ITEMID: 001-66924
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF VATAN v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection allowed (lack of victim status);Inadmissible
JUDGES: Georg Ress
TEXT: 8. On 29 April 1994 Vatan was registered as a political party with the Ministry of Justice of the Russian Federation.
9. According to Vatan’s constitutional charter, it was founded “to support the renascence of the Tartar nation, to enhance the latter’s political activity and to protect Tartars’ political, socio-economic and cultural rights”. The name “Tartar” applies to the peoples of Turkic origin who speak a language which belongs to the Ural-Altaic language family. Four-fifths of the Tartars (about 5.5 million people) live in the Russian Federation: the majority live in the Republic of Tatarstan and the Republic of Bashkortostan, and the rest are dispersed across the Ural Mountains and in the Volga region. The Tartars are Muslims.
10. On 12 August 1994 the Simbirsk (Ulyanovsk) Regional Organisation of the People’s Democratic Party Vatan (“the Regional Organisation”) was registered with the Ulyanovsk Regional Department of Justice. Vatan claims that this was a branch of its party.
11. On 12 October 1997 the Regional Organisation made an appeal (“the appeal”) to the “peoples of the Volga region, to all oppressed peoples of the empire, to the Ulyanovsk Regional and City authorities, to historians, students of local lore, archaeologists and scientists”, entitled “Prevention and cancellation of the forthcoming witches’ Sabbath arranged by reactionary forces – ‘the war party’- the so-called ‘350th anniversary of the founding of the town of Simbirsk’ which is in fact an approximate date of the colonisation of Shekhry Sember”.
12. The appeal contained, inter alia, the following statements:
“To the indigenous population of the Volga Region: tartars, chuvash, erzya, moksha, mari, bashkir.
1. Never allow desecration or mockery of the memory of your ancestors; do not allow the reactionary Nazi forces to celebrate the date of colonisation of Sember. Shekhry Sember is a thousand-year-old town of your glorious ancestors. In the town centre, on Simbirskaya Hill and in the outskirts lie their graves – do not allow them to be defiled. Be prepared for the anniversary of the colonisation of Shekhry Sember. On the ancestors’ Memorial Day, 31 May 1998 at 9 a.m., all come out to our sacred Sember Hill – to the ancestors’ graves – between the Memorial and Lenin square. A trip to the ancestors’ graves and the ruins of the Shekhry Kalman will also be on offer and everyone who wishes will have an opportunity to turn to Islam. Let us stand up for the honour and dignity of our peoples. Let us celebrate the 1350th Anniversary of Shekhry Sember in a dignified manner, inshallah. Strive for decolonisation of the peoples who are prisoners of Moscow-Shaitan Kala, the Russian empire.
2. Who knows how much loss, humiliation, suffering, deprivation and sacrifice our peoples have endured: racial discrimination, employment discrimination, the ban on education in our native language, forced service in the occupiers’ army?
3. Strive for legitimisation of indigenous languages. Strive for the holding of fair municipal elections on the basis of national communities. Strive for education for every child in the national language from primary level to higher education. Strive for satellite channels broadcasting from Kazan, Ufa, Cheboksary, Saransk, Yoshkar-Ola, Tashkent, Bishkek, Alma-Aty, Ankara, Istanbul, Teheran, Riyadh and Mecca.
4. Indigenous peoples idel-uras-seber-krym iort, and in particular semberile and even American Indians – you are the heirs of the great Islamic culture. Come back to Islam. There will be more than a thousand million of us.
To the Ulyanovsk Regional administration, to Mr Goryachev and Mr Marusin personally, to historians, students of local lore, archaeologists and scientists of the region:
1. Mr Goryachev, Mr Marusin and their subordinates,
Do not fall under the influence of pseudo-historians, the “war party” from Moscow, the local liberal democratic party, pseudo-scientists and Nazis. Stop the witches’ Sabbath in celebration of the 350th anniversary of the colonisation of Simbirsk. Even the colonisation date is intentionally confusing. The real colonisation date is the end of May 1666 - 1999 is a good round figure of colonisation, i.e. 333 years. Do not stir up the Russian population against the indigenous peoples of the Volga Region – you will not succeed. God be with us, inshallah.
2. Mr Goryachev, Mr Marusin and local governors,
Stop wasting our regional budget on the creation of monuments to an apostate and traitor of his peoples, the converted Christian Tartar Bogdan Khitrovo ..., in accordance with the directions of the “war party” in Moscow. The money saved on the witches’ Sabbath should be invested in founding a Volga peoples’ University and introducing TV broadcasting in the local languages. Bring back education in the national language for every child.
3. On the sacred Sember Hill between the Memorial and Lenin Square, on the burial place of our sacred ancestors, restore the remembrance tombstone destroyed by your administration ... Restore or allow to be restored the main temple Shekhry Sember on Sember Hill.
4. Mr Goryachev, have the courage to apologise on behalf of all your predecessors to the peoples of the Region for the centuries of humiliation, suffering, deprivation and sacrifices, since you are their successor. Someone must put an end to it.
5. ... There is no point in hiding, and it is common knowledge that there are only 10 million Russians, with the remaining 130 million being Russian speakers who do not remember their ancestors and historical-ethnic origin. Deprivation of historical and ethnic roots, of memory and the motherland is the sad result of the violence imposed in order to create a mono-ethnic and monolingual empire.
We, the peoples of the Volga region, were, are, and always will be, inshallah.
Given his 30 years of experience in the national liberation movement, his courage, his knowledge of the region and his understanding of people, the Ulyanovsk Regional Branch of Vatan empowers Iskhan Nailbek Mikey to be at the head of the national liberation fight and to form a brigade of trustworthy, courageous, consecrated and resistant people.
Let us shorten the arms of the “war party” in Moscow! Free the empire’s peoples! Decolonise Russia! Bring Islamic education in the national language to all children! These are the common slogans of all peoples - prisoners of Moscow.”
13. On 19 May 1998 the Regional Organisation asked the mayor of Ulyanovsk to authorise a ceremony dedicated to the 1350th anniversary of the founding of Sember. On 22 May 1998 the mayor gave permission for the ceremony to be held in places of worship belonging to religious organisations and in cemeteries.
14. On 31 May 1998 the Regional Organisation held a memorial ceremony in the city centre, where, according to Vatan, an ancient Muslim cemetery was formerly located.
15. On 3 June 1998 the prosecutor of the Ulyanovsk Region applied to the Ulyanovsk Regional Court to have the Regional Organisation’s activities suspended on the ground that it had called for violence, contrary to the federal legislation and the Constitution.
16. On 13 July 1998 the Ulyanovsk Regional Court examined the prosecutor’s claim.
17. Firstly, the court considered various statements made by the Regional Organisation in the light of their conformity with the Constitution, in particular, the appeal of 12 October 1997 and noted that the Regional Organisation:
- referred to the State institutions responsible for the public celebration of the 350th anniversary of Simbirsk as “Nazis”;
- called for “decolonisation of the peoples who are prisoners of Moscow–Shaitan Kala, the Russian empire”;
- referred to the Russian Federation as “the enemy of humankind”;
- referred to Russian citizens as “Russian speakers who do not remember their ancestors and historical-ethnic origin”;
- urged the authorities “to stop the witches’ Sabbath in celebration of the 350th anniversary of the colonisation of Simbirsk” and “to stop wasting [the] regional budget”;
- empowered the Regional Organisation’s secretary, Mr Mikeyev, “to be at the head of the national liberation fight and to form a brigade of trustworthy, courageous, consecrated and resistant people”.
18. The court also found that the Regional Organisation had called for recognition of the independence of the Republic of Chechnya and for a return by the peoples of the Volga region to Islam (conference minutes of 26 May 1996), and that it had called on the Sember peoples to join the Tartar Muslims in their national liberation fight (minutes of the Regional Organisation General Meeting of 12 October 1997). A reference was also made to the Annual Report of the Regional Organisation’s activities, where the court found calls to “decolonise Russia”, to form military forces “on the basis of religious confessions” and to “abolish the neo-imperialistic emblem depicting crosses and passports which gave no indication of ethnic origin”.
