ITEMID: 001-95594
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: ESPOSITO v. ITALY
IMPORTANCE: 2
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Antonio Esposito, is an Italian national who was born in 1940 and lives in Rome. He was represented before the Court by Mr P. Cerruti, a lawyer practising in Naples. The Italian Government (“the Government”) were represented by their Agent, Mr I.M. Braguglia, and their co-Agent, Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant, a judge, is currently a member of the Court of Cassation (Second Criminal Division).
The facts of the present case concern proceedings for the applicant’s compulsory transfer on the ground of “environmental incompatibility” (incompatibilità ambientale), instituted by the National Council of the Judiciary (“the NCJ”) at a time when the applicant held office in another court. In the course of the proceedings, two members of the NCJ (A. and C.) made a number of statements which the applicant considered defamatory. At the end of his term as a member of the NCJ, A. was appointed as a judge of the Court of Cassation (Third Civil Division).
The proceedings ended with a decision by the NCJ to transfer the applicant.
The applicant subsequently applied to the Regional Administrative Court (“the RAC”), which set aside the decision on 27 March 1996, holding in particular that the statements in issue concerned “new information” of which the applicant should have made aware beforehand in order to have the opportunity to make submissions in reply. The NCJ did not appeal against that judgment, which became final.
In response to a request by certain members of the NCJ, it was decided to publish the documents relating to the transfer proceedings in the NCJ’s official bulletin. The applicant challenged that decision in the RAC, which ordered a stay of its execution. An appeal was lodged against the RAC’s order. The parties have not informed the Court of the outcome of those proceedings.
In addition, on the basis of the documents relating to his compulsory transfer, the applicant was accused of corruption and abuse of office. On 9 February 1996 the proceedings concerning those accusations were discontinued by order of the Naples investigating judge (giudice per le indagini preliminari). Two sets of disciplinary proceedings were instituted in respect of the same allegations. In two decisions delivered on 18 February 1997 and 2 October 1998 the disciplinary section of the NCJ ruled that there was no case to answer.
The applicant himself subsequently requested a transfer. He was moved to the Court of Cassation.
According to the applicant, the initial decision to transfer him was reported by the State broadcaster Rai’s Televideo teletext channel, by a large number of privately owned television channels and in the press.
On 26 April 1995 the applicant brought a claim for compensation against A., C., V. and M. in the Rome District Court, alleging that the statements they had made to the NCJ during the transfer proceedings had damaged his honour and infringed his right to protection of his reputation.
While the case was being prepared for hearing, A. and C. objected that they should enjoy immunity under section 32 bis of Law 195/1958, introduced by section 5 of Law no. 1 of 3 January 1981. By virtue of that provision, members of the NCJ cannot be prosecuted for opinions expressed in the performance of their duties (see “Relevant domestic law and practice” below). The applicant submitted in reply that the immunity clause in question applied only in the context of criminal proceedings.
On 6 November 1995 the judge responsible for preparing the case referred the matter to the bench and invited the parties to make their final submissions.
On 22 December 1995 the Rome District Court held a hearing at which the parties made their final submissions. Judgment was then reserved.
In a judgment deposited with the registry on 15 January 1997 the District Court dismissed the applicant’s claim for compensation.
Referring to judgment no. 148/1983 of the Constitutional Court, it held that it would have been illogical to grant immunity from criminal prosecution for certain acts while retaining the possibility of civil proceedings in respect of the same conduct. It took the view that the immunity in question should apply to civil and disciplinary proceedings as well as to criminal proceedings, so that members of the NCJ could remain free from interference in performing their duties.
In conclusion, the Rome District Court found that A. and C. should enjoy immunity; it therefore held that the applicant’s requests for investigative measures should not be granted. It also dismissed the compensation claim against V. and M.
The applicant appealed against that judgment. He argued, in particular, that during its scrutiny of the Bill introducing section 32 bis of the Law cited above, Parliament had replaced the wording “cannot be prosecuted” (non sono perseguibili) with “cannot be punished” (non sono punibili).
In a judgment of 4 April 2000 the Rome Court of Appeal dismissed the applicant’s appeal in so far as it was directed against C. and allowed it in so far as it concerned the statements by A.
It held that the immunity provided for in section 32 bis should be limited to the expression of opinions relating to “the exercise of the powers and duties of members of the NCJ”. Whereas C. had expressed opinions while remaining within the scope of his duties, A.’s comments had gone beyond what was normal in a situation of that kind. The Court of Appeal ordered A., V. and M. to pay the applicant compensation.
A. appealed on points of law to the Court of Cassation, arguing that the immunity provided for in section 32 bis covered any statement made within the NCJ. The applicant lodged a cross-appeal against A. and an appeal on points of law against C.
The case was set down for hearing before a five-member bench of the Second Civil Division of the Court of Cassation. On 12 February 2001 the applicant asked for three of the judges to withdraw on account of their links with A.
On the same day, counsel for the applicant asked for the case to be heard by the combined divisions of the Court of Cassation (Articles 374 and 376 of the Code of Civil Procedure).
The President of the Court of Cassation allowed the request. Counsel for the applicant then asked the President to ensure that, in the interests of impartiality, the bench of the combined divisions was made up of judges “who have had no dealings of any kind with A. (or, of course, with [his own client])”.
On 9 July 2001 the applicant’s lawyers complained to the President that the composition of the bench did not comply with the rules on representation of the presidents of the different divisions.
On 10 July 2001 the applicant requested two of the judges on the bench of the combined divisions to withdraw on account of their links with A. He added that, if they did not do so, his request was to be treated as an application for the removal of the judges in question.
On 16 November 2001 the applicant observed that one of the two judges (Ca.) had not withdrawn. He therefore asked for a decision on his application for that judge’s removal.
In a decision of 22 November 2001 the combined divisions dismissed his application.
On 10 December 2001 the applicant applied for that decision to be set aside, arguing that it breached certain procedural rules.
On 7 January 2002 counsel for the applicant likewise applied for the decision to be set aside in so far as it concerned the order for his client to pay costs.
On 15 January 2002 the applicant again requested Ca. to withdraw on the ground that he was now president of the division of which A. was a member. His request was unsuccessful.
On 17 January 2002 the combined divisions held a hearing. In a judgment adopted that day and deposited with the registry on 11 March 2002 they allowed A.’s appeal but dismissed the applicant’s cross-appeal against A. and his appeal against C.
The Court of Cassation outlined the following legal principle:
“The guarantee laid down in section 5 of Law no. 1/1981 has a broader scope than the applicant maintained, extending to the sphere of civil liability in cases concerning the expression of an opinion directly linked to a vote taking place in the course of the NCJ’s work and relating to the subject under discussion. This guarantee would be devoid of purpose if members of the NCJ, who are exempted from all criminal liability, were on the other hand exposed to the risk of civil proceedings for activities involving the performance of the duties assigned to them; this would have a serious effect on their function itself.”
The combined divisions went on to examine the Court of Appeal’s reasoning as to A.’s liability. They decided to quash that part of the judgment, remitting the case to a different division of the Rome Court of Appeal.
However, they upheld the Court of Appeal’s judgment in so far as it dismissed the applicant’s claims against C. In accordance with the law, the part of the Court of Appeal’s judgment that was not quashed became final immediately.
In respect of the part of the judgment that was quashed, the parties had one year and forty-five days from the date on which the Court of Cassation’s judgment had been deposited to institute proceedings in the Court of Appeal. However, none of the parties availed themselves of this option. Accordingly, on 27 April 2003 the Court of Cassation’s judgment became final in so far as it allowed the appeal by A.
Article 104 § 1 of the Constitution provides that the judiciary constitutes “a branch that is autonomous and independent of all other powers”. By Article 105, the NCJ has jurisdiction over “appointments, assignments and transfers, promotions and disciplinary measures concerning judges”. The NCJ is presided over by the President of Italy; the President of the Court of Cassation and Principal State Counsel at that court are ex officio members. Two-thirds of the other members are elected by all the ordinary judges “from among the [judges] belonging to the various categories”, and one-third by Parliament. The last-mentioned group, known as “lay members” of the NCJ, are elected from among university law professors and practising lawyers with at least fifteen years’ experience. Members are elected for a four-year term and cannot be immediately re-elected. During their term of office they may not be registered on professional rolls, or be members of Parliament or a regional council (Article 104 §§ 2, 3, 4, 6 and 7 of the Constitution).
Article 107 §§ 1, 2 and 3 of the Constitution reads as follows:
“Members of the judiciary may not be removed from office (sono inamovibili). They may not be dismissed or suspended from office or assigned to other courts or functions except by a decision of the National Council of the Judiciary, taken either on the grounds and with the guarantees for the defence set forth in the [law on] the judiciary or with their own consent.
The Minister of Justice has the power to initiate (promuovere) disciplinary proceedings.
Judges may be distinguished from one another only by their different functions.
...”
Article 110 provides that, without prejudice to the powers of the NCJ, the organisation and functioning of services relating to justice are the responsibility of the Minister of Justice.
Law no. 1 of 3 January 1981 amended Law no. 195 of 24 March 1958 on the establishment and operation of the NCJ. Thus, section 5 of the 1981 Law added a new section 32 bis to the 1958 Law, worded as follows:
“Members of the National Council of the Judiciary cannot be punished for opinions expressed in the performance of their duties in connection with the subject under discussion.”
