ITEMID: 001-58737
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF CONSTANTINESCU v. ROMANIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;No violation of Art. 10;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Gaukur Jörundsson;Wilhelmina Thomassen
TEXT: 8. On 8 June 1992 the General Assembly of the Primary and Secondary School Teachers' Union of the second district of Bucharest (“the union”) elected a new leadership. The applicant was elected General Secretary.
9. On 29 June 1992 the union lodged a complaint against A.P. and R.V., former managers, and M.M., former Secretary of the union, who were all teachers, alleging theft, misappropriation and fraudulent conversion. The union complained that the individuals in question had refused to return the union's property and accounting documents when the new leadership took up its duties and had used them to form a new trade-union organisation.
10. In a letter of 2 October 1992 the applicant requested, on behalf of the union, information from the Bucharest public prosecutor's office about the progress of the investigation, but received no reply. In a further letter, of 9 December 1992, he renewed his enquiry of the same public prosecutor's office and also complained about the slowness of the criminal investigation. He received no reply to his letter.
11. On 8 February 1993 the public prosecutor gave a decision discontinuing the proceedings in respect of the union's complaint lodged against A.P., R.V. and M.M. That decision was sent on 18 January 1994 only to those three individuals.
12. In 1993 the applicant, in his capacity as representative of the union, took out a summons against R.V. in the Court of First Instance of the second district of Bucharest, seeking an order, under Articles 998 and 999 of the Civil Code governing civil liability, to return to the union 170,000 Romanian lei (ROL) in union subscription fees.
13. On an unknown date the applicant had a conversation with a journalist during which he expressed his dissatisfaction with the slow pace of the criminal investigation. On 23 March 1993 the following article was published in the Tineretul Liber (“Free Youth”) newspaper:
“The Primary and Secondary School Teachers' Union of the second district of Bucharest ... is the most militant union because it battles against everyone to ensure respect for the law and teachers' rights. Those are the assertions of Mihail Constantinescu, a teacher at M.S. school, who tells us: 'I have lodged a complaint against the Bucharest Schools' Inspectorate [Inspectoratul] for failure to comply with the collective bargaining agreement; the hearing has been listed for 29 April. We will be lodging a complaint against the police and the public prosecutor's office, who are engaging in anti-union activities by slowing down the criminal investigation in respect of certain delapidatori [persons found guilty of fraudulent conversion] – R.V., A.P., M.M., teachers in the second district; we have at our disposal against them written evidence and confessions by two of them to being in possession of a sum of money belonging to the union, which they have not returned. The anti-union activities are premeditated ...' ”
14. On 22 April 1993 A.P., R.V. and M.M. instituted criminal libel proceedings against the applicant in the Court of First Instance (judecatoria) of the third district of Bucharest.
15. The trial took place on 25 February 1994. The single-judge court delivered its judgment on 18 March 1994.
16. After hearing evidence from six witnesses for the plaintiff and three for the defence, from the applicant and from the three teachers, the judge acquitted the applicant. He noted that on the date on which the article in question had appeared, the three teachers had been the subject of a criminal investigation in connection with a charge of fraudulent conversion and that they had not been informed of the decision discontinuing the proceedings until after the article had appeared, that is, on 18 January 1994. Furthermore, the judge noted, it was not disputed that the teachers had not returned certain sums of money belonging to the union. Accordingly, he considered that the applicant had not had any intention of libelling the teachers, but merely of informing the public that his union was going to lodge a complaint against the police and the public prosecutor's office, accused of slowing down the criminal investigation concerning the three teachers.
17. A.P., R.V. and M.M. appealed to the Bucharest County Court, which upheld their appeal. The court quashed the decision of 18 March 1994 and decided to re-try the case on the merits.
18. The trial took place on 26 September 1994. The Court cannot establish from the documents in its possession whether the applicant's lawyer was able to make oral submissions. However, his lawyer submitted in the written pleadings in defence that his client had expressed himself on behalf of the union; that the aim pursued was that of reconstituting the union's assets; and that the new trade-union organisation formed by the three teachers had been declared illegal by the courts. He referred to the evidence given by the witnesses before the Court of First Instance testifying to negligence on the part of the three teachers in the administration of the union's property and to their refusal to return certain sums of money and documents. He added that the article had distorted the applicant's statements to the journalists, but that the applicant did not want to sue the press.
19. Although the applicant was present at the trial, the court did not hear submissions from him. No evidence was adduced. The record of the hearing did not mention the public prosecutor's submission allegedly requesting the applicant's acquittal, but merely indicated that the parties' lawyers had been able to address the court.
20. The decision was reserved until 3 October 1994, and then until 10 October 1994, on which date it was delivered in the absence of the applicant and his lawyer. The court held that the applicant had intended to injure the honour and reputation of the three teachers, contrary to Article 206 of the Criminal Code, since his remarks had been published in the newspaper after the decision of 8 February 1993 discontinuing the proceedings. The court also noted that, after that date, the applicant had gone to the schools at which A.P., R.V. and M.M. taught and accused them of running off with the union's money.
21. The applicant was convicted of criminal libel, fined ROL 50,000 and ordered to pay ROL 500,000 to each of the three teachers for non-pecuniary damage.
22. The applicant appealed on 19 October 1994. On 18 November 1994 the Bucharest Court of Appeal declared his appeal inadmissible on the ground that no appeal lay against the decision in question and that it was final.
23. On an unknown date the applicant paid the three teachers the sums which he had been ordered to pay them. On 28 March 1995 he paid the ROL 50,000 fine.
24. On an unknown date the applicant requested the Procurator-General at the Supreme Court of Justice to lodge an application to have the judgment of 10 October 1994 set aside.
25. On 26 May 1995 the applicant was informed that the Procurator-General had refused to lodge an application to have the judgment set aside.
26. In a judgment of 28 January 1997, the Bucharest County Court, after examining the case ex officio and in camera, delivered a judgment rectifying the clerical errors in the record of the hearing of 26 September 1994 and the judgment of 10 October 1994.
27. The court amended the record of the hearing of 26 September 1994 to record the presence of the public prosecutor, L.S., who had requested in his written pleadings that the teachers' appeals be upheld and that the applicant be sentenced to a fine for criminal libel and ordered to pay compensation for non-pecuniary damage. Furthermore, according to the court, the applicant had addressed it last on 26 September 1994.
28. The court also decided to rectify the judgment of 10 October 1994 so as to record the adjournment of delivery date from 3 to 10 October 1994 and the presence at delivery of the public prosecutor, L.S.
29. The parties were not summoned to attend and were not present at delivery of the judgment on 28 January 1997.
30. In a judgment of 12 March 1997, the Bucharest Court of First Instance upheld the action for damages brought by the union against R.V. in 1993 and ordered R.V. to return ROL 170,000 plus interest. The court noted that R.V. had been the Treasurer of the union from 1990 to 1992 and that, in that capacity, she had received ROL 170,000 in subscriptions from the members of the union during that period. The court also noted that, after leaving her post, R.V. had refused to return to the union the documents relating to the deposit of the said sum at the bank, so that the union had never been able to retrieve it.
31. On 6 January 1998 the Government provided the Commission, at its request, with a copy of the Bucharest County Court's hearings register for 3 and 10 October 1994. The register mentions only the adjournment of delivery from 3 to 10 October 1994 and the finding of guilt in respect of the applicant.
32. In a letter of 14 December 1998 the Government informed the Commission that they could not provide it with a copy of the notes taken by the registrar (caietul grefierului) during the hearing of 26 September 1994 because, pursuant to the Ministry of Justice's Circular no. 991/C/1993 (Ordinul ministrului), registers containing the registrar's notes are sealed and archived for three years.
33. On 11 December 1998 the Procurator-General at the Supreme Court of Justice lodged an application to have the judgment of 10 October 1994 set aside. He requested that the applicant be acquitted on the ground that the constituent elements of the offence of libel had not been made out.
34. At the hearing on 21 March 2000 the Government submitted to the Court a decision of 4 February 2000 of the Supreme Court of Justice granting the application lodged by the Procurator-General to have the decision of 10 October 1994 set aside and acquitting the applicant on the ground that intent to defame, a constituent element of the offence of libel, had not been established.
35. The Government also submitted to the Court a copy of a letter of 6 March 2000 in which the Bucharest Court of First Instance requested the tax office of the third district of Bucharest to refund the applicant the ROL 50,000 fine paid by him following his conviction of 10 October 1994.
36. The relevant provisions of the Criminal Code are as follows.
“Anyone who makes any statement or allegation in public concerning a particular person which, if true, would render that person liable to a criminal, administrative or disciplinary penalty or expose them to public opprobrium, shall be liable to imprisonment for between three months and one year or to a fine.”
“Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest. Where the truth of the statement or allegation is proved, no offence of insult or defamation will have been committed.”
