ITEMID: 001-57711
LANGUAGEISOCODE: ENG
RESPONDENT: IRL
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF PINE VALLEY DEVELOPMENTS LTD AND OTHERS v. IRELAND
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (victim);Preliminary objection rejected (non-exhaustion);No violation of P1-1;No violation of Art. 14+P1-1;Violation of Art. 14+P1-1;No violation of Art. 13;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 8. The first and second applicants, Pine Valley and Healy Holdings, used to have as their principal business the purchase and development of land. The first of these companies, which was a wholly-owned subsidiary of the second, was struck off the register of companies on 26 October 1990 and dissolved on 6 November 1990, for failure to file annual returns for more than eight years. Since 1981 Healy Holdings too has filed no annual returns; on 14 October and 29 November 1985 a receiver to this company was appointed by two secured creditors. The third applicant, Mr Daniel Healy, is the managing director of Healy Holdings and its sole beneficial shareholder; on 19 July 1990, by order of an English court, he was adjudged bankrupt.
9. On 15 November 1978 Pine Valley had agreed to purchase for IR £550,000 21½ acres of land at Clondalkin, County Dublin. It did so in reliance on an outline planning permission (see paragraph 29 below) for industrial warehouse and office development on the site. This permission, which was recorded in the official planning register (see paragraph 31 below), had been granted on 10 March 1977 by the Minister for Local Government to the then owner, Mr Patrick Thornton, on his appeal against the refusal, on 26 April 1976, by the planning authority (Dublin County Council) of full planning permission. One of the grounds for that refusal was that the site was in an area zoned for the further development of agriculture so as to preserve a green belt.
10. On 15 September 1980 Dublin County Council refused the detailed planning approval (see paragraph 29 below) for which Pine Valley had applied on 16 July 1980 in reliance on the outline permission. Pine Valley thereupon sought a conditional order of mandamus, directing the council to grant such approval; such an order was granted on 8 December 1980 and was made absolute by the High Court by a decision of 27 May 1981.
11. On 17 July 1981 Pine Valley sold the land to Healy Holdings for IR £550,000.
12. On 5 February 1982, on appeal by Dublin County Council against the High Court’s decision, the Supreme Court held that the grant of outline planning permission had been ultra vires and was therefore a nullity. It found that the relevant statutory provision (section 26 of the Local Government (Planning and Development) Act 1963) did not empower the Minister for Local Government to make, on an appeal against a refusal by a planning authority, a decision which - as in the present case - contravened the development plan (see paragraph 9 above).
13. As a result of this decision the land could not be developed and its value was therefore substantially reduced. In June 1988 it was sold in the open market by the receiver of Healy Holdings for IR £50,000.
14. With a view to validating planning permissions and approvals the validity of which came into question as a result of the Supreme Court’s decision, the Local Government (Planning and Development) Act 1982 ("the 1982 Act") was enacted. It entered into force on 28 July 1982.
15. Section 6 of the 1982 Act provided as follows:
"(1) A permission or approval granted on appeal ... prior to the 15th day of March, 1977, shall not be, and shall not be regarded as ever having been, invalid by reason only of the fact that the development concerned contravened, or would contravene, materially the development plan relating to the area of the planning authority to whose decision the appeal related.
(2) If, because of any or all of its provisions, subsection (1) of this section would, but for this subsection, conflict with a constitutional right of any person, the provisions of that subsection shall be subject to such limitation as is necessary to secure that they do not so conflict but shall be otherwise of full force and effect."
The date of 15 March 1977 was that of the establishment of the Planning Board (An Bord Pleanála), to which body the appeal functions formerly entrusted to the Minister for Local Government had been transferred by the Local Government (Planning and Development) Act 1976.
16. The 1982 Act also dealt, in section 2, with the duration of the validity of certain permissions. Its effect was that one granted on 10 March 1977, as was the outline permission in the present case, expired on 10 March 1984. Under section 4, however, the planning authority could extend the period of validity of a permission provided, inter alia, that substantial works had already been carried out before it expired.
17. In the course of the debate on the 1982 Act before Seanad Éireann (Upper House of Parliament) the Minister of State at the Department of the Environment was asked the following question:
"I understand that certain planning permissions were declared to be null and void by the Supreme Court. I agree the law has to be put right, but who is going to declare under subsection (2) whether a person’s constitutional rights are going to be interfered with? Does it mean another trip to the Supreme Court? What is the position? The Minister might tell us exactly what is in his mind."
The Minister replied:
"It would be agreed by the court. Subsection (2) has been included by the parliamentary draftsman, with the agreement of the Attorney General, so as to preserve the rights of parties to any proceedings now before the courts and to assure that no court is deprived of jurisdiction regarding an issue raised in such proceedings. This subsection is also designed to meet the case of any unconstitutional interference with a property right." (Official report of the Parliamentary Debates of Seanad Éireann for 22 July 1982, columns 1411-1435)
18. On 4 August 1982 Pine Valley applied to Dublin County Council for planning approval (see paragraph 29 below) on the basis of the outline permission granted in 1977; its application contained no reference to the 1982 Act. Approval was refused on 10 December on the ground that the Supreme Court had held in the first Pine Valley case that the outline permission was not valid and on four other grounds related to technical planning matters. No appeal was made to the Planning Board against this decision nor was it the subject of any other legal challenge; the applicants claimed that an appeal would have been to no avail since the Board had to confine itself to matters of proper planning and development (see paragraph 30 below) and could not give an authoritative interpretation of section 6 of the 1982 Act.
19. A few months after the Council’s decision, the applicants set in motion the second Pine Valley case (see paragraphs 20-27 below). Whilst it was pending, the following steps were taken on their behalf.
First, on 27 April 1983 their architect wrote to the Planning Board asserting that Pine Valley was excluded from the benefit of section 6(1) of the 1982 Act and asking that the applicants’ position be reconsidered in the light of "the injustice of the situation". The Board replied on 2 May, regretting that it could not be of assistance.
Secondly, on 7 September 1984 the applicants’ solicitors wrote to the Board, requesting it to deal with the outstanding appeal which had originally been dealt with by the Minister for Local Government in March 1977 (see paragraph 9 above) in a manner subsequently found invalid. The Board replied on 23 November that the appeal in question "does not remain to be determined by the Board". The solicitors asked the Board to indicate the reasons for this decision, but its reply of 8 January 1985 was confined to saying that the legal advice it had received was confidential and that it could not assist any further than by stating its position.
20. On 11 March 1983 Pine Valley brought proceedings - in which Healy Holdings and Mr Healy were joined as plaintiffs on 25 January 1985 - against the Minister for the Environment (as the successor to the Minister for Local Government), seeking damages for breach of statutory duty, for negligent misrepresentation and for negligence. The plaintiffs later amended their pleadings to include a claim for damages against the State for breach of their constitutional rights of property.
With the consent of the parties the High Court directed on 28 January 1985 that the question whether the plaintiffs had a cause of action be tried as a preliminary issue and that the following points of law fell to be determined in this connection:
(a) whether an action in damages for
(i) breach of statutory duty;
(ii) negligence; and/or
(iii) negligent misrepresentation
lay at the suit of the plaintiffs against the Minister for the Environment for granting on legal advice the outline planning permission to Mr Thornton;
(b) whether in the circumstances pleaded the State
(i) had failed to vindicate the property rights of the plaintiffs and, if so, whether an action for damages lay against it;
(ii) had in its laws respected and as far as practicable by its laws defended and vindicated the property rights of the plaintiffs and, if it had not, whether an action for damages lay against it.
On 28 June 1985 the High Court held that no cause of action lay, whereupon the plaintiffs appealed to the Supreme Court. On 22 July they entered into an agreement amongst themselves in which Pine Valley and Healy Holdings assigned to Mr Healy, on his undertaking to pay the costs, their entire interest in the proceedings and acknowledged that any benefit resulting therefrom would accrue to him free of any claim by them.
