison officers the status of workers for the purpose of employment law, while maintaining the ban on industrial action (Criminal Justice and Public Order Act, 1994, sections 126 and 127). The parties expressed contrasting views on these developments. For the applicants, the Evans ruling was “an unintended legal anomaly”, and section 127 of the 1994 Act “a sudden change of long-standing policy by fixing in legislation what was a surprising and unheralded court decision”. The Government rejected that view, stating that it was the intention of Parliament to give a clear statutory basis to the ban on industrial action by prison officers, rendered necessary by the willingness of the POA to take such action.
6. Industrial relations in the prison service are conducted in various formats and in accordance with a variety of procedures. As in other parts of the public sector in the United Kingdom, there are in the prison service what are known as "Whitley Councils", at both local and national level. These are joint bodies, made up of representatives of management and staff, whose purpose is to facilitate co-operation. Acting principally as forums for consultation and dialogue, they do not encompass binding dispute settlement mechanisms. For this reason, the applicants considered that the dialogue that takes place within the Whitley Councils is not true collective bargaining. They held the same view in relation to the establishment-level disputes procedure (Prison Service Order No. 8525), which details the procedure to be followed in such situations but does not lead to a resolution binding on management.
7. There have been successive industrial relations-agreements within the prison sector. In 2001, the POA and the prison service entered into the Industrial Relations Procedure Agreement (“IRPA”). The IRPA, which did not apply to the issue of remuneration, included a legally binding prohibition on strike action. The applicants described the IRPA as “asymmetric” in this regard, as there was no equivalent binding obligation on the part of the State. There were disagreements between the two sides over the precise scope of application of the IRPA. On 27 January 2004 the POA served notice of their intention to withdraw from the IRPA, which terminated one year later.
8. A new agreement, the Joint Industrial Relations Procedure Agreement (“JIRPA”), was reached in November 2004. It too contained an undertaking by the POA not to take industrial action. The JIRPA, which did not apply to remuneration, took effect in January 2005. At the same time, the statutory prohibition on industrial action was disapplied. Formal assurances were given to Parliament that it would be reactivated in the event of the JIRPA being terminated. According to the applicants, there was again repeated disagreement between the two sides as to the scope of the JIRPA, leading the POA to give notice of termination in May 2007, effective one year later. The Government stated that on the whole the JIRPA operated successfully, as shown by the number of new policies introduced within the prison service and the number of changed policies, which were adopted without dispute. They added that, notwithstanding the undertaking given, the POA threatened industrial action in 2004, 2005 and 2006. A special delegates’ conference of the POA voted in February 2008 not to accept any further agreement that included a no-strike undertaking. With the termination of the JIRPA on 8 May 2008, the statutory prohibition on industrial action was brought back into force. A new provision was added to the 1994 Act empowering the Secretary of State to suspend and revive the prohibition (section 127A).
9. A new agreement within the prison service took effect in February 2011, the National Disputes Resolution Procedure for Changes for Specified Terms and Conditions (“the NDRP”) and is currently in force. It provides for binding arbitration, but, like previous agreements, does not apply to pay. The situation in Scotland is different. There the Voluntary Industrial Relations Agreement for the Scottish prison service provides that, in the absence of agreement, pay disputes are to be resolved by binding independent arbitration.
10. The issue of remuneration of prison officers employed in State-run prisons in England, Wales and Northern Ireland comes within the remit of the Prison Services Pay Review Body (“PSPRB”), created in April 2001. For private-sector prison establishments, remuneration and other employment matters are agreed contractually.
11. Composed of independent members, the function of the PSPRB is to make recommendations each year on prison-officer pay to the Secretary of State for Justice. At the outset of each exercise, the Secretary of State may give directions, in the form of a “remit letter”, to the PSPRB setting out the considerations to which they are to have regard (Regulation 4, Prison Service (Pay Review Body) Regulations 2001). This power has been used repeatedly. In addition, the Chair of the PSPRB meets with the Chancellor of the Exchequer or the Chief Secretary of the Treasury prior to the start of each review exercise to discuss the general economic context. Trade union involvement in the process takes the form of submitting evidence and making representations to the PSPRB (Regulation 5). The PSPRB’s recommendations are not binding on the Secretary of State, who may accept them, or “make such other determination ... as he thinks fit” (Regulation 8, Prison Service (Pay Review Body) Regulations 2001).
12. On 20 August 2004 the POA brought a complaint before the Committee on Freedom of Association of the International Labour Organisation alleging that the statutory prohibition of industrial action by prison officers constituted a breach of the right to strike under ILO Convention No. 87. The Committee’s conclusions on the case are set out below (at paragraphs 19 and following).
13. The applicants stated that industrial action, including strike action, occurred from time to time in the prison service before 1993. They provided examples of strikes at local level and, at national level, of other forms of industrial action in the 1970s and 1980s. On 29 August 2009 the POA organised, for the first time, a national strike by prison officers, in protest against the Government’s decision to stage that year’s pay rise. According to the Government, notice of the strike was given by telephone less than an hour before the strike commenced at 7 a.m. Government lawyers obtained an injunction against the POA by 1 p.m. that day. Prison officers returned to work that evening, about 12 hours after the strike began. The strike disrupted the normal operation of the prison service, and in one institute for young offenders the absence of prison officers led to serious disorder that lasted for three days and caused extensive material damage. The applicants countered that the day had passed without incident in over 130 other prison establishments affected by the strike. As for the establishment referred to by the Government, an official report into the incident had noted that the rationale for the violence was complex, the strike by prison officers being just one contributing factor, amplified by negative reporting on television. The report had considered that the indiscipline was spontaneous, and so could not have been foreseen or avoided.