37. The relevant provisions of the Code of Criminal Procedure read:
“A court hearing a recurs lodged directly against a decision from which no apel lies [In respect of certain crimes there is only one level of appellate jurisdiction (recurs), rather than two levels (apel followed by recurs), before a final judgment is delivered] shall examine every aspect of the case, irrespective of the grounds of appeal and requests of the parties ...”
“An appeal shall lie in the following circumstances:
...
(10) where the judgment does not deal either with one of the charges made against the accused in the committal order, or with certain evidence taken, or with certain applications that are of essential importance to a party in that they may safeguard that party's rights or have an effect on the outcome of the trial;
...”
“In giving judgment on an appeal, the court may either ...:
2. uphold the appeal, quash the lower court's decision and ... (d) hold a retrial of the case ...”
“Where the court which has given judgment on an appeal holds a retrial of the case in accordance with Article 385-15 (2) (d), it shall also rule on matters relating to the taking of evidence and fix a date for trial ...”
“After the first judgment has been quashed, the second trial shall be held in accordance with the provisions of Chapters I (Trial – General Provisions) and II (Trial at first instance) of Title II, which shall apply mutatis mutandis.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 10


ITEMID: 001-67424
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF COCCHIARELLA v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1942 and lives in Benevento.
5. On 15 July 1994 Mrs P., the current applicant's mother, brought proceedings in the Benevento Magistrate’s Court, sitting as an employment tribunal, seeking acknowledgment of her right to an invalidity pension (pensione di inabilità) and an attendance allowance (indennità di accompagnamento).
6. On 23 July 1994 the magistrate's court fixed the first hearing for 11 March 1996. On that day the court appointed an expert and adjourned the proceedings to a hearing on 9 April 1997.
7. In a judgment of the same day, the text of which was deposited with the registry on 13 June 1997, the court dismissed Mrs P's claim.
8. On 29 July 1997 Mrs P. lodged an appeal with the Naples District Court. The president of the court designated a judge rapporteur and set the appeal down for a hearing on 30 April 2001.
9. In the meantime, also on 29 July 1997, Mrs P. died. On 25 January 2000 the applicant joined the proceedings. A hearing was to be held on 14 February 2002. In a judgment of 16 January 2003, the text of which was deposited with the registry on 21 March 2003, the court upheld Mrs P.'s claim as of 1 June 1996.
10. On 3 October 2001 the applicant lodged an application with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto” Act, complaining of the excessive length of the above-described proceedings. The applicant requested the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the non-pecuniary damage sustained, which he assessed at 30,000,000 Italian lire (15,493.71 euros (EUR)).
11. In a decision of 7 March 2002, the text of which was deposited with the registry on 6 May 2002, the Court of Appeal found that a reasonable time had been exceeded. It awarded the applicant EUR 1,000 in compensation for non-pecuniary damage and EUR 800 for costs and expenses. The decision became final by 21 June 2003 at the latest.
12. In a letter of 8 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of the application. According to the information provided by the applicant on 12 July 2004, the authorities had not yet enforced the Court of Appeal's decision.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58367
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF ERNST AND ANNA LUGHOFER v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
TEXT: 6. The applicants' farm was the object of land consolidation proceedings (Zusammenlegungsverfahren) instituted by the Gmunden District Agricultural Authority (Agrarbezirksbehörde) on 22 February 1973.
7. On 21 August 1984 the District Authority held a hearing at which the farmers concerned could express their wishes (Wunschverhandlung) and on 22 August 1985 the District Authority ordered the provisional transfer of the properties concerned, inter alia, land owned by the applicants. In July 1989 the District Authority issued a consolidation plan (Zusammenlegungsplan). The applicants appealed, claiming that they had not received adequate land in exchange for their parcels AK 2 and AK 8. On 5 July 1990 the Upper Austria Regional Land Reform Board (Landesagrarsenat) dismissed the applicants' appeal after an oral hearing held in private, but in the presence of the parties and their lawyer.
8. On 25 September 1990 the applicants filed a complaint with the Administrative Court (Verwaltungsgerichtshof) against the above decision. They also asked the Court to hold an oral hearing.
9. On 15 December 1992 the Administrative Court dismissed the complaint, rejecting at the same time, in accordance with Section 39 (2) no. 6 of the Administrative Court Act, the applicants' request for an oral hearing.
10. Section 9 (1) of the Federal Agricultural Proceedings Act (Agrarverfahrensgesetz) provided as follows:
"Land Reform Boards take their decisions after an oral hearing in the presence of the parties."
It is the constant practice of administrative authorities to hold oral hearings in camera unless the law provides otherwise.
By virtue of legislation enacted in December 1993 (Bundesgesetzblatt no. 901, p. 7160), hearings before Land Reform Boards are now public.
11. Pursuant to Section 36 of the Administrative Court Act (Verwaltungsgerichtshofgesetz), proceedings consist essentially in an exchange of written pleadings. If one of the parties so requests the Administrative Court may hold a hearing which is in principle held in public (Sections 39 (1) no. 1 and 40 (4)).
12. Section 39 (1) of the Administrative Court Act provides that the Administrative Court is to hold a hearing after its preliminary investigation of the case where a complainant has requested a hearing within the time-limit. Section 39 (2) no. 6, which was added to the Act in 1982, provides however:
"Notwithstanding a party's application ..., the Administrative Court may decide not to hold a hearing where ...
6. it is apparent to the Court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that an oral hearing is not likely to clarify the case further."
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-88585
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF R.K. AND A.K. v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 6. The applicants, United Kingdom nationals and husband and wife, were born in 1972 and 1976 respectively, and live in Oldham.
7. The applicants had a daughter M. born on 24 July 1998.
8. On 26 September 1998, M. screamed with pain when picked up by the maternal grandmother. The parents and grandmother took M. to the hospital. The triage nurse made a note of information given by the family. That note stated that the mother, rather than the grandmother, had “yanked” M.
9. An X-ray showed a displaced slightly-comminuted fracture of the midshaft of the femur. While it was noted that there was no history of metabolic bone disease in the family, it was not noted that the parents were first cousins, an incident relevant to a possible genetic condition. Neither the mother nor grandmother spoke much English; no Pushtu interpreter was provided. A consultant paediatrician, Dr Blumenthal, interviewed the parents and grandmother early in the morning the next day, again without an interpreter. He noted that none of them appeared to know how the injury had occurred. He concluded that it was an inflicted injury and told the parents this.
10. The police were informed. The parents were interviewed on 27 September 1998 by a social worker. He was unable to communicate with the mother due to language difficulties.
11. On 28 September 1998 the health visitor for the family was interviewed and stated that she had had no concerns about the family.
12. On 29 September 1998 the police interviewed the parents with an interpreter present.
13. On 30 September 1998, a social worker interviewed the family again and indicated that medical opinion was clear that M. could not have been injured by being picked up in the manner described by the grandmother. She warned that without a convincing explanation for the injury a child protection conference would have to be called.
14. On 14 October 1998, in light of the doctor’s conclusion of non-accidental injury (NAI), the Child Protection Conference decided to seek a second opinion but that meanwhile an interim care order should be obtained. Such care order was issued and parental responsibility given to the local authority on 16 October 1998.
15. On 23 October 1998, M. was discharged from hospital into the care of her aunt. The parents were allowed supervised contact.
16. The parents obtained legal advice and jointly instructed an expert, with M.’s guardian, inter alia, to clarify whether tests had been carried out to exclude brittle bone disease. However no further tests were carried out at this stage.
17. On 23 December 1998, the County Court judge found that the mother and grandmother were liars and knew more about the injury than they were prepared to reveal (they had given evidence through an interpreter which they allege was suspect) and that as the father was convinced of the innocence of his wife, he was disqualified as a person capable of protecting M. He ordered M. to be placed in care. M. remained with her aunt who lived a few hundred yards from the family home.
18. On 29 March 1999, M. sustained a second injury in her aunt’s care. Bilateral femoral fractures were found and following further tests she was diagnosed with osteogenesis imperfecta (“OI”, commonly known as brittle bone disease). Professor Carty and Dr Paterson were consulted at this time by Dr Blumenthal and inter alia did not find any ground for reaching a diagnosis of OI in preference to a non-accidental injury at the time of the first injury.
19. After discharge from hospital, M. returned home in April 1999.
20. On 17 June 1999, the care order was discharged and M. returned to her parents. In her report to the court dated 14 June 1999, M.’s guardian ad litem noted, inter alia, that this had been a particularly perplexing case, in which a diagnosis of non-accidental injury in respect of the first injury had appeared to be the most likely explanation while not fitting with the other information, essentially positive, which had emerged about the family. She also noted that all the experts agreed that medical evidence available to the court at the time of the interim care order was as complete as it could be at that time and that a diagnosis of bone disorder could not have been made at the time of the first injury.
