ITEMID: 001-69500
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: HOFMAN v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Julian Hofman, is a Polish national who was born in 1945 and lives in Warsaw, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 December 1991 the applicant lodged a claim against the “Betex” company with the Warsaw Regional Couet (Sąd Wojewódzki). He sought the annulment of resolutions passed by the general meeting of shareholders.
The proceedings were terminated on 4 June 2002. On 10 January 2002, the date on which the application was lodged with the Court, they were pending before the Supreme Court (Sąd Najwyższy).
On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”) entered into force. It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings.
Section 2 of the 2004 Act reads, in so far as relevant:
Section 5 reads, in so far as relevant:
“1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...”
Section 12 provides for measures that may be applied by the court dealing with the complaint. It reads, in so far as relevant:
“1. The court shall dismiss a complaint which is unjustified.
2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings.
3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a fixed time-limit. Such instructions shall not concern the factual and legal assessment of the case.
4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.”
Section 18 lays down transitional rules in relation to the applications already pending before the Court. It reads, in so far as relevant:
“1. Within six months after the date of entry into force of this law persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to a trial within a reasonable time guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to the Court had been lodged in the course of the impugned proceedings and if the Court has not adopted a decision concerning the admissibility of their case.
...”
On 18 January 2005 Supreme Court (Sąd Najwyższy) adopted a resolution (no. III SPP 113/04) in which it ruled that while the 2004 Act produced legal effects as from the date of its date of entry into force (17 September 2004), its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied.


ITEMID: 001-110900
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GRIGORYEV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3 - Rights of defence)
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
TEXT: 5. The applicant was born in 1967 and is currently serving a prison sentence in Yenakiyeve Penitentiary no. 52.
6. In the morning of 1 March 2002 the “Berkut” special police unit apprehended the applicant, at the home of an acquaintance, in connection with an investigation into a series of armed robberies and murders.
7. The police searched the applicant and discovered a suspicious sachet in his pocket appearing to contain drugs. According to him, the police had planted it on him when he was already handcuffed. The applicant’s arrest was documented as being based on a suspicion of illegal drug possession.
8. On the same day, 1 March 2002, the applicant was placed in administrative detention for three days while the contents of the sachet were analysed.
9. Between 1 and 3 March 2002 he confessed to about fifteen counts of robbery, theft and smuggling, as well as an attempted murder. The applicant also showed to the police a garage and a forest cache where firearms and other weapons and explosives were stored.
10. According to the Government’s submissions, the applicant decided to confess and to cooperate with the police of his own free will. According to the applicant, however, he was coerced into self-incrimination. His account of the events following his arrest is as follows. At about 11 a.m. on 1 March 2002 the applicant was taken to an office in the Kyivskyy District Police Department in Odessa where two law-enforcement officials from Kyiv, D. and Y., who introduced themselves as the Deputy Chief of the Criminal Investigation Unit (заступник начальника Департаменту карного розшуку МВС України) and the Chief of the Main Criminal Investigation Department (начальник Головного управління карного розшуку МВС України) respectively, questioned him in respect of a number of robberies and murders. As the applicant denied any involvement in them or knowledge thereof, Y. summoned several officers and ordered them to force him to confess to about forty instances of such offences. The applicant, being handcuffed, was suspended from a metal bar between two tables, and Y., together with D., delivered numerous blows with a rubber truncheon to various parts of his body. Subsequently a mask was put on the applicant’s face, and other police officers continued to beat him until about 7 p.m. The applicant signed numerous confessions. In the evening D. and Y. checked on him. As they considered that he had not been sufficiently cooperative, the applicant’s ill-treatment continued until 4 March 2002. During that period he was detained in the police station, where he had no contact with his relatives or a lawyer.
11. On 4 March 2002 the applicant was arrested on suspicion of several counts of armed robbery, illegal arms handling and attempted murder. He signed a waiver of legal assistance (its copy in the case file is illegible) and confessed to six counts of robbery.
12. The applicant was then transferred to the Odessa Temporary Detention Facility (“the ITT”).
13. Before that transfer, on 4 March 2002, he was examined by a doctor at the local hospital, who found that he had a chest contusion and post-traumatic neuritis. The doctor also concluded that the applicant’s right hand had been subjected to prolonged constriction.
14. On 5 March 2002 an expert from the Odessa Regional Bureau for Expert Forensic Medical Examinations examined the applicant on the instructions of the investigator. Although the examination report (delivered on 1 April 2002) noted that the applicant’s right wrist was swollen and restricted in movement, its general conclusions were as follows:
“1. The forensic medical examination of [the applicant] has not discovered any external injuries (sores, bruises or wounds).
2. It is impossible to establish the nature of the pathology of the right wrist without an X-ray.”
15. From 5 March 2002 the applicant was represented by Ms Lyakhovetska. During his questioning in her presence on that day he again confessed to six counts of robbery. At the same time, the lawyer requested the investigator to arrange for her client to have a medical examination in view of his complaints of ill-treatment.
16. On 6 March 2002 a judge of the Zhovtnevyy District Court of Odessa remanded the applicant in custody pending trial. According to that ruling, the applicant was to be detained in the Pre-Trial Detention Centre (“the SIZO”). In reality, however, he remained in the ITT.
17. On 16 March 2002 the investigator decided that the applicant was to be detained in the ITT until 19 March 2002, on account of the considerable number of investigative measures yet to be taken.
18. According to the applicant, on 17 March 2002 Y. and D. again tried to obtain confessions from him, this time to several counts of murder. As the applicant resisted, he was handcuffed and beaten by four officers for about thirty minutes. Thereafter he was placed face-down on the floor and immobilised with a chair. The officers then brought an electric generator and attached its wires to the applicant’s ankles and buttocks. After several electric shocks, the applicant signed all the documents handed to him by the police.
19. On 18 March 2002 he complained to his lawyer about these events, and she further raised the complaint before the prosecution authorities.
20. On 19 March 2002 the applicant was transferred to the SIZO, where he was examined by a doctor. As a result, burn marks measuring about 2 x 1 cm were discovered on his both ankles. They were estimated to have been sustained two days earlier as the result of an electric shock.
21. On 5 April 2002 another forensic medical examination of the applicant was carried out. According to the report (delivered on 8 April 2002), eight wounds measuring 1.5 x 2 cm each were discovered on both of his ankles. While the expert noted that it was impossible to establish exactly how and when they had been caused, he referred to the medical certificate of 19 March 2002, according to which the wounds could have been caused by electric burns.