14. The Government maintained that the POA was intent on withholding its members’ services as part of a general public service strike on 30 November 2011, and that it had sought to rely on health and safety concerns which the Government described as spurious. The situation was ultimately resolved the day before under threat of legal action. The applicants rejected the Government’s account, asserting the validity of their concerns at the time, given that other categories of prison staff would be on strike, as well as fire services and ambulance crew. On the day of the strike, POA members had merely held lunchtime meetings, with management permission, so as to demonstrate their support for the aims of the strike. Another public-sector strike took place on 10 May 2012. According to the Government, the POA indicated beforehand that its members would just attend lunchtime meetings. Despite this, POA members stayed away from work for several hours in over sixty establishments, necessitating the intervention of prison service lawyers. The applicants denied that the actions of POA members on that day amounted to industrial action. They noted that while here had been correspondence from prison-service lawyers, no proceedings had been issued and that the POA leadership had ordered its members to resume work at lunchtime. The action taken that day had not led to any danger to persons or property.
15. The Prisons Act 1952 provides at section 8:
“Every prison officer while acting as such shall have all the powers, authority, protection and privileges of a constable.”
16. The relevant provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 read as follows:
“219.— Protection from certain tort liabilities.
(1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—
(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or
(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.
(2) An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort.
...
244.— Meaning of ‘trade dispute’ in Part V.
(1) In this Part a ‘trade dispute’ means a dispute between workers and their employer which relates wholly or mainly to one or more of the following—
...
280.— Police service.
(1) In this Act ‘employee’ or ‘worker’ does not include a person in police service; and the provisions of sections 137 and 138 (rights in relation to trade union membership: access to employment) do not apply in relation to police service.
(2) ‘Police service’ means service as a member of any constabulary maintained by virtue of an enactment, or in any other capacity by virtue of which a person has the powers or privileges of a constable.”
17. The Criminal Justice and Public Order Act 1994 provides as relevant:
“127.— Inducements to withhold services or to indiscipline.
(1) A person contravenes this subsection if he induces a prison officer—
(a) to take (or continue to take) any industrial action;
(b) to commit a breach of discipline.
(1A) In subsection (1) ‘industrial action’ means—
(a) the withholding of services as a prison officer; or
(b) any action that would be likely to put at risk the safety of any person (whether a prisoner, a person working at or visiting a prison, a person working with prisoners or a member of the public).
(2) The obligation not to contravene subsection (1) above shall be a duty owed to the Secretary of State or, in Scotland, to the Scottish Ministers or, in Northern Ireland, to the Department of Justice .
(3) Without prejudice to the right of the Secretary of State or, in Scotland, to the Scottish Ministers or, in Northern Ireland, of the Department of Justice, by virtue of the preceding provisions of this section, to bring civil proceedings in respect of any apprehended contravention of subsection (1) above, any breach of the duty mentioned in subsection (2) above which causes the Secretary of State or, in Scotland, to the Scottish Ministers or, in Northern Ireland, the Department of Justice to sustain loss or damage shall be actionable, at his suit or instance, against the person in breach.
(4) In this section ‘prison officer’ means any individual who—
(a) holds any post, otherwise than as a chaplain or assistant chaplain or as a medical officer, to which he has been appointed ... under section 2(2) of the Prison Act (Northern Ireland) 1953 (appointment of prison staff), or
(aa) holds any post, other than as a chaplain or assistant chaplain, to which he has been appointed for the purposes of section 7 of the Prison Act 1952 (appointment of prison staff),
(c) is a custody officer within the meaning of Part I of this Act or a prisoner custody officer, within the meaning of Part IV of the Criminal Justice Act 1991 or Chapter II or III of this Part.
(5) The reference in subsection (1) above to a breach of discipline by a prison officer is a reference to a failure by a prison officer to perform any duty imposed on him by the prison rules or any code of discipline having effect under those rules or any other contravention by a prison officer of those rules or any such code.
(6) In subsection (5) above ‘the prison rules’ means any rules for the time being in force under section 47 of the Prison Act 1952, section 39 of the Prisons (Scotland) Act 1989 or section 13 of the Prison Act (Northern Ireland) 1953 (prison rules).
...”
18. The Prison Service (Pay Review Body) Regulations 2001, which entered into force on 17 April 2001, provide as relevant:
“Establishment of the Pay Review Body
2. The Prime Minister shall appoint a Pay Review Body to examine and report on such matters relating to the rates of pay and allowances to be applied to the prison service in England and Wales, and Northern Ireland, as may from time to time be referred to them by the Secretary of State.
...
Directions
4. With respect to matters referred to the Pay Review Board by him, the Secretary of State may give directions to the Pay Review Body as to the considerations to which they are to have regard and as to the time within which they are to report; and any such directions may be varied or revoked by further directions under these Regulations.
Notice
5. Where a matter has been referred to the Pay Review Body, they shall give notice of the matter and of any relevant direction to such organisations appearing to them to be representative of persons working in the prison service in England and Wales, and Northern Ireland, and shall afford every such organisation a reasonable opportunity of submitting evidence and representations on the issues arising,
Report
6. Where a matter has been referred to the Pay Review Body, their report shall contain their recommendations on that matter and such other advice relating to that matter as they think fit.
...
Determination of rates of pay and allowances
8. Where, following the reference of any matter to them the Pay Review Body have made a report, the Secretary of State may determine the rates of pay and allowances to be applied to the prison service in England and Wales, and Northern Ireland, in accordance with the recommendations of the Pay Review Body, or make such other determination with respect to the matters in that report as he thinks fit.”
19. As noted above (see paragraph 12), the POA made a complaint before the ILO Committee on Freedom of Association in 2004, examined as case no. 2383. While there is no provision in the Conventions adopted by the International Labour Organisation expressly recognising a right to strike, both the Committee on Freedom of Association and the Committee of Experts on the Application of Convention and Recommendations have progressively developed a number of principles relating to the right to strike, based on Articles 3 and 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (see “Giving globalisation a human face”, International Labour Office, 2012, at paragraph 117). This Convention was ratified by the United Kingdom on 27 June 1949. The POA alleged that section 127 of the 1994 Act constituted a breach of the right to strike, as prison officers did not exercise authority in the name of the State and did not provide essential services in the strict sense of the term. It further complained that no adequate compensatory measures had been put in place whereby prison officers or their union could protect their interests in the absence of a right to strike.
