ITEMID: 001-115013
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VERLAGSGRUPPE NEWS GMBH AND BOBI v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The first applicant, Verlagsgruppe News GmbH, is a limited liability company established under Austrian law with its registered office in Vienna. It publishes the weekly news magazine Profil. The second applicant, Mr Emil Bobi, is a journalist and editor-inchief responsible for certain sections of the weekly news magazine Profil. He lives in Vienna.
6. In the issue of Profil of 5 July 2004 an article was published on searches carried out by police in the Roman Catholic seminary in St Pölten. According to the article, police had searched the seminary on suspicion of someone having downloaded child pornography from the Internet. The article further stated that, according to rumours, police had also found photographs showing seminarians engaging in homosexual activities, and that there were rumours of unwanted homosexual advances towards seminarians involving abuse of authority. The article was accompanied by a photograph of the principal (Regens) of the seminary, Mr Küchl, showing him standing in a garden, and by an interview with him in which he said that he did not believe that there had been any unwanted sexual advances by superiors and that the rumours were part of an intrigue or a revenge plot by a former seminarian. He denied involvement in any such incidents.
7. On 7 July 2004 the second applicant called Mr Küchl and said he had received photographs which showed the latter engaging in homosexual activities. Mr Küchl stated that this was impossible and that any such photographs could be interpreted in different ways.
8. In its issue of 12 July 2004 Profil published an article entitled “Go on!” (Trau dich doch). The sub-heading read “Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray. First the principal and now the deputy principal have resigned. High-ranking dignitaries expect Kurt Krenn [the bishop of the diocese] to be removed from office.”
9. The article stated that Mr Küchl had had sexual relations with seminarians and that two of them had regularly spent weekends or longer periods with him at the Eisgarn monastery. It also stated that there was nothing to corroborate the rumours of unwanted homosexual advances which had been reported earlier. The article further reported that some seminarians had downloaded pornography and child pornography onto their computers. According to the article, the existence of homosexual relations was well-known within the seminary and was even known to the bishop, who had tried to “hush up” the case at first. The article contained a photograph showing Mr Küchl with his left arm around one of the seminarians, holding the seminarian’s wrist with his left hand and with his right hand on the man’s crotch. This picture had been taken by one of the seminarians at a birthday party and Mr Küchl was shown looking into the camera, apparently aware that he was being photographed. In the article Mr Küchl was identified by name, while the seminarians’ identities were not disclosed. Likewise, in the published photograph, Mr. Küchl’s face was visible while that of the seminarian was blurred. The article was also accompanied by a statement from Mr Küchl saying that the photograph could be interpreted in different ways.
10. On 19 July 2004 the magazine again published the photograph and an article on recent events in the diocese in the wake of the child pornography scandal. The article also contained a letter from Mr Küchl to members of the parish in which he said that the photograph had been taken from an unfortunate angle (unglückliche Einstellung) and that he had never approached any seminarian in a sexual context.
11. On 6 August 2004 Mr Küchl initiated proceedings under the Media Act (Mediengesetz) against the applicant company in relation to the article published on 12 July 2004. Those proceedings are the subject of application no. 51151/06, Küchl v. Austria. They are summarised here, in so far as is necessary for the examination of the present case.
12. Relying on sections 6 and 7 of the said Act, Mr Küchl (“the claimant”) requested compensation for defamation (üble Nachrede) and for the violation of his strictly personal sphere (höchstpersönlicher Lebensbereich) caused by the publication of the photograph and the impugned article, especially the following passages:
“‘Porn scandal. Photographic evidence of sexual antics between priests and their students has thrown the diocese of St Pölten into disarray’. ‘A painful truth: Krenn’s principal engaged in sex with subordinates, also Krenn’s private secretary and legal adviser ...’; ‘Photos showing, among others, seminarians from St Pölten in kinky situations, in some cases with their superiors ... and because they were doing it with the boss and his deputy too, it was all quite normal and they felt perfectly safe ...’; and ‘In June of the previous year principal Ulrich Küchl allegedly performed a kind of ‘sacrament of marriage’ between H. and Polish priest A. in a St Pölten restaurant.’”
13. On 15 September 2005, after holding several hearings at which evidence was heard from a number of witnesses, the Vienna Regional Criminal Court (Landesgericht, hereinafter “the Regional Court”) dismissed Mr Küchl’s request for compensation.
14. The Regional Court observed that a large percentage of readers of the weekly Profil that had published the impugned article and the photograph would read the news magazine in only a cursory manner and would also consult other media before forming their opinion. Those readers would learn that there had been homosexual contacts between the applicant and seminarians and also among seminarians, and that there existed photographs to support this. The published photograph showed that the applicant and the seminarian were more than just friends and had had homosexual contacts. It represented the applicant with his left arm around the seminarian and his hand on the man’s crotch. The article made clear that such contacts had been entered into without coercion.
15. Giving a detailed evaluation of the various witness statements, the Regional Court found it established that the applicant had had consensual homosexual relationships with several seminarians, one of whom had repeatedly spent weekends at Eisgarn monastery; this had led to an explicit instruction from Bishop Krenn prohibiting such visits by seminarians. Furthermore, the court found that the applicant had spent a holiday with a seminarian during which they shared an apartment in a hotel. It also found that the applicant had performed a ceremony in a restaurant which an outside observer could have understood as bestowing a kind of “sacrament of marriage” on two seminarians. Moreover, the statements of the witnesses had confirmed that the published photograph had been taken in the applicant’s apartment at Eisgarn monastery during a birthday party for one of the seminarians. The Regional Court thus held that the facts contained in the article were in essence true.
16. Owing to the considerable importance of the Roman Catholic Church as a role model, the public had a great interest in being informed about what was going on within the Church. The public also had an interest in knowing what happened in the seminary, especially since it had become known that pictures containing child pornography had been downloaded from the Internet. The circumstances leading to such incidents were a subject of public interest and had a direct connection with public life. Mr Küchl, as the head of the seminary, was a public figure in that capacity. Even though the impugned picture had been taken in his private residence there was a connection to his public life. While accusing a dignitary of the Roman Catholic Church of having homosexual contacts constituted the actus reus of defamation within the meaning of section 6 of the Media Act and exposed his strictly personal sphere within the meaning of section 7 of the said Act, the newspaper publisher had proved that the reported facts were essentially true. Accordingly, Mr Küchl’s claim for compensation had to be dismissed.
17. The Vienna Court of Appeal (Oberlandesgericht) dismissed the appeal in a judgment of 24 May 2006. It upheld the judgment of the Regional Court, ruling that the said court had not erred in fact or in law and had rightly held that the newspaper editor had managed to prove that the content of the article was true. Furthermore, the Court of Appeal held that, in reporting on photographic evidence of seminarians in “kinky situations”, the applicant company had provided proof that the statements were true. The average reader of the magazine would understand the term “kinky” to mean a deviation from what was considered normal, which would include a photograph of priests and seminarians in a sexual pose wearing clerical clothing, especially as the persons concerned belonged to a group of people who publicly spoke out against homosexuality and denounced homosexual contacts as a sinful. The Court of Appeal went on to state as follows:
“The court cannot accept the additional arguments to the effect that the substantive law was incorrectly applied because the conduct reported on fell within the sphere of strictly private life and had no connection with public life. The Catholic Church, to which the majority of the Austrian population belongs and which, according to Article II of the Concordat (BGBl. II No. 2/1934), has public-law status, has a level of importance in Austria going beyond that of a small association, as is clear from the overall content of the Concordat and the circumstances in which it was ratified. Accordingly, conduct on the part of Church dignitaries which is in flagrant contradiction with Catholic teachings may very well be of public interest, particularly where – as in the present case – homosexual contacts take place and are maintained, albeit on a consensual basis, between staff and students in an educational establishment and between students themselves. The Catholic Church strives for acceptance and credibility among the public at large, and the activities of a principal and a deputy principal, particularly those in charge of a training college for future priests, are directly related to public life. The Catholic Church is engaged in public relations work in many spheres and regularly makes its views on (sexual) morality known to the population as a whole, with the result that the general public is also entitled to be informed if individual officials are failing to practise what they preach, condemning homosexuality as a sin in public while practising it in private, even between staff and students. It should also be taken into consideration that the teachings of the Catholic Church on the subject of homosexuality are contrary to the fundamental right to sexual self-determination under Article 8 of the European Convention on Human Rights and to the prohibition on discrimination; hence, on this basis also, there is a public interest in the publication of specific allegations that Church dignitaries are failing to observe their Church’s teachings on sexual morals. This is even more so where the reports concern homosexual contacts between a teacher and his students. Such relationships of dependency call for particular vigilance in order to avoid potential breaches of a fundamental code of conduct designed to protect the physical and psychological integrity of the students. The media have a vital role in publicly exposing misconduct in a democratic society governed by the rule of law.
The exposure and public condemnation of such misconduct is thus in any event in the public interest; the same is true of the reports identifying those concerned, without which it would not be possible to express credible criticism of specific inadmissible situations and thus fulfil the role of “public watchdog”. The weighing of interests in the present case should undoubtedly lead to the conclusion that the public right to information prevails. The professional activity of an ordained priest who is active in public life both as a clergyman and as head of a seminary does not take place merely within the Church; the Catholic Church has an important and, in some respects even a State role, and the credibility of its officials, who demand moral standards from the population and compliance with the Church’s rules of community life, occupies an important position in that regard. In particular, the fact that the events involved students who as future officials of the Catholic Church are supposed to be taught these moral precepts by example, lends those events a public-interest dimension extending beyond the Church itself and affects all sections of the population...”