21. On 30 July 1986 the Supreme Court unanimously dismissed the appeal ([1987] Irish Law Reports Monthly, pp. 753-768).
22. In rejecting the claim for damages based on breach of statutory duty, Mr Justice Finlay CJ (with whose judgment Mr Justice Griffin agreed and Mr Justice Hederman concurred) found that the Minister’s decision to grant outline planning permission contravening the development plan did not fall into any of the categories of ultra vires decisions that would found an action for damages; in particular, there was no evidence that he had been aware that he did not possess the power he was purporting to exercise.
23. Mr Justice Finlay CJ based his dismissal of the claims for alleged negligence and negligent misrepresentation essentially on the ground that, when granting the permission, the Minister had acted bona fide and in accordance with the advice he had obtained from his department’s legal advisers.
24. As regards the claim for damages for breach of the plaintiffs’ constitutional rights of property, Mr Justice Finlay CJ stated:
"With regard to this submission the first enquiry must, it seems to me, be as to whether there has been an unjust attack on the plaintiffs’ property rights or whether an injustice has been done to them.
What the Minister was doing in making his decision in 1977 to grant outline planning permission to the then owner of these lands was not intended as any form of delimitation or invasion of the rights of the owner of those lands but was rather intended as an enlargement and enhancement of those rights.
The purchase of land for development purposes is manifestly a major example of a speculative or risky commercial enterprise. Changes in market values or economic forces, changes in decisions of planning authorities and the rescission of them, and many other factors, indeed, may make the land more or less valuable in the hands of its purchasers.
I am prepared to accept that prima facie in this instance the fact that the Minister’s decision was ultimately found by this Court to have been a nullity, probably contributed towards a diminution in the value of the land in the plaintiffs’ hands. That fact, itself, however, does not, in my view, necessarily mean that an injustice was done to the plaintiffs and I am certain that that does not constitute an unjust attack on the plaintiffs’ property rights.
The obligation of the State in Article 40.3.1o and Article 40.3.2o [of the Constitution of Ireland] is in the first instance, as far as practicable by its laws to defend and vindicate the personal rights of the citizen and, in the second instance, to protect as best it may from unjust attack, and in the case of injustice done, vindicate the property rights of every citizen. In its decision in the case of Moynihan v. Greensmyth [1977] Irish Reports 55, this Court in its judgment delivered by O’Higgins CJ, stated as follows:
‘It is noted that the guarantee of protection given by Article 40.3.2o of the Constitution is qualified by the words "as best may be". This implies circumstances in which the State may have to balance its protection of the right as against other obligations arising from regard for the common good.’
I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act without negligence and bona fide. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.
I am, therefore, satisfied that there cannot be, on the facts of this case, any question of there being a clearcut obligation imposed on the State to provide compensation for the plaintiffs in the circumstances which have arisen. I am, therefore, satisfied that the submissions made with regard to a claim for damages for breach of constitutional rights must also fail. It is not necessary for me to decide, and I express no opinion, on the question as to whether an action does lie for failure on the part of the Oireachtas to legislate in protection of personal rights, as distinct from the action to set aside or invalidate legislation which fails adequately to protect or vindicate them."
25. In their judgments some members of the Supreme Court addressed the question whether the retrospective validation of planning permissions effected by section 6 of the 1982 Act (see paragraphs 14-15 above) covered the outline permission granted to Mr Thornton in 1977. This question was not expressly mentioned in the agreed points of law to be determined (see paragraph 20 above), nor did the pleadings in the case make it a contentious issue: the plaintiffs’ plea in their statement of claim that they could not "by operation of law avail of the retrospective validity afforded by the provisions" of that section was not denied by the State in its defence.
Mr Justice Finlay CJ stated that the 1982 Act contained a "saver for cases involving constitutional rights of other persons, which would appear to exclude the plaintiffs from the benefit of such retrospective validation".
Mr Justice Henchy (with whom Mr Justice Griffin agreed) said that section 6 of the 1982 Act effected a retrospective validation, save where it "would conflict with a constitutional right of any person. This meant that Pine Valley were excluded from the benefit of the section, for they had exercised their constitutional right to litigate the validity of the planning permission in the Courts".
Mr Justice Lardner stated:
"No doubt it was apprehended that s. 6(1) of the [1982 Act] might operate to reverse retrospectively this Court’s decision [in the first Pine Valley case] and that this might constitute an unwarrantable interference by the legislature in a decision of the courts. It seems probable that it was in these cicumstances that s. 6(2) was enacted with a view to avoiding such interference. And this subsection has been accepted by counsel for both sides in the present case as excluding the appellants from the benefit of s. 6(1)."
26. Certain views were also expressed as to the effects of the plaintiffs’ being excluded from the benefit of the retrospective validation.
Mr Justice Henchy said:
"[The] exclusion has been attacked by counsel for Pine Valley as being unfairly discriminatory as far as they are concerned, but in my view, while a discrimination has resulted, the primary and overriding purpose of the section was to avoid an unconstitutional invasion of the judicial domain by attempting to give validity to any planning permission which the Courts may have held to be lacking in validity. It would follow that no injustice has been done to Pine Valley by s. 6 of the 1982 Act."
Mr Justice Lardner stated:
"... the appellants contend that to exclude them from the benefit of s. 6(1) constitutes (a) an unjust attack on their property rights or an injustice done which affects their property rights and (b) discriminates unfairly as between them and other persons who had received permissions or approvals of the Minister on appeal under Part IV of the 1963 Act and who were given the benefit of s. 6(1). In regard to the first contention it seems to me that s. 6(2) was included by the Oireachtas for the purpose of respecting and not interfering with the determination by the courts of the justiciable controversy which constituted the proceedings in [the first Pine Valley case] and of respecting the constitutional rights of the parties, both plaintiffs and defendants in that action, to have their controversy determined by the courts rather than by the Oireachtas. It may be that there is to some extent a conflict here between the right of the parties to have their controversy judicially determined by the courts and the present appellants’ property interest. That fact in itself, however, does not in my view, necessarily mean that an injustice was done to the appellants and I am satisfied that it does not constitute an unjust attack on the appellants’ property rights or an unlawful discrimination against them.
Those persons (such as the appellants) who were excluded from the benefits of s. 6(1) by s. 6(2) and the other recipients of planning approval or permission on appeal from the Minister who benefited from s. 6(1) and fall outside the ambit of s. 6(2) constitute two groups who were and are differently situated and a valid and substantial reason for the discrimination which has been made by these sections has always existed."
27. Mr Justice Henchy added that when the outline planning permission in respect of the land was declared invalid, there would have been a breach of the vendor’s covenant for title, which would have given Pine Valley a cause of action for damages against him. Alternatively, it could have recovered from him, in an action for unjust enrichment, so much of the purchase price as was attributable to the permission. Since Pine Valley had not shown that its loss could not be recovered in that way, it had failed to prove that an injustice had been done to it for the purposes of Article 40.3.2o of the Constitution.
28. The Constitution of Ireland contains the following provisions:
"1. All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
...
3. 1o The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2o The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen."
"1. 1o The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
2o The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.
2. 1o The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
2o The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good."
29. In addition to the 1982 Act (see paragraphs 14-16 above), the principal legislation pertinent to this case was the Local Government (Planning and Development) Act 1963, as amended by the 1976 Act of the same title ("the 1963 Act").
The 1963 Act and regulations made thereunder provided for the grant by planning authorities of "permissions" and "outline permissions" for the development of land. Permissions were complete in themselves. Outline permissions amounted to a favourable decision as to the principle of the proposed development but were granted subject to the subsequent approval, by the authority or on appeal, of detailed plans, without which approval work could not be commenced. The authority had to examine an application for such approval within the parameters set by the outline permission and could not reopen the question of principle. Outline planning permissions could be revoked but only in the event of a change in circumstances relating to the proper planning and development of the area.
30. In dealing with any application for permission or approval a planning authority was restricted, by section 26(1) of the 1963 Act, to considering "the proper planning and development of [its] area".