20. In its first consideration of the case (336th Report, March 2005), the Committee on Freedom of Association held:
“763. The Committee has considered that officials working in the administration of justice are officials who exercise authority in the name of the State and whose right to strike could thus be subject to restrictions or even prohibitions [see Digest, op. cit., para. 537]. The Committee considers that to the extent that prison officers and prisoner custody officers exercise authority in the name of the State, their right to strike can be restricted or even prohibited.
...
766. The Committee recalls that to determine situations in which a strike could be prohibited, the criteria which have to be established are the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population [see Digest, op. cit., para. 540]. The Committee considers that the prison service is clearly one where the interruption of the service could give rise to an imminent threat to the life, personal safety or health of the whole or part of the population, in particular, the prisoners and the wider public.
767. Considering that the prison service constitutes an essential service in the strict sense of the term and that prison officers, as well as prisoner custody officers to the extent that they perform the same functions, exercise authority in the name of the State, the Committee is of the view that it is in conformity with freedom of association principles to restrict or prohibit the right to take industrial action in the prison service.”
21. The Committee on Freedom of Association then raised the issue of compensatory guarantees:
“769. ... The Committee recalls that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services [see Digest, op. cit., para. 546]. The Committee requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike, and to keep it informed in this respect.
...
773. ...[T]he Committee notes that the Government does not specify the method (including any relevant guidance or criteria) for the appointment of the members of the Pay Review Body, and recalls that in mediation and arbitration proceedings it is essential that all the members of the bodies entrusted with such functions should not only be strictly impartial but if the confidence of both sides, on which the successful outcome even of compulsory arbitration really depends, is to be gained and maintained, they should also appear to be impartial both to the employers and to the workers concerned [see Digest, op. cit., para. 549]. With regard to [the nature of PSPRB recommendations], the Committee notes that the Government does not specify which exceptional circumstances might justify a departure from the recommendations of the Pay Review Body. The Committee also observes that the text of Regulation 8 of the Prison Service (Pay Review Body) Regulations, 2001, seems to leave complete discretion upon the Secretary of State as regards the implementation of the recommendations of the Pay Review Body, by providing that ‘where, following the reference of any matter to them, the Pay Review Body has made a report, the Secretary of State may determine the rates of pay and allowances to be applied to the prison service in England and Wales, and Northern Ireland, in accordance with the recommendations of the Pay Review Body, or make such other determination with respect to the matters in that report as he thinks fit’. The Committee recalls that as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., para. 547]. The Committee requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison officers’ pay in England, Wales and Northern Ireland. In particular, the Committee requests the Government to continue to ensure that: (i) the awards of the Prison Service Pay Review Body are binding on the parties and may be departed from only in exceptional circumstances; and (ii) the members of the Prison Service Pay Review Body are independent and impartial, are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned. The Committee requests to be kept informed in this respect.”
22. The Committee on Freedom of Association submitted the following recommendations to the ILO Governing Body:
“777. In light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) Noting that the prison service is an essential service in the strict sense of the term where the right to strike can be restricted or even prohibited, the Committee requests the Government to take the necessary measures so as to establish appropriate mechanisms in respect of prisoner custody officers in private sector companies to which certain of the functions of the prison have been contracted out so as to compensate them for the limitation of their right to strike.
(b) The Committee requests the Government to initiate consultations with the complainant and the prison service with a view to improving the current mechanism for the determination of prison officers’ pay in England, Wales and Northern Ireland. In particular, the Committee requests the Government to continue to ensure that:
(i) the awards of the Prison Service Pay Review Body are binding on the parties and may be departed from only in exceptional circumstances; and
(ii) the members of the Prison Service Pay Review Body are independent and impartial, are appointed on the basis of specific guidance or criteria and have the confidence of all parties concerned.
(c) The Committee requests to be kept informed of developments in respect of the above.”
The ILO Governing Body approved them (Minutes of the 292nd Session, 22-24 March 2005, paragraph 154).
23. Since its initial assessment of the case, the Committee on Freedom of Association has reviewed the situation periodically. In its Report No. 359 of March 2011, it regretted the state of relations between the POA and the Government, and that little progress had been made in improving the mechanism for the determination of prison officers’ pay. Regarding the binding nature of PSPRB awards, that report states:
“181. ... [T]he Committee notes the Government’s statement that matters of public finances are for the Government to decide and that departures from PSPRB recommendations might on occasion become necessary to ensure acceptable award levels. The Committee recalls that the reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with the terms of awards handed down by a compulsory arbitration tribunal. Any departure from this practice would detract from the effective application of the principle that, where strikes by workers in essential services are prohibited or restricted, such prohibition should be accompanied by the existence of conciliation procedures and of impartial arbitration machinery, the awards of which are binding on both parties.”
24. The most recent consideration of the situation is contained in Report No. 364 of the Committee on Freedom of Association, of June 2012. The Committee took note of the information provided by the Government on latest developments (including the NDRP) and commented:
"75. The Committee notes the information provided by the Government with satisfaction. Observing that it has been dealing with this case since 2005 and has been requesting the Government to initiate consultations with the complainant and the prison service with a view to achieving a satisfactory solution to the need to provide for an appropriate mechanism to compensate for the strike prohibition, the Committee wishes to recognize the efforts made by all the parties concerned and commends the Government’s desire to address the issues raised in this case. It encourages the Government to maintain full, frank and meaningful consultations with all interested parties in the future."


ITEMID: 001-107421
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MOKALLAL v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 5-1;No violation of Art. 5-1
JUDGES: Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 6. The applicant was born in 1971 and lives in Odessa.
7. The applicant has been living and working in Ukraine since 1995. He has a partner and five minor children. All his family are Ukrainian nationals.
8. In 2007, following media coverage of the applicant’s successful business, he was approached by representatives of the Iranian Embassy. They invited him to meet the President of Iran to receive an award for his business success. The applicant refused, as he disagreed with the domestic and foreign policies of the President.
9. In 2009 the applicant financially supported one of the opposition candidates in the Presidential elections. He submits that supporters of opposition candidates were prosecuted in Iran.
10. On an unknown date criminal proceedings for embezzlement were instituted against the applicant in Iran.
11. On 31 June 2009 the applicant was placed on the list of wanted persons by the Tehran Prosecutors’ Office. An international arrest warrant was issued.