On 31 January 1983 the Rome District Court objected that section 5 of Law no. 1/1981 was unconstitutional in that it exempted members of the NCJ from any criminal liability for abuses of authority committed in the performance of their duties. In judgment no. 148 of 2 June 1983 the Constitutional Court dismissed the plea of unconstitutionality as being ill-founded. It observed in particular that the provision in issue was favourable to defendants in that it guaranteed members of the NCJ a “reinforced right” to freedom of expression in the performance of their duties. The immunity it established was different from parliamentary immunity, since members of parliament “[could] not be prosecuted” for their opinions, whereas members of the NCJ “[could] not be punished”. Accordingly, they could not escape the jurisdiction of the criminal courts, which could assess whether the conduct complained of had exceeded the limits laid down in section 5 cited above, namely whether or not it concerned “the subject under discussion”. Lastly, the granting of immunity to the NCJ’s members was justified by its position and its functions as the body guaranteeing the autonomy and independence of the judiciary.
Law no. 511/1946 lays down “guarantees relating to the judiciary”. It provides, as a general rule, for the irremovability of judges with a view to preserving their independence. It remains possible, however, to order the compulsory transfer of judges who are in a position of “environmental incompatibility” or who, “for any reason, even through no fault of their own, are unable to perform their duties in their current post with the requisite independence and impartiality”.


ITEMID: 001-101388
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: BALENOVIĆ v. CROATIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
TEXT: The applicant, Mrs Vesna Balenović, who is of dual Croatian and Slovenian nationality, was born in 1954 and lives in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik. The Government of Slovenia, having been informed of their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 2 (a) of the Rules of Court), did not avail themselves of this right.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant had been working for the joint-stock company INA – Industrija nafte d.d. (hereinafter “INA” or “the company”) from 17 June 1983 until 18 April 2001, when she was dismissed. INA was founded in 1963 and is the national oil company of Croatia. Until 17 July 2003 the State was its sole stockholder. At present 47% of INA's stocks are owned by the Hungarian oil and gas company MOL, 44% by the Republic of Croatia (represented by the Croatian Government) and 8% by various institutional and private investors.
On 1 January 2001 the applicant was promoted and assigned to the job of project manager in the office of Ž.V., a member of INA's management board and its executive director for oil refining and trade.
In the course of her work the applicant analysed issues relating to losses of petrol during transport from refineries to petrol stations. She came to the conclusion that in 2000 the value of petrol lost during transport was 25,872,208.97 Croatian kunas (HRK), of which only HRK 5,056,818.86 had been compensated by the hauliers. Her findings suggested that the relevant persons in INA had shown considerable laxity as regards claiming compensation for the remaining losses. On the basis of her findings, the applicant prepared a report entitled “Road Haulage Claims during 2000 in the Logistics Sector” (Reklamacije u magistralnom transportu u toku 2000. godine u Službi logistike).
On 19 January 2001 the applicant informed her immediate superior Ž.V. of her findings and gave him a copy of the above-mentioned report.
On 20 January 2001 INA issued a public call for tenders for haulage services by publishing in daily newspapers an “Invitation for Bids for selection of the most competitive Bidders for annual road transport of petroleum derivates by tank trucks.”
On 22 January 2001 the applicant sent a letter to INA's general director, T.D., and asked for a meeting. She indicated that she would like to discuss issues relating to petrol losses during transport and attached a copy of her above-mentioned report. According to the Government, T.D. had prepared a report for the supervisory board on the losses incurred during transport and as early as 23 January 2001 the supervisory board had decided that all unjustified losses should be covered by a unilateral set-off. The set-off had taken place and the losses had been covered by summer 2001.
Since the applicant received no reply to her letter of 22 January 2001, on 29 January 2001 she sent a letter to the chairman of INA's supervisory board, S.L. She met him on 8 February 2001 and discussed the issues raised in her letter to T.D. The applicant also asked S.L. to revoke the public call for tenders of 20 January 2001 for external haulage services. She suggested that, instead of outsourcing haulage services, INA should have developed its own. Given that, according to the company's balance sheet in 2000, INA had paid HRK 149,105,944.37 to various hauliers, the applicant calculated that the company could take out a loan and buy or lease 232 new vehicles – a number equal to the number of vehicles used by the outside hauliers – and repay the loan in two years. According to the applicant, S.L. considered her findings regarding the petrol losses valid but refused to do anything to revoke the above-mentioned public call for tenders. According to the Government, S.L. copied the documents received from the applicant and gave them to internal control to investigate.
On 9 February 2001 the applicant again wrote to S.L. She sent him a copy of her report concerning the petrol lost during transport and again asked him to revoke the public call for tenders of 20 January 2001.
On 12 February 2001 the applicant wrote another letter to the general director T.D. Adducing the same reasons as in her letter to S.L. of 9 February 2001, she invited him to revoke the above-mentioned public call for tenders of 20 January 2001 for external haulage services. The applicant also referred to her previous letter of 22 January 2001, which had remained unanswered, and the issues raised therein. She again asked for a meeting.
On 13 February 2001 the applicant submitted her own bid in response to the public call for tenders for external haulage services. In so doing she asked the Commission for Public Tenders to change the business strategy of hiring external haulage companies and to accept her idea of developing INA's own vehicle fleet.
On 3 April 2001 the daily newspaper Slobodna Dalmacija published an article entitled “[S.L.] covers up a crime within INA worth 40 million [German] marks” ([S.L.] prešućuje kriminal u Ini težak 40 milijuna maraka). The article suggested that INA should build up its own vehicle fleet instead of engaging outside hauliers. It was submitted that, according to the company's balance sheet, in 2000 INA had paid HRK 149,105,944.37 to various haulage companies and argued that instead of doing so it could have taken out a loan and bought or leased 232 road tankers. After repaying the loan in two years, over the following seven years INA would, by using its own vehicle fleet, have been earning 70,000,000 German marks (DEM) per year. In addition, this would have created 500 new jobs and resolved the problem of INA's redundant employees. The article also relied on the applicant's findings concerning the petrol lost during transport between refineries and petrol stations. It mentioned that the value of the lost petrol was HRK 25,872,208.97, of which only HRK 5,056,818.86 had been reclaimed from the hauliers, and stated that INA's management had done nothing or very little in order to obtain compensation for the remaining losses. The article also stated that T.D. and S.L. had turned a deaf ear to the warning by the applicant about the company's detrimental business policy. Finally, the article stated that there would be further articles on the subject.
On the same page an article entitled “The problems started when I discovered manipulations” (Problemi su počeli kad sam otkrila manipulacije) was published, containing an interview with the applicant in which she raised her concerns about INA's business policy. The relevant part of the article reads as follows:
“The problems started when I discovered manipulations ...
I was amazed and surprised when I found out that, in spite of the information on accumulated losses, INA had published a new call for tenders for hiring external hauliers...
... Mrs Balenović spent months systematically compiling data on haulage costs within INA. What she discovered seemed to her of such enormity and significance that she attempted to discuss it with the leading figure of the national oil company, [T.D.]. When she realised that within INA nobody understood what she was saying, she sought the assistance of the Deputy Prime Minister and chairman of INA's supervisory board, [S.L.] She also turned to [I.D.], adviser to the President of the Republic, who said that her discovery was chilling. Her colleagues in the tenders commission for the selection of external companies for road haulage said that she had discovered some amazing things, but they would have to proceed as ordered by the bosses. Thus, Mrs Balenović found herself transferred from an area about which she knew a great deal, or even everything, to a fine-sounding job in another sector, in which she had no experience.
Why did you decide to go public with the details of the INA's call for tenders for hiring external haulage companies?
I have been working in INA's transport sector for 19 years and understand all the problems in that part of the company. During all these years, I have been monitoring and analysing business results in the field of transport. I felt terrible when I realised that INA had the production and the market, but no haulage to link these two sectors. Since all analyses show a trend of generating loss, while, at the same time, some simulations of potential business activities show that it would be much better to run business in a different way, that is, with our own vehicle fleet, I tried to demonstrate this to the company's management. Since those people did not show the slightest interest in what I was saying, and even started ignoring or marginalising me, I decided to make the only move possible which would ensure that what I was advocating would not remain at the bottom of someone's drawer.
The best option
What was the exact reaction of your superiors when you tried to acquaint them with the results of your analyses and ideas?
I showed the first indicators to [Ž.V.], a member of the management board and Executive Director for Refining and Trade. As long as my communications were verbal, reactions were positive. I would even say I was encouraged to carry on with what I had started. That was in August last year. [Ž.V.] then said that he would not allow another call for tenders for hiring external haulage contractors to be issued, but would rather advocate development of [INA's] own fleet. Everything I told him, I visually illustrated to him as well. That means I showed him how many road tankers INA could buy for the sum paid annually to haulage contractors. It was about 100 completely new road tankers, fitted out to the most stringent ecological standards. Unfortunately, all this remained at the verbal level, and the idea of purchasing our own fleet was not developed further. Instead of issuing a call for tenders for the purchase of road tankers, on 20 January 2001 another call for tenders was published for hiring external haulage contractors for road haulage.
What did you do when you saw that the call for tenders which [Ž.V.] had said would not be published was in fact published?
