ITEMID: 001-87239
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: POHLEN v. SLOVENIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 1. The applicant, Mr Saverij Pohlen, is a Slovenian national who was born in 1936 and lives in Pobegi. The respondent Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 27 January 1997 the applicant instituted civil proceedings against the Company for Public Roads (Družba za državne caste) and Koper Municipality in the Koper Local Court (Okrajno sodišče v Kopru) seeking restoration of a wall on his property which had allegedly been damaged during road building works.
4. On 2 February 2001 the applicant urged the court to proceed with his case.
5. On 12 November 2001 and 22 January 2003 the applicant made written submissions.
6. Hearings were held on 23 January 2003, 27 February 2003 and 9 October 2003.
7. During the proceedings the court obtained an expert opinion.
8. On 9 October 2003 the court adopted a judgment rejecting the applicant’s claim, which was served on the applicant on 18 November 2003.
9. On 26 November 2003 the applicant appealed to the Koper Higher Court (Višje sodišče v Kopru).
10. On 19 April 2005 the court dismissed the applicant’s appeal.
11. It would appear that this judgment was served on the applicant on 10 June 2005.
12. On 29 May 2007 the respondent Government were given notice of the present application.
13. On 23 August 2007 the State Attorney’s Office sent a settlement proposal to the applicant under section 25 of the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”). In its proposal, the State Attorney’s Office acknowledged the violation of the right to a trial within a reasonable time and, taking into account the fact that the applicant had not stated a claim as to the amount of just satisfaction sought in his application to the Court, offered the applicant a written statement in accordance with section 17 of the 2006 Act. He was requested to reply or state his counter-proposal.
14. On 11 September 2007 the applicant informed the State Attorney’s Office that he disagreed with the proposal and that he wanted this Court to rule on the matter.
15. On 27 December 2007 the State Attorney’s Office sent a new letter to the applicant, explaining its proposal and proposing the applicant to specify the amount of compensation claimed in respect of non-pecuniary damage. The State Attorney’s Office assured the applicant it would immediately examine his claim and respond to it. He was requested to reply in one month.
16. The applicant did not reply to the State Attorney’s Office’s proposal, but instead, on 10 February 2008, he informed the Registry of the Court that he insisted that the case be decided by the Court. The applicant also explained that he had not responded to the State Attorney’s Office’s letter of 27 December 2007 because it was in substance the same as the initial one.
17. The Slovenian Government adopted on 12 December 2005 a Joint State Project on the Elimination of Court Backlogs, the “Lukenda Project”. Its goal is the elimination of backlogs in Slovenian courts and prosecutors’ offices by the end of 2010, by providing for structural and managerial reform of the judiciary. As a part of the “Lukenda Project” the Parliament adopted the 2006 Act (Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 49/2006) which has been implemented since 1 January 2007.
18. Section 25 of the 2006 Act lays down the following transitional rules in relation to applications already pending before the Court:
“(1) In cases where an infringement of the right to a trial without undue delay has already ceased and the party has filed a claim for just satisfaction with the international court before the date of implementation of this Act, the State Attorney’s Office shall offer the party a settlement on the amount of just satisfaction within four months of the date of receipt of the case referred by the international court for the settlement procedure. The party shall submit a settlement proposal to the State Attorney’s Office within two months of the date of receipt of the proposal of the State Attorney’s Office. The State Attorney’s Office shall decide on the proposal as soon as possible and within four months at the latest.....
(2) If the proposal for settlement referred to in paragraph 1 of this section is not acceded to or the State Attorney’s Office and the party fail to negotiate an agreement within four months of the date on which the party filed its proposal, the party may bring an action before the competent court under this Act. The party may bring an action within six months of receiving the State Attorney’s Office reply that the party’s proposal referred to in the previous paragraph was not acceded to, or after the expiry of the period fixed in the previous paragraph for the State Attorney’s Office to decide to proceed with settlement. Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.”
19. The following parts of the 2006 Act are relevant as regards the “claim for just satisfaction” and other means aimed at providing redress:
“When deciding on the legal remedies under this Act, the circumstances of the particular case shall be taken into account, namely: its complexity in terms of facts and law; actions of the parties to the proceedings, in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings; compliance with rules on the set order for resolving cases, or with statutory deadlines for fixing preliminary hearings or for giving court decisions; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged; the nature and type of case and its importance for a party.”
“....
(2) Just satisfaction shall be provided by:
i. payment of monetary compensation for damage caused by an infringement of the right to a trial without undue delay;
ii. a written statement from the State Attorney’s Office that the party’s right to a trial without undue delay has been infringed;
iii. the publication of a judgment that the party’s right to a trial without undue delay has been infringed.”
“(1) Monetary compensation shall be payable for non-pecuniary damage caused by an infringement of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia.
(2) Monetary compensation for individual finally decided cases shall be granted in amounts from 300 to 5,000 euros.
(1) Given the circumstances of the case, the State Attorney’s Office may, by agreement with the party under Article 19 of this Act and taking account of criteria referred to in Article 18, paragraph 1 of this Act, make a written statement without monetary compensation to the party as a compensation for non-pecuniary damage caused by the violation of the right to a trial without undue delay. If the right to a trial without undue delay has been seriously violated and at the request of the party, the State Attorney’s Office may in addition to the monetary compensation also make a written statement.
(2) The written statement shall include data referred to in the Article 5, paragraph 2, subparagraphs 1, 2, 3 and 4 of this Act, an indication that a violation of the right to a trial without undue delay has occurred and the length of the undue delay.
(3) A written statement shall be made by the State Attorney’s Office within the concluded settlement referred to in Article 19 of the present Act. At the party’s request, the written statement shall be published on the website of the State Attorney’s Office which shall cover the costs thereof. The written statement shall be made public for two months and thereupon archived within the website or deleted within fifteen days of receipt of a request from the party or the majority of parties concerning the written statement.
“...
(3) Territorial jurisdiction for decision-making on an action for damages under this Act shall lie with the local court in whose district the plaintiff is a permanent or temporary resident or has registered office.
...
(6) Irrespective of the type or amount of the claim, the provisions of the Civil Procedure Act concerning small claims shall apply in proceedings before a court.
(7) Appeal on points of law shall be excluded for disputes on damage under this Act.”
“...
(2) The State Attorney’s Office shall pay monetary compensation and the party’s costs of the proceedings on the basis of a final court decision which has established an infringement of the right to a trial without undue delay in the proceedings, under section 20 or section 21 of the present Act.”
...”
“Funds ... shall be earmarked in the Budget of the Republic of Slovenia within the framework of the financial plan of the State Attorney’s Office.”


ITEMID: 001-68398
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF WIMMER v. GERMANY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
JUDGES: David Thór Björgvinsson
TEXT: 8. The applicant was born in 1952 and lives in Töging am Inn, Germany.
9. On 25 November 1992 the applicant and his wife (hereafter Ms W.) divorced before the Groß Gerau District Court. In this context, the District Court granted them joint custody of their two daughters, aged four and eight at that time.
10. On 6 July 1993, following Ms W.’s appeal (Beschwerde) and after hearing both her and the applicant as well as two representatives of the local Youth Office, the Frankfurt/Main Court of Appeal granted Ms W. sole custody of the children, while allowing the applicant to retain a right of access. It found that, given the fact that the parents did not seem entirely willing to co-operate in practical matters, it would be in the children’s best interest if decisions concerning their everyday life were taken by their mother alone. It added that the mother had agreed to discuss important decisions with the applicant and that she was expected to ensure that contacts between the applicant and his daughters would continue on a regular basis. In its decision, the Court of Appeal did not admit an appeal on points of law (weitere Beschwerde).
11. On 9 August 1993 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed in particular that the decision of the Frankfurt/Main Court of Appeal had misinterpreted the existing provisions on custody of children, notably Section 1671 of the Civil Code (see Relevant domestic law, below), and infringed his parental rights guaranteed by Article 6 § 2 of the Basic Law.
12. On 23 March 1994 the President of the Federal Constitutional Court informed the applicant that he had communicated the case to 25 third parties, who had the right to submit their observations until 30 September 1994. The list of third parties included the Federal Parliament (Bundestag), the Federal Council (Bundesrat), the Federal Government, the Länder Governments, the President of the Federal Court of Justice, the parties of the proceedings before the Frankfurt/Main Court of Appeal, as well as various national organisations dealing with family law issues and involved in the protection of children.
13. On 13 November 1995, following the applicant’s request dated 2 October 1995, the Federal Constitutional Court forwarded the pertinent written observations dated 1 and 25 July, 20 and 27 September, 20 October and 9 December 1994 and 19 February 1995. These included the observations of the Federal Ministry of Justice of 9 December 1994 stating that the Government planned an amendment of the law on family matters, inter alia by introducing explicit provisions on joint custody after divorce.