An appeal against a decision of a planning authority lay to the Minister for Local Government or, after 15 March 1977 (see paragraph 15 above), to the Planning Board. Under section 26(5)(b) of the 1963 Act, the provisions of section 26(1) applied, subject to any necessary modifications, to the determination of any such appeal. If a question of law arose on an appeal, the Minister or the Board could refer it to the High Court for decision (section 82(3)).
31. Under the 1963 Act, planning permissions, which had to be recorded in a register kept by the planning authority, enured for the benefit of the land in question and of "all persons for the time being interested therein" (sections 8 and 28(5)).
32. Subject to a number of exceptions set out in section 56, section 55(1) of the 1963 Act gave a right to compensation in the following terms:
"If, on a claim made to the planning authority, it is shown that, as a result of a decision under Part IV of this Act involving a refusal of permission to develop land ... the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced, such person shall, subject to the provisions of this Part of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value and, in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried on on the land."
Claims for compensation under this section had to be made within six months of notification of the decision, unless the Circuit Court accepted an application for an extension of this period (section 55(6)).
33. Under section 29(1) of the 1963 Act:
"Where, in a case determined on an appeal under this Part of this Act, permission to develop any land has been refused or has been granted subject to conditions, then, if the owner of the land claims
(a) that the land has become incapable of reasonably beneficial use in its existing state, and
(b) that the land cannot be rendered capable of reasonably beneficial use by the carrying out of any other development for which permission has been granted under this Part of this Act, or for which the planning authority have undertaken to grant such permission, and
(c) in a case where permission to develop the land was granted as aforesaid subject to conditions, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with those conditions, he may, at any time within the period of six months after the decision (or such longer period as the Minister may allow), serve on the planning authority a [purchase notice] requiring the planning authority to purchase his interest in the land in accordance with the provisions of this section."
The value of land which was the subject of such a purchase notice was to be taken to be "the amount which the land if sold in the open market by a willing seller might be expected to realise".
34. It was established by the Supreme Court in Buckley and others (Sinn Fein) v. Attorney General [1950] Irish Reports 67 that the legislature cannot intervene in respect of cases pending before the courts. On the other hand, it appears that the legislature may validly reverse the decision of the courts with retrospective effect once the proceedings are terminated, without thereby infringing the principle of judicial independence (see, for example, the Garda Siochána Act 1979, reversing the Supreme Court decision in Garvey and others v. Ireland [1981] Irish Reports 75).
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-1
NON_VIOLATED_ARTICLES: 13
14
P1
NON_VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-81924
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF STEMPFER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1934 and lives in St Johann am Walde.
5. On 21 December 1995 the applicant, by failing to grant the right of way, caused a traffic accident in which the driver of another car was injured.
6. On 16 April 1996 the Mattighofen District Court (Bezirksgericht), having held the trial at which it heard the applicant, the victim and a motor vehicles expert, found the applicant guilty of negligently causing bodily harm (Article 88 §§ 1 and 4 of the Criminal Code – Strafgesetzbuch) and acquitted him of the charge of having abandoned the victim (Article 94 § 1 of the Criminal Code). No appeals were made and the judgment became final.
7. On 8 February 1996 the Braunau District Administrative Authority (Bezirkshauptmannschaft) issued a provisional penal order (Strafverfügung) finding the applicant guilty of having failed to stop after the traffic accident of 21 December 1995 and of having failed to inform the next police station (Section 4 §§ 1 (a) and 2 in conjunction with Section 99 § 2 (a) of the Road Traffic Act – Straßenverkehrsordnung). It imposed a fine of 1,600 Austrian schillings (ATS – approximately 116 euros) on him with 72 hours' imprisonment in default.
8. The applicant raised an objection (Einspruch) on 29 February 1996. He referred to the proceedings before the Mattighofen District Court which were at that time still pending. Once these proceedings were terminated the applicant informed the District Administrative Authority accordingly, arguing that further administrative criminal proceedings against him relating to the same set of facts violated the ne bis in idem principle. He requested that these proceedings be discontinued.
9. On 12 September 1996 the District Administrative Authority issued a penal order (Straferkenntnis) confirming its previous decision. It noted that, in contrast to the criminal proceedings before the courts, the conduct at stake was the failure to inform the police and not the failure to assist the victim.
10. The applicant appealed. Referring to the Court's judgment in Gradinger v. Austria (23 October 1995, Series A no. 328C) he asserted that the two sets of proceedings were based on the same conduct. He further argued that his defence, which had been accepted in the court proceedings, was that he had not even noticed the accident. He explicitly waived his right to a hearing.
11. On 21 October 1996 the Upper Austria Independent Administrative Panel (Unabhängiger Verwaltungssenat), without a hearing, dismissed the applicant's appeal. It noted that the offence of abandoning the victim under Article 94 of the Criminal Code required intent, and therefore presupposed that the suspect was aware of having caused an accident in which a person had been injured. In contrast, negligence was sufficient for the commission of the offences under Section 4 §§ 1 (a) and 2 of the Road Traffic Act. Had the applicant paid the required attention he would have noticed the accident. In coming to this conclusion, the Independent Administrative Panel had regard to the findings of the criminal court, namely that the applicant had noticed the approaching vehicle before turning to the left into the street. A diligent driver would therefore have been required to check in the rear mirror whether his manoeuvre had been safe.
12. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) on 19 November 1996. He submitted in particular that the conviction violated the ne bis in idem principle. Moreover, he alleged that the Independent Administrative Panel had applied an unconstitutional provision when fixing the sentence. On 10 January 1997 the Independent Administrative Panel submitted its observations.
13. On 10 October 1997 the Constitutional Court quashed the Independent Administrative Panel's decision. It found that it could not be excluded that, when fixing the sentence, the Independent Administrative Panel had applied a provision which had been declared unconstitutional by the Constitutional Court's judgment of 9 October 1997. That provision had excluded the application of Section 20 of the Code of Administrative Offences (Verwaltungsstrafgesetz) in road traffic proceedings. That provision states that the statutory minimum fine may be reduced by half, if the extenuating circumstances clearly outweigh the aggravating circumstances. This decision was served on the applicant's counsel on 4 November 1997.
14. On 21 November 1997 the Independent Administrative Panel, without a hearing, confirmed its previous decision. Fixing the sentence anew, it noted that even when applying Section 20 of the Code of Administrative Offences, the fine was commensurate to the applicants' guilt.
15. The applicant lodged a complaint with the Constitutional Court on 9 January 1997. He alleged a violation of the ne bis in idem principle. The Independent Administrative Panel submitted its observations on 6 March 1998.
16. On 17 June 2000 the Constitutional Court refused to deal with the complaint for lack of prospects of success. As to the applicant's complaint under Article 4 of Protocol No. 7 it noted that the present case did not concern an example of a single act constituting more than one offence (kein Fall der Idealkonkurrenz).
17. On 25 September 2000 the Constitutional Court granted the applicant's request to transfer the case to the Administrative Court (Verwaltungsgerichtshof). The latter received that request on 16 November 2000.
18. The applicant supplemented his complaint on 9 January 2001. He reiterated his complaint about a violation of the ne bis in idem principle. Moreover, he complained that no oral hearing had been held in the second set of proceedings before the Independent Administrative Panel. Finally, he requested the Administrative Court to hold a hearing.
19. On 18 November 2002 the applicant complaining about the length of the proceedings before the Administrative Court.
20. On 28 February 2003 the Administrative Court, sitting in camera, refused to deal with the applicant's complaint pursuant to Section 33a of the Administrative Court Act (Verwaltungsgerichtshofgesetz) as the fine imposed did not exceed 726 euros and the case did not raise an important legal issue.
21. The decision was served on the applicant's counsel on 22 April 2003.
22. Article 94 § 1 of the Criminal Code (Strafgesetzbuch), provides as follows:
“Anyone who fails to assist another person to whom, even if not unlawfully, he has caused bodily injury ... shall be liable to up to one year's imprisonment or up to 360 day-fines.”
