ITEMID: 001-72246
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF IOVCHEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violations of Art. 5-3;Violation of Art. 6-1 (length of criminal proceedings);Violation of Art. 3;Violation of Art. 13 (lack of effective remedies against conditions in detention);Not necessary to examine remainder under Arts. 6 and 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
JUDGES: Christos Rozakis
TEXT: 9. On 10 June 1996 the Plovdiv Regional Prosecutor’s Office, acting pursuant to a report from the state financial control authorities, which had audited a company whose chairperson the applicant had been, and reports by the economic police and by the company’s trustee in bankruptcy, decided to open criminal proceedings against the applicant. At that time the applicant was living in the United States of America, where he had arrived on 30 October 1995.
10. On 20 June 1996 the applicant was charged in his absence with misappropriation of funds in large amounts, contrary to Article 203 § 1 in conjunction with Article 201 of the Criminal Code (“the CC”)(see paragraph 69 below). It was alleged that in March 1994, when he had been the chairperson of the board of directors of the abovementioned company, he had misappropriated 792,000 Swiss francs. Reasoning that the applicant was accused of a “serious” offence (see paragraph 73 below) and that he had gone into hiding, the investigator in charge of the case decided that, once apprehended, the applicant should be placed in pretrial detention. This decision was approved by the prosecutor in charge of the case.
11. The applicant averred that, after having been notified by relatives that the Bulgarian media were circulating information that criminal proceedings had been opened against him and that he was wanted by the authorities, and after reading copies of newspapers brought by his wife in October 1996, he decided to return to Bulgaria.
12. The applicant arrived at Sofia airport on 25 October 1996 and was immediately arrested, questioned and brought to the detention centre at the Plovdiv Regional Investigation Service.
13. The following day, 26 October 1996, the applicant was apprised of the charges against him by an investigator and was questioned. The investigator confirmed the order for his detention pending trial.
14. On an unspecified date the applicant’s lawyer requested the Plovdiv Regional Prosecutor’s Office to release the applicant, arguing that there was not enough evidence to prove that the applicant had committed an offence.
15. The Plovdiv Regional Prosecutor’s Office denied the request in a decision of 21 February 1997. It reasoned that, since the applicant had been charged with a serious intentional offence, he had to remain in custody, as mandated by Article 152 § 1 of the Code of Criminal Procedure (“the CCrP”)(see paragraphs 7275 below). The exception provided for by paragraph 2 of that Article was not applicable, because the applicant could jeopardise the investigation in view of the number of impending investigative steps. The issues whether there was enough evidence to sustain the charges against the applicant and whether the applicant had committed other offences would arise after the conclusion of the investigation.
16. The applicant’s lawyer appealed to the Chief Prosecutor’s Office, contending that there was no risk of the applicant absconding, committing an offence, or jeopardising the investigation. In particular, the applicant had returned from abroad of his own accord, despite the fact that he had known that a criminal investigation had been pending against him.
17. The Chief Prosecutor’s Office dismissed the appeal in a decision of 3 April 1997. It reasoned that in view of the rule of Article 152 § 1 of the CCrP the applicant had to remain in custody. There was nothing to indicate that the applicant came within the exception provided for in paragraph 2 of that Article. In particular, no medical reports indicating bad health of the applicant had been submitted.
18. On 26 April 1997 the applicant’s lawyer filed with the Plovdiv Regional Prosecutor’s Office a request for his release.
19. On 3 May 1997 the applicant was also charged with abuse of office, contrary to Article 282 § 1 of the CC (see paragraph 70 below), in the context of a new investigation against him, and his pretrial detention was confirmed.
20. On 6 May 1997 the Plovdiv Regional Prosecutor’s Office decided to release the applicant on bail. It reasoned that the full elucidation of the facts of the case necessitated the questioning of a witness who had absconded and was impossible to find. Hence the proceedings against the applicant had to be stayed pending the apprehending and the questioning of the witness. The applicant’s continued detention was therefore unwarranted and he was to be released against giving an undertaking to not leave town. Concerning the measure to secure appearance in the second proceedings against the applicant, the offence with which he had been charged – abuse of office – was not “serious” within the meaning of Article 93 § 7 of the CC (see paragraph 73 below) and detention was therefore not mandatory under Article 152 § 1 of the CCrP. The applicant could thus be released on bail.
21. The applicant paid the bail on 6 May 1997 and was released the same day.
22. It seems that almost no investigative actions were performed between 1997 and 2001.
23. On 27 July 2001 the criminal proceedings against the applicant were stayed by decision of the Plovdiv Regional Prosecutor’s Office. It reasoned that it was necessary to question two witnesses whose whereabouts were unknown. The proceedings were to be resumed immediately after the two witnesses were tracked down.
24. On 17 September 2003 the Plovdiv Regional Prosecutor’s Office dropped the charges under Article 203 § 1 of the CC, reasoning that, as certain witnesses could not be found and questioned, these charges could not be proven. It seems that the proceedings relating to the charges under Article 282 § 1 of the CC continued, and, as of the date of the latest information from the parties (31 January 2005), were still pending.
25. From the day of his arrest on 25 October 1996 until he was released on 6 May 1997 the applicant was kept in the detention facility of the Plovdiv Regional Investigation Service.
26. There the applicant was held in a cell measuring twenty square metres, which he had to share with three other persons during most of the time. There were no beds and the detainees had to sleep on the cement floor, which they covered with dirty blankets. During the six months and twelve days that the applicant spent in the cell the blankets were allegedly not changed or washed. The cell was illuminated by a single electric bulb. There was no window or access to sunlight. The airing of the cell was apparently very poor. During the winter the temperature in the cell was approximately 1012 degrees Celsius.
27. Food, the quantity and quality of which were, according to the applicant, very insufficient, was served without cutlery, in plastic mugs which were apparently not washed between meals. It seems, however, that the applicant was able to have food brought from the outside.
28. The applicant, as the other detainees, was allowed to go out of the cell for two to three minutes twice a day – in the morning and in the late afternoon – to go to the toilet. During the remaining time the detainees had to relieve themselves in a plastic bucket kept in the cell. They had to empty the bucket and clean it themselves when leaving the cell to use the sanitary facilities.
29. No possibility for spending time in the open or for physical exercise was provided. The detainees could only leave the cell when they received visits, were taken for questioning, or were taken to court.
30. The applicant submits that there were periods of up to thirty or forty days during which he was not allowed to bathe. According to the Government, detainees were allowed to bathe once a week.
31. In an action brought by a person detained in the same detention facility at the same time as the applicant, the Plovdiv Court of Appeals stated that the conditions in the facility were “a manifestation of cruel, inhuman and humiliating treatment, contrary to the absolute prohibition of ... Article 3 of the Convention”.
32. Shortly after his release, on 22 July 1997, the applicant filed an action against the National Investigation Service under the State Responsibility for Damage Act (see paragraphs 7680 below). He alleged that the conditions of his detention had constituted inhuman and degrading treatment, imputable to the defendant which was in charge of the administration of pretrial detention facilities, and claimed 4,000,000 old Bulgarian levs (BGL) as compensation for nonpecuniary damage: pain, suffering and loss of self-respect. He described in detail the conditions of his detention and submitted that they had not been the result of a bias of the authorities against him, but an objective fact which had negatively affected all detainees for lengthy periods of time. These conditions had been violative of, inter alia, Article 3 of the Convention and Article 10 § 1 of the International Covenant on Civil and Political Rights of 1966.