22. On 29 April 2002 the Odessa Regional Prosecutor’s Office (“the ORPO”) opened a criminal case in respect of the allegations of ill-treatment by the applicant and a co-accused under Article 365 § 2 of the Criminal Code (abuse of power associated with violence and degrading treatment). The prosecutor referred, in particular, to the medical certificate of 8 April 2002 confirming that the applicant had sustained injuries possibly originating in electric shocks.
23. Yet another forensic medical expert examination, which had been assigned on 21 June and completed on 2 July 2002, reported the same injuries as before and classified them as minor. Given the ongoing cicatrisation process, it was impossible to establish their origin with precision: the wounds could have been caused either by electric burns or by blunt objects. The report further noted that, according to the medical file, it could not be ruled out that they had been caused by electric shocks. Lastly, the expert answered in the positive the investigator’s question as to whether the wounds in question were in places within the applicant’s reach (“accessible for self-infliction”).
24. On 16 September 2002 the investigator at the Odessa City Prosecutor’s Office (“the OCPO”), to whom the case had apparently been transferred, discontinued the criminal investigation into the ill-treatment allegations, concluding that no indication of a crime could be discerned in the actions of the police officers. This decision was based, on the one hand, on the submissions of the applicant and two co-accused (found to be unreliable), and, on the other, on statements by eighteen police officers, including Y. and D., who either denied any coercion or submitted that they did not know anything (found to be trustworthy). While both Y. and D. admitted that they had questioned the applicant following his arrest on 1 March 2002, they maintained that he had confessed to some of the crimes under investigation of his own free will. When asked how he could explain the electric burns on the applicant’s ankles, Y. stated as follows:
“I can explain them by the sheer inventiveness of this person, who could make explosive devices and who tortured his victims with devious methods.”
25. The investigator also mentioned the medical certificate issued by the SIZO doctor in respect of the applicant’s injuries, without commenting on it. The general conclusions of this decision read as follows:
“... the investigation has established that [the applicant], after [his] arrest, confessed to armed robberies and maintained his confessions during the crime reconstruction exercise. Moreover, [the applicant] showed [the investigators] an underground cache of firearms and ammunition.
However, later these persons [the applicant and his co-accused], who have previous convictions and are bound by joint responsibility, retracted their earlier statements. In an attempt to escape criminal liability for particularly serious crimes, they, personally and with the assistance of their lawyers, sent complaints to various authorities attempting to cast doubt on their own depositions by allegations that they had been beaten by the police and that they had confessed under duress.
The allegations of [the applicant] and the other co-accused are refuted by the ... statements of the police officers.”
26. On 5 November 2002 the ORPO quashed the above decision, concluding that it was not based on a comprehensive and objective investigation.
27. On 16 December 2002 one of the applicant’s cellmates in the ITT at the material time, L., when questioned by the investigator, confirmed that the applicant, on returning to the cell after his questioning, had had injuries and had hardly been able to stand on his feet. The other cellmates, who were also questioned, did not remember anything of that kind.
28. On 28 December 2002 the OCPO investigator again discontinued the criminal investigation, finding nothing criminal in the police officers’ actions. The decision was identical to that of 16 September 2002.
29. On 8 May 2003 the ORPO quashed this second decision also, for non-compliance with instructions.
30. On 14 May 2003 the OCPO investigator in charge of the ill-treatment investigation wrote to the Odessa City Prosecutor (his superior) that it would be more appropriate to transfer the case to the ORPO dealing with the criminal case against the applicant. He noted that the ORPO had criticised his decisions and made the following comment in that regard:
“... compliance or non-compliance with those instructions would not have had any influence whatsoever on the conclusions reached in this case. This case has no prospect of judicial examination.”
31. In July 2003 the pre-trial investigation in the criminal proceedings against the applicant (and the co-accused) was completed and the case was sent for trial to the Odessa Regional Court of Appeal (“the Regional Court”), acting as a court of first instance.
32. On 8 August 2003 the OCPO investigator, who was still in charge of the ill-treatment investigation, discontinued the proceedings by a decision worded identically to his earlier decisions of 16 September and 28 December 2002. The only new part was a remark that the applicant’s cellmates had been questioned and had not confirmed his allegations.
33. On 31 March 2004 the Regional Court examined the applicant’s criminal case and decided that it was necessary to undertake an official investigation (призначити по справі службове розслідування) into the defendants’ allegations about their ill-treatment by the police. This investigation was entrusted to the General Prosecutor’s Office (“the GPO”). It was noted in the court’s ruling that the official investigation in question was required “to take into account not only the explanations of the persons who took part in the investigative measures involving the defendants, but also the medical documents and expert reports on their injuries available in the case file”.
34. On 21 May 2004 the ORPO quashed the OCPO’s decision (see paragraph 32 above). The case file does not contain a copy of this ruling.
35. On 22 November 2004 the OCPO investigator once again discontinued the investigation for lack of corpus delicti in the police officers’ actions. In addition to the earlier reasoning it was noted that, despite all possible efforts, it had been impossible to establish the origin of the applicant’s injuries.
36. On 25 February 2005 the ORPO quashed the above-mentioned decision as based on an incomplete investigation.
37. On 12 April 2005 the OCPO investigator again discontinued the case with a decision identical to that of 22 November 2004.
38. On 11 May 2005 the Regional Court sent a letter to the GPO which stated as follows:
“During the judicial proceedings all the defendants changed their original statements and alleged that they had been subjected to ill-treatment (sometimes amounting to torture) during the pre-trial investigation, as a result of which they were forced to incriminate themselves and plead guilty to criminal offences which they had not committed.
The statements of the defendants are indirectly confirmed by some of the materials in the case-file.
The court requested the [GPO] as early as 31 March 2004 to undertake an official investigation into the defendants’ allegations.
This judicial request was addressed to the GPO because the earlier investigation by the [local prosecuting authorities] had been superficial and failed to take into account all the arguments and the medical documents.
All the materials in the case-file were forwarded to the [GPO] on 1 April 2004.
However, in spite of numerous reminders, the judicial request has not been complied with.
The examination of the evidence was completed on 24 January 2005, and the proceedings were stayed pending the [GPO’s] conclusion.”
39. On 2 August 2005 the ORPO wrote to the President of the Regional Court that, on the instructions of the GPO, it had thoroughly investigated the defendants’ allegations of ill-treatment and dismissed them as unfounded.