19. The court held that all of the above statements were incompatible with the Constitution. The court stated, inter alia, the following:
“...the Ulyanovsk Regional Organisation of the People’s Democratic Party Vatan openly calls for violation of the integrity of Russia, for violent alteration of the foundations of constitutional governance and for the creation of an Islamic State in the Volga Region. The Regional Organisation proclaims the idea of a national liberation fight and calls for the formation of a brigade of trustworthy, courageous and resistant people. The activities and opinions of the Regional Organisation’s leaders and members are of an extreme nationalist nature, inciting people to national and religious discord and denigrating the Russian speaking population and non-adherents of Islam.”
20. Secondly, the court found that the memorial ceremony of 31 May 1998 held by the Regional Organisation in the centre of Ulyanovsk was in breach of the mayor’s permit.
21. The court concluded that the activities of the Regional Organisation did not correspond to the purposes declared in its Charter and violated Section 16 of the Federal Law on Public Associations, which prohibits the establishment and activities of public associations whose aims and actions are directed at the violent alteration of the foundations of constitutional governance, violation of the integrity of the Russian Federation and the undermining of state security, the forming of armed units and incitement to social, racial, national and religious strife. The court allowed the prosecutor’s appeal and suspended the Regional Organisation’s activities for 6 months.
22. Ipso jure, the Regional Organisation was prohibited from holding meetings, demonstrations and other public actions, taking part in elections and disposing of its bank accounts other than for the payment of expenses incurred in the course of normal activities, payment of labour contracts, damages and fines.
23. The Regional Organisation challenged the judgment of 13 July 1998 before the Supreme Court of Russia, contending that the Ulyanovsk Regional Court had misinterpreted the meaning of the appeal, which reflected the Tartars’ history and that there had been no incitement to national or religious strife or anything which might insult the dignity of Russians. The Regional Organisation insisted that the ceremony of 31 May 1998 had been held at the site of the ancient Muslim cemetery.
24. On 3 September 1998 the Supreme Court upheld the first instance judgment. An application for supervisory review was dismissed by the same court on 13 October 1998.
25. On 12 January 2000 the Ulyanovsk Regional Court allowed a claim by the Department of Justice of the Ulyanovsk Regional Administration to dissolve the Regional Organisation on account of its failure to bring its Charter in compliance with new legislation. This decision has not been appealed against.
26. The relevant provisions of Vatan’s constitutional charter read as follows:
“The Charter of the People’s Democratic Party Vatan ...
1.1 The People’s Democratic Party Vatan is a political party ...
1.2 Vatan carries out its activities on the territory of the Russian Federation, where regional organisations are created (Omsk, Ulyanovsk, Nizhniy Novgorod Regions, Moscow, the Republics of Bashkortostan and Mordovia and the Chuvash Republic) ...
1.5 The seat of Vatan’s headquarters, the Central Co-ordination Board, is in Moscow.
...
3.4 All party organisations shall be autonomous in taking decisions concerning local matters in so far as these do not conflict with the party’s Charter or its Programme.
...
4.1 Vatan has been set up for the protection of citizens of Tartar origin, citizens of other origin and of their political, economic, social and cultural rights and freedoms, in order to promote their active participation in the governing of the state and social affairs.
4.2 To achieve its goals Vatan shall pursue the following objectives:
- participating as prescribed by law in the state legislative and executive bodies, by nominating its candidates to express the political will of its members;
- promoting the creation of ethnic districts, circuits and country councils in those places where Tartars are concentrated within the Russian Federation;
- carrying out organisational activities, campaigns, propaganda and other information activities for educational and pedagogical purposes, promoting the return of the Arabic script;
- organising lectures, seminars, talks, round-table discussions, mass and collective actions and other events, in accordance with the law and the party’s goals and objectives; ...
- representing its members’ interests before state bodies and public institutions; ...
5.1 The party shall be organised on a territorial basis. The primary party units, namely the district, town, circuit and regional organisations, shall form the party’s base.
5.2 Regional organisations shall be set in accordance with the administrative and territorial division of the Russian Federation and shall draw up their action programmes in accordance with local circumstances and shall elect delegates to the party’s Congress (Kurultay); in accordance with the law, they shall participate in local government structures. The regional organisations shall establish themselves as legal persons in accordance with the procedure prescribed by law. Where this is done, they shall adopt their own Charter, which may not be contrary to the party’s Charter and its Programme, and shall register it in accordance with the law.
...
6.7 The party’s President shall be in charge of the party’s general management between the meetings of the party’s Congress ... he shall speak on the party’s behalf ... and represent the party without power of attorney in any state bodies and public institutions ...”
27. The relevant provisions of the Regional Organisation’s constitutional charter read as follows:
“Charter of the Simbirsk (Ulyanovsk) Regional Organisation of the People’s Democratic Party Vatan ...
1.1 The Simbirsk Regional Organisation of the People’s Democratic Party Vatan is a party political organisation ...
2.5 Membership of the party may be terminated by the Simbirsk Regional Committee... for non-compliance with the party’s Charter and its Programme; this decision is subject to appeal to the party’s higher organs, including the Central Co-ordination Board.
...
4.1 The Simbirsk Regional Organisation of the People’s Democratic Party Vatan has been set up for the protection of citizens of Tartar origin, citizens of other origin and their political, economic, social and cultural rights and freedoms, in order to promote their active participation in the governing of the state and social affairs.
4.2 To achieve its goals the Simbirsk Regional Organisation of the People’s Democratic Party Vatan sets the following objectives:
- participating as prescribed by law in the structures of state legislative and executive bodies, by nominating its candidates to express the political will of its members;
- promoting the creation of ethnic districts, circuits and country councils in those places where Tartars are concentrated within the Russian Federation;
- carrying out organisational activities, campaigns, propaganda and other information activities for educational and pedagogical purposes, promoting the return of the Arabic script;
- organising lectures, seminars, talks, round-table discussions, mass and collective actions and other events, in accordance with the law and the party’s goals and objectives;
- representing its members’ interests before state bodies and public institutions.
...
6.6 During the intervals between the [Regional Organisation’s] conferences the Regional Committee of the People’s Democratic Party Vatan shall be in charge of the [Regional Organisation’s] activities.”
28. The relevant provisions of the Constitution read as follows:
“The creation and activity of public associations shall be prohibited if their aims and actions seek to alter the foundations of the constitutional system by violence, to breach the integrity of the Russian Federation, to undermine the security of the state, to create paramilitary units, or to rouse social, racial, national and religious strife.”
“Every person shall be guaranteed the right to freedom of conscience, freedom of religion, including the right to profess, either alone or in community with others, any or no religion, to freely choose, have and disseminate religious or other convictions and to act according to them.”
“Every person shall have the right to freedom of thought and speech.”
“Propaganda and campaigning to instigate social, racial, national or religious hatred and strife shall not be allowed. The propaganda of social, racial, national, religious or language exclusiveness shall be banned.”
“Every person shall have the right to freedom of association, including the right to establish trade unions to protect his interests. Free activity of public associations shall be guaranteed.”
“Citizens of the Russian Federation shall have the right to meet peacefully, without arms, and to organise discussions, meetings and demonstrations, as well as processions and pickets.”
29. At the material time, the relevant provisions of the Federal Law on Public Associations read as follows:
“The creation and activity of public associations shall be prohibited if their aims and actions seek to alter the foundations of the constitutional system by violence, to breach the integrity of the Russian Federation, to undermine the security of the state, to create paramilitary units, or to rouse social, racial, national and religious strife.”
“An association’s activity may be suspended by a court decision where infringement of the Constitution of the Russian Federation, the constitutions (statutes) of the constituent entities of the Russian Federation, or the laws of the Russian Federation is found.”
“A court’s decision to suspend the activities of a public association for a certain period shall entail the suspension of its right of assembly, its right to hold meetings, rallies, demonstrations and (or) other public actions, to participate in elections and to access funds on its bank accounts other than for payment of expenses incurred in the course of normal activities, payment of labour contracts, damages and fines ...”