33. The Plovdiv District Court held its first hearing in the case on 15 October 1997. It declared the action admissible, instructed the applicant that he bore the burden of proof and invited him to produce evidence in support of his claim. It also invited the defendant and a prosecutor, who participated as a “special party” to the proceedings, to present their observations.
34. The next hearing took place on 18 December 1997. The applicant requested that the director of the National Investigation Service be summoned as a witness and that an onthespot inspection be carried out in the detention facility and asked for leave to call four witnesses to prove the nonpecuniary damage the applicant had sustained as a result of the conditions of his detention. Counsel for the National Investigation Service requested that the applicant appear in person to testify about the facts laid out in his statement of claim. She also requested that the Ministry of Finance be added as a defendant. The applicant insisted that the proper defendant was solely the National Investigation Service. The court ordered the applicant to appear for questioning. It denied the request to summon the director of the National Investigation Service, holding that the facts could properly be established through other evidence. It also denied the request for an onthespot inspection, holding that almost a year had elapsed since the applicant had been released and that the current state of the detention facility could not be used as a basis for establishing its state at the time when the applicant was kept there. The court gave the applicant leave to call three witnesses. It denied the request to add the Ministry of Finance as a defendant, holding that the entity against which the action had been brought was the National Investigation Service.
35. By an order made in private on 23 January 1998 the court held that the complaint had been improperly characterised by the applicant as one under the State Responsibility for Damage Act. It held that the proper legal characterisation was under general tort law. Accordingly, in order for the proceedings to continue the applicant had to pay the requisite court fee (four per cent of the amount claimed, i.e. BGL 160,000) within seven days.
36. The applicant did not pay the fee and the court discontinued the proceedings by an order of 12 March 1998.
37. On 27 March 1998 the applicant appealed against the order to the Plovdiv Regional Court.
38. On 29 June 1998 the Plovdiv Regional Court quashed the order and remitted the case to the Plovdiv District Court for continuation of the proceedings, holding that the proper legal characterisation of the facts alleged by the applicant was under the State Responsibility for Damage Act.
39. The next hearing before the Plovdiv District Court was listed for 2 November 1998, but was adjourned because of the improper summoning of the defendant.
40. On 15 December 1998 the applicant requested that the National Investigation Service be replaced as a defendant by the Plovdiv Regional Investigation Service and that the Ministry of Justice be added as a second defendant in view of legislative changes whereby the National Investigation Service was liquidated and the administration of the pretrial detention facilities was transferred from the National Investigation Service to the Ministry of Justice.
41. On 8 December 1998 the applicant requested an expert opinion on the hygienic and sanitary conditions in the detention facility.
42. The next hearing took place on 16 December 1998. The court granted the applicant’s request to replace the defendant and add a new defendant and adjourned the proceedings for 4 February 1999 in order to allow the new defendant to prepare.
43. The next hearing was held on 4 February 1999. The prosecutor did not appear. Noting that there was no indication that the prosecutor had been duly summoned, the court decided to adjourn the case. On the motion of the applicant the court struck out the Plovdiv Regional Investigation Service as a defendant.
44. On 9 March 1999 the applicant requested that the Ministry of Finance be added as a defendant, arguing that this was necessary in view of the unclear regulation of the succession between the National Investigation Service and the Ministry of Justice as regards the administration of the pretrial detention facilities.
45. The next hearing was held on 10 March 1999. The court questioned one witness called by the applicant who testified about the conditions in the detention facility. The applicant reiterated his request for an expert report and asked leave to call two more witnesses. The court stated that it would rule on all motions in private.
46. By an order made in private on 17 March 1999 the court denied the request for adding the Ministry of Finance as a defendant, holding that the facts alleged in the statement of claim did not point to a cause of action against it. It allowed the request for an expert opinion and invited the Plovdiv Hygienic and Epidemiologic Inspection to designate an expert who could draw up a report on the conditions in the detention facility.
47. The next hearing, scheduled for 26 April 1999, failed to take place because of the improper summoning of the Ministry of Justice.
48. On 27 April 1999 the applicant requested the court to revoke its order of 17 March 1999 as regards the refusal to add the Ministry of Finance as a defendant.
49. The next hearing took place on 7 June 1999. The court denied the applicant’s request to revoke its order, holding that the Ministry of Finance had nothing to do with the subjectmatter of the case before it. The court invited the applicant to call the allowed witnesses. Pursuant to the motion of the defendant, the court also ordered the applicant to indicate specifically which government bodies and officials had, through their actions or omissions, caused the alleged damage.
50. The court, sitting in private on 6 July 1999, appointed an expert to draw up a report on the hygienic and epidemiological conditions in the detention facility.
51. A hearing listed for 20 September 1999 was adjourned because the judge in charge of the case was on sick leave.
52. The next hearing was held on 2 November 1999. The expert informed the court that she could not draw up the requested report. The court gave leave to the Ministry of Justice to call one witness and replaced the expert. The court also instructed the applicant to rectify his statement of claim within seven days, holding that he had not specified which illegal actions or omissions of which officials had occasioned the damage he alleged to have sustained.
53. On 11 November 1999 the applicant indicated that the officials allegedly responsible for these conditions were “the administration of the National Investigation Service”. Expressing his surprise that the court had not found this alleged omission in the statement of claim until the eighth hearing, the applicant requested that the judge withdraw from the case, averring that her conduct denoted bias against him.
54. By an order of 18 November 1999 the court denied the request for withdrawal, holding that it had power to instruct the plaintiff to rectify its statement of claim during the entire duration of the proceedings before it and its having done so was not indicative of bias, but fully compliant with the rules of procedure. The court also discontinued the proceedings, holding that the applicant had not complied with its instructions to indicate the officials responsible for the conditions in the pretrial detention facility and their exact allegedly illegal actions or omissions.
55. On 2 December 1999 the applicant appealed against the order for the discontinuation of the proceedings.
56. On 1 March 2000 the Plovdiv Regional Court quashed the order and remitted the case, holding that the proper defendant in proceedings under the State Responsibility for Damage Act were the government bodies and not the specific officials alleged to have caused the damage. The instructions of the Plovdiv District Court had therefore been without purpose.
57. On 16 March 2000 the Plovdiv District Court listed a hearing for 8 May 2000.
58. On 2 May 2000 the applicant filed a “complaint for delays” under Article 217a of the Code of Civil Procedure (“the CCP”)(see paragraph 81 above) with the chairperson of the Plovdiv Regional Court, alleging that the Plovdiv District Court had not proceeded with due diligence in examining his action. The chairperson of the Plovdiv Regional Court dismissed the complaint on 11 May 2000, holding that the case had been adjourned many times because of changes in the legislation, the adding of new defendants and the making of evidentiary motions by the parties. The intervals between the hearings had been justified by the busy schedule of the panel examining the case.
59. As between 2 and 11 May 2000 the case file was being transferred from the Plovdiv District Court to the Plovdiv Regional Court in connection with the examination of the above complaint, the hearing listed for 8 May 2000 did not take place.