40. On 10 October 2005 the Regional Court found the applicant, along with five other persons, guilty of premeditated murder committed with particular cruelty, for profit, repeatedly and following conspiracy by a group of persons, as well as banditry, illegal firearms handling, carjacking, deliberate destruction of the property of others, and multiple counts of theft and armed robbery. The applicant was additionally found guilty of illegal drug possession. He was sentenced to a total of nineteen years’ imprisonment, with confiscation of all his personal property. The court relied on, among other things, the applicant’s confessions made during the pre-trial investigation – in particular, on 1 and 2 March 2002 – even though he had retracted them in the judicial proceedings. It also relied on the material evidence (firearms and ammunition) shown by the applicant to the police on 1 and 2 March 2002. The court found that the applicant’s allegation of ill-treatment in police custody had been thoroughly examined by the official investigation and had been rightly dismissed as unsubstantiated. The term of the applicant’s sentence was to be calculated from 1 March 2002.
41. The applicant, both personally and through his lawyer, appealed in cassation. He submitted that the first-instance court had distorted the facts of the case and that his conviction had been based mainly on confessions obtained from him by coercion and in breach of his right to legal assistance. He emphasised in this connection that the Regional Court had relied on the investigation of his illtreatment allegations, which had earlier been recognised as superficial and otherwise flawed. It was for that reason that the trial court had decided to entrust the official investigation of his allegations to the General Prosecutor’s Office, since the earlier investigation undertaken by the local prosecution authorities had not taken into account all his arguments or the medical documents.
42. The applicant further emphasised that he (as well as the other defendants) had never been assigned victim status in the criminal investigation regarding the ill-treatment allegations. He noted that on 12 April 2005 the OCPO had discontinued the investigation, finding that there was no case to be examined, and the Regional Court’s assignment of the official investigation to the GPO had never been implemented. The applicant pointed out that the fact that he had sustained injuries had not even been mentioned in the final decision. Lastly, he criticised the first-instance court for not having given any consideration to his continued detention in the ITT (for eighteen days instead of the legal maximum of three days).
43. On 4 September 2007 the Supreme Court rejected the applicant’s appeal in cassation. It concluded that his guilt was sufficiently proved by the evidence, including his own confessions. As to the applicant’s complaint of a violation of his right to legal assistance, the Supreme Court noted that he had had his rights in that respect explained to him following his arrest on 4 March 2002 and that he had been legally represented thereafter. In so far as his allegation of ill-treatment was concerned, the Supreme Court referred to the investigation into the matter by the prosecution authorities undertaken at the request of the first-instance court.
44. On 19 December 2008 the GPO returned the case file on the ill-treatment allegations to the ORPO as “no longer required”. It noted in its letter: “the General Prosecutor’s Office has not established any grounds for setting aside the decision made”.
45. Articles 59 and 63 of the Constitution concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25).
46. The provisions concerning the obligation to institute criminal proceedings and investigate a crime can be found in the judgment of 27 November 2008 in the case of Spinov v. Ukraine (no. 34331/03, § 33).
47. According to Article 263 of the Code of Administrative Offences, a person suspected of a drug offence may be detained for up to three days if the suspected drug needs to be analysed.
48. Under Article 315-1 of the Code of Criminal Procedure, if a court requires verification or clarification of the factual information obtained during a pre-trial investigation, it may request the investigating authority, by a judicial request (судове доручення), to undertake certain investigative activities within an established time-limit.
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1
6-3


ITEMID: 001-108433
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF STANDARD VERLAGS GMBH v. AUSTRIA (No. 3)
IMPORTANCE: 3
CONCLUSION: Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
JUDGES: Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
TEXT: 5. The applicant company is a limited liability company based in Vienna.
6. The applicant company is the owner of the daily newspaper Der Standard. In its issue of 4 April 2006, in the economics section, the applicant company published an article dealing with the investigation into losses incurred by Hypo Alpe-Adria Bank. The article reads as follows:
“Haider’s Hypo now also facing criminal investigation
After the Financial Market Authority, the prosecution service is now also looking into allegations of embezzlement against Hypo Alpe-Adria Bank. Jörg Haider has accused the judicial authorities of being overzealous and politically motivated.
Klagenfurt – Following the discovery of massive speculative losses from swap deals, the floodgates are threatening to open at Carinthia’s Hypo Alpe-Adria Bank. On Monday the Klagenfurt public prosecutor’s office initiated an investigation in respect of Hypo senior managers. Chief public prosecutor Gottfried Kranz said that the investigation, concerning suspected embezzlement, had been launched by the prosecution service of its own motion and that it would take the findings of the Financial Market Authority audit into account.
Regional governor Jörg Haider criticised the “judicial authorities’ overzealousness” and spoke of a “politically motivated ploy to deflect attention away from the Bawag scandal”. His deputy Martin Strutz described the 328 million euros lost as a result of the speculation as a “molehill that should not be made into a mountain”.
Wolfgang Kulterer, of Hypo Alpe-Adria’s executive board, and Jörg Haider, who represents Hypo’s shareholders and also (through Landesholding) performs a supervisory function at the bank, had previously blamed the speculative losses of 328 million euros on an individual member of the bank’s treasury department, Christian Rauscher, the son of a former SPÖ regional government member with responsibility for finance. In 2004 Rauscher was not dismissed but merely demoted and transferred, being relieved of his duties only after the incident of the losses had become known.
Rauscher had been in charge of the treasury department, together with Andreas Zois, in 2004. The department was, however, under Kulterer’s personal authority as chairman of the executive board. To relieve Kulterer of his responsibilities as regards the treasury department, Josef Kircher was brought in to join Günther Striedinger and Thomas Morge on the Hypo board in 2004. At the same time, the 25% managing shareholder of Confida Holding, Karl-Heinz Moser, was promoted to become chairman of the Hypo supervisory board. Confida’s Klagenfurt subsidiary, Confida Treuhand GmbH, audited Hypo’s accounts. The 2004 financial statements, in which the massive speculative losses were intended to be adjusted, were signed by the Confida auditors Walter Grojer and Robert Zankl, the former of whom frequently crops up in circles close to Haider. As the swap losses were evidently too large-scale for Confida’s Klagenfurt subsidiary to handle, the audit firm Deloitte & Touche was consulted and promptly informed the Financial Market Authority.
