ITEMID: 001-78666
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: PARRY v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Josep Casadevall;Nicolas Bratza
TEXT: The applicants are British nationals who were born in 1939 and 1940 respectively, and live in Port Talbot. They are represented before the Court by the Student Law Office, lawyers practising in Newcastle-upon-Tyne.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants married in 1960. They have had three children, born in 1961, 1963 and 1973. They remain lawfully married. Both have deep religious convictions; the first applicant was ordained as a church minister in 1970.
The first applicant was born male. However, the first applicant felt from an early age a strong desire to live as a woman. In 1998, the first applicant started to take steps to come to terms with this need. The first applicant was ultimately advised by doctors that he would require gender reassignment surgery; this was carried out at public expense on the National Health Service (although it is not entirely clear when this took place). She continues to undergo hormone replacement treatment and other forms of treatment such as laser treatment and electrolysis. She changed her name by deed poll from William David Parry to Wena Dean Parry in 1998. She has completed all of her surgical interventions and contends that she is in all private and public relationships a woman.
The second applicant has stood by the first applicant, and they contend that they remain together as “a loving and married couple.”
Following the introduction of the Gender Recognition Act 2004 (‘GRA 2004’), the first applicant made an application to the Gender Recognition Panel (‘the Panel’) on 1 January 2005 for the issue of a Gender Recognition Certificate (‘GRC’).
Because the first applicant is married, the Panel could only issue an interim GRC, which they did on 25 May 2005. The only purpose of such a certificate is to enable the first applicant to seek annulment of a lawful marriage. On annulment, she would then be able to obtain a full GRC, a formal recognition of her acquired gender.
Neither applicant wishes to annul their marriage, so the first applicant is unable to obtain a full GRC.
The Gender Recognition Act 2004 (‘GRA 2004’) provides a mechanism whereby transsexuals may have their new genders recognised. Section 2 provides that a Gender Recognition Panel must grant an application if it is satisfied that the applicant: (1) has, or has had, gender dysphoria; (2) has lived in the acquired gender throughout the preceding two years; and (3) intends to continue to live in the acquired gender until death.
By section 3, an application must include a report from a registered medical practitioner, or a chartered psychologist, either of whom must be practising in the field of gender dysphoria. This report must include details of diagnosis. A second report must also be included, which need not be from a medical professional practising in the field of gender dysphoria, but could be from any registered medical practitioner. At least one of the reports must include details of any treatment that the applicant has undergone, is undergoing or that is prescribed or planned, for the purposes of modifying sexual characteristics.
Section 4 sets down the consequences of an application being successful. It reads in material part as follows:
“(1) If a Gender Recognition Panel grants an application under section 1(1) it must issue a gender recognition certificate to the applicant.
(2) Unless the applicant is married, the certificate is to be a full gender recognition certificate.
(3) If the applicant is married, the certificate is to be an interim gender recognition certificate.
(4) Schedule 2 (annulment or dissolution of marriage after issue of interim gender recognition certificate) has effect.
Section 5 governs the situation where an interim certificate has been granted. It reads in relevant part as follows:
“(1) A court which -
(a) makes absolute a decree of nullity granted on the ground that an interim gender recognition certificate has been issued to a party to the marriage, or
(b) (in Scotland) grants a decree of divorce on that ground,
must, on doing so, issue a full gender recognition certificate to that party and send a copy to the Secretary of State.
(2) If an interim gender recognition certificate has been issued to a person and either-
(a) the person’s marriage is dissolved or annulled (otherwise than on the ground mentioned in subsection (1)) in proceedings instituted during the period of six months beginning with the day on which it was issued, or
(b) the person’s spouse dies within that period,
the person may make an application for a full gender recognition certificate at any time within the period specified in subsection (3) (unless the person is again married).
(3) That period is the period of six months beginning with the day on which the marriage is dissolved or annulled or the death occurs.
(4) An application under subsection (2) must include evidence of the dissolution or annulment of the marriage and the date on which proceedings for it were instituted, or of the death of the spouse and the date on which it occurred.
(5) An application under subsection (2) is to be determined by a Gender Recognition Panel.
(6) The Panel –
(a) must grant the application if satisfied that the applicant is not married, and
(b) otherwise must reject it.
(7) If the Panel grants the application it must issue a full gender recognition certificate to the applicant.”
The only function of an interim gender recognition certificate is therefore to provide a document which can be used to obtain a divorce.
The other provisions of the GRA 2004 only apply where a full gender recognition certificate is concerned. These include, for instance, section 9, which provides that:
“(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”
By Paragraph 3 of Part 1 of Schedule 3 to the GRA 2004, the issue of a full gender recognition certificate obliges the Registrar General to make an entry in the (new) Gender Recognition Register and to mark the original entry in the register of births referring to the birth (or adoption) of the transsexual person to show that the original entry has been superseded. Paragraph 5 makes provision for certified copies to be made of any entry in the GRR and to be issued to anyone who would be entitled to a certified copy of the original entry relating to the transsexual person. It will not be apparent from the certified copy that it is compiled from the GRR. A short certificate of birth compiled from the GRR must, by Paragraph 6, not disclose that it is compiled from the GRR. Both copies of and short-form certificates therefore look the same as any other birth certificates; they therefore act, to all outward intents and purposes, as new birth certificates.
Not all provisions of the GRA 2004 require status or situations existing prior to gender recognition to be changed or dissolved. For instance, provisions as to parenthood (section 12), succession (section 15) and peerages (section 16) explicitly provide that the person’s gender has become the acquired gender does not effect their status or rights flowing therefrom.
Section 11(c) of the Matrimonial Causes Act 1973 provides that a marriage is void unless the parties are “respectively male and female.”
In Corbett v Corbett [1971] Probate Reports 83 it was held that marriage could only be between a woman and a man, determined on genital, gonadal and chromosomal factors, and should not take into account the party’s psychological beliefs, however genuine and profound.
Section 11(c) of the Matrimonial Causes Act 1973 and Corbett v Corbett have recently been reconsidered by the House of Lords in Bellinger v Bellinger [2003] UKHL 21. Their Lordships considered that the words “male” and “female” were to be given their ordinary meaning and referred to a person’s biological gender as determined at birth so that, for purposes of marriage, a person born with one sex could not later become a person of the opposite sex. They therefore held that it was not possible under English law for a person to marry another person who was of the same gender at birth, even if one of them had undergone gender reassignment surgery. They did, however, issue a declaration that Section 11(c) of the 1973 Act represented a continuing obstacle to the ability of the (male to female) transsexual petitioner to enter into a valid marriage with a man, and that it was therefore incompatible with her rights under Articles 8 and 12 of the Convention.
The Civil Partnership Act (the CPA 2004) came into force on 5 December 2005. It has the effect of allowing same sex couples to acquire a legal status for their relationships, with legal rights and responsibilities. It is, however, devoid of any religious element.


ITEMID: 001-57826
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1993
DOCNAME: CASE OF KLAAS v. GERMANY
IMPORTANCE: 2
CONCLUSION: No violation of Art. 3;Not necessary to examine Art. 8
TEXT: 6. At about 7.30 p.m. on 28 January 1986, the first applicant, a social worker, drew up outside the back entrance to the block of flats in Lemgo where she lived. She was accompanied by her daughter Monika, who, at the time of the incident that gave rise to the complaint, was eight years old. After she had opened the gate she was stopped by two police officers who had followed her and were standing in the gateway. They accused her of having driven through a red traffic light and of having tried to get away - an allegation denied by the applicant. The police officers claimed to have detected a strong smell of alcohol on her breath when they checked her driving licence. She agreed to be breathalysed. Despite having been shown what to do, she proved unable to provide a specimen of breath satisfactorily and was therefore told that she would have to accompany the police officers to the local hospital in order to have a blood test.
An altercation followed during which Mrs Klaas was arrested. The precise course of the events is disputed by the applicants (see paragraph 7 below) and the police officers (see paragraph 9 below).
She was then driven to the hospital for the blood test, which showed the level of alcohol in her blood to be 0.82 per ml (milligrammes per millilitre). She was subsequently released.
7. According to the applicants, Mrs Klaas agreed to have a blood sample taken, but explained that she wished first to accompany her daughter to a neighbour. One of the police officers refused to allow this and dragged her to the police car. She was warned that she could be charged with obstructing a public officer in the execution of his duties (Widerstand gegen die Staatsgewalt). When she called her daughter, the police officers said that they would look after the child. Thereupon she took her daughter by the hand, went to the back door, rang her neighbour’s doorbell and opened the door. At that moment one of the police officers grabbed her, twisted her left arm behind her back and her head knocked against the corner of the window- ledge. The police officers then handcuffed her. She lost consciousness for a short while. When she came round, she found herself by the police car and noticed severe pain in her left shoulder, which was being pressed towards her back by one of the police officers. She was subsequently able to get into the police car and was driven to the hospital.