I was amazed and surprised. I had at least expected that someone would invite me for a discussion, so that we could again examine together which option would be the best and the most economical for the company.
Why did they change from being enthusiastic to ignoring you?
My proposals were obviously sound and indicated that normal costs had mostly been exceeded during the time of the former management. The problems began when I insisted that my ideas should also be implemented in the areas for which the present management bears the responsibility. I showed them clearly that we had practically commenced tilting at windmills, since in some sectors we were analysing excessive costs in the past, which were still being generated today to a greater extent.
Purchase of road tankers
Is it not unusual for an employee of INA to submit a bid in response to a public call for tenders for hiring external haulage contractors, especially because you do not have the required road tankers available?
Of course I did not have that number of road tankers. I submitted the bid solely to demonstrate that INA could itself acquire the required number of vehicles. The deadline for repayment of loans to business banks would not have been longer than three years. Since it was stated in the call for tenders that vehicles up to ten years old were required, it was clear that in the subsequent seven years, after repayment of the loan, the road tankers would only earn money. We are talking about 232 tankers. If you parked them one behind the other, the line would be three kilometres long. I waited for fifty minutes, until the call for tenders closed, and then, seeing that it was not going to be revoked, as I had asked the chairman of INA's management board [T.D.] and the chairman of the supervisory board and the Deputy Prime Minister of Croatia, S.L., to do, I decided to submit a bid which would indicate the detrimental effects of hiring external haulage contractors for road haulage.
How did the Deputy Prime Minister of Croatia, S.L., react when you showed him your analyses?
He said that it seemed that I had collected the data very meticulously and that they were frightening. Then I asked him what he intended to do about the public call for tenders, and he answered that it would have to go ahead. What he thought about the work I had done, the results of which I had shown him, is best illustrated by the fact that he drew my attention to a job advertisement which the Government had published for, as was written there, 'educated, capable and ambitious people'. He emphasised that my business reports were a good example of how economic crimes could be detected.”
On 4 April 2001 Slobodna Dalmacija published another article, entitled “INA: 25 million kunas evaporated between refineries and petrol stations” (INA: Od rafinerije do benzinskih crpki isparilo 25 milijuna kuna). Alongside it a smaller article was published entitled: “500 new jobs lost – What Vesna Balenović proposed in her analysis, but INA did not accept” (Propalo 500 novih radnih mjesta – Što je u svojoj analizi predložila Vesna Balenović, a INA nije prihvatila). Both articles presented, inter alia, the contents of the letters the applicant had sent to T.D. and S.L. about the need and justification for developing INA's own vehicle fleet.
On 5 and 6 April 2001 Slobodna Dalmacija continued to write about INA's business policy in articles entitled “INA loses 348 thousand kunas daily” (INA dnevno gubi 348 tisuća kuna) and “INA loses money on hauliers” (INA gubi novac na prijevoznicima). On 6 April 2001 the reaction of the management of INA was also published under the headline: “Lower costs with others' road tankers” (Manji troškovi s tuđim cisternama), which stated that the use of external hauliers was the usual practice in the oil industry, and that an independent auditing company, Arthur Andersen, had established that this option was cheaper for INA.
In an article entitled: “Private hauliers are earning 20 thousand (German) marks per month – Vesna Balenović presents new evidence of fraud within INA” (Privatni prijevoznici zarađuju mjesečno 20 tisuća maraka – Vesna Balenović iznijela nove dokaze o malverzacijama u INI), published in Slobodna Dalmacija on 7 April 2001, the applicant openly accused INA's management for the first time of corruption and nepotism. In particular, she submitted that members of the management had had a personal interest in maintaining the current state of affairs, in which haulage services were being outsourced to the detriment of the company, because they were either receiving a commission from the hauliers or were personally involved in providing haulage services through their relatives. The article reads as follows:
“VESNA BALENOVIĆ PRESENTS NEW EVIDENCE OF FRAUD WITHIN INA
Private hauliers are earning 20 thousand [German] marks per month
Individuals in INA's management structure are involved in a private business of transporting oil, and so are some high-ranking State officials. INA has already lost more than 25 million kunas through various machinations
'Private hauliers providing services to transport oil derivatives for INA are in collusion with INA's management, and therefore it suits all of them that this kind of public call for tenders, which has now been issued, goes ahead and is implemented', Vesna Balenović, INA's expert for economic affairs, told journalists on Friday. Balenović's claims concerning INA's economically unsound decision to hire private hauliers instead of acquiring their own road tankers to transport fuel have been published during the past few days in a series of articles in this newspaper.
Balenović remains firmly of the opinion that private hauliers are paying the management hefty fees for their part in transporting derivatives for INA, claiming that a single public call for tenders 'brings in ten million marks in such fees'.
Balenović goes even further in her accusations, claiming that some individuals in INA's management structure are involved in a private business of transporting oil, and she has even gone so far as to state that some high-ranking State officials were also involved.
'This does not come as a surprise if I tell you that a private haulier, in order to cover the complete costs of transporting derivatives, which include all road tankers' maintenance costs, the driver's salary and other expenses, spends around 65,907 kunas, while his net profit is between 20 and 25 thousand marks a month', claims Balenović, backing up her claims with a large number of documents.
'A private haulier working for a large global oil company like Shell will make enough money to purchase a new road tanker in about five years, while our private hauliers transporting oil for INA manage to do the same in a year. From this it is quite clear that INA is paying its hauliers too much, and that large amounts of money are flowing', said Balenović, backing up her words by documents from which it can clearly be seen that during 2000 INA paid private hauliers around 153 million kunas.
Balenović suggests that if INA decided to transport derivatives using its own road tankers, along with keeping part of the profit which private hauliers are now putting in their pockets, the company would be able to use loans to purchase 232 completely new, high-quality road tankers, and pay them off within two years.
She claims that a notorious theft of fuel is also going on within INA. The managers and transport organisers, in collusion with private hauliers, are holding back [the enforcement of] claims for losses during transport, so that after three years, when the statutory limitation period elapses, hauliers can not longer be liable for them.
'Through such machinations, INA has already permanently lost more than 25 million kunas', said Balenović. She then produced a series of documents which, according to her words, prove that fuel theft is also being carried out during transport by INA's own road tankers.”
Lastly, on 11 April 2001 Slobodna Dalmacija published an article entitled: “Private hauliers damaged INA to the tune of twenty million kunas” (Privatni prijevoznici oštetili su Inu za dvadeset milijuna kuna) in which the business policy of INA was again called into question, as was the objectivity of the findings of the auditing company Arthur Andersen.
On 18 April 2001 INA summarily dismissed (izvanredni otkaz ugovora o radu) the applicant from her job on account of her statements in the press. The relevant part of the decision reads as follows:
“[It has been] established that Vesna Balenović harmed the business reputation of INA by her unauthorised statements in the daily newspaper Slobodna Dalmacija on 3, 4, 5, 6, 7 and 11 April 2001 in which she came up with a series of inexpert analyses of the company's business policy and accusations against INA's ... management, and presented the manner in which INA runs its business in an extremely negative light.
Apart from the above, ... she made available to the public information on the course and content of preliminary negotiations on business cooperation, calculations of costs related to transactions involving [certain] goods and procurement of [certain] services through a public call for tenders, data on financial transactions and financial indicators, and data whose disclosure ... may be detrimental to the business interests of INA.
It was further established that Vesna Balenović did not obtain authorisation to take the documents out of INA's business premises or to convey them to other persons or present them in the media as she did.
It follows from the foregoing that Vesna Balenović, by acting in the manner described above, did not observe INA's [internal regulations] on business correspondence of 1 September 1998 or the [internal regulations] on business secrets of 27 February 1997, and thereby committed particularly serious breaches of the employment-related duties laid down in Rule 31 of [INA's internal employment regulations] (Pravilnik o radu):
- non-performance of employment-related duties;
- non-observance of instructions, decisions and other acts of the employer;
- non-observance of the law, other regulations and the collective agreement;
- disclosure of a business secret.
...
Given that because of the [above-] mentioned particularly serious breach of employment-related duties, the continuation of the employment relationship is no longer possible, a decision has been made as stated in the operative provisions.”
On 2 May 2001 the applicant lodged a request for the protection of her employment-related rights (zahtjev za zaštitu prava) in respect of the decision to dismiss her. On 14 May 2001 INA dismissed the applicant's request.
On 23 May 2001 the applicant brought a civil action against INA in the Zagreb Municipal Court (Općinski sud u Zagrebu) challenging her dismissal. She sought reinstatement and salary arrears.
On 10 December 2002 the court delivered a judgment dismissing the applicant's action. The relevant part of that judgment reads as follows:
“... [T]he plaintiff considers that the dismissal was unlawful [inter alia] because:
- ...
- [she did not make the statements in the media] as the respondent's representative but as a citizen employed in a State-owned commercial company exercising her civil right and [discharging her civic] duty to protect, by appropriate statements in public, State property for the benefit of all the employees of the respondent and all Croatian citizens ...
...
In the opinion of this court, irrespective of whether the plaintiff disclosed a business secret or financial or other information which does not represent a business secret, she acted contrary to the interests of the employer ..., regardless of the employer's ownership structure and the accuracy of the published information, in that she made extremely negative statements in the media, as a result of which she primarily harmed the reputation of the employer.