30. Article 48 of the Civil Code of 30 November 1994 provides that a legal person is autonomous in exercising its rights and carrying out its obligations, and that it has standing as a party to proceedings before a court.


ITEMID: 001-79628
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: GOBEL v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Alexander Göbel, is a German national who was born in 1970 and has been placed in a psychiatric clinic (Schloß Werdeck) in Straubing.
The applicant has been convicted eleven times in the period between 1985 and 1994, inter alia of fraud in thirty-eight cases (judgment of the Bad Kissingen District Court of 12 February 1991) and in sixty cases (judgment of the Stuttgart Regional Court of 7 July 1994). On the latter occasion, he had been sentenced to two years’ imprisonment.
On 13 March 2001, the Schweinfurt Regional Court convicted the applicant of fraud in nineteen cases and sentenced him to four years’ imprisonment. The Schweinfurt Regional Court stressed that the damage which the applicant had caused with his offences amounted to around 80.000 DEM. After having considered an expert opinion by a psychiatrist, the Schweinfurt Regional Court ordered the applicant’s placement in a psychiatric hospital because of his diminished culpability (eingeschränkte Schuldfähigkeit). According to the expert opinion, the applicant suffered from a severe personality disorder in combination with diminished intelligence. The numerous cases of fraud committed by the applicant were a direct consequence of that personality disorder. The disorder had also been noted in other examinations of the applicant in connection with previous criminal proceedings. The expert opinion stressed that the applicant had built his own dreamworld in which he saw himself as a very wealthy and smart businessman and which was carefully protected from outside social contacts. Because of his diminished intellectual capacity, the applicant lacked the capacity to estimate the consequences of his behaviour. The expert opinion concluded that there was a high danger of recidivism. The Schweinfurt Regional Court agreed with this conclusion, given that the lengthy period of imprisonment had not deterred the applicant from committing the above frauds. On 20 November 2002, the Schweinfurt Regional Court ordered the continuation of the placement.
I. The decisions during the period 2003-2004
On 20 November 2003, the Schweinfurt Regional Court again ordered the continuation of the applicant’s placement in the hospital and scheduled the next review date for 19 November 2004. The court found that it could not be expected that the applicant would not commit any further offences and concluded that the remainder of the sentence could not be suspended on probation. The Schweinfurt Regional Court heard the applicant in the presence of his therapist and obtained a statement by the treating doctors of the psychiatric clinic. That statement was explained and discussed during the court hearing. According to the statement, collaboration with the applicant was markedly difficult. There was no sign of understanding of his disorder or a motivation for improvement on the part of the applicant. On the other hand, the applicant sought to live out his need for recognition through numerous legal proceedings, denunciations of clinic staff and disciplinary complaints. For a period of six months, the therapist had tried to increase trust in order to enable the applicant to settle his disputes without recourse to legal means. As the applicant increasingly adopted realistic views, the treatment showed first signs of success. An essential change in the applicant’s personality could however not be noted. The Schweinfurt Regional Court, after having heard the applicant, agreed with the clinic’s statement and found that the applicant’s situation, in particular his need for recognition, had not changed. As the impression which the court obtained from hearing the applicant matched exactly the clinic’s statement, the court saw no need to order an expert opinion by an outside expert.
On 2 February 2004, the Bamberg Court of Appeal dismissed the applicant’s appeal against the decision of the Schweinfurt Regional Court of 20 November 2003. It found that it had not been necessary to obtain the opinion of an independent expert as the convincing expert opinion of the clinic doctors clearly indicated that a suspension could not be accounted for. The court agreed with the reasoning of the Schweinfurt Regional Court that a positive change in the applicant’s personality could not be observed. On the contrary, there existed the risk that the applicant, left at large, would commit further offences in the future which demanded the execution of the placement and continuing treatment. The Bamberg Court of Appeal noted that the applicant had announced the submission of an expert opinion (Privatgutachten) which had not been introduced in time.
On 5 October 2004, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It reasoned that the ordinary courts had sufficiently taken into account the applicant’s right to liberty. The courts had considered an expert opinion which at the time had not been older than three years together with a statement by the hospital. The latter document had not indicated that the applicant had responded to the treatment. Hence the courts had not been required to order a new expert opinion by an independent expert. It could not be objected to from a constitutional point of view that the courts had made a prognosis which was unfavourable to the applicant and that they did not consider the suspension of the applicant’s placement. On the contrary, the decisions were reasonable given the number of frauds committed by the applicant who had caused considerable damage and the lack of success in treating the applicant’s personality disorder which had abetted those offences.
The applicant was represented by legal counsel in the above proceedings.
II. Further developments regarding the applicant’s placement
According to the applicant, the continuation of his placement was ordered on an annual basis in the following years, each time allegedly without having considered the opinion of an independent expert.
Relevant provisions of the German Criminal Code (Strafgesetzbuch)
Measures of reform and prevention are:
1. placement in a psychiatric hospital; (...)
A measure of reform and prevention may not be ordered when it is disproportionate to the significance of the acts committed by, or expected to be committed by the perpetrator, as well as to the degree of danger he poses.
Section 63 Placement in a Psychiatric Hospital
If someone committed an unlawful act and at the time lacked capacity to be adjudged guilty (Section 20) or was in a state of diminished capacity (Section 21), the court shall order placement in a psychiatric hospital if a comprehensive evaluation of the perpetrator and his act reveals that, as a result of his condition serious unlawful acts can be expected of him and he therefore presents a danger to the general public.
(1) If placement in an institution pursuant to Sections 63 and 64 is ordered collaterally to imprisonment, then the measure shall be executed before the punishment.
(...)
(5) If the measure is executed before the punishment, then the court may suspend the execution of the remainder of punishment and grant probation under the provisions of Section 57 subsection (1), sent. 1, no. 2, if half of the punishment has been completed. If the remainder of punishment is not suspended, the execution of the measure shall continue; the court may nevertheless order the execution of the punishment if circumstances relating to the convicted person make it seem advisable.
(2) If no maximum term has been provided or the term has not yet expired, then the court shall suspend the further execution of the placement and grant probation if it can be expected that the person under placement will not commit any more unlawful acts if released from execution of the measure. Supervision of conduct shall commence with the suspension.
(1) The court may review at any time whether the further execution of the placement should be suspended and probation granted. It shall make this review before the expiration of specified terms.
(2) With respect to the various placements, these terms shall be: (...) one year, if in a psychiatric hospital;


ITEMID: 001-58175
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1998
DOCNAME: CASE OF McGINLEY AND EGAN v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 6-1;No violation of Art. 8;Not necessary to examine Art. 13
JUDGES: John Freeland;N. Valticos;R. Pekkanen
TEXT: 9. Between 1952 and 1967 the United Kingdom carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and at Maralinga, Australia, involving over 20,000 servicemen. Among these tests were the “Grapple Y” and “Grapple Z” series of six detonations at Christmas Island in the Pacific Ocean (November 1957–September 1958), of weapons many times more powerful than those discharged at Hiroshima and Nagasaki.
10. During the Christmas Island tests, service personnel were ordered to line up in the open and to face away from the explosions with their eyes closed and covered until twenty seconds after the blast.
The applicants alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes. The Government denied this and stated that it was believed at the time of the tests, and was the case, that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line-up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast.
11. No record exists of the degree of exposure to radiation, if any, of servicemen such as the applicants, since film badges (which turn black if exposed to radiation) were issued only to the approximately 1,000 predominantly non-service personnel on Christmas Island who were working in identified, controlled and active areas. According to the applicants (see paragraph 78 below), this decision was taken to avoid future liability for radiation-caused harm. According to the Government, however, experience of earlier nuclear test explosions in Maralinga, Australia, where film badges had been issued to all personnel, had shown that personnel with duties such as the applicants’ were not exposed to measurable levels of radiation.
12. Documents containing the original contemporaneous recordings of environmental radiation levels in the vicinity of Christmas Island following the tests were stored at the Atomic Weapons Research Establishment (“AWRE”) at Aldermaston, England. Although these documents were not available for inspection by members of the public, the Government claimed that since the information contained in them would not have given rise to security concerns, they could have been produced if required for the purposes of proceedings before the Pensions Appeal Tribunal (“PAT” – see paragraph 59 below).