23. Section 4 of the Road Traffic Act (Straßenverkehrsordnung) reads as follows:
“1. All persons whose conduct at the scene of a traffic accident was causally related to the accident shall
(a) if they are driving a vehicle, stop immediately;
...
2. If anyone has been injured in a traffic accident, the persons referred to in subsection 1 above shall provide assistance; if they are not capable of doing so, they shall arrange for assistance without delay. They shall further inform the nearest police station immediately.”
24. Section 99 § 2 (a) of the Road Traffic Act in the version in force at the material time, provided that it was an administrative offence punishable by a fine of not less than ATS 500 and not exceeding ATS 30,000 or, in default of payment, by one day to six weeks' imprisonment, for any driver having caused a traffic accident causing bodily injury to act contrary to Section 4 §§ 1 and 2.
25. Section 99 § 6 provides that proceedings shall not be instituted in respect of an administrative offence that is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts.
26. Section 51e of the Code of Administrative Offences (Verwaltungsstrafgesetz), as far as relevant, reads as follows:
“2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is expressly requested in the appeal.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-23450
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: FERNANDEZ-MOLINA GONZALEZ and OTHERS v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: In May 1981 the applicants along with more than 20,000 others sustained severe food poisoning that caused an illness known as “toxic syndrome” after consuming denatured rapeseed oil. The applicants are represented by Mr Ergec, Mr Docquir, Mr Baro and Mr Gómez de Liaño. .... The facts set out below concern the first applicant. The facts in the cases of the other 369 applicants cases are identical, apart from the claims for compensation, which were made and dealt with individually.
The facts of the case, as presented by the parties, can be summarised as follows.
On 26 June 1981 a criminal investigation was started into suspected breaches of public-health regulations. All the proceedings concerning the breaches were joined and assigned to the Second Section of the Criminal Division of the Audiencia Nacional, which divided the cases into two separate groups of criminal proceedings, depending on whether or not the defendants were civil servants.
The individual complainants were represented in the proceedings by various associations, including the National Association of Victims of Toxic Syndrome (hereafter “ANASTO-LEGANES””), which was formed on 22 July 1981 with the object of securing full reparation for all damage sustained by victims of toxic syndrome. The first applicant is the president of that association.
The proceedings began in 1981 with a criminal complaint by the public prosecutor’s office. A large number of complaints by victims and associations of victims, and the results of various police and judicial inquiries, were added to the investigation file. The investigation concerned individuals and companies from the private sector and public authorities and their servants. However, in a decision of 12 April 1994, the Audiencia Nacional decided to sever the proceedings against the civil servants. It does not appear from the case file that an appeal was lodged against that decision.
In a judgment of 20 May 1989, the Second Section of the Criminal Division of the Audiencia Nacional handed down prison sentences to various defendants for breaches of the public-health regulations, fraud arising out of the sale of denatured rapeseed oil, and professional negligence. In addition to imposing criminal penalties, the Audiencia Nacional held that one of the defendants was liable in damages, while the codefendants and two undertakings implicated in the distribution of the oil incurred secondary liability.
The amounts due in damages by those held liable were assessed as follows:
“(i) to the heirs of each deceased victim: 15,000,000 pesetas;
(ii) to persons whose injuries lasted between 1 and 15 days: 150,000 pesetas;
(iii) to persons whose injuries lasted between 16 and 30 days: 300,000 pesetas;
(iv) to persons whose injuries lasted between 31 and 60 days: 600,000 pesetas;
(v) to persons whose injuries lasted between 61 and 90 days: 900,000 pesetas;
(vi) to persons whose injuries lasted over 90 days, but without disability: 18,000,000 pesetas;
(vii) to persons suffering from permanent disability preventing them from resuming some of their normal duties: 25,000,000 pesetas;
(viii) to persons suffering from permanent disability preventing them from resuming any of their normal duties: 40,000,000 pesetas;
(ix) to persons suffering from permanent disability preventing them from doing any work: 70,000,000 pesetas;
to persons suffering from serious disability: 90,000,000 pesetas.
The compensation payable to the heirs of the deceased persons listed as victims in Appendix VII shall be assessed in accordance with the classification of the injuries when the judgment is enforced.
(xi) ... the National Institute of Health: 2,653,076 388 pesetas.”
The Audiencia Nacional added:
“The stated compensation shall be paid to those entitled with annual interest at the statutory rate plus two points accruing from today (20 May 1989) until payment is made in full.”
In the event of any deterioration in the victim’s health, the compensation was to be adjusted depending on the category into which the victim’s injuries ultimately fell.
The defendants who were convicted, the private complainants and the public prosecutor’s office appealed on points of law. In a judgment of 23 April 1992, the Supreme Court upheld the main parts of the impugned judgment and convicted certain defendants of continuing fraud and offences under Articles 346 and 348 of the Criminal Code.
The judgment was not executed, owing to the insolvency of the private individuals and companies who had been ordered to pay damages.
Following the Audiencia Nacional’s decision of 12 April 1994, the central investigating judge no. 3 at the Audiencia Nacional started an investigation in order to determine whether certain public authorities and civil servants had any liability. The public prosecutor’s office and a number of private complainants intervened in the proceedings, which ended on 24 May 1996 with a judgment of the First Section of the Criminal Division of the Audiencia Nacional, which held:
“Those guilty of contaminating the oil have already been tried in proceedings no. 129/81 by the Second Section [of the Criminal Division of the Audiencia Nacional], and the sole purpose of the present proceedings is to establish whether [those responsible for the contamination] were able to commit the offences as a result of negligence on the part of the civil servants concerned..., it being understood that neither the conduct of the persons who have been convicted nor the consequences of that conduct may be re-examined.”
Six defendants accused of causing death by negligence and breaches of public-health regulations were acquitted. The Audiencia Nacional noted that the Supreme Court’s judgment of 23 April 1992 in proceedings no. 129/81 was final. It emphasised that the new proceedings concerned different defendants accused of different offences. All but one of the civil servants was acquitted. He was found guilty of negligently causing personal injury and ordered to pay a fine of 20,000 pesetas (ESP) and compensation to the victims equal to 50% of the amounts specified in the Second Section of the Criminal Division of the Audiencia Nacional’s judgment dated 20 May 1989 in case no. 129/1981, that is to say:
“(i) to the heirs of each deceased victim: 7,500,000 pesetas;
(ii) to persons whose injuries lasted between 1 and 15 days: 75,000 pesetas;
(iii) to persons whose injuries lasted between 16 and 30 days: 150,000 pesetas;
(iv) to persons whose injuries lasted between 31 and 60 days: 300,000 pesetas;
(v) to persons whose injuries lasted between 61 and 90 days: 450,000 pesetas;
(vi) to persons whose injuries lasted over 90 days, but without disability: 9,000,000 pesetas;
(vii) to persons suffering from permanent disability preventing them from resuming some of their normal duties: 12,500,000 pesetas;
(viii) to persons suffering from permanent disability preventing them from resuming any of their normal duties: 20,000,000 pesetas;
(ix) to persons suffering from permanent disability preventing them from doing any work: 35,000,000 pesetas;
to persons suffering from serious disability: 45,000,000 pesetas.”
The Second Section added:
“Each victim’s condition will be assessed on the basis of updated information from the case files.
Since H.’s civil liability is less extensive than that of the persons held liable in the judgment of 20 May 1989, he shall not be jointly liable for the additional 50% of compensation which they were ordered to pay in the aforementioned judgment.
We must and do order the State to pay the compensation due by H. in the event of his defaulting, less, if applicable, any amounts previously paid by the authorities by way of compensation, aid or grants to persons who have suffered damage.”
One of the three judges sitting in the Division dissented, arguing that the civil servant concerned should have been acquitted.