12. On 11 February 2010 the applicant applied for refugee status in Ukraine.
13. On 2 March 2010 the UNHCR Regional Representation for Ukraine, Belarus and Moldova wrote a letter to the General Prosecutor’s Office of Ukraine (“the GPO”). They noted that the applicant was officially an asylum-seeker in Ukraine and therefore his status should be taken into account if the GPO examined any request for his extradition to Iran.
14. On 3 April 2010 the applicant was arrested by the Tairovskiy Police Department with a view to his extradition.
15. On 6 April 2010 Odessa Kyivskiy District Court remanded the applicant in custody pending the extradition procedure.
16. On 14 April 2010 the Odessa Regional Court of Appeal upheld the decision of the first-instance court.
17. On 19 April 2010 the GPO replied to the UNHCR letter of 2 March 2010, assuring them that the applicant would not be extradited until his application for refugee status had been examined on the merits.
18. On 17 June 2010 amendments to the Code of Criminal Procedure entered into force. They supplemented the Code with a new chapter, which set forth the extradition procedure to be followed and established a special procedure for detention with a view to extradition. They provided, in particular, that a person could be temporarily detained for forty days or another term envisaged in international treaties while awaiting formal request for extradition. Once a formal extradition request has been received, the court may order the detention of the person for a maximum of eighteen months with the possibility of further detention (see paragraph 28 below).
19. On 22 June 2010 the Odessa Malinovskiy District Prosecutor requested the Odessa Malinovskiy District Court to extend the extradition detention of the applicant.
20. On 23 June 2010 the applicant requested the Odessa Malinovskiy District Prosecutor to order his release due to lack of grounds to keep him in detention any longer.
21. On 29 June 2010 Odessa Malinovskiy District Court extended the applicant’s detention until a decision had been taken on his extradition.
22. On 12 July 2010 the GPO received a note from the Iranian Embassy, informing that the applicant’s detention was no longer required, due to a friendly settlement which had been reached between the applicant and one of the aggrieved parties in the case.
23. The next day the GPO ordered the Odessa Regional Prosecutor’s Office to take the necessary measures to have the applicant released from detention.
24. On 14 July 2010 the Deputy Prosecutor of the Odessa Region ordered the termination of the applicant’s detention. The applicant was released the same day and the GPO terminated the examination of the request for the applicant’s extradition to Iran.
25. On 16 July 2010 the Odessa Regional Court of Appeal discontinued examination of the applicant’s appeal against the decision of 29 June 2010, given that the applicant had been released.
26. On 9 December 2010 the State Committee for Nationalities and Migration rejected the applicant’s request for granting him the refugee status. The applicant was notified about this decision on 1 July 2011. He challenged it before the Odessa Regional Administrative Court on 10 July 2011.
27. The domestic law and practice concerning detention with a view to extradition as it stood prior to 17 June 2010 is summarised in the judgment Soldatenko v. Ukraine (2440/07, §§ 21-29 and 31, 23 October 2008),
28. The Code of Criminal Procedure (Amendment) Act, which came into force on 17 June 2010, introduced a new chapter into the Code of Criminal Procedure regulating proceedings for extradition to and from Ukraine. The Act contained no transitional provisions. Relevant articles of this new chapter provide, among other things, as follows:
“... Extradition detention - taking a person into custody to ensure his extradition.
Provisional detention - taking a person, who has been detained on suspicion of committing crime outside Ukraine, into custody for a period determined by this Code or the international treaty of Ukraine until receipt of extradition request ...”
“Taking into detention on the territory of Ukraine of a person who is wanted by a foreign State in connection with the commission of a crime, shall be carried out by a body of inquiry.
The body of inquiry that carries out the detention shall immediately inform the prosecutor who supervises the observance of laws that it has been done. The notification of the prosecutor, accompanied by the record of the arrest, shall contain detailed information on the reasons and motives for the taking into detention.
Upon receipt of notification, the prosecutor shall check the legality of the detention of the person who is wanted by the competent authorities of foreign States, and immediately inform the regional prosecutor.
Within seventy-two hours of the arrest, the regional prosecutor’s office shall inform the central authority, which shall inform the competent authority of the foreign State within three days.
Every case of detention of a foreign national who has committed crimes outside Ukraine shall also be reported by the regional prosecutor’s office to the Ministry of Foreign Affairs of Ukraine.
The person detained shall be released immediately if:
1) Within seventy-two hours of the arrest he or she has not been served with a substantiated decision of the court on application of extradition detention or provisional detention;
2) it has been established that there are circumstances applying to the case under which extradition may not be carried out.
The procedure of detention of such persons and examination of complaints about their detention shall be performed in accordance with Article 106 of the Code, taking into account the peculiarities established by this Chapter.”
“A detained person who has committed a crime outside Ukraine shall be subject to provisional detention for forty days, or another period of time set out in the relevant international treaty of Ukraine, until an extradition request has been received.
If the maximum period of provisional detention envisaged by paragraph 1 of this Article has expired, and no extradition request has been received in respect of this person, the person shall be released from custody immediately.
The body of inquiry which arrested the person shall lodge, with the prosecutor’s approval, with the court local to the place of detention a warrant for provisional detention. The prosecutor shall be also entitled to lodge such a warrant.
The warrant shall be accompanied by:
1) the record of the arrest of the person;
2) documents containing information about the crime or crimes committed by the person on the territory of a foreign State and the preventive measures used in respect of that person by the competent authority of the foreign State;
3) the detained person’s identity documents.
The warrant shall be examined within seventy-two hours of the detention of the person.
When examining the warrant, a judge shall establish the identity of the detained person, shall invite him or her to make a statement, shall check the presence of the documents envisaged by subparagraph 2 of paragraph 3 of this Article, shall hear the opinion of the prosecutor and of other participants and shall make a ruling on:
1) application of provisional detention;
2) refusal to apply provisional detention if there are no grounds for its application.