14. Towards the end of 1997, the applicant received a telephone call from the Federal Constitutional Court informing him that the questions raised by his complaint would become obsolete with the expected entry into force of the amended Law on Family Matters of 16 December 1997 (Kindschaftsrechtsreformgesetz) on 1 July 1998. The applicant was asked whether he wanted to declare that his constitutional complaint had been disposed of (Erledigterklärung) under these circumstances.
15. On 24 June 1998 the applicant requested the Constitutional Court to deliver a decision despite the change of law brought about by the Law on Family Matters.
16. On 22 December 1999 (decision served on 20 January 2000), the Federal Constitutional Court, sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint. It found that due to the amended Law on Family Matters, the constitutional complaint no longer raised issues of general interest. The applicant’s complaints could be adequately dealt with in proceedings for the amendment of a court order (Abänderungsverfahren) pursuant to Section 1696 § 1 of the Civil Code (see Relevant domestic law, below) before the competent civil courts. In these proceedings, the new legal provisions on family matters could be taken into account.
17. Section 1671 of the Civil Code, in its version in force until 30 June 1998, provided that the court sitting in family matters had to grant the custody of a child to one of his or her parents divorcing. The provision has been amended by the Law on Family Matters of 16 December 1997, which entered into force on 1 July 1998. Pursuant to the amended Section 1671 of the Civil Code, parents who split up keep, as a rule, joint custody of their children. The courts sitting in family matters award sole custody to one parent only if a motion is filed to this end and certain further conditions are satisfied, especially if sole custody is best for the child’s well-being.
18. The statutory provision on the amendment of a court order concerning the custody of a child, Section 1696 § 1 of the Civil Code, in its version in force until 30 June 1998, was worded as follows:
“The court sitting in guardianship matters and the court sitting in family matters may modify their decisions at any time during the continuation of parental custody, if they consider this to be necessary in the interest of the child.”
19. Section 1696 § 1 of the Civil Code, as amended by the Law on Family Matters in force since 1 July 1998, provides:
“The court sitting in guardianship matters and the court sitting in family matters must modify their decisions, if this is necessary for cogent reasons which have a lasting effect on the child’s well-being.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59996
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF P.S. v. GERMANY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1+6-3-d
JUDGES: Ireneu Cabral Barreto
TEXT: 8. In the late evening of 29 April 1993, the father of S., born in 1985, laid a criminal information against the applicant, alleging that the applicant, her private music teacher, had sexually abused S. during an individual music lesson that afternoon. S. and her mother were questioned at the local police office on the afternoon of 30 April 1993. S. was heard by a police officer and confirmed her father’s statements. S.’s mother stated that S. had been very disturbed after her music lesson and that she had later confided in her mother.
9. On 10 January 1994 the Künzelsau District Court, sitting with a single judge, convicted the applicant of having committed the offence of sexual abuse of a child in concurrence with the offence of sexual abuse of a charge. He was sentenced to seven months’ imprisonment on probation.
In establishing the relevant facts, the court relied on the statements made by the mother concerning her daughter’s account of the relevant events, her behaviour after the music lesson on 29 April 1993 and her character in general, and also on the evidence given by the police officer who had questioned S. shortly after the offence in April 1993.
The court dismissed the applicant’s request for a psychological expert opinion regarding the credibility of S.’s statements on the ground of the court’s own professional experience, acquired as a judge in family matters, in evaluating statements made by children.
Moreover, the court observed that it had not been reasonable to hear S. herself, as, according to her mother, she had meanwhile repressed her recollection of the event in question and would seriously suffer if reminded thereof. If S. were to be examined, this would not contribute to a further clarification of the facts, but seriously impair her personal development.
10. The applicant appealed to the Heilbronn Regional Court, requesting his acquittal. In the appeal proceedings, he was assisted by counsel.
11. On 17 March 1995 the Heilbronn Regional Court dismissed the applicant’s appeal against his conviction of sexual abuse of a child, but set aside the conviction of sexual abuse of a charge. The sentence to seven months’ imprisonment on probation was upheld.
The Regional Court noted that the applicant had denied having sexually abused S. It found that his guilt could be established on the basis of the evidence before it, i.e. the statements made by S.’s mother and the police officer as well as a psychological expert opinion on the question of S.’s credibility, ordered in the context of the appeal proceedings. In her report of November 1994, the expert, who had questioned S. in October 1994, confirmed that S.’s statements were credible.
The Regional Court considered that the absence of S.’s testimony in court constituted a serious shortcoming in the taking of evidence. In this respect, it noted that the parents had refused to bring their daughter to court on account of the risk that her state of health would deteriorate as she suffered from neurodermatitis. According to the Regional Court, the parents’ refusal was understandable. In this respect, the Regional Court had regard to a medical certificate confirming the parents’ statements and the findings of the psychological expert that S.’s state of health would most likely deteriorate again if she were to be heard anew on the event in question. Taking into account that S.’s statements had been reported by her mother and by the police officer and that an expert opinion on her credibility had been prepared, the Regional Court, considering the rather trivial nature of the charge and the sentence at stake, reached the conclusion that S. was to be regarded as a witness out of reach.
12. On 2 August 1995 the Stuttgart Court of Appeal dismissed the applicant’s appeal on points of law.
13. On 18 January 1996 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint, leaving open the question whether the complaint had been lodged in time.
14. The conduct of trial proceedings is governed by sections 226 to 275 of the Code of Criminal Procedure (Strafprozessordnung).
15. As regards the taking of evidence, section 244(2) provides that the court shall, proprio motu, extend the taking of evidence to all facts and evidence important for the decision in order to determine the truth.
A request for the taking of evidence may be refused under the statutory conditions of section 244(3) to (6). Pursuant to section 244(3), second sentence, an application may, inter alia, be refused if the evidence is unavailable.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-d


ITEMID: 001-88066
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: CLARK v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: The applicant, Mr Richard Clark, is a British national who was born in 1946 and lives in Gosport. He was unrepresented before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 7 October 2000. On 9 August 2001, the applicant made a claim for bereavement benefits under the new system in place as from 9 April 2001. On 22 August 2001 the applicant’s claim was refused. On 11 January 2002 he was informed that his application would be accepted as a request for widows’ benefits. On 14 February 2002 the applicant was informed that his claim had been disallowed as he was not a woman. This decision was confirmed by an appeal tribunal on 25 February 2002. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-85654
LANGUAGEISOCODE: ENG
RESPONDENT: ROU
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF DEKANY v. ROMANIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 4. The first applicant was born in 1948 and lives in Timişoara. The second applicant, the mother of the first applicant, was born in 1921 and died on 3 September 2004. In a letter of 4 June 2007 the first applicant, as the only successor of her mother, informed the Court that he wished to pursue the application.
5. On 9 September 1991 the applicants lodged an action with the Timişoara Court of First Instance seeking rectification of the Land Registry and, accordingly, registration of their ownership right with regard to a plot of land. Of the twenty one hearings held between 2 October 1991 and 19 June 1997 five were adjourned at the applicants’ request, including between 11 February 1992 and 18 January 1993, between 2 March 1993 and 6 July 1994, and between 11 October 1994 and 27 February 1996, when the proceedings were stayed during criminal investigations against one of the defendants. On 19 June 1997 the Timişoara Court of First Instance dismissed the applicants’ action.
6. On 28 April 1998 the Timiş Regional Court upheld the applicants’ appeal and quashed the judgment of the First Instance Court, sending the case back for retrial. The court considered that, as the land had been sold during the appeal proceedings, the new owner should be involved in the lawsuit. This ruling was upheld on 22 October 1998 by a final decision of the Timişoara Court of Appeal.
7. After retrial, on 10 January 2000 the Timişoara Court of First Instance rejected the applicants’ action as groundless. On 19 July 2000 the Timiş Regional Court confirmed this decision.
8. On 10 November 2000 the Timişoara Court of Appeal allowed the applicants’ appeal, quashed the two preceding judgments and referred the case back to the First Instance Court for a fresh examination, on the ground that the two courts had omitted to rule on two complaints and with regard to another defendant.
9. On 21 December 2001 the Timişoara Court of First Instance re-examined the action and dismissed it. Of the eighteen hearings held between 12 December 2000 and 21 December 2001 one was adjourned at the applicants’ request.
10. On 2 July 2002 the applicants’ appeal was upheld by the Timiş Regional Court, which ordered rectification of the Land Registry, declared null and void the subsequent sale contracts and ordered the administrative authorities to restitute the plot of land in kind.