Appeals to the Supreme Court were lodged against that judgment. On 26 September 1997, the Supreme Court reversed and quashed part of the Audiencia Nacional’s decision. It overruled the impugned decision on quantum, holding:
The Supreme Court also ruled that everyone who had suffered from toxic syndrome, whether or not a party to the proceedings, was entitled to compensation at the relevant rate, as the associations of victims were not acting on behalf of their members, but represented the “wider interests” of all the victims, whether or not they were represented.
In a second judgment delivered the same day, the Supreme Court found two of the defendant civil servants guilty of recklessly causing death and injury. It sentenced them to six months’ imprisonment each and held them jointly and severally liable to pay damages at twice the levels ordered by the Audiencia Nacional in its judgment of 24 May 1996, that is to say, the levels set out in the judgment of 20 May 1989. The remaining five civil servants’ acquittals were upheld. The State was ordered, as a civil party with secondary liability, to pay all the sums mentioned, less any amounts it had granted by way of aid, other than amounts for medical, social-security or other similar expenses to which the victims had a statutory entitlement. An order was made on 3 October 1997 for the rectification of that judgment to confirm that the levels of compensation were those set out in the decision of 24 May 1996.
Once the Supreme Court’s judgment had become enforceable, the case was remitted to the First Section of the Audiencia Nacional for execution.
In a decision of 13 March 1998 the Audiencia Nacional laid down the procedure to be followed by individual victims in order to obtain payment of their compensation.
On 14 April 1998 the Audiencia Nacional declared the civil servants who had been found liable in damages insolvent and ordered execution of the Supreme Court’s judgment against the State as the party with secondary civil liability.
On 11 May 1998 it was decided that, with the exception of additional family allowance, special grants and housing benefit, all aid paid by the State to victims of toxic syndrome between the date of the decision to grant such aid and the date the compensation was paid would be deducted from the amount of compensation payable.
On 19 February 1999 the Audiencia Nacional directed that the payment process had begun and informed the victims of toxic syndrome that they could “obtain the standard compensation payment request form and complete related software package to assist them in making their claims from the First Section of the Criminal Division of the Audiencia Nacional”.
The standard form issued by the Audiencia Nacional did not contain a section allowing claims to be made for default interest. Accordingly, ANASTO-LEGANES drafted a document claiming default interest at the official rate from 20 May 1989, the date of the Audiencia Nacional’s judgment in the first set of proceedings, to the date of actual payment. The document was appended to the first request for execution of the judgment (which was submitted by the first applicant) and, relying on the official consumer price index published by the National Institute of Statistical Information, stated that prices had increased by 59,2% since the relevant date.
In a decision of 3 May 1999 the Audiencia Nacional rejected the first applicant’s claim for default interest accrued since the 1989 judgment and assessed his entitlement to compensation at ESP 17,360,000 (after deducting aid received from the State). That amount was to bear interest at the rate prescribed in section 45, taken together with section 36, of the General Finance Act, which lays down that the authorities must pay interest at the statutory rate if they fail to make payment within three months after being served with the relevant judicial decision.
The Audienca Nacional gave the following reasons for its decision:
“... As to the payment of interest, it will be noted that, in the final judgment in the present proceedings, the authority, on account of its secondary civil liability, was ordered to pay unliquidated damages. The sum is unliquidated because, taking the amounts specified in the judgment for each category of person affected [by the food-poisoning] as the starting point, the victims are required to submit for examination any deductible amounts ..., the classification of their injuries and any changes thereto. Accordingly, as has already been pointed out in what are now final decisions in the enforcement proceedings, everyone concerned must set the claims procedure in motion so that the amounts due to him or her can be calculated. ... Consequently, the payment of interest is only conceivable once the quantum has been calculated, that is to say, once the claims procedure has been completed. Since the debtor is a public authority ... it is necessary to apply section 45 of the General Finance Act (GFA), taken together with section 36 of that Act, and not Article 921 of the Code of Civil Procedure. ... Section 45 GFA allows the authority three months in which to make payment, as it provides that if the authority does not pay a creditor of the Treasury within three months after service of the relevant court decision or acknowledgement of the obligation, it is to pay interest at the rate stated in section 36(2) GFA – that is to say, at the statutory rate on the amount due – from the date the creditor makes a written request for performance of the obligation.”
On 11 May 1999 the first applicant renewed his request for default interest in a súplica appeal to the Audiencia Nacional. He argued that the compensation was a liquidated sum, as the Audiencia Nacional had itself established in its judgment of 20 May 1989. As to the date from which default interest was to run, the applicant said that the Constitutional Court had already construed section 45 of the General Finance Act, when read in the light of Article 921 of the Code of Civil Procedure, to mean that the judgment at first instance had to be taken into account.
In a decision of 12 July 1999, the Audiencia Nacional dismissed the súplica appeal and upheld the previous decision in its entirety. It stressed that the first applicant’s case concerned secondary civil liability in the context of the procedure for processing the claims for compensation. On 15 July 1999 the Audiencia Nacional issued an order requiring the authority to pay the sum of ESP 17,360,000.
The first applicant and the applicants whose names appear on the appended list then lodged an amparo appeal with the Constitutional Court, alleging a violation of Articles 14 and 24 § 1 of the Constitution. They said that the manner in which the Audiencia Nacional had applied section 45 of the General Finance Act constituted unjustified discriminatory treatment, as the Constitutional Court had previously held that that provision had to be read in the light of Article 921 of the Code of Civil Procedure. They also insisted that litigants were entitled to have final court decisions executed strictly in accordance with their terms.
The Constitutional Court dismissed the appeals in a series of decisions (its decision in the first applicant’s case being delivered on 4 May 2000), in which it held:
“... There has been no breach of the rule prohibiting discrimination (Article 14 of the Constitution). The [Constitutional Court’s] judgments relied on by the applicant concerned cases in which the court of first instance decided that the authority had an obligation (to pay or to reimburse certain sums); that was not the position in the instance case, as it was not until, firstly, the Audiencia Nacional’s judgment of 24 May 1996 and, subsequently, the Supreme Court’s judgment of 26 September 1997 that it was decided that the authority had secondary liability. Accordingly, to allow interest to run from the date of the Audiencia Nacional’s judgment (20 May 1989) would be tantamount to holding [the authority] responsible for delay in complying with a non-existent obligation.
The right recognised in Article 24 § 1 of the Constitution to the effective protection of the courts has not been infringed either, as the [Audiencia Nacional’s] classification of the compensation as unliquidated is an issue of law that is reserved to the ordinary courts as part of the judicial duties vested exclusively in them by Article 117 § 3 of the Constitution, provided that they do not act arbitrarily, irrationally or in manifest breach of a procedural rule, which they have not done...”
and:
“... The applicant has only raised questions of ordinary law, for which the ordinary courts have exclusive jurisdiction by virtue of Article 117 § 3 of the Constitution (Constitutional Court judgment no. 17/1999 of 22 February 1999), provided they do not act arbitrarily, irrationally or in manifest breach of a procedural rule, which they have not done...”
and further:
“... Firstly, as regards the violation of the right to the effective protection of the courts (Article 24 the Constitution), the applicant has only raised questions of ordinary law, for which the ordinary courts have exclusive jurisdiction by virtue of Article 117 § 3 of the Constitution (Constitutional Court judgment no. 17/1999 of 22 February 1999), provided they do not act arbitrarily, irrationally or in manifest breach of a procedural rule, which they have not done... Secondly, as regards the principle of equality before the law (Article 14 of the Constitution), the Constitutional Court’s judgments relied on by the applicant in support of his allegations relate to cases that cannot in any way be assimilated to the instant case...”
By August 2000 some 5,000 victims of toxic syndrome, that is to say approximately a quarter of those affected, had received compensation. The first applicant is one of them.
Article 53 § 2 of the Constitution provides, that in order to assert their rights and freedoms under Article 14 and the First Section of Chapter Two of the Constitution, all citizens may make an expedited application to the ordinary courts and, if appropriate, lodge an amparo appeal with the Constitutional Court.