8. The first applicant underwent two medical examinations. On 11 February 1986, Dr Schwering certified that he had examined the applicant on 29 January and noticed bruises which were about 10cm long on her right arm, considerable problems in moving her left shoulder, and bruises on that shoulder. He also stated that she would suffer long-term problems, in particular with her left shoulder. She was put on sick-leave until 8 February 1986. Furthermore, on 10 February 1986, Dr Krauspe, the chief surgeon at the local hospital, certified that he had examined the first applicant on 30 January 1986 and had reached an almost identical diagnosis.
9. On 29 January 1986, Police Constable (Polizeimeister) Bolte laid an information against the first applicant. She was charged with obstructing a public officer in the execution of his duties contrary to Article 113 of the German Criminal Code (Strafgesetzbuch), and of driving while under the influence of alcohol contrary to Article 316 of the said code.
Police Constable Bolte stated in his report that after Mrs Klaas had been informed that she had to undergo a blood test, she had attempted to escape into the darkness of the back-yard, whereupon he had grabbed her arm and stopped her.
The applicant had been very aggressive. When informed that she was to be arrested, she had suddenly calmed down and declared that she would come along when she had taken her daughter, whom he had assumed to be about twelve years old, to a neighbour. The police officers had agreed in order to avoid a further escalation of the events. They had followed the applicants to the back door of the house.
The first applicant had been about to follow her daughter into the house. She tried to close the door behind her but Police Constable Wildschut blocked the door open and Police Constable Bolte grabbed the first applicant’s right arm and pulled her outside. The child went upstairs.
According to the report, Mrs Klaas struggled, struck out and tried to free herself from the police officer’s grip. Police Constable Wildschut took her left arm and twisted it behind her back, whilst Police Constable Bolte kept a tight grip on her right arm.
With great difficulty the officers managed to control the applicant, who was putting up a fight. They handcuffed her in order to avoid further criminal offences being committed, in particular injury to the person. On their way to the police car she had attempted to throw herself to the ground, and he and his colleague had had to hold her arms. At that point another police car arrived. However, by that time, the applicant’s neighbour had already offered to take care of the child.
The officers noted on arrival at Lemgo Hospital that Mrs Klaas had a graze on her right temple.
10. On 22 April 1986 the criminal proceedings against the first applicant were discontinued by the public prosecutor’s office (Staatsanwaltschaft) at the Detmold Regional Court (Landgericht) for two different reasons, namely that the offence of driving while under the influence of alcohol was not proven and that the applicant’s guilt in resisting the police officers had been minimal (gering) and there was no public interest in prosecuting.
In November 1986 the competent administrative authority imposed an administrative fine of DM 500 for having committed the "regulatory offence" (Ordnungswidrigkeit) of driving with a blood alcohol content level of 0.82 per ml when 0.80 per ml was the legal limit. A driving ban of one month was also imposed.
The Lemgo District Court (Amtsgericht) confirmed this decision. The first applicant’s subsequent appeal to the Hamm Court of Appeal (Oberlandesgericht) and to the Federal Constitutional Court (Bundesverfassungsgericht) were dismissed.
11. On 24 April 1986 the first applicant laid an information against the police officers concerned. She alleged that they had assaulted her contrary to Articles 223 and 230 of the Criminal Code. In her pleadings of 24 April and 13 May 1986, Mrs Klaas claimed that the police officers had used a disproportionate amount of force, causing injuries to her head, left shoulder and upper right arm.
On 10 July 1986, following a telephone conversation between her lawyer and an official of the public prosecutor’s office in which Mrs Klaas’ allegations were withdrawn - allegedly after a warning that criminal proceedings against her would otherwise be continued - the proceedings against the police officers were discontinued.
12. On 18 July 1986, the first applicant filed a complaint (Dienstaufsichtsbeschwerde) with the Head of the Detmold District Administration (Oberkreisdirektor) against the police officers involved in the arrest. She stated that she had wanted to wait for her neighbour to come to the door but that she had not been able to as the bearded police officer had twisted her arm behind her back and her head knocked against the brick window-ledge. Subsequently she was forcibly taken to the police car where she was held with her back up against the rear of the car. The bearded man continued to pull her left shoulder back at regular intervals. At some point she was dazed.
She maintained that the blood test showed the level of alcohol to be 0.80 per ml. It was argued that the degree of force used against an unarmed woman was incomprehensible on an objective or subjective analysis; the mildest means of achieving the objective should have been employed.
13. On 18 September 1986, the Head of the Detmold District Administration, acting as the Police Department authority (Kreispolizeibehörde), dismissed her complaint. In the decision, it was stated in particular that after she had been informed that she would have to give a blood sample, she had attempted to run away. However, one of the police officers seized her arm and told her that she was under arrest. Her request to take her daughter to a neighbour’s first was granted. When the first applicant opened the door and tried to enter with her daughter, one of the police officers held her right arm fast, whereupon she started to kick and to hit out with her left hand. When the police officers held her tight she tried to escape. She had to be handcuffed. It was not accepted that her head knocked against the window-ledge at any moment in the course of the arrest. He concluded that the use of force had been justified and was not disproportionate to the aim pursued, namely the taking of a blood test.
14. The first applicant instituted civil proceedings in April 1987 against the Land North-Rhine Westphalia and the police officers concerned. She claimed compensation for the injuries sustained on 28 January 1986.
15. On 10 July 1987 the Detmold Regional Court, in a partial judgment, dismissed her complaint against the police officers on the ground that an official acting in the exercise of his duties does not incur personal liability.
16. On 9 October 1987 the Detmold Regional Court held a hearing in the case.
The applicant’s neighbour was the first to give evidence. She said that she had noticed Mrs Klaas’s very blotchy and tear-stained face despite the dim light, had seen the blond police officer holding her arms behind her back and had feared that she would collapse at any moment as her knees had given way and she had bent forward suddenly several times. The neighbour stated on further questioning that, judging from the first applicant’s behaviour, she must have been in terrible pain. The first applicant complained about the pain in her left shoulder and asked the police officers to remove the handcuffs. This request was repeated by the neighbour but refused by the police officers.
Police Constable Bolte confirmed the facts as set out in his report of 29 January 1986 (see paragraph 9 above). He added that he was not sure whether the first applicant had deliberately not blown into the breathalyser for a sufficient time or whether she had had genuine difficulties. He stated that she had not knocked her head against the wall when she was pulled outside, however he remained unable to account for the injury to her right cheek to which he had referred in the aforementioned report. Upon further questioning he corroborated the neighbour’s evidence that Mrs Klaas had requested that the handcuffs be removed and he explained that they had refused this request as they had feared more trouble. He said that she had not complained about any pains in her shoulder and that she had certainly not knocked her head against the wall. However, he acknowledged that she did not have the head injury before they spoke to her and said that he did not know whether she had got the injury to her right cheek during the scuffle when the handcuffs had been put on. He could not remember who had kept hold of Mrs Klaas until they had put her into the police car, or whether she had bent forward suddenly owing, for instance, to a jerking on her handcuffs and the resulting pain.
Police Constable Wildschut was the next to give evidence. He confirmed the general circumstances of the first applicant’s arrest as described by Police Constable Bolte, although he was not prepared to say that she had run away. After the applicant had opened the front door she had attempted to close it behind her but he had held on to it while his colleague kept a tight grip on her. As it was completely dark just outside the door he could not exclude the possibility that she could have knocked her head on the wall or on something else. In any event he did not notice it happening and it was only later that he became aware of her head injury. He stated that Mrs Klaas had vehemently resisted arrest which was why he had taken her left arm and twisted it behind her back and then handcuffed her arms in that position. He could not remember whether she had been handcuffed in the back-yard or whether they had first taken her to the street. He confirmed that she had requested that the handcuffs be removed but did not remember her complaining about any pain - in particular pain in her left shoulder. She continued, without success, to resist accompanying them, but he could not be sure who had been holding on to her while they waited for the second police car.
On further questioning Police Constable Wildschut stated that he did not remember whether she had bent forward suddenly while she was still handcuffed. She had resisted arrest and had been lashing out when he had twisted her arm behind her back, but he assumed that she had not intended to assault either him or his colleague. He denied that he had pushed the first applicant’s head against the window-ledge.