By making public statements in this way, the plaintiff acted contrary to the [internal regulations] on business correspondence in INA ..., Rule 7 of which provides that the authority to conduct business communications and correspondence and provide information to the media lies exclusively with the general director and the director of the sector of promotional activities ..., and Rule 10 of which provides that non-observance constitutes a breach of the employee's duty, with the resultant consequences. Each of the above-mentioned breaches is, in the opinion of this court, [in itself] a sufficient reason allowing the respondent to lawfully dismiss the plaintiff ... because [she] committed particularly serious breaches of employment-related duties, as a result of which, taking into account all the circumstances and the interests of both parties, the continuation of the employment relationship is no longer possible.
It is to be noted that this court cannot find a 'civic duty' in, or deriving from, any existing legal provision, apart from the Criminal Procedure Act, which provides that the plaintiff, as a citizen, must file a criminal complaint against the perpetrator if she considers that a criminal offence has been committed. The civic duty is thereby discharged and the competent State authorities then proceed with the investigation of the criminal offence and identification of the perpetrators. It is also to be noted that the Data Protection Act, in particular section 25, provides that revealing a business secret ... in a criminal complaint or when reporting an administrative offence to the competent authority or to the supervisory authority in the exercise of one's own employment-related rights – but not to the public – is not to be treated as disclosure of a business secret.”
On 11 November 2003 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the applicant and upheld the judgment delivered at first instance. In particular, the County Court held that the relevant provisions of the Labour Act protected employees from dismissal only in cases where they turned to the State authorities with a view to enforcing their rights or reporting a suspicion of corruption, but not in cases where they sought to do so through the media. The relevant part of the County Court's judgment reads as follows:
“[The first-instance court] established that the plaintiff, in her public statements in the daily newspaper Slobodna Dalmacija on 3, 4, 5, 6, 7 and 11 April 2001, expressed a whole series of negative comments and serious but flippantly made allegations about the business activities and management of the respondent, and in doing so acted contrary to the interests of her employer, and jeopardised and harmed the business reputation of the respondent.
...
Here it has to be mentioned that the first-instance court did not examine whether the plaintiff's comments were made competently [i.e. expertly], because that is outside the scope of this labour dispute.
Those are questions relating to how a company runs its business, a matter within the exclusive competence of the management board, whereas the supervisory role is exercised by the supervisory board, and not an individual employee.
In this connection it has to be noted that under section 108(2) of the Labour Act, recourse by an employee to the [competent] executive authorities does not constitute a justified reason for [his or her] dismissal.
... [U]nder section 108(3), recourse by an employee to the competent State authorities on account of a reasonable suspicion of corruption, or the filing by an employee of a criminal complaint in good faith on the grounds of that suspicion, does not constitute a justified reason for dismissal.
... [I]t follows that the law protects an employee only when applying to the competent State authorities, and not in respect of the media ...
Hence, if the plaintiff wanted to inform the public of the existence of possible irregularities and illegalities in the respondent's operations, she could have done so by applying to the competent State authorities, which would then, pursuant to section 5 of the Media Act, be bound to make that information available to journalists...
...
Therefore, the first-instance court correctly established that the plaintiff's unauthorised statements in the press constituted ... an important fact justifying [her dismissal].
Lastly, the plaintiff also made publicly available various financial data, data concerning the course and content of preliminary negotiations on business cooperation etc., which are mentioned in the published articles, which she was not authorised to do, and in doing so seriously breached her employment-related duties within the meaning of Rule 31 of the respondent's [internal employment regulations].”
On 24 May 2005 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed a subsequent appeal by the applicant on points of law (revizija). The relevant part of the Supreme Court's judgment reads as follows:
“In the contested decision on summary dismissal of the plaintiff, ..., the respondent, as the employer, refers, as the justified reason for dismissal, to the statements by the plaintiff in the daily newspaper Slobodna Dalmacija on 3, 4, 5, 6, 7 and 11 April 2001.
It was established in the proceedings that in these statements the plaintiff made:
- extremely negative comments about the respondent's business activities and the management of resources,
- allegations of conduct such as manipulations and machinations in the respondent's business affairs, as well as the covering up of crime on the part of the respondent's administration and management.
The lower-instance courts found that this kind of behaviour on the part of the plaintiff constituted a justified reason for dismissal within the meaning of section 107, paragraph 1, of the Labour Act.
...
In this case, answering the following question of principle is of decisive importance: What are the repercussions of the public statements of an employee, in which extremely negative comments about the business activities and management of resources of an employer were made, both for the employment contract and for the employment relationship between the employee and the employer? And also: What is the significance of the plaintiff's public statements in the present case?
It should be noted that, in principle, public statements of this kind by an employee may have repercussions for the employment relationship, as a particularly important fact, as a result of which, while taking into account all the circumstances and interests of both parties, the continuation of employment is not possible.
In this particular case, the aforementioned statements by the plaintiff evidently damaged the reputation of the respondent, since an employer whose leadership structures tolerate and encourage criminal activities certainly cannot have a good reputation and be trusted in the business world. Therefore, this kind of behaviour on the part of the plaintiff has significant repercussions for the employment relationship between the parties and gives the employer a justified reason for termination of the employment contract, within the meaning of section 107(1) of the Labour Act. This precisely, having regard to the given circumstances, constitutes a particularly important fact, as a result of which the continuation of employment is not possible.
... In the present case, the depiction of the employer's business activities in an extremely negative light in the media by the employee constitutes a particularly important fact of this kind, which gives the employer a justified reason for termination of the employment contract.
The plaintiff's reliance on her 'civic duty' is unfounded. In this regard the assessment of the second-instance court to the effect that the plaintiff could realise her 'intention to prevent damage and protect the property of the respondent' only by turning to, and lodging a complaint with, the competent State authorities, which would have resulted in that information being available to the press and other media – and could not have served as a reason for dismissal – is correct.”
The applicant then lodged a constitutional complaint against the Supreme Court's judgment, alleging infringements of her constitutional rights to equality, equality before the law, work and freedom of expression.
On 18 October 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's constitutional complaint. It served its decision on her representative on 6 November 2006. Replying to the applicant's argument that she had been dismissed despite the fact that she had merely been discharging her statutory duty to report criminal offences, the court noted that the applicant had filed her criminal complaint (see below) only after she had made the statements in question to the media. It further held:
“As regards the complainant's criticism directed against the part of the first-instance judgment referring to the notion of a 'civic duty', the Constitutional Court points out that the part of the reasoning in which the first-instance court notes that 'this court cannot find a civic duty in, or deriving from, any existing legal provision, apart from the Criminal Procedure Act ...' is [rather] unfortunately worded. This does not, however, affect the validity of that court's legal view regarding the 'civic duty' of the complainant as an employee, according to which the complainant – if she considered that her employer had committed a criminal offence – should, as a citizen, have filed a criminal complaint against the perpetrator, whereupon the competent State authorities would have proceeded to investigate the criminal offence and identify the perpetrators.
...
The Constitutional Court notes that the complainant justifies her conduct towards the employer (that is, her statements in the media), for which the employer dismissed her, by claiming that 'she expressed her personal opinions primarily as a citizen', and as an employee in the part where she objected to the 'appropriation of State property'.
The Constitutional Court notes in this connection that a breach of an employee's duties towards an employer cannot be justified by the right to express a personal opinion in the manner presented by the complainant in her constitutional complaint.”
The applicant submitted that, before making her statements in the media, in the period between 8 and 14 February 2001 she had reported the irregularities she had noticed to the Zagreb police authorities, in particular to a certain Inspector J.P.
On 9 May 2001 the applicant filed a criminal complaint with the Zagreb Municipal State Attorney's Office (Općinsko državno odvjetništvo u Zagrebu) against several INA executives. In particular, the applicant accused the chairman of the supervisory board, S.L., the chairman of the management board (that is, the company's general director), T.D., members of the management board Ž.V. and M.V.U., the director of wholesale trade and logistics, M.B., and the director and assistant director of retail trade, D.P. and S.M., of several criminal offences such as business misfeasance, abuse of authority in business operations and conclusion of a prejudicial contract. In doing so she repeated, in substance, her criticism concerning INA's business policy in the field of haulage raised in her previous statements to the press.
On 22 September 2004 the State Attorney's Office dismissed the applicant's criminal complaint. As to the applicant's accusations that outsourcing haulage services instead of developing its own vehicle fleet was detrimental to the company and amounted to a criminal offence, the State Attorney replied that it was for INA's management to decide which business policy to adopt and found no elements of criminal liability in the existing policy, adding that the applicant's allegations simply represented her own views concerning INA's business strategy. As regards the applicant's claims concerning losses of petrol during transport from refineries to petrol stations and the alleged negligence in claiming compensation for those losses from the hauliers, the State Attorney found that they had occurred in the period before July 2000, when the director of wholesale trade and logistics had been Mr D.K. After the accused M.B. had become the director of that sector the situation had improved significantly. The relevant part of the State Attorney's decision reads as follows:
“... as regards the reported individual [M.B.], who became Director of the Logistics Sector on 21 July 2000, it was established that during his term of office, INA's claims against hauliers for losses [in transport] had been settled through a set-off with freight, that is to say that the majority of claims from the previous period were successfully settled by a mutual set-off, while the amounts which were not settled in that way were subject to default interest rates. This is confirmed by the report of the Sector for Internal Audit and Control, and by other documentation collected, from which it follows that the problems concerning recovery of claims for losses [during transport] had been identified as early as 1997, although these in fact dated back to 1993, and that the problems culminated in 1998 and 1999, and at the same time, it has been established that from 2000 onwards these problems started to be resolved.