21. The entire local community were aware that the family had been suspected of harming M. and the family had been extremely shocked and shamed. Rumours had spread to Pakistan that the mother had been put in prison. The parents’ relationship with M. and with the grandmother were severely affected and disrupted as a result of events.
22. On 24 September 2001 the parents brought claims for negligence and breach of their Article 8 rights against the hospital trust and the consultant paediatrician.
23. On 4 December 2002, the High Court found no duty of care was owed to the parents and that the Human Rights Act 1998 (“HRA 1998”) did not apply to events before it came into force on 2 October 2000. The parents appealed.
24. Leave to appeal to the Court of Appeal was granted. Two other cases raising similar issues were considered at the same time.
25. On 31 July 2003, concerning the parents’ claims in the three cases, the Court of Appeal held as regards allegations under Article 6 that no violation of this provision was involved, referring to Strasbourg judgments (Z. and Others v. the United Kingdom ([GC], no. 29392/95, ECHR 2001V and T.P. and K.M. v. the United Kingdom ([GC], no. 28945/95, ECHR 2001V). It found that while domestic law now recognised that there was a duty of care in relation to children, whose best interests were always paramount, there was a potential conflict of interest between the child and the parents, as it would always be in the parents’ best interests for the child not to be removed. Where consideration was being given to whether child abuse justified measures, a duty of care could be owed to the child but not to the parents. It upheld the rulings of the various County Court judges as a result.
26. After a hearing on 31 January and 1 and 2 February 2005, the House of Lords gave judgment on 21 April 2005. They affirmed the orders made by the first-instance judges and Court of Appeal. Lord Nicholls, in his judgment with which the majority agreed, found inter alia:
"70. There are two cardinal features in these cases. One feature is that a parent was suspected of having deliberately harmed his or her own child or having fabricated the child’s medical condition. The other feature, which is to be assumed, is that the ensuing investigation by the doctors was conducted negligently. In consequence, the suspected parent’s life was disrupted, to a greater or lesser extent, and the suspected parent suffered psychiatric injury.
71. It is the combination of these features which creates the difficult problem now before the House. In the ordinary course the interests of parent and child are congruent. This is not so where a parent wilfully harms his child. Then the parent is knowingly acting directly contrary to his parental responsibilities and to the best interests of his child. So the liability of doctors and social workers in these cases calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their family life.
72. The first of these interests involves protection of children as the victims of crime. Child abuse is criminal conduct of a particularly reprehensible character: children are highly vulnerable members of society. Child abuse is also a form of criminal conduct peculiarly hard to combat, because its existence is difficult to discover. Babies and young children are unable to complain, older children too frightened. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. This both increases the risk of abuse and means that investigation necessitates intrusion into highly sensitive areas of family life, with the added complication that the parent who is responsible for the abuse will give a false account of the child’s history.
73. The other, countervailing interest is the deep interest of the parent in his or her family life. ... Interference with family life requires cogent justification, for the sake of children and parents alike. So public authorities, should, so far as possible, cooperate with the parents when making decisions about their children. Public authorities should disclose matters relied upon by them as justifying interference with family life. Parents should be involved in the decision-making process to whatever extent is appropriate to protect their interests adequately.
74. The question raised by these appeals is how these countervailing interests are best balanced when a parent is wrongly suspected of having abused his child. Public confidence in the child protection system can only be maintained if a proper balance is struck, avoiding unnecessary intrusion in families while protecting children at risk of significant harm... Clearly health professionals must act in good faith. They must not act recklessly, that is without caring whether an allegation of abuse is well-founded or not. Acting recklessly is not acting in good faith. But are health professionals liable to the suspected parents if they fall short of the standard of skill and care expected of any reasonable professional in the circumstances? Are they exposed to claims by the parents for professional negligence? ...
75. In considering these questions the starting point is to note that in each of these three cases... the doctors acted properly in considering whether the claimant parents had deliberately inflicted injury on the child in question. The doctors were entitled, indeed bound to consider this possibility. Further, having become suspicious, the doctors rightly communicated their suspicions to the statutory services responsible for child protection. That is the essential next step in child protection...
76. In each case the suspected parent was eventually cleared of suspicion. In one case this was after ten days, in the other cases after much longer periods. The second point to note is that, essentially, the parents’ complaints related to the periods for which they remained under suspicion. In each case the parent’s complaint concerns the conduct of the clinical investigation during these periods; the investigation, it is said, was unnecessarily protracted. The doctors failed to carry out the necessary tests with appropriate expedition. Had due care and skill been realised from the outset, the doctors’ suspicions would have been allayed at once or much more speedily than occurred, and, in consequence, the parents would have been spared the trauma to which they were subjected. Thus the essence of the claims is that the health professionals responsible for protecting a suspected child victim owe a person suspected of having committed a crime against the child a duty to investigate their suspicions, a duty sounding in damages if they act in good faith but carelessly.
77. Stated in this broad form, this is a surprising proposition. In this area of the law, concerned with the reporting and investigation of suspected crime, the balancing point between the public interest and the interest of a suspected individual has long been the presence or absence of good faith...
78. This background accords ill with the submission that those responsible for the protection of a child against criminal conduct owe suspected perpetrators the duty suggested. The existence of such a duty would fundamentally alter the balance in this area of the law. It would mean that if a parent suspected that a babysitter or a teacher at a nursery or school might have been responsible for abusing her child, the doctor would owe a duty of care to the suspect...
79... <Counsel> did not contend for such a broad proposition... His submission was more restricted.... That the health professionals’ duty to exercise due professional skill and care is owed only to the child’s primary carers, usually the parents, as well as the child himself. ...
80. My initial difficulty... is that the distinction between primary carers, to whom the duty would be owed, and other suspects to whom it would not, is not altogether convincing. It is difficult to see why, if a health professional owes no duty to a childminder or teacher suspected of abuse, he should nonetheless owe such a duty to a parent suspected of abuse. An erroneous suspicion that a childminder or school teacher had been abusing a child in his or her care can be very damaging to him or her. ...
81. There is, however, one major difference between parents and childminders or school teachers,. In the case of a parent suspicion may disrupt the parent’s family life. ... So the crucial question ... is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected...
...
85. In my view the Court of Appeal reached the right conclusion on the issue... Ultimately the factor which persuaded me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled ‘conflict of interest’. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel ‘quite right’, a doctor must be able to act single-mindedly in the interests of the child. He ought not have to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.
86. ... the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child. ..."
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-102807
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: GERTER v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
TEXT: The applicant, Mr Patrycjusz Gerter, is a Polish national who was born in 1963 and is currently detained in Warsaw-Mokotów Remand Centre. He was represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 6 November 1998 the applicant was sentenced to 25 years’ imprisonment and was committed to Wołów Prison. Since that date he has been continuously detained in several penitentiary facilities in Rawicz, Strzelin, Kłodzko, Brzeg, Kluczbork and Nowy Wiśnicz. On an unspecified date the applicant was transferred to Warsaw-Mokotów Remand Centre where he is currently detained.
The parties gave partly differing accounts of the conditions of the applicant’s detention.
The applicant maintained that throughout his detention he was held in overcrowded cells.
Without submitting the exact statistics, the Government acknowledged that during the applicant’s detention in Strzelin Prison he had spent several days in a cell in which the statutory minimum size of 3 m² per person had not been respected. The Government did not comment on the level of overcrowding in the remaining penitentiary facilities. More recently, the Government also submitted that on an unspecified date, presumably in November 2009, the applicant had been placed in a cell in which the statutory minimum standard of 3 m² per person was respected. The applicant did not contest this submission.
The applicant lodged several complaints with the penitentiary authorities regarding the conditions of his detention. Only one of them was considered well-founded.
The applicant brought a civil action in tort against the State Treasury statio fisci Wołów Prison to seek compensation for the infringement of his personal rights. On 17 May 2006 the Wroclaw Regional Court dismissed the applicant’s claim. The applicant appealed. On 24 August 2006 the applicant was requested to pay a basic court fee in the amount of PLN 30 (approximately EUR 7.50). In reply, the applicant requested the court to exempt him from payment of the basic court fee arguing that he was detained and lacked financial resources. On 11 October 2006 the court dismissed the applicant’s request stating that he had already been exempted from paying most of the court fees. On an unspecified date the Wroclaw Regional Court rejected the applicant’s appeal on formal grounds. The applicant has not brought a civil action in respect of the remaining period of his detention.
(See Siedlecki and 9 other applications v. Poland, no. 5246/03).