60. The next hearing took place on 26 June 2000. The court questioned two witnesses called by the Ministry of Justice, who testified about the conditions in the detention facility. The applicant reiterated his request for an onthespot inspection of the facility. The court invited the applicant to specify the facts which he wanted to have proven through the inspection. It also repeated its invitation to the applicant to call the witnesses for whom leave had previously been given.
61. The last hearing took place on 2 October 2000. The court noted that out of three witnesses whom the applicant had been allowed to call, only one had actually been called. It further noted that the applicant had not complied with its instructions to concretise the facts which he intended to establish through the requested inspection of the detention facility. The court thus denied the request to carry out an inspection. It also excluded the requested expert report from the evidence.
62. The Plovdiv District Court dismissed the applicant’s action in a judgment of 2 November 2000. It held, inter alia, as follows:
“... [The applicant] bears the burden of establishing the facts which are favourable to him. He was many times invited to do so by the court, but has not presented evidence about the conditions in the detention facility as a result of which he has allegedly suffered nonpecuniary damage. Neither has he adduced evidence in support of the proposition that the damage which is the subjectmatter of the claim is in a causal connection with illegal actions or omissions of officials of the National Investigation Service, which participated in the administration of the pretrial detention facilities at the time when the applicant was in custody. Therefore the court considers that these facts have remained unproven. The court could not hold otherwise even if account is taken of the testimony of the witness [B.N.], because the witness and the [applicant] were not in the same cell ... It is true that that the witness testified about the conditions in the detention facility and the cell in which he had been, but ... his testimony does not establish the nonpecuniary damage suffered by the [applicant], as averred in the statement of claim. Nor does it establish that the nonpecuniary damage suffered by the applicant is a result of the conditions in the detention facility.
The court could not hold otherwise even if it takes into account the testimony of the witnesses [P.] and [I.], because in their testimony they describe the conditions in the detention facility and in the cell in which the [applicant] was kept, but do not establish the non-pecuniary damage claimed by the [applicant] and the fact that this damage is in a causal connection with the hygienic and material conditions in the detention facility.”
63. On 15 November 2000 the applicant appealed against the judgment to the Plovdiv Regional Court. He reiterated his request for an onthespot inspection of the detention facility.
64. On 28 February 2001 the Plovdiv Regional Court, sitting in private, gave the applicant leave to call one witness and denied his request for an inspection of the detention facility. It held that, since more than three years had elapsed after the applicant’s release, an inspection could not establish the conditions in the facility as at the time he was kept there.
65. A hearing was held on 23 May 2001. The applicant did not show up and did not bring the witness for whom leave had been given.
66. The Plovdiv Regional Court dismissed the appeal in a judgment of 22 November 2001. It held, inter alia, as follows:
“On the basis of the evidence adduced before this court and the court below, the [court] considers that the claim has remained unsubstantiated. The claim was for compensation for nonpecuniary damage suffered by the [applicant]. However, apart from proof about the general state of the hygiene in the detention facility at the time of the [applicant’s] stay there, there is no proof about the specific damage suffered by him. The finding that the detention facility was in a poor hygienic condition does not per se lead to the conclusion that [the applicant] has suffered real moral, nonpecuniary damage, because the objective fact of the hygiene and the regime in the detention facility has a subjective and very individual impact on persons with different mentalities and social status. Due to the lack of evidence about the specific effects which the conditions in the detention facility had on the [applicant], as averred in the statement of claim, the claim remains unsubstantiated. The nongathering of evidence about this is the result of the inactivity of the [applicant] alone. The witness called by him and questioned by the firstinstance court did not testify about the applicant’s condition during his stay in custody, and the other two witnesses for whom leave was given by the firstinstance court and the third witness for whom leave was given by this court were not actually called by the [applicant] without him specifying good reasons for this omission. In view of this the [court] considers that the [applicant’s] lack of procedural activity is tendentious and seeks to surmount the admissibility criteria for lodging an application with European Court of Human Rights...”
67. On 20 December 2001 the applicant lodged an appeal on points of law with the Supreme Court of Cassation.
68. The court listed a hearing for 18 February 2003. However, in November 2002 the CCP was amended, providing that appeals on points of law to the Supreme Court of Cassation were possible only in respect of actions where the amount in controversy was above BGN 5,000. Since the amount claimed by the applicant was BGN 4,000, the Supreme Court of Cassation discontinued the proceedings by an order of 28 November 2002, and the Plovdiv Regional Court’s judgment became final.
69. Article 203 § 1 of the CC, read in conjunction with Article 201, provides that the misappropriation of funds in large amounts by officials or managers is punishable by ten to thirty years’ imprisonment.
70. Article 282 § 1 of the CC makes it an offence for a manager or an official to, inter alia, abuse his power or rights in order to provide a financial benefit to himself or another person, provided that this leads to nonnegligible harmful consequences. The offence is punishable by up to five years’ imprisonment or by compulsory labour.
71. At the relevant time and until the reform of the CCrP of 1 January 2000 an arrested person was brought before an investigator who decided whether or not he or she should be remanded in custody. The investigator’s decision was subject to approval by a prosecutor. The role of investigators and prosecutors under Bulgarian law has been summarised in paragraphs 2529 of the Court’s judgment in the case of Nikolova v. Bulgaria ([GC], no. 31195/96, ECHR 1999II).
72. The legal grounds for detention pending trial are set out in Article 152 of the CCrP, the relevant part of which, as worded at the material time, provided as follows:
“1. Pretrial detention shall be imposed [in cases where the charges concern] a serious intentional offence.
2. In the cases falling under paragraph 1 [detention] may be dispensed with if there is no risk of the accused evading justice, obstructing the investigation, or committing further offences. ...”
73. A “serious” offence is defined by Article 93 § 7 of the CC as one punishable by more than five years’ imprisonment.
74. The Supreme Court has held that it was not open to the courts, when examining an appeal against pretrial detention, to inquire whether there existed sufficient evidence to support the charges against the detainee. The courts had to examine only the formal validity of the detention order (опред. № 24 от 23 май 1995 г. по н.д. № 268/95 г. на ВС І н.о.).
75. According to the Supreme Court’s practice at the relevant time (it has now become at least partly obsolete as a result of amendments in force since 1 January 2000), Article 152 § 1 required that a person charged with a serious intentional offence be detained. An exception was only possible, in accordance with Article 152 § 2, where it was clear beyond doubt that any risk of absconding or reoffending was objectively excluded as, for example, in the case of a detainee who was seriously ill, elderly or already in custody on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.).
76. Section 1(1) of the Act provides:
“The State shall be liable for damage caused to private persons by the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties.”
77. Compensation awarded under the Act comprises all pecuniary and nonpecuniary damages which are the direct and proximate result of the illegal act of omission (section 4 of the Act).
78. The person aggrieved has to file an “action ... against the bodies ... whose illegal orders, actions, or omissions have caused the alleged damage” (section 7 of the Act).
79. Proceedings commenced under the Act are exempt from the initial payment of court fees (section 10(2) of the Act).
80. Persons seeking redress for damage acts or omissions falling within the scope of the Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.).
81. New Article 217a of the CCP, adopted in July 1999, provides:
“1. Each party may lodge a complaint about delays at every stage of the case, including after oral argument, when the examination of the case, the delivery of judgment or the transmitting of an appeal against a judgment is unduly delayed.
2. The complaint about delays shall be lodged directly with the higher court, no copies shall be served on the other party, and no State fee shall be due. The lodging of a complaint about delays shall not be limited by time.
