ITEMID: 001-76083
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: EEG-SLACHTHUIS VERBIST IZEGEM v. BELGIUM
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, EEG-Slachthuis Verbist Izegem N.V., is a public limited company under Belgian law which specialises in livestock slaughter and has its head office in Izegem (Belgium). It was represented before the Court by Ms R. Geelen and Mr L. Cornelis, lawyers practising in Brussels.
The facts of the case, as submitted by the parties, may be summarised as follows.
Section 32 (2) (since repealed) of the Law of 24 March 1987 on animal health provided for the setting-up of an animal health and production fund (“the fund”) attached to the Ministry of Agriculture. Its purpose was to contribute towards the financing of compensation, subsidies and other benefits in connection with combating animal diseases and improving animal hygiene and health and the quality of livestock and livestock products. The Law also stipulated that the fund would be financed in particular by compulsory contributions payable by individuals and companies engaged in the production, processing, transport, preparation, sale or marketing of livestock. The amounts and procedures for collection of the contributions were to be laid down by royal decree.
In order to give effect to this statutory provision, a royal decree on compulsory contributions to the animal health and production fund was enacted on 11 December 1987, entering into force on 1 January 1988. Article 2 of the royal decree set the initial amount of the compulsory contribution at 315 Belgian francs (BEF) (approximately 7.80 euros (EUR)) per slaughtered bovine animal, BEF 105 (approximately EUR 2.60) per slaughtered calf and BEF 20 (approximately EUR 0.50) per slaughtered pig. These amounts were subsequently amended by royal decrees dated 8 April 1989, 23 November 1990, 15 May 1995, 25 February 1996 and 13 March 1997.
In late 1986 the European Commission decided to conduct an overall review of the charges payable in the agriculture and fisheries sectors in the Member States and the use made of the resulting revenue, in particular in the form of aid. In order to obtain the information, it sent out a standard letter to all the Member States during 1987. In response, the Belgian authorities informed the Commission of the measures introduced by the Law of 24 March 1987 and the royal decree of 11 December 1987.
On 7 May 1991 the European Commission issued a decision in which it found that the aid financed by the compulsory contributions under the royal decree of 11 December 1987 was incompatible with the common market within the meaning of Article 92 (current Article 87) of the Treaty establishing the European Community (“the EC Treaty”). Under the terms of that Article, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is incompatible in principle with the common market, in so far as it affects trade between Member States. In this particular case, the incompatibility arose out of the fact that the compulsory contributions were payable also in respect of animals imported from other Member States but were used exclusively to fund aid to Belgian breeders. The Commission took the view that the system in question should therefore be abolished, in so far as products imported from other Member States also attracted the compulsory contribution at the stage of slaughter.
In the body of the decision the Commission further noted that the Belgian authorities had not notified it in advance of their plans to introduce the system established by the Law of 24 March 1987 and the royal decree of 11 December 1987. They had therefore acted in breach of Article 93(3) (current Article 88(3)) of the EC Treaty, which requires Member States to inform the Commission of any plans to grant or alter aid so that it may examine their compatibility with the common market, and which prohibits the Member State concerned from putting its proposed measures into effect until the Commission has taken a final decision.
According to the settled case-law of the Court of Justice in Luxembourg, the prohibition on putting the proposed measures into effect referred to in the final sentence of Article 93(3) has direct effect and gives rise to rights for individuals which the national courts must safeguard (see in particular the following judgments of the Court of Justice of the European Communities (CJEC): judgment of 11 December 1973, Case 120/73, Gebrüder Lorenz GmbH v. Federal Republic of Germany and Land Rheinland/Pfalz; judgment of 21 November 1991, Case C-354/90, Fédération nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon v. French Republic; judgment of 11 July 1996, Case C-39/94, Syndicat français de l'Express international (SFEI) and others v. La Poste and others). The Court of Justice has also held that “the Commission's final decision does not have the effect of regularizing ex post facto the implementing measures which were invalid because they had been taken in breach of the prohibition laid down by the last sentence of Article 93(3) of the Treaty, since otherwise the direct effect of that prohibition would be impaired and the interests of individuals, which ... are to be protected by national courts, would be disregarded.” According to the Court of Justice, “any other interpretation would have the effect of according a favourable outcome to the nonobservance by the Member State concerned of the last sentence of Article 93(3) and would deprive that provision of its effectiveness” (see CJEC judgment of 21 November 1991, Case C-354/90, Fédération nationale du commerce extérieur des produits alimentaires et Syndicat national des négociants et transformateurs de saumon v. French Republic, and judgment of 11 July 1996, Case C-39/94, Syndicat français de l'Express international (SFEI) and others v. La Poste and others).
After proceedings were brought before it by several companies engaged in the trading of calves and seeking reimbursement by the Belgian State of the compulsory contributions they had made to the fund which they considered to be contrary to Articles 12, 13 and 95 of the EC Treaty, the Turnhout Court of First Instance referred a number of questions to the Luxembourg Court of Justice for a preliminary ruling. The questions were aimed essentially at ascertaining
(i) whether Articles 12 and 13, 30 et seq., 92 and 95 of the Treaty precluded the introduction of a compulsory contribution which constituted a parafiscal charge levied on domestic and imported products alike, in accordance with the same collection procedures, and paid into a fund which operated solely for the benefit of domestic production, and
(ii) whether the provisions in question had direct effect.
In its judgment of 16 December 1992 the Court of Justice replied in substance that
(i) a compulsory contribution constituting a parafiscal charge, applied under the same conditions as regards its collection to both domestic and imported products, the revenue from which was used for the benefit of domestic products only, constituted a charge having an effect equivalent to customs duties prohibited by Article 12 of the Treaty, if the advantages accruing from it wholly offset the burden borne by those products;
(ii) if those advantages only partly offset the burden borne by domestic products, such a charge constituted discriminatory taxation prohibited by Article 95 of the Treaty;
(iii) depending on the use to which the revenue was put, a parafiscal charge of that kind could also constitute State aid incompatible with the common market if the conditions for the application of Article 92 of the Treaty were met, that being a matter for the Commission to determine in accordance with the procedure laid down for that purpose in Article 93 of the Treaty;
(iv) the provisions of Articles 12, 13 and 95 of the Treaty gave rise to rights for individuals which the national courts were obliged to uphold; it was also for the national courts to safeguard the rights of individuals where, in introducing the charge, the Member State concerned failed to comply with its obligations under Article 93(3) of the Treaty, and where a Commission decision under Article 93(2) of the Treaty found the levying of the charge as a method of financing State aid to be incompatible with the common market.
Following this judgment by the Court of Justice, the Turnhout Court of First Instance found that the compulsory contributions to the fund constituted discriminatory taxation prohibited by Article 95 of the EC Treaty. In a judgment of 10 February 1994 it ordered the Belgian State to repay to the applicants the amounts they had paid in respect of such contributions. The State appealed.
Section 32 of the Law on animal health was amended by section 185 of the Law of 21 December 1994 laying down social and other provisions.
The new system thus introduced stipulated that the royal decrees relating to the compulsory contributions were to be ratified by the legislature within one year of their publication in the Belgian Official Gazette. The royal decree of 11 December 1987 on compulsory contributions to the animal health and production fund, as amended by the royal decrees of 8 April 1989, 23 November 1990 and 19 April 1993, was ratified by means of the abovementioned section 185 of the Law of 21 December 1994, with retrospective effect from 1 January 1988. However, the ratification related only to contributions paid in respect of domestic animals. With regard to imported animals, on the other hand, the legislature, seeking to give effect to the European Commission Decision of 7 May 1991 and the judgment of the Court of Justice of 16 December 1992, provided for contributions paid since 1 January 1988 to be reimbursed. To obtain reimbursement, the claimants had to prove that (1) the compulsory contributions paid had related to imported animals, (2) they had not taken measures to pass the contributions back to the producer, or such measures had been cancelled and (3) they had paid all the compulsory contributions due in respect of domestic animals.
As in the case of the Law of 24 March 1987, the Belgian legislature did not inform the European Commission before enacting the Law of 21 December 1994 of its intention to alter the existing system of aid.
On 17 February 1995 the applicant company brought an action against the Belgian State before the Brussels Court of First Instance seeking the reimbursement of BEF 57,127,902 (approximately EUR 1,400,000), corresponding to the compulsory contributions it had paid into the animal health and production fund between 1 January 1988 and the beginning of 1994.
The applicant company, arguing that the contributions were contrary to the EC Treaty, applied for reimbursement on the basis of the provisions governing sums wrongly paid or, in the alternative, on the basis of the State's liability in tort.
According to the information available to the Court, the case is still pending before the Brussels Court of First Instance.