Meanwhile, Hypo’s flotation, which surprisingly had recently been brought forward to 2006, is very much up in the air. How matters are to proceed will now probably be on the agenda of Hypo’s shareholder meeting on Wednesday.
Against this background, Hypo Alpe-Adria’s interest in Bank Burgenland also appears in a new light. In 2004 Hypo submitted the last and the best bid, but suddenly withdrew its offer. Buying Bank Burgenland would have made sense because at the time it had approximately 300 million euros in losses carried forward in its accounts, which would have allowed Hypo to save on capital-gains tax. It is possible that the acquisition failed to materialise because of the substantial losses from the botched swap transaction.”
7. On 16 June 2006 Mr Rauscher brought proceedings against the applicant company for disclosure of his identity in breach of section 7a of the Media Act (Mediengesetz). He submitted that he was not a public figure and that his position in the bank had not been such as to justify the disclosure of his name. He asserted that when authorising the transactions at issue he had acted in accordance with his instructions and under the supervision of his superior’s and the bank’s risk management. The publication of his name had had negative repercussions on his professional advancement and had not been justified by any public interest.
8. In its submissions in reply, the applicant company contended that the article had not depicted the claimant as the person responsible for the losses but rather as the “scapegoat”. The public interest in the disclosure of his name outweighed his private interests since he had held a leading position in the bank and there was also a connection with the political sphere on account of his father’s position as a former regional government member responsible for finance (Finanzlandesrat). Moreover, the article had reported on the issue in a neutral manner.
9. By judgment of 18 July 2006 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) dismissed Mr Rauscher’s action.
10. It noted that the claimant had been head of Hypo Alpe-Adria’s treasury department which had incurred losses of 288 to 328 million euros (EUR) in 2004. It also noted that the article, which reported on the investigation into embezzlement by the public prosecutor’s office and mentioned the claimant’s full name as the person who was being blamed for these losses, contained the information that the claimant was suspected of a criminal offence.
11. The Regional Court observed that section 7a(1) of the Media Act required a weighing of the claimant’s interest in the protection of his identity and the public interest in its disclosure.
12. It noted that the claimant, who had lost his job at Hypo Alpe-Adria, was unemployed. The mentioning of his name in the context of the speculation scandal as being suspected of the criminal offence of embezzlement was certainly detrimental to his professional advancement within the meaning of section 7(2)(2) of the Media Act. However, it had to be assumed that the claimant’s former position and activity at Hypo Alpe-Adria was known in banking and business circles even without the publication of his name in Der Standard.
13. It remained to be examined whether there was an overriding public interest in the disclosure of the claimant’s name. The court noted that it had heard the claimant as a witness and had – on the basis of his submissions – found that the following facts were established. Forty-five per cent of Hypo Alpe-Adria was owned by the Land of Carinthia. Between May and November 2004 the bank had incurred losses of 288 to 328 million euros as a result of foreign currency speculations. The claimant had been the head of the bank’s treasury department from 1996 until 2006, when he had terminated his employment on his own initiative. In his capacity as head of the treasury he had had to authorise or refuse foreign currency transactions. The losses had thus been incurred under his responsibility. He had only been answerable to the bank’s executive board, which consisted of three members. The claimant’s father had been a regional government member responsible for finance until 1996. While the claimant was head of the bank’s treasury, his father had been on the bank’s supervisory board.
14. The Regional Court accepted that the claimant, although having been a senior employee of the bank, was not a public figure. Thus, he did not have “a position in society” within the meaning of section 7a(1) of the Media Act, which would justify the publication of his name. Nor did the fact that his father had held such a position justify the disclosure of the claimant’s name.
15. Nevertheless, the Regional Court held that there was a connection between the claimant’s professional activity and public life for the purposes of this provision: as the Land owned 45% of the bank, the Land and consequently the taxpayer had to carry a considerable share of the losses. The claimant had been in a leading position, being responsible for the very department which had caused the losses. The public, or in other words, the taxpayer thus had an overriding interest in receiving information about the identity of those who were responsible for the enormous losses. Consequently, Der Standard had been entitled to mention the claimant’s name.
16. On 14 February 2007 the Vienna Court of Appeal (Oberlandesgericht) granted the claimant’s appeal and ordered the applicant company to pay 5,000 euros (EUR) in compensation to the claimant and to reimburse his procedural costs.
17. The Court of Appeal agreed with the Regional Court that the claimant had been presented as someone suspected of embezzling a large sum of money. However, it found that the Regional Court had wrongly weighed the conflicting interests at issue:
“The Regional Court’s finding that the public interest in the publication of the claimant’s name outweighed his interest in the protection of his identity cannot, however, be endorsed. The former must be assessed against an objective standard and, in particular, with reference to the identity of the person concerned; for that reason the mere public interest in the reporting of a crime does not by itself suffice. In accordance with settled case-law, when assessing whether the identity of persons listed in section 7a(1) of the Media Act may be revealed, a strict standard must be applied, especially as the general public has, in principle, no legal right to know the identity of the persons concerned. ...
At the time the article was published, the investigation into the “Hypo Alpe-Adria affair” was still in the early stages. According to the claimant, no proceedings had yet been brought against him, and the subject matter of the article in question was only the rumours of accusations against him by two senior bank officials. However, at this time there was no independent value in the disclosure of the claimant’s name that would have outweighed the legitimate interest in protecting his anonymity. The claimant’s name was clearly disclosed in order to make a connection with his father, the former regional government member responsible for finance, and by doing so create a “story” which would satisfy the public’s curiosity and appetite for the sensational to a high degree. In practice, the disclosure of the claimant’s name had no informative value whatsoever and so the weighing of interests must operate in favour of the claimant. ...
The Regional Court is right in stating that the public has a very substantial interest in finding out who is responsible for these enormous losses. However, this does not justify the disclosure of the claimant’s identity in a situation where the suspicions are so vague and uncertain. ...
Since the first-instance court found that the publication of the claimant’s name had had considerable negative consequences for him, and taking into account the gravity of the accusation and the wide circulation of Der Standard, compensation in the amount of EUR 5,000 seems to be appropriate. ...”
18. Section 7a of the Media Act, so far as material, provides as follows:
“(1) Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts or
2. is suspected of having committed, or has been convicted of, a punishable offence, and where legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person’s position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. ....”
(2) Legitimate interests of the victim shall in any event be injured if the publication
1. in the case of subsection (1)1 is such as to give rise to an interference with the victim’s strictly private life or to his or her exposure,
2. in the case of subsection (1)2 relates to a juvenile or merely to a lesser indictable offence or may substantially prejudice the victim’s advancement.