The judge’s ruling can be appealed against to the court of appeal by the prosecutor, the person placed under provisional detention, or his or her counsel or legal representative, within three days of the date of the ruling. The lodging of an appeal against the judge’s ruling shall not suspend its entry into force or its execution. The ruling of the court of appeal shall not be subject to appeal, nor may the prosecutor appeal on points of law.
The release of a person from provisional detention due to the belated arrival of an extradition request at the central authority shall not prevent the imposition of extradition detention if such a request is received later.
If an extradition request is received prior to the expiry of the period of provisional detention fixed by the court, the judge’s ruling on the application of provisional detention becomes void from the date of the court ruling on the application of extradition detention to the person concerned.”
“Upon receipt of an extradition request from the competent authority of a foreign State, the prosecutor, on the instruction (at the request) of the central authority, shall deposit a warrant for the extradition arrest of the person with the court at the place of the person’s detention.
The warrant shall be submitted for examination by the court, with the following attachments:
1) a copy of the extradition request from the competent authority of the foreign State, certified by the central authority;
2) documents confirming the person’s nationality;
3) available materials from the extradition inquiry.
Materials submitted to the court shall be translated into the official language, or another language as provided by an international treaty of Ukraine.
On receipt of the warrant, the judge shall establish the identity of the person concerned, shall offer him or her the opportunity to make a statement, shall check the extradition request and the available materials from the extradition inquiry, shall hear the opinion of the prosecutor and of other participants, and shall make a ruling which will:
1) order extradition detention;
2) refuse to apply extradition detention if there are no grounds for its application.
When examining the warrant, the judge does not examine the issue of guilt and does not review the lawfulness of procedural decisions taken by the competent authorities of the foreign State in the proceedings against the person whose extradition is requested.
The judge’s ruling can be appealed against to the court of appeal by the prosecutor, the person placed under extradition detention, or his or her counsel or legal representative, within three days of the date on which the ruling was made. The lodging of an appeal against the judge’s ruling shall not suspend its entry into force or its execution. A ruling of the court of appeal shall not be subject to appeal, nor may the prosecutor appeal on points of law.
Extradition detention shall be applied until the decision on the extradition of the person concerned and his actual surrender (extradition), but shall not last more than eighteen months.
Within this period, and not less than once every two months , the judge at the place of the person’s detention shall examine, at the instigation of the prosecutor, what grounds there may be for further detention of the person or for his or her release.
If the person placed under extradition detention, or his or her counsel or legal representative, makes a complaint, the judge at the place of the person’s detention shall check, but not more often than once a month, what grounds there may be for the person’s release.
If the maximum period of extradition detention provided in paragraph 7 of this article has expired, and the issue of the person’s extradition and actual surrender has not been resolved by the central authority, the person shall be released immediately.
The fact that the person has been released from extradition detention by the court does not preclude a new order for the detention of the person, for the purpose of actual surrendering that person to a foreign State in execution of the decision on extradition, unless otherwise stipulated by an international treaty of Ukraine.
If person has been released from custody by the court, the regional prosecutor or his deputy, in agreement with the competent central authority, makes an order to apply other necessary measures to prevent the person from absconding and to ensure he is surrendered later.
Such measures shall be sufficient to ensure that the decision to extradite can be put into effect, and can, in particular, include bail, restrictions on the person’s movement and control over his or her movements. Application of bail and of restrictions on the person’s movements shall be carried out in accordance with the procedure envisaged by Articles 98-1, 151 and 154-1 of this Code, taking into account the special aspects of this Chapter.
The regional prosecutor or his deputy shall notify the person concerned and his or her counsel or legal representative of the order issued in respect of the person.
The regional prosecutor or his deputy may entrust the body of inquiry with the execution of the order.”
“A Provisional detention or extradition detention shall be terminated if:
1) the central authority, within the time-limits provided for by an international treaty of Ukraine, has not received a request for the person’s extradition;
2) an extradition inquiry reveals circumstances which preclude the person’s extradition;
3) The competent authority of a foreign State has refused to seek the person’s extradition;
4) the central authority decides to refuse the person’s extradition.
The person’s release shall be carried out by the regional prosecutor or his deputy on the instruction at the (request) of the central authority and in the circumstances provided for in paragraph 2 of this Article, in agreement with the relevant central authority. A copy of the release decision shall be sent to the head of the pre-trial detention institution and to the court which decided on the application of provisional detention or extradition detention.”
“... A person who has been granted refugee status may not be extradited to a foreign state where his health, life, or freedom is endangered for reasons of race, faith (religion), ethnicity, citizenship (nationality), membership of a particular social group or political opinion, unless otherwise provided by an international treaty to which Ukraine is a party.
In the event of refusal of extradition on grounds of nationality, refugee status or other grounds that do not exclude proceedings in the case, at the request of the competent authority of a foreign state the General Prosecutor’s Office of Ukraine instructs a pre-trial investigation body to carry out an investigation of the criminal case against that person in accordance with the procedure prescribed by this Code.”
29. Section 3 of the Act reads:
“No refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion.
No refugee may be expelled or forcibly returned to a country where he or she may suffer torture and other severe, inhuman or degrading treatment or punishment, or to a country from where the refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion.
This Article shall not apply to refugees convicted of a serious crime in Ukraine.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-77303
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ZAFER v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The application was introduced by Mr Ján Záfer, a Slovakian national who was born in 1930 and who lived in Hlohovec. He was represented by Mr S. Jakubčík, a lawyer practising in Bratislava. The applicant died on 8 May 2005. On 8 September 2005 Mrs Viola Záferová, the applicant’s spouse, informed the Court of her wish to continue the application in her late husband’s stead. She authorised Mr S. Jakubčík to represent her in the proceedings. The Government of the Slovak Republic (“the Government”) are represented by their Agent, Mrs A. Poláčková.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1994 the applicant and his wife started living in a family house which is owned by their son and the latter’s wife. The house is situated in Železničná street in Hlohovec. The house is placed between two other family houses with street numbers 11 and 13 respectively and it had a plate with street number 12 initially.
The applicant and the other inhabitants of the house were disturbed by persons who thought that an important pharmaceutical company established in Hlohovec in 1950 had its headquarters there. In November 1994 the applicant learned that the company, whose premises were located partly at the end of the same street some 300 to 400 metres away, used in its address the same street number as their house had. In addition, the same address was used by several other companies which leased premises from the pharmaceutical company in issue.