The right of property proclaimed by Article 33 of the Constitution is not one of the rights for which an amparo appeal to the Constitutional Court lies.
Article 921 of the Code of Civil Procedure provides that judgment debts shall bear default interest at the statutory rate plus two points from the day after the judgment was delivered until the debt has been paid in full. Article 921 applies only to liquidated awards. The rule applies to all judicial decisions, although exceptions are made in favour of the Treasury under the General Finance Act.
Sections 36 and 45 of the General Finance Act, which govern State receipts and expenditure, provide that creditors of the State shall only be entitled to default interest at the statutory rate if the authority concerned fails to discharge the relevant obligation within three months after service of the judicial decision imposing it. The sections do not, however, indicate whether the relevant decision for this purpose is the decision of the court of first instance or of the appellate court. Section 45 of the General Finance Act states that the authority has three months in which to pay its debt and that a failure to pay within three months after service of the relevant judicial decision or acknowledgement of debt will entitle the creditor to interest at the rate stated in section 36(2) of the Act, that is to say statutory interest on the amount due from the date of a written request by the creditor for performance of the obligation.


ITEMID: 001-61623
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF D.P. v. FRANCE
IMPORTANCE: 1
CONCLUSION: No violation of Art. 6-1
TEXT: 8. The applicant was born in 1951 and is currently detained in Eysses Prison, Villeneuve-sur-Lot.
9. He was held in police custody from 25 to 27 September 1994, on suspicion of having sexually assaulted his stepdaughters. He made a full confession and, at the end of the period in police custody, he was charged with rape and aggravated sexual assault. He was detained on remand.
10. On 21 April 1995, under questioning by the investigating judge, the applicant retracted his confession; on 5 May 1995 he denied all the accusations made against him. He said that he had taken valium while in police custody and claimed that this drug could have impaired his mental faculties.
11. On 7 September 1995 the investigating judge extended the detention order. By an order of 22 December 1995, he rejected an application by the applicant for release. In a judgment of 9 January 1996, the Indictment Division of the Bordeaux Court of Appeal upheld the order. On 30 April 1996 the Court of Cassation dismissed an appeal on points of law lodged by the applicant. The Criminal Division of the Court of Cassation which ruled in that judgment was composed of Mr Le Gunehec, President, a reporting judge and six other judges, including Mr Guilloux and Mr Le Gall.
12. On 9 February 1996 the parties were informed that the investigation was complete. By a judgment of 2 July 1996 the Indictment Division committed the applicant to stand trial at the Gironde Assize Court.
13. The applicant appealed on points of law and put forward two grounds in support of his appeal: the first alleged that the Indictment Division had failed to comply with the procedural rules necessary for the effective exercise of the rights of the defence, as set out in Article 197 of the Code of Criminal Procedure, concerning the parties' access to the case file before the hearing; the second concerned a lack of sufficient reasoning in the order committing him for trial, and noted that it did not set out the facts on which the charges were based or explain why the alleged offences were classified as they were.
14. The Criminal Division of the Court of Cassation delivered a judgment dismissing the appeal on 12 February 1997. The Division which ruled on the appeal was composed of Mr Guilloux, acting as president in the absence of the incumbent president who was unable to attend, Mr Le Gall as reporting judge, and six other judges.
15. In a judgment of 3 April 1998, the Gironde Assize Court convicted the applicant and sentenced him to nineteen years' imprisonment and suspended his civic, civil and family rights for ten years.
16. On that same date the applicant lodged an appeal with the Court of Cassation, in which he raised six points of law. The first alleged a violation of Article 362 of the Code of Criminal Procedure, on the ground that the Assize Court had not stated by what majority of votes the sentence had been imposed; the second concerned a failure to comply with the principle that hearings must be oral and, in particular, with Article 347 of the Code of Criminal Procedure, which in principle prevented the court proper and the jury from deliberating with the case file before them; in his third point, the applicant complained of a violation of Article 379 of the Code of Criminal Procedure, which prohibited the content of statements being mentioned in the official record, unless the presiding judge decided otherwise; the fourth and fifth points concerned the wording of the questions put to the jury; the final point alleged a breach of the rights of the defence, on the ground that the accused had not spoken last on the question of the withdrawal of parental responsibility.
17. The applicant was provisionally granted legal aid but, in a decision of 8 April 1999, the Legal Aid Office refused his request on the ground that “no arguable ground” of appeal on points of law could be made out against the judgment of 3 April 1998.
18. In a judgment of 9 June 1999, the Criminal Division of the Court of Cassation dismissed the applicant's appeal on points of law. The Division was composed of Mr Gomez, President, Mr Guilloux, reporting judge, and Mr Le Gall, judge.
19. On 7 July 1999 the President of the Court of Cassation dismissed an appeal on points of law lodged by the applicant against the Legal Aid Office's decision.
20. The relevant provisions of the Code of Criminal Procedure applicable at the material time are the following:
“Where appropriate, after delivering the judgment the president [of the assize court] shall, if applicable, inform the accused of his or her right to lodge an appeal on points of law, and inform him or her of the time-limit for such an appeal.”
“In the event of a breach of the law, judgments of indictment divisions and judgments of the criminal courts against which no ordinary appeal lies may be set aside on an appeal on points of law to the Court of Cassation lodged by the public prosecutor or by the party adversely affected, according to the distinctions made hereafter.
Such appeals shall be lodged with the Criminal Division of the Court of Cassation.”
“Judgments of indictment divisions and judgments of trial and appellate courts against which no ordinary appeal lies and which comply with the formal requirements laid down by statute may be quashed only on grounds of a breach of the law.”
“Such judgments shall be declared null and void if they are not delivered by the prescribed number of judges or have been delivered by judges who have not attended all the hearings in the case. Where several hearings have been held in one and the same case, the judges who have taken part in the decision shall be presumed to have attended all of them.
Such judgments shall also be declared null and void if they have been delivered without submissions having been heard from the public prosecutor.
Subject to the exceptions laid down by law, judgments which have not been delivered, or in respect of which the proceedings have not been conducted in open court, shall also be declared null and void.”
“Judgments of indictment divisions and judgments against which no ordinary appeal lies shall be declared null and void if they contain no reasons or if the reasons are insufficient and do not enable the Court of Cassation to exercise its power of review and to ascertain that the law has been complied with in the operative provisions.
The same rule shall apply in the event of a failure or refusal to rule either on one or more applications by the parties or on one or more applications by the public prosecutor.”
“In criminal matters, the judgment by the indictment division committing the accused for trial shall, when it has become final, determine the jurisdiction of the assize court and cover all procedural defects, should any exist, arising from the previous proceedings.”
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98656
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF MYRSKYY v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste
TEXT: 6. The applicant, Mr Rudolf Yakovych Myrskyy, is a Ukrainian national who was born in 1932 and lives in Lviv. He is a Doctor of Philosophy and a political science professor, who also holds leading positions in the Holocaust International Centre, the Association of National Minorities in the Lviv Region, and the International Anti-Fascist Congress.
7. In March 1999 the applicant took part in a round table organised by the association “For Inter-Ethnic Peace and Concord in Ukraine” on the occasion of the International Week against Racism.
8. On 26 March 1999 the newspaper Ukraine and the World Today (Україна і світ сьогодні) published selected excerpts (compiled by its journalist Mr L.) from statements by certain participants, including the applicant, under the headline 'Judaeophobia at the political level?' ('Юдофобія на рівні політики?'). One of the arguments ascribed to the applicant read as follows:
“Unfortunately, judaeophobia may be observed not only in social behaviour, but also in politics. For example, the self-styled Party of Ukrainian Unity [«Партія української єдності»], which professes the aim of instilling in people an ideology and a psychology of national extremism, is kicking off its activities in Lviv.”