11. On 10 December 2002 the Timişoara Court of Appeal by a final decision allowed the opposing parties’ appeal and therefore annulled the judgment of 2 July 2002 considering, inter alia, that the courts cannot act as a substitute for the administrative authorities set up by the Real Property Act (Law no. 18/1991) to deal with claims for return of land.
VIOLATED_ARTICLES: 6


ITEMID: 001-61443
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF NAPIJALO v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P4-2-2;Non-pecuniary damage - financial award
JUDGES: Christos Rozakis
TEXT: 8. The applicant was born in 1947 and lives in Karlovac, Croatia.
9. On 6 February 1999 the applicant was driving from Bosnia and Herzegovina and crossed the border to Croatia at the checkpoint at Maljevac. He was stopped by a customs officer for a routine check.
10. The applicant gives the following account of what happened at the border checkpoint. Before arriving in Croatia, the applicant and another person, K.B., had purchased four cartons of cigarettes and two litres of cooking oil.
11. At the border checkpoint they were approached by a customs officer who asked the applicant if he had anything to declare. The applicant pointed at the purchased goods, lying in the backseat of the car, inviting the customs officer to take a look. The officer then asked the applicant to show him his passport. While holding the applicant's passport the officer told the applicant that he had failed to declare the goods and thus committed a customs offence. He asked the applicant to pay a fine in the amount of two hundred Croatian Kunas (hereinafter HRK).
12. The applicant told the officer that he could not pay the fine right away because he did not have enough money on him. The officer did not return the applicant's passport and told him that he would receive his passport when he had paid the fine. The applicant then continued to Croatia.
13. The Government gave the following account of the facts. While entering Croatia the applicant failed to declare goods that he had purchased in Bosnia and Herzegovina. However, a customs officer found five cartons of cigarettes and two litres of cooking oil in the applicant's car. He routinely fined the applicant with HRK 200 [Approximately 30 euros] for a minor customs offence. The applicant was immediately given a document which stated that he was fined with HRK 200 for having failed to declare five cartons of cigarettes he was importing. The applicant signed the document. During this procedure the applicant's passport was kept by the customs officer, who had intended to return it to the applicant. However, the applicant refused to pay the fine and demonstratively drove away, leaving his passport behind.
14. On 10 February 1999 the applicant wrote from his address in Karlovac to the Ministry of Finance, Customs Administration Headquarters asking that his passport be returned.
15. On 22 February 1999 the Customs Administration replied to the applicant's address in Karlovac that the custom officers acted in accordance with law when they seized the applicant's passport because he had refused to pay the fine for a customs offence which he had committed by failing to declare goods at a border checkpoint. They relied on Sections 325 to 333 of the Customs Act which, inter alia, provided that a person, while crossing a customs check point, had to declare and show all goods that he was importing. Failure to declare such goods represented a customs offence. The letter also stated that since the applicant had not declared the goods that he had been importing to Croatia, he had committed a customs offence under Section 353 of the Customs Act and fined pursuant to § 2 of that Section. The applicant's passport had been kept because the applicant had refused to pay the fine. The letter contained no indication of how and when the applicant's passport would be returned.
16. Although the applicant did not pay the imposed fine no other proceedings were instituted against him for the alleged customs offence.
17. In the meantime, on 12 February 1999, the Customs Administration, apparently having decided not to institute any further proceedings against the applicant, handed over the passport to the Slunj Customs Police Department. The Police noticed, however, that the applicant was registered as living in Zagreb for which reason, on 4 March 1999, the passport was sent to the Zagreb Police Department.
18. On 5 March 1999 the Zagreb Police Department wrote to the applicant's registered address in Zagreb inviting him to collect his passport. The letter was returned. On 6 April 1999 the Zagreb Police Department wrote once more to the applicant, but the letter was again returned. The receipt showed that the applicant was unknown at that address.
19. The Police discovered subsequently that the applicant, although registered as living in Zagreb, actually lived in Karlovac. On 23 March 2001 the passport was sent to the Karlovac Police Department which invited the applicant to collect his passport. He did so on 4 April 2001.
20. Having received the Customs Administration's letter of 22 February 1999 the applicant filed a civil suit on 2 March 1999 in the Zagreb Municipal Court against the Ministry of Finance, seeking the return of his passport and damages flowing from his inability to leave Croatia. He also requested the court to adopt an interim measure and order that his passport be returned to him immediately.
21. On 13 April 1999 the applicant also filed an application in the Zagreb County Court claiming that the seizure of his passport by a customs officer was an unlawful act and that therefore, his right to freedom of movement had been violated. He requested the court to order the Ministry of Finance to return his passport forthwith.
22. On 21 September 1999 the Zagreb County Court dismissed the applicant's claim. It found that a claim for protection from an unlawful act was permitted only if there was no other remedy available. In the opinion of the court the applicant had at his disposal another remedy - a civil action for the return of his property. Accordingly, it instructed the applicant to institute civil proceedings in a municipal court against the Ministry of Finance for the return of his passport.
23. The applicant appealed against the decision.
24. The applicant's appeal was rejected on 20 April 2000 by the Supreme Court (Vrhovni sud Republike Hrvatske).
25. In the meantime, at a hearing on 12 April 1999 the Zagreb Municipal Court, in the proceedings instituted on 2 March 1999, against the Ministry of Finance, separated the applicant's claim for damages from the claim for return of the passport.
26. Concerning the claim for return of the applicant's passport the next hearing was held on 11 February 2000. At that hearing the court heard the applicant and then decided to hear K.B., who was with the applicant in the car at the material time. It was furthermore agreed between the parties to adjourn the issue of damages pending the outcome of the claim for the return of the passport.
27. At a hearing on 1 December 2000 the court heard the customs officer who took the applicant's passport. It also invited the applicant to submit within thirty days a copy of the letter that he had sent to the Customs Administration as well as their reply.
28. On 23 January 2001 the applicant submitted the Customs Administration's reply of 22 February 1999.
29. At a hearing on 21 February 2001 the court heard another customs officer and once again the applicant. It then rejected the applicant's request for an interim measure finding that the applicant's main claim, i.e. to have his passport returned, was exactly the same as his request for the interim measure and that, therefore, such a request could only be decided after the court established all the relevant facts of the case.
30. On 23 February 2001 the applicant filed an application asking that the judge be removed from the case. On 7 March 2001 the President of the Zagreb Municipal Court rejected the applicant's motion.
31. The next hearing was held on 13 April 2001. The applicant informed the court that on 4 April 2001 the Karlovac Police Department had returned his passport. Therefore, he no longer sought the return of his passport but instead sought a declaratory decision to the effect that on 6 February 1999 his passport was taken from him by the Croatian authorities and returned on 4 April 2001. He also sought costs.
32. On 24 April 2001 the applicant filed submissions with the court repeating the statements and claims he made at the hearing on 13 April 2001.
33. On 16 May 2001 the applicant's counsel appeared before the judge and agreed to reformulate the applicant's claim having regard to the fact that the passport had already been returned to him.
34. The next hearing was held on 28 May 2001 during which it was formally recorded that the passport had been returned to the applicant. The applicant's counsel sought from the court permission to specify the applicant's remaining claims. The court allowed her to do so within thirty days.
35. On 7 June 2001 the applicant himself filed submissions to the court reiterating the same claims as those submitted on 24 April 2001. No additional claims were submitted by the applicant's counsel.
36. On 13 August 2001 the applicant again filed an application asking that the judge be removed from the case. The President of the court accepted the request and the case was transferred to another judge.
37. Following a hearing on 14 November 2001 the court dismissed the applicant's claims. It found that the applicant had no further legal interest in seeking a declaratory decision that his passport had been taken from him by the Croatian authorities on 6 February 1999 and then returned on 4 April 2001. The applicant was also ordered to pay the defendant's costs.
38. The applicant's subsequent appeal was dismissed and the first instance decision was upheld by the Zagreb County Court (Županijski sud u Zagrebu) on 10 September 2002. It held that the applicant had no legal interest in seeking a declaratory decision and that the Zagreb Municipal Court's decision on the costs of the proceedings was well-founded because the applicant had lost his case.
39. According to the applicant the proceedings concerning his claim for damages have never been resumed and on 24 January 2002 the case was closed without any decision on the merits been taken.
40. According to the Government the case has not been closed and the proceedings are still pending.
41. According to Sections 34 and 35 of the Act on Travel Documents of Croatian Citizens (Zakon o putnim ispravama hrvatskih građana - Official Gazette no. 53/1991, hereinafter the “Act on Travel Documents”) a passport will be seized when there is a reasonable suspicion that:
- a person is acting against the laws regulating customs or foreign trade.