ITEMID: 001-57587
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1978
DOCNAME: CASE OF TYRER v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (disappearance of object of proceedings);Violation of Art. 3;Just satisfaction not applied
TEXT: 9. Mr. Anthony M. Tyrer, a citizen of the United Kingdom born on 21 September 1956, is resident in Castletown, Isle of Man. On 7 March 1972, being then aged 15 and of previous good character, he pleaded guilty before the local juvenile court to unlawful assault occasioning actual bodily harm to a senior pupil at his school. The assault, committed by the applicant in company with three other boys, was apparently motivated by the fact that the victim had reported the boys for taking beer into the school, as a result of which they had been caned. The applicant was sentenced on the same day to three strokes of the birch in accordance with the relevant legislation (see paragraph 11 below).
He appealed against sentence to the Staff of Government Division of the High Court of Justice of the Isle of Man. The appeal was heard and dismissed on the afternoon of 28 April 1972; the court considered that an unprovoked assault occasioning actual bodily harm was always very serious and that there were no reasons for interfering with the sentence. The court had ordered the applicant to be medically examined in the morning of the same day and had before it a doctor’s report that the applicant was fit to receive the punishment.
10. After waiting in a police station for a considerable time for a doctor to arrive, Mr. Tyrer was birched late in the afternoon of the same day. His father and a doctor were present. The applicant was made to take down his trousers and underpants and bend over a table; he was held by two policemen whilst a third administered the punishment, pieces of the birch breaking at the first stroke. The applicant’s father lost his self-control and after the third stroke "went for" one of the policemen and had to be restrained.
The birching raised, but did not cut, the applicant’s skin and he was sore for about a week and a half afterwards.
11. The applicant was sentenced pursuant to section 56 (1) of the Petty Sessions and Summary Jurisdiction Act 1927 (as amended by section 8 of the Summary Jurisdiction Act 1960) whereby:
"Any person who shall -
(a) unlawfully assault or beat any other person;
(b) make use of provoking language or behaviour tending to a breach of the peace, shall be liable on summary conviction to a fine not exceeding thirty pounds or to be imprisoned for a term not exceeding six months and, in addition to, or instead of, either such punishment, if the offender is a male child or male young person, to be whipped."
The expressions "child" and "young person" mean, respectively, an individual of or over the age 10 and under 14 and an individual of or over the age of 14 and under 17.
12. Execution of the sentence was governed by the following provisions:
"(a) the instrument used shall, in the case of a child, be a cane, and in any other case shall be a birch rod;
(b) the court in its sentence shall specify the number of strokes to be inflicted, being in the case of a child not more than six strokes, and in the case of any other person not more than twelve strokes;
(c) the whipping shall be inflicted privately as soon as practicable after sentence and in any event shall not take place after the expiration of six months from the passing of the sentence;
(d) the whipping shall be inflicted by a constable in the presence of an inspector or other officer of police of higher rank than a constable, and, in the case of a child or young person, also in the presence if he desires to be present, of the parent or guardian of the child or young person."
"l. The instruments to be used shall be: -
(i) in the case of a male child who is under the age of 14 years, a light cane not exceeding four feet in length and not exceeding half an inch in diameter,
and
(ii) in the case of a male person who is of the age of 14 years but is under the age of 21 years a birch rod of the following dimensions:
Weight not exceeding 9 ounces
Length from end of handle to tip of spray 40 inches
Length of handle 15 inches
Circumference of spray at centre 6 inches
Circumference of handle at top of binding 3 1/2 inches
Circumference of handle 6 inches from end 3 1/4 inches
2. In all cases where a Court is empowered to impose a sentence of whipping a medical report as to whether the offender is fit to receive the punishment will be made available to the Magistrates before they consider sentence. Arrangements for this report will be made by the Clerk of the Court.
3. The whipping shall be inflicted on the posterior over the child’s ordinary cloth trousers.
4. A medical practitioner shall be present during a birching and may at his discretion order the stopping of the punishment at any time. Where a birching has been stopped on medical grounds a report of the facts shall be forwarded immediately to His Excellency."
With reference to paragraph 3 of the Directive, the Court was advised at the hearing on 17 January 1978 that, in the light of the Commission’s report, an amendment had recently been made by the Isle of Man Government whereby the punishment is to be administered over ordinary cloth trousers in all cases irrespective of the offender’s age.
13. The Isle of Man is not a part of the United Kingdom but a dependency of the Crown with its own government, legislature and courts and its own administrative, fiscal and legal systems. The Crown is ultimately responsible for the good government of the Island and acts in this respect through the Privy Council on the recommendation of Ministers of the United Kingdom Government in their capacity as Privy Counsellors. In that capacity, the Home Secretary is charged with prime responsibility for Isle of Man affairs.
Prior to October 1950, the United Kingdom Government regarded international treaties applicable to the United Kingdom as extending, in the absence of contrary provision, to the Isle of Man. Thereafter, they no longer so regarded such treaties unless there were an express inclusion and they treated the Island as a territory for whose international relations they were responsible. In fact, by letter dated 23 October 1953 addressed to the Secretary-General of the Council of Europe, the Government of the United Kingdom declared, in accordance with Article 63 (art. 63) of the Convention, that the Convention should extend to a number of such territories, including the Isle of Man.
The Island’s parliament, the Court of Tynwald, is one of the oldest in Europe. It consists of a Lieutenant-Governor appointed by and representing the Crown, an Upper House (the Legislative Council) and a Lower House (the House of Keys). Tynwald legislates in domestic matters, the laws it adopts requiring ratification by the Queen in Council; the Home Secretary is responsible for advising the Privy Council whether or not to recommend that the Royal Assent be given.
In strict law, the United Kingdom Parliament has full power to pass laws applicable to the Isle of Man but, by constitutional convention, does not in the ordinary course legislate on the Island’s domestic affairs, such as penal policy, without its consent. This convention would be followed unless it were overridden by some other consideration, an example of which would be an international treaty obligation.
14. Judicial corporal punishment of adults and juveniles was abolished in England, Wales and Scotland in 1948 and in Northern Ireland in 1968. That abolition followed upon the recommendations of the Departmental Committee on Corporal Punishment (known as the Cadogan Committee) which issued its report in 1938. The standing Advisory Council on the Treatment of Offenders, in its report of 1960 (known as the Barry report), endorsed the findings of the Cadogan Committee and concluded that corporal punishment should not be reintroduced as a judicial penalty in respect of any categories of offencers or of offenders.
15. The punishment remained in existence in the Isle of Man. When Tynwald examined the question in 1963 and 1965, it decided to retain judicial corporal punishment, which was considered a deterrent to hooligans visiting the Island as tourists and, more generally, a means of preserving law and order.
In May 1977, by thirty-one votes for and only one against, Tynwald passed a resolution, inter alia,
"that the retention of the use of judicial corporal punishment for crimes of violence to the person is a desirable safeguard in the control of law and order in this Island and Tynwald hereby re-affirms its policy to retain the use of judicial corporal punishment for violent crimes to the person committed by males under the age of 21".
At the hearing on 17 January 1978, the Attorney-General for the Isle of Man informed the Court that recently a privately organised petition in favour of the retention of judicial corporal punishment had obtained 31,000 signatures from amongst the approximate total of 45,000 persons entitled to vote on the Island.
16. While under various provisions judicial corporal punishment could be imposed on males for a number of offences, since 1969 its application has apparently been restricted in practice to offences of violence.
During his address to the Court, the Attorney-General for the Isle of Man indicated that the Manx legislature would shortly be considering the Criminal Law Bill 1978 which contained a proposal to limit the use of judicial corporal punishment to young males for certain specified offences only, on the whole the more serious offences of violence. The offence with which the applicant was charged had been omitted from the specified list of offences.
17. The name and address of a juvenile sentenced in the Isle of Man, whether to corporal punishment or otherwise, are not published.
18. According to figures cited before the Court by the Attorney- General for the Isle of Man, judicial corporal punishment was inflicted in 2 cases in 1966, in 4 cases in 1967, in 1 case in 1968, in 7 cases in 1969, in 3 cases in 1970, in 0 cases in 1971, in 4 cases in 1972, in 0 cases in 1973, in 2 cases in 1974, in 1 case in 1975, in 1 case in 1976 and in 0 cases in 1977. The average number of crimes of violence to the person per annum was: between 1966 and 1968 - 35; between 1969 and 1971 - 52; between 1972 and 1974 - 59; and between 1975 and 1977 - 56. In 1975 there were 65 crimes of violence to the person, in 1976 58 and in 1977 approximately 46.
In the three years 1975 to 1977, only one young male was convicted of a crime of violence.
At the 1976 census, the Island’s population stood at 60,496.
VIOLATED_ARTICLES: 3


ITEMID: 001-87735
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF GETİREN v. TURKEY
IMPORTANCE: 3
CONCLUSION: The brother has standing to continue the present proceedings in the applicant’s stead;Partly inadmissible;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky
TEXT: 4. The applicant, Mr Neytullah Getiren, was a Turkish national who was born in 1959 and had been living in Bursa. By a letter dated 20 December 2004, the applicant’s representative informed the Court that the applicant had died on 23 January 2003 and that his brother, Sedreddin Getiren, wished to pursue the application.