9. On 28 April 1999 thirteen members of the founding committee of the Party of Ukrainian Unity brought defamation proceedings against the applicant and the newspaper's editorial office before the Zaliznychnyy District Court of Lviv (“the Zaliznychnyy Court”). They alleged, in particular, that the applicant's statement, as cited above, was untruthful, defamatory and injurious to their honour, dignity and reputation, as well as debasing the future party's image. The plaintiffs sought a public disclaimer and apologies by the applicant and the editorial office, as well as compensation for non-pecuniary damage.
10. On 11 August 1999 the court requested the plaintiffs to specify their claim concerning the non-pecuniary damage and to submit additional documents, which they did on 27 October 1999.
11. On 21 June 2001 the court further requested the plaintiffs to submit some other documents concerning the party's registration.
12. On the same date the judge dealing with the case sent the defendants a copy of the above claim for comments. The same letter informed them that the hearing of the case was scheduled for 9 July 2001.
13. According to the judge's explanation given to the applicant in July 2003 on the latter's request, the claim remained unexamined during the period from 28 April 1999 to 2 October 2001 “due to the pre-judicial preparations”. It was also noted in the aforementioned letter that the judge, by virtue of his status, was under no obligation to provide the applicant with further explanations.
14. The applicant objected to the claim, contending that the impugned sentence was the journalist's own interpretation of his words taken out of context. Relying on his right to freedom of expression enshrined in Article 34 of the Constitution, the applicant submitted that during the round table he had expressed his view of a political scientist as regards an emerging political force. He also brought to the attention of the court several publications concerning the foundation of the Party of Ukrainian Unity in Lviv, which had appeared in the local newspapers in 1998-99 and which contained, according to him, an indication of that party's extremist trends.
15. The Zaliznychnyy Court heard one of the round table's organisers, who stated that the journalist had paraphrased and edited the applicant's original statement to make it appear harsher.
16. Mr L., who had prepared the impugned publication, was questioned as a witness and submitted that it was a verbatim record of the applicant's statement made at the round table. He noted however that the audio tape had been destroyed on the expiry of the one-year statute of limitations period established for bringing defamation proceedings.
17. During the hearings some of the plaintiffs used the word “yid” referring to Jews, which the applicant found pejorative and protested against its usage. The court allowed his complaint and directed the plaintiffs to avoid using that term.
18. By a judgment of 7 March 2002 the court allowed the plaintiffs' claim in part. It considered it established, firstly, that the impugned statement had indeed been made by the applicant, and, secondly, that it had been untruthful and defamatory. The court ruled as follows:
“To oblige R. Myrskyy and the editorial office of the newspaper Ukraine and the World Today to publish (...) a disclaimer worded as follows: “The statement of Rudolf Myrskyy published in the article 'Judaeophobia at the political level?' of 26 March 1999: “For example, the self-styled Party of Ukrainian Unity, which professes the aim of instilling in people an ideology and a psychology of national extremism, is kicking off its activities in Lviv” is untruthful. The editorial office and the author sincerely regret having published it and offer their apologies to the founders of the Party of Ukrainian Unity”.
19. The court held that publication of the aforementioned disclaimer and apologies would constitute sufficient compensation to the plaintiffs for any non-pecuniary damage sustained.
20. On an unspecified date in July 2002 the court issued additional reasoning to the above judgment, which reflected its findings as follows.
21. Having examined the statute and the programme of the party in question, the court noted the absence of any provisions inciting racial hatred or disparaging attitudes towards national minorities and held that the applicant's statement was inconsistent with the true facts and therefore injurious to the plaintiffs' dignity and reputation.
22. Furthermore, the court made reference to the testimony of Mr L., who claimed to have reproduced the impugned statement literally and without omission. It also referred to some extracts from a book co-authored by the applicant, which contained arguments similar in style and wording to the statement complained of.
23. Regarding the applicant's allegation that his words had been misrepresented and that they were a value judgment, the court “assessed them critically, having regard to the explanations given at the hearing by the witness [Mr L.] and to the assessment of the other evidence adduced”.
24. Finally, with regard to the background publications in other newspapers invoked by the applicant, the court concluded that they could not be considered as providing basis for absolving him from his responsibility in the examined defamation case.
25. The applicant appealed. He also subsequently lodged some comments on the minutes of the hearings before the first-instance court, which were allegedly dismissed in his absence.
26. On 9 September 2002 the Lviv Regional Court of Appeal found against the applicant, upholding the judgment of 7 March 2002 and reproducing almost literally its reasoning.
27. The applicant brought a cassation appeal, in which he argued that his statement had been a value judgment made in the context of a free political debate He submitted that the mentioned value judgment had a factual basis, as the extremist tendencies had indeed been shown by the plaintiffs in some publications (which he had invoked earlier) and by their usage of the pejorative term “yid” during the hearings. Lastly, the applicant brought to the attention of the cassation court the fact that the plaintiffs' claim had been stayed without any procedural steps in the first-instance court for more than two years, which had led to the loss of a crucial piece of evidence (the audio tape of the round table).
28. On 12 October 2002 the disclaimer and apologies were published in the newspaper Ukraine and the World Today in enforcement of the judgment of the Zaliznychnyy Court of 7 March 2002.
29. On 31 March 2003 the Supreme Court dismissed the applicant's cassation appeal as unsubstantiated.
30. The relevant domestic law and practice concerning the freedom of expression and defamation proceedings are summarised in the judgment Ukrainian Media Group v. Ukraine, no. 72713/01, §§ 22-25 and 27-32, 29 March 2005.
31. According to Article 143 of the Code of Civil Procedure of 1963 (repealed with effect from 1 September 2005), pre-judicial preparations by a judge dealing with a newly registered civil claim may include the following, depending on the particularities of each case: requesting additional evidence from the plaintiff, explanation of the procedural rights and duties to the plaintiff and/or the defendant, taking decisions about participation of third persons, representatives of non-governmental organisations or prosecution authorities, as well as summoning witnesses, requesting evidence from state or other institutions, and ordering measures for securing the claim. After the registration of a civil claim, the first-instance court has seven days for the aforementioned preparations, or, in exceptional cases, twenty days (Article 147 of the Code).
VIOLATED_ARTICLES: 10


ITEMID: 001-114303
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: FINDIK v. TURKEY AND OMER V. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre
TEXT: 1. The applicants, whose particulars are set out in the appendix, are Turkish nationals and close relatives of Mr Mehmet Fındık and Mr Ömer Kartal, who disappeared in 1995. The applicants were represented before the Court by Messrs Abdullah Fındık, Hüsnü Kaplan and Abdulaziz Tokay, lawyers practising in the town of Silopi, near Şırnak.
3. At around 5.30 p.m. on 31 December 1995 Mehmet Fındık and Ömer Kartal, accompanied by their relative Ömer Fındık, left Silopi Gendarmerie and Police Headquarters after having paid a visit there on the occasion of New Year’s Eve. Nothing has been heard from them since that date.
4. On 1 January 1996 the car in which the three men had travelled the previous day and which was owned by Mehmet Fındık, was found abandoned on vacant land in Silopi.
5. The same day the family asked the authorities to find the missing men. The brother of Ömer Kartal alleged that the men might have been abducted.
6. When the preliminary investigation to find the three men did not yield any results, on 19 September 1996 the Silopi prosecutor issued a continuous search order and asked the police to give him progress reports every three months.
7. In 2007 the applicants claimed compensation from the State, pursuant to Law no. 5233 on Compensation of the Losses resulting from Terrorism, for the disappearance of their relatives. On 23 May 2008 the Mardin Administrative Court rejected the case on account of the applicants’ failure to comply with a procedural rule. On 28 April 2010 the Supreme Administrative Court rejected the appeal lodged by the applicants. The Supreme Administrative Court’s decision was served on the applicants on 18 October 2010.