42. Relevant parts of Section 353 of the Customs Act (Carinski zakon, Official Gazette no. 106/1993) provides, inter alia, that a person who, when crossing a border, does not declare the goods for his or her personal use shall be fined.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-111361
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: H.A.L. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
TEXT: 1. The applicant, Mr H.A.L., is a Sri Lankan national who was born in 1980 and lives in West Drayton. He was represented before the Court by Ravi Solicitors, Harrow, assisted by Mr N. Paramjorthy, counsel.
2. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. During Sri Lanka’s recent civil war, the main fighting occurred between Government forces and the Liberation Tigers of Tamil Eelam (the LTTE or “Tamil Tigers”). In 2004, a paramilitary group broke away from the LTTE; this became known as the “Karuna group” from the name of its leader V. Muralitharan (alias “Colonel Karuna”). The political wing of this group was called the Tamil Eelam Peoples Liberation Tigers (TamilEela Makkal Viduthalai Pulikal: TVMP). Between late 2006 and early 2007 the Karuna group fought with the Sri Lankan armed forces against the LTTE in the Eastern Province of Sri Lanka. In October 2007 Karuna was expelled from the TMVP after a dispute between him and his former deputy, Sivanesathurai Chandrakanthan (also known as Pillayan). Karuna was later detained in the United Kingdom for immigration offences; during this time the TMVP was registered as a political party and, after elections in May 2008, Pillayan became chief minister of the Eastern Province (see United Kingdom Border Agency Country of Origin Information Service reports on Sri Lanka of 18 February 2010 at annex C, p. 213 and 7 March 2012 at annex B, p. 229).
5. The applicant arrived in the United Kingdom on 19 May 2008. He initially claimed to be visiting his brother but, when pressed, did not know his brother’s address or phone number. When questioned further, he claimed asylum. He claimed to have formed a political party called the People’s Democratic Front and to have stood as an independent candidate in the 2008 provincial elections in Akarrapaittu, Ampara District, in eastern Sri Lanka. In early 2008, he had announced that he would publish a book giving details of human rights abuses of Muslims in the district. He claimed that, on 30 March 2008, he was beaten up by five unidentified men who warned him not to publish the book. He was later given a similar warning by telephone by the LTTE. On 20 April 2008, at a branch meeting of the party, the applicant was attacked by an armed group who warned him to withdraw from the election or he would be killed. He attempted to report this incident to the police. On 30 April 2008, another group of armed men visited the party’s office and made similar threats. The applicant believed these men belonged to the Pillayan group. A further attack took place on 5 May 2008 when two candidates from the applicant’s party were attacked whilst putting up posters. That day the applicant travelled to Colombo and, the following day, he attended an anti-TMVP demonstration at which he was interviewed by the BBC Tamil Network. He telephoned his home town and was told that, as a result of the interview, the Government and the Pillayan group were looking for him. He was warned not to return home. He nonetheless did so on 6 May 2008, and continued his political activities until election day, 10 May 2008. His home was visited by armed men. Although he was not there at the time, his parents were given another warning. The applicant travelled to Irrakamam (also in Ampara District) and then Colombo. He fled to the United Kingdom via Kuwait using his Sri Lankan passport.
6. His asylum claim was refused by the Secretary of State on 5 June 2008. It was found not to be credible that, in his asylum interview, the applicant had failed to remember the full name of the man with whom he had founded the People’s Democratic Front or the name of two other party candidates. He had failed to show whether the armed groups who had threatened him were affiliated to a political party and it was speculative to consider that they were Government forces. There were inconsistencies between the applicant’s account and the transcript of the interview with the BBC. For instance, he had claimed to have spoken about removing arms from the Pillayan group and made comments about fair elections, neither of which were in the transcript. This indicated he had fabricated his account that he was of interest to the Pillayan group and the Government. He had also failed to mention in the transcript who had assaulted the party’s candidates and thus there was no evidence that he had accused the Pillayan group or the Government of being responsible for the attacks. He had also referred to himself in the broadcast as “a candidate of the Independent Group of Fifteen” yet stated in his asylum interview that he belonged to the People’s Democratic Front. It was also incredible that he would have returned home after the broadcast and, despite his fear of the Government, he had left Sri Lanka on his own passport without any difficulties. He had, by his own admission, never been harmed by the Government or the Pillayan group and had no further problems with the LTTE despite having published his book. Finally, the Secretary of State considered that the documents produced by the applicant in support of his claim, including an election card and poster, and a recording and transcript of the BBC interview, did not assist him in any material way. The recording had not been independently corroborated and the transcript was incomplete.
7. The applicant appealed against the Secretary of State’s refusal. His appeal was dismissed by the then Asylum and Immigration Tribunal on 25 July 2008. It was accepted he had published the book as he had claimed and that this would have brought him to the attention of the LTTE and the TMVP. It was accepted that elections took place in eastern Sri Lanka on 10 May 2008 and they had been marred by violence by paramilitary groups, including the TMVP. It was surprising that the applicant had been unable to recall basic information as to his fellow candidates but it was accepted that the applicant had stood in those elections and the claims of harassment and attacks of the applicant and his party were consistent with the background evidence. The applicant’s assumption that the armed men were part of the Pillayan group was entirely reasonable in the circumstances and it was credible that the TMVP would have shown an interest in a rival party. The Tribunal was also satisfied that the applicant had given an interview at an anti-TMVP demonstration in Colombo but it was not clear what he had said. It was further accepted that the applicant had been forced to flee as a result of the threats which had been made and the interview he had given. He would therefore be at risk in his home area. However, having considered this Court’s judgment in NA. v. the United Kingdom, no. 25904/07, 17 July 2008, Tribunal concluded that the applicant would be safe in Colombo where the TMVP were not active. There was insufficient evidence that he would be wanted by the Sri Lankan authorities rather than the TMVP; there was little evidence of harassment of opposition groups by the Government as shown by the fact that the demonstration at which the interview had been given had passed off relatively peacefully. The applicant was not on a wanted list nor was there any outstanding arrest warrant. He would be questioned at Colombo airport on return but not detained or ill-treated.
8. An application for reconsideration of the determination was refused by a senior immigration judge on 22 August 2008, who found that, on the evidence before it, the Tribunal had been entitled to find as it did.
9. The applicant’s brother arrived in the United Kingdom on 28 August 2007 with a student visa which was valid until 30 September 2010. He claimed asylum in the United Kingdom in early 2010 on the basis that he was suspected of assisting the LTTE by providing a vehicle to transport weapons. He stated that he had previously earned a living in Sri Lanka by hiring two vehicles but had decided to study in the United Kingdom and had handed his vehicles and business interests to a family friend. He had no problems prior to leaving Sri Lanka but, in January 2010, his parents had telephoned to say that the police had come looking for him. The police had shown his parents an arrest warrant and told them that the family friend had been arrested while carrying weapons. The Secretary of State refused the asylum claim inter alia because the brother had initially said that the family friend had been arrested because he had been carrying election propaganda but later said that it was because he had been carrying weapons.
10. The brother appealed to the First-tier Tribunal (Immigration and Asylum Chamber) (formerly the Asylum and Immigration Tribunal) and produced a series of documents in support of his claim, including a letter from a Sri Lankan lawyer to the applicant’s father and a copy of the arrest warrant with an English translation. Although the Secretary of State did not accept the authenticity of the documents (arguing that forgeries were easily obtainable in Sri Lanka and that it was difficult to obtain a copy of one’s own arrest warrant), attempts to verify their authenticity had not been successful.
11. On 9 August 2010, the Tribunal allowed the brother’s appeal. Although it had not been explained how the arrest warrant came into the possession of the family, the Secretary of State had not undertaken checks, had not appeared before the Tribunal and had not stated that the documents were forgeries. The arrest warrant was corroborated by the rest of the documents submitted by the brother, it was accepted it had been issued and further accepted that the police had visited the family home. Given the significance of an arrest warrant as a risk factor, the Tribunal concluded that there would be a real risk of ill-treatment on return.
12. The applicant made further representations to the Secretary of State on 2 December 2008 and submitted further objective information in support of his asylum claim, which showed that opponents of the TMVP were at risk and that a number of Muslim Tamils had been murdered. It appears that these representations were not received by the Secretary of State at the time.
13. Removal directions were set for the applicant’s removal to Sri Lanka on 10 September 2010. On 9 September 2010, the applicant lodged an emergency application for judicial review. It appears that at this point the Secretary of State became aware of the representations. The removal directions were then cancelled.