...
On the basis of all the above, it is indisputable that the actions of ... [M.B.], or the actions of any other responsible persons within INA, ..., do not correspond to the [statutory] description of a criminal offence [defined in] Article 339 of the Criminal Code, or of any other criminal offence prosecutable automatically.
As regards the remainder of the criminal complaint by Vesna Balenović, relating to the above-mentioned actions of ... the entire management of INA, it has been established that these allegations were unfounded.
Mrs Vesna Balenović, who filed the criminal complaint, does not provide evidence or facts giving rise to a reasonable suspicion that criminal offences had been committed, but rather submits arguments for, and explains her concept of, the strategic development and business policy of INA. It is to be noted that a business policy of a commercial company cannot give rise to criminal liability in respect of its management, under the Commercial Companies Act.
...
Therefore, the allegations in the criminal complaint – that INA hired external hauliers instead of investing in its own vehicle fleet – represent the complainant's vision of the development strategy of INA, rather than a description of the actions of the reported individuals, which [might amount to criminal offences]. In this connection, it is to be noted that from the document enclosed with the file outlining the development strategy of INA, which was prepared by the auditing company Arthur Andersen, it follows that, ..., INA should hire reputable hauliers for transporting derivatives, rationalise the network in order to support the wholesale and retail sectors, etc. Therefore, [hiring external hauliers] was a business decision which did not [amount to] any criminal offence.
...
Having regard to all the above, I consider that:
- ...
- as regards the reported criminal offence provided for in Article 291 of the Criminal Code (misfeasance in business operations), it has been established, as mentioned above, that the problems of unpaid claims for losses in transport dated back to 1993 (according to the Report of the Sector for Internal Audit and Control). Therefore, the reported individuals cannot in any way be responsible for that [situation] because they joined INA in 2000. [What is more,] it has been established in this connection that from that time on they had taken numerous measures with a view to improving the situation in the transport [sector], and made the further engagement of hauliers conditional upon the set-off of earlier debts and thereby managed to settle more than two-thirds of earlier unpaid claims.
- as regards the alleged commission of criminal offences provided for in Articles 292 and 294 of the Criminal Code, it should be emphasised that it has not been established that any legal entity had obtained an unlawful pecuniary gain at INA's expense, which is a statutory element of the criminal offence defined in Article 292 (abuse of authority in business operations). Nor has it been established that contracts – which the reported individuals had [allegedly] concluded and which they had [allegedly] known to be detrimental to INA – existed, which is a statutory element of the criminal offence defined in Article 294 of the Criminal Code (concluding a prejudicial contract).
Having regard to all the above, the criminal complaint should be dismissed, ... and [this] decision delivered to the supervisory board of INA, given the fact that the criminal complaint was filed against members of INA's management board, so that the injured party may exercise the statutory right to take over the prosecution should it still consider that the actions of the reported individuals amount to the above-mentioned criminal offences.”
The applicant then attempted to take over the prosecution as the injured party (oštećenik kao tužitelj) and on 5 November 2004 lodged a request with the investigating judge of the Zagreb County Court, asking him to open an investigation in respect of the persons designated as the accused in her criminal complaint. On 12 June 2007 the investigating judge declared her request inadmissible, finding that she was not authorised to lodge such a request because it was INA and not her who was the injured party.
On 18 June 2006 the applicant appealed against that decision to a panel of the Zagreb County Court.
On 5 July 2007 the panel of the Zagreb County Court dismissed the applicant's appeal and upheld the first-instance decision of 12 June 2007.
On 9 March 2007 the applicant lodged her application with the Court.
By letter of 18 March 2009 the applicant was informed that on 16 March 2009 the President of the First Section had decided to communicate the complaint concerning freedom of expression to the Government, who were invited to submit written observations on the admissibility and merits of the case. Enclosed was an information note in Croatian containing instructions to applicants on the proceedings after communication of an application to the Government. The relevant part of the information note reads as follows:
“5. Friendly settlements: The Government are also requested to indicate their position regarding a friendly settlement of your case and to submit any proposals they may wish to make in this regard (Rule 62). The same request will be made of you when you receive their observations. There is a requirement of strict confidentiality in respect of friendly settlement negotiations under Rule 62 § 2, and any proposals or submissions in this respect should be set out in a separate document, the contents of which must not be referred to in any submissions made in the context of the main proceedings.”
By letter dated 25 May 2009 the Government informed the Court that they were interested in reaching a friendly settlement with the applicant in the present case.
By letter dated 8 July 2009 the Government informed the Court of their specific proposal with a view to securing a friendly settlement, and asked the Court to forward their proposal to the applicant.
By letter of 16 July 2009 the applicant was notified of the Government's proposal and invited to reply to it by 15 September 2009.
In their letter, dated 13 August 2009, the Government submitted that the applicant had not respected the confidentiality of friendly-settlement negotiations because on 6 August 2009 she had disclosed to the media the contents of the Government's friendly-settlement proposal. In support of their allegations, the Government enclosed a DVD containing the applicant's statements to Croatian Television and Nova TV on 6 August 2009, as well as copies of articles published in the daily newspapers Jutarnji list, Večernji list, Slobodna Dalmacija and Novi list on 7 August 2009 containing the applicant's statements to the press.
By letter of 27 August 2009 the Government's letter of 13 August 2009 was forwarded to the applicant, who was also requested to comment on it and submit an explanation for the alleged breach of the confidentiality of friendly-settlement proceedings.
By letter dated 11 September 2009 the applicant refused the Government's proposal for a friendly settlement. At the same time she rejected the Government's allegations that she had breached the confidentiality of friendly-settlement negotiations.
The Criminal Procedure Act (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998 (corrigendum), 58/1999 and 112/1999), as in force at the material time, read, in its relevant part, as follows:
Section 172
“(1) Citizens shall report criminal offences subject to public prosecution.
(2) Cases in which failure to report a criminal offence constitutes a criminal offence shall be prescribed by law.”
The Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997 and 27/1998 (corrigendum)), as in force at the material time, read, in its relevant part, as follows:
“An officer of a legal entity in which he or she does not hold a majority share who, by knowingly violating the law or other regulations on business operations, manifestly conducts business recklessly and thereby causes considerable pecuniary damage to that legal entity shall be punished by a fine or by imprisonment not exceeding three years.”
“(1) An officer of a legal entity who, with the aim of acquiring unlawful pecuniary gain for his or her own legal entity or any other legal entity:
(i) creates or keeps illegal funds within the country or in a foreign State,
(ii) by drawing up false deeds, balance sheets, assessments or inventories or by other false presentation or concealment of facts misrepresents the state and flow of funds and success in business operations,
(iii) places the legal entity in a more favourable position by obtaining funds or other benefits which would not be granted to it under the existing regulations,
(iv) in discharging its obligations in respect of budgets or funds, withholds the levies due,
(v) uses the earmarked funds at his or her disposal contrary to their purpose,
(vi) in some other way seriously breaches the law or business rules concerning the use and management of assets,
shall be punished by a term of imprisonment of six months to five years.
(2) If a considerable pecuniary gain is acquired as a result of the criminal offence referred to in paragraph 1 of this Article and the perpetrator acted with intent to acquire such gain, he or she shall be punished by a term of imprisonment of one to eight years.”
“(1) Anyone who, as a representative or agent of a legal entity in which he or she does not hold a majority share, concludes a contract which he or she knows to be prejudicial to the legal entity or concludes a contract in breach of authority, thereby causing damage to that legal entity, shall be punished by a term of imprisonment of six months to five years.
(2) If the perpetrator of the criminal offence referred to in paragraph 1 of this Article has accepted a bribe for so acting, he or she shall be punished by a term of imprisonment of one to ten years.”
The Labour Act (Zakon o radu, Official Gazette nos. 38/1995, 54/1995 (corrigendum), 65/1995 (corrigendum), 17/2001, 82/2001, 114/2003, 123/03, 142/03 (corrigendum), 30/2004 and 137/2004 (consolidated text)), reads, in its relevant part, as follows:
“The person who employs (hereinafter 'the employer') shall give a job to the employee and pay him or her for the work carried out, whereas the employee shall, pursuant to the employer's instructions given in accordance with the nature and the type of work, personally perform the job taken.”
“In the employment relationship the employer and the employee shall comply with the provisions of this Act and other statutes, international agreements concluded and ratified in accordance with the Constitution and published, other legislation, collective agreements and internal employment regulations.”
“An employer or an employee may give notice terminating the employment contract.”
“An employer may give notice terminating an employment contract, subject to a prescribed or agreed notice period ('regular notice'), if he or she has a justified reason for doing so, in the following cases:
(i) if the need for performing a certain job ceases for economic, technological or organisational reasons ('notice due to business reasons'),
(ii) if the employee is not capable of duly performing his or her employment-related duties because of some permanent characteristics or abilities ('notice due to personal reasons'), or
(iii) if the employee breaches his or her employment-related duties ('notice due to the employee's misconduct').”