5. On 14 March 1999 the applicant was taken into custody by police officers from the anti-terrorist branch of the Istanbul police headquarters during the course of a police operation carried out against the PKK (the Kurdistan Workers’ Party, an illegal organisation) following the bombing of a shopping centre in Istanbul, the Mavi Çarşı, causing the death of thirteen persons.
6. According to the house search, arrest and seizure report signed by eight police officers and the seven persons who were arrested, including the applicant, the arrest took place in a flat raided by the police. During the arrest a physical struggle occurred between the police officers and the applicant as the latter attempted to escape.
7. On the same day at 6 p.m., the applicant was medically examined by a doctor, who noted that there was no sign of physical violence on the applicant’s body.
8. The applicant alleged that he had been subjected to various forms of illtreatment while in police custody. In particular, he had been beaten, insulted and threatened with death.
9. On 20 March 1999 a report was drafted and signed by two police officers, according to which the applicant refused to make statements, claiming that he was only answerable to the PKK and that he would not give statements to the police and the judiciary of the Republic of Turkey. The applicant refused to sign this report.
10. On 21 March 1999 the applicant underwent four medical examinations. The first of these examinations took place at 10.45 a.m. at the Istanbul branch of the Forensic Medicine Institute. The medical expert, Dr. F.D., observed two scabbed abrasions of 1 x 3 cm and 1 x 2 cm on the applicant’s right scapula and a scabbed abrasion of 0,5 x 1 cm on his spine. He further noted that the applicant complained of pain in both ears, in his throat and the subcostal region. The medical expert concluded that the applicant should be referred to a State hospital and examined for the ear pain.
11. The second and third examinations took place at 11.50 a.m. and 12.15 a.m. in the Haseki Hospital. The first doctor who examined the applicant observed two bruises of 1 x 1 cm and 2 x 1 cm on the right scapula. The second doctor, who conducted an examination of the applicant’s ears, observed a central perforation of the right eardrum.
12. The applicant was subsequently taken back to the Istanbul branch of the Forensic Medicine Institute, where Dr. F.D. drafted the fourth medical report. The doctor noted two bruises of 1 x 1 cm and 2 x 1 cm on the right scapula, a central perforation of the right eardrum, two scabbed abrasions of 1 x 3 cm and 1 x 2 cm on the applicant’s right scapula and a scabbed abrasion of 0,5 x 1 cm on his spine. The doctor concluded that the applicant should be examined by a board of experts from the Forensic Medicine Institute with a view to establishing whether the perforation of the right eardrum was the result of a trauma.
13. On the same day the applicant made statements before the public prosecutor at the Istanbul State Security Court. He denied the accusations against him and maintained, inter alia, that he had been beaten while in police custody. The applicant once again rejected the accusations against him before a single judge at the Istanbul State Security Court and submitted that he had refused to make statements to the police. The judge ordered his detention on remand.
14. On the same day the applicant was placed in Ümraniye Prison.
15. On 22 March 1999 at 3.15 p.m., the applicant was examined by the prison doctor, who observed two brown coloured bruises on the right scapula and a scabbed abrasion on the lumbar region. The doctor further noted that the applicant complained of pain in the lower lumbar region.
16. On 24 and 28 March 1999, articles were published in various newspapers concerning the police operations conducted following the bombing of the shopping centre. The articles cited the applicant as the person who had organised the bombing and that he was a member of the PKK. According to three of these articles, the Istanbul Police Director and the General Director of Police stated that the applicant was the person who had organised the bombing. The Istanbul Police Director also maintained that the applicant had confessed to the offence in question.
17. On 2 August 1999 the applicant’s representative lodged a complaint with the Istanbul public prosecutor’s office, to be referred to the Ankara public prosecutor’s office, against the General Director of Police, N.B., alleging that the latter’s statements had violated the applicant’s right to be presumed innocent until proved guilty. The applicant’s lawyer submitted that on 23 March 1999 the General Director of Police had organised a press conference at which he had announced that the applicant was the organiser of the bombing of the Mavi Çarşı.
18. On 30 September 1999 the Ankara public prosecutor issued a decision based on lack of jurisdiction and passed the investigation to the Ministry of the Interior, since N.B. had made the impugned statements during a press conference in relation to the exercise of his functions.
19. On an unspecified date an investigator was appointed who initiated an investigation into the applicant’s allegations.
20. On 28 December 1999 the investigator gave a decision regarding the applicant’s allegations. The investigator noted that the police headquarters had informed him that there was no written copy of the statements made by N.B. on 23 March 1999. Nor did video or tape recordings of the press conference exist. However, the police headquarters submitted to the investigator transcriptions of the tape recording and copies of the articles which had appeared in various newspapers. The investigator observed that in certain articles the applicant was mentioned as the organiser of the bombing. He found that there was nothing in the transcripts showing that the former General Director of Police had mentioned the applicant (by name) as the organiser of the bombing. The investigator had taken statements from the applicant, who had reiterated his allegations. He had encountered a witness, the Head of Protocol of the police headquarters, who submitted that he did not remember whether N.B. had mentioned any names and that it was impossible that N.B. had given the applicant’s name. The investigator considered that N.B. had exercised his functions by organising the press conference in question and that there was no evidence that he had given the applicant’s name as the organiser of the bombing. He finally considered that the newspapers must have had the name of the applicant through their private relations with some junior officers from the police headquarters, and concluded that no measures should be taken against N.B.
21. On 12 April 1999 the public prosecutor at the Istanbul State Security Court informed the Fatih public prosecutor that the applicant had allegedly been ill-treated while in police custody and requested that an investigation be initiated.
22. On an unspecified date, the Fatih public prosecutor started an investigation into the applicant’s allegations of ill-treatment. In the course of the investigation, on 8 June 1999 the public prosecutor took statements from H.G. and M.K., the police officers from the Anti-Terrorist Branch of the Istanbul Security Headquarters, who had questioned the applicant while he had been in custody. The officers maintained that the applicant had attempted to escape when he had been taken to his home for an on-site inspection after his arrest, and a physical struggle had occurred between them. They contended that the injuries on the applicant’s body must have occurred during this struggle.
23. On an unspecified date, the Fatih public prosecutor filed a bill of indictment with the Istanbul Assize Court, charging H.G. and M.K. under Article 243 of the Criminal Code. The defendants were accused of torturing the applicant.
24. On 23 September 1999 the Istanbul Assize Court held its first hearing on the merits of the case. On the same day the accused police officers made statements before the court. H.G. submitted that he had not been present during the applicant’s arrest. He further contended that after the applicant’s arrest he had learned that there had been a struggle between the arresting officers and the applicant. He finally maintained that he had not inflicted ill-treatment on the applicant during his questioning. M.K. stated that there had been a struggle between police officers and the applicant during the on-site inspection held following the applicant’s arrest. He denied the allegation that he had inflicted ill-treatment on the applicant. The applicant was not present during the hearing.
25. On 18 September 2000, the applicant joined the case against the police officers as a civil party (müdahil).
26. Between 23 September 1999 and 19 September 2000 the Istanbul Assize Court requested the public prosecutor’s office to make the necessary arrangements for the applicant’s attendance at the hearings. However, the court received no reply to its orders and the applicant was not brought to the hearings until 27 November 2000.
27. During the hearing of 27 November 2000, the applicant made statements before the assize court. He maintained, inter alia, that he had been subjected to various forms of torture and that he could identify the officers who had inflicted ill-treatment on him.
28. Meanwhile, on 8 November 2000 the applicant complained to the Istanbul Assize Court that he had been prevented from attending the hearings of the case against the police officers by the prison staff and security forces. The applicant requested to be given the opportunity to make statements before the first-instance court.
29. On 23 November 2000 the applicant’s lawyer lodged a complaint with the Ministry of Justice against the judges sitting on the bench of the Istanbul Assize Court and the Fatih public prosecutor, alleging that the latter had failed to seek the applicant’s attendance at the hearings, had taken the accused persons’ statements in the applicant’s absence and had disregarded the applicant’s complaints that he was being prevented from attending the hearings. On 29 August 2001 the Ministry of Justice sent a letter to the applicant’s lawyer, stating that no investigation would be carried out into the actions of the judges sitting on the bench of the Istanbul Assize Court or the Fatih public prosecutor.
30. On 23 November 2001, the applicant’s lawyer filed another complaint with the Üsküdar public prosecutor’s office against the prison staff and the gendarmerie officers responsible for the transport of detainees, alleging that the latter had committed an abuse of office by not taking the applicant to the hearings.