On 10 February 1995 the applicant’s son sought redress from both the Mayor of Hlohovec and the company’s management. He also requested the company to remove its information and advertisement board located in front of his house. On 15 March 1995 the company’s representatives replied that they were interested in solving the problem and that they had asked the Municipal Office in Hlohovec for assistance.
On 24 April 1995 the Hlohovec Municipality decided, with reference to sections 9-12 of Act 517/1990, to assign street number 19 to the house in which the applicant and his family lived. The document indicated that the decision was to be delivered to the house owner and to the Land Registry in Hlohovec. It contained no information as to the availability of any remedy. In a separate letter with the same date and addressed to the house owner the Hlohovec Municipal Office stated that the house should normally have street number 12. However, according to the relevant documents, the same street number had been assigned to the pharmaceutical company whose premises were located in the same street. It resulted from the fact that the company’s premises had had street number 12 from the moment of its establishment while further buildings had been built in the street subsequently without any change in the numbering. Given the position and activities of the company, the Municipal Office decided to assign a different street number to the house of the applicant’s son. The company was to bear any costs related to the change of the number plate attached to the house.
On 17 May 1995 the Municipal Office informed the applicant’s son that its employees would come to his house, on 23 May 1995, with a view to resolving the problem of the company’s advertisement board.
The applicant and his wife continued to be regularly disturbed throughout the day by a large number of persons who thought that the above company or other companies which leased the latter’s premises (and thus had the same street address) had their offices there.
In November 1998 the applicant complained of the situation to the Mayor of Hlohovec. On 19 November 1998 the Municipal Office sent copies of the above documents dated 24 April 1995 together with a certificate that the inhabitants of the house had their permanent address at Železničná street 19. As the applicant continued insisting that the house should have street number 12, the Mayor of Hlohovec decided to allocate street number 12/A to the house in January 1999. The documents submitted to the Court indicate that the applicant’s son and the members of his family had also registered their permanent address in the house at that time.
Despite that change the applicant and his wife were regularly disturbed by persons looking for one of the companies whose address was at Železničná street 12. Such encounters sometimes resulted in misunderstandings and conflicts, for example with employment seekers. As a result, the health of the applicant and his wife deteriorated. In particular, the applicant submitted medical certificates according to which his wife had been undergoing long-term psychiatric treatment since 1991. Both the applicant and his wife underwent treatment in a sanatorium.
On 28 December 1999 the applicant asked the Constitutional Court to express its opinion as to whether the Municipal Office had proceeded in an appropriate manner from the point of view of respecting the rights of the persons living in the house and whether the company concerned had violated the rights of those persons.
In a letter of 8 February 2000, a constitutional judge informed the applicant that individuals could initiate proceedings before the Constitutional Court under Articles 127 and 130 § 3 of the Constitution only. The Constitutional Court was not entitled to express an opinion on the questions put by the applicant. The letter concluded that the applicant’s submission did not meet the formal requirements for proceedings to be brought before the Constitutional Court.
In 2000 a TV company reported on the case. In the broadcast the applicant explained that he and his family were regularly disturbed by persons looking for Železničná street 12. On some days up to 6 persons rang their bell. The applicant held in his hands a standardised street number plate bearing the number 12. He stated that that number had originally been attached to their house and that he would not abandon the claim that it still belonged to them. The Mayor explained that the company had had street number 12 in its address from the moment of its establishment. The municipality accepted that a change in the company’s address would result in disproportionately high costs. The decision adopted in 1995 to allocate street number 19 to the house of the applicant’s son seemed to be the most appropriate solution. The Mayor expressed the view that if the applicant’s family had accepted the proposed solution including the placement of an additional board announcing where the company’s premises were situated, the problem would have been resolved. A lawyer whom the TV team consulted advised the applicant to indicate visibly on the house street number 19 allocated by the municipality. The pictures of the house indicate that, unlike the neighbouring ones, the house in which the applicant lived had no identification number attached to it at the time when the broadcast was made.
As from 15 June 2000 the company in issue started using a new address - Nitrianska street 100. That address indicates the main entrance to the company’s newly built administrative building. However, the address of several other companies leasing the premises remained unchanged.
In a reply to the applicant’s complaint, the Office of the President of the Slovak Republic expressed the view, on 3 October 2000, that the Municipal Office in Hlohovec had acted in accordance with Regulation 347/1997 in that it had allocated street number 12/A to the house.
In his submissions to different authorities the applicant repeatedly indicated “Železničná 12” as his address.
According to the Government, the applicant and his son disregarded the decision of 1999 to allocate street number 12/A to the house. They submitted photographs taken by the employees of the Hlohovec Municipal Office, on 24 January 2004, showing that the house bears street number 12.
The applicant contended that the number attached to the house had been carved in wood and bought by his son, and that they had not been provided with plates.
Pursuant to Article 127 of the Constitution, as in force until 30 June 2001, the Constitutional Court decided on complaints concerning final decisions made by, among others, local government authorities and local self-governing bodies in cases concerning violations of the fundamental rights and freedoms of citizens, unless the protection of such rights fell under the jurisdiction of another court.
Under Article 130 § 3 of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon a petition (podnet) presented by any individual or corporation claiming that their rights had been violated.
According to its case-law under former Article 130 § 3 of the Constitution, as in force until 30 June 2001, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights. It could neither grant damages to the person concerned nor impose a sanction on the public authority responsible for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.
The lawfulness of decisions given by authorities charged with public administration can be reviewed by courts in accordance with Part 5 of the Code of Civil Procedure which governs the administrative judiciary.
Article 244(2) provides that administrative courts review the lawfulness of decisions given by State administrative authorities or local selfgovernment authorities, as well as of other legal persons authorised by law to decide on individual rights and obligations in the context of public administration. As from 1 January 2002, this provision has been amended in that courts are also entitled to review the way in which administrative authorities proceed, including their failure to act.