“(1) An employer or an employee has a justified reason to give notice terminating ... an employment contract, without an obligation to comply with the prescribed or agreed notice period ('summary notice') if, because of a particularly serious breach of an employment-related duty or because of some other particularly important fact, taking into account all the circumstances and the interests of both contracting parties, continuation of the employment relationship is not possible.
(2) An employment contract may be terminated on summary notice only within fifteen days from the date when the person concerned found out about the fact on which the summary notice is based.”
“(1) ...
(2) Where an employee lodges an appeal or brings an action or takes part in proceedings against the employer for breach of statute, other legislation, a collective agreement or an internal regulation, and addresses the competent executive authorities, this shall not constitute a justified reason for dismissal.
(3) Where an employee addresses a bona fide complaint to the person in charge [of the relevant department] or files one with the competent State authorities on grounds of a reasonable suspicion of corruption, this shall not constitute a justified reason for dismissal.”


ITEMID: 001-57432
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1985
DOCNAME: CASE OF BARTHOLD v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 10;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 10. Dr. Barthold, who was born in 1926, is a veterinary surgeon practising in Hamburg-Fuhlsbüttel. In 1978 and until March 1980, his practice operated as a "veterinary clinic", of which there were eight in Hamburg at the time. He closed down this clinic on 5 March 1980 but subsequently re-opened it on 1 January 1983.
11. By virtue of the Hamburg Veterinary Surgeons’ Council Act of 26 June 1964 (Tierärztekammergesetz - "the 1964 Act"), the applicant is a member of the Hamburg Veterinary Surgeons’ Council, whose task, among other things, is to ensure that its members comply with their professional obligations (section 1 and section 3 sub-section no. 2 of the 1964 Act). These obligations are laid down principally in the Rules of Professional Conduct of Hamburg Veterinary Surgeons (Berufsordnung der Hamburger Tierärzteschaft - "the Rules of Professional Conduct"), which were promulgated on 16 January 1970 by the Council in pursuance of section 8 sub-section 1 no. 1 of the 1964 Act and approved on 10 February 1970 by the Government (Senat) of the Land of Hamburg (section 8 sub-section 3).
12. As the director and proprietor of a clinic, Dr. Barthold provided a round-the-clock emergency service (Rule 19 of the Rules of Professional Conduct and Regulation 2 of the Regulations of 27 August 1975 on the Establishment of Veterinary Clinics - Richtlinien zur Einrichtung von tierärztlichen Kliniken; see also paragraph 29 below). This was not necessarily the case as far as other veterinary surgeons were concerned (praktische Tierärzte - see paragraph 28 below).
From 1974 onwards, the applicant - who was one of the authors of the above-mentioned Regulations and who had insisted on the provision of a round-the-clock service by clinics - advocated within the Council that a regular night service involving the participation, by rota, of all veterinary surgeons should be organised. However, the majority of his colleagues voted on two occasions, on 19 December 1974 and 7 December 1979, against such a proposal (see also paragraph 28 below).
13. On 24 August 1978, there appeared in the daily newspaper Hamburger Abendblatt an article signed by Mrs. B, a journalist, and entitled "Tierärzte ab 20 Uhr schwer erreichbar - Warum ‘Shalen’ die Nacht doch noch überlebte" ("Veterinary surgeons hard to reach after 8 p.m. - why "Shalen" managed to survive the night after all").
The article, 146 lines and 4 columns long, comprised an introductory paragraph and in brackets, in bolder type, the three following sub-heads: "Auf eine spätere Zeit vertröstet" ("Put off until later"), "Unfreundliche Absage" ("Unfriendly refusal") and "Zur Not hilft die Polizei" ("Police to the rescue").
The introductory paragraph, in bold type, read as follows:
"When the owner of a domestic pet needs help at night for his beloved animal, he may often become desperate: not one veterinary surgeon can be contacted. This state of affairs ought now to improve. There are plans to bring in a new Act on veterinary surgeons, along the lines of the Hamburg legislation governing doctors. According to Dr. Jürgen Arndt, veterinary surgeon and Chairman of the Hamburg Land Association which is part of the Federal Association of Veterinary Surgeons (Bundesverband praktischer Tierärzte e.V.), ‘it will also regulate the emergency night service’. At present, it is true, a few clinics voluntarily provide an emergency service from time to time, and [other] veterinary surgeons also help, but this is not on a regular basis and does not give pet-owners security. They only do it voluntarily."
The journalist writing the article began by recounting the efforts made by the owners of the cat "Shalen" to find a veterinary surgeon prepared to help them one evening between 7.30 and 10.00 p.m. After telephoning in vain to two veterinary practices and to the emergency service, apparently they at last struck lucky: "Dr. Barthold, director of the Fuhlsbüttel veterinary clinic, intervened". The journalist then quoted the applicant as saying: "It was high time; ... [the cat] would not have survived the night."
According to the author, Mrs. B, the particular case disclosed a problem, namely the inadequacy of the emergency service, at least on weekdays between 8 p.m. and 8 a.m. There followed a passage which read:
"‘I think that in a big city such as Hamburg there ought to be a regular service for attending to animals’, Dr. Sigurd Barthold emphasised.
Hamburg’s animal lovers" - added the journalist, summarising her interview with Dr. Barthold - "would then no longer have to get sore fingers trying to ring up veterinary surgeons, looking for one who is prepared to help. In that case it would not only be the clinics which would voluntarily be on emergency duty round the clock; each of the 53 practising veterinary surgeons would be on night duty once a month if arrangements were made for two of them to be on duty each night.
The fact that there is a demand for an emergency service at night-time is illustrated by Dr. Barthold by reference to the number of calls received by his practice between 8 p.m. and 8 a.m.: ‘Our telephone rings between two and twelve times each night. Of course these are not all emergency cases. Sometimes advice over the telephone is all that is needed.’"
The author concluded the article by presenting under the third sub-head comments of Dr. Jürgen Arndt, "Vice-Chairman of the Hamburg Veterinary Surgeons’ Council and himself director of a clinic in Harburg". Believing that an emergency service organised on a rota basis "would not release clinics from dispensing their voluntary service but would lessen the strain on them", Dr. Arndt said that he was actively trying to promote such a service. He added that the appropriate Hamburg authorities envisaged drafting the Act on veterinary surgeons during the fourth quarter of the year. Until it came into force, owners of animals would have to call one veterinary surgeon after another - or else the police, who would normally be prepared to help them.
The article was illustrated by two photographs. The larger, centrally placed, showed a cat and had the caption: "Um das Leben der kleinen ‘Shalen’ wurde gekämpft - erfolgreich" ("They fought for the life of little ‘Shalen’ - and won"). The second one was an identity photograph which appeared alongside the title and introductory paragraph of the article; it was a photograph of the applicant, though its caption erroneously gave the name of Dr. Arndt.
Below the photograph of the cat and outside the space occupied by the article, there was a short text under the heading "Hamburg - Stadt der Tiere" ("Hamburg - city of animals"), giving the number of domestic pets, veterinary surgeons and veterinary clinics in Hamburg and the telephone number of the emergency service available at weekends and on public holidays.
14. On 25 August 1978, the Hamburger Abendblatt once again published the applicant’s photograph under the heading "Unter dem Foto ein falscher Name" ("Wrong name under photo"), together with the following explanation: "An error crept into our report yesterday on the emergency veterinary service. Unfortunately, the wrong name appeared under the photograph. The person in question is in fact Dr. Sigurd Barthold, director of the Fulhsbüttel veterinary clinic."
15. A number of Dr. Barthold’s fellow practitioners, who regarded the article in question as publicity conflicting with the Rules of Professional Conduct, referred the matter to the association "PRO HONORE - Verein für Treu und Glauben im Geschäftsleben e.V." ("Pro Honore Association for fairness and trustworthiness in business" - "Pro Honore"). This association was founded in 1925 by the businessmen of Hamburg and exists in order to "ensure honesty and good faith in all spheres of business life" and "in particular to combat unfair competition, fraud in connection with moneylending and corruption" (article 2 of the Charter of 26 September 1979).
Between 1978 and 30 September 1980, Pro Honore was operating simultaneously as a branch organisation of the Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. Frankfurt-am-Main (the Frankfurt-am-Main Central Agency for Combatting Unfair Competition - "the Central Agency"). The latter has been active for decades in curbing unfair competition, and counts among its members all the chambers of industry, trade and crafts and some 400 other associations, including the Federal Association of Veterinary Surgeons. The Hamburg Veterinary Surgeons’ Council and the Deutsche Tierärzteschaft e.V, which is the umbrella organisation of the councils and private associations of veterinary surgeons, are not members of the Agency.
Under section 13 of the Unfair Competition Act of 7 June 1909 (Gesetz gegen den unlauteren Wettbewerb - "the 1909 Act"), Pro Honore and the Central Agency are empowered to bring against anyone engaged in business proceedings to restrain that person from breaking certain rules set forth in the Act.
16. On 4 September 1978, Pro Honore wrote to the applicant to say that it had been informed by certain veterinary surgeons that he had "instigated or tolerated, in the Hamburger Abendblatt of 24 August 1978, publicity on [his] own behalf". The letter went on to quote extracts from the article in question. The applicant was said to have thereby infringed section 1 of the 1909 Act in conjunction with Rule 7 of the Rules of Professional Conduct.