18. The Court of Appeal concluded that since the article had reported essentially true facts and there was a public interest in their being reported, the Regional Court had rightly rejected the applicant’s request for compensation.
19. On 9 July 2004, after publication of the first article, Mr Küchl brought proceedings against the applicant company and the second applicant before the Vienna Commercial Court (Handelsgericht). Relying on section 78 of the Copyright Act (Urheberrechtsgesetz), he asked the Commercial Court to order the applicant company and the second applicant to
(i) refrain from making and publishing express statements or statements to the effect that photographs existed which showed him having homosexual contacts or appeared to show that he was homosexual and
(ii) refrain from publishing photographs of the claimant which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances involving abuse of authority, which were damaging to his honour and reputation.
20. The claimant also requested the Commercial Court to issue an interim injunction prohibiting the applicant company and the second applicant from publishing the above-mentioned statements and pictures.
21. After publication of the second article in the issue of Profil of 12 July 2004, showing for the first time the photograph of the claimant with his hand on the seminarian’s crotch, the claimant notified the Commercial Court of the further statements contained in that article and of the fact that the photograph had been published. He repeated the requests made on 9 July 2004.
22. In so far as relevant in the context of the present case, the claimant’s request for an interim injunction was rejected by the Vienna Commercial Court, which gave its decision on 29 March 2005, and by the Vienna Court of Appeal, which gave its decision on 18 June 2005.
23. In a decision of 15 December 2005 the Supreme Court varied the lower courts’ decisions, granting point (ii) of the claimant’s request for an interim injunction. The applicant company and the second applicant were thus prohibited from publishing photographs of the claimant, in particular in connection with allegations of unwanted homosexual advances involving abuse of authority which were damaging to the claimant’s honour and reputation. However, the Supreme Court dismissed point (i) of the claimant’s request, namely that the applicant company and the second applicant be ordered to refrain from making and publishing express statements or statements to the effect that photographs existed which showed the claimant having homosexual contacts or appeared to show that he was homosexual.
24. The Supreme Court (Oberster Gerichtshof) held that even the publication of true statements was capable of interfering with a person’s right to privacy and thus might become unlawful. In such cases the interests of the persons concerned in the protection of their reputation or the intimate sphere of their private lives had to be weighed against the interests of the recipient of the information. Referring to the Court’s case-law under Article 10 of the Convention, the Supreme Court noted the importance of freedom of the press, in particular where the latter reported on issues of general interest. In the present case, information about the homosexuality of officials of the Roman Catholic Church was an important issue and as such was often the subject of public attention and discussion. It was the media’s task to report and comment on actual cases. Thus, the claimant’s interest was outweighed by the applicants’ right to publish the statements, the truth of which was not in dispute.
25. As to the publication of the photograph, the Supreme Court held as follows:
“1. The publication of images that would cause injury to legitimate interests is prohibited (section 78(1) of the Copyright Act). The injury must arise out of the actual publication of the image (RIS-Justiz RS0077782). However, not only the image itself must be assessed, but also the manner of its dissemination and the context in which it is set (RS0078077). The assessment as to whether legitimate interests have been infringed must aim to establish whether the interests of the person depicted can be objectively said to be worthy of protection (4 Ob 165/03y = MR 2003, 377 with further references).
2. On the basis of these principles, the interests of the claimant in the present case should be considered worthy of protection, contrary to the Court of Appeal’s view.
The accompanying text portrays the claimant in a negative light. He is neither a ‘figure of contemporary society ‘par excellence’’ (to use the terminology of the German case-law) nor a ‘public figure’ (the term used in Austrian legal practice) whose appearance was already known to the general public before the picture was published (4 Ob 15/93). It is clear that the publication of the picture intensifies the demeaning effect of the accompanying text, which is damaging to the honour of the person concerned (‘pillorying effect’). In such cases, therefore, publication of the picture can be justified only if, after the required weighing of interests, the interest of the publisher in publishing is found to prevail (RIS-Justiz RS0077767). However, that is not the case here. The protection of the intimate sphere of the claimant’s private life carries greater weight in this case than the public interest in being informed of the image, in contrast to the case already examined concerning the text of the article. Of course, there is some force to the Court of Appeal’s argument that publication was designed to some extent to ‘prove the claimant guilty’ after he had denied the accusations as ‘slander’, and thus to allow the public to make up its own mind on the basis of the photograph. In the Supreme Court’s view, however, this argument is not sufficiently decisive to justify intruding upon the intimate sphere of the claimant’s private life and providing documentary ‘evidence’ of the allegations denied by the claimant. It must first be taken into consideration that the photograph was taken at a private party and thus indisputably fell within the private sphere protected by Article 8 of the ECHR. If sexual freedom between consenting adults is recognised as an absolute personal right and the innermost private sphere is protected under the Constitution, then this must also apply in principle to members of religious organisations and Church officials, even if the practice of that sexual freedom is contrary to the Church’s teachings. Forfeiture of the right to anonymity requires particularly weighty reasons which do not apply here to the required degree. There is no overriding interest for the public at large to be informed of the claimant’s appearance and to identify him via publication of his photograph. Even when publication takes place in connection with a criminal offence, the principle of proportionality of the interference applies. Likewise, even a genuine need to inform must not go beyond what is strictly necessary, so that it cannot be accepted in all cases in which the public has reason to take an interest in a particular individual that there is a genuine need to be shown a picture of that person (RIS-Justiz RS0077883). The interest in dissemination of a picture can only take precedence if the picture has a particular news value – for instance, to warn the public about an escaped criminal (4 Ob 63/95 = SZ68125 4 Ob 1013/96). In any case, the proportionality principle prohibits publication merely in order to satisfy an appetite for scandal. The interest in being informed can be sufficiently met without publication of an image, simply by reporting the facts and referring to the existence of a photograph (several photographs) as evidence.”
26. On 4 July 2006 Mr Küchl narrowed his previous claim to the publication of pictures, amended the wording of the injunction sought, and added a claim for damages. He thus requested the court to order the applicants to refrain from publishing photographs of him which violated his legitimate interests, especially in connection with allegations of unwanted homosexual advances towards seminarians involving abuse of authority, and/or of engaging in sexual antics or “kinky” situations with seminarians or similar allegations.
27. In a judgment of 18 June 2007 the Vienna Commercial Court rejected the claims.
28. Referring to the decisions in the proceedings under the Media Act and to the Supreme Court’s decision of 15 December 2005 in the interim injunction proceedings, the Commercial Court observed that the statements made in the various articles in Profil were true, namely that the claimant had had homosexual relationships with seminarians, including P., with whom he was shown in the impugned picture. However, it had to be assessed whether the publication of his picture in connection with those true facts had violated his legitimate interests. The claimant’s interest in the protection of his private life as guaranteed by Article 8 of the Convention had to be weighed against the freedom of the press to impart information as protected by Article 10.
29. The Commercial Court held that Article 10 of the Convention protected not only the freedom to impart information, but also the form in which such information was imparted. Thus, the publication of the photograph had been lawful, especially as the accompanying text was not capable of damaging the claimant’s honour or of having a pillorying effect. Quoting the courts’ decisions in the proceedings under the Media Act, the Commercial Court also held that, owing to the status of the Roman Catholic Church and its dignitaries in Austria, and its teachings that homosexuality was a sin and an aberration, the public had a right to be informed about the conduct of the principal of a seminary who was responsible for the education of future priests. In the present case, proportionality between the interests at stake had been maintained, as the photograph had not been published simply in order to satisfy the public’s interest in scandals, but had served to inform the public.
30. In a judgment of 13 December 2007 the Vienna Court of Appeal partly granted Mr Küchl’s appeal. Relying on section 78 of the Copyright Act, it prohibited the publication of photographs of the claimant which violated his legitimate interests by accusing him of unwanted homosexual advances towards seminarians, especially involving abuse of authority, and of engaging in sexual antics or “kinky” situations with seminarians or similar accusations. However, it dismissed the claim for compensation.
31. The Court of Appeal summarised the content of the articles published in Profil on 5, 12 and 19 July 2004 and the reasoning set forth by the Supreme Court in its decision of 15 December 2005 in the interim injunction proceedings. It went on to state as follows:
“No factual circumstances came to light in the main proceedings which would cause the Supreme Court to alter the manner in which it weighed the interests at stake in the preliminary injunction proceedings.
It was established that the photograph was taken in Eisgarn monastery at the birthday party of one of the seminarians, attended by the claimant and four or five students of the seminary. The party was held in a meeting room and a ‘reception room’ of the apartment made available to the claimant in his capacity as provost of the monastery.
Protection of the private sphere encompasses all matters which, on the basis of their information content, are typically classified as private. This covers individuals in their home, family or other environment removed from the public gaze (Neukamm, Bildnisschutz in Europa, 118). The right to protection of one’s private sphere encompasses the spaces in which the individual can rest, relax or simply let go. This includes any premises from which the individual can exclude outsiders and escape the public gaze (Neukamm, loc. cit., 120).
On that basis, there can be no doubt that the birthday party in the claimant’s apartment fell within the private sphere, despite the fact that it was attended by seminarians and took place (partly) in a ‘reception room’ in the claimant’s apartment.