13. In 1993 a summary of “all the surviving data” gathered by the environmental monitoring programme was published as Technical Note no. 16/93, “Environmental Monitoring at Christmas Island 19571958”. This, inter alia, described the environmental monitoring programme set up for the tests and included sample measurements of radiation in the air, sea water and deposited on the ground. The sources of the information upon which the technical note was based were also listed.
14. The Government annexed to their memorial to the Court in the present case a number of documents, not hitherto in the public domain, including a report by the AWRE of the measurements made of radioactive fall-out on various Pacific islands, including Christmas Island, during AprilMay 1958 (Grapple Y) and of the concurrent programme of fish sampling; a report by Major J.T. McLean describing measurements of fallout on various Pacific Islands between 1 July and 30 November 1958 (Grapple Z); a report of residual radiation measurements following the Grapple Y explosion on Christmas Island; a summary statement of environment radiation measurements following the Grapple Y explosion, by AWRE, dated May 1958; and interim reports on radiological measurements following the Grapple Y and Grapple Z detonations.
15. Mr Kenneth McGinley was born in 1938 and lives in Paisley, Scotland.
16. In 1956, following a medical examination which found him fit for full combat service in any part of the world, he was enlisted into the army as a sapper with the Royal Engineers. In December 1957 he was posted to Christmas Island where he worked as a plant operator at Port London and in the quarries at the northern end of the island. According to information supplied by the Ministry of Defence (“MOD”) for the purposes of his pension application (see paragraph 22 below), he was present at a distance of approximately 25 miles (40 kilometres) from the following test detonations: Grapple Y on 28 April 1958, Grapple Z on 22 August 1958, Grapple Z2 on 2 September 1958, Grapple Z3 on 11 September 1958 and Grapple Z4 on 23 September 1958, in which three nuclear explosive devices in the megaton range were detonated as high air bursts over the sea to the south of Christmas Island and two balloon-borne nuclear explosive devices in the kiloton range were detonated over the south-east corner of the island.
17. Mr McGinley stated in his pension application (see paragraph 21 below) that four days after the test explosion on 28 April 1958 he attended his medical officer on Christmas Island because he had developed nausea, diarrhoea and itchy blisters on the backs of his hands, neck and cheeks. He stated that he was treated for the blisters with a plastic spray twice a day for ten to twelve days. No contemporaneous record of this treatment has been produced.
The transcripts of his medical records set out in his Statement of Case to the PAT (see paragraph 28 below) contained the following entries.
18. He was treated on Christmas Island between 15 and 23 September 1958 for a throat infection and in the United States’ Tripler Army Hospital and on Christmas Island for tonsillitis in October and November 1958. In February 1959 he was admitted to the Catterick Military Hospital, England, suffering from influenza. In August 1959 he was admitted to the Cowglen Military Hospital in Scotland suffering from a duodenal ulcer, which led to a recommendation that he be discharged from the army as unfit for further military service. This was effected on 10 November 1959 and he was awarded a 20% pension in relation to the ulcer since it was considered to be attributable to military service.
19. In his statement on discharge, in response to the question “If you are suffering from any diseases, wound, or injuries, state what they are, and also when and where they first started…”, he referred to out-patient treatment which he had received in Germany in June 1957 for a torn cartilage and on Christmas Island in May 1958 for a broken ankle; this latter treatment had not been recorded elsewhere in the service medical records contained in the Statement of Case.
In response to the question “Give details … of any incidents during your service which you think caused or made worse your disability”, he referred to his service in May 1959 as a plant operator in Northumberland, England, and the fact that “the food consisted of compound rations three meals per day”. He made no mention of the conditions he allegedly developed following the test explosion on 28 April 1958 (see paragraph 17 above).
20. Subsequent to his discharge, the medical records show that Mr McGinley continued to suffer stomach pain and in August 1962 he underwent an operation to remove the duodenal ulcer. In June 1968 he was admitted to hospital for a week suffering from renal colic. In July 1976 he had a sebaceous cyst removed from his right cheek. In December 1976 he was diagnosed as infertile.
21. In June 1980 he applied for his pension to be reviewed on the ground that the condition of his ulcer had deteriorated. The pension was increased to 30%, reduced again to 20% in June 1982 and restored to 30% on 13 December 1982 following an appeal to the PAT.
22. Following a series of articles in the press in 1982 about the potential effects of the Christmas Island explosions on those exposed to them, Mr McGinley came to attribute his health problems to his service on the island and became chairman of the British Nuclear Tests Veterans’ Association (“BNTVA”), an organisation which campaigned for compensation for the servicemen present during the tests.
23. On 1 April 1984 he made a claim for an increase in his pension, complaining of depression, sterility and severe arthritis. In his application he described the line-up procedure followed during the tests and the rash he had allegedly developed subsequently (see paragraphs 10 and 17 above), and continued:
“I consider that my problems are directly linked with radiation exposure. Since leaving the service I have experienced bouts of moodiness and at time [sic] unexplained attacks of very quick tempered actions. Then later regret them. I have been examined at the Western Infirmary in 1976 and diagnosed as sub-sterile. My own doctor … believes there is a direct link. I have also suffered from mysterious paralysis of legs and arms and have been for the past four years been [sic] in extreme pain sometimes 24 hours per day.”
24. In response to this application, the Department of Social Security (“DSS”) made enquiries of Mr McGinley’s general practitioner (“GP”) and the MOD.
His GP reported that the applicant’s records showed treatment for a duodenal ulcer in 1960 and a stomach ulcer in 1980, and an investigation of fertility in 1977. In 1983 the applicant had complained of arthritis, but the specialist who had given him a full medical examination could find no evidence of any organic disease. The GP also stated that Mr McGinley suffered from an acneiform skin condition and also reported “one positive finding – of which he is unaware – is a polycythaemia (haemoglobin level 17.6%) [a disorder whereby an abnormally high number of red blood cells are produced]”.
25. The MOD responded to the DSS’s enquiries by stating that the areas on Christmas Island in which the applicant had served were not subject to fall-out, and therefore:
“His radiation exposure from the UK nuclear tests was ZERO and the radiation effective dose equivalent which it represents was ZERO. His overall radiation dose from the ever present background radiations was no more and probably less than he would have received had he remained in UK instead of seeing service in the South Pacific area in 1958.
As his radiation effective dose was ZERO, ex-Spr [sapper] McGinley’s medical condition would not have been caused by ionising radiations from the UK nuclear test programmes.”
26. On 30 November 1984 Mr McGinley’s claim was refused, on the grounds that there was no evidence that the condition of his ulcer had deteriorated or that his reduced fertility, facial acne, right renal colic or arthritis had been either attributable to or aggravated by his service in the armed forces.
27. On 21 January 1985 the applicant appealed to the PAT, stating:
“I was deliberately exposed to unknown hazards i.e. THREE HYDROGEN BOMB TESTS in 1958 for the Government’s Scientific Curiosity Programme… My own Military Medical Records have been ‘doctored’ along with many other members of the BNTVA. I have been victimised by the Ministry of Defence in that they have admitted that they advise the DSS on Medical matters of Nuclear Tests Participants…”
28. On receipt of the notice of appeal, the DSS prepared a Statement of Case for the PAT (see paragraph 57 below).
Thus, on 11 February 1985, an enquiry was sent to the Medical Records Section of the MOD, asking for all the available medical records relating to the applicant between December 1957 and December 1958 and/or confirmation that he had been treated for a rash on his body and face on Christmas Island at some time during this period.
On 13 February 1985, the MOD replied:
“No A & D [admission and discharge] books held under particulars quoted. N/T [no trace] medical records. “
29. The DSS also sought further medical evidence, including hospital case notes and the following reports from the applicant’s GP and a number of specialists who examined him for the purposes of his appeal.