Section 1 of the 1909 Act stipulates that: "Any person who in the course of business commits, for purposes of competition, acts contrary to honest practices (gute Sitten) may be enjoined from further engaging in those acts (Unterlassung) and held liable in damages."
Rule 7 of the Rules of Professional Conduct deals with advertising and publicity (Werbung und Anpreisung) and reads as follows:
"It is contrary to the ethics of the profession (standeswidrig):
(a) to advertise publicly one’s veterinary practice,
(b) to instigate or tolerate publicity or public acknowledgements on television, radio or in the press or other publications,
(c) to disclose case histories or methods of operation or of treatment elsewhere than in specialised journals (Fachzeitschriften),
(d) to co-operate with non-veterinarians for the purpose of publicising one’s own practice."
Pro Honore asserted its right to bring proceedings against the applicant for unfair competition (section 13 sub-section 1 of the 1909 Act) and called on him, for the purposes of a friendly settlement of the matter, to sign an enclosed declaration. Under the terms of this declaration, he would undertake not to make publicity on his own behalf by instigating or tolerating press articles such as that which had appeared in the Hamburger Abendblatt, to pay the Central Agency 1000 DM for each infringement and to pay Pro Honore 120 DM by way of costs incurred in asserting its right (Rechtsverfolgung).
17. A lawyer replied two days later on behalf of the applicant. The request made to Dr. Barthold was, he wrote, very close to blackmail. It was presumptuous (Zumutung) to speak of unlawful publicity. The reproaches directed against his client, who had not instigated the article complained of, had done considerable damage to his personal and professional reputation.
The applicant’s lawyer asked Pro Honore to confirm in writing that it would be dropping its claim against his client, withdrawing its accusations and expressing regret. He also asked for reimbursement of his costs and announced that he would sue Pro Honore if it failed to meet his demands within three days.
18. The Central Agency then applied to the Hamburg Regional Court (Landgericht) for an interim injunction (Articles 936 and 944 of the Code of Civil Procedure).
An interim injunction was issued on 15 September 1978 by the presiding judge of the 15th Civil Chamber. This decision forbade the applicant
"to report in the press (except in professional journals), giving his full name, a photograph of himself and an indication of his occupation as director of the Fuhlsbüttel veterinary clinic, that at least on working days between 8 p.m. and 8 a.m., animal lovers in Hamburg would get sore fingers from trying to telephone veterinary surgeons ready to help them, in conjunction with (in Verbindung mit)
(a) the statement that only veterinary clinics were on voluntary emergency duty round the clock, and/or
(b) the statement that in his practice the telephone rang between two and twelve times between 8 p.m. and 8 a.m., though not all these calls were emergency cases and advice over the telephone would sometimes be sufficient, and/or
(c) the description of a case in which the owner of an animal had tried in vain one ordinary weekday between 7.30 p.m. and 10 p.m. to find a veterinary surgeon to treat his cat, until finally he was lucky enough to contact Dr. Barthold, who acted when it was more than ‘high time’,
and/or to contribute to such reports by giving journalists information".
For each and every breach of the injunction, he was liable to a maximum fine (Ordnungsgeld) of 500,000 DM or non-criminal imprisonment (Ordnungshaft) of up to six months, the precise penalty to be fixed by the court.
19. The applicant lodged an objection (Widerspruch) against this injunction (Articles 936 and 924 of the Code of Civil Procedure). The competent Chamber of the Regional Court upheld the injunction, however, on 15 November 1978. He thereupon entered an appeal which was dismissed on 22 March 1979 by the 3rd Chamber (Senat) of the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht). Finally, on 2 July 1979, the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, decided not to entertain the constitutional application he had brought against the latter judgment and the interim injunction of 15 September 1978, on the ground that the application did not offer sufficient prospects of success.
20. Before completion of the proceedings relating to the interim injunction, Dr. Barthold had asked the Regional Court to set a time-limit within which the Central Agency should commence the action as to the main issue (Articles 936 and 926 of the Code of Civil Procedure); whereupon the Agency instituted the necessary proceedings on 22 December 1978. Its statement of claim was couched in the same terms as the prohibitory injunction issued by the Regional Court on 15 September 1978 (see paragraph 18 above).
21. On 20 July 1979, the 16th Commercial Chamber of the Regional Court found in favour of the defendant.
The Regional Court rejected certain objections raised by him as to the Agency’s right of action. Nor did it accept his argument that the plaintiff, in complaining of an infringement of section 1 of the 1909 Act, could not rely upon Rule 7, paragraph (a), of the Rules of Professional Conduct.
On the other hand, the Regional Court was satisfied that the evidence adduced did not support the charge of infringing the rules governing competition (Wettbewerbsverstoss). It had not been established that the applicant had influenced to an appreciable extent or tolerated the publication complained of. In fact, there were important indications pointing in the opposite direction. The author of the article had declared that Dr. Barthold’s name had been mentioned without his knowledge. It could be inferred from her testimony that the applicant had not asked for his identity to be divulged and must have expected not to find mention of it in the newspaper. He might thus have believed - as indeed he asserted - that the Hamburger Abendblatt would do no more than discuss the deplorable situation brought about by the absence of a night service. In addition, it was quite possible that the article in question, instigated by the journalist, was not based solely on the interview with Dr. Barthold and that the newspaper or the journalist had included the name of Dr. Barthold and of his clinic so as to emphasise the difference between the latter - praiseworthy - clinic and other less helpful veterinary surgeons. The question whether the applicant had taken care, or at least endeavoured, to prevent his name and clinic being given prominence over his fellow practitioners had been impossible to elucidate - and this should not operate to Dr. Barthold’s detriment - as the journalist had refused to give any further evidence, on the justified ground that she was not obliged to disclose her sources.
22. On 24 January 1980, the Hanseatic Court of Appeal, after declaring admissible the appeal brought by the Central Agency, upheld the Agency’s grounds of appeal, which reiterated the terms of the injunction granted on 15 September 1978 (see paragraphs 18 and 20 above).
The Court of Appeal held in the first place that the applicant had infringed Rule 7, paragraph (a), of the Rules of Professional Conduct, a legally valid (formell rechtmässig) provision that was in conformity with the Basic Law as well as other superior rules of law. That Rule did not unreasonably limit Dr. Barthold’s right to freedom of expression as guaranteed by Article 5 of the Basic Law, for there was nothing to prevent him from freely stating his opinion and in particular from criticising deplorable situations, even if this had the inevitable effect of producing publicity favourable to himself. The Agency was not seeking to restrain Dr. Barthold from making public pronouncements about veterinary assistance. Its application was concerned solely with a given form of conduct comprising - "cumulatively!" - several aspects: the giving of Dr. Barthold’s full name, the reproduction of his photograph, the mention of his being director of the Fuhlsbüttel veterinary clinic and the statement that, at least between 8 p.m. and 8 a.m. on working days, animal lovers in Hamburg would get sore fingers trying to telephone a veterinary surgeon willing to help them, plus one of the three assertions set out in the Agency’s grounds of appeal (and, previously, in the interim injunction of 15 September 1978 - see paragraph 18 above).
Objectively, the article complained of entailed publicity for Dr. Barthold: compared to other veterinary surgeons, it presented him as an exemplary practitioner, thereby being particularly likely to incite the owners of sick animals to turn to his clinic. Such publicity exceeded the bounds of objective comment on matters of justified concern for the applicant. If in the future he were to supply the press with information necessary for the writing of an article, he should, in order to avoid any infringement of Rule 7, paragraph (a), of the Rules of Professional Conduct, ensure beforehand that the text to be published did not involve any unlawful publicity or advertising, by reserving a right of correction or by agreeing on the form of the article with the journalist.
In the view of the Hanseatic Court of Appeal, the respondent had at the same time contravened section 1 of the 1909 Act. His intention of enhancing his own competitivity to the detriment of his competitors was to be presumed in the case of this type of publication, and that presumption was not rebutted in the circumstances. It mattered little (unerheblich) that he may additionally or even primarily have been pursuing other objectives, as there was an act done for the purposes of commercial competition as long as the intent to stimulate such competition had not been entirely overriden by other motives ("nicht völlig hinter sonstigen Beweggründen verschwindet").
As for the risk of repetition, also presumed in this matter, there were no grounds for concluding that this was non-existent. Contrary to what the Regional Court had found, the applicant had knowingly and substantially contributed to the publication which highlighted his person and his clinic. It was true that the press had itself taken up the case of "Shalen" and had invited Dr. Barthold to comment only after being informed of the incident by the animal’s owner. However, the applicant had, by his interview, greatly influenced the content of the article and, what was more, had authorised a photograph to be taken of himself. He had thereby provided the opportunity for producing the article in question, with its character of publicity.
He could not have been unaware of this risk and the Rules of Professional Conduct required him to ensure that the text to be published did not involve illegal publicity favourable to himself, by reserving a right of correction or by agreeing on the form of publication with the journalist. He could also have made an arrangement with Mrs. B to remain anonymous, although he was in no way obliged to express his views without disclosing his identity.