3. The chairperson of the court with which the complaint has been lodged shall request the case file and shall immediately examine the complaint in private. His instructions as to the acts to be performed by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been lodged.
4. In case he determines that there has been [undue delay], the chairperson of the higher court may make a proposal to the disciplinary panel of the Supreme Judicial Council for the taking of disciplinary action.”
82. The CPT visited Bulgaria in 1995 and again in 1999 and 2002. The Plovdiv Regional Investigation Service detention facility was visited in 1999 and 2002. All reports included general observations about problems in all Investigation Service detention facilities.
83. In this report (CPT/Inf (97) 1) the CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were better, the conditions were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light, the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a WC and washbasin twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in the cell bucket; although according to the establishments’ internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to fiveten minutes or not allowed at all; no other form of outofcell activity was provided to persons detained.
84. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day’s “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or khalva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery - not even a spoon was provided.
85. The CPT also noted that family visits were only possible with permission and that as a result detainees’ contact with the outside world was very limited. There was no radio or television.
86. The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading.” In reaction, the Bulgarian authorities had agreed that the [CPT] delegation’s assessment had been “objective and correctly presented” but had indicated that the options for improvement were limited by the country’s difficult financial circumstances.
87. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes’ exercise per day be fully respected in practice, that cell lighting and ventilation be improved, and that pre-trial detainees should be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees outdoor exercise was to be examined as a matter of urgency.
88. In this report (CPT/Inf (2002) 1) the CPT noted that new rules, providing for better conditions, had been enacted, but had not yet resulted in significant improvements.
89. In most places visited in 1999 (with the exception of a newly opened detention facility in Sofia), the conditions of detention on Investigation Service premises had remained generally the same as those observed during the CPT’s 1995 visit, including as regards hygiene, overcrowding and outofcell activities. In some places the situation had even deteriorated.
90. With regard to the Plovdiv Regional Investigation detention facility, the CPT found that it was “overcrowded, poorly equipped and dirty, detainees’ access to toilet/shower facilities was problematic, there was insufficient food and drinking water and a total absence of outdoor exercise and outofcell activities”. The CPT further found that detainees in that detention facility “still had to eat with their fingers, not having been provided with appropriate cutlery”.
91. In this report (CPT/Inf (2004) 21) the CPT noted that most investigation detention facilities were undergoing renovation but that a lot remained to be done. The cells remained generally overcrowded.
92. In Plovdiv, only a third of the cells had benefited from a refurbishment which involved making windows in the cell doors, improving the artificial lighting and installing wash basins in the cells. However, the majority of the cells remained in the same inadequate condition as in 1999. The sanitary facilities were not in a satisfactory state of repair.
93. Despite the CPT’s recommendations in the report on their 1999 visit, no proper regime of activities had been developed for detainees spending long periods in the investigation detention facilities. Those facilities did not have areas for outdoor exercise. At some of the establishments (e.g. Botevgrad), attempts were being made to compensate for the lack of outdoor exercise facilities by allowing detainees to stroll in the corridor several times a day. The CPT stated that “in this respect, the situation remain[ed] of serious concern”.
VIOLATED_ARTICLES: 13
3
5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-57558
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1988
DOCNAME: CASE OF PLATTFORM "ÄRZTE FÜR DAS LEBEN" v. AUSTRIA
IMPORTANCE: 2
CONCLUSION: No violation of Art. 13
JUDGES: J.A. Carrillo Salcedo
TEXT: 8. Plattform "Ärzte für das Leben" is an association of doctors who are campaigning against abortion and are seeking to bring about reform of the Austrian legislation on the matter. In 1980 and 1982 it held two demonstrations which were disrupted by counter-demonstrators despite the presence of a large contingent of police.
9. The applicant association decided to hold a religious service at Stadl-Paura Church (Upper Austria) on 28 December 1980, after which there would be a march to the surgery of a doctor who carried out abortions. As required under section 2 of the Assembly Act of 1953 (see paragraph 40 of the Commission’s report), it gave notice, on 30 November, to the police authority for the district of Wels-Land. The police made no objection and gave the participants permission to use the public highway. The police did, however, have to ban two other planned demonstrations, which were announced subsequently by supporters of abortion, as these demonstrations were to be held at the same time and in the same place as the Plattform demonstration.
10. As the organisers feared that incidents might occur nonetheless, they sought - shortly before the beginning of the march - to change their plans, in consultation with the local authorities. They gave up the idea of demonstrating outside the doctor’s surgery and decided instead to march to an altar erected on a hillside quite a distance away from the church and hold a religious ceremony there.
11. The police representatives pointed out to them that the main body of the police officers had already been deployed along the route originally planned and that because of the lie of the land the new route was not suited to crowd control. They did not refuse to provide protection but stated that - irrespective of the route chosen or to be chosen - it would be impossible to prevent counter-demonstrators from throwing eggs and disrupting both the march and the religious service.
12. During the mass, a large number of counter-demonstrators - who, it seems, had not given the notice required under the Assembly Act - assembled outside the church and were not dispersed by the police. They disrupted the march to the hillside by mingling with the marchers and shouting down their recitation of the rosary. The same thing happened at the service celebrated in the open air: some five hundred people attempted to interrupt it using loudspeakers and threw eggs and clumps of grass at the congregation.
13. At the end of the ceremony, when tempers had risen to the point where physical violence nearly broke out, special riot-control units - which had until then been standing by without intervening - formed a cordon between the opposing groups, and this enabled the procession to return to the church.
14. In a letter to the Upper Austrian Safety Authority, the chairman of the association described the counter-demonstrators’ behaviour as "relatively peaceful": on other occasions, the opponents of Plattform had attacked the association’s members and had assaulted policemen.
15. On 21 January 1981, the applicant association lodged a disciplinary complaint (Dienstaufsichtsbeschwerde - see paragraphs 47-50 of the Commission’s report) alleging that the local police had failed to provide sufficient protection for the demonstration.
The Upper Austrian Safety Authority considered that the behaviour of the police had been irreproachable and it decided not to take any disciplinary measures against them. It referred to the difficulty of completely protecting an open-air demonstration from verbal abuse and from missiles which were not likely to cause the participants any physical harm. The Authority added that, in not intervening, the police had been prompted by the concern to avoid more serious trouble.
16. Plattform subsequently lodged an appeal with the Constitutional Court (Verfassungsbeschwerde - see paragraphs 41-43 of the Commission’s report); in the association’s submission the local authorities’ failure to act had in the instant case allowed an infringement of the freedoms of assembly and religious observance, both of which were guaranteed by the Austrian Constitution.
On 11 December 1981, the Constitutional Court heard evidence from several witnesses with a view to establishing the facts sufficiently clearly. In a judgment on 1 March 1982, it held that it had no jurisdiction and consequently declared the appeal inadmissible. It noted that the applicant association’s complaint was clearly not directed against a "decision" or acts of direct administrative coercion within the meaning of Article 144 of the Constitution (see Official Collection of the Judgments of the Constitutional Court, no. 9334/1982).
17. Plattform did not take any ordinary criminal proceedings by lodging a complaint or by bringing a subsidiary private prosecution ("Subsidiaranklage" - see paragraphs 58-64 of the Commission’s report).