Mr McGinley’s GP stated that he considered him to be “fit within limits”, although he had some reservations, namely the polycythaemia and sterility. The psychiatrist who saw Mr McGinley did not consider that he was suffering from any psychiatric condition. The consultant rheumatologist concluded that the pain and stiffness in his hands, arms, shoulders and neck of which the applicant complained related to normal wear and tear and could “find nothing to connect it with radiation exposure”. The dermatologist reported that the appearance of the applicant’s skin was consistent with the long-term effects of untreated constitutional acne vulgaris, concluding however that since he had no competence to give an opinion as to whether this condition might have been linked to exposure to radiation, the opinion of an expert familiar with the effects of ionising radiation should be sought. The DSS declined to follow this advice since they were satisfied by the MOD’s statement that Mr McGinley had not been exposed to radiation. The consultant urologist found that Mr McGinley was not suffering from any kidney disease. In relation to his infertility he stated:
“… it is impossible to be certain of its cause as there is no indication of the patient having had a normal seminal analysis prior to his alleged exposure to ionising radiation in 1957. His seminal analysis was performed in 1976 at which time he was 38 years of age and to which age many men are beginning to show a reduction in sperm count. The incidence of oligospermia in the normal male population at this age is probably not less than 10%.
In all, it is impossible to incriminate exposure to ionising radiation as a primary cause of the patient’s subfertility problem…”
30. Also included in the Statement of Case to the PAT was the opinion of a DSS medical officer, who explained that, in the light of the medical evidence and the MOD’s statement that Mr McGinley had not been exposed to ionising radiation, it was not considered that the disablement from acne vulgaris, generalised osteoarthritis or reduced fertility with associated nervous symptoms were attributable to or had been aggravated by service in the armed forces. In view of the consultant urologist’s report, the applicant was found not to be suffering from right renal colic.
31. An edited version of the Statement of Case, omitting information that it was “undesirable in the interests of the applicant to disclose to him”, was sent to Mr McGinley (in accordance with Rule 22 of the Pensions Appeal Tribunals (Scotland) Rules 1981). His representatives, the British Royal Legion, received an unedited version.
The applicant then had the opportunity to make written submissions to the PAT, adduce additional evidence or request the production of documents in accordance with the procedure under Rule 6 of the Tribunal Rules (see paragraph 59 below), none of which he did. Together with his representative, he attended the hearing before the PAT where he made oral submissions.
32. On 25 February 1988, the PAT dismissed the appeal.
33. On 9 July 1991 the applicant submitted another claim based on alleged radiation-linked acne vulgaris, sterility and arthritis, but he did not pursue it after the DSS reminded him of his previous claim’s rejection in 1988.
In 1992 he applied for and received an added assessment to his pension of 1.5% for hearing loss.
34. Mr Edward Egan was born in 1939 and lives in Glasgow, Scotland.
35. In October 1956, following a medical examination, he was enlisted into the Royal Navy, fit for full combat duty in any part of the world. On 28 April 1958 he was serving as a stoker on board Her Majesty’s Ship Ulysses which, according to information provided by the MOD, was positioned off Christmas Island at a distance of approximately 60 miles (97 kilometres) from the detonation of the Grapple Y test (15–20 miles according to the applicant: see paragraph 47 below).
36. Mr Egan’s medical records, as set out in his Statement of Case to the PAT, show, inter alia, that on 8 March 1958 he had an X-ray at a naval hospital in Auckland, New Zealand. From 2 to 10 April 1958 he was admitted to the War Memorial Hospital, Fiji. Subsequent to the test explosion on 28 April 1958, he was treated (in November 1958 and February–March 1959) for a common cold and influenza respectively and
he was given another X-ray on 30 April 1959. In March 1960 he fractured his right clavicle, in connection with which he was X-rayed on 30 May 1960.
37. In early 1961 he applied to be discharged from the navy. In his statement on discharge, in response to the question “If you are suffering from any diseases, wound, or injuries, state what they are, and also when and where they first started …”, he referred only to the fractured clavicle, and he made no response to the question “Have you suffered from any diseases or injuries other than those mentioned above?” His medical report on discharge stated that his clavicle was badly deformed, but apart from this noted no problems. With regard to his respiratory system, it stated that he had had a full plate X-ray on 2 February 1961 which had detected nothing abnormal.
On 8 February 1961, Mr Egan was discharged from the navy on compassionate grounds.
38. In June 1965, following a chest X-ray, he was diagnosed as suffering from sarcoidosis, a chronic disease one of the symptoms of which is the formation of small nodules, or granulomas, in the lungs and/or other organs and tissues. His medical records show that in July 1965 he told the consultant chest physician to whom he had been referred that he had “had a normal X-ray in 1961 when in the navy, but was in hospital for two weeks in 1958 for investigation following a routine X-ray in New Zealand”.
39. On 10 July 1970 the applicant applied for a pension in respect of his sarcoidosis, alleging that he had suffered from the disease since the date of his discharge from the navy and that it was attributable to the fact that “while serving at Christmas Island I was exposed to the blast from atomic bomb resulting in the burning of skin tissues”.
40. On 14 July 1970 the DSS requested from the MOD all the available medical records relating to Mr Egan. The reply, which was received on the same day, read “No trace medical records”. On 12 August 1970 the applicant’s X-ray of 2 February 1961 was requested. The response, dated 18 September 1970, noted that a thorough search of the large film records for 1961 had been made and that no trace of a large film for the applicant could be found.
41. On 5 October 1970 the DSS made another enquiry of the MOD, asking whether any type of atomic device had been detonated whilst the applicant’s ship was stationed off Christmas Island and, if so, the distance of the ship from the epicentre of the blast; whether the ship was stationed sufficiently close for any crew members to have sustained radiation burns; whether the applicant was likely to have had cause to be in the open and thereby subjected to blast and, if so, what protective clothing had been issued. Finally, the DSS noted that there was reference in Mr Egan’s medical records to a two-week stay in hospital following a routine chest Xray in 1958 (see paragraph 38 above), and asked the MOD whether there was any trace of his medical records for 1958 or of any X-rays taken for him during his service.
The reply, dated 16 October and 17 November 1970, stated that all available medical documents had already been sent to the DSS, and that an examination of the records of the detonation on 28 April 1958 (held by the War Historical Branch) and of the ship’s log-book showed that HMS Ulysses was approximately 70 miles (113 kilometres) from the epicentre. The Naval Plan for Operation Grapple had required “Precautions to be taken by ships in target area – all exposed personnel are to be completely covered, anti-flash hats, gloves and goggles are to be worn, and long trousers tucked into socks”.
42. On 12 January 1971 the DSS medical board found against the applicant.
43. On 4 March 1971, following further representations by the applicant, the DSS again requested the MOD to trace his service medical records. The MOD replied that: “This case has been thoroughly dealt with and to date we cannot provide any further service documents.”
44. On 5 April 1971 the applicant lodged an appeal with the PAT.
For the purposes of the appeal the DSS obtained a medical report from a senior chest physician, who stated:
“It is my opinion, that, from the initial radiographic appearances, the investigations carried out and the course of the disease, the diagnosis of the condition was correctly assessed as sarcoidosis. I think that the respiratory symptoms of cough and occasionally blood-stained sputum were associated with intercurrent respiratory infection. One possible alternative diagnosis is considered below…
I think it is true to say that there is no reference in the international literature to any case of sarcoidosis specifically related to the effects of atomic explosion.
The only possible aetiological factor which could be incriminated is exposure to beryllium copper alloy. I do not know whether this alloy was in use in April 1958. The features of chronic berylliosis … are very similar to those which occur in chronic sarcoidosis…
In summary, it is, in my opinion, virtually certain that the correct diagnosis in this case is sarcoidosis and that the disease had no relationship to proximity to an atomic explosion in April 1958.”
The Government subsequently confirmed, in response to a parliamentary question, that beryllium is commonly used in nuclear test devices, although for security reasons it was not possible to disclose the materials used in specific devices.
45. In response to an enquiry, the MOD informed the DSS that:
“It is most unlikely that this man was ever exposed to beryllium copper alloy or other beryllium compounds in his work as a stoker.
The log of HMS Ulysses has been carefully scrutinised especially with relation to the periods at Christmas Island in 1958 and there is no record to substantiate the story of atomic bomb blast. Certainly had he been ashore there would have been no significant exposure.”