In a judgment of 7 November 1995 the Antwerp Court of Appeal declared unfounded the appeal by the Government against the judgment of the Turnhout Court of First Instance of 10 February 1994.
In its judgment the Court of Appeal considered in particular that the Government had been wrong to assert that the European Commission had found the system of aid to be incompatible with the Treaty only with regard to the charging of contributions in respect of animals imported from other Member States. On the contrary, in the view of the Court of Appeal, the Commission decision had found the system as a whole to be incompatible with the Treaty, as an essential component of the system, namely the parafiscal charges levied on imported animals, was incompatible with the common market.
With regard to the new system introduced by the Law of 21 December 1994 the Court of Appeal found that, in so far as it entailed altering the system of aid for the purposes of Article 93 (3) of the EC Treaty, it should have been notified to the Commission in advance. As the requirement to inform the Commission had not been met, no valid basis existed for implementing the new system.
The Government appealed against the judgment on points of law.
In 1998 the system was amended once more. Section 32 of the Law of 24 March 1987 was repealed and replaced by an autonomous law of 23 March 1998. The animal health and production fund was renamed the “budgetary fund for the health and quality of animals and animal products”.
Section 5 of the Law of 23 March 1998 provided for the fund to continue to be financed in particular by compulsory contributions from individuals and companies engaged in the production, processing, transport, preparation, sale and marketing of animals and animal products.
Section 6 stipulated that, in the future, the amount of the contributions and the procedures for collection would be laid down by royal decree, it being understood that they would not be charged in respect of imported or exported animals.
With regard to the past, however, the amount of the contributions payable by abattoirs was laid down by section 14 of the Law, which reproduced word for word the content of the royal decrees of 11 December 1987, 8 April 1989, 23 November 1990, 15 May 1995, 25 February 1996 and 13 March 1997 on compulsory contributions to the animal health and production fund for each of the periods covered by the respective decrees. In addition, section 23 of the Law of 23 March 1998 stipulated that, unlike most of the provisions of the law, which would enter into force on the day of its publication in the Official Gazette, section 14 would apply retrospectively from 1 January 1988, the date of entry into force of the royal decree of 11 December 1987. Section 17, meanwhile, provided for automatic compensation of the difference between the amounts due under section 14 and those paid under the royal decrees on compulsory contributions to the animal health and production fund.
However, like the Law of 21 December 1994, section 14 of the Law of 23 March 1998 made an explicit distinction between domestic animals and imported animals. It stipulated that, in the case of the latter, the compulsory contributions which had been paid from 1 January 1988 onwards under the royal decree of 11 December 1987, as amended by the royal decrees of 8 April 1989, 23 November 1990, 19 April 1993, 15 May 1995, 25 February 1996 and 13 March 1997, would be reimbursed to claimants who could provide proof that the compulsory contributions they had paid related to imported animals, that they had not taken any measures to pass those contributions back to the producer, or that such measures had been cancelled, and that they had paid all the contributions payable in respect of domestic animals, including exported slaughtered animals and exported productive livestock.
Unlike the earlier legislation, a draft of the Law of 23 March 1998 was notified in advance to the European Commission. In a letter of 9 August 1996 the Commission informed the Belgian Government that it had no objections to raise in respect of the proposed aid measures.
Under the consolidated Law on the Conseil d'Etat of 12 January 1973, the Legislation Section of the Conseil d'Etat issued an opinion on 4 March 1997 relating in particular to the compatibility of the draft Law with the Convention. On that occasion, the Conseil d'Etat issued a reservation as to the validity of the draft rules. The relevant passages of its opinion read as follows:
“It appears ... that the Belgian State is involved in a dispute with a number of parties who seek the reimbursement of contributions paid. The case gave rise to a request for a preliminary ruling by the Court of Justice. In that connection, the Court ruled first that a charge applied under the same conditions as regards its collection to both domestic and imported products, but the revenue from which was used for the benefit of domestic products only, constituted a prohibited charge having an effect equivalent to customs duties. The Court further ruled that a charge of that kind could constitute State aid incompatible with the common market, and that, if the European Commission was not informed in advance of such aid, individuals could seek to have it declared null and void by the domestic courts as a result.
The Antwerp Court of Appeal recently delivered judgment in the same case. According to the Court of Appeal, the rules contained in section 32 (2) of the Law of 24 March 1987 on animal health were defective, even after they had been amended by the Law of 21 December 1994, on account of the fact that they had not been notified to the European Commission. The court also found that the defects were such that the above-mentioned statutory provision could not serve as a valid legal basis for any implementing measures. The Belgian State was therefore ordered to reimburse certain amounts which had been paid under the royal decrees enacted to give effect to the above-mentioned statutory provision.
The Belgian State has appealed against that judgment on points of law.
As the case is still pending, it is not for the Conseil d'Etat to adopt a position on the scope of the Court of Appeal judgment and whether it was correct.
Should it transpire that the draft rules are decisive for the eventual outcome of the case, it would be appropriate to conclude that the Belgian State influenced the proceedings to its own advantage through the intervention of one of the organs of State.
According to the case-law of the European Court of Human Rights, interference by the legislature in pending proceedings may be in breach of the principle of equality of arms between the parties if it is aimed at influencing the outcome of the proceedings. Such interference may also give rise to a violation of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
For that reason, the Conseil d'Etat wishes to issue a reservation as to the validity of the draft rules.”
The Government responded as follows to the observations of the Conseil d'Etat, in the explanatory memorandum to the draft Law:
“In its opinion, the Conseil d'Etat states that 'such interference may also give rise to a violation of Article 6 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms'.
It should be noted that the European Commission approved the preliminary draft Law which ... was notified to it in advance in accordance with Article 93 (3) of the EC Treaty.
The case-law of the European Court of Human Rights referred to by the Conseil d'Etat cannot be applied to sections 14 to 18 of the draft Law. The authorities have no intention of interfering in ongoing proceedings or of preventing a court from ruling on a particular issue. However, for budgetary reasons, they are obliged to limit the negative financial impact of judicial decisions which would require the Belgian State to repay very considerable sums of money.
The system provided for by sections 14 to 18, which is partly retrospective, can be considered to be reasonable in view of the need to ensure the proper functioning of the fund in the general interest. The budgetary impact of having to repay the amounts concerned would imperil the funding of animal health policy...
In order to prevent such an outcome, the authorities must act by laying down retrospective provisions in a general law.”
On 30 October 1998 the applicant company, in common with other companies engaged in the livestock trade, lodged an application with the Administrative Jurisdiction and Procedure Court seeking to have sections 14 and 23 of the Law of 23 March 1998 set aside.
In support of its application, it submitted in particular that the provisions in question were in breach of Articles 10 and 11 of the Constitution, taken in conjunction with Articles 144, 145 and 159 of the Constitution, with Article 6 § 1 of the European Convention on Human Rights, with Article 1 of Protocol No. 1, with the principle of legal certainty and with the general legal principle of the non-retrospective application of legislation.
In enacting sections 14 and 23, the legislator had replaced the provisions of a royal decree with a retrospective statutory rule. In the view of the applicant company, that amendment prevented courts and tribunals before which proceedings had been brought from ruling on the lawfulness of the royal decree under Article 159 of the Constitution, which stated in particular that courts and tribunals could apply decrees only if they were in accordance with the law. The result, in the view of the applicant company, was an unjustified difference in treatment between those citizens to whom the provisions applied and the rest of the population, with the former being deprived of the judicial safeguards contained in Articles 144, 145 and 159 of the Constitution.
In its judgment No. 17/2000 of 9 February 2000 the Administrative Jurisdiction and Procedure Court dismissed the applications.
More specifically, the submissions based on a violation of Articles 10 and 11 of the Constitution, taken in conjunction with Article 6 § 1 and 14 of the European Convention on Human Rights, Article 1 of Protocol No. 1 and the general principles of the non-retrospective application of legislation and the separation of powers, were dismissed on the following grounds:
“B.3.1 By applying the contributions payable by slaughterhouses retrospectively..., the legislature infringed their right to a fair hearing, equality of arms and access to a court in a discriminatory manner, as they were deprived of the possibility of alleging before the courts a violation of Article 88 (3) (former Article 93 (3)) of the EC Treaty, or of securing the enforcement of judicial decisions finding that the above provision had been violated by section 32 (2) and (3) of the Law of 24 March 1987 on animal health.
B.3.2 Article 88 (3) (former Article 93 (3)) of the EC Treaty requires Member States to inform the Commission of any plans to grant or alter aid, so that their compatibility with the common market can be examined.
The same provision prohibits the Member State concerned from putting the proposed measures into effect until the Commission has taken a final decision. Aid measures which are implemented prematurely, and a fortiori those implemented without the Commission having been informed, are unlawful.