31. On 30 January 2001 the Üsküdar public prosecutor decided not to bring proceedings against the prison staff and the gendarmerie officers, holding that the applicant had stated orally that he did not wish to attend the hearings and that, due to the unrest in prisons at the time, it had not been possible to draft reports containing the applicant’s statements.
32. On 30 April 2001 the applicant lodged an objection to this decision.
33. On 13 June 2001 the Kadıköy Assize Court dismissed the objection.
34. During the hearing of 3 May 2001 before the Istanbul Assize Court an identification procedure took place where the applicant identified one of the accused police officers, H.G., as one of the persons who had tortured him. H.G.’s lawyer submitted that the applicant recognised H.G. as they had conducted the on-site inspection together. The applicant replied that he had in fact been arrested on 13 March 1999 in his flat but that the arrest report had been drafted on 14 March 1999. He maintained that there had never been a second on-site inspection and that the apartment had been searched only at the time of his arrest. On the same day, the Istanbul Assize Court also heard two officers who had arrested the applicant. The officers maintained that during the arrest a struggle had occurred between them and the applicant since he had attempted to escape.
35. Meanwhile, on 2 March 2001 the Istanbul Assize Court requested the Forensic Medicine Institute to subject the applicant to a medical examination with a view to determining whether the perforation of the right eardrum was the result of a trauma.
36. On 25 April 2001 the Director of the Forensic Medicine Institute requested that the doctor who had conducted the applicant’s medical examination following his detention in police custody draft a report as to whether the perforation was caused by a trauma.
37. On 27 July 2001 the doctor from the Haseki Hospital who had first observed the perforation, B.T., drafted a report which stated that the applicant had not suffered a fresh traumatic perforation.
38. Following the submission of this report to the Istanbul Assize Court, on 28 February 2002 the applicant requested the assize court to obtain the opinion of the Forensic Medicine Institute on the report of 27 July 2001. On the same day, the court dismissed his request, holding that the proceedings had been pending for three years and that the applicant’s request was intended to prolong the trial. The court also noted that the report of 27 July 2001 had in fact been asked for by the Forensic Medicine Institute.
39. On 25 April 2002 the Istanbul Assize Court acquitted the accused police officers. In its judgment, the court noted that the medical reports stated that the applicant had suffered injuries. However, it could not be determined where, when and under what conditions the applicant had sustained these injuries. The court further noted that the applicant had received blows when he had attempted to escape during the on-site inspection and considered that the accused police officers had not had the intention to commit an offence.
40. The applicant appealed.
41. On 2 December 2004 the Court of Cassation upheld the judgment of 25 April 2002.
42. On 13 April 1999 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and two other persons. The applicant was charged under Article 168 § 2 of the former Criminal Code with membership of the PKK. The bill of indictment did not contain any charge against the applicant concerning the bombing of the Mavi Çarşı.
43. On an unspecified date the Fourth Chamber of the Istanbul State Security Court held its first hearing on the merits on the case. The court did not take statements from the applicant and the other accused as they were not brought from the prison.
44. On 18 June 1999 Turkey’s Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on State Security Courts, the military judge sitting on the Fourth Chamber of the Istanbul State Security Court hearing the applicant’s case was replaced by a civilian judge.
45. On 22 September 1999 the Fourth Chamber of the Istanbul State Security Court heard the applicant and other accused, who challenged the accuracy of the house search, arrest and seizure report. The court decided to secure the testimony of those police officers who had effected the arrest and the house search, and postponed the trial until 8 December 1999.
46. Between 8 December 1999 and 12 June 2000 the first-instance court held two more hearings and postponed the trial as the police officers who had effected the arrest had failed to comply with the summons.
47. On 12 June 2000 the State Security Court requested the Istanbul Assize Court to provide information on the case brought against M.K. and H.G. on the charge of ill-treating the applicant.
48. Between 12 June 2000 and 4 September 2000 the State Security Court held four more hearings and postponed the trial as the arresting officers had not attended the hearings and the Istanbul Assize Court had not sent the requested information.
49. On 4 September 2000 one of the arresting officers appeared before the court and made statements. The State Security Court once again postponed the trial.
50. On 19 March 2001 the first-instance court abandoned the proposal to hear the arresting officers and once again requested the Istanbul Assize Court to provide information on the case before it.
51. On 18 June 2001 the public prosecutor submitted to the court his observations on the merits of the case.
52. From 18 June 2001 until 10 April 2002, the Fourth Chamber of the Istanbul State Security Court postponed the trial as it had not received information about the outcome of the criminal proceedings brought against H.G. and M.K., and in order to obtain the defence submissions of the applicant and the other accused.
53. On 10 April 2002 the applicant and the other accused made their defence submissions.
54. Between 10 April 2002 and 18 September 2002, the first-instance court postponed the trial as the information concerning the outcome of the proceedings before the Istanbul Assize Court had not been transmitted to it.
55. Throughout the proceedings, the first-instance court considered the applicant’s continued detention, either of its own motion or upon the request of the applicant or his lawyer. The court ordered the applicant’s continued detention on every occasion, having regard to the state of the evidence, the total length of his detention on remand, the nature of the offence with which he had been charged, and the upper limit of the punishment for that offence. On two occasions the applicant lodged objections to the decisions of the firstinstance court of 18 June and 26 September 2001 to prolong his detention, which were eventually dismissed by the Fifth Chamber of the Istanbul State Security Court on 26 June and 5 October 2001 respectively.
56. On 18 September 2002 the Fourth Chamber of the Istanbul State Security Court convicted the applicant of membership of the PKK and sentenced him to twelve years and six months’ imprisonment. The first-instance court took into consideration in its judgment, inter alia, the document dated 20 March 1999. The court considered that, by refusing to give any information to the police except for the details of his identity, to make statements or to sign the document drawn up by the police officers, the applicant had acted as a member of an illegal organisation. The court further noted that the applicant had participated in a number of demonstrations in support of the PKK and that his fingerprints had been found on the paper used for wrapping two Molotov cocktails thrown into a supermarket on 24 February 1999. The first-instance court also established, in the light of the police statements of one of the accused, V.İ., that the applicant had ordered V.İ. to rent a flat where the police had found several explosives put there by the applicant. Taking into account the length of the applicant’s detention on remand and the fact that he was a student and had a fixed domicile, the first-instance court ordered his release from prison.
57. On 21 January 2004 the Court of Cassation upheld the judgment of 18 September 2002 in respect of the applicant.
58. However, in the meantime, on 23 January 2003 the applicant had died.
59. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 96-100, ECHR 2004IV (extracts)), and Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29 and 30, 30 January 2007).
VIOLATED_ARTICLES: 3
5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-58222
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF AHMED AND OTHERS v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: No violation of Art. 10;No violation of Art. 11;No violation of P1-3
JUDGES: C. Russo;John Freeland;R. Pekkanen
TEXT: 7. Mr Mobin Ahmed, Mr Dennis Perrin, Mr Ray Bentley and Mr David Brough are all British citizens, born in 1941, 1948, 1947 and 1932 respectively. They live in London, Yelverton, Edgware and Exeter respectively. At the relevant time they were each permanently employed in different capacities by various local authorities. Their precise status and functions are described in Section C below.
The background to their complaints to the Convention institutions is constituted by the enactment and implementation of legislative measures designed to limit the involvement of certain categories of local government officials, such as themselves, in political activities. The history of the enactment of the relevant measures as well as their purport and scope are described in Section B below. The impact of the measures on the applicants, all persons considered holders of politically restricted posts within the meaning of the applicable legislation, is described in Section C below.
8. Against the background of the increasing politicisation of local government and attendant problems in respect of the relationship between elected members and local government officers, the Secretaries of State for the Environment, for Scotland and for Wales, appointed on 5 February 1985 a committee (“the Widdicombe Committee”) to inquire, inter alia, into the respective roles of elected members and officers of local government authorities and to make any necessary recommendations for strengthening the democratic process.
9. On 9 May 1986, after receiving evidence from 138 local government authorities and over 500 other organisations and individuals, the Widdicombe Committee submitted its report. The Committee firmly endorsed the continuation of the tradition of politically impartial local government officers having regard in particular to the roles of senior officers as managers, advisers and arbitrators in the day-to-day functioning of local government. In his foreword to the final report the Chairman of the Committee wrote:
“6. Although most of the problems we have perceived have been ones of uncertain relations, there have been some cases, albeit a few, where power has been abused.”
In the Chairman’s view, the recent sharpening of the political intensity of local politics was reflected in the relations between elected council members and local government officers and that the trend towards greater politicisation might be a source of future problems unless recommendations were made in order to provide a framework able to cope with it. With regard to the importance of the impartiality of local government officers, the Widdicombe Committee concluded that:
“6.141. The overwhelming view in the evidence we have received has been that officers (subject to very limited and closely defined exceptions) should continue to serve the council as a whole. … There has been equally wide agreement that the public service tradition of a permanent corps of politically impartial officers should be retained. …
6.180. Public service in the United Kingdom is founded on a tradition of a permanent corps of politically neutral officers serving with equal commitment whatever party may be in political control. …
6.182. Local government in the United Kingdom has traditionally been based on the same public service tradition as central government, but this has been a matter of convention and practice. …
6.186. The issue of principle is therefore straightforward. There must continue to be a system of permanent and politically neutral officers appointed on the basis of merit. The issue which we need to consider is whether new machinery or rules are required to ensure this, and if so on what basis.”