Neukamm, loc. cit., 213). Hence, it is beyond dispute that the photograph in question falls (exclusively) within the claimant’s private sphere.
Furthermore, the Supreme Court previously ruled in the preliminary injunction proceedings that the public interest in the text of the article did not automatically justify publication of pictures of the person concerned.
The publication of pictures depicting private conduct is not justified on the grounds of the public’s interest in being informed (Neukamm, op. cit., 233, and ECHR judgment of 11.1.2000, application no. 31457/96 – News Verlag GmbH). This applies also to articles concerning private-life matters (Neukamm, op. cit., 235). If the publication of photographs serves the public’s interest in being informed, that interest must be weighed against the personality rights of the person depicted. As a general rule, the latter should prevail (Neukamm, op. cit., 236).”
32. The Court of Appeal also upheld the Commercial Court’s decision in so far as the latter had dismissed Mr Küchl’s claim for damages. It noted that damages under the Copyright Act were to be awarded only if the general requirements laid down in the Civil Code were met. In particular, it was necessary for the publisher to have acted culpably, with at least minor negligence. In the present case, the applicants had based their decision to publish the photograph on an arguable legal opinion. It was a borderline case in which a detailed weighing of the interests at stake had eventually led to the assessment that the publication of the photograph at issue had violated the claimant’s legitimate interests. In the preliminary injunction proceedings the Commercial Court and even the Court of Appeal had come to the opposite conclusion, holding the view that the publication of the picture had an information value of its own, while the Supreme Court had overturned their decisions. In these circumstances, the applicants were entitled to believe that the publication of the picture was admissible, and they had therefore not acted culpably.
33. The claimant and the applicants lodged extraordinary appeals on points of law with the Supreme Court.
34. The Supreme Court rejected the extraordinary appeals in a judgment of 26 March 2009, holding that the prerequisite for it to deal with the case, namely a question of law which was of fundamental importance for the unity of the law, was not met. With regard to the applicants’ appeal it noted that it had already given detailed reasons in its decision of 15 December 2005 explaining why, as far as the publication of the photograph was concerned, the claimant’s interests in the protection of his private sphere under Article 8 of the Convention outweighed the freedom to impart information protected by Article 10 in the circumstances of the present case. The Vienna Court of Appeal had followed that reasoning in the main proceedings.
35. Finally, the Supreme Court dismissed the applicants’ argument that the courts’ decisions in the proceedings under sections 6 and 7 of the Media Act were binding on the courts in the present case. It held that a decision taken under sections 6 and 7 of the Media Act did not resolve a preliminary question (Vorfrage) in relation to the claim under section 78 of the Copyright Act. There was no logical contradiction in prohibiting a newspaper publisher from publishing a picture under section 78 of the Copyright Act, while on the same facts dismissing a compensation claim under sections 6 and 7 of the Media Act. The finding that the requirements for granting compensation were not met did not provide a basis for concluding that the publication of a picture did not violate legitimate interests within the meaning of section 78 of the Copyright Act.
36. The judgment was served on the applicants on 30 April 2009.
37. Section 6 of the Media Act provides for the strict liability of the publisher, inter alia in cases of defamation. The victim can thus claim damages from the publisher. Section 6 reads as follows:
“(1) Where a medium publishes statements which constitute the actus reus of disparagement, insult, derision or defamation the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered ...”
(2) The right referred to in paragraph 1 above shall not apply ...
2. in the case of defamation
(a) [where] the statements published are true or
...
(3) Where the publication concern the strictly personal sphere, a claim under subsection 1 shall be excluded only on the grounds set forth in ... subsection 2(2)(a) ...; in the case of subsection 2(2)(a), this shall not apply where the published facts are directly related to public life.”
38. Section 7 of the Media Act provides for a claim for damages in cases of interference with the strictly personal sphere of an individual’s life. It reads as follows:
“(1) If the strictly personal sphere of an individual’s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation from the media proprietor (publisher) for the damage sustained. ...
(2) The right referred to in paragraph 1 above shall not apply where:
(i) ...
(ii) the statements published are true and are directly related to public life;
(iii) ...”
39. For the purpose of Section 6 of the Media Act, “defamation” is to be understood as defined in Article 111 of the Criminal Code (Strafgesetzbuch), which reads as follows:
“(1) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
(2) Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ...
(3) The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.”
40. Section 78 of the Copyright Act, in so far as relevant, reads as follows:
“(1) Images of persons shall neither be exhibited publicly nor in any way made accessible to the public where injury would be caused to the legitimate interests of the persons concerned or, if they have died without having authorised or ordered publication, those of a close relative.”
41. Article 1330 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides as follows:
“(1) Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation.
(2) The same shall apply if anyone disseminates allegations which jeopardise a person’s reputation, income or livelihood, the untruth of which was known or should have been known to him or her. In this case there is also a right to request a retraction and publication thereof ...”
42. The Court refers to this resolution, adopted by the Parliamentary Assembly of the Council of Europe on 26 June 1998. Its relevant passages are reproduced in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 71, ECHR 2012).
NON_VIOLATED_ARTICLES: 10
NON_VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-60163
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF KUTZNER v. GERMANY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Antonio Pastor Ridruejo
TEXT: 10. The applicants are German nationals who were born in 1966 and 1968 respectively and live at Badbergen (Germany). They are married and have two daughters: Corinna, who was born on 11 September 1991, and Nicola, who was born on 27 February 1993.
11. The applicants and their two daughters had lived since the girls' birth with Mr Kutzner's parents and his unmarried brother on an old farm. Mr Kutzner works on a poultry farm. Mrs Kutzner used to work in a factory, but since losing her job has stayed at home to look after the children and do the housework.
The applicants had attended a special school for people with learning difficulties (Sonderschule fûr Lernbehinderte).
12. Owing to their late physical and, above all, mental development, the girls underwent a series of medical examinations. On the advice of one of the doctors and at the applicants' request, they received educational assistance and support from a very early age. Thus, from 1994 Corinna, the elder daughter, received educational assistance (Frühförderung), while from 1995 and 1996 respectively, both girls attended a day-nursery school for children with special needs (Heilpädagogischer Kindergarten).
13. Between October 1995 and May 1996, Ms Klose, a social worker (sozialpädagogische Familienhilfe) visited the applicants' family at home, officially for ten hours a week. The applicants say that she actually spent only three hours there, as the time she spent travelling had to be taken into account. Relations between her and the applicants rapidly deteriorated, which the applicants say resulted in her preparing a very negative report on them.
14. Ms Klose's report to the Osnabrück District Youth Office (Kreisjugendamt) did indeed emphasise negative points: the applicants' intellectual shortcomings, conflictual relations between the family members and the contempt that, initially at least, she had been shown by the family.
15. Following that report the District Youth Office made an application on 13 September 1996 to the Bersenbrück Guardianship Court (Vormundschaftsgericht) for an order withdrawing the applicants' parental responsibility for their two children.
16. On 18 September 1996 the Bersenbrück Guardianship Court appointed Mr Waschke-Peter, a psychologist, to give expert evidence. He delivered his report on 20 November 1996.
17. On 12 February 1997, after hearing evidence from the applicants and the grandparents, the Guardianship Court made an interlocutory order (einstweilige Anordnung) withdrawing the applicants' rights to decide where their children should live (Aufenthaltsbestimmungsrecht) or to take decisions regarding the children's health (Recht zur Bestimmung über ärztliche Maßnahmen), notably on the ground that “[the applicants did] not have the intellectual capacity required to bring up their children properly” (“die Kindeseltern sind intellektuell nicht in der Lage, ihre Kinder ordnungsgemäss zu erziehen”).
18. From February to July 1997 the girls were placed in the care of the assessment team (Clearingstelle) of a private association at Meppen (Verein für familienorientierte Sozialpädagogik), which was part of the Society for Family Education (Gesellschaft für familienorientierte Sozialpädagogik).
19. In a report dated 18 and 24 April 1997, the chairwoman of the executive board of the society, Ms Backhaus, also requested that the applicants' parental responsibility be withdrawn on the ground that, while the children's IQ was expected to decrease, a new home would afford them a chance to enjoy a relationship that would stimulate the development of their social skills and intelligence (eine Verflachung des IQ's ist vorprogrammiert, eine Chance haben die Kinder durch eine neue Beelterung, in der über die Beziehung neue Impulse für die Sozial- und Intelligenzentwicklung gesetzt werden).
20. On 27 May 1997, after hearing further evidence from the applicants and the grandparents, the Guardianship Court withdrew the applicants' parental rights (Sorgerecht) over their two children. It relied notably on the finding in the psychologist's report that the applicants were not fit to bring up their children, not through any fault of their own (unverschuldet erziehungsunfähig), but because they did not possess the requisite intellectual capacity.
The Guardianship Court found that the applicants lacked the necessary awareness to answer their children's needs. Moreover, they were opposed to receiving any support from social services and, far from being genuine, the consent they had now given to the measures that had been taken was merely a reaction to the pressure they had felt as a result of the proceedings.
The Guardianship Court added that the children's development was so retarded that it could not be corrected by the grandparents or support from social services. Only a foster home – and in Corinna's case this would have to be a professional foster home (professionelle Pflegefamilie) – could help the two children, as any less radical measures would be inadequate.