...”
19. On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. The Appendix to that Recommendation contains the following principles:
“Principle 1 - Information of the public via the media
The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles.
Principle 2 - Presumption of innocence
Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused.
...
Principle 8 - Protection of privacy in the context of on-going criminal proceedings
The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”
VIOLATED_ARTICLES: 10
VIOLATED_PARAGRAPHS: 10-1


ITEMID: 001-92548
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: GERAGUYN KHORHURD PATGAMAVORAKAN AKUMB v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall
TEXT: 1. The applicant, Geraguyn Khorhurd Patgamavorakan Akumb, is a non-governmental organisation (“the applicant organisation”) which was established in 1997 and has its registered office in Yerevan. It was represented before the Court by its head, Mr R. Torosyan. 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.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 25 May 2003 a parliamentary election was held in Armenia. The applicant organisation acted as an election observer during the election. According to the applicant organisation, in the pre-election stage it had disclosed numerous violations connected with the use of pre-election funds of certain parties which allegedly led to the free broadcast of the election campaign by certain TV companies being carried out mainly in favour of a number of parties.
4. The applicant organisation alleged that on 26 May 2003 its head had applied to the Central Election Committee (ՀՀ կենտրոնական ընտրական հանձնաժողով – “the CEC”) with letter no. 191, sent by registered mail, having the following content:
“To receive copies of documents
To Central Election Committee
Application
Based on the requirements of Article 30 § 1 (2) of the Electoral Code of Armenia and Paragraph 9 of the Rules of Implementation of an Observer Mission, I request that an observer of our organisation [M.S.] be allowed, according to the established procedure, to receive copies of a number of documents related to the parliamentary election of 2003, in particular:
1. all decisions taken by the CEC after 12 March [2003];
2. all records of the meetings held by the CEC after 12 March [2003]; [and]
3. registers of voluntary payments to pre-election funds and expenses of the parties (unions of parties) participating in the parliamentary election through the proportionate ballot.”
5. The applicant organisation further alleged that on 29 May 2003 the lawyer of the CEC verbally informed its head that the CEC still had time to reply to its request. It also alleged that on the same date its head addressed to the Chairman of the CEC letter no. 205, similarly by registered mail, which stated as follows:
“...on 26 May [2003] we applied to the CEC requesting to be allowed to receive copies of a number of documents related to the parliamentary election of 2003.
However, so far you have not satisfied our lawful request[. I]n this connection we once again request [that you] provide us with copies of the documents in question.”
6. The Government contested these allegations and argued that the letters in question were never submitted to the CEC.
7. On 3 June 2003 the applicant organisation contested the CEC’s alleged inaction before the courts, seeking to oblige it to provide copies of the requested documents.
8. On 13 June 2003 the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) held a hearing on the case.
9. On 19 June 2003 the Kentron and Nork-Marash District Court of Yerevan held another hearing and decided to dismiss the applicant organisation’s application. The District Court found that the applicant organisation had failed to submit any evidence that it had applied to the CEC with a request for copies of documents and had been refused.
10. The applicant organisation alleged that it had not been notified about these hearings and its representative was therefore unable to attend.
11. On 1 July 2003 a copy of this judgment was served on the applicant organisation. On the same date, the head of the applicant organisation requested access to the materials of the case file. The applicant organisation alleged that no reply was received to this request, while the Government alleged that this request was never actually filed with the District Court.
12. On 2 July 2003 the head of the applicant organisation, in reply to another request, was granted access to the case file materials.
13. On 3 July 2003 the applicant organisation lodged an appeal. Attached to its appeal the applicant organisation submitted copies of its letters of 26 and 29 May 2003 and of front pages of two post office receipts.
14. On 19 August 2003 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան), with reference to Articles 48 and 49 of the Code of Civil Procedure, decided to dismiss the applicant organisation’s appeal on the ground that it had failed to submit evidence that it had sent its letter of 26 May 2003 to the CEC. The Court of Appeal found that the copy of the post office receipt attached to the appeal could not serve as such proof because there was no postmark on it certifying that the letter had been handed in at the relevant post office.
15. The applicant organisation submitted that its representative refused to participate in this hearing because of allegedly having previously been denied access to the case file materials.
16. On 1 September 2003 the applicant organisation lodged an appeal on points of law. Attached to its appeal the applicant organisation submitted copies of the same post office receipts with postmarks dated 26 and 29 May 2003 photocopied on their reverse.
17. On 12 December 2003 the Court of Cassation (ՀՀ վճռաբեկ դատարան) dismissed the applicant organisation’s appeal. The Court of Cassation, having recapitulated the findings of the Court of Appeal, stated, inter alia:
“As regards the argument raised in the appeal that letters nos. 191 and 205 have been sent, the [post office] receipts submitted as proof are not proper evidence since they bear no postmarks.”
18. The relevant provisions of the Electoral Code, as in force at the material time, read as follows:
“1. Elections are prepared and conducted publicly. ...”
“1. [The following physical and legal persons] have the right to an observer mission during an election: (1) international organisations; (2) representatives of foreign states; [and] (3) those [domestic] and foreign non-governmental organisations whose statutory aims include questions of democracy and human rights protection and which do not support [any of] the candidates or the parties.
2. The procedure for carrying out an observer mission shall be established by the Central Election Committee.”
“1. Organisations and persons mentioned in Article 28 of this Code may carry out an observer mission after having been accredited by the Central Election Committee.
...
6. The powers of persons carrying out an observer mission shall terminate ten days after the end of an election.”
“1. An authorised election assistant, an observer and a representative of mass media have the right: ... (2) to have unimpeded access to the election documents, samples of ballot papers, decisions of an election committee and records of its meetings, as well as to receive their copies and to take extracts.
...
5. No limitations can be placed on the rights of an authorised election assistant, an observer and a mass media representative. ...”
19. The relevant provisions of the Code of Civil Procedure, as in force at the material time, read as follows:
“Any party to the proceedings must prove the circumstances on which his [or her] claims and objections are based.”
“1. Evidence shall be produced by the parties to the proceedings. ...”
“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.”
“1. An application seeking to annul unlawful acts of public authorities, local self-government bodies and their officials shall be submitted to a court dealing with civil cases or the Commercial Court, pursuant to their jurisdiction over cases. ...”