10. To ensure that senior officers continued to discharge their functions in a manner which was impartial from both a subjective and an objective point of view, the Widdicombe Committee in paragraph 6.217 of its report recommended that:
“(a) the legislation should be amended so that persons who are councillors or who are standing for election as councillors, or who have been councillors within the last year, may not be employed by another authority at the rank of principal officer or above;
(b) the Local Authorities’ Conditions of Service Advisory Board should take steps to include in the terms and conditions of officers at the rank of principal officer and above a prohibition on political activity, including:
(i) standing for, and holding, public elected office;
(ii) holding office in a political party;
(iii) speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate; and
(iv) canvassing at elections;
(c) if the changes recommended at (b) are not made to officers’ terms and conditions, legislation should be introduced to similar effect.”
11. Following the publication of the recommendations of the Widdicombe Committee, on 16 November 1989 the House of Commons passed the Local Government and Housing Act 1989 (“the Act”), which empowered the Secretary of State for the Environment to make regulations to restrict the political activities of certain categories of local government officers. The Act entered into force on 29 November 1989.
12. The Local Government Officers (Political Restrictions) Regulations 1990 (“the Regulations”) were made under section 1(5) of the Act on 4 April 1990. They were laid before Parliament the following day and came into force on 1 May 1990. The Regulations applied to all persons holding a politically restricted post as defined in section 2(1) of the Act. This term covers three broad categories of local government officials: the most senior post-holders in local government (category one); officials remunerated in excess of a prescribed level and whose posts are listed for the purposes of the application of the Regulations (category two); and officials paid less than the prescribed level but who hold a listed post (category three). Each local authority was obliged to draw up a list of posts falling within the second and third categories (section 2(2)). A local government officer in the second and third categories could apply to an independent adjudicator to have his or her post removed from the list of posts to which the Regulations applied (section 3).
All local government officials employed in these categories at the time of the entry into force of the Regulations were deemed, according to regulation 3(1), to be subject to the measures.
A more detailed analysis of the contents of the Act and the Regulations is set out at paragraphs 26–33 below.
13. The first applicant, Mr Ahmed, was a solicitor employed by the London Borough of Hackney. Although his salary fell below the level prescribed in section 2(2)(a) of the Act (see paragraphs 12 above and especially 30 below), making him a category three officer, the Council pursuant to section 2(2)(c) of the Act included his post in the list of politically restricted posts because, in its opinion, his post involved giving advice on a regular basis to committees of the Council, namely the Housing Benefits Review Board, the Housing Development Sub-Committee and the Environmental Sub-Committee (see paragraph 30 below).
14. Mr Ahmed was adopted as Labour candidate for election to the London Borough of Enfield in 1990, but was obliged to withdraw his candidature as a result of the Regulations. On 7 March 1990 he applied for removal of his job description from the list of politically restricted posts (see paragraphs 12 above and especially 32 below). The Council confirmed that Mr Ahmed had not attended committees during the previous twelve months, but stated that he would be involved in giving advice to committees in future, and would attend on a more regular basis. The Council did not provide therefore a certificate stating that he did not give advice regularly. The adjudicator replied to the Council on 30 March 1990 that Mr Ahmed’s application for exemption could not therefore be granted.
15. Prior to his retirement, the second applicant, Mr Perrin, was Principal Valuer with the Devon County Council (a category three officer). He was responsible for leading, directing and developing the Council’s area valuation staff. His post required him to give regular advice to the Council’s committees, including strategy advice on key estate management issues, and to speak to the media. Accordingly his post was included in the list of politically restricted posts kept by the Council in accordance with section 2(2) of the Act (see paragraph 12 above and especially paragraph 31 below).
16. On 19 February 1990 Mr Perrin applied for exemption from political restrictions on the ground that although he advised the Council at meetings and spoke to the media, the advice was “factual valuation information regarding the acquisition, disposal and management of property”. His application for exemption was refused on 20 March 1990. The adjudicator wrote:
“I am satisfied that the duties of your post do fall within section 2(3) of the Act in that you do regularly attend committee meetings of the authority to give advice. Your authority do state that this advice does not extend to ‘policy advice’, but the Act itself makes no distinction between types of advice. I am not prepared, therefore, to grant an exemption under section 3(4) of the Act.”
17. As a result of the Regulations, Mr Perrin had to give up his position as Vice-Chair and Property Officer of the Exeter Constituency Labour Party, and had to refrain from supporting and assisting Labour candidates in Exeter City Council elections, including his wife, who was a candidate in May 1990 and May 1991. He also reduced his involvement in trade union activities.
18. The third applicant, Mr Bentley, is a planning manager with Plymouth City Council. He resigned from his position as Chairman of Torridge and West Devon Constituency Labour Party because of the Regulations, and was also restricted in canvassing for his wife who stood as the only Labour Councillor for the West Devon Borough Council, and in giving radio interviews in his capacity as Chairman of the Plymouth Health Emergency, a body concerned with National Health policies.
19. The monitoring officer of the Council classified Mr Bentley’s post as one that was politically sensitive (a category one post) and appropriately subject to political restrictions under section 2(3) of the Act (see paragraph 30 below). The reasons for the classification included that Mr Bentley was head of the Council’s corporate policy unit, that he was responsible directly to the head of the Council’s paid service, that his post was responsible for policy analysis and research, that he represented the Council on a transport steering group involving other authorities and organisations, and that, in the twelve months prior to 31 August 1990, he attended three meetings of the Council’s Policy and Resources (Finance sub-) Committee and advised on four separate issues of public transport. The monitoring officer considered that Mr Bentley’s post also fell within section 2(7)(a) and (b) of the Act, and was therefore politically restricted in any event (see paragraph 28 below).
20. Mr Bentley applied for exemption from political restrictions. On 19 November 1990 the adjudicator underlined that he regarded his duties as limited to considering applications concerning restrictions under section 2(2) of the Act. He stated that although the Council may have identified the post as being politically restricted, it was not
“politically restricted because of that fact, but because it is explicitly covered by section 2(1)(c) of the Act. I therefore do not consider it necessary or desirable to address the question of whether this post meets the criteria for inclusion in the list of posts under section 2(2) or for exemption from that list, unless or until it is established that the post is not covered by section 2(1)(c).”
21. The fourth applicant, Mr Brough, is employed by the Hillingdon Borough Council as the head of its Committee Services Department (a category one post). The provision of services to the Council’s committees necessarily involves the Committee Services Department in frequent contact with and giving advice to the elected members of the Council. Mr Brough was the officer responsible for those activities.
22. As a consequence of the Regulations, Mr Brough can no longer act as Parliamentary Chairman of his party in Harrow East and is prevented from speaking at public meetings on issues such as housing and the health service. Mr Brough did not apply for exemption from the scope of the Regulations.
23. The applicants and NALGO (the predecessor of UNISON, the trade union of which the applicants are members and which represents public-sector workers) applied for and were granted leave to apply for judicial review of the Regulations. The application was dismissed on 20 December 1991. The judge, Mr Justice Hutchison, considered that he was bound by the recent decision of the House of Lords in the case of R. v. Secretary of State for the Home Department, ex parte Brind and Others regarding the status of Article 10 of the Convention in domestic law. In connection with the test of “Wednesbury” unreasonableness, the judge referred to an affidavit submitted by Mr Simcock, a senior civil servant at the Department of the Environment, in which Mr Simcock explained how the Widdicombe Committee (see paragraph 8 above) had been set up in 1985 to inquire into local authority practices and procedures with particular reference to the respective roles of elected members and officers. Mr Simcock also described the consultation process between the publication of the Widdicombe Report and the making of the Regulations, in which NALGO was involved, and how the Regulations were in some respects less restrictive than the Widdicombe Committee’s proposals. Referring to senior officers, the Widdicombe Committee had said:
“... It is part of their job to advise councillors, and to adjudicate on matters of propriety, and in so doing they must command the respect and trust of all political parties. There might well be some senior officers who are politically active but who are nevertheless totally able to detach themselves from such activity in carrying out their duties as neutral officers. Nevertheless we believe there will always be a very significant risk that they are viewed with suspicion by councillors of other parties, and that as a consequence the performance of their duties towards the council as a whole will be impaired.”