Finally, the second applicant, Monika, gave evidence. She stated that she remembered the incident with her mother and the police officers in their back-yard. She said, in particular, that her mother had rung the doorbell and opened the door using a key. Monika had then gone into the house and closed the door behind her. She was not aware that one of the police officers had forcibly kept the door open. Having closed the door behind her, she said that she had managed to see through the plain glass door panel that one of the police officers had pushed her mother’s head against the wall. She emphasised that the police officer had repeatedly pushed her mother’s head against the wall next to the door using his hand. The officer concerned had blond hair. Her mother and the police officer had been close to the door, approximately one metre away from it. She herself had not been right in front of the glass panel. She had subsequently run upstairs to their neighbour. She further explained that, when her mother had rung the doorbell and opened the door, she had been standing to Monika’s right. Her mother had opened the door only a little bit, and she had just been able to get in. She had then immediately closed the door behind her.
Whilst she did not recognise the police officers involved she thought that the dark-haired police officer had a beard. She confirmed that the light had been poor, but said that it had been light in the staircase. She had not seen either of the police officers twisting her mother’s arm behind her back.
17. On 30 October 1987 the Detmold Regional Court dismissed the first applicant’s compensation claims against the Land North-Rhine Westphalia. It held as follows:
"The plaintiff has no claim under Articles 839 and 847 of the Civil Code (Bürgerliches Gesetzbuch) taken together with Article 34 of the Basic Law for breach of official duty to her on the part of Police Constables Bolte and Wildschut.
The Chamber is admittedly convinced that the plaintiff incurred the injuries complained of when she was arrested by the two police officers. In any event the plaintiff ended up with a graze on her temple, contusion of the left shoulder and probably also concussion, as was also confirmed in part by witnesses Bolte and Wildschut and moreover does not seem to be seriously contested by the defendant Land. These injuries were probably sustained by the plaintiff in the context of her arrest.
It does not follow, however, that the defendant Land is liable in damages.
The arrest itself was not unlawful. Even if the plaintiff had no intention whatsoever to abscond, the situation nevertheless appeared otherwise to the police officers. The plaintiff was under suspicion of having committed a criminal offence, namely driving under the influence of alcohol in road traffic contrary to Article 316 of the Criminal Code, as the police officers had found that the plaintiff’s breath smelt of alcohol. On the basis of the credible statements of witnesses Bolte and Wildschut, the Chamber also assumes that the plaintiff’s conduct, first after failing to blow satisfactorily into the breathalyser and then later at the front door, gave both witnesses the impression that she intended to evade further investigation, namely the taking of a blood sample, by absconding. The Chamber can understand that the police officers could have foreseen very considerable difficulties if the plaintiff managed to get into the building without the two witnesses. First, the police officers could not know whether the plaintiff would have allowed them access to her flat at all. Secondly, the plaintiff would have had an opportunity of consuming more alcohol or at least claiming that she had done so, thereby making ascertainment of her blood alcohol level impossible or significantly more difficult to obtain.
In the light of these circumstances the arrest does not appear to be disproportionate either, but a perfectly reasonable means of ensuring that the further investigations could be carried out.
It is for the plaintiff to prove that in this initially lawful exercise of their duty the police officers went further than was necessary, by handling the plaintiff too roughly and in so doing injuring her or even by deliberately inflicting the injuries on her. Just as an attacker must prove that a person attacked by him, acting in self-defence, exceeded the limits of necessary self-defence (see Federal Court of Justice - Bundesgerichtshof -, Versicherungsrecht 1971, pp. 629 et seq.), so also, in the Chamber’s opinion, must this apply in a case such as the present one: a person who puts forward claims in respect of injuries suffered during a lawful arrest must prove that the police officers went beyond what was necessary and thereby caused the injuries.
The plaintiff, however, has not succeeded in providing such proof. On the evidence which has been taken, the Chamber is not convinced that the police officers caused the plaintiff’s injuries by exceeding what was necessary when arresting her.
With respect to the origin of the graze, the evidence of witness Monika Klaas, the plaintiff’s daughter, conflicts with that of witnesses Bolte and Wildschut. Whereas witness Klaas claims to have seen one of the police officers repeatedly knocking the plaintiff’s head against the wall by the door, the two police officers deny this. None of these three witnesses can be regarded as not having an interest in these proceedings; the two police officers could certainly expect disciplinary proceedings and a resumption of the criminal investigation if these proved to be the facts, while witness Klaas has a natural interest in supporting her mother’s claim and account of the facts. It is not clear to the Chamber which of the statements corresponds to what really happened. Definite findings of fact can therefore not be made in this respect.
The largely disinterested witness Krüger [the neighbour] was unable in her testimony to confirm the plaintiff’s assertion that witness Wildschut had pulled her arms upwards while she was handcuffed. Neither can such a conclusion be drawn merely from the fact that according to witness Krüger’s statements the plaintiff leant forward jerkily several times while witness Wildschut stood behind her.
Neither the balance of probability nor general experience militate in favour of accepting the plaintiff’s version of events. The Chamber considers it by no means improbable that the plaintiff sustained all her injuries when she resisted being handcuffed. In the process her head could easily have knocked against the wall; the shoulder contusion could also have occurred when she struggled while being restrained by the police and when the handcuffs were being put on her.
For these reasons the claim must be dismissed."
18. On 21 September 1988 the Hamm Court of Appeal dismissed the first applicant’s appeal. It upheld the decision of the Detmold Regional Court that Mrs Klaas had not proved that excessive force had been used against her by the police officers.
19. On 8 February 1989 a panel of three judges of the Federal Constitutional Court declined to accept for adjudication the first applicant’s constitutional complaint on the ground that it did not offer sufficient prospects of success. It considered in particular that the Court of Appeal’s assessment of the evidence did not appear arbitrary or otherwise in violation of constitutional law.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-22926
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: SELVANAYAGAM v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Nicolas Bratza
TEXT: The applicant, Ms Diane Selvanayagam, is a United Kingdom national, who was born in 1969 and lives in Newcastle-upon-Tyne. She is represented before the Court by Mr K. Kerrigan, a lawyer practising in Newcastle-upon-Tyne.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant has been involved in peaceful protests designed to draw attention to practices carried out at Corneyhaugh Mink Farm in Northumberland.
On 10 September 1997 a High Court interim injunction was obtained against the applicant (and others) under section 3 of the Protection from Harassment Act 1997 (“the Act”) by the plaintiffs to a civil claim against her, the Harrison family, who lived at the farm. The injunction was granted without the applicant having notice of the application, in her absence and prior to the issue of civil proceedings.
The Order restrained the applicant from pursuing a course of conduct which amounted to harassment of any of the plaintiffs including, in particular, communicating with them or coming onto their farm, the land immediately adjoining their farm or certain parts of a nearby public highway, whether for the purposes of protesting or otherwise. It provided:
“(1) This Order prohibits you from doing the acts set out in this Order. You should read it carefully. You are advised to consult your solicitor as soon as possible. You have a right to ask the Court to vary or discharge this Order.
(2) If you disobey this Order you may be found guilty of Contempt of Court and you may be sent to prison or fined and if fined your assets may be seized.”
It continued further as follows:
“VARIATION OR DISCHARGE OF THIS ORDER
The Defendant may apply to the Court at any time to vary or discharge this Order but if he wishes to do so he must first inform the Plaintiffs’ Solicitors in writing at least 24 hours beforehand.”
Thereafter the applicant states that she, acting in person, served a timely defence and a notice of application to have the injunction varied or discharged on both the High Court and the plaintiffs’ solicitors. She expected that the court would list the matter thereafter. No such listing and/or hearing had taken place prior to the applicant’s arrest for the criminal offence of harassment in March 1998. The applicant states that subsequent enquiries have revealed that the High Court did not have a copy of the application to vary or discharge the injunction on its file and that it appears that the document was lost either in the post or at the High Court office.
The magistrate in her criminal proceedings (see below) found as a fact that the applicant had served a timely defence on both the plaintiffs’ solicitors and on the court and had requested the removal of the injunction, but that she was still awaiting a reply and an opportunity to challenge the injunction at the time of her criminal trial.
In March 1998 the applicant was arrested and charged (along with two others) with a criminal offence under section 2 of the Act. The information laid alleged as follows:
“Diane Selvanayagam, jointly with others between 20th July 1997 and 17th March 1998 at Corneyhaugh Mink Farm, Kirkley Hall, Northumberland pursued a course of conduct which amounted to harassment of Peter John Harrison, contrary to section 2 of the Protection from Harassment Act 1997.”