Under paragraph 3 of Article 244, decisions of administrative authorities are decisions which such authorities delivered in the context of administrative proceedings as well as other decisions which establish, modify or annul the rights and obligations of natural or legal persons.
Under Article 247(2), courts are entitled to decide on actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all available ordinary remedies.
Act 517/1990 Coll. governed the territorial and administrative division of the Slovak Republic. It was in force until 24 July 1996.
Section 10(1) provided that, in order to facilitate orientation in streets, every building and every separate entry thereto were to be marked by an “orientation number”. Every street given a name was to have a separate series of orientation numbers.
Section 11(1) provided that municipalities were to decide on and register the numbering of buildings.
Pursuant to section 12(2), a single type of plates with street orientation numbers is to be used in a municipality. The house owners were to obtain a plate with the corresponding number and attach it to their house at their own expense. Paragraph 3 of section 12 provided that a street orientation number is to be placed to the right from the entrance to a building in a manner permitting it to be seen from public space.
Act 221/1996 on Territorial and Administrative Organisation of the Slovak Republic entered into force on 24 July 1997 and it repealed Act 517/1990.
The following relevant provisions were in force until 31 December 2001.
Under section 13, every building in a street or in a public place having a name and every separate entrance to such a building were to have an orientation number. Every street or public place having its own name was to have its own series of orientation numbers.
Section 14(1) entrusted to municipalities the numbering of buildings and its registration. Municipalities decided also on the type of plates with street numbers to be used on their territory. Pursuant to paragraph 3 of section 14, house owners were to obtain a plate with the corresponding number and attach it to their house at their own expense.
Section 17 provided that decisions under Act 221/1996 were not covered by the Administrative Proceedings Act of 1967.
As from 1 January 2002 the numbering of buildings has been governed by Act 369/1990 on Municipal Organisation, as amended by Act No. 452/2001.
Pursuant to section 2c(1), municipalities allcoate orientation and registration numbers to buildings, keep a register of such numbering and ensure that it corresponds to the factual situation.
Section 27a(2) provides, inter alia, that decisions by which street numbers are assigned to houses are not covered by the Administrative Procedure Act of 1967.
Regulation 347/1997 was issued by the Ministry of the Interior with reference to Act 221/1996 and it governed, inter alia, the details of the numbering of buildings. It was in force from 1 January 1998 until 1 March 2003.
Regulation 31/2003 repealed Regulation 347/1997 with effect from 1 March 2003.
Section 6(4) provides that a street orientation number can be changed or annulled in exceptional cases only and after the owner of the building has been duly notified.


ITEMID: 001-83544
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: HEIMANN v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Marko Heimann, is a German national who lives in Cham.
The applicant is a practising lawyer and member of the Nuremberg Bar Association (Rechtsanwaltskammer). His professional letterhead used to refer to him as a “specialised lawyer in labour and criminal law” (Fachanwalt für Arbeitsrecht und Strafrecht) and “specialist in traffic law” (“Verkehrsrechtsspezialist”). In a footnote annexed to the latter reference, the applicant stated that he was a certified graduate of a specialisation course run by the German Lawyers’ Academy (Deutsche Anwalts-akademie). On a complaint from a fellow lawyer, the Bar Association requested the applicant to refrain from using the term “specialist in traffic law”. When the applicant refused, the Bar Association brought a claim against the applicant under the Unfair Competition Act (see Relevant domestic law and practice part, below).
On 19 September 2003 the Regensburg Regional Court ordered the applicant to refrain from using the term “specialist in traffic law” on his letterhead failing which he would be liable to a fine of 250,000 euros (EUR). It found that the term “specialist in traffic law” amounted to unfair and misleading advertising within the meaning of sections 1 and 3 of the Unfair Competition Act. The Regional Court noted that German law provided for different categories of specialisation. A lawyer could refer on his professional letterhead to a “main focus of interest” if he or she had gathered particular knowledge in a particular field of law. A lawyer could refer to a “main focus of practice” if he or she had extensively worked in a particular field of law for at least two years. Moreover, a lawyer could be granted the right to call himself or herself a “specialised lawyer” (Fachanwalt) if he had special expertise and experience in a particular field of law, which required inter alia participation in special training courses with exams and several years of practice with a minimum number of relevant cases. The Regional Court stressed that a lawyer had to overcome high hurdles before being granted the right to call himself or herself a “specialised lawyer”. From the perspective of an ordinary client, the term “specialist” would suggest an even higher degree of specialisation than a “specialised lawyer”. This would however be a mistake in view of the high requirements to obtain the right to refer to oneself as a “specialised lawyer”. If a lawyer were to refer to himself or herself as “specialist”, he or she would therefore mislead ordinary clients by creating an erroneous impression. This would lead to a competitive advantage as against those lawyers who complied with the hierarchy of specialisation as provided for by German law.
The applicant’s appeal was dismissed by the Nuremberg Court of Appeal on 30 March 2004. It referred to the reasoning of the Regional Court and found that mere participation on a course on traffic law was not sufficient to justify the reference as a “specialist in traffic law”. The applicant had failed to demonstrate that he had worked on an above-average number of cases. He had submitted a list of cases without any indication that these cases required particular knowledge of traffic law. The list was therefore not apt to demonstrate that the applicant indeed specialised in traffic law. The applicant bore the burden of proof in this respect.
On 7 July 2004, the Federal Constitutional Court refused, without giving any reasons, to admit the applicant’s constitutional complaint because it was inadmissible.
1. Relevant provisions of the Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb):
“Any person who, in the course of business activity and for purposes of competition, commits acts contrary to honest practices may be enjoined from performing those acts and held liable for damages.”
“Any person who, in the course of business activity and for purposes of competition, makes misleading statements concerning business matters, in particular concerning the nature, the origin, or the manner of manufacture, or the pricing of individual goods or commercial services or of the offer as a whole, concerning price lists, the manner or the source of acquisition of goods, concerning the possession of awards, concerning the occasion or purpose of sale, or concerning the size of the available stock, may be enjoined from making such statements.”
