ITEMID: 001-114133
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: DANILIUC v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant, Mr Dumitru-Aurel Daniliuc, is a Romanian national who was born in 1967. He is currently detained in Arad Maximum Security Prison. The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.
2. By a final judgment of 15 January 2003 the Arad County Court convicted the applicant of aggravated murder and sentenced him to life imprisonment. He was imprisoned in Arad Maximum Security Prison.
3. The applicant lodged his first application with the Court on 23 August 2003; however, his file was destroyed because he had not submitted a complete application pack by the required time-limit.
4. The applicant lodged a second application with the Court on 24 January 2006 alleging that he had sent the first application pack by the required time-limit as instructed by the Court’s letter of 17 September 2003, but that the Arad Prison authorities had failed to post his letter.
5. According to the information submitted by the applicant, the food provided by the Arad Prison authorities was insufficient, poorly cooked, failed to include certain food groups (meat, milk, sweets and fruit), was lacking in nutritional value, and was served in unhygienic conditions. Moreover, he did not have adequate access to drinking water because the supply was repeatedly cut off.
7. On 22 January 2008 the applicant submitted five statements by fellow inmates in support of his application, which generally back up his complaints concerning the quality of the food and lack of adequate access to drinking water.
8. In a letter of 28 September 2011 the applicant informed the Court that his phone problem had been solved and that he now had daily access to phone conversations.
9. According to the information submitted by the Government, the Arad Prison was connected to the public water network and was permanently supplied with drinking water.
10. Between 26 and 31 January 2007 the applicant was hospitalised in Jilava Prison Hospital because he was suffering from gastritis. Upon his discharge from the prison hospital he was recommended a diet suitable for his gastritis. He was given a special diet until October 2009, when this was modified to take into account the applicant’s medical condition of dystrophia which led to the wasting of his muscles.
11. The applicant’s daily diet contained 4,000 calories and included all the food groups. The food was varied and was not cooked in the same way all the time. The quality of the ingredients was checked on a daily basis by the prison’s governor, a doctor and a representative of the prisoners.
12. The prison had two rooms fitted with two and three phones, respectively. From March 2007 the phones were fitted with booths in order to preserve the confidentiality of the phone conversations. The prison wardens charged with the surveillance of the prisoners’ phone conversations had a duty to record the numbers dialled by the prisoners in a report and then to visually supervise the prisoners during the phone conversations.
13. From 2009 the Arad Prison was fitted with an electronic phone system and twenty-one phones were installed in all the detention areas. The prisoners were granted the right to use the phones on a daily basis under visual supervision.
14. On an unspecified date in 2004 the applicant brought proceedings against Arad Prison seeking a court order to force the prison authorities to provide him with copies of his prison file.
15. By a final judgment of 18 November 2004 the Arad County Court allowed the applicant’s action in part and ordered the prison authorities to provide him with copies of the covering notes of his prison file, on the ground that these contained notes made by the authorities concerning the applicant, including how much of a danger he was considered to be. The court held, with regard to the other documents contained in the file, that according to the applicant’s own statements he had already been allowed access to them and had been provided with copies. Finally, the court dismissed his request for copies of the photographs contained in the file, stating that they were photographs taken on his arrival at the prison and that he had insufficient justification for being given them.
16. On 10 April 2006, the applicant brought proceedings against the Arad Prison authorities seeking a court order to force them to stop the illtreatment he alleged he was being subjected to. He argued that, among other things, the food was insufficient and of poor quality and that he had been repeatedly taken before the domestic courts in restrictive handcuffs and chains. He also asked to be taken to a specialist for a medical examination and argued that the confidentiality of his phone conversations was not being respected in so far as his conversations could be overheard by other prisoners and the wardens and the fact that he had been compelled to inform the prison authorities of the phone numbers he wished to call prior to dialling the numbers.
17. On 19 September 2006 the applicant brought proceedings against the Arad Prison authorities seeking a court order to force them to take him for an ophthalmological examination. He argued that as a result of the poor living conditions, in particular the thick metal grille obstructing natural light from entering the “metal cage” he was living in, he had partially lost his eye sight.
18. By a final judgment of 9 November 2006 the Arad County Court allowed in part the action brought by the applicant against the Arad Prison authorities on 10 April 2006 and ordered them to ensure the confidentiality of the applicant’s phone conversations. The domestic court held that according to Article 9 § 1 of Emergency Ordinance no. 56/2003, phone conversations were to be treated as confidential. However, according to witness statements, the applicant’s conversations had taken place in a room fitted with three phones and no phone booths, in the presence of two prison wardens and other prisoners. Consequently, the prison wardens and the other prisoners present in the room might have been able to overhear the applicant’s conversations.
19. The court dismissed the remainder of the applicant’s complaints. It held that, although this was a complaint not regulated by Ordinance no. 56/2003, according to the information submitted by the Arad Prison authorities the daily diet provided to the applicant had contained 2,855 calories and had been of good quality. The applicant had not substantiated his claim that he had asked the prison medical staff to take him to be examined by a specialist. The witnesses heard by the court in respect of the applicant’s claim of being tightly handcuffed and chained were unable to report on the applicant’s individual situation and, in any event, the prison authorities reported that his restraint was prescribed by paragraph 12 (4) of Ministry of Justice Order no. 2964/C/1999, which was applicable in his case. Finally, the fact that the prison authorities had limited the duration and number of the applicant’s phone conversations did not breach any of the applicant’s rights - a practice that was allowed by Ordinance no. 56/2003.
20. By a final judgment of 14 December 2006 the Arad County Court dismissed the action brought by the applicant against the Arad Prison authorities on 19 September 2006 on the ground that his claims were unsubstantiated. The applicant’s prison medical file did not contain any record that he was suffering from eye problems or that he had requested to see a specialist physician. Moreover, the metal grille fitted to the window was closed only during the night, between 7.30 p.m. and 7.30 a.m., and the room was fitted with a 120 cm neon light which was kept on even during the day when the grille was open.
21. On 8 November 2006 the applicant brought proceedings against the prison authorities, seeking to obtain a court order to stop the prison wardens from recording the phone numbers he called and from limiting the number of his phone calls. Moreover, he demanded that the metal grill (fitted one metre from the door and window of his cell) be removed on the ground that this prevented natural light from entering the room, made it impossible for him to open the window, and caused him to live in a metal cage.
22. On 23 November 2006 the applicant brought proceedings against the Arad Prison authorities seeking to be declassified from the “maximum security” regime under which he was detained.
23. By a final judgment of 15 January 2007 the Arad District Court dismissed the applicant’s action of 23 November 2006 on the grounds that the seriousness of his crime and his conduct did not justify his declassification from the “maximum security” regime.
24. By a final judgment of 26 February 2007 the Arad District Court dismissed the applicant’s action of 8 November 2006 on the ground that the requirement to pre-register the phone numbers the applicant was calling and the limitation on the number of phone calls he could make pursued a legitimate aim and did not interfere with the requirement of confidentiality of private phone conversations. This measure was put in force in order to deter the applicant from committing new crimes and the authorities were able to keep a record of the number of calls made by each prisoner and the individuals he had telephone contact with. Further, this was the only way each prisoner could be allowed access to phone calls given the limited number of available phones. The court also dismissed the applicant’s action seeking the removal of the metal grille fitted in his cell, on the ground that the grille served as a deterrent against escape. However, the court ordered the Arad Prison authorities to enforce a schedule for the opening of a door fitted in this grille facing the window so that the applicant could air the room. The court held that the door of the grille should be open at least between 7 a.m. and 7 p.m. during the winter and between 7 a.m. and 9 p.m. during the summer.
25. On 31 July 2007 the applicant brought proceedings against the Arad Prison authorities, seeking a court order to force them to provide him with full copies of Ministry of Justice Orders nos. 144/C/2002 and 1852/C/2006.
26. By a final judgment of 31 January 2008 the Arad District Court dismissed the applicant’s action of 31 July 2007 on the ground that the orders requested by the applicant were not mentioned in Article 43 § 1 of Law no. 275/2006 as being among those documents which were required to be made available to prisoners, and that they did not concern the applicant directly. The orders regulated the functioning of the special security measures in maximum security prisons and the applicant had not provided a reason why he needed full copies of such documents, particularly since he had already been provided with copies of the excerpts from the said orders which did concern him directly.
27. On 23 May and 23 June 2006 the applicant complained to the National Prison Administration that although he had not been classified as a highly dangerous inmate, he had been restrained each time he was taken before the domestic courts. He claimed that the prison guards intentionally tightened the restraints in order to cause him physical suffering. Moreover, he argued that his living conditions, in so far as the metal grille fitted to his room was concerned, did not comply with the acknowledged European standards for prisoners.
28. In two letters, nos. B21113 and B21128, the National Prison Administration informed the applicant that his living conditions and the methods used by the prison wardens to restrain him complied with the provisions of the Romanian Ministry of Justice Order no. 2964/C/1999, which set out the rules for prisoners serving life sentences, and provided him with the relevant excerpts from the said order. Moreover, the applicant was informed that, as of 6 March 2006, he was no longer classified as a “highly dangerous” prisoner.