14. The Secretary of State rejected the representations in a letter dated 22 September 2010. The Secretary of State found that, even if he were at risk from members of the TVMP, the applicant could safely relocate to Columbo, but, in any event, the latest evidence showed that even a localised risk had been eradicated. A consideration of the risk factors set out in LP, and endorsed in NA, cited above, and TK (see paragraphs 26 and 27 below), showed that there was no real risk of ill-treatment at the hands of the Sri Lankan authorities.
15. The judicial review application was refused by the High Court on 1 October 2010. It was found that there was nothing in the judicial application to impugn the Secretary of State’s initial decision to refuse asylum or the decision of the Asylum and Immigration Tribunal.
16. When removal directions were then set for the applicant’s removal to Sri Lanka on 18 October 2010, the applicant made a second emergency application for judicial review to the High Court. He relied on new evidence that he was of continuing interest to the Sri Lankan authorities, including a witness statement from his mother and a letter from a Sri Lankan lawyer which appended English translations of an arrest warrant for the applicant and two court summonses containing the names of the applicant and two other men.
17. Those documents have been provided to the Court.
The letter from the Sri Lankan lawyer, addressed to the applicant’s former legal representatives and dated 15 October 2010, thanked the legal representatives for their instructions of 14 October 2010. The Sri Lankan lawyer stated that he contacted the Akkaraipattu Magistrates’ Court Registrar, who advised him that an arrest warrant was issued in respect of the applicant on 6 July 2010. The letter gave the case reference number for the arrest warrant, stated that it was “live” and valid until executed. The letter states that service of the warrant was attempted on 3 October 2010.
The first court summons from the Akkaraipattu Magistrates’ Court is dated 29 April 2010. It gives the names of the applicant and two other men, and the particulars of their offence as having connection with terrorists and aiding and abetting terrorists. The summons requires the applicant to appear before the court on 20 May 2010. The second court summons is dated 25 May 2010 and orders his appearance on 6 July 2010.
The arrest warrant is dated 6 July 2010 and authorises the arrest of the applicant for the purposes of bringing him before the same court, the Akkaraipattu Magistrates’ Court.
On both court summonses, the name of one of the two other men is similar to the name of the applicant’s brother, though the parties in their submissions to the Court (see further below) have confirmed that it is a different person. The parties have also confirmed that the summonses and warrant are different documents from the arrest warrant considered by the First-tier Tribunal (Immigration and Asylum Chamber) in the appeal of the applicant’s brother.
In her statement, the applicant’s mother said that two police officers visited the family home on 13 September 2010 and told her that the applicant was being sought for suspicious activities on behalf of the LTTE and against the TMVP. She was shown a document which stated that the police had an arrest warrant to this effect. The police then said that they would be back in two weeks and warned her that her son would have to face terrible consequences if he failed to surrender.
18. On 16 October 2010, the Secretary of State wrote to the applicant stating that the grounds which he relied on in the second judicial review application could reasonably have been raised in the previous judicial review application and she was not prepared to defer his removal unless a High Court injunction was obtained.
19. The second application for judicial review was refused on 18 October 2010. The High Court found:
“The asylum claim before the Immigration Judge in mid 2008, and upheld, was a fear of persecution from the TMVP. Then as late as 9 September 2010 the judicial review was based on what was said to be a fresh claim ‘that as an opponent of the TMVP he would at risk [sic]’... Now it is said that his fear is from the authorities, because there is an arrest warrant out for him and a statement from his mother that the police have been looking for him. Having given the matter close attention I am afraid I regard this simply as a last ditch attempt to prevent removal. It has no prospect of success.”
20. The same day, the Court of Appeal refused permission to appeal, a single judge of that court stating that he was not persuaded that there was a realistic prospect of a successful appeal against the refusal of interim relief. The applicant has since informed this Court that the Tribunal determination in respect of the applicant’s brother was not placed before the High Court or Court of Appeal.
21. The Government proceeded with the applicant’s removal from Heathrow airport on 18 October 2010 but he was removed from the aircraft when he claimed to be experiencing chest pains. Removal directions were reset for 23 October 2010.
22. On 22 October 2010 the applicant lodged an application with this Court and the same day the President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government of the United Kingdom that the applicant should not be removed to Sri Lanka until 5 November 2010 to enable further consideration of the application.
23. On 27 October 2010, the applicant was requested to submit further information to the Court, including a copy of the Tribunal determination in respect of his brother. This was sent by post the same day.
24. On 4 November 2010, the Agent of the Government of the United Kingdom informed the Court that removal directions had been set for 10 November 2010. He further informed the Court that, while the applicant’s brother had been granted asylum, this had no bearing on the consideration of the applicant’s case, which had been carefully considered on its own merits.
25. On 10 November 2010 the President of the Chamber decided that Rule 39 should be applied until further notice, that notice of the application should be given to the respondent Government, and that they should be invited to submit written observations on the admissibility and merits of the case.
26. The Asylum and Immigration Tribunal’s determination in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 was considered by this Court in NA., cited above, §§ 30–46. The headnote to the determination provided:
“(1) Tamils are not per se at risk of serious harm from the Sri Lankan authorities in Colombo. A number of factors may increase the risk, including but not limited to: a previous record as a suspected or actual LTTE member; a previous criminal record and/or outstanding arrest warrant; bail jumping and/or escaping from custody; having signed a confession or similar document; having been asked by the security forces to become an informer; the presence of scarring; return from London or other centre of LTTE fundraising; illegal departure from Sri Lanka; lack of an ID card or other documentation; having made an asylum claim abroad; having relatives in the LTTE. In every case, those factors and the weight to be ascribed to them, individually and cumulatively, must be considered in the light of the facts of each case but they are not intended to be a check list.
(2) If a person is actively wanted by the police and/or named on a Watched or Wanted list held at Colombo airport, they may be at risk of detention at the airport.
(3) Otherwise, the majority of returning failed asylum seekers are processed relatively quickly and with no difficulty beyond some possible harassment.
(4) Tamils in Colombo are at increased risk of being stopped at checkpoints, in a cordon and search operation, or of being the subject of a raid on a Lodge where they are staying. In general, the risk again is no more than harassment and should not cause any lasting difficulty, but Tamils who have recently returned to Sri Lanka and have not yet renewed their Sri Lankan identity documents will be subject to more investigation and the factors listed above may then come into play.
(5) Returning Tamils should be able to establish the fact of their recent return during the short period necessary for new identity documents to be procured.
(6) A person who cannot establish that he is at real risk of persecution in his home area is not a refugee; but his appeal may succeed under article 3 of the ECHR, or he may be entitled to humanitarian protection if he can establish he would be at risk in the part of the country to which he will be returned...”
27. LP was reconsidered by the Tribunal in the light of NA. in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049. The Tribunal’s conclusions were summarised in the headnote to the determination which, where relevant provides:
“a) The risk categories identified in LP (LTTE area – Tamils - Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and approved by the European Court of Human Rights (ECtHR) in NA v UK, App.no. 25904/07, remain valid.
b) Events since the military defeat of the LTTE in May 2009 have not aggravated the likely approach of the Sri Lankan authorities to returned failed asylum seekers who are Tamils; if anything the level of interest in them has decreased. The principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be either LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms.
c) The records the Sri Lanka authorities keep on persons with some history of arrest and detention have become increasingly sophisticated; their greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained.”
28. Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
29. As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v. Secretary of State for the Home Department [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Secretary of State, will nonetheless generate a fresh right of appeal to be considered on the merits.
30. The United Kingdom Border Agency Country of Origin Information Service report on Sri Lanka of 11 November 2010 includes (at paragraph 12.19) the following excerpt from a letter from the British High Commission in Sri Lanka dated 14 September 2010:
“Formally it is difficult for the accused to be able to obtain a copy of his/her own arrest warrant. When an arrest warrant is issued, a copy is kept on the legal file and the original is handed to the police. An accused cannot apply for copies of the arrest warrant to the relevant court. However, in practice forged documents are easily obtainable throughout Sri Lanka. Additionally given ongoing and well documented concerns over corruption in the police it would probably not prove difficult to obtain a copy of an arrest warrant, although it would probably require prior contacts within the police service.”


ITEMID: 001-110989
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: GEORGIEVI v. BULGARIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;George Nicolaou;Georgieva;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 1. The applicants, Mr Todor Kerezov Georgiev and Ms Hriska Todorova Georgieva, are Bulgarian nationals who were born in 1938 and 1953 respectively and live in Varna. They are represented before the Court by Mr V. Panayotov, a lawyer practising in Varna.
2. The applicants are father and daughter. The second applicant suffers from severely impaired hearing, an anxiety disorder and hypochondria. In 2001 she was classified as 76% disabled and since then has been in receipt of a disability pension. She lives with the first applicant.