46. Also included in Mr Egan’s Statement of Case was the opinion of the Medical Division of the DSS, which stated, inter alia:
“… In the first place we would explain that in the absence of evidence in favour of a diagnosis of chronic berylliosis and in the absence of any evidence that Mr Egan was ever exposed to beryllium copper alloy during service, we are satisfied that his lung condition has been correctly diagnosed as sarcoidosis…
Mr Egan has based his claim on the ground that he was exposed to atomic radiation, which he says burned his skin tissues, while in the vicinity of Christmas Island in 1958 and instancing that he was in hospital for two weeks in 1958 following a routine X-ray taken in New Zealand.
Dealing with the question of radiation, we would stress that … there is no evidence to suggest that exposure to atomic radiation – even a heavy dosage – can be a cause of sarcoidosis… There is no evidence that Mr Egan sustained burns of his skin as a result of atomic blast. Had such an event occurred, he would have required medical attention and we consider it to be inconceivable that such a sequence of events could have happened without some mention in his service documentation. In view of this and having regard to the recorded history, we are satisfied beyond reasonable doubt that there is no evidence at all to relate his sarcoidosis to the incident in question or to any other factor of his service.
As regards Mr Egan’s contention that following a routine mass X-ray taken in New Zealand in 1958, he was admitted to hospital for investigation, it is pointed out that the routine X-ray in question was taken on 8 March 1958, more than six weeks before the atomic explosion. We do not consider it in any event likely that a further routine X-ray would have been taken during the same year and there is no evidence of an admission to hospital after the X-ray mentioned although we note he had treatment for a common cold in November that year… Also, … on clinical examination prior to discharge, apart from the after-effects of the fractured clavicle sustained off-duty, no disabilities were found…”
47. On 7 December 1971 an edited Statement of Case was sent to the applicant and an unedited version was sent to his representatives, the Royal British Legion. Mr Egan then had the opportunity to make written submissions, adduce additional evidence or request the production of documents in accordance with the procedure under Rule 6 of the Tribunal Rules (see paragraph 59 below).
He chose to make a supplementary statement in response, in which he disputed the fact that there was no medical record concerning the treatment he received in the hospital in Fiji (see paragraph 36 above), where he alleged to have been given a number of X-rays. He also disputed that there was no evidence in the log of HMS Ulysses that the crew was exposed to the atomic blast, contending that he was 15–20 miles (24–32 kilometres), rather than 70 miles (113 kilometres), from the explosion, that during it he had been made to stand on the upper deck wearing protective clothing and dark glasses and that he had felt ill with a cold and “dampness through my body” after it.
48. The DSS then contacted the Medical Records Section of the MOD and the MOD’s Liaison Officer in Bath, requesting special searches for any medical records or X-rays relating to Mr Egan’s hospitalisation in Fiji between 2 and 10 April 1958 and confirmation of the distance of HMS Ulysses from the blast. No further medical records could be traced, but the MOD recalculated the ship’s position as 60 miles (97 kilometres) from the blast.
49. On 29 August 1972 the PAT dismissed Mr Egan’s appeal.
50. On 21 October 1982 the applicant submitted another claim for a war pension based on allegedly radiation-related sarcoidosis of the lung. The DSS responded to the applicant by reminding him of the decision of the PAT taken in 1972 and informing him that it was legally binding unless set aside by the Court of Session in Scotland on a point of law (see paragraph 58 below).
51. On 11 July 1991 the DSS received another, similar, war pension claim, lodged by the BNTVA on Mr Egan’s behalf. He was again reminded of the PAT’s decision of 1972 and he replied, by letter dated 30 October 1991, that he was not happy with that decision. The DSS replied by referring the applicant to the fact that the PAT had looked at his service documents while considering his case.
52. On 25 April 1992 the applicant made a further claim for a war pension based on deafness. The claim was rejected by the Secretary of State and Mr Egan did not appeal the decision.
53. The scheme for the payment of war pensions in the United Kingdom is currently contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (“the Pensions Order”), the terms of which are in all material respects identical to the legislation in force at the time of Mr Egan’s application.
54. The basic condition for the award of a pension is where “the disablement or death of a member of the armed forces is due to service”. “Disablement” is defined as “physical or mental injury or damage, or loss of physical or mental capacity”. For claims made more than seven years after the termination of service, the disablement or death is to be treated as “due to service” if it is due to an injury which is either attributable to service after 2 September 1939 or existed before or arose during such service and was and remains aggravated by it.
The Pensions Order provides that where, upon reliable evidence, a reasonable doubt exists whether the above conditions are fulfilled, the benefit of that doubt must be given to the claimant (Pensions Order, Articles 3–5).
55. According to the Government, pensions have been awarded in respect of radiation-linked claims to at least twenty-eight servicemen, or widows of servicemen, stationed on or in the vicinity of Christmas Island or other nuclear test sites in 1957–58.
56. The scheme for the payment of pensions is administered in the first instance by the DSS. On receipt of an application, the DSS, inter alia, obtains the claimant’s service records (including service medical records) from the MOD and, with the assistance of additional medical evidence if required, assesses whether the claimant is suffering from a disability attributable to service. The Secretary of State for Social Security gives the final decision, based on this assessment.
57. A claimant who is refused a war pension by the Secretary of State may appeal to the PAT (see the Pensions Appeal Tribunals Act 1943 and the Pensions Appeal Tribunals (Scotland) Rules 1981: “the Tribunal Rules”). This body is composed of a lawyer, a doctor and a serviceman or ex-serviceman of the same sex and rank as the claimant. The DSS provides the PAT with a “Statement of Case”, which includes, inter alia, a transcript of the claimant’s service records including service medical records, subsequent medical records and reports including those prepared at the request of the DSS doctor and a statement outlining the Secretary of State’s reasons for refusing the application. The claimant may submit an answer to the statement and/or adduce further evidence. There is then a hearing, which may not take place in the absence of the claimant without his consent, and at which the claimant may be legally or otherwise represented.
58. A further appeal from the PAT lies on a point of law to the Court of Session in Scotland, with the leave of either the PAT or the court.
59. Rule 6 of the Tribunal Rules provides as follows:
“Disclosure of official documents and information
6(1) Where for the purposes of his appeal an appellant desires to have disclosed any document, or part of any document, which he has reason to believe is in the possession of a government department, he may, at any time not later than six weeks after the Statement of Case was sent to him, apply to the President for the disclosure of the document or part and, if the President considers that the document or part is likely to be relevant to any issue to be determined on the appeal, he may give a direction to the department concerned requiring its disclosure (if in the possession of the department) in such manner and upon such terms and conditions as the President thinks fit…
(2) On receipt of a direction given by the President under this rule, the Secretary of State or Minister in charge of the government department concerned, or any person authorised by him in that behalf, may certify to the President –
(a) that it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly; or
(b) that the whole or part of the document ought not, for reasons of security, to be disclosed in any manner whatsoever;
and where a certificate is given under sub-paragraph (a), the President shall give such directions to the tribunal as may be requisite for prohibiting or restricting the disclosure in public of the document, or part thereof, as the case may be, and where a certificate is given under sub-paragraph (b) the President shall direct the tribunal to consider whether the appellant’s case will be prejudiced if the appeal proceeds without such disclosure, and, where the tribunal are of the opinion that the appellant would be prejudiced if the appeal were to proceed without such disclosure, they shall adjourn the hearing of the appeal until such time as the necessity for non-disclosure on the ground of security no longer exists.”
60. “Public records” are defined by section 2 of the Schedule to the Public Records Act 1958 (“the 1958 Act”) as administrative and departmental records belonging to the Crown, including records of, or held by, any government department. The administration of the public records system is the responsibility of the Lord Chancellor. Public records which have been selected for permanent preservation are not usually transferred to the Public Records Office or other approved location in the public domain until thirty years after their creation, although a longer or shorter period may be fixed by the Lord Chancellor with the approval or at the request of the Minister or other person primarily concerned.
61. The right to compensation under common law is enforceable through the civil courts if the plaintiff is able to prove on the balance of probability that, given the state of knowledge at the relevant time, the injury complained of was reasonably foreseeable and caused by the action or inaction of the defendant.