The judge continued:
“... I preface my summary by pointing out that some of [the applicants’ complaints] reflect the applicants’ root and branch opposition to the whole concept of restricting the political activities of local government employees. It is said that:
There was no pressing social need for the Regulations – local government employees have in the past provided impartial advice and there is public confidence in their ability to do so.
The definition of [persons holding politically restricted posts] is unduly wide – a much more restricted category would have served the government’s purpose.
The restrictions are expressed in broad, subjective and uncertain terms – a vice particularly objectionable where, as here, they seek to restrict fundamental human rights. Thus, in the Schedule references to apparent intention (paragraphs 6 and 7) and to publication in circumstances likely to create an impression (paragraphs 9 and 10) are objectionable, as is paragraph 4 of the Regulations themselves.
The consequence of the vice mentioned in the previous paragraph is that employees are likely to be treated inconsistently by different employers, by reason of there being room for undue latitude in interpreting the restrictions.
The Regulations go too far in prohibiting conduct undertaken with apparent intention, etc., or likely to create the impression of support, etc. They should, at most, have proscribed actual political activities.
The width of the language used means that many non-party political activities, including trade unions and charitable activities, are prohibited.
The terms are imposed on existing employees, who entered into their contracts of employment on a different basis.
The restrictions may have an adverse effect on recruitment and lead to resignations by skilled staff.
Some of these points will have to be considered individually when I come to deal with further arguments advanced by the applicants under quite different heads, but in the context of Wednesbury unreasonableness I propose only to say that they do not in my judgment come near to establishing a case of perversity. I have already briefly referred to the genesis of the Act and the Regulations in the Widdicombe Report, and to the consultative processes that followed it. Paragraph 51 of the Report contained the recommendation that:
‘... terms and conditions of [persons holding politically restricted posts] [should include] a prohibition on political activity, including ... (iii) speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate;’
The Government’s Command Paper in July 1988 (in which, as already mentioned, the view was expressed that the categories of [persons holding politically restricted posts] should be more restricted than the Report proposed) spelt out the essential aim that:
‘it was important that the post-holder should be seen to be politically impartial but that otherwise, local government employees should not be subject to restrictions on their political activity.’
Of the specific arguments mentioned in (a) to (h) above, those in (a), (b), (e), (g) and (h) are, it seems to me, essentially arguments against the whole concept of restricting such activities, and in the circumstances cannot found an attack on Wednesbury grounds. The arguments summarised in (c) and (d) are to the effect that the Regulations are uncertain and incapable of consistent and fair application. As a Wednesbury argument, this contention could not avail the applicants – at least unless the Regulations were void for uncertainty (this would be a distinct ground for challenge) which plainly they are not. Finally, the argument mentioned in (f) is in my view misconceived: the Regulations do not prohibit the kind of activities there mentioned. I shall have more to say on this subject when I deal with the applicants’ specific arguments on vires and legitimate expectation, to the first of which I now turn.”
In conclusion, the judge found that the Regulations did not go beyond the policy and purpose of the Act, and rejected an argument that the applicants had a “legitimate expectation” that the Government would not interfere with trade union activities on the basis of an assurance from the then minister for local government matters.
24. An appeal to the Court of Appeal was dismissed on 26 November 1992. Lord Justice Neill found that the provisions of Article 10 of the Convention did not assist NALGO and the applicants, confirmed that it was not open to the courts below the House of Lords to depart from the traditional Wednesbury grounds in reviewing the decision of a minister who has exercised a discretion vested in him by Parliament, and found that the Regulations were not “Wednesbury unreasonable” or ultra vires. He also agreed with the first-instance judge as to legitimate expectation. The other judges, Lords Justices Russell and Rose, agreed. Leave to appeal to the House of Lords was refused.
25. The House of Lords refused leave to appeal to it on 24 March 1993.
26. Section 1(5) of the Act provides:
“The terms of appointment or conditions of employment of every person holding a politically restricted post under a local authority (including persons appointed to such posts before the coming into force of this section) shall be deemed to incorporate such requirements for restricting his political activities as may be prescribed for the purposes of this subsection by regulations made by the Secretary of State.”
27. The term “persons holding a politically restricted post” is defined by section 2(1) of the Act. It consists of three broad categories of local government officer (excluding headmasters and teachers, who are exempt from the operation of the Regulations by reason of section 2(10) of the Act).
28. The first category consists of officers who hold certain posts specified in section 2(1)(a) to (f) of the Act, namely the head of the authority’s paid service (section 2(1)(a)); the chief officers (section 2(1)(b) and (c)); the deputy chief officers (section 2(1)(d)); the monitoring officer (section 2(1)(e)); and assistants for political groups (section 2(1)(f)).
There are an estimated 12,000 officers in this category according to the Government’s memorial.
The chief officers are the heads of the various departments within the local authority’s administration. They consist of “statutory” and “non-statutory” chief officers. These terms are defined in section 2(6) and (7) of the Act respectively. The “statutory” chief officers are the chief education officer, the chief officer of the fire brigade, the director of social services or director of social work, and the chief financial officer. A “non-statutory” chief officer is defined as, inter alia, a person for whom the head of the authority’s paid service is responsible (section 2(7)(a)), or a person who, largely or exclusively, reports directly to or is directly accountable to the head of the authority’s paid service (section 2(7)(b)). A “deputy” chief officer is a person who, as regards all or most of the duties of his or her post, is required to report directly or is directly accountable to one or more of the statutory or non-statutory chief officers (section 2(8)). By section 2(9), purely secretarial or clerical staff are not non-statutory chief officers or deputy chief officers.
29. The second category consists of those local government officers whose annual rate of remuneration exceeds the level specified in section 2(2)(a) and (b) of the Act (“the prescribed level”, which is currently 25,746 pounds sterling per annum or pro rata for part-time posts) and whose posts have not been exempted from the operation of the Regulations.
The Government estimate that there are approximately 28,000 officers whose salary exceeded the prescribed level. However, in their view, the number of officers who were actually subject to the Regulations is considerably less than 28,000 since a significant number had either been granted an exemption or would have been entitled to one had they applied.
30. The third category (defined by section 2(2) (c) of the Act) consists of those local government officers whose annual rate of remuneration is less than the prescribed level but whose duties consist in or involve one or both of the duties identified in section 2(3), namely:
“(a) giving advice on a regular basis to the authority themselves, to any committee or sub-committee of the authority or to any joint committee on which the authority are represented;
(b) speaking on behalf of the authority on a regular basis to journalists or broadcasters.”
According to the Government’s memorial, there are an estimated 7,000 officers in this category.
31. Each authority is obliged to prepare a list of persons falling within the second and third categories (section 2(2)). Any officer whose post is included on this list is entitled to be removed from the list on the grounds that his or her duties do not include duties of the kind set out in section 2(3).
32. Section 3 of the Act provides for the appointment of a person to consider applications for exemption from political restriction. If the person appointed (who is called the adjudicator) finds that the duties of a listed post (that is, those posts falling within the second and third categories) do not fall within section 2(3), he or she is required to direct that the post is not to be regarded as a politically restricted post. The authority must then remove the post from the list maintained under section 2(2).
According to the Government, as at January 1997, 1,374 applications had been made for exemption of which 1,176 have been granted.
33. The Schedule (Part I) to the Regulations prohibits the participation of persons holding politically restricted posts (including persons appointed to such posts before the coming into force of the Regulations) in elections for the House of Commons, the European Parliament or any local authority either as a candidate (paragraph 1), an election agent (paragraph 3) or a canvasser (paragraph 5). It does not prohibit membership of a political party, but does prohibit the holding of an office within a political party if that would involve participating in the general management of that party or one of its branches (paragraph 4(a)) or representing the party in dealing with others (paragraph 4(b)).
Speaking to the public or to a section of the public or publishing any written or artistic work with “the apparent intention of affecting public support for a political party” is also prohibited by paragraphs 6 and 7 of Part II of the Schedule. Under paragraph 8, nothing in paragraphs 6 and 7 shall be construed as precluding the appointee to a politically restricted post from engaging in the activities mentioned in those two paragraphs to such an extent as is necessary for the proper performance of his duties.
In accordance with regulation 4 when determining whether a person has breached the terms and conditions set out in paragraphs 6 and 7 regard shall be had to:
“(a) whether the appointee referred to a political party or to persons identified with a political party, or whether anything said by him or the relevant work promotes or opposes a point of view identifiable as the view of one political party and not of another; and
(b) where the appointee spoke or the work was published as part of a campaign, the effect which the campaign appears to be designed to achieve.”
34. The Government informed the Court in their memorial that a review was then being conducted of the detail of the legislation governing political restrictions on local government officers. The aim of the review was to ensure that the detail of the restrictions imposed was essential for the maintenance of political impartiality of senior local government officials. At the hearing the Government informed the Court that the review had shown that the maintenance in force of the restrictions set out in the Regulations continued to be justified.
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