“Cases on appeals lodged against judgments of the first instance courts, which have not entered into force, are examined by the Civil Court of Appeal (hereafter, Court of Appeal).”
“1. The Court of Appeal is not bound by the appeal and shall examine the case anew on the basis of the existing and newly produced evidence. ...”
“Appeals on points of law lodged against judgments of the first instance courts, the Commercial Court and the Court of Appeal, which have entered into force, and judgments of the Commercial Court and the Court of Appeal, which have not entered into force, are examined by the Civil Chamber of the Court of Cassation (hereafter, Court of Cassation).”
“An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights...”
“3. The Court of Cassation is not entitled to establish or consider as proven facts which have not been established by the contested judgment or have been rejected by it, to determine whether or not this or that piece of evidence is reliable, 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.”
20. The relevant provisions of the Rules, in force at the material time, read as follows:
“9. An observer has the right: ... to have unimpeded access to the election documents, samples of ballot papers, decisions of an election committee and records of its meetings, as well as to receive their copies and to take extracts; ...to give press conferences and to address mass media in accordance with the legislation of Armenia.
...
12. An observer shall submit copies of the reports on the summarising of the election results and on the conduct of the election to the Central Election Committee...”
“14. The material and financial costs of an observer’s activities shall be borne by the party commissioning the observer or by [the observer’s] own financial means.
15. The relevant election committees shall provide the necessary assistance to an observer in the implementation of the rights envisaged by Paragraph 9 of these Rules.”


ITEMID: 001-23197
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: HODY v. SLOVAKIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Štefan Hody, is a Slovakian national, who was born in 1947 and lives in Bratislava. He is represented before the Court by Mr J. Jurovský, a lawyer practising in Piešťany. The respondent Government were represented by Mr P. Vršanský, their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 18 May 1994 the applicant requested the enforcement of a payment order of 20 April 1994 by which a sum of money had been awarded to him.
The case was examined several times by the Vranov nad Topľou District Court and the appellate court, and on 28 April 1999 the President of the Vranov nad Topľou District Court admitted that there had been undue delays in the enforcement proceedings.
On 23 October 2002 the Vranov nad Topľou District Court discontinued the proceedings as the debtor’s truck which the applicant had proposed to sell had been destroyed.
Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.
As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows:
“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.
2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 have been violated as a result of a final decision, by a particular measure or by means of any other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of a failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms shall take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation to that existing prior to the violation.
3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 have been violated.” ...
The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002.
After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred.
According to an explanatory letter by the president of the Constitutional Court of 6 June 2002, nothing has prevented the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings were instituted also before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed.


ITEMID: 001-84648
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: LYSZCZYNA v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Wladislaw Lyszczyna, is a German national who was born in 1945 and lives in Düsseldorf.
The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
Until his emigration to Germany in February 1984 the applicant lived and worked in Katowice (Poland). When applying for benefits in Germany the applicant made differing statements as to his employment or working record in Poland. In an application to the Federal Insurance Fund for Miners (Bundesknappschaft – hereinafter called “Federal Insurance Fund”) the applicant submitted that he had been self-employed prior to leaving Poland. Yet in an application for unemployment benefits to the Federal Labour Office the applicant submitted that he had been employed at the material time. In Germany the applicant collected unemployment benefits and temporary allowances (Übergangsgeld). On 3 October 1984 and 21 December 1992 he had a heart attack.
On 11 April 1995 the applicant applied for an invalidity pension to the Federal Insurance Fund submitting that he had been self-employed in Poland until 31 January 1984 and had made contributions to the Polish pension scheme during that time. On 26 September 1995 the Federal Insurance Fund rejected his request finding that he had not contributed to the pension scheme for a sufficiently long period. On 2 October 1995 the applicant lodged an objection with the Federal Insurance Fund. On 28 February 1996 the Commission for Objections of the Federal Insurance Fund (Widerspruchsstelle) rejected his objection. On 20 May 1996 the applicant offered to contribute retroactively (nachentrichten) to the pension scheme for the month of January 1984. In October 1997 the Federal Insurance Fund rejected the applicant’s request.
On 7 March 1996 the applicant brought an action against the Federal Insurance Fund in the Düsseldorf Social Court arguing inter alia that he would be entitled to make contributions to the pension scheme retroactively for the month of January 1984.
In April 1998 the court obtained information from the Polish Pension Fund relating to the applicant’s contributions to the Polish pension scheme. According to the Polish Pension Fund the applicant had been self-employed and had contributed to the public pension scheme until 31 December 1983.
On 12 January 1999, following a hearing, the Düsseldorf Social Court rejected the applicant’s action confirming the findings of the Federal Insurance Fund. The court noted in addition that the time-limit for contributing retroactively had elapsed.
On 18 February 1999 the applicant lodged an appeal with the Social Court of Appeal. On 18 May 1999 the court ordered the translation of Polish documents submitted by the applicant. On 24 June 1999 the court requested the applicant to submit the original Polish documents.
On 17 June 1999, 9 November 2001, 13 June and 12 September 2002, 7 April and 18 September 2003 the court held hearings and questioned four witnesses altogether.
Following a change of Social Code No. 6 as of 1 January 2001 the applicant requested the application of the new legal provisions to his case.
On 18 September 2003 the Social Court of Appeal rejected the applicant’s appeal. The court acknowledged that he had been invalid since his heart attack on 21 December 1992, but confirmed that he had not contributed to the pension scheme for a sufficiently long period. It recalled that according to the provisions of Social Code No. 6 an insured would have had to contribute to the pension scheme for at least 36 months during the last five years preceding the occurrence of invalidity. That period could be extended exceptionally by taking into account previous contributions or periods during which certain benefits had been collected. Although the court took into consideration previous contributions made to the Polish pension system and periods during which the applicant had received unemployment benefits the applicant still did not reach the required minimum number of months. A further exceptional extension was rendered impossible because the court found that the applicant had not made contributions in respect of January 1984. The court pointed out that according to the Polish Pension Insurance the applicant had only made contributions until 31 December 1983. As regards the applicant’s own submissions the court found them to be inconsistent, since he had made different statements as to his employment or working record in the past.
Furthermore, the court had grave doubts as to whether the applicant had actually been unemployed in Germany while receiving unemployment benefits since the witnesses questioned had indicated that he had worked illicitly. In addition the applicant had carried a licence to run a bar. However, the court left that question open since the absence of contributions for the month of January 1984 excluded an invalidity pension in any event. Lastly, the court held that also the application of the new legal provisions of Social Code No. 6 would not entitle the applicant to invalidity pension. The court refused the applicant leave to appeal on points of law.