21. On 15 July 1997 the two girls were placed with separate, unidentified (IncognitoPflege) foster parents (Pflegefamilien) on the register held by the Society for Family Education, which had produced a report on 18 and 24 April 1997 requesting that the applicants' parental responsibility for their children be withdrawn.
22. In letters of 24 January, 23 June and 2 July 1997 the applicants' family doctors said that they considered that the children should be returned to the applicants' care.
23. In June 1997 the applicants appealed to the Osnabrück Regional Court (Landgericht) against the Guardianship Court's decision of 27 May 1997.
24. From 2 September to 25 November 1997 Mrs Kutzner attended a course to qualify as a childminder (Qualifizierungskurs für Tagesmütter); she completed the course and received a certificate.
25. On 29 August 1997 an expert in psychology from the German Association for the Protection of Children (Deutscher Kinderschutzbund), a private organisation from which the applicants had sought help, also expressed the view that the children should be returned to their family and receive extra educational support from social services.
26. After these views had been expressed, the Regional Court appointed Mr Trennheuser as a second expert witness in psychology on 9 October 1997. He delivered his report on 18 December 1997. The Regional Court also heard evidence from the applicants, the grandparents, the relevant authority and the expert witness.
27. By a decision of 29 January 1998 the Regional Court dismissed the applicants' appeal on the ground that the relevant provisions of the Civil Code (Articles 1666 and 1666a – see “Relevant domestic law” below) governing the protection of children's interests were satisfied.
The Regional Court referred to the two reports by the experts in psychology.
According to the first report, which had been lodged with the Bersenbrück Guardianship Court on 20 November 1996, the applicants were incapable of bringing up their children because of their own deficiencies and because they felt out of their depth. Bringing in persons from outside the family circle to assist would merely exacerbate existing tensions between the parents and their daughters and the applicants' sense of insecurity. The family was dominated by the grandparents and the applicants were unable to project an image of authority for their children. Moreover, the grandparents, who were incapable of offering support to their own children (the applicants), were no more capable of remedying the intellectual deficiencies presented by their grandchildren.
According to the second expert report – the one delivered on 18 December 1997 – the girls were approximately one year behind in their general development, a factor that was discernible in particular from their speech, which consisted of stammering. Had they not benefited from years of support from the educational and social services, they would probably have ended up in a special school for the mentally disabled and would have been unable to develop normally or lead a normal adult life. The applicants were incapable of helping their daughters to develop their personalities, as they were ill-equipped to understand them or to treat them in an appropriate manner. Scientific studies had shown that parents with deficiencies of that type prevented the development of emotional ties between them and their children. In particular, the knowledge and skills acquired at school were in danger of being stifled in the family environment. The applicants had done no more than to tend to the children's basic needs. There was a risk that in the future the parents would become increasingly aggressive towards their children. Regard being had to all those considerations, separating the children from the family was the only way of eliminating all danger to the children's welfare (Gefährdung des Kindeswohls).
The Regional Court noted that the expert witnesses had reached the same conclusion following a thorough analysis. The second expert witness had had due regard to the fact that the applicants had contacted the German Association for the Protection of Children and that Mrs Kutzner had attended a childminding course. However, those factors were not sufficient to enable the Regional Court to rule out all risk of the children's development being harmed.
28. On 20 March 1998 the Oldenburg Court of Appeal (Oberlandesgericht) dismissed the applicants' appeal, holding that there had been no breach of the law. The courts concerned had heard representations from the parties, relied on reports by two expert witnesses and had taken into account the educational assistance measures that had already been implemented, the expert psychological report lodged by the German Association for the Protection of Children on behalf of the applicants and the opinion of the family doctors.
29. On 26 May 1998 a three-member committee of the Federal Constitutional Court (Bundesverfassungsgericht) dismissed an appeal by the applicants.
30. On 29 May 1998 Mr Riedl, a professor of educational sciences and Director of the Educational Sciences Institute at the University of Schwäbisch-Gmünd, lodged a report as an expert witness appointed on behalf of the applicants in which he concluded that the children's welfare was not in danger and that the applicants were entirely fit to bring up their children, both emotionally and intellectually. He said in particular that the family provided a successful example of cohabitation between three generations that was desired, planned and well-organised in satisfactory material conditions and in circumstances that permitted both individual and social fulfilment (“die Familie Kutzner bietet somit ein geglücktes Beispiel für das gewollte, geplante und wohlorganisierte Zusammenleben dreier Generationen in geordneten wirtschaftlichen Verhältnissen und unter positiven individuellen Bedingungen”). He added that additional measures of educational support could largely compensate for the ground the children would have to make up at school.
31. On 17 November 1999, also at the request of that association, Mr Giese, a professor of law at the Tübingen Institute for the Assessment of Physical and Mental Damage (Institut für Medizinschaden), produced a further expert report on behalf of the applicants, in which he concluded that the procedure followed by the German courts in the instant case had contravened Articles 6 and 8 of the Convention.
32. As the children had been placed in unidentified foster homes, the applicants were unable to see them for the first six months.
33. They then made an application to the Osnabrück Regional Court, which on 4 December 1997 granted them visiting rights of one hour a month despite opposition from the Youth Office.
34. Contrary to what had been ordered by the Guardianship Court, visits were conducted in the presence of eight representatives from various social services departments and associations. Subsequently, their number decreased, but the Youth Office insisted on visits being accompanied (begleitetes Besuchsrecht).
35. Between July and November 1999 the applicants made various attempts to obtain permission to see their children at Christmas or at the start of their eldest daughter's school year, but the Youth Office refused. The applicants applied to the Bersenbrück Guardianship Court and were granted permission to see their eldest daughter at the beginning of the school year.
36. On 8 December 1999 the applicants made a fresh application to the Guardianship Court seeking the right to visit their children for two hours at Christmas.
37. On 21 December 1999 the Guardianship Court dismissed their application. It sought a further report from another psychologist, Ms Sperschneider, in order to establish to what extent and to whom further visiting rights should be granted.
38. Additional information supplied by the parties after the Court had delivered its admissibility decision (see paragraph 8 above) indicates that in her report of 12 May 2000 Ms Sperschneider recommended that the applicants' visiting rights should be increased to two hours a month and that the grandparents should also be permitted to take part in visits once every two months.
39. By an order of 9 October 2000 the Guardianship Court requested the parties to indicate whether they accepted the psychologist's proposal.
40. In a letter of 2 November 2000 the Youth Office said that the applicants would be granted visiting rights in accordance with the arrangements proposed by the psychologist.
41. In a letter of 14 March 2001 the applicants asked the Guardianship Court to issue a decision on the merits.
42. In a decision of 16 March 2001 the Guardianship Court took formal note that an agreement had been reached between the parties concerning the applicants' rights to visit their children and held that it was unnecessary to determine the merits of the case.
43. In a letter of 29 January 2001 the applicants asked Mr Seifert, who as the Osnabrück Youth Office representative acted as the children's guardian, to meet them in order to discuss various issues such as the children's physical and psychological development, arrangements for visiting rights, and a christening ceremony that had been arranged in their home village.
44. Mr Seifert declined such a meeting in a letter of 22 February 2001, saying that the applicants could observe their children's progress for themselves during visits.
45. On 4 March 2001 the applicants wrote to the Bersenbrück Guardianship Court requesting it to terminate the Osnabrück Youth Office's appointment as guardian and to name an independent expert in its place.
46. In a letter of 26 April 2001 Mr Seifert rejected the criticism directed at him by the applicants.
47. In a reply of 17 May 2001 the applicants said that the Youth Office had systematically sought to separate them from their children for good, whereas the opinion of the majority of the experts had been that separation could only be temporary and that the children needed their family of origin. They added that if the experts considered that contact of one or two hours a month under strict supervision was sufficient, then the expert evidence was of little value. Lastly, Ms Sperschneider had spent in all only two hours with the applicants and had shown no interest in what they really thought.
48. In a letter of 12 July 2001 a court clerk (Rechtspfleger) replied to the applicants, informing them that the Guardianship Court had rejected their application.
49. Article 1666 of the Civil Code (Bürgerliches Gesetzbuch) lays down that the guardianship courts are under an obligation to order necessary measures if a child's welfare is jeopardised (Gefährdung des Kindeswohls).
50. The first sub-paragraph of Article 1666a provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child's welfare.
51. The second sub-paragraph of Article 1666a provides:
“Full [parental] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger.”
VIOLATED_ARTICLES: 8


ITEMID: 001-100092
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: HOVHANNISYAN AND GEVORGYAN v. ARMENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicants, Ms Shushaniki Hovhannisyan and Mr Gegham Gevorgyan, are Armenian nationals who were born in 1945 and 1968 respectively and live in Verin Ptghni, Armenia. They are represented before the Court by Mr T. Atanesyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) are represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants jointly owned a house which measured 49.2 sq. m and was situated at 15 Byuzand Street, Yerevan. It appears that they also enjoyed a right of lease in respect of the underlying plot of land.
4. On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the immovable property (plots of land, buildings and constructions) situated within the administrative boundaries of the Central District of Yerevan to be taken for the needs of the State for the purpose of carrying out construction projects, covering a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones.
5. On 17 June 2004 the Government decided to contract out the construction of one of the sections of Byuzand Street – which was to be renamed Main Avenue – to a private company, Vizkon Ltd.