ITEMID: 001-23000
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: HAGMAN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicants are Seija and Vidar Hagman, Finnish nationals, who were born in 1949 and 1947 respectively and live in Vantaa. They are represented before the Court by Mr Olli Pohjakallio, a lawyer practising in Helsinki. The respondent Government are represented by 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 applicants’ dwelling, related buildings and their right to lease the land on which these were located were due to be forcibly sold on 14 December 1995 at 11.30 a.m. by the Enforcement Officer of the District of Vantaa. The applicants’ creditors had met in the Enforcement Officer’s office on 12 December 1995 at 11.30 a.m.
On 13 December at 2.50 p.m. the applicants filed, with the District Court (käräjäoikeus, tingsrätten) of Vantaa, a request to have their debts adjusted, pending which they sought to have the forced sale suspended. The request had been drawn up by L.K. from the Vantaa Office for the Counselling of Debtors.
At 3.45 p.m. a judge ordered as an interim measure that the forced sale be called off and enforcement be stayed. This decision was taken without any oral hearing having been held. The court based itself on the need to safeguard the applicants’ effective possibility of retaining their dwelling, even though the evidence they had adduced to that effect was insufficient. The urgency of the matter nevertheless required that the court issue an interim order without hearing the creditors. No separate appeal lay against this order.
The order was faxed to L.K. at 4 p.m.
The Enforcement Department and the District Court were located on different floors of the same building. At 4.10 p.m. a court clerk placed the judge’s decision – marked as urgent – on the desk of the District Court’s messenger. The court’s office hours ended at 4.15 p.m. but apparently the messenger had already left for the day.
On 14 December sometime before 10.00 a.m. the messenger brought the decision, together with the ordinary incoming mail, to the Registry of the Police, Prosecution and Enforcement District which was not situated on the same floor as the Enforcement Office but from where the incoming mail was distributed further to the registry of the Enforcement Department which was located on the third floor of the building.
The forced sale was carried out as scheduled without the applicants being either present or represented.
According to the applicants, a friend of the applicants, P.M., had allegedly enquired with the Enforcement Officer around 9.30 a.m. whether he had received the District Court’s decision. The Enforcement Officer had replied in the negative. P.M. had made an initial telephone call to the Enforcement Office on 13 December.
According to the Government, it is impossible to verify at this stage whether P.M. actually telephoned the Enforcement Office. They point to discrepancies in the applicants’ account on this point in their various appeals. What appears clear to the Government is that P.M. at least did not speak with the Enforcement Officer responsible for carrying out the forced sale. Moreover, the applicants did not find out about P.M.’s alleged enquiry until after the forced sale. Neither the applicants themselves nor their counsellor L.K. contacted the competent Enforcement Officer or any other person in the Enforcement Department prior to the sale, even though they were aware of the creditors’ meeting and the forced sale and had the right to attend both.
The applicants’ appeal against the forced sale was dismissed by the County Administrative Board (lääninhallitus, länsstyrelsen) of Uusimaa on 28 August 1996, finding that they should themselves have ensured that the District Court’s order reached the Enforcement Officer in time. As he had not been aware of the decision when proceeding to the sale, he had not acted incorrectly.
The applicants appealed further to the Court of Appeal (hovioikeus, hovrätten) of Helsinki, referring inter alia to the constant practice whereby the District Court would pass on its interim orders directly to the Enforcement Office. Relying on that practice and since time had not allowed for the original of the order to be communicated to them, the applicants and their counsellor had had no reason to take any further steps. On 22 November 1996 the Court of Appeal dismissed the appeal, upholding the reasons given by the County Administrative Board.
The applicants were granted leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen) but, on 4 December 1997, their appeal was dismissed by 3 votes to 2 (precedent no. 1997:191). The Supreme Court inferred from the silence in the Act on Adjustment of Individual Debts (laki yksityishenkilön velkajärjestelystä, lag om skuldsanering för privatpersoner 57/1993; “the 1993 Act”) that the legislator had not intended to place on the court the responsibility for communicating to the enforcement authority an interim decision to suspend execution proceedings. Furthermore, since only the debtor could request such an interim order prior to the actual commencement of the debt adjustment, the Act could not be interpreted so broadly as to place such a communication obligation on the court at that stage of the proceedings.
The Supreme Court further noted that the applicants had sought the suspension only about an hour and a half before the end of the working day preceding the day of the forced sale. The applicants had not pointed to any reason for being unable to communicate the District Court’s decision to the Enforcement Officer, either personally or through their counsellor L.K. Neither had the telephone enquiry made in the morning of the day of the sale placed the Enforcement Officer under an obligation to enquire of his own motion into whether the decision had actually been made. Finally, the applicants could themselves have attended the forced sale and in that connection informed the Enforcement Officer of the District Court’s order.
In the meantime, the merits of the applicants’ debt adjustment request were examined by the District Court on 22 March 1996. The payment schedules adopted for each of the applicants on 13 December 1996 would have enabled them to retain their dwelling by paying off their debt within five years. On 18 June 1998, however, the creditor bank requested that the District Court annul those payment schedules as the applicants had failed to respect them. The District Court found that the second applicant had knowingly given incorrect information about his income when his payment schedule had been considered. It therefore annulled his schedule. The Court of Appeal upheld this decision on 23 February 1999.
The applicants were forced to leave their property in March 1998.
In his decision of 10 June 1998, the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) considered that neither the conduct of the District Court nor that of the Enforcement Officer could be considered incorrect. He nevertheless undertook to examine whether there was a need to improve the legal protection of debtors in similar situations, and whether amendments to the 1993 Act were necessary to that effect.
In his further decision of 24 November 1998 the Ombudsman noted that in light of Articles 16 and 16a of the Constitution (Suomen Hallitusmuoto, Regeringsform för Finland) the authorities were responsible in the last resort for the effective administration of justice. Debtors had been confused by the lack of clarity in the 1993 Act as to where the responsibility lay for notifying the enforcement authority of an interim order. Even though the wording of the 1993 Act did not require the district courts to inform the enforcement office of an order staying execution, they had nevertheless adopted such a practice. The Ombudsman therefore proposed that the Government should consider adding to the 1993 Act a provision explicitly rendering the courts responsible for notifying the enforcement office of such orders.
According to the 1993 Act, a court may write off debts on condition that the debtor agrees to a payment schedule in favour of the creditors determined by the court (section 25). If the debtor fails to adhere to the payment schedule or contracts a new debt the schedule may be revoked, thereby enabling all creditors to claim payment as if no debt adjustment had been granted (section 42). Both the debtor and the creditors may seek to have the payment schedule amended, extended or revoked while it remains in force or, in certain circumstances, within five years from the adoption of the schedule (sections 30 and 61). The court may hear one or several creditors, guarantors and co-debtors before deciding on the request for debt adjustment (section 52).
The 1993 Act, as in force at the relevant time, was silent as to whether the onus was on the competent court or on a physical debtor to communicate to the enforcement authority an interim order suspending enforcement while the court was examining his or her request for debt adjustment. By contrast, in the legislation on the adjustment of company debts such an obligation was imposed on the court as regards both the commencement of adjustment proceedings and any interim measure suspending execution.
If a notice of a forced sale had been published before debt adjustment proceedings had been initiated, the sale could still be carried out. However, the court could stay enforcement and cancel the sale if the assets belonged to the debtor’s basic necessities and it was evident that they were protected from being recovered in the course of the debt adjustment (section 17).
If so requested by the debtor, the court could order a stay of enforcement even before the debt adjustment had commenced, provided such an order was deemed necessary. The order could be issued without hearing the creditors if the urgency of the matter so required. No appeal lay against such an order. If the court refused to issue an order staying an enforcement measure whereby basic necessities would be realised to cover debts, the debtor was entitled to file an appeal which the court had to examine urgently, if necessary after hearing the creditors (section 21).
When the actual debt adjustment proceedings had commenced the court was to notify the enforcement authorities at the debtor’s place of residence of the debtor and wherever the debtor owned real property (section 54). According to the existing section 21, subsection 3 of the 1993 Act (as amended by Act no. 714/2000), the court shall without delay inform those enforcement authorities already of an order staying enforcement.