The applicant then lodged a complaint against the refusal of leave to appeal on points of law with the Federal Social Court, inter alia contesting the application of Social Code No. 6. The complaint reached the Federal Social Court on 26 January 2004. The applicant was granted an extension of one month of the time-limit for substantiating his complaint upon his own motion. His submissions reached the court on 5 April 2004 and on 24 June 2004 the Federal Social Court rejected the applicant’s complaint as inadmissible stating that he had not sufficiently substantiated his complaints.


ITEMID: 001-113551
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF LASOTA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
JUDGES: David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1957 and lives in Sarnów.
6. The applicant is married and has two children. Prior to his application for an earlyretirement pension he had been employed for 25 years and had paid social security contributions to the State.
7. In July 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an earlyretirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the socalled “EWK” pension.
8. Along with his application for a pension, the applicant submitted, among other documents concerning his son’s health condition, a medical certificate issued by a specialist medical centre on 15 May 2001. The certificate stated that the child (born in 1994) suffered from mild asthma and bronchitis (astma oskrzelowa lagodna i spastyczne zapalenie oskrzeli) and that he was in need of his parent’s constant care.
9. On 9 August 2001 the Rzeszów Social Security Board (“the SSB”) issued a decision granting the applicant the right to an earlyretirement pension as of 1 July 2001 in the net amount of 685 Polish zlotys (PLN).
10. On 20 August 2002 the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On 13 September 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.
11. On 19 September 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Board reopened the proceedings, revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance.
12. The applicant appealed against the respective decisions divesting him of the right to an earlyretirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the applicant’s original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights.
13. On 29 May 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) dismissed the appeal. The Regional Court concluded on the basis of the evidence that the applicant’s child did not require his father’s permanent care since his health condition did not significantly impair his bodily functions. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he did not satisfy the requirement of necessary permanent care.
14. The applicant further appealed against the firstinstance judgment.
15. On 20 November 2003 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the appeal.
16. On 29 April 2004 the Supreme Court (Sąd Najwyższy) refused to entertain the cassation appeal lodged by the applicant.
17. Following the social security proceedings the applicant was not ordered to return his earlyretirement benefits paid by the Social Security Board, despite the revocation of his right to an earlyretirement pension.
18. The applicant submitted that after revocation of the EWK pension he remained unemployed until April 2007. During this time he received no social or unemployment benefits. His wife had been employed seasonally as a heating system operator in schools. They owned a farm which was too small to qualify them for the social security scheme for farmers and from which they derived no income.
19. The Government submitted that the applicant took up employment in April 2007. They failed to specify the amount of his salary. However, after 2007 the family’s yearly income increased from PLN 6,000 (approx. 1,400 euros (EUR)) to PLN 30,000 (approx. EUR 7,000). The applicant’s wife worked between 2001 and 2010 during the winter months only. The Government maintained that the applicant’s wife also owned a small farm which might have constituted an additional source of income.
20. In addition, the Government submitted information as regards the various types of social benefits available in Poland. However, they did not specify which of those benefits, if any, were available in the applicant’s situation.
21. Under the relevant laws currently in force, it appears that the applicant will qualify for a regular retirement pension in 2022.
22. Some 130 applications arising from a similar fact pattern have been brought to the Court. The majority of the applicants form the Association of Victims of the SSB (Stowarzyszenie Osób Poszkodowanych przez ZUS) (“the Association”), an organisation monitoring the practices of the Social Security Board in Poland, in particular in the Podkarpacki region.
23. Out of all applications lodged with the Court, about twentyfour applicants decided not to lodge a cassation appeal against the judgment of the Court of Appeal given in their case.
24. One hundredandfour applicants lodged cassation appeals against the final judgments given in their cases. The Supreme Court entertained and dismissed on the merits fifteen appeals. In eightyone applications the Supreme Court refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require the Supreme Court to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts. In the remaining eight cases cassation appeals were rejected for failure to comply with various procedural requirements.
25. The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of Moskal v. Poland, no. 10373/05, § 3134, 15 September 2009.
26. The social security scheme for farmers is regulated by the Farmers’ Social Security Act of 20 December 1990 (“the 1990 Act”; ustawa o ubezpieczeniu społecznym rolników).
27. The reopening of the proceedings concerning the earlyretirement pension is regulated in section 114 (1) of the Law of 13 October 1998 on the system of social insurance (Ustawa o systemie ubezpieczeń społecznych), which at the relevant time read as follows:
“The right to benefits or the amount of benefits will be reassessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered.”
On 1 July 2004 a new subparagraph 114 (1) a was added, which reads as follows:
“Section 1 shall apply respectively, if, after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension, disability pension or its amount.”
28. A party to civil proceedings could, at the material time, lodge a cassation appeal with the Supreme Court against a judicial decision of a secondinstance court. A party had to be represented by an advocate or a legal adviser.
29. Article 3931 of the Code of Civil Procedure as applicable at the material time listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law as a result of its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
30. Pursuant to Article 393¹³ the Supreme Court, having allowed a cassation appeal, could quash the challenged judgment in its entirety or in part and remit the case for reexamination. Where the Supreme Court failed to find nonconformity with the law, it dismissed the cassation appeal. According to Article 39315 if the cassation appeal was wellfounded the Supreme Court could also amend the impugned judgment and adjudicate on the merits.
31. On 22 June 1999 the Ombudsman made an application to the Constitutional Court, asking for section 186 § 3 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych) (“the 1998 Law”) to be declared unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. More specifically, the Ombudsman submitted that the introduction of an agelimit in respect of persons taking care of a child, which in essence amounted to a deprivation of the right to a benefit, constituted a violation of the principle of equality set forth in Article 32 § 1 of the Constitution.
32. On 4 January 2000 the Constitutional Court (K18/99) declared the impugned section 186 § 3 of the 1998 Law unconstitutional in so far as it restricted the application of the 1989 Ordinance to persons born before 1 January 1949. The Constitutional Court reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits.
33. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114 (1)(a) of the 1998 Law to be declared unconstitutional in so far as it allowed the SSB to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted.
34. On 28 February 2012 the Constitutional Court (K5/11) declared the impugned section 114 (1)(a) of the 1998 Law unconstitutional in so far as it allowed the SSB to reopen such proceedings following a new assessment of evidence which had already been submitted.