6. On 1 October 2004 Vizkon Ltd and the Yerevan Mayor's Office signed an agreement which, inter alia, authorised the former to negotiate directly with the owners of the property subject to expropriation and, should such negotiations fail, to institute court proceedings on behalf of the State, seeking forced expropriation of such property.
7. It appears that Vizkon Ltd unsuccessfully attempted to organise a valuation of the applicants' house in order to offer them compensation for the purpose of expropriation, since the applicants created obstacles.
8. On an unspecified date Vizkon Ltd instituted proceedings against the applicants on behalf of the State. Referring to, inter alia, Government Decree no. 1151-N, the plaintiff sought to oblige them to allow a valuation of their house, to terminate their ownership of the house through payment of compensation based on the results of such valuation, and to have them evicted.
9. On an unspecified date the applicants lodged a counter-claim with the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) in which they contested the constitutionality of Government Decree no. 1151-N. It appears that this counter-claim was not admitted on the ground that the District Court was not competent to decide upon the constitutionality of Government decrees. The applicants further requested the court to put into motion the procedure for testing the constitutionality of the above Decree, which was similarly rejected.
10. It appears that at some point the value of the applicants' house was estimated at USD 21,000 by a valuation company.
11. On 17 March 2005 the District Court granted the claim of Vizkon Ltd, terminating the applicants' ownership in respect of the house, awarding them the Armenian dram (AMD) equivalent of USD 21,000 and ordering their eviction. The court based its findings on Articles 218 and 283 of the Civil Code, while the amount of compensation was determined on the basis of the above valuation report.
12. On 30 March 2005 the applicants lodged an appeal.
13. On 13 May 2005 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) granted the claim of Vizkon Ltd on the same grounds as the District Court.
14. On 26 May 2005 the applicants lodged an appeal on points of law. In their appeal they argued, inter alia, that the deprivation of their property was unlawful and contravened Article 28 of the Constitution.
15. On 8 July 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicants' appeal.
16. On 8 August 2005 the relevant enforcement proceedings were instituted.
17. On 20 October 2005 the applicants signed an agreement with Vizkon Ltd on termination of their ownership in respect of the immovable property situated on a plot of land to be taken for State needs and payment of compensation. According to this agreement, which was concluded for the purpose of implementation of construction projects envisaged by Government Decrees nos. 1151-N and 909-N, the applicants agreed to give up their ownership of the house and their lease of the underlying plot of land in favour of Vizkon Ltd for a compensation in the net total amount of AMD 13,433,310 and to vacate the premises by 20 November 2005.
18. For a summary of the relevant domestic provisions see the judgment in the case of Minasyan and Semerjyan v. Armenia (no. 27651/05, §§ 23-35, 23 June 2009).
19. Section 8 provides that the parties are entitled to reach a friendly settlement in the course of enforcement proceedings.
20. According to Section 42 § 1 (3), the bailiff shall terminate the enforcement proceedings if the creditor and the debtor have reached a friendly settlement which has been approved by a court.


ITEMID: 001-72277
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: HAUTAKANGAS v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Kalevi Hautakangas, is a Finnish national, who was born in 1948 and lives in Mutala. He was represented before the Court by Mr Jukka Ahomäki, a lawyer practising in Järvenpää. The respondent Government were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant sustained injuries to his shoulder, arms and wrists in an accident on 9 March 1994 while driving a kick sledge. An insurance company granted the applicant a daily allowance (päiväraha, dagpenning) for 100 % reduction of his working capacity from 11 March 1994 to 8 March 1995.
As the applicant apparently had continued problems, especially with his right wrist, he submitted medical opinions to the insurance company, applying for a continued daily allowance / accident pension for the period from 8 March 1995 onwards. On 14 June 1995 the insurance company rejected his application and denied the compensation claim for loss of income, considering that the applicant’s working capacity was reduced by less than 10 % and that he was able to work at his post as technical director in a company.
The applicant sought medical help in 1996 and participated, inter alia, in a rehabilitation examination. Right elbow nerve damage and signs of damage to the right wrist as well as depression were diagnosed in a medical opinion dated 29 April 1996. The applicant also underwent an isotope survey on 7 January 1997 and submitted to the insurance company a medical opinion dated 7 March 1997 regarding his hands and wrists.
On 22 October 1997 the insurance company upheld its previous decision and decided not to grant the applicant a daily allowance for the period 8 March 1995 onwards.
On 18 November 1997 the insurance company corrected its previous decision of 22 October 1997 so as to grant the applicant an accident pension for 100 % reduction of working capacity from 9 March to 31 March 1995.
The applicant appealed to the Accident Board (tapaturmalautakunta, olycksfallsnämnden) requesting an accident pension (tapaturmaeläke, olycksfallspension) as of 8 March 1995. He relied, inter alia, on a medical opinion in which he was regarded as unfit to work until 31 March 1995; on a medical opinion of 20 April 1995, in which he was regarded as unfit to work for the following year; and on documents from the rehabilitation examination in 1996.
The insurance company submitted in its observations that the applicant was not entitled to compensation after 31 March 1995. It maintained that the accident had caused impact injuries to the applicant’s left shoulder joint, left forearm and both wrists. The applicant claimed that he had sustained injuries in addition to his shoulder, neck, right shoulder joint and right forearm, requesting an accident pension as from 1 April 1995 with interest.
The insurance company further adduced a medical opinion dated 11 December 1997 in which the applicant was regarded as unfit to work due to depression until 30 June 1998. The company maintained that the applicant’s neck strain and depression were not caused by the accident of 9 March 1994 and that the elbow nerve damage, which was caused by the said accident, was so mild that it did not render the applicant incapable to work.
On 16 April 1998 the Accident Board upheld the insurance company’s decision of 18 November 1997. It reasoned its decision as follows:
“Based on the medical evidence submitted [the applicant] has sustained impact injuries to both his wrists, left shoulder area and left forearm area as well as damage to his right elbow nerve as a result of the accident on 9 March 1994. These injuries have not reduced his working capacity by at least 10 % as from 31 March 1995 and [the applicant] is therefore not entitled to an accident pension pursuant to section 18, subsection 2 of the Act on Accident Insurance. [The applicant] must be regarded as capable of working as a managing director/technical director at his post. The Accident Board holds that [the applicant’s] present difficulties with his right hand and arm are to a high degree of probability not caused by the accident on 9 March 1994, given that hardly any tissue damage has been found in the magnetic scan of his right hand or in the ENMG-examination. The left elbow nerve damage, for which the applicant has received compensation from the insurance company, is mild and the Accident Board holds that it is probably sickness-related. The Accident Board further finds that [the applicant’s] depression, which reduces his working capacity, was neither caused by the accident of 9 March 1994, or by the subsequent injuries. Initially no neck strain was found and neither had any damage to [the applicant’s] right shoulder joint been reported in connection with the accident.”
The applicant appealed to the Insurance Court requesting an accident pension as from 31 March 1995 with interest. He submitted to the Insurance Court two medical opinions dated 10 February 1998 and 13 July 1998 supporting his claims and a certificate indicating that the applicant had tried to find employment on 9 January 1998. According to the Insurance Court’s decision it invited observations from both parties and received letters from the applicant dated 15 October 1998. On 10 November 1998 the Insurance Court rejected the appeal and upheld the Accident Board’s decision. The Insurance Court reasoned its decision as follows:
“Reasons mentioned in the Accident Board’s decision. The submitted new evidence does not give rise to different conclusions.”
The applicant sought leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen). The Supreme Court refused the applicant leave to appeal on 30 March 2000.
Following an appeal on 20 June 2000 the Ministry for Social Affairs and Health (sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet) maintained that the insurance company had in some of its observations by mistake mentioned nerve damage in the applicant’s left elbow whereas the nerve damage was in fact in the right elbow. It however noted that the mistake had not affected the outcome of the case as the appellate bodies had had access to the original medical opinions which described the injuries correctly.
Section 16 (969/1995) of the Constitution Act (hallitusmuoto, regeringsform, 94/1919), as in force at the relevant time, provided that everyone should have the right to have his case considered appropriately and without undue delay by a lawfully competent court of justice or other public authority as well as the right to have a decision concerning his rights and obligations reviewed by a court of justice or other independent judicial organ. Subsection 2 of the said section provided that the publicity of proceedings and the right to be heard, to receive a decision with stated grounds and to appeal against the decision as well as other guarantees of a fair trial and of good public administration were to be secured by Act of Parliament.
At the relevant time chapter 24, section 15 (1064/1991) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provided that a judgment had to be reasoned, indicating the facts and the legal argumentation on which it was based and the grounds which had led the court to hold a disputed issue established or unsubstantiated.
Section 1 of the Decree on the Accident Board (asetus tapaturmalautakunnasta, förordningen om olycksfallsnämnden; 839/1981) provides that the Accident Board functions as the first appellate body in matters concerning obligatory accident insurance.
Section 53 of the Accident Insurance Act (tapaturmavakuutuslaki, lag om olycksfallsförsäkring; 608/1948) provides that appellate bodies in accident insurance matters are the Accident Board, the Insurance Court and the Supreme Court.
On the Accident Board there are a full-time president, at least two vice-presidents and at least three lawyer and medical doctor members as well as at least six members representing labour market organisations. They all bear the responsibility of a judge. The president, the vice-presidents and the lawyer members must be qualified to sit as a judge and they must have a good knowledge of accident insurance. The medical doctor members must be registered and have a good knowledge of insurance medicine. All the members and their personal substitutes were at the relevant time appointed by the Council of State for a fixed term of three years. The labour market members were appointed on a proposal by the employers’ and employees’ organisations.