The applicant was tried by a stipendiary magistrate. Evidence was heard for eight days between 29 July and 25 September 1998. On 13 October 1998, the magistrate acquitted the applicant, holding that, while her course of conduct amounted to harassment and she knew or ought to have known that it did so, it was reasonable in the circumstances. Pursuant to section 1(3)(c) of the Act, it was a defence for the defendant to show that in the particular circumstances the pursuit of the course of conduct was reasonable. In considering whether to regard the applicant’s behaviour as reasonable, the magistrate balanced the “highly valued and protected” right to protest against the effect of the protests on the occupants of the farm. He continued:
“...there has been in the evidence no suggestion of violence and not more than the smallest hint of possible damage and abusive language.
Even in the case of the last two I am far from certain about the value of the evidence. What I have heard and been impressed by is that all of them [the Defendants], and Miss Selvanayagam in particular, have gone out of their way to avoid such behaviour and have indeed counselled others against it.
What all this amounts to is that I am satisfied that the purpose of the protest and the way in which these three pursued it was reasonable and I therefore dismiss all the charges against them.”
The Director of Public Prosecutions appealed by way of case stated to the Divisional Court of the Queen’s Bench Division. The Divisional Court was required to answer the following question:
“Whether as a matter of law the course of conduct pursued by the defendant Selvanayagam could have been deemed to be reasonable having regard to the fact that the course of conduct was in breach of the terms of the High Court injunction served on the defendant Selvanayagam on 10 September 1997.”
The Divisional Court answered the above question in the negative (R v. Director of Public Prosecutions, ex parte Moseley and others, 9 June 1999, case no. CO/664/99 [“ex parte Moseley”]). It considered that on the basis that the conduct in question did amount to harassment and was in breach of the injunction, it was not open to the applicant on the facts as found to establish that she had a defence of reasonableness within section 1(3)(c) of the Act. Mr Justice Collins stated that:
“...The injunction, if granted, must be obeyed, and unless and until it is set aside, it binds the party in question. It cannot be right for an individual to say to him or herself, that he or she will ignore the terms of the injunction because he or she believes that the conduct in question is reasonable.
The course that must be adopted is to apply to set the injunction aside. The judge will then decide whether the conduct is reasonable, or should be prevented. He will carry out the balancing exercise. But, as it seems to me, it is incumbent upon a magistrate, faced with an injunction, to accept that it means that the defendant is unable to discharge the burden placed upon him by the Act of establishing that the conduct was reasonable.
For my part, I find it quite impossible to accept that it can be reasonable to pursue a course of conduct in breach of an injunction which is designed to stop such conduct.”
In a concurring judgment, Lord Justice Roch stated:
“It is, in my opinion, to be presumed that the injunction, although ex parte and interim, has been obtained properly, and it is to be obeyed until it expires, or is set aside or varied by the High Court. A person who is aware that he or she is subject to an injunction, made by the High Court, and who can apply to set it aside or to vary it, cannot be conducting him or herself reasonably if he or she deliberately and without reasonable excuse breaks the terms of the injunction.
Miss Selvanayagam was in breach of the injunction in two respects. She was upon the road outside the farm ... and she on occasions trespassed on the Harrisons’ land.
The particular circumstances, against which the reasonableness of that course of conduct had to be measured, included the existence of the High Court order. There was no justification put forward by Miss Selvanayagam either before the stipendiary magistrate or before this Court, for her disobeying the order of the High Court ...
What is certain, in my judgment, is that conduct which flouts a High Court order cannot be reasonable unless there exists a wholly exceptional excuse for doing so, such as the instance put forward by Mr. Starmer during argument, that it is necessary to go into a prohibited area to rescue someone who is in imminent danger. Any other view could lead to inconsistent conclusions being reached by the magistrates’ court and the High Court; a most undesirable result.”
While not necessary for the determination of the point in issue, during the course of his judgment, Mr Justice Collins also referred to the additional defence that the applicant had run under section 1(3)(a) of the Act (that she had pursued her course of conduct for the purpose of preventing or detecting crime) and observed that:
“... I find it difficult to see how a protest of this sort, carried on over a lengthy period of time, could be said to have been pursued for the purpose of detecting or preventing crime. It is no crime to run a mink farm and as the magistrate found, there was never any evidence of breaches of any regulations covering the manner in which the minks had to be kept.”
The Divisional Court directed the magistrates’ court to proceed in the light of its judgment.
The applicant thereafter applied to the Divisional Court for leave to present a petition of appeal to the House of Lords and for certification of the following point of law as one of general public importance:
“Whether conduct which is in breach of an injunction imposed in civil proceedings is capable of being reasonable under section 1(3)(c) of the Protection from Harassment Act 1997.”
On 19 July 1999, the Divisional Court certified the point of law as being one of general public importance. However, it refused the applicant’s application for leave to present a petition of appeal to the House of Lords.
On 6 October 1999, the applicant was granted legal aid to pursue a petition of appeal to the House of Lords. However, she was advised by both leading and junior counsel in conference on 21 October 1999, and in a subsequent written opinion by junior counsel on 5 November 1999, that her appeal had little prospect of success. Indeed, in that written opinion counsel stated that she was “quite certain that the House of Lords would not grant leave”. The applicant was then informed by her solicitors that her legal aid would be discharged, which occurred subsequently. The applicant thereafter instructed a new firm of solicitors on a pro bono basis to seek a further opinion from counsel regarding a potential appeal to the House of Lords. A further experienced barrister advised by telephone on 11 January 2000 that a petition to the House of Lords would be unlikely to be successful. She had, in fact, also previously received advice to the same effect on 10 June 1999 from the barrister who represented her in the Divisional Court. This avenue of appeal was therefore not pursued.
On 2 September 1999, as a result of the judgment of the Divisional Court, the applicant was convicted by the stipendiary magistrate. She was sentenced to an absolute discharge and an indefinite restraining order under section 5 of the Act, which read as follows:
“1) The Defendant is prohibited from assaulting, molesting, harassing, threatening, pestering or otherwise interfering with Mr. Peter John Harrison, his children or members of his family, Mrs. Alison Harrison, Mrs. Joan Gwendoline Harrison and Thomas Edward Harrison, by doing acts to cause them, their servants, agents, employees or customers harm whether directly or indirectly.
2) The Defendant is prohibited from making any communication to Mr. Peter John Harrison, his family, servants, agents, employees or customers whether in writing or orally, whether by telephone or otherwise.
3) The Defendant is prohibited from entering upon the land of Peter John Harrison at Corneyhaugh Mink Farm, Kirkley Hall, Northumberland, or travelling within half a mile thereof.”
On 29 October 1999, the applicant applied to the Crown Court for leave to appeal, out of time, against the magistrate’s decision to convict and sentence her. This application was rejected by the Crown Court on 13 January 2000.
On 12 April 2000, the applicant, acting in person, applied to the Divisional Court for permission to seek judicial review of the Crown Court’s decision. Permission was granted on 25 October 2000. At the full hearing on 26 February 2001, the Crown Court’s decision was quashed (R v. Newcastle Crown Court, ex parte Selvanayagam, 26 February 2001, case no. CO/1330/2000). Permission to appeal out of time was granted in relation to the applicant’s submissions concerning the defence which she had raised under section 1(3)(a) of the Act at the magistrates’ court trial, namely that she pursued her course of conduct for the purpose of preventing or detecting crime. She argued that it was her co-defendants who were primarily running the defence of reasonable conduct under section 1(3)(c) and that the magistrate effectively “rolled up” the defences that were being put forward under subsection (3) of section 1, without specifically differentiating between the evidence which was being put forward on behalf of her co-defendants and her own evidence.