The Upper Austrian Safety Authority and the local police, however, opened investigation proceedings against a person or persons unknown for disruption of a meeting. For its part, a private organisation, the "Österreichische Bürgerinitiative zum Schutz der Menschenwürde", lodged a complaint against one of the counter-demonstrators, a member of parliament, alleging obstruction of a religious ceremony and incitement to hatred under Articles 188, 189 and 283 of the Criminal Code as well as an offence against section 2 of the 1953 Assembly Act. Complaints were also lodged against two other people.
The Wels public prosecutor discontinued the proceedings on 1 April 1981, however, under Article 90 of the Code of Criminal Procedure.
18. One person caught in the act of throwing eggs was fined 1,000 Austrian schillings under section IX of the law enacting the Administrative Proceedings Acts (see paragraph 66 of the Commission’s report).
19. The competent police authority gave permission for a second demonstration against abortion to be held in the cathedral square in Salzburg on 1 May 1982. An anniversary meeting was due to be held in the square by the Socialist Party on the same day, but it had to be cancelled because notice of it had been given after the applicant association had given notice of its own meeting.
The demonstration began at 2.15 p.m. and ended with an hour of prayers inside the cathedral.
At about 1.30 p.m. some three hundred and fifty people angrily shouting their opposition had passed through the three archways which provide access to the square and gathered outside the cathedral. A hundred policemen formed a cordon around the Plattform demonstrators to protect them from direct attack. Other trouble was caused by sympathisers of an extreme right-wing party, the NDP, who voiced their support for Plattform. The police asked the association’s chairman to order these people to disperse, but without success.
In order to prevent the religious ceremony being disrupted, the police cleared the square.
20. No proceedings were taken after these incidents, and in view of the Constitutional Court’s decision of 1 March 1982 the applicant association considered that a second appeal would have served no purpose.
NON_VIOLATED_ARTICLES: 13


ITEMID: 001-106527
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: OMEREDO v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: The applicant, Ms Mary Magdalene Omeredo, is a Nigerian national who was born in 1973 and lives in Wels. She was represented before the Court by Ms S. Singer, a lawyer practising in Wels. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant fled Nigeria in May 2003. She applied for asylum in Austria on 23 May 2003, stating that she comes from a village in Delta State and belongs to the Isoko group. Her mother still lives in that village, her father died when she was 5 years old.
In April 2003 she should have undergone FGM (female genital mutilation), as according to the custom in her village, every five years the unmarried women were to undergo FGM. The applicant’s sister had died because of the consequences of FGM and the applicant had told her mother she did not want to undergo FGM, but was told that she would have to accept it. The applicant submitted that police would not interfere in what they saw as a tradition and that the other villagers might kill her if she refused FGM.
The applicant fled from her village and stayed with a friend in a neighbouring village for a few days but had to leave due to fights that broke out in the village. The applicant then travelled to Austria on an unknown route.
The Federal Asylum Office (Bundesasylamt) rejected the applicant’s request for asylum on 10 July 2003 and stated that her expulsion to Nigeria was permissible. It held that the applicant, whose statements were credible, disposed of an internal flight alternative. She could for instance live in another province or in one of the big cities. Consequently, she could not be considered to be in danger of treatment contrary to Article 2 or Article 3 of the Convention. It stated that no national legal prohibition of FGM was in force in Nigeria, but several federal states had such provisions in force. The Federal Asylum Office concluded that the reasons for fear could not be imputed to the state. As the state could not be deemed unable or unwilling to offer protection, the applicant was expected to avail herself on the protection offered by the state.
The applicant, represented by counsel, lodged a complaint against the decision before the Asylum Court (Asylgerichtshof).
By decision of 10 September 2009 the Asylum Court rejected the complaint, finding that the Federal Asylum Office had not erred when assessing the evidence and no new circumstances had come to light to necessitate re-assessing the evidence. With regard to FGM, the Asylum Court held that the practise was declining, but still existed. However, state authorities might have afforded protection to the applicant, and the applicant disposed of an internal flight alternative. Since the applicant had stated to have attended school for 13 years and having gained 8 years’ working experience as a seamstress, it was reasonable to assume that the applicant would find work.
The applicant complained to the Constitutional Court and applied for legal aid. She argued that the Asylum Court had not sufficiently taken into consideration that she was a single woman without any family relations except for her mother, who lives in the village she had to flee to avoid FGM. In her situation, it was almost impossible that she could move to another area in Nigeria and make a living there, as single women were still viewed with suspicion and faced hardships e.g. when trying to rent a flat. The applicant further argued that the fact that she had to flee her family because of the threat of FGM and was expected to start a new life on her own in a different part of Nigeria, with the risk of ending up in poverty and in degrading circumstances, already amounted to a violation of Article 3 of the Convention.
By decision of 1 December 2009, the Constitutional Court refused legal aid and refused to deal with the complaint, holding that the complaint did not raise any issue of constitutional law and thus had no prospects of success. The decision was served on the applicant’s counsel on 9 December 2009.
The Court reiterates that in the case Izevbekhai and others v. Ireland (dec.), no. 43408/08, 17 May 2011, it noted the following with regard to FGM in Nigeria:
“ [1.] General
34. FGM comprises all procedures that involve partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. The World Health Organisation (“WHO”) noted the following key facts about FGM in its Fact Sheet No. 241 (2010): an estimated 100-140 million girls and women worldwide live with the consequences of FGM. It is mostly carried out on young girls some time between infancy and 15 years of age and in Africa an estimated 92 million girls from 10 years of age and above have undergone FGM.
35. There are different forms of FGM (see Eliminating Female Genital Mutilation: An Interagency Statement 2008 of various international organisations including the WHO, the UN High Commissioner for Refugees (“UNHCR”), the UN Children’s Fund (“UNICEF”) and the UN Development Fund for Women (“UNIFEM”)). These include Clitoridectomy, Excision and Infibulation.
36. The same Interagency statement described FGM as a violation of, inter alia, the right to freedom from torture, inhuman and degrading treatment so that protection from FGM was provided for by various international treaties (Convention on the Rights of the Child and Convention on the Elimination of All Forms of Discrimination Against Women), by regional treaties (Protocol to the African Charter on Human and People’s Rights Relating to the Rights of Women in Africa, “Maputo Protocol”) as well as by consensus documents of several international organisations. The UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment considers that FGM amounts to torture even if it is legal and/or medicalised (Report to the UN General Assembly, 14 January 2008. See also joint Global strategy to stop health-care providers from performing female genital mutilation 2010 of, inter alia, the WHO, UNHCR, UNICEF and UNIFEM).
[2.] Legal position as regards FGM in Nigeria
37. Nigeria is a federal republic of 36 states with a population of approximately 150 million. English is one of its official languages.
38. In 1995 Nigeria ratified the Maputo Protocol, Article 5 of which requires State Parties to legislate to prohibit FGM. Article 34(1)(a) of the 1999 Federal Constitution prohibits “torture or inhuman or degrading treatment”. A Bill banning FGM was introduced at federal level in Nigeria and it was withdrawn when the National Assembly stepped down in 2003. Since this Bill has not been re-introduced, there is currently no general federal law against the practice of FGM in Nigeria. However, approximately 12 of the 36 States in Nigeria have adopted laws specifically prohibiting FGM, including the south-south States (one of which is the Edo State) and almost the whole of the south-west. The federal Child Rights Act 2003 provides that causing FGM is a punishable offence and that federal Act has been enacted in 18 of the 36 States of Nigeria.“


ITEMID: 001-91794
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF DOROTA AND ZBIGNIEW NOWAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: 4. The applicants were born in 1962 and 1965 respectively and live in Ostrowiec Świętokrzyski.