B.3.3 On no account may the impugned provisions result in the challenging of final judicial decisions. Were they to pursue such an aim, they would be in breach of Articles 10 and 11 of the Constitution by depriving a category of persons of the benefit of final judicial decisions, something which cannot be justified in any circumstances.
It is true that the provisions in question are liable to influence proceedings currently in progress before the ordinary courts. However, they do not make it impossible for the applicants to allege a violation of Article 88 (3) (former Article 93 (3)) of the EC Treaty. The court further observes that the second complaint, in case number 1452, alleges a violation of provisions of the Constitution taken in conjunction with Articles 87 and 88 (former Articles 92 and 93) of the EC Treaty.
The court notes that the aid measures provided for by the Law of 24 March 1987 were implemented without prior notification to the Commission and that the corresponding contributions should therefore in principle be reimbursed. However, that finding does not mean that the provisions currently at issue violate Articles 87 and 88 (former Articles 92 and 93) of the EC Treaty, as they were notified to the Commission in time and were found to be compatible with the common market.
It should also be observed that the applicants are not challenging the aid measures as such, only the use to which the contributions designed to fund those measures are put.
The failure to comply with the requirement to inform the Commission of aid measures in advance does not create an inviolable right to permanent exemption from payment of the contributions in question, including those based on a new instrument whose compatibility with the EC Treaty and the Constitution is beyond dispute. That instrument would be unconstitutional only if it was itself in breach of Articles 10 and 11 of the Constitution taken in conjunction with the provisions relied on by the applicants.
B.4 The principle of the non-retrospective application of legislation is a safeguard aimed at preventing legal uncertainty. It requires the content of laws to be foreseeable and accessible so that individuals can foresee, to a reasonable degree, the consequences of a particular measure when it is taken.
Applying a provision retrospectively can be justified only if it is essential in order to achieve an aim which is in the public interest, such as the proper functioning or continuity of the public service. Should it transpire, moreover, that applying a provision retrospectively influences the outcome of one or more sets of judicial proceedings in a particular way or prevents the courts from ruling on a particular point of law, the principle in question requires that exceptional circumstances must exist justifying such intervention by the legislature, which restricts, for a particular section of the population, the judicial safeguards afforded to every citizen.
B.5 Sections 14, 15 and 23 of the Law of 23 March 1998 do not conflict with the provisions of European law on State aid, as the legislature has abolished the contributions which were levied on imported animals. They do not create legal uncertainty, as they reproduce the content of the royal decree of 11 December 1987 on compulsory contributions to the animal health and production fund. While it is true that the impugned provisions apply retrospectively, they do not contain any new provisions which depart from those contained in the above-mentioned royal decree, with the result that they merely consolidate provisions whose scope was known to the persons concerned. The latter could have expected the measure to be retained once the requirement to inform the Commission had been met. The impugned Law was notified to the European Commission in accordance with Article 88(3) (former Article 93(3)) of the EC Treaty, and the Commission, in a letter of 9 August 1996, informed the Government that 'having examined the Law pursuant to Articles 87 to 89 (former Articles 92 to 94) of the Treaty', it had no objection to its introduction. Furthermore, since the European Commission Decision of 7 May 1991, it had already been established that the aid referred to in the royal decree of 11 December 1987 was incompatible with the common market only 'in so far as products imported from other Member States also attracted the compulsory contribution at the stage of slaughter'.
B.6 The impugned contributions are an important source of financing for the fund for the health and quality of animals and animal products. The legislature was entitled to take the view that it was in the public interest, and in particular in the interest of public health, to maintain the measure, which has been in existence since 1987 and is vital to the health and quality of animals and animal products.
B.7 As regards the possibility that the impugned provisions may influence the outcome of ongoing proceedings, the fact, noted at B.3.3 above, that the Commission unreservedly found the Law of 23 March 1998 to be compatible with the common market, together with the overriding importance of public health, justify the intervention by the legislature in the present case.
...
B.10 As the applicants have a legitimate expectation that the courts will find some of the contributions paid on the basis of the Law of 24 March 1987 and of the implementing decrees to be unlawful, the claim to recovery of the contributions may be regarded as a possession within the meaning of the Convention provision relied on by the applicants
However, the impugned Law does not deprive the applicants of their property, as, by repealing the legal basis for those contributions, it acknowledges that they were wrongly paid. The fact that it provides for repayment of the difference between those claims and the contributions due on the basis of the provisions at issue cannot be regarded as being in breach of Article 1 of Protocol No. 1, as the contributions have not been found to be contrary to Articles 10 and 11 of the Constitution, taken in conjunction particularly with Article 6 of the Convention. Accordingly, the impugned Law strikes a fair balance between the general interest and the interest of the applicants, as it amounts to controlling the use of property in a way which was arguably necessary in order to secure the payment of taxes or other contributions within the meaning of Article 1 of Protocol No. 1.”
In a judgment of 19 January 2001 the Court of Cassation dismissed an appeal by the Government against the judgment of the Antwerp Court of Appeal of 7 November 1995.
The relevant passages of the Court of Cassation judgment read as follows:
“The domestic courts are required to uphold the rights of individuals alleging a violation of the prior notification requirement, by drawing all the inferences, in accordance with their national law, as regards the validity of measures implementing the aid in question and the recovery of the financial support granted in breach of that provision.
The Commission's decision regarding the compatibility of national aid with the conditions laid down in Article 87 (former Article 92) of the Treaty does not cover the unlawfulness of implementing measures which violate the prohibition imposed by Article 88 (3) (former Article 93 (3)) of the EC Treaty.
Having observed that the new system was not notified to the Commission, the judgment found, without breaching the relevant legal provisions and the general legal principle referred to in the grounds of appeal, that, in accordance with Article 88 (3) (former Article 93 (3)) of the EC Treaty, the penalty for breach of the regulations made it impossible for the Member State concerned to implement the system of aid introduced by the original Law of 24 March 1987 on animal health and the royal decrees implementing that Law.
...
In accordance with Article 88 (3) (former Article 93 (3)) of the EC Treaty, the Commission must be informed in good time of any plans to grant or alter aid.
As regards (new) aid which Member States may intend to grant, a preliminary procedure exists, in the absence of which no aid can be considered properly granted.
According to the judgment of the Court of Justice of 17 June 1999 in Case C295/97, the prior notification requirement applies not only to the granting of aid but also to its alteration. That requirement must also be complied with where the Commission considers that the aid is incompatible, in whole or in part, with European law and the Member State amends the previous system by replacing it with a new system of aid.
The above requirement may be fulfilled in the manner specified by the Commission in its decision ordering the prohibited aid to be abolished. If the requirement is not met, the aid in question will once more become unlawful.
Section 32 of the Law of 24 March 1987 was amended by section 185 of the Law of 21 December 1994, more particularly in relation to the arrangements for financing the animal health and production fund. In respect of domestic animals, section 32 ratifies, with effect from 1 January 1988, the royal decrees of 11 December 1987 relating to compulsory contributions, as amended; in respect of imported animals, it orders the reimbursement of contributions paid from that date onwards, subject to certain conditions.
While it was partly intended to bring the system of aid into line with the Commission Decision of 7 May 1991, the above-mentioned legislative amendment simultaneously introduced a new basis for the contributions and replaced the old system of aid with a new one.
In its Decision of 7 May 1991 the Commission gave Belgium two months from the date on which the decision was notified in which to inform it of the measures taken to give effect to the decision.
The judgment noted that neither the original system of aid nor the alteration of that system had been notified to the Commission.
In finding that the altered system should have been notified to the Commission and that, in the absence of such notification, the sums in question had been wrongly paid, the judgment was not in breach of the legal provisions in this sphere relied on by the appellant...”
Other companies in turn brought proceedings against the Belgian State seeking repayment of the contributions in question. When the courts of first instance allowed the applications, the State appealed against the judgments before the Antwerp Court of Appeal. The latter decided to refer several questions to the Court of Justice of the European Communities for a preliminary ruling.
In a judgment of 21 October 2003 the Court of Justice replied in substance as follows:
(i) Article 93(3) of the EC Treaty (current Article 88(3)) must be interpreted as precluding, in circumstances such as those in the main proceedings, the levying of charges which finance specifically an aid scheme that has been declared compatible with the common market by a Commission decision, in so far as the charges were imposed retrospectively in respect of a period prior to the date of that decision;
(ii) the Commission Decision of 9 August 1996 relating to aid measure No. N 366/96 did not approve the retrospective application of the Law of 23 March 1998 on the establishment of a budgetary fund for the health and quality of animals and animal products.