Pursuant to section 18, subsection 2 of the Act on Accident Insurance (tapaturmavakuutuslaki, lag om olycksfallsförsäkring, 608/1948) an accident pension is paid on condition that an employee’s working capacity because of the injury or illness caused by an accident is estimated to have been reduced by at least 10 %.


ITEMID: 001-24047
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: SIWAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress;Mark Villiger
TEXT: The applicant, Mr Leszek Siwak, is a Polish national, who was born in 1954 and lives in Przemyśl. The responded Government were represented by their Agent, Mr K. Drzewicki, of the Ministry of Foreign Affairs and, subsequently, Ms Sylwia Jaczewska, Acting Government Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant owns a flower shop in Przemyśl. On 7 March 1997 the applicant parked his car in an unauthorized place. He was stopped by the municipal police officers while he was transporting flowers and more than 200 kilos of soil to his shop. The police officers proposed the applicant to pay PLN 50 as a fine for parking in an unauthorized place. The applicant refused to pay the fine and, consequently, in accordance with the law then in force, the municipal police officers lodged a motion for punishment of the applicant by the Petty Offences Board (Kolegium do Spraw Wykroczeń).
On 19 March 1997 the municipal police requested the Petty Offences Board to punish the applicant for a petty offence of illegal parking.
The hearings listed for 10 October 1997 and for 29 October 1997 by the Przemyśl Petty Offences Board were adjourned due to the absence of the municipal police officers.
At the hearing held on 11 December 1997 the Petty Offences Board heard a municipal police officer in the presence of the applicant.
By a decision of 11 December 1997 the Petty Offences Board imposed a fine of PLN 120 on the applicant for illegal parking of his car.
The applicant appealed against this decision, claiming that he could not transport the commodity in a different manner, especially the flowers, without exposing them to damage during the winter. He alleged that the municipality did not provide any other possibility of parking which could allow him to run his business.
On 16 December 1997 the applicant’s appeal and the case-fine was transmitted to the Przemyśl District Court for examination.
On 8 January 1998 the president of the court listed a hearing for 27 March 1998.
On 13 February 1998 the applicant was duly summoned to the hearing. As transpires from an acknowledgment of receipt, on 14 February 1998 the applicant’s apartment was closed. Thus, the postman left him a written notice on the door of his apartment to collect the summons at the post office. The summons was not collected by the applicant by 23 February 1998 and consequently, it was returned to the court with a note that it was not collected by the applicant within the prescribed time-limit of seven days.
By a judgment in default of 27 March 1998 the Przemyśl District Court upheld the contested decision. Neither the applicant nor a prosecutor was present at the hearing. The court noted in the records of the case that the applicant was duly summoned to the hearing.
On 8 April 1998 the applicant had been served with the judgment. He confirmed this fact with his own signature.
In a letter of 10 April 1998 he requested to be served with the written grounds of the judgment. He also contended that the proceedings were not fair as he had not been informed of or summoned to the hearing on 27 March 1998 and therefore his arguments could not have been adequately presented to the court. He asked the court for the explanation and redress of this procedural shortcoming.
By a letter of the Przemyśl District Court of 8 May 1998, the applicant was informed that the judgment was final and no appeal lay against it.
In a letter of 15 May 1998 to the President of the Przemyśl District Court, the applicant explained that on 8 April 1998 he had been served with the judgment of 27 March 1998. He had also been informed that he could request the written grounds within seven days time-limit. He had done so in his letter of 10 April 1998.
On 4 June 1998 the court decided that the applicant should pay the costs of the proceedings in amount of PLN 141,40. On 15 June 1998 the applicant appealed against this decision. On 7 July 1998 the Przemyśl District Court decided to uphold the contested decision.
By a letter of 20 June 1998 the President of the District Court informed the applicant that he could not appeal against the contested judgment as it had already become final, but that he could have the written grounds prepared.
On 12 June 1998 the applicant lodged a new complaint with the Przemyśl Regional Court that he was not summoned to the hearing and he had not presented his arguments. He also alleged that he had repeatedly requested the written grounds of the judgment and the explanation in respect of the summons to the hearing, but all his requests remained unanswered.
Following the applicant’s further request of 13 July 1998, the court sent him the written grounds of the judgment on 31 July 1998. The court emphasised therein, inter alia, that the applicant could have used a parking place located 6 meters away from the place where he had illegally parked his car.
At the material time the rules concerning a police order to pay a fine were defined in the Ordinance of the Ministry of Interior Affairs of 5 March 1991 on imposition, payment and execution of fines imposed by an order of an appropriate organ (rozporządzenie Ministra Spraw Wewnętrznych w sprawie nakładania, uiszczania i ściągania grzywien w postępowaniu mandatowym- Dziennik Ustaw, or Journal of Laws, of 1998, No 94, Item 601). Pursuant to § 4 (2) of the Ordinance in the proceedings concerning imposition of a fine, an appropriate organ may order a fine payable immediately in cash only if the amount of this fine does not exceed PLN 100. Pursuant to § 3 (2) of the Ordinance, imposition of a fine in such proceedings is possible only if a person punished by a fine accepts it. In case of refusal, the police or municipal police are obliged to submit a motion for punishment of such a person to the Petty Offences Board.
Under Article 455 in connection with Article 418 of the Code of Criminal Procedure of 1969 (CCP), applicable to the judicial proceedings concerning minor offences in which a decision was given by the Board of Petty Offences, the provisions concerning the criminal summary proceedings shall be applicable.
At the material time the rules concerning service of summons in criminal proceedings were defined in Article 118 of the CCP. Pursuant to Article 118 § 1 CCP, if a personal summoning of an addressee is impossible, a summons sent by the post should be left at the post office located the nearest to the addressee. According to Article 118 § 2 CCP, the addressee should be informed about the summons left at the post office by a written notice left on the door of his/her home. The notice should inform the addressee that the summons should be taken up within seven days.
According to well-established jurisprudence of the Polish Supreme Court, a party in criminal proceedings shall not be allowed to claim that it was not summoned by a court while being informed about a summons and not collecting it from an indicated place (see a decision of the Polish Supreme Court of 20 October 1998, III KZP 182/98, published in OSNKW No. 11-12/1998, Item 52).
Article 425 of the Code of Criminal Procedure of 1969, applicable to the summary proceedings, provided that if a suspect, who was served with the summons to the hearing, did not attend the hearing, the court could hold the hearing in the absence of the suspect and a judgment in default could be given.


ITEMID: 001-89395
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MERKUSHEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Aleksey Nikolayevich Merkushev, is a Russian national who was born in 1959 and lives in Gatchina, a town in the Leningrad Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
A retired serviceman, the applicant sued his command for the provision of a flat and discharge allowance.
By a judgment of 25 October 2000, amended on appeal on 20 November 2000, the Military Court of the Pushkin Garrison ordered the command to provide the applicant out of turn with a flat located at his last place of service and meeting statutory norms, and to pay him the discharge allowance due. This judgment became binding on 20 November 2000, but has not been fully enforced.
On an unspecified date the command paid to the applicant the discharge allowance.
On 14 March 2001 the command offered the applicant a flat of 42.4 m² in Krasnoye Selo, but the applicant refused this offer because he considered the flat too small.
On 6 September 2002 the Military Court clarified the judgment's mode of enforcement. According to the court, the command had to give to the applicant's family a flat to be allocated to the command by federal authorities, or to pay to the applicant's family a housing subsidy allocated to the command by federal or local authorities.
In November 2003 and January 2004 the command offered to the applicant two other flats, but he refused them too. In February 2006 the command offered the applicant a flat under the Programme “State Housing Vouchers”, but the applicant refused this offer.
On bailiffs' requests, in 2002–07 courts several times adjourned the enforcement because the applicant had refused the command's offers, and because no other flats were available.
Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months.


ITEMID: 001-57990
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 1996
DOCNAME: CASE OF BENHAM v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 5-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
JUDGES: John Freeland;R. Pekkanen
TEXT: 9. On 1 April 1990 Mr Benham became liable to pay a community charge of £325. Since he did not pay it, on 21 August 1990 the Poole Magistrates' Court ordered the issue of a liability order, entitling Poole Borough Council ("the charging authority") to commence enforcement proceedings against him (see paragraph 19 below, Regulations 29 and 39 (1)).
10. Mr Benham did not pay the amount owed, and bailiffs visited his parents' house (where he was living), but were told that he had no goods of any value there or elsewhere which could be seized by them and sold in order to pay the debt.
11. Under Regulation 41 of the Community Charge (Administration and Enforcement) Regulations 1989 ("the Regulations": see paragraph 19 below), if a person is found to have insufficient goods on which to levy outstanding community charge the charging authority may apply to a magistrates' court for an order committing him to prison. On such an application being made, the court must inquire in the presence of the debtor as to his present means and also whether his failure to pay which led to the liability order being made was due to wilful refusal or culpable neglect.
The charging authority applied for such an order, and on 25 March 1991 Mr Benham appeared at the Poole Magistrates' Court for the inquiry required by the Regulations.