3. On an unspecified date after 1997 the applicants were charged with defrauding two individuals by purporting to sell them a flat which they had already sold to others. In 2002, in the course of the trial, the defrauded individuals brought claims for damages. It is unclear whether at that stage of the proceedings the applicants were legally represented.
4. During the trial the Varna District Court ordered an expert report on the second applicant’s mental health at the time of the alleged offence and on her fitness to stand trial. The experts, a psychiatrist and a psychologist, stated that she suffered from an anxiety disorder which presented as emotional instability and irritability which, however, did not amount to psychosis, and concluded that at the time of the alleged offence she had been able to understand the nature of her actions and to control them. She was also judged able to take part in the proceedings and to give evidence. The experts further observed that she suffered from severe hearing loss and difficulties in articulation due to missing teeth, which had hampered their communication with her. On the basis of previous medical reports in respect of the second applicant, the experts also observed that her relations with the first applicant had at times been strained.
5. In a judgment of 23 February 2004, the Varna District Court found both applicants guilty of fraud and sentenced them each to two years’ suspended imprisonment. In addition, it ordered them to pay damages to the civil parties.
6. All parties appealed. The first applicant and the civil parties were represented by counsel, but the second applicant was not. In her appeal, the second applicant alleged that her conviction was wrongful and had been tainted by breaches of the rules of procedure, and that her sentence was too harsh. At the hearing, which took place between 2.30 p.m. and 2.50 p.m. on 15 July 2004, the Varna Regional Court appointed counsel for the second applicant with reference to Article 70 § 1 (2) of the Code of Criminal Procedure 1974 (see paragraph 14 below). However, it did not specify whether the appointment of counsel was necessary because of the applicant’s mental disorder or because of her hearing impairment.
7. In her closing speech, the courtappointed counsel argued that the sentence imposed on the second applicant was too harsh and should be reduced in view of her state of health and the numerous mitigating circumstances.
8. In a judgment of 29 July 2004 the Varna Regional Court upheld the applicants’ conviction and sentence, as well as the award of damages to the civil parties.
9. On 6 August 2004 a court bailiff served notice of the judgment on the second applicant, who undertook to transmit it to the first applicant. However, according to the first applicant she did not do so within the statutory fifteen-day time-limit for appealing on points of law, which expired on 21 August 2004.
10. On 9 September 2004 the first applicant requested the Varna Regional Court to extend the time-limit for appealing on points of law. He asserted that he had not been duly notified of the judgment, as notice of it had been served solely on the second applicant, in breach of the rules of procedure.
11. The Varna Regional Court examined the request at a hearing held on 19 September 2004. The first applicant was represented by counsel. The second applicant was absent and was not legally represented. The court, considering that the applicants had conflicting interests and noting that the second applicant was absent, decided to appoint counsel for her. In her closing speech, the court-appointed counsel argued that the request was unfounded and that the second applicant had not been negligent with regard to the delivery of the notice to her father. The court observed that all previous summonses and notices to the applicants had been served on the second applicant in her capacity as the daughter of the first applicant and not as a co-accused. This had been in line with the relevant rules of procedure and there was no reason to find that the notice in question had not been properly served.
12. The first applicant appealed against that ruling to the Supreme Court of Cassation. The court heard the case on 18 January 2005. The public prosecutor supported the appeal, arguing that it was open to doubt whether the notice had really been transmitted to the first applicant. He also said that extending the time-limit for appealing on points of law would be consistent with the first applicant’s defence rights.
13. In a final decision of 4 February 2005 the Supreme Court of Cassation dismissed the appeal. It held that the notice of the Regional Court’s judgment had been served in accordance with the applicable rules. The second applicant was an adult. This fact, as well as her relationship to the first applicant, had been noted in the certificate of service. The applicants did not have conflicting interests. It was true that the second applicant suffered from neurasthenia, but, according to the expert report drawn up during the trial, this had not prevented her from understanding the nature of her criminal act and bearing responsibility for it. In their appeals against the first-instance court’s judgment the applicants had not mentioned any mental-health problems affecting the second applicant. Moreover, all earlier notices and summonses to the first applicant had been served on him through the second applicant without this being the source of any problems.
14. Article 70 § 1 (2) of the Code of Criminal Procedure 1974 (“the CCP 1974”), as worded at the material time, provided that the participation of defence counsel in the proceedings was mandatory if the accused suffered from a physical or mental handicap preventing them from conducting their defence in person. The participation of counsel was also mandatory if two or more accused had conflicting interests and one of them was legally represented (Article 70 § 1 (5)), or if the case was heard in the accused’s absence (Article 70 § 1 (6)).
15. As a rule, process had to be served personally (Article 160 § 1 of the CCP 1974). If the addressee was absent, it could be handed to an adult member of his or her household, and if there was no such individual, to the building caretaker, a flatmate, or a neighbour, if he or she undertook to deliver it to the addressee (Article 160 § 2). If the process was addressed to an accused and it was impossible to serve it in the manner described it could be handed to his or her defence counsel (Article 160 § 3). The process server had to note on the receipt the name and address of the individual through whom the process was being served, as well as his or her relationship to the addressee (Article 160 § 7). An individual who undertook to deliver process to the addressee and failed to do so could be fined up to 500 Bulgarian levs (Article 162 § 2).
16. A statutory time-limit could be extended, after its expiry, if it had been missed for a valid reason (Article 166 § 1 of the CCP 1974). The court had to examine the matter at a public hearing in the presence of the parties (Article 166 § 6).


ITEMID: 001-114163
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: LESOOCHRANÁRSKE ZOSKUPENIE VLK v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicant association was established under Slovak law in 1993 and is registered in Tulčík.
2. The applicant association was represented before the Court by Ms I. Rajtáková, a lawyer practising in Košice.
3. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is an association under the Associations of Citizens Act (Law no. 83/1990 Coll., as amended). It has its own legal personality, distinct from that of its members.
5. The preamble to its constitution states that the applicant association regards a forest as a living being that commands adequate respect (clause 2), that the applicant association was established in order to save the natural forests of the planet, and that that salvation constitutes an essential duty of the current generation to future generations (clause 4).
6. Pursuant to Article 2 § 5 of its constitution, the applicant association’s mission is to put into practice the ideas mentioned above, inter alia, by:
- direct action aimed at preventing the destruction of natural forests in particular;
- representation of the legally recognised interests of its members in proceedings that touch upon the mission of the applicant association;
- entering into decision-making processes that have an impact on forest economy activities, above all the creation of forest economy planning;
- assistance in the preparation of documentation to determine the long-term goals and tasks of the forest economy and thereby contribute to enhancing the role of forests; and
- detection of, and adequate reaction to, incidents involving a threat to health, property, nature and the environment.
7. The applicant association considers its to fall under the category of “public” and “concerned public”, that is to say public affected or likely to be affected by, or with an interest in, environmental decision-making, within the meaning of Article 2 §§ 4 and 5 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”) (see “Relevant international material” below).
8. The High Tatra is a mountain range on the border between Slovakia and Poland. It is part of the Eastern Tatra Mountains, which, together with the Western Tatra Mountains, form the Tatra National Park (“the TANAP”).
9. The TANAP and its territory are protected under the Nature and Landscape Protection Act (Law no. 543/2002 Coll., as amended) (“the NLP Act”) and Government Directive no. 58/2003 Coll., which established the TANAP.
10. The forest, land and resources located in the TANAP are administered by Štátne lesy TANAP-u (“ŠL TANAP”), a body established by the Ministry of Agriculture and linked to the national budget (príspevková organizácia).
11. On 19 November 2004 high winds in the area comprising the High Tatra caused substantial damage to the forest, inter alia in the areas comprising the National Natural Reserves of the Kôprová and Tichá valleys.
12. Various administrative proceedings were held, mainly under the NLP Act and the Forests Act (Law no. 326/2005 Coll., as amended), in order to address the consequences of the disaster.
13. The applicant association made a number of requests to various authorities responsible for environmental protection that it be informed of any proceedings pending before such authorities concerning the protection of the environment. These included a request in reliance on the NLP Act, made on 28 January 2003 to the Ministry of the Environment; a request in reliance on the NLP Act, made on or around 27 April 2005 to the Poprad County Office of the Environment (Obvodný úrad životného prostredia); and a request in reliance on the Forests Act, made on 16 July 2007 to the Poprad County Forestry Office (Obvodný lesný úrad).
14. As a result of the above-mentioned requests, the applicant association participated in some proceedings and sought to participate in others. Its participation was in the procedural capacity of a party (účastník konania) to or a participant (zúčastnená osoba) in the proceedings, within the meaning of Articles 14 and 15a of the Administrative Procedure Code (Law no. 71/1967 Coll., as amended) (“the APC”). As a general rule, unlike a party to proceedings, a participant has no right of appeal.