COMPLAINTS
1. Relying on Article 6 § 1 of the Convention, the applicant company complained that sections 14 and 23 of the Law of 23 March 1998 establishing a budgetary fund for the health and quality of animals and animal products violated its right of access to a court and the principle of equality of arms. In enacting the Law the legislature had, in its opinion, interfered in an unacceptable manner in the proceedings of an economic nature between the company and the Belgian State. The royal decree of 11 December 1987, the lawfulness of which it had challenged, had effectively been repealed with retrospective effect from 1 January 1988, and its content - like that of the subsequent decrees – had been reproduced in section 14 of the Law, also with retrospective effect from 1 January 1988. As a result of the legislature's actions, courts before which proceedings had been brought were prevented from ruling, in accordance with Article 159 of the Belgian Constitution, on the lawfulness of the royal decree in question. Consequently, the action brought by the applicant company was deprived of any effect.
In the view of the applicant company, the approach adopted also amounted to a violation of Article 6 § 1 of the Convention taken in conjunction with Article 14. By giving the content of the royal decree of 11 December 1987 the status of a legislative provision ex post facto, the legislature had effectively introduced an unjustified difference in treatment between those citizens affected by the provision and the rest of the population, as only the former were deprived of the judicial safeguards enshrined in particular in Article 159 of the Constitution.
2. Relying on Article 1 of Protocol No. 1, the applicant company further submitted that the Law of 23 March 1998 constituted unjustified interference with its right to peaceful enjoyment of its possessions, as it abolished with retrospective effect the claim which the applicant company believed it had against the Belgian State on the basis of the unlawful nature of the royal decree of 11 December 1987.
In the view of the applicant company, the approach adopted also amounted to a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention. By giving the content of the royal decree of 11 December 1987 the status of a legislative provision ex post facto, the legislature was preventing courts from ruling on the lawfulness of the royal decree in question in accordance with Article 159 of the Belgian Constitution. The result was an unjustified difference in treatment between those citizens affected by the provisions in question and the rest of the population, the former being deprived of the right to secure repayment of the sums wrongly paid.


ITEMID: 001-101064
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: SYDANMAKI v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Esko Ilmari Sydänmäki, is a Finnish national who was born in 1948 and lives in Helsinki. He was represented before the Court by Mr Kari Uoti, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In October 1974 the applicant became a civil servant employed by the Bank of Finland (Suomen Pankki, Finlands Bank; henceforth “the Bank”) where he worked until his retirement.
On 17 June 1998 the Trustees of the Bank (pankkivaltuusto, bankfullmäktige) amended the pension rules of the Bank so that men who had entered into the service of the Bank prior to 3 May 1977 and who continued their employment until retirement were also granted an opportunity to lower their retirement age from 60 to 55-59. For each month the retirement age was lowered, the pension accrued prior to 1 January 1994 was reduced by 0.33%. At its highest the early retirement reduction was 19.80% for five years. Under the pension rules of 13 December 1966 the retirement age for women who had entered the service of the Bank prior to 3 May 1977 was 55 and no reductions applied to pension accrual.
Prior to his retirement the applicant applied for a preliminary ruling on how his pension would be calculated. His application was rejected by the Bank's Directorate (johtokunta, direktionen) on 22 September 2004 as giving such a decision was not considered particularly important to the applicant. On 28 December 2004 the applicant was granted a pension, which was reduced by 15.84% for the 231 months prior to 1 January 1994 on the ground that he had retired at the age of 56. The pension so calculated amounted to 2,529 euros (EUR) per month.
On 26 January 2005 the applicant petitioned the Bank's Directorate, requesting rectification so that no reduction should apply when his pension was calculated. He also requested that the decision of 17 June 1998 be overturned as it had been taken by a body which was not competent and was contrary to Article 119 (now 141) of the EC Treaty. He underlined that his petition was not to be interpreted as an appeal to the Insurance Court (Vakuutusoikeus, Försäkringsdomstolen) against the decision to grant him a pension. On 3 June 2005 the Bank's Directorate dismissed the applicant's petition without examining the merits since it had no competence to review the lawfulness of the impugned decision and the issue could not be rectified.
It appears that the applicant did not appeal to the Insurance Court against any of the decisions of 28 December 2004 and 3 June 2005. However, he lodged an appeal with the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the decision of 3 June 2005. On 23 August 2006 the Supreme Administrative Court rejected the appeal. It found that the decision by the Trustees of the Bank in 1998 was not a decision that could be rectified. Therefore, and as there was no indication of partiality and as the European aspects relied on by the applicant were irrelevant for the outcome of the case, it found that there were no reasons to alter the finding of the Bank's Directorate.
Having received the decision, the applicant requested a copy, inter alia, of the referendary's written proposal to the judges. On 28 August 2006 the referendary sent copies of the requested documents, save for the confidential parts of her proposal which under Chapter 1, section 7, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) formed part of the deliberations of the court. On 30 August 2006 the applicant maintained that he had a right to receive a complete copy of the latter document and demanded that his request be transferred to the chancellery's session for decision. On 8 November 2006 the applicant's request was rejected in the chancellery's session as he had not shown that he needed the said part of the document which formed part of the court's deliberations and which could therefore be produced only exceptionally.
On 15 March 2007 the Supreme Administrative Court dismissed the applicant's request of January 2007 for the said document to be sent directly to the European Court of Human Rights as such an application for documents fell outside the scope of the Act on the Openness of Government Activities (laki viranomaisten toiminnan julkisuudesta, lagen om offentlighet i myndigheternas verksamhet). The applicant's subsequent request for copies of the proposals underlying these decisions was rejected as no written proposals had been drawn up. On 4 April 2007 the applicant requested a fresh decision, arguing that the previous one was poorly reasoned. He also alleged partiality. The Supreme Administrative Court interpreted his petition as an extraordinary appeal, which it rejected on 1 July 2008 as ill-founded.
The applicant's request for a copy of the proposal underlying the decision was granted on 8 July 2008 save for those parts of the court's deliberations which were to be kept secret under the Publicity of Administrative Court Proceedings Act (laki oikeudenkäynnin julkisuudesta hallintotuomioistuimissa, lagen om offentlighet vid rättegång i förvaltningsdomstolar; Act no. 381/2007). On 11 July 2008 the applicant renewed his request, arguing that the contents might affect the proceedings before the European Court of Human Rights. On 26 August 2008 the Supreme Administrative Court rejected his request under the said Act.
The applicant was granted a separate old age pension as of 1 January 2005 at the age of 56, amounting to EUR 181 per month, from the State Treasury (Valtiokonttori, Statskontoret) due to his service in the Central Statistical Office during the period 1970 to 1974. No reduction for the accrual prior to 1 January 1994 was applied.
The applicant petitioned the Chancellor of Justice (oikeuskansleri, justitiekanslern) and the Parliamentary Ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman). On 31 January 2007 and 21 November 2007 the Deputy Chancellor of Justice and the Deputy Parliamentary Ombudsman respectively found no reason to take measures. On 17 December 2007 the Deputy Parliamentary Ombudsman found no reason to re-examine the case. On 4 September 2008 the applicant was informed by the Office of the Parliamentary Ombudsman that his case would not be re-examined in the absence of new facts relevant to the case.
In spring 2008 the applicant petitioned the Bank of Finland in order to obtain information for the proceedings before the European Court of Human Rights. The Bank produced certain information such as the names of employees affected by the 1998 amendment. However, it refused to produce information about their retirement age, their addresses, telephone numbers, bank account details and so on. It is not known whether the applicant appealed to the Supreme Administrative Court.
Meanwhile, on 25 June 2003 the Bank of Finland granted Mr K.H. a pension and applied, in accordance with its practice, the early retirement reduction as described above. On 26 October 2004 the Supreme Administrative Court dismissed the applicant's appeal against the Bank's decision in the case of Mr K.H. without considering its merits as the decision did not directly affect him. In any event, an appeal against a pension decision lay with the Insurance Court, not the Supreme Administrative Court. On 25 October 2005 the Insurance Court (decision no. 7215/2003/3801) rejected Mr K.H.'s arguments that the early retirement reduction was discriminatory and in breach of Article 141 of the EC Treaty and the Finnish Constitution. However, it amended the pension decision by granting Mr K.H. a pension right amounting to 60% on the ground that he fulfilled the so-called pension guarantee requirement as he had completed 30 years of service. The Insurance Court has ruled in a similar case also on 2 March 2010 in the case of Mr P.K.
Meanwhile, following the judgment of 12 September 2002 by the European Court of Justice in the case of Pirkko Niemi C-351/00 in which it was found that the fact that the applicant's pensionable age was set higher than that of men doing the same work was in breach of the principle of equal pay laid down by Article 141 of the EC Treaty, the Insurance Court reached the same conclusion in its decision concerning P.N. on 25 February 2003. The person concerned was a former employee of the Finnish military service.