5. On 27 November 1995 the applicants lodged with the Kielce Regional Court (Sąd Okręgowy) a claim for payment against Z.G. and J.D.
6. On 7 May 2001 the first instance court gave judgment. The defendants appealed.
7. On 13 March 2002 the Kraków Court of Appeal (Sąd Apelacyjny) partly remitted the case.
8. On 28 January 2004 the Kielce Regional Court gave judgment.
9. The proceedings were terminated on 9 November 2004 by the final judgment of the Kraków Court of Appeal.
10. On 7 February 2005 the applicants lodged with the Kraków Court of Appeal a complaint about a breach of the right to a trial within a reasonable time. They specifically relied on section 18 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) which entered into force on 17 September 2004.
11. The applicants sought a ruling declaring that the length of the proceedings before the Kielce Regional Court had been excessive. They asked for an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. EUR 2,500).
12. On 16 March 2005 the Kraków Court of Appeal gave a decision in which it acknowledged the excessive length of the proceedings before the Kielce Regional Court. It awarded the applicants jointly and severally PLN 10,000 in just satisfaction.
13. On 9 May 2001 the applicants lodged a claim for payment against the City Office (Urząd Miasta) and District Office (Starostwo Powiatowe) with the Kielce Regional Court.
14. The first hearing was held on 24 October 2001.
15. On 29 October 2001 the applicants specified that they wished to continue the proceedings only against the City Office.
16. The hearing scheduled for 3 April 2002 was adjourned at the applicants’ request.
17. On 22 July 2002 the court held a hearing.
18. In a letter of 2 September 2002 the applicants requested the court to accelerate the proceedings and to list a hearing.
19. On 16 October 2002 and 12 March 2003 the court held hearings.
20. On 18 July, 30 September and 24 October 2003 the court ordered that an expert report be obtained. The expert’s report was submitted to the court on 3 January 2004.
21. On 11 February, 10 March, 28 July and 22 September 2004, 14 March and 30 May 2005 the court held further hearings, one of which was adjourned at the applicants’ request.
22. On 9 June 2005 the Kielce Regional Court gave judgment. The parties filed their appeals on 1 August 2005.
23. On 18 January 2006 the Kraków Court of Appeal upheld the first instance judgment.
24. On 10 June 2005 the applicants lodged with the Kraków Court of Appeal a complaint about a breach of the right to a trial within a reasonable time under the 2004 Act.
25. The applicants sought a ruling declaring that the length of the proceedings before the Kielce Regional Court had been excessive. They asked for an award of just satisfaction in the amount of 10,000 Polish zlotys (PLN) (approx. EUR 2,500).
26. On 25 July 2005 the Kraków Court of Appeal dismissed the applicants’ complaint. The court found that the Regional Court had given judgment on 9 June 2005, thus at the time of the examination of the complaint the proceedings before the court of first instance had terminated. The court further held that the purpose of the complaint about a breach of the right to a trial within a reasonable time under the 2004 Act was to accelerate the proceedings and not only to afford financial compensation. The court consequently held that in the facts of the case there was no basis for declaring that the length of the proceedings had been excessive.
27. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V.
VIOLATED_ARTICLES: 6


ITEMID: 001-5045
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2000
DOCNAME: PREDOTA v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1944 and living in Vienna.
He is represented before the Court by Mr. A. Bammer, a lawyer practising in Vienna.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
Since 1975 the applicant has been an irremovable (unkündbar) employee of the Austrian Federal Railways (Österreichische Bundesbahnen) and worked originally as a train conductor (Zugsbegleiter). On 27 November 1985 he was elected staff representative (Vertrauensmann) for the list "Eisenbahner aktiv". The applicant was very active in this position and, in particular, he demanded the use of clean sheets for conductors who had to stay overnight in the trains. He made several proposals of this kind to the internal proposals department (betriebliches Vorschlagswesen) and complained that the existing pricing system of train tickets was confusing. His superiors did not take up these proposals or complaints.
As of 10 November 1987 the applicant was transferred from his post as conductor and worked instead as a switch cleaner (Weichenreiniger).
On 27 September 1988 the applicant distributed leaflets with the following contents at the Vienna Southern Railway Station (Wiener Südbahnhof).
<Translation>
"These are the ways of the railways! Withdrawn from the service, because I made criticisms:
Very often our railways are of no use, stairs too high, connections bad (often there are none), uncomfortable (ugly) waiting rooms, stations too far from the towns, trains not suitable for handicapped people and so on...
Prices too high; rates too complicated; soon nobody will understand.

Practical personnel are diminishing; useless bureaucracy is increasing.
Showing off instead of comfort and the clients feel angry.
(Political) party posts paralyse ideas; practical and friendly co-operation becomes more and more meaningless.
I am looking for brave journalists, associations, individuals. I can offer solutions and stories!
Remark: During 15 years of service I had no culpable accident, no problems with drunkenness, no troubles with travellers, and otherwise caused no harm.
How you can help me:
Tell me about problems, complaints, ideas. Inform me of groups, associations, events. Send this leaflet to newspapers, etc.
My aim:
Simple, practical, comfortable railways, that are locally constructed, with conductors and station stewards."

The applicant distributed this leaflet during his spare time in several halls of the railway station to employees of the Austrian Federal Railways.
Subsequently an Austrian periodical contacted the applicant and asked him whether it was true that he had to clean switches. The applicant confirmed this and also confirmed that he worked at the Vienna Eastern Railway Station (Ostbahnhof). On 7 October 1988 a photographer at the periodical took pictures of the applicant cleaning the switches and afterwards he was interviewed. On 13 October 1988 an article was published in the periodical W. with the headline:
<Translation>

"Since a top conductor pointed out grievances within his beloved railways, he was demoted: now he lubricates switches.... How a conductor was thrown off the train".

After the publication of this article the applicant wrote a letter to the publisher which was published in the same periodical on 3 November 1988:
<Translation>
"I would like to thank you very much for the article about my problems. It has thereby become easier to achieve my aim to fight for simply practical railways. Although I have been threatened repeatedly with disciplinary proceedings, I will try to carry through my demand that conductors can sleep in clean sheets during overnight stays, that the price regulations become simpler and easier to understand and that the railways get cheaper for the customers. I will keep the W. informed about my activities."
Thereupon disciplinary proceedings were instituted before the Railway’s Disciplinary Committee (Disziplinarkammer) against the applicant.
On 5 December 1988 the Disciplinary Committee found that the applicant had infringed the Disciplinary Regulations of the Railways (Disziplinarordnung) in that he had distributed leaflets in public which were likely to harm the reputation of the Austrian Federal Railways and its employees, that he had taken a journalist in dangerous circumstances to the area of the switches, and that he had discussed internal matters in a letter to the publisher of a magazine. Under Sections 18 and 26 of the Regulations, an employee of the Federal Railways has to respect and pursue the interests of the service, refrain from disparaging his superiors, must keep confidential all issues relating to the service and must not publish in the media or otherwise matters relating to his service without prior authorisation. The Disciplinary Committee ordered the applicant’s dismissal as a disciplinary sanction.