In fact, the respondent had acknowledged in his written pleadings of 13 December 1978 and 12 January 1979 that he had authorised the inclusion of his name and photograph. Although he retracted those statements on 29 March and 6 April 1979, he had not shown that he had insisted on publication without inclusion of such details. The testimony of the journalist was not conclusive on this point. It was not necessary to take evidence from Dr. Arndt, because Dr. Barthold had unquestionably allowed photographs to be taken. That being so, he ought not to have contented himself with obtaining a verbal promise - as he claimed to have done - that he would not himself appear in one of the photographs. Whilst he claimed to have told the journalist that the Rules of Professional Conduct prohibited advertising and publicity, he was wrong to have passed on to her the responsibility of writing an article which complied with those Rules.
The danger of repetition persisted notwithstanding the time that had elapsed. The "Shalen" affair was no longer topical, but the press was likely to come back to the issues it had raised, by making reference to this incident along with others, after another interview with Dr. Barthold.
The Court of Appeal decided finally not to give leave to appeal on points of law against its judgment: the latter did not depart from the established case-law of the Federal Court of Justice (Bundesgerichtshof), and the case did not raise questions of principle.
23. Dr. Barthold challenged the judgment of 24 January 1980 before the Federal Constitutional Court. He repeated various arguments on which he had based his constitutional application in the interim proceedings (see paragraph 19 above), namely non-observance of equality before the law, of freedom of expression and of freedom to practise a profession, as safeguarded by Articles 3, 5 and 12 of the Basic Law, and incompatibility of the obligation to belong to the Veterinary Surgeons’ Council with freedom of association, as guaranteed by Article 9 of the Basic Law. In addition, he alleged violation of his right to be heard, in particular by a legally competent court (gesetzlicher Richter). On this latter point, he claimed that it was not within the province of the civil courts to apply the Rules of Professional Conduct.
The Constitutional Court, sitting as a bench of three judges, dismissed the constitutional application on 6 October 1980, on the ground that it lacked sufficient prospects of success.
24. In the Federal Republic of Germany, veterinary medicine is governed partly by federal law and partly by the law of the Länder. The principal rules relevant to the present case are to be found in the Federal Veterinary Practitioners Act (Bundes-Tierärzteordnung, in the version of 22 August 1977 - "the Federal Act"), the Hamburg Act of 26 June 1964 on the Veterinary Surgeons’ Council ("the 1964 Act" - see paragraph 11 above), the Hamburg Act on Disciplinary Tribunals for the Medical Professions (Gesetz über die Berufsgerichtsbarkeit der Heilberufe, in the version of 20 June 1972 - "the 1972 Act"), the Rules of Professional Conduct of 16 January 1970 (see paragraph 11 above) and the Regulations on the establishment of veterinary clinics (see paragraphs 12 above and 29 below).
25. The profession of veterinary surgeon is not an industrial, commercial or craft occupation (Gewerbe) but, by its nature, a liberal profession (section 1(2) of the Federal Act). According to sub-section 1 of section 1 of the Federal Act,
"It shall be the task of the veterinary surgeon to prevent, alleviate and cure suffering and disease in animals, to contribute to the maintenance and development of productive livestock, to protect man from the dangers and harm arising from animal disease and from foodstuffs and products of animal origin, and to endeavour to improve the quality of foodstuffs of animal origin".
In order to be able to practise on a permanent basis, an authorisation (Approbation) issued by the appropriate Land authorities is required; such authorisation is granted if the person concerned satisfies the conditions laid down by law (sections 2 to 4 of the Federal Act).
26. The veterinary surgeons practising in Hamburg constitute the Hamburg Veterinary Surgeons’ Council, which is a public-law association (sections 1 and 2 of the 1964 Act). Its functions include defending the professional interests of the veterinary surgeons, ensuring that the latter meet their professional obligations and assisting the public health services (öffentlicher Gesundheitsdienst) in the performance of their duties (section 3 of the 1964 Act).
The Council’s organs are the governing board (Vorstand) and the general assembly; the latter adopts the Charter and the Rules of Professional Conduct, which are submitted to the Government of the Land for approval (sections 5 and 8 of the 1964 Act).
The Council is under the supervision of the State, which supervision extends to observance of the laws and the Charter (section 18 of the 1964 Act).
27. The Rules of Professional Conduct of the Hamburg Council require each veterinary surgeon to practise in such a way that the profession inspires respect and confidence; the making of pejorative statements about the person, knowledge or skills of another veterinary surgeon is not allowed (Rule 1 (1) and (2)).
The Rules contain a number of provisions forbidding veterinary surgeons from advertising their own practices. Under Rule 5, veterinary surgeons may only intervene if asked to do so; offering or providing their services without being requested is at variance with the rules of the profession. Rule 7 deals more specifically with publicity and lays down conditions to be observed (see paragraph 16 above). In addition there are Rules 8 and 9, which concern advertisements in the press and name-plates respectively.
28. Each veterinary surgeon is required to intervene in the event of an emergency (Rule 1 (3)); he must (soll) participate in providing a service at weekends and on holidays and hold himself in readiness to replace any other colleague (Rule 14).
The question of a night service for veterinary surgeons, a matter not dealt with in the law or the Rules of Professional Conduct, has been the subject of debate within the profession (see paragraph 12 above). The Council opted on 11 December 1978 for a voluntary solution whereby veterinary surgeons indicate on a list the times when they may be contacted and the Council communicates to the public, by means of an automatic reply service, the names of those veterinary surgeons who are available even outside normal consultation hours.
According to the Government, it was apparently quite a long time before a relatively sizeable number of veterinary surgeons agreed to participate in this scheme. In 1979, the Council was said to have felt the need to launch an appeal for volunteers for the weekend and emergency service.
Yet again, in 1981, the director of a veterinary clinic publicly criticised the working of the emergency service in Hamburg and stated that he had been unsuccessfully campaigning for two years for a duty rota for all veterinary surgeons (see Die Zeit of 11 December 1981).
However, according to the applicant, there has existed since 1982 a system along the lines he had proposed. The Government did not contest this assertion.
29. An establishment for the treatment of sick animals may be called a "veterinary clinic" if it has the requisite premises and equipment and if the Council has given its approval (Rule 19). The detailed rules are set out in Regulations promulgated by the Council (see paragraph 12 above), the most recent version of which dates from December 1982. The 1982 Regulations lay down that henceforth clinics must provide a round-the-clock service for emergencies unless the Council has made other arrangements guaranteeing adequate assistance.
30. The 1909 Act applies to any person seeking to derive income from a regular economic activity; it thus covers industrial, commercial and craft activities, services and the liberal professions. It is designed to protect competitors and consumers, and applies independently of the texts, if any, governing the conduct of members of the liberal profession in matters of publicity and advertising.
31. The courts with jurisdiction to deal with infringements of the 1909 Act - principally the civil courts (section 13 of the Act) - are not bound by any findings made by such professional tribunals as may have considered the same facts in the light of the professional rules governing publicity. However, it has been consistently held by the Federal Court of Justice that breach of these professional rules will, in the normal course of things, also entail infringement of section 1 of the 1909 Act (see paragraph 16 above). The court having to decide the case on the basis of the 1909 Act must nonetheless inquire in each case whether the requirements of section 1 are satisfied.
32. By virtue of section 13, an action for contravention of, for example, section 1 may be brought by any competitor, by trade and professional associations (gewerbliche und Berufsverbände) and, since 1965, by consumer associations.
VIOLATED_ARTICLES: 10


ITEMID: 001-104923
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: COMMITTEE
DATE: 2011
DOCNAME: CASE OF KELOĞLAN AND OTHERS v. TURKEY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: András Sajó;Paulo Pinto De Albuquerque
TEXT: 4. The applicants, who are former military students, were born in 1988, 1987 and 1991 respectively and live in Ankara, Kocaeli and Adana.
5. On different dates the applicants were expelled from military schools following disciplinary decisions, which held that the applicants did not possess the requisite attributes of a military student as defined in the relevant legislations. The applicants were not provided with any further information regarding the reasons for their expulsions.
6. The applicants subsequently brought separate actions before the Supreme Military Administrative Court against the Ministry of Defence, requesting this court to quash the disciplinary decisions ordering their expulsions.
7. The Ministry of Defence submitted certain documents and information to the Supreme Military Administrative Court during the course of the proceedings, which were classified as “secret documents” under Article 52 (4) of Law no. 1602 on the Supreme Military Administrative Court. These documents were not disclosed to the applicants.
8. On 27 September 2006, 22 November 2006 and 3 October 2007, respectively, the Supreme Military Administrative Court rejected the applicants’ request. The judgment of 3 October 2007 was served on the third applicant on 25 October 2007. Citing the relevant legislation, the Supreme Military Administrative Court held that a student could be lawfully expelled from a military school by a disciplinary board decision if he was found to have lost the attributes of a military student during the course of his studies or if it became apparent at such time that he did not possess the necessary qualifications from the start. The applicants, who were found to lack the requisite attributes of a military student following a secret security investigation conducted on them and their families, were thus lawfully expelled from their schools.
9. On 15 November 2006 and 12 September 2007, respectively, the Supreme Military Administrative Court rejected the first and second applicants’ rectification request. The third applicant did not seek rectification.
10. A description of the relevant domestic law can be found in the decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23 September 2008).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1