Article 6 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides that:
“No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person.”
Article 15 of the Constitution provides that the property of everyone is protected.
Section 7 of the Act on Equality between Women and Men (laki naisten ja miesten välisestä tasa-arvosta, lagen om jämställdhet mellan kvinnor och män; Act no. 609/1986) prohibits both direct and indirect discrimination based on gender. According to its section 7, subsection 2, direct discrimination means, inter alia, putting women or men in an unequal position on the basis of gender. Section 8, subsection 1, point 3 of the same Act provides that:
“An employer's conduct constitutes discrimination prohibited under the Act if the employer applies the pay or other terms of employment in such a way that one or more employees, because of their gender, find themselves in a less favourable position than one or more other employees performing the same work or work of equal value in the employer's service.”
Section 11 of the Act on the Bank of Finland (laki Suomen Pankista, lagen om Finlands Bank; Act no. 214/1998) provides, inter alia, that:
“The Trustees of the Bank shall confirm the Bank of Finland's Pension and Survivors' Pension Regulations and issue regulations concerning the management of the Bank's pension liability, upon proposal of the Directorate.”
The Act does not provide any means to appeal against the decisions of the Trustees of the Bank.
Section 9 of the Act on Officials of the Bank of Finland (laki Suomen Pankin virkamiehistä, lagen om Finlands Banks tjänstemän; Act no. 1166/1998) provides the following:
“The Bank of Finland shall treat all officials in its service equally to ensure that no-one is unjustifiably treated differently because of his origin, citizenship, gender, religion, age, political or union activities, or on other comparable bases.
The Bank of Finland shall not forbid an official to join or belong to an association or pressure him to join a particular association, nor forbid him to resign from such.”
Section 33, subsections 1-3, of the same Act provide the following:
“An official who considers that the Bank of Finland has not rendered him the financial benefit due to him from his employment relationship may submit a written request for rectification to the Board. No request for rectification can be made in a matter that falls within the jurisdiction of the Labour Court, unless the Labour Court has decided not to settle the matter under section 1, subsection 2, of the Act on the Labour Court (646/1974).
Rectification of a decision by which the Bank of Finland has issued an official with a warning, laid him off or given him notice, cancelled the service relationship, suspended him from office or decided on a matter concerning his pension contribution or secondary occupation, as well as a decision referred to in paragraph 6 on a request for rectification referred to in paragraph 1 can be requested by appealing to the Supreme Administrative Court in accordance with the provisions of the Administrative Judicial Procedure Act (586/1996). A matter referred to in this paragraph shall be treated as urgent by the Supreme Administrative Court.
Decisions of the Board concerning pension can be appealed against to the Insurance Court. Otherwise, as regards a request for rectification on pension, the applicable provisions of the Act on State Pensions (280/1966) shall apply.
Section 58, subsection 1, of the same Act provides that
“[t]he right of an employee of the Bank of Finland to a pension paid from the Bank's funds is determined, to the extent applicable, on the same grounds as state pension cover. State pension cover refers to the right to pensions, survivors' pensions and other benefits which are payable from the state's funds and the content of and eligibility for which are regulated by the State Pensions Act and the related legislation. Pensions and survivors' pensions are granted by the Directorate of the Bank.”
More detailed provisions on the payment of pensions and survivors' pensions and pension cover in other respects are contained in the Bank's Pension and Survivors' Pension Regulations (Suomen pankin eläke- ja perhe-eläkesäännöt; pensionsstadgan och familjepensionsstadgan för Finlands Bank). The Trustees of the Bank of Finland, elected by the Parliament, adopt the Regulations on the basis of the Directorate of the Bank's proposals.
Section 3, subsection 1, of the Pension Regulations with its earlier wording, as amended on 14 March 1972, read as follows:
"Eligibility for old age pension requires that the beneficiary has completed his or her service and reached the age of 65 years, or 60 years if the beneficiary, immediately before retirement, has been serving the Bank of Finland or its Security Printing House for at least one month, and 55 years in the case of a female employee. A beneficiary who retires as a member of the Directorate is entitled to old age pension irrespective of age.”
The lower retirement age of 55 years for women was applied until 3 May 1977, when the amendment of Section 3, subsection 1, of the Pension Regulations entered into force. With this amendment the retirement age of women was raised from 55 to 60 years but the retirement age of men remained unchanged, that is, 60 years. The amendment took effect as from its date of adoption so that it was applicable to beneficiaries whose service relationship with the Bank began on 3 May 1977 or thereafter.
For the equalisation of the retirement ages, men were granted the right to opt for a lower retirement age. On 17 June 1998 the Trustees of the Bank amended the entry into force provision of the Pension Regulations in the following manner:
"However, as of 1 January 1994, the earlier provision is applicable both to women who have entered service in the Bank prior to 3 May 1977 and to men who have entered service in the Bank before that date.
The beneficiary has the right to choose between the lower retirement age, based on the earlier provision, or the higher retirement age. If a man chooses the lower retirement age, the amount of his pension accrued on the basis of the duration of his service is, in respect of the service prior to 1 January 1994, reduced by 0.33 percentage units per month of earlier retirement."


ITEMID: 001-110675
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GENNADIY MEDVEDEV v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance;Free legal assistance)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant was born in 1960 and is currently serving a prison sentence in the Kemerovo Region.
6. On 9 March 2001 the applicant was arrested on suspicion of murder. He was remanded in custody pending the investigation and trial. According to the applicant, from 9 March to 4 May 2001 no medical assistance was available to him and from 12 March to 15 June 2002 he was detained in appalling conditions.
7. On 3 May 2002 the applicant broke a toe on his right foot. The fracture caused him severe pain which allegedly rendered him unfit to attend the trial on 3 and 6 May 2002.
8. On 15 July 2002 the Kemerovo Regional Court found the applicant guilty of murder, abduction, disturbance of the peace and illegal possession of firearms, and sentenced him to eighteen years’ imprisonment. Both the applicant and his lawyer submitted statements of appeal.
9. On 5 September 2002 the applicant was allegedly beaten by guards. He complained to the prosecutor but to no avail.
10. On an unspecified date the Supreme Court of the Russian Federation dismissed the applicant’s request for the appointment of a lawyer to represent him before the appellate court, noting that “the applicable rules of criminal procedure [did] not provide for the appointment of a public defender to represent a defendant in appeal proceedings”.
11. On 24 April 2003 the Supreme Court acquitted the applicant on the charge of disturbance of the peace, upheld the remainder of the verdict and reduced the applicant’s sentence to seventeen and a half years’ imprisonment. The applicant was not present or represented during the hearing. The prosecutor was present and made submissions to the court.
12. On 14 May 2004 the Yurga Town Court reclassified the applicant’s conviction in accordance with the latest amendments to the Russian Criminal Code, reducing his sentence to seventeen years’ imprisonment.
13. On 16 November 2007 the Deputy Prosecutor General of the Russian Federation asked the Presidium of the Supreme Court of Russia for a supervisory review of the judgment of 24 April 2003 in view of a violation of the applicant’s right to be represented by a State-appointed lawyer before the appellate court.
14. On 28 December 2007 the Supreme Court granted the prosecutor’s request and remitted the matter for further consideration to the Presidium of the Supreme Court.
15. On an unspecified date the Supreme Court appointed counsel P. to represent the applicant in the supervisory-review proceedings.
16. On 12 March 2008 the Presidium of the Supreme Court quashed the judgment of 24 April 2003 by way of supervisory review and remitted the matter for fresh consideration. The court expressly acknowledged the violation of the applicant’s right to legal assistance. The applicant did not participate in the hearing. Counsel P. was present and made submissions to the court.
17. On 27 June 2008 the Town Court again reclassified the applicant’s conviction in accordance with the latest amendments to the Russian Criminal Code, reducing his sentence by six months.
18. On 1 July and 1 October 2008 the Supreme Court received additional statements of appeal from the applicant whereby he also requested the court to appoint a public defender to represent him. The court appointed counsel K. On 15, 16, 22 and 24 September 2008 counsel K. studied the case-file.
19. The applicant requested to take part in the appeal hearing in person. On 16 July 2008 the Supreme Court granted him leave to attend in person and ordered the applicant’s temporary transfer to a remand prison in Kemerovo (3,742 kilometres away from Moscow) to ensure his participation in the appeal hearing by means of video link.
20. On 1 October 2008 the Supreme Court held the appeal hearing. The applicant participated in the hearing by means of a video link. Counsel K. attended the hearing and made submissions to the court. According to the applicant, he was provided with an opportunity to communicate with counsel K. prior to the hearing (he did not provide further detail as regards the time and means of such communication). The court acquitted the applicant on the charges of disturbance of the peace and illegal possession of firearms, upheld the remainder of the verdict and reduced the applicant’s sentence to sixteen years’ imprisonment. The court further granted counsel K.’s application for reimbursement of his fee and awarded him 5,967.5 Russian roubles (RUB) – approximately 165.4 euros (as per the Euro foreign exchange reference rate of the European Central Bank at 1 October 2008) – to be paid by the applicant.