He was not assisted or represented by a lawyer, although he was eligible for "Green Form" legal advice and assistance before the hearing (see paragraph 29 below), and the magistrates could have made an order for Assistance by Way of Representation ("ABWOR") if they had thought it necessary (see paragraph 30 below).
12. The magistrates found that Mr Benham, who had 9 "O" level General Certificates of Secondary Education, had started a Government Employment Training Scheme in September 1989, but had left it in March 1990 and had not worked since. He had applied for income support, but had been turned down because it is not payable to those who are voluntarily unemployed, and he had no personal assets or income.
On the basis of this evidence, the magistrates concluded that his failure to pay the community charge was due to his culpable neglect, "as he clearly had the potential to earn money to discharge his obligation to pay". Accordingly, they decided that he ought to be sent to prison for thirty days unless he paid what was owing.
Mr Benham was taken to Dorchester prison on the same day.
13. On 27 March 1991 a solicitor went on the record as representing Mr Benham and lodged a notice of appeal by way of case stated (see paragraph 21 below) and an application for bail pending appeal (see paragraph 22 below). Legal aid was obtained for the appeal, but not for the bail application, because it is not available for such proceedings. In the event, the solicitor appeared without payment before the magistrates on 28 March 1991 to apply for bail, but he was unsuccessful.
14. On 4 April 1991 Mr Benham's solicitor lodged an application for leave to apply for judicial review and for bail in the High Court. He was obliged to ask for judicial review, despite the fact that he had already lodged an appeal by way of case stated, because otherwise he could not have applied for bail in the High Court until the magistrates had stated a case (see paragraph 22 below). Bail was granted on 5 April 1991 and Mr Benham was thus released from prison, having served eleven days.
15. The Divisional Court heard the appeal by way of case stated and the application for judicial review together on 7 and 8 October 1991 (Regina v. Poole Magistrates, ex parte Benham, 8 October 1991, unreported). Mr Benham was represented and legally aided. The court noted that it had been necessary to apply for judicial review in order to get bail, but that the case stated procedure was more appropriate. Accordingly no order was made on the judicial review application.
16. Mr Justice Potts in the Divisional Court held that the magistrates had been mistaken in concluding that Mr Benham's failure to pay the community charge had been due to culpable neglect:
"In my view this finding was wrong on the evidence available to the justices. In certain circumstances a failure on the part of the debtor to work and put himself in funds to pay the community charge might constitute culpable neglect. In my judgment, however, before such a finding could be sustained, at the very least there would have to be clear evidence that gainful employment, for which he was fit, was on offer to the debtor and that he had rejected or refused that offer. There was no such evidence in this case. In my judgment, the justices' finding of culpable neglect cannot be sustained on the evidence adduced before them."
17. In addition, he found that the decision to commit Mr Benham to prison would have been wrong even if there had been evidence of culpable neglect, because he did not have any means with which to pay the debt at the time of the hearing before the magistrates, and because "[s]uch an order is only to be made if payment can be made and there is no other way of inducing the [debtor] to do so". In the circumstances it was incumbent upon them to consider the alternatives to immediate detention provided for by the Regulations: they could have suspended the term of imprisonment subject to such conditions as they thought fit, or refused to issue a warrant, since the local authority could have renewed their application at a later date if Mr Benham's circumstances had changed (see paragraph 19 below).
18. Mr Benham was not able to apply for compensation in respect of the time he spent in prison, because he was unable to show bad faith on the part of the magistrates, as was required by section 108 of the Courts and Legal Services Act 1990 (see paragraph 28 below).
19. The relevant subordinate legislation is the Community Charge (Administration and Enforcement) Regulations 1989 (Statutory Instrument 1989/438) ("the Regulations").
The relevant provisions of Regulation 29 ("application for a liability order") are as follows:
"(1) If an amount which has fallen due ... is wholly or partly unpaid ... the charging authority may ... apply to a magistrates' court for an order against the person by whom it is payable.
...
(5) The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid."
Regulation 39 (1) provides for the seizure and sale of a debtor's property ("levying of distress"):
"Where a liability order has been made the authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made."
Regulation 41 is concerned with the committal to prison of a debtor, and provides, so far as is relevant:
"(1) Where a charging authority has sought to levy an amount by distress under Regulation 39, the debtor is an individual, and it appears to the authority that no (or insufficient) goods of the debtor can be found on which to levy the amount, the authority may apply to a magistrates' court for the issue of a warrant committing the debtor to prison.
(2) On such application being made the court shall (in the debtor's presence) inquire as to his means and inquire whether the failure to pay which led to the liability order concerned being made against him was due to his wilful refusal or culpable neglect.
(3) If (and only if) the court is of the opinion that his failure was due to his wilful refusal or culpable neglect it may if it thinks fit -
(a) issue a warrant of commitment against the debtor, or
(b) fix a term of imprisonment and postpone the issue of the warrant until such time and on such conditions (if any) as the court thinks just.
...
(7) The order in the warrant shall be that the debtor be imprisoned for a time specified in the warrant which shall not exceed three months, unless the amount stated in the warrant is sooner paid ..."
The relevant part of Regulation 42 provides:
(3) Where an application under regulation 41 has been made but no warrant is issued or term of imprisonment fixed, the application may be renewed ... on the ground that the circumstances of the debtor have changed."
20. In Regina v. Highbury Corner Magistrates, ex parte Watkins (9 October 1992, unreported) Mr Justice Henry said in the High Court that "The proceedings under Regulation 41 are plainly legal proceedings other than criminal proceedings. They are proceedings for the recovery of an unpaid tax." However, in Regina v. Hebburn Justices, ex parte Martin (31 July 1995, unreported), Mr Justice Sedley in the High Court held that although the initial obligation to pay community charge was a civil one, magistrates "who have reached the point of committal are entertaining a criminal process".
21. By virtue of section 111 of the Magistrates' Court Act 1980 a party to proceedings before a magistrates' court may "question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ...". This is known as the "case stated" procedure.
22. Under section 113 of the 1980 Act, magistrates may grant bail to a party who applies to them to state a case; but if they refuse to do so, in cases categorised as "civil" under the domestic law, the High Court has no jurisdiction to grant bail until it is seized of some substantive proceedings to which the grant of bail can be ancillary.
23. Acts performed pursuant to an order made by a magistrates' court which is subsequently set aside by a superior court are not themselves inherently unlawful. It is at the discretion of the higher court whether these collateral acts are also invalid: Regina v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 Appeal Cases 58, 124D-G (per Lord Justice Taylor in the Court of Appeal); London and Clydeside Estates Ltd v. Aberdeen District Council [1980] 1 Weekly Law Reports 182, 189C-190C (per Lord Hailsham, Lord Chancellor, in the House of Lords); Regina v. Panel on Take-overs and Mergers, ex parte Datafin PLC [1987] Queen's Bench 815, 840A-C (per Sir John Donaldson, Master of the Rolls).
24. In English law, orders of a magistrates' court which are in excess of jurisdiction are void from the outset, whereas orders made within jurisdiction remain valid until set aside by a superior court. It is only in respect of the former type of error that a court can be held civilly liable in damages (under section 108 of the Courts and Legal Services Act 1990, which replaced section 45 of the Justices of the Peace Act 1979 - see paragraphs 27-28 below).
25. The appropriate test for whether an order of a magistrates' court is void for lack of jurisdiction is that set out by the House of Lords in McC. v. Mullan [1985] Appeal Cases 528. In that case magistrates had made an order sending a 14-year-old boy to a training school after a hearing at which he was not legally represented, had not applied for legal aid and had not been informed of his right so to do. The order was quashed on judicial review on the ground that, by virtue of Article 15 (1) of the Treatment of Offenders (Northern Ireland) Order 1976, magistrates were not permitted to pass a custodial sentence for the first time on a juvenile who was not legally represented, unless he had applied for legal aid and been refused on grounds of means or had been informed of his right to apply for it but had refused or neglected to do so.
The boy then applied for damages for false imprisonment against the magistrates. Since the case was decided prior to the enactment of the Courts and Legal Services Act 1990 and at a time when it was the law that magistrates were liable in damages for false imprisonment if they acted in excess of jurisdiction (see paragraph 26 below), the House of Lords was required to decide the jurisdictional question.
In its judgment, a magistrates' court acted in excess of jurisdiction in three circumstances only: (1) if it acted without having jurisdiction over the cause, (2) if it exercised its powers in a procedural manner that involved a gross and obvious irregularity, or (3) if it made an order that had no proper foundation in law because of a failure to observe a statutory condition precedent. The instant case fell within the third limb of the rule: the magistrates were liable in damages because they had not observed the requirements of Article 15 (1) of the 1976 Order.
During the course of his judgment speech, Lord Bridge commented (at page 546 E-F), on the jurisdiction of magistrates in conducting a criminal trial:
"... once justices have duly entered upon a summary trial of a matter within their jurisdiction, only something quite exceptional occurring in the course of their proceeding to a determination can oust their jurisdiction ... [A]n error (whether of fact or law) in deciding a collateral issue on which jurisdiction depends will not do so. Nor will the absence of any evidence to support a conviction ..."
26. The final limb of the rule formulated by the House of Lords in McC. v. Mullan (that is, that magistrates exceed their jurisdiction when they make an order which has no foundation in law because of a failure to observe a statutory condition precedent) was applied by the Court of Appeal in R. v. Manchester City Magistrates' Court, ex parte Davies [1989] 1 All England Reports 30, a case concerning rates (the predecessor to the community charge). Again, the issue was whether magistrates had acted in excess of jurisdiction and were therefore liable in damages for false imprisonment.