15. Further details concerning the applicant association’s participation in the proceedings ensuing the natural disaster and the procedural status of parties and participants are set out below.
16. On 30 November 2004 the Tatranská Lominica branch of the ŠL TANAP applied for a general derogation from the protective conditions applicable to the environment in the High Tatra, with a view to addressing the effects of the disaster. In so doing they also sought to obtain approval under section 16(1)(b) of the NLP Act (as applicable at that time) to interfere with forest coppice and to damage vegetation and soil cover in the areas affected by the disaster for the same purpose.
17. Under section 82(3) of the NLP Act, as applicable at that time, the applicant association had the status of a party to those proceedings. Following an amendment to the applicable regulations (see paragraph 35 below), the procedural status of environmental associations such as the applicant association was reduced to that of a participant.
18. On 26 April 2005 the Prešov Regional Office of the Environment (Krajský úrad životného prostredia) ruled that the application of ŠL TANAP was subject to an environmental impact assessment (EIA) under the EIA Act (Law no. 127/1994 Coll., as amended, which was replaced with effect from 1 February 2006 by Law no. 24/2006 Coll.) and that the proceedings be stayed until ŠL TANAP had submitted such an assessment.
19. On 31 May 2006 the Prešov Regional Office of the Environment ruled that unless ŠL TANAP submitted the final EIA by 20 June 2006, the proceedings would be discontinued.
20. On 21 September 2006 the Prešov Regional Office of the Environment discontinued the proceedings because ŠL TANAP had failed to submit the final EIA. The decision was upheld on 18 May 2007 by the Ministry of the Environment following an appeal by ŠL TANAP.
21. On 20 November 2006 the Tatranská Lomnica branch of ŠL TANAP requested that the forestry authority concerned declare a state of emergency and take measures to reduce the risk of an outbreak of bark beetle in the forests of the Kôprová and Tichá valleys.
22. Had the applicant association been invited to take part in the proceedings, it would have enjoyed the procedural status of a participant under section 67(4) of the Forests Act (Law no. 326/2005 Coll., as amended).
23. On 5 April 2007 the County Forestry Office ordered ŠL TANAP to carry out preventive measures under section 28(1)(i) of the Forests Act with a view to reducing the risk of the spread of bark beetle in the forest of Podbanské, in particular by cutting down infected trees in the wooded area affected by the disaster.
24. The applicant association was not involved in the proceedings. The decision became final on 10 April 2007.
25. On 11 June 2007 the applicant association challenged the decision of 5 April 2007 by way of a complaint under Article 127 of the Constitution to the Constitutional Court (Ústavný súd).
26. The applicant association argued that the impugned decision should have been preceded by a derogation from, or approval of, non-compliance with environment protection measures under the NLP Act. If that had happened, the applicant association would have had the status of a party to the proceedings under that Act. However, the decision of 5 April 2007 was taken without prior derogation or approval, and thus without the applicant association’s involvement. This was contrary to the applicant association’s right of access to court and justice, and to its constitutional right to a good environment.
27. On 1 April 2008 the Constitutional Court declared the complaint inadmissible. It found that the Forests Act accorded the applicant association the procedural status of a participant in, and not a party to, the proceedings in question.
That being recognised, the Constitutional Court observed that the applicant association had had the opportunity to seek recognition of its position as a participant under the terms of section 67(4), (5) and (6) of the Forests Act. However, it had failed to seize that opportunity as it had requested that it be informed of proceedings under the Forests Act only on 16 July 2007 (see paragraph 13 above), that is to say after the end of the proceedings (see paragraph 24 above).
28. Furthermore, the Constitutional Court noted that the applicant association had been directly concerned with the subject matter of the proceedings but had failed to assert a claim to that effect. If it had done so, it would have had the status of a party to the proceedings, which would have allowed it to challenge the impugned decision by lodging an administrative appeal and, as appropriate, seeking judicial review.
29. Finally, the Constitutional Court held that the right to a good environment applied only to individuals and not to legal entities such as the applicant association, which therefore could not assert that right.
The decision was served on the applicant association on 22 April 2008.
30. The object of the NLP Act is to determine the jurisdiction of the administrative and municipal bodies as well as the rights and duties of legal entities and individuals in protecting nature and landscape, with a view to contributing to the preservation of the diversity of conditions and forms of life on the Earth. It is also the object of the Act to provide conditions for the sustaining, renewal and rational use of natural resources, protection of natural heritage, maintaining the character of landscape, and achieving and sustaining ecological stability (section 1).
31. Unless provided otherwise, proceedings under the Act are subject to the APC (section 81(1)) (see below).
32. Under section 82(3), as applicable until 30 November 2007, associations of citizens whose objective for the previous year had been environmental protection had the status of parties to proceedings under the Act, provided that they announced their participation within seven days of being informed of the proceedings.
33. A group of Members of Parliament submitted a bill that was enacted with effect from 1 December 2007 (Law no. 454/2007 Coll.) amending the NLP Act, inter alia, so that associations of citizens referred to under section 82(3) of the Act would have the status only of participants in proceedings.
34. Under section 82(6) and (7), an association referred to in section 82(3) can request that the authority concerned inform it of any administrative proceedings before that authority with potential implications for the protection of nature and the environment under the Act. The authority is then duty bound to inform the association of any such proceedings within seven days of their commencement or, as the case may be, of the request.
35. On 21 October 2011 the National Council of the Slovak Republic amended the environment legislation, including the NLP Act. The amendment entered into force on 1 December 2011as Law no. 408/2011 Coll. Among other changes, environmental associations were again accorded the status of party to the proceedings (amended section 82(3), (6) and (7)).
It was acknowledged that the purpose of this change was, inter alia, to ensure that such associations had access to remedies under Article 9 § 3 of the Aarhus Convention and that, until that time, the applicable rules of procedure had lacked provisions for such access. It was also observed that, following the judgment of the Court of Justice of the European Union of 8 March 2011 in case no. C-240/09 (see below), the jurisprudence of the Supreme Court had settled so as to interpret the applicable procedural rules in conformity with the European rules (see judgment of the Supreme Court in case no. 3Sžp5/41/2009) and to accord the associations in question the procedural status of parties (see report on the bill by the Agriculture and Environment Committee of the National Council and Joint Report of that Committee, together with the Committees of the National Council for Constitutional Affairs, Economy, Construction and Transport).
36. The Forests Act defines forest land and its protection, determines the ownership of forest land and the use of forests, and governs professional management of forests, support for a sustainable forest economy, jurisdiction of the State administrative agencies and State supervision of forestry, and sets out sanctions for breaches of the Act (section 1(1)).
37. The purpose of the Act is to preserve, develop and protect forests, to create the economic conditions for a diverse, professional and sustainable forest economy, and to ensure that the interests of society and those of forest owners are in harmony (section 1(2)).
38. Unless provided for otherwise, proceedings under the Act are subject to the APC (section 67(1)) (see below).
39. Associations whose aim is linked to the use and protection of forest property are not parties to the proceedings. Nevertheless, they can act as participants in the proceedings provided that they announce their participation within seven days of being informed of the relevant proceedings (section 67(4)).
40. Under section 67(5) and (6), an association referred to in section 67(4) can request that the authority concerned inform it of any administrative proceedings before that authority with potential implications for its interests, and the authority is duty bound to inform the association of any such proceedings within seven days of their commencement or, as the case may be, of the request.
41. A party to proceedings is a person whose rights and legally protected interests or duties are to be the subject matter of the proceedings or whose rights, legally protected interests or duties can be directly affected by the decision. A person who claims that his or her rights, legally protected interests or duties would be affected by the decision may also be a party to the proceedings, unless and until the opposite is established (Article 14(1)).
42. On 1 January 2004 an amendment (Law no. 527/2003 Coll.) to the Administrative Procedure Code entered into force which, inter alia, introduced the procedural category of participant in the proceedings. Under Article 15a of the amended Code, a lex specialis can stipulate the conditions in which someone other than a party to the proceedings has the right to take part in the proceedings in full or in part. That person is called a participant. Unless a lex specialis accords a participant further rights, his or her position is limited to the right to be notified when proceedings commence and of other submissions by the parties, the right to take part in an oral hearing and in an in situ inspection, and the right to adduce evidence and to add to the material underlying the decision.