The Divisional Court held that although the Divisional Court in ex parte Moseley had ruled that her reasonableness defence under section 1(3)(c) of the Act had been determined against her by the existence of the injunction, it was still open to the applicant to argue before the Crown Court that her actions were lawful under section 1(3)(a) of the Act. Lord Justice Latham stated:
“...the judge was wrong to conclude that the Divisional Court’s decision in any way precluded the applicant either as a matter of law from seeking to pursue her defence under section 1(3)(a), or in any way, insofar as he sought to do so, concluding that on the merits there was no basis upon which it could properly be said that there was material which could found such a defence. The applicant had put before him arguments which indicated that she had been seeking to obtain evidence or other material which would affect the regulatory or prosecuting authorities based upon her assertion that criminal activity was taking place at the mink farm. She may or may not, at the end of the day, on the facts be able to establish her case, because the burden of proof will be on her; and, in particular, she will have the difficulty, if she is to succeed, of having to establish that the purpose of her activities was for preventing or detecting crime...Those will be issues which are properly issues to be determined on the basis of proper conclusions on the facts after the hearing of evidence. It seems to me that nothing that was decided by the Divisional Court can impinge upon the applicant’s right to have those issues properly so resolved.” ([2001] EWHC ADMIN 152 at paragraph 15)
Thereafter, the appeal in the Crown Court was listed for 2 July 2001. However, by letter of 25 June 2001 the applicant informed the Crown Court that she wished to abandon the appeal for medical reasons.
Section 1 of the Act creates a general prohibition on harassment as defined in that section, subject to certain exceptions, stating in its material part:
“(1) A person must not pursue a course of conduct –
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other. ...
(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows –
(a) that it was pursued for the purpose of preventing or detecting crime, [or] ...
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.”
Non-compliance with section 1 of the Act can give rise to criminal (section 2) and civil (section 3) liability.
Section 2 of the Act states in its material part:
“(1) A person who pursues a course of conduct in breach of section 1 is guilty of an offence.”
Section 3 of the Act states in its material part:
“(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.”
The availability of a civil remedy enables injunctions to be granted during the course of civil proceedings. A civil cause of action must exist before an injunction can be granted.
The breach of any injunction can give rise to civil committal proceedings. At any such proceedings the court has the power to commit a person who is found to be in breach of the injunction to prison.
Sections 3(3) to 3(9) of the Act make provision for the procedures that can be taken and the sanctions which can be imposed if a civil injunction is breached. Its provisions, while drafted at the time of the commencement of the Act on 16 June 1997, only took effect as from 1 September 1998. These provisions were therefore not in force at the time that the applicant was charged under section 2 of the Act. The provisions read, in relevant part:
“(3) Where –
(a) in [civil] proceedings the High Court or a county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and
(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,
the plaintiff may apply for the issue of a warrant for the arrest of the defendant. ...
(5) The judge or district judge to whom an application under subsection (3) is made may only issue a warrant if -
(a) the application is substantiated on oath, and
(b) the judge or district judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction.
(6) Where –
(a) the High Court or a county court grants an injunction for the purpose mentioned in subsection (3)(a), and
(b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction,
he is guilty of an offence.”
Section 5 of the Act enables a court sentencing a person who commits a criminal offence under section 2 to impose a restraining order upon that person. This is an order prohibiting the defendant from doing anything which is set out in the order. By virtue of section 5(4), the prosecutor, the defendant or any other person mentioned in the order may apply to the court which made it for it to be varied or discharged by a further order.
Section 5(5) states:
“If without reasonable excuse the defendant does anything which he is prohibited from doing by an order under this section, he is guilty of an offence.”
By section 5(6), a person guilty of an offence under section 5(5) can be sentenced on conviction on indictment to imprisonment for a term of up to five years, or a fine, or both, or, on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.
The Divisional Court in this case, ex parte Moseley, held, as set out in the above facts, that the course of conduct pursued by the applicant could not be deemed to be reasonable having regard to the fact that it was in breach of the terms of a High Court order.


ITEMID: 001-102119
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF TARNAWCZYK v. POLAND
IMPORTANCE: 3
CONCLUSION: Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Pecuniary and non-pecuniary damage - award
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1930 and lives in Sanok. She owns a plot of land with a house where she lives with her son and his family. The application relates to plot no. 1681 (at present 1444/3).
6. In the 1970s a general land development plan for the municipality of Sanok was adopted. The applicant's property, which was at that time owned by her relatives, was designated for public purposes.
7. On 28 May 1977, acting under the Act of 1958 on Rules and Procedures of Expropriation of Real Estate (ustawa o zasadach i trybie wywłaszczania nieruchomości), the Governor of Krosno (Wojewoda Krośnieński) decided to enter a notice about the institution of expropriation proceedings in respect of the property in the land and mortgage register kept by the local Public Notary Office.
8. An official expropriation decision was never issued. However, experts appointed by the Governor subsequently conducted numerous visits to estimate the property's value with the purpose of assessing the compensation payable for the future expropriation.
9. The applicant submitted that she had been informed several times by the Town Office that in view of the expropriation an earlier purchase of her property by the municipality was possible and that she and her family would be entitled to obtain new apartments and compensation.
10. The applicant carried out minor necessary repairs, but as the house had been built in 1934, it required general renovation. She submitted that in the late 1970s she had been told by a local official that she would not receive permission for a general renovation of the house because of the expropriation notice in the land register. The Government contest this submission.
11. In February and November 1979 the Public Roads Maintenance District Authority (Rejon Eksploatacji Dróg Publicznych), a Stateowned enterprise, carried out some demolition works on the property concerned. The applicant was neither requested to give her assent to them nor informed of them beforehand. The works involved cutting down trees and shrubs in her garden and extensive excavations. As a result of these works the applicant's garden was destroyed, her garage collapsed, apparently in March 1981, and water accumulating in ditches penetrated into the cellar. The works were suddenly interrupted without reason. The applicant was paid compensation for plants and fruit which had been destroyed.
12. Upon the applicant's protests she had been repeatedly reassured by the authorities that the land would soon be expropriated and she would receive appropriate compensation. At the same time, extensive construction works had continued on the neighbouring properties, which had already been expropriated.
13. In March 1981 the applicant informed the Town Office that as a result of the works water had been gathering on the land and endangering the stability of the house. In May 1981 the Town Office informed the applicant that her land would be bought out after the relevant estimates had been drawn up. On an unspecified later date in the 1980s the applicant obtained compensation for the fact that following the works she could not use her land as a garden for several years.
14. During the 1980s and 1990s the applicant repeatedly applied to the Town Office demanding that her land be restored to its previous condition or that it be purchased and new accommodation granted to her, but to no avail.
15. On 4 February 1987 she complained to the Krosno Governor. She pointed out that her plot of land had been designated for expropriation, but that no construction works in connection with the viaduct had started and that she had not been served with any expropriation decision. She reiterated that the property had sustained serious damage and the authorities had refused her requests for it to be redressed until the actual expropriation had been carried out.
16. By a decision of 15 June 1989 the Sanok District Court declared that the applicant had acquired ownership of plot no. 1681 by acquisitive prescription as of 1 January 1977. On 12 March 1990 a land and mortgage entry for that plot was established in the applicant's name. A notice about the expropriation proceedings was put in the relevant part of the entry.
17. In 1992 the applicant divided plot no. 1681 into two smaller plots (nos. 1681/1 and 1681/2). Subsequently, on 25 November 1992 the applicant sold plot no. 1681/1 (at present no. 1444/1) to a third party.
18. On 16 February 1995 the applicant requested the Sanok Town Office to take the relevant steps in order to have the expropriation warning concerning plot no. 1681/2 deleted from the land register, submitting that the warning had become groundless. On 16 February 1995 the Town Office lodged the necessary application with the land registry, indicating that the expropriation plans had been abandoned on an unspecified date. On 23 February 1995 the District Court complied with the request.
19. On an unspecified later date the plot was divided into two smaller plots and as a result, a third plot, no. 1681/3, was created. On 15 March 1995 the applicant sold it.
20. On 25 August 1998 the applicant asked the Krosno Governor to clarify the situation of her property and for compensation in connection with the expropriation. The matter was transferred to the Sanok Mayor. On 9 October 1998 the Town Office informed her that the new local development plan was being drafted. The plan would determine in detail the outline of communication routes in the city and as a result also the advisability of buying out her real estate. The Office reminded her that until expropriation it was the owner who was obliged to maintain his house appropriately. Bearing in mind, however, the restrictions on general renovations the Office would consider the possibility of providing the applicant with another flat as a settlement with her.
21. On 7 January 1999 the applicant again applied to the Sanok Town Office for compensation. She mentioned on that occasion that she had obtained compensation, in an unspecified amount, for several years when she could not use the land as a result of damage caused by works carried out in 1979.
22. By a letter of 26 February 1999 the applicant was informed by the local authorities that they did not envisage using her plot of land for public purposes.
23. On 10 May 1999 the applicant instituted civil proceedings against the State Treasury represented by the Sanok District Office (Urząd Rejonowy) in respect of non-compensated pecuniary damage she had sustained as a result of expropriation proceedings having been instituted in respect of plot no. 1681/2. On 7 June 1999 the applicant was exempted from court fees and a legal-aid lawyer was later appointed to represent her.