The plaintiff had been unable to pay all of the rates for which he became liable in December 1984, and in January 1986 he failed to follow his accountant's advice to close his business and to go bankrupt. Applying legislation similar to Regulation 41 of the Community Charge Regulations, the magistrates found that his failure to follow the accountant's advice constituted culpable neglect and they committed him to prison. The Court of Appeal held that no causal connection had been established between the failure to follow advice in 1986 and the failure to pay the rates in 1984, and that the magistrates had not properly entered into the inquiry (as to whether the failure to pay was due to culpable neglect) required by the legislation as a condition precedent of the warrant of commitment. They were therefore acting in excess of jurisdiction and were liable in damages.
The three Appeal Court judges expressed their findings in slightly different terms. Lord Justice O'Connor observed that "they never carried out the inquiry required [by the law]"; Lord Justice Neill found that "some inquiry about the applicant's finances was made", but that "a clear and crucial distinction can be drawn between the inquiry required by the statute and the inquiry which was in fact carried out. The justices never examined the question whether the failure to pay was due to culpable neglect"; and Sir Roger Ormrod (who dissented from the majority decision) said: "... it is quite clear that the justices carried out an inquiry into means carefully and in detail ... It is equally plain that they misdirected themselves completely ... They ... failed to realise that the question they had to decide was whether the applicant's failure to pay his rates was `due either to his wilful refusal or to his culpable neglect'" (see pp. 637 B, 642 H-643 G and 647 E).
27. Magistrates enjoy a statutory immunity from civil liability in certain circumstances. Before the coming into force of section 108 of the Courts and Legal Services Act 1990 on 1 January 1991, this immunity was provided for by sections 44 and 45 of the Justices of the Peace Act 1979. In brief, a magistrate was liable in damages for acts done by him in his official capacity if it could be proved either (1) that the act was done maliciously and without reasonable and probable cause or (2) that it was performed outside or in excess of jurisdiction (see paragraph 25 above for the meaning of the latter expression).
28. The position under section 108 of the Courts and Legal Services Act 1990 is now that an action lies against a magistrate only if it can be proved that he acted both in bad faith and in excess of jurisdiction:
"An action shall lie against any justice of the peace ... in respect of any act or omission of his -
(a) in the purported execution of his duty -
(i) as such a justice; ...
(b) with respect to any matter which is not within his jurisdiction, if, but only if, it is proved that he acted in bad faith."
29. The legal-aid scheme does not provide for full representation before magistrates for proceedings for committal to prison for non-payment of the community charge. The "Green Form" scheme provides at least two hours' worth of advice and assistance from a solicitor (the time limit can be extended), including preparation for a court case, but it does not provide for representation.
30. Assistance by Way of Representation ("ABWOR") enables a magistrates' court, in certain circumstances, to appoint a solicitor who happens to be within the court precincts to represent a party who would not otherwise be represented. Regulation 7 (1) (b) of the Legal Advice and Assistance (Scope) Regulations 1989 provides that ABWOR may be given:
"at a hearing in any proceedings in a magistrates' court to a party who is not receiving and has not been refused representation in connection with those proceedings, where the court -
(i) is satisfied that the hearing should proceed on the same day;
(ii) is satisfied that that party would not otherwise be represented; and
(iii) requests a solicitor who is within the precincts of the court for purposes other than the provision of ABWOR in accordance with this sub-paragraph, or approves a proposal from such a solicitor, that he provide that party with ABWOR ..."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c
NON_VIOLATED_ARTICLES: 5
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-96430
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: COMMITTEE
DATE: 2009
DOCNAME: CASE OF JESSE v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
TEXT: 4. The applicants were both born in 1952 and live in Gießen.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. In September 1997 the applicants and their neighbour filed a request with the Gießen administrative authorities (“the administration”) seeking permission to cut down their neighbour’s tree which, according to an expert opinion obtained by the applicants, was causing damage to their house.
7. On 19 November 1997 the administration rejected this request. On 9 March 1998, on the applicants’ administrative appeal, the administration granted permission to cut down the tree on the ground that they could not exclude the possibility that the damage to the house had been caused by the tree.
8. Subsequently, the applicants’ neighbour refused to cut down the tree.
9. In August 1998 the applicants requested the Gießen Regional Court to order their neighbour to cut down the tree.
10. On 23 November 1998, following submissions by the defendant, who also presented an expert report, the court decided to obtain an expert opinion from a Dr Str. On 30 January 1999 Dr Str. submitted his report.
11. On 3 May 1999, following a hearing, the Gießen Regional Court decided that the applicants’ neighbour had to cut down the tree or take other measures to prevent the earth from drying out.
12. On 29 June 1999 the applicants’ neighbour appealed. She also submitted another expert opinion.
13. On 28 July 1999 the Frankfurt/Main Court of Appeal, on provision of a security by the neighbour, stayed the proceedings for enforcement of the first-instance judgment. Subsequently, the case was transferred to a single judge.
14. On 9 August 1999 the court scheduled a hearing for 12 November 1999. That day it decided to obtain an expert opinion. On 10 January 2000 it commissioned Professor K., an expert on construction matters.
15. On 11 January 2000 the applicants lodged a subsequent appeal (Anschlussberufung).
16. On 2 February 2000 the court amended its decision regarding the taking of evidence. Subsequently, it also requested a further advance. On 26 March 2000 the applicants paid the requisite advance. A few days later they questioned the expert’s qualification. On 26 April 2000 the court sent the files to the expert.
17. On 25 August 2000, following comments made by the expert about the applicants’ objections against him, the court mandated Professor K. to proceed with the report. On 22 September 2000 Professor K. informed the court about the cost of his services (which amounted to about 25,000 euros (EUR)).
18. In November 2000 the court requested the files from the expert and on 9 February 2001, on appeal by the defendant, it quashed a decision of the Gießen Regional Court concerning the enforcement proceedings.
19. On 23 February 2001 the court proposed to the applicants that, in view of the exceptionally high costs claimed by Professor K., evidence should be taken by other means and proposed a Dr S., a landscaping expert.
20. On 12 March 2001 the applicants opposed the proposal since, in their view, Professor K.’s report was indispensable. They also opposed the choice of Dr S. on the grounds that he had been proposed by the defendant, knew the defendant’s son and it could be assumed that he had been talking with him about the case.
21. At the subsequent hearing on 20 April 2001 the applicants requested Dr S. to declare that he did not have any personal ties with the defendant or her son and had not dealt with the case before. On 29 June 2001, following this declaration by Dr S., the court commissioned Dr S. to provide an expert opinion.
22. On 4 November 2001 the court asked the applicants to comment on a statement by Dr S. dated 6 August 2001. In December 2001 the expert requested a further advance. On 11 July 2002 he submitted his report. He came to the conclusion that the tree had not caused the damage to the house.
23. On 29 August 2002, following the applicants’ submissions, the court asked Dr S. and the first-instance expert, on condition of the payment of a further advance, to explain and supplement their reports. In October 2002 it amended its decision; in November 2002 it requested a further advance. On 20 January 2003 it transferred the files to Dr S.
24. In April 2003 the court requested a further advance of EUR 500 from both parties. On 1 August 2003, at the request of the applicants, it further amended the order regarding the taking of evidence. On 29 August 2003 the defendant paid the advance. The court then requested the expert to continue with his report.
25. In June 2004 Dr S. submitted his supplementary report. The court then transferred the files to the parties for further submissions.
26. On 23 June 2004 the applicants requested the court to transfer the case from the single judge to a bench.
27. On 2 September 2004 the court scheduled a hearing for 6 October 2004. It later had to be postponed to 3 November 2004 owing to the absence of the parties’ legal counsels. At the hearing, the court (again composed of three judges) established that a report by a construction expert was necessary in order to reach a decision. It also encouraged the parties to reach a friendly settlement in view of the high costs claimed by Professor K. None of the experts were summoned.
28. On 22 December 2004 the court decided that, in view of the additional submissions, further evidence should be obtained by Dr S. as regards the position of the roots of the tree. It also requested an advance of EUR 2,000.
29. In February 2005 the applicants asked the court to amend this decision. This however was rejected in March 2005 and again later on a renewed request. In April 2005 the court confirmed that the applicants had already paid the advance (requested again in March) on 5 January 2005.
30. On 19 October 2005 a local inspection took place.
31. By a letter dated 21 January 2006 the applicants lodged a constitutional complaint on account of the length of the proceedings. On 9 February 2006 the Federal Constitutional Court refused to accept the constitutional complaint for adjudication. It found that there was no indication of a violation of the applicants’ rights.
32. On 20 March 2006 the Court of Appeal requested another advance of EUR 28,500. In June 2006 it again refused to amend its decision regarding the taking of evidence; also in June 2006 the applicants paid the advance.
33. On 10 October 2006 the expert informed the parties that the local inspection (which required free access to the applicants’ cellar) should take place on 9 November 2006. At the applicants’ request, it was postponed to 22 January 2007.
34. On 20 February 2007 the expert submitted an interim report; on 12 July 2007 he submitted his final report.
35. On 14 September 2007 the court scheduled the hearing. On 19 December 2007 the Frankfurt/Main Court of Appeal ordered the neighbour to cut down the tree.
VIOLATED_ARTICLES: 6