21. The applicant provided the following description of the appeal hearing:
“The appeal hearing was conducted by means of a video link. The video link was of poor quality. The image [quality] remained unchanged, but there were interruptions in the sound and not everything that was said was understandable. ... After the court opened the hearing I was invited to make a statement. Then I asked the court to admit to the case-file the documents that proved my innocence. These were the documents showing that secretary G. had not been present at a number of trial hearings and that my lawyer had been absent from one of the court hearings. Despite that, the court hearing had not been adjourned and the court had proceeded with the examination of the witnesses. The [trial] court had not respected my right to defend myself and had proceeded with the examination of the case when I had a fracture [of the toe]. The court interrupted me, saying that I was deliberately delaying the proceedings and that they had other cases to consider after mine.
After the judge rapporteur had presented the case I was invited to present my complaint. However, when I started reading out my statement of appeal the judge interrupted me, saying that those issues had been already considered in the previous appeal hearing or had been submitted in the statements of appeal. The court heard the prosecutor and [my] counsel, who failed to present any argument in my defence. He merely suggested that the charges [of illegal possession of firearms and disturbance of the peace] should be dropped owing to the expiry of the statutory time-limit for prosecution or decriminalisation of the offence. Then the judges exited to the deliberations room without giving me a chance to make my final statement. When the judges returned and pronounced their decision, I realised that neither counsel, the prosecutor, nor the court had studied my case. They were simply giving the appearance of a hearing.”
22. According to the applicant, in 2001 numerous newspapers and television channels covered his case. In one article the applicant was referred to as “a gang leader”. The regional officials who were quoted in the articles expressed the opinion that the applicant was guilty of murder, thus appearing to rule out the possibility that he had acted in self-defence.
23. For a summary of the relevant domestic provisions and practice, see the case of Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 31-39, 2 November 2010.
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-1
6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-80303
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF SALDUZ v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;No violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings
TEXT: 4. The applicant was born in 1984 and lives in Izmir.
5. On 29 May 2001, the applicant was arrested by police officers from the anti-terrorism branch of the Izmir Security Directorate on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the PKK (the Kurdistan Workers’ Party, an illegal organisation). The applicant was also accused of hanging an illegal placard on a bridge in Bornova on 26 April 2001.
6. On 30 May 2001 the police officers took a statement from the applicant in which he admitted the charges.
7. On 1 June 2001 the applicant was brought before the public prosecutor and then the investigating judge. Before both officials, the applicant denied the content of his police statement, alleging that it had been extracted from him under duress. The same day, the investigating judge remanded the applicant in custody.
8. On 11 July 2001 the public prosecutor at the Izmir State Security Court filed an indictment with the same court, accusing the applicant of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and Section 5 of Law no. 3713 (the anti-terrorism law).
9. On 5 December 2001 the Izmir State Security Court convicted the applicant as charged and sentenced him to four years and six months’ imprisonment. This sentence was then reduced to two and a half years’ imprisonment as the applicant had been less than eighteen years of age at the time of the offence.
10. When delivering its judgment, the Izmir State Security Court had taken into consideration the statements which the applicant had made to the police, the public prosecutor and the investigating judge, as well as his co-defendants’ testimony before the public prosecutor. The court noted that the latter had given evidence that the applicant had organised them to participate in the demonstration. The court further took note of the expert report which suggested that the applicant’s handwriting was identical to that on the placard. The court also noted that, according to the arrest report drawn up by the police, the applicant had been among the people who dispersed after the demonstration.
11. On 27 March 2002, the Principal Public Prosecutor at the Court of Cassation submitted his written opinion to the 9th Chamber of the Court of Cassation, in which he had argued that the Chamber should uphold the judgment of the Izmir State Security Court.
12. On 10 June 2002 the 9th Chamber of the Court of Cassation confirmed that judgment.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 6
NON_VIOLATED_PARAGRAPHS: 6-3
NON_VIOLATED_BULLETPOINTS: 6-3-c


ITEMID: 001-60157
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF ZIEGLER v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings
JUDGES: Georg Ress
TEXT: 9. The applicants are Swiss citizens born in 1950 and 1957, respectively. The first applicant lives in Siebnen, the second in Lachen in Switzerland.
10. In 1994 the applicants announced their intention to construct a subterranean garage in Lachen. The neighbours complained, arguing that certain prescribed boundary distances between the real properties had not been observed. Their objection was dismissed by the March District Court (Bezirksgericht) on 19 July 1994. The court awarded the applicants, as defendants, 8,000 Swiss francs (CHF) for procedural expenses (Prozessentschädigung), as the plaintiffs, their neighbours, could themselves have verified that the distances in question had been respected. The court costs of CHF 1,149.20 were imposed on the plaintiffs.
11. The neighbours filed an appeal (Berufung) which the Cantonal Court (Kantonsgericht) of the Canton of Schwyz dismissed on 4 July 1995. In the operative part of its decision, the court took formal note of the applicants' commitment that no changes would be made within fifty centimetres from the border separating the real properties. The court also ordered the applicants to pay the plaintiffs CHF 4,000 as procedural expenses for the first-instance proceedings and CHF 4,000 for the appeal court proceedings, and imposed on the applicants the first-instance court costs as well as appeal court costs amounting to CHF 3,450.50. The court found that the applicants' plans had been incomplete and even incorrect and the terms employed had been vague, thus prompting the plaintiffs to uphold their objection. The uncertainty brought about by the applicants' conduct contrary to good faith had actually provoked the procedures before the two instances.
12. On 9 October 1995 the applicants filed a public law appeal (staatsrechtliche Beschwerde) with the Federal Court (Bundesgericht), complaining, first, about the imposition of costs, which in their view was disproportionate as the Cantonal Court had dismissed the plaintiffs' claims. There had been no obligation to submit plans, and neither the first nor the second instance had considered it necessary to ask for further plans. It was unclear to what extent the terms used had been imprecise, and indeed, the objections raised by the plaintiffs had a priori been completely unfounded. On the whole it appeared disproportionate that, for a matter of a value of CHF 10,000, the applicants were now asked to pay CHF 12,000 for completely unnecessary proceedings. Second, the applicants complained that the Cantonal Court had in its judgment incorrectly taken note of their commitment which in fact had not been requested by the parties in the proceedings.
13. The Federal Court transmitted the applicants' public law appeal for observations to both the Cantonal Court and the plaintiffs.
14. The Cantonal Court sent its reply, running to seven pages, together with the case-file, to the Federal Court on 16 November 1995, requesting the latter to dismiss the applicants' public law appeal. In its submissions it explained why the applicants' plans had been vague and that precise early information would have been necessary. The court continued that it was “quite typical for the (applicants') mentality” (geradezu typisch für die Mentalität) that they had submitted sketches of plans only after objections had been filed, since they knew that there were tensions with their neighbours and that the latter would object. Other remarks of the applicants were misplaced (deplaziert). The Cantonal Court furthermore submitted that it had been competent to formulate conditions in its judgment, in particular as to changes in the border area between the properties.
15. The plaintiffs filed their observations of five pages on 4 December 1995. Therein, they commented on the judgment of the Cantonal Court, and they requested the Federal Court to dismiss the applicants' public law appeal.
16. The Federal Court transmitted the various observations to the applicants' lawyer who, on 11 December 1995, replied:
“In the above-mentioned case I thank you for serving the observations. I should like to ask you to let me have the case-file for consultation (which in the cantonal proceedings could not be fully undertaken, as the case-file presented by the Cantonal Court was incomplete).
In its written 'reply' (of 7 pages), the lower court adds to its decision numerous new grounds as well as amendments to its reasoning. They are hardly objective and aim at twisting the facts in a manner not to be expected from a court. Pursuant to S. 4 § 1 of the Swiss Federal Constitution and Article 6 § 1 of the Convention, the applicants request the opportunity to comment on the 'reply'.”
17. By letter of 13 December 1995 the Federal Court replied:
“You are objecting against inadmissible statements in the observations of the Cantonal Court and you request transmittal of the case-file.
At the present stage of the proceedings, the parties can no longer exercise any rights. Therefore, and as we need the case-file for our decision, we cannot comply with your request for consultation. Inadmissible statements of the Cantonal Court will be disregarded ex officio.”