24. On 29 September 1999 the Mayor of Sanok District (Starosta Powiatowy) replied to a summons sent by the court to the Chief of the District Office (Urząd Rejonowy) and explained that as a result of the reform of the local administration the appointment of heads of district offices had ceased as of 31 December 1998. Until that date the heads of district offices had been competent to represent the State Treasury in matters concerning the management of its properties.
25. On 29 September 1999 a hearing was held. The defendant failed to attend it. In connection with the Mayor of Sanok District's letter the applicant was requested to determine the legal entity against which she directed her statement of claim.
26. In reply, on 19 November 1999 the applicant's lawyer indicated the Podkarpackie Governor as representing the defendant State Treasury. He also specified the applicant's claim, indicating that she demanded compensation for the physical damage to her house resulting from the planned expropriation which had been caused by the fact that she had had to abstain from carrying out major renovation works and by the changes in the land configuration caused by the works carried out in 1979.
27. On 17 January 2000 the Podkarpackie Governor replied to the statement of claim, arguing that he could not act as a defendant in the proceedings. According to Article 11 of the Land Management Act of 21 August 1997, it was the Head of District (starosta powiatowy) who should represent the State Treasury in matters relating to expropriations, given that expropriations belonged to the so-called “commissioned tasks” of the Government administration (zadanie z zakresu administracji rządowej). Until 31 December 1998 the State Treasury had been represented in such cases by heads of district offices. From the statement of claim it could be assumed that the expropriation had to be effected upon the Sanok community's motion. The plaintiff had, however, failed to submit any documents to confirm the statements included in her action. It should therefore be rejected in respect of the Podkarpackie Governor.
28. At a hearing held on 27 January 2000 the applicant's lawyer maintained his opinion that the action should be pursued against the Podkarpackie Governor as he was the successor of the Rzeszów Governor who had issued the first decision in the applicant's case in 1977.
On 18 June 2001 an expert opinion was submitted, assessing the physical damage to the applicant's house and garage at 22,976 Polish zlotys (PLN) and the value of construction materials which the applicant had bought for the purposes of general renovation but had not used at PLN 5,859. On an unspecified later date the applicant limited her claim to the damage suffered as a result of the 1979 construction works, the deterioration of the buildings and the waste of building materials.
29. On 28 November 2001 the Krosno Regional Court awarded the applicant compensation amounting to 28,835 PLN. That amount covered both the physical damage to the house and the cost of the building materials referred to above. The court found that there had been an obvious causal link between the expropriation proceedings instituted in the past in respect of the applicant's property on the one hand, and, on the other, the works carried out in 1979 by a State-owned enterprise and the ensuing damage to the applicant's house. It also noted that because of the pending expropriation proceedings she could not use the building materials she had purchased for the general renovation. It therefore found the compensation claim against the Podkarpacki Governor, acting as the legal successor of the former Krosno Governor, justified.
30. The Governor appealed, arguing that he did not have standing in the proceedings, given that following the two major administrative reforms, in 1990 and 1998, it was the Mayor of Sanok District who was competent to represent the State Treasury in such matters.
31. By a judgment of 21 February 2002 the Rzeszów Court of Appeal allowed the appeal under the applicable legislation and dismissed the applicant's claims. The court first noted that under the applicable land-planning legislation the mere fact that the applicant's property had been designated for future expropriation and that certain restrictions on the use of property had resulted from it did not entitle her to any compensation as the applicable laws clearly excluded such entitlements. Nonetheless, the applicant had in the past received compensation, in an unspecified amount, for certain damage caused to her property after the expropriation proceedings had been instituted. As to the claim concerning the value of the building materials, the court was of the view that it had not been shown that any official decision or information preventing her from renovating the house had been given or communicated to the applicant.
32. As for the physical damage to the house and garage, the court stated that the applicant had not established the responsibility of the defendant State Treasury for it. According to the court, it was essential to establish which administrative entity was originally to benefit from the property's expropriation and which public authority had ordered the works carried out on the applicant's plot. It fell to the applicant to establish the legal and factual elements of the case decisive for the determination whether it was the State Treasury or the local municipality which should have been sued in the case. As the applicant had failed to show any legal basis for the responsibility of the State Treasury, the claim should be dismissed.
33. The applicant did not lodge a cassation appeal as her legalaid lawyer refused to prepare and lodge it with the Supreme Court.
34. On 31 January 1961 Parliament (Sejm) enacted the Local Planning Act 1961 (ustawa o planowaniu przestrzennym). It was subsequently replaced by the Local Planning Act of 12 July 1984 (ustawa o planowaniu przestrzennym).
35. On 7 July 1994 a new Local Planning Act (ustawa o zagospodarowaniu przestrzennym) was enacted. It entered into force on 1 January 1995.
36. On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994.
37. On 27 March 2003 a new Local Planning Act (ustawa o planowaniu i zagospodarowaniu przestrzennym) was enacted which repealed the 1994 Act.
38. From 1958 until 1984 the criteria and procedure applicable with regard to expropriation of individual properties were set out in the Act On Rules and Procedures For Expropriation of Real Estate 1958 (ustawa o zasadach i trybie wywłaszczania nieruchomości).
39. From 29 April 1985 to 1 January 1998 the rules governing the administration of land held by the State Treasury and municipalities were laid down in the Land Administration and Expropriation Act of 29 April 1985 (ustawa o gospodarce gruntami i wywłaszczaniu nieruchomości - the “1985 Land Administration Act”).
40. Article 50 of this Act provided that properties could be expropriated only for the benefit of the State or a municipality.
41. Pursuant to Article 53 (1) of the Act, a decision on expropriation had to include in particular:
“(1) an indication of the property to be expropriated, ...
(3) an indication of the party upon whose initiative the property is being expropriated,
(4) an assessment of the amount of compensation,
(5) identification of the persons (name, surname and address) entitled to compensation,
(6) detailed factual and legal grounds,
(7) instructions on appeal procedures.”
42. Under Article 55 of the Act, expropriation was to be carried out against payment of compensation. The payment was to be made within fourteen days from the date on which a decision to expropriate had become final.
43. On 1 January 1998 the 1985 Land Administration Act was repealed and the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the 1997 Land Administration Act”) was adopted, containing similar provisions on expropriation and compensation.
44. Neither under the 1961 nor under 1984 Local Planning Acts (see paragraph 34 above) were owners of properties to be expropriated in the future entitled to any form of compensation for damage resulting from restrictions on the use of their property and the reduction in its value originating in expropriations to be carried out at a future undetermined point in time.
45. Section 36 of the Local Planning Act enacted in 1994 created for local authorities a number of obligations towards owners whose properties were to be expropriated at an undetermined future date under land development plans adopted by competent municipal authorities. The municipalities were obliged either to buy plots designated for future expropriation under local land development plans, or to replace those plots by other plots within six months from the date on which a relevant request was submitted by the owner, or to award compensation for damage caused by the fact that the plot was designated for future expropriation.
46. However, this obligation and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force, that is to say, to plans adopted by local municipalities after 1 January 1995.
47. Pursuant to the 1994 Act, plans adopted before the date of its entry into force were to expire on 31 December 1999.
48. In 1999 an amendment to the 1994 Act was adopted under which the validity of such plans was extended for a further two years, namely until 31 December 2001.
On 21 December 2001 Parliament passed a law amending the Local Planning Act 1994 which extended until the end of 2002 the validity of the land development plans adopted before 1 January 1995.
49. Under section 87 of the 2003 Act (see paragraph 37 above), all local plans adopted before 1 January 1995 remained valid, but not beyond 31 December 2003.
50. Compensation entitlements for owners, provided for by the 1994 Act (see paragraph 45 above), were in essence maintained by the 2003 Act. Pursuant to section 36 of that Act, when, following adoption of a new local land development plan, the use of property in the manner provided for by a previous plan has become impossible or has been restricted, it is open to the owner to claim compensation from the municipality, or to request the municipality to buy the plot. Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts.
51. Before 1990 ownership of publicly-owned property was essentially assigned to the State Treasury.
52. The Local Government (Introductory Provisions) Act of 10 May 1990 (Przepisy wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “the 1990 Act”), which came into force on 27 May 1990, and other related statutes enacted at that time, re-established local government and municipalities and transferred to them powers that had previously been exercised solely by the local State administration. Pursuant to section 5(1), ownership of land which had previously been held by the State Treasury and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality.