62. However, armed forces personnel whose cause of action arose on duty before 1987 are barred from taking civil proceedings for compensation against the Crown by section 10 of the Crown Proceedings Act 1947. It is disputed between the parties as to whether this immunity of the Crown survived judgment in the case of Pearce v. The Secretary of State for Defence and Ministry of Defence [1988] 2 Weekly Law Reports 145, but it is agreed that to date no one (including Mr Pearce) has been able successfully to demonstrate in a civil action that an illness was, on the balance of probability, caused by radiation from the Christmas Island nuclear test programme.
63. On 14 January 1966 the United Kingdom lodged with the Secretary General of the Council of Europe the following declaration:
“… in accordance with the provisions of Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4th of November 1950, … the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland only …, for the period beginning on the 14th of January 1966, and ending on the 13th of January 1969, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe, subsequently to the 13th of January 1966, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to the 13th of January 1966, to be the victim of a violation of the rights set forth in that Convention and in the Protocol thereto…”
A declaration under Article 46 of the Convention, recognising the Court’s jurisdiction subject to similar conditions, was filed on the same day. Both declarations have been renewed on several occasions subsequently.
NON_VIOLATED_ARTICLES: 6
8
NON_VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-87032
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MELTEX LTD v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: The applicant, Meltex Ltd, is a private Armenian broadcasting company (“the applicant company”) that was set up in 1995 and has its registered office in Yerevan. The applicant company was represented before the Court by Mr M. Muller, Mr T. Otty, Ms J. Gordon, Mr K. Yildiz, Ms A. Stock and Ms L. Claridge, lawyers practising in London, Mr T. Ter-Yesayan and Ms N. Gasparyan, lawyers practising in Yerevan, and Mr A. Ghazaryan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1995 the applicant company established the A1+ television company within its structure, with the intention of getting involved in television broadcasting.
On 1 January 1996, in preparation for broadcasting, the applicant company opened a school to train personnel, such as journalists, cameramen and technicians who were later employed by the applicant company.
On 25 August 1996 the applicant company started television broadcasting through its A1+ channel, first sharing capacity and content with Moscow “REN” TV, a Russian television company. Over time, the volume of the content produced by the applicant company increased significantly.
On 22 January 1997 the applicant company was granted a license by the then Ministry of Communication (ՀՀ կապի նախարարություն) permitting it to install a television transmitter in Yerevan and to broadcast within the decimetric wave band. The license was granted for a period of five years.
In September 1999 the applicant company established “Hamaspyur”, a network of nine private licensed regional television companies, broadcasting 24 hours a day.
The content of the A1+ television channel included international and domestic news analysis (30%), advertising (32%) and various entertainment programmes. The applicant company submitted that the A1+ television channel was widely recognised as one of the few independent voices in television broadcasting in Armenia.
In 2000-2001 legislative changes were introduced in the sphere of television and radio broadcasting.
The Television and Radio Broadcasting Act («Հեռուստատեսության և ռադիոյի մասին» ՀՀ օրենք – “the Broadcasting Act”), passed in October 2000, established a new authority, the National Television and Radio Commission (Հեռուստատեսության և ռադիոյի ազգային հանձնաժողով – “the NTRC”), which was entrusted with regulating the licensing and monitoring the activities of private television and radio companies. The NTRC was a public body composed of nine members appointed by the President of Armenia. The Broadcasting Act also introduced a new licensing procedure, according to which a broadcasting license was granted on the basis of a call for tenders conducted by the NTRC in respect of the list of available frequencies.
During 2001 all existing broadcasting licenses were temporarily re-registered by the NTRC until the relevant calls for tenders were announced.
On 3 September 2001 the NTRC replaced the applicant company's license with a new license. The new license was granted for band 37 and was due to expire on 22 January 2002.
On 23 November 2001 the NTRC decided to postpone the call for tenders for band 37 until the adoption of appropriate rules and regulations and to permit the applicant company to continue to operate in band 37 for an indefinite period of time until such call for tenders was put out.
On 19 February 2002 the NTRC announced calls for tenders for various broadcasting frequencies, including band 37.
The applicant company and two other companies, Sharm Ltd and Dofin TV Ltd, submitted bids for band 37. The applicant company alleged that Sharm Ltd had never previously operated in the field of television broadcasting and its main focus had been as the organiser of entertainment shows for young people and students. None of its employees had a background in professional journalism and the company had no premises, equipment and financial or technical infrastructure to commence broadcasting at the time of its bid. It further alleged that Dofin TV Ltd had been registered less than a month before the tender process took place and had had no previous experience of any sort in the field of broadcasting.
On 1 April 2002, before the winners of the tender process were announced, the applicant company instituted proceedings against the NTRC before the Commercial Court (ՀՀ տնտեսական դատարան). In its application to the court, the applicant company argued that the NTRC had unlawfully postponed the call for tenders for band 37, that the NTRC had violated the law and restricted the applicant company's opportunities by announcing separate calls for tenders for different bands as opposed to a single one for all bands and that the NTRC had exceeded its authority when defining the terms and conditions of the tendering procedure.
On 2 April 2002 the NTRC held a points-based vote and recognised Sharm Ltd as the winner of the call for tenders for band 37. The decision stated:
“Based on sections 37 and 50 of [the Broadcasting Act], sections 30, 31 and 63 of [the NTRC] Regulations Act and Paragraph 19 of Decision no. 4 of [the NTRC] of 24 January 2002 Approving the Tendering Rules for Television and Radio Broadcasting Licences, and taking into account the results of the call for tenders for television broadcasting on decimetric band 37 in the area of Yerevan, [the NTRC] decides (1) to recognise Sharm Ltd as the winner of the call for tenders for television broadcasting on decimetric band 37 in the area of Yerevan, and (2) to grant a television broadcasting license to Sharm Ltd.”
On 16 April 2002 the applicant company lodged an additional application with the Commercial Court seeking, inter alia, to annul the decision of 2 April 2002. The applicant company also alleged that it had unsuccessfully requested the court to oblige the NTRC to present the minutes of their meeting which provided basis for this decision.
On 25 April 2002 the Commercial Court rejected the applicant company's applications. The court found that, even though the NTRC should have announced the call for tenders two months prior to the expiration of the applicant company's license, this had not been done as certain legal acts, which were necessary for the proper conduct of the tender process, had not been adopted by that time. The court further found that the fact that the NTRC had announced separate calls for tenders instead of a single one did not contradict the law. The applicant company had not been precluded from submitting bids for all these calls for tenders. The court finally stated that the NTRC had been authorised under the law to define the terms and conditions of the tendering procedure and it had not exceeded its authority in doing so.
The applicant company lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան). In its appeal, the applicant company raised the same arguments as before the Commercial Court, claiming that the latter had not interpreted the law correctly. It further complained about the court's rejection of its request concerning the minutes of the NTRC's meeting.
On 14 June 2002 the Court of Cassation adopted a decision on the applicant company's appealinter alia, that:
“...the arguments put forward in the appeal concerning a violation by the Commercial Court of [the relevant legal acts] are groundless, as [the NTRC], acting within the authority vested in it by the above legal acts ... defined the tendering rules for licensing of television broadcasting, which contains the rules on the conditions, procedures and time-limits of a call for tenders, submission of bids, recognising the winner of a call for tenders and declaring a call for tenders void. On 19 February 2002 [the NTRC] ... announced separate calls for tenders for unoccupied frequencies and on 2 April 2002 in its decision no. 37 recognised the winner of the call for tenders.
...
The applicant's representative submitted a motion in court requesting that '[the NTRC] present the minutes of decision no. 37'. [The Commercial Court], stating that the dispute concerned the lawfulness of [NTRC's] decision no. 37 and not the decision's minutes, justly dismissed this motion.
...a well-founded dismissal of a motion which is not relevant for the resolution of the dispute has nothing to do with ... the requirements of Article 6 of [the Convention].