2. According to Section 7 of the Rules for Lawyers’ Professional Conduct (Berufsordnung für Rechtsanwälte), a lawyer may refer in his professional letterhead to a “main focus of interest” (Interessen-schwerpunkt) if he or she has gathered particular knowledge in a particular field of law through studies, publications or former professional work. If the lawyer has extensively worked in a particular field of law for at least two years, he or she may refer to that field as a “main focus of practice” (Tätigkeitsschwerpunkt). Moreover, if a lawyer has special expertise and experience in a particular field of law, he or she may be granted the right to call himself or herself a “specialised lawyer” (Fachanwalt) by the Bar to which he or she belongs (Section 43c of the Federal Lawyers Act, Bundesrechtsanwaltsordnung). According to the Specialised Lawyers Act (Fachanwaltsordnung), such special expertise and experience requires inter alia participation in special training courses with exams and several years of practice with a minimum number of relevant cases.
3. On 28 July 2004, the Federal Constitutional Court found in a different case that the decision of the Lower-Saxony Court for the Legal Profession (Anwaltsgerichtshof) not to permit a lawyer in Lower-Saxony to use the term “specialist in traffic law” in his letterhead violated that lawyer’s freedom to choose an occupation (Berufsfreiheit) under Article 12 of the Basic Law (1 BvR 159/04; EuGRZ 2004, pp. 529 et seq.). In that case, the lawyer had been working in the field of traffic law in several practical and theoretical functions for decades and wanted to refer to that expertise in his letter head. The Federal Constitutional Court took the view that it was doubtful whether the Rules for Lawyers’ Professional Conduct sufficiently satisfied the interests of both lawyers and their clients. The sequence of “main focus of interest”, “main focus of practice” and “specialised lawyer” could be justified in fields of law that recognised “specialised lawyers”. The term “specialised lawyer in traffic law” did however not exist under German law and could consequently not be confused with the term “specialist in traffic law”. The danger of misleading clients would therefore exist only if the lawyer was not in fact a specialist in the general meaning of the word.


ITEMID: 001-118384
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: COMMITTEE
DATE: 2013
DOCNAME: CASE OF VERSHININ v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: Elisabeth Steiner;Mirjana Lazarova Trajkovska;Ksenija Turković
TEXT: 4. The applicant was born in 1959 and lives in Moscow.
5. The applicant inherited a house in the Moscow Region from Ms B.M. in her will. On an unspecified date he moved into it.
6. In 1990 B.S., the stepson of B.M., brought an action against the applicant for recovery of the property in issue, claiming that his inheritance rights had been breached and that the will was illegal.
7. The matter was considered repeatedly by the courts and on 23 May 1997 the Khimky Town Court (“the Town Court”) granted B.S.’s claims. The applicant lodged a supervisory-review complaint.
8. On 23 June 1998 the Presidium of the Moscow Regional Court quashed the judgment of 23 May 1997 for breach of procedural law and remitted the matter for fresh consideration. It appears the property was subject to an interim injunction which was still maintained by the court.
9. Three hearings fixed for between 7 October 1998 and 18 May 1999, were adjourned owing to both the applicant’s and plaintiff’s failure to appear.
10. Hearings scheduled for 9 July 1999 and 16 October 1999 were postponed owing to the applicant’s failure to appear.
11. Seven hearings fixed for between 16 November 1999 and 11 July 2000 were adjourned owing to the third parties’ and the plaintiff’s failure to appear, and the need to collect additional evidence.
12. On 12 May 2000 the Town Court dismissed the applicant’s applications for the civil proceedings to be discontinued and the interim injunction lifted. The applicant lodged an appeal against that decision which was upheld on 30 May 2000.
13. On 11 July 2000 the Town Court dismissed B.S.’s claims.
14. On 10 May 2001 the Moscow Regional Court (“the Regional Court”) quashed the judgment of 11 July 2000 on appeal and remitted the matter for fresh consideration.
15. Three hearings fixed for between July and December 2002 did not take place owing to the applicant’s failure to appear, and one was held as planned.
16. A hearing scheduled for 15 March 2002 was adjourned until 24 April 2002 owing to the applicant’s failure to appear.
17. A hearing scheduled for 24 April 2002 was postponed until 4 June 2002 owing to the judge’s involvement in other proceedings.
18. A hearing was held as planned on 4 June 2002. The court rejected the applicant’s application for the discontinuation of the proceedings.
19. Of eleven hearings fixed for between September 2002 and August 2004, three were adjourned owing to the applicant’s failure to appear.
20. On 4 August 2004 the trial court held a hearing in the applicant’s absence and granted B.S.’s claims. According to the applicant, he had not been duly summoned to that hearing.
21. On 18 October 2004 the Moscow Regional Court upheld the judgment of 4 August 2004 on appeal. The applicant brought a supervisoryreview complaint.
22. On 16 March 2005 the Presidium of the Moscow Regional Court quashed the judgments of 4 August and 18 October 2004 by way of supervisory review for breach of material and procedural law, and remitted the matter for fresh consideration. The hearing was listed for 30 May 2005.
23. The hearing of 30 May 2005 was adjourned owing to the third parties’ failure to appear.
24. A hearing scheduled for 28 June 2005 was postponed until 1 August 2005 as the plaintiff was ill.
25. On 1 August 2005 the Town Court held a hearing and left B.S.’s action without examination owing to his failure to appear without valid reasons.
26. On the same date the applicant requested the trial court to lift the injunction. On 15 August 2005 his request was granted.
27. On 31 March 2006 B.S. informed the Town Court that he had failed to attend the hearing because of illness and asked it to quash the decision of 1 August 2005.
28. Of four hearings fixed for between May and July 2006, two were postponed owing to the applicant’s failure to appear and two were held in his absence. According to the applicant, he was not duly summoned to those hearings.
29. On 29 June 2006 the Town Court quashed the decision of 1 August 2005.
30. On 27 July 2006 the Town Court decided to discontinue the civil proceedings. The court found that B.S. had no legal standing under domestic law to challenge the legality of B.M.’s will because his rights and interests had not been affected by the impugned will: he was not related by kinship to Ms B.M. and was not listed in her will.
31. On 26 October 2006 the Regional Court upheld that decision on appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1