18. On 7 February 1996 the Federal Court dismissed the applicants' public law appeal, the decision being served on 9 April 1996. The judgment noted at the outset that both the Cantonal Court and the opposing party had requested dismissal of the applicants' public law appeal. In its judgment the Federal Court then declared inadmissible as being insufficiently substantiated the complaint that the Cantonal Court had incorrectly taken formal note of the applicants' commitment that they would not make changes within 50 centimetres from the border line separating the two properties. In respect of the complaints about the imposition of costs, the Federal Court noted that the applicants, by expressing the wish to construct the garage, had in fact unintentionally obliged their neighbours to institute proceedings and to defend their property rights, compliance with which had at the outset not sufficiently transpired from the plans. The Cantonal Court was entitled to combine the dismissal of the neighbours' objection with a clause that no changes could be made in the border area between the properties. On the whole, a person wishing to construct became responsible for provoking litigation if he did not from the beginning establish clearly that other persons' rights would not be affected.
19. Section 93 of the Federal Judiciary Act (Organisationsgesetz) envisages the following procedure after a public law appeal has been filed:
“Exchange of Statements
1. If the court orders an exchange of statements, it transmits the appeal to both the authority from which the contested decision or act emanated and to the opposing party as well as any other persons involved. They are given an adequate time-limit to submit the case-file and to file their replies.
2. If the reasons for the decision transpire only from the authority's observations, the appellant may be granted a time-limit to complement his appeal statement.
3. Only exceptionally will there be a further exchange of statements.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-5693
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: CARESANA v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Italian citizen, born in 1938. He is currently detained in Sainte-Geneviève-des-Bois (France) with a view to his extradition to Italy. He is represented before the Court by Mr Luc-Philippe Febbraro, a lawyer practising in Aix-en-Provence.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 2 July 1993 the applicant was arrested at Budapest airport under a warrant for his arrest, dated 12 December 1992, on charges of inter alia obtaining property by deception. The arrest warrant had been issued by Interpol at the request of the West Yorkshire Police Fraud Squad.
On 20 October 1993 the applicant was extradited to the United Kingdom and was remanded in custody in Armley Prison, Leeds.
The criminal charges brought against the applicant concerned events which occurred at the end of May 1990 resulting in a loss of 1,770,994.84 US dollars to the National Westminster Bank at Leeds. The applicant, who was highly experienced in shipping, banking and international trade, was suspected of having purported, with the assistance of others, to be able to supply a large confinement of sugar to a Saudi Company. There was no sugar, but the applicant by selecting a vessel about to sail from Brazil to Alexandria with a cargo of sugar and, with reference to that vessel and its cargo, forged the documentation which the National Westminster Bank required to support the letter of credit before it would advance the money. Because the bank’s payment was made before the due date, it was made before the absence of a sugar cargo could become apparent.
In 1991, a Greek national, Mr P., who according to the prosecution was the applicant's agent, pleaded guilty to obtaining from the National Westminster Bank a bill of exchange by deception, and to procuring the execution of a valuable security by deception. He received a four-year prison sentence.
Soon after his arrival in the United Kingdom the applicant engaged and personally paid for the services of a large firm of primarily commercial law solicitors. He secured the payment of GBP 105,114.11 into the solicitors’ client account between 26 October 1993 and 14 April 1994. Approximately GBP 56,000 of this amount went on fees before the middle of April 1994. A guarantor, Ms D., had also pledged the sum of GBP 50,000. Ms D. subsequently agreed to increase the amount pledged to GBP 100,000 and gave security for her guarantee in the form of a mortgage on a residence in Genoa, Italy, where she lived together with the applicant. The applicant had provided the money for Ms D. to purchase the property from her former husband. The value of the property was estimated to be GBP 500,000. It was not subject to a mortgage.
On 14 April 1994 the applicant signed an application form for legal aid to cover the costs of his defence. The form submitted by the applicant contained no information as to income or assets. According to the applicant he could not realise any of his assets while in detention. Since the application form was incomplete the applicant’s legal aid request could only be considered by Leeds Crown Court on 22 April 1994, the day on which the trial was due to commence. The applicant’s solicitor helped him to prepare a detailed Statement of Assets and Liabilities for submission to the Crown Court.
Meanwhile, on 21 April 1994 the applicant's Queen’s Counsel (“QC”) informed the trial judge, Judge Hoffman, at a hearing in chambers in the presence of prosecution counsel, that a successful application for legal aid would necessarily be fraudulent. The applicant’s counsel stated before the court:
“I do not think in all conscience a legal aid application can be filled in with sufficient openness to satisfy the court. It certainly could not satisfy me and, if it were to be filled in and signed as a result of my enquiries, I would feel so squalidly unhappy as to be positively professionally embarrassed and have to say to the court that I would be disinclined to act on that legal aid basis.”
The applicant’s junior counsel agreed with this view.
Counsel for the prosecution observed at the hearing that the applicant needed to be formally asked about his intentions concerning his legal representation, because once his defence counsel had withdrawn, he would be entitled to have alternative counsel. Counsel for the prosecution further observed that it would be helpful if the court record mentioned the applicant’s views about this since he would not like it to be said later that the applicant misunderstood the situation and felt that he was obliged to go on and defend himself and had therefore been put at a grave disadvantage when other possible options were open to him.
The Statement of Assets and Liabilities finally submitted to the Crown Court disclosed that the applicant had the following assets:
- The applicant was the owner of a shoe factory in Italy which, according to him, was no longer profitable.
- The applicant had opened a bank account in Hungary into which he had paid approximately 100,000 US dollars, the purpose of which was to invest in a shoe factory there. However, following his arrest in Hungary, the money was not returned to him. He had instructed his lawyers in Hungary to try to recover this money on his behalf.
- The applicant had an interest in three football teams in Italy. He had received an offer for one of the teams of some GBP 200,000. He was reimbursed 30,000,000 Italian lire (ITL) in December 1993, after having made a deposit of ITL 300,000,000 for a second football team, and he did not make any money from the third football team.
- The applicant owned a Mercedes Spider which, according to his estimation, was worth GBP 15,000.
- The applicant’s Rolex watch originally worth about GBP 3,000 had been damaged and was therefore worthless. His Cartier watch was worth about GBP 3,500. All of this jewellery was in Italy.
- A house in which the applicant lived in Genoa, Italy, and which was worth about GBP 500,000 was owned by Ms D., the woman with whom he lived and the above-mentioned guarantor. The applicant had personally paid approximately ITL 100,000,000 for the house some ten years ago.
- A large flat in the most expensive area of Genoa, where the applicant’s ex-wife and daughter lived, was worth about GBP 700,000. It was owned by a company. His daughter was the holder of the shares and Ms D. was the manager of the company. The applicant was unable to remove the bank charges on this property.
- The applicant had bought a country property worth approximately GBP 250,000. There was a mortgage on this property of approximately one third of its value. The property was registered in the name of Ms D.’s parents.
- In 1993 the applicant made an investment in 1993 of 500,000 US dollars in a warehouse in Bulgaria. Because he was detained it had not been possible to arrange for any reimbursements.
- The applicant’s only income was the money he received from his activity as a consultant and amounted officially to 150,000 US dollars per year; unofficially it was about half as much.
- The total cost of university fees which he had to pay was approximately GBP 30,000 per year. Maintenance to his ex-wife was about GBP 1,500 per month.
- Since his arrest the applicant had no income at all and large sums of arrears had built up. In the period from 20 October 1993 to 6 April 1994, Ms. D. and his business associates had paid a total of GBP 105,000 to his English solicitor.
The Government drew attention to the fact that the Statement of Assets and Liabilities made no mention of the sum of GBP 40,000 which remained in the applicant’s solicitor’s client account. Nor was any reference made to the Ms D.’s guarantee to provide GBP 50,000 towards the cost of the applicant’s defence. The Government further stated that the Statement of Assets and Liabilities made mention of the applicant having in 1995 (date incorrectly stated by the Government, the correct year being 1985) at least 100 million US dollars in bank accounts outside Italy. The applicant replied that there is no evidence whatsoever of his having any such accounts at the time referred to by the Government.
The applicant claimed that by 1994 what was left of his property was no longer at his disposal.
In a letter accompanying the submission to the Crown Court, dated 22 April 1994, the applicant’s solicitors stated, inter alia:
“… We understand that if a defendant is assessed to have more than £3000 worth of capital that a court will order that he pay a contribution to any legal aid; it would appear on the details that Mr Caresana supplied to us yesterday that he has more than £3000 in capital in Italy.
We are unable to verify any of the valuations given by Mr Caresana but would stress that Ms D. does not share the optimistic view of Mr Caresana as to the assets’ worth.
In the circumstances, it appears to us that if any legal aid certificate were granted by the court, due to the serious and complex nature of the case, it would involve a substantial contribution being ordered. From our own experience of the case, we are of the opinion that whilst Mr Caresana remains in custody at Armley Prison he would not be able to satisfy any such condition.