29. On 11 October and 1 November 2006, relying on the provisions of the Criminal Code of Romania (the Criminal Code), the applicant brought proceedings against three employees of Arad Prison, namely P.L., M.N. and A.P., for unlawful interference with his correspondence.
30. On an unspecified date in 2006, again relying on the provisions of the Criminal Code, the applicant brought proceedings against E.S.P. and S.T., prison wardens at Arad Prison, for unlawful censorship and interception of his phone conversations. The applicant complained that the serial number of the phone card he had used and the numbers he had dialled had been registered in a phone record book and that the confidentiality of his conversations had been breached in so far as his phone conversations had been conducted on at the same time as other prisoners who were using the other two phones available in the room.
31. On 8 January 2007 the applicant brought proceedings against the head of Arad Prison for abuse of power. He argued that on 7 January 2007 the head of the prison had not allowed him to phone his family and he had stated that the applicant could phone his family only on certain dates. Lastly, the prison authorities had breached the confidentiality of his phone calls because he had been forced to disclose the phone numbers he was calling.
32. By a final judgment of 21 May 2007 the Arad County Court dismissed the applicant’s action against E.S.P. and S.T. on the ground that no unlawful act had been committed by the prison wardens The court held that E.S.P. and S.T. had performed their lawful duty and ensured that all prisoners had access to the phones at least once a week, in compliance with the applicable legal provisions. The fact that the applicant had been compelled to register, in a phone record book, the serial number of the phone card he was using and the numbers he wished to dial did not amount to censorship of his phone conversations.
33. By a final judgment of 25 July 2007 the Arad County Court dismissed the proceedings brought by the applicant on 11 October and 1 November 2006 against P.L., M.N. and A.P. on the ground that no unlawful act had been committed. The court held that P.L. had mistakenly cut an opening of 2 cm in envelope no. 11216 before he realised that it was addressed to the applicant. However, the envelope had not been further opened and no one had been able to see or copy its contents. Moreover, the applicant had not raised any objections or complaints in respect of this damage at the time he was handed the envelope by M.N. and A.P.
34. By a final judgment of 18 October 2007 the Arad County Court dismissed the applicant’s action of 8 January 2007 on the ground that no unlawful act had been committed by the governor of Arad Prison. It held that the Arad District Court had already examined the applicant’s complaints concerning the restriction of his phone rights to certain dates and his duty to disclose the numbers he wished to dial and had found it lawful. Moreover, the applicant had not indicated any emergency that would have justified his demand for access to the phone on a particular date.
35. Excerpts from the relevant legal provisions concerning the rights of detainees, namely Emergency Ordinance No. 56/2003, Law No. 275/2006 and reports of the European Committee for the Prevention of Torture, are given in the cases of Petrea v. Romania (no. 4792/03, §§ 22-23, 29 April 2008); Bragadireanu v. Romania (no. 22088/04, §§ 73-75, 6 December 2007); and Coşcodar v. Romania ((dec.) no. 36020/06, §§ 1112, 9 March 2010).
36. Section 12 of the Ministry of Justice Order no. 2964/C/1999 provides that restraints must be used in respect of prisoners serving a life sentence when they are transferred from the prison, appear in public or attend hearings before domestic courts.
37. Article 43 § 1 of Law no. 275/2006 provides that, immediately following their imprisonment, prisoners are to be provided with copies of Laws nos. 544/2001, 275/2006 and the rules governing the enforcement of the said laws, copies of the orders and the relevant sections of the Romanian Criminal Code and the Code of Criminal Procedure concerning the execution of prison sentences, and copies of the prison rules and guidelines.
38. Section 6 of the Ministry of Justice’s Order no. 4622/2003 and the National Prison Administration’s decision no. 81800/2007 oblige the prison wardens to move away from the prisoner after they have witnessed him dialling the number he has registered in advance, in order to ensure the privacy of the phone conversation.


ITEMID: 001-76505
LANGUAGEISOCODE: ENG
RESPONDENT: LIE
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VON HOFFEN v. LIECHTENSTEIN
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1 (length);Remainder inadmissible;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1952 and currently lives in Schaanwald.
5. On 17 December 1991 investigating judge L. at the Vaduz Regional Court (Landgericht) heard the applicant, who was named Eugen Heeb at that time, on suspicion of fraud (proceedings 8 Vr 17/91). He was questioned in particular about his activities as a member of the board of directors of MGS, a stock company considered to be the centre of a whole network of companies involved in large-scale investment fraud.
6. On 4 May and 1 July 1994, respectively, two further sets of proceedings (8 Vr 211/94 and 8 Vr 305/94) concerning charges of investment fraud were opened against the applicant. One set of proceedings concerned investment fraud committed to the detriment of Allgemeine Vermögensverwaltung Frankurt and Ahorn Trust. The other concerned investment fraud committed to the detriment of investors of Merkantus AG and Allied Banking Corporation. On 6 June 1994 the applicant was questioned as a suspect.
7. On 6 November 1996, the applicant changed his name to von Hoffen through adoption.
8. On 23 January 1997 the Mannheim Public Prosecutor transmitted files concerning investigations on suspicion of investment fraud against the applicant and a number of accomplices, relating partly to the same facts as the investigations opened by the Liechtenstein authorities. On 15 June 1997 a search of the applicant’s premises was carried out at which a number of documents were seized. On 1 July 1997 the applicant was questioned as a suspect. It appears that, subsequently, witnesses were questioned by the police at the investigating judge’s request, and a further search warrant was issued.
9. Investigating judge L. at the Vaduz Regional Court issued an arrest warrant against the applicant on 29 February 2000. On the same date a search warrant for the applicant’s private and business premises was issued for the purpose of seizing documents. The proceedings in files 8 Vr 211/94 and 8 Vr 305/94 were joined and extended to include further suspects. In the following two months numerous requests for legal assistance were addressed to the German, Austrian and Swiss authorities.
10. In early 2000 proceedings for abuse of authority were opened against investigating judge L. He was accused of having remained inactive for years in several sets of proceedings, including the applicant’s. On 20 March 2000 L. declared himself biased on account of the criminal proceedings pending against him. On 23 March the President of the Vaduz Regional Court accepted judge L.’s withdrawal from the applicant’s case, which was taken over by investigating judge H. Judge L. resigned subsequently and the proceedings against him were discontinued.
11. On 11 May 2000 the applicant was arrested in Switzerland and extradited to Liechtenstein on the next day.
12. On 14 May 2000 the Vaduz Regional Court ordered his pre-trial detention inter alia on suspicion of aggravated fraud. Referring to the results of the investigations in all three sets of proceedings (8 Vr 17/91, 8 Vr 211/94 and 8 Vr 305/94), the Vaduz Regional Court found that the applicant was suspected of having organised a network of companies involved in large-scale investment fraud. Given that the applicant had been arrested in Switzerland and having regard to the severity of the sentence to be expected, the Regional Court found that there was a danger of the applicant’s absconding. Moreover, there was a danger that he might hide relevant documents or try to influence witnesses, in particular employees of his companies.
13. On 23 May 2000 the two sets of proceedings opened in 1994 were joined to the proceedings which had been opened in 1991.
14. On 23 June 2000 the applicant’s counsel complained that the window of his prison cell remained closed at all times. Subsequently, the investigating judge instructed the prison personnel to ensure that the applicant’s cell was properly aired.
15. At the close of the preliminary investigation, the file consisted of 21 volumes plus 29 folders and annexes and, in addition, 18 volumes relating to proceedings conducted before German courts against the applicant’s accomplices. The total volume amounted to some 30,000 pages.
16. On 8 January 2001 the Public Prosecutor’s Office filed the indictment. On 19 January 2001, the proceedings concerning facts not covered by the indictment, including those against the applicant which had been opened in 1991, were separated from the main proceedings.
17. Subsequently, a number of judges of the Vaduz Regional Court withdrew from the case due to the fact that they had participated in the preliminary investigation.
18. The Vaduz Regional Court held the trial on eighteen half-days between 29 May and 12 June 2001, in the presence of the applicant and his counsel. On the latter date the Regional Court convicted the applicant of two counts of aggravated fraud and sentenced him to five years’ imprisonment. The first count concerned investment fraud committed to the detriment of Allgemeine Vermögensverwaltung Frankfurt and Ahorn Trust. The second count concerned investment fraud committed to the detriment of over 4,000 investors of Mercantus AG and Allied Banking Corporation.
19. In its judgment, running to 146 pages, the Regional Court dealt extensively with the assessment of the evidence before it, namely the statements of numerous witnesses and accomplices, expert opinions and voluminous documentary evidence, including the convictions of the applicant’s accomplices by German courts. It dismissed the applicant’s defence as not being credible noting that it was full of contradictions and gaps. It found that he had between 1989 and 1991, together with a number of accomplices, enticed thousands of potential investors to place their monies in his various companies, by pretending that they would receive high interest rates.