...the judgment of the Commercial Court ”
On the same day as the announcement of the license winner, the NTRC issued a memorandum to the Ministry of Transport and Communication (ՀՀ տրանսպորտի և կապի նախարարություն) requesting it to terminate broadcasts by the A1+ television channel.
On 3 April 2002, at 00h01, the Television Network of Armenia State-owned CJSC («Հայաստանի հեռուստատեսային ցանց» ՊՓԲԸ – “the TNA”), with whom the applicant company had earlier entered into a lease agreement to temporarily rent industrial premises for the purpose of installing transmitter equipment, cut the electricity supply of the applicant company's transmitter and the A1+ television channel ceased to broadcast.
The applicant company contested the actions of the TNA before the Commercial Court claiming that they had been unlawful and in violation of the lease agreement.
On 17 May 2002 the Commercial Court rejected the applicant company's claim, finding that the actions of the TNA had been lawful and that the applicant company should have ceased broadcasting voluntarily as it was no longer licensed.
The applicant company lodged an appeal on points of law with the Court of Cassation.
On 28 June 2002 the Court of Cassation dismissed the applicant company's appeal as unsubstantiated.
On 15 October 2002 the NTRC announced a new call for tenders for five other bands.
The applicant company submitted bids for three of the five bands, namely bands 31, 39 and 51.
On 27 May 2003 the NTRC announced another call for tenders for band 25.
The applicant company submitted its bid.
On 11 June 2003 the NTRC recognised the winner of the call for tenders for band 25. The applicant company was again refused a license.
On 18 July 2003 the NTRC recognised the winners of the call for tenders for bands 31, 39 and 51. The applicant company was again refused a license.
On an unspecified date, the NTRC announced a call for tenders for bands 3 and 63.
The applicant company submitted bids for both bands.
On 13 October 2003 the NTRC recognised the winners of the call for tenders. The applicant company was again refused a license.
On 19 November 2003 the NTRC announced a call for tenders for the last vacant band, namely band 56.
The applicant company submitted its bid.
On 29 December 2003 the NTRC recognised the winner of the call for tenders. The applicant company was again refused a license.
The relevant provisions of the Code, as in force at the material time, read as follows:
“Unlawful acts of public authorities, local self-government bodies and their officials can be annulled or their actions (inaction) can be contested (hereafter, annulling the unlawful act) if the act in question contradicts the law and if there is evidence that the applicant's rights and (or) freedoms guaranteed by the Armenian Constitution and laws have been violated.”
“An appeal on points of law can be lodged on: (1) the ground of a material or a procedural violation of the parties' rights; [and] (2) the ground of newly discovered circumstances.”
“Having examined a case, the Court of Cassation has the right:
(1) to uphold the court judgment and to dismiss the appeal...;
(2) to quash the whole or part of the judgment and to remit the case for a new examination...;
(3) to terminate the proceedings or to leave the claim unexamined, if the grounds for [doing so] were disclosed during the proceedings in the court of first instance, the Commercial Court or the Court of Appeal.”
“3. The Court of Cassation is not entitled to establish or consider as proven circumstances which have not been established by the judgment [of the Commercial Court] or have been rejected by it, to determine whether or not this or that piece of evidence is trustworthy, to resolve the issue as to which piece of evidence has more weight or the issue as to which norm of substantive law must be applied and what kind of judgment must be adopted upon the new examination of the case.”
The relevant provisions of the Broadcasting Act, as in force at the material time, read as follows:
“In Armenia television and radio broadcasting shall be conducted on the basis of a licence.”
“The National Television and Radio Commission (hereafter, the National Commission) is an independent body with the status of a public agency whose activity is regulated by this law, its regulations and the legislation of Armenia. The National Commission deals with licensing and monitoring of only private television and radio companies (television companies or radio companies).
The National Commission: (a) shall allocate broadcasting frequencies on a public and competitive basis and ensure the publication of complete information on the results of a call for tenders; ... (c) shall grant licences...”
“The National Commission shall have nine members appointed by the President of Armenia for a term of six years, with the exception of the first composition...”
“A television and radio broadcasting licence shall be granted for a particular available frequency on the basis of a call for tenders...”
“When selecting the licence-holder, the National Commission shall take into account:
(a) the predominance of programmes produced in-house;
(b) the predominance of programmes produced in Armenia;
(c) the technical and financial capacity of the applicant; and
(d) the professional level of the staff.”
“A licence shall not be granted if:
(a) the applicant cannot be a licence-holder pursuant to this law;
(b) the information contained in the bid is inaccurate; or
(c) the technical capacity for television and radio broadcasting is lacking or the declared technical capacity is insufficient.
An applicant shall be informed in writing of the reasons for the refusal of a licence within ten days from the date of the decision.
The refusal of a licence can be contested before the courts.”
“...
A licence to broadcast television and radio programmes or to produce and broadcast [such programmes] shall be granted to television and radio companies: (a) ...; (b) for a period of five years for on-air television and radio broadcasting.”
The relevant provisions of the NTRC Regulations Act read as follows:
“In order to grant a broadcasting licence, the Commission, at its meeting and within the period prescribed by the tendering rules, shall adopt a decision on the basis of the results of a call for tenders.”
“Following the consideration of a bid, the Commission shall adopt one of the following decisions: (a) to grant a licence; or (b) to refuse a licence.”
“A copy of the decision granting or refusing a licence shall be duly sent to the applicant within ten days from its adoption.”


ITEMID: 001-4925
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: VARUZZA v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant is an Italian national, born in 1961 and residing in Milan.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 24 December 1992 the applicant had a car accident at a junction. The traffic police fined him for the decriminalised offence of "not slowing down while approaching the junction and thus causing danger" (per non aver moderato la velocità all'intersezione costituendo pericolo). The fine amounted to 62,000 Italian lire.
On 13 February 1993 the applicant filed an objection with the Prefect of Milan through the Milan Police Station. He contested that he had partly caused the accident and also requested that he himself and an eye-witness be heard.
The applicant's objection was received by the Judicial Police on 17 February 1993 and sent back to the Municipal Police with a view to obtaining information on 8 April 1993. On 4 May 1993 the file was forwarded to another section of the Municipal Police.
On 21 May and 11 November 1994 the applicant asked the Prefect to issue a decision. He received no reply.
The applicant's file was never forwarded to the Prefect's Office, which learned about its existence only in the context of the application to the Court.
The road traffic offence is nowadays time-barred.
In the meantime, the applicant claimed compensation for the damage occurred to his car, but the insurance company only paid half of the amount claimed, on the ground that the applicant was partly responsible for the accident.
B. Relevant domestic law and practice
According to Sections 203-205 of the Road Traffic Code (Codice della Strada), a person who has been fined for a road traffic offence can file an objection with the competent Prefect. The lodging of the objection suspends the effects of the fine. The Prefect, within sixty days, can either confirm the fine and issue an order for its payment or issue a reasoned order withdrawing the fine (ordinanza motivata di archiviazione degli atti). The party can file an application with the civil Magistrate against a negative decision of the Prefect.
The Constitutional Court, by judgments Nos. 255/94, 311/94 and 437/95, has interpreted Section 203 of the Road Traffic Code as allowing to apply to the Magistrate without previously applying to the Prefect.
In several decisions (Nos. 12777/95, 5897/97, 12628/98) the Court of Cassation has applied the principle stated by the Constitutional Court and ruled that the application to the Prefect is merely optional, i.e. it is possible to apply directly to the Magistrate.
The Court of Cassation has also made it clear, by its decision No. 6895/97, that the above sixty-day time-limit is peremptory and that, therefore, a decision delivered after the expiry of the sixty days is to be considered invalid.
According to Section 209 of the Road Traffic Code, road traffic offences become time-barred after five years.
According to Section 221 of the Code of Civil Procedure, the content of a public document (atto pubblico) - such as a traffic police fine - can be challenged in the course of civil proceedings through a written application (querela di falso) to the judge.
In its judgment no. 6139 of 2 June 1993, the Court of Cassation has made clear that a possible withdrawal of the fine by the Prefect, being no judicial decision, cannot prevent the civil courts from establishing the possible responsibility of the relevant person in relation to the facts which are the object of the fine.