43. The explanatory report (dôvodová správa) on the amendment submitted with the bill suggested that the creation of the procedural category of participant in administrative proceedings had been in response to the existing practice whereby, in particular in the area of environmental protection, associations of citizens and associations of legal entities took part in proceedings. Due to the lack of an appropriate procedural framework, for practical reasons such associations had been given the status of parties to the proceedings. However, that was contrary to the rules concerning parties, because the rights and duties of such associations had not been decided upon in the proceedings. Participation in the proceedings of persons other than the parties was advisable and would be significantly more frequent, especially in proceedings that involved public or group interests, for example in the construction of major industrial enterprises, the use of genetic technologies and the licensing of public works.
44. Chapter (Časť) 5 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended) governs the administrative judiciary. In accordance with its provisions, administrative tribunals review the lawfulness of decisions taken by public administrative authorities on the basis of administrative-law actions under Section (Hlava) 2 of that Chapter and administrative-law appeals under Section 3 of that Chapter.
45. Judicial review of administrative decisions and procedures by way of administrative-law actions under Section 2 of Chapter 5 requires that the matter be resolved by a decision that has become final and binding (právoplatnosť), after all ordinary remedies have been exhausted (Article 247 § 2).
46. The parties to proceedings on administrative-law actions are the claimant and the defendant (Article 250 § 1), the former being the individual or the legal entity who alleges that, as a party to the relevant administrative proceedings, his, her or its rights have been restricted by the decision and conduct of an administrative authority. The claimant may, however, also file an administrative-law action on the grounds that he, she or it had not been treated as a party to the administrative proceedings in question when although he, she or it should have been (Article 250 § 2).
47. Details concerning the Aarhus Convention are set out below. The Parliament of the Slovak Republic agreed to accede to the Aarhus Convention on 23 September 2005 and declared that, under Article 7 § 5 of the Constitution, the Convention has priority over the Constitution.
48. The Aarhus Convention was published in the Collection of Laws under no. 43/2006 and entered into force in respect of Slovakia on 5 March 2006.
49. In an unrelated set of proceedings, relying on the Aarhus Convention, the applicant association of the present case sought recognition of its standing as a party to proceedings concerning the request of a hunting association for derogation from certain provisions of the NLP Act. The applicant association was unsuccessful before two administrative and one judicial level of jurisdiction.
50. The applicant association lodged an appeal with the Supreme Court. In dealing with that appeal, on 22 June 2009 the Supreme Court asked the Court of Justice of the European Union for a preliminary ruling on the following questions:
“1. Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, given that the principal objective pursued by that international treaty is to change the classic definition of locus standi by according the status of a party to proceedings to the public, or the public concerned, as having the direct effect of an international treaty (‘self-executing effect’) in a situation where the European Union acceded to that international treaty on 17 February 2005 but to date has not adopted Community legislation in order to transpose the treaty concerned into Community law?
2. Is it possible to recognise Article 9 and in particular Article 9(3) of the Aarhus Convention, which has become a part of Community law, as having the direct applicability or direct effect of Community law within the meaning of the settled case law of the Court of Justice?
3. If the answer to the first of the second question is in the affirmative, is it then possible to interpret Article 9(3) of the Aarhus Convention, given the principal objective pursued by that international treaty, as meaning that it is necessary also to include within the concept ‘act of a public authority’ an act consisting in the delivery of decisions, that is to say, that the right of public access to judicial hearings intrinsically also includes the right to challenge the decision of an administrative body, the unlawfulness of which lies in its effect on the environment?
51. The request was registered under file no. C-240/09.
52. On 15 July 2010 Advocate General Sharpston delivered an opinion with the following conclusions:
“...
101. I therefore suggest that, in answer to the questions referred by the [Supreme Court], the Court should rule as follows:
(1) The questions referred are inadmissible except in so far as they relate to Article 9(3) of the Aarhus Convention.
(2) It is for the national courts to determine whether Article 9(3) of the Aarhus Convention has direct effect within their own legal order in circumstances in which the European Union acceded to that international treaty on 17 February 2005 but to date has not adopted legislation in order to incorporate that specific provision of the treaty concerned into European Union law in respect of the obligations that it imposes on the Member States.
(3) Article 9(3) of the Aarhus Convention should be interpreted as including within the concept of ‘act of a public authority’ an act consisting of the delivery of a decision. The right of public access to judicial review, within the constraints permitted by Article 9(3), includes the right to challenge a decision of an administrative body which is alleged to contravene provisions of the Member State’s national law relating to the environment.
If the Court should take the view that it has jurisdiction to rule on the direct effect of Article 9(3) of the Aarhus Convention:
(4) Article 9(3) of the Aarhus Convention does not have direct effect as a matter of EU law.”
53. On 8 March 2011 the Grand Chamber of the Court of Justice of the European Union delivered a judgment.
It held that
“Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 does not have direct effect in European Union law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by European Union law, in order to enable an environmental protection organisation, such as the Lesoochranárske zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to European Union environmental law.
54. On 7 July 2011, following the judgment of the Court of Justice of the European Union of 8 March 2011 (see the preceding paragraph), the Supreme Court quashed the challenged administrative decisions and held that, on the basis of that judgment, and with a view to ensuring effective protection of the environment, the applicant association had the right of action against administrative decisions, which may be contrary to European Union law, and that, consequently, it was to be accorded the procedural status of a party (file no. 3 Sžp/41/2009). This position has since become generally accepted.
55. The United Nations Economic Commission for Europe “Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters” (the Aarhus Convention) was adopted on 25 June 1998 and entered into force on 30 October 2001.
In its Preamble, the Parties to the Convention, inter alia:
- recognise that
“every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations”
- consider that
“to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledge[s] in this regard that citizens may need assistance in order to exercise their rights,
- recognise that
“in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns,
- and also recognise
“the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings”.
56. Article 1 of the Aarhus Convention defines its objective and provides as follows:
“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”
57. Pursuant to Article 2 §§ 4 and 5, which contain definitions, “public” means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups, while “concerned public” means the public affected or likely to be affected by, or having an interest in, environmental decision-making. For the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law are deemed to have an interest.
58. Article 6, which deals with public participation in decisions on specific activities, provides as follows:
“1. Each Party:
(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;
(b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions;
...
2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:
(a) The proposed activity and the application on which a decision will be taken;
(b) The nature of possible decisions or the draft decision;
...
(d) The envisaged procedure, including, as and when this information can be provided:
(i) The commencement of the procedure;
(ii) The opportunities for the public to participate;
3. The public participation procedures shall include reasonable time frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making.
4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.”
59. Article 9 concerns access to justice and provides, inter alia, that:
“3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”
60. Article 15 of the Aarhus Convention on review of compliance requires a meeting of the Parties to establish arrangements for reviewing compliance with the Convention. A Compliance Committee has been created for that purpose.
61. On 17 December 2010 the Compliance Committee adopted findings and recommendations upon completion of proceedings triggered by a non-governmental organisation that alleged that Slovakia had failed to comply with its obligations under Article 6 of the Aarhus Convention in connection with the construction of two units of a nuclear power plant.
62. One of the disputed issues was whether a 2008 construction permit was, in fact and substance, a new construction permit or rather, as treated for the purposes of the administrative proceedings at domestic level, an update of a previous construction permit of 1986.
63. In paragraph 55 of its report, the Committee stressed that
“although each Party is given some discretion in [these cases] to determine where public participation is appropriate, the clause “mutatis mutandis, and where appropriate” [used in Article 6 § 10 of the Convention in relation to the use of the Convention in respect of reconsideration and update of existing operating conditions] does not imply complete discretion for the Party concerned to determine whether or not it was appropriate to provide for public participation”.
64. The Committee rather considered, in paragraph 56 of its report, that:
“the clause ‘where appropriate’ introduces an objective criterion to be seen in the context of the goals of the Convention, recognizing that ‘access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns’ and aiming to ‘further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment’. Thus, the clause does not preclude a review by the Committee on whether the above objective criteria were met and whether the Party concerned should have therefore provided for public participation in the present case.”
65. The Committee found, at paragraph 57, that:
“when the authority reconsidered or updated the operating conditions for an activity of such a nature and magnitude, and being the subject of such serious public concern, as this nuclear power plant, with the changes and increased potential impact on the environment as presented to the Committee, public participation would have been appropriate. This conclusion is not countered by the fact that most, if not all, changes in the 2008 construction permit lead to stricter requirements than those set in the 1986 permit. Thus, by failing to provide for public participation according to article 6, paragraphs 2 to 9, the Party concerned failed to comply with article 6, paragraph 10 of the Convention.”
66. However, dealing with a general question of the compatibility of the relevant Slovak laws with the Convention, the Committee was unable to
“conclude that Slovak law on public participation and EIA in general also fails to comply with article 6 of the Convention.”