VIOLATED_ARTICLES: P1
VIOLATED_PARAGRAPHS: P1-1
VIOLATED_BULLETPOINTS: P1-1-1


ITEMID: 001-78595
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF SOLOVYEV v. UKRAINE
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Peer Lorenzen
TEXT: 4. The applicant was born in 1939 and lives in the town of Bat-Yam, Israel.
5. On 26 June 2001 the Commercial Court of the Kherson Region commenced bankruptcy proceedings against the State Enterprise “Khersonskyy Sudnobudivelnyy Zavod”, the applicant's former employer. According to the Government, these proceedings are still pending.
6. On 4 December 2002 the Komsomolskyy District Court of Kherson ordered that company to pay the applicant UAH 9,879 in salary arrears.
7. On 16 January 2003 the Komsomolskyy District Bailiffs' Service of Kherson instituted enforcement proceedings.
8. By letter of 11 September 2003, the Kherson Regional Department of the Ministry of Justice informed the applicant that the judgment in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor company and that the procedure for the forced sale of assets belonging to it had been blocked by the Law on the Introduction of a Moratorium on the Forced Sale of Property of 29 November 2001.
9. On 6 October 2004 the State Property Fund sold 83.61% of the debtor's share capital to a private company. Under the terms of the sales contract, the latter undertook to pay all the salary-related debts of the debtor company.
10. On 22 June 2005 the full amount of the judgment debt was transferred to the deposit account of the Bailiffs' Service. The applicant was invited to submit his bank account details to the Bailiffs' Service. On an unspecified date the applicant received the full amount of the debt.
11. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18 and 39-41, 27 July 2004).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-4973
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: KANTNER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is an Austrian national, born in 1955 and living in Bregenz. He is a tax consultant by profession. He is represented before the Court by Mr. W.L. Weh, a lawyer practising in Bregenz.
A.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 January 1994 the applicant drove on the Inntal motorway in Tyrol from Innsbruck in the direction of the Arlberg.
On 30 March 1994 the Landeck District Administrative Authority (Bezirkshauptmannschaft) issued a penal order (Straferkenntnis) against the applicant. It found the applicant guilty of having committed the following two speeding offences contrary to the Road Traffic Act (Straßenverkehrsordnung) on 30 January 1994 on the Inntal motorway:
1) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 165 km/h, during the night at 22.55 hours at road kilometre 141,5 in the district of Schönwies. This constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic (Verordnung des Bundesministers für öffentliche Wirtschaft und Verkehr, Federal Gazette 527/1989).
2) The applicant had also exceeded the speed limit of 80 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 60 km/h at 22.57 hours at road kilometre 145,4 in the district of Zams. This constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act.
The applicant was fined ATS 3000 and ATS 4000 respectively, with imprisonment of 3 days and 4 days in default. He did not appeal against the penal order and paid the fine imposed on him.
On 11 August 1994 the Imst District Administrative Authority issued a penal order against the applicant which related to the following six offences of speeding committed on 30 January 1994 on the Inntal motorway:
1) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 160 km/h, during the night at 22.42 hours at road kilometre 112,0 in the district of Stams. This constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic.
2) The applicant had also exceeded the speed limit of 100 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 40 km/h at 22.44 hours at road kilometre 117,5 in the district of Silz. This constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act.
3) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 150 km/h, during the night at 22.46 hours at road kilometre 123,5 in the district of Haiming. This act constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic.
4) The applicant had exceeded the speed limit of 80 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 40 km/h at 22.47 hours at road kilometre 125,8 in the district of Rappen. This constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act.
5) The applicant had driven in excess of the maximum speed permitted on the Inntal motorway, namely at 160 km/h, during the night at 22.53 hours at road kilometre 136,0 in the district of Mils. This constituted an offence under Section 99 § 3 (a) of the Road Traffic Act, in conjunction with Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic.
6) The applicant had exceeded the speed limit of 100 km/h imposed by a road sign (Section 52 sub-section A (10 a) of the Road Traffic Act) by 20 km/h at 22.54 hours at road kilometre 137,0 in the district of Mils. This act constituted an offence under Section 52 sub-section A (10 a) of the Road Traffic Act.
The applicant was fined ATS 3000, 2000, 2000, 2000, 3000 and 500 respectively, with imprisonment of 3 days, 2 days, 2 days, 2 days, 3 days and 12 hours in default. Thus, the fine imposed amounted to ATS 12.500 or 12 and 1/2 days’ imprisonment in default.
On 14 September 1994 the applicant appealed. He submitted that he had already been fined for speeding on that day on the Inntal motorway by the Landeck District Administrative Authority and that it was unfair to impose further fines on him.
On 19 December 1994 the Independent Administrative Panel for the Tyrol (Unabhängiger Verwaltungssenat) dismissed the applicant’s appeal.
On 9 March 1995 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof), in which he submitted that his conviction for eight offences of speeding in the course of one journey was an exaggerated formalism and inherently unfair. He submitted, in particular, that Section 22 of the Code of Administrative Offences (Verwaltungsstrafgesetz), which provided that in one penal order a penalty for each single offence be imposed, should be annulled (see “Relevant Domestic Law” below).
On 13 June 1995 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. This decision was served on the applicant’s lawyer on 3 July 1995. The applicant did not lodge a complaint with the Administrative Court (Verwaltungsgerichthof).
B. Relevant domestic law
Section 52 sub-section A (10 a) of the Road Traffic Act (Straßenverkehrsordnung) prohibits driving in excess of the speed limit indicated on a road sign.
Section 1 of the Ordinance of the Federal Minister for Public Economy and Traffic (Verordnung des Bundesministers für öffentliche Wirtschaft und Verkehr, Federal Gazette 527/1989) prohibits driving in excess of the maximum speed limit permitted on the Inntal motorway at night. This ordinance is based on the Road Traffic Act.
Under section 99 (3) (a) of the Road Traffic Act, breaches of its provisions and its subsidiary ordinances are punishable with a fine of up to ATS 10.000, with imprisonment of up to two weeks in default of payment.
Section 22 of the Code of Administrative Offences (Verwaltungsstrafgesetz), insofar as relevant, reads as follows:
“(1) If somebody has committed several administrative offences by performing different acts or if one single act constitutes at the same time different offences which do not exclude each other, a penalty has to be imposed for every single offence.”