53. Section 36 § 3 (3) of the Act provides, as far as relevant:
“The State Treasury takes over:
3) obligations and receivables of local bodies of state administration (...) resulting from final and binding court rulings and administrative decisions delivered before 27 May 1990 (...).”
54. In 1970 the Supreme Court held that in cases where it was obvious from a statement of claim which organisational entity should represent the State Treasury in the proceedings, the court should not reject it even if a plaintiff had wrongly indicated the entity; it was obliged to serve the statement of claim on the appropriate entity (decision of 17 December 1970, I PZ 78/70.)
55. Section 36 § 3 (3) of the 1990 Act, introducing the first stage of the reform of local administration (see paragraph 52 above) raised doubts as to which legal entity was liable for damages in connection with an unlawful administrative decision issued by the State before the administrative reform. The problem was subject to divergent judicial interpretation.
56. On 7 January 1998 the Supreme Court delivered a judgment (II CKN 550/97) in which it concluded that the municipality should be sued for compensation for damage caused by an administrative decision delivered before 27 May 1990.
57. On 1 August 2008 the Supreme Court held that when a plaintiff erred in the statement of claim by indicating the wrong organisational entity of the State Treasury, that shortcoming should be regarded as relating to the representation of the defendant and rectified accordingly; the court was obliged to ensure of its own motion that the appropriate organisational entity was summoned to act in the proceedings (II CK, 90/02).
58. On 16 November 2004 a panel of three judges of the Supreme Court, adopted a resolution (no. III CZP 64/04), finding that the municipality – and not the State Treasury – had the legal capacity to be sued for damages in connection with an administrative decision issued before 27 May 1990, provided that the decision had been annulled or declared unlawful after that date.
59. In a resolution of 7 December 2006 (no. III CZP 99/06), adopted by a panel of seven judges, the Supreme Court concluded that the State Treasury had the capacity to be sued for damages arising from an administrative decision delivered before 27 May 1990, even if the decision had been annulled or declared null and void after that date. The resolution was adopted following the referral of a legal question to the Supreme Court by another court of appeal which had a similar case before it.
60. The Supreme Court maintained this position in several subsequent judgments.


ITEMID: 001-98062
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF RUOKANEN AND OTHERS v. FINLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 10
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The first and second applicants were born in 1951 and 1967 and live in Helsinki and Tampere respectively. The applicant company is based in Helsinki. The first applicant is the editor-in-chief of the applicant company and the second applicant is a journalist.
6. On 6 September 2000 a student was allegedly raped at a party which was held to celebrate a local baseball team's victory in the Finnish championship. On 11 May 2001 the applicant company published an article in the magazine Suomen Kuvalehti about this incident entitled “A student raped at the baseball party”. The content of the article was the following:
“A girl studying in K. [name of the city] was raped at the party to celebrate the victory of K.P. [name of the team] last September. Several players of the team participated in the rape.
The folk high school of K. confirms that their student was a victim of rape at the party to celebrate the victory of K.P. held on 6 September 2000.
The girl had been invited by the gold-medal team to attend “an after party” in a hotel in K. According to the information received by Suomen Kuvalehti, the rapist was one of the players of the team but there were also other players in the hotel room, some of them holding the victim, some of them watching. The rape was interrupted when one of the players of the team entered the room and ordered the others to stop the rape.
The student girl is an adult. She has given a written statement about the incident but does not wish, at least for the time being, to report the incident to the police.
The folk high school has reported the incident to the city officials, to the leaders of the baseball team and to its main sponsor.
K.P. won the second consecutive gold medal in the Finnish championship league last autumn. The team defeated S.J. straight 3-0.”
7. The article did not include any photographs. Moreover, the statement “Baseball winning party ended in a rape” was printed on the cover of the magazine.
8. The players had not been contacted for their comments before the article in question was published but the magazine published in its next issue a reply given by them in which they denied being guilty of any crime.
9. The content of the article was based on a statement given by the victim to the folk high school of K. on the following morning and which had been corroborated by two witnesses. Several other persons had also made statements supporting the victim's account of the facts.
10. The police started to investigate the alleged rape after the article had been published. According to a press release issued by the police on 19 April 2002, the victim of the alleged rape was not able to identify the offender or the offenders nor was she able to clarify the events in such detail that the offence could be attributed to a certain person or persons. Consequently, the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) interrupted the pre-trial investigation.
11. On 30 October 2002 the public prosecutor brought charges for aggravated defamation against the first applicant, the editor-in-chief of the applicant company, and the second applicant, the journalist. The baseball team pursued a compensation claim against all the applicants, which was joined to the criminal charges.
12. On 26 March 2003 the Espoo District Court (käräjäoikeus, tingsrätten), after an oral hearing, sentenced the first and second applicants to pay sixty day-fines, amounting to 3,540 and 1,920 euros (EUR) respectively, for aggravated defamation. Moreover, all the defendants in the domestic proceedings were jointly and severally ordered to pay the baseball team EUR 89,000 plus interest for non-pecuniary damage as well as for costs and expenses. The court found that the statement made by the rape victim had not been reliable since she had not brought the issue to the police's attention. The local public had not been aware of the incident until the article in question was published in the mass media. All members of the baseball team had suffered non-pecuniary damage due to the false accusations published in the article. The court concluded that the accusations were so serious that their accuracy should have been verified very carefully, which the applicants had failed to do. As to the compensation awarded, the court noted that the defamation was directed at all players of the team and that they could receive compassionate support from each other. The court took this into account when reducing the amount of compensation awarded for their suffering.
13. On 9 May 2003 the applicants appealed to the Helsinki Appeal Court (hovioikeus, hovrätten), claiming that they had had strong reasons to believe that the accusations were true. If the same evidence had been presented in criminal proceedings, it would have led to the conviction of the offender. The police had been aware of the incident but had not done anything even though rape was an offence that always required ex officio public prosecution. The applicants claimed under Article 10 of the Convention that their right to freedom of expression had been violated.
14. The Helsinki Appeal Court held an oral hearing from 6 to 8 June 2005. On 11 October 2005 it upheld the Espoo District Court's judgment. The Appeal Court stated the following:
“Freedom of expression and protection of private life and honour are fundamental rights. According to Article 10 § 1 of the Constitution, everyone's honour is guaranteed. Freedom of expression and protection of honour are also human rights protected by the European Convention on Human Rights. Therefore, when interpreting the extent of these fundamental rights, the case-law of the European Court of Human Rights must also be taken into account.
...
According to Article 10 paragraph 2 of the European Convention on Human Rights, the exercise of freedom of expression may be subject to such restrictions and penalties as are prescribed by law and are necessary in a democratic society, for the protection of the reputation of others. The European Court of Human Rights has, inter alia, in its judgment Karhuvaara and Iltalehti v. Finland of 16 November 2004 taken a position with respect to the freedom of expression of journalists, stating that the press must not overstep certain bounds in respect of the rights and the reputation of the others, although journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. Similarly in the case Pedersen and Baadsgaard v. Denmark of 17 December 2004.
According to Article 6 paragraph 2 of the European Convention on Human Rights, everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The European Court of Human Rights has found in the case Pedersen and Baadsgaard v. Denmark of 17 December 2004 that the ordinary journalistic obligation to verify a factual allegation required that the journalists should have relied on a sufficiently accurate and reliable factual basis which could be considered proportionate to the nature and degree of their allegation, given that the more serious the allegation, the more solid the factual basis had to be. In the case “Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH v. Austria of 14 November 2002 the above-mentioned court stated that, as the case had only reached an early stage of the criminal proceedings, particular care had to be taken to protect a person against “trial by the media” and to give effect to the presumption of innocence.
It must be decided on the one hand whether the honour of [the players] has been violated and on the other hand, whether there were sufficient reasons to restrict [the applicants'] freedom of expression.
The article in question mentions that some of the players of the K.P. were guilty of rape. As it was mentioned in the article that the rape took place at the party to celebrate the victory of K.P., one can reasonably think that it was especially the players of the winning team that were involved. [The second applicant] has confirmed during the Appeal Court proceedings that by players he had meant the players of the winning team.