On 30 January 1989 the Superior Disciplinary Committee (Disziplinaroberkammer) confirmed the applicant’s dismissal on disciplinary grounds.
On 27 July 1989 the applicant filed an action for the annulment of his dismissal with the Vienna Labour Court (Arbeitsgericht). He requested the court to declare that his employment contract was still valid, that the Federal Railways had to re-employ him under the previous conditions and had to pay the outstanding salary. The applicant submitted that he was a staff representative and therefore could not be dismissed without the prior consent of a court.
Subsequently court hearings took place on 25 September 1989, 23 November 1989, 23 April 1990 and 18 June 1990. At the hearing of 23 November 1989, the court decided to obtain expert evidence on the question whether the applicant had full capacity to act. The expert reports which answered this question in the affirmative were submitted on 29 January 1990 and 21 February 1990.
In a court hearing which took place on 27 August 1990, the parties concluded a friendly settlement. The next day, however, the applicant revoked the settlement.
In the subsequent hearing on 12 November 1990, the court suspended the proceedings pending the decision of the Supreme Court (Oberster Gerichtshof) in a similar case dealing with the question of whether the Disciplinary Regulations of the Federal Railways were applicable to employment relations within the Federal Railways. The Labour Court considered this decision relevant because the applicant’s dismissal would not have been lawful if the Supreme Court rejected the applicability of the Disciplinary Regulations. The Federal Railways undertook to inform the applicant about the outcome of those proceedings. The present proceedings were only to be continued upon the request of one of the parties. The parties waived their right to appeal against this decision.
By letter of 14 March 1991, the Federal Railways informed the Labour Court about the Supreme Court’s findings in the parallel proceedings. The applicant received this information on 26 March 1991. In its decision of 24 October 1990 the Supreme Court had found that the employment relationship between an employee and the Federal Railways was of a private nature and that the Disciplinary Regulations were part of the employment contract. The matter was remitted to the Court of Appeal in that case.
On 22 May 1992 the applicant requested the continuation of the proceedings instituted by him. On 10 September 1992 a further court hearing took place.
On 3 November 1992 the Labour Court dismissed the applicant’s action on the ground that his claims had become time-barred. It found that the applicant had not requested the continuation of the proceedings in time after 14 March 1991. It was irrelevant that the final decision in the parallel case had been taken on 28 August 1991. On the same day the applicant appealed against this judgment and on 4 January 1993 the defendant company submitted its observations.
On 17 March 1993 the Court of Appeal (Oberlandesgericht) granted the applicant’s appeal, quashed the above decision and remitted the case to the Labour Court. It found that the Labour Court’s decision to suspend the proceedings pending the outcome of other proceedings had not been formulated with sufficient precision, so that the applicant may have had the impression that the relevant event was the final termination of those other proceedings and not the judgment of the Supreme Court. The applicant could not therefore be blamed for not having requested the continuation of the proceedings earlier.
On 25 November 1993, after further court hearings on 27 May 1993 and 8 November 1993, the Labour Court dismissed the applicant’s action. The Labour Court stated that the Conditions of Employment Act (Arbeitsverfassungsgesetz), providing special protection for members of the works council (Betriebsrat) against their dismissal, did not apply to employees of the Federal Railways. The Labour Court found that the mere distribution of leaflets to employees did not constitute a breach of professional duties. However, in the present case the contents of the leaflet which the applicant had distributed constituted a breach of the professional duty of loyalty, because it was written in a polemical and unobjective manner and, in particular, contained an incitement to other employees to breach their professional duty not to disseminate the company’s internal matters to the public. Furthermore, the applicant had contributed to the publication of an article by a magazine, in which the defendant company had been criticised in a polemical manner. He had not only tolerated the publication of this article but had also approved of it in a letter to the publisher. The applicant’s conduct therefore constituted a serious breach of his professional duty of loyalty vis-à-vis his employer and justified his dismissal.
On 14 February 1994 the applicant appealed. He criticised the assessment of evidence and submitted that the Labour Court had based its finding that the dismissal was justified on grounds which had not been invoked in the disciplinary decision. He also complained that his freedom of expression was restricted on the ground that he was an employee of the Federal Railways.
On 18 May 1994 the Court of Appeal dismissed the appeal. It found that the Labour Court had correctly assessed the evidence taken. Furthermore, the Labour Court had correctly taken into account the published article and the applicant’s letter to the editor, as the disciplinary decision dismissing the applicant also related to those events. In any case, the applicant’s conduct constituted a violation of his professional duties, a fact which he himself had never denied. Although an employee’s freedom of expression must not be unduly restricted by the employer, the expression of opinion must nevertheless not impair the employer’s justified interests. This was especially true in the case of the Federal Railways, since its reputation as a company offering a public service easily suffered from unjustified criticism, in particular when voiced by a company employee.
On 10 October 1994 the applicant lodged an appeal on points of law (Revision) with the Supreme Court in which he complained, inter alia, about a restriction on his freedom of expression.
On 11 January 1995 the Supreme Court dismissed the applicant’s appeal. It found that the dismissal was justified by the applicant’s conduct, which constituted a breach of his professional duties. As regards the applicant’s complaint that his freedom of expression was restricted, the Court found that the right to freedom of expression has its limits where the legitimate interests of others are impaired. It was beyond any doubt that the unqualified, disparaging statements made by the applicant in the leaflets impaired the legitimate interests of the Federal Railways.
B. Relevant domestic law
According to the constant case-law of the Constitutional Court (Collection of the Decisions of the Constitutional Court = VfSlg. 3140/1957, 4519/1963, 6125/1970, 8132/1977, 12092/1989) and the Supreme Court (Collection of the Judgments and Decisions of the Labour Courts and the Supreme Court in Labour Law Matters = Arb. 7539, Arb. 7795, Arb. 9310, 9 Ob A 104/88, 9 Ob A 320/89, 9 Ob A 270/90), the relationship between the Federal Railways and their employees is governed by private law. It is basically an employment contract (Dienstvertrag) under Section 1151 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch). There exist various regulations issued by the Federal Railways concerning the service, remuneration, pensions and disciplinary proceedings. These regulations, although some of them are published in the Federal Gazette, are not administrative acts but general contract schemes which define the contractual relationship (Vertragsschablonen). By accepting the employment contract, an employee also accepts these regulations as a part of it.
In performing the duties under the contract, an employee is subject to instructions from the employer, which specify the manner in which the duties must be performed. Employment contracts may also provide a possibility for the employer to impose disciplinary sanctions. This element must be explicitly mentioned in the contract.
Employment contracts may provide that their termination (Kündigung) is not subject to the general rules of the Civil Code (Sections 1159-1160), but may further restrict the right of the parties to give notice, i.e. by requiring specific or important reasons. This possibility does not impair the parties’ right to terminate the contract without notice for important reasons under Section 1162 of the Civil Code, i.e. dismissal (Entlassung) or notice to quit (Austritt). Important reasons for a dismissal are, inter alia, breaches of the obligations under the employment contract, in particular a breach of the duty of loyalty (Treuepflichtverletzung). A breach of the duty of loyalty may include inciting other employees to breach their professional duties, the unfavourable public presentation of employment conditions or other deficiencies in the economic undertaking, or supplying information to the press which runs counter to the economic interests of the employer (see Rummel, ABGB Kommentar, Vienna 1990, Section 1162, Marginal Notes 113, 128, 131 with references to the case-law of the labour courts).