20. In fixing the sentence, the court regarded as a mitigating circumstance the long lapse of time since the commission of the offences and the excessive length of the proceedings which it considered to be in violation of Article 6 § 1 of the Convention.
21. The applicant appealed on 13 September 2001. On 28 September 2001 the Regional Court granted the applicant’s request to extend the statutory time-limit for filing an appeal. The applicant supplemented his appeal on 10 October 2001.
22. The decision relating to the extension of the time-limit was overturned by the Court of Appeal (Obergericht) but confirmed on 19 December 2001 by the Supreme Court (Oberster Gerichtshof) justified derogating from the statutory time-limit laid down in the Code of Criminal Procedure in order to comply with the requirements of Article 6 § 3 (b) of the European Convention of Human Rights.
23. Between 3 May 2002 and 22 January 2003 the Court of Appeal held eleven days of appeal hearings at which it repeated the taking of evidence and heard a number of additional witnesses upon the applicant’s request. It refused the applicant’s request for a further expert opinion as the relevant facts had already been sufficiently clarified. It also refused to admit a number of questions the applicant wished to put to witness M., who was questioned by a German court under letters rogatory, finding that these questions did not concern any relevant facts.
24. At the close of the hearings, on 22 January 2003, the Court of Appeal dismissed the applicant’s appeal. On the Public Prosecutor’s appeal, the Court of Appeal raised the applicant’s sentence to nine years’ imprisonment. It found that there were a number of aggravating circumstances and that the duration of the proceedings was not to be considered in favour of the applicant, as his intention had been to create a most complicated network of domestic and foreign companies to obscure his activities and to make investigations as difficult as possible.
25. On 17 July 2003 the Supreme Court dismissed the applicant’s appeal on points of law but granted it as regards the sentence.
26. The Supreme Court found that the appellate court had given detailed and convincing reasons for its findings, which were based on a whole range of evidence. The Supreme Court reduced the applicant’s sentence to eight years. It found no reason to consider the duration of the proceedings a mitigating circumstance. In any case, it held that the proceedings were extremely complex, involving a large number of victims and necessitating extensive taking of evidence abroad. However, the Court of Appeal had wrongly considered a previous conviction, which was already extinct in the criminal record, as an aggravating circumstance.
27. The applicant lodged a constitutional complaint against the Supreme Court’s judgment. He claimed in particular that the proceedings were unfair in that the courts had failed take evidence in his favour into account and had failed to give sufficient reasons for their assessment of evidence. He contended in general terms that the evidentiary proceedings were defective in that they violated the presumption of innocence. He also complained about the length of the proceedings and asserted that their excessive duration should have been taken into account when fixing his sentence.
28. On 2 March 2004 the Constitutional Court (Staatsgerichtshof) dismissed the applicant’s complaint. It noted that it was not called upon to examine whether the courts had correctly established the facts and applied the law, but only to review whether they had violated constitutional rights. In the present case, the courts had given detailed and convincing reasons for their assessment of the evidence.
29. Regarding the length of the proceedings, the Constitutional Court found that the criminal proceedings at issue started only on 29 February 2000 when the arrest warrant against the applicant was issued. They ended on 1 August 2003 when the Supreme Court’s judgment was served on him. Thus, they had lasted three years and five months. Given that the proceedings were complex and the facts particularly difficult to elucidate, the duration of the proceedings was not excessive.
30. The Constitutional Court’s judgment was served on the applicant’s counsel on 5 March 2004.
31. Article 239 § 1 of the Code of Criminal Procedure (Strafprozeß-ordnung) reads as follows:
“In the investigative proceedings, everyone believing to have been aggrieved by a delay caused by the examining magistrate or by an order issued with respect to the investigation or in the course thereof shall have the right to obtain a decision of the Court of Appeal in this regard; ...”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-85487
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LADENT v. POLAND
IMPORTANCE: 2
CONCLUSION: Violations of Art. 5-1;Violation of Art. 5-2;Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
TEXT: 6. The applicant was born in 1972 and lives in Ferney-Voltaire, France.
7. On an unspecified date he arrived in Poland. He married K.P., a Polish national, on 15 March 2001. They initially lived in Kraków, but on 3 July 2001 they moved to France. Their two children were born in September 2001 and October 2002 respectively. The applicant is an artist and runs a small business in France which provides the only support for the family.
8. On 21 March 2001 a certain B.M., an administrator of the building in which the applicant's wife had a flat, brought a private prosecution against the applicant for slander (zniewaga) under Article 216 § 1 of the Criminal Code. He alleged that the applicant had addressed him in obscene language in Polish. Subsequently, the private prosecution proceedings were commenced in the Kraków–Śródmieście District Court.
9. It appears that following the applicant's departure for France the court sent him summonses in connection with the private prosecution but received no response.
10. On 15 July 2002 the District Court ordered that the applicant be remanded in custody for a period of three months. It further ordered that a wanted notice (list gończy) be issued with a view to locating and detaining him. It invoked, inter alia, Articles 258 § 1(1) and 259 § 4 of the Code of Criminal Procedure (hereinafter “the CCP”).
The District Court held as follows:
“The accused Franck Ladent has no permanent abode in Poland, [and] does not reside in any place known to the court, and is thus obstructing the proper conduct of the proceedings in the present case and the delivery of a proper judgment within a reasonable time. The need to issue a detention order in respect of the accused is required to secure the proper conduct of the proceedings.
Given that the accused Franck Ladent is evading justice he should be sought by means of a wanted notice.”
The court ordered the police to execute that decision and to serve a copy of it on the applicant immediately after his arrest and to inform him that he could appeal. The information that a wanted notice had been issued in respect of the applicant was subsequently entered in a central criminal register.
11. On 8 October 2002 the District Court stayed the proceedings against the applicant on the ground that his whereabouts were unknown.
12. At the end of 2002 the applicant and his family went on holiday to Kraków. At an unspecified time on the evening of 3 January 2003 they arrived at the Słubice border check-point on their journey back to France by car. During a routine passport check the applicant was asked to get out of his car by the border guard officers.
13. The applicant was arrested at 8.15 p.m. on the basis of the detention order and the wanted notice issued on 15 July 2002. He was questioned by the officers but could not understand anything they said and refused to sign any documents. In his submissions to the European Court, he said that various requests he made through his wife, such as to be allowed to contact the French Embassy or his family and to be provided with an interpreter or a lawyer, were refused. After about two hours he was informed that he was being arrested but was not told why. He was detained at the Słubice Border Guard detention centre.
14. While the applicant was being questioned his wife and their two children, the first aged 3 and the second 16 months at the time, had to stay in the car with the engine on as the temperature outside was -10oC.
15. On 6 January 2003 the applicant's wife engaged counsel to represent the applicant.
16. On 7 January 2003 the Director of the Międzyrzecz Detention Centre notified the Kraków–Śródmieście District Court that the applicant had been transferred there and had been detained on the basis of the detention order of 15 July 2002.
17. On 9 January 2003 the applicant's counsel filed an application with the Kraków–Śródmieście District Court for the applicant's release and requested that his detention be replaced by other, less restrictive, preventive measures. She also appealed against the detention order issued on 15 July 2002.
18. She submitted that the applicant was a French national who permanently resided in France and that he and his wife had left Poland on 3 July 2001. Following the applicant's departure the District Court had sent summonses for the applicant to his wife's address and to another address where the applicant had never lived with the result that the applicant had not known about the criminal proceedings against him and had not been served with the private bill of indictment. Nor had he been informed of his rights and obligations as an accused.
19. Counsel further submitted that the District Court had erroneously found that there were reasonable grounds for suspicion that the applicant had slandered B.M. In any event, the alleged offence only carried a fine or a penalty of restriction of liberty (such as a community service order) but not a custodial sentence. Lastly, counsel referred to the very difficult situation of the applicant's family, who were entirely dependent on him.
20. On 10 January 2003 the Kraków–Śródmieście District Court resumed the private prosecution proceedings against the applicant, noting that his abode had been established. On the same date it quashed the detention order of 15 July 2002 and replaced it with a ban on leaving the country and ordered the applicant to surrender his passport.
The District Court held as follows:
“The accused Franck Ladent was detained on remand on the basis of a detention order issued by this court. Counsel for the accused requested the court to replace the preventive measure imposed on him with a non-custodial one. Counsel in her application argued that the evidence obtained in the case had not sufficiently justified the reasonable suspicion that the applicant had committed slander; in addition, she submitted that the applicant had not been evading justice and that his failure to appear before the court had not been intentional.
The court has found the arguments raised by counsel to be compelling.
In these circumstances, in the court's view the detention on remand should be replaced with other measures, namely a ban on leaving the country together with seizure of his passport. That measure will adequately secure the proper conduct of the proceedings...”.
21. The District Court further ordered that the private bill of indictment, the decision to release the applicant and the summons to appear before the court be translated into French and served on the applicant and that a copy of its decision be served on the Międzyrzecz Detention Centre's director together with an order to release the applicant.
22. On 10 January 2003 (a Friday) the District Court clerk sent by facsimile the court order to release the applicant to the Międzyrzecz Detention Centre. However, the Detention Centre refused to accept the facsimile and informed the court registry that it required original documents before it could release the applicant. Consequently, on the same day the District Court ordered the dispatch of the relevant documents by courier service.
23. The applicant was released from detention in the morning of 13 January 2003 (a Monday). Upon his release he received copies of the three documents translated into French. The applicant submitted that it was only then that he learnt for the first time that he had been accused of slandering B.M..
24. On an unspecified date the applicant's counsel requested the District Court to lift the preventive measures imposed on the applicant pursuant to the decision of 10 January 2003 and to replace them with a guarantee of the applicant's appearance given by the President of the Franco-Polish Friendship Society.
25. On 17 January 2003 the Kraków–Śródmieście District Court granted that application. It considered that it was appropriate to quash the preventive measures given that the applicant ran his own business in France and supported his family exclusively from the income he received from it. It further considered that the guarantee offered would secure the applicant's appearance and the proper conduct of the proceedings.
26. It appears that the applicant and his family returned to France on 27 January 2003.
27. On 7 February 2003 a local MP from Kraków, Mr Z. Wassermann wrote a letter to the President of the Kraków Court of Appeal requesting explanations for the applicant's arrest and detention.
28. In a letter dated 28 February 2003, the President of the Court of Appeal informed the MP that the applicant's case had been thoroughly considered and had been placed under the Vice-President of the Kraków Regional Court's administrative supervision. The President stated that the principal error committed by the District Court in respect of the applicant's detention order was the unfounded assumption that the applicant had been evading justice and maliciously failing to comply with the court summons in a case in which he had not been previously heard and in which he had not been notified of his obligations as an accused pursuant to Article 75 of the CCP, or served with a private bill of indictment (Article 139 § 2 of the CCP). The President further noted that the orders to remand the applicant in custody and to issue a wanted notice had been based on that erroneous premise. Lastly, he stated that the lessons to be drawn from the applicant's case would be used for training purposes.
29. On 21 March 2003 the MP transmitted a copy of the President of the Court of Appeal's reply to the applicant's wife. He advised the applicant and his wife that they could seek to institute disciplinary proceedings against the judge who had issued the detention order and criminal proceedings for abuse of power. He further advised them that they could seek compensation in the civil courts.
30. On 5 October 2004 the Kraków–Śródmieście District Court delivered judgment and acquitted the applicant. On 10 January 2005 the Kraków Regional Court upheld the first-instance judgment.
Article 244 of the Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, stipulates that everyone who is arrested shall be immediately informed of the reasons for his arrest and of his rights.
Article 246 provides that everyone who is arrested shall be entitled to lodge an appeal with a court challenging the lawfulness of the arrest and the manner of its execution. Such appeals must be promptly transmitted to the competent District Court which is required to examine it speedily. In cases where the District Court has established that the arrest was unlawful or unwarranted, it must order the immediate release of the person concerned.
The Code of Criminal Procedure defines detention on remand as one of the so-called “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), a guarantee by a responsible person (poręczenie osoby godnej zaufania), a guarantee by a social entity (poręczenie społeczne), a temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and a ban on leaving the country (zakaz opuszczania kraju).
Article 249 § 1 sets out the general grounds for the imposition of preventive measures:
“1. Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, to prevent an accused's committing another serious offence; they may be imposed only if the evidence shows a significant probability that the accused has committed an offence.”
Article 258 lists the grounds for detention on remand. It provides, in so far as relevant:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland];
(2) there is a reasonable risk that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means;
2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years' imprisonment, or if a court of first instance has sentenced him to at least 3 years' imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be established by the likelihood that a severe penalty will be imposed.”
The Code sets out the extent of the courts' discretion to continue a specific preventive measure. Article 257 reads, in so far as relevant:
“1. Detention on remand shall not be imposed if another preventive measure is sufficient.”
Article 259 § 1 reads:
“1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular, if depriving an accused of his liberty would:
(1) seriously jeopardise his life or health; or
(2) entail excessively harsh consequences for the accused or his family.”
Article 259 § 3 provides:
“Detention on remand shall not be imposed if an offence attracts a penalty of imprisonment not exceeding one year.”
Article 259 § 4 specifies that the rule provided for in Article 259 § 3 is not applicable when the accused attempts to evade justice or persistently fails to comply with summonses or when his identity cannot be established.
As worded at the relevant time, Article 75 of the CCP provided that an accused who was not deprived of his liberty was required to appear whenever he received a summons in the course of criminal proceedings. He was also required to inform the authority conducting the proceedings of any change of his abode or of any absence lasting longer than 7 days. The accused was to be informed of these obligations when first questioned.
Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for wrongful conviction, detention on remand or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his liberty in the course of criminal proceedings against him.
Article 552 provides, in so far as relevant:
“1. An accused who, as a result of the reopening of the criminal proceedings against him or of a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the pecuniary and non-pecuniary damage he has suffered in consequence of having served all or part of the sentence initially imposed on him.
...
4. Entitlement to compensation for pecuniary and non-pecuniary damage shall also arise in the event of manifestly wrongful arrest or detention on remand.”
Pursuant to Article 555, an application for compensation for manifestly wrongful detention on remand has to be lodged within one year from the date on which the decision terminating the criminal proceedings in question became final.
Proceedings relating to an application under Article 552 are subsequent to and independent of the original criminal proceedings in which the detention was ordered. The claimant may retrospectively seek a ruling as to whether his detention was justified. He cannot, however, test the lawfulness of his continuing detention on remand and obtain release.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
5-2
5-3


ITEMID: 001-5745
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: HANGL v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1956 and living in Innsbruck. He is represented before the Court by Mr H. Mildner, a lawyer practising in Innsbruck.
On 15 November 1995 the Innsbruck Federal Police Authority (Bundespolizeidirektion) convicted the applicant of exceeding the speed limit and sentenced him to a fine of 3000 Austrian Schillings. The Authority found that the applicant had driven at 99 km/h in a 50 km/h area. The applicant did not file an objection (Einspruch) against this penal order (Strafverfügung) and paid the fine. This decision became final.
On 13 December 1995 the Innsbruck Federal Police Authority, in summary administrative proceedings (Mandatsverfahren), issued a decision (Bescheid) ordering the withdrawal of the applicant’s driving licence for a period of two weeks, in accordance with section 73 § 3 in conjunction with section 66 § 2 of the Motor Vehicles Act (Kraftfahrgesetz) 1967. The Authority found that the applicant had exceeded a speed limit of 50 km/h by more than 40 km/h.
On 3 January 1996 the applicant, represented by counsel, filed an objection (Vorstellung) to this decision, arguing that he had not appealed against the penal order because he had not known that exceeding the speed limit by more than 40 km/h automatically entailed the withdrawal of his licence.
On 17 January 1996 the Innsbruck Federal Police Authority, in ordinary administrative proceedings, ordered the withdrawal of the applicant’s driving licence for two weeks, referring to the reasons given in the summary order of 13 December 1995.
On 14 May 1996 the Tyrol Government Office (Amt der Landeseregierung), upon the applicant’s appeal, confirmed this decision. The Office found that, under the Motor Vehicles Act, a conviction for exceeding the speed limit by more than 40 km/h necessarily entailed the withdrawal of the driving licence for at least two weeks.
On 5 July 1996 the applicant filed a complaint against this decision with the Constitutional Court. He argued, inter alia, that the withdrawal of his driving licence amounted to a breach of Article 4 of Protocol No. 7 since the
conviction in the administrative criminal proceedings and the decision to withdraw the driving licence both had the same factual basis (das gleiche Verhalten).
On 24 September 1996 the Constitutional Court refused to deal with the complaint and transferred it to the Administrative Court. On 28 November 1996 the Administrative Court dismissed the applicant’s complaint as being unfounded.
According to Section 66 § 2 (i) of the Motor Vehicles Act (Kraftfahrgesetz), a person is not to be regarded as reliable in traffic (verkehrszuverlässig) if he or she has exceeded a speed limit within an urban area (Ortsgebiet) by more than 40 km/h. Section 73 § 3 of the Motor Vehicles Act, inter alia, provides for the withdrawal of the driving licence for a period of two weeks if its owner has been finally convicted for having exceeded the speed limit in an urban area by more than 40 km/h, or longer if the traffic offence has been committed in particularly dangerous circumstances or the offender has shown a particular degree of recklessness vis-à-vis other road users.


ITEMID: 001-58457
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1999
DOCNAME: CASE OF GELLI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Marc Fischbach
TEXT: 8. The applicant is an Italian citizen currently residing in Santa Maria delle Grazie, Arezzo.
9. In 1981 the Investigating Office attached to the Milan District Court in the course of investigations concerning the bankruptcy of the private bank Banco Ambrosiano seized certain material relating to the Masonic lodge called “Propaganda 2 - P2”.
10. The applicant was suspected inter alia of association aiming at political conspiracy, seeking and obtaining classified information, false pretences, espionage, fraud, aggravated slander and extortion, forgery in public deeds.
11. The investigations concerned 40 co-accused and 17 charges.
12. On 20 January 1982, 11 June 1982 and 15 September 1982 warrants of arrest were issued against the applicant by the Investigating Judge attached to the Rome District Court for aggravated slander, fraud and false pretences respectively. At the time, the applicant resided in Switzerland.
13. On 2 September 1982 the Italian authorities requested the Swiss authorities to extradite the applicant to Italy in connection with the charges of aggravated slander, fraud and false pretences.
14. On 13 September 1982 the applicant was arrested in Switzerland and detained with a view to extradition.
15. On 17 September 1982 an order of arrest was issued against the applicant by the Office of the Public Prosecutor attached to the Milan District Court for fraudulent bankruptcy in relation to the Banco Ambrosiano.
16. On 1 June 1983 the Investigating Judge attached to the Milan District Court issued a warrant of arrest against the applicant for fraudulent bankruptcy.
17. On 5 July 1983 the Italian authorities further requested the Swiss authorities to extradite the applicant in connection with the charge of fraudulent bankruptcy.
18. On 19 August 1983 the Swiss Federal Court granted the request of the Italian authorities for the applicant's extradition in relation to all the charges.
19. The applicant, however, had escaped from Champ-Dollon prison, where he had been detained, on 10 August 1983.
20. The question of the territorial competence to decide the case was brought before the Rome Court of Appeal, which by judgment of 26 March 1985 ruled that the Rome District Court was competent.
21. On 21 September 1987 the applicant was again arrested in Switzerland and was extradited to Italy on 17 February 1988 pursuant to a decision taken by the Swiss Federal Department of Justice on 19 October 1987.
22. In March 1988 the applicant was placed under house arrest.
23. By a judgment decision of 18 November 1991, filed with the Registry on 19 November 1991, the Investigating Judge attached to the Rome District Court inter alia committed seventeen co-accused for trial on a charge of political conspiracy. The applicant was committed for trial on charges of false pretences, corruption, aggravated slander and seeking and obtaining classified information. The charges of political conspiracy, espionage and extortion were dropped, the applicant having not been extradited in relation to them, and the charge of forgery in public deeds was dropped by application of an amnesty. The judgment consisted of 269 pages.
24. The first hearing was held on 12 October 1992. Further hearings were held on 22 and 28 October 1992, 3, 4, 5, 11, 12 and 18 November 1992, 2 and 3 December 1992, 12, 13, 14, 25, 27, 28 and 29 January 1993, 11, 12 (postponed due to a lawyers’ strike), 15, 17 and 22 February 1993, 1, 3 (postponed due to a lawyers’ strike), 4, 15, 17, 18, 23, 24, 29 and 31 March 1993, 2, 4, 6, 7, 14, 15, 16, 21 and 22 April 1993, 5, 6, 13, 15, 17, 19 and 31 May 1993, 7, 8 and 10 June 1993, 27, 29 and 30 September 1993, 4, 5, 6, 8, 12, 18, 19 and 22 October 1993, 3, 4, 5, 9, 12, 18, 19, 22, 29 and 30 November 1993, 1, 6, 7, 10, 15 and 17 December 1993, 17, 25, 27 and 31 January 1994, 1 and 2 February 1994. The Court questioned 159 witnesses.
25. The pleadings started on 2 February 1994 and continued until 8 April 1994 (sixteen hearings).
26. On 16 April 1994 the Assize Court of Rome inter alia found the applicant guilty of false pretences, aggravated slander and seeking and obtaining classified information and sentenced him to seventeen years' imprisonment, of which five years and the payment of the fine were pardoned. The judgment consisted of 1, 813 pages.
27. On 30 April 1994 the applicant lodged an appeal against the said judgment with the Rome Assize Court of Appeal. The Public Prosecutor also appealed.
28. Both the Public Prosecutor and the applicant filed the grounds for the appeal with the Registry on 3 October 1994.
29. The case-file reached the Assize Court of Appeal of Rome on 23 December 1994.
30. In the preliminary phase, the court ruled that the proceedings against four deceased co-accused be discontinued and dismissed the appeal lodged by the Public Prosecutor in respect of certain co-accused including the applicant, on the ground that he had failed to file the grounds for the appeal.
31. The trial was set for 5 July 1995 but was adjourned until 17 January 1996, as the lawyers were on strike. By a decision of 17 January 1996 the court dismissed the parties’ request for further evidence.
32. Further hearings were held on 23 January, 13, 15, 20, 22 and 27 March 1996.
33. By a judgment consisting of 188 pages, delivered on 27 March 1996 and filed with the Registry on 15 May 1996, the Assize Court of Appeal of Rome upheld the previous judgment.
34. On 28 March and 30 March 1996, the applicant and his counsel respectively lodged appeals on points of law.
35. By a judgment of 20 November 1996, the Court of Cassation ruled that the charges of false pretences and slander against the applicant be dropped as time-barred. It confirmed the remainder of the judgment and accordingly reduced the sentence. The judgment was filed with the Registry on 24 December 1996.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57608
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1981
DOCNAME: CASE OF YOUNG, JAMES AND WEBSTER v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 11;No separate issue under Art. 9 and 10;No violation of Art. 13;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 12. Mr. Young, Mr. James and Mr. Webster are former employees of the British Railways Board ("British Rail"). In 1975, a "closed shop" agreement was concluded between British Rail and three trade unions, providing that thenceforth membership of one of those unions was a condition of employment. The applicants failed to satisfy this condition and were dismissed in 1976. They alleged that the treatment to which they had been subjected gave rise to violations of Articles 9, 10, 11 and 13 (art. 9, art. 10, art. 11, art. 13) of the Convention.
In general
13. In essence, a closed shop is an undertaking or workplace in which, as a result of an agreement or arrangement between one or more trade unions and one or more employers or employers’ associations, employees of a certain class are in practice required to be or become members of a specified union. The employer is not under any legal obligation to consult or obtain the consent of individual employees directly before such an agreement or arrangement is put into effect. Closed shop agreements and arrangements vary considerably in both their form and their content; one distinction that is often drawn is that between the "pre-entry" shop (the employee must join the union before engaged) and the "post-entry" shop (he must join within a reasonable time after being engaged), the latter being more common.
In the United Kingdom, the institution of the closed shop is of very long standing. In recent years, closed shop arrangements have become more formalised and the number of employees covered thereby has increased (3.75 million in the 1960’s and 5 million in 1980, approximately). Recent surveys suggest that in many cases the obligation to join a specified union does not extend to existing non-union employees.
The law in force until 1971
14. There was no legislation explicitly directed to the practice of the closed shop until 1971. Nevertheless, the courts had since the 1920’s recognised the legitimacy of the trade union object of advancing the union’s interests even to the point of enforcing the dismissal, or a ban on the hiring, of non-union employees. However, it was an unlawful conspiracy at common law to pursue a closed shop against individuals beyond the point which the courts regarded as the defence of genuine trade union interests (Huntley v. Thornton [1957] 1 All England Law Reports 234; Morgan v. Fry [1967] 2 All England Law Reports 386).
The Royal Commission on Trade Unions and Employers’ Associations, which reported in 1968, whilst rejecting the possibility of prohibiting the closed shop, considered the question of safeguards for individuals in a closed shop situation. In particular, a majority of that Commission took the view that an existing employee who was dismissed for refusal to join a union following the introduction of a closed shop should be able to succeed against his employer in a complaint of unfair dismissal so long as he could show that he had reasonable grounds for that refusal.
15. Prior to 1971, the rights and liabilities of the parties to a contract of employment were for the most part governed by common law. Leaving aside cases of justified summary dismissal, it was lawful to dismiss an employee, even without cause, provided that he was given due notice. The remedy open to an employee dismissed without due notice was merely to sue for the balance of wages he would have earned during the appropriate notice period; the courts would not order his employer to re-engage him. These principles applied, for example, to dismissals motivated by an employee’s joining, or refusing to join, a trade union.
The Industrial Relations Act 1971
16. Since 1971, there has been increased Parliamentary intervention in the areas under consideration, and changes of Government have led to changes in the scope and content of the legislation in force. The first major enactment was the Industrial Relations Act 1971 which radically altered the common law position in two respects.
17. In the first place, the 1971 Act conferred on employees (with certain exceptions) the right not to be unfairly dismissed. Dismissal of an employee without cause became unlawful, even if he had been given due notice. An individual who considered that he had been unfairly dismissed could present a complaint to an industrial tribunal; unless the dismissal had been motivated by one or more reasons specified in the Act (for example, qualifications, conduct, redundancy) or some other substantial reason and unless the employer was found to have acted reasonably in treating that or those reasons as a sufficient reason for dismissal, the tribunal could award compensation to the employee or recommend that he be re-engaged. The employee’s common law rights were unaffected by the Act, although after 1971 little reliance was placed on them in practice by those entitled to the new right.
18. In the second place, the 1971 Act introduced specific provisions which were designed to make the operation of the majority of closed shops unlawful. In addition to stipulating that pre-entry closed shop agreements were void, the Act, subject to certain exceptions, gave every worker the right to be a member of no trade union or to refuse to be a member of any particular union. In the context of the rules on unfair dismissal and in contrast to the position at common law (see paragraph 15 in fine above), the Act laid down that dismissal motivated by the employee’s exercise of, or intention to exercise, that right was be to regarded as unfair.
19. A Green Paper on Trade Union Immunities, published by the British Government in January 1981, states that the 1971 Act "met considerable resistance from trade unions and in practice its closed shop provisions were circumvented by many employers and unions. The closed shop continued much as before".
The law in force at the time of the events giving rise to the applicants’ complaints
20. The industrial Relations Act 1971 was repealed by the Trade Union and Labour Relations Act 1974 ("TULRA"). The provisions of TULRA relevant to the present case came into force on 16 September 1974.
21. The repeal of the Industrial Relations Act 1971 removed from the statute book both the prohibition on closed shops and the employee’s right not to belong to a union. However, the law did not fully return to its pre-1971 condition. This was because TULRA maintained the protection against unfair dismissal; since one result of a closed shop is that an individual who declines to join a specified union may have his employment terminated, it was necessary to spell out the precise conditions in which dismissal for this reason was to be regarded as fair. Accordingly, TULRA:
(a) set out - by reference to the concept of "union membership agreement", which it defined - the circumstances in which a closed shop situation was to be regarded as existing;
(b) laid down the basic rule that, if such a situation existed, the dismissal of an employee for refusal to join a specified union was to be regarded as fair for the purposes of the law on unfair dismissal;
(c) provided that, by way of exceptions, such a dismissal was to be regarded as unfair if the employee genuinely objected
(i) on grounds of religious belief to being a member of any union whatsoever; or
(ii) on any reasonable grounds to being a member of a particular union.
22. The powers of an industrial tribunal under the 1971 Act to award compensation to an unfairly dismissed employee were also re-enacted by TULRA. However, the power to recommend his re-engagement was later replaced, by the Employment Protection Act 1975, by a discretionary power to order reinstatement or re-engagement in certain circumstances (notably, where this was considered "practicable"). It was provided that, if the order were not complied with, the employee should be awarded the normal compensation for unfair dismissal and, in specified cases, an additional sum.
23. TULRA was modified in various respects by the Trade Union and Labour Relations (Amendment) Act 1976 ("the Amendment Act") which came into force on 25 March 1976. In particular, the second of the exceptions mentioned in paragraph 21 (c) above was abolished, so that the action for unfair dismissal remained available only to genuine religious objectors. With the object of achieving greater flexibility, the Amendment Act also modified the concept of "union membership agreement".
Subsequent legislative developments
24. The Employment Protection (Consolidation) Act 1978 repealed and re-enacted the then existing provisions concerning unfair dismissal.
The 1978 Act was in turn amended, without retroactive effect, by the Employment Act 1980. It remains the basic rule that the dismissal of an employee for refusal to join a specified union in a closed shop situation is to be regarded as fair for the purposes of the law on unfair dismissal. However, with effect from 15 August 1980, this rule became subject to three exceptions whereby such dismissal is to be regarded as unfair if:
(a) the employee objects on grounds of conscience or other deeply-held personal conviction to being a member of any or a particular union; or
(b) the employee belonged, before the closed shop agreement or arrangement came into effect, to the class of employees covered thereby and has not been a member of a union in accordance therewith; or
(c) in the case of a closed shop agreement or arrangement taking effect after 15 August 1980, either it has not been approved by the vote in a ballot of not less than 80% of the employees affected or, although it is so approved, the employee has not since the balloting been a member of a union in accordance therewith.
A Code of Practice, issued with the authority of Parliament and coming into effect on 17 December 1980, recommended, inter alia, that closed shop agreements should protect basic individual rights and be applied flexibly and tolerantly and with due regard to the interests of individuals as well as unions and employers. The Code is admissible in evidence, but imposes no legal obligations.
25. The green Paper on Trade Union Immunities (see paragraph 19 above) rehearsed arguments for and against various proposals and indicated that the Government would welcome views on whether further changes in legislation affecting the closed shop were desirable and would be likely to prove effective.
26. Since 1971, there has been statutory protection of the right to belong to a trade union. The exact content of the provisions has varied over the years, but their essence is that an employee is entitled to compensation if he is dismissed or penalised for, or deterred or prevented from, being or seeking to become a member or taking part in the activities of a trade union (Industrial Relations Act 1971, section 5; TULRA, Schedule 1, paragraph 6 (4); Employment Protection Act 1975, section 53; Employment Protection (Consolidation) Act 1978, sections 23 and 58).
27. At the end of 1979, there were 477 trade unions in the United Kingdom, with 13.5 million members; in 1980, 108 unions with 12.1 million members, were affiliated to the Trades Union Congress.
The Congress adopted in 1939 a series of morally binding recommendations ("the Bridlington Principles") designed to minimise, and laying down procedures for dealing with, disputes between affiliated unions over membership questions. The current version of the Principles states, inter alia, that dual membership is valid only if the two unions concerned have jointly agreed to it.
28. The Trade Union Act 1913, as amended, attaches certain conditions to the application by a union of its funds for a number of political objects specified in section 3 (3), without prejudice to the furtherance of any other political objects. In particular, payments for the specified object must be made out of a separate "political fund" and any member of the union has the right to exemption from contributing thereto. A person so exempted may not be placed at any disadvantage as compared with other members, and contribution to the said fund may not be made a condition for admission to the union.
29. In 1970, British Rail had concluded a closed shop agreement with the National Union of Railwaymen ("NUR"), the Transport Salaried Staffs’ Association ("TSSA") and the Associated Society of Locomotive Engineers and Firemen ("ASLEF"), but, with the enactment of the Industrial Relations Act 1971 (see paragraph 18 above), it was not put into effect.
The matter was, however, revived in July 1975 when British Rail concluded a further agreement with the same unions. It was provided that as from 1 August 1975 membership of one of those unions was to be a condition of employment for certain categories of staff - including the applicants - and that the terms of the agreement were "incorporated in and form[ed] part of" each contract of employment. Like other staff of British Rail, Mr. Young, Mr James and Mr. Webster had, it appears, been supplied when engaged with a written statement containing a provision to the effect that they were subject to such terms and conditions of employment as might from time to time be settled for employees of their category under the machinery of negotiation established between their employer and any trade union or other organisation.
The membership requirement did not apply to "an existing employee who genuinely objects on grounds of religious belief to being a member of any Trade Union whatsoever or on any reasonable grounds to being a member of a particular Trade Union". The agreement also set out the procedure for applying for exemption on these grounds and provided for applications to be heard by representatives of the employer and the unions.
30. In July/August 1975, notices were posted at the premises of British Rail, including those where the applicants were then working, drawing the attention of staff to the agreement with the unions and the change in conditions of employment.
A further notice of September 1975 stated that it had been agreed that the exemption on religious grounds would be available only where a denomination specifically proscribed its members from joining unions. The notice added that "confining exemption only to religious grounds depends upon the passing through Parliament of the Trade Union and Labour Relations (Amendment) Bill" and that staff would be advised further on this point. As recorded in paragraph 23 above, the Amendment Act came into force on 25 March 1976.
On the same date, a further agreement between British Rail and the railway unions came into effect. It was in identical terms to the July 1975 agreement, except that the words "or on any reasonable grounds to being a member of a particular Trade Union" (see paragraph 29 above) were omitted.
31. The applicants and the representative of the Trades Union Congress informed the Court that NUR, TSSA and ASLEF were the only unions actually operating in 1975 in those sectors of the railway industry in which Mr. Young, Mr. James and Mr. Webster worked. According to the Government, other unions did have members in, although they were not recruiting amongst, the relevant grades.
It appears that, prior to the conclusion of the 1975 closed shop agreement, between 6,000 and 8,000 British Rail employees, out of a total staff of 250,000, were not already members of one of the specified unions. In the final event, 54 individuals were dismissed for refusal to comply with the membership requirement.
32. The applicants were not eligible for membership of ASLEF. As regards NUR and TSSA, intending members were required to sign an application form which, at the relevant time, embodied an undertaking to abide by the Rules of the union and "loyally to promote" its objects (NUR), or to use their "best endeavours to promote its objects and interests" (TSSA).
The stated objects of NUR included the following:
"... to secure the complete organisation of all workers employed by any Board, Company or Authority in connection with railways and other transport and ancillary undertakings thereto in the United Kingdom; to improve the conditions and protect the interests of its members; ... To further, if and when and so far as the same shall be or become a lawful object of a Trade Union, the interests of members by representation in Parliament and on local governing bodies, and to employ the Political Fund of the Union procuring such representation. To work for the suppression of the capitalist system by a Socialistic order of society. ... To make grants to and share in the management and control of any college or institution having for its object to educate and train Trade Unionists in social science in, and to take part in, the political and industrial life of the Labour Movement. ..."
The stated objects of TSSA included the following:
"(a) To organise the whole of the Clerical, Supervisory, Administrative, Professional and Technical employees in all Departments of any British or Irish Railway undertaking, or of any Railway Carting Agency, associated or other undertaking as defined in Rule 2.
(b) To improve the conditions and protect the interests of its members.
...
(g) To establish a Fund, or Funds, including the Political Fund referred to in Rules 45 and 46.
...
(i) To secure or assist in securing legislation and the more effective administration of the existing laws which may affect the general and material welfare of its members and of any other workmen.
(j) To provide financial assistance and to lend money, with or without interest or other equivalent, to any such organisation (incorporated or not incorporated) as the Executive Committee may deem advisable in the interests of or for carrying out the objects of the Association, and so far as the law for the time being in force may permit.
..."
The objects of both unions also included the furtherance of the political objects specified in section 3 of the Trade Union Act 1913 and their Rules contained provisions reflecting that Act’s requirements in the matter of a political fund (see paragraph 28 above). In the case of TSSA, payments from its political fund could not be made unless the beneficiary was an individual member of the Labour Party or the purpose of the payment was in support of Labour Party policy; its general funds could be used for providing financial assistance for political purposes other than the "political objects" listed in the 1913 Act.
33. Mr. Young, who was born in 1953, commenced employment with British Rail in 1972.
34. In September 1975, he had a meeting with his supervisor and a representative of TSSA who informed him about the closed shop agreement - the effect of which in his case was that, as a clerical officer, he was required to join either TSSA or NUR - and of the grounds of exemption applicable at that time (see paragraph 29 above).
The applicant objected, though not on grounds of religious belief, to being a member of any trade union and in particular of TSSA or NUR. He believed that union membership should be a matter of personal choice based on conscience and political conviction. His reasons for not wanting to join TSSA, which he said also applied to NUR, may be summarised as follows:
(a) he did not subscribe to the political views of TSSA;
(b) money from the main union fund was used to produce a monthly newspaper biased in favour of the Labour Party and he had not received sufficient assurances that that fund was not utilised for other political purposes;
(c) he disapproved of TSSA’s support for nationalisation of industry and its forcing of inflationary pay awards; he also objected to being obliged to participate in strikes, this being action which in the case of a key service industry he saw as collective blackmail of the country as a whole;
(d) TSSA showed itself intolerant of the expression of individual freedom by seeking to enforce a closed shop and it acquired by that means an unacceptably extensive control over the hiring and firing of employees.
35. On 17 October 1975, Mr. Young submitted a written claim for exemption. On 30 April 1976, that is after the entry into force on 25 March 1976 of the Amendment Act (see paragraph 23 above), he was informed by letter that his claim would be heard on 5 May. On that day, he appeared before an appeal body composed of three persons representing, respectively, British Rail, TSSA and NUR.
By letter of 27 May, British Rail advised the applicant that the claim had been disallowed and gave him notice of dismissal - of one month, in accordance with his contract - expiring on 26 June 1976.
36. Mr. James, who was born in 1928, was engaged by British Rail on 27 March 1974 as a leading railwayman. He had previously been employed by British Rail for two periods of some years.
37. In 16 October 1975, he had a meeting with his immediate superior and a representative of NUR who informed him that, as a result of the closed shop agreement, he was required to join NUR and that, as a shunter, he was not eligible for membership of any other union. Mr. James was willing to join - in fact, he had previously been a member of NUR - but he was not convinced that membership was advantageous and he believed in freedom of choice. He deferred his final decision pending clarification of a question, submitted by one of his colleagues to NUR, regarding an apparent difference between his salary and that of his colleague who was working the same hours. Before applying for membership, Mr. James wished to see NUR’s reply in order to assess how members’ problems were dealt with. In the event, he formed the view that the union’s examination of the matter and explanation of its conclusions were unsatisfactory and that it had not looked after its member’s interests properly; therefore he did not wish to join the union.
38. By letter of 18 December 1975, the applicant indicated that he refused to join the union since it had not replied to his own query about his hours of work.
On 23 February 1976, he received a dismissal notice stating that, by reason of his non-compliance with the July 1975 agreement, his services would no longer be required as from 5 April 1976.
39. On 8 April 1976, Mr. James presented a complaint of unfair dismissal to an industrial tribunal, before which he appeared on 18, June. On 6 July, he received a copy of its decision rejecting his complaint. The grounds were, firstly, that the applicant had never sought exemption from union membership in accordance with the procedure laid down in the closed shop agreement and, secondly, that as he had at no time based his refusal to join NUR on religious grounds, the tribunal was bound under paragraph 6 (5) of Schedule 1 to TULRA (as modified by the Amendment Act) to find that the dismissal was fair.
40. Mr. Webster, who was born in 1914, commenced employment with British Rail on 18 March 1958.
41. At the time of the conclusion of the 1970 closed shop agreement (see paragraph 29 above), the applicant had objected to joining a union on grounds which he set out in a letter to the Administrative Services Officer. However, as that agreement was not put into effect, he was not called upon to appear before the appeal body to which he had agreed to submit his claim.
42. In or around September 1975, the applicant had a meeting with his immediate supervisor and the local representative of TSSA who informed him about the closed shop agreement - the effect of which in his case was that, as a clerical officer, he was required to join either TSSA or NUR - and of the grounds of exemption applicable at that time (see paragraph 29 above).
43. Mr. Webster was opposed to joining a union for reasons - in his eyes equally valid for TSSA and NUR - which included the following:
(a) he was opposed to the trade union movement as it currently operated since it was unrepresentative, had detrimental effects - particularly through unjustified collective wage demands - in the economic, industrial and social spheres, and did not act in the best interests of workers or of the country in general; he also found it utterly repugnant to be obliged to participate in any strike which caused loss to the general public or workers elsewhere;
(b) he believed that the individual should enjoy freedom of choice as regards union membership and should be able to express and abide by his opinions and convictions without being threatened with the loss of his livelihood as a result of the closed shop practice, which practice would not remedy the disabilities inherent in the trade union system.
44. On 29 October 1975, Mr. Webster wrote to his supervisor explaining some doubts which he had as to the courses open to him to claim exemption and seeking guidance on certain aspects. He said that he wished to apply for exemption on conscientious grounds (other than specifically religious grounds) and he asked that, if this was still possible, his 1970 submissions be accepted as his case, though he also indicated that he would again wish to present a full and closely argued case. He added that he was an opponent of the trade union movement "as it operates today". On 2 April 1976, that is after the entry into force on 25 March 1976 of the Amendment Act (see paragraph 23 above), he was advised by letter that his application would be examined four days later by representatives of British Rail and the unions in accordance with the procedure prescribed in the 1975 agreement. The applicant requested two weeks’ postponement to enable him to prepare written submissions. On 28 April, by which time he had received replies, through his solicitors, to only some of the questions posed in his October letter, he was instructed to attend a hearing on 6 May. On that day, he appeared before an appeal body composed of three persons representing, respectively, British Rail, TSSA and NUR.
On 3 June 1976, Mr. Webster received a dismissal notice stating that his application had been disallowed and that his contract of employment would terminate on 28 August 1976.
VIOLATED_ARTICLES: 11
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-110259
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PELLYA v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 6. The applicant was born in 1942 and lives in Lahti, Finland.
7. On 18 June 1999 the Krasnoselskiy District Court of St Petersburg (“the District Court”) found that unlawful actions of police officers in 1993 had resulted in harm to the applicant’s health manifesting itself in partial loss of ability to work. This judgment and a supplementary judgment of 11 October 1999 recovered from the State treasury in the applicant’s favour lost earnings up to 1 February 2000 in the amount of 109,751 Russian roubles (RUB) and compensation of non-pecuniary damage in the amount of RUB 10,000. It appears from the applicant’s own submissions that the award was paid to him in 1999.
8. On an unspecified date the applicant brought a new action seeking recovery of lost earnings for the period from 1 February 2000 to 1 March 2005 and further monthly payments to be re-calculated in accordance with the minimum wage, reimbursement of expert fees and compensation for sanatorium treatment.
9. By a judgment of 3 March 2005 the District Court granted his claims in part, however the judgment was reversed on appeal on 18 April 2005, and the case was remitted to the first instance for fresh examination.
10. On 19 September 2005 the District Court again granted the claims in part awarding the applicant lost earnings in the amount of RUB 378,185 and related monthly payments in the amount of RUB 8,911 to be adjusted to the cost of living, RUB 39,585 for sanatorium treatment, and RUB 5,600 as reimbursement of the expert fees.
11. The above judgment was not challenged on appeal. The enforcement documents received by the Ministry of Finance on 25 October 2005 were returned to the applicant in April 2006 due to unidentified inconsistencies in the judgment.
12. On 18 June 2007 the District Court considered the applicant’s application for adjustment of the amounts awarded by the judgment of 19 September 2005. The court rejected the application but clarified the original judgment by specifying that the responsibility for its enforcement lay with the Ministry of Finance. A new writ of enforcement was issued.
13. On 29 January 2008 the judgment of 19 September 2005 was enforced in full. It transpires from the documents submitted by the Government and covering the period between February 2008 and February 2010 that the monthly payments in the amount determined by the District Court on 19 September 2005 were regularly credited to the applicant’s account.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: 6-1
P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-87510
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF I v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 8;Pecuniary damage - award;Non-pecuniary damage - award
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
TEXT: 5. The applicant was born in 1960.
6. Between 1989 and 1994 the applicant worked on fixed-term contracts as a nurse in the polyclinic for eye diseases in a public hospital. From 1987 she paid regular visits to the polyclinic for infectious diseases of the same hospital, having been diagnosed as HIV-positive.
7. Early in 1992 the applicant began to suspect that her colleagues were aware of her illness. At that time hospital staff had free access to the patient register which contained information on patients’ diagnoses and treating doctors. Having confided her suspicions to her doctor in summer 1992, the hospital’s register was amended so that henceforth only the treating clinic’s personnel had access to its patients’ records. The applicant was registered in the patient register under a false name. Apparently later her identity was changed once again and she was given a new social security number.
8. In 1995 the applicant changed her job as her temporary contract was not renewed.
9. On 25 November 1996, the applicant complained to the County Administrative Board (lääninhallitus, länsstyrelsen), requesting it to examine who had accessed her confidential patient record. Upon request, the director in charge of the hospital’s archives filed a statement with the County Administrative Board, according to which it was not possible to find out who, if anyone, had accessed the applicant’s patient record as the data system revealed only the five most recent consultations (by working unit and not by person) and even this information was deleted once the file was returned to the archives.
10. In its decision of 20 October 1997 the County Administrative Board held that:
“Section 12 of the Patient’s Status and Rights Act (laki potilaan asemasta ja oikeuksista, lag om patientens ställning och rättigheter) provides that the health authorities and staff have to comply with the regulations issued by the Ministry for Social Affairs and Health (sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet, “the Ministry”) when preparing and processing patient records. Pursuant to this section the Ministry has issued, on 25 February 1993, Regulation no. 16/02/93.
In the said Regulation it is noted that patients records must be prepared having due regard to the secrecy regulations and the protection obligation and the duty to take care pursuant to the Personal Files Act (henkilörekisterilaki, personregisterlagen; Act no. 471/1987). According to the duty to take care, precaution and good registering practices must be observed when gathering, depositing, using and delivering data and these must be done in a manner so as not to infringe unnecessarily the right to privacy of the registered person or his or her benefits and rights. The protection obligation means that data in patient records must be duly protected against unauthorised processing, use, destruction, amendment and theft (sections 3 and 26 of the Personal Files Act).
In the said Regulation it is also noted that the patient records must form an entity to ensure that outsiders cannot gain unauthorised access to them and that, in addition to the said obligations, in accordance with the Personal Files Act, the purpose of use of the said data can be taken into account. This way it can be made sure that requisite patient data are only given to the personnel participating in the treatment of the patient.
[The applicant] has in her representations alleged that [X], who is working for [the hospital] has ordered up the case history of [the applicant’s ex-husband] and that someone else has ordered up her file or visited the archives and read her file and/or that of [her son] and that the data have been transmitted to [Y] and other staff mentioned in [the applicant’s] representations.
[X] has contested having proceeded erroneously. The other persons mentioned in [the applicant’s] representations have contested having had knowledge of the data mentioned therein concerning [the applicant] and her family.
According to the director in charge of [the hospital’s] archives it is not possible to retroactively clarify the use of patient records. The data system reveals only the five most recent consultations (by working unit and not by person) but this information is deleted once the file has been returned to the archives.
Therefore, the County Administrative Board cannot further rule on whether information contained in the patient records has been used by or given to an outsider.
Having regard to the foregoing, the County Administrative Board however finds that the system should record any consultation of patient files as a safeguard of privacy in order to ensure that the responsibility for a possible leak of information can be individualised. For the future, the County Administrative Board draws the hospital’s attention to the protection obligation and the duty to take care provided by the Personal Files Act, and further, to the need to ensure that privacy protection is not put at risk when processing medical data within the hospital. ...”
11. Subsequently, in March 1998, the hospital’s register was amended in that it became possible retrospectively to identify any person who had accessed a patient record.
12. On 15 May 2000, the applicant instituted civil proceedings against the District Health Authority (sairaanhoitopiirin kuntayhtymä, samkommunen för sjukvårdsdistriktet), which was responsible for the hospital’s patient register, claiming non-pecuniary and pecuniary damage for the alleged failure to keep her patient record confidential.
13. On 10 April 2001, the District Court (käräjäoikeus, tingsrätten), having held an oral hearing, rejected the action. Having assessed the evidence before it, including five witness statements, the decision of the County Administrative Board and a statement of the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen), the court did not find firm evidence that the applicant’s patient record had been unlawfully consulted.
14. The applicant appealed to the Court of Appeal (hovioikeus, hovrätten), maintaining her claim that the hospital had not complied with the domestic law, in breach of her right to respect for her private life.
15. On 7 March 2002, the Court of Appeal, having held an oral hearing, considered that the applicant’s testimony about the events, such as her colleagues’ hints and remarks about her HIV infection, was reliable and credible. Like the District Court it did not, however, find firm evidence that her patient record had been unlawfully consulted. It ordered the applicant to reimburse the respondent’s legal expenses before the District Court and the Court of Appeal, amounting to 2,000 euros (EUR) and EUR 3,271.80 plus interest, respectively.
16. In her application for leave to appeal to the Supreme Court (korkein oikeus), the applicant claimed inter alia that there had been a violation of her right to respect for her private life.
17. On 23 December 2002 the Supreme Court refused leave to appeal.
18. The Finnish Constitution Act (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone’s right to private life is guaranteed.
19. Until 1 June 1999, the rules governing the use and confidentiality of personal data were laid down in the Personal Files Act of 1987. Sections 6 and 7 of the Act prohibited the processing of sensitive personal data, including information on a person’s health and medical treatment, except within the health authorities. Unauthorised disclosure of personal data was prohibited under section 18 and illegal use of disclosed data was prohibited under section 21. Pursuant to section 26 the data controller had to ensure that personal data and information contained therein were appropriately secured against any unlawful processing, use, destruction, amendment and theft. In this regard, the explanatory report of the Government Bill (no. 49/1986) for the enactment of the Personal Files Act stated that the mere existence of legal provisions did not suffice to guarantee the protection of privacy. In addition, the data controller had to make sure that data were protected de facto. When planning the physical protection of the data system regard must be had to, inter alia, whether the system was manual or automated. The delicate nature of the information naturally affected the scope of the protection obligation. Under section 42, the data controller was liable to compensate pecuniary damage suffered as a result of the use or disclosure of incorrect personal data or of unlawful use or disclosure of personal data.
20. On 1 June 1999, a new Personal Data Act (henkilötietolaki, personuppgiftslag; Act no. 523/1999) entered into force. Section 11 of the Act prohibits processing of sensitive personal data. However, under section 12, health care professionals may process data relating to a person’s state of health, illness, handicap or treatment if they are indispensable in his/her treatment. Section 32 provides that the data controller shall carry out the technical and organisational measures necessary for securing personal data against unauthorised access, accidental or unlawful destruction, manipulation, disclosure and transfer as well as against other unlawful processing. Section 33 lays down a secrecy obligation for those who have gained knowledge of someone’s personal circumstances. Under section 47, the data controller is liable to compensate pecuniary and other damage suffered by the data subject or another person as a result of the processing of personal data in violation of the provisions of the Act.
21. The Patient’s Status and Rights Act entered into force on 1 March 1993. Section 12, as in force until 1 August 2000, provided that the health authorities had to comply with the regulations issued by the Ministry for Social Affairs and Health (“the Ministry”) when creating and processing patients’ personal and medical data.
22. According to the Ministry’s Regulation no. 16/02/93, issued on 25 February 1993, a patient’s privacy had to be secured when creating and processing his/her patient record. The data controller had to make sure that outsiders could not gain unauthorised access to sensitive personal data and that only the personnel treating a patient had access to his/her patient register.
23. Section 13 of the Patient’s Status and Rights Act provided that health care professionals or other persons working in a health care unit were not allowed to reveal to an outsider (that is a person not participating in the treatment of the patient) information contained in the patient documents without the written consent of the patient. The said section has been amended as of 1 August 2000 (Act no. 653/2000) to the effect that it must be recorded in the data file if patient records have been revealed as well as the grounds for the disclosure.
24. Further, the Health Care Professionals Act (laki terveydenhuollon ammattihenkilöistä, lag om yrkesutbildade personer inom hälso- och sjukvården; Act no. 559/1994) contains provisions on the retention of patient documents and their confidentiality (section 16) and on the obligation of secrecy (section 17).
25. Finally, the new Electronic Processing of Client Information Act (laki sosiaali- ja terveydenhuollon asiakastietojen sähköisestä käsittelystä, lag om elektronisk behandling av klientuppgifter inom social- och hälsovården; Act no. 159/2007) entered into force on 1 July 2007. The aim of this Act is to further enforce patients’ rights in the context of the processing of electronic personal data within the social and health care.
VIOLATED_ARTICLES: 8