The article was written in such a manner that any one of the players could have been guilty of a serious crime. The maximum sanction for the alleged crime is ten years' imprisonment. Before the publication of the article, not even the pre-trial investigation had started. Labelling someone guilty before a matter has been resolved by a court of law would mean rendering a premature public judgment, the consequences of which could be difficult to repair. Also and from the general point of view, taking into account ultimately the ability of the courts to function, the public must not have false expectations or misunderstandings (for example KKO 2000:54). The allegation has violated [the players'] right to the presumption of innocence. Moreover, the allegation of having committed a serious crime is an act that is conducive to causing damage and suffering or contempt. On the above-mentioned grounds the Appeal Court finds, like the District Court, that [the players'] honour has been violated.
[The applicants] have alleged in the Appeal Court that the police of K. had known about the rape but had not taken any measures. Concealing a serious crime is an issue of social relevance about which the press must be able to write. However, the article does not mention that the police tried to conceal the matter or that the folk high school or anybody else had even informed the police. On the contrary, the article mentioned that the alleged victim did not want to report the incident to the police. Even though according to the article the folk high school had reported the incident to the city officials, to the management of the baseball team and to its main sponsor, this part of the article does not, bearing in mind the possibility of the said instances to act in the matter, show any intention to conceal the matter.
On the above-mentioned grounds, the Appeal Court finds that the essential function of the press in the core area of freedom of expression and as a guardian against misuse of power in a democratic society is not at stake in the present case, even though the pre-trial investigation into the alleged rape was started only after the publication of the article.
[The first and second applicants] have not demonstrated that they had sufficient reasons to believe that the allegations made in the article were true. They have stated that they did not even try to contact [the victim], the players or their team. [The first and second applicants] have declined to reveal their sources. By not revealing their sources, they have taken the risk of possibly being convicted for defamation. As stated above, there is no indication that the alleged rape was commonly known in K. before the publication of the article. By relying solely on the statement made by the [victim], in which the perpetrators were not identified in any other way than that the rape had taken place at the winners' party, [the first and second applicants] could not have reasonably considered the statement as being true. The statement was made by private persons and in order that the folk high school could later demonstrate that it had given sufficient instructions in the matter. The statement had not been written on [the victim's] initiative. One could not reach such a conclusion on the basis of the statement that only some of the players were guilty of rape. [The first and second applicants] have failed to verify sufficiently that the information about the players being guilty of rape was true, although they had had the possibility to clarify the issue. The nature and the seriousness of the crime required that the article was particularly accurate.
There are no reasons to estimate that [the players'] right to honour would be lesser than [the first and second applicants'] right to freedom of expression. Restricting [the first and second applicants'] right to freedom of expression was necessary in order to protect [the players'] honour and their presumption of innocence. ....”
15. On 12 December 2005 the applicants applied for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds for appeal relied on before the Appeal Court.
16. On 15 May 2006 the Supreme Court refused leave to appeal.
17. Chapter 24 (531/2000), Article 9, of the Penal Code (rikoslaki, strafflagen) reads as follows:
“A person who (1) spreads false information or a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or (2) makes a derogatory comment about another otherwise than in a manner referred to in subparagraph (1), shall be sentenced for defamation to a fine or to imprisonment for a maximum period of six months.
Criticism that is directed at a person's activities in politics, business, public office, public position, science, art or in a comparable public position and that does not obviously overstep the limits of propriety does not constitute defamation referred to in paragraphs (1) and (2).”
18. Article 10 of the same Code provides that if, in the defamation referred to in Article 9, the offence is committed by using the mass media or otherwise by making the information or insinuation available to a large number of people, the offender shall be sentenced for aggravated defamation to a fine or to imprisonment for a maximum period of two years.
19. Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslagen; Act no. 909/1974), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the contents of printed material.
20. Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974, as amended by Act no. 509/2004) stipulates that damages may also be awarded for distress arising, inter alia, from an offence against liberty, honour, domestic peace or from another comparable offence. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering.
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-61017
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF BAKKER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - domestic proceedings - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. The applicant is a Dutch national, born in 1957 and living in Bregenz (Austria).
10. The applicant is a physiotherapist who completed his professional training in Belgium and received his diploma in 1986. From 1987 to 1993 he worked as a physiotherapist in Austria during which time he was employed by an association working in that field.
11. On 19 February 1992 the Vorarlberg Regional Governor (Landeshauptmann) recognised his diploma with suspensive effect until he accomplished two additional exams. On 11 January 1995 the Regional Governor completed the decree of recognition upon the applicant’s submission of the required certificates.
12. On 4 April 1995 the applicant filed a request with the Vorarlberg Regional Governor for the authorisation to work as a self-employed physiotherapist. He further submitted an employment certificate dated 4 January 1994, which had been issued by the association he had worked for.
13. On 26 July 1995 the Regional Governor refused to grant the applicant’s request. It found that the applicant did not comply with the requirements set out in section 7 § 3 of the Act on Medico-Technical Services (Bundesgesetz über die Regelung der gehobenen medizinisch-technischen Dienste, MTD-Gesetz). According to this provision the right to work as a self-employed physiotherapist may only be granted after three years of authorised professional practice within the last ten years.
14. On 31 January 1996 the Ministry for Health and Consumer Protection (Ministerium für Gesundheit und Konsumentenschutz) partly granted the applicant’s appeal. It found that the Regional Governor should have based its decision on section 68 § 6 of the Nursing Act (Krankenpflegegesetz) according to which the right to work as a self-employed physiotherapist may already be granted after two years of authorised professional practice within the last ten years. It held that, as regards the content, the Regional Government had decided correctly, however, it had based its decision on the wrong legal provision.
15. On 11 April 1996 the applicant filed a complaint with the Administrative Court. He requested an oral hearing and asked the court to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty.
16. On 23 August 1996 the applicant filed another request with the Regional Governor in order to be granted the right to work as a self-employed physiotherapist.
17. On 28 November 1996 the Regional Governor also rejected this request. He held that the applicant was authorised to work as physiotherapist in Austria since 11 January 1995 following recognition of his foreign diploma. His employment at the association had been before that time and could not be considered as “authorised” professional practice within the meaning of section 68 § 6 of the Nursing Act.
18. On 28 February 1997 the Ministry for Health and Consumer Protection rejected the applicant’s appeal on formal grounds, applying the principle of res iudicata.
19. On 22 May 1997 the applicant filed a complaint with the Constitutional Court, requested an oral hearing and asked the court to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty.
20. On 10 June 1997 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It found that his case did not raise serious questions of constitutional law or of the application of Community law and that the matter was not excluded from the competence of the Administrative Court.
21. On 22 June 1997 the applicant filed a complaint with the Administrative Court against the Ministry’s decision of 28 February 1997, requesting, inter alia, an oral hearing. He further asked the court to seek a preliminary ruling from the European Court of Justice under Article 177 of the EC Treaty on the question whether the refusal to exercise his profession as a self-employed physiotherapist in Austria was in accordance with Community law.
22. On 4 December 1997 the Feldkirch Regional Court, in the course of official liability proceedings instituted by the applicant, also requested the Administrative Court to decide upon the lawfulness of the decision by the Ministry for Health and Consumer Protection of 31 January 1996.
23. On 20 January 1998 the Administrative Court, in a joint decision, dismissed the applicant’s complaints of 11 April 1996 and 22 June 1997 and the request by the Regional Court without holding an oral hearing, relying on section 39 § 2 (6) of the Administrative Court Act. It confirmed the decisions by the Ministry for Health and Consumer Protection as being lawful. It further held that there was no issue that would require a preliminary ruling by the European Court of Justice, since the applicant’s requests did not concern the interpretation of a specific provision of Community law but rather challenged the implementation of national law exercised by Austrian authorities. The decision was served on the applicant’s counsel on 23 February 1998.
24. On 4 June 1998 the Feldkirch Regional Court, dismissed the applicant’s claim relating to official liability proceedings. It found that there was no legal basis in national or Community law, which could support the applicant’s claim.
Section 39 § 1 of the Administrative Court Act (Verwaltungsgerichtshof-gesetz) provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 § 2 (6) provides however:
"Notwithstanding a party’s application, the Administrative Court may decide not to hold a hearing when (...)
6. It is apparent to the Court from the written pleadings of the parties to the proceedings before the Administrative Court and from the files relating to the prior proceedings that an oral hearing is not likely to contribute to clarifying the case, and if this is not against Article 6 § 1 of the European Convention on Human Rights."
Article 144 § 2 of the Federal Constitution reads as follows:
"The Constitutional Court may ... decline to accept a case for adjudication if it does not have sufficient prospects of success or if it cannot be expected that the judgment will clarify an issue of constitutional law. The Court may not decline to accept for adjudication a case excluded from the jurisdiction of the Administrative Court by Article 133."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1