ITEMID: 001-79392
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF EVALDSSON AND OTHERS v. SWEDEN
IMPORTANCE: 2
CONCLUSION: Violation of P1-1;Not necessary to examine merits of remainder of complaints;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
TEXT: 5. The applicants were born in 1948, 1974, 1965, 1964 and 1963 respectively. They were employed by the construction company LK Mässinteriör AB (hereinafter “the company”) between 3 March and 30 July 1999 on a time-wage basis.
6. The company, being a member of the Industries, was bound by a collective labour agreement, the Construction Agreement (Byggnads-avtalet), concluded between the Swedish Building Workers’ Union (Svenska Byggnadsarbetareförbundet, hereinafter “the Union”) and the Industries. The relevant local branch of the Union in the instant case was the Stockholm branch, Byggettan.
7. At the material time, eight employees in the company carried out work covered by the labour agreement. Three of these workers were members of the Union whereas the five applicants were not members of the Union or of any other trade union.
8. Under section 3, subsection f 5 of the collective agreement, as it stood at the relevant time, the local branch had the right to inspect on a continuous basis wage conditions by measuring piecework (ackordsarbete) and result work (resultatarbete), as well as monitoring time-based work (tidlönearbete). If inspections were carried out in accordance with the collective agreement, the local branch had the right to reimbursement of the costs involved on the basis of a fee of 1.5% of the worker’s wages. The employer was obliged to deduct this amount from the worker’s wages and to supply the local branch with the information necessary for the inspection work.
9. On 12 January 1978 the Industries and the Union concluded an accord pursuant to which a worker organised in a trade union other than the Union could request his or her employer not to deduct the inspection fee, with the result that the Union would no longer have the right to request either information or the payment of a fee in respect of that worker. In a subsequent dispute between the Industries and the Union over the interpretation of the accord, an out-of-court settlement was reached on 29 February 2000 to the effect that it applied to all workers belonging to a trade union other than the Union.
10. On 22 May 1991 the company and Byggettan concluded an agreement concerning the inspection work. The agreement gave details of the work and specified, inter alia, that it was the company’s responsibility to provide Byggettan with the wage information and to deduct fees from the wages of the workers and pay them to Byggettan six times a year. The information was to include the place of work, the names and social security numbers of the workers and the working hours and net wages.
11. The applicants requested to be exempt from the deductions, which in their case concerned fees for monitoring the wages for hourly work. The company complied with their requests, stopped paying the fees to Byggettan and did not provide it with the above-mentioned wage information concerning the applicants. Byggettan insisted on payment and initiated formal local negotiations. These were held on 23 March and 19 April 1999. However, no solution was reached, either in the local negotiations or in the subsequent central negotiations between the Industries and the Union.
12. The Industries eventually brought the case before the Labour Court (Arbetsdomstolen), seeking a declaratory judgment to the effect that the company was not obliged to levy the monitoring fees in question. It argued that the inspection of wages, in so far as it did not concern the technical measuring of piecework, aimed at securing the observance of the provisions of the collective labour agreement and was therefore part of the general activities of the Union. Moreover, the 1998 and 1999 annual reports of Byggettan allegedly showed that the inspection fees greatly exceeded the costs of the work and that the surplus was used for general union activities. Consequently, the corresponding deductions from the applicants’ wages were tantamount to forced union membership or, at least, involved an unacceptable compulsion to join the Union or another trade union. The conduct thus violated their negative freedom of association under Article 11 of the Convention as well as under domestic law. Furthermore, since the applicants did not share the political values of the Union, the levy on their wages also violated their rights under Article 10 of the Convention.
13. Two of the applicants, Mr Evaldsson and Mr Hodell, were heard by the Labour Court. They submitted that they opposed the deductions because they did not think that the monitoring work was of any use to them and considered the deductions an unnecessary expense. Allegedly, they also submitted that they felt that the deductions were unjust.
14. The Union disagreed with the Industries, arguing that the monitoring fees could not be seen as tantamount to forced membership of the Union, such membership being secured through the payment of a separate membership fee. The system of monitoring fees did not involve a compulsion to join a trade union. Moreover, the applicants had not expressed any ideological reasons for their unwillingness to contribute to the monitoring work. The Union claimed that, contrary to the Industries’ allegation, the 1998 and 1999 annual reports of Byggettan showed that the proceeds of that work had not contributed to general union activities but that, in fact, the monitoring had been run at a loss. Furthermore, the inspection work was strictly separated, economically and otherwise, from the other activities of Byggettan. Finally, arguing that the positive aspect of the freedom of association under Article 11 of the Convention was stronger than its negative counterpart, the Union claimed that a ban on the levying of monitoring fees on unorganised workers’ wages would violate the positive rights of its members, as this could induce members to leave the Union in order to avoid paying the fees.
15. By a judgment of 7 March 2001, the Labour Court rejected the Industries’ claims. It referred to several of its previous judgments concerning various types of measurement and monitoring fees. In a case from 1977 (AD 1977 nr 222), the court had found that the monitoring of time-based wages was wholly different from the measuring of piecework, as no special action had to be taken to establish the amount and type of work performed. Instead, the inspection of time-based wages rather aimed at securing the observance of the collective labour agreement and also served as a basis for the statistics used by the Union in wage negotiations with the employers. Consequently, the monitoring benefited the general union activities and the fees contributed financially to those activities. The court had therefore concluded that the levying of fees on the wages of members of the Syndicalist Union for monitoring work carried out by another trade union involved a violation of those worker’s positive freedom of association, as they would have to resign from their own organisation in order to avoid contributing to both organisations.
The Labour Court stated that there was no reason to come to a different conclusion in the instant case as to the nature of the monitoring work. Thus, from the point of view of association law, there was no reason to distinguish between monitoring work and general union activities. Having reached that conclusion, the court found no reason to determine whether the monitoring fees generated a surplus which contributed to other union activities.
However, the situation in the instant case was different from the 1977 case in that the applicants were not subjected to pressure to leave their organisation. Instead, the question was to what extent they were protected by a right to negative freedom of association. The Labour Court noted that the negative freedom of association under domestic law was exclusively based on the Convention. It referred to the European Court’s case-law and drew the conclusion that only the core of the negative freedom of association was protected under Article 11 of the Convention, meaning that a person must have been subjected to a certain measure of force or at least strong pressure to join an organisation in order to give rise to a violation of Article 11.
The Labour Court initially concluded that the monitoring fee deductions did not entail membership of the Union and that no pressure had been exerted to compel the applicants to join the Union against their will.
It further found that the fact that the applicants, through payment of the monitoring fee, indirectly supported the activities of the Union did not in itself amount to forced membership, since being a member of the Union also entailed certain other duties, such as loyalty to its objectives and payment of a membership fee. The situation would have been different if the applicants would to some extent have been associated with the Union’s ideology as a result of the monitoring fee deductions. However, the fee in issue was deducted in accordance with their employer’s obligations under the collective labour agreement, and it was, accordingly, difficult to see a link with the Union’s ideology. In this connection, the court also referred to the evidence given before it by Mr Evaldsson and Mr Hodell. While it questioned whether the grounds for their position in the case could have a bearing on their negative freedom of association, the court nevertheless found that there was no indication that they opposed the deduction of the fees because they took exception to union activities in general or to the ideology of the Union.
The Labour Court went on to state that, while the applicants, through the fee deductions, contributed to the general activities of the Union, they were not treated any differently from Union members as concerns the monitoring. In order to monitor the observance of the collective labour agreement, the work was carried out with respect to all employees affected by the agreement, whether belonging to a trade union or not. Noting that it could appear offensive to an unorganised worker to have to contribute to the work, the court stated that it was not without importance that the unorganised worker in fact obtained something in return for the fee paid.
The Labour Court further noted that, theoretically, the applicants could be inclined to join a trade union other than the Union in order to avoid the wage deduction for the monitoring fee. It found, however, that it was not very realistic that an employee would regard the wage deduction as a particular incentive to do so.
The Labour Court concluded that all the above considerations indicated that the deductions did not breach the applicants’ rights under the Convention. As to the main issue to be determined – whether the monitoring fee was intended as a measure to pressure them to join the Union – the court could not find that it had any such coercive effect. As the fee was not tantamount to forced membership of the Union and had not influenced or forced the applicants to join the Union, the company had been obliged to make a deduction from their wages in accordance with the collective labour agreement.
16. Freedom of association is guaranteed in the Swedish constitution. Chapter 2, section 1 of the Instrument of Government (Regeringsformen) provides in its relevant parts:
“In relation to the public administration, every citizen is guaranteed:
1. freedom of expression: the freedom to communicate information and to express ideas, opinions and emotions whether orally, in writing, in pictorial representations or in any other way; ...
5. freedom of association: the freedom to unite with others for public or private purposes; ...”
Chapter 2, section 2 protects, inter alia, the negative aspect of freedom of association. It reads:
“In relation to the public administration, every citizen is protected against coercion to divulge an opinion in a political, religious, cultural or other such connection. In relation to the public administration, he is furthermore protected against coercion to participate in a meeting for the formation of opinion or in a demonstration or other manifestation of opinion, or to belong to a political association, religious congregation or other association for opinions referred to in the first sentence.”
17. Section 7 of the 1976 Act on Co-Determination at Work (Lag om medbestämmande i arbetslivet, SFS 1976:580, hereinafter “the 1976 Act”) guarantees the right of employers and employees to form, belong to and work for labour market organisations. The right of association is further protected by section 8, which forbids any recourse to action against someone on the opposing side for having exercised this right or in order not to exercise it.
18. Section 10 of the 1976 Act gives employers’ and employees’ organisations as well as individual employers a right of negotiation in regard to matters concerning the relationship between employers and employees. It does not provide for any right of negotiation for the individual employees, who are obliged to exercise their powers through the trade unions.
19. Under section 26 of the 1976 Act, a collective labour agreement is binding not only on the employer’s and employee’s organisations but also on their members, i.e. companies and individual workers. Moreover, in practice, the collective agreement is also of significance for employees who are not trade union members in that it has a normative effect. This entails that the individual work contracts are considered to have the same contents as the collective agreement unless the parties to the contract have expressly agreed otherwise.
20. Under section 27 of the 1976 Act, an employer and an employee cannot conclude a legally valid agreement which contradicts the collective agreement by which they are bound. This means that an agreement contradicting the collective agreement is automatically null and void. While contracts with less favourable conditions than the collective agreement are normally invalid, the validity of contracts with more favourable conditions depends on an interpretation of the agreement in question. As the instant provision formally only prohibits an employer from concluding contradictory contracts with members of the trade union which is party to the collective agreement, it is possible for the employer to conclude such contracts with employees who are not members of the relevant trade union. However, most collective agreements are based on the presumption that an employer does not have a right to conclude such contracts with non-member workers. Consequently, while the contracts in question remain valid, the employer may be liable to pay damages to the trade union.
21. Monitoring of wages for hourly work is conducted in a manner determined by the employer and the local union branch. It normally involves the examination of documents provided by the employer and personal visits by the union’s representatives to the employer. If a mistake is discovered, clarifications or corrections can be made by telephone or letter. In some cases, formal negotiations are required.
22. Under the terms of the Construction Agreement, the local union branch is entitled to a fee as compensation for the costs entailed by the monitoring work. The fee – 1.5% of the employee’s wages – is deducted by the employer from the wages of each individual worker.
23. According to the applicants, a member of the Union pays about 3,500 Swedish kronor (SEK) per year in monitoring fees in addition to the union membership fee of SEK 3,000. The largest competing trade union, the Syndicalist union, does not have a monitoring system. The Union therefore has a de facto monopoly in this field.
24. The regulation regarding the monitoring of wages was incorporated in the 1976 Construction Agreement. Previously, workers paid time-based wages had not been subjected to deductions for monitoring fees. According to the applicants, the purpose was that workers paid time-based wages, as an act of solidarity with workers carrying out piecework, should contribute to the whole inspection system. At the material time, the majority of the workers performed piecework, the measurement of which was costly and time-consuming. The fee for monitoring time-based wages was thus not primarily introduced as reimbursement for the service in question, but as a means of supporting the measurement of piecework wages.
25. Today, approximately 80% of workers are paid time-based wages, which is almost the opposite ratio compared to the situation in 1976. In general, the monitoring of wages is now computerised and based on information provided by the employer.
26. According to a statement of 24 May 2006 by Mr Lars-Göran Bromander, former division manager at Byggettan, a review of the still existing audit material for 1999 showed that, as a result of the monitoring work, wages had been adjusted upwards for 648 workers, of which 250 were not Union members.
27. The activities of Byggettan, the local union branch, are divided into two parts: branch activities (inter alia, wage negotiations, union agitation and political work) and business activities (i.e. the inspection work, comprised of the monitoring of time-based wages and the measurement of piecework). Branch or non-profit activities are to be paid for by means of union membership fees. Revenue from the business activities, which is subject to value-added tax, should cover the costs of such activities.
28. The parties have submitted various documents to the Court containing information on the revenue and cost of the activities of the Building Workers’ Union and the Byggettan branch. The following information has been compiled from these documents.
29. According to the annual report for 1998, Byggettan had 94 permanent employees (54 officials and 40 administrative personnel) on 31 December 1998. Before the Labour Court, the Building Workers’ Union stated that the number of persons involved in inspection work (monitoring and measuring) during the period relevant to the present case, March – July 1999, was the same as at the end of 1998, and that the 1998 annual report named 21 officials who had been occupied with this activity. However, the annual report only mentions, in addition to the head of the relevant department, 12 officials who were dealing with such work, one of whom had been doing so only until 26 March 1998. It thus appears that, during the relevant period, 12-13 officials were involved in inspection work, i.e. about 22-24% of the total number of officials. Incidentally, the annual report for 1999 indicates that, at the end of 1999, the total workforce of Byggettan remained the same.
30. Byggettan’s annual reports for 1997-2000 contain statements of accounts where its business activities, i.e. the inspection work, are separated from its branch activities. According to the statement of accounts for 1999, Byggettan’s branch activities showed a loss of SEK 10.3 million, whereas the inspection work recorded a profit of SEK 5 million. The total revenue from the inspection work amounted to SEK 30.9 million, the operational and administrative costs of this sector of activity were SEK 25.2 million and the write-offs of movables came to SEK 0.7 million. Whereas it is shown, in a footnote to the statement of accounts, that, of the revenue from the inspection work, SEK 21.6 million derived from monitoring fees, there is no such differentiation as regards the costs.
However, in another footnote, information is provided on Byggettan’s costs, which are given separately for the branch activities and the inspection work. The total costs for wages and remunerations in 1999 amounted to SEK 25.5 million, of which SEK 12.5 million (i.e. about 49%) were attributed to the inspection work. The total amount of pension payments was SEK 6.9 million, of which SEK 6.346 million (or about 92%) were a burden on the latter activities. The remaining costs, including offices, travels, administration and social contributions, totalled SEK 28 million, of which SEK 12.7 million (about 45%) were attributed to the inspection work.
31. In submissions by the Building Workers’ Union to the Labour Court and by the Government in the present proceedings, it has been claimed that the result of the inspection work has to be corrected to the extent that a reimbursement was received from the pension fund of the Building Workers’ Union. In the statement of accounts for 1999, a reimbursement of SEK 6.360 million was recorded for the inspection work. As this reimbursement in effect reduced the costs, the amount has to be deducted from the recorded profit of SEK 5 million in order to arrive at the real financial result of the inspection work. Thus, in the Government’s view, the pension payments should be recorded as a cost, whereas the pension fund reimbursement should not be considered as revenue. Consequently, in 1999, that sector of activity was actually run at a loss of more than SEK 1.3 million.
The applicants, however, disagree with the above calculation. They have stated that, throughout the years, the branches of the Building Workers’ Union have made contributions to the pension fund, whose accumulated assets are used to honour the Union’s pension commitments towards its retired personnel. Thus, when making pension payments, the Union branches are not the actual payer but are making the payments on behalf of the pension fund, presumably because the fund does not have an administrative division of its own to handle such payments. Accordingly, the applicants claim that, when determining the actual annual result of the inspection work, the pension transactions should only be taken into account to the extent that the fund reimbursements differ from the pension payments. In 1999, the reimbursement received by Byggettan exceeded the pension payments by as little as SEK 14,000. The financial result of that year should thus be reduced by only that amount and the recorded profit of SEK 5 million consequently remains virtually unchanged.
In the statements of accounts of the Building Workers Union’s Gothenburg branch for the years 1997-2000, pension fund reimbursements have been recorded as revenue and pension payments as costs. Consequently, only the differences between reimbursements and payments have affected the annual results.
32. The statements of accounts in the annual reports of Byggettan for 1997, 1998 and 2000 contain figures which give a picture similar to 1999. In 1997, the revenue from the inspection work was SEK 27.9 million (of which the monitoring fees came to SEK 17.3 million) and the recorded profit of that sector of activity amounted to SEK 3.4 million. Byggettan received a pension fund reimbursement of more than SEK 8.3 million. If the result is corrected with this amount, in the manner claimed by the Government, the profit would turn into a loss of SEK 4.9 million. However, the reimbursement exceeded the pension payments by only SEK 1.7 million. If pension transactions were altogether excluded from the calculation, as effectively suggested by the applicants, the profit would be halved and amount to SEK 1.7 million. 45% of the wage costs, 92% of the pension payments and 42% of the other costs of that year were attributed to the inspection work.
33. In 1998, the inspection work revenue was SEK 28.8 million (of which the monitoring fees amounted to SEK 19.8 million) and the recorded profit was SEK 3.5 million. A pension fund reimbursement of SEK 6.8 million was received which, if allowed to correct the result in full, would change the latter into a loss of SEK 3.3 million. However, as the reimbursement exceeded the pension payments by only SEK 14,000, the profit would remain at SEK 3.5 million if pension transactions were not taken into account. 46% of the wage costs, 93% of the pension payments and 44% of the other costs were attributed to the inspection work.
34. In 2000, the inspection work revenue was SEK 37 million (of which the monitoring fees came to SEK 27.2 million) and the recorded profit was SEK 8.5 million. A pension fund reimbursement of SEK 6.4 million was received which, if correcting the result, would reduce the profit to SEK 2.1 million. However, as the reimbursement exceeded the pension payments by only SEK 315,000, the profit would be SEK 8.2 million if pension transactions were not taken into account. 53% of the wage costs, 93% of the pension payments and 51% of the other costs were attributed to the inspection work.
35. The budgets for 1998 and 2000-2003 have been made available to the Court by the parties.
36. In its budget for 1998, Byggettan estimated that the monitoring work would cost SEK 3.9 million and that the direct costs of the inspection unit (dealing with both monitoring of time-based wages and measuring of piecework) would amount to SEK 12 million. The projected revenue from the inspection work was SEK 29 million. It thus appears that the costs of the monitoring work accounted for about one-third of the inspection costs. However, as can be seen from the above-mentioned figures presented in the annual report for 1998 (see paragraph 33 above), the monitoring fees’ share of the inspection revenue came to more than two-thirds (SEK 19.8 million out of a recorded total of SEK 28.8 million). That share was approximately the same in 1997, 1999 and 2000.
37. The budgets for 2000-2003 give the estimated total costs of the various units of Byggettan. In 2000, the total projected costs of all sectors of activity were SEK 69.4 million. The monitoring unit had a budget of SEK 6.1. million and the wages and contracts unit (the largest unit of Byggettan, which, according to the description in the budget, was dealing with, inter alia, the measurement of piecework, wage negotiations and matters concerning workers’ co-determination, the work environment and safety) had a budget of SEK 18.1 million. It is not possible to discern, from the material available to the Court, how much of the latter unit’s budgeted costs related to the measuring work. Furthermore, as an unknown portion of Byggettan’s general administrative costs would presumably have to be attributed to monitoring and measuring, the total budgeted costs for the two types of inspection work cannot be established.
However, the costs of the inspection work according to the official results for 2000 appear to be considerably higher than the budgeted costs for that activity. Thus, the statement of accounts for that year attributes SEK 28.5 million in operational and administrative costs and write-offs to the inspection work, which corresponds to about 52% of the grand total of SEK 54.8 million. If, as claimed by the Government, an amount corresponding to that year’s pension fund reimbursement is to be added as an actual cost, the official costs attributed to the inspection work rise to 57% of the total costs.
38. In the budget for 2001, the projected total costs of Byggettan were SEK 73.5 million, while those pertaining to the monitoring unit and the wages and contracts unit were SEK 6.3 million and 19.6 million, respectively. The 2002 budget estimated the total costs at SEK 73.1 million. Both the monitoring unit and the new wages unit (responsible, inter alia, for measuring work) had a budget of SEK 7.2 million. In 2003, the budgeted total costs were SEK 77.8 million and those pertaining to the monitoring unit and the wages unit were SEK 7.1 million and 8.6 million, respectively.
39. A chart compiled by Mr Leif Hjelm, Deputy Head of Finance at the Union, and submitted to the Court by the Government, contains the results of the monitoring and measuring activities of all 34 branches of the Union. According to the chart, Byggettan recorded a positive result in four out of the five years presented and had an accumulated profit of SEK 36.2 million during the period. If corrected with the reimbursements received from the pension fund, the accumulated profit would amount to SEK 21.8 million. However, the chart shows a negative overall result for 26 of the branches. As a consequence, the accumulated five-year result of the inspection work of all the branches of the Union was a loss of SEK 5 million, or – if the result is corrected with the contributions made by the branches to the pension fund and the reimbursements received from that fund during the period – a loss of SEK 58 million.
It should be noted that the chart in question does not provide any information on the actual pension payments made by the Union branches, nor how the annual costs had been assigned between the inspection work and the branches’ other activities. The statements of accounts of the Gothenburg branch for the years 1997-2000 show, however, that that branch allocated the costs in much the same way as Byggettan.
40. In a statement of 23 February 2005, made in regard to the present case and submitted to the Court by the Government, Mr Rolf Andersson gave the following information on the monitoring activities of Byggettan in 1999. A total of about SEK 9.4 million was deducted from the wages of workers working for employers bound by the Construction Agreement. The total costs of the monitoring work were approximately SEK 16.4 million. A large part of the costs was financed by the employers themselves and not by means of deductions from workers’ wages.
41. In the Union’s periodical, Byggnadsarbetaren, issue no. 8/2006 (published on 18 May 2006), Mr Hans Tilly stated that the Union had a relatively low membership fee compared to other major trade unions because the monitoring and measuring fees bore the cost of the organisation of negotiations.


ITEMID: 001-115493
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF SAMPANI AND OTHERS v. GREECE - [English Translation] by European Roma Rights Centre "ERRC"
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 14+P1-2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 of Protocol No. 1 - Right to education;Right to education-{general});Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicants, all of Romani origin, living, at the time of the facts, in Psari, near Aspropyrgos. Ninety-eight applicants were school-aged children between the ages of five and a half and twelve in 2008-2009 and 2009-2010. Forty-two applicants were adults, parents or guardians of other applicants. The applicants belong to thirty-eight families. Some of them were applicants in the case which gave rise to the judgment Sampanis and others v. Greece (no. 32526/05, 5 June 2008).
6. The applicants refer to the factual circumstances of that judgment for the period up to October 2007 and in particular to the following:
“29. On 20 June 2006, the third constituency of the West Attica Primary Education Council sent a letter to the director of Attica periphery. She informed him that for the 2005-2006 school year, fifty-four students of Romani origin had been enrolled in the 10th primary school of Aspropyrgos. She stated that “preparatory classes [were] provided for the Romani students, in order to assure their adaptation to the schooling environment, given the deficiencies from which they suffered and various other reasons making it impossible for them to integrate into ordinary classes.” She added that “despite the progress made by Romani students in the preparatory classes, all of these students are not yet fit to integrate into ordinary classes.”
30. On 5 April 2007, prefabricated rooms of the 10th primary school were set on fire by unknown people. It appears from the file that in September 2007, the two rooms were replaced but because of infrastructure problems, they were not operational. In September 2007, a 12th primary school was created in Aspropyrgos, to which Romani children were transferred. The record shows that in October 2007, this school was not yet operational, because of the infrastructure problems. The Government alleges that the establishment of the 12th primary school in Aspropyrgos was intended only to relieve congestion at the 10th primary school.”
7. By Decision No. 10781/D4/2008 of 25 January 2008, published in the Official Gazette of 30 January 2008, the Ministers of Education and Finances created the 12th primary school of Aspropyrgos, which was supposed to welcome Romani and non-Romani students without distinction.
8. During the 2007-2008 school year, the Romani students were still educated in an annex of the main building of the 10th school. During Christmas vacation, the rooms of the annex building were damaged. On 8 January 2008, following a complaint lodged by the school principal, the police assured that she would approach the prosecutor.
9. According to the information provided by the 12th primary school, at the end of the 2008 school year, sixty students were enrolled at the beginning of the school, eighteen had taken occasional courses, nine had finished the school year with many absences and, after a test, three of them had been considered as having the age and level necessary to be integrated into ordinary classes.
10. On 3 March 2008, the mayor of Aspropyrgos convened the directors of the primary schools and invited them to redraw the school map and the school district zones. They attributed the same recruiting area to the 9th, 10th and 12th schools.
11. On 11 March 2008, a meeting took place at the 10th school, organised by the Ombudsman, between the direction of this school, the prefecture, the association of parents of (non-Romani) students and the Ombudsman. The point was to convince the parents to renounce their opposition to the integration of Romani students in ordinary classes. However, an intervention by the mayor of Aspropyrgos did not permit this meeting to succeed nor was it possible to enrol the three Romani students who had a sufficient level of education into ordinary classes.
12. On 8 April 2008, the Western Attica Primary Education Division defined the area of recruitment for each of the twelve schools in the region. The area of Psari, where the applicants resided, was attached to the 12th school.
13. On 24 June 2008, following a report by the committee responsible for checking of the conformity of school buildings with the provisions in force, the prefect of West Attica decided to use temporarily, for the premises of the 12th school, the prefabricated building next to the 10th school, which had been used in 2005 to host remedial classes.
14. These premises of the 12th school suffered damage again during the summer holidays of 2008, where all the equipment was stolen.
15. On 8 September 2008, the director of the 12th school reported in detail to the regional authorities of the Ministry of Education the damages inflicted upon the building and concluded that it was not in a state to welcome students. He confirmed that the state of the facilities did not meet the basic needs of the school and imperilled the safety of the students and teaching staff.
16. However, on 10 September 2008, on the eve of the first day of school, Romani families were informed that the 12th school opened its doors, on the premises next to the 10th school.
17. On 22 September 2008, a delegation of the European Commission against Racism and Intolerance (ECRI) of the Council of Europe visited, among others, the Romani community of Psari and to the 12th school.
18. On 24 September and 8 October 2008, the services of the Ministry of Education invited the mayor of Aspropyrgos and the prefect of West Attica to authorise the merging of the 12th and 11th schools, attracting attention to the fact that this case was supported by European institutions as a result of complaints lodged against Greece.
19. A letter sent on 26 September 2008 to the Ministry of Education by the mayor of Aspropyrgos and the parents of non-Romani students reads as follows:
“The creation of the 12th primary school did not aim to (...) segregate Romani students from other students in the district schools. It has, however, become an inevitable necessity because Gypsies living in tents have chosen to live a nomadic life, in dumps they have created themselves, without worrying about basic standards of hygiene, and indulging in illegal activities which have a negative impact on vulnerable social groups and, more generally, on the inhabitants of Aspropyrgos. (...) in spite of all this, [the Romani children] dare to demand to share the same classrooms as the other students of Aspropyrgos, a considerable percentage of whom are sensitive social groups or children of economic immigrants (...)”
20. On 17 October 2008, the prefect of West Attica refused the demanded authorisation (paragraph 18 above) on the grounds that he wished to avoid creating social, cultural and educational problems. He also noted that the 12th school was closer to the homes of the Romani students than the 11th.
21. On 8 December 2008, the Ombudsman of the Republic addressed the Prefect of West Attica a letter urging him to reconsider his decision of 17 October 2008. He stated, inter alia, the following:
“The 12th school of Aspropyrgos has a history of arson and vandalism which is not important to remember. However, we would like to draw your attention to the state of this school as described in the letter of 8 September 2008 sent by the director of this school to the head of the First Regional Education Office of West Attica, because this document was not submitted to you before you made your decision.
The sombre aspects of the facilities include, among other things: with respect to the school yard: the fence in some places can be dangerous for children. In addition, swings and basketball hoops are destroyed. Regarding toilets: there are currently no functioning toilets in the schools. These were all looted: faucets, light fixtures, cables, door handles, and a part of the door were stolen. With regard to classrooms: doors, windows, cables, electrical panels, lighting fixtures, benches and chairs were stolen. There is no longer any air-cooling or heating apparatus. Regarding the teachers’ room: everything that existed in this room was stolen.
In light of this, I consider that the facilities of the 12th elementary school of Aspropyrgos, as they present themselves today, are not able to cover even the basic needs of a school unit and endanger the safety of students and teachers.”
22. The Ombudsman stresses that, despite the fact that the recruitment zone of the 12th school included the relevant school population, all the students enrolled for the 2008-2009 school year belonged to the Romani community, while the Presidential Decree no. 201/1998 required that it was mandatory to transfer all students living in the recruitment zone from a school to the school in question and that the transfer should take place even in the absence of a request from the parents. The Ombudsman acknowledged that the prefecture was not responsible for the non-application of the decree, but he urged the prefecture to take into consideration, in the exercise of its functions, the fact that the non-application of the decree had had the effect of turning the 12th school into a “ghetto school,” given the fact that not a single non-Romani student from the region were enrolled there.
23. The Ombudsman also pointed out that the Ministry of Education was in favour of integrating Romani students into the mainstream education system and that a newsletter of 10 September 2008, titled “Registration and Schooling of Romani” recommended that in each class, the percentage of students from another culture did not exceed 50%.
24. The Ombudsman stated that there were problems of intolerance on the part of the non-Romani population and that the association of parents of non-Romani students had created problems in 2005. He admitted that the annex of the 10th school, renamed the 12th school, had been created under the pressure of incidents which had been caused by the parents of non-Romani students and which had led to the conviction of Greece in the judgment of the Court Sampanis and others (cited above). He pointed out that the continued refusal to authorise the merging of the 12th and of the 11th school constituted an unjustified discrimination against Romani students, as it prevented them from blending into the cultural environment of the region and was motivated solely by the prefect’s concern to avoid new incidents, this time on the part of the parents of students of the 11th school.
25. On 17 March 2009, the director of the 12th school wrote to the mayor of Aspropyrgos, inviting him to equip the Romani camp with running water because, according to him, the absence of facilities had a negative effect on the health and safety of the children, and consequently on their ability to pursue their education. By a response of 31 March 2009, the Mayor rejected this on the grounds that the owners of the land on which the Romani were living were trying to obtain the expulsion of the latter and threatened him with prosecution if he accepted the request in question.
26. On 30 May and 20 July 2009, the applicants address two letters to the competent services of the Ministry of Education and to the Minister himself, inviting them to allow Romani children to attend the 10th school and to establish a program for them which would have been designed for the Muslim Romani of Thrace and which would have proved effective. They received no answer.
27. On 11 June 2009, the director of the 12th school informed the services of the Minister of Education that the school books were inappropriate for the Romani whose maternal language was not Greek.
28. On 23 July 2009, the Ombudsman wrote again to the Ministry of Education. He informed him that the prefect, which had, on 17 October 2008, refused to authorise the merging of 12th and 11th schools, did not wish to revisit this decision. He stressed that the operation of this ghetto school for Romani students was contrary to the position of the ministry, which was unfavourable to schools “exclusively reserved for Gypsy students.” He availed himself of the letter of 8 September 2008 from the Director of the 12th school, according to which the state of the facilities would not have covered the basic needs of a school and would have jeopardised the safety of students and teaching staff. He added that the needs could not be met by the mayor of Aspropyrgos, who openly declared on 26 September 2008, that the Romani children “dare to demand to share the same classrooms as the other students of Aspropyrgos”. He pointed out that the mayor had ignored an invitation from the regional authorities of the ministry to “do what is necessary for the immediate rehabilitation” of the 12th school. He drew attention to the fact that Greece was “under control” in executing the judgment of Sampanis and others and that it had not made any progress so far in this regard.
29. On 1 August 2009, the applicants lodged a complaint against the 10th and 12th schools with respect to the duties of the office. The examination of the complaint was still pending as of the date of submission to the Court, on 10 October 2011, of their observations in response to those of the Government.
30. The documents in the file show that between October 2008 and June 2009, the director of the 12th school sent several letters to regional education authorities, the prefect and the mayor of Aspropyrgos to alert them to the shortcomings which the school would have faced, including the school bus route, the construction of a playground, the installation of additional heating and toilets, the construction of two additional classrooms, and the creation of a kindergarten and the abandonment of classes by some students from April 2009.
31. According to the Government, the prefabricated building in which the 12th school had been installed had four classrooms, a teacher’s office, four toilets, two shower rooms, a cafeteria, and a landscaped courtyard. Three classes had been created while the official capacity of the school would be six classes. It appears from a document prepared by the Ministry of Education on 12 July 2011 and submitted by the Government that during the period of operation of the 12th school (2008-2011), two students had obtained their diploma for finishing primary school.
32. From 2009, the school would have had a fax machine, a photocopier, a computer and a library. There would have been five teachers: four teachers and a gymnastics teacher. The number of students enrolled at the material time (2008-2009) would have been 226. The school attendance of the students would have been irregular, the number of people present varying from thirty to sixty per day because of the way of life of these students’ families, frequently traveling for seasonal work.
33. The fact that all students of the 12th school were of Romani origin was due to the attitude of local society and not to the Greek state. The Ministry of Education reportedly asked the school administration to proceed with the immediate registration of non-Romani children whose homes were in the school’s recruitment zone, even in the absence of a request on the part of the parents concerned, but it would have been found out that these children were already enrolled in other schools, private or public.
34. On the basis of the official documents in the file, the applicants challenge several of the Government’s assertions, particularly those concerning the configuration and the size of the school as well as the number of classes in service. According to their version, the extension of the school to its current size took place in December 2009, but its capacity was still insufficient for the approximately 200 students who would have been enrolled. By a letter of 29 September 2009, the director of the 12th school had informed the competent authorities of the Ministry of Education that only two novice teachers, without any experience, were assigned to the school. However, according to the applicants who refer to a ministerial decision of 25 September 2006, the school should have provided, in addition to the director, at least four teachers for the 2008-2009 school year for the number of 226 students provided by the Government, which would be incorrect.
35. The absenteeism of Romani students would have been due to the location of the bus stop, far from the school, and to the impossibility for Romani students to walk in the cold and rain without suitable clothing. In addition, they should have crossed the area where the racist incidents in 2004-2005 led to the creation of the prefabricated annex of the 10th school reserved for Romani students.
36. According to the applicants, following the establishment of the school map, in April 2008, the administration of the 10th school should have provided the 12th school the names of the students enrolled in the 10th grade and who, according to the new demarcation were to be transferred to the 12th school for the 2008-2009 school year. The applicants state that, if this transfer had taken place, the 12th school would have had from the beginning of its operation, hundreds of non-Romani students and thus would have been an ordinary school. This would never have happened because the new school would have been designed to work only with Romani students.
37. According to the Government, the applicants Zografo Sampani, Andreas Sampanis, Georgia Sampani, Ionna Sampani and Thomas Christakis had an education which was considered “sufficient” from the point of view of their participation in the courses.
38. The applicants Ionnis Sampanis, Christos Sampanis, Kyprianos Velios, Christina Veliou, Panayotis Liakopoulos, Kyriakos Sampanis, Panayota Passio, Ekias Bantis, Ako Passiou, Kyriaki Karahaliou, Vasilios Sampanis, Maria Sampani, Ako Sampani, Giannoula Sampani, Nikolaos Mouratis, Ako Tsakiris, Ako Tsakiri and Antonios Karagounis were said to have had an “occasional” schooling: they would have gone to class from time to time, so that their schooling would have been interrupted by long periods of absence.
39. The other child applicants, that is 75 out of 98 children, would not have been enrolled in school and would not have had the quality of students at the 12th school.
40. On the intervention of the Greek Helsinki Monitor and of its executive director acting as the parents’ representative, the 12th school would have registered all the child applicants, except Ako Sampani, Vasiliki Sampani, Ako Pasios and Paraskevi Sampani. Paraskevi Sampani had completed her primary education in 2008 in a school other than the 12th Aspropyrgos school. Among the students enrolled, 59 reportedly dropped out of school during the year. The schooling of the 35 others would have been occasional.
41. In the first place, the applicants allege that the disclosure by the Government of the above elements concerning them personally constitutes a violation of the law No. 2472/1997 on the protection of personal data and of Article 8 of the Convention.
42. In second place, they indicate that these elements are not reliable: the terms employed by the Government such as “sufficient” and “occasional” schooling, were vague, which indicated that the authorities of the 12th school did not have a precise insight as to the education of the applicants but that they were based on impressions. Moreover, the information provided by the Government concerning some of the student applicants had contradicted those produced by the Government in the execution of the Sampanis and others v. Greece judgment (cited above).
43. The relevant articles in this case of Legislative Decree No. 18/1989 on the codification of the provisions of the laws on the State Council read as follows:
Article 45
Acts which may be challenged
« 1. An action for annulment alleging abuse of authority or a violation of the law is admissible only against enforceable decisions of the administrative authorities and legal persons of public law which are not subject to appeal before any other jurisdiction.
(...)
4. In cases where the law requires an authority to settle a particular question by enacting an enforceable act subject to the provisions of paragraph 1, the action for annulment is admissible even against the failure of that authority to enact such an act.
The authority is presumed to refuse to enact the act either when the special period of time fixed by the law expires or after the expiry of a period of three months from the filing of the petition with the court which is required to issue an acknowledgment of receipt (...) indicating the day of the deposit. The action for annulment before the expiry of the aforementioned periods is inadmissible.
An action for annulment validly lodged against an implied refusal [of the administration] is also an appeal against the negative act which, if need be, is subsequently adopted by the administration; however, this act my also be attacked separately.”
Article 48
“The grounds for an action for annulment are:
1. the incompetence of the administrative authority issuing the administrative act;
2. the defect of form;
3. excess of power;
4. misuse of powers, where the administrative act has all the elements of legality, but has a purpose other than that for which it was adopted.”
44. In supervising the execution of the aforementioned Sampanis and others judgment, the Committee of Ministers adopted the Resolution which closed the examination of the case in the following terms:
“The Committee of Ministers, by virtue of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee shall supervise the execution of the final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);
With regard to the judgment delivered by the Court to the Committee once final;
Recalling that the violations of the Convention found by the Court in this case concern the non-enrolment of the applicants’ Romani children, then their schooling in special preparatory classes, as well as the lack of an effective remedy to obtain redress for this (violation of Article 14 in conjunction with Article 2 of Protocol No. 1 and violation of Article 13)) (see details in Annex);
Having invited the government of the respondent State to inform it of the measures which it has taken to comply with the judgment of the Court in accordance with its obligation under Article 46, paragraph 1, of the Convention;
Having examined the information transmitted by the government in accordance with the Rules of the Committee for the application of Article 46, paragraph 2 of the Convention;
Having satisfied itself that, within the prescribed time limit, the respondent State paid the applicant the just satisfaction provided in the judgment (see details in the Annex),
Recalling that the finding of a violation by the Court requires, in addition to the payment of the just satisfaction awarded by the Court in judgments, the adoption by the respondent State, if necessary:
– individual measures putting an end to the violations and erasing the consequences, if possible by restitutio in integrum; and
– general measures to prevent similar violations;
Recalling that the decisions of the Committee of Ministers under Article 46, paragraph 2 of the Convention do not anticipate the Court’s examination of other cases currently pending before it;
Declares, after having examined the measures taken by the respondent State (see Annex), that it has performed its function in virtue of Article 46, paragraph 2 of the Convention in the present case and
Decides to close the examination.
Annex to Resolution CM/ResDH(2011)119
Information on the measures taken to comply with the judgment in Sampanis and others v. Greece
Introductory summary of the case
The case concerns the non-enrolment of the applicants’ children for the 2004-2005 school year and their schooling in 2005 in special preparatory classes. In particular, the Court concluded that despite the authorities’ willingness to enrol the Romani children, the conditions for enrolling these children in school and their assignment in special preparatory classes – in an annex to the main building of the school – ultimately resulted in discrimination (violation of Article 14 in conjunction with Article 2 of Protocol No. 1). The case also concerns the lack of an effective remedy for redress in this regard. In particular, the Court noted that the Greek Government had not produced any case law demonstrating that the use of such a remedy could have led to the annulment of the alleged failure of the administration to proceed with the registration of the children (violation of Article 13).
On the non-enrolment of children in 2004-2005, the Court noted that the Greek law recognises the particularity of the Romani situation, facilitating the procedure of registering the students in school. In this case, the authorities should have recognised the particularity of the situation of the Romani community and facilitated their enrolment in the primary school. However, even if the authorities did not explicitly refuse to enrol the students, they failed to execute as such, despite the explicit wish of the parents for them to be enrolled in school, to the competent school authorities.
As for the special preparatory classes in an annex to the 10th primary school of Aspropyrgos, in which the applicants’ children had been placed in 2005, the Court found that the competent authorities had not relied on a unique and clear criterion for the children’s placement. It noted in particular that the authorities had not performed adequate tests to which the children concerned would have been subjected in order to assess their aptitudes or potential learning disabilities. Moreover, even if the objective ascribed to these classes was so that the students concerned could achieve a level to integrate in due course into ordinary classes, not a single example was cited (among the 50 students concerned) who had integrated into ordinary classes of the primary school of Aspropyrgos. In addition, it had not been established that there were tests of evaluation to which the Romani students were periodically subjected to allow the school authorities to apprehend their aptitude to integrate into ordinary classes, on the base of objective data and not on rough estimates.
I. Payment of just satisfaction and individual measures
(...)
b) Individual measures
Special preparatory classes in an annex of the 10th primary school of Aspropyrgos have been discontinued.
Greek authorities have adopted measures to facilitate the enrolment of the applicants’ children in an ordinary school following the judgment of the Court. A new ordinary primary school (the 12th primary school of Aspropyrgos) has been created in virtue of the ministerial decision No. 10781/D4/2008. The school which is supposed to welcome as many Romani children as non-Romani children, covers the area in which the Romani community of Aspropyrgos resides. These measures were thus intended to assure the schooling of the applicants’ children in an ordinary school.
II. General measures
1) On the violation of Article 14 in conjunction with Article 2 of Protocol No. 1
The Greek authorities have provided much information as part of their consolidated action plan (DH-DD(2011)52) as well as additional information thereafter. This information is summarised below:
Measures concerning the registration and schooling of Romani children
Specific measures have been adopted to facilitate the registration of Romani children in the primary school. In contrast to other students, Romani children are enrolled in the primary school according to a simplified process based on a simple declaration, without the need to provide certificates. The authorities have published several circulars with the intent of instructing the school administrations on the simplified registration of Romani children and to verify that they regularly attend classes (nos F.1.T.Y./1073/117052/G1/23-9-2009, F.3/960/102679/G1/20-8-2010, 114893/G2/14-9-2010).
Greek authorities have also adopted a number of measures to integrate Romani children into national education and to put an end to the discrimination to which they are subject in this area. These measures include in particular the establishment of a new education policy based on the French model of “priority education zones”. These zones – including the region of Aspropyrgos – aim to reinforce the integration of the most vulnerable social groups (Romani, migrants, etc.) through a number of actions and through education (Ministerial Decision AF.821/3412P/157476/Z1/31-12/2010). In addition, the awareness campaign Dosta! promoted by the Council of Europe to combat stereotypes and prejudices against Romani was also launched in Greece by the Minister of Education in February 2011. The Greek campaign focuses on primary and secondary education.
Additionally, the authorities have begun, as of the 2010-2011 school year, a specific program for active participation of Romani children in national education, which will be implemented by two major Greek universities. In compliance with this program, the authorities have put into place special intermediaries who speak Romani fluently, in order to help Romani families with their children’s schooling. They have thus recruited 15 intermediaries in the Attica region, with one in the Aspropyrgos region. The Council of Europe is in the process of organising a number of training courses for them as part of its European Romani Intermediary Training Program (ROMED). In accordance with the program “Education for Romani Children”, the authorities have also set up social workers to provide psychological support to Romani families. One of the tasks for the social workers is to go to schools with Romani students and in Romani communities in order to identify Romani children who should go to school and to encourage their parents to send them there. School support is offered to Romani children with learning difficulties, through extracurricular support activities (supplementary classes and remedial school activities), including in the Aspropyrgos region. The authorities have also provided special training on intercultural education to teachers. At the beginning of 2011, the Ministry of Education set up an Advisory Committee for the “Education for Romani Children” program which plays an advisory role on relevant issues as well as a monitoring and evaluating role in the implementation of the program “Education for Romani Children”. This committee includes representatives of the Council of Europe, the European Commission, the OSCE/ODIHR and other major actors.
The Greek authorities also created three educational adult education centres – the Adult Education Institute, the Adult Education Centre and the School for Parents. People of Romani origin can participate beginning at age 15.
Finally, the Greek authorities have regularly provided information on the measures taken to improve the facilities and the working conditions of the 12th primary school of Aspropyrgos, while noting that questions related to the functioning of this school are presently being examined by the European Court in the context of a new application (Application No. 59608/09, communicated to the authorities on 11/04/2011).
2) On the violation of Article 13 concerning the failure of the authorities to register the applicants’ children
The Greek authorities have indicated that the acts or failures of the school authorities are in fact administrative acts. These may be challenged in the context of an administrative procedure (before the administrative courts of appeal at first instance and before the State Council at second instance). In the present case, the Court found a violation due to the lack of an effective remedy, since the authorities could not produce case law examples in a similar context. They indicate that such an ad hoc case-law does not exist. However, domestic courts have held in a series of decisions following the Court’s judgment, that the administrative court of appeal was competent to hear applications for the annulment of administrative acts on education (for example, decisions of school authorities to change the school environment for certain students following their conduct; decision of non-enrolment following an interruption of studies; decision not to accept a student to a precise degree of college following qualifying exams)”.
45. The report of the European Commission against Racism and Intolerance (ECRI) on Greece adopted 2 April 2009 and published 15 September 2009, states that:
« 52. In its third report, the ECRI strongly recommended that the Greek authorities promote equal opportunities for access to education for children from minority groups by organising Greek lessons and remedial classes and ensuring access of these children to education in their mother tongue.
53. The ECRI notes with concern that Romani continue to be disadvantaged in the realm of education. Some schools always refuse to accept Romani children, which can often account for the fact that in some cases, Romani children are separated from other children, inside the same establishment or nearby. In one case, the European Court of Human Rights decided that Greece had violated Article 14 of the European Convention of Human Rights (the right to enjoy without discrimination the rights outlined in the Convention) in conjunction with Article 2 of Protocol No. 1 of the European Convention of Human Rights (the right to education). The ECRI has learned that at Spata, where Romani children were first refused enrolment in school, a separate class was created to accommodate them in order to allow them to progressively adapt to the school environment. Conscient of the necessity for progressive integration in the school system, the ECRI would like to draw the attention of the Greek authorities to its point of view on this question, which is stated in the General Policy Recommendation No. 10 on racism and racial discrimination in education. This general policy recommendation supports the creation, in particular cases and limited in duration, of preparatory classes for students from minority groups, if a real need is justified by objective and reasonable criteria and if the best interest of the children dictates it.
54. As the Greek authorities themselves have noted and as the Ombudsman has confirmed, the drop-out rate among Romani students is very high. The authorities have signalled that special programs providing psychological support or social assistance, including intercultural education, had been established to treat this problem. However, in the absence of disaggregated data on the situation of the Romani, it is difficult to carry out an in-depth evaluation and design specific programs for this group. On this subject, the ECRI would like to draw the attention of the Greek authorities to its General Policy Recommendation No. 10 on the fight against racism and racial discrimination in education, in which it recommends that either carried out in collaboration with civil society, studies on the situation of children from minority groups in the school system in gathering statistic data on: 1) their rate of attendance and of success; 2) their dropout rate; 3) their school results and 4) their progress. In this General Policy Recommendation, the ECRI recommends to Member States to collect the necessary information to assess the problems with which students from minority groups are confronted in the domain of education in order to put into place policies to resolve these problems.
55. The authorities have indicated that a program, co-funded by the European Union and the Greek state, deals with issues such as remedial courses in Greek, mathematics, and history for Romani children and also oversees continued teacher training. However, the ECRI has been informed of the needs for preparatory classes for Romani students and for adequately trained teachers. This is all the more necessary as the resulting benefits for Romani students are significant. Education is one of the objectives of the Integrated Action Program for the Social Inclusion of Romani adopted in 2002. However, more measures must be taken in order, in particular, that the difficulties faced by the Romani in the area of education are dealt with under this program. An interministerial commission coordinates, within the Ministry of the Interior, the activities of all the ministries involved in the implementation of the Integrated Action Plan for the Social Inclusion of Romani. It is of crucial importance that all the ministries concerned work in concert, in the measure where the situation of Romani children in the school system is inextricably tied to their socioeconomic situation, including their housing conditions and the high rate of unemployment among their parents.
56. The ECRI exhorts the Greek authorities to reinforce the measures taken to face the difficulties which Romani children meet in the area of education, particularly exclusion, discrimination and a low success rate, in accordance with, among others, the judgment delivered by the European Court of Human Rights on the issue and its recommendation of General Policy Recommendation No. 10 on the fight against racism and racial discrimination in education. It also recommends them to adopt a comprehensive strategy to address these difficulties, including through the Interministerial Commission on Romani issues.
VIOLATED_ARTICLES: 14
P1
VIOLATED_PARAGRAPHS: P1-2


ITEMID: 001-60449
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF BURDOV v. RUSSIA
IMPORTANCE: 1
CONCLUSION: Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 7. On 1 October 1986 the applicant was called up by the military authorities to take part in emergency operations at the site of the Chernobyl nuclear plant disaster. The applicant was engaged in the operations until 11 January 1987 and, as a result, suffered from extensive exposure to radioactive emissions.
8. In 1991, following an expert opinion which established the link between the applicant's poor health and his involvement in the Chernobyl events, the applicant was awarded compensation.
9. In 1997 the applicant brought proceedings against the Shakhty Social Security Service (Управление социальной защиты населения по г. Шахты) as the compensation had not been paid. On 3 March 1997 the Shakhty City Court (Шахтинский городской суд) found in the applicant's favour and awarded him 23,786,567 [The amount is indicated without regard to the denomination in 1998. In accordance with the Presidential Decree “on the Modification of Face Value of Russian Currency and Standards of Value” of 4 August 1997, 1,000 “old” roubles became 1 “new” rouble from 1 January 1998] Russian roubles (RUR) of the outstanding compensation and an equal sum in the form of a penalty.
10. On 9 April 1999 the Shakhty Bailiff's Service (Служба судебных приставов г. Шахты) instituted enforcement proceedings for recovery of the penalty awarded on 3 March 1997.
11. In 1999 the applicant brought an action against the Social Security Service to challenge a reduction in the amount of the monthly payment and to recover the unpaid compensation. On 21 May 1999 the Shakhty City Court restored the original amount of the compensation and ordered the Social Security Service to make monthly compensation payments of RUR 3,011.36 with subsequent indexation. The court also ordered the payment of outstanding moneys totalling RUR 8,752.65.
12. On 30 August 1999 the Shakhty Bailiff's Service instituted proceedings to enforce the judgment of 21 May 1999.
13. On 16 September 1999 the Shakhty Bailiff's Service notified the applicant that even though the proceedings to enforce the judgment of 3 March 1997 were pending, the payments to the applicant could not be made because the Social Security Service was underfunded.
14. On 7 October 1999 the Rostov Regional Department of Justice (Главное управление юстиции Ростовской области) notified the applicant that the two judgments could not be complied with because the defendant did not have sufficient funds.
15. Following a complaint by the applicant about the failure to enforce the judgments, on 12 November 1999 the prosecutor of Shakhty informed the applicant that the Bailiff's Service was following the established enforcement procedure but had been hampered by the defendant's lack of proper funding.
16. On 22 December 1999 the Rostov Regional Department of Justice informed the applicant that funds to pay the Chernobyl compensation had been allocated from the federal budget and that payment would be made upon receipt of an appropriate transfer from the Ministry of Finance.
17. On 26 January 2000 the Rostov Regional Prosecutor's Office (Прокуратура Ростовской области) informed the applicant that the non-enforcement could in no way be attributed to the Bailiff's Service, and that the debts would be discharged as soon as proper allocations had been made from the federal budget.
18. On 22 March 2000 the Rostov Regional Department of Justice notified the applicant that compensation of Chernobyl victims would be financed from the federal budget.
19. On 11 April 2000 the Shakhty Bailiff's Service informed the applicant that it was impossible to enforce the judgments in his favour because the Rostov Regional Ministry of Labour and Social Development (Министерство труда и социального развития Ростовской области) was underfunded.
20. On 16 May 2000 the Shakhty prosecutor informed the applicant that even though the Social Security Service had recalculated the amount of compensation due to the applicant in accordance with the judgment of 21 May 1999, the payments had not been made because of lack of funding.
21. On 9 March 2000 the Shakhty City Court ordered the indexation of the amount of the penalty awarded on 3 March 1997, which had still not been paid to the applicant. An additional writ of execution for the amount of RUR 44,095.37 was issued.
22. Following a decision taken by the Ministry of Finance, on 5 March 2001 the Shakhty Social Security Service paid the applicant the outstanding debt of RUR 113,040.38.
23. According to information provided by the social security service on 11 February 2002, the compensation to be paid to the applicant for the period between April 2001 and June 2002 has been assessed at RUR 2,500 per month.
24. Section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997 provides that a bailiff's order on the institution of enforcement proceedings must fix a time-limit for the defendant's voluntary compliance with a writ of execution. The time-limit may not exceed five days. The bailiff must also warn the defendant that coercive action will follow, should the defendant fail to comply with the time-limit.
25. Under section 13 of the Law, the enforcement proceedings should be completed within two months of the receipt of the writ of enforcement by the bailiff.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58135
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: GRANDCHAMBER
DATE: 1998
DOCNAME: CASE OF GUERRA AND OTHERS v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 8;Not necessary to examine Art. 2;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
JUDGES: C. Russo;John Freeland
TEXT: 12. The applicants all live in the town of Manfredonia (Foggia). Approximately one kilometre away is the Enichem agricoltura company’s chemical factory, which lies within the municipality of Monte Sant’Angelo.
13. In 1988 the factory, which produced fertilisers and caprolactam (a chemical compound producing, by a process of polycondensation, a polyamide used in the manufacture of synthetic fibres such as nylon), was classified as “high risk” according to the criteria set out in Presidential Decree no. 175 of 18 May 1988 (“DPR 175/88”), which transposed into Italian law Directive 82/501/EEC of the Council of the European Communities (the “Seveso” directive) on the major-accident hazards of certain industrial activities dangerous to the environment and the well-being of the local population.
14. The applicants said that in the course of its production cycle the factory released large quantities of inflammable gas – a process which could have led to explosive chemical reactions, releasing highly toxic substances – and sulphur dioxide, nitric oxide, sodium, ammonia, metal hydrides, benzoic acid and above all, arsenic trioxide. These assertions have not been disputed by the Government.
15. Accidents due to malfunctioning have already occurred in the past, the most serious one on 26 September 1976 when the scrubbing tower for the ammonia synthesis gases exploded, allowing several tonnes of potassium carbonate and bicarbonate solution, containing arsenic trioxide, to escape. One hundred and fifty people were admitted to hospital with acute arsenic poisoning.
16. In a report of 8 December 1988 a committee of technical experts appointed by Manfredonia District Council established that because of the factory’s geographical position, emissions from it into the atmosphere were often channelled towards Manfredonia. It was noted in the report that the factory had refused to allow the committee to carry out an inspection and that the results of a study by the factory itself showed that the emission treatment equipment was inadequate and the environmental-impact assessment incomplete.
17. In 1989 the factory restricted its activity to the production of fertilisers, and it was accordingly still classified as a dangerous factory covered by DPR 175/88. In 1993 the Ministry for the Environment issued an order jointly with the Ministry of Health prescribing measures to be taken by the factory to improve the safety of the ongoing fertiliser production, and of caprolactam production if that was resumed (see paragraph 27 below).
18. In 1994 the factory permanently stopped producing fertiliser. Only a thermoelectric power station and plant for the treatment of feed and waste water continued to operate.
19. On 13 November 1985 420 residents of Manfredonia (including the applicants) applied to the Foggia Magistrates’ Court (pretore) complaining that the air had been polluted by emissions of unknown chemical composition and toxicity from the factory. Criminal proceedings were brought against seven directors of the impugned company for offences relating to pollution caused by emissions from the factory and to non-compliance with a number of environmental protection regulations.
Judgment was given on 16 July 1991. Most of the defendants escaped a prison sentence, either because the charges were covered by an amnesty or were time-barred, or because they had paid an immediate fine (oblazione). Only two directors were sentenced to five months’ imprisonment and a fine of two million lire and ordered to pay damages to the civil parties, for having had waste dumps built without prior permission, contrary to the relevant provisions of DPR 915/82 on waste disposal.
20. On appeals by the two directors who had been convicted and by the Public Electricity Company (ENEL) and Manfredonia District Council, which had both joined the proceedings as civil parties claiming damages, the Bari Court of Appeal acquitted the directors on 29 April 1992 on the ground that the offence had not been made out but upheld the remainder of the impugned decision. The court held that the errors which the directors were alleged to have made in the management of the waste were in fact attributable to delays and uncertainties in the adoption and interpretation, particularly by the Region of Apulia, of regulations implementing DPR 915/82. Consequently, there was no damage that gave rise to a claim for compensation.
21. A joint committee of representatives from the State and the Region of Apulia was set up within the Italian Ministry for the Environment to implement the Seveso directive.
The committee ordered a technical survey, which was carried out by a panel established by an order of the Minister for the Environment of 19 June 1989. The panel had the following remit:
(a) to report on whether the factory conformed to environmental regulations as regards discharge of waste water, treatment of liquid and solid waste, emissions of gases, and noise pollution; to report on safety aspects; and to check what authorisations had been granted to the factory to those ends;
(b) to report on whether the factory site was compatible with its environment, having particular regard to the problems of protecting the health of the local population and the fauna and flora and of making appropriate use of the land;
(c) to suggest what action should be taken to obtain any missing data required to complete the reports under (a) and (b) above and to identify measures to be taken to protect the environment.
22. On 6 July 1989 the factory submitted the safety report required by Article 5 of DPR 175/88.
23. On 24 July 1989 the panel presented its report, which was sent to the State/Regional Joint Committee. The latter published its conclusions on 6 July 1990 and fixed 30 December 1990 as the date on which the report required by Article 18 of DPR 175/88 on the risk of major accidents should be submitted to the Minister for the Environment. It also recommended:
(a) commissioning studies of the factory’s safety and compatibility with its environment, additional analyses of disaster scenarios and of the preparation and implementation of emergency procedures;
(b) introducing a number of changes designed to reduce the atmospheric emissions drastically and to improve the treatment of waste water, making radical alterations to the production cycles for urea and nitrogen and carrying out studies on the pollution of the subsoil and on the hydrogeological structure of the factory site. These steps were to be taken within three years. The panel also referred to the need to solve the problems of liquid combustion and the reuse of sodium salts.
The panel further called for a public industrial-pollution monitoring centre, to be set up by 30 December 1990, to carry out periodic checks on the factory’s practices in relation to public health and environmental protection and to act as an epidemiological observatory.
24. On 20 June 1989 the problems relating to the operation of the factory were raised in a parliamentary question to the Minister for the Environment. On 7 November 1989, in the European Parliament, a question on the same point was put to the Commission of the European Communities. Replying to the latter question, the relevant Commissioner stated that (1) Enichem had sent the Italian Government the safety report requested pursuant to Article 5 of DPR 175/88; (2) on the basis of that report the Government had opened an investigation, as required by Article 18 of DPR 175/88 to check safety at the factory and, if appropriate, to identify any further safety measures needed; and (3) so far as the application of the Seveso directive was concerned, the Government had taken the requisite measures with regard to the factory.
25. Articles 11 and 17 of DPR 175/88 require the relevant mayor and prefect to inform local inhabitants of the hazards of the industrial activity concerned, the safety measures taken, the plans made for emergencies and the procedure to be followed in the event of an accident.
26. On 2 October 1992 the Coordinating Committee for Industrial Safety Measures gave its opinion on the emergency plan that had been drawn up by the prefect of Foggia, in accordance with Article 17 § 1 of DPR 175/88. On 3 August 1993 the plan was sent to the relevant committee of the Civil Defence Department. In a letter of 12 August 1993 the under-secretary of the Civil Defence Department assured the prefect of Foggia that the plan would be submitted promptly to the Coordinating Committee for its opinion and expressed the hope that it could be put into effect as quickly as possible, given the sensitive issues raised by planning for emergencies.
27. On 14 September 1993 the Ministry for the Environment and the Ministry of Health jointly adopted conclusions on the factory’s safety report of July 1989, as required by Article 19 of DPR 175/88. Those conclusions prescribed a number of improvements to be made to the installations, both in relation to fertiliser production and in the event of resumed caprolactam production (see paragraph 17 above) and provided the prefect with instructions as to the emergency plan for which he was responsible and the measures required for informing the local population under Article 17 of DPR 175/88.
In a letter of 7 December 1995 to the European Commission of Human Rights, however, the mayor of Monte Sant’Angelo indicated that the investigation for the purpose of drawing up conclusions under Article 19 was still continuing and that he had not received any documents relating to them. He pointed out that the District Council was still awaiting direction from the Civil Defence Department before deciding what safety measures should be taken and what procedures should be followed in the event of an accident and communicated to the public. He said that if the factory resumed production, the measures for informing the public would be taken as soon as the conclusions based on the investigation were available.
28. As regards the obligation to inform the public on matters of environmental and public safety, Article 5 of DPR 175/88 provides that any undertaking carrying on dangerous activities must submit a report to the Ministry for the Environment and the Ministry of Health giving details of, among other things, its activities, emergency procedures in the event of a major accident, the persons responsible for carrying these procedures out, and the measures taken by the undertaking to reduce the risks to the environment and public health. Article 21 of DPR 175/88 provides that anyone in charge of an undertaking who fails to submit the report required by Article 5 may be sentenced to up to one year’s imprisonment.
29. At the material time Article 11 § 3 of DPR 175/88 provided that mayors were under a duty to inform the public of
(a) the nature of the production process;
(b) the nature and quantities of the substances involved;
(c) the potential risks to employees and workers in the factory, members of the public and the environment;
(d) the conclusions on the safety reports submitted by the factory pursuant to Article 5 and on any additional measures referred to in Article 19; and
(e) the safety measures and procedures to be followed in the event of an accident.
Article 11 § 2 provided that, in order to protect industrial secrets, any person responsible for examining reports or information from the undertakings concerned was forbidden to disclose any information that he had thereby obtained.
30. Article 11 § 1 provided that data and information on industrial activities obtained pursuant to DPR 175/88 could be used only for the purposes for which they had been requested.
That provision was partly amended by Legislative Decree no. 461 of 8 November 1995. Paragraph 2 of that decree provides for an exception to the ban on disclosure of industrial secrets in the case of certain information, namely that contained in an information sheet which the undertaking must complete and send to the Ministry for the Environment and the regional or inter-regional technical committee. Mayors’ duties with regard to informing the public are unchanged and now appear in paragraph 4.
31. Article 17 of DPR 175/88 also lays certain obligations on the prefect in the matter of providing information. In particular, paragraph 1 of that provision (now paragraph 1 bis) requires the prefect to draw up an emergency plan based on the information supplied by the factory and the Coordinating Committee for Industrial Safety Measures. That plan must be sent to the Ministry of the Interior and the Civil Defence Department. Paragraph 2 goes on to provide that, after drawing up the emergency plan, the prefect must adequately inform the population concerned of the hazards of the activities, the safety measures taken to prevent a major accident, the emergency procedures planned for the area outside the factory should a major accident occur and the procedures to be followed in the event of an accident. The amendments made to this Article in the aforementioned legislative decree include a new paragraph 1, to the effect that the Civil Defence Department must establish reference criteria for emergency planning and the adoption of measures for the supply of information to the public by the prefect, and repeal of paragraph 3, which provided that the information referred to in paragraph 2 had to be sent to the Ministry for the Environment, the Ministry of Health and the regional authorities concerned.
32. Section 14(3) of Law no. 349 of 8 July 1986, by which the Ministry for the Environment in Italy was created and the first legal provisions on environmental damage introduced, provides that everyone has a right of access to the information on the state of the environment which is, in accordance with the law, available at the offices of the administrative authorities and may obtain a copy on defrayment of the authorities’ costs.
33. In a judgment (no. 476) of 21 November 1991 the Council of Administrative Law for Sicily (Consiglio di Giustizia amministrativa per la Regione siciliana – which in Sicily replaces the Supreme Administrative Court) held that the concept of “information on the state of the environment” included any information about human beings’ physical surroundings and concerning matters of some interest to the community. On the basis of those criteria, the Council of Administrative Law held that a district council was not justified in refusing to allow a private individual to obtain a copy of analyses of the fitness of water in the district in question for use as drinking water.
34. Of particular relevance among the various Council of Europe documents in the field under consideration in the present case is Parliamentary Assembly Resolution 1087 (1996) on the consequences of the Chernobyl disaster, which was adopted on 26 April 1996 (at the 16th Sitting). Referring not only to the risks associated with the production and use of nuclear energy in the civil sector but also to other matters, it states “public access to clear and full information ... must be viewed as a basic human right”.
VIOLATED_ARTICLES: 8


ITEMID: 001-5227
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: BIJLEVELD v. THE NETHERLANDS
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Elisabeth Palm
TEXT: The applicant is a Dutch national, born in 1958, and living in Leiden. She is represented before the Court by Ms A.N.H.M. Spruit, a lawyer practising in Rotterdam.
A.
The applicant and her husband have two sons, born in 1988 and 1991 respectively, and two daughters, born in 1994 and 1997 respectively.
Pursuant to the relevant rules of Dutch law, these children bear the surname of the applicant’s husband. As the applicant and her husband wished their sons to bear the surname of their father and their daughter to bear the surname of the applicant, the applicant filed a request on 12 September 1994 to change the surname of her, at that time still unborn, daughter.
On 24 November 1994, the State Secretary of Justice (Staatssecretaris van Justitie) rejected the applicant’s request. The applicant’s subsequent appeal to the Regional Court (Arrondissementsrechtbank) of The Hague was rejected on 23 May 1996. The applicant filed a further appeal with the Administrative Law Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State).
It recalled that the State Secretary had based the refusal of the applicant’s request on a finding that the relevant rules on the chance of surnames did not foresee in a request like the applicant’s one and that it had not been established that there were such special circumstances on the basis of which a strict application of the relevant rules would not be acceptable ex aequo et bono. It further noted that the Regional Court had also not found such circumstances.
Insofar as the applicant argued that the Dutch rules on surnames are contrary to Article 26 of the International Covenant on Civil and Political Rights in that they amount to a discriminatory treatment between men and women, the Administrative Law Division held that the request at issue only concerned one of the applicant’s children whereas no such request had been made for her other two children. The refusal at issue was not found to be discriminatory as it achieved that all children having the same parents bear the same surname and that therefore no difference between boys and girls was made. Moreover, in the Act of 10 April 1997 amending Articles 5 and 9 of Book I of the Civil Code (Burgerlijk Wetboek), the legislator had, in the meantime, created the possibility for parents to choose themselves which of their respective surnames their children will bear, albeit with the restriction that all of their children must bear the same surname. It held that this restriction was in conformity with its consideration as to the alleged discriminatory character of the refusal of the applicant’s request.
As to the applicant’s argument that the refusal of her request was in violation of Article 8 of the Convention, the Administrative Law Division held that there was no interference, as such, with the applicant’s rights under this provision in that the refusal did not alter the applicant’s personal situation or her family life with her daughter. As to the question whether the Netherlands were under a positive obligation under Article 8 of the Convention to grant the applicant’s request, it was held that the applicant’s personal interest, i.e. the continuation of her family name by her daughter’s surname, was outweighed by the general interest in preserving the stability required in the legal rules governing names (“de handhaving van de nodige stabiliteit in het namenrecht”) and that, therefore, the Netherlands authorities were not under a positive obligation to grant the applicant’s request.
B. Relevant domestic law and practice
Until 1 January 1998, a child born in wedlock or a child whose father had recognised his paternity automatically obtained the father’s surname. Only limited possibilities existed to obtain change of one’s surname.
On 1 January 1998, as a result of the entry into force of the Act of 10 April 1997 amending Articles 5 and 9 of Book I of the Civil Code, the rules governing surnames were changed.
Under the new situation, married parents may make a joint formal declaration, either before or when formally registering the birth of their first child, stating whether the child will bear the surname of the father or the mother. This declaration will continue to apply to any children born subsequently to the couple. In the absence of any declaration, a child will automatically obtain the father’s surname.
If the parents are not married, the child will obtain the mother’s surname; also where the father has recognised his paternity. If unmarried parents wish their child to bear the father’s surname, a joint formal declaration to this effect must be made at the time of the father’s recognition of his paternity.
The change in the law also included transitory rules in respect of children born before 1 January 1998, provided that the oldest child, at the time the parents make their formal declaration, has not yet attained the age of twelve. These transitory rules remained in force until 1 January 2000. Under these transitory rules, parents may make a joint formal declaration to the effect that their child or children bear the mother’s surname. Any children born subsequently to the couple will then automatically obtain the mother’s surname.