It is regrettable that in the circumstances my firm is not prepared to represent Mr Caresana without private funding. Counsel cannot represent Mr Caresana unless their fees are met. It would appear that he is unlikely to obtain a legal aid certificate and therefore in the circumstances the only way forward would appear to be for Mr Caresana to represent himself.
… Mr Caresana knows the case very well. He is an intelligent individual and whilst he has no knowledge of English legal procedure, he has an in-depth knowledge of the facts of the case. Given all assistance by the court, he should be able to conduct his own Defence.”
At the hearing on the legal aid application before Judge Hoffman in chambers on 22 April 1994, the applicant’s solicitor described the difficulties which the applicant was experiencing in procuring funding for his defence either through the sale of his own assets or other means. The solicitor informed Judge Hoffman that an unsuccessful attempt had been made to sell Ms D.’s flat in Genoa, Italy. As to the possible sale of one of the applicant’s football clubs, the solicitor observed that the applicant was concerned as to whether the offer he received of GBP 200,000 was genuine and that in any event the club was saddled with debts in excess of that sum. Judge Hoffman referred the applicant’s solicitor to Regulation 26 of the Legal Aid in Criminal and Care Proceedings 1989 according to which representation shall not be granted to a person for any purpose unless it appears that his financial resources are such that he requires assistance in meeting the costs of the defence. Judge Hoffman asked the solicitor:
“... would you contend that [the applicant’s] financial resources are such that he requires assistance in meeting the costs of his defence; or would you recognise that really is straining to the limit the words of the regulation?”
The applicant’s solicitor replied:
“I would say we would be straining the regulation. I have no doubt about that ... ”
In deciding to reject the applicant’s request for legal aid, Judge Hoffman pointed out that he was very reluctant to embark upon a trial involving an unrepresented defendant and was “positively straining to find a way to grant [the applicant] legal aid”. However, in his opinion the applicant’s Statement of Assets and Liabilities showed that he had substantial assets upon which he could call if necessary. In the judge’s opinion, the applicant’s solicitor was unable to provide any satisfactory answers about the applicant’s assets and even the solicitor seemed to acknowledge that it was unlikely that legal aid would be granted.
Immediately before the trial opened Judge Hoffman, in the absence of the jury, informed the applicant that if he needed his assistance in any way he should ask for it and that if he wanted to raise any points in the absence of the jury this facility could be granted to him.
Between 22 April 1994 and 4 August 1994 the applicant stood trial at Leeds Crown Court. The applicant represented himself. During the trial 850 documents were submitted to the court and 25 witnesses heard. The transcript of the summing up, which was spread over eight working days, runs to approximately 800 pages.
On 4 August 1994 the jury found the applicant guilty of all the charges, namely theft, obtaining property by deception, procuring execution of a valuable security by deception and using a false instrument with intent. The judge sentenced him to a total of nine-years’ imprisonment.
The applicant appealed against his conviction and sentence to the Court of Appeal.
In a letter dated 9 September 1994, the applicant’s new solicitors, Messrs Harrison Bundey & Co., asked for legal aid in connection with the appeal.
By letter dated 22 September 1994 a case lawyer in the Criminal Appeal Office forwarded a Statement of Means for completion by the applicant.
On 14 October 1994 the Statement of Means was returned, signed and filled in by the applicant together with a handwritten memorandum which he had dictated to his solicitor. The applicant declared in the Statement of Means that he had no savings or articles of value. In the accompanying memorandum it was stated that Ms D. had no assets apart from her home and that the applicant’s Mercedes car could not be sold because the ownership documents were held by the Hungarian authorities.
In taking its decision on legal aid, the Criminal Appeal Office relied only on the documentation submitted by Messrs Harrison Bundey & Co. The latter confirmed that they did not have sight of the applicant’s earlier Statement of Assets and Liabilities; nor did they provide the Court of Appeal with the transcript of the hearing in Chambers on 22 April 1994 before Judge Hoffman. The Government are unable to confirm whether the transcript and the applicant’s Statement of Assets and Liabilities came into the possession of the Criminal Appeal Office before or after the decision to grant the applicant legal aid. The applicant maintains that the Court of Appeal was fully aware that that he had been refused legal aid for the purposes of his trial. He observes that the officials in the Court of Appeal had full access to his case file including his Statement of Assets and Liabilities.
On 9 November 1994, and on the sole basis of the applicant’s new Statement of Means and the accompanying handwritten declaration, the Criminal Appeal Office granted the applicant legal aid for a conference with counsel and for the perfection of his grounds of appeal. Legal aid was later granted for the preparation and presentation of an application for leave to appeal and for the full hearing of the appeal once leave had been granted.
The applicant produced extensive grounds of appeal (130 hand-written pages). With the assistance of his defence counsel the applicant's grounds of appeal were amended and reduced to seventeen grounds of appeal. The applicant alleged in particular that he was put at an unfair disadvantage in conducting his defence because his mother tongue was Italian. He also complained that he had no legal representation at his trial and that the trial judge refused to adjourn the trial to enable the key defence witness D. to give evidence. In the applicant’s submission, this witness, a German lawyer who speaks Italian, would have been able to prove that two witnesses had not told the truth at his trial.
The hearing before the Court of Appeal took place on 9 and 10 November 1995. The applicant was represented by counsel. On 7 December 1995 the Court of Appeal allowed his appeal against his conviction on the charge of theft but upheld the other convictions and the sentences imposed.
The Court of Appeal found that there was no substance whatsoever in the applicant's allegation that he was put at an unfair disadvantage because the trial was conducted in English. In particular, the cross-examination of a witness showed the applicant to be not only astute but also at ease in the language which he was using to formulate the questions. Furthermore, he had the services of an interpreter whom he chose not to use. The applicant’s arguments had been set out in detail and developed at considerable length in oral submissions before the Crown Court. The jury had been told more than once to make every allowance for the applicant’s lack of legal representation as well as for the fact that English was not his native language.
As to the absence of legal representation and the refusal of legal aid, the Court of Appeal observed, inter alia:
“… prosecution counsel and the trial judge took elaborate steps to assist the [applicant] to present his case. He was given advanced warning of when witnesses were to be called and procedural matters were carefully explained to him, such as the effect of formal admissions of fact, the effect of evidence being read, the need to put his case in cross-examination, and so forth. Each day the court sat at 10 am to deal with any problem which the applicant might be experiencing before the trial continued. In addition the applicant was allowed time as and when he required it. …
Originally the [applicant] had legal representation for which he paid. As the trial was about to start it became clear to the representatives that no more payment would be forthcoming. It is quite clear from the transcripts we have seen that if the [applicant’s] legal representatives had been satisfied that the [applicant] could not pay they would have supported an application for Legal Aid, but they were not so satisfied and that is what they told the judge. The [applicant] had in fact signed an application form for Legal Aid on 14 April 1994, but it contained no information as to income or assets, and boldly asserted that the Appellant could not realise any assets because he was in custody in Leeds. On 20 April 1994 his solicitor assisted him to prepare a statement of assets and liabilities, and that document we have seen. Having seen it we can understand why the [applicant’s] lawyers felt unable to support an application for Legal Aid. In those circumstances it seems to us that the trial judge had really no alternative but to proceed as he did. In general, Legal Aid cannot be granted to anybody unless it appears to the body entitled to grant it that the financial resources of the applicant are such to make him eligible for it (see section 21 (5) of the Legal Aid Act 1988). As was pointed out during the course of argument, were it otherwise a defendant of ample means facing serious charges could abuse the system with impunity. He could simply decline to pay for representation and fail to provide adequate information as to his resources confident in the knowledge that in order to facilitate the trial process Legal Aid would be granted to him … .”
As regards the witness D. whom the applicant wanted to call, the Court of Appeal pointed out that the day proposed, namely 8 July 1994, was not the only date on which this witness could have given evidence. Subsequent enquiries revealed that in reality D. was simply not prepared to attend. The suggestion that the court was not prepared to wait for him was unfounded. According to the Court of Appeal, the evidence called on behalf of the applicant did not finish until 19 July 1994, and the court in fact adjourned for a week in order to enable the applicant’s final defence witness to attend.
On 23 August 1996 the applicant was transferred from Wakefield Prison to Italy in accordance with the Convention on the Transfer of Sentenced Persons of 21 March 1983. He served his sentence first in Massa, then in Prato. He was released from prison on 5 August 1998.
On 11 December 1998 the applicant was arrested in Nice (France) and remanded in custody in Ste-Geneviève-des-Bois with a view to his extradition to Italy following his final conviction and sentence in bankruptcy proceedings in Italy.