As regards disciplinary proceedings provided for in labour contracts (betriebliche Disziplinarerkenntnisse), the Supreme Court in a leading decision (18 September 1980, 4 Ob 67/79, Collection of the Judgments of the Supreme Court in Civil Law Matters = SZ 53/119 = Arb. 9893) found that the ordinary civil courts (labour courts) are competent to decide on disputes relating to disciplinary measures taken by the internal bodies of business undertakings (Unternehmen). The courts have to examine whether such disciplinary measures are in conformity with the law and the specific employment contract. They are in no way bound by the decision taken by the disciplinary body, but must verify the facts on which the disciplinary body has based its decision, and determine whether those facts constitute a breach of the employee’s contractual duties. It might be helpful for businesses to have internal disciplinary procedures, but they would have no influence on the subsequent court decisions, since such internal procedures necessarily lack the guarantees of ordinary court proceedings. Internal disciplinary bodies have no powers corresponding to those of the ordinary courts since they cannot compel witnesses to appear or tell the truth under oath.


ITEMID: 001-94596
LANGUAGEISOCODE: ENG
RESPONDENT: AZE
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: OSMANOV v. AZERBAIJAN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: The applicant, Mr Bakhtiyar Osmanov, is an Azerbaijani and Israeli national who was born in 1952 and lives in Baku. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 January 2002 the applicant concluded an investment agreement with M., a representative of RMB Limited Liability Company (“RMB”). According to information given to the applicant by M., RMB was a subsidiary of Teletrade D.J. International Consulting Ltd (“Teletrade”), an international investment and stock-trading company based in Hong Kong. M. also claimed to be an official representative of Teletrade in Azerbaijan. The applicant invested 29,993 US dollars (USD). In exchange, he was promised high profits from international stock exchange operations to be carried out by RMB dealers.
In August 2002 the applicant was informed that all of the money that he had invested had been lost due to unsuccessful stock-trading deals. The applicant demanded financial reports proving this, but they were not made available to him.
The applicant brought an action against M., RMB and Teletrade, demanding compensation for pecuniary and non-pecuniary damage. On 19 March 2003 the Khojaly District Court rejected the claim, finding that RMB, and M. personally, could not be held responsible for the loss of the applicant’s money because the contract had formally been concluded between the applicant and Teletrade. According to the contract terms, all disputes were to be resolved under Hong Kong law. The court advised the applicant to lodge a lawsuit against Teletrade in Hong Kong.
The applicant lodged an appeal. He asked the court, inter alia, to institute criminal proceedings against M. and RMB. On 3 June 2003 the Court of Appeal delivered an interim decision (qərardad) instructing the Baku City Prosecutor’s Office to investigate whether the actions of RMB, and M. personally, involved any elements of such criminal offences as fraud, illegal business dealings, false advertising and falsification of official seals and documents. The Court of Appeal stayed the civil proceedings pending the conclusion of the criminal investigation.
On 3 February 2004 the Baku City Prosecutor’s Office refused to institute criminal proceedings, finding that the matter did not raise any issues under criminal law. This decision was upheld on 8 April 2004 and 12 May 2004 by the Sabail District Court and the Court of Appeal respectively.
Thereafter, the Court of Appeal resumed the suspended civil proceedings. Following an expert examination ordered by the court, it was established that certain documents pertaining to the applicant’s transaction and the partnership agreements between RMB and Teletrade had been falsified.
On 17 March 2005 the Court of Appeal quashed the Khojaly District Court’s judgment of 19 March 2003. The court found that, at the relevant time, RMB had not been properly set up as a legal entity in Azerbaijan, that Teletrade had no subsidiaries in Azerbaijan, that the “partnership” documents between RMB and Teletrade were false, and that the alleged official seals of Teletrade used on the investment agreement signed with the applicant were also false. The court partially upheld the applicant’s claim, ordering M. to compensate him for pecuniary damage in the amount of USD 29,993. The court rejected the applicant’s claim for non-pecuniary damages.
The Court of Appeal’s judgment of 17 March 2005 became operative immediately upon its delivery. On 1 April 2005 the Court of Appeal issued a writ of execution of the judgment.
Both the applicant and M. lodged cassation appeals against the Court of Appeal’s judgment of 17 March 2005. On 22 July 2005 the Supreme Court upheld the judgment.
On 6 September 2005 the Baku City Prosecutor’s Office instituted criminal proceedings for falsification of documents by RMB.
It appears from the case file that, following the institution of the enforcement proceedings, the Nasimi Department of Enforcement Officers applied to various public authorities, including the Baku City Technical Inventorisation and Property Rights Registry Office, the Ministry of Internal Affairs and the State Committee for Management of State Property, asking for information on M.’s property. However, according to the respective letters of 1 June, 13 July and 26 December 2005 of the aforementioned public authorities, M. did not possess any property in Azerbaijan.
Moreover, it was established that M. did not have a permanent residence in Azerbaijan and, according to his father’s statement, had been abroad since July 2004.
Upon the request of the Nasimi Department of Enforcement Officers, on 20 December 2006 M. was reprimanded in absentia by the Nasimi District Court under Article 313 (non-execution of court judgments) of the Code of Administrative Offences due to the continued non-execution of the judgment of 17 March 2005.
According to the information provided by the Government, the judgment was executed in full on 28 February 2007 and the applicant received USD 29,993.


ITEMID: 001-87640
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KAIC AND OTHERS v. CROATIA
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
JUDGES: Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. During 1992 the applicants lent various sums of money to a certain S.D., who was supposed to pay the money back within periods ranging from two to twelve months and at interest rates ranging from 10% to 18% per month (so-called “financial engineering”).
5. Since S.D. failed to perform her contractual obligations, on 21 March 1994 the applicants brought a civil action against her in the Zagreb Municipal Court (Općinski sud u Zagrebu).
6. In the period before the entry into force of the Convention in respect of Croatia (5 November 1997) the court held several hearings.
7. On 17 November 1997 the court invited the applicants to advance the costs of a financial expert. On 1 December 1997 the applicants refused to do so, arguing that an expert opinion was unnecessary since they had already submitted a similar opinion to which the respondent had not objected. They invited the court to give a judgment on the basis of the existing evidence.
8. The court held further hearings on 5 April and 26 October 2001 and 4 July 2003. On the last-mentioned date it delivered a judgment finding for the applicants. The judgment was served on the applicants' advocate on 30 December 2003.
9. On 12 February 2004 S.D. appealed to the Zagreb County Court (Županijski sud u Zagrebu).
10. On 8 November 2005 the County Court dismissed the respondent's appeal and upheld the first-instance judgment.
11. Meanwhile, on 2 December 2002 the applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the length of the above proceedings. On 9 November 2004 the Constitutional Court found a violation of the applicants' constitutional right to a hearing within a reasonable time, awarded 4,000 Croatian kunas (HRK) in compensation to each of them and ordered the County Court to decide the appeal in the shortest time possible but no later than six months from the publication of the decision in the Official Gazette. The Constitutional Court's decision was published